Browsing by Author "Collier, Debbie"

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    Agriculture, modern biotechnology and the law: An examination of the property paradigm in the context of plant genetic resources
    (2010) Collier, Debbie; Glazewski, Jan
    Commercial interest and technological advancements (such as modern biotechnology) in plant research have led to the affirmation of sovereign and proprietary rights over plant genetic resources (PGRs). The result is an increasingly complex national regulatory system for rights in PGRs, shaped by a dense web of international law instruments regulating trade, intellectual property, food and agriculture, environmental, and human rights law. The narrative of the international trade and intellectual property instruments, buttressed by the liberal rhetoric of property, is one of long-term, sustainable, economic and social development, although the strength of this argument is increasingly challenged. This thesis adds to the body of critical literature by exploring the socio-economic impact of the current regulatory regime on a vulnerable farming community growing genetically modified cotton in KwaZulu Natal, South Africa. The thesis questions whether greater limitations on proprietary rights in modern biotechnology would improve matters. The outcome of the study (completed in 2009) of these vulnerable cotton farmers implicates the IP-protected technology in the destruction of many livelihoods and in the stifling of technology transfer to aid local innovation. The thesis acknowledges the negative role played by other external factors, such as low rain fall, but suggests that some seemingly external factors, such as poor agricultural policy, and falling world prices for cotton, are consequences of the prevailing regime. The thesis proposes that this regime overly prioritises private rights at too high a social cost. In order to rein in these rights the thesis argues, through the lens of the South African Constitution, for law and policy reform. On a theoretical level, the property concept, including the notion of excludability, the idea of common and public property, sovereign rights, and the public trust doctrine are explored as mechanisms within the property paradigm to aid the case for limiting proprietary rights.
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    An assessment of China's approach to Freedom of Association and the Right to Collective Bargaining against international labour standards: should African countries be concerned?
    (2021) Newby, Christopher; Collier, Debbie
    In recent years, the People's Republic of China has been expanding its presence in Africa and developing enterprises across the African continent. China is now one of the largest investors and trading partner in Africa. The impact of this investment on labour standards, and the expectation of Chinese investors in this regard, is likely to be a concern for host countries. The purpose of this study is to consider whether China's approach to freedom of association and the right to collective bargaining is compatible with international labour standards, which have been ratified by most African countries. This is achieved by comparing the relevant laws in China, that regulate freedom of association and collective bargaining, against the international standards set by the International Labour Organisation's (ILO) Conventions and Recommendations. In particular, the provisions of the Freedom of Association Convention (No. 87) and the Collective Bargaining Convention (No .98), among others, together with the findings of the ILO Committee on Freedom of Association, are used to determine an international standards ‘comparator'. The Chinese Labour Law, Trade Union Law and Labour Contract Law are subsequently evaluated against this comparator in order to determine the extent of compliance of the Chinese labour system with international labour standards. The outcome of the comparison shows a broad degree of compliance with international standards relating to the formal recognition in law of the rights to freedom of association and collective bargaining as well as the identification of vulnerable classes of workers such as women, migrant workers and rural workers. However, two major discrepancies in the Chinese legal system were found: first, in relation to trade unions - the existence of one centralised representative organisation known as the All-China Federation of Trade Unions (ACFTU), with overarching authority, infringes the establishment, autonomy, independence and functioning of smaller grass-roots trade unions. Second, the right to strike was found to be suppressed in China. Ultimately, the Chinese formulation of the right to freedom of association and the exercise thereof is inherently different to the international standards. The right is conceptualised and practiced within the Chinese socialist market economy under the guidance of the Communist Party which is the supreme power in the democratic dictatorship. Therefore, the Chinese experience and understanding of the right to freedom of association and the right to strike may be fundamentally different to African states in terms of its content, ideological underpinning, exercise and enforcement. These findings demonstrate a need for African countries that host Chinese investment to proactively guard against the labour rights violations that may occur due to the differing domestic legal frameworks.
