Thesis (M.Law (Labour Law)) --University of Limpopo, 2012 / This research is titled ‘Compensation as a remedy for unfair dismissal, a comparison of South African and Australian labour law’. The Australian labour law systems and structures share some important features with South African labour law jurisprudence pertaining to the awarding of compensation as a remedy to unfairly dismissed employees. Some of these important features include the method of calculating compensation and the existence of a compensation cap. The research sets out, amongst other things guidelines or directives to be followed by adjudicators of unfair dismissal dispute in South Africa when awarding compensation, and highlight comparative analysis of South African and Australian labour law approach on compensation as a remedy for unfair dismissal.

Quantification of damages for loss of amenities of life is a difficult task because there is no connection between enjoyment of life and money. The court however has to compensate the plaintiff with money because that is the only way of restitution. In compensating the plaintiff the court will award a conservative amount which is fair to both parties. The court will take into account previous awards in comparable cases but the personal circumstances of the plaintiff will form the background of the assessment. The intensity and duration of the loss of amenities of life, the plaintiff's contributory negligence, his obligation to mitigate his loss, his ability to cope with his loss and patrimonial damages tending to minimize the loss of amenities of life are all factors to be taken into account in the quantification process. / Die kwantifisering van die vergoeding vir die verlies aan lewensgenietinge is 'n moeilike taak aangesien daar geen verband tussen lewensgeluk and geld is nie. Die hof moet egter die eiser vergoed met 'n som geld aangesien dit die enigste manier van restitusie is. By kwantifisering word die doel van die vergoedingsbedrag asook billikheid en regverdigheid in gedagte gehou. Die hof sal eerder konserwatief as wispelturig te werk gaan by kwantifisering. Verder sal daar na vorige toekennings in vergelykbare gevalle gekyk word, maar uiteindelik sal die omvang van die vergoedingsbedrag bepaal word deur die persoonlike omstandighede van die eiser wat die agtergrond van die kwantifiseringsproses sal vorm. Die tydsduur en intensiteit van die verlies aan lewensgenietinge, die eiser se bydraende nalatigheid, sy verpligting om skade te beperk, sy vermoe om sy verlies te verwerk asook toekennings van 'n vermoensregtelike aard is relevant by kwantifisering. / Mercantile Law / LL.M.

Quantification of damages for loss of amenities of life is a difficult task because there is no connection between enjoyment of life and money. The court however has to compensate the plaintiff with money because that is the only way of restitution. In compensating the plaintiff the court will award a conservative amount which is fair to both parties. The court will take into account previous awards in comparable cases but the personal circumstances of the plaintiff will form the background of the assessment. The intensity and duration of the loss of amenities of life, the plaintiff's contributory negligence, his obligation to mitigate his loss, his ability to cope with his loss and patrimonial damages tending to minimize the loss of amenities of life are all factors to be taken into account in the quantification process. / Die kwantifisering van die vergoeding vir die verlies aan lewensgenietinge is 'n moeilike taak aangesien daar geen verband tussen lewensgeluk and geld is nie. Die hof moet egter die eiser vergoed met 'n som geld aangesien dit die enigste manier van restitusie is. By kwantifisering word die doel van die vergoedingsbedrag asook billikheid en regverdigheid in gedagte gehou. Die hof sal eerder konserwatief as wispelturig te werk gaan by kwantifisering. Verder sal daar na vorige toekennings in vergelykbare gevalle gekyk word, maar uiteindelik sal die omvang van die vergoedingsbedrag bepaal word deur die persoonlike omstandighede van die eiser wat die agtergrond van die kwantifiseringsproses sal vorm. Die tydsduur en intensiteit van die verlies aan lewensgenietinge, die eiser se bydraende nalatigheid, sy verpligting om skade te beperk, sy vermoe om sy verlies te verwerk asook toekennings van 'n vermoensregtelike aard is relevant by kwantifisering. / Mercantile Law / LL.M.

LL. M.(With specialisation in Private Law))

LL. M.(With specialisation in Private Law))

This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.

This study critically analyzed land redistribution and economic empowerment of farm workers in the Stellenbosch agricultural area. Past socio-economic and political policies have resulted in a racially skewed and inequitable distribution of land as well as overcrowding, overstocking and poverty in the countryside. It has become imperative that fundamental change is brought about in order to improve economical opportunities of all South Africans to access land for beneficial and productive use. Land reform, as the central thrust of land policy, is not only part of the effort towards the creation of equitable land distribution, but also of national reconciliation and stability. This study analyzed the notion of economic empowerment of farm workers. It looked at historical overview of the evolution of politics in South Africa and contemporary legislative framework pertaining to land redistribution and farm workers in the Western Cape. A case study of Bouwland farm in the Stellenbosch agricultural area was used as an example of how land redistribution can contribute to economically empower farm workers.

MSCAEC / Department of Agricultural Economics and Agribusiness

Text in Afrikaans, abstract in Afrikaans and English / Different methods of calculation of the loss of support of minor children, are investigated. According to one method (A), one first has to establish that the deceased's income was not all absorbed for his/her own maintenance. Only if there is surplus income available, it can be inferred that the deceased contributed towards the maintenance of the minor children and that the children have suffered a loss. According to another method (B) both parents' income are added and then divided between the family members. The minor child's loss of support is an amount which represent his/her share in the deceased's own income - a child automatically suffers a loss according to this method, in the event of death of a parent. Method B ought to be applied, because it is consistent with the reciprocal duty of support between spouses and the duty of spouses to maintain children. / Verskillende metodes om die verlies aan onderhoud van afhanklike kinders te bereken word ondersoek. Volgens een benadering (A) moet eers vasgestel word of die oorledene se inkomste nie alles geabsorbeer is vir sy /haar eie onderhoud nie. Slegs indien daar surplusinkomste was, kan aanvaar word dat die oorledene bygedra het tot die onderhoud van die minderjarige kinders en dat die kinders 'n verlies ly. Volgens die ander benadering (B) word beide ouers se inkomste bymekaar getel en dan tussen die gesinslede verdeel. Elke minderjarige kind se verlies aan onderhoud is 'n bedrag wat sy/haar aandeel in die oorlede ouer se afsonderlike inkomste verteenwoordig - 'n kind ly outomaties volgens hierdie metode 'n verlies. Metode B behoort meestal aanwending te vind, aangesien dit in ooreenstemming is met die wederkerige onderhoudsplig tussen gades en die plig van ouers om hul kinders te onderhou. / Private Law / LL. M. (Law)

Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution. A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes. / Jurisprudence / LL. M.