Clauses in restraint of trade agreements concluded between an employer and an employee often present difficult legal issues to deal with. This complexity is due to the fact that a court, in deciding whether to enforce a restraint provision, has to strike a balance between two equal but competing policy considerations, namely, the sanctity of the contract and the freedom of movement of people in a market economy. In striving to balance the sanctity of contract with the right of freedom to trade, it is necessary to decide which of these two policy considerations should take precedence by having regard to the public interest served by them in the particular circumstances. In the watershed case of Magna Alloys and Research(SA)(Pty) Ltd v Ellis, the Appellate Division decided the sanctity of contract had greater precedent in South African law and that undertakings in restraint of trade were prima facie valid and enforceable, unless the party seeking to avoid its obligations could show that the restraint of trade was contrary to public interest. The second consideration, namely that a person should be free to engage in useful economic activity and to contribute to the welfare of society, tempers the sanctity of contract considerations. Accordingly, the courts have struck down any unreasonable restriction on the freedom to trade where it was regarded as contrary to public interest. In considering the reasonableness and therefore the acceptability of restraint of trade provisions from a public policy perspective, the following five questions need consideration: Is there a legitimate interest of the employer that deserves protection at the termination of the employment agreement? If so, is that legitimate interest being prejudiced by the employee? If the legitimate interest is being prejudiced, does the interest of the employer weigh up, both qualitatively and quantitatively against the interest of the employee not to be economically inactive and unproductive? Is there another facet of public policy having nothing to do with the relationship between the parties but requires that the restraint should either be enforced or rejected? Is the ambit of the restraint of trade in respect of nature, area and duration justifiably necessary to protect the interests of the employer? In enforcing a restraint, the court will consider all the facts of the matter as at the time that the party is seeking to enforce the restraint. If a court finds that the right of the party to be economically active and productive surpasses the interest of the party attempting to enforce the restraint, the court will hold that such restraint is unreasonable and unenforceable. Consideration of the enforceability of restraints is often found to be challenging in view of the answers to the above stated five questions often remaining of a factual nature and subjective, i.e. the view and perceptions of the presiding officer play an important role. A further complexity is the limited early effect which the Constitution of the Republic of South Africa had on dispute resolution pertaining to restraints of trade in the employment context and the prospects of imminent changes to the pre-Constitutional era locus classicus of Magna Alloys and Research (SA)(Pty) Ltd v Ellis.

Thesis (LLM)--University of Stellenbosch, 2005. / ENGLISH ABSTRACT: The South African system of breach of contract recognizes several distinct forms of breach. each encompassing its own set of requirements. Before one is able to determine the outcome and accordingly the rights of each contracting party in respect of an alleged breach of contract. the factual situation must be fitted into one of the recognized forms of breach. This has resulted in a highly complex system of breach of contract and resultant remedies. The existence of a direct relationship between the form of breach present in a factual situation and the remedies available to the innocent party is a fundamental premise of South African law and one that is often accepted without much investigation. This thesis investigates the extent of this interdependence and to establish whether this intricate system is necessary from a practical and a theoretical point of view. To this end. the thesis examines the less complex system of breach of contract as embodied in the United Nations Convention on Contracts for the International Sale of Goods C·CISG'·) which has been widely adopted in international trade. and which has provided a template for the reformation of various national systems of law. This study concludes that the South African approach to breach of contract and remedies is in need of reform. and that a unitary concept of breach could provide a basis for both a simplification and modernization of our law. / AFRIKAANSE OPSOMMING: Die Suid-Afrikaanse Kontraktereg erken verskeie verskyningsvorms van kontrakbreuk, elk met sy eie besondere vereistes. Ten einde die uitkoms van probleemsituasies waarin kontrakbreuk beweer word te bepaal en derhalwe die regte van die betrokkenes uit te kristalliseer. moet die feitestelonder die een of ander vorm van kontrakbreuk tuisgebring te word. Hierdie benadering het 'n besonder komplekse stelsel van kontrakbreuk en remedies tot gevolg. 'n Fundamentele uitgangspunt van die Suid-Afrikaanse stelsel is dat daar Il direkte korrelasie bestaan tussen die tipe van kontrakbreuk wat in 'n bepaalde geval teenwoordig is en die remedies waarop die onskuldige party kan staatmaak. Hierdie siening, wat meerendeel sonder bevraagtekening aanvaar word, vorm die fokuspunt van hierdie ondersoek. Die oogmerk is om die praktiese nuttigheid en teoretiese houbaarheid van die benadering vas te stel. As 'n vergelykingspunt neem die tesis die vereenvoudigde sisteem van kontrakbreuk beliggaam in die Verenigde Nasies se Konvensie aangaande die Internasionale Koopkontrak ("CISG"). Hierdie verordening geniet wye erkenning in die Internasionale Handel en het alreeds die grondslag gevorm van verskeie inisiatiewe vir die hervonning van Il aantal nasionale regstelsels. Die gevolgtrekking is dat die Suid-A frikaanse benadering tot kontrakbreuk en die remedies daarvoor hervorming benodig en dat die opvatting van 'n sg uniforme kontrakbreuk as 'n basis kan dien vir die vereenvoudiging en modernisering van ons reg.

