Law / LL.M.

Law / LL.M.

Thesis (MTech (Human Resource Management))--Peninsula Technikon, 2003 / The framework of the employment relationship is regulated by labour legislation. The relationship is known as the tripartite relationship, it is made up of the employer, employees normally represented by the union and the state. The state is responsible for the statutory and legislative framework within which this relationship is conducted.Legislation has been traditionally written in such a manner that only a selected group could understand and interpret it. The new dispensation in South Africa necessitated a move from the traditional manner in which legislation has been drafted to a more open and transparent format, which the general public can understand and comprehend. Plain language drafting that has been in use for the past 28 years intemationally is a method of drafting legislation which focuses on the reader or end-user.This study investigated the impact on comprehension and understanding levels of subjects when presented with a format of labour legislation that was redrafted using the guidelines of plain language drafting as opposed to the current format of the legislation.The research hypothesis was "Legislation will be more easily understood if redrafted in terms of plain language principles."An extensive literature review on plain language drafting, plain language principles and on mass communication was undertaken. The focal area in the literature review dealt with research that has been conducted on plain language drafting in labour legislation and on the theory of drafting and plain language.The empirical study was conducted at a model C type, senior secondary school in the Westem Cape with English speaking grade 11 students. The study tested the comprehension and understanding levels of the respondents 'In an experimental and control group environment. The experimental group receivedthe redrafted format of the legislation and the control group received the current format of the legislation.The results of the empirical study, conclusively demonstrated that the respondents in the experimental group who received the redrafted fonnat of the legislation, far exceeded the performance of the results that were achieved by the control group who received the current format of the legislation. The test results were exposed to various statistical measures to validate the research hypothesis. The findings of the statistical measures supported the research hypothesis.The findings of the empirical study concurred with the literature review and the research hypothesis; that when plain language drafting principles are applied to legislation, the reader more easily understands it.In conclusion the statistical tests have conclusively proved that, overall, plain language does improve comprehension of the legislation.

L.LM. (International Commercial Law) / Please refer to full text to view abstract

The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.

The aim of this treatise is to identify the income tax implications of the persons becoming South African tax residents. It will provide a clear understanding of the income tax implications for natural and non-natural persons wishing to take up residence in South Africa. The definition of “resident” in section 1 of the Income Tax Act, 1962, has a direct impact on the tax implications bearing down on any foreigner planning to reside within the Republic of South Africa, especially in relation to the prevention of the double taxation. The following issues or areas have been identified, these issues are summarised below. The persons receiving foreign pensions may be exempt from normal tax under section 10 (1)(gC) and in terms of the tax treaty, they may also escape taxation in their former country of residence. The treatise will look at various treaties that exist between the South Africa and other countries and to discuss the taxing rights. There is a case of double non-taxation and good reason for immigrants to come and avoid tax in South Africa. It is suggested that the legislation and the double tax agreements should be amended. A person who becomes a resident will receive a step-up in base cost for assets other than South African immovable property and assets of a permanent establishment in South Africa under paragraph 12(2)(a) of the Eighth Schedule. The main purpose of the legislation is to ensure that these assets are correctly valued, determining the base cost, when the person becomes a tax resident. The valuation of these assets carries with it the problem of securing sufficient evidence long after the valuation. Most of the tax planning for such for immigrants revolves around estate duty and donations tax. The person would donate his assets to an offshore discretionary trust before taking up residence in South Africa. The advantage is that donations tax will be avoided because there are exemptions in terms of section 56, for assets acquired before becoming a resident. The income and capital gains vested in nonbeneficiary can be taxed in the hands of the donor in terms of section 7 and paragraph 72 of the Eighth Schedule. The donor should be aware of the antiavoidance measures; section 7(2) to 7(8) and paragraph 72 of the Eighth Schedule will deem a different person other than the person who is entitled to the income to be taxable on that person. The income and gains received by the beneficiary of a trust can be taxable in the hands of the donor. The assets owned by the trust will be sheltered from South African estate duty. The foreign discretionary trust, as a non-resident, will not be liable for tax in South Africa. The beneficiaries of such a trust will be liable for income tax from the trust distributions, once they have acquired a vested right to the income. The liability of income tax is deferred to the year when the trustees decide to make distributions. The distribution by the trustees in a subsequent year creates a delay or postponement for taxes which should be paid by the beneficiaries. The trustees are most likely to make distributions in a tax year when the tax rates are low. There are tax opportunities for the immigrants who intend to take up residence. The tax resident might be subject to withholding taxes on foreign income from the previous country of residence, but might be subject to Double Tax Agreement between South Africa and other countries.

M.Ed. / Please refer to full text to view abstract

M.A. (Clinical Psychology) / Please refer to full text to view abstract

LL.M. / This is the exploration of the topic of nationalisation of the country’s mines and mineral wealth. The discussion studies the impact of the Minerals and Petroleum Resources Development Act 28 of 2002 (hereafter referred to as the MPRDA) and other relevant legislation on the nationalisation discussion. Ultimately the discussion examines whether nationalisation finds any support within the South African Constitution or not. The discussion begins with a study of the history of mining and minerals rights; an exploration is then undertaken on the meaning of property and whether mineral rights can be understood to mean property. The discussion then progresses to the study of the relevant provisions of section 25 of the South African Constitution in an effort to determine whether nationalisation is justifiable in terms of the South African Constitution. What is largely considered in this case are the recent findings of the Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 CC case as well as other relevant and emerging case law on the subject matter.

LL.M. (Banking Law) / Please refer to full text to view abstract