Mercantile Law

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Open Access
An analysis of the codes of good practice issued in terms of the Broad Based Black Economic Empowerment Act 53 of 2003
(University of the Free State, 2006-11) Knoetze, Hyla Magdalena; Snyman-Van Deventer, E.; Conradie, M.
English: BBBBBEE170 is an essential ingredient in facilitating the meaningful participation of blacks at all levels of the South African economy, in order to ensure sustainable socio-political and economic stability and the sustainability of the economic growth and development. BBBEE key principles • It is an ongoing process and not an event • It is a business imperative and an integral component of the company’s business strategy and is based on the core values of the organization • • It must result in meaningful and significant participation of blacks in the company and in the broader economy, through substantial changes in the racial composition of ownership, control, management structures and of skilled and specialist positions • It must lead to advantaged strategic position for the company, greater profitability, business growth and sustainable increase in stakeholder value • it is the responsibility of all management in the organisation.
Open Access
Authorship in copyright law: a critique in the context of the fourth industrial revolution
(University of the Free State, 2023) Dlamini, Simphiwe; Sindane, Ntando
This dissertation critically examines the demands for an amendment of the South African Copyright Act 98 of 1978 to bring it in line with modern times. It investigates authorship in copyright law from the perspective of the Fourth Industrial Revolution. This dissertation focuses specifically on artificial intelligence (AI) and its ability to generate copyrightable works under the Act. The growing use of AI technology inversely leads to the growing production of works generated by AI. These mechanically produced works share the same traits as those that, according to South African law, are entitled to copyright protection. As a result, there is currently uncertainty over who the author of such works is, because AI machines do not qualify as authors under the South African Copyright Act. This dissertation examines the definition of an author in the existing Copyright Act, as well as the requirements for authorship and copyright protection, in order to determine if this section of the Act needs to be amended to reflect the Fourth Industrial Revolution. To accomplish this, the dissertation investigates prominent South African intellectual property law textbooks as well as international sources that have conducted extensive research on the subject. The dissertation reveals the excessive use of artificial intelligence machinery and its products in the country and around the world. It demonstrates the growing need for legislation to govern such machinery in the country, as well as rules to regulate the usage of such technology and the copyrightable works it produces. The dissertation studies the nature of copyright in a work made by AI equipment nationwide and internationally, as well as how these machines will affect different areas in the country. An analysis of the requirements for copyright is provided, and it is argued that the present requirements for copyright cater to works generated by artificial intelligence even though these machines do not qualify as authors under the Act. Furthermore, the dissertation demonstrates how a lack of regulations in this regard will have a negative impact on specific areas, such as the country's education system. It indicates that South African legislation has not advanced sufficiently in comparison to other countries. The dissertation finds that the current Copyright Act is outdated and needs to be amended to account for AI generated works as well as AI authorship. Furthermore, legislation to oversee AI technology in the country should also be considered.
Open Access
Bullying in the workplace : towards a uniform approach in South African labour law
(University of the Free State, 2014-01) Smit, Dina Maria; Du Plessis, J. V.
Bullying in the workplace is a kind of aggression that occurs where an individual or group intimidates, excludes, harasses, insults, mistreats or demeans another individual or group at work, either directly or indirectly. A complex power imbalance presents itself, in that the perpetrator uses formal or informal power over his or her victim to such an extent that the victim is almost powerless to defend him or herself. Bullying can occur from the top to the bottom, from the bottom to the top, or horizontally. Not all kinds of bullying give rise to illegal acts, but even if menial bullying continues over time, it can give rise to severe negative effects. Due to new digital developments in employment, the management of cyberbullying, as a form of workplace bullying, complicates the legal dilemma even further. Not only do bullied victims have to continue in a working relationship where the bullying took place, but depression, stress, anxiety, post-traumatic stress disorder and a plethora of physical illnesses also take their toll, as reflected in abnormally high turnover and absenteeism figures. If no timeous intervention occurs early during the bullying, severe psychological problems have been reported by bullied victims, which render them incapable to continue with work, or lead to summary resignations accompanied by claims for constructive dismissal. Low morale and negativity have been shown to be linked to workplace bullying and impact negatively on the organisation as a whole, and vicarious liability for the employer may follow. Due to the fact that there is no universally accepted definition for bullying and different jurisdictions place bullying on different continuums, it adds to the problem of regulating and preventing workplace bullying. The question has been asked whether there is a need to legislate employees into being “nice” to one another, but that merely shows the lack of knowledge about the notion and effects of workplace bullying. Sexual harassment is a form of human behaviour and is regulated extensively. With bullying four times more prevalent than sexual harassment, there is no reason why bullying should not be regulated also. Many countries, such as Sweden, Germany and France, have legislated bullying and there is a strong drive in the USA to have the Healthy Workplace Bill passed. Many states have introduced different versions thereof, but none have been passed. The USA treats bullying as a form of harassment, and no protection exists for employees who fall outside the scope of certain “classes”, unless, of course, the bullying amounts to criminal actions or tort action. The UK treats workplace bullying as a dignity violation and extensively uses antistalking law, in the form of the Protection from Harassment Act of 1997, to curb bullying. Australia views bullying from a health and safety perspective and, in South Australia, it is currently dealt with by means of Codes. There is a drive to eradicate bullying from the workplace on a national level through a new Code (dealing with workplace bullying), for which public commentary has recently closed. Little has however been done in South Africa to create awareness of, or deal with, this peril. The country is in dire need of a uniform approach to workplace bullying. It is not clear on which continuum bullying should be placed, but as our discrimination laws are not limited to certain “classes”, it is not suggested that separate legislation should be passed. The new Protection from Harassment Act could be used, as in the UK. Employers should embark on the creation and implementation of zero-tolerance policies in the workplace to deal with this pervasive problem. For too long the victims of workplace bullying have suffered silently at the hands of bullies.
Open Access
A business rescue model for unincorporated business entities in South Africa
(University of the Free State, 2022) Mpofu, Kudzai; Moolman, H. J.; Snyman-Van Deventer, E.