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    An evaluation of race based income discrimination in post apartheid South Africa
    (2021) Khewana, Xolile; Collier, Debbie
    The South African labour market has been characterised by income inequality, which emanates from past discrimination legacies. The wage gap between white workers and blacks have been marginally high. The same goes for the wage gap between males and females who find themselves performing equal value work in most cases. White workers continue to occupy high-level positions in an organisation with higher salaries disproportionately to black workers who generally occupy lower-level positions and with low-income earnings. The dawn of democracy brought a new government that has passed legislation and regulations aimed at reversing the ills of the past and achieving labour reforms and workplace equality. This paper evaluates progress as a result of such legislation and government policy provisions, particularly the Employment Equity Act. The study considers the provisions of section 6(4) of the EEA, which is aimed at race and gender pay income inequality, and the effects of section 27 of the EEA, which attempts to address disproportionate income differentials, by analysing data, and other observations and inputs from various sources. Based on the research and data, the findings point to the continued existence of wage differentials between races in South Africa. The conclusion is that the government's legislative intervention in the labour market through the Employment Equity Act has had a marginal economic impact on employees' wages and labour market transformation in the post-apartheid period. It is recommended that there is a need for a finetuned strategic approach to address both vertical and horizontal wage gap, further to this, the recommendations made by legislated bodies such as the Committee on Employment Equity need to be considered and implemented to achieve the goals as set up in the National Development Plan.
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    An analysis of the regulatory principles of functional equivalence and technology neutrality in the context of electronic signatures in the formation of electronic transactions in Lesotho and the SADC region
    (2018) Kulehile, Matsepo Regina; Collier, Debbie; Naude, Tjakie
    Despite the steady growth of electronic commerce (e-commerce), Lesotho and SADC users are uncertain of how to securely sign e-communications practicably. This results in users' lack of confidence in the use of e-commerce. SADC and Lesotho regulatory bodies have developed legal instruments including model laws and bills in an attempt to regulate electronic signatures (e-signatures) in e-commerce to address this problem amongst others. However, it is unclear whether the approach adopted will ensure that the regulatory instruments effectively regulate e-signatures and consequently promote the growth of e-commerce and enhance the socio-economic development of the state. This study examines what the information and communications technology regulatory principles of functional equivalence and technology neutrality entail, their interpretation by the United Nations Commission on International Trade Law (UNCITRAL), and their appropriateness for effective regulation of e-signatures through conceptual analysis. In particular it examines the UNCITRAL Model Laws on e-commerce, UNCITRAL Model on e-signature and the United Nations Convention on the Use of Electronic Communications in International Contracts. The study describes the technical operation of different offline and online signatures in order to appreciate how e-signatures should be regulated. Through textual analysis, it examines whether regulatory instruments of Lesotho and SADC correctly apply the theories in a way that will render use of e-signatures practicable and their regulation effective. It also examines initiatives on regulation of e-signatures in South Africa, the United States of America and the European Union. The study reveals that the purpose of the signature formality is to promote certainty, prevent fraud and provide evidence of a contract despite the form of signature. Although not perfect, functional equivalence and technology neutrality principles render regulation of electronic signatures effective since rules that align with them promote equivalence of legal treatment between offline and online signatures. Consequently, the UNCITRAL's Convention reflects that ordinary e-signatures can meet purposes of the signature formality where appropriate if they observe its functional equivalence criteria. However, the reliability of such electronic signatures is a question of evidence as is the case in offline contracts. Thus, soft laws on electronic evidence must complement the e-signature rules to ensure equivalent legal treatment of signatures. The study reveals that the Lesotho instruments do not fully align with the regulatory principles whereas the SADC instrument closely aligns with them. To different extents, these instruments do not adequately address the problems of users and may inhibit the growth of e-commerce. It further found that the instruments erroneously exclude certain matters such as wills from e-signature application while they correctly exclude others such as negotiable instruments from e-signature application. Lastly it found that the UNCITRAL convention and the US instruments provide better models for effective regulation of e-signatures. By implementing amendments suggested by this study, Lesotho and SADC will address the challenges faced by e-commerce users and make the use of e-signatures feasible for all. Consequently, the instruments will effectively increase the growth of e-commerce and in turn enhance the development of socio economic growth of the SADC region.
