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.

The legislative supremacy of Parliament, a dominant characteristic of the Westminster system of government, has for a long time been the basic norm of South African constitutional law. In line with the Westminster prototype, the South African judiciary did not have the power to review the substantive validity of legislation. The creation of a new order, based on a supreme Constitution which entrenches fundamental rights and gives the courts the power to review not on! y the procedural validity but also the substantive validity of legislation, has brought about a significant change. This thesis examines the role of the South African judiciary during the transition from a system of legislative supremacy to one of constitutional supremacy and judicial review. The thesis is based on the interim Constitution of 1993. The entrenchment of fundamental human rights in the Constitution implies a greater role for the judiciary. The judiciary has to apply and interpret the human rights provisions vigorously and fearlessly. The human rights provisions have to be applied and interpreted with a keen awareness that a system of constitutional supremacy differs materially from one of legislative supremacy. In a system of legislative supremacy the intention of the legislature is paramount; in a system of constitutional supremacy the Constitution is supreme and overrides all laws, including Acts of Parliament, which are in conflict with it The doctrine of legislative supremacy has in the past led to a literalist and mechanical application of law; this has had a negative impact on the constitutional role of the South African judiciary. The provisions of a Constitution, especially its human rights provisions, are framed in wide and open ended terms; these need to be elaborated before they can be applied; the nature of these provisions, their purpose and the larger objects of the Constitution are important. The interpretation of the provisions of a supreme Constitution is incompatible with a literalistic and mechanical approach. A purposive and liberal or generous approach is called for. A framework and approach to the interpretation and application of South Africa's Bill of Rights are suggested in the thesis. / Constitutional International and Indigenous Law / LL.D.

The Zuma case - important as the first decision of the Constitutional Court - is primarily concerned with the constitutionality of section 217(l)(b)(ii) of the Criminal Procedure Act. In trying to fmd an answer to this question, the Constitutional Court also addressed other important issues. In this dissertation the Constitutional Court's decision on the constitutionality of section 217(1)(b)(ii) is examined, as well as important general principles laid down by the Court regarding incompetent referrals by the Supreme Court; constitutional interpretation; reverse onus provisions and the right to a fair trial; as well as the application of the general limitation clause. A closer look is taken at adherence to these principles in subsequent Constitutional Court decisions, and finally a conclusion is reached on the value of the Zuma case. / Law / LL.M. (Law)

The legislative supremacy of Parliament, a dominant characteristic of the Westminster system of government, has for a long time been the basic norm of South African constitutional law. In line with the Westminster prototype, the South African judiciary did not have the power to review the substantive validity of legislation. The creation of a new order, based on a supreme Constitution which entrenches fundamental rights and gives the courts the power to review not on! y the procedural validity but also the substantive validity of legislation, has brought about a significant change. This thesis examines the role of the South African judiciary during the transition from a system of legislative supremacy to one of constitutional supremacy and judicial review. The thesis is based on the interim Constitution of 1993. The entrenchment of fundamental human rights in the Constitution implies a greater role for the judiciary. The judiciary has to apply and interpret the human rights provisions vigorously and fearlessly. The human rights provisions have to be applied and interpreted with a keen awareness that a system of constitutional supremacy differs materially from one of legislative supremacy. In a system of legislative supremacy the intention of the legislature is paramount; in a system of constitutional supremacy the Constitution is supreme and overrides all laws, including Acts of Parliament, which are in conflict with it The doctrine of legislative supremacy has in the past led to a literalist and mechanical application of law; this has had a negative impact on the constitutional role of the South African judiciary. The provisions of a Constitution, especially its human rights provisions, are framed in wide and open ended terms; these need to be elaborated before they can be applied; the nature of these provisions, their purpose and the larger objects of the Constitution are important. The interpretation of the provisions of a supreme Constitution is incompatible with a literalistic and mechanical approach. A purposive and liberal or generous approach is called for. A framework and approach to the interpretation and application of South Africa's Bill of Rights are suggested in the thesis. / Constitutional International and Indigenous Law / LL.D.

