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

LL.M. / Modern competition occurs in a global market and straddles various state borders. This international dimension of competition law (antitrust law) subsequently raises concerns whether one state can apply its competition rules extraterritorially against an undertaking in another country, when the latter behaves in an anti-competitive manner that, for example, have adverse effects in the territory of the former. In the context of such extraterritorial enforcement, the concept of the Effects doctrine as created and developed in the antitrust jurisprudence of the United States plays an important role. In this dissertation the issue of extraterritorial antitrust jurisdiction is investigated in an attempt to suggest a suitable basis for assertion of such jurisdiction. The evolution of the Effects doctrine in the United States and its further development and qualification in American Antitrust jurisprudence is addressed as well as its interrelation with the concept of international comity. Thereafter the basis for assertion of extraterritorial antitrust jurisdiction by the European Community is investigated. In this regard the long favoured Single Economic Entity Theory is addressed as well as the development of a form of Effects doctrine by the European Commission which eventually culminated in acceptance of an “Effects/Implementa-tion doctrine” by the European Court of Justice in the Wood Pulp case. It should however be noted that the scope of the extraterritorial application of the competition rules of the European Community is extended by the EC Merger Control Regulation 139/2004. Thus, the jurisdictional range of the Merger Control Regulation is considered in chapter 4. It is submitted that although the Effects doctrine is competent as sole basis for exercising extraterritorial antitrust jurisdiction, it has various disadvantages, inter alia that it evokes conflict between states due to differences in competition law and policy and various states interests. Consequently co-operation on a bilateral level is investigated in chapter 5 as a possible solution. Finally, the South African stance on the extraterritorial enforcement of its Competition Act 89 of 1998 is investigated in chapter 6 and certain observations and suggestions are made for future exercise of extraterritorial antitrust jurisdiction.

Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.

The development of private divorce mediation appears to offer a friendly and informal alternative to the "hostile" adversarial divorce. A close analysis of its claims, however, shows them to be largely unproven. Urgent attention should therefore be given to the philosophical base of the movement. There is also a need for empirical research and for standardised training. Further unanswered questions relate to the part to be played by different professions, and to professional ethics. It is submitted that the appointment of Family Advocates is a step in the right direction but that the establishment of a full Family Court will best protect children's interests.

No abstract available. / Dissertation (LLM (Mercantile Law))--University of Pretoria, 2006. / Mercantile Law / unrestricted

The primary purpose of this treatise is to consider the development, analysis and application of the review test in relation to arbitration awards which is set out in the Constitutional Court (CC) judgment of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (Sidumo).1 This judgment has already had significant implications for employers and employees alike and will continue to do so in the future. Many lawyers, trade unions and employees launch or oppose review applications in the Labour Court on behalf of employers or employees. In observing this litigation process, it became clear that practitioners make two fundamental mistakes. Firstly they do not appreciate the distinction between reviews and appeals and / or, secondly, they misconstrue the Sidumo test in seeking to review or defend an arbitration award. This causes serious prejudice to their clients and results in delays in labour dispute resolution which is contrary to the spirit and purpose of the Labour Relations Act,2 as amended (LRA). The application of the Constitution of the Republic of South Africa,3 legislation and case law is fundamental to the review of arbitration awards and the role of arbitrators in that process. The common thread is the notion of “reasonableness” and “fairness” which has been and continues to be of significant importance in the assessment of arbitration awards. During the course of this research paper, reference is been made to the Constitution, legislation, case law, academic papers and journal articles. The references are mostly precedent setting and authoritative in relation to reviewable irregularities in arbitration awards. The purpose of this paper is guide and assist labour court practitioners to analyse arbitration awards and identify reviewable irregularities in order to determine whether it meets the bandwidth of reasonableness within the context of the Constitution and LRA. In doing so, practitioners will be able to successfully review awards without unduly delaying the dispute resolution process. During the research process, one of the important findings was that there has been inconsistent jurisprudence relating to the application of the grounds of review and the review test itself as per Sidumo which blurred the distinction between reviews and appeals. Many review applications failed to attack the reasonableness of the decision of the commissioner, but rather focused on the cogency of the evidence presented at the arbitration and thereby incorrectly invoking an appeal instead of a review. A further challenge was that the jurisprudence created a perception amongst practitioners that there was a decline in the Sidumo test. This approach was inherently incorrect and recent judgments have clarified and upheld the Sidumo test in review applications.4 The recent landmark judgments by the Supreme Court of Appeal (SCA) clarified that reasonableness was not a separate ground of review but was to be suffused with the grounds of review set out in section 145(2)(a) of the LRA.5 Lastly, Sidumo did not postulate the bandwidth of reasonableness and it was left to the courts to determine the extent of judicial interference. There are various factors to be considered and CC judgments have provided much needed guidance on how to determine reasonableness. In essence, a wrong decision per se is not reviewable. At best, erroneous reasons or lack of proper reasons may serve as evidence for a reviewable ground that will together with other considerations require compelling proof to justify a court’s interpretation that the decision reached is not one that a reasonable decision could have reached.7 In order to obtain an award on the basis of the Sidumo test, the 4 Andre Herholdt v Nedbank [2013] 11 BLLR 1075 (SCA); Goldfields Mining South Africa (Pty) Ltd v CCMA [2014] BLLR 20 (LAC). applicant must thus assail not only the commissioner’s reasons, but also the result of the award.

