Thesis (J.C.L.)--Catholic University of America, 2006. / Abstract. Includes bibliographical references (leaves 83-88).

Thesis (M.A.)--City University of Hong Kong, 2007. / "Master of Art in arbitration and dispute resolution, LW6409 dissertation" Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.

Thesis (M.A.)--City University of Hong Kong, 2006. / "Master of Art in arbitration and dispute resolution, LW6409-dissertation" Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.

The Public Service Commission (PSC) is an independent oversight body established in terms of chapter 10 of the Constitution, 1996. Although, its powers and functions were enacted in the Public Service Commission Act, 1997, this institution has been in existence since the early 1900’s. As an institution which was birthed during an era wrought with injustice, inequality upon a labour law framework which barely existed as the concept is understood today, the PSC played a leading role in the management of the public service. The influence of the Treasury, Governor-General and socio-political forces throughout the 1900’s negatively impacted the manner in which the PSC was effectively able to exercise its’ powers and functions. Subsequent thereto, the rise of staff associations and their concerted effort to be party to matters pertaining to the employment relationship, placed the PSC in a precarious situation which created the perception that the PSC was a “toothless organization”. Although the PSC has since transitioned significantly in that many of the functions it performed are now exercised by the Ministry of Public Service and Administration, today, this perception is still as real as it was in the 1970’s. The primary purpose of this treatise is to provide a historical background to present time, depicting the role undertaken by the PSC and whether the perception of being ineffective in the administration of the public service, remains. The researcher will provide a distinction of the nature of grievances dealt with by the PSC and other alternate dispute resolution bodies, with specific attention being drawn to the methodologies applied in the execution of its mandate relating to labour relations and personnel practices, and the overall bearing it this has on the effective administration of the public service. In the conclusion it is submitted that the powers and functions of the PSC may extend to directions, advice and recommendations (unenforceable), however in comparison to other dispute resolution bodies, these powers and functions are centred around the promotion of constitutionally enshrined values and principles. PSC prides itself in the fruits of its labour as it is able to make a far greater impact by investigating root causes of grievances and redressing systemic issues, emanating from yesteryear to date. It is therefore submitted that as a result of different methodologies applied in comparison to other dispute resolution bodies, the highly administrative processes embarked proves far more thorough and effective and as a result cannot be compared or perceived to be ineffective. Lastly, it is submitted that the co-operative rather than adversarial approach embarked upon by the PSC is befitting for a young democratic country where impact-driven bears far reaching results, extending over the public service administration at large. To this end, the researcher refutes the misconception that the PSC is a toothless, ineffective organization which no longer plays a meaningful role within the Public Service Administration.

The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.

History has proven time and time again that conflict is an inevitable aspect of any given society. The seemingly long-standing nature of conflicts in Africa has been changing over time and these conflicts have been either inter-state or intra-state. However, sometimes intrastate wars have escalated into regional conflicts. These scenarios can be seen in the Great Lakes region of Africa where you have the civil war of 1996-7 and the rebellion, which began in 1998 in the Democratic Republic of Congo (DRC). In the DRC there have been at least four stages of conflict. The first is against the Belgians and secondly, the civil strife of the early 1960s. Third, is the civil strife against Mobutu and fourthly, currently against Kabila. The expanding nature of conflict is characterised by power struggles, politicisation of ethnicity, and the impact of external forces. It is noted that the expanding nature of conflict calls for a change in the methods of conflict management and resolution. Initially conflicts were resolved through military intervention. but with the complexity of African wars it has become apparent that peaceful methods are more prudent. With reference to Africa it can be assumed that conflicts need to be increasingly resolved through political means, such as the use of the diplomatic process. The conflict in Chad between 1968 and 1984 is a good example in which military intervention was used but failed, giving way to mediation and negotiation through the use of diplomacy. Both the DRC and Chadian conflicts are similar because they witnessed the influence of external forces (neighbouring countries and non-African states such as France and the US) and African states attempting to find solutions to their own problems. The conflict in the DRC provides a unique example of the changing nature of intra-state conflict in Africa. Thus, the study aims to trace the characteristics of conflict in the DRC and attempts made at conflict management and resolution. The study uses the period bet ween 1996 and 1999 because it highlights this change in the nature and character of conflict.