The significance of small and medium enterprises in promoting economic growth has received sufficient academic and legislative attention. However, little attention has been paid towards promoting and promulgating legislation that oversees the recovery of small enterprises in financial distress. The study compares business rescue schemes applicable to sole proprietorships and partnerships to draw lessons for the legislature and policymakers in South Africa. The current legislation on business rescue and debt review intentionally exclude sole proprietorships and partnerships mainly because of their legal personality. The Companies Act of 2008 only admits incorporated companies to business rescue. Furthermore, the National Credit Act 2005 excludes partnerships from debt review because the legislature classified them as juristic persons. For this reason, sole proprietorships and partnerships in financial distress cannot depend on the current legislation to facilitate restructuring proceedings. Therefore, the study identifies the key elements of an effective business rescue scheme which may apply to unincorporated business entities. Through a comparative assessment of different rescue regimes, it was concluded that an efficient rescue scheme must consist of an eligibility criterion, a procedural framework consisting of a step-by-step rescue process and an institutional framework with already pre-determined role players. The main conclusions from the study are that the eligibility criterion must only admit business debtors to the business rescue process. On that note, it was observed that it would be necessary to regulate the liability of sole proprietorships and partnerships during the rescue process. This may be achieved by recognising them (sole proprietorships and partnerships) as legal persons for purposes of business rescue. The study shows that the step-by-step procedure should include a commencement procedure that allows owners of sole proprietorships and partners in a partnership to apply for business rescue. As soon as the procedure commences, a moratorium on creditors' rights must be automatically activated. The stay should protect the business, the owners, and the codebtors. While the moratorium is the operation, the business rescue practitioner must prepare a business rescue plan that includes the treatment of secured and unsecured creditors. More so, consideration must be made on the possibility of selling parts of the business, merging the business with other successful businesses or incorporating the business. The study revealed that it may be necessary for the legislature to allow the debtor to continue borrowing during the business rescue process. However, the rescue process is terminated if the business rescue plan is fully implemented or the debtor faces unforeseen economic hardships. The effect of termination is that the debtor is discharged. The study indicates that the institutional structure should include the debtor, the business rescue practitioner and a specialised judge. The success of business rescue depends on the honesty and cooperation of the debtor. It was concluded that to reduce the cost of business, rescue the debtor may remain in control of its business but must be monitored regularly by appointing a state-sponsored business rescue practitioner who reports to the creditors. In the event that the creditors have reason to mistrust the debtor's honesty, they may choose to appoint and pay for a private business rescue practitioner jointly. In that case, the debtor must cooperate with the business rescue practitioner who oversees or monitors the rescue process. The business rescue practitioner must regularly report to the creditors and the court about the success or failures of the debtor. Since business rescue involves different areas of study, including business, law and financing, it was concluded that South Africa might need a specialised court system. Establishing an administrative institution akin to the Office of the official receiver would also be necessary to oversee the rescue process. Such an institution may be subsidised by the state to reduce the cost of business rescue. Generally, most of the observations made during the study were included in the recommendation to the legislature.
Open Access
The co-operative as an appropriate form of enterprise for Black Economic Empowerment
(University of the Free State, 2006-11) Schoeman, Nicolene Francina; Snyman–van Deventer, E.; Conradie, M.; De Lange, A.
English: In the South African context, BEE is not only regarded as a moral and social imperative, but also as a legislative one. BEE functions on two levels, namely the creation and sustenance of wealth, and the creation of opportunities, in order to widen the economic sphere. If successful transformation is to be achieved in South Africa, it is of vital importance that practical suggestions for its implementation be investigated. The co-operative has been described by international organisations like the International Co-operative Alliance, as a business enterprise that develops and /or empowers people through self-help. Locally the co-operative both on SMME and large corporate scale has been identified as a potential vehicle to drive the social and economic upliftment of the people of the South Africa. The Co-operatives Act 14 of 2005 was promulgated to give effect to this. Co-operatives have the following characteristics that make them ideally suited to the current South African situation: they are versatile in their application, they are accessible enterprises as initial establishment is cost effective and they are generally easy to establish, they provide both a social and economic function (dual function) to their members, generally apply a one-member-one-vote-system in management thereby promoting democratic principles, and they promote the concepts of individualism and autonomy within their structures. A successful co-operative enhances both individual and collective human dignity and promotes the values of ubuntu, which uplifts people on all levels, thereby complying with both the social and economic aspects of BEE in the creation of opportunities to widen the economic sphere. Furthermore, the cooperative as an enterprise complies with the BEE scorecard as well as with the Codes of Good Practice which were drafted by government in accordance with the provisions of the Broad-based Black Economic Empowerment Act 53 of 2003.
Open Access
A comparative labour law perspective on categories of appearance-based prejudice in employment
(University of the Free State, 2014-11) Viviers, Damian John; Smit, D. M.
