Browsing by Author "Malherbe, Kitty"

Now showing 1 - 11 of 11
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    Addressing the social protection deficits for waste reclaimers in South Africa
    (University of the Western Cape, 2023) Dotwana, Zintle; Malherbe, Kitty
    Globally, social protection is an important aspect of creating a well-functioning labour market that promotes decent working conditions and alleviates poverty.1 Social protection is crucial in both living and working conditions; it protects individuals and families against socio-economic risks.2 Social security is an important component of social protection that encompasses a single scheme or a number of different schemes that are regulated at the national level to provide income benefits for various social risks and contingencies.3 In South Africa, social security rights flow directly from the Constitution. The South African Constitution states that everyone has the right to have access to social security, including appropriate social assistance should they be unable to support themselves and their dependants.4
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    Alleviating poverty through retirement reforms
    (Pretoria University Law Press (PULP), 2020) Malherbe, Kitty
    Older persons in South Africa may be described as a sizeable but vulnerable group requiring specific protection. One of the ways in which the country can provide for the socio-economic needs of its older population is through social security benefits. This chapter provides an overview of the current deficits in the provision of social security to older persons. The aims of this chapter are to explain why reforms of the current retirement income system are necessary and to illustrate how retirement reforms may be utilised to address poverty not only of older persons, but other members of their households as well. The argument is made that this goal can only be achieved if retirement reforms form part of comprehensive social security reforms that are based on the realisation of the right of access to social security
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    Assessing the protection of older persons’ access to social services in South Africa during the Covid-19 pandemic
    (Nelson R Mandela School of Law, 2021) Malherbe, Kitty
    One of the main justifications for the severe restrictions imposed on South Africans in the context of the COVID-19 pandemic is the need for the protection of older persons. Unfortunately, the dire scientific warnings identifying older persons as a vulnerable group confronting higher risk from COVID-19 have not translated into the prioritising by the government of social care programmes and services to older persons. The drastic changes in operations at residential facilities for older persons in order to contain the pandemic have caused many residents of the facilities hardship and have affected the standards of care to residents as prescribed in terms of the Older Persons Act 13 of 2006 (“the OPA”). In addition, there have been instances of non-payment of subsidies by one of the provincial Social Development departments to welfare organisations for providing community-based care to older persons. This article seeks to determine whether the government’s application of lockdown regulations and/or the agreements with service providers in the context of the lockdown infringed older persons’ right to access social services and care in terms of section 27 of the South African Constitution. If so, were the limitations of older persons’ rights reasonable and justifiable in terms of section 36 of the Constitution? The article argues that the rights-based approach of the OPA should form the basis for any interventions aimed at protecting older persons, even during pandemics or other disasters. It also suggests measures to ensure that older persons’ social care related rights are taken into account in any future disaster management plans.
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    Collective bargaining in the digital platform economy
    (University of the Western Cape, 2022) Fredericks, Davronae Robyn; Malherbe, Kitty
    Collective bargaining is a process in which collective negotiation takes place between an employer and groups of employees who are represented by trade unions with conflicting interests seeking to reach an agreement.1 Collective bargaining is ‘collective’ in the sense that it cannot take place on an individual basis between an employer and an individual employee but rather between an employer and groups of employees that are represented by trade unions or trade union federations.2 The collective nature of collective bargaining is only necessary on the side of employees and a single employer can be a party to the bargaining process.3
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    Compliance with international standards on compensation for occupational injuries and diseases by Zimbabwe and South Africa
    (University of the Western Cape, 2015) Zvidzayi, Tapiwanashe; Malherbe, Kitty
    This mini thesis provides a comparative study on two Member States of the ILO. These are, namely: South Africa and Zimbabwe. The purpose of this research is to find out whether Zimbabwe and South Africa are complying with the standards set by the ILO regarding the issue of compensation for occupational injuries and diseases. The terms workers compensation and employment injury benefits are frequently used interchangeably.¹³ Workers compensation is the older term, generally used originally to refer to schemes which provide benefits in the case of death and incapacity due to accidents at work and, later, due to prescribed occupational diseases as well. These benefits could be temporary or permanent, total or partial. In these ILO instruments, the term employment injury is used to cover both accidents at work and occupational diseases.¹⁴ This mini-thesis determines whether South Africa and Zimbabwe are complying with or failing to meet the standards set by the ILO. The research further provides recommendations regarding the shortfalls that South Africa and Zimbabwe are facing so that they will get in line with the standards of ILO, because this is essential to the lives of millions of workers working in these two countries.
