The dissertation examines the applicability of procedural fairness to actions by members of the South African National Defence Forces (SANDF). The research focuses on and uses the South African Defence Force Union v The Minister of South African National Defence Force (SANDU 2010 judgment) to illustrate how procedural fairness should find application in the SANDF, given the sui generis nature of the defence forces. This judgment presented an opportunity to investigate whether the legislative framework that is available in the SANDF is adequate to protect the right to procedural fairness of the members of the SANDF encapsulated in section 33 of the Constitution, 1996. The dissertation examines the relevant sections of the Defence Act, Military Discipline Supplementary Measures Act, Labour Relations Act (LRA), and the Promotion of Administrative Justice Act (PAJA) read with sections 23 and 33 of the Constitution to determine whether there is a gap that exists in so far as the protection of the right to procedural fairness of members of the defence forces is concerned. It also examines the Military Discipline Code and the rules and regulations of the Defence Forces. The analysis of the SANDU 2010 judgment demonstrates that PAJA could find application in dismissal or employment related disputes within the SANDF. The scenario that is evidenced from the analysis of the defence force legislative framework is that the legislative framework that is available within the SANDF is inadequate to protect and deal with disputes which arise from allegations of infringement of the right to procedural fairness. This scenario is compounded by the fact that the LRA which is the empowering legislation that was promulgated to give effect to the right to section 23 of the Constitution and to deal with dismissal and employment related disputes, does not apply to members of the SANDF. / Public, Constitutional, and International Law / LL. M.

This doctoral thesis deals with the regulation of non-standard employment in Southern Africa: the case of South Africa with reference to several other SADC countries. The growth and presence of non-standard employment since the 1970s has revealed an important concern in a number of countries, both at the global and national levels. The overall significance of non-standard employment has increased in recent decades in both developed and developing states, as its use has grown exponentially across economic sectors and employment. Non-standard employment is the opposite of the standard employment relationship, which is work that is full time and indefinite. Non-standard employment includes an unequal employment relationship between an employee and an employer. Some workers choose to work in non-standard employment, and the choice has positive results. Nonetheless, for the majority of workers, non-standard employment is associated with job insecurity, exploitation, and the absence of trade unions and collective bargaining. Non-standard employment can also create challenges for firms, the labour market and the economy, including society at large. Backing decent work for all entails a comprehensive understanding of non-standard employment and its ramifications. This study explores the regulation and protection of non-standard employment in Southern Africa with focus on South Africa. The study draws on international and regional labour standards, the South African Constitution of 1996, and the national experience to make policy recommendations that will ensure workers are protected, firms are sustainable and labour markets operate well. Social justice and the democratisation of the workplace cannot be achieved if workers in non-standard employment are excluded from the labour relations system. / Mercantile Law / LL. D.

A critical and in-depth discussion of the powers of the labour court to review arbitration awards of the Commission for Conciliation, Mediation and Arbitration, the application of the author's findings relating to common-law, legislation and case law and a critical analysis thereof. Special reference is made to the provisions of sections 145 and 158(1)(g) of the Labour Relations Act 66 of 1995 including, in particular, the alternative application thereof in practice and scope for improvement in order to address potential prejudice to parties occasioned by the compulsory nature of (certain) dispute resolutions. This thesis incorporates a comparative study of the British and German labour law systems with reference to the relevant appeal and/or review procedures (as applied in their tribunals/courts), together with a discussion and application of certain other provisions relevant to South Africa labour law. / Jurisprudence / LL.M

The traditional health care system as it prevails in South Africa is part of African culture and intricately linked with the African world view. It embraces traditional norms and values that have survived to this day. In this sense it is more than a constituent part of medical pluralism which has become a global phenomenon. The role of the traditional healer is far more extensive than that of the modern medical doctor. He advises on all aspects of life, including physical, psychological, spiritual, moral and legal matters. He shares the client's world view. He understands the significance of ancestral spirits, the belief in supernatural forces and the reality of witches. It is in this context that modern scientific medicine has not been able to replace traditional medicine, and arguably never will. Traditional medicine is faced with enormous challenges at present. Firstly, the traditional social order is fast disappearing, making way for the state and the individual whose rights as contained in the Bill of Rights of the 1996 Constitution of the Republic of South Africa may seriously clash with traditional norms. Secondly, especially in an urban environment, the healer may encounter stiff competition from more progressive colleagues and modern physicians. Thirdly, scientific medicine basically regards traditional activities as unscientific, unregulated, often harmful and sometimes fatal. Fourthly, anti-witchcraft legislation hinders the traditional practitioner to deal with witches in the culturally appropriate manner. Traditional medicine will not go away. It is therefore necessary to find ways and means to see it practised in a safe and competent manner. As healers agitate for official recognition, it will be regarded as their corresponding duty to professionalise the traditional sector, create a traditional medical council and establish a register of bona fide healers who possess stipulated qualifications and are subject to rules of conduct and discipline. The modern and traditional sectors are essentially complementary and should be accommodated within a legal framework of official health care that protects healers and healed alike. The legal implications of this strategy are discussed in a global as well as regional African context. / Jurisprudence / LL.D.

