Under the previous Labour Relations Act of 1956, (herein after refered as old LRA) organisational rights in South Africa were conspicuous by their absence. In addition, theright to access was restricted by the Trespass Act No. 6 of 1959, which made it a criminal offence to enter land without thepermission of the owner or lawful occupier, except for a lawful reason. During the 1980’s and the first half of the 1990’s several trade union rights, including the right to engage in collective bargaining were established by the Industrial Court under its unfair labour practice jurisdiction. After 1994, South African courts were bound to uphold the basic rights entrenched in the Constitution, Act No. 108 of 1996, and the new Labour Relations Act, 66 of 1995, (herein after refered as new LRA) was promulgated. A new system of collective bargaining which is voluntary in nature was established in order to level the playing fields between employees and trade unions. The new LRA grants organisational rights to registered trade unions. The aim of this treatise is to consider and evaluate these rights. The main source of organisational rights in international public law is to be found in the International Labour Organisation’s Convention on Freedom of Association. Decisions of the International Labour Organisation’s bodies of supervision and interpretation have upheld the protection of various organisational rights, such as trade union access to the employer’s premises,representation of employees by the officials of their trade union, and the right of union officials to collect union dues. These rights have now been incorporated into our labour law system. In this treatise, the pre-1994 situation and the scenario after the 1994 democratic elections is analysed. The contents of these rights are considered as well as enforcement there-of.

Trafficking in human beings is a major problem worldwide. Human trafficking is as a result of a complex set of interrelated push and pull factors. Push factors includeinter alia poverty, a lack of opportunities, dislocation of families, gender, racial and ethnic inequalities and the break-up of families. Research shows that pull factors include the promise of a better life, consumer aspirations and lack of information on the risks involved, established patterns of migration, porous borders and fewer constraints on travel. It is as a result of the global epidemic of this trafficking in persons that certain instruments on an international level as well as legislation on a national level have been enacted. The question which arises is: are these pieces of legislation effective in dealing with the scourge of human trafficking? Every legislation passed will have its strengths, as well as weaknesses but the main objective of such legislation should always be to combat, criminalise and prosecute the specific criminal act. Furthermore, the enacted legislation should be designed to effectively combat the challenges which threaten to exacerbate the criminal act. Failing to fulfil this intention will render such legislation nugatory. This treatise will be looking at various international instruments that have been passed abd v adopted by various countries, which specifically deal with trafficking in humans generally and specifically in relation to the children. International instruments that will be discussed include inter alia, slavery Convention, Convention on the Rights of the child, Worst forms or Child Labour Convention, Parlemo Protocol, United Nations Transnational Organised Crime Protocol to mention but a few. All these instruments have in a way dealt with and made provisions for the criminalisation of the act of trafficking in humans and a the scrounge of trafficking escalates the international governments strive to enact instruments that are going to be able to curtail this pandemic of trafficking. As more focus will be on the South African legislation this treatise is also going to examine all the relevant piece of legislation that have been passed by the South African government in order to deal with human trafficking. These will include the discussion of the Constitution, Child Care Act, Children’s Act, Children’s Amendment Act, Criminal Law (Sexual Offences) and Related matters. Amendment Act Prevention of Organised Crime Act as well as the Prevention and combating of Trafficking in Persons Bill. The treatise will listen critically discuss the Bill in so far as its strengths and weaknesses are concerned.

