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1
Sauls, Paul Anthony. "The review function of the labour court." Thesis, Nelson Mandela Metropolitan University, 2007. http://hdl.handle.net/10948/821.
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Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
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Boyens, Marthinus Johannes. "Sidumo revisited." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/d1020117.
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The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
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Hanekom, Jurgens Philip. "The application of the hearsay rule in labour law proceedings." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/300.
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To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
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Petersen, Desmond. "Changing terms and conditions of employment in the South African labour relations arena -- the approach of the courts: A comparative analysis." University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&.
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This paper focused on how competing interests of employers and employees are accomodated in the South African Labour Relations arena. An analysis of the legislative framework was undertaken to establish how the legislation provides for changes in workplace practices as well as the protection that it affords employees against unwanted or unilateral changes. The main focus of the research was on how the South African Courts have interpreted the legislation and how it has applied the law in cases involving the changing of terms and conditions of employment, that has come before it.
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Botma-Kleu, Carli Helena. "The role of reasonableness in the review of CCMA arbitration awards in South Africa : an English law comparison." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1020196.
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In South Africa, the Labour Courts have experienced an important and continuing controversy regarding the permissible scope of judicial review of arbitration awards of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”). Section 145(1) of the LRA specifically provides that arbitration awards, generally considered final and binding, can be reviewed and set aside by the Labour Court on the basis of a defect as defined in section 145(2)(a) and (b). These defects are not prescribed in an open-ended manner but limited to decisions involving allegations of misconduct by the commissioner in relation to his or her duties, a gross irregularity in the conduct of the proceedings and/or allegations that the commissioner exceeded his or her powers or that the award was improperly obtained. Unreasonableness and/or irrationality are not included within the scope of a defect as per section 145(2)(a) and (b). Initially, Carephone (Pty) Ltd v Marcus NO & others 1998 11 BLLR 1093 (LAC) found that the interpretation of section 145 was influenced by rational justifiability in accordance with the right to just administrative action as provided for in section 33, read with item 23(2) of Schedule 6, of the Constitution of the Republic of South Africa, 1996 (‘the 1996 Constitution’). Today, leading precedent in the form of Sidumo & another v Rustenburg Platinum Mines Ltd & others 2007 12 BLLR 1097 (CC) dictates that section 145 of the LRA is suffused by reasonableness in accordance with the right to just administrative action as provided for in section 33 of the 1996 Constitution. The ultimate enquiry is whether the arbitration award is one that a reasonable decision-maker could reach as articulated in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 4 SA 490 (CC). However, the enquiry into the reasonableness of a decision is indistinct. As a result, the Labour Courts have struggled to apply the concept of reasonableness in a consistent manner. This thesis seeks to identify the proper role of reasonableness in the judicial review process, including identifying factors that would assist in recognising an unreasonable decision. Relevant principles of judicial review in South Africa in the general administrative law context are considered and distinguished from the process of appeal. An assessment of English case law and commentary in the field of both administrative and employment law is conducted. Finally an extensive examination of South African case law and commentary on the subject, both pre- and post Sidumo, is undertaken. The English law approach is found to provide greater clarity to the interpretation of reasonableness in South African labour law in several respects.
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Nengovhela, Livhuwani Adolphus. "The contribution of the Labour Court to the development of strike law." Thesis, Nelson Mandela Metropolitan University, 2005. http://hdl.handle.net/10948/430.
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The Labour Relations Act 66 of 1995 brought a number of changes in the labour relations environment from its inception on 11 November 1996. The Act codified Industrial Court decisions that were already established under the strike-law jurisprudence from the Labour Relations Act 28 of 1956. These general changes to the law also impact on the strike-law regime. The purpose of this paper is to give an overview of the contributions made by the Labour Courts1 in developing strike law from the inception of the Act. The Labour Courts have made a number of decisions that have helped in clarifying the provisions of the Act. One should hasten to say that this has never been a smooth process by the courts. It will further be shown in this paper that some of the court decisions were not well accepted in the light of other considerations, such as the Constitution and the previous Industrial Court decisions. On some occasions the Constitutional Court had to intervene in order to clarify the intention of the legislature. For the purpose of effectively dealing with this topic, I shall briefly give the historical context of strike law in the form of common-law position, and the strike-law position before the Bill of Rights and the Constitution. I shall then endeavour to identify the legislative provision of the Act when it comes to strike-law provisions, at the same time identifying the important court decisions that were made.
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Partington, Jonathan. "Re(viewing) the constitutional court's decision in Sidumo v Rustenburg Platinum Ltd." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1032.
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In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
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Brett, Acama Uzell. "A critical analysis of how the courts apply the standard of reasonableness in reviewing arbitration awards." University of the Western Cape, 2015. http://hdl.handle.net/11394/5350.
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Wagener, Pieter Cornelius. "The concurrent jurisdiction of the Labour Court and the High Court." Thesis, University of Port Elizabeth, 2002. http://hdl.handle.net/10948/286.
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An overview is given of the difficulties surrounding the concurrent jurisdiction of the Labour Court and High Court The main categories of the jurisdictional dispute are identified and systemised. The main branches are those of statutory overlap and interpretation of statutes. Statutory overlap concerns matters remaining from the industrial court era, urgent applications, delict and law of contract. Statutory interpretation mainly involves the interpretation of provisions in the Bill of Rights of the Constitution. An overview of the principles of jurisdiction with respect to the different courts, as well as a brief historical review of the development of such jurisdiction is given. Particular attention is given to the role of fundamental rights in the Constitution. Broad principles are identified whereby the difficulties may be addressed.
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Nina, Daniel. "Popular justice in a "new South Africa": from people's courts to community courts in Alexandra." Centre for Applied Legal Studies, University of the Witwatersrand, 1992. http://hdl.handle.net/10962/72807.
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Imagine a "new South Africa" in which, to borrow an idea from a former bureaucrat of the US State Department, history has come to an end.3 A new society in which class, race and gender are no longer necessary categories to define the social phenomenon. South Africa will be, then, the "terrestrial paradise". However, I am afraid to remind the reader that in this particular African country, history has not come to an end. This country experiences the most open and rude expression of struggle (class, race and gender), and it is difficult to foresee that in this period of transition, history or the struggle, will come to an end. Popular justice vis ei vis state justice is, perhaps, one of the best examples in which the struggle between the oppressed and the oppressors is manifested. But the popular justice that I am thinking of, is that particular experience of "people’s legality" that has emerged in South Africa since the popular revolts of the mid-1980s. It could have its origins in African (customary) traditions (Bapela, 1987), but the cultural experience that emerged during the last decade went beyond its traditionalist roots (Suttner, 1986). Thus, the distinctive element of popular justice is that it has been ingrained in a democratic movement for empowering the people. What people?4 Whose justice? In the specific context of South Africa, by people I understand the working class and working classes, unemployed and marginal sectors, and different social sectors that are struggling for equality (ie the youth, women, gays and lesbians, and others). By justice, I mean the development of a new legality that will take into consideration the many gains that have been achieved within the Western legal system of "rights and obligations" (Pashukanis, 1978:100), and that goes beyond that model in the construction of a democratic society with wider social participation. So far, it has been in South Africa’s black townships that an incipient expression of popular justice has emerged.6 The 1980s people’s courts represented a synthesis of a popular project defining its own structures of legality. State repression over these popular structures did not represent the end of the project. In contrast to other points of view that have viewed this experience as a prefigurative enterprise that did not accomplish its aims (see in general Allison, 1990), I argue that the experience of popular justice of the 1980s laid the foundation for a (long term) project leading towards a radical conception of democracy (Laclau, 1990:chapter 6).Occasional papers (University of the Witwatersrand. Centre for Applied Legal Studies) ; v. 15
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Tarantal, Willem Benjamin. "The right of appeal: Exercising the right of appeal from the lower courts." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&.
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This thesis dealt with the constitutionality of the provisions of the Criminal Procedure Amendment Act, 2003 (Act 42 of 2003), pertaining to the leave requirement and petition procedures in respect of appeals against conviction, sentence or orders of the lower courts.
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Mqeke, Bangilizwe Richman. "Traditional and modern law of procedure and evidence in the chief's courts of the Ciskei." Thesis, Rhodes University, 1986. http://hdl.handle.net/10962/d1003202.
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In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.
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Obiokoye, Iruoma Onyinye. "Eradicating delay in the administration of justice in African courts: a comparative analysis of South African and Nigerian courts." Diss., University of Pretoria, 2005. http://hdl.handle.net/2263/942.
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"A well functioning judiciary is a central element of civil society. It is the sole adjudicator over the political, social and economic spheres. Judiciaries in many African countries suffer from backlogs, delays and corruption. In countries such as Nigeria, South Africa, Ghana, Tanzania, and Uganda, speedy resolution of disputes is becoming increasingly elusive. Although many African countries have constitutional provisions against delay, and have identified congestion, excessive adjournments, local legal culture and corruption as some of the major causes of delay, nevertheless, the problem continues to be a feature in African Courts. In Nigeria, the average period to commence and complete litigation is six to ten years. In some instances, the litigation period is even longer. For example, in the case of Ariori v. Muraimo Elemo proceedings commenced in October 1960 and took 23 years to reach the Supreme Court of Nigeria. In South Africa, despite many programs and projects in place to solve the problem, delay in the administration of justice is still a problem. Appraising the extent of the problem, Penuell Maduna addressing the National Judges Symposium stated: “The public is perturbed by substantial backlogs in the criminal courts and in finalising prosecutions...” Mindful of the increase of this problem, especially in view of the consequences it poses, this study perceives a need to eradicate delay in the administration of justice. Thus, this study analyses the problem of delay in Nigerian and South African Courts with a view to ascertaining the nature, extent and causes of delay in the two countries, and suggests possible solutions to the problem. South Africa and Nigeria were chosen because they have similar judicial systems and experience delays in judicial proceedings." -- Chapter 1.Prepared under the supervision of Mr. Abraham J. Hamman, Faculty of Law, University of Western Cape, South Africa
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005.
