Department of Mercantile and Labour Law

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https://hdl.handle.net/10566/1646

The Department of Mercantile and Labour Law introduces students to the world of commercial and business law. The Department’s focus is on developing student and staffs’ critical thinking skills and supplying them with practical, transferable capabilities to positively contribute to the legal profession or corporate field.

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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) Von der Wense, Olrik; Murphy, J. R.
In 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.
Trade and development in the WTO: special and differential treatment for developing countries in the WTO
(University of the Western Cape, 2000) Bolton, P.S; Wandrag, M
The integration of developing countries into the multilateral trade system has greatly evolved over the last fifty years, as has the thinking about the nature of trade policies appropriate for development. The purpose of this paper is to trace the evolution of developing countries' participation in the multilateral trade system, and to link this evolution to the changing consensus on the international trade policies that may be conducive to development.
Remedies for unfair dismissal under the Labour Relations Act 66 of 1995
(University of the Western Cape, 2001) Abrahams, Joycell Ormonde; Du Toit, Darcy
The Labour Relations Act 66 of 1995 (the Act) is primarily aimed at the advancement of economic development, social justice, labour peace and the democratisation of the workplace. This is principally done through collective bargaining to give effect to the fundamental right of everyone to fair labour practices. The approaches of both the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court in their interpretation of the remedies for unfair dismissal under sections 193 and 194 of the Act, will by analysed to establish the nature and extent of these remedies. A comparative analysis of the 1956 Labour Relations Act with sections 158 and 138 (9) of the Act will be undertaken to ascertain the powers of the Labour Court or an arbitrator to order or award re-instatement or re-employment, and the conditions under which such orders or awards should be given or refused.
Senior Managerial Employees: Their Right to Bargain Collectively and their Right not to be Unfairly Dismissed
(University of the Western Cape, 2001) Ambrose, Melanie
This paper addresses a special class of employees in the South African labour law. Senior managerial employees in South African labour law as well as the international jurisprudence have become a matter of controversy. The focal area of this controversy is concerned with their membership in trade unions and to have their wages and working conditions negotiated by these trade unions. The conflicting interests between the employer and the union are then brought to surface. Drawing from the content of current case law, legislation and international jurisprudence, this paper defines senior managerial employees and discusses some of the concerns and issues of their positions within the collective bargaining unit. In this regard, this paper concludes with a standing view point which was deducted from an analytic analysis based on a case study on the positions of Directors and Deputy-Directors of Prosecutions in South Africa. Senior managerial employees are not only treated differently in collective bargaining, but also in the area of dismissal law. Their rights on this aspect are also looked at. This paper concludes with some final remarks.
The changing face of collective bargaining
(University of the Western Cape, 2001) Williams, Sandra E.; Du Toit, D
The International Labour Office submitted that Collective bargaining is an evolving social institution, subject to continuing process of change and growth. As practiced today in many countries, it is far different from the process of negotiation which trade unions sought to carry on with employers until late in the nineteenth century. At that time, it was necessary for trade unions to threaten with a strike or actually to declare a dispute before employers would negotiate with them over their demands". This quotation is general but it encapsulates the very essence of South African labour relations and is the reason for this thesis - the evolution of collective bargaining. The current Labour Relations Act 66 of 1995 has a lengthy history with regard to industrial legislation and several milestones document the developments and changing attitudes that have taken place towards the collective bargaining process in south Africa.2
The challenges posed by mandatory minimum sentence legislation and recommendations for improved implementation
(University of the Western Cape, 2003) Saptoe, Alvin; Fredericks, I.
