Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.

Part II of the International Labour Organisation Convention 158 recognises operational requirements of an organisation as a ground for dismissal. Section 213 of the Labour Relations Act describes operational requirements reasons as requirements based on the economic, technological, structural or related needs of an employer. The employer‟s needs in case of operational requirement dismissal must be separated from the other reasons for dismissal, such as misconduct and incapacity. Operational requirements dismissals are governed by section 189 of the LRA. The LRA draws a distinction between small and large scale dismissals and regulates them separately. Section 189 control small scale dismissals, while section 189A pertains to large scale dismissals For substantive fairness of a dismissal for operational requirements, the employer must prove that the said reason is one based on operational requirements of the business. The employer must be able to prove that the reason for the dismissal falls within the statutory definition of operational requirements. Employers are not allowed to use retrenchment to dismiss employees who they believe to have performed unsatisfactorily. This means that employers are not entitled to retrench for ulterior reasons, than those of operational requirements.The Labour Court has held that an employer may not under any situation retrench an employee on a fixed-term contract if the termination takes place before the contract of the employee ends, unless the contract of employment makes provision for termination at an earlier date. Retrenchment in this situation will amount to a breach of contract. Another point of interest in dismissals for operational requirements is that the Labour Relations Act states that it is not unlawful to dismiss a striking employee for reasons based on the employer‟s operational requirements. In relation to the selection criteria to be used during these dismissals, the Labour Relations Act again states that if an agreement cannot be reached between the consulting parties, then the employer must use criteria that are fair and objective.

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.

Section 197 of the Labour Relations Act (LRA) in both its original form and in its current form caused much confusion and debate. Originally it was interpreted that section 197 allowed for the automatic transfer of employees in cases where there was a transfer of the whole or part of a business, trade or undertaking as a going concern. That meant that the contracts of employment transfer to the new owner and that the employees could not refuse to be transferred. Various judges were tasked with interpreting this section in its original form and thus different interpretations emerged with the Labour Appeal Court ultimately deciding in the NEHAWU v University of Cape Town matter that employers involved in the transfer can decide between them, not to transfer the employees. The LAC further held that “outsourcing” does not necessarily entail a transfer of a business. Section 197 was amended in 2002 and the effect of the provisions is that the old employer is not required to seek the consent of the employees before their contracts are transferred and that the employment contracts transfer automatically. However, the current section has also raised some difficulties especially relating to: when does a transfer of a business as a going concern take place; what constitutes a “business”; when is an entity part of a business, trade, undertaking or service? A more glaring controversy relates to whether section 197 applies to “second-generation contracting out or outsourcing”. All provisions of the LRA should be interpreted in the context to advance economic development, social justice, labour peace and democratisation of the workplace. One of the primary objects of the LRA is to give effect to and to regulate the fundamental rights of the Constitution of the Republic of South Africa, 1996. Thus section 197 is to be interpreted in light of the objectives of the LRA as well as to promote the spirit, purport and objects of the Bill of Rights. The common law and international law are both important sources of comparison. The common law allows employers who transfer businesses free to decide whether or not the transfer will include the employees of the transferor. International law, particularly the European Union and the United Kingdom, favour the approach that when an entity is transferred, it retains its identity after the transfer and the safeguarding of employee rights in the context of business transfers. European and English jurisprudence have shown that almost any combination of events can constitute a transfer of a business.

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.

The promulgation into law of the concept of workplace forums has been beset with immense criticism and opposition from organized labour and some quarters of organized business. Last ditch efforts by the Ministerial Task Team had won the day for the inclusion of this controversial provision in the new Labour Relations Act.1 Commentators on the Act tend to agree that the fallout with organized labour at the negotiations has probably set the scene as to whether the provisions would be widely used or not. History has shown that the establishment of such forums in workplaces has been low. In some situations where workplace forums had been established, their continuous sustainability was put into doubt. This has led to the de-establishment of some of these forums in some workplaces. Various reasons were provided, but the prime factors for its failure could be traced back to the negotiations at NEDLAC. The unions opposed the original proposal by government that minority unions and even non-union employees can trigger the establishment of a workplace forum and insisted that this be restricted to majority unions. The voluntary nature regarding the establishment of a workplace forum and the trigger that only a majority union can invoke the provisions has still seen unions reluctant to utilize the provisions since it did not serve their purpose. The aims of the provisions, namely to increase workplace democracy, was therefore thwarted in favour of more informal procedures. Although the idea is a noble one, it is argued that the introduction of the provisions was ill-timed and inappropriate. The lesson that the legislature can take is that for any provision to be a success, buy-in from all stakeholders is paramount. Research has shown that there was a steady decline in the establishment of workplace forums. Since December 2004 there was not a single application received by the Commission for Conciliation, mediation and Arbitration. There is also doubt as to whether any of the Forums that were previously established are still functional. What is certain is that statutory workplace forums is not at the forefront as a vehicle for change that was envisaged in the Explanatory Memorandum that accompanied the new Labour Relations Act. What is also certain is that employers and employees are utilizing other forums to ensure workplace participation. These forums, however, only provide a voice to unionized workers. The vast majority of non-union workers remain voiceless. The proposed amendments in 2002 that intimated that the trigger be any union and not only majority unions failed to be passed into law. Perhaps it is that type of catalyst that is required to give life to the provisions. The future of workplace forums in South Africa is bleak and will continue to be if there is no intervention by the parties at NEDLAC to revive it. A complete revamp of the legislation would be required for such a revival. Some commentators have made meaningful suggestions on changes that can be made to the legislation to make workplace forums more attractive. Some have suggested it be scrapped altogether and future workplace participatory structures should be left to the parties to embrace voluntarily. Workplace forums are a novel innovation with great potential to encourage workplace democracy. There is nothing wrong with the concept. The application of such forums in the South African context is what is concerning. Perhaps prior experience and experimentation with similar type forums have tarnished workplace participation. The strategies by the previous regime and some employers have caused such participation to equate to co-option. Perhaps not enough spade work was done to ensure that the climate and attitude of the parties was conducive for its introduction. What is paramount no matter the form it takes is that workplace participation is crucial for economic growth and the introduction of new work methods to improve productivity. Without the establishment of such forums, whether voluntary or statutory, the ‘second channel principle’ that promotes non-adversarial workplace joint decision-making would be lost and conflict based participation could spiral leading to economic disaster.

The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.