English: Appearance discrimination entails discrimination against persons because of an aspect of their appearance, such as their physical attractiveness, height, weight, manner of dress and grooming styles. It also extends to individuals who elect to alter their appearance by undergoing gender reassignment. Appearance-based discrimination is a prevalent concern in workplaces across the globe, with jurisdictions such as the United States of America, Australia, the United Kingdom, Europe, Malaysia, Japan, China and South Africa showing signs of this problem. Employers‘ subconscious appearance preferences seem to filter into their employment decisions, policies and practices, causing employees who do not meet certain appearance standards to suffer discrimination in employment. Employees may also be subjected to bullying, harassment and hostile work environments because of their appearance characteristics. Research indicates that individuals who are physically more attractive as well as taller enjoy preference in the employment realm, while less attractive and shorter individuals are discriminated against and often suffer employment detriment, even when these characteristics are unrelated to the inherent requirements of the job. Employers‘ discretion to impose dress codes and grooming standards (when such criteria are unrelated to the inherent nature of the employment position) in effect curb employees‘ right to freedom of expression via their appearance, as well as their individuality and personal autonomy. Particular considerations in the context of appearance-based discrimination include weight-based discrimination, discrimination against so-called ―trans-employees‖, as well as appearance-related bullying and harassment of employees. Individuals whose body weight deviates from the norm experience significant discrimination in the workplace. Overweight and obese individuals suffer particularly severe employment detriment, as they are assumed to be in ill health, to be lazy and lacking work ethic. Employees who choose to alter their appearance through the process of gender reassignment are equally severely discriminated against in the employment setting. As is the position with the other categories of appearance discrimination, these individuals have little legal recourse that explicitly addresses the nature of the unfair discrimination to which they are subjected. Bullying and harassment of employees because of an aspect of their appearance is another significant concern in employment, with the same limited legal protection currently available to victims. As bullying is not governed or prohibited by law, and the appearance categories fall outside the ambit of the listed grounds of prohibited discrimination, such conduct does not officially amount to harassment either. The global attitude towards appearance discrimination is however beginning to change, and the International Labour Organisation has recognised this problem. Various states in the United States of America and in Australia have started enacting legislation to govern this issue and outlaw appearance discrimination in the employment arena. The judiciaries of these jurisdictions, as well as those in the European Union and South Africa, are also hearing more and more cases in this regard. South Africa still lags behind the rest of the world in dealing with this concern, even though many employees in the country do suffer unfair discrimination, bullying and harassment on the basis of their appearance. Discriminating against employees based on their appearance, without such discrimination being legally justifiable, amounts to unfair discrimination, and violates victims‘ rights to equality and dignity. It also acts as a barrier to equity in the workplace. Harassment and bullying of individuals because of an aspect of their appearance is equally unacceptable, amounting to a dignity violation. Afrikaans: Voorkomsdiskriminasie behels diskriminasie teen persone as gevolg van ‘n aspek van hul voorkoms, onder meer fisiese aantreklikheid, lengte, gewig, klerestyl of persoonlike versorging. Dit geld ook vir individue wat kies om hul voorkoms deur geslagswysiging te verander. Voorkomsdiskriminasie is ‘n algemene probleem in werkplekke oor die hele wêreld, met jurisdiksies soos die Verenigde State van Amerika, Australië, die Verenigde Koninkryk, Europa, Maleisië, Japan, China en Suid-Afrika wat tekens daarvan toon. Werkgewers se voorkomsvoorkeure sypel deur na hul indiensnemingsbesluite, beleide en praktyke, en stel werknemers wat nie aan sekere voorkomsstandaarde voldoen nie, aan diskriminasie bloot. Werknemers word ook dikwels blootgestel aan bullebakkery en teistering op grond van hul voorkoms. Navorsing dui daarop dat individue wat fisies aantrekliker en langer is, voorkeur in die werkplek geniet, terwyl minder aantreklike en korter individue diskriminasie en benadeling in die werksomgewing ervaar, selfs wanneer hierdie eienskappe nie met die kernvereistes van hul werk verband hou nie. Werkgewers se diskresie om dragkodes en versorgingstandaarde neer te lê (waar sulke kriteria nie met die kernvereistes van die werk verband hou nie), beperk inderwaarheid werknemers se reg op vryheid van uitdrukking via hul voorkoms, en lê hul individualiteit en persoonlike outonomie aan bande. Bepaalde oorwegings in verband met voorkomsgegronde diskriminasie sluit in gewigsdiskriminasie, diskriminasie teen sogenaamde ―transwerknemers‖, sowel as voorkomsverwante bullebakkery en teistering van werknemers. Individue wie se liggaamsgewig van die norm afwyk, ervaar beduidende diskriminasie in die werkplek. Oorgewig en vetsugtige individue ondervind veral erge benadeling in die werkplek omdat daar aangeneem word dat hulle siek is, lui is en oor swak werksetiek beskik. Werknemers wat kies om hul voorkoms deur die proses van geslagswysiging te verander, ervaar ewe erge diskriminasie in die werksomgewing. Soos met die ander kategorieë van voorkomsdiskriminasie, het hierdie individue weinig remedies tot hul beskikking wat die onbillike diskriminasie spesifiek hanteer. Afknouery en teistering van werknemers as gevolg van ‘n aspek van hul voorkoms is nóg ‘n beduidende bron van kommer in die werksomgewing, met ewe min wetlike beskerming tot slagoffers se beskikking. Aangesien bullebakkery en teistering nie volgens wet gereguleer of verbied word nie, en die voorkomskategorieë buite die bestek van die gelyste gronde van verbode diskriminasie val, is sulke optrede ook nie (wetlik beskou) teistering nie. Die wêreldwye houding teenoor voorkomsdiskriminasie is egter besig om te verander, en die Internasionale Arbeidsorganisasie het reeds die probleem erken. Verskeie state in die Verenigde State van Amerika en in Australië het begin om wetgewing uit te vaardig om hierdie probleem in die werksomgewing te reguleer en te verbied. Die howe van dié jurisdiksies, sowel as dié in die Europese Unie en Suid- Afrika, hoor ook al hoe meer geskille op hierdie gebied aan. Suid-Afrika is egter steeds agter die res van die wêreld in die hantering van hierdie kwessie, al gaan heelwat werknemers in die land gebuk onder onbillike diskriminasie, teistering en bullebakkery op grond van hul voorkoms. Diskriminasie teen werknemers op grond van hul voorkoms, sonder dat dit wetlik geregverdig kan word, kom neer op onbillike diskriminasie, en skend die slagoffers se reg op gelykheid en waardigheid. Sulke diskriminasie dien ook as ‘n hindernis vir gelykheid in die werkplek. Teistering en afknouery van individue as gevolg van ‘n aspek van hul voorkoms is ewe onaanvaarbaar, en kom op ‘n skending van menswaardigheid neer.
Open Access
The core content of public school learners' right to a basic education in terms of Section 29 (1)(A) of the Constitution
(University of the Free State, 2015) Merabe, Maisa Jeremiah; Deacon, H. J.
