PER: 2013 Volume 16 No 1http://hdl.handle.net/10394/85372024-03-28T13:46:04Z2024-03-28T13:46:04ZThe history of labour hire in Namibia: a lesson for South AfricaBotes, Anrihttp://hdl.handle.net/10394/85562016-04-28T21:52:21Z2013-01-01T00:00:00ZThe history of labour hire in Namibia: a lesson for South Africa
Botes, Anri
Labour hire, the practice of hiring out employees to clients by a labour broker, has been
a part of Namibia’s history since the early 1900s in the form of the contract labour
system. This form of employment was characterized by inhumanity and unfair labour
practices. These employees were subjected to harsh working conditions, inhumane
living conditions and influx control. The contract labour system continued until 1977,
when it was abolished by the General Law Amendment Proclamation of 1977. It was
during the 1990s that the hiring out of employees returned in the form of labour hire. It
continued in this form without being regulated until it was banned in the Namibian
Labour Act of 2007. In 2009 Africa Personnel Services, Namibia’s largest labour broker,
brought a case before the court against the Namibian Government in an attempt to
have the ban nullified on grounds of unconstitutionality. It argued that the ban
infringed on its right to carry on any trade or business of its choice as contained in
section 21(1)(j) of the Constitution of the Republic of Namibia. APS triumphed. It was
not until April 2012 that new legislation was promulgated in order to officially lift the
ban and to regulate labour hire in its current form. This new legislation came into force
in August 2012. Various very important provisions are contained in the Labour
Amendment Act 2 of 2012 concerning labour brokers. Part IV of the Employment
Services Act 8 of 2011, containing provisions for the regulation of labour brokers as
juristic persons per se, was also introduced and came into force in September 2012.
The aim of this note is to serve as a lesson to the South African government as to what
could happen if labour brokers continue without legislation properly addressing the pitfalls associated with labour brokers. Also, it could serve as an example as to how the
employees of a labour broker should be protected. In this regard the history of labour
hire and the current strides in Namibia cannot be ignored.
2013-01-01T00:00:00ZThe impact on women on the removal of gender as a rating variable in motor-vehicle insuranceWagener, Anthea Nataliehttp://hdl.handle.net/10394/85552016-04-28T21:52:23Z2013-01-01T00:00:00ZThe impact on women on the removal of gender as a rating variable in motor-vehicle insurance
Wagener, Anthea Natalie
Insurers use actuarial statistics as rating variables to differentiate and distinguish for
the purposes of risk classification. They justify their use of actuarial statistics due to
its accuracy as a predictor of risk. South African motor-vehicle insurers use gender,
inter alia, as a rating variable to classify risks into certain classes and to determine
insurance premiums. Depending upon whether the insured is male or female, it
could have a significant impact on the cost of his or her premium. Women drivers
pay less for motor-vehicle insurance because actuarial statistics indicate that women
are more careful drivers and are involved in 20 per cent fewer accidents than men.
Men pay higher premiums because the statistics indicate that they are less
responsible drivers than women.
Should a South African court decide that the use of gender as a motor-vehicle
insurance rating variable is unfair discrimination, this would benefit male drivers, as
it would lower their premium. Women, on the other hand, would be disadvantaged
as they would be required to pay higher premiums to subsidise men. The article
examines the impact that the removal of gender as a rating variable in motor-vehicle
insurance would have on women, and asks if the effects thereof would influence a
South African Court’s decision in determining if the use of gender as a rating variable
amounts to unfair discrimination.
The article first considers the findings of American and Canadian Courts in
determining this same issue and then considers South African equality legislation, particularly the Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 (“the Equality Act”). Thereafter, the article provides recommendations for a
South African Court.
As the Equality Act indicates that the discriminatory insurance practice of placing a
disadvantage or advantage on persons based inter alia on their gender may possibly
be unfair, it is suggested that South African insurers would have to consider
alternative methods of risk assessment. In the light of the American and the
Canadian case law, the article suggests that there should be a change of approach
to insurance risk assessment. Rather than using gender as a rating variable the
insurer could assess the risk of the individual insured, using appropriate, neutral
rating variables suited to the particular circumstances of the insured. This would
require a much more intensive and individualised risk evaluation and would require
the insurer to “tailor-make” insurance for each individual. It is submitted that such
an approach would give effect to the right to equality by disallowing the use of
gender as a rating variable without producing the undesirable consequence that
women drivers would have to subsidise men.
2013-01-01T00:00:00ZProtecting critical databases - towards a risk based assessment of critical information infrastructures (CIIS) in South AfricaNjotini, Mzukisi Nivenhttp://hdl.handle.net/10394/85542016-04-28T21:52:17Z2013-01-01T00:00:00ZProtecting critical databases - towards a risk based assessment of critical information infrastructures (CIIS) in South Africa
Njotini, Mzukisi Niven
South Africa has made great strides towards protecting critical information
infrastructures (CIIs). For example, South Africa recognises the significance of
safeguarding places or areas that are essential to the national security of South
Africa or the economic and social well-being of South African citizens. For this reason
South Africa has established mechanisms to assist in preserving the integrity and
security of CIIs. The measures provide inter alia for the identification of CIIs; the
registration of the full names, address and contact details of the CII administrators
(the persons who manage CIIs); the identification of the location(s) of CIIs or their
component parts; and the outlining of the general descriptions of information or
data stored in CIIs.
It is argued that the measures to protect CIIs in South Africa are inadequate. In
particular, the measures rely on a one-size-fits-all approach to identify and classify
CIIs. For this reason the South African measures are likely to lead to the adoption of
a paradigm that considers every infrastructure, data or database, regardless of its
significance or importance, to be key or critical.
2013-01-01T00:00:00ZThe paradox of migration and the interest of the atomistic nation-states: the Southern African perspectiveNgandwe, Phazha Jimmyhttp://hdl.handle.net/10394/85532016-04-28T21:52:14Z2013-01-01T00:00:00ZThe paradox of migration and the interest of the atomistic nation-states: the Southern African perspective
Ngandwe, Phazha Jimmy
The "paradox of migration and the interests of the atomistic nation-states"
interrogates the phenomenon of migration in general and in the Southern African
Development Community in particular. The point of departure of the paper is the
African Union and the Southern African Development Community’s legal framework
on migration, as read with the national legal instruments of the different member
states. Its focal point is the raison d’être of this phenomenon of migration and the
corresponding approaches and attitudes of the nation-states within which migration
takes place inter se. This includes the psycho-social impact of migration.
Internationally as well as regionally, States are concerned with issues of sovereignty,
the preservation of the welfare of the citizenry, ensuring social cohesion social,
cultural and economic development including job creation, and fighting against
transnational organised crime, including terrorism. The theme of the paper is that
whereas migration should form the bedrock of regionalism and globalisation, the
negative attitudes of the nation-states to migration are more often than not at
variance with the objectives of regionalism and globalisation.
The central question of the research is how states can discharge their duties and
obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the
stigma that attaches to migration and thereby upsetting the international as well as
regional integration objectives of the free movement of people. This is the issue that
the paper is intended to explore. The main areas of concern are that the negative
attitudes of the nation-states are manifested in the hostile treatment of migrants at all ports of entry, including illegal or ungazetted points of entry, within the nationstates
in general, and in their labour markets in particular. This research therefore
explores the paradoxical nature of the duties and responsibilities of states within the
migration and mobility discourse. The paper will conclude by making practical
recommendations aimed at influencing policy and law.
2013-01-01T00:00:00Z