Electronic Theses and Dissertations (Masters)

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Effects of donor funding on the HIV/TB programme outcomes in South Africa
(University of the Witwatersrand, Johannesburg, 2021) Sokhela, Cleopatra Zinhle; Saruchera, Fanny
There has been decreasing donor funding for the past years, especially in developing countries. With the global economic crisis fuelled by the COVID-19 pandemic, there has been mounting pressure on governments and NGOs to sustain healthcare services and the HIV/TB programme implementation. Despite the efforts made in curbing HIV and TB in South Africa, the country is still struggling to meet its planned HIV and TB programme outcomes. The purpose of this study was to establish the factors that influence donor funding for HIV/TB programmes in South Africa and understand how NGOs utilise donor funds to achieve HIV/TB programme objectives. The study intended to determine the factors that influence donor funding for HIV/TB programme in South Africa; to establish how NGOs utilise donor funds to achieve HIV/TB programme objectives in South Africa; to establish strategies to sustain South African NGOs beyond donor funding, and to propose HIV/TB programme implementation strategies for NGOs in South Africa. The study was guided by the donor and recipient models intended to establish the relationship between donor interest, political interest, NGO funding, and HIV/TB programme outcomes and establish if NGOs sustainability is influenced by decreased donor funding. A quantitative and deductive study was conducted using an online survey. Data was collected from 308 respondents drawn from 30 donor-funded organisations across South Africa. The study's key findings revealed that donors give generously for the HIV/TB programme with no expected returns. Poor HIV/TB programme implementation by NGOs and lack of social impact affects future international funding opportunities. The study further established a positive relationship between recipient needs, NGO funding, and HIV/TB programme outcomes. The paper also concludes that NGO sustainability is not affected by declining donor funding, but a strong positive relationship between NGO leadership capacity and NGO sustainability was identified. A significant portion of respondents indicated that sustainability planning, government co-funding, diversified revenue-generating strategies, meaningful stakeholders' engagement and NGOs leadership capacity development were essential to ensure better HIV/TB programme outcomes and NGOs' sustainability beyond donor funding. In order to enhance the sustainability of donor-funded organisations and programme outputs, the study recommended the need for donors to review regulation governing donated funds utilisation; developing sustainability plan at the beginning of the funding cycle, NGOs to review their business models and NGO leadership capacity development on resource mobilisation and financial management. Future studies could focus on South African NGOs providing HIV/TB services readiness to transition from donor funding and evaluating the most effective revenue-generating strategies that NGOs can implement in South Africa
Digital skills development at a global assurance, tax and advisory consulting firm in South Africa
(University of the Witwatersrand, Johannesburg, 2023) Saley, Azhar; Gobind, J.
Digital technology continues to evolve, and the way employees work is constantly changing. To keep up with the rapid technological developments and compete in the digital economy, organisations need a digitally skilled workforce with the skills and capabilities required to drive digital transformation. However, a qualification audit conducted by the Consultancy X HR team in February 2022 indicated that the qualifications and certifications of employees do not equip them with the skills required to support the consultancy's digital transformation journey. The purpose of this study was to investigate the low uptake in digital skills development for employees at a global assurance, tax and advisory consulting firm in South Africa. This study followed a qualitative research design, and data was collected through semi-structured interviews, which involved the researcher conducting 60-minute virtual interviews with 9 participants to collect in-depth insights and data from participants on their perceptions of digital transformation and the digital skills uptake at Consultancy X, the impact of the emerging technologies on their roles and the effectiveness of the organisation's current digital skills development approach. The thematic analysis technique was used to analyse the themes and patterns in the feedback from participants. The study found that the low uptake in digital skills development at Consultancy X was primarily due to time constraints resulting in digital skills development not being prioritised, lack of exposure to digital technologies/skills and resistance to change from employees. The findings also revealed that the organisation’s current digital skills development approach is ineffective due to limited resources being available to support digital skills development and leadership not actively driving digital skills development. However, employees are willing to learn and adopt emerging technologies if they have clarity on the objectives/benefits of the technology; the technology is user-friendly and saves them time. Recommendations were made that may assist the leadership team at Consultancy X in increasing the uptake in digital skills development