This study attempts to address a complex question: What is the content of the right to ‘a basic education’?. In 20 years of democracy the Constitutional Court has been unwilling to determine the minimum core content of the socio-economic rights in the context of the Constitution. The study explored the scholarly debate and case law from the year 2009 up to and including 2014 where High Courts have started to determine the content of a right to ‘a basic education’. The study concludes by suggesting that the core content of the right to a basic education, more especially when that right is in issue, should be determined by using all the relevant policies and legislative measures the government had put in place since the new constitutional dispensation in the country in 1994 in order to give effect to the right. In so doing, the State should at the very least include school governing bodies, teachers, parents and learners and meaningfully engage with them to ensure that the content of a right to ‘a basic education’ is sufficiently tailored to their needs.
Open Access
A critical analysis of the right to fair labour practices
(University of the Free State, 2013-01) Conradie, Maralize; Du Plessis, J. V.
Section 23 of the Constitution is an embodiment of fundamental labour rights. Section 23(1) reads as follows: “(1) Everyone has the right to fair labour practices.” The fair labour practice concept is a rather recent development in South African labour law and is it therefore still required to attempt to provide meaning to this concept. It further becomes essential to provide meaning to the concept if it is acknowledged that when this concept was introduced in 1979, the unfairness of the concept was regulated by labour legislation and the Industrial Court’s equity jurisprudence; currently, not only the unfairness of this concept is legislatively regulated but is the fairness of this concept embedded as a constitutional guarantee in the Constitution of South Africa. It has therefore become necessary to determine the exact scope of this constitutional right in order to determine the relation between the legislative concept and the constitutional right and to investigate whether there is any room for an extended view of this right and to which limitations (if any) it should be subjected to. Prior to analysing the constitutional right to fair labour practices, a comprehensive investigation was led into the historical position preceding the introduction of this right. It was found that the history of fair labour practices played an immensely important role in the analysis of this constitutional right. The events, motivations and circumstances which consequently led to the introduction of this right, without any doubt, provided a useful guideline as to the interpretation of the right. The disregard for the human element present in the employment relationship, not only while slavery was in existence but also in the continued policies and mindsets of policy-makers thereafter, could be described as the first element contributing to the unfairness of labour practices. It was also found that, although the common law still being relevant, the common law contract of employment should no longer serve as the yardstick for establishing the existence of an employment relationship (for purposes of provision of protection and ensuring fair labour practices). Regards must rather be having to all the circumstances surrounding the relationship between a person rendering services and the person paying for the services in order to establish the true nature of the relationship. In the end, protection for either of these parties is not solely dependent on a contract of employment anymore, but rather on the fact whether an employment relationship was proven or not. Before the enactment of the Constitution, protection in an employment context was literally limited to legislation providing protection. It is suggested that legislation should be interpreted according to the Constitution and common law should be developed in terms of the Constitution. Based on this premise everyone can currently enjoy the right to fair labour practices based on section 23(1), even if excluded by legislation or common law and even in the absence of regulation by legislation or common law. When analysing the word everyone, it is submitted that our law has moved beyond the realms of contract to broad constitutionality in determining who is an employee. A claim to be recognised as an employee in terms of the 1995-LRA is not contractual in nature but rather a claim to enforce constitutional rights. Although a contract of employment (or being regarded as an employee) is required to claim labour rights in terms of the 1995- LRA and other labour laws, section 23(1) of the Constitution provides broader protection than labour laws where a person is in a work relationship akin to an employment relationship. Everyone should be determined with reference to “being involved in an employment relationship”. The following persons will therefore in general enjoy protection in terms of this right: natural persons, juristic persons, employers, workers (including employees employed in a contract of employment and employees in utero), independent – and dependent contractors, citizens, aliens, children, job applicants, illegal workers (to a certain extent), temporary workers, casual workers, acting workers, probationary workers and managerial employees. It is also suggested that the protection afforded by section 23(1) is not limited to an individual relationship but extends to collective relationships as well. Fairness is a concept that has drawn attention not only since the unfairness of labour practices in South Africa has been realised but since the beginning of time. In attempting to comprehend the meaning of this concept attention should therefore be divided to the unfairness complained of, the views of ancient philosophers, the recommendations of the Wiehahn Commission, the previous Industrial Court’s perception and decisions on fairness, contemporary views and future predicaments (last mentioned form an important part of defining this concept due to the fact that much of the meaning of the concept of fairness is contained in its idealistic nature). Determining the fairness of a labour practice should not be done according to a value judgment made by a court as this would lead to much uncertainty. Therefore a statutory definition of an unfair labour practice must be interpreted and applied in accordance with the spirit, purport and objects of the fundamental rights guaranteed by the Constitution. It is not certain what type of value judgement will ensure fairness and it is also uncertain how it should be done. Furthermore, the content and standard of such a value judgment is uncertain. Brassey’s determination of fairness ensures much more certainty: A labour practice will only be regarded as fair if it bears both an economic rationale and also proves to be legitimate. It is suggested that fairness is determined by balancing the respective interests of parties in any given situation. If the other factors, i.e. the concept of everyone and the meaning of fairness, influencing the application of section 23(1), the history of unfair labour practice regulation and the values of the Constitution are taken into consideration, it seems justified to conclude on the concept of labour practices in the following fashion: the Constitution envisaged to prevent and prohibit the repetition of a system that was representative of unfairness in the employment relationship. Both individual – and collective employment relations have bearing on the perceived fairness of the employment relationship. All practices concerned with the employment relationship (before, during and after such a relationship) should therefore be subject to the scrutiny of the constitutional right to fair labour practices.
Open Access
Cyberbullying in South African and American schools : a legal comparative study
(Education Association of South Africa (EASA), 2015-05) Smit, D. M.
Bullying conjures up visions of the traditional scho olyard bully and the subordinate victim. However, b ullying is no longer limited to in-person encounter, having come to incl ude cyberbullying, which takes place indirectly ove r electronic media. In this electronic age, cyber platforms proliferate at an astonishing rate, all attracting the youth in l arge number, and posing the risk that they may become subject to cyberbullying. Far from being limited to those individual learner s being cyberbullied, the effects of this phenomenon extend to the learne r collective, the school climate, and also the enti re school system, man- agement and education, thus requiring an urgent res ponse. This article first provides a general overvi ew of cyberbullying and its impact on learners, schools and education. This is done through a comparative lens, studying the e xtent of the phenome- non in both the United States and South Africa. The focus then shifts to the existing legislative fram eworks within which the phenomenon is tackled in these respective jurisdict ions, particularly the tricky balancing act require d between learners’ constitutional right to free speech and expression, and the protection of vulnerable learners’ right t o equality, dignity and privacy. The article concludes by proposing certain possible solutions to the problem.
