School of Law (ETDs)

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    Zero- Hours Contracts in South Africa: Is there a need for Legislative Intervention
    (University of the Witwatersrand, Johannesburg, 2024) Serakwana, Promise Babiki Mamoketi
    The South African law of contract is centred on the principles of freedom of contract and good faith. These principles mean that parties are free to choose what terms to contract on and with whom to contract with, provided that the result is not contrary to public policy. Consequently, the resulting contract is likely to be more favourable to the party in a higher bargaining position. It is noted that there is no general rule providing that contracts must be fair. Considering this, zero-hours contracts freely entered into, which are not against public policy, are valid in South Africa, even if they are unfair. According to research conducted by the CIPD, zero-hours contracts can benefit both parties if they are well regulated. The CIPD research also suggests that the contracts are often only advantageous to employees whose circumstances do not allow them to be engaged in full-time employment. This paper explores the need for the legislature to intervene in regulating zero- hours contracts. It emphasizes the need for the legislature to limit the unfettered exercise of bargaining power in zero-hours contracts to provide for the balancing of employee and employer rights. South Africa’s current legal framework does not specifically regulate the use of zero-hours contracts. In the absence of such regulation, vulnerable employees find themselves at the mercy of unscrupulous employers who exploit the weaknesses in the legal system for their own gain. The effect, thereof, being the blatant disregard of statutory obligations, Constitutional rights and values, and an unfettered exercise of power. The paper further explores the regulation of zero-hours contracts in jurisdictions such as the United Kingdom and New Zealand which have legislation specifically dealing with these contracts and recommends that South Africa should follow suit. It also recommends, inter alia, that the Labour Relations Act be amended to specifically deal with zero-hours contracts, that the use of exclusivity clauses be reserved for specific circumstances, and the amendment of the Basic Conditions of Employment Act to provide for minimum working hours. It concludes that there is a need for the legislature to intervene in regulating zero-hours contracts to ensure the protection of vulnerable employees from exploitation; the fair balancing of employee and employer rights; the advancement of Constitutional values of Ubuntu, fairness, and dignity; and the prevention of abuse of power by parties in strong bargaining positions
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    Remote work and employee privacy in South Africa law
    (University of the Witwatersrand, Johannesburg, 2024) Sibanyoni, Aaron Bonginkosi
    In South Africa, the right to privacy is guaranteed in the Constitution, and is given effect by the Protection of Personal Information Act (POPIA) and protected by other pieces of legislation. This research looks at remote work and employee privacy under South African law. The right to privacy, which is a human right that employees must also enjoy. However, the right to privacy impacts the employer’s right to manage the business enterprise in a remote working setting. Therefore, the research explores the concept of control and subordination, which are central to the employment relationship. The employee is subordinate to the employer; otherwise, there would not be a contract of employment. These characteristics of control and subordination are drastically diminished by the employee’s right to privacy and consequently impact negatively on the employer’s entrepreneurial control. Employers should take note that it is not the “activities” of the employee that matter but the “purpose” of monitoring, which must be balanced with the rights and interests of both parties in the employment relationship.1 South African law does not adequately deal with the issue of employee privacy in the context of remote work. South Africa can draw lessons from jurisdictions where this aspect of the law has been significantly developed. These jurisdictions include EU countries such as Germany, France and the UK. In the US, protection of privacy is based on liberty which requires a person to prove the expectation of privacy to enjoy the protection and therefore individualistic in nature, while in the EU it is based on dignity as a fundamental right which gives the power of individuals to control information about themselves and therefore communal.2 The research explores these two analytical approaches and argues that the South African Constitution elevates human dignity and has been confirmed by the Constitutional Court in AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services (Media Monitoring Africa Trust) and a related matter 2021 (4) BCLR 349 (CC)(Amabhungane). Thus, it should be the yardstick as in the EU countries instead of the US culture. This research makes a proposal for South Africa to adopt legislation or a Code of Good Practice on remote work and employee privacy.
