Text in Afrikaans / Summaries in English and Afrikaans / Die Konstitusionele Hof het ir:i S v Makwanyane besluit dat die doodstraf nie versoenbaar is met die Grondwet nie en dit ongeldig verklaar. Die kritiek teenoor die regbank en die openbare mening oor die doodstraf was nog altyd s6 prominent dat die hof nie anders kon as om hieraan aandag te skenk nie. Die hof besluit dat die openbare mening nie 'n rol speel in die hersieningsproses nie. In hierdie verhandeling word die hof se standpunte en red es daarvoor ontleed. Ek kom tot die gevolgtrekking dat die hof korrek bes I is het. Die open bare mening is onseker. Daar is 'n verskil tussen die aard van die waardes in die Grondwet en die aard van die open bare mening. Die kritiek op die uitspraak is te wyte aan die gebrek aan insig en begrip onder lede van die gemeenskap oor die nuwe bestel en die rol van die regbank daarin. / The Constitutional Court in S v Makwanyane declared that the death penalty was inconsistent with the Constitution. The criticism on courts and the public opinion on the death penalty have been so severe that the court could not have but considered these issues. The court concluded that public opinion is not relevant in constitutional review. In this dissertation, I analyze the court's viewpoints and the reasons therefor. My conclusion is that the court made the correct decision. The public opinion is uncertain, and differs from values. The judgment is criticised due to a lack of understanding amongst the public as to the meaning of the new dispensation and the role of our courts therein. / Law / Thesis (LL.M.)--Universiteit van Suid-Afrika, 1996.

Text in Afrikaans / Summaries in English and Afrikaans / Die Konstitusionele Hof het ir:i S v Makwanyane besluit dat die doodstraf nie versoenbaar is met die Grondwet nie en dit ongeldig verklaar. Die kritiek teenoor die regbank en die openbare mening oor die doodstraf was nog altyd s6 prominent dat die hof nie anders kon as om hieraan aandag te skenk nie. Die hof besluit dat die openbare mening nie 'n rol speel in die hersieningsproses nie. In hierdie verhandeling word die hof se standpunte en red es daarvoor ontleed. Ek kom tot die gevolgtrekking dat die hof korrek bes I is het. Die open bare mening is onseker. Daar is 'n verskil tussen die aard van die waardes in die Grondwet en die aard van die open bare mening. Die kritiek op die uitspraak is te wyte aan die gebrek aan insig en begrip onder lede van die gemeenskap oor die nuwe bestel en die rol van die regbank daarin. / The Constitutional Court in S v Makwanyane declared that the death penalty was inconsistent with the Constitution. The criticism on courts and the public opinion on the death penalty have been so severe that the court could not have but considered these issues. The court concluded that public opinion is not relevant in constitutional review. In this dissertation, I analyze the court's viewpoints and the reasons therefor. My conclusion is that the court made the correct decision. The public opinion is uncertain, and differs from values. The judgment is criticised due to a lack of understanding amongst the public as to the meaning of the new dispensation and the role of our courts therein. / Law / Thesis (LL.M.)--Universiteit van Suid-Afrika, 1996.

Mercantile Law / LL. M. (Commercial Law)

In the sphere of labour and employment, "prerogative" is usually taken to refer to the "right to manage" an organisation. The right can be divided into those decisions which relate to the utilisation of the human resources of the organisation and decisions of an "economic" or "business" nature. This thesis focuses on the first category of decisionmaking. It is generally accepted by employers and trade unions that employers have the right to manage employees. The legal basis for this right is to be found in the contract of employment which has as one of its elements the subordination of the employee to the authority of the employer. This element affords the employer the legal right to give instructions and creates the legal duty for the employee to obey these instructions. Employers' right to manage is, however, neither fixed nor static. The main purpose of this thesis is to determine the extent of employers' right to manage employees. This is done by examining the restrictions imposed by the law {ie common law and legislation) and collective bargaining. The examination is accordingly focussed on what is Jett of employer prerogative. A number of conclusions are drawn from the examination. One of the most important conclusions reached is that, although most of an employer's common law decisionmaking powers have been statutorily regulated, none have been rescinded. The employer has accordingly retained its decision-making power, albeit in a more restricted or limited form. This makes further restriction of its decision-making power through contractual or statutory provisions or collective bargaining possible. It, however, also makes the lessening or even the total removal of these restrictions through future statutory provisions or collective bargaining possible. / Law / LL.D.