Open Access
Decent work for on-demand workers in the modern-day gig economy
(University of the Free State, 2023) Stopforth, Grey; Smit, D. M.
Radical technological development during the past two centuries has led to various enabling technologies changing the world of work on a global scale and, unfortunately, not always for the better. With one of the highest unemployment rates in the world, South Africa's reliance on informal forms of work is increasing, raising the question of how to ensure decent work in the modern world of work. This becomes even more troubling, seeing that millions of unemployed people are trying to enter the labour market. This is especially true for unemployed youth in South Africa, who are suited for these new forms of work due to technological advancements, the rise of complexities associated with the gig economy, and the skills required by jobs. Although the benefits of embracing the technological changes in the workplace are apparent, some technologies continue to disrupt the traditional employment model to the extent that many are excluded from labour and social protections. One of the emerging sectors brought about by the technological changes, especially the use of mobile applications, is the gig economy. The gig economy is an economy that involves the exchange of labour for payment between companies or individuals via a digital platform. The concept 'gig economy' is used interchangeably with other types of economies that are linked to platform work. This includes economies such as the digital economy, collaborative economy, sharing economy, platform economy, and on-demand economy. The gig economic model leans more towards emerging economic activities coupled with the platform economy, which is divided into two forms of platform work, crowdwork and on-demand work. In addition, platform work is characterised by irregular work arrangements, additional costs on workers providing the service, work that is paid for tasks completed, and accessibility of work facilitated by various platforms. Research suggests that non-standard forms of work continue to feature in the gig economy, and that classification of platform workers as independent contractors remains a major concern. International perspectives and research conducted on on-demand work in foreign jurisdictions is instrumental to finding best practices for advocating decent on-demand work. Although the ILO has yet to reach an agreement on a universal approach to regulating on-demand work, it has taken progressive steps to achieve decent work for, and extend basic labour and social protection to, those working in the gig economy. However, a solution for the universal regulation of the modern-day gig economy and on-demand work remains elusive. In the absence of such, it is found that on-demand workers are rendered vulnerable in respect of basic conditions of employment, having little to no control over unilateral changes to the contractual terms that regulate their relationship. On-demand workers also lack protection at the level of both individual and collective labour rights; therefore, they experience unfair deactivation, discrimination by both clients and the platform, and poor collective bargaining power. Taking this into account, the question needs to be asked if South Africa sufficiently advocates for decent on-demand work. The rights of on-demand workers warrant urgent regulatory intervention that could take the form of proactive steps from a platform company in the form of policy considerations from the platform company. A workable solution to the decent work deficit in the on-demand sector can therefore be proposed by either the legislator by way of legal reform, or by the platform company by means of policy measures and/or revised terms and conditions.
Open Access
Depressie en die wêreld van werk – ’n arbeidsregtelike perspektief
(LitNet, 2013-09-29) Smit, Denine; Fourie, Laetitia
Afrikaans: Depressie raak tans meer as 121 miljoen mense wêreldwyd en sal waarskynlik teen 2020 die tweede mees algemene toestand ter wêreld wees. Aangesien depressie op die gemiddelde ouderdom van 25 kop uitsteek, is dit vanselfsprekend dat dit ’n uitwerking op ’n land se arbeidsmag sal hê. Die Wêreldgesondheidsorganisasie (WGO) omskryf depressie as “’n algemene geestesongesteldheid wat kronies of herhalend kan word en wesenlike beperkings kan oplê aan ’n individu se vermoë om sy of haar daaglikse verantwoordelikhede na te kom”. Wanneer hierdie omskrywing met die maatstawwe vir gestremdheid ingevolge Suid-Afrika se Goeie Praktykskode vir die Indiensneming van Persone met Gestremdhede vergelyk word, wil dit voorkom asof depressie in bepaalde omstandighede as ’n gestremdheid aangemerk kan word. Deur ’n vergelykende studie van die gestremdheidsverwante wette in die Verenigde Koninkryk (onder meer die Equality Act van 2010 en die Disability Discrimination Act van 1995) en die bestaande Suid-Afrikaanse wetgewing en statutêre instrumente (waaronder sowel bogenoemde Goeie Praktykskode as die Goeie Praktykskode vir Ontslag, die Grondwet van die Republiek van Suid-Afrika, die Wet op Gelyke Indiensneming en die Wet op Arbeidsverhoudinge), dui hierdie navorsing daarop dat die Suid-Afrikaanse statute en instrumente gebrekkig is wat betref die mate van beskerming wat dit aan sowel werknemers met depressie as hul werkgewers verleen. Alhoewel die Goeie Praktykskode vir die Indiensneming van Persone met Gestremdhede ’n nuttige riglyn is om die billike hantering van mense met gestremdhede te bevorder, kort Suid-Afrika instrumente met voldoende regsgeldigheid wat uitsluitlik oor gestremdheid handel en spesifiek vir depressie in die werkplek voorsiening maak. Tans word depressie as die “stiefkind” van gestremdheid behandel en ontvang dit weinig formele erkenning as regverdiging vir siekte en/of ongeskiktheid. Hierdie artikel stel dus voor dat die wetgewing van die Verenigde Koninkryk as model vir Suid-Afrika dien om verdere wetgewing op te stel ten einde werknemers met depressie meer doeltreffend teen onbillike diskriminasie te beskerm en terselfdertyd oor die ekonomiese belange van die werkgewer te waak.
Open Access
Die aanspreeklikheid van die lede van 'n bestuursraad en die administrateurs van aftreefondse
(Faculty of Law, University of the Free State, 2005) Du Plessis, J. V.