The Zuma case - important as the first decision of the Constitutional Court - is primarily concerned with the constitutionality of section 217(l)(b)(ii) of the Criminal Procedure Act. In trying to fmd an answer to this question, the Constitutional Court also addressed other important issues. In this dissertation the Constitutional Court's decision on the constitutionality of section 217(1)(b)(ii) is examined, as well as important general principles laid down by the Court regarding incompetent referrals by the Supreme Court; constitutional interpretation; reverse onus provisions and the right to a fair trial; as well as the application of the general limitation clause. A closer look is taken at adherence to these principles in subsequent Constitutional Court decisions, and finally a conclusion is reached on the value of the Zuma case. / Law / LL.M. (Law)

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

Section 33(1)(b) is fraught with borrowed provisions. The end-product marries German and Canadian features. The failure of the German Constitutional Courts to interpret the "essential content of a right" precipitated the adopted infant's bumpy landing in South Africa. That the sibling still lacks identity is evidenced by our Constitutional Court's evasive and superficial treatment of the clause. Section 33(1)(a) - proportionality prong enables judges to justify their neglect of Section 33(1)(b). The opinion is expressed that Section 33(1){b) demands interpretation but to date it has been shrouded in vagueness. After all without demarcating boundaries with sufficient precision and highlighting where the State may not tread the State may trespass. Alternatively the limitable nature of human rights could become a myth as Section 33(1)(b) could be transformed into an insurmountable hurdle for the State, rendering every right absolute in practice. A workable conceptual framework proposes an inverted, porous and value imbibing solution. / Law / LL.M.

The objective of this thesis is to assess the impact and influence of South Africa's Constitutional Court in the first two years of our democracy. To achieve this objective, some of the definitive and controversial cases already decided by the Court have been selected and analysed in an attempt to glean some jurisprudential perspectives of the Court. It focuses on the work of the Court over the past two years. It deals with the evolution of South Africa into a democracy, and analyzes the South African legal system prior to the beginning of the process of transformation. It briefly surveys the evolution of our constitutional system, dating back from the pre-1910 colonial period and provides a broad outline of the legal system in the post-April 1994 period of transformation. It analyzes the Court from the point of view of, inter alia, its composition, jurisdiction and powers. The Court is also contrasted with courts in other jurisdictions which exercise full judicial review. The Court's emerging jurisprudence is examined. A review is made, inter alia, of the Court's understanding of, and approach to, the questions of the values underpinning the post-apartheid society and its constitutional system, and constitutional interpretation. The right against self-incrimination and South African company law and the two relevant Constitutional Court cases are discussed. The collection of evidence by the State and the constitutionality of provisions relating to search and seizure and the taking of fingerprints are looked into. The Court's approach to statutory presumptions and criminal prosecutions; some aspects of our appeals procedures; an accused's right to be assisted by a lawyer at state expense; the question of a fair trial and access to information; capital punishment; corporal punishment; committal to prison for debt; and the certification of constitutions is analyzed. Two of the cases in which the provinces clashed with the national government on the distribution of posers between provinces and the national government are discussed. The conclusion is that the Court has, overall, hitherto acquitted itself well in the handling of particularly the controversial quasi-political questions that arose in the cases it has decided. / Constitutional, International & Indigenous Law / L.L. D. (Law)

Text in Afrikaans / The broad focus of the thesis is an analysis of the meaning and the modern development of the doctrine of the separation of power (trias politica) and the application thereof in the constitutional development in South Africa. The first chapter outlines the historical restrictions that were placed on governmental authority by the trias politica doctrine. In the following chapter the application of the trias politica doctrine in different governmental systems (parliamentary, presidential and semipresidential) are analysed. In the third chapter an analysis is made of the constitutions of the former Boer republics, chronologically followed by an analysis of the 1909, 1961 and 1983 Constitutions, to establish to which extent the trias politica doctrine was incorporated in the respective constitutions. In the subsequent chapters, the focus shifts to the constitutions in the post democratic era, namely the 1993 interim Constitution and the 1996 (final) Constitution. It is evident that the new supreme Constitution and an independent judiciary yielded to a stronger adherence to the separation of power principle. It is also evident that the retainment of the parliamentary system, with a fused legislature and executive authority, inhibited a stronger separation of power. The inclusion of sosioeconomic rights in the Constitution resulted in a more direct involvement in governmental policy. However, the Constitutional Court managed to maintain a fine balance between reviewing policy and the formulation of policy. In the closing chapter a short summary is provided, followed by comments on possible alternatives to the existing system to ensure a stronger separation of powers. / Public, Constitutional and International Law / LL. D. (Constitutional, International and Indigenous Law)

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.