The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.

The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.

The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.

South Africa’s employment law has undergone more frequent and dynamic changes than any area of the law, in recent years. The ability of employers and employees to regulate their respective rights and duties vis-à-vis each other by independent agreement has been progressively whittled down by statutory intervention. In so limiting the capacity of parties to the employment relationship to regulate the nature of their relationship, South Africa has followed development in Western industrialised nations. Against this background, the drafters of the Labour Relations Act1 (LRA), as amended, proposed a comprehensive framework of law governing the collective relations between employers and trade unions in all sectors of the economy. The LRA2 created a specialised set of forums and tribunals to deal with labour and employment related matters. It established Bargaining Councils, the Commission for Conciliation Mediation and Arbitration (CCMA), the Labour Court (LC) and the Labour Appeal Court (LAC). It also created procedures designed to accomplish the objective of simple, inexpensive and accessible resolution of labour disputes. In redesigning labour law, the legislature decided that some disputes between employers and employees should be dealt with by arbitrators and others by judges. It is this distinction that resulted in the creation of the CCMA and the Labour Court to perform arbitration and adjudication respectively. The result of adjudication is generally subject to appeal to a higher court. The result of arbitration is generally subject to review. Arbitration was given statutory recognition in South Africa by the Arbitration Act3. That Act provides a framework within which parties in dispute may if they wish appoint their own “judge” and supply him or her with their terms of reference tailored to their needs. With the foregoing in mind, the purpose of this work is the provision of a selection of landmark cases that dealt with the review function of CCMA awards. This selection 1 Act 66 of 1995 as amended comprises of landmark judgments of the different courts of the land. The study uses, as it departure point, legislative framework to elicit the extent to which review is extended to the litigants. Apart from looking at the legislative provisions towards review grounds, reference is made to specific landmark judgments that have an effect on this subject in order to provide a comprehensive and explicit picture of how CCMA arbitration awards may be taken on review. This study focuses on substantive law developed by the Labour Court, High Court, Supreme Court of Appeal and finally the Constitutional Court. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of review could lead to failure to achieve the objectives of the study. It looks at specific South African case law, judgments of the courts and the jurisprudence in the field of employment law so that the reader is presented with a clearer picture of recent developments in addressing review of arbitration awards. The concluding remarks are drawn from a variety of approaches used by the authorities in the field of employment law in dealing with review of CCMA arbitration awards and issues for further research are highlighted.