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    The role of the company secretary in promoting good corporate governance in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Thabit, Shaaista
    The global prevalence of corporate scandals involving misconduct has drawn public attention to corporate governance, highlighting the role of the company secretary as a key corporate governance officer. However, company secretaries are often overlooked, despite their importance for facilitating corporate governance. The term ‘secretary’ itself is misleading, as it suggests a purely administrative position. Prior to the role’s development, the connotation was correct. Company secretaries were known as the administrative officer of the company. The implication of this has been, and remains, that the role is not fully leveraged. This view contrasts with the multifaceted functions company secretaries perform today in corporate governance matters and beyond. The emphasis on corporate governance has resulted in modern company secretaries taking on a range of positions with broader powers and extensive duties transforming their roles into guardians of corporate governance. The position is already incorporated into governance codes, the recent Companies Act 71 of 2008 and practice. However recent corporate failures raise concerns whether the role of the company secretary within South Africa's corporate governance framework has the potential to fulfil this corporate governance expectation. This research report will discuss how factors such as the historical marginalisation, legal ambiguity, lack of knowledge and framework fragmentation of the role has contributed to its underutilisation and undervaluation. Effectively hindering it from reaching its full potential within corporate governance and relegating it to the status of an unrecognised hero despite its significant role in corporate governance. This research report further examines the role of the company secretary within the corporate governance framework, highlighting its potential to succeed in this crucial corporate governance position and proposing improvements to maximise this potential. This research report asserts that selection, implementation and utilisation of a suitable company secretary can prevent or mitigate instances of poor corporate governance and, in some cases corporate scandals, bringing to the fore a new corporate ‘governance hero’.
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    South Africa’s greylisting due to deficiencies in its corporate legal framework on illicit financial flows: is there a need for measures enhancing transparency in relation to beneficial ownership?
    (University of the Witwatersrand, Johannesburg, 2024) Tshinaba, Tshianzi Palesa; Samaradiwakera-Wijesundara, Charmika
    On 24 February 2023, the Financial Action Task Force’s decision to ‘grey list’ South Africa sent shockwaves through the Republic, placing it under increased monitoring by the intergovernmental body. The economic consequences thereof are dire: loss of investor confidence, increased difficulty in obtaining donor funding from abroad, among many others. The greylisting is a consequence of South Africa’s failure to address the deficiencies in many aspects of its anti-money laundering and counter-terrorist financing regime, including those relating to the obscure beneficial ownership framework designed for companies that operate within its territory. Motivated by the pressure of being greylisted, the South African government is in the process of establishing a new beneficial ownership regime that is much more transparent and aims to prevent the use of companies by their beneficial owners to facilitate illicit financial flows. However, the obscurity of the “old” beneficial ownership regime was rooted in the need to protect beneficial owners’ privacy and safety. It is on this basis that this paper investigates whether there is truly a need for a new beneficial ownership regime and, if there is, whether the regime being established by the South African government will be effective in preventing and deterring beneficial owners from using companies as vehicles through which they can engage in illicit financial flows in and out of the Republic.
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    Financial inclusion in South Africa: An analysis of the financial sector regulatory framework and proposals for reform
    (2018-09) Duma, Amanda; Kawadza, Herbert
    Abstract Not Available.