English: The liability for the non-compliance with fiduciary and statutory duties towards a retirement fund and the members or beneficiaries of such a fund is in many ways not clear for the members of the board or the third party administrator. The question that must be answered is under which circumstances the members of the board or the third party administrator will be held liable? This question is discussed in this article with reference to the duties prescribed by law as well as the determinations made by the adjudicator. The determinations of the adjudicator, although they do not constitute binding precedent, provide clear guidelines for the circumstances under which the different parties may be held liable.
Open Access
Die multilaterale beleggingsooreenkoms (MAI): 'n kruispad vir internasionale beleggingsregulering?: kroniek
(Faculty of Law, University of the Free State, 2001) Wandrag, R.; Snyman, E.
Abstract not available
Open Access
Die statutêre raamwerk van taalbeleid in openbare skole en die implikasies van die twee Ermelo-uitsprake: kroniek
(Faculty of Law, University of the Free State, 2010) Colditz, Paul; Deacon, Jaco
Afrikaans: ale is die stambome van volkere. Hierdie woorde onderstreep die diep gewortelde emosie en sterk standpunte oor taal. Met hierdie agtergrond en binne die raamwerk van 'n land met 11 amptelike landstale en 'n grondwetlike bedeling met fundamentele regte, is die tafel gedek vir een van die mees omstrede aspekte binne onderwys: taalbeleid binne skole.
Open Access
Die vennootskap: goeie huweliksmaat met huwelik of konkubinaat?
(Faculty of Law, University of the Free State, 2003-06) Snyman-Van Deventer, E.; Henning, J. J.
English: In this article the legal position of people in a concubinate relationship after the breakup or dissolution of the relationship in the American, Dutch and South African law is compared. Various attempts in the American law failed to solve the problems that originate with the dissolution of marriages and concubinates or to establish a just and equitable system. In the Netherlands attempts were made to solve problems with living-together relationships, especially between members of the same sex. The South African courts have solved these problems by application of the partnership principles on these relationships through recognition of the universal partnership and its use as a just and equitable remedy.
Open Access
Dispute resolution in NAFTA and the WTO: a useful guide for SADC?
(Faculty of Law, University of the Free State, 2003) Snyman-Van Deventer, E.
English: In the process of developing, structuring and formalising the mechanism for settlement of trade disputes in the SADC region, the system for the settlement of disputes in both NAFTA and the WTO can serve as a useful guide for SADC and even more so for the African Union. The swift, fair and just settlement of especially trade disputes will be a major factor in the economic development of the region and it is therefore necessary that a mechanism for the settlement of disputes is established that will serve the aims of SADC and its member states. This article provides an overview of the mechanisms for trade dispute resolution in the WTO and NAFTA as guide for SADC.
Open Access
Dumping and antidumping regulations with specific reference to the legal framework in South Africa and China
(University of the Free State, 2006-05) Tao, Meng; Snyman-van Deventer, E.
From 1904 the world’s first antidumping law was enacted by Canada, South Africa followed in 1914, the GATT in 1947, and China in 1994. Over time, antidumping law has become a potent weapon in most countries of the world. South Africa and China, as member states of the WTO, increasingly participate in international trade and must remain aware of their legal right in respect of antidumping law. The purpose of this study is to identify and analyse some problematic issues of antidumping regulations, with specific reference to the legal framework in South Africa and China. With this purpose in mind, firstly, the background information and a brief history of the development of antidumping legislations by the international community, South Africa and China are discussed. Then, the issues of antidumping substantive law (including normal value, export price, dumping margin, injury, and domestic industry), especially with the problem of a nonmarket economy country and captive production, price undertaking, price undertaking reviews, and anticircumvention are analysed. In order to come to a clear understanding of the problems and solutions, the antidumping laws of the U.S., the E.U., South Africa and China are compared. This study resulted in the following conclusions: • The provision for a nonmarket economy country in the South African Antidumping Regulation is not adequate. China has no stipulation about this problem. • Both South African and Chinese antidumping regulations have no captive production provisions. The E.U. model is recommended. • With respect to price undertaking, the South African Anti- dumping Regulation followed the stipulations of the WTO. The Chinese Antidumping Statute is only superficially compliant with the WTO Antidumping Agreement. • The South African Antidumping Regulation leaves a gap with regard to price undertaking reviews. China has definite provisions on it. • With respect to anticircumvention, both countries’ antidump- ing regulations are not adequate, especially for China. Recommendations are made with regard to South African and China’s antidumping laws. This research is hoped to contribute to the improvement of the legal framework of antidumping regulations in South Africa and China.
Open Access
The efficiency defence in South African competition law: application and recommendations
(University of the Free State, 2012) Marais, Adam Johannes; Kitching, Karlien; Brits, Pieter
English: Economic efficiency is used as a proxy for the social welfare of a country's citizens and therefore it is held that if the efficiency of a country improves, so will the social welfare of its citizens. The efficiency of markets determine a country's overall efficiency and social welfare and as a result, the purpose of Competition Law has generally been to increase the efficiency of a county's markets. The efficiency of markets in turn, is increased by competition and therefore, Competition Law is generally aimed at maintaining and promoting competition, which is also the case in South Africa. Stated differently, efficiency is the purpose of Competition Law and competition the vehicle by which efficiency is enhanced. Central to Competition Law is the concept of the “efficiency defence.” In terms of the efficiency defence, efficiencies are used to justify conduct that limits competition within a relevant market (anti-competitive conduct). The general presumption is that anticompetitive conduct is detrimental to efficiency. This is not always true and in some instances anti-competitive conduct may in fact result in increased economic efficiency. The efficiency defence is the tool used to justify anti-competitive conduct in circumstances where limiting competition will result in increased economic efficiency. Despite the obvious flexibility the efficiency defence provides to competition authorities in their quest to enhance the efficiency of an economy, most jurisdictions have been reluctant to accept efficiencies as a defence against anti-competitive conduct. The South African Competition Act is still in its infancy and as a result, there are a number of grey areas pertaining to its interpretation and application. One of these areas of uncertainty pertains to the interpretation and application of the efficiency defence in South African competition matters. To date, the competition authorities have only once interpreted the efficiency defence and that was in the merger between Trident Steel (Pty) Ltd and Dorbyl (Pty) Ltd, more than 11 years ago.1174 This study contributes to the legal certainty pertaining to the interpretation and application of the efficiency defence in South African competition matters by making certain recommendations on its interpretation and application. These recommendations are based upon a comparison between South African, US and EU Competition Law jurisprudence. In addition, all recommendations are in line with contemporary economic theory, which functions as the validating criterion. The principle recommendation of this study is the recommendation that the consumer welfare standard should be employed in South African competition matters instead of the total welfare standard currently employed. This recommendation is based upon the South African economic environment which includes high levels of market concentration and high price mark-ups in the manufacturing industry. The implications of using the consumer welfare standard will be that the burden of proof to discharge in the efficiency defence is much higher than it is under the total welfare standard. The reason being that under the consumer welfare standard consumers have to benefit from efficiencies for them to be able to justify anti-competitive conduct whereas it is not the case under the total welfare standard.