LL.M. (International Commercial Law) / The main exploration of this paper is whether a breach of contract as a ground for jurisdiction is sufficient for a court in England or South Africa to exercise jurisdiction. This question seems straightforward in England, but not so much in South Africa. England enacted their Civil Procedure Rules to make provision for a court to exercise jurisdiction when a plaintiff who is in England wants to sue a foreign defendant in England.1 The breach of contract must occur in the jurisdiction before an English court will permit service out of the jurisdiction. South Africa’s laws on jurisdiction are derived from Roman law.2 A foreign peregrinus may sue in South Africa either where the incola is domiciled or resident or where the cause of action arises. Breach of contract is allowed in this circumstance. It is necessary for an incola plaintiff to attach property of a foreign peregrinus defendant when he wants to sue the foreign peregrinus in a South African court. This may be done where the attachment founds jurisdiction of the court, ie where the incola sues in the area where he is domiciled or resides, or where the attachment confirms the jurisdiction of the court, ie where the cause of action arises. The cause of action in relation to contracts includes the conclusion of the contract or the performance of the contract in the jurisdiction if the plaintiff sues where the cause of action arises and not where the plaintiff is domiciled or resident. The matter of whether a breach of contract can be regarded as a ratio jurisdictionis is seldom approached by South African courts. In Natal, courts allowed attachment of the defendant’s properties where there were no rationes jurisdictionis...

The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.

The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.

This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.