‘Essentially no different’ but not the same? an analysis of the rules applicable to the interpretation of double taxation agreements
(University of the Witwatersrand, Johannesburg, 2023-06-14) Hart, Daniel Alan
This research report aims to determine whether the rules of interpretation generally applied by South African courts in construing documents are the same as the international rules applicable to the interpretation of double taxation agreements (DTAs). The report will compare the prevailing international law rules regarding the interpretation of treaties with the rules of statutory interpretation applied by South African courts. The goal is to assess whether South African courts should rely on domestic or international law principles when interpreting DTAs, and to this end the report will critically analyse the approach taken in two specific cases, Krok v The Commissioner for the South African Revenue Services 2015 (6) SA 317 (SCA) and ITC 1925 82 SATC 144
The impact of international treaties on South African law post 1996
(University of the Witwatersrand, Johannesburg, 2023) Cameron, Kayla-Jayne; Moyo, Khulekani
This research report considers the position of international treaties—referred to as international agreements in the South African Constitution—in the South African legal system, following the enactment of the final Constitution. This research report investigates the Constitution’s legal framework regarding the incorporation of international agreements into South African municipal law. It also examines matters relating to withdrawal from international agreements, the effects of international agreements ratified by Parliament but not incorporated into national law, and the importance of international agreements when interpreting national legislation and human rights. This research is of particular interest as prior to the final Constitution, no South African constitution provided a framework for incorporating international agreements into national law. While a framework now exists for incorporation of international agreements in South African national law, several issues still surround the incorporation of international agreements into national law, as will become evident throughout this research report
South Africa's capability to regulate and enforce the sale of digital goods
(University of the Witwatersrand, Johannesburg, 2023) Stockigt, David Henry
There are several challenges to regulating digital goods in South Africa. Firstly, the classification of digital goods can be found in the Films and Publication Amendment Act (FPAA), which seeks to bring the Films and Publications Act in line with new technologies and digital goods. The changes made within the FPAA raise other issues and questions of who is bound to the FPAA regulations, whether it only applies to publishers in South Africa and whether the regulations will be binding on individual publishers. Secondly, copyright enforcement has become more complex as the ability to replicate and reproduce copyright protected works has become easier. The Copyright Amendment Act (CAA) now offers greater protection of copyrighted works in the art, music, film, and video game industries through royalty agreements, allowing a copyright infringer to escape liability by paying an agreed amount for the use of the digital goods. Finally, the sale of a non-physical, digital good is governed by the Consumer Protection Act (CPA); it only provides general protections when entering into end-user licence agreements. Access to the digital good will find protection under the traditional law of contract principles. South Africa has made great progress in regulating the sale of digital goods however, many gaps remain within South Africa's law. Drawing from the analysis of foreign jurisdictions, such as the United States of America (USA) and the European Union (EU). The USA, unlike South Africa, has created specific laws to govern problems that directly result from the increase in the sale of digital goods. The USA has focused their efforts on regulating password sharing, the legal principle of first sale through the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act. Finally, the USA has also allowed for specific copyright protection within the video game industry, protection that is not available in South Africa. On the other hand, the EU offers more generalised protection as the EU's Copyright provides broad solutions instead of individual laws addressing individual issues. The EU’s solutions include a strike system and the transfer of copyright infringement liability to the providers of the infringing material, allowing for adequate and efficient enforcement of copyright protections across multiple jurisdictions within the EU. South Africa would need to consider creating regulations that address live streaming, increasing video game copyright protection, and implementing the strike action through newly focused regulations rather than existing film and copyrights laws. By extending existing liability regulations to include those who provide access to the infringing material, it would enhance and encourage more well-rounded and sufficient protections in South Africa
The capacity of the WTO to assist Ukraine in its war against Russia: an assessment of sanctions and other tools
(University of the Witwatersrand, Johannesburg, 2023) Blumenfeld, Dalton
Adopting the theory of degrowth as a means to achieve sustainability in South African law
(University of the Witwatersrand, Johannesburg, 2023) Ramsay, Madison; Bapela, Mpho
