Faculty of Commerce, Law and Management (Research Outputs)

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Adjudicating affirmative action within a normative framework of substantive equality and the Employment Equity Act – an opportunity missed?
(Juta and Co, 2015) Albertyn, Catherine
The development of a constitutionally informed legal standard to test employment equity plans and affirmative action measures will always be troubled in a country that has seen racial classification serve as the basis for oppression and subordination, and now seeks to use it in achieving a ‘non-racial’ democracy. Contestation over how to secure redress, restitution and substantive equality are inevitable. The Barnard judgment demonstrates a common commitment to restitution and transformation, and, indeed, a common outcome. However, between that commitment and the outcome lie important differences in philosophical and legal approaches to equality, to s 9 of the Constitution and s 6 of the Act (and the relationship between them), to the standard of justification for positive measures and to the need for courts to engage substantively with crucial issues in our democracy. In this case-note, after setting out the case history and judgments in some detail, I explore the contrasting ideas of equality that underpin the different approaches to positive measures and discuss which is best suited to our constitutional project. I then suggest how this normative framework can inform the adjudication of employment equity plans and affirmative action measures under the Employment Equity Act. No single judgment in Barnard achieves this.
The administration of justice
(Juta, 2003) Klaaren, Jonathan; Marcus, Gilbert; Davis, Dennis
Overview and analysis of the year's legal developments in the field of administration of justice. Includes references to legislation, cases and journal articles.
The administration of justice
(Juta, 2002) Klaaren, Jonathan; Marcus, Gilbert; Davis, Dennis
The Immorality Amendment Act 2 criminalized prostitution in 1998. It did so by the insertion of s 20(1)(aA) into the principal Act, which it renamed the Sexual Offences Act 23 of 1957.
Cartoon controversies: law student views about free speech and Zapiro’s satirisation of South Africa’s president
(Taylor & Francis, 2017-05-22) Bronstein, V.; Glaser, D.; Werbeloff, M.
Although the Constitutional Court has been a protector of freedom of expression, major controversies about speech illustrate deep divisions among South Africans. This article explores attitudes of law students at the University of the Witwatersrand to freedom of expression. The authors take the realist view that these students are future legal interpreters of the Constitution and their attitudes may well have an impact on future jurisprudence. They follow-up previous research which measured attitudes to political freedom of expression by asking students about their responses to a sample of Zapiro cartoons depicting President Zuma. After exploring the role of cartoons in a democracy, the article looks at new data obtained by questioning final year students about the same cartoons four years after the initial study. The new data substantially confirms earlier results which indicate that Wits students would not robustly support Zapiro’s right to create his more controversial caricatures. This result reinforces the view that supporters of freedom of expression in South Africa may not be able to call upon consistent or robust elite and popular support in resisting banning or criminalisation of speech.
Citizenship, xenophobic violence and law's dark side
(2010-02-08) Klaaren, Jonathan
This paper discusses xenophobic violence and the role of South African law.
Constitutional Authority to enforce the rights of Administrative Justice and access to Information
(Juta, 1997) Klaaren, Jonathan
Analysis of the constitutionality of two sections of the Bill of Rights.
Constitutional court statistics for the 1998 term
(Juta, 1999) Klaaren, Jonathan; Dagut, Helen; Mochaba, Khahliso; Phalane, Jack; Singh, Anushka
Descriptive statistics on the work of the Constitutional Court for the 1998 term.
Constitutional court statistics for the 2003 term
(Juta, 2004) Klaaren, Jonathan; Stein, Nikki; Madekurozwa, Bulewa Rudo; Xulu, Carolina Nomphumelelo
Descriptive statistics on the work of the Constitutional Court for the 2003 term.
Constitutional court statistics for the 2004 term
(2005) Klaaren, Jonathan; Stein, Nikki; Xulu, Carolina Nomphumelelo
Descriptive statistics on the work of the Constitutional Court for the 2004 term.