Thesis (LLM)--Stellenbosch University, 2013. / Bibliography / ENGLISH ABSTRACT: This thesis investigates the approach to non-disclosure as a form of misrepresentation in South African law. The primary focus is the question of liability, and whether parties should be able to claim relief based on non-disclosure. In order to determine this, attention is also paid to the standards which have traditionally been employed in cases of non-disclosure, and it is questioned whether a general test can be formulated which could be used in all such instances. The point of departure in this discussion is a general historical and comparative overview of the law relating to non-disclosure. This overview places the position in modern South African law in context, and highlights some of the similarities between our current position regarding non-disclosure and the position in other jurisdictions. The overview also sets out the provisions relating to non-disclosure in international legal instruments, which could be of use in interpreting concepts used in our law. The study then shifts to an exploration of the specific situations, such as the conclusion of insurance agreements, or agreements of sale involving latent defects, where South African law automatically imposes a duty of disclosure. These instances are the exception to the general rule against imposing duties of disclosure on contracting parties. The study reveals that certain principles are applied in more than one of these exceptional cases, and attention is paid to each in order to determine which principles are most prevalent. It is suggested that the nature of the relationship between the parties is the underlying reason for always imposing duties of disclosure in these circumstances. Attention is then paid to the judicial development of the law relating to non-disclosure, specifically in those cases which fall outside the recognised special cases referred to above. The remedies available to a party when they have been wronged by another’s non-disclosure are identified and investigated here, namely rescission and damages. A distinction is drawn between the treatment of non-disclosure in the contractual sphere and the approach taken in the law of delict. The different requirements for each remedy are explored and evaluated. A detailed examination of the key judgments relating to non-disclosure shows us that the judiciary apply similar principles to those identified in the discussion of the exceptional instances when deciding to impose liability based on non-disclosure. Reliance is also placed on the standards set out in the earlier historical and comparative discussion. The most prevalent of these standards are the nature of the relationship between the parties and the good faith principle. It is then considered whether all of these principles and elements could be used in order to distill one general standard that could be used to determine whether non-disclosure could give rise to relief. The conclusion is drawn that it may not be advisable to adopt such a standard, and that the seemingly fragmented treatment of non-disclosure in South African law thus far has enabled its development and will continue to do so. A number of key considerations have been identified as possible standards, and these considerations can be applied by the judiciary on a case by case basis. / AFRIKAANSE OPSOMMING: Hierdie tesis ondersoek wanvoorstelling deur stilswye in die Suid-Afrikaanse kontraktereg. Die primêre fokus is op wanneer stilswye aanleiding gee tot aanspreeklikheid, en watter remedies daaruit voortvloei. Om dit vas te stel, word aandag geskenk aan die standaarde wat tradisioneel gebruik word in gevalle van stilswye, en word veral bevraagteken of 'n algemene toets formuleer kan word wat in al sulke gevalle toepassing sou kon vind. Die ondersoek begin met ‘n algemene historiese en regsvergelykende oorsig, wat die konteks verskaf vir die analise van die posisie in die moderne Suid-Afrikaanse reg, en ooreenkomste tussen hierdie posisie en die benadering in ander jurisdiksies na vore bring. Die bepalings van sekere internasionale regsinstrumente wat spesifiek met stilswye handel, word ook ondersoek om te bepaal hulle van nut kan wees by die uitleg van konsepte wat in die Suid- Afrikaanse reg gebruik word. Die fokus van die studie verskuif dan na spesifieke, uitsonderlike gevalle waar die Suid- Afrikaanse reg outomaties ‘n openbaringsplig tussen partye erken. Prominente voorbeelde is versekeringskontrakte en koopkontrakte waar die merx ‘n verborge gebrek het. Hierdie gevalle is uitsonderings op die algemene reël dat kontrakspartye nie openbaringspligte het nie. Dit kom voor dat sekere gemeenskaplike beginsels van toepassing is in sekere van die uitsonderingsgevalle, en dit word ondersoek hoekom hierdie beginsels gereeld na vore tree. Dit word ook voorgestel dat die aard van die verhouding tussen die partye die onderliggende rede is waarom ons reg openbaringspligte in hierdie spesifieke omstandighede oplê. Aandag word dan geskenk aan die regterlike ontwikkeling van die regsposisie ten opsigte van stilswye in gevalle wat nie by een van die bogenoemde erkende uitsonderings tuisgebring kan word nie. Die remedies beskikbaar aan partye wanneer hulle deur ‘n ander se stilswye benadeel is, word hier geïdentifiseer en ondersoek. Hierdie remedies is die kontraktuele remedie van aanvegting (moontlik gevolg deur teruggawe) en die deliktuele remedie van skadevergoeding. ‘n Onderskeid word ook getref tussen die hantering van stilswye in die kontraktereg en die benadering wat in die deliktereg gevolg word. Aan die hand van hierdie onderskeid word die vereistes vir albei remedies bepreek. Die belangrikste uitsprake van die howe in gevalle wat nie by die spesifieke, uitsonderlike kategorieë tuisgebring kan word nie, word dan oorweeg. Dit is duidelik dat die howe in die konteks van hierdie residuele gevalle soortgelyke beginsels geïdentifiseer het as dié wat voorgekom het by gevalle soos versekering en koop. Uit hierdie uitsprake blyk dit ook duidelik dat die howe ag slaan op soortgelyke standaarde as dié wat in die historiese en vergelykende oorsig na vore getree het. In dié verband is die aard van die partye se verhouding en die goeie trou beginsel veral prominent. Ten slotte word oorweeg of die beginsels en elemente wat hierbo geïdentifiseer is, gebruik kan word om ‘n algemene standaard te ontwikkel wat gebruik sal kan word om te bepaal of ʼn openbaringsplig ontstaan. Die gevolgtrekking word bereik dat so ‘n algemene standaard nie noodwendig die beste oplossing is nie. Die oënskynlik gefragmenteerde hantering van stilswye in die Suid-Afrikaanse het tot dusver tog regsontwikkeling bevorder, en sal waarskynlik ook voortgaan om dit te doen. ʼn Aantal kernoorwegings kan wel geïdentifiseer word, wat dan sou kon dien as moontlike standaarde wat regsontwikkeling verder sou kon bevorder, en wat deur die howe toegepas sou kon word na gelang van die spesifieke omstandighede van elke saak.