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM
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Brand, Jacobus Frederick Daniel (Danie). "Courts, socio-economic rights and transformative politics." Thesis, Stellenbosch : University of Stellenbosch, 2009. http://hdl.handle.net/10019.1/1333.
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Thesis (LLD (Public Law))—University of Stellenbosch, 2009.ENGLISH SUMMARY: The point of departure of this dissertation is that transformation in South Africa depends on transformative politics – extra-institutional, substantive, oppositional, transformation-oriented politics. One challenge South Africa’s constitution therefore poses to courts is to take account of the impact of adjudication on transformative politics. The purpose of this dissertation is to investigate the relationship between adjudication and transformative politics within a specific context – adjudication of socio-economic rights cases. This relationship is commonly described in a positive light – either that adjudication of socio-economic rights cases promotes transformative politics by giving impoverished people access to the basic resources required for political participation; or that adjudication of such cases is in itself a space for transformative politics. Although there is much truth in both these descriptions, both under-estimate the extent to which adjudication also limits transformative politics. This dissertation focuses on the extent to which adjudication limits transformative politics – it comprises an analysis of socio-economic rights cases with the aim of showing how adjudication of these cases, despite positive results, also limited transformative politics. The theoretical aspects of this problem are outlined in the first chapter. After a description of the body of case law on which the analysis focuses two chapters follow in which two ways in which adjudication limits transformative politics are investigated. The first traces how courts in socio-economic rights cases participate in discourses about impoverishment that tend to describe the problem as non-political – specifically how courts tend to describe impoverishment as technical rather than political in nature; and how courts implicitly legitimise in their judgments liberal-capitalist views of impoverishment that insist that impoverishment is best addressed through the unregulated market. Then follows a chapter investigating how views of legal interpretation in terms of which legal materials have a certain and determinable meaning that can be mechanically found by courts limit transformative politics by insulating adjudication from critique and emphasising finality in adjudication. Throughout it is shown how courts can mitigate the limiting effects of adjudication, by legitimating the political agency of impoverished people, by using remedies requiring political engagement between opponents and postponing closure in adjudication, and by adopting a different approach to interpretation, that emphasises the pliability and relative indeterminacy of legal materials. Despite this, the conclusion of the dissertation is that courts can never wholly avoid the limiting impact of adjudication on transformative politics, but should rather aim to remain continually aware of it.
AFRIKAANS OPSOMMING: Die uitgangspunt van hierdie proefskrif is dat transformasie in Suid-Afrika afhang van transformatiewe politiek – buite-institusionele, substantiewe, opposisionele, transformasie-gerigte politiek. Een eis wat Suid-Afrika se grondwet daarom aan howe stel, is om ag te slaan op die impak van beregting op transformatiewe politiek. Die doel van hierdie proefskrif is om die verhouding tussen beregting en transformatiewe politiek binne ‘n spesifieke konteks – beregting van sake oor sosio-ekonomiese regte – te ondersoek. Meeste beskouinge van hierdie verhouding beskryf dit in ‘n positiewe lig - óf dat die beregting van sake oor sosio-ekonomiese regte transformatiewe politiek bevorder deur vir verarmde mense toegang tot basiese lewensmiddele te bewerkstellig sodat hulle aan politieke optrede kan deelneem; óf dat beregting van sulke sake opsigself ‘n spasie is vir transformatiewe politiek. Hoewel daar waarheid steek in beide beskrywings, onderskat hulle die mate waartoe beregting ook transformatiewe politiek kan beperk. Hierdie proefskrif fokus op hoe beregting transformatiewe politiek beperk - dit behels ‘n analise van sake oor sosio-ekonomiese regte met die doel om te wys hoe beregting van hierdie sake, ten spyte van kennelik positiewe gevolge ook transformatiewe politiek beperk het. Die teoretiese vergestalting van hierdie probleem word in die eerste hoofstuk beskou. Na ‘n beskrywing van die liggaam van regspraak waarop die analise fokus volg twee hoofstukke waarin twee maniere waarop beregting transformatiewe politiek beperk ondersoek word. Die eerste beskou hoe howe in sake oor sosio-ekonomiese regte deelneem aan diskoerse oor verarming wat neig om hierdie probleem as non-polities te beskryf - spesifiek hoe howe neig om hierdie problem as tegnies eerder as polities van aard te beskryf; en hoe howe liberaal-kapitalistiese sieninge van verarming, ingevolge waarvan verarming deur die ongereguleerde mark aangespreek behoort te word, implisiet in hul uitsprake legitimeer. Dan volg ‘n hoofstuk wat naspeur hoe sieninge van regsinterpretasie ingevolge waarvan regsmateriaal ‘n sekere en vasstelbare betekenis het wat meganies deur howe gevind word, transformatiewe politieke optrede beperk deur die openheid van beregting vir kritiek te beperk en finaliteit in beregting in die hand te werk. Deurgaans word gewys hoe howe die beperkende effek van beregting kan teëwerk, deur die politike agentskap van verarmde mense te legitimeer, deur remedies te gebruik wat politieke onderhandeling tussen opponente bewerkstellig en finale oplossings uitstel, en deur ‘n ander benadering tot interpretasie, wat die buigsaamheid en relatiewe onbepaalbaarheid van regsmateriaal erken, te omarm. Tog is die gevolgtrekking van die proefskrif dat howe nooit die beperkende effek van beregting op transformatiewe politiek geheel kan vermy nie, maar eerder deurgaans daarop bedag moet wees.
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Krüger, Rósaan. "Racism and law : implementing the right to equality in selected South African equality courts." Thesis, Rhodes University, 2009. http://hdl.handle.net/10962/d1003192.
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Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
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Fomosoh, Raymond Awa. "Globalisation and work regulation in South Africa." Thesis, University of the Western Cape, 2009. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_8106_1310982701.
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This research paper examines the different forms of employment patterns that have emerged as a result of globalisation as well as the mechanisms that have been used by the legislator to accommodate those in non-standard employment relationships.
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Sibanda, Nomazulu. "The impact of immigration on the labour market: evidence from South Africa." Thesis, University of Fort Hare, 2008. http://hdl.handle.net/10353/207.
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The impact of immigrants on the labour market in the South African context has always been a long standing issue with both government and natives’ fearing for the latter’s displacement effect, pressure on wages and resources. Migrants are blamed for poor labour market conditions of a host country. Literature reviewed from Africa and elsewhere shows that migrants have negative outcomes on the host country’s labour market. For this study an Error Correction Model on time series data from 1980-2006 has been estimated. The study estimated two models that is the unemployment and the wages models. The variables used for estimation are immigration, inflation and the Gross Domestic Product. The study surprisingly found a positive impact of immigrants on wages but the effect on employment was negative and significant. It is important to note here that the calculated impact is only for the documented immigrants the impact the illegal ones is not known.
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Fletcher, John. "The courts cut out : administrative law and detention without trial in South Africa." Thesis, University of Cambridge, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.385372.
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Tshivhase, Aifheli Enos. "Military courts in a democratic South Africa: in search of their judicial independence." Doctoral thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/11662.
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Includes bibliographical references.The new constitutional era in South Africa has brought fresh demands on all institutions of society. The South African military justice system has not been spared. The pressure to transform this system has also been fuelled by a wave of reform of military justice systems in other democratic Commonwealth jurisdictions. In this thesis, I evaluate South African military courts against the basic requirements of judicial independence as interpreted by the Constitutional Court and relevant international bodies. In doing so, I draw on my experience of working in military courts as defence and prosecution counsel respectively in the South African National Defence Force. I conclude that all forums of military justice (including the Commanding Officer’s Disciplinary Hearing) do not meet most requirements for judicial independence. Military judges lack security of tenure; financial security; institutional independence on important administrative aspects; and their institutional impartiality is questionable. I further investigate a suitable model of judicial independence for South African military courts in the democratic era. I propose a new model guided by the following: relevant principles of constitutional and international law relating to judicial independence and the right to a fair trial; emerging foreign trends; and most importantly, military uniqueness and operational effectiveness.
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Mcaciso, Zola. "Did the Constitutional Court decision in Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others(CCT194/17) [2018] ZACC 22 do away with the TES practice in South Africa?" Master's thesis, Faculty of Law, 2020. http://hdl.handle.net/11427/32415.
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This paper is on the impact of the Labour Relations Amendment Act 6 of 2014(LRAA) on the Temporary Employment Services(TES) in South Africa. The TES practice involves a triangular relationship where the TES places workers/employees with a client to provide labour for the benefit of the client. Over the years, there has been an outcry from organised labour for the ban of the TES practice on the basis that it encouraged the exploitation of workers and undermined job security. Other issues associated with the practice were low wages and inferior conditions of service of the placed workers compared to employees employed by the client doing same or similar work. Initially, the TES practice was regulated in a limited way by the Labour Relations Act of 1956 as well as the Labour Relations Act 66 of 1995 (LRA). The LRA initially only regulated the TES practice in so far as it recognised that the TES is the employer of placed workers and it created provisions for joint and several liability for the client and the TES under certain limited circumstances. Despite these attempts to regulate the practice, organised labour felt it was still not good enough as the same problems continued to persist, as a result they continued to challenge the constitutionality of this practice and called for it to be completely banned. In response, the legislature introduced the Labour Relations Amendment Act No 6 of 2014 (LRAA) in an effort to close the loopholes identified. Section 198A(3)(b)(the deeming provision) introduced by the LRAA stipulates that after a period of three months of placement of workers by a TES with a client, the client is deemed the employer of those workers. It is the interpretation of this deeming provision that has sparked a legal debate in South Africa, resulting in two views on how the deeming provision should be interpreted. The first view is the ‘dual employment' interpretation which suggests that after the three months placement has lapsed, both the TES and the client become employers of the placed workers. The second view is the ‘sole employment' interpretation and it proposes that after the three months has lapsed, the client becomes the sole employer of the placed employees. This legal debate was eventually settled by the Constitutional Court(CC) in 2018 in the Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others(CCT194/17) [2018] ZACC 22(Assign Services). The majority view in the CC ruled that the sole employment interpretation is the correct interpretation to be ascribed to the deeming provision, whilst the minority view favoured the dual employment interpretation. This dissertation will critically analyse the legal jurisprudence involved in this debate as well as the implications of the CC decision on the operations of the TES practice in South Africa.