Towards the end of 1997 Parliament unanimously enacted legislation that prescribe severe mandatory sentences for a large number of serious offences. Sections 51, 52 and 53 of the Criminal Law Amendment Act1 (hereinafter referred to as the Act) came into effect. Sections 51 and 52 of the Act were to have effect for two years from the date, save that the operation could be extended for one year at a time by Proclamation of the President with the concurrence of Parliament (sections 53(1) and 53(2)). The operation of the sections has in fact been extended for one year.2 The legislation came in the wake of an outcry from the community for severe punitive and exemplary sentences to be imposed by our courts. Public dissatisfaction with the crime situation in the country and the lenient sentences imposed was reflected in various television and newspaper reports. The public outcry, coupled with the problems experienced in the sentencing process, compelled the lawmakers to take action. This unhealthy state of affairs prompted the Minister of Justice in 1996 to appoint a new project for the South African Law Commission's (SALC)3 investigation of all aspects of sentencing. The use of mandatory minimum sentences for certain serious crimes is one of the options being considered to address crime in this country. The main objectives of the minimum sentence legislation were to deter criminal activity, avoid disparities in sentencing and to deal harshly with perpetrators of serious offences. Since the promulgation of the Act, the meaning and implications of section 51 have been adjudicated upon in a variety of cases in different High Courts. These cases have been r alia, with the interpretation of Schedule 2 and the references to the circumstances under which certain offences attract a sentence of life imprisonment and the meaning of 'substantial and compelling circumstances'. The minimum sentence provision has been opposed and supported by two divergent views. This paper will analyse the provisions in the Criminal Law Amendment Act relating to the imposition of minimum sentences for certain serious offences. It will also, based on case law, establish the extent to which the Legislator allows a sentencing court to depart from the prescribed minimum sentencing provisions; and discuss the applicability of the minimum sentence provisions to juvenile offenders. Finally, it will establish whether the minimum sentence provisions bind the district magistrates' courts and discuss the implications of the provisions relating to referral on the jurisdiction of the courts as contained in section 52. Recommendations for the improved implementation of the Act are also made.
The Right to Privacy and the Challenge of Modern Cell Phone Technology
(University of the Western Cape, 2004) Hamman, Abraham John; Steytler, N.C
Privacy has been defined as a state in which one is not observed or disturbed by others and has freedom from public attention. A person's right to privacy entails that such a person should have control over his or her personal information and should be able to conduct his or her personal affairs relatively free from unwanted intrusions. The right to privacy has been included in the Constitution of the Republic of South Africa, Act 108 of 1996. The inclusion of the right to privacy in the Bill of Rights as a Fundamental right illustrates how important this right is regarded. By utilizing the latest cell phone technology, non-communicative personal information such as the number that is dialed, the time the call is made, and the movement and location of both the caller and the recipient of a call can be obtained. This type of information is recorded and stored by cell phone companies without the knowledge and consent of users. Technology makes it possible that others can access this information. A number of international instruments such as; the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the UN Convention on Migrant Workers, and the UN Convention on the Protection of the Child contains privacy provisions. This instruments all state that no interference with the right to privacy should be allowed unless provision in domestic laws authorise such interference. Certain decisions of the European Court of Human Rights also confirm this principle and delivered a number of judgments, which dealt with individuals' right to pnvacy. In American cases such as Smith v Maryland 442 U.S. 735(1979) and United States v Miller 425 U.S. 435 (1976) information in possession of third parties do not receive protection if the information is voluntarily conveyed and forms part of commercial records. Canada on the other hand regards the nature of the information to be important to determine if it is personal and if the information reveals intimate details of a person. If it does the person will have reasonable expectation of privacy in the said information.
