PER: 2015 Volume 18 No 1
http://hdl.handle.net/10394/13918
2024-03-28T15:43:31ZWhat Constitutes a Benefit by Virtue of Section 186(2) of the Labour Relations Act 66 of 1995? Apollo Tyres South Africa (Pty) Ltd v CCMA 2013 5 BLLR 434 (LAC)
http://hdl.handle.net/10394/13935
What Constitutes a Benefit by Virtue of Section 186(2) of the Labour Relations Act 66 of 1995? Apollo Tyres South Africa (Pty) Ltd v CCMA 2013 5 BLLR 434 (LAC)
Fourie, Elmarie
The uncertainty surrounding the concept benefit as provided for in section 186(2) of the Labour Relations Act 66 of 1995 was created not by the courts but rather by the legislature. The concept is not defined and clearly has a wide ambit. In previous decisions the courts upheld a restrictive interpretation of benefits to maintain the divide between disputes of interest and disputes of rights and to ensure that issues that should be the subject of negotiation could not become issues that can be decided by an arbitrator. Previously the courts insisted that a benefit was something arising out of a contract or law. In the Apollo case the court had to determine what constitutes a benefit and if a benefit is limited to an entitlement which arises ex contractu or ex lege. The court found that the early retirement scheme was a benefit, although the employee at that stage did not have a contractual entitlement to the benefit and that the benefit was subject to the employer's discretion. What becomes clear from this case is that the unfair labour practice jurisdiction cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies. The Labour Appeal Court criticizes the distinction between salaries and remuneration drawn by our courts and describes it as artificial and unsustainable.
Under the unfair labour practice regime the conduct of the employer may be scrutinized by the CCMA in at least two instances, namely when an employer fails to comply with a contractual obligation, an entitlement or right that an employee may have in terms of a statute, and secondly when an employer exercises a discretion under the contractual terms of a scheme conferring a benefit, including situations where the employer enjoys a discretion in terms of benefits provided in terms of a policy or practice – rights created judicially. This decision places the emphasis on the employer's actions and the unfairness of such acts or omissions.
2015-01-01T00:00:00ZHuidige Regsontwikkeling ten aansien van Uitwinbaarverklaring van ʼn Verband oor ʼn Onroerende Saak
http://hdl.handle.net/10394/13934
Huidige Regsontwikkeling ten aansien van Uitwinbaarverklaring van ʼn Verband oor ʼn Onroerende Saak
Fuchs, Michelle M M
There are strict formalities involved when a mortgagee (as holder of a real security right) wants to declare immovable property executable to satisfy outstanding debt. There are various stages in this foreclosure process that a mortgagee must comply with before he can enforce his limited real right by calling up the mortgage bond to satisfy the outstanding debt. This process can be divided into four stages: first, the pre-trial debt enforcement procedure; secondly, the determination of jurisdiction; thirdly, the calling up of the mortgage bond and the court procedure; and lastly, attachment and execution sale.
Over the past decade, foreclosure proceedings have undergone significant changes, largely owing to the Constitution of the Republic of South Africa, 1996 and consumer protection legislation such as the National Credit Act 34 of 2005.
This paper addresses recent legal developments with reference to case law and legislation with regard to the first three stages of the procedures mentioned above. Emphasis is placed on the third state: the development of the court procedure (litigation) when the mortgage bond is called up and the property is declared executable. Attachment and the execution of the property that follows will, however, are not discuseed in this paper.
2015-01-01T00:00:00ZLegal Aspects with Regard to Mentally Ill Offenders in South Africa
http://hdl.handle.net/10394/13933
Legal Aspects with Regard to Mentally Ill Offenders in South Africa
Swanepoel, Magdaleen
The purpose of this note is to discuss legal aspects with regard to mentally ill offenders with specific reference to the defence raised as a result of mental illness. In order to fully understand this defence it is important to provide a clinical background on what forensic psychiatry is. It is also necessary to define certain clinical concepts such as the concept of mental illness, and the criteria for the classification of mental illnesses. This then leads to a discussion of the defence of mental illness. A conclusion is drawn at the end, with a summary of the findings.
2015-01-01T00:00:00Z"Just Piles of Rocks to Developers but Places of Worship to Native Americans" - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities
http://hdl.handle.net/10394/13932
"Just Piles of Rocks to Developers but Places of Worship to Native Americans" - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities
Ratiba, Matome M
Throughout the years cultural communities across the world have borne witness to many unending attempts at the destruction of their places of worship. This endemic problem has arisen in a number of places, such as in the USA and in most of the world's former colonies. Having been colonised, South African cultural communities have experienced the same threats to their various sacred sites. This article seeks to argue and demonstrate that cultural communities in South Africa stand to benefit from the properly construed and rich earth jurisprudence arising out of the courtroom experiences of some of the cultural communities identified elsewhere in the world. It also proposes several arguments peculiar to South Africa which could be advanced by cultural communities seeking to protect their sacred lands.
2015-01-01T00:00:00Z