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Collins, Selwyn Charles. "The role of the trade union in post democratic South Africa." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/354.
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In South Africa, labour has played a central role in shaping the transition to democracy. It remained an open question as to whether labour could sustain it’s involvement during the period of consolidation after the first democratic elections. As was evident in other emerging democracies, economic liberalization often led to stagnation and high costs being imposed on workers, while weakening the state. South African trade unions thus faced formidable problems as they had to respond to rapid economic and industrial change. While being stubborn, South African trade unions remain adaptable enough to survive and grow into the 21st Century. In this dissertation, the writer examines the relevance of trade unions in contemporary South Africa and how they are coming to terms with the deregulated labour market, and the question of globalisation. We look at the emergence of new forms of collective bargaining, the growth of trade unions as partners in a changing workplace and the different ways trade unions are modernising themselves to attract new members. Labour when used as a collective force is capable of shaping democratization through the strategic use of power. Labour has the potential , through participation in negotiated compromises, to ensure that the costs of adjustments are not borne by workers alone. To this end, the South African trade union movement has developed innovative strategies and institutions.
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Nyathi, Mthokozisi. "The right to organise: critiquing the role of trade unions in shaping work relations in post-apartheid South Africa." Thesis, Rhodes University, 2011. http://hdl.handle.net/10962/d1003205.
Full textAbstract:
Organised labour continues to play a prominent role in shaping employment relations in South Africa. The individual worker is powerless and in a weaker bargaining position against his employer. The advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. The trade union movement has made and consolidated significant gains since the advent of democracy. It however faces a plethora of new challenges, such as the negative forces of globalisation, declining membership (often associated with high levels of unemployment and the changing nature of work from standard to atypical employment), the resurfacing of adversarialism in the bargaining process, and numerous shortcomings inherent in forums established to facilitate corporatism. Business is intensifying its calls for investor-friendly policies, which effectively mean a relaxation of labour policies. The trade union movement faces an enormous task of rebuilding confidence and credibility among its members and at the same time showing some commitment to other social actors, government and business, that it is committed to contribute to economic growth and employment creation. The central focus of this thesis will be to highlight the gains made by the trade union movement, the numerous challenges threatening their existence, and how they have attempted to redefine their role in the face of these challenges. It will attempt to offer advice on how trade unions can continue to play a prominent role in shaping relations of work in South Africa. The study begins with a historical overview of trade unionism in South Africa. It then attempts to establish how trade unions have made use of the institution of collective bargaining, the importance of organisational rights to the trade union movement, the effectiveness of industrial action, and the emerging challenges threatening the vibrancy of trade unions. The overall aim is to assess whether the trade union movement is still a force to be reckoned with and its future role in influencing employment relations in South Africa.
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Snyman, Felicia. "Social protection for the migrant worker in South Africa." Diss., University of Pretoria, 2013. http://hdl.handle.net/2263/40609.
Full textAbstract:
The purpose of this dissertation is to investigate the social protection, if any, afforded to migrant workers in South Africa. To accomplish this purpose, the ambit of the concept of ‘social protection’ is investigated and the legal status and different categories of migrant workers are probed. The strands of social protection identified and evaluated in the study are:
• social assistance;
• social insurance; and
• labour security.
Each of the categories that define the social protection afforded to migrant workers is examined. The ILO, UN and SADC have numerous standards and instruments dedicated to the extension of social protection as well as the protection of migrant workers globally. The Constitution of the Republic of South Africa, 1996, acknowledges that international law must be considered when interpreting the Bill of Rights. Furthermore, the courts must prefer a reasonable interpretation of legislation, consistent with international law. Each component of social protection, as well as migration, is regulated by different legislative instruments.
South Africa has legislative instruments dedicated to the regulation of social assistance, social insurance and labour security. In South Africa, irregular migrants receive limited social protection. The South African courts have played a positive role in the development and broadening of the social protection afforded to migrant workers, especially in the form of labour security. The limitations in the legislative instruments that regulate labour security are being extended to give effect to the courts’ decisions. Most of South Africa’s neighbouring countries have some form of social protection, but other SADC countries can receive lessons from South Africa with regard to the development of social protection, specifically in the form of labour security.Dissertation (LLM)--University of Pretoria, 2013.
gm2014
Mercantile Law
unrestricted
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Ndung'u, Agnes. "The concept of decent work in a South African context." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1618.
Full textAbstract:
Work is a key component of people's lives and most people aspire to have work that is sufficient to provide a living wage so as to lift them out of poverty and social exclusion and also that is secure enough to guarantee a decent livelihood. The Decent Work Agenda has gained much popularity in recent years and proposes an approach to development that emphasizes fair and sustainable working opportunities that include principles of rights at work, social protection and social dialogue. Various issues have been raised in this study. Firstly, the decent work concept needs to be understood comprehensively as there is misconception about what the concept implies and what it can achieve. Secondly, it is acknowledged that there are huge decent work deficits in South Africa especially in the informal sector which impede on the advancement of people‟s conditions of living, cause people to live lives of poverty as well as deprive people of a life of dignity. This is despite decent work having a solid basis in labour legislation and also South Africa being bound by international law and principles concerning decent work. The study observes that reform in labour legislation is recommended to help overcome the decent work deficits. The ILO has proposed the Decent Work Country Programmes to help countries align their economic development goals with the international goal of the achievement of Decent Work for all. South Africa also has its own solutions such as the New Growth Path as well as other policies. The main issue however is how these policies can be implemented effectively and how decent work can be achieved against a backdrop of the socio – economic challenges that South Africa faces.
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Maro, Mkasafari Grace. "Economic impact of international labour migration on Lesotho's development, 1986-1998: towards an international labour migration policy for the Southern African region." Thesis, Rhodes University, 2002. http://hdl.handle.net/10962/d1007496.
Full textAbstract:
The aim of the thesis is to identify the pressures that contributed to the rise in international labour migration in Lesotho, and to investigate how these pressures are impacting upon the modernization process in the country, particularly at a time when employment opportunities are scarce in the southern African region. International labour migration has been used as a development tool throughout history, but especially in the 20th century by developing countries with dual labour markets. Newly independent developing countries with dual labour markets adapted the strategy of import substitution industrialization (lSI), with an emphasis on protecting infant industries and promoting pro-labour policies. In the post-colonial period the international demand for lowskilled workers rose, particularly in the North (developed countries), and in mineral rich countries including the oil exporters and South Africa, and the newly industrialising countries in East Asia. International labour migration to these countries was adapted as an integral development tool by the governments of the lSI countries. Most migrants were low-skilled and temporary workers in the destination countries. Although no multilateral institutional framework existed, usually both the sending and receiving countries adapted unilateral and bilateral migration policies to guarantee the gains from migration. Workers were thus "protected" to varying degrees under such agreements. From the 1970s, the North experienced a slowdown in the growth in demand for unskilled workers. In the 1980s, many lSI countries experienced devastating economic crises that forced them to abandon the lSI policy and adapt the export-led industrialisation (EOI) policy with an emphasis on trade liberalization. The switch from lSI to EOI in developing countries with dual labour markets led to the downsizing of public sector employment, the removal of marketing boards formally used by small-scale agricultural farmers, and the expansion of export processing zones (EPZs). These outcomes resulted in a rise in push internal migration, and international migration from these countries especially to other developing countries. At the same time, since the late 1980s, capital has acquired greatly enhanced mobility at the global level. The adaptation of EOI and the full mobility of capital at the global level altered the institutional structure within which labour migration was governed both nationally, and internationally. At the national level stricter unilateral policies were reinforced by receiving countries for low-skilled labour, while less strict policies applied for skilled labour. These remain in operation in conjunction with the earlier bilateral agreements. At the international level, there remains a lack of policy to regulate international labour migration. Under the current enhanced mobility of capital, international migrants are thus left vulnerable. Lesotho fits this pattern. Faced with a dual economy and an abundance of semi-skilled labour, Lesotho has been a principal supplier of labour to the South Africa's mining industry since its independence. Lesotho's industrial diversification thus mirrors South Africa's industrial diversification. In the lSI phase (1968 - 1987), international labour migration became the most important tool of economic welfare generation in Lesotho. Bilateral agreements were signed in the early 1970s between Lesotho and South Africa to guarantee the gains from migration. Since the late I980s, the mining industry in South Africa began to downsize production and employment. Fewer novice miners from Lesotho were recruited to work in South Africa. The adaptation of the EOI policy in Lesotho in 1987 introduced EPZ industrialization and trade liberalization. Nevertheless, the retrenchment of mine workers from South Africa is occurring at a time when Lesotho is experiencing an employment crisis. The political independence of South Africa in 1994 was accompanied by stricter international migration policies by the new democratic government of South Africa. Most migrant workers in South Africa are thus now faced with a two-door policy (of the earlier bilateral agreements and the amendments to the Aliens Control Act). This system has left migrant workers vulnerable to exploitation by both employers and the law (police) in South Africa. Nevertheless, international migration from Lesotho to South Africa continues to expand, particularly of the new type of migration - semiskilled female workers in the services sector. At the same time, South Africa is also experiencing an employment crisis. The most important policy implications are, firstly, that migration is subject to the same "casualisation" as other work, with the effects made worse by the "statelessness" of migrants, who are most vulnerable to exploitation. Secondly, multilateralism is needed (e.g., SADC) and holistic, multilateral policies are required. It is clear that under the new global division of labour ad hoc policy towards international labour migration is ineffective.