In the sphere of labour and employment, "prerogative" is usually taken to refer to the "right to manage" an organisation. The right can be divided into those decisions which relate to the utilisation of the human resources of the organisation and decisions of an "economic" or "business" nature. This thesis focuses on the first category of decisionmaking. It is generally accepted by employers and trade unions that employers have the right to manage employees. The legal basis for this right is to be found in the contract of employment which has as one of its elements the subordination of the employee to the authority of the employer. This element affords the employer the legal right to give instructions and creates the legal duty for the employee to obey these instructions. Employers' right to manage is, however, neither fixed nor static. The main purpose of this thesis is to determine the extent of employers' right to manage employees. This is done by examining the restrictions imposed by the law {ie common law and legislation) and collective bargaining. The examination is accordingly focussed on what is Jett of employer prerogative. A number of conclusions are drawn from the examination. One of the most important conclusions reached is that, although most of an employer's common law decisionmaking powers have been statutorily regulated, none have been rescinded. The employer has accordingly retained its decision-making power, albeit in a more restricted or limited form. This makes further restriction of its decision-making power through contractual or statutory provisions or collective bargaining possible. It, however, also makes the lessening or even the total removal of these restrictions through future statutory provisions or collective bargaining possible. / Law / LL.D.

If the expectancy that someone was to act according to what we deem to be his or her “duty” was that straightforward, there would be no need to address the issues of liability of the employee for the wrongful acts of the employer. The recent - and some say alarming - trend in South Africa to hold employers (particularly the government) liable for wrongful, culpable acts committed by their employees, gives rise to difficulties and any inquiry into the possible vicarious liability of the employer should necessarily always start by asking whether there was in fact a wrongful, culpable act committed by the employee. If not, there can neither be direct liability of the employee nor vicarious liability by the employer. Where the employee did indeed commit a delict, the relationship between the wrongdoer and his or her employer at the time of the wrongdoing becomes important. It is then often, in determining whether the employee was acting in the scope of his or her employment that normative issues come to the fore. Over the years South African courts have devised tests to determine whether an employee was in fact acting in the scope of his employment. / Jurisprudence / LLM

A study of silences: as a metaphysics of the law, juridification silences the text of the law in order to enable an allegorical reading of the law. This silencing of the legal text can only be avoided through a non-metaphysical archaeological reading. Similarly, the programme of comparative labour law is silent at its most pivotal points, leaving some concerns of the programme indeterminate and indeterminable. As context, the dominant discourses of the labour law systems of the Federal Republic of Germany (Tarifautonomie), Great Britain (collective laizzesfaire) and South Africa (fairness) are identified and the agents of the jurisprudence (the courts) are briefly outlined. The silence operating within the phenomenology of the labour judiciary and the concept of a 'court' is also examined. The study then proceeds to read, in an archaeological manner, the industrial action jurisprudence in Germany, Great Britain and South Africa, such readings again yielding silences within the discourse of the law. The silences occurring throughout (and the resulting normative breaches in the rationality of the legal discourse) are the prerequisites for juridification, a process in terms of which the metajuridical standard is imported into the legal normative system and thereby rendered part of the archival discourse of the law. / LL.D.

If the expectancy that someone was to act according to what we deem to be his or her “duty” was that straightforward, there would be no need to address the issues of liability of the employee for the wrongful acts of the employer. The recent - and some say alarming - trend in South Africa to hold employers (particularly the government) liable for wrongful, culpable acts committed by their employees, gives rise to difficulties and any inquiry into the possible vicarious liability of the employer should necessarily always start by asking whether there was in fact a wrongful, culpable act committed by the employee. If not, there can neither be direct liability of the employee nor vicarious liability by the employer. Where the employee did indeed commit a delict, the relationship between the wrongdoer and his or her employer at the time of the wrongdoing becomes important. It is then often, in determining whether the employee was acting in the scope of his or her employment that normative issues come to the fore. Over the years South African courts have devised tests to determine whether an employee was in fact acting in the scope of his employment. / Jurisprudence / LL. M.

A study of silences: as a metaphysics of the law, juridification silences the text of the law in order to enable an allegorical reading of the law. This silencing of the legal text can only be avoided through a non-metaphysical archaeological reading. Similarly, the programme of comparative labour law is silent at its most pivotal points, leaving some concerns of the programme indeterminate and indeterminable. As context, the dominant discourses of the labour law systems of the Federal Republic of Germany (Tarifautonomie), Great Britain (collective laizzesfaire) and South Africa (fairness) are identified and the agents of the jurisprudence (the courts) are briefly outlined. The silence operating within the phenomenology of the labour judiciary and the concept of a 'court' is also examined. The study then proceeds to read, in an archaeological manner, the industrial action jurisprudence in Germany, Great Britain and South Africa, such readings again yielding silences within the discourse of the law. The silences occurring throughout (and the resulting normative breaches in the rationality of the legal discourse) are the prerequisites for juridification, a process in terms of which the metajuridical standard is imported into the legal normative system and thereby rendered part of the archival discourse of the law. / LL.D.