Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances

The third sphere of government (Local Government) has been persistently clouded by unfavourable Annual Financial Statement (AFS) audit reports. This results in local government losing credibility and its stakeholders losing confidence in the institutions or municipalities. In-depth analysis of the root cause of this dilemma is an opportunity for the municipality to reorganise its house and redeem its dignity and credibility to its stakeholders through addressing the identified challenges. The importance of the study can be attributed to the need to investigate the root causes of unfavourable audit opinion and recommend possible remedies that can assist municipalities to improve their audit report outcomes which in turn will improve the confidence of its stakeholders. The primary objective of the study was to investigate variables that impact on the audit report outcomes on annual financial statements of the municipalities that are within Alfred Nzo District (AND) Jurisdiction, including Alfred Nzo District Municipality (ANDM). This was achieved through investigating the root causes of the audit report outcomes with specific focus on the relationship that exists between the management role and audit outcomes of the Alfred Nzo District Municipalities. This was measured by the municipality’s leadership, governance, internal controls and human capital management. Convenient sampling was used wherein 150 questionnaires (30 per municipality) were sent out to the selected employees in all the municipalities in the Alfred Nzo District. Out of the questionnaires that were sent out, 103 responses were received. These were analysed to draw findings, conclusion and recommendations. The empirical results of the study revealed that there is strong evidence that leadership, governance and human capital management have a positive influence on the municipality’s AFS audit report outcomes. It also revealed that there is overwhelming evidence that internal controls have a positive influence on the municipality’s AFS audit report outcomes. The study recommends how leadership, governance, internal controls and human capital management must be improved. It also provides future research recommendations to improve this study.

In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.

The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.

This treatise specifically explores section 198 of the Labour Relations Act, 66 of 1995, which regulate temporary employment service. However, before one can assess this section in particular, other legislation has to be considered dealing with temporary employment services, read in conjunction with the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter the “Constitution”), as all legislation is subject thereto. As summarised by Navsa AJ in the judgment of Sidumo& Another v Rustenburg Platinum Mines Ltd & Others: “The starting point is the Constitution. Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices”. The Labour Relations Act, 66 of 1995 (hereinafter the “LRA”) is also subject to the Constitution, and section 198 has to be evaluated and assessed against the Constitution as is set out in section 1 of the LRA, which provides that: “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution...” The LRA was drafted while the Interim Constitution was in effect, this being the reason why section 1(a) refers to section 27 of the Constitution, the Interim Constitution, and not the final Constitution, which was enacted in 1996. The Honourable Justice Conradie held in NAPTOSA & others v Minister of Education, Western Cape & others [2001] 22 ILJ 889 (C): “that the effect of section 1(a) is to ensure that the LRA “[marries] the enforcement of fundamental rights with the effective resolution of labour dispute temporary employment service . . . If an employer adopts a labour practice which is thought to be unfair, an aggrieved employee would in the first instance be obliged to seek a remedy under the LRA. If he or she finds no remedy under that Act, the LRA might come under constitutional scrutiny for not giving adequate protection to a constitutional right. If a labour practice permitted by the LRA is not fair, a court might be persuaded to strike down the impugned provision. But it would, I think, need a good deal of persuasion”. The Constitution and the LRA lay the basis for temporary employment services in the South African law context, and are the primary laws dealing with this topic. Although the main focus of the treatise is section 198 of the LRA in dealing with temporary employment services, it is evident that secondary labour legislation also regulates temporary employment services. It is noteworthy that each piece of legislation has different requirements and/or essentials regulating temporary employment services, even though some of the legislation have very similar provisions. Secondly, each of the pieces of legislation also determines and attaches different meanings to who the real employer is. This is important so as to establish who, as between the temporary employment service and its client, may be held liable for obligations arising out of the employment relationship. A tripartite relationship is created by temporary employment service arrangements, in that there is the temporary employment services –client relationship, the temporary employment service’s employer - employee relationship and the client –employee relationship, each with its own rights, obligations, and requirements for termination. A further focus of the treatise is the problems experienced in the employment relationship between the temporary employment service and its employees and the termination of the relationship. The difficulties and potential unfairness arising from termination of the relationship between the temporary employment service and its employees have resulted in legislative developments and proposed amendments, most notably the repeal of section 198. These proposals are discussed herein, including the question of whether section 198 should be repealed, or whether temporary employment services should be more strenuously regulated in order to resolve the problems being experienced with the application of section 198 in its present form. It is proposed in conclusion that temporary employment services be more strenuously regulated, as the repeal of section 198 will not be socially and economically beneficial to the workforce of South Africa, nor the Labour Market. Further, it would be contrary to the Constitution and purpose of the Labour Relations Act.

