Spelling suggestions: "subject:"judicial review -- south africa"" "subject:"judicial review -- south affrica""
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Natural justice for employees : the problem of judicial review in employment relations.Khoza, Emmanuel Mduduzi. January 1995 (has links)
Work plays a dominant role in modern society. It is through work that the
economic well being of any society is sustained. Workers who perform various
tasks contribute to the well being of society as well as to their betterment as
individuals. Thus paid employment has assumed a prominent role in modern
society. It is an incentive on individuals to contribute to socio-economic
welfare, while their needs and aspirations as individuals are also satisfied. But
for an orderly society to exist, there has to be a subjection of some members
of society by others, a division between those who have the social mandate
(express or tacit) to exercise power for and on behalf of others. Thus work
relations comprise those who exercise managerial power(employers) and those
subject to managerial power (employees). In broader political relations, the
task of social management is performed by the state.
However those exercising managerial functions do not have unfettered
discretion. Power should be exercised within acceptable social limits and be
used to achieve realistic social goals. Thus it has been felt that the laws should
always ensure that the incumbents of governmental power do not exceed the
scope of their power or abuse it. Hence the process of judicial review. This
gives the courts the power to review the decisions of administrative authorities
in order to protect individual citizens who might be adversely affected by bad
administrative decisions. This analogy has been applied in employment
relations in order to protect individual employees against arbitrary dismissal
by employers. It has been held that an employee cannot be dismissed without
a valid reason and in compliance with a fair procedure.
The question asked here is whether this is sufficient to ensure
substantive employment protection. Is judicial review really effective in
employment relations? It is observed that judicial review in labour law has
many limitations as compared to the administrative law context. First, it comes
face to face with the problem of the public/private law distinction, which holds
the employment relationship to be fundamentally a private relationship between
the employer and employee. This complicates the application of public law
remedies in supposedly private relations, where the parties are assumed to
have freedom of contract. The second problem involves the debate as to
whether the state should impose many restrictions on the modern corporation
or there should be minimal state intervention to allow the corporation to
function in accordance with the labour market demands and economic
necessity. It is concluded that the law of unfair dismissal has consequently
been put in a dilemma. While the need has been perceived to curb the
arbitrary use of managerial power by employers, substantive employment
protection can hardly be guaranteed. The problem seems to be that of striking
the balance between the interests of employees, employers and society at
large. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1995.
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Judicial interpretation and enforcement of socio-economic rights in South AfricaMcLean, Kirsty Sheila January 2007 (has links)
No description available.
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Sidumo revisitedBoyens, Marthinus Johannes January 2015 (has links)
The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
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Unreasonableness as a ground for judicial review in the South African administrative lawNchabeleng, Charles Phadime January 2007 (has links)
Thesis (LLM.) -- University of Limpopo, 2007 / Refer to document
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Normatiewe aspekte van die vertolking van 'n akte van menseregteHefer, Josephus Johannes Francois 06 1900 (has links)
Wetgewing wat onbestaanbaar is met die bepalings van
Wet 200 van 1993 as die hoogste reg is nietig tensy
geoorloof volgens die maatstawwe van art 33 (1) 1 en die
Konstitusionele Hof en die provinsiale en plaaslike
afdelings van die Hooggeregshof is bevoeg om dit ongeldig
te verklaar. Die beoordeling van die geldigheid van
wetgewing waardeur inbreuk gemaak word op 'n Fundamentele
Reg of Vryheid in Hoofstuk 3 verleen 1 vereis in eerste
instansie die vertolking van die betrokke bepaling van die
Hoofstuk. In die lig van die besondere karakter van 'n
grondwet en die gebrek aan omlyning van die verleende regte
en vryhede 1 moet die vertolking nie volgens geykte metodes
geskied nie I maar wel doelgerig aan die hand van die
waardes onderliggend tot die Handves as geheel. Waardes wat
nie herleibaar is tot die grondwet self nie en die
persoonlike filosofiee van die regters behoort die howe
egter nie te beinvloed nie. / Legislation inconsistent with the provisions of Act 200 of
1993 as the supreme law is of no force and effect and the
Constitutional Court and the provincial and local divisions
of the Supreme Court may declare it invalid, unless it
complies with the criteria of a permissible limitation
under sec 33(1). Before the validity of legislation
impinging upon a Fundamental Right or Freedom conferred in
Chapter 3 can be considered, the relevant provision of the
Chapter must first be interpreted. In view of the special
nature of a constitution and the generality of the
conferred rights and freedoms, the ordinary methods of
interpretation should not be applied. Chapter 3 must be
interpreted purposively taking into account the values
underlying the Bill of Rights as a whole. Values not
founded in the Constitution and the personal philosophies
of the judges ought not to influence the courts. / Private Law / LL.M.