Transfer of business or part thereof in Germany and South Africa- a comparison of $ 613a of the German civil code (bgb) and section 197 of the labour relations act (lra)
(University of the Western Cape, 2005) Roscher, Maren; Du Toit, D
The title of this mini-thesis is "Transfer of Business or part thereof in South Africa and Germany- a Comparison of $ 613a of the German Civil Code (BGB)I and Section 197 of the Labour Relations Act (LRA) 2". One reason why comparing the transfer of business or part thereof in South Africa and Germany is such an important topic is, that economic relations between the two countries are very intensive. Germany is one of the most important trade partners of South Africa and many German companies are operating in South Africa3. The topic of transfer of business or part thereof in both countries is therefore a very important issue to a company's decision to operate a business in South Africa. Especially in the field of the transfer of business or part thereof, where a balance has to be found between many different interests, such as the managerial prerogative of the employer and the protection of the employee, it can be very useful to gain new insight. The transfer of an employing enterprise from the control of one legal person to another raises two basic issues for labour law. First, what is the impact of such a transfer upon the rights, individual and collective, of the workers as against their employer? The second issue is what role the employees are to play in the decision-making process which leads to the transfer of control. The main focus will be on two specific problems in the field of transfer of business or part thereof, namely outsourcing and the power to object to a transfer5. In my mini- thesis, I will examine the different ways in which transfers of businesses or parts thereof are regulated in both countries. There are many similarities as well as differences concerning the transfer of businesses or parts thereof in Germany and South Africa which I will identify. The paper will not only show differences and similarities, but will also analyse the reasons for these differences. The thesis will focus on transfer of businesses in solvent circumstances.
Discrimination to the employment context on the ground of religion: an examination of the position in South African and European union law
(University of the Western Cape, 2008) Ahmed, Naima; Lenaghan, Patricia
In this mini-thesis, I try to explore that the right to equality has brought with it the right not to discriminate against on various prohibited grounds, including religion. This minithesis examines the right not to be discriminated against on the ground of religion within the labour relationship context. The enquiry takes account of international instruments that impact upon the issue, but more particularly looks at the position in South Africa where the Constitution and the several Acts relating to labour law are of special importance] and undertakes a comparative enquiry of the relevant provisions in the EU' The analysis highlights the many problems arising out of the need to have definitions for the vital terms and concepts relevant to the discussion, in particular, meaning of 'religion', 'discrimination', and 'inherent requirements of the job.
The importance of an effective institutional framework for the realisation of regional economic integration objectives: A case study of the East African Community (EAC).
(University of the Western Cape, 2009) Ibrahimu, Ngabo M.P.; Wandrag, M. S.
The East African Commu1nity (EAC) was re-established on 30 November 1999 by the Republics of Kenya and Uganda and the United Republic of Tanzania1 signing the Treaty for the Establishment of the East African Community (the Treaty). The Treaty came into force on 7 July 2000.2 The Republics of Burundi and Rwanda acceded to the Treaty on 18 June 2007 and became full members of the EAC with effect from 1 July 2007.3 The EAC was formed with the major aim of widening and deepening co-operation among the Partner States in political, economic, social and cultural fields4 that would lead to equitable economic development in the region.
Public participation in constitution-making: A critical assessment of the Kenyan experience
(University of the Western Cape, 2009) Tom, Mulis; Fessha, Yonatan Tesfaye
Kenya has embarked on a constitutional making process that is hoped to ensure a transition to democracy. The current constitution making process is not the first of its kind in post independence Kenya.1 Since the Lancaster House Conference2 that gave Kenya its very first constitution after independence, constitution making processes have been fraught with controversies.3 The periods after independence saw the Kenyans glamour for constitutional change and reforms.4 A number of amendments have been effected to the Kenyan, constitution since independence. The clamor for constitutional review gradually grew leading to the repeal of section 2A of the Constitution in 1991 which restored multi-parties.s The pressure from civil society organizations in 1997 led to the enactment of the Constitution of Kenya Review Commission Act6 and this was considered as the formal beginning of the Constitutional Review Process in Kenya.7 The next major constitutional review process came in after the end of the term of President Daniel Arap Moi in 2002. A review process, commonly known as the
Towards democratic decision-making In environmental law: An investigation of the implementation of public Participation and access to administrative justice
(University of the Western Cape, 2010) Masesa, Raphael Chisubo; Fredericks, Izak
An environment, which is not dangerous to the health or well-being of individuals, is every South African's basic Human right.1 In addition.it is every South African's basic human right to have the environment protected for the · "benefit of present and future generations, through reasonable legislative and other measures".2 These measures must aim at preventing pollution and ecological degradation. The measures must further advance. conservation, and guarantee ecologically sustainable development and use of natural .· resources. 3 Stakeholders, such as, non-governmental, organizations (henceforth NGOs), and the community as a whole have important roles to play.4
An overview of recent changes to corporate governance frameworks as it pertains to executive remuneration
(University of Fort Hare, 2012) Koornhof, Pieter G.J.