A research report submitted to the Faculty of Commerce, Law and Management in fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation), 13 September 2017 / Online resource (iii, 61 leaves) / The transfer of contingent liabilities as part of a sale of business transaction has always been a contentious issue. In particular, there is still a measure of uncertainty in whose hands, if any, contingent liabilities transferred as part of a sale of business may be deductible. Sale of business agreements may be structured in various ways, for example, the purchaser may acquire the seller’s business in exchange for cash, the creation of a loan account, or the assumption of liabilities. Furthermore, in the context of intra-group transactions to which the group roll-over relief provisions apply, the Income Tax Act 19621 (‘the Income Tax Act’) does not specifically address the transfer of contingent liabilities. This research report addresses the income tax consequences arising from the transfer of contingent liabilities from the seller to the purchaser, including an analysis of the relevant group roll-over relief provisions. Key words: Ackermans Judgment, Actually Incurred, Contingent Liabilities, Free-standing Contingent Liabilities, General Deduction Formula, Group roll-over relief, Interpretation Note 94, Sale of Business Transaction, SARS. / GR2018

Cyber bullying is a growing phenomenon in schools all over the world, and it is evident that cyber bullying presents certain unique problems for schools in the regulation thereof. From the number of different definitions of cyber bullying, it is also evident that there is no clear concept of the exact nature of cyber bullying, and how it should be addressed in schools. The existing legal framework in South Africa can be used to address cyber bullying in schools, but there is no legislation or policy that is directly aimed at the regulation of cyber bullying at school level. The purpose of this research is to develop a law and policy framework for the effective regulation of cyber bullying in schools. Firstly, a literature review was conducted to determine the nature of cyber bullying and to examine how cyber bullying in American schools is regulated by law. Secondly, a literature study determined the human rights obligations with regard to protecting learners against cyber bullying, and reviewed how current South African law and policy speaks to addressing cyber bullying in schools. In order to investigate the occurrence of cyber bullying in South African schools practically, a case study was conducted at a South African school. All the resources mentioned above were used to develop an education-specific law and policy framework to address cyber bullying in South African schools effectively. This framework includes a suggested insertion in the South African Schools Act, draft Guidelines for the regulation of cyber bullying in schools, draft provisions for schools’ Codes of conduct for learners and an information brochure on cyber bullying. / Public, Constitutional and International Law / LL. D.

As a medium-sized life insurance company Assupol Life provide life insurance products to clients within government departments, although the company entered the broader private market. The enactment of the Financial Advisory and Intermediary Services Act, 2002 and the Financial Intelligence Centre Act, 2001 impacted financial service providers and the research analysed the influence of regulation on managerial decision making, marketing and sales, finance, human resources, training and the structures within the organisation to comply with the legislation. The study endeavoured to determine the influence of regulation on the company and the measures implemented by the management of Assupol Life. The research results confirmed that the primary challenge faced by the company is to find a balance between compliance, managing human capital and creating value for shareholders. The major impact of the legislation involves the human resource- and training functions and the study illustrated that other influences was less severe. / Business Administration / M. Tech. (Business Administration)

The effective management of a strike is generally a challenging phenomenon which impacts on employers, employees and the general public. The main purpose of this study was to analyse the legal implications of employees’ participation in an unprotected strike. The study also explored requirements for a strike to be protected in compliance with the prescribed legislation. From the literary review, cases and legislation, it became clear that compliance plays a key role when a consideration is taken by employees to take part in a strike during dispute resolution. In analysing the legal consequences for participating in an unprotected strike, a finding was made that employers in the end have an upper hand in that when all due processes and procedures are followed, they are empowered to dismiss employees. Legislation and international standards form the cornerstone upon which dispute resolution mechanisms and the rights of employers and employees are derived from. / Mercantile Law / LL.M. (Labour law)

The legislation relating to equal remuneration claims is an area of law which is nuanced and consequently poorly understood. It has posed an unattainable mountain for many claimants who came before the South African courts. This is as a direct result of the lack of an adequate legal framework providing for same in the Employment Equity Act 55 of 1998. The case law recognises two causes of action relating to equal remuneration. The first cause of action is equal remuneration for the same/similar work. The second is equal remuneration for work of equal value. The former is easily understood by both claimants and courts but the latter is poorly understood and poses many difficulties. The aim of this dissertation is fourfold. Firstly, the problems and criticisms regarding equal remuneration claims will be briefly highlighted. Secondly, a comprehensive analysis of the current legal framework will be set out together with the inadequacies. Thirdly, an analysis of international law and the law of the United Kingdom relating to equal remuneration claims will be undertaken. Fourthly, this dissertation will conclude by proposing recommendations to rectify the inadequacies. / Mercantile Law / LL.M. (Labour law)