Note: Can a Hypothetical Comparator be used in an Equal Pay Claim under Section 6(4) of the EEA?

by | Oct 12, 2024 | ILJ, ILJ V45 I4

Note: Can a Hypothetical Comparator be used in an Equal Pay Claim under Section 6(4) of the EEA?

Author Shamier Ebrahim

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile Law, Unisa; Advocate of the High Court of South Africa; LLB (NMMU); LLM Labour Law (cum laude) (Unisa); LLD (Unisa)
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2211 – 2221
https://doi.org/10.47348/ILJ/v45/i4a4

Abstract

This note deals with the question whether a hypothetical comparator can be used in an equal pay claim under s 6(4) of the Employment Equity Act. A reading of s 6(4) which contains the three equal pay causes of action requires an equal pay claimant to compare her terms and conditions of employment with those of an actual comparator. This, however, is not the end of the matter as item 6.5 of the Equal Pay Code provides that an equal pay claimant may base an equal pay claim on the ground that she would have received higher pay if she were not a female and this allows for the use of a hypothetical comparator. It is contended that s 6(4) of the EEA, read with item 6.5 of the Equal Pay Code (and Mutale’s case), provides for the use of a hypothetical comparator and this argument is buttressed by both international labour law and United Kingdom equal pay law.

Note: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

by | Oct 12, 2024 | ILJ, ILJ V45 I4

Note: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

Author Cecile de Villiers

ISSN: 2413-9874
Affiliations: Lecturer, University of Cape Town
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2221 – 2238
https://doi.org/10.47348/ILJ/v45/i4a5

Abstract

Managing the conduct of public educators is the joint responsibility of the relevant provincial department of education as employer and the South African Council for Educators (educators’ council) tasked with upholding ethics in basic education. Each has its own disciplinary code and procedures to manage educator misconduct, and both include mandatory sanctions for misconduct such as assault. The Centre for Child Law challenged the disciplinary decisions by presiding officers in two assault cases where mandatory sanctions were imposed in line with the mandatory sanctions policy of the educators’ council. While the High Court found it a constitutional imperative that the educators’ council revise its mandatory sanctions policy, the Supreme Court of Appeal (SCA) held that the policy unlawfully restricted decision- makers’ discretion. The disciplinary decisions made by the educators’ council were held to be unlawful, invalid and in breach of its constitutional obligations towards children. This note illustrates the risks posed by mandatory sanctions to the effective management of educator misconduct. It argues that the SCA judgment has broader significance for the management of misconduct, particularly assault, in public basic education and that the educators’ council and employer should abandon mandatory sanctions in response to educator misconduct.

A Historical Overview of Legislative Measures to Criminalise Same-Sex Relations in Selected African Countries

by | Aug 25, 2024 | FUND, FUND V30I1

A Historical Overview of Legislative Measures to Criminalise Same-Sex Relations in Selected African Countries

Author John C Mubangizi

ISSN: 2411-7870
Affiliations: LLB (Makerere University) LLM (University of Cape Town) LLD (University of KwaZulu-Natal). Professor, Free State Centre for Human Rights, Faculty of Law, University of the Free State
Source: Fundamina, Volume 30 Issue 1, p. 1-35
https://doi.org/10.47348/FUND/v30/i1a1

Abstract

Same-sex relations are illegal in thirty-two African countries. In some of those countries, offenders are punishable by death. This contribution provides a historical overview of the legislative measures aimed at the criminalisation of same-sex relations in selected African countries, namely Uganda, Kenya, Nigeria, Botswana and South Africa, and examines its correlation with human rights protection and the rule of law. The legislative measures adopted in these countries originated with colonial influences that introduced anti-same-sex laws there during the nineteenth and twentieth centuries. The remnants of these colonial-era laws have persisted, shaping the legal landscape and societal attitudes towards LGBTQIA+ communities. Some countries have upheld and reinforced existing laws, often invoking cultural or religious values to justify the criminalisation. Others have made strides towards decriminalisation or have taken steps to protect the rights of LGBTQIA+ individuals, reflecting a dynamic interplay between tradition, human rights and legal development. The study also looks at the state of human rights and the rule of law in these countries. The correlation between anti-LGBTQIA+ legislation, human rights and the rule of law then becomes a focal point, emphasising the poor record of human rights protection in countries that have criminalised same-sex relations as opposed to countries that have decriminalised such relations. Ultimately, this contribution offers critical insight into the evolving legal landscapes of the selected African countries regarding same-sex relations. It underscores the relationship between anti-LGBTQIA+ laws, human rights and the rule of law.