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Armstrong, Gillian Claire. "Administrative justice and tribunals in South Africa : a commonwealth comparison." Thesis, Stellenbosch : Stellenbosch University, 2011. http://hdl.handle.net/10019.1/17997.
Full textAbstract:
Thesis (LLM )--Stellenbosch University, 2011.ENGLISH ABSTRACT: In the field of administrative law, the judiciary has traditionally exercised control over the administrative actions of the executive through judicial review. However, judicial review is neither the most effective nor the most efficient primary control mechanism for systemic administrative improvement. In a country faced with a task of =transformative constitutionalism‘, and hindered with scarce resources, there is good cause to limit judicial intervention as the first response to administrative disputes. The major theme of this thesis is to investigate the feasibility of administrative tribunal reform in South Africa, using two other commonwealth countries, Australia and England, as a basis for comparison. Australia and England have been chosen for comparison because they share similar administrative law traditions and they can provide working models of coherent tribunal structures. The Australian tribunal system is well-established and consists of tribunals which fall under the control of the executive, while tribunals in England have recently undergone a significant transformation, and are now part of the independent judiciary. The South African government currently spends, indeed wastes, a significant amount of money on administrative law litigation. Due to the limitations of judicial review, even after the high costs of litigation and the long duration of court proceedings, the results achieved may still be unsatisfactory. Furthermore, judicial review is unsuited to giving effect to systemic administrative change and the improvement of initial decision-making. Australia and England have begun to move away from the traditional court model for the resolution of administrative disputes. Both have indicated a preference for the important role of tribunals in the administration of disputes. Tribunals have been shown to offer the advantage of being speedier, cheaper, more efficient, more participatory and more accessible than traditional courts, which contributes to tribunals being a more available resource for lay people or people without sophisticated legal knowledge, and provides wider access to remedies than courts. The English and Australian models indicate a few important trends which need to be applied universally to ensure a sustained tribunal reform and a system which provides a higher level of administrative redress than the over-burdened and institutionally inept courts currently do. These include co-operation among government departments and tribunals; open and accountable systemic change; the need for supervision and evaluation of the whole of administrative law by an independent and competent body; and ultimately a focus on the needs of users of state services. At the same time, there are arguments against administrative tribunal reform. These include the costs of reform; the ways to establish tribunals; and the level of independence shown by the tribunals. These arguments are especially relevant in the South African context, where the government faces huge social problems and a scarcity of resources. However, after an analysis of the valuable characteristics of tribunals and the role that they serve in the day to day administration of justice, it is difficult to see how these objections to tribunals can outweigh their potential importance in the administrative justice system. The need for sustained systematic reform in South Africa is one that cannot be ignored. Tribunals offer a valuable alternative to judicial review for the resolution of administrative disputes. Furthermore, the tribunal systems of Australia and England demonstrate how the effective creation and continued use of comprehensive tribunal structures contributes firstly to cost reduction and secondly to ease the administrative burden on courts who are not suited to cure large-scale administrative error.
AFRIKAANSE OPSOMMING: In die administratiefreg oefen die regsprekende gesag tradisioneel beheer uit oor die uitvoerende gesag deur middel van geregtelike hersiening. Geregtelike hersiening is egter nie die mees doeltreffende of effektiewe primêre beheermeganisme om sistemiese administratiewe verbetering teweeg te bring nie. In 'n land met die uitdagings van 'transformatiewe konstitusionalisme‘ en skaars hulpbronne, kan 'n goeie argument gevoer word dat geregtelike inmenging as die eerste antwoord op administratiewe dispute beperk moet word. Die deurlopende tema van hierdie tesis is 'n ondersoek na die lewensvatbaarheid van hervorming van administratiewe tribunale in Suid-Afrika, in vergelyking met die posisie in Australië en Engeland, waarvan beide ook, tesame met Suid-Afrika, deel vorm van die Statebond. Hierdie lande is gekies vir regsvergelykende studie aangesien hulle 'n administratiefregtelike tradisie met Suid-Afrika deel en beide werkende modelle van duidelike tribunale strukture daarstel. Die Australiese tribunale stelsel is goed gevestig en bestaan uit tribunale onder die beheer van die uitvoerende gesag, terwyl die tribunale stelsel in Engeland onlangs 'n beduidende hervorming ondergaan het en nou deel van die onafhanklike regsprekende gesag is. Die Suid-Afrikaanse regering mors aansienlike hoeveelhede geld op administratiefregtelike litigasie. Selfs na hoë koste en lang vertragings van litigasie mag die resultate steeds onbevredigend wees as gevolg van die beperkings inherent aan geregtelike hersiening. Tesame met hierdie oorwegings is geregtelike hersiening ook nie gerig op sistemiese administratiewe verandering en verbetering van aanvanklike besluitneming nie. Australië en Engeland het onlangs begin wegbeweeg van die tradisionele hof-gebaseerde model vir die oplossing van administratiewe dispute. Beide toon 'n voorkeur vir die belangrike rol wat tribunale in die administrasie van dispute kan speel Tribunale bied die bewese voordele om vinniger, goedkoper, meer doeltreffend, meer deelnemend en meer toeganklik te wees as tradisionele howe, sodat tribunale 'n meer beskikbare hulpbron is vir leke, oftewel, persone sonder gesofistikeerde regskennis en dus beter toegang tot remedies as tradisionele howe verskaf. Die Engelse en Australiese modelle dui op enkele belangrike tendense wat universeel toegepas moet word om volgehoue tribunale hervorming te verseker en om =n stelsel te skep wat 'n hoër vlak van administratiewe geregtigheid daarstel as wat oorlaaide en institusioneel onbekwame howe kan. Dit verwys bepaald na samewerking tussen staatsdepartemente en tibunale; deursigtige en verantwoordbare sistemiese veranderinge; die behoefte aan toesighouding en evaluasie van die hele administratiefreg deur 'n onafhanklike, bevoegde liggaam; en uiteindelik 'n fokus op die behoeftes van die gebruikers van staatsdienste. Daar is egter terselfdertyd ook argumente teen administratiewe tribunale hervorming. Hierdie argumente sluit in die koste van hervorming; die wyses waarop tribunale gevestig word; en die vlak van onafhanklikheid voorgehou deur tribunale. Hierdie argumente is veral relevant in die Suid-Afrikaanse konteks waar die regering voor groot sosiale probleme te staan kom en daarby ingesluit, 'n tekort aan hulpbronne ook moet hanteer. Daarenteen is dit moeilik om in te sien hoe enige teenkanting en teenargumente met betrekking tot die vestiging van administratiewe tribunale swaarder kan weeg as die potensiële belang van sulke tribunale in die administratiewe geregtigheidstelsel, veral nadat 'n analise van die waardevolle karaktereienskappe van tribunale en die rol wat hulle speel in die dag-tot-dag administrasie van geregtigheid onderneem is. Die behoefte aan volhoubare sistemiese hervorming in Suid-Afrika kan nie geïgnoreer word nie. Tribunale bied 'n waardevolle alternatief tot geregtelike hersiening met die oog op die oplossing van administratiewe dispute. Tesame hiermee demonstreer die tribunale stelsels in Australië en Engeland hoe die doeltreffende vestiging en deurlopende gebruik van omvattende tribunale bydra, eerstens om kostes verbonde aan die oplossing van administratiewe dispute te verlaag en tweedens, om die administratiewe las op die howe, wat nie aangelê is daarvoor om grootskaalse administratiewe foute reg te stel nie, te verlig.
27
Murwirapachena, Genius. "Fiscal policy and unemployment in South Africa 1980 to 2010." Thesis, University of Fort Hare, 2011. http://hdl.handle.net/10353/544.
Full textAbstract:
Unemployment is one of the greatest and most complex challenges facing South Africa. Just like most developing countries, South Africa has been using the fiscal policy framework as a tool to alleviate the high rates of unemployment. This study examined the impact of fiscal policy on unemployment in South Africa. The study used annual time series data for the period 1980 to 2010. A vector error correction model was used to determine the effects of fiscal policy aggregates on unemployment in South Africa. The fiscal policy aggregates considered in this study were government investment expenditure, government consumption expenditure and tax. Results from this study revealed that government consumption expenditure and tax have a positive impact on unemployment while government investment expenditure negatively affects unemployment in South Africa. Policy recommendations were made using these results.
28
Kayitare, Frank. "Respect of the right to a fair trial in indigenous African criminal justice systems : the case of Rwanda and South Africa." Diss., University of Pretoria, 2004. http://hdl.handle.net/2263/1087.