Trade and environment: the environmental impacts of the agricultural sector in South Africa
(University of the Western Cape, 2012) Kengni, Bernard; Wandrag, Riekie
Foreign direct investment in Cameroon: establishing effective investment regulations
(University of the Western Cape, 2012) Mujih, Onorine Fombason; Wandrag, Riekie
Foreign Direct Investment (FDI) began as a worldwide phenomenon in the 19th and early 20th centuries. Even then, it formed only a small portion of foreign investments for decades, as a greater percentage took the form of portfolio investments. This was the case for example in 1914, when 90% of all foreign investment flows took the form of portfolio investment. Over time, however, there was a steady shift in the composition of foreign investments. In fact, about a quarter of foreign investment flows took the form of FDI in the 1920s. The drop in portfolio investments came about as a result of the collapse of the world monetary system in the 1930s, provoked by World War 1 and the Great Depression. There was, however, a general drop in the two types of investment during the interwar years. Unlike portfolio investment, FDI proved amazingly resilient and gradually recovered in the late 1930s. FDI again improved with the end of the Second World War, and became even more prominent after the 1960s in developing countries. This was not the case, however, which was yet to have its share of FDI flow. The main focus of this study is to investigate why Cameroon lags behind other developing countries in Sub-Saharan Africa (SSA) in terms of attracting FDI in spite of its membership of, and participation in, bilateral, regional and multilateral trade and investment treaties, and its attractive investment policies. The above argument applies explicitly to FDI because Regional Integration Agreements (RIAs) are said to boost FDI inflows from non-member countries. It is universally acknowledged that a well-designed policy framework for investment, capable of attracting FDI, would be productive and successful. Thus, for Cameroon to be competitive in attracting FDI, it is obliged to review its investment policies which continue to face the challenges of a changing global economy.
The interaction between trade and climate change law and policy : from potential conflict to mutual supportiveness
(Uiversity of the Western Cape, 2012) Sylva, Ntumba Batshi; van Reenen, T.P.
This paper explores the relationship between trade and climate change regimes, the potential areas of conflict, and what can be done to promote mutual gains. Apart from exploring the key issues and examining the conceptual underpinning of the two regimes, revealing important symmetries as well as some divergence, the paper is aimed at finding a more universal and long lasting solution to the WTO's inconsistency of carbon-related to GHG emissions, both within and outside the WTO.
The potential impacts of contract review on foreign direct investments in mining resources: case study of Tanzania and Democratic Republic of Congo
(University of the Western Cape, 2012) Mweyunge, Egidius Mwaijage; Wandrag, Riekie
This work deals with the potential impacts of contract review on foreign direct investments in mining resources. The research has cited Tanzania and the Democratic Republic of Congo as the case study because the two countries have experienced the problems generated from mining contracts review programmes. Indeed, there are some variations on the nature of the environments in which the reviews were made. While in the DRC the reviews were done amid civil wars (whose root cause was wealth emanating from mineral resources), in Tanzania the reviews were done without such pressure. However, the situation seems to have not been fully solved neither in Tanzania where the reviews were done under “peaceful” environment nor in the DRC where at least the past experience could have taught them a lesson. The mini thesis is divided into four chapters each covering a distinct topic for discussion. Chapter one serves as an introduction highlighting on the mission and vision of the research. It also spotlights the scope and limitation of the research. Chapter two is a discussion on the mining sector and foreign direct investments in Tanzania and the concept of mining contracts review based on the Bomani Commission report. In fact this chapter together with chapter three are the core of the research. In chapter two facts are laid bare of how the mining operations are done in Tanzania and how the management is undertaken. While in the subsequent chapter to wit chapter three, the same is observed but now targeting the Democratic Republic of Congo. The researcher has used these two chapters to demonstrate how inefficient the African governments are in running and maintaining the mineral resources by which they are endowed plentifully. Chapter four is also formal in the sense that the researcher provides his point of view on how matters could be rectified. It is a firm view of the researcher that if the governments take heed to what is recommended, there will much improvements in the mining sector which can be recorded in shorter span of production.
