4. Electronic Theses and Dissertations (ETDs) - Faculties submissions
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Item Zero- Hours Contracts in South Africa: Is there a need for Legislative Intervention(University of the Witwatersrand, Johannesburg, 2024) Serakwana, Promise Babiki MamoketiThe 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 positionsItem The impact of ‘compensating’ women for hours of unpaid care work on household poverty(University of the Witwatersrand, Johannesburg, 2024) Shedi, Olwethu; Benhura, MiracleEstimating the effect of ‘compensating’ women for unpaid care work on household poverty levels, we used Time Use Survey data for 2000 and 2010 to estimate time spent on unpaid care work, and Post-Apartheid Labour Market Series to estimate earnings for both 2000 and 2010. To achieve this, we used the Economy- wide Mean wage approach, the Opportunity Cost Average wage approach, and the Generalist wage approach. In line with literature, we confirm that, on average, women spend more time on unpaid care work than men do, and that women's average earnings are lower than that of men. We found that the estimated monthly ‘compensation’ does indeed reduce the level of household poverty. However, the Generalist wage approach compensation had the least impact on household poverty levels. Unpaid care work affects women all around the world. While some countries have made progress in recognizing, reducing, and redistributing unpaid care work, women continue to bear the brunt of the burden. Governments have a role to play in encouraging a more equitable distribution of unpaid household care duties. Flexible work hours and shared parental leave are two options for businesses to facilitate more equitable split of unpaid family care duties and assist women in achieving a better work/life balance.Item An Analysis of the Fairness, Sufficiency, and Clarity of Section 71 of the Companies Act 2008 for the Removal of Directors(University of the Witwatersrand, Johannesburg, 2024) Shnketa, Isreal; Katzew, JudithThe removal of directors in corporate governance is a subject of paramount importance, as it pertains to the dynamic equilibrium of power within a company. This research report delves into the intricate landscape of director removal by shareholders under section 71 of the South African Companies Act.1 Specifically, it scrutinises the contested view that shareholders are not obligated to supply motives for their removal decisions, relying solely on an ordinary resolution. This report examines the implications of the above provision on the delicate balance of power shared between directors and shareholders within the corporate structure. It traverses the historical evolution of director removal laws in South Africa, offering a comprehensive analysis of the legislative framework and its historical context. Furthermore, this report aims to critically assess the recent Miller v Natmed Defence (Pty) Ltd2 case, a landmark judgment, which like the case of Pretorius v Timcke3 challenges the conventional understanding of director removal. While Miller is currently binding only within a specific province, its dissent from the Pretorius case on the requirement for shareholders to provide reasons for director removal sparks debate and calls for further exploration by the higher courts. The findings of this research report aim to contribute to a nuanced understanding of the legal intricacies surrounding director removal and its implications for corporate governance in South Africa. The conclusions drawn shed light on the evolving dynamics of power, underscore the need for legal clarity, and beckon for potential legislative adjustments in pursuit of a balanced and transparent corporate landscape.Item Remote work and employee privacy in South Africa law(University of the Witwatersrand, Johannesburg, 2024) Sibanyoni, Aaron BonginkosiIn 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.Item Limitations of litigation as a tool for achieving social change: A perspective on South African and Zimbabwean litigation environment(University of the Witwatersrand, Johannesburg, 2024) Sigwegwe, Dumolwethu; Samtani, SanyaThis research report seeks to investigate and analyse the limitations of using litigation as a tool for achieving social change in the legal environments of South Africa and Zimbabwe, with a particular focus on relevant provisions in the Constitutional framework. In other words, I consider how litigation related to socioeconomic rights, with a particular focus on the right to healthcare, has been limited in its capacity to bringing about societal transformation. Juxtaposing these legal systems should highlight the opportunities and challenges of utilising litigation. In South Africa the 1996 Constitution, and in Zimbabwe the 2013 Constitution play a significant role in shaping socio-economic rights, enhancing access to justice, and promoting social transformation. Further, the Bill of Rights and the Constitutional Court all contribute to the potential effectiveness of litigation. Relying on the