Core values as drivers of entrepreneurial performance: A study of SMEs in Uganda’s central region
(Routledge Taylor & Francis Group, 2019) Ismail, K; Robert, V
The purpose of this study was to establish whether the relationship between core values and entrepreneurial performance in Uganda’s informal economy exists and whether motivation mediates the relationship. The survey was conducted in the informal economy of Uganda’s central region using a structured questionnaire. The sample included three hundred eighty-six employees of Small and Medium Enterprises. Hypotheses and mediation tests were carried out by way of structural equation modeling, using Analysis of Moment Structures and Sobel’s test respectively. Results from hypotheses’ tests indicate significant positive relationships between core values and entrepreneurial performance. Furthermore, it was established that motivation significantly mediates the relationship between core values and entrepreneurial performance (except trust). Based on the study’s results, it is recommended that Small and Medium Enterprises should seek to acquire skills on how to fully turn motivation into business advantage and how to use core values as tools for marketing the business.
Developing the common law of breach of promise and universal partnerships: rights to property sharing for all cohabitants
(Juta Law, 2015) Bonthuys, Elsje
The Constitutional Court's 2005 judgment in Volks NO v Robinson' has been widely regarded as a setback for the extension of legal rights to opposite-sex cohabitants. The majority of the court held that an unmarried opposite-sex cohabitant is not a spouse under the Maintenance of Surviving Spouses Act 27 of 1990.2 According to Smith, this judgment 'effectively put paid to the judicial extension of matrimonial law to unmarried opposite-sex cohabiting life partners'
Does having children affect women’s entrepreneurship decision? Evidence from Nigeria
(2019-05-16) Ajefu, Joseph Boniface
This paper investigates the impact of fertility on women’s entrepreneurship decision in Nigeria, using the 2008 and 2013 cross-sectional Demographic Health Surveys data. In order to mitigate the potential endogeneity associated with fertility decision, the study explores an exogenous variation in family size using twin births in an instrumental variable (IV) analysis. Both the Ordinary Least Squares (OLS) and Two-Stage Least Squares (2SLS) estimate show that having children is positively associated with women’s entrepreneurship decision, and there are heterogeneous effects across the subsamples by women’s age. The results of this study are robust to using the number of children younger than age five in the home as an alternative definition of fertility.
A duty of support for all South African unmarried intimate partners Part 2: developing customary and common law and circumventing the volks judgment
(Potchefstroom Electronic Law Journal, 2018-10-19) Bonthuys, Elsje
Part I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.
A duty of support for all South African unmarried intimate partners Part I: the limits of the cohabitation and marriage based models
(North-West University, 2018-10-19) Bonthuys, Elsje
The democratic Constitutional dispensation has led to the gradual extension of spousal duties of support to unmarried couples who hitherto could not legally claim support from their partners or from third parties who had unlawfully caused the death of their partners. The new recipients of rights to support can be divided into three groups: wives in Muslim religious marriages, partners in same-sex intimate relationships and unmarried opposite sex cohabitants whose relationships closely resemble civil marriage in both form and function. However, certain distinctive features of customary marriage, the continuing consequences of apartheid policies for African families and certain distinctive patrilineal features of traditional African families have largely excluded African women – who constitute the largest and most economically vulnerable group of women – from the benefits of these developments. Part one of this two-part article analyses the trajectory of the developing right to support intimate partnerships which appear to be based either on marriage (in the case of Muslim marriages) or relationships similar to marriage, including monogamy and permanent co-residence in the case of same-sex and opposite sex partners. This leaves no room to extend rights to unmarried intimate partners whose relationships do not fit the template of civil marriage and, in particular, excludes many disadvantaged African women from obtaining legal rights to support from their relationships.
The effect of transformational leadership on intention to quit through perceived organisational support, organisational justice and trust
(AOSIS (pty) Ltd, 2019) Engelbrecht, A.; Samuel, O.M.