From Judicial Management to Business Rescue: a Critical Analysis of the Meaning and Purpose of Business Rescue in South Africa Since 1926

by | Aug 25, 2024 | FUND, FUND V30I1

From Judicial Management to Business Rescue: a Critical Analysis of the Meaning and Purpose of Business Rescue in South Africa Since 1926

Author Simphiwe P Phungula

ISSN: 2411-7870
Affiliations: LLB LLM PhD (UKZN). Senior lecturer, Commercial Law Department, University of Cape Town
Source: Fundamina, Volume 30 Issue 1, p. 36-67
https://doi.org/10.47348/FUND/v30/i1a2

Abstract

When the concept of “corporate rescue” was introduced in the form of judicial management in South African company law in 1926, it was unique. By the start of the twentieth century, it had become clear that companies were not only major contributors to the economy, but also major employers. It was obviously desirable that companies with economic potential should not be wound up and liquidated if they encountered financial difficulties that could, potentially, be overcome relatively quickly with a return to solvency and viability. That goal, stated in these broad terms, concealed many arising difficulties – one of them being how to determine whether a struggling company had the potential to return to solvency? This and many other difficulties have led to the evolution of corporate rescue since its introduction. Appraising the corporate rescue culture in South Africa is therefore an opportunity to advance knowledge within the area of corporate law and to contribute to the understanding of how business rescue has developed in both theory and practice.

Beyond Legality: The Historical Disregard of the Principle of Legality and its Impact on Forced Marriage Prosecution in International Criminal Law

by | Aug 25, 2024 | FUND, FUND V30I1

Beyond Legality: The Historical Disregard of the Principle of Legality and its Impact on Forced Marriage Prosecution in International Criminal Law

Authors Julian Rebecca Okeyo and Emma Charlene Lubaale

ISSN: 2411-7870
Affiliations: LLB (UFH) PGCE LLM (Rhodes). Research assistant, IRPQP, Rhodes University; LLB (Makerere) LLM LLD (Pretoria). Research associate, Faculty of Law, Rhodes University; senior academic, Department of Law and Criminology, University of Greenwich
Source: Fundamina, Volume 30 Issue 1, p. 68-115
https://doi.org/10.47348/FUND/v30/i1a3

Abstract

The principle of legality, a fundamental theme of international criminal law, emphasises that an individual should not be punished for an offence that is not defined by law. Increasingly, international criminal courts and tribunals are disregarding this principle through extending crimes by analogy, an approach that is not supported by the principles of international criminal law. One area where this approach is evident is in the prosecution of the crime of forced marriage, which has never been explicitly proscribed by any of the statues of international criminal tribunals/courts. This contribution first examines the views of the Nuremberg and Tokyo tribunals to come to grips with the latter’s approach to the principle of legality. Subsequently, a brief analysis of the International Criminal Court, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia is conducted to highlight a consistent pattern of disregarding the principle of legality. When compared to the Nuremberg and Tokyo tribunals, the approach of these three courts is unique in that the latter have not classified forced marriage as a distinct crime, choosing instead to include it under crimes against humanity, seemingly suggesting that the principle of legality is not undermined. However, this contribution underscores that this approach is still a violation of the principle of legality. It is argued that the extension of crimes against humanity by analogy represents a continuation of challenges observed by the Nuremberg and Tokyo tribunals concerning the disregard of the legality principle and that the ongoing prosecution of forced marriage in the absence of a specific criminal provision is a violation of this principle.

The Evolution of Privacy and Data Protection in Kenya

by | Aug 25, 2024 | FUND, FUND V30I1

The Evolution of Privacy and Data Protection in Kenya

Author Mugambi Laibuta

ISSN: 2411-7870
Affiliations: LLB (Moi University) LLM (London School of Economics and Political Sciences) PhD (University of the Witwatersrand). Advocate of the High Court of Kenya; Certified Information Privacy Manager
Source: Fundamina, Volume 30 Issue 1, p. 116-165
https://doi.org/10.47348/FUND/v30/i1a4