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    A critical analysis of the Angolan Occupational Health and Safety (OHS) law and the protection it offers to employees of the oil and gas industry
    (2014) Domingos, Anacleto Gaspar; Collier, Debbie
    This study is specifically concerned with the effect of occupational health and safety (hereafter OHS) law in Angola and the protection it offers to employees in the oil and gas industry. The current Angolan OHS legislation continues to be characterised by the pre-independence legal system inherited from the colonial era, which creates a crisis of legitimacy and justice. This crisis may be resolved through the ratification of the International Labour Organisation OHS conventions. This dissertation examines workplace health and safety in Angola from a legal perspective in detail, and explores international instruments that are used to protect employees from unhealthy and unsafe conditions. An analysis of the relevant source materials reveals a disjunction between the international standards and the laws as implemented in Angola. It is a fact that the law is expected to offer as far as is possible reasonable health and safety protection to employees. Evidence demonstrates, however, that these laws have largely failed to meet expectations. The problem is not only the fragmentation and inconsistency of the OHS laws, but also that the framework is in need of revision and a dedicated plan to resolve the gaps in the existing legislation. The study thus explores the discontinuities and deficiencies of the regulatory framework as well as of the enforcement mechanisms. Similarly, it proposes an extensive shift of emphasis away from the current legal debate to focus on the relevant issues that will offer substantive protection to the health and safety of employees, as well as justice in law reform. Various steps need to be taken to ratify the OHS conventions in order to improve the deficient framework of OHS legislation in Angola.
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    Dismissal for operational requirements: a critical examination of the role of the courts in mitigating dismissals with specific reference to the banking industry
    (2022) Dube, Nqaba; Collier, Debbie
    The principal focus of the study is to investigate the role of the courts in mitigating operational requirements dismissals and consider possible interventions that can be applied to reduce their adverse effects. The role played by courts appear to be limited in the absence of legislation that requires employers to consider reskilling, redeployment and collective bargaining in mitigating operational requirements dismissals. It is well established that the significant increase in operational requirements dismissals can be attributed to the rise of the adoption of technology in the workplace. A major drawback in the existing literature is that most studies have neglected the examination of the role of the courts in mitigating dismissals, particularly in the banking industry. The study examined the regulatory framework for operational requirements dismissals by looking at the procedural and substantive fairness requirements and how the courts have handled these cases in the context of the banking industry. Deficiencies were reflected in the framework, it was observed that the provisions of s 189 are inadequate in protecting employees in faultless dismissals. What has been fleshed out from the study is that possible interventions such as collective bargaining, redeployment, and skills and training development can play an instrumental role in mitigating dismissals. The success of these interventions requires all role players such as employers, employees, and trade unions. However, without the amendment to the regulatory framework, the role of the courts remain limited. The study calls into question the effectiveness of s 189 provisions and sheds new light on how these can be amended as well as the role relevant stakeholders ought to play in the employment relationship.
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    Does the labour relations act unjustifiably limit the constitutional right of employees to freedom of assembly? Examining the constitutionality of the prohibition on purely political protest action and gatherings by off-duty employees over disputes of mutual interest
    (2019) Allsop, Geoffrey Charles; Fergus, Emma; Collier, Debbie
    This thesis examines whether the Labour Relations Act 66 of 1995 (‘LRA’) justifiably limits the constitutional right to employees to freedom of assembly in accordance with s36(1) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’). This question is considered in two broad parts. The first part demonstrates two limitations. First, the inability of s77 of the LRA to provide legislative protection to employees who wish to embark on socioeconomic protest action over a purely political issue. Second, the LRA’s prohibition on off-duty employees utilising the Regulation of Gatherings Act 205 of 1993 (‘RGA’) to demonstrate against their employer over a dispute of mutual interest. While no court has yet considered if the LRA prohibits purely political protest action, the Labour Appeal Court in ADT Security v NASUWU 2015 (36) ILJ 152 (LAC) (‘ADT Security’) held that is unlawful for off-duty employees to demonstrate over a dispute of mutual interest under the RGA. The first part begins by establishing how the LRA’s statutory definition of protest action cannot, in its current form, protect purely political protest and how this limits the constitutional right of employees to free assembly. Similarly, it explains how ADT Security clearly establishes that the LRA limits the constitutional right of employees to freedom of assembly by infringing their constitutional right to assemble and demonstrate in compliance with the RGA. The second part tests both limitations against s36(1) of the Constitution, the limitation clause, to assess if either infringement justifiably limits the constitutional right of employees to freedom of assembly, enshrined in s17 of the Bill of Rights. Considering the factors in s36(1)(a)-(e) of the Constitution, and other relevant factors, it examines if the purpose and reasons for either limitation are sufficiently compelling so as to be reasonable and justifiable. It concludes by arguing both limitations unjustifiably limit the constitutional right of employees to free assembly. Two recommendations are made. First, that the LRA be amended to expressly permit employees to demonstrate over disputes of mutual interest, in compliance with the RGA, in certain circumstances. Second, that the LRA be amended to expressly permit purely political protest action, provided the protest action is limited in scope and duration and subject to oversight by the Labour Court.