The admissibility and evidential weight of electronic evidence in South African legal proceedings: a comparative perspective
(University of the Western Cape, 2013) Van Tonder, Gert Petrus; Koornhof, Pieter
This research will analyse legislation, case law, law commission papers and reports, as well as academic commentary on electronic evidence in South Africa, Canada and England. A comparative analysis will be conducted in order to determine whether South Africa is adequately regulating electronic evidence in light of international and foreign law.
The enforceability of incorporated term in electronic agreements
(University of Fort Hare, 2013) Koornhof, Pieter G.J.
This article seeks to evaluate the validity of different methods of incorporating terms into electronic agreements, and to what extent the use of these different methods may influence the enforceability of the incorporated terms. The two most common methods of electronic incorporation, namely click-wrap and web-wrap, are set out, and the status of their incorporation is analysed by studying positions in the United States of America (US) and the United Kingdom (UK), before referring to South Africa. The common law position regarding incorporated terms for both signed as well as unsigned documents is discussed. It is argued that, irrespective of the method of incorporation adopted, incorporated terms would most likely be valid in light of the provisions of the Electronic Communications and Transactions Act. This notwithstanding, due care must be taken in how the different methods in themselves are used, as this might still affect whether particular incorporated terms will be enforced. This is especially pertinent in the light of contracts which may fall under the ambit of the new Consumer Protection Act. However, neither the Electronic Communications and Transactions Act nor the Consumer Protection Act seeks to replace the common law, but rather adapt it and create a general framework for such types of agreements and transactions to operate in. It is submitted that the law applying to incorporation by reference in signed documents should apply to those instances where click-wrap is used, whereas the law applying to that of unsigned documents should apply when web-wrap is used.
Ethical and legal implications of whole genome and whole exome sequencing in African populations
(BioMed Central, 2013) Wright, Galen E.B.; Koornhof, Pieter G.J.; Adeyemo, Adebowale A.; Tiffin, Nicki
BACKGROUND: Rapid advances in high throughput genomic technologies and next generation sequencing are making medical genomic research more readily accessible and affordable, including the sequencing of patient and control whole genomes and exomes in order to elucidate genetic factors underlying disease. Over the next five years, the Human Heredity and Health in Africa (H3Africa) Initiative, funded by the Wellcome Trust (United Kingdom) and the National Institutes of Health (United States of America), will contribute greatly towards sequencing of numerous African samples for biomedical research. DISCUSSION: Funding agencies and journals often require submission of genomic data from research participants to databases that allow open or controlled data access for all investigators. Access to such genotype-phenotype and pedigree data, however, needs careful control in order to prevent identification of individuals or families. This is particularly the case in Africa, where many researchers and their patients are inexperienced in the ethical issues accompanying whole genome and exome research; and where an historical unidirectional flow of samples and data out of Africa has created a sense of exploitation and distrust. In the current study, we analysed the implications of the anticipated surge of next generation sequencing data in Africa and the subsequent data sharing concepts on the protection of privacy of research subjects. We performed a retrospective analysis of the informed consent process for the continent and the rest-of-the-world and examined relevant legislation, both current and proposed. We investigated the following issues: (i) informed consent, including guidelines for performing culturally-sensitive next generation sequencing research in Africa and availability of suitable informed consent documents; (ii) data security and subject privacy whilst practicing data sharing; (iii) conveying the implications of such concepts to research participants in resource limited settings. SUMMARY: We conclude that, in order to meet the unique requirements of performing next generation sequencing-related research in African populations, novel approaches to the informed consent process are required. This will help to avoid infringement of privacy of individual subjects as well as to ensure that informed consent adheres to acceptable data protection levels with regard to use and transfer of such information.

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