Capitalism’s mandate of infinite, exponential growth on a planet with finite, non-renewable resources has resulted in global environmental crisis. Contextualized by South Africa’s industrial Minerals-Energy Complex, this paper submits that the growth imperative of neoliberal fossil capitalism is resulting in unsustainability in South African environmental management. Decision-making is skewed in favour of economic growth at the expense of sustainability. Degrowth is a movement that rejects the growth imperative as compulsory; it is a call not only to do less, but to do differently, a counterhegemonic alternative to capitalism that seeks environmental justice, decolonization of the North-South divide, and alternatives to growth and development. This paper posits that rejecting capitalism’s growth imperative and approaching environmental management from a degrowth perspective can inform sustainability in South African environmental law. It posits that degrowth can find applicability in South African environmental law through its compatibility with ubuntu, which in the context of this study is accepted as a similar counterhegemonic alternative to capitalism. This paper emphasizes ubuntu degrowth as a framework to conceptualize South African environmental management, insofar as it offers a transformative alternative to growth, and to capitalism itself
Algorithmic pricing and its implications on competition law and policy in South Africa
(University of the Witwatersrand, Johannesburg, 2023) Fowler, Ashly
The upsurge in the use of technology has proliferated the use of pricing algorithms which have become essential to e-commerce. Although South Africa had been privy to this shift prior to 2020, the onslaught of the Covid-19 pandemic exacerbated this shift. While the use of pricing algorithms in Competition law is accompanied by many pro-competitive benefits, it is also accompanied by various anti-competitive effects which include algorithmic-based collusion. Despite the fact that this topic has been addressed within the context of competition law in other jurisdictions, it has yet to be addressed from the viewpoint of the South African Competition Act 58 of 1998. Accordingly, the aim of this paper is to establish whether the Competition Act and South African competition policy at large, is robust enough to withstand the effects of digitalisation, particularly from the perspective of section 4 of the Competition Act which regulates relationships between competitors. In carrying out this analysis, this paper defines pricing algorithms and outlines their pro-competitive and anti-competitive effects.Thereafter, through the prism of four scenarios where pricing algorithms facilitate collusion, as posited by Ezrachi and Stucke in their seminal work on Virtual Competition, this paper establishes the robustness of the Competition Act by applying the scenarios to the Acts. Ultimately, this paper concludes that the current Competition Act (as amended) is in fact robust enough to tackle situations where algorithmic-based collusion arises. Where it is not, this paper argues that it is, at present, unnecessary for the relevant authorities to amend the current law or introduce any new laws
Evaluation of competition concerns regarding franchise agreements where franchisors determine prices for franchisees
(University of the Witwatersrand, Johannesburg, 2023) Brown, Avigael Chana
The franchise agreement refers to an agreement between a franchisee and franchisor, where franchisee establishes outlets that operates under the franchisor’s successful name and trademark, for a fee paid to the franchisor. This places the franchisor and franchisee in a vertical relationship. The franchisor exercises a degree of control ov er the franchisee’s business, which may cause competition concerns, particularly if regard is had to section 5 of the Competition Act 89 of 1998 (hereafter ‘Competition Act’). Section 5 prohibits certain vertical practices, which limit or prevent competition between firms. This research report discusses the prohibited vertical practice of resale price maintenance in the franchise context, which occurs if a franchisor imposes prescribed prices or limits discounts to which franchisees must a dhere. There are several reasons why franchisors would want to engage in such conduct. However, the practice is often anti- competitive as it bars franchisees from competing with each other in terms of price. Franchisors may, however, recommend prices to their franchisees, in line with section 5(3) of the Competition Act, and many franchisees may choose to comply with thes e recommendations. Mon itoring franchisors for engaging in resale price maintenance can be difficult, owing to significant pressure faced by many franchisees to comply with recommended prices, resulting in much of the same price throughout a franchise network. If, after in vestigation, the Competition Commission is of the view that a franchisor has breached section 5 of the Competition Act, it may refer the matter to the Competition Tribunal. Among others, this report demonstrates that many resale price maintenance cases within the franchise context have resulted in settlements, rather than proceeding to a hearing before the Tribunal. This often results in the franchisor paying a reduced administrative penalty, leading to dearth of legal precedent
Does the role of a business rescue practitioner necessitate the imposition of fiduciary duties and liabilities to the same degree as directors of a company?