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    Freedom of Association, the right to organize and collective bargaining in the Namibian Correctional Service: recommendations for law reform
    (2023) Shilinge, Foibe; Collier, Debbie
    The study explores the laws, policies and practices that prohibit the Namibian Correctional Service from organising and bargaining collectively on terms and conditions of their employment contracts. The study made recommendations based on the findings. The study was motivated by the fact that Namibia as a member state of the International Labour Organisation has ratified conventions concerning the Right to Organise and Collective Bargaining (Convention No. 98 of 1949), and the Right of Freedom of Association (Convention No. 87 of 1949). Namibia ratified the two above-mentioned conventions on the 3rd of January 1995. Convention 87 and Convention 98 provide prison staff the right of freedom of association and the right to organise, and the right to bargain collectively. These rights are also enshrined in the Namibian Constitution that “all persons shall have the right to freedom of association”. However, the Namibian Correctional Service does not exercise these rights due to legislative exclusion. The Labour Act No. 11 of 2007 which provides for employers and employees to organise and bargain collectively does not apply to the Namibian Correctional Service. Despite many inquiries and advice from the Committee of Experts on the Application of Conventions and Recommendations that Namibia must take steps to ensure that the Correctional Staff enjoy the guarantees under the two above mentioned Conventions, the Correctional Service is still not enjoying the right of freedom of association and the right to organise and to bargain collectively. The research study employed a qualitative approach. The qualitative design enabled the researcher to gather secondary data from legislation, case laws, magazines, reports, and other relevant documents. Data were analysed using the desktop data analysis technique. The study revealed that stringent national laws; lack of National Supervisory Body oversight of the implementation of ratified Conventions; budget constraints; shortage of Human Resources; lack of commitment by stakeholders such as trade unions, Office of the Prime Minister; and the Ministry of Home Affairs, Immigration, Safety and Security; and the failure of the Ministry of Labour, Industrial Relations and Employment Creation to review and amend the Labour Act No. 11 of 2007 that prohibits the Namibian Correctional Service to enjoy the guarantees under Convention 98 and Convention 87, are all factors that obstruct the members of the Namibian Correctional Service to form and join a union. As a result, the Namibian Correctional Service members are vulnerable and prone to abuse in terms of unfair discrimination relating to promotion and remuneration; unfair dismissals, poor disciplinary and grievance procedures; poor employment conditions; poor working environment/conditions, and exploitation by the employer due to lack of collective agreements. The study recommends that the Namibian Legislature amend the Labour Act No.11 of 2007 and that the Commissioner-General revoke the Commissioner of Prisons' Directive 03/2008 to ensure the application of the two Conventions to the Namibian Correctional Service by promoting collective bargaining and effective protection against anti-union discrimination in the Namibian Correctional Service. Secondly, the Correctional Officers may pursue the matter in the competent Court of law to seek a declaratory order on the constitutionality of the provisions of the Labour Act No. 11 of 2007 and the Commissioner of Prison's Directive.
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    German works councils - a model for South African workplace forums?
