PER: 2012 Volume 15 No 4http://hdl.handle.net/10394/78912024-03-28T23:29:36Z2024-03-28T23:29:36ZThe role of human dignity in the assessment of fair compensation for unfair dismissalsVettori, Shttp://hdl.handle.net/10394/79032016-04-28T21:25:07Z2012-01-01T00:00:00ZThe role of human dignity in the assessment of fair compensation for unfair dismissals
Vettori, S
South African labour law is concerned with the attainment of fairness for both the
employer and the employee. In weighing up the interests of the respective parties it
is of paramount importance to ensure that a delicate balance is achieved so as to
give credence to commercial reality as well as an individual's right to dignity. In other
words the attainment of fairness in the employment relationship must give
cognisance not only to surrounding socio-economic reality but also to human rights.
The environment within which the world of work operates has at its core a free
enterprise economy. Ultimately, an employer should generally not be penalised to
the extent that it is crippled and unable to continue operating. It is argued in this
article that in ascertaining what constitutes appropriate compensation for an unfair
dismissal, the underlying reality that labour law operates in a free enterprise system
must be and is given cognisance to by the legislation and the courts. At the same
time in ascertaining what constitutes fair compensation for unfair dismissal due
regard must be had not only to the labour rights contained in the Constitution but
also to other rights protected in terms of the Constitution, most importantly, the rights
to dignity and equality.
The fact that the basis of the employment relationship is commercial and an
employer is entitled and even encouraged to make profits is reflected in our law by
the fact that there are caps on the amount of compensation for unfair dismissal in the
interests of business efficiency and certainty. However, an analysis of relevant case
law demonstrates that this can never be at the expense of a person's dignity. Hence
the notion that the employment relationship is relational. This is reflected by the interpretation given to the legislation by the courts. Where there has been
discrimination or an impairment of the employee's dignity, there are no such limits as
to the amount of compensation a court can award. If there has been unfair
discrimination, the courts may even award punitive and non-pecuniary damages.
2012-01-01T00:00:00ZSink or swim? Debt review's ambivalent "lifeline" — a second sequel to "… a tale of two judgments" Nedbank v Andrews (240/2011) 2011 ZAECPEHC 29 (10 May 2011); Firstrand Bank Ltd v Evans 2011 4 SA 597 (KZD) and Firstrand Bank Ltd v Janse van Rensburg 2012 2 All SA 186 (ECP)Steyn, Lhttp://hdl.handle.net/10394/79022016-04-28T21:25:04Z2012-01-01T00:00:00ZSink or swim? Debt review's ambivalent "lifeline" — a second sequel to "… a tale of two judgments" Nedbank v Andrews (240/2011) 2011 ZAECPEHC 29 (10 May 2011); Firstrand Bank Ltd v Evans 2011 4 SA 597 (KZD) and Firstrand Bank Ltd v Janse van Rensburg 2012 2 All SA 186 (ECP)
Steyn, L
The interface between the National Credit Act 34 of 2005 and the Insolvency Act 24
of 1936 has been the object of our courts' attention in a number of recent cases
including Ex parte Ford and Two Similar Cases 2009 3 SA 376 (WCC), Investec
Bank Ltd v Mutemeri 2010 1 SA 265 (GSJ), Naidoo v ABSA Bank Ltd 2010 4 SA 597
(SCA) and, more recently, Nedbank v Andrews (240/2011) 2011 ZAECPEHC 29 (10
May 2011), FirstRand Bank Ltd v Evans 2011 4 597 (KZD) and FirstRand Bank Ltd v
Janse van Rensburg 2012 2 All SA 186 (ECP).