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    Irregular appointments relating to promotion posts in South African public schools
    (University of the Western Cape, 2022) Mopp, Michelle; Malherbe, Kitty
    This research aims to illustrate that the education sector has not managed to circumvent unfair labour practices, specifically in its appointment processes relating to promotion posts. I use literature and case law to prove that irregular appointments are due to maladministration/malpractice by malfeasant officials, school governing bodies and trade unions. This thesis presents a detailed overview of the existing legislative framework governing the employer-employee relationship and includes a study of international law and constitutional rights pertaining to the principles of equality and justice, focusing on section 18 (freedom of association) and section 23 (labour relations) of the Constitution.
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    Labour rights and working conditions in corporate codes of conduct: an assessment of the legal dimension, in different national contexts, of selected multinational corporations’ corporate social responsibility commitments
    (University of the Western Cape, 2015) Tiemeni, Thierry Galani; Du Toit, Darcy; Malherbe, Kitty
    At the heart of this thesis is the notion of Corporate Social Responsibility (CSR), an innovative concept deep-rooted in the globalisation phenomenon. The notion of CSR entails the much-debated duty of businesses, not only to comply with international and local standards in terms of, inter alia, labour rights and working conditions, human rights and environmental protection, but also to be at the forefront of voluntary and uplifting actions geared toward addressing societal issues and concerns. For corporations, it is about moving from the traditional approach of business as an activity with the sole purpose of realising profit towards acknowledging the need to integrate societal and environmental issues and concerns into their business purposes. The thesis examines selected multinational corporations’ (MNC) approaches to CSR as contained in their codes of conduct, in an effort to reach a comprehensive understanding of the purpose, interest and practices of businesses engaging in CSR activities. Particular attention is given to the analysis of labour orientated measures implemented by selected MNCs as they undertake to voluntarily act as proponents of the theory of the necessity of socially responsible businesses. The aim is to comparatively assess the legal dimension and the relevance, in different countries, of these MNC CSR commitments. The first part of the thesis is theoretical and has the purpose to present a comprehensive analysis of CSR against the current legal framework, at a global scale and within the context of selected countries. The thesis will explore the notion of CSR in order to present its definition and characteristics, briefly retrace its history, differentiate it from related and/or similar concepts, and finally assess the extent of its introduction and adaptation into various national and international institutional frameworks. Even though initially addressing the issue of CSR in the current legal framework as a whole, the scope of the thesis will ultimately be reduced to focus only on labour-related aspects of CSR. The aim of the thesis is to assess MNC’s CSR commitments, and subsequently highlight the interaction between CSR, labour and employment legal frameworks (at national and international level) and the effective implementation of labour rights and working conditions as observed in the context of different countries. More importantly, the thesis will also include a comparative analysis of CSR principles included in selected MNC codes of conduct, in order to assess the extent of their compliance with national labour legislation, international labour standards, as well as the standards and principles set by national and international CSR instruments and institutions. The purpose of such an exercise is to thoroughly assess the impact of a national context - in terms of national legal, economic, social and industrial framework - on the legal dimension, and the relevance of MNCs CSR commitments. A crucial argument developed in the thesis refers to the fact that MNC codes of conduct may have the potential to impact on labour rights and working conditions of a MNC across the different countries into which the MNC operates. Finally, considering the fact that as a topic CSR is a potentially controversial subject, it is necessary to point out, from the onset, that the thesis engages with the subject from a critical perspective. The approach therefore entails critically analysing and discussing MNC commitments and practices as observed in different countries, so as to be able to ascertain and comprehend the impact of a national context on the content, the relevance and the legal dimension of MNC codes of conducts.