    (2017) Rohr, Selina; Collier, Debbie
    The aim of the introduction of workplace forums in South Africa in 1995 was to move away from adversarial bargaining to joint problem-solving and participation by employees on selected issues in order to advance economic development and global competitiveness, social justice, labour peace and the democratisation of the workplace. The drafters of the LRA based the workplace forum system inter alia on the positive and successful statutory employee participation structure in Germany, the works council system. Despite the fact that 22 years after the new LRA came into force there are only 3 workplace forums established in terms of the Act, the legislator still has not made any changes to the provisions yet. This dissertation compares the employee participation structures in South Africa with those in Germany and analyses potential changes - in theory and in praxis - to make the institution of the workplace forum more attractive both to trade unions and employers. The first two chapters give an overview of the statutory system of workplace forums in South Africa and works councils in Germany. The historical background of employee participation, the legal framework as well as the relationship between trade unions and the respective employee representation structure in each country will be discussed. Also, some of the reasons suggested in the literature for the failure of the workplace forum system will be set out. This leads to the third chapter which deals with the prerequisites, under which law can be transplanted from one legal system to another. This is of particular importance as the drafters of the LRA based chapter 5 on the works council system in Germany, adapting it to the South African background though. With reference to the first three chapters, the fourth chapter subsequently proposes several amendments to the LRA which can help in making the workplace forum more attractive for all affected parties. Some of the proposals stem from the positive German experience, others are specifically tailored to the South African context of adversarialism, high unemployment and an economic recession. Proposed amendments are for example: ● Facilitate the establishment of workplace forums by lowering the threshold of 100 employees and by allowing not only representative trade unions but also minority unions and employees to apply for the establishment of a forum. ● Workplace disputes should not be resolved by strikes but by a special dispute resolution mechanism like the German conciliation committee ('Einigungsstelle') to avoid an adversarial and confrontational climate on workplace level. ● Trade unions and workplace forums should be more clearly institutionally and structurally separated. Bargaining councils should be used for centralised bargaining to avoid plant level bargaining. There needs to be a clear demarcation of issues for collective bargaining and issues for workplace forums. In conclusion, this dissertation points out that legal systems emerge under different legal, social and economic circumstances and can therefore not blindly be transplanted from one legal system to another. The preconditions such as the relationship between trade unions, employers and employees, the economic and cultural climate as well as the labour market in South Africa was - at the time of the introduction of the new LRA - and still is completely different from the situation in Germany. Therefore, German provisions regarding works council cannot be transplanted into South African law without measuring them against the South African background. Whereas some German ideas can be adopted, other problematic issues can only be solved with unique South African solutions.
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    Income inequality and executive remuneration: assessing the role of law and policy in the pursuit of equality
    (2010) Collier, Debbie; Idensohn, Kathy; Adkins, Jill
    For a number of reasons South Africa today maintains its pre-democracy status as one of the world’s most unequal nations in terms of the income gap between the richest and the poorest persons. This is so notwithstanding a post-apartheid, constitutionally backed, commitment to reducing this income inequality and notwithstanding an increase in social security spending. This article assesses the efficacy of measures designed generally to compress wages and, more specifically, to guard against excessive executive remuneration. In particular the article focuses on the provisions of the Employment Equity Act, read with the Basic Conditions of Employment Act, and on the relevant provisions of company law and the principles of corporate governance. While the article expresses scepticism about the ability of law alone to engineer a more equal society, the article, after reflecting on the consequences of an unequal society, nonetheless urges that the pursuit of greater equality should not be sacrificed at the altar of an economic policy that is overly concerned with growth. The article argues that growth is in fact hampered by extreme inequality and makes some suggestions on how to reprioritise the pursuit of equality and social justice.
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    Labour brokers and workers' rights: can they co-exist in South Africa?