Full textAbstract:
"As already mentioned, gauranteeing the right to a fair trial aims at protecting individuals from unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms. The fundamental importance of the right to a fair trial is illustrated not only by international instruments and the extensive body of interpretation it has generated, but most recently, by a proposal to include it in the non-derogable rights stipulated in article 4(2) of the ICCPR. Standards for a fair trial may stem from binding obligations that are included in human rights treaties to which a state in examination is a party, but they may also be found in documents and practices which, though not binding, can be taken to express the direction in which the law is evolving. One of the problems is that law and human rights have been viewed largely as Western concepts, and are therefore defined and valued by Western criteria. This leads to a number of difficulties. First, there are many non-Western societies in which law and human rights thus defined, is impractical and mechanisms of protecting human rights in non-Western justice systems are not recognised as comparable counterparts to those in Western societies. Secondly, African states have failed to abide by their international fair trial obligations because, probably, these standards are impractical given the realities like poverty, illiteracy and strong cultural beliefs that characterise most African communities. As a result, the law applied by the Western style courts is felt to be so out of touch with the needs of most African communities, and coercion to resort to them amounts to denial of justice. This explains why communities, especially in the rural Africa, resort to indigenous African justice systems irrespective of state recognition or otherwise. Upon realisation that the Western style of justice did not respond to the prevailing post-genocide situation for example, the government of Rwanda re-established traditional courts to help deal with the crime of genocide and foster reconciliation. A Gacaca court is constituted of a panel of lay judges who coordinate a process in which genocide survivors and suspected perpetrators and the latter between themselves confront each other. They, and the community, participate by telling the truth of what happened; who did what during the genocide, and then the judges, based on the evidence given to them, decide on the case. These judges are elected by their respective communities for their integrity, not their learning. However, human rights organisations argue that Gacaca proceedings violate the accused persons's fair trial rights. They question among other things capacity of lay judges who make decisions in these courts, to conduct a fair trial. They also contend that Gacaca does not guarantee the right to be presumed innocent because it requires confessoins and that defendants are denied legal representation. In South Africa, traditional courts (konwn as chiefs' courts) exist. They have played a crucial role in dispensing justice in the indigenous communities and are prototypes of the kind of dispute resolution mechanisms desirable in a modern society. They apply 'people's law', which developed as a result of lack of legitimacy of the Western system of justice among the indigenous South Africans. However, critics see them as conservative and unable to render justice in the modern social, economic and political climate in South Africa today. As a result, Western style court proceedings that are conducted in foreign languages to indigenous communities, and thus have to rely on inaccurate and unreliable interpreters in addition to costs for legal counsels and subjection to very technical and formal procedures, are the only alternative in criminal matters. Briefly, the major problem is to ascertain whether indigenous African criminal justice systems do, or otherwise conform to fair trial standards. If they do not, according to who are they not fair? In other words, is there a universal measure of fairness or does appreciation depend on people's enviornment and their socio-economic backgrounds, in which case, the beneficiaries of indigenous African criminal justice systems should be the ones to appreciate its fairness?" -- Introduction.Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004.
Prepared under the supervision of Prof. Nii Ashie Kotey at the Faculty of Law, University of Ghana
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM
29
Von, der Wense Olrik. "Freedom of association and union security arrangements in the republic of South Africa and the Federal Republic of Germany." University of the Western Cape, 1997. http://hdl.handle.net/11394/7906.
Full textAbstract:
Magister Legum - LLMIn the history of labour relations, trade unions have played a major role in protecting the rights of employees and improving their working conditions. They have defended their members against exploitation by employers. They have promoted the establishment of labour legislation, which in some countries is quite comprehensive. They represent the interests of employees in the collective bargaining process. Albertyn describes trade unions as"institutions which advance democracy, co-operation, peaceful resolution of disputes and nonviolent negotiation (and which) are intrinsically worth preserving and protecting".' It is selfevident that a trade union needs strength to achieve these purposes. However, trade unions areweakened by the fact that it is not only union members who enjoy the benefits of their achievements, since non-members do the same and some employees thus try to avoid the burdens of trade union membership. It is therefore understandable that trade unions attempt to decrease the numbers of these so-called "free riders". Besides the pressure that can be brought to bear by fellow employees in the workplace, union security arrangements, such as the closed shop or the agency shop, represent another traditional method of strengthening trade unions. The free rider problem, however, is only one of many arguments used in the debate by those who support the establishment of closed shops.
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Sohena, Siphiwo Clifford. "The development of organisational rights in South Africa." Thesis, Nelson Mandela Metropolitan University, 2007. http://hdl.handle.net/10948/841.
Full textAbstract:
Under the previous Labour Relations Act of 1956, (herein after refered as old LRA) organisational rights in South Africa were conspicuous by their absence. In addition, theright to access was restricted by the Trespass Act No. 6 of 1959, which made it a criminal offence to enter land without thepermission of the owner or lawful occupier, except for a lawful reason. During the 1980’s and the first half of the 1990’s several trade union rights, including the right to engage in collective bargaining were established by the Industrial Court under its unfair labour practice jurisdiction. After 1994, South African courts were bound to uphold the basic rights entrenched in the Constitution, Act No. 108 of 1996, and the new Labour Relations Act, 66 of 1995, (herein after refered as new LRA) was promulgated. A new system of collective bargaining which is voluntary in nature was established in order to level the playing fields between employees and trade unions. The new LRA grants organisational rights to registered trade unions. The aim of this treatise is to consider and evaluate these rights. The main source of organisational rights in international public law is to be found in the International Labour Organisation’s Convention on Freedom of Association. Decisions of the International Labour Organisation’s bodies of supervision and interpretation have upheld the protection of various organisational rights, such as trade union access to the employer’s premises,representation of employees by the officials of their trade union, and the right of union officials to collect union dues. These rights have now been incorporated into our labour law system. In this treatise, the pre-1994 situation and the scenario after the 1994 democratic elections is analysed. The contents of these rights are considered as well as enforcement there-of.
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Salim, Raya Said. "The consequences of unlawful and prohibited contracts of employment in labour law." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1041.
Full textAbstract:
The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
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Pretorius, William Richard. "The impact of the concept of decent work on the job security and the provisioning of educators." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1021218.
Full textAbstract:
Section 29(1) of the Constitution of the Republic of South Africa (the Constitution) guarantees the right to a basic education, including a basic adult education and further education. In realising this right, the State is obliged to provide financial and human resources in a manner that will transform society as a whole and deliver a better life for all citizens. The human resources in the main refer to educators. Education is one of key priorities of the present government to the extent that President Zuma has instructed that a presidential commission be established to look into the conditions of service of public servants and in particular that of educators. The International Labour Organisation (ILO) has proposed the Decent Work Country Programmes to help countries align their policies with the international goal of the achievement of Decent Work for all. South Africa has done a lot of work in this regard; however the main challenge remains with the implementation and acceptance of such policies by the major stakeholders especially the trade unions. This treatise investigates the impact of the Decent Work Agenda (DWA) on the job security and provisioning of educators in South Africa. It also explores the conditions of service of temporary educators and those educators who are teaching in the rural areas under extremely difficult conditions in comparison with their counterparts in urban areas. This treatise also examines the status of social dialogue in the education sector and the impact of same on collective bargaining. This treatise recommends that the utilisation of the services of temporary educators need to be regulated to address the continuous extension of temporary contracts that is impacting negatively on job security. It also suggests that urgent measures in the form of norms and standards be determined to improve the working conditions of educators who are teaching in rural areas under very difficult circumstances.
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Abrahams, Dawood. "The unfair labour practice relating to promotion." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/329.
Full textAbstract:
This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
34
Horo, Lindile. "The variation of conditions of employment." Thesis, University of Port Elizabeth, 2002. http://hdl.handle.net/10948/282.
Full textAbstract:
This paper seeks to bring clarity to a number of issues that arise from a process resulting from the unilateral variation of terms and conditions of employment and the conflict management and dispute resolution processes. The variation of employment terms particularly when it is driven by one party to the employment relationship can cause instability, insecurity, confusion and uncertainty to the parties involved. The nature of work is not constant and therefore changes are inevitable. This then has an effect of bringing disorder not only to the employer-employee relationship but also to the labour relations balance. In many instances and depending on whether it is the employer or employee who propagates the changes, the reasons to alter the conditions are different. Employers usually cite operational or economic reasons that are meant for the survival of the business as the need to make the changes. From the employees’ side the changes are necessitated by reasons aimed at a move from protecting the favourable employment conditions already acquired to improving them or attaining more. In the event that the parties to the employment relationship do not agree to the changes proposed and implemented, a dispute usually arises. This results from the failure of a consultation process, negotiations, persuasion or collective bargaining in general. In essence such a dispute arises from absence of consent to the changes. The failure of a bargaining system requires the process to assume a new nature. The dispute resolution systems and the conflict management systems follow as both the appropriate and necessary steps. The bargaining power together with the intervention of the third party is at the centre of this phase. The parties, depending on the nature of the dispute, the conditions that iv are changed and who are affected by the changes, have choices on what dispute resolution mechanisms to employ. The choice made has a huge impact on both the outcome required in the form of recourse, how the dispute will be resolved or how the conflict will be managed. There is legislative intervention with regards to the resolution of the conflictual scenarios that arise from disputes on unilateral variation of terms and conditions of employment. There are also non-statutory measures available to the parties. The choices are vast as to when can the variation take place, the reasons for the changes, the parties involved, the possible dispute resolution mechanisms, what can be varied and whether the unilateral implementation can be viewed as fair.
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Sotshononda, Ndomelele. "Recent development concerning the unfair labour practice relating to promotion." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/14400.
Full textAbstract:
This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.
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Hemsley, Michael Norman. "The constitutionality of section 32 of the Labour Relations Act." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/11070.