The protection that employees enjoy under our common law in the transfer of a business of its employer is very little. Common law only concerns itself with the lawfulness of a contract of employment. Common law is, however, now also experiencing the effect of the Constitution which provides for fair labour practices. Proper legislation was enacted to afford employees proper protection against dismissals resulting out of a transfer of a business by the employer as a going concern. Such a dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The protection that employees enjoy is governed by section 197 of the LRA. This section provides that the new employer is placed in the “shoes” of the old employer. It also further states that the new employer could be held accountable for the unlawful actions of the old employer against an employee prior to the transfer taking place. Section 197 of the LRA, however, does not apply to all transfers of businesses. There are some key concepts that are of importance to determine its applicability. Such concepts include whether there was a transfer of a business or a part of the business and whether it was transferred as a going concern. The words “transfer” and “business” are defined in section 197(1)(a) and (1)(b) of the LRA. However, the words “going concern” are not defined and one would have to scrutinise case law for guidance in considering whether the transfer was done as a going concern. A leading case is that of Schutte Powerplus Performance (Pty) Ltd.1 In this case the court held that one must consider the substance of the agreement in determining whether the business was transferred as a going concern. It further held that the lists of factors that one should have regard to are not exhaustive. Section 197 of the LRA also applies to employees whose services have been outsourced. Outsourcing of services occurs where an employer discontinues a service or activity that is in most cases not part of the main business of the employer, and contract an outside contractor to take over that service or activity. This matter was given clarity in the case of SA Municipal Workers Union v Rand Airport Management Company (Pty) Ltd.2 The court came to the conclusion that section 197 could apply to outsourcing, provided it passes the test of “transfer” as well as the test of what constitutes a “business or service”. Outsourcing to labour brokers is, however, not covered by section 197 of the LRA. The matter was given consideration by the Labour Court in CEPPWAWU v Print Tech (Pty) Ltd.3 Another question is whether second-generation outsourcing is covered by section 197 of the LRA. Second Generation Outsourcing occurs when an employer put the outsourced service out to tender upon the outsource contract coming to an end and a new entity is awarded the outsourcing opportunity following the original outsource entity being unsuccessful in its bid to secure the contract for an additional term.

Section 245 was proposed as part of the tax reform package initiated by the government on 18 June, 1987. It introduced an extended general anti-avoidance rule into Canadian tax law. The rule has been in effect since September 13, 1988, but has yet to be judicially considered. This paper adopts a methodology which incorporates a political perspective. In particular, the rule is analyzed within the general environment - the socio-political, economic and historical backgrounds - in existence at that time. It was felt that such an approach was necessary to explain certain issues. For example, why the Canadian government decided to introduce section 245 and why certain modifications were made to the proposal in its passage through the legislative process. Overall, this paper hopes to extend our understanding of the rule by exposing the factors which created a favourable political environment for the enactment of the provision. / Law, Peter A. Allard School of / Graduate

Since the introduction in early 1971 of the Land Use Contract - S. 702A of the B.C. Municipal Act - few, if any, studies have been devoted to its practical applications. This paper therefore attempts both a survey and analysis of the use and implications of S. 702A. Questionnaires were used to collect data from all Regional Districts and some fifteen larger municipalities. Although results indicated a wide and varied usage, there was little evidence of a strongly demonstrated need for a new form of land control. Both the planners and administrators to whom the questionnaires were directed, and by their evidence the general public, misunderstood and are confused by the new provisions. However, fewer problems than anticipated were apparantly encountered in the use of S. 702A, and initial reluctance to utilize the legislation is dissipating. By reference to American zoning and British development control methods, it was determined that the Land Use Contract is a form of development control, similar to Ontario practices and not unlike the British example. It can be used to considerable advantage in the planning process, particularly where flexibility and innovation are desired, so long as it is used, as with all development control, in accordance with a comprehensive plan. / Applied Science, Faculty of / Community and Regional Planning (SCARP), School of / Graduate

