University of Macau / Faculty of Law

This research expounds on the impact of Organised Labour in Dispute Resolution at eThekwini Municipality. The research will identify the positive and negative aspects of the stakeholders within the environment of labour relations. The necessity of this research is that very little research has been conducted in the dispute resolution environment at eThekwini Municipality. In any labour contract, there will always be disputes between the stakeholders concerned. In some instances, the conclusion of the dispute is a win-win situation or winner takes all. In the open market, the engaging of the Commission for Conciliation Mediation and Arbitration is the forum available to resolve disputes. In the local government sector, however, organised labour caters for the needs of its members by taking their grievances to the bargaining council under the auspices of the South African Local Government Bargaining Council. Local government is the sphere that is closest to the public at which delivery of services takes place. The manner in which this is conducted depends largely on the Municipality's institutional capacity. The institutional capacity also influences its regulatory role. The co-operative governance approach encourages multiple stakeholder arrangements to deal with labour relations issues. These arrangements will provide an illustration of the role of various stakeholders in achieving peace and harmony in the workplace. Organised Labour will always have a profound effect on the economy, politics and social services. Its contribution and development to society is highly influential and ensures its recognition. The challenge is to develop systems and procedures that will serve the labour relations environment. This research will set out to explore the dispute resolution mechanism that exists currently, and the effect it has in the Municipality. In this way there will be a definitive significance on the approach to formalise the roles employed by management and organised labour. / Thesis (MPA)-University of KwaZulu-Natal, Westville, 2010.

Thesis (M.A.)--Carleton University, 1992. / Also available in electronic format on the Internet.

Originally presented as the author's Thesis (doctoral)--Universität Tübingen, 2004. / Includes bibliographical references (p. [348]-368) and index.

Arbitration is central to the settlement of transnational commercial disputes. This dissertation discusses arbitration as an alternative method of dispute settlement as opposed to litigation. The work surveys the difficulties relating to international commercial arbitration and the enforcement of awards, and efforts made to overcome them. The research is divided into four chapters. The first chapter introduces the reader to the work. It gives a general background to international commercial arbitration and briefly explains what the dissertation is all about. Chapter two is definitional. It examines some of the definitions of international commercial arbitration and contains the author's thoughts on this issue. The author is of the view that the traditional definitions do not properly address the concept. It is concluded that the question whether an arbitration is international should largely depend on whether international norms are used to resolve the dispute rather than by reference to geographical considerations. This chapter also weighs the advantages and disadvantages of arbitration as against litigation. Chapter three deals with recognition and enforcement of awards. This is considered crucial since at the end of the day, parties to arbitration would want to enforce their awards in a court of law, in the event of non-compliance. Since the award might be made in a foreign country, enforcement may be problematic. The chapter examines efforts made in intemational and domestic law to overcome such problems and achieve enforceable awards. A selection of multi-lateral, regional and domestic laws is examined. This chapter also discusses problems of enforcing awards against states and steps taken to overcome them. The final chapter deals with general conclusion and suggestions. It is suggested that efforts should be made to harmonise international commercial arbitration. This can be achieved both in domestic and international law. / Jurisprudence / LL.M. (Jurisprudence)

This study examines the role of bilateral investment treaties in securing foreign investment in Ethiopia. Using books, journal articles, and legislation, the study has found that those bilateral investment treaties have a role in securing international investments for Ethiopia. It has also found that BITs do not only safeguard foreign investors but can also attract more investment. The study concludes by providing a list of recommendations, highlighting the benefits of BITs for Ethiopia. / Public, Constitutional, and International Law / LL. M. (International Economic Law)

LL.M. (Commercial Law) / Please refer to full text to view abstract

This treatise provides an overview of the procedures for the registration, regulation and protection of Internet domain names. An analysis of legal rules applicable to domain names and problems related to the protection of domain names in South Africa, United State, United Kingdom and internationally is undertaken. The problems includes cybersquatting, misuse of personal names, reverse domain hijacking, misuse of meta tags and keywords. The treatise established possible solutions applicable to South Africa by investigating how other countries have dealt with such problems, and further investigated the extent to which South African legislation is suited to deal with such problems. An investigation of the regulation in terms of the Electronic Communications and Transactions Act 25 of 2002 is briefly attempted, and proposals for the future on the South African domain name system suggested.

The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.

M.Comm. / With the adoption of the 1995 Labour Relations Act (LRA) and the creation of the Commission for Conciliation, Mediation and Arbitration (CCMA), expectations ran high that the era of workplace conflict that had characterised previous labour dispensation would come to an end. The reality, however, is that parties have abdicated their responsibility in dispute-resolution, and have transferred this responsibility to the CCMA and Bargaining Councils. The purpose of this study was to gain insight into the perceptions of users of the current model with regard to its effectiveness, flaws and challenges. Based on the data received, this study presents a case for a new approach to discouraging disputes from being taken beyond the level of the workplace. The following research questions were formulated: Given the prevailing lack of ownership by parties over dispute-resolution and the resultant rise in case load and costs, what alternative strategies could be adopted? With the introduction of such new strategies, what dispute resolution model would be appropriate to enable the parties to focus on the core issues and also reduce costs? These questions are based on the set of main problems and sub-problems. The main problems are the low dispute-resolution/settlement rate (the conciliation stage being a mere formality), even when arbitration takes place; and the lack of ownership for dispute prevention by line managers and organised labour. In collecting data I followed the triangulation approach which combined both qualitative and quantitative research. During the qualitative stage, I collected data by using unstructured interviews and audio-recording the interviews with the Secretary of the PHSDSBC. I used quantitative methods to distribute participants’ agenda points and to record the numbers returned. The same method was used to analyse the patterns and themes emerging from data collected. Forty-nine negotiators, shop stewards, human resource managers across the nine provinces, and staff in the office of the Secretary of the PHSDSBC, were selected. Because participants in the study were distributed over a wide area, my level of physical contact with them was restricted to the normal business schedules of the Bargaining Council, during teambuilding exercises, and during Employer Caucus meetings. As a participant in these meetings, I was able to adopt an auto-ethnographic stance. I analysed the data, using graphical depictions, and categorised it into thoughts and later into themes. The findings indicate that the current dispute-resolution system model, being reactive in its application, is time-consuming for the both employee and the employer.