Browsing by Author "Cheadle, Halton"

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    A consideration of the fault standard in a claim for additional compensation under s 56(1) of the Compensation for Occupational Injuries and Disease Act
    (2016) Spoor, Alexander; Cheadle, Halton
    From initially placing the burden of injury almost exclusively on the injured employee, growing social awareness of the inherent risks in the workplace has seen an ever increasing willingness to hold the employer liable.1 This was initially driven by the courts, but developments were soon overtaken by the work of political activists and trade unions, which placed great pressure on business and the state to find more equitable systems of worker protection.2 This culminated in what is so often referred to as a new balance3 being struck in the form of comprehensive legislation to protect workers. In South Africa, this comprehensive legislation is the Compensation for Occupational Injuries and Diseases Act 3 of 1993 ('the COIDA'). The COIDA extinguishes an employee's common law rights to sue the employer for damages4 and instead introduces a no-fault system of compensation in which the employee is guaranteed an amount of compensation, when the harm from the accidents or occupational disease arises in the workplace.5 The compensation payable is in most situations significantly less to that which could be claimed at common law, being capped at a maximum of the total pecuniary loss to an employee.6 The employer thus avoids the risks associated with the possibility of costly damages claims while being obliged to fund the legislative compensation scheme through a tariff system. The tariffs payable are dependent on the risks associated with the class of industry and the safety record of the individual business.7 THE COIDA in recognition of the need to discourage employers from maintaining unsafe workplaces preserved a common law like8 fault based entitlement to what is termed 'increased compensation' under s 56 of the COIDA. 9 The significance of the provision lies in the ability of an injured employee or their dependents to claim back the difference between the no-fault compensation paid and their respective pecuniary loss.10 While potentially having a dramatic impact on the compensation received the section is completely underutilised.11 The reasons for this underutilisation are said to lie in potential claimants either being ignorant of the provisions or unable to institute claims.12 This thesis will examine the interaction between the law that regulates workmen's compensation and one aspect of how this modern system of law deals with the age old problem of negligently caused harm in the workplace. In particular, it argues that another important reason why claims for increased compensation are underutilised is because the common law defence of contributory negligence is said to apply to a claim for increased compensation. The result of this is that laws, which have since been abolished with the passing of the Apportionment of Damages Act 34 of 195613 ('the ADA') continue to apply in this one statute. The result is that cases developed over a century ago, which involved law on hobbled donkeys and steam powered trains, continues to have a major influence on whether a claim for increased compensation is successful or not.14 As will be shown, this position is untenable and a new interpretation of the provision for increased compensation is required.
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    Labour Reform in South Africa: Measuring Regulation and a Synthesis of Policy Suggestions
    (2009-09) Bhorat, Haroon; Cheadle, Halton
    Even though the South African economy is formally categorised as an upper-middle income country, it has one of the highest unemployment rates in the world. The economy's unemployment rate stands officially at 26.7 per cent and 38.8 per cent. This characteristic, more than any other, has placed market regulation high on the agenda of pertinent policy issues in South Africa.
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    Labour Reform in South Africa: Measuring Regulation and a Synthesis of Policy Suggestions
    (2010-02) Bhorat, Haroon; Cheadle, Halton
    The purpose of this project is to contribute to reducing poverty and inequality in South Africa by supporting the government to develop a Strategy for the Second Economy, as part of its Accelerated Shared Growth Initiative of South Africa (Asgi-SA).
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    Regulated Flexibility and Small Business: Revisiting the LRA and the BCEA
    (2006-06) Cheadle, Halton
    The object of the paper is to identify the conceptual underpinnings of the labour law reforms of the 1990s, particularly the concept of regulated flexibility, and the changes to the labour market since then in order to review the performance of those reforms and to propose changes to more appropriately regulate that market.
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    Regulated Flexibility: Revisiting the LRA and the BCEA
    (2007-07) Cheadle, Halton
    This policy brief was compiled based on DPRU Working Paper 07/119, Regulated Flexibility: Revisiting the LRA and the BCEA by Halton Cheadle.
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    The case for assisted dying/euthanasia in specific cases in South Africa with reference to the development of the South African and Canadian Jurisprudence under a human rights political order
    (2022) Brink, Raphael Grant; Cheadle, Halton; Schwikkard, Pamela Jane
    In this thesis, I argue that the present jurisprudence, particularly constitutional law and the common law of South Africa all lend support to the case for decriminalising physician assisted suicide through invoking a right to die with dignity (RDD). This argument is foundationally premised on the clear jurisprudence of the Constitutional Court which sets out the right to dignity and the value of dignity as the touchstone of the South African Constitution. The historical origin and development of the idea of dignity are traversed as well as how this idea found its way to the heart of our constitutional jurisprudence. The study then expounds on the similarities between the South African Constitution and the Canadian Charter of Rights and Freedoms and by comparing each of their Limitations Clauses proceeds to demonstrate how our Constitutional Court may follow analogous principles and reasoning to decriminalise physician assisted suicide by taking a similar approach to that taken in the Supreme Court of Canada. The argument is developed to posit that the South African Constitution with its emphasis on dignity allows for an even more compelling rationale for the decriminalisation of assisted suicide than was available to the Supreme Court of Canada. This thesis also analyses in some detail the present position of assisted suicide at common law and argues that when properly understood, though the legal position is confusing and contradictory, the common law is not in conflict with the potential decriminalisation of physician assisted suicide. Having clarified the present legal position and avenues for the development of the law, the main ethical arguments which inform and underlie the good morals which in turn underlies public policy, the so-called boni mores are considered. The point is made that the boni mores underlies our common law, and when this changes over time, our common law should follow suit. Having concluded that a key element of a decriminalised regime must include sufficient safeguards to protect the weak and vulnerable in our society, an analysis of the law in jurisdictions that have decriminalised physician assisted suicide and/or physician assisted euthanasia is undertaken which in turn culminates in a draft of proposed legislation for South Africa. The thesis points to studies which suggest that the experience in jurisdictions that have enacted a permissive physician assisted suicide regime has been largely positive. People in those jurisdictions who have explicitly chosen to exercise the right to die with dignity have avoided finding themselves in the inhumane condition of being compelled against their will to suffer interminably and unnecessarily. Whilst permissive legislation where available has succeeded in the aforesaid, such legislation does not appear to have resulted in a drop in the overall protection of human rights and the exposure of the vulnerable to harm, as was argued would be the case by those who have historically opposed physician assisted dying legislation. These facts which have become available from early-adopting jurisdictions for several decades now, and from ever more jurisdictions as physician assisted dying legislation is being ever widely passed, now show that the greatest fears of opposers have not come to pass. The study concludes that taking all of the above findings into consideration there appears to be a favourable legal framework and a preponderance of evidence to support a right to die with dignity in South Africa.