Constitutional framework, literature concerning the effectiveness and critique of litigation, and case studies from South Africa and Zimbabwe the article illustrates the potential and shortfalls of litigation in advancing socio- economic rights. The argument highlights that litigation has made substantial advancements in effecting systemic and policy changes, as well as in holding governments accountable. However, it also emphasizes the existence of potential obstacles, such as the failure to implement court orders, institutional barriers, and structural or procedural issues that require addressing in the pursuit of societal transformation. The research report concludes that whilst litigation can be seen as just one tactic in the repertoire for challenging societal and systemic injustices, it must however, be complemented with a broad range of strategies that include advocacy, grassroots movements, and policy reform, to address the complex underlying causes of social issues effect social change in South Africa and ZimbabweItem Intimate partner killings, criminal defences and the law(University of the Witwatersrand, Johannesburg, 2024) Sithole, Patience ThandekaThe Constitution of the Republic of South Africa, 1996 in section 9 resoundingly guarantees the ‘equal protection and benefit of the law’ to all who are within the Republic. This undertaking is a crucial part of the South African democracy, and it is a manifestation of the law’s progression from being grossly and arbitrarily discriminatory, to becoming more inclusive and considerate of people from all walks of life. Contrarily though, a close analysis of some aspects of the law as it currently exists, shows that equality before the law is more aspirational than it is a reality. Women, in particular, are often overlooked and subjected to unfairness by the same law that, in theory, vows to protect them. The lack of accommodation of abused women who kill, by the private defence ground of justification, under criminal law is an apt example of the law’s marginalisation of women. This marginalisation manifests itself in the rigid approaches to cases of abused women who kill. The typical approach is the objective ‘reasonable person’ standard which is effective in most instances but has fallen short in cases of abuse, as such cases require consideration of the abused woman’s unique set of circumstances. This calls for a closer exploration of the specific and subjective factors of women’s experiences in order to comprehend the nature and extent of the abuse. Although expert witness evidence is admissible in these cases, the weight placed on such evidence is minimal, often leading to a miscarriage of justice. In view of that, this paper serves to play a dual role of re-identifying the inadequacies that continue to exist under the private defence laws in South Africa, while simultaneously providing recommendations on how the law can be developed to successfully address these inadequacies.Item Factors Affecting Blockchain Technology Adoption by Organizations in the Livestock Supply Chain Industry in Zimbabwe(University of the Witwatersrand, Johannesburg, 2024) Tambudze, Pelagia; Isabirye, NaomiBlockchain is a distributed ledger technology that provides the building block for many innovations. The distributed nature of blockchain, its immutability, and anonymity enable trust, transparency, and security among transacting or trading partners. The accelerated unfolding of 4IR due to the COVID- 19 pandemic recently unveiled several critical gaps within global supply chains, including livestock supply chains. The main challenges faced by organizations in the livestock supply industry in the developing world include difficulties for farmers in accessing new markets, no flexibility in production times, and no traceability for the consumer market to trace food component authenticity. In Zimbabwe, livestock is an important sector contributing about 22% of the total GDP. From several studies done by other researchers in different industries, such as health care, banking, mining, education, and agriculture, it is evident that blockchain technology solves most of these issues by decreasing data asymmetries and the cost of transactions to benefit all stakeholders. Blockchain-based solutions have recently been introduced to the livestock sector, and Zimbabwe is one of the early adopters among its African counterparts. However, the adoption rate by organizations within the livestock supply chain has been minimal. Using the lens of the TOE framework, this study investigated the factors that affect the decision by organizations in Zimbabwe's livestock supply chains to adopt blockchain technology. A qualitative approach was applied, interviewing fifteen informants from various levels of the livestock supply chain. Responses were analysed using thematic analysis. The study found that adopting blockchain benefits organizations and the overall livestock supply chain. The study found that technological, organizational, and environmental factors influenced organizations' decision to adopt