(University of the Witwatersrand, Johannesburg, 2022) Tampson, arryn Jamie; Thambi, Kiyasha
Business rescue practice is a legislative mechanism in terms of Chapter 6 of the Companies Act 71 of 2008 (“the Act”), aimed at rehabilitating failing companies. Business rescue proceedings (“proceedings”) are defined as the ‘[facilitation of the] rehabilitation of a company that is financially distressed’.1 This is achieved through the temporary supervision of the company by the business rescue practitioner (“practitioner”), as well as a temporary moratorium on the rights of claimants. The goals of business rescue proceedings are to either rehabilitate the company to operate on a solvent basis, or to secure a better return for creditors upon the company’s liquidation.2 The ultimate manner of rehabilitation of a company is set out in the business rescue plan drafted by the practitioner and voted on by affected parties3 as envisaged in the Act
Critical analysis of harassment in the changing workplace: how the courts developed the definition of sexual harassment and the parameters of the employer's responsibility in curbing this problem
(University of the Witwatersrand, Johannesburg, 2023) Gibson, Kirsty Anne
The definition of the workplace is changing as more employee's start to work remotely. This change in the workplace will affect the manner in which employees communicate and engage with one another. It will also change the manner in which employees are harassed within the work environment. Sexual harassment has been regulated in South Africa for over 20 years in Codes of Good Practice. The regulations define sexual harassment and indicate the obligations of the employer to take steps to prevent the conduct within its workplace. In addition to the Codes of Good Practice, the courts have continuously developed the definition of sexual harassment. Through the development by the courts, the definition of sexual harassment remains current and in line with international standards. However, important factors are not always given the same weight by judges which has led to inconsistent decisions by the courts. The definition of sexual harassment and the manner in which the court applies the definition is analysed in this thesis and compared to recent decisions in the Netherlands. The employer’s responsibility to prevent sexual harassment is regulated by the Employment Equity Act, 55 of 1998. The court's findings on whether an employer is liable for failing to prevent sexual harassment has also been developed by the courts. Through the court decisions, the obligations of the employer have been advanced and clarified. This thesis looks at the obligation of the employer to curb sexual harassment in the workplace and what further steps employers can take to assist victims who report this conduct
The constitutionality of trophy hunting of threatened or protected listed species in South Africa
(University of the Witwatersrand, Johannesburg, 2022) Lopes, Rui Jorge Coelho; Cameron, Justice Emeritus Edwin
Whilst South Africa continues to grapple with its radical levels of social and economic inequality within the country, the lucrativeness of natural resources forming part of the environment as a tool to bringing about redress to such inequalities becomes an ever-increasing consideration. Although there is merit in the statement that the use of natural resources may seek to alleviate social and economic inequality, our courts have already held that the provisions of section 24(b)(iii) of the Constitution of the Republic of South Africa (the “Constitution”) are required to link and intertwine the concepts of conservation with sustainable use and development, for unfettered use of natural resources may not be regarded as sustainable, and will ultimately lead to the decline of ecological conservation and biodiversity. This has, however, contributed to the increase in human-wildlife conflict and the increase in consumptive and extractive use practices in relation to the natural resources of the environment, and the consideration of trophy hunting, and in particular the trophy hunting of Threatened and Protected Species (“TOPS Species”) is not separate n or excluded from this consideration and the ultimate impact such has on biodiversity loss and ecological degradation. The continued race to the bottom of species both locally and globally, coupled with the vested financial gains sought to be obtained from the increased rarity of species subjected to trophy 3 hunts, seeks to bring into question whether the engaging or permitting of the trophy hunting of TOPS Species may fall foul of the provisions of section 24 of the Constitution. Accordingly, this research report seeks to consider the constitutionality of the trophy hunting of TOPS Species and how this practice is required to be viewed through the constitutional lens under which it takes place
The application of the single economic entity doctrine to combat cartels in South Africa: lessons from Germany
(University of the Witwatersrand, Johannesburg, 2023-06) Gumede, Simphiwe; Marumoagae, MC.