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    When Less Is More – Tiny Housing As “Adequate” Housing
    (University of the Witwatersrand, Johannesburg, 2023) Kruger, Petronell; Pieterse, Marius
    The modern housing landscape is in flux with three key phenomena impacting the “adequacy”– the legal standard by which housing provision is measured – of housing policy, in South Africa, and worldwide. First, the “classic” housing crisis persists: high levels of homelessness, housing backlogs, and challenges related to government housing subsidies and service delivery continue. Second, there is international recognition of the impact of climate change on housing, the consequent need for climate-resilient housing, and reduced climate footprints of housing construction, maintenance and ownership. Third, physical housing size is increasing, despite the number of household members and available space for housing decreasing. This thesis considers these phenomena and contemplates the role of housing size within the evolving legal standard of “adequacy”, especially where size was often linked to the promotion of the right to health in light of communicable disease outbreaks. The thesis explores how tiny housing movements and different global norms on housing size can challenge conventional standards of housing adequacy. It considers that smaller dwellings are more affordable, less resource-intensive and, within the correct policy context, can lead to easier access to housing. The study lens of tiny housing is chosen due to its popularity throughout different income groups, based on growing concerns about consumerism, sustainability and communitarianism (albeit through a westernised lens). Accordingly, it allows for a discussion on the role of housing down-sizing without necessarily invoking a sense of “racing to the bottom”. To achieve the research aim, the following research questions are posed and answered in turn: What is “adequate” as a standard to measure housing? Does size matter for the standard of adequacy, and if so, how? Can tiny houses, as a representation of very small housing types, be deemed adequate? If tiny housing can meet the adequacy standard, how should the law facilitate the self-realisation of tiny housing, or, alternatively, as a viable form of public housing? The thesis comprises six chapters. The first chapter introduces the above-mentioned phenomena and study lens. The second chapter examines the legal and social barriers and facilitators for tiny housing in both private and public contexts through a comparative study of selected jurisdictions, chosen to represent different social, cultural and geographic contexts in which housing size requirements developed. The jurisdictions were also selected based on data accessibility and availability. The third chapter is a content analysis of theoretical aspects of adequacy in international and South African housing and human rights law. The fourth chapter is a critical analysis of building regulations and planning laws in South Africa, tracing their history and assessing their current form, with a focus on how they structure the self-realisation of access to tiny housing as adequate housing. The fifth chapter considers government public housing programs, policy approaches to housing size and its trade-offs with other adequacy factors in enabling access to tiny housing for people without the means to self-realise the right to adequate housing. Chapter six presents the answers to the research questions as explored through the various chapters and presents the overall findings of the study
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    Re-defining gender equality in the formal mining industry. a case of select categories of women in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Mudimba, P. Chipo; Albertyn, Catherine
    The mining industry has been one of the major contributors to the economic development of many developing countries. It employs and creates business for both skilled and unskilled people and has great potential for developing mine-hosting communities. The industry also has potential to contribute towards development programs, designed through Social and Labour Plans. Mining can improve lives. However, due to the masculine nature and culture of the industry, women have long been excluded from participation and, in many jurisdictions, it has required the law to correct this inequality. In South Africa, despite a plethora of laws to incorporate women in the industry, the majority of women remain excluded from recognition and participation, thus reflecting different meanings and understandings of the concept of equality from a more formal idea to a more substantive notion of equality. This study investigates the role and potential of the law in advancing substantive gender equality in the South African large-scale mining industry. Its focus is on three groups of women: those in ownership and control of mining related businesses, employees and women resident in mine hosting communities. A qualitative mixed methods approach (documentary interpretation, interviews and focus group discussions) was used to investigate the problem and collect data. The findings showed that, while the law plays a huge normative role in advancing equality, in practice this has often been limited to formal and, sometimes, inclusive interpretations of equality. Overall, the law is unable to cure barriers such as patriarchal and socio-cultural limitations experienced by women in the industry. Consequently, alternative solutions that seek to advance a more transformative substantive equality, drawing on women’s practical experiences, are recommended.
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    Good corporate governance in state-owned entities: challenges and compliance
    (University of the Witwatersrand, Johannesburg, 2024) Mokuena, Medi Moira; Kawadza, Herbet
