It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.

In the South African Social Security Agency (SASSA) Annual Report of 2011/2012 it is stated that there were more than 15 million social grants paid out to needy beneficiaries of which 10 927 731 were Child Support Grants. A major challenge that is continually being addressed is the management and administration of these grants. In particular, the focus is on service delivery and zero tolerance to fraud and corruption. SASSA has made various attempts to address these issues, such as the rollout of biometric smart cards in 2012. This research endeavour attempts to discover whether a framework can be designed where necessary factors are taken into consideration to provide for an efficient social grant application and delivery process that uses biometrics. The framework aims to suggest improvements in the use of biometrics for the social grants. Seeing that biometrics in this case is used as a technology to improve a system involving humans, this study followed a Design Science approach and made use of a case study to collect the data required for the study. Literature studies reviewed the fields of social grants and biometrics. The challenges and lessons learnt from current implementations of social grants and biometrics within the South African context and further abroad were also relevant for the study. The framework that resulted from the above was evaluated for validity and applicability after which a modified framework is presented. The research concludes with specific implementation guidelines as well as areas for future research.

In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.

Labour law in South Africa has evolved over the past century at an ever increasing pace. The establishment of a democratic government in 1995 has been the trigger for a large number of labour law statutes being promulgated, particularly with reference to the laws governing the employment relationship and dismissal. From very humble and employer biased dispute resolution application under the common law of contract, labour law in this country has evolved through the various acts culminating in a labour law system which is highly regulated and codified. Dismissal for medical incapacity in this treatise is reviewed with regard to the applicable statutes and the various codes of good practice as the law has evolved and developed from the period covered by the common law through that covered by the 1995 LRA up to and including the current period. Particular attention is paid to both substantive and procedural requirements as well as the remedies applicable under the different legal regimes and the pertinent tribunals and courts. Regard is also given to the duration and causes of incapacity and the effect this may have on the applicable remedy applied by these tribunals. It will become apparant that the medically incapacitated employee occupied a relatively weak and vulnerable position under the common law as opposed to the current position under the 1995 LRA. The influence of the remedies applied by the tribunals under the 1956 LRA are clearly evident in the current regulations and codes under the 1995 LRA which contain specific statutory provisions for employees not to be unfairly dismissed. Distinctions are drawn between permissible and impermissible dismissals, with medical incapacity falling under the former. Furthermore, a distinction is drawn statutorily between permanent and temporary illhealth/injury incapacity with detailed guidelines for substantive and procedural fairness requirements to be met by employers. The powers of the specialist tribunals (CCMA, Bargaining Councils and Labour Courts) are regulated by statutory provisions and deal with appropriate remedies (reinstatement and/or compensation) a wardable in appropriate circumstances. Certain specific areas nonetheless still remain problematic for these tribunals and hence questions that require clear direction from the drafters of our law are: How to distinguish misconduct in alcohol and drug abuse cases? What degree of intermittent absenteeism is required before dismissal would be warranted? In certain other areas the tribunals have been fairly consistent and prescriptive in their approach and remedies awarded. Included here would be permanent incapacity, HIV cases and misconduct. It will emerge, however, that under the 1995 LRA the position of employees and the protections afforded them have been greatly increased.

The main research problem focused on the effective management of the perceptions about Affirmative Action (AA). A literature study and a survey were conducted to investigate the extent and nature of perceptions, the effect of these perceptions on labour and personal relations, current and suggested management practice of the perceptions of AA. A definition of AA, earlier measures of AA, the implementation of AA in the South African context, the stages of AA, theories, relevant legislation, perceptions and the management thereof are discussed. The survey was conducted at the George and Beaufort West District offices of the Department of Rural Development and Land Reform (DRDLR) with a response rate of 78.95 percent. The perceptions about AA can be managed effectively by complying with legislation, by involving and making all levels of employees responsible for the achievement of employment equity, skills development, personal development, consultation and communication.

The small, medium and micro-enterprise sector is recognised as being favourable to socioeconomic growth since SMMEs have capacity to generate jobs. SMMEs are particularly beneficial for previously disadvantaged communities, and it is particularly clear that SMMEs play a critical role in economic development. It is therefore important to encourage growth of this sector by introducing a favourable and a conducive environment for the sustainability of the SMMEs. The purpose of this study was to investigate the impact of regulatory compliance on SMMEs in the Buffalo City municipal area in South Africa’s Eastern Cape Province. In other words, this study seeks to find out how SMMEs in the Buffalo City experience regulatory compliance. Exploratory quantitative and qualitative research methodologies were used in this study. In this instance structured questionnaires were used to collect data. In order to provide a precise presentation of information, face-to-face interviews with the SMME owners were conducted. The results of this study indicate that the regulatory environment within which the SMMEs operate is not a constraining one. Although the manual registering process is reported to take long, the electronic or online business registration is much quicker. Notwithstanding, the business registration agencies were reported not be too easily and readily available and accessible. In terms of labour regulations SMME owners and managers indicated that compliance with labour legislation in terms of health and safety was benefiting to their businesses as they learnt how to develop polices and plans. Although the regulatory environment of the SMMEs is not a constraining one, there are costs involved. For example the respondents indicated that the labour laws increased their operating costs. In accordance with labour legislation, employees are entitled to all kinds of paid leave such as annual leave, maternity leave and sometimes study leave; needless to say a right to strike. The labour law regulations were seen to be time consuming and presented an administrative burden for managers. With regards to tax regulations compliance, there was an indication that due to the extra efforts taken by SARS, it was easy to comply. The SMMEs were exposed to what is required in order to comply fully with tax laws. Some respondents mentioned that they lacked the facilities to deal with VAT issues. The study recommends that government should ensure that the registration costs of small businesses remain low and that the turnaround time for registration is shortened. The support structures which are to assist small businesses need to be mentioned in all the media for everyone to be aware of them including the rural areas. The government needs to educate SMME owners and managers on how labour laws can benefit small businesses. Also the business registration process should be streamlined and linked with the South African Revenue Services in order for a ‘one shop stop’, so to shorten the time during formalisation and registration processes. It is also recommended that the South African Revenue Services together with the government simplify the tax issues applying to SMMEs further more especially Value Added Tax which seems not to be easily understood. This will in turn assist SMME owners as they will know more about tax issues, they will also know more how to handle them which should in turn lower the costs of doing business.