The relationship between holding companies and their subsidiary companies is determined principally by the degree to which holding companies can exercise control over their subsidiary companies. The Companies Act regulates this relationship by assessing the control that holding companies exercise over subsidiary companies. The way these companies conduct their business can attract issues relating to competition which may attract the application of the Competition Act 89 of 1998. The anticompetitive behaviour of subsidiary companies has sparked controversy relating to whether holding companies should be held liable for their conduct. This research report discusses the Single Economic Entity Doctrine which deals with the attribution of liability of the conduct of a subsidiary company to a holding company. In particular, it assesses whether given the control that holding companies exercise over their subsidiary companies, they can be held liable for cartel infringements under section 4(1) of the Competition Act using the Single Economic Entity Doctrine. Drawing on the experiences of the European Union and Bundeskartellamt in Germany, this report argues that there is a need to expressly introduce and apply the Single Economic Entity Doctrine in South Africa with a view to allow the Competition Commission to hold holding companies liable for the cartel conduct of their subsidiaries which often cease to operate when cartel related charges are brought against them
The role of beneficial ownership reporting obligations and the reckless trading provision to prevent front companies in terms of the South African companies act 71 of 2008
(University of the Witwatersrand, Johannesburg, 2022) Dhana, N.
The corporate form has the potential to be abused by natural persons. A front company is an example of such abuse. A front company is an incorporated company that is used as a vehicle to conduct illegal activities. The natural persons controlling the company and that benefit from proceeds derived from the illicit conduct hide behind the company's separate legal personality to escape civil and criminal liability. Reports indicate that billions of rands are obtained through illegal activities perpetrated against the corporate form. This means that natural persons can successfully misuse the corporate form as a front. For this reason, it is imperative that a legal framework is in place to circumvent the formation and operation of front companies. This type of abuse is a company law issue and ought to be regulated by the Companies Act of 71 of 2008 ("Companies Act"). This research report demonstrates, however, that the Companies Act does not sufficiently guard against the formation and operation of front companies. The Companies Act must therefore be strengthened, by way of legislative amendment, to enhance corporate transparency and accountability. Four main areas in the Companies Act have been identified for possible legislative amendment. The anchoring argument that must be borne in mind with regards to any legislative amendment is that natural persons exert control over the corporate form and ultimately benefit from the company's activities. Further, comparative foreign law and domestic law will be used as a guide for the approach the legislature must adopt when amending the Companies Act. The first area of amendment is to expand the definition of beneficial interest to fully recognize beneficial ownership. The second area of amendment is to impose an obligation on natural persons to disclose their beneficial ownership in a company. The third area of amendment is to broaden the ambit of the reckless trading provision to apply to beneficial ownership. Lastly, the powers of the Companies and Intellectual Property Commission ("Commission"), the regulatory body of the Companies Act, must be enhanced to empower the Commission to institute legal proceedings against natural persons to cease abusing the corporate form as a front
The efficacy of legislation and institutions aimed at regulating insider trading in South Africa
(University of the Witwatersrand, Johannesburg, 2023) Kgagudi, Moruthanyane Vincent; Kawadza, Hebert
Insider trading should be regulated and prohibited to ensure the effective operation of securities market. South Africa has witnessed several amendments of law intended to strengthen the insider dealing prohibitions, however these changes have resulted in few civil settlements, low administrative sanctions and insignificant criminal convictions. The main research objectives of this study are to investigate the efficacy of the legislation, institutions and strategies aimed at regulating insider trading in South Africa. The study used the textual analysis method and the desktop research approach, whilst drawing on the unified misappropriation theory. The findings of the study indicates that both the legislative shortcomings and the proposed solutions pointed to