Thesis (LLD)--Stellenbosch University, 2014. / ENGLISH ABSTRACT: This thesis examines the contractual remedy of specific performance in South African law. It looks closely and critically at the discretionary power of the courts to refuse to order specific performance. The focus is on the considerations relevant to the exercise of the judicial discretion. First, it emphasises the tension between the right and the discretion. It is argued that it is problematical for our courts to refuse to order specific performance in the exercise of their discretion. The underlying difficulty is that the discretion of the court to refuse specific performance is fundamentally in conflict with the supposed right of the plaintiff to claim specific performance. The thesis investigates the tenability of this open-ended discretionary approach to the availability of specific performance as a remedy for breach of contract. To this end, the thesis examines less complex, more streamlined approaches embodied in different international instruments. Comparison between different legal systems is also used in order to highlight particular problems in the South African approach, and to see whether a better solution may be borrowed from elsewhere. An investigation of the availability of this remedy in other legal systems and international instruments reveals that the South African approach is incoherent and unduly complex. In order to illustrate this point, the thesis examines four of the grounds on which our courts have refused to order specific performance. In the first two instances, namely, when damages provide adequate relief, and when it will be difficult for the court to oversee the execution of the order, we see that the courts gradually attach less or even no weight to these factors when deciding whether or not to order specific performance. In the third instance, namely, personal service contracts, the courts have at times been willing to grant specific performance, but have also refused it in respect of highly personal obligations, which is understandable insofar as the law wishes to avoid forced labour and sub-standard performances. The analysis of the fourth example, namely, undue hardship, demonstrates that the courts continue to take account of the interests of defendants and third parties when deciding whether or not to order specific performance. This study found that there are certain circumstances in which the courts invariably refuse to order specific performance and where the discretionary power that courts have to refuse specific performance is actually illusory. It is argued that our law relating to specific performance could be discredited if this reality is not reflected in legal doctrine. Given this prospect, possible solutions to the problem are evaluated, and an argument is made in favour of a simpler concrete approach that recognises more clearly-defined rules with regard to when specific performance should be refused in order to provide coherency and certainty in the law. This study concludes that a limited right to be awarded specific performance may be preferable to a right which is subject to an open-ended discretion to refuse it, and that an exception-based approach could provide a basis for the simplification of our law governing specific performance of contracts. / AFRIKAANSE OPSOMMING: Hierdie tesis ondersoek die benadering tot die kontraktuele remedie van spesifieke nakoming in die Suid-Afrikaanse reg. Die diskresionêre bevoegdheid van howe om spesifieke nakoming te weier word van nader en krities aanskou. Die fokus is op die oorwegings wat ‘n rol speel by die uitoefening van die diskresie. Eerstens beklemtoon die tesis die spanning tussen die reg en die regterlike diskresie. Daar word aangevoer dat dit problematies is dat ons howe ‘n eis om spesifieke nakoming kan weier in die uitoefening van hul diskresie. Die onderliggende probleem is dat die hof se diskresie om spesifieke nakoming te weier, fundamenteel in stryd is met die sogenaamde reg van die eiser om spesifieke nakoming te eis. Die tesis ondersoek die houbaarheid van hierdie onbelemmerde diskresionêre benadering tot die beskikbaarheid van spesifieke nakoming as ‘n remedie vir kontrakbreuk. Vervolgens ondersoek die tesis die vereenvoudigde benaderings ten opsigte van spesifieke nakoming beliggaam in verskillende internasionale instrumente. Vergelyking tussen verskillende regstelsels word ook gebruik om spesifieke probleme in die Suid- Afrikaanse benadering uit te lig, en om vas te stel of daar ‘n beter oplossing van elders geleen kan word. ‘n Ondersoek van die aanwesigheid van hierdie remedie in ander regstelsels en internasionale instrumente onthul dat die Suid-Afrikaanse benadering onsamehangend en onnodig ingewikkeld is. Om hierdie punt te illustreer, ondersoek die tesis vier gronde waarop die remedie tipies geweier word. In die eerste twee gevalle, naamlik, wanneer skadevergoeding genoegsame regshulp sal verleen en wanneer dit vir die hof moeilik sal wees om toesig te hou oor die uitvoering van die bevel, sien ons dat die howe geleidelik minder of selfs geen gewig aan hierdie faktore heg wanneer hulle besluit of spesifieke nakoming toegestaan moet word nie. In die derde geval, naamlik, dienskontrakte, sien ons dat die howe bereid is om in sekere gevalle spesifieke nakoming toe te staan, maar egter nie spesifieke nakoming ten opsigte van hoogs persoonlike verpligtinge gelas nie, wat verstaanbaar is tot die mate wat ons reg dwangarbeid en swak prestasies wil vermy. Die analise van die vierde grond, naamlik, buitensporige benadeling, toon dat die howe voortgaan om die belange van die verweerder en derde partye in ag te neem wanneer hulle besluit om spesifieke nakoming te beveel. Die studie het bevind dat daar sekere omstandighede is waarin die howe nooit spesifieke nakoming toestaan nie en die diskresie eintlik afwesig is. Derhalwe word dit aangevoer dat die geldende reg wat betref spesifieke nakoming weerlê kan word indien hierdie werklikheid nie in die substantiewe reg weerspieël word nie. Gegewe die vooruitsig, word moontlike oplossings ondersoek, en ‘n argument word gemaak ten gunste van ‘n eenvoudiger konkrete benadering wat meer duidelik gedefinieerde reëls erken met betrekking tot wanneer spesifieke nakoming geweier moet word ten einde regsekerheid en eenvormigheid te bevorder. Die gevolgtrekking is dat ‘n beperkte aanspraak op spesifieke nakoming meer wenslik is as ‘n reg op spesifieke nakoming wat onderhewig is aan die hof se oorheersende diskresie om dit te weier, en dat ‘n uitsondering-gebaseerde benadering as ‘n basis kan dien vir die vereenvoudiging van ons reg rakende spesifieke nakoming.