The animal welfare legislation that is discussed in this Dissertation is just a sample of the available legislation from the chosen foreign jurisdictions and South Africa. The chosen foreign jurisdictions were chosen as a lens to gain a needed perspective on South African animal welfare legislation. The legislation chosen for discussion falls within particular categories that are discussed fully in the later chapters.i Despite the fact that the animal rights and animal welfare movements are recorded to date back as far as 500B.C, the majority of jurisdictions throughout the world still consider animals to be property that can be bought, traded, hunted and after they are killed, their remains kept as trophies or souvenirs. Within these jurisdictions (which includes South Africa and the other four chosen foreign jurisdictions – Kenya, India, Switzerland and the United States of America) there is a demonstrated lack of proper enforcement of the animal welfare/animal anti-cruelty legislation, regulations and industry rules, which is made worse by the actions of uncaring, abusive and/or ignorant people. South Africa is no better or worse to the four chosen jurisdictions in that it has similar anti-cruelty/animal welfare legislation. The lack of proper enforcement of this animal welfare legislation in South Africa should be of great concern as many studies have indicated that there is a link between animal abuse/cruelty and ‘human’ abuse. The same studies also indicate that animal abusers are at a greater risk of becoming violent criminals or of committing a violent crime. For example, the Federal Bureau of Investigation has noted that most serial killers in the USA had a history of torturing, abusing and killing animals before they moved on to torturing, abusing and/or killing humans in their adult life. Needed changes to the animal welfare legislation and how people view animals should be made in South Africa to ensure that welfare of animals is protected. For example, the Government could educate people about animal welfare in order to overcome any ignorance that may be the cause of animal pain and abuse, as well as strengthening existing animal welfare legislation. The eradication of ignorance, as well as a necessary change in the current animal welfare legislation, will help to create a real change in how people view and treat i Chapter 5 and 6. [iii] animals. People will come to realise that animals exist in their own right and that they were not created to serve or to be exploited by man.

LL.M. (Tax Law) / This dissertation seeks to analyse the phrase “carrying on a trade” in the context of South African income tax law. South African income tax law places emphasis on the phrase “carrying on a trade”. The Income Tax Act 58 of 1962 (hereinafter referred to as “the Act”) makes reference to the phrase in several different contexts. Trading is relevant to the tax treatment of both income (the amount that falls in the gross income of the taxpayer) and expenditure (the amount that qualifies for deduction). The importance of “carrying on a trade” within the income tax law can be seen in light of the following provisions of the Act that form the crux of this dissertation: section 1 defines trade; section 7 provides for the treatment of income from the trade of spouses married in community of property; section 11 deals with deductions; section 20(1) deals with setting off of assessed losses; section 23(g) deals with deductions not permitted in terms of the Act; and section 24H deals with the treatment of income derived by a partner carrying on a trade in a partnership. It is important to note that though it is not explicitly mentioned in the Act, the revenue receipts or accruals arising out of trade are included in the taxpayer's gross income provided that the trade constitutes a scheme of profit-making. Section 11(a) of the Act contains what is often described as the general deduction

M.Com. (Taxation) / Please refer to full text to view abstract

M.A. / Transracial Adoption (TRA) was legalised in South Africa in June 1991. TRA is a controversial issue all over the world. In the United Kingdom and United States there has been extensive research on TRA related to many different aspects of it, rendering a variety of conflicting results. Little research has been conducted around TRA in South Africa to date. This study was undertaken to research the relatively new phenomenon of TRA in South Africa. The study was based on literature and research from overseas, to identify how TRA in South Africa compares. The respondents of the study were parents who have adopted transracially and social workers who have been involved in TRA. A hybrid of exploratory and descriptive study was conducted. Fourteen parents and twenty-one social workers responded to the questionnaires. The primary limitation being the small sample of respondents, however, due to the population size being small this sample could be representative. The results showed that people involved in TRA in South Africa are aware of, and concerned about, very similar issues as those raised overseas. As TRA in South Africa is still in its teething phase, valuable results emerged about how to go about TRA, so as to make it most effective for all parties concerned. Preparation for TRA, racial identity issues and recommendations for further research were discussed according to results from the study.