Open Access
The equitable foundations of South African labour law: an historical and comparative study
(University of the Free State, 2012-01) Cloete, Neville; Du Plessis, J. V.; Raath, A. W. G.
From the dawn of Western civilization, philosophers and jurists grappled with the nature and role of equity in jurisprudence. The Aristotelian theory of equity, as expounded in the Nicomachean Ethics, eventually emerged as the enduring equity paradigm in Western juridical thought. Aristotle taught that equity is an inherent and indispensable part of law. Law can never exist without, or ignore equity. However, even Aristotle and his followers admitted that the notion of equity is fraught with difficulty, hence they never provided any definition of equity. To Aristotle, it sufficed to state that equity was an inherent part of the virtue of justice, to be applied where law in the strict sense failed, such application always to be according to the circumstances of each case. The Roman jurists eagerly embraced the Aristotelian paradigm, regarding equity as a virtus or virtue - the virtue of living honestly, giving everyone his due, and causing injury to nobody. The Greco-Roman virtue theory of fairness aimed at the ideal of human perfection. Equity involved not simply the performance of objectively existing duties, but also the subjective and personal attribute of a virtuous disposition. The great Roman Dutch jurists were ardent adherents of Aristotelian doctrine. They emphasised that, with custom, equity was part of the unwritten law. Unlike law in the strict sense, equity was a matter best left to judicial discretion. There is a need for equity as the Legislator cannot by means of antecedent statute of general application provide fair solutions to the infinite variety of cases that present themselves for adjudication on a daily basis. In such situations, the equitable judge should consider and adjudicate the case before him, taking into account all relevant circumstances. Cicero, the Roman jurist, handed down a well-known adage to posterity, namely summum ius summa iniurie - the highest or best law often allows for the worst forms of injustices or unfairness. Hugo Grotius attached great significance to the conscienability attribute of fairness. He emphasized that the judge takes an oath of office to the effect that he would act according to the dictates of his conscience. An equitable judgment was a reasoned judgment, devoid of anything capricious, arbitrary or whimsical. It was a judgment infused by reason. Even a conscionable judgment was a reasoned judgment. Already in the 13th century Thomas Aquinas, the prime authority for Grotius and others in this regard, wrote that conscience was a judgment of reason. Influenced by the Biblical doctrine of the Fall of Man, the Roman Dutch jurists recognised the fact that at times, the reason of man was a sullied or muddled reason, hence they insisted on recta ratio, or sana ratio - literally sound reason. Sound reason required judicial impartiality, personal disinterestedness, and all other factors which modern labour law would require of a good judge or adjudicator. For various reasons, mainly historical, there is a dearth of direct textual authority on Roman and Roman Dutch labour law. A complete picture of the labour law of this epoch is unavailable. By means of textual analysis, criticism, and harmonization, we managed to form a still incomplete but bigger picture of Roman and Roman Dutch labour law. Our conclusion in this regard is that both systems knew a comprehensive equitable labour law regime, much as we currently have in South African law under the Constitution, 1996, and the Labour Relations Act, 1995. The common law of labour was therefore not devoid of equitable principle. So for instance, in sharp contrast with the English and American common law of dismissal which embraced the principle of employment at will, classical Roman Dutch law required lawful and even fair reasons for dismissal. Whereas in English and American Common law a judge was incompetent to inquire into the reasons for dismissal, such reasons being legally irrelevant, the very essence of the judicial function in Roman and Roman Dutch law was to investigate the lawfulness, reasonableness and fairness of such reasons. Unlike English and American common law where a dismissed employee could at most be awarded token damages in the form of the equivalent of the wage he would have earned had the notice period been complied with by the employer, the relief for unlawful, unreasonable and unfair dismissal in Roman and Roman Dutch law was a substantial relief in the form of damages representing the wage that would have been earned during the remaining period of service. In Roman Dutch law, a contract of service and all its terms as such, were void if it violated fairness, good faith or morality. Modern Dutch law built further upon these cornerstones of the common law, and adopted these requirements as the foundations of its most comprehensive principle of employment law, namely the good employer-good employee imperative. But despite the comprehensive equitable regime which formed the hallmark of the common law of labour, unsavoury doctrines such as employment and dismissal at will, forfeiture of wages already earned by some categories of dismissed workers, indivisibility of labour and token or notice damages where the required notice of dismissal had not been given, incrementally infiltrated early South African labour law through erroneous judicial recognition and application. But it was not these doctrines as they appeared in some old Dutch urban placaats and by-laws that served as the sources of judicial inspiration in this regard. These were specifically disavowed in cases like Spencer. At the early stages of the development of a unique South African system of labour law proper, it was rather English common law that served as judicial precedent. Equity played no role in such precedent. Even today, the application of equity in employment related issues is foreign to English law. The prime English statute governing dismissal disputes, namely the Employment Rights Act of 1996, is the only English piece of legislation making provision for the application of fairness, but its field of application is limited to unfair dismissal disputes. The concept of unfair labour practice remains foreign to English law. Equity also remains virtually unknown to American employment law. The National Labor Relations Act of 1935 introduced the concept of unfair labour practice, but its area of application is largely limited to collective labour law, namely the relationship between employers and representative trade unions, union membership and the like. The employment and dismissal at will principle is still in full force in America. Only in 11 States has judicial creativity introduced implied contractual terms to the effect that good faith and fair dealing should govern the employment relationship. Even this move is relatively feeble, isolated and quite casuistic, and has made little inroad on employment and dismissal at will. As indicated earlier, unsavory doctrines such as employment and dismissal