Full textAbstract:
Collective bargaining is the process whereby employees act as a collective unit whilst negotiating terms and conditions of employment with employers. The collective unit typically takes the form of a trade union, mandated by its members to negotiate on their behalf. By negotiating collectively the inherent imbalance of power between employer and individual employee is seen to be neutralised. The process of collective bargaining enjoys legal status in South Africa and around the world. The Industrial Conciliation Act of 1924 institutionalised collective bargaining for the first time in the form of the Industrial-Council system. This sectoral bargaining system stood firm throughout the pre-democracy period but initially excluded non-white employees. Industrial unrest in the 1970s was the catalyst for the Wiehan commission which ultimately brought all employees into the fold. By the dawn of democracy in South Africa the bargaining system enjoyed wide-spread support and legitimacy. This was particularly so amongst the COSATU-led labour movement which enjoyed a position of political strength. This support and strength were reflected in the contents of both the Labour Relations Act and the Constitution which enshrined the constitutional right to engage in collective bargaining. Possibly the most debated aspect of the Council system has been the question of extending agreements to non-parties. Those in favour argue that the Council system cannot function in the absence of extensions. This is so because what would then effectively be a voluntary system would not attract sufficient volunteers. Those against argue that extensions act as a barrier to economic activity, particularly for small and new businesses. Legislation has, since 1924, facilitated the extension of agreements as long as certain criteria are met. Section 32 of the Labour Relations Act is the current extension vehicle. The extension criteria have vacillated over time and especially so in recent history with section 32 being subject to change in every post-democracy amendment to the Act. Possibly the most serious challenge to the extension status quo has come in the form of a constitutional challenge by the Free-Market Foundation. The Foundation advances old economic arguments but links these to an alleged impingement of constitutional rights. The challenge comes at a time when the country is experiencing the most significant socio-political turbulence since democracy. This includes the most enduring strike in our history, a landmark-employer lock-out and a parliamentary facelift. The Metal and Engineering Industries Bargaining Council oversees the biggest manufacturing sector in the South African economy. This status prompted the Council to submit its own responding papers in the Free-Market case. Particularly fascinating is that an employer party to the Council not only supports the Foundation case but has also lodged its own proceedings against the extension of the 2014 Engineering agreement. Both these cases are still pending and the outcomes have the potential to transform the political and economic landscape of our country.
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Gillespie, Neil. "The legal protection of temporary employees." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1019793.
Full textAbstract:
This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
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Mahali, Lesala. "An exploratory study of female labour force participation in South Africa: 1995 - 2010." Thesis, University of Fort Hare, 2013. http://hdl.handle.net/10353/d1007050.
Full textAbstract:
The role that women play in the economy of any society is a desirable goal for equity and efficiency considerations. Just as with the rest of the world, the South African women lagged behind their male counterparts within the economic empowerment space and in the formal labour force. However, the role of women has undergone some transformations with issues relating to employment opportunities, such that their labour force participation has risen considerably since 1994. The female labour force participation rate is still seen to be persistently lower compared to the male participation rate even in the second decade of democracy. The rate of women labour force participation is even lower than the average. On the other hand, the increases have also been coupled with the rising rate of unemployment among women. The objective of this study was to investigate the determinants of female labour force participation in the South African labour market. The study uses a regression analysis on a cross sectional panel data covering a period of 1995 to 2010. Unlike most popular beliefs, the findings of this study reveal that fertility though not statistically significant, positively influences labour force participation of women. Other variables that are statistically significant in explaining female labour force are HIV/AIDS, marital status, age, household income and education. Race was found to be insignificant in explaining female labour force participation in the South African labour force.
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Munuve, Lilian Kasyoka. "A comparison between the South African and Kenyan labour law systems." Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/752.
Full textAbstract:
Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
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Havemann, Roy Charles. "The demand for labour in South Africa : a theoretical and empirical approach." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/50130.
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Thesis (MComm)--Stellenbosch University, 2004.ENGLISH ABSTRACT: Nearly five million South Africans were unemployed in 2002 and creating employment opportunities is a difficult challenge. Before this issue can be tackled, however, it is critical to understand the problem. This thesis opts to contribute to this understanding by considering aspects around the demand for labour. The analysis considers a selection of the theoretical literature on the demand for labour, estimates key labour market parameters and then undertakes a number of simulations using a structural model. There are many conflicting paradigms that can be used to analyse the issue: microeconomic versus macroeconomic; neoclassical versus structuralist; theoretical versus empirical and so forth. Some of these paradigms are considered as part of the attempt to build an empirical framework that can be used to analyse the issue. The empirical results of the thesis suggest that: • Higher real wages lead to lowering of the quantity demanded of labour. The thesis estimates an economy-wide wage elasticity of employment of approximately -0,67; • Higher output stimulates the demand for labour. The single equation estimate of the employment elasticity of output is between 0,66 and 0,75, whilst the economy-wide estimate is approximately 1,1. The latter takes into account feedback effects from other macroeconomic variables, such as productivity and wages; • There is little evidence to show that the efficiency wage hypothesis holds - higher productivity leads to higher wages, but the converse is not true; • Union power increases real wages, indirectly leading to a fall in the demand for labour. This suggests that the labour market has insiders and outsiders; and • The relative price of labour is also important, with a fall in the cost of capital leading to a decrease in the demand for labour. Simulations suggest that job creation can be achieved through policies that encourage wage moderation and increase economic growth. There is also a potential role, albeit limited, for fiscal incentives such as a mooted earned income tax credit.
AFRIKAANSE OPSOMMING: Byna vyf miljoen Suid-Afrikaners was werkloos in 2002 en werkskepping is 'n moeilike uitdaging. Voordat hierdie kwessie aangepak kan word, is dit egter noodsaaklik om die probleem te verstaan. Hierdie tesis dra by tot hierdie begrip deur te fokus op punte rondom die vraag na arbeid. Die ontleding kyk na 'n verskeidenheid van teoretiese literatuur oor die vraag na arbeid en identifiseer sleutel-parameters vir die arbeidsmark. Daar is soveel teenstrydige paradigmas wat gebruik kan word om die kwessie te ontleed: Mikro-ekonomies teenoor makro-ekonomies; neoklassiek teenoor strukturalisties; teoreties teenoor empiries, ensovoorts. Sommige van hierdie paradigmas word bespreek as deel van die poging om 'n empiriese raamwerk te bou wat gebruik kan word om die kwessie te ontleed. Die empiriese resultate van die tesis toon: • Hoër reële lone lei tot 'n verlaging van die hoeveelheid arbeid aangevra. Die tesis beraam die ekonomiewye loonelastisiteit van indiensneming op sowat - 0,67; • Hoër uitset stimuleer die vraag na arbeid. Die enkelvergelyking-raming van die uitset-elastisiteit van indiensneming is tussen 0,66 en 0,75, terwyl die ekonomiewye raming sowat 1,1 is. Laasgenoemde neem terugvoerinvloede van ander makro-ekonomiese veranderlikes in ag, bv. produktiwiteit en lone. • Daar is min bewyse dat die doeltreffende loon-hipotese water hou: Hoër produktiwiteit lei tot hoër lone, maar die teendeel is onwaar; • Vakbonde se mag verhoog reële lone, wat indirek lei tot 'n daling van die vraag na arbeid. Dit dui daarop dat die arbeidsmark 'n binnekring en buitestaanders het; en • Die relatiewe prys van arbeid is ook belangrik: 'n Afname van die koste van kapitaal veroorsaak 'n daling van die vraag na arbeid. Simulasies toon dat werkskepping bevorder kan word deur beleid wat loonmatiging en ekonomiese groei bevorder. Daar is ook 'n rol, alhoewel beperk, vir fiskale insentiewe, b.v. 'n loonsubsidie.
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Vanqa, Inga Bongo. "The effects of the labour skills shortage in the construction industry." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1021125.
Full textAbstract:
Purpose of this treatise: The aim of this research is to determine, if the skilled labour shortage has had any impact on how construction projects are executed. If there is an impact the study aims to determine the nature and extent of the problem. Design/methodology/approach: A review of related literature was conducted, mainly to ensure that existing research is not replicated, in order to generate new ideas. The quantitative research approach was applied for this research. The questionnaire was designed so that scores can be easily summed in order to obtain an overall measure of the attitudes and opinions of the respondents. Findings: The results revealed that the skilled labour shortage has a negative effect on how construction projects are executed. The results further revealed that the biggest concern amongst employers and management of construction companies was the negative impact the shortage of skilled labour has on the levels of workmanship. Research limitations: The sample (construction companies) is mostly situated in the Gauteng province of South Africa. Practical implications: The research is of importance to managers and supervisors of construction companies of all sizes. The findings of this study will assist in ensuring that projects are efficiently managed irrespective of the current skills crisis in the construction industry.
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Loliwe, Fezeka Sister. "Workplace discipline in the public education sector." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1020091.
Full textAbstract:
Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.
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Oodit, Sharlaine. "A review of the collective bargaining system in the public service with specific reference to the general public service sector bargaining council (GPSSBC)." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1021029.
Full textAbstract:
ollective bargaining continues to play a prominent role in shaping employment relations in South Africa, without which the individual worker is powerless and in a weaker bargaining position against his employer. Collective bargaining can be described as an interactive process that resolves disputes between the employer and employee. In South Africa the advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. Therefore in examining the history of collective bargaining in South Africa it is necessary to reflect on the state of labour relations prior and post the 1994 democratic elections. The study provides an overview of the practices and processes of public service collective bargaining in the old and new public service. The public sector accounts for a very significant proportion of employment in all countries around the globe, South Africa is no exception. Although the state as employer is in a stronger position than its private sector counterpart, the public employee is potentially also in a stronger position than its private sector counterpart. A defining characteristic of most government activity and services is that they are the ones available to the public. This means that industrial action which disrupts such services has a very significant impact on the public, serving as a substantial leverage in collective bargaining. The bargaining councils in the public sector which ensure the effectiveness of collective bargaining are maintained, are examined to provide a comprehensive understanding of the workings of these institutions. Some of the gains and challenges are also explored to provide a holistic picture of state of collective bargaining in public service. A comparison of countries seeks to analyse and compare globally the developments of collective bargaining in public administrations. The different political systems around the world have developed various labour relations processes in the public service, an examination of the approaches and mechanisms provides alternative ways of doing things. Recommendations are made regarding the changes that need to be made, as well as matters, which need to be analysed and examined further.