The demand for domestic services has increased globally during the last two decades and today domestic workers constitute a large portion of the workforce, especially in developing countries. Yet domestic work is undervalued and poorly regulated, and many domestic workers are underpaid and unprotected. This has been recognised by international organisations, such as the International Labour Organisation (ILO). The struggle of domestic workers has lead to improvements to their rights and conditions in many countries. Yet working conditions and wages remain poor in many countries, including South Africa. This booklet sheds light on this problem. There are 888 000 domestic workers in South Africa, which accounts for 7% of total formal employment (Labour Force Survey, May 2010). The vast majority of these workers do not belong to a trade union and do not partake in collective bargaining or are unaware of their rights to bargain and to join trade unions. The South African Domestic Services and Allied Workers Union (SADSAWU) is a trade union for domestic workers in South Africa and campaigns for the improvement of rights and conditions of domestic workers. It recognises that it is not as powerful as it could be and it would have a bigger influence on the legislating authorities if there were more members which were strongly organised. There are numerous difficulties to organise domestic workers, some are related to the education level of the workers and some lies within the nature of the work (many are live-in workers and therefore have no contact with other domestic workers as a natural part of their work). However, SADSAWU has over many years built up a lot of experience and developed a solid vision to build a strong domestic workers movement, and is therefore well placed to fight these difficulties. This booklet also serves as an organising tool for domestic workers. The aim is to raise awareness of the rights of domestic workers and to encourage workers to organise.

The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.