    This research explores the state of good corporate governance in state-owned entities. It does so by locating good corporate governance in the state-owned entities’ operating environment. This research raises the failure of the executive managers, the non-executive directors, and the executive authorities to appreciate this powerful tool as a key to the success of the state-owned entities. The state-owned entities are significant participants in South Africa's economy. The number of state-owned entities, the size of some, and their role in the country's economy make good corporate governance imperative. The nonchalant approach of the state-owned entities management to this phenomenon is concerning because its effect on the economy and the delivery of services to the people has far-reaching negative consequences. In most instances, unethical executive managers and non-executive directors consider it inconvenient and a nuisance. The competitiveness of the economy, success and sustainability of the state-owned entities is unachievable without good corporate governance. The accounting authorities must know and understand the purpose of state-owned entities and the relevance of good corporate governance. They must own it, embrace it and oversee its effectuation throughout the organisation without fail. Once adopted, good corporate governance binds the accounting authorities, the executive managers, and all the employees in the state-owned entities, including the executive officers. There are laws and other guidelines in place to modulate good corporate governance. The overarching law is the Constitution of the Republic of South Africa, 1996. These could be better. However, if properly implemented and not manipulated for nefarious reasons to the detriment of the state-owned entities, the government will realise its goals, and the public will benefit. Bad corporate governance opens the door for corruption, bribery, fraud, financial mismanagement, and money laundering. This problem is common in Southern Africa. For instance, Botswana and Namibia also have good corporate governance challenges in their state-owned entities. Their good corporate governance is premised on the King Codes and international instruments. Hence, good corporate governance must be applied in the management of state-owned entities. The quality of management and execution in state-owned entities determine their failure or success. With the help of the private sector enablers, theirprospect of success is limited
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    The role of local government in achieving spatial equity through the realisation of the right to housing in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Mudau, Fungai Paul; Pieterse, Marius
    This Thesis deals with the role of local government in overcoming spatial inequalities in South African cities, with a particular focus on housing and access to well-located urban land. The primary focus is on whether the legal role of local government in housing matches its rights-related responsibilities and its role in achieving spatial equity. Municipalities have limited legal powers, policy scope, and budget for housing. With overstretched programmes and fiscus, certain municipalities are reluctant to assume housing delivery roles. However, numerous court cases bind municipalities by assigning them increased rights-based responsibilities which they may not be adequately equipped or empowered to implement. The problem which therefore unfolds relates to the inevitable need to address the obligations to realise the right of access to adequate housing of the urban poor within the limited legal, institutional, and structural role that local government plays in housing delivery, as well as with the limited resources at its disposal. The challenges associated with the realisation of local government’s housing-related powers, functions, and responsibilities become simultaneously more complicated and less insurmountable when viewed together with local government’s legal powers and functions pertaining to spatial planning. As a result, this Thesis investigates the articulation between housing and planning-related legal competencies and responsibilities of local government, in seeking to ensure that local government can fulfil its constitutional developmental role and contribute to the achievement of spatial equity. Selected case studies of the metropolitan municipalities of Cape Town, Johannesburg, and eThekwini are utilised to explore the emerging trends, issues, and challenges in practice
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    Courting an intervention: conceptualising the judicial role in matters relating to section 139 of the South African constitution
    (University of the Witwatersrand, Johannesburg, 2024) Franklyn, Claire Susan; Pieterse, Marius
    This Thesis conceptualises the developing judicial role in matters relating to section 139 of the South African Constitution, being the constitutional intervention mechanism in terms of which a provincial executive (or, in certain circumstances, the national executive) intervenes, temporarily and in a circumscribed manner, in a dysfunctional municipality. The burgeoning judicial role has developed within the context of systemic local government collapse, persistent service delivery failures, and failing and dysfunctional constitutional accountability and intergovernmental monitoring and support mechanisms. Three broad categories of section 139 intervention matters are identified in this Thesis: first, the judicial review of a decision to initiate a section 139 intervention, second, the judicial review of a failure to take such a decision, and third, a catch-all category relating to matters which trigger, or at least, this Thesis argues, should trigger, a consideration of section 139 of the Constitution, where such intervention does not form part of the requested relief. Chapter 1 sets out the policy, constitutional and legal framework and practice of the section 139 intervention mechanism. Chapter 2 draws on case law and academic literature relating to the South African court’s adjudication of different subject matters (or ‘streams’), each of which have elements pertaining to the section 139 intervention mechanism, to develop a conceptual, analytical and evaluative framework for constructing a judicial role conception in matters relating to section 139 of the Constitution. Chapters 3, 4 and 5 apply this framework to systematically analyse the case law falling within the three identified categories of section 139 intervention matters, tracing doctrinal developments and building a conception of the judicial role with a focus on justiciability, judicial scrutiny and remedial prescriptiveness. The conclusion to the Thesis in Chapter 6 consolidates insights from the three categories, ultimately arguing that the South African environment is generally conducive to litigation relating to section 139 of the Constitution, with the court adopting a catalytic judicial role, shifting its levels of judicial scrutiny and remedial prescriptiveness in each category based on an intersection of its understanding of its own role under the doctrine of separation of powers, the role of governmental action and responsiveness, the integrity and healthy functioning of the applicable democratic institutions, structures and processes, and the seriousness of any underlying socio-economic rights violations.