    (2009) Harvey, Suzanna; Collier, Debbie
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    Land rights and urban tenure: ownership and the eradication of poverty in South Africa
    (2014) Papier, Taswell Deveril; Collier, Debbie
    This paper analyses De Soto's argument that the formalisation of property leads to economic development and accepts it on the premise that such formalisation is not a panacea but a possible weapon in the armoury against poverty in South Africa. A prerequisite to formalisation is land acquisition. However, the skewed land ownership statistic in South Africa necessitates a slow and cumbersome restitution process often impeded by excessive compensatory claims by land owners and exacerbated by the interpretation of section 25 of the Constitution by our Constitutional Court. An analysis of recent Constitutional Court decisions indicates that the court is developing a jurisprudence that takes into account the extreme nature and extent of past land dispossessions and the inequalities in wealth and land distribution. This approach could facilitate the expropriation and restitution of land as a deprivation, (in terms of section 25) which is found not to be arbitrary, is not an expropriation and in consequence would not require compensation. Formalisation can then follow. The paper argues further that formalisation in the strict De Sotan sense of western exclusivity of ownership is not suited to the South African situation. The 'bundle of sticks' approach to ownership on the other hand, allows formalisation to occur whilst taking cognisance of local realities. Thus, formalisation of tribal trust land could mean common ownership where the 'sticks' of exclusivity and alienation are excluded from the 'bundle' while other 'sticks', inter alia income, security, and right to manage are retained. In the urban context, it is mooted that formalisation could include all the 'sticks' (incidents of ownership) but may need to exclude the right to alienate (for a period) to combat the problem of reverse titling. The Richtersveld formalisation model is examined as a case study since it includes both the rural and urban contexts in one formalisation model. It is within this case study that a further 'stick' in the 'bundle' is identified, viz. capacity building and training, as it is seen to be essential that the affected community understands the formalisation model applied. This paper concludes that formalisation as postulated by De Soto could serve as a catalyst for poverty eradication if it takes proper account of South African realities, and on the understanding that formalisation should reflect 'sticks' in the 'bundle' which maximise a community's ownership whilst mitigating anticipated problems.
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    The law of retrenchment: s 189a facilitation - the impact of facilitation in large-scale retrenchments
    (2014) Venter, Jan Harm; Collier, Debbie
    Employers trapped in economic difficulties or facing tough business challenges often wave the wand of retrenchment in the hope that the problem will go away. This often leads to workers unexpectedly finding themselves unemployed and queuing at the unemployment offices. In 2002, legislative provisions were introduced into the statute dealing specifically with large-scale retrenchments,1 allowing the parties to appoint an external facilitator to facilitate the retrenchment process. Although this new retrenchment process for large scale retrenchments is reflected relatively clear in and simple in the statute, this dissertation will focus on large-scale retrenchment process and highlight the positive impact facilitation, as an option,2 has introduced.
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    Minimum wages in Uganda : an analysis of Uganda’s domestic, regional and international commitments
    (2014) Imran, Nakueira; Collier, Debbie
    The legal case for having a minimum wage can be situated to the constitutional right to safe and satisfactory working conditions and the right to equal pay for equal work, the right to freedom, and dignity among other rights. The setting of a minimum wage can however can have far-reaching impacts on the economy and society as a whole. It is therefore essential to take into account the likely consequences of any minimum wage policy before it is adopted. This study reviews the factors underlying the absence of a minimum wage in Uganda. By examining the key issues surrounding the minimum wage policy in Uganda, this study establishes Uganda’s position on having a minimum wage, scrutinises the viability of this position in light of Uganda’s development plans, workers constitutional rights, and conformity to international treaties and conventions. The study concludes with the finding, that Uganda will need to reassess its minimum wage position in order to meet its economic development objectives, to give effect to the Constitution and also satisfy the commitments to its people, regional partners and the international community.
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    Overcoming the Penrose Stairs of history: the legislated treatment of the 'designated groups' within a hierarchy of discrimination approach
    (2015) Susan, Brett Andre; Collier, Debbie
    A Penrose Staircase- an impossible object always ending ascending yet constantly descending and ending as an illusion. This is Employment Equity legislation in South Africa with its purported aim of redressing the disadvantages of its designated groups. It is legislation that aims to promote equal opportunity, fair treatment and eliminate unfair discrimination yet cannot unshackle itself from the very types of racial identifiers that it wishes to have eliminated. This paper is an attempt to give greater content and context to the purpose of Employment Equity than the few sentences provided in the preamble of the Act. In particular, I have focused on the Act's own racial differentiator - 'Blacks' - as a seemingly convenient catch-all rubric which is drenched with the very abhorrent salience of race and thickening of racial classifications which it wishes to escape from. 'Blacks', as Africans, Indians and Coloureds, as I will conclude, have intertwined yet different experiences of apartheid and their emergence from Apartheid and projected future can be so vastly contrasted that Employment Equity measures based on its current simplified Verwoerd an racial descriptors will perpetuate inequality and racial disunity. This paper is a study some of the more than three hundred years of policies, practices, laws and the might of the sophisticated government machinery which aimed at placing Whites at the apex of control over the country's resources and contrast how each of the designated groups have (1) experienced legislated discrimination aimed against them; (2) as a snapshot of 1994, how they have emerged from this history and(3) the predicted trajectory that each group can expect in their share of resources in the future.