The question raised in all of the three most recent cases was whether or not a
debtor's application for debt review in terms of the National Credit Act constitutes an
"act of insolvency" in terms of section 8 of the Insolvency Act, upon which a creditor
may rely in an application for the compulsory sequestration of the debtor's estate. If it
does, it would mean that by resorting to the debt relief measures provided by the
National Credit Act a debtor commits the very act on which a creditor may base an
application for a sequestration order which, if granted, will render the debtor's estate
insolvent and bring about the liquidation of his assets. From the debtor's perspective,
this is probably precisely the situation that he seeks to avert by applying for debt
review. Further, sequestration would frustrate the stated purpose of the National
Credit Act, which is that debtors should take responsibility for their debts by
satisfying them in full. Concurrent creditors might also ultimately receive a dividend
which falls far short of what is due to them. The question of whether a debtor's resorting to debt review may or should be the
very act that triggers his estate's sequestration and its attendant consequences is an
important issue, the treatment of which impacts significantly on the efficacy of the
South African consumer debt relief system. This article analyses the most recent
judgments and considers whether or not statutory regulation of the position is
required.
2012-01-01T00:00:00ZDemographic and social factors influencing public opinion on prostitution: an exploratory study in Kwazulu-Natal province, South AfricaPudifin, SBosch, Shttp://hdl.handle.net/10394/79012016-04-28T21:21:45Z2012-01-01T00:00:00ZDemographic and social factors influencing public opinion on prostitution: an exploratory study in Kwazulu-Natal province, South Africa
Pudifin, S; Bosch, S
This paper examines countervailing South African public opinion on the subject of
prostitution in South Africa, and identifies the factors which might influence these
attitudes. It also investigates the complex relationship between public opinion and
the law. Whilst engaging in prostitution constitutes a criminal offence under the
Sexual Offences Act 23 of 1957, it is generally ignored by the police, which results in
a quasi-legalised reality on the ground. In recent years there has been growing
demand for the decriminalisation of prostitution, and as a result the issue is currently
under consideration by the South African Law Reform Commission. The Commission
released a Discussion Paper on Adult ProSstitution in May 2009, and is expected to
make recommendations to parliament for legal reform in this area. An exploratory
survey of 512 South Africans revealed interesting correlations between opinion on
prostitution and both demographic characteristics (including gender, age, race and
education level) and so-called "social" characteristics (including religiosity, belief in
the importance of gender equality, the acceptance of rape myths, and a belief that
prostitutes have no other options). The survey reveals two key findings in respect of
the attitudes of South Africans to prostitution. Firstly, an overwhelming majority of
South Africans - from all walks of life - remain strongly morally opposed to
prostitution, and would not support legal reforms aimed at decriminalising or
legalising prostitution. Secondly, our data confirm that these views are strongly
influenced by certain demographic and 'social' variables. In particular, race, gender,
religiosity, cohabitation status, and socio-economic status were found to be religiosity, cohabitation status, and socio-economic status were found to be
statistically significantly related to opinions on prostitution, while other variables -
particularly the belief in the importance of gender equality and the level of education
- had no statistically significant relationship with tolerance of prostitution. Given that
the proposed legal reforms, which will shortly be tabled before parliament, will
1necessitate the consideration of public opinion, it is imperative that studies such as
the one presented in this paper be conducted to gauge the likely response which
such proposed reforms might face.
2012-01-01T00:00:00ZA critique of the key legislative framework guiding civil liberties in ZimbabweMapuva, JMuyengwa, Lhttp://hdl.handle.net/10394/79002016-04-28T21:25:03Z2012-01-01T00:00:00ZA critique of the key legislative framework guiding civil liberties in Zimbabwe
Mapuva, J; Muyengwa, L
The dynamic and controversial nature of Zimbabwean politics has manifested itself
through several undemocratic practices, including restrictive legislation which sought
to diminish participatory spaces and/or curtail civil liberties. Corruption, gross human
rights violations and arbitrary decision-making processes have created a rift between
citizens and the state. This has further created space for the establishment of prodemocracy
civil society movements which have sought to mobilise citizens towards
the restoration of democracy. The desire to cling to power by the ruling elites has
seen the enactment of restrictive legislation that seeks to curtail and impinge on civil
liberties and restrict the political landscape in favour of the ruling elites. Key
legislative framework presented in this paper is within the areas of media and access
to information, individual rights and freedoms, as well as legislation pertaining to the
conduct of elections. In some cases, colonial legislation that politicians claimed to
have repealed was reincarnated, as the post-colonial dispensation asserted its
authority over its defenceless people.
2012-01-01T00:00:00Z