blockchain technologies within livestock supply chains. These factors included availability of the technology, cost of the technology, skills availability, regulation and policies, competitive pressures, presence of blockchain providers, political and socio- economic factors and market trends.Item The role of the company secretary in promoting good corporate governance in South Africa(University of the Witwatersrand, Johannesburg, 2024) Thabit, ShaaistaThe 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’.Item The WTO law consistency of the data localisation requirements in section 72 of POPIA(University of the Witwatersrand, Johannesburg, 2024) Thomas, Nkosinathi Benny; Sucker , Franziska; Ngulube,MxolisiSouth Africa's Protection of Personal Information Act ('POPI'), officially promulgated on 1 July 2020, was enacted to legislatively ameliorate South Africans' constitutional rights to not have their privacy infringed. POPI generally establishes a mechanism to ensure that persons have a say in the collection, processing and storage of their personal information. This is done through a regulatory mechanism which prescribes the limits and compliance requirements for the aforementioned activities. As part of its suite of protections, POPI in section 72 thereof, prescribes limits and conditions for the cross-border transfer of personal information collected in South Africa. Section 72 of POPI is a conditional data localisation provision because it prescribes the circumstances under which personal information collected in South Africa may be transferred extraterritorially. On the assumption that unhindered flow of data is required for the enablement of digital trade, I ascertain whether section 72 of POPI is consistent with the laws of the World Trade Organisation. In particular, I ascertain whether section 72 of POPI is consistent with the relevant provisions in the General Agreement on Trade in Services ('GATS'). To the extent that section 72 of POPI is inconsistent with the relevant provisions in GATS, I conclude that section 72 of POPI is justified pursuant to the exceptions in GATS.Item Universal internet access in South African disadvantaged communities: is there adequate regulation?(University of the Witwatersrand, Johannesburg, 2024) Thomas, KhayakaziAs a result of the advent of the fourth industrial revolution, artificial intelligence, the technology of things and other similar technologies, information communications technologies (ICT) form the basis of our routine lives and sit at the core of both economic and social development. Therefore, the advancement of universal access and service is indispensable for the equal and full enjoyment of all freedoms and rights by all and provides for the improvement of the quality of life for all citizens, and further presents a gateway to freeing each person's potential, as envisaged in the Constitution. This is particularly true for the digitally marginalised situated in informal settlements, townships and remote rural areas (Disadvantaged Communities). Notwithstanding the above, statistics show that to date the digital community in South Africa is still very much skewed towards the affluent urban communities, with only 1% of rural households able to access the internet in their homes. Achieving universal access and service in Disadvantaged Communities is a key policy goal in a democratic society such as ours. It is in light of this that this research report presents a multi-method research approach to holistically conclude on the adequacy of the South African regulatory framework to drive the advancement of universal access and service in Disadvantaged Communities, and recommend law reform. This entails a review of the regulatory framework governing universal access and service (in the South African historical background context under the apartheid regime) compared against international best practices on the regulation of universal access and service in Disadvantaged Communities (using the prevailing socio-economic realities in Disadvantaged Communities as guiding principles). The research report findings, taking into consideration the South African historical background and the prevailing socio-economic realities in Disadvantaged Communities, indicate that the South African regulatory framework is to a great extent on par with international best practices on regulation aimed at the advancement of universal access and service in Disadvantaged Communities, barring its unsuccessful implementation. The research report identifies that the unsuccessful implementation of the regulatory framework is largely owing to its fragmentation (i.e., the regulatory framework relies on vast legislation, policies and regulations and different stakeholders for its implementation). Therefore, the proposed law reform constitute regulatory framework structural measures aimed at redressing the identified fragmentation so as to achieve a regulatory framework that adequately facilitates the implementation of the universal access and service objective in Disadvantaged Communities..