Increasing pressures on British Columbia’s natural resources have led to a greater concern for overall planning of resource development in the Province. Good inventory data are essential for efficient planning, and, while this can he obtained relatively easily for most renewable resources, mineral resources present a serious problem because they cannot be readily identified. This has led to a general lack of consideration of the mining industry in natural resource planning. While the impact of mining upon the environment has been well documented, little effort has been made to determine what effects are attributable to mineral exploration. This shortcoming is very important because mineral exploration is unique among inventory processes in that, although it does not generally involve the use of surface resources on a large scale, it does involve occupancy and use of the land surface. Thus, because free miners may enter upon almost any land in the Province for the purpose of mineral exploration, there will be widespread interaction with other resource users. In this study, the nature of mineral exploration associated with hard-rock metal mining in British Columbia and its impact upon the environment described. Interactions with the traditional extractive industries such as forestry and ranching are discussed, and actual and potential sources of conflict are pinpointed. Attention is given to the possible need to withdraw land from mineral exploration in order to protect watershed, recreational, aesthetic and ecological values. There is almost no literature that deals specifically with the interaction of mineral exploration with other resources, and so it was necessary to gather information from individuals in government and industry who are directly involved with resource planning, administration and management in British Columbia. Attention is given to land-use regulation as it might be applied to mineral exploration. While reference is made to the possibility of introducing alternative forms of mineral tenure, the study was developed on the basis of the present system of mineral tenures because of the probability of widespread opposition by certain sections of the mining industry would appear to make any substantial change unlikely in the immediate future. It is concluded that, if the rights and responsibilities of all individuals are clearly defined and rigidly enforced, mineral exploration in British Columbia can co-exist with most forms of resource management. However, the mining industry must be brought into any discussions on resource policy and planning, because it is only through a mutual awareness of each other's problems and objectives that common ground can be found to settle operational problems and yet achieve the objectives which, in the long-term, will benefit the people of British Columbia. / Forestry, Faculty of / Graduate

The thesis examines the condominium conversion regulations of thirteen municipalities in the Vancouver Metropolitan area to determine how effective they are in addressing the concerns underlying conversion policies. The study begins with a review of the Canadian housing literature over the past two decades in order to identify the nature of Canadian rental housing problems, how these problems are defined and analyzed; and what policy prescriptions are offered. As part of the review of municipal conversion regulations, the legal context and the extent of legislative power for implementing conversion controls by local governments are examined. The study also examines the concept of private property rights--a fundamental philosophical issue in the policy debate over conversion regulations. Although the literature provides no consensus on the underlying causes or the appropriate policy response, it is clear that there are serious problems with Canada's urban rental housing sector. The problems include persistently low vacancy rates, declining private rental starts and the difficulty experienced by a considerable portion of low- and moderate income renters in affording private rental units. The province of British Columbia provides municipalities with broad discretionary powers to regulate conversions. In spite of the potential to devise comprehensive and innovative policy responses, existing municipal conversion regulations tend to be narrow in scope, inconsistently applied and many contain serious loopholes. A closer examination of recent conversion trends in the City of Vancouver provides evidence to show that conversions continue to take place and that Vancouver's conversion regulations are aimed primarily at ensuring compensation for displaced tenants, rather than effectively protecting the city's rental housing stock. The thesis concludes that if municipalities are to maintain a diversity of choice in housing tenure, a re-evaluation of conversion policies at both the provincial and municipal levels is warranted. Conversion policies can be improved by combining several approaches such that the strength of one compensates for the weakness of another. Further research is needed in the areas of rental housing demolitions, deconversions, fire and other phenomenon which contribute to the depletion of the rental stock. If wise and informed policy decisions are to be made, the detailed accounting of annual rental housing starts and completions must include those units lost through conversions and other activities. / Applied Science, Faculty of / Community and Regional Planning (SCARP), School of / Graduate