Magister Legum - LLM / This thesis seeks to investigate the lack of participation by African countries in the WTO Dispute Settlement System by first providing an overview of the Dispute Settlement Understanding (DSU) system and, secondly by explaining the reasons that forestall the participation of African countries. / South Africa

Magister Philosophiae (Land and Agrarian Studies) - MPhil(LAS) / In this thesis I explore dispute resolution mechanisms within the context of the Extension of Security of Tenure Act, 62 of 1997 (ESTA) and more generally the extent to which the law and the court can be used to effect social change. I examine dispute resolution processes that parties to farm tenure utilise towards exercising their land rights. I give practical demonstrations of how parties on farms utilised processes to resolve eviction and burial disputes on farms in Limpopo province, South Africa. I focus on four case studies from farm dweller cases from Vhembe district, two evictions and two burials. The thesis compares and contrasts the cases settled through out of court settlements with those decided through the court processes. It is based on case files kept at the Nkuzi Development Association (Nkuzi) Elim office and follow up interviews with farm occupiers as well as court judgments on cases that were decided in court. I argue that decisions on choosing appropriate dispute resolution processes are determined by the parties’ economic position and the availability of land reform support Non-Governmental Organizations (NGOs) and lawyers. The findings drawn from the case studies show that ESTA dispute resolution mechanisms do not give choices to the parties in deciding how best to resolve tenure disputes they face, rather, they are forced to approach the courts. Parties to farm tenure disputes face challenges in using mediation and arbitration processes due to a lack of support from the relevant government agencies. These challenges ultimately deprive parties in disputes from making effective choices when deciding on a dispute resolution process that is appropriate for the dispute they are confronted with. This study concludes that ESTA is limited when offering necessary choices to the farm parties in disputes. The findings of this study point to the need for amendment of ESTA to provide parties in farm disputes with a choice of using mediation or arbitration processes directly as an alternative for those who do not want to resolve the dispute in court. In addition, an amendment should include the negotiation process and make the use of negotiation, mediation and arbitration compulsory for parties to first exhaust their use before approaching the court.

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.

This research study aims to investigate the South African Land Reform process from a conflict resolution perspective. According to Burton’s basic human needs theory deep-rooted social conflict will occur wherever social institutions neglect universal basic human needs. Excess to land and land tenure are considered basic human needs because they provide landowners with food, shelter and security. In absence of an extensive welfare state, land ownership fulfils the role of a social safety network, particularly in African countries. Consequently, an equal distribution of land is needed in order to enable the majority of South Africans to fulfil their basic human needs. The instrument chosen for correcting the inequalities in land distribution are the three components of the South African land reform programme namely tenure reform, restitution and redistribution. The South African Land Reform Programme was largely influenced by the World Bank’s ‘Willing-Seller Willing- Buyer’ or ‘Negotiated Land Reform Approach’. Nevertheless, the South African model differs from the original concept by the World Bank in some aspects. The outcome of the Land Reform Process is analysed and evaluated by the on-going evaluation approach. All sources used in this research are open to the public and published either on official websites or in hard cover version in reports and articles. The results of this investigation indicate that the target of redistributing 30% of white-owned agricultural land by the year 2014 is not going to be accomplished. Nevertheless, the settlement of claims can be considered a success story although most of the claims were settled by means of cash compensation instead of actual land transfer. Furthermore, a change in the land acquisition policy from a demand-led approach based on the negotiated land reform principle towards a more static, state-led, top-down approach has been identified as well as shortcomings in the post-settlement support of new landowners. To put it briefly, the land reform process in toto is about to fail and a chance of reducing the enormous conflict potential given away. Furthermore, the conflict potential will increase due to the failures in providing the poor and rural masses with access to land.