Background: The literature has extensively presented evidence to establish that employee turnover is costly and destructive to organisational processes and outcomes. Organisations in South Africa are experiencing a high rate of turnover and it is becoming increasingly difficult to retain employees whose skills are critical to organisational success. This provides a compelling necessity to direct research attention to turnover intention in order to avoid actual turnover. Aim: The purpose of this article was to use partial least squares to test the relationships among selected antecedents of intention to quit. Setting: The study was conducted using employees in organisations that were surveyed in both public and private sectors in the Western Cape, Eastern Cape and Gauteng provinces of South Africa. Methods: The study employed a survey research design using a quantitative research strategy. Data collected from 207 conveniently sampled respondents were used to validate a structural model developed through the review of existing literature. A standardised measurement instrument consisting of all the variables under investigation was used for data collection. Results: The results indicate the following path sequences in predicting employee turnover intention: Transformational leadership through perceived organisational support and transformational leadership through organisational justice impact intention to quit. However, the path sequence from transformational leadership through organisational trust impacting intention to quit was not confirmed. Conclusion: A replication of this study using a longitudinal research design is recommended in order to overcome the methodological limitations of the current study. The conceptual model developed in this study provides relationships that could be used as guidelines to effectively manage the retention of key employees in organizations. © 2019. The Authors. Licensee: AOSIS.
Enforcing access to information and privacy rights: evaluating proposals for an information protection regulator for SA
(Juta, 2007) Currie, Iain; Allan, Kate
Note on current developments, the necessity for a proposed statutory regime for the protection of privacy rights.
Equality beyond dignity: multi-dimensional equality and Justice Langa’s judgments
(Juta and Co, 2015) Albertyn, Catherine; Fredman, Sandra
The tendency for South African equality jurisprudence to reduce equality to a single value, namely dignity, has been much debated, especially around the relationship of dignity to disadvantage. In this article we argue for a multidimensional idea of equality that moves beyond a dignity/disadvantage paradigm to enable a fuller exploration of the complex harms and injuries that underlie equality claims, and greater elucidation of the multiple principles and purposes of equality. In particular, we argue that substantive equality should be understood in terms of a four-dimensional framework, which aims at addressing stigma, stereotyping, prejudice and violence; redressing socio-economic disadvantage; facilitating participation; and valuing and accommodating difference through structural change. We suggest that this enables a better exploration of the different principles that underlie equality and an open discussion of complementarities and tensions between them. We explore the benefits of this approach through an evaluation of three equality cases in which Justice Langa delivered the leading judgments. Although we do not claim that he fully adopted such an approach, we engage Justice Langa’s philosophy on equality as it emerges from these judgments, and evaluate the extent to which we can develop from this a more fully-fledged understanding of equality and its underlying values in the South African Constitution.
An exploratory perspective of student performance and access to resources
(2014) Papageorgiou, E; Callaghan, CW
This research investigated the relationships between potential constraints to students’ access to technological resources and student academic performance. Longitudinal data from 2010 (n=228), 2011 (n=340) and 2012 (n=347) from South African accounting students was used to test the relationships between technological resources access and student academic performance using correlation analysis, multiple linear regression analysis and factor analysis. Access to the latest software was found to be associated with student academic performance; a ‘digital divide’ between students may influence their academic performance. This research specifically identifies certain constraints potentially associated with a ‘digital divide’ that may influence student performance.
An exploratory perspective of student performance and access to resources
(Mediterranean Center of Social and Educational Research, 2014-11-01) Papageorgiou, E; Callaghan, C.W
This research investigated the relationships between potential constraints to students’ access to technological resources and student academic performance. Longitudinal data from 2010 (n=228), 2011 (n=340) and 2012 (n=347) from South African accounting students was used to test the relationships between technological resources access and student academic performance using correlation analysis, multiple linear regression analysis and factor analysis. Access to the latest software was found to be associated with student academic performance; a ‘digital divide’ between students may influence their academic performance. This research specifically identifies certain constraints potentially associated with a ‘digital divide’ that may influence student performance.
An exploratory perspective of student performance and access to resources
(Mediterranean Center of Social and Educational Research, 2014-11-01) Papageorgiou, E; Callaghan, C.W
This research investigated the relationships between potential constraints to students’ access to technological resources and student academic performance. Longitudinal data from 2010 (n=228), 2011 (n=340) and 2012 (n=347) from South African accounting students was used to test the relationships between technological resources access and student academic performance using correlation analysis, multiple linear regression analysis and factor analysis. Access to the latest software was found to be associated with student academic performance; a ‘digital divide’ between students may influence their academic performance. This research specifically identifies certain constraints potentially associated with a ‘digital divide’ that may influence student performance.

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