Punishment is an acknowledged method of enforcing the law. Forms of punishment may differ, but the main aims remain the same—first, to discourage transgression of the law, thus maintaining order in society. Second, it is hoped, by some at least, that prisoners will be reformed by or during their punishment. This dissertation raises questions about the status and legal rights of individuals who are subject to the dominant form of punishment in Canada—incarceration. The questions are: Can prisoners continue to be regarded as persons and right-holders during incarceration? Can prisoners, then, have a right to education? If so, should such a right be made a legal right? The answer one gives to these questions clearly has important bearings on the status of prisoners during their incarceration. It is argued that prisoners retain their status as persons while incarcerated, that they do have rights, in particular the right to education, and that such a right should be made a legal right. Justice dictates that only relevant differences or just cause can provide acceptable justification for withholding rights from prisoners. That punishment is being inflicted on certain persons does not offer/provide adequate grounds for denying their right to education. Indeed, a legal right to education is warranted to ensure their access to education. Thus, the first proposition is that apart from the loss of rights necessary to protect society and the prison, and in order to fulfil the criteria of punishment, prisoners continue to hold rights held by other persons, in particular the right to education. This position is defended by considering arguments that prisoners have a moral right to education. These are: 1. The Argument from Incarceration 2. The Argument from The Effects of Punishment 3. The Argument from Punishment of Persons 4. The Argument from Fraternal Obligation 5. The Argument from Social Effects 6. The Argument from Benefits to the Collective 7. The Argument from Equality The second proposition that this right ought to be made a legal right rests essentially on three premises: 1. That education can contribute to the successful achievement of the goals of incarceration. 2. However, education is not considered a priority. 3. As it now stands, there is no effective way to enforce and sustain education in prisons. With a legal right to education, prisoners would have some basis for objecting to inadequate educational facilities and opportunities. A legal right would safeguard fair treatment and ensure equal opportunities to education. / Education, Faculty of / Educational Studies (EDST), Department of / Graduate

Eligibility disputes at the Olympic Games are ultimately resolved by the Ad Hoc Division ("AHD") of the Court of Arbitration for Sport. This paper critically examines the AHD both from within and without. The first part of this thesis describes eligibility disputes at Games time, and how they are resolved. The paper begins with a brief look at the history of athlete participation in the Olympic Games. It then deals with the concept of eligibility, and sets out the rules which govern same for the Olympics. These rules are set by a number of separate but related entities, namely the International Olympic Committee, the International Federations, the National Olympic Committees, and, finally, the World Anti-Doping Agency. The roles of each of these bodies are examined in order to provide the context in which disputes are resolved. This paper then surveys the parameters in which the AHD operates which have been set over the years by domestic courts with an Anglo-American tradition. The performance of the AHD is then critically examined with a view to making recommendations for its improvement. The second part of this thesis surveys the ways eligibility disputes are resolved in the major north American professional sports leagues and the NCAA, with a view to suggesting improvements in the AHD process. This thesis concludes by offering recommendations to the AHD process in two areas: operational and structural. Several operational improvements are suggested, the main ones of which are that all parties affected by a dispute be offered an opportunity to participate in before the AHD, and parties be given the opportunity to appoint the Panel. The structural change suggested is that athletes be given formal input into the administration of the Games, with the Athletes' Commission being the obvious body which could form the basis for a bargaining unit. It is suggested that questions surrounding the legitimacy of AHD will remain while ever athletes have no formal say in its composition or operation. / Law, Peter A. Allard School of / Graduate

The education system of British Columbia is constituted by statute. The constitutional statute is called the Public Schools Act (1972). The Public Schools Act Regulations are part of the Act. This Act names various officials (constituents). The constituents include the Minister of Education, the Deputy Minister of Education, Provincial and District Superintendents, Teachers, Principals, Trustees and such persons as may be required to give effect to the provisions of the Act. If it is assumed that the term administration refers to acts of governing, controlling, inducing co-operation and similar kinds of acts, then it may be the case that many constituents of the British Columbia education system engage at least periodically in some form of administrative action. Each constituent that acts administratively has some authority and/or power over someone or something. This capacity may be regarded as a basis of many administrative relationships among the education system's constituents. The Public Schools Act establishes what kinds of authority and degrees of power each constituent has. Without a careful examination of the statutory provisions of the Act, the kinds of legal administrative authority and the degrees of power of the system's constituents cannot be determined. The central problem of the study is to determine the kinds of statutory administrative authority and power of the constituents of the British Columbia educational system. The problem is approached by establishing the nature of the political context within which the administration of education takes place; and by analyzing the statutory documents governing education in British Columbia. The study sets out the many statutorily posited relationships of constituents, and concludes that there is a strong parallel between political and administrative action and that administration in education cannot be fully appreciated without attention to the political context of provincial government which is the source and operating environment of public education. / Education, Faculty of / Graduate