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King, Alison Jill. "Deference and disdain : domestic service in post-apartheid South Africa." Thesis, University of Warwick, 2001. http://wrap.warwick.ac.uk/71253/.
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The purpose of the research was to discover if the dismantling of apartheid had ameliorated the poor pay and conditions of domestic servants in the Eastern Cape, South Africa. I situated these workers in the wider societal context in order to examine their 'quality of life' in addition to their 'quality of work'. Universal features of domestic service have been the depersonalising of the worker and the denial of their adulthood to that of a child. Enriching the data with consideration of some of the life details of the domestic servants interviewed challenges these lingering social practices. I favoured an interpretive methodology in order to give my interviewees the opportunity to 'speak for themselves' and facilitate the exploration of the hidden meanings within the domestic service relationship. Having argued through the thesis that domestic servants are often social constructed, caricatured and 'trapped' into being the 'other', their words are a reaffirmation of their adult status. Hegel's Lordship/bondage paradigm was the starting point of the theoretical analysis, from which I developed my own 'chains of otherness' conception. I sacrificed representativeness in my sample in order to focus on contextualising my theoretical arguments in nine diverse case studies. The outcome was that my research question narrowed to considering improvements in the lives of my nine domestic workers interviewed. However, I have also incorporated quantitative data within the thesis to add depth to my investigation. Grahamstown was the deliberate choice for the research site, as this was also the site of Cock's (1989/79) much-cited Maids and Madams. To return to an original area of investigation was imperative, as within the remit of the research question being asked was a comparison of domestic service during and after apartheid. The distortions of regionalism were minimalised and validated my use of Cock's results as a starting point for my own findings. Mandela's book title Long Walk to Freedom is an apt description of what I discovered. Improvements are beginning to be made but there is still much more to be achieved. Domestic service's inclusion in the ambit of labour legislation and improved conditions of work are positive shifts, but wages are still extremely low and social practices still have racial orientations. In addition to the application of my theoretical arguments, I moved beyond answering the original research question to consider the effects of poverty in the lives of domestic workers and formulated strategies of empowerment. As the thesis has favoured a qualitative approach I not only considered the material factors that are necessary to empower, but also the interrelations between one another that can recognise and promote human dignity.
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Slater, Henry John. "The distinction between a contract of employment and a contract with an independent contractor." Thesis, University of Port Elizabeth, 2001. http://hdl.handle.net/10948/276.
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The purpose of this treatise was to determine the distinction between the contract of service (employment) and the contract of work (independent contractor). A comprehensive literary survey was undertaken so as to establish if such a distinction does indeed exist. A logical point of departure was to study the contract of service and determine how the employment relationship is established by it. It is also necessary to establish under what circumstances a contract may be terminated and what the rights and obligations of the parties to the contract were. The contract between the parties will determine remedies to the breach of contract or applicability of labour legislation. It is also necessary to establish the definition of an employee under various statutes so as to understand what remedies exist should rights be infringed upon. Statutes considered include the Constitution of the Republic of South Africa, Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act, Unemployment Insurance Act, Compensation for Occupational Injuries and Diseases Act, Skills Development Act and the Income Tax Act. The effect of insolvency of the employer on the employee is also discussed. Outsourcing has played a major role in the emergence of the independent contractor. This phenomenon is considered from the point of the employer in terms of the reasons for choosing the option of outsourcing and the associated risks. The employee perspective is also dealt with in terms of why an employee would change his/her employment status. The various tests historically applied to determine the status of a worker is also discussed. These include the control, organisation, dominant impression and economic tests. Currently the dominant impression test is the one that is being applied to determine the employment relationship. Extensive reference was made to case law. United States of America cases are referred to with specific reference to the 20 Factor Test applied by the Internal Revenue Service. South African case law is dealt wit in terms of enforcement of Bargaining Council agreements, commission-earning persons, payment for services rendered, the intention of the parties and the identity of the true employer. The emergence of the dependent contractor is also addressed. This form of worker normally falls outside of the protection of labour legislation and social security. Amendments have been proposed to various statutes to remedy the situation in South Africa. A final aspect that is dealt with is that of vicarious liability. The applicability of this aspect lies in the liability of the employer for damages inflicted by the employee.
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Von, Fintel Dieter. "Spatial heterogeneity, generational change and childhood socioeconomic status : microeconometric solutions to South African labour market questions." Thesis, Stellenbosch : Stellenbosch University, 2014. http://hdl.handle.net/10019.1/96023.
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Thesis (PhD)--Stellenbosch University, 2014.ENGLISH ABSTRACT: Microeconometric techniques have improved understanding of South Africa’s labour market substantially in the last two decades. This dissertation adds to this evidence by considering three separate labour market questions, with particular attention to data quality and the application of credible methodology. Firstly, wage flexibility is investigated. Whereas selected previous microeconometric evidence suggests that wage setters in South Africa are highly responsive to external local labour market circumstances, it is not corroborated by macroeconomic and other microeconometric studies. This question is interrogated again, with particular attention to methodological issues in wage curve estimation. The latter is a robust negative relationship between individual wages and local unemployment rates, found in most countries, except where bargaining is highly centralized. Adding time variation to the data allows controls for spatial heterogeneity to be introduced, leading to the conclusion that wages are really inflexible in the short-run. Rather, the trade-off between wages and local unemployment that previous work has found represents a long-run spatial equilibrium. This finding is robust to instrumentation for reverse causality and the measurement error that is associated with choosing incorrect labour market demarcations. Secondly, the reliability of retrospective data related to childhood is investigated, with the view of estimating the long-run influence that early life circumstances have on adult outcomes. Two indicators, parental education and subjective rankings of childhood socioeconomic status, are evaluated. The first set of indicators has poor response rates, as many South African children live without their parents. Where respondents do volunteer this information, they answer consistently across waves. Subjective rankings have higher response rates, as they require respondents to provide information about their own past, and not about those of their parents. However, individuals’ assessments are inconsistent over time, despite being asked about the same point in the life cycle. They tend to change their view of the past in line with adjustments to perceptions of their position in the village income distribution and subjective well-being, providing clear evidence of anchoring. Instrumental variables analysis has been used in previous studies to account for measurement error in subjective data. However, if anchoring affects all assessments of the past and potential outcome variables (such as employment), microeconometric techniques will yield biased estimates of the effects of childhood on long-run outcomes. Finally, age-period-cohort models for South African labour force participation are estimated. This chapter is the first contribution to relax the assumption that cohort differences must remain permanent over the life cycle. Monte-Carlo simulation studies show that highly interactive specifications can partially recover the true underlying process. Using a variety of techniques (imposing behavioural restrictions and atheoretical approaches), this study shows that cohort effects in labour force participation can be temporary in South Africa, though more data is required to verify this conclusively. Regardless of technique, a distinct surge in labour force participation is noted for the group born after 1975. Pertinently, the combination of testable assumptions and highly flexible estimation can yield credible age-period-cohort profiles, despite the many disputes noted in the literature. Previous evidence of a surge in participation for the post-1975 cohort can now be shown to be temporary rather than a part of a long-run generational increase.
AFRIKAANSE OPSOMMING: Mikro-ekonometriese tegnieke het kennis oor die Suid-Afrikaanse arbeidsmark aansienlik uitgebrei in die afgelope twee dekades. Hierdie proefskrif dra by tot hierdie bewyse deur drie afsonderlike arbeidsmark vraagstukke te beskou, met die klem op datagehalte en toepassing van geloofwaardige metodologie. Eerstens word die kwessie van loonaanpasbaarheid beskou. Waar sekere vorige mikro-ekonometriese bewyse aandui dat loonbepalers in Suid-Afrika sterk op eksterne plaaslike arbeidsmarktoestande reageer, word hierdie bevinding nie deur makro-ekonomiese en ander mikro-ekonometriese studies ondersteun nie. Hierdie vraag word dus opnuut ondersoek, met die klem op metodologiese kwessies wat ‘n invloed op die beraming van die loonkurwe het. Laasgenoemde is die negatiewe verhouding tussen individuele lone en plaaslike werkloosheidskoerse wat in die meeste lande geld, behalwe daar waar loonbedinging sterk gesentraliseer is. Deur tydsvariasie by die data te voeg, is dit moontlik om vir heterogeniteit oor ruimte voorsiening te maak, wat tot die gevolgtrekking lei dat lone inderdaad onbuigsaam oor die korttermyn is. Die afruiling tussen lone en plaaslike werkloosheidskoerse wat vorige navorsing bevind het, verteenwoordig eerder ‘n langtermyn ruimtelike ewewig. Hierdie bevinding is nie sensitief vir instrumentasie nie. Laasgenoemde is nodig om voorsiening te maak vir moontlike sydigheid wat kan ontstaan indien die rigting van kousaliteit omgekeerd is, sowel as metingsfoute wat daarmee gepaard gaan as navorsers die plaaslike arbeidsmark verkeerd definiëer. Tweedens word die betroubaarheid van data wat volwassenes vra om hulle kinderomstandighede te onthou, ondersoek. Die uiteindelike doel is om vas te stel of omstandighede vroeg in die lewe ‘n invloed op die uitkomstes van volwassenes het. Twee veranderlikes, naamlik ouers se opvoedingsvlakke en die subjektiewe terugskouende sosioekonomiese rang in respondente se kinderdae, word geëvalueer. Die eerste stel veranderlikes is onderhewig aan lae reaksiekoerse omdat ‘n aansienlike hoeveelheid Suid-Afrikaanse kinders sonder een of beide ouers grootword. Waar respondente wel hierdie inligting verskaf is individue se antwoorde konsekwent tussen twee golwe van ‘n paneelopname. Die vraag na die subjektiewe rang lewer beter reaksiekoerse omdat dit vereis dat respondente inligting oor hulle eie verlede verskaf, en nie oor dié van hul ouers nie. Nietemin is individue se antwoorde strydig oor tyd, ten spyte daarvan dat hulle inligting oor dieselfde tydstip in die lewenssiklus moet verskaf. Hulle is geneig om hulle opinies oor die verlede in lyn met veranderende persepsies van hul huidige posisie in die dorpsinkomsteverdeling, sowel as hulle eie subjektiewe welstand, aan te pas. Dit verskaf dus ‘n sterk aanduiding dat mense hulle antwoorde oor die verlede in huidige toestande anker. Instrumentele veranderlike analise is in vorige studies aangewend om voorsiening te maak vir metingsfoute in subjektiewe data. Indien inligting oor die verlede, asook moontlik uitkomsteveranderlikes (soos indiensname), geanker word in huidige persepsies, sal mikroekonometriese tegnieke egter steeds sydige beramings van die impak van kinderdae op langtermyn uitkomstes bied. Laastens, word sogenaamde ouderdom-periode-kohort modelle op Suid-Afrikaanse arbeidsmarkdeelname data toegepas. Hierdie hoofstuk is die eerste bydrae wat die aanname dat kohortverskille permanent moet bly oor die lewenssiklus laat vaar. Monte-Carlo simulasies dui aan dat hoogs interaktiewe spesifikasies die onderliggende proses gedeeltelik kan weerspieël. Verskeie tegnieke word aangewend (insluitend dié wat gedragsaannames afdwing asook ateoretiese benaderings) wat wys dat kohorteffekte in arbeidsmarkdeelname tydelik kan wees. Tog word meer data benodig om hierdie stelling sonder twyfel te bevestig. Onafhanklik van die tegniek wat gebruik word, is dit duidelik dat ‘n skerp toename in arbeidsmarkdeelname plaasgevind het vir die groep wat na 1975 gebore is. Verder is dit beduidend dat die kombinasie van toetsbare aannames en hoogs buigsame beramers ‘n geloofwaardige oplossing vir die ouderdoms-periode-kohort probleem verskaf, ten spyte van die vele twispunte wat in die literatuur uitgelig word. Vorige bewyse van ‘n toename in arbeidsmagdeelname vir die post-1975 kohort kan nou as ‘n tydelike tendens bestempel word, eerder as ‘n deel van die langtermyn toename oor generasies.