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    Legislation and policies for the right to maternity protection in South Africa: A fragmented state of affairs
    (SAGE Publications, 2022) Pereira-Kotze, Catherine; Malherbe, Kitty; Faber, Mieke
    Maternity protection rights incorporate comprehensive benefits that should be available to pregnant or breastfeeding working women.To describe South Africa’s maternity protection legal and policy landscape and compare it to global recommendations.A prospective cross-sectional comparative policy analysis was used to review and describe national policy documents published from 1994–2021. Entitlements were mapped and compared to International Labour Organization standards. The document analysis was supplemented by interviews conducted with key national government department informants. Thematic analysis was used to evaluate policy and interview content.
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    A reasonable expectation of indefinite employment upon the expiry of a fixed-term employment contract
    (University of the Western Cape, 2023) Williams, Nathan Peter; Malherbe, Kitty
    Section 186(1)(b)(ii) of the Labour Relations Act 66 of 1995 (LRA), as amended, came into effect on 1 January 2015. This section provides the special right, of an employee, to claim dismissal based on a reasonable expectation for indefinite employment upon the expiry of a fixed term contract of employment. The LRA, as amended, does not define a reasonable expectation for indefinite employment, nor does it provide factors to consider for an assessment or determination of what constitutes a dismissal based on a reasonable expectation for indefinite employment. This research paper provides an overview of the historical evolution of fixed term contracts in South Africa. It provides an understanding of the concept of a reasonable expectation and recommends a list of ten factors to be utilised in the assessment and determination of a dismissal based on a reasonable expectation of indefinite employment upon the expiry of a fixed term contract. In conclusion, it is recommended that the ten factors be codified in a Code of Good Practice in terms of the LRA.
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    A revised role of good faith in the law of contract and employment contracts
    (University of the Western Cape, 2019) Mgweba, Asiphe; Mupangavanhu, Brighton; Malherbe, Kitty
    Good faith is an open ended concept which refers to fair and honest dealings. The function of this concept is to give expression to the community’s sense of what is fair, just and reasonable. The concept of good faith has and continues to acquire a meaning wider than mere honesty or the absence of subjective bad faith. It is an objective concept that includes other abstract values such as justice, reasonableness, fairness and equity. There is competition between the two underlying values or cornerstones of the law of contract, namely that of sanctity of contract (pacta sunt servanda) and fairness. Y Mupangavanhu holds that ‘it is becoming axiomatic that sanctity of contract and fairness are competing values that need to be balanced by courts’. Differently put, Hutchison holds that: ‘The tension between these competing goals of contract law is quite evident…every time a court enforces an unreasonably harsh contractual provision, a price is paid in terms of the ordinary person’s sense of what justice requires; conversely every time a court allows a party to escape liability under what is thought to be a binding contract, a price is paid in terms of legal and commercial certainty’. Courts are often called upon to assess the abovementioned tension. South African courts have, however, shown reluctance in balancing the competing principles and have instead been opting to uphold the principle of sanctity of contract in the spirit of preserving certainty in the law of contract. Public policy, ubuntu and good faith are all mechanisms that are aimed at achieving fairness in contract law. The apparent preference of the courts to uphold the sanctity of contract above all else, falls short of achieving fairness and reasonableness. Public policy functions as an alternative doctrine of equity, fairness and good faith in contract law. As such, the idea is that a contract that is contrary to public policy is illegal and should not be enforced. Although there is no clear definition of public policy, B Mupangavanhu opines that the ‘doctrine of public policy, while difficult to comprehensively define, can be understood to refer to courts consideration of what is in the interest of society or community when interpreting contracts’. In other words, it represents the legal convictions of the community or the general sense of justice of the community and the values that are held most dear by the society.