at will, forfeiture of wages earned, token damages in respect of the notice period of dismissal and the like, were nor derived from Roman Dutch Law, but rather from English law as described above. Such was the position when the Industrial Conciliation Act, 1956 was amended in 1979, directly as a result of the Report of the Wiehahn Commission, which first identified the need for a comprehensive equitable regime in South African labour law. As a direct result of the recommendations of the Wiehahn Report, the erstwhile Industrial Court was also introduced by the 1979 Amendments. There seems to be a general consensus amongst labour lawyers today that the Industrial Court performed pioneering work and that it left a rich jurisprudential heritage of equity in labour matters. The drafters of the 1995 Labour Relations Act made ample use of this heritage, and rightly so, we submit. But the drafters also consulted foreign legislation. This was a prudent thing to do, even though it seems that some of the textual deficiencies in the 1996 LRA could be traced back to such legislation. It also appears as though the political and constitutional junctures which obtained at the time that the 1995 LRA was drafted, left their mark on the text of the LRA. It is not an indelible mark however. Although the eventual LRA text was a political and ideological compromise somewhat hurriedly constructed, it is still an impressive document. Such deficiencies that still do occur in the text, need to be addressed by legislative intervention. The problem in this regard seems to exist mainly in the form of shortcomings in the definitions of unfair labour practices, and to a lesser extent, unfair dismissal, resulting in the LRA text not giving adequate expression to the more general right to fair labour practices as enshrined in s 23 of the Constitution. The jurisdictional conundrum often resulting in forum shopping amongst litigants has been largely addressed by the Constitutional Court in cases like Gcaba. The same applies to the traditional differentiation or discrepancy between the status and rights of public sector as opposed to private sector employees. However, it is still desirable that the legislature address these issues again and harmonize them as much as possible with the tenets of s 23 of the Constitution and the guidance given by the Constitutional Court in this regard. Both legs of South African labour law, namely the common law of employment and the statutory scheme enshrined in s 23 (1) of the Constitution, as given effect to by the LRA, 1995, give recognition to and a role for equity to fulfil. The common law of employment assigns a supplementary, tempering, moderating and correctional role to equity, whereas the statutory scheme raises equity to the sublime status of ultimate yardstick for the resolution of labour disputes. In this statutory scheme, fairness and fairness alone serves as the final determinant of the fairness of labour practices, including dismissal. The common law has virtually reached a ceiling of development as far as employment fairness is concerned. S 23 (1) of the Constitution as given effect to by the LRA, 1995, constitutes that ceiling. In SA Maritime the SCA held that the common law cannot be developed to the extent where it recognizes an implied term of fairness in contracts of employment. The rationale for this decision was that such development would intrude onto the terrain of the statutory scheme, and was therefore not intended by the legislator. A development of this nature should best be left to the legislature, the courts argued since SA Maritime. English persuasive jurisprudence such as Johnson v Unisys played a pivotal role in this regard, as it will without doubt do in the foreseeable future. The obvious vehicle to be used by the Legislature for this purpose is appropriate amendment of the LRA. We have noted that although a progressive piece of legislation, the LRA suffers from many deficiencies in its quest to give effect to the imperative contained in s 23 (1) of Constitution, namely the right of everyone to fair labour practices. Hopefully the legislature will take note of SA Maritime and cases in similar vein, and come forward with the necessary and desired amendments to the LRA so as to take it to its next level of alignment with s 23 (1) of the Constitution. In conclusion, a brief outline of the insights we have gained since the inception of the Industrial Court, and even prior to that auspicious event, into the nature and role of equity in South African labour law. We subscribe to the view espoused by virtually all labour courts, but especially the Constitutional Court, that it seems to be undesirable to provide a definition of equity or fairness. The nature and role of fairness are dichotomous: on the one hand is fairness a relatively familiar concept in daily use, not only in the labour courts as such, but in virtually all courts of law. At times, the concept is consciously and deliberately applied during the course of judicial activity, while it sometimes fulfills its role quietly, unobserved and without any recognition. Fairness is sometimes derissen by sceptics - mostly ignorant - while it is more often eagerly embraced by realists, i.e. those who have come to the realization that strict legal principle is sometimes hopelessly insufficient for the resolution of legal disputes, and that equity has an inherently supplementary role to fulfil in all legal practice. Moreover, in labour law such role is not merely supplementary, but pivotal. Unfair labour practice and unfair dismissal disputes are ultimately resolved by application of the criterion of equity alone, and nothing else. But despite the healthy disinclination of the courts to provide an attempted definition of equity, some theory of equity seems to be steadily developing. This fledgling theory is torn between the opposites of strict law and the traditional need for legal certainty on the one hand, and the inherent flexibility which is the hallmark of equity on the other. A theory of equity should not be confused with a definition of equity. In fact the very theory is predicated on the versatility, flexibility and adaptiveness of the notion of equity - attributes not readily accommodated by definition. It is for this reason that we have entitled the section of this study dealing with this theory merely as "factors informing equity". This is to emphasize that no attempt is made at all to provide a numerous clauses or closed list of factors to be taken into account by the presiding official applying equity. In fact such a closed list will probably never be developed. The labour courts appear to be alive to the unique opportunity that the open-ended, flexible and indeterminate concept of equity provides them for the fulfiIIment of the ideal enshrined in s 23 (1) of the South African Constitutional, namely fair labour practices.
Open Access
Evaluation of the legislative provisions with regard to school discipline in South Africa and determination of whether these provisions provide sufficient guidelines
(University of the Free State, 2015) Mofokeng, Thabo Moses; Deacon, H. J.
Abstract not available