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Anugwo, Iruka Chijindu. "Evaluating the training and supply of artisans in the South African construction industry." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1020042.
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The study focused on identifying ways in which to improve and increase the quality of training and supply of skilled artisans in the South African construction industry (especially in Gauteng Province) in terms of short and medium term approach. The construction industry is facing a severe skills crisis and this has made it so difficult to recruit competent artisans. This may be as a result of artisans being regarded as the lowest in the hierarchy of construction worker positions. In addition, these artisans warrant less training than those at executive- and managerial levels. This negative attitude towards artisans training has plunged the industry into crisis. Those involved find it difficult to successfully complete projects on time, within budgeted project costs and within the required quality specification due to lack of competent artisans. However, serious attention is required towards enhancing artisan training in the industry. It is imperative and vital to ensure the survival of the industry. The cardinal aim of this research project was to demonstrate a guiding solution towards the skills crisis. Thus, in order to initiate a tremendous change in the skills profile, certain measures are required, e.g. expanding training institutions to local regions; upgrading and aligning facilities in the training institutions to industrial demands and the dissemination of vital information that will ensure the attractiveness of the industry. This will safeguard the construction organisations operating in Gauteng Province. Although the industry is a major player in the economy, there is need for special attention in order to ensure sustainable growth and economic development. The Government, construction industry stakeholders and training institutions personnel should collaborate to salvage the skills crisis by strategically developing programmes (in accordance with industrial requirements) that will benefit prospective learners. The researcher adopted the descriptive- and analytical survey method, which entailed the use of questionnaires and a review of the related literature for gathering relevant data. The methodology used in the research was the quantitative data analysis. The feature findings of the research concluded that the skilled artisans profile is insufficient to meet industry demands. In addition, training institutions and primary- and secondary educational systems are characterized by ninadequacy and incompetency to produce skilled artisans. The situation is exacerbated by the lack of harmonization between the training institutions and the vindustry’s requirements. Furthermore, the majority of the respondents acknowledged that training of their workers is an important aspect to them, but few of these organisations indicated that they make use of formal training institutions such as FET colleges. The recommendation include that all the stakeholders in the construction industry should form collaborations to strategically develop programmes that would upgrade the existing training institutions. This could be done through provision of adequate funds and resources and the dissemination of vital information that is capable to promote the attractiveness of the industry image.
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Maclons, Whitney. "Mandatory court based mediation as an alternative dispute resolution process in the South African civil justice system." University of the Western Cape, 2014. http://hdl.handle.net/11394/4407.
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Magister Legum - LLMCivil litigation is the primary method of dispute resolution in the South African civil justice system. This process is characterised by a number of shortcomings which include the adversarial nature of the process which often creates further conflict between disputing parties and often results in permanently destroyed relationships between them. Further shortcomings include the highly complex, costly and time-consuming nature of civil litigation. These shortcomings infringe on the constitutional imperative of access to justice for South Africans, particularly for the indigent members of society. In addition, court rolls have become overburdened due to the rapidly increasing volume of litigation at court. This often results in extensive waiting periods before matters are heard at court and further infringes the attainment of access to justice. While progress has been made in enhancing the civil justice system over the years, the aforementioned shortcomings prevail. In recent years the South African government has introduced the concept of mandatory court based mediation to the civil justice system with the view of promoting access to justice and enhancing the civil justice system. In a nutshell, mandatory court based mediation refers a civil dispute to mediation once an appearance to defend is entered at court, in order to attempt the settlement of the matter. In the event of the dispute not being resolved, the matter is then referred back to the conventional litigation process for resolution. Mandatory court based mediation, while controversial and bearing valid criticism; aims to promote access to justice and reconciliation between aggrieved parties and remedies a number of the shortcomings currently plaguing the South African civil justice system. In answering the research question of whether this ADR process is suitable to implement in South Africa in order to remedy the shortcomings of its civil justice system, the following aspects are considered in this thesis: the benefits, advantages, and the constitutionality of mandatory court based mediation, as well as the criticisms and challenges of the process. South Africa may have an adversarial civil justice system, but is no stranger to the practice of mediation. Within South African civil law a number of fields have mentioned mediation as the preferred method of dispute resolution over years. These areas of law will be highlighted in this thesis. Internationally, the jurisdiction of the Australian states of New South Wales and Victoria will also be highlighted. This analysis is done in order to assess the implementation and function of a mediation system, as a preferred method of dispute resolution, across all areas of civil law within an adversarial civil justice system. The current civil justice system in South Africa needs to be remedied due to its negative impact on civil disputants and the nation of South Africa in a broader sense. This thesis does not suggest that mandatory court based mediation is a panacea for all ills plaguing the country’s civil justice system. However, this ADR process may suit South Africa and its implementation may make a considerable remedial contribution and possibly significantly enhance its civil justice system.
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Nkgapele, Mmakgwana Freddy. "Dismissal for operational requerments : comparison between South Africa and English Labor Law." Thesis, University of Limpopo, 2010. http://hdl.handle.net/10386/3023.
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Moela, Matlose Phineas. "Exploring the unfair labour practice relating to promotion in the education sector." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/12209.
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This research paper explores the means at the disposal of employers and employees to address the phenomenon of unfair labour practice relating to promotion in the workplace. Furthermore the paper endeavours to illustrate that there are aspects of South African law that provide a framework within which unfair labour practices can be addressed in the workplace. As I explore these fundamental issues of the law, the fairness relating to recruitment and selection practices will be examined. Some recommendations are also made as to how departments and organisations must address promotion issues at the workplace. There are often perceptions of alleged unfairness committed by employers in the workplace. These perceptions emanate from a number of allegations. The allegations include but are not limited to past practices, policy considerations, acting in higher positions, prior promises, being better qualified, receiving higher marks in the interviews, irregular conduct by the interviewing panel, unfair decisions by appointing authority or their failure to apply their minds, affirmative action or equity considerations. The study seeks to explore some of these allegations and further provide certainty as to what the legal recourse is under those circumstances. The research further seeks to provide the legal certainty pertaining to issues of promotion in the workplace. The study commences on a general approach to the principles of law relating to unfair labour practice in the public sector. Further developments of the law relating to promotion as it applies to the education sector are explored. The study culminates with possible remedies available to instances where an unfair conduct has been found to be committed by the employer during the promotion process. There is sufficient case law which covers the promotion processes. The study also exposes forms of relief which can be awarded to applicants who had lodged disputes in which it is found that indeed the employer had committed unfair labour practice relating to promotion. The study further aims to explore both procedural and substantive fairness with regard to appointment and promotion processes. Issues which are dealt with concerning fairness in promotion disputes include polygraph tests, whether there are hard and fast rules to the process, whether employees have the general right to promotion, what the requirements for fair appointment or promotion are, the law on substantive fairness, affirmative action and promotion, the consequences of failure to appoint the most suitable candidate, dealing with candidates who obtained higher scores in the interviews, promoting a candidate who had not met minimum requirements and promoting candidates based on flawed scores. The research also deals with frivolous referrals of disputes and costs which can be awarded against such applicants. Further issues which are dealt with in this research include the concept of “joinder” which is critical where there is an incumbent in the post which is disputed and the relief sought is that such post must be set aside. Further clarity is given on who is supposed to be joined in a dispute which is referred in the education sector. The CCMA rules on joinder are also clarified. The consequences of failure to join the incumbent are also dealt with. The research is also clarifying the concept of prematurity or ripeness in promotion disputes and its consequent lack of jurisdiction if such is referred.