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    Property and valuation methods in new media: an examination of existing theories and practices and their applicability to new media ventures
    (2013) Strutt, Christina Magdelena; Collier, Debbie
    New media has become a major part of our daily routine and influences both our social interactions and the ways in which we conduct business. Not only does it provide new business tools to existing business models, it has also created a platform from which new forms of commerce and exchange can emerge. These novel enterprises are largely unrestrained by the capital and regulatory requirements of traditional forms of business and have other peculiar characteristics that may challenge our current views on ‘property’ and ‘ownership’. The potential of new media to compete with, and potentially displace, players in the ‘real economy’ requires a further examination of the valuation methods currently applied to business ventures, in particular those in which intellectual property and intangible assets are a major component. It is beyond the scope of this dissertation to propose alternative methods of valuing intellectual property in the new media environment. It does, however, aim to consider various theories on property and traditional valuation methods in light of this new phenomena.
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    Proportionate income differentials: a long walk to social justice. A case study on the Entgeltrahmenabkommen (ERA) Baden-Wuerttemberg, a general agreement on pay grades, that seeks to achieve pay equity in this region of the German metal and electrical industry and a critical evaluation of how this model can assist in the implementation of section 27 of the Employment Equity Act (EEA) of South Africa
    (2017) Helm, Heinrich; Collier, Debbie
    Vertical income differentials between occupational levels in South Africa are among the highest in the world. Under apartheid skilled work performed predominantly by white employees was artificially overvalued, while unskilled work performed predominantly by black employees was systematically undervalued. These discriminatory social and legal norms laid the foundation for the existent disproportionate income differentials. The post apartheid government headed by Nelson Mandela acknowledged the existence of the apartheid wage gap. They were mindful that the vertical pay gap need not only be ‛deracialized', but needs to be eradicated. In this regard the South African Constitution of 1996 and the Employment Equity Act of 1998 (EEA) underpins the demand for non-discriminatory pay structures. Section 27 of the EEA was enacted to address disproportionate income differentials, but has not yet been adequately implemented. The purpose of this thesis is to consider whether the Entgeltrahmenabkommen (ERA) (a general agreement on pay grades) which resulted in the redesign of the pay structure in the German metal and electrical industry correcting long-standing pay differentials between socalled blue and white collar workers, can add value to the implementation of section 27 of the EEA. The thesis consists of six chapters. After the introduction chapter, chapters 2 and 3 consider the historical and current context of income inequality in South Africa; and chapters 4 and 5 provide a detailed analysis of the ERA in Germany and the recommendations that derive from the ERA. Chapter 6 concludes the thesis. There are important lessons to be derived both from the drafting and the implementation phases of the ERA. The ERA process revealed that being conscious of the different challenges that might arise in each phase is a prerequisite for success. The development of norms and benchmarks in the drafting phase minimised pay discrimination. The implementation phase of the ERA showed that prejudicial views and attitudes can hinder the complete eradication of discriminatory payment practices if sufficient heed is not paid to their strong influential role. This thesis concludes that the lessons derived from the implementation of the ERA can assist in introducing proportionate vertical income differentials as required by section 27 of the EEA.
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    Sector specific regulation in the telecommunication market : the adoption of the 'essential facilities doctrine' as an instrument to open up the market for competition
    (2009) Kubasch, Judith; Collier, Debbie
    In almost all countries worldwide the telecommunication sector was characterized by state owned monopolies, and supplying telecommunication services was understood as a public duty. In the eighties of the last century, most countries began to liberalize their telecommunication market and try to open it up for competition. The establishment of competition in a former monopolized sector can be only successful by taking specific network related features into account. This thesis deals with the establishment of competition in the telecommunication market taking into account the so-called "essential facilities doctrine". This doctrine was developed from the U.S.American anti-trust law and is a helpful instrument to ensure access, under specific circumstances, by new competitors to facilities which are controlled by a market dominating operator.