the importance of ensuring that offences are easier to prove and the need of the ability of the authourities to discern the nature of insider trading contraventions. The research also argues for contemporary, prudent, business and ethically informed alternative insider trading enforcement strategies. The argumentation for a pragmatic position for the enforcement of insider trading revealed the importance of the three-pronged utilisation of insider trading remedies, with the urgent need to enhance successful criminal prosecutions. Strengthening criminal sanctioning methods would help set national legal precedence and enhance the deterrence of insider trading offences. Whilst insider trading establishments’ challenges entail staffing, apparatus, operational and structural restrictions, the proposed strategies to these limitations strengthens the institutional capacity of establishments that enforce insider trading sanctions in South Africa. The envisaged legislative, institutional and enforcement solutions would enhance the potential for successful criminal convictions, strengthen insider trading legislation and help maintain the integrity and stability of local financial markets. Overally, the study’s challenges and the suggested solutions shows that the current legislative, institutional and enforcement limitations hinders-, whilst the envisaged resolutions improves the efficacy of the legislation and institutions aimed at regulating insider trading
Cryptocurrencies and the Risks of Money Laundering and Terrorist Financing: Proposals for a Regulatory Regime
(University of the Witwatersrand, Johannesburg, 2023) Masuku, Owen Jabulani; Kawadza, Herbert
Rapidly emerging new technology and payment methods are gradually replacing traditional payment methods and sovereign legal tenders as viable substitutes in the global economy. The emergency of cryptocurrencies on the world’s economies has brought with it excitement, frustration, and uncertainty in equal measures. Cryptocurrencies are decentralised convertible virtual currencies that rely on the use of blockchain technology and the math-based peer-to-peer reference without the reliance on a central controlling authority to administer, monitor, regulate and exercise oversight control. Cryptocurrencies offer many potential benefits, such as speed of payment settlement, reduced costs of doing business, speedy cross-jurisdictional reach, and accessibility, as well as the anonymity of the users compared to the traditional payment methods. The integrity of the financial systems is at danger due to these same benefits and advantages. The risks and dangers of money laundering, terrorist financing, fraud, tax evasion, and other unlawful actions are associated with cryptocurrencies. The first cryptocurrency, Bitcoin, was created in 2008. The internet and globalization have allowed cryptocurrencies to enter South Africa. These currencies are not accepted as legal money in the South African legal system at this time. The objective of this desk-top research is to consider, amongst others, the following: what cryptocurrencies are, why cryptocurrencies are a Money Laundering and Terror Financing (ML/TF) risk, the red flags in ML/TF through cryptocurrencies transactions, structural and regulatory weaknesses associated with ML/TF through cryptocurrencies and the recommendations for structural and regulatoryenhancements and changes to combat the ML/TF risks from cryptocurrencies. This thesis recommends the need for regulatory intervention in South Africa. It argues that there is a need to regulate cryptocurrencies through the amendments to the relevant legislations such as the Financial Intelligence Centre Act, the Consumer Protection Act, Financial Advisory and Intermediaries Act, amongst others
Condonation of non-compliance under section 67(1) of the competition act 89 of 1998
(University of the Witwatersrand, Johannesburg, 2023) Humphreys, Russell
The Competition Commission has long sought to extend its powers to investigate and refer complaints to the Competition Tribunal for prosecution. Prior to the decision of the Constitutional Court in the case of the Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC) (the ‘Pickfords’ case), the power of the Commission to initiate investigations and therefore refer matters to the Competition Tribunal was limited by section 67(1) of the Act. Those accused of breaching the Competition Act 89 of 1998 have, in their defence, relied on the limitations of section 49B of the Competition Act - the procedure for initiating a complaint and section 67(1) which provides for a time limitation on initiating/referring a complaint to the Competition Tribunal. The Constitutional Court in the Pickfords case considered whether in light of section 34 of the Constitution, section 67(1) of the Competition Act should be interpreted as an absolute bar (a prescriptive provision) or procedural time bar (capable of condonation). Section 67(1) was, however, amended in 2018 to limit the referral of a compliant to the Tribunal to no more than three years after the practice ceased. This paper considers the statutory limitations on the Commission to initiate and refer complaints to the Competition Tribunal in terms of sections 49B, 50, 67(1) and section 58(1)(c)(ii) and to examine how these limitations have been by interpreted by our courts