This dissertation is a critical analysis of the provisions of sec 64(l)(b) and (c), 66(2)(b) and 77(l)(b) and (d) of the Labour Relations Act 66 of 1995 which prescribe notice of industrial action as a requirement of protected industrial action in South Africa. It traces the historical background of the requirement. It also addresses issues such as the purpose(s) of the notices, their scope of application, meaning, implications, who must give notice, to whom must notice be given, timing, computation, their duration, the consequences of failure to comply with them and various potential difficulties in the practical application of the notice requirement as well as the unintended consequences flowing from the provisions. Recommendations are made for the amendment of the Act in certain respects. The dissertation concludes that there is no justification for the inclusion in the Act of this requirement. The law is stated as at 30 September 2005. / Jurisprudence / LL.M.

Law / LL.M.

A study of silences: as a metaphysics of the law, juridification silences the text of the law in order to enable an allegorical reading of the law. This silencing of the legal text can only be avoided through a non-metaphysical archaeological reading. Similarly, the programme of comparative labour law is silent at its most pivotal points, leaving some concerns of the programme indeterminate and indeterminable. As context, the dominant discourses of the labour law systems of the Federal Republic of Germany (Tarifautonomie), Great Britain (collective laizzesfaire) and South Africa (fairness) are identified and the agents of the jurisprudence (the courts) are briefly outlined. The silence operating within the phenomenology of the labour judiciary and the concept of a 'court' is also examined. The study then proceeds to read, in an archaeological manner, the industrial action jurisprudence in Germany, Great Britain and South Africa, such readings again yielding silences within the discourse of the law. The silences occurring throughout (and the resulting normative breaches in the rationality of the legal discourse) are the prerequisites for juridification, a process in terms of which the metajuridical standard is imported into the legal normative system and thereby rendered part of the archival discourse of the law. / LL.D.

Text in Afrikaans / In hierdie studie is gepoog om die sogenaamde "reg om te staak" aan die hand van nasionale en internasionale invloede te ontleed. Dit is veral die International labour Organisation se voorstelle wat 'n invloed gehad het om die Suid-Afrikaanse reg in lyn met die internasionale posisie te bring. Daar word egter gewys op die beperkinge van die reg om te staak, byvoorbeeld in die geval van noodsaaklike dienste en staatsdiensamptenare. Vervolgens is die Suid-Afrikaanse stakingsreg onder die loep geneem en is daar gekyk na die gemene reg, statutere reg en die gevolge van 'n staking. Die Suid-Afrikaanse reg is toe vergelyk met 'n aantal ILO-beginsels. Die moontlike invloed van die Grondwet, 200 van 1993 op die arbeidsreg is bespreek. Die ·studie konkludeer dat, alhoewel daar nie 'n absolute reg om te staak is nie, sodanige reg onder sekere omstandighede erken moet word. / The aim of the study was to analyse the so-called "right to strike" by looking at national as well as international influences on the subject. The suggestions by the International labour Organisation in particular had an influence on changing the South African position. The limitations on the right to strike were also scrutinized. The South African strike law was discussed. The common law position, statutory law as well as the consequences of a strike were analysed. The South African position was also compared with a few llO principles. The possible influence of the Constitution, Act 200 of 1993 on labour law was discussed. The study concluded that, althot:.Jgh there is not an absolute right to strike, such a right must be recognized in certain circumstances. / Mercentile Law / LL. M.

In the first section of the dissertation, strike law in the Netherlands is focused upon. The following issues are inter alia dealt with: the historical background of the strike phenomenon, the right to strike and restrictions on this right, the reluctance of the Dutch legislature to legislate in the field of industrial action, and the directly applicable provisions of the European Social Charter. The second section of the dissertation deals with South African strike law and also starts off with a discussion of the historical background thereof, whereafter the provisions of the 1995 Labour Relations Act are analysed and discussed. The third and last section highlights some of the major differences and points to some similarities between the two legal systems. It concludes that the detailed South African labour legislation does not provide more certainty than the Dutch judge-made law in respect of the law relating to strikes. / Law / LL.M.

The current South African legislative framework does not properly address the unequal bargaining position between employers and fixed term employees. Ineffective regulation of fixed term employment in South Africa has had the effect of excluding certain groups of fixed term employees from claiming the remedies provided in terms of the Labour Relations Act and other labour legislation. Furthermore, where remedies are applicable to them they are often ineffectual. Interpretational variation evident from case law pertaining to the enforcement of the rights of fixed term employees, indicate clear lacunae in the unfair dismissal protection afforded to these vulnerable employees. This is mainly a consequence of uncertainties related to the interpretation of the legislative provisions. The infusion of the values entrenched in the Constitution of the Republic of South Africa and the development of the common law to reflect these values might augment the scope and availability of rights enjoyed by fixed term employees. But, changing socio-economic and political circumstances necessitates review and amendment of the legislation applicable to fixed term employees to meet the country’s constitutional and international obligations. Proposed amendments to the Labour Relations Act have been tabled. These amendments may be capable of addressing some of the current problems. However, they may also lead to other undesirable consequences. An investigation into problems related to the application of similar provisions as those proposed by the Labour Relations Amendment Bill in other jurisdictions crystallises some possible causes for concern. Some of the proposed changes could create new vulnerabilities, or renew old ones. / Private Law / LL. D.