Abstract

The contribution looks at the right to privacy within Kenya’s legal system by setting out the constitutional, legislative and jurisprudential framework on this right, as well as the right to data protection. The evolution of the rights to privacy and data protection in Kenya have been marked by significant milestones, reflecting global trends and local imperatives. The right to privacy in Kenya has featured in the constitutional text since Kenya gained independence from colonial rule. Conversations during the clamour for constitutional reforms shaped the current constitutional text that provides for an individual right to privacy and has been the springboard for the promulgation of legislation regarding data protection rights. The enactment of the Data Protection Act, 2019 was a pivotal moment, providing a legal framework for the protection of personal data. The Act emphasises the rights of individuals regarding their personal data, including the rights to be informed about the processing thereof, to access it and to its rectification. The Act also provides for baseline data protection principles and grants the Office of the Data Protection Commissioner powers to enforce data subject rights and data protection principles. Other legislation, such as the Children Act and the HIV and AIDS Prevention and Control Act, also provide privacy safeguards. For decades, the Kenyan courts have ruled in favour of the right to privacy. However, despite legislative developments, some statutes regulating national security organs still contain provisions limiting the right to privacy. This contribution describes the past and present status of the rights to privacy and of data protection in Kenya.

In Memoriam: Professor DG Kleyn (1955–2024)

by | Aug 25, 2024 | FUND, FUND V30I1

In Memoriam: Professor DG Kleyn (1955–2024)

Author Emile Zitzke

ISSN: 2411-7870
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: Fundamina, Volume 30 Issue 1, p. 166-170

Abstract

Extraordinary. That is the late Professor Duard Kleyn of the University of Pretoria summarised in one word. In this tribute, I will reflect on some of the ways in which Duard embodied extraordinariness in his professional and personal life. I write this as a former student who later became a colleague, mentee and a friend.

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by | Aug 20, 2024 | Uncategorized

Tax Instruments for the Mining Sector: Profitbased Taxes Versus Production-Based Taxes

Author: Kalo Achille Sanou

ISSN: 2709-8575
Affiliations: Université Clermont-Auvergne, CNRS, IRD, CERDI, F-63000 Clermont-Ferrand, France
Source: African Multidisciplinary Tax Journal, 2024 Issue 1, p. 1–17
https://doi.org/10.47348/AMTJ/V4/i1a1

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Sanou, K A Tax Instruments for the Mining Sector: Profitbased Taxes Versus Production-Based Taxes African Multidisciplinary Tax Journal Volume 4, Issue 1 (2024) p. 1–17 https://doi.org/10.47348/AMTJ/V4/i1a1

Abstract

The sharing of mining rents is a particular challenge for African countries. To explain the determinants of profit-based and production-based taxes, we use a panel of 22 gold-producing countries in Africa between 2000 and 2020 using the ordinary least squares (OLS) method controlled for time and country fixed effects. Our empirical results show that the road distance between the capital of the country and its relevant port is an important indicator in the choice of rent taxation instruments. The road distance between the capital of a country and its relevant port tends to reduce the average effective tax rate (AETR) through the share of profit-based taxes in AETR. Thus, countries that do not have direct access to the sea should favour production-based taxes over profit-based taxes in the taxation of mining rents.

The Draft Lower Courts Bill — A serious attempt to transform the civil justice system, or another window-dressing exercise?

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

Note

The Draft Lower Courts Bill — A serious attempt to transform the civil justice system, or another window-dressing exercise?

Author: Mohamed Paleker

ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 3, p. 437-454
https://doi.org/10.47348/SALJ/v141/i3a1

Abstract

The magistrates’ courts are often the first point of access to the civil justice system and are therefore crucial for ensuring access to justice. The Magistrates’ Courts Act 32 of 1944 (‘the MCA’) regulates their powers, functions, and procedures. While the legislation has been amended several times, there is a growing consensus that it needs to be replaced. This note examines some aspects of the draft Lower Courts Bill, which the Department of Justice has proposed as a replacement for the MCA. It discusses some of its positive features, identifies gaps in the proposed legislation, and provides suggestions for improving it.

Investors beware — Public-interest considerations in merger review are significant: The Burger King matter

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

Note

Investors beware — Public-interest considerations in merger review are significant: The Burger King matter

Author: Jacqueline Church

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 3, p. 454-466
https://doi.org/10.47348/SALJ/v141/i3a2

Abstract

In South Africa, statutory competition law serves as a vehicle to address both traditional economic goals and broader social and political concerns. This is particularly apparent in the field of merger regulation, where public interests must be considered in the merger analysis. This note focuses on the so-called Burger King merger, which was notified to the Competition Commission and initially prohibited. Notably, this marks the first time since the inception of the Competition Act 89 of 1998 that an intermediate merger has been prohibited solely on public-interest grounds. However, the Tribunal subsequently cleared the merger, but only after the merging parties agreed to accept the onerous conditions imposed upon them.