Text in Afrikaans / Summaries in English and Afrikaans / The statutory definition of the lock-out encompasses certain acts (inter alia termination of contracts of employment) which must be executed by the employer with a certain purpose. The Appellate Division has recently found that the employment relationship not necessarily terminates similarly to the common law contract of employment, but may subsist after termination of the contract of employment. The industrial court does not easily accept that it has been deprived of its unfair labour practice jurisdiction where terminations of employment take place in consequence of a lock-out. The motive of the employer seems to be decisive. In line with both the trend in first world countries and principles established by the courts in South Africa, the Constitution and especially recent labour legislation significantly curtail the bargaining power of the employer because it is progressively being believed that the employer has sufficient economic power to his disposal. / Die omskrywing van die uitsluiting in wetgewing omvat sekere handelinge {onder andere beeindiging van dienskontrakte) wat deur die werkgewer met 'n sekere doel verrig moet word. Die Appelhof het onlangs beslis dat die diensverhouding na beeindiging van die dienskontrak kan bly voortduur en nie noodwendig soos die gemeenregtelike dienskontrak ten einde loop nie. Die nywerheidshof aanvaar ook nie geredelik dat hy in geval van diensbeeindiging wat volg op 'n uitsluiting van sy onbillike arbeidspraktyk jurisdiksie ontneem is nie. Die motief van die werkgewer blyk hier deurslaggewend te wees. In lyn met sowel die ne1g1ng in eerstew~reldse lande, asook beginsels reeds deur die howe in Suid-Afrika gevestig, word die bedingingsmag van die werkgewer ingevolge die Grondwet en veral onlangse arbeidswetgewing betekenisvol ingekort omrede toenemend aanvaar word dat die werkgewer oor voldoende ekonomiese mag beskik. / Law / LL.M.

Thesis (MComm)--Stellenbosch University, 2013. / This study will focus on conflict within organisations in the attempt to gain clarity on this very common phenomenon and to link conflict to financial cost. By gaining a financial grip on conflict this study attempts to give the reader the tools with which to estimate parameters and calculate financial costs within their own conflict situations. The reader will also be able to motivate the need for management to invest in pre-emptive conflict resolution structures. The study will focus on a sample population from the mining sector in South Africa. A multiple case study approach is used in order to understand the intricacies that make conflict a variable, situation-dependant occurrence after which data is collected to calculate a preliminary estimate of the financial costs incurred by the organisation due to hostilities within the sample population. The results of the study indicate that the samples chosen experience different types of conflict and also manage the conflict in different ways. The calculations reflect that conflict impacts on the organisation in a fiscally prominent way. Each case has its own unique major contributors to monetary costs incurred due to conflict depending on case specific attributes. The results clearly show that the financial cost of conflict has a severe impact on an organisation. The structured analysis provided by the study gives the reader a method with which to calculate the costs of conflict within other cases where conflict is assumed to have a negative impact on performance. In this way it becomes easier for the practitioner to effectively motivate for preventative action.

The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.

Text in Afrikaans / Summaries in English and Afrikaans / The statutory definition of the lock-out encompasses certain acts (inter alia termination of contracts of employment) which must be executed by the employer with a certain purpose. The Appellate Division has recently found that the employment relationship not necessarily terminates similarly to the common law contract of employment, but may subsist after termination of the contract of employment. The industrial court does not easily accept that it has been deprived of its unfair labour practice jurisdiction where terminations of employment take place in consequence of a lock-out. The motive of the employer seems to be decisive. In line with both the trend in first world countries and principles established by the courts in South Africa, the Constitution and especially recent labour legislation significantly curtail the bargaining power of the employer because it is progressively being believed that the employer has sufficient economic power to his disposal. / Die omskrywing van die uitsluiting in wetgewing omvat sekere handelinge {onder andere beeindiging van dienskontrakte) wat deur die werkgewer met 'n sekere doel verrig moet word. Die Appelhof het onlangs beslis dat die diensverhouding na beeindiging van die dienskontrak kan bly voortduur en nie noodwendig soos die gemeenregtelike dienskontrak ten einde loop nie. Die nywerheidshof aanvaar ook nie geredelik dat hy in geval van diensbeeindiging wat volg op 'n uitsluiting van sy onbillike arbeidspraktyk jurisdiksie ontneem is nie. Die motief van die werkgewer blyk hier deurslaggewend te wees. In lyn met sowel die ne1g1ng in eerstew~reldse lande, asook beginsels reeds deur die howe in Suid-Afrika gevestig, word die bedingingsmag van die werkgewer ingevolge die Grondwet en veral onlangse arbeidswetgewing betekenisvol ingekort omrede toenemend aanvaar word dat die werkgewer oor voldoende ekonomiese mag beskik. / Law / LL.M.

The Labour Relations Act 66 of 1995 provides an elaborate dispute resolution system which seeks to resolve disputes in a speedy and cost-effective manner. However, this system is faced with a number of challenges. The application of common law and administrative law causes tension between the Labour Court and civil courts. It creates uncertainty in the development of our labour law jurisprudence and also leads to the problem of forum shopping. These problems in effect undermine the objectives of the Act. This dissertation analyzes problems in the LRA and other legislations leading to forum shopping. It also analyses the view of the courts on this problem and further expounds a number of possible solutions. The analysis revolves mainly around an observation of South African literature and case law. / Mercantile Law / LL.M.