Evaluating the effectiveness of South Africa’s air quality legislation as a climate change mitigation tool
(University of the Witwatersrand, Johannesburg, 2023) Mlapisane, Simelweyinkosi; Lisa, Chamberlain
The global community is still grappling with the climate change crisis. Due to the intrinsic relationship between climate change and air quality, South Africa is addressing climate change through its air quality laws. This report demonstrates how these laws have been incorporated in a climate change context. It also evaluates whether the air quality laws have been robust enough to combat climate change. The report further argues that in practice, South Africa has fallen short, mainly due to a badly designed legal framework that has many loopholes, which has led to insufficient implementation. It goes on to make five recommendations on strengthening the legal framework to make it more effective. This report recommends that specific climate change legislation should be enacted; that South Africa should revisit and reform its current air quality laws; that the national government should strengthen the local government’s capacity to improve air quality; that there should be more cooperation between government departments; and that priority area management plans should contain penalties
The evolution of the test for rationality under the legality principle in South African administrative law
(University of the Witwatersrand, Johannesburg, 2022) Bekker, Chrisna Jooste; Hoexter, C.
The principle of legality was confirmed early in South Africa’s constitutional era as a product of the rule of law and the minimum standard to which the exercise of public power must be held to account. It has become an indispensable tool and ‘safety net’ to review administrative decisions where the action which it reviews does not constitute administrative action as it is defined in the Promotion of Administrative Justice Act, 2000. Rationality has emerged as the test applied in such reviews of whether the means applied to reach a decision are rationally related to the ends (the decision). Rationality has however come to comprise elements such as procedural fairness and -rationality that are not always consistently defined or applied by the courts. This variability and unpredictability lead to uncertainty in administrative law review which has the effect of causing the ‘safety net’ to stretch too far – by undermining the rule of law, the principle of legality itself and constitutional democracy
"Are all things equal? Operational considerations in the integration of deemed employees into workplaces"
(University of the Witwatersrand, Johannesburg, 2022) Otten, Rosita Joanne; Mushariwa, Muriel
This research report is a policy-based study of the regulation of temporary employment services in South Africa. It is set against a contextual background of the development of Labour Brokers in South Africa as well as a contextual understanding of the regulation of temporary or atypical employees under International Labour Organisations Standards (ILO). The scope of this research is limited to only considerations of ILO Standards and does not consider a comparator of other countries. Future research could take it further in this regard to measure how Labour Brokers are offered labour law protections globally. This research report considers the development of labour law in South Africa and how the changes in the South Africa’s labour law policy have introduced mechanisms to afford and ensure greater protection of this vulnerable employee. The research reviews the recent legislative overhaul, in consideration of having the purpose to offering progressive protection to various atypical forms of employees and specifically a temporary employee who attains a deemed employment relationship status. The research aims to assess the extent to which the amendments to the South African labour legislative framework has been able to achieve its desired aims, by first considering how the provisions relating to temporary employment services, should be interpreted and applied. Secondly reviewing various operational considerations that impact the full integration of the deemed employee into the workplace in order to ensure on the whole not less favourable treatment and finally in having reviewed such operational considerations, assess and critique the impact these amendments have achieving protection of this vulnerable class of employee

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