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Normatiewe aspekte van die vertolking van 'n akte van menseregteHefer, Josephus Johannes Francois 06 1900 (has links)
Wetgewing wat onbestaanbaar is met die bepalings van
Wet 200 van 1993 as die hoogste reg is nietig tensy
geoorloof volgens die maatstawwe van art 33 (1) 1 en die
Konstitusionele Hof en die provinsiale en plaaslike
afdelings van die Hooggeregshof is bevoeg om dit ongeldig
te verklaar. Die beoordeling van die geldigheid van
wetgewing waardeur inbreuk gemaak word op 'n Fundamentele
Reg of Vryheid in Hoofstuk 3 verleen 1 vereis in eerste
instansie die vertolking van die betrokke bepaling van die
Hoofstuk. In die lig van die besondere karakter van 'n
grondwet en die gebrek aan omlyning van die verleende regte
en vryhede 1 moet die vertolking nie volgens geykte metodes
geskied nie I maar wel doelgerig aan die hand van die
waardes onderliggend tot die Handves as geheel. Waardes wat
nie herleibaar is tot die grondwet self nie en die
persoonlike filosofiee van die regters behoort die howe
egter nie te beinvloed nie. / Legislation inconsistent with the provisions of Act 200 of
1993 as the supreme law is of no force and effect and the
Constitutional Court and the provincial and local divisions
of the Supreme Court may declare it invalid, unless it
complies with the criteria of a permissible limitation
under sec 33(1). Before the validity of legislation
impinging upon a Fundamental Right or Freedom conferred in
Chapter 3 can be considered, the relevant provision of the
Chapter must first be interpreted. In view of the special
nature of a constitution and the generality of the
conferred rights and freedoms, the ordinary methods of
interpretation should not be applied. Chapter 3 must be
interpreted purposively taking into account the values
underlying the Bill of Rights as a whole. Values not
founded in the Constitution and the personal philosophies
of the judges ought not to influence the courts. / Private Law / LL.M.
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The constitution, hermeneutics and adjudication : point of departure for substantive legal argumentRoss, Derrick Bernard 06 1900 (has links)
The Constitution stipulates that its value-commitments are to inform the
interpretation of statutes and the development of the common law and customary
law. Legislative construction and law-application generally are therefore to be
perceived as involving an axiological dimension.
Three hermeneutical traditions are dealt with to the end of clarifying the approaches
to be adopted in everyday legal• argumentation. The study culminates in the
adduction of leads for substantive !juridical argument in the process of statutory
interpretation and in handling common-law and customary-law sources. These
leads are shown to be functional byi way of a critical discussion of recent case law
and a conspectus of contemporary t~ought bearing on the nature of customary law.
The social dimension of the legal process is throughout underscored as a factor of
significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so
marked an attitude of a previous time, should be abjured to the extent that it is
disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist
perceptions as well as kindred stances are berated.
The penultimate chapter of this thesis suggests an encompassing approach to the
interpretation of statutes, comprised of a systematic tabulation of insights
previously garnered. The fmal chapter postulates that common law and customary
law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a
conceptual framework for dealing respectively with each of these sources. / Law / LL.D.