The Labour Relations Act 66 of 1995 provides an elaborate dispute resolution system which seeks to resolve disputes in a speedy and cost-effective manner. However, this system is faced with a number of challenges. The application of common law and administrative law causes tension between the Labour Court and civil courts. It creates uncertainty in the development of our labour law jurisprudence and also leads to the problem of forum shopping. These problems in effect undermine the objectives of the Act. This dissertation analyzes problems in the LRA and other legislations leading to forum shopping. It also analyses the view of the courts on this problem and further expounds a number of possible solutions. The analysis revolves mainly around an observation of South African literature and case law. / Mercantile Law / LL.M.

This Master of Laws dissertation is a treatise of “The efficacy of Alternative Dispute Resolution (ADR) in labour disputes: a critical comparative analysis of Botswana, South Africa (RSA) and Zimbabwe.” Alternative Dispute Resolution hereinafter referred to as (“ADR”) has attracted so much research ado worldwide with policy makers alive to its possibilities in so far as it ought to shed off the burden of the courts in handling disputes. Courts are considered inundated with unresolved cases taking many years to finalise. ADR is therefore touted, not only the panacea, but the cheaper, efficient and effective alternative to normal court process. This study was saddled with the common challenges of definition, scope and methodology as does most scientific studies, especially to locate the concept ADR in the plethora of views from prominent exponent-s of the discipline. This study labored on the considered view that ADR is essentially an ‘out of court settlement approach to dispensing with disputes involving an attempt by disputants to rope in an impartial third party to aid finality to the respective wrangle. The lack of a methodological approach to treat this subject matter, made this study more challenging. The study had to therefore rely on a hypothetical model developed after gleaning through various scholarly views 1 that sought to treat the subject of ADR efficacy in labour dispute resolution. The study contented with the strongly held view 2 that ADR is an efficacious approach in resolving disputes outside the court system. As to whether this was the case in Botswana, RSA and Zimbabwe in so far as labour dispute resolution is concerned was the major challenge this study was seized with? A model was formulated which envisaged that efficaciousness of ADR may be achieved if three conditions or criteria are present within a jurisdiction, namely (1) ADR Background Conditions that comprise (a) adequate legislative and political support; (b) Supportive institutional and cultural norms, (c) adequate and competent manpower, (d) sufficient funding support, and (e) power-parity of disputants; (2) ADR Program Design comprising of (a) Planning and preparation and (b) Operations and implementation and finally (3) ADR Measures (a) Client satisfaction; (b) Time efficient; (c) Cost saving and (d) Settlement & enforcement. This study measured the situations obtaining in the three countries using these three-pronged criteria. In all three measures3 this study found that although all the three countries still have a long way before their ADR became as efficacious as would be reasonably possible, RSA has made many strides such as legislative enactments immediately upon attaining independence that sought to address the injustices of the past and thereby installing structures for enforcing industrial democracy 4, while Botswana and Zimbabwe took 5 years 5 and over 10 years 6 respectively after attaining independence. RSA established an independent body for dispensing with labour dispute settlement7 while Botswana8 and Zimbabwe 9 are still reluctant to do so, relying rather on their labour ministries often marinated in bureaucratic bottlenecks hence stalling efficacy of ADR. While RSA makes effort to provide adequate and competent manpower because of sufficient funding, Botswana and Zimbabwe still struggle to dispense with disputes under their labour departments who are either inadequately skilled or also accused of favouritism in the case of Zimbabwe.10 All the three countries are regarded as unequal societies which tends to sway the power-parity of disputants with capitalists still wielding unbridled powers in dispute outcomes. South Africa enacted section 143 to the Labour Relations Act 11 which empowers the Director of CCMA to certify an arbitral award, giving it the same force as an order of the Magistrate Court. This has cut off the time and administrative burden of having to register an arbitral award with the court so as to obtain writs of executions and enforce it, a practice which is still prevalent in Zimbabwe. The Department of Labour in South Africa has made funding available to the CCMA to assist employees who are not in a financial position to enforce awards in their favour.12 The funding is aimed at employees who are too indigent to afford the costs of enforcement.13 These employees are deemed to be: (a) Employees who earn below the earnings threshold (currently at R205 433.30 per annum) – proof of income will be required by the CCMA. There is no record regarding enforcement or ease of enforcement of ADR outcomes in Botswana and Zimbabwe or at least this study is aware of. The governments of Botswana and Zimbabwe have been accused of using a heavy hand in determining wages, the right to strike and often curtailing union power through declaring certain sectors essential services. RSA’s Commission for Conciliation, Mediation and Arbitration hereinafter after referred to as (the “CCMA”)14 runs an electronic system of case management by which cases are screened and assigned commissioners whereas Zimbabwe and Botswana still rely on manual systems often inefficiently managed especially when it comes to allocating matters to ADR interventionists.15 In Zimbabwe the challenge of resources is acute often the Labour Officers lacking a simple photocopier and postage stamps to dispense with administration of disputes. This dissertation found that Botswana and Zimbabwe lack publicly available information from which to infer the efficaciousness of ADR practices therein. Measuring client satisfaction, efficiency and cost effectiveness, enforcement and settlement has not been tackled with ease, which was different when it came to RSA. This study argues that RSA’s ADR is efficacious rated at 75% attainment of settlement of disputes, despite accusations of failing to offer disputants options and job retention at the end of ADR intervention. Botswana and Zimbabwe on the measures raised above are not yet close to achieving efficaciousness based on the above criteria. The challenges need to be addressed to ensure that in all three measures ADR affords Botswana, RSA and Zimbabwe disputants a cheaper, efficient and effective alternative to dispensing with labour disputes. This study concluded with recommendations arising from the three measures ADR Background Conditions; ADR Program Design and (3) ADR Measures could be implemented towards achieving an efficacious ADR regime for the three countries and beyond. / Mercantile Law / LL.M.