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The constitution, hermeneutics and adjudication : point of departure for substantive legal argumentRoss, Derrick Bernard 06 1900 (has links)
The Constitution stipulates that its value-commitments are to inform the
interpretation of statutes and the development of the common law and customary
law. Legislative construction and law-application generally are therefore to be
perceived as involving an axiological dimension.
Three hermeneutical traditions are dealt with to the end of clarifying the approaches
to be adopted in everyday legal• argumentation. The study culminates in the
adduction of leads for substantive !juridical argument in the process of statutory
interpretation and in handling common-law and customary-law sources. These
leads are shown to be functional byi way of a critical discussion of recent case law
and a conspectus of contemporary t~ought bearing on the nature of customary law.
The social dimension of the legal process is throughout underscored as a factor of
significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so
marked an attitude of a previous time, should be abjured to the extent that it is
disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist
perceptions as well as kindred stances are berated.
The penultimate chapter of this thesis suggests an encompassing approach to the
interpretation of statutes, comprised of a systematic tabulation of insights
previously garnered. The fmal chapter postulates that common law and customary
law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a
conceptual framework for dealing respectively with each of these sources. / Law / LL.D.
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A critical evaluation of the independence of the Office of the Chief Justice and its role in promoting judicial transformation in South AfricaPhatshwane, Rebaone Jeremia 07 1900 (has links)
The legislative supremacy of Parliament has dominated the constitutional law of South Africa for a very long time. In the pre-constitutional era, the judiciary had no power to question the deeds of Parliament. Despite the need for the judiciary to be independent from the two other governmental branches to execute its function effectively, it was surely dependent on them. However, the creation of the Office of the Chief Justice (OCJ) as a separate governmental department by the Constitutional Seventeenth Amendment Act, read together with Superior Court Act, mandated by the requirements of a supreme Constitution (and not Parliament), changed things so that the judiciary is no longer dependent on government for its day-to-day administration. This thesis examines the independence of the OCJ and its role in promoting judicial transformation in the new South Africa. / Public, Constitutional and International Law / LL. M. (Human Rights Law)
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Minority rights and majority politics : a critical appraisalDent, Kate Jean 22 August 2016 (has links)
In the interplay between protection of rights and majoritarianism, the court is the arena. This research focuses on the conflicting role of the court within a constitutional democracy and a contestation of the counter-majoritarian dilemma that emerges from such a role. The counter-majoritarian dilemma centres on the idea that judges overturning decisions of the legislature through judicial review undermines democracy by thwarting the will of the majority through a subjective reading of abstract constitutional principles.
As a point of departure, the counter-majoritarian dilemma is contested by revealing that the court can be seen as a democratically consistent institution if democracy can be reconceptualised.
The examination of the South African jurisprudential climate and the adjudicative guidelines followed by the court suggests a rejection of such anti-democratic contention. The court upholds the commitments consented to at the time of the Constitution’s adoption and adjudication is reflective of the values undertaken by the country in reaction to its past. Within these values, minority rights can find a lifeline. Thus minority rights can exist through the implications of majoritarian consent. This research further identifies, in response to the counter-majoritarian dilemma, a constraining self-consciousness on the part of the court and an acute awareness of the court’s precarious role within a democratic infancy. The core of the counter-majoritarian dilemma is the view that interpretative indeterminacy of the Constitution means that the will of the people could be substituted for judicial preference. Through the examination of the court’s interpretative strategies and judicial subjectivity, this research suggests that within judicial subjectivity, adjudication continues to be reflective of the will of the people. Far from a constraining and mechanistic interpretation to avoid judicial subjectivity, the research reveals that open and non-formalist interpretative strategies are necessary to effectuate democratic conciliation within the judicial mandate. The results of this research suggest that, far from being a democratically deviant institution, the court in the current South African jurisprudential context, is the most suited to uphold the concept of democracy. / Jurisprudence / LL. M.
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