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    Strategies and mechanisms to eradicate the worst forms of child labour in Nigeria
    (2014) Adeleye, Adekunbi; Collier, Debbie
    Children are the future of a nation and the hope for a better tomorrow. For a country to develop, the rights of a child should be of paramount concern to the government of the nation. These rights include, but are not limited to, the right to adequate standard of living, health care, education, play and recreation, protection from abuse, negligence and exploitation. Unfortunately, many children are denied these rights and the joy of childhood by being involved in child labour as a means to survive. In Nigeria, child labourers engage in all forms of labour and this is becoming widespread. The major causes of increasing incidence of child labour in Nigeria are the prevailing unemployment rate in the country, poverty, illiteracy, household size, culture and family structure. Several writers have written on the increasing incidence of child labour and the prohibition of child labour. Some writers have also written on the underlying major causes and health consequences of child labour in Nigeria. Although it may be impossible to totally eradicate child labour in Nigeria however, ultimate consideration to strategies and mechanisms on how to eradicate the worst forms ofchild labour in Nigeria is yet to be analysed. This is pertinent bearing in mind that Nigeria has ratified the ILO Convention on Worst Forms of Child Labour. This dissertation aims to address some of these issues by focusing on why children work as child labourers and the consequences and effects of child labour on the growth and development of the child. It will also analyse the efforts made by the International Labour Organisation and International Programs for the Elimination of Child Labour in eradicating the worst forms of child labour in Nigeria. Furthermore, this dissertation will attempt to determine what accounts for gaps in effective implementation of international laws on child labour ratified by Nigeria and national legislation enacted to prohibits the worst forms of child labour. Finally, it will suggest possible state and policy interventions, in the form of strategies and mechanisms, that could eradicate the worst forms of child labour in Nigeria.
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    Open Access
    The interdependence of human rights: a case study with recommendations for law reform to promote decent work in the informal economy and street vending sector in Nigeria
    (2018) Osiki, Abigail Emilomo; Collier, Debbie
    Broadly, decent work is promoted as a means to escape poverty. Indeed, particularly in developing countries, work is valuable as a means to gain income to meet the needs for food, shelter, health care, clothing and education. However, not all work contributes positively to human development. One example of such work is informal employment. As the informal economy has continued to expand, growing concern about the nature and quality of work has, over the past two decades, given rise to various attempts to measure and promote decent work. Decent work means work that respects the human rights of the worker. This is necessary as a strategy to eliminate poverty as well as being a key component of human dignity. A significant development of international norms for ‘decent work’ is the International Labour Organisation’s (ILO) decent work agenda (DWA), launched in 1999, comprised of four pillars (indexes) that determine the quality of work, namely: fundamental rights at work, social protection, social dialogue and employment creation. However, characteristic of activities in the informal economy, of which street vending is an example, is the lack of decent work. To achieve decent work, the objective is to transition work in the informal economy toward decent work in the formal economy. The presence of a legal framework that facilitates such a transition is critical for achieving this objective and the primary aim of this thesis is to identify the characteristics of the Nigerian legal framework that impede a transition from the informal economy, with a particular focus on the legal framework for street vending activities. Based on these findings, the thesis makes recommendations for law reform, in order to operationalise decent work within the prescripts of the ILO’s Recommendation concerning the transition from the Informal to the Formal Economy (Recommendation 204). The thesis explores the development, characteristics and nature of the informal economy both at a global level and within the specific context of Nigeria; and street trading is used as a lens to examine the dynamics and conditions of work in the informal economy. The study reveals that street vendors, like many other informal workers, lack adequate property rights in public spaces and are not protected by the labour rights which make up the pillars of decent work, in essence highlighting two core legal shortcomings that impede decent work; that is, the unenforceability of socio-economic rights and the denial of property rights in urban public places. This is borne out by the analysis of the current regulatory framework in Lagos, Nigeria, which is structured to undermine street trading as a legitimate form of work. The thesis draws attention to the interdependence of human rights, specifically in the context of property rights and the socioeconomic rights that underpin the concept of decent work and proposes law reform to address shortcomings in the law in order to promote decent work and the formalization of the rights of street vendors in Nigeria. Specifically, the thesis recommends selected pathways for supporting the pillars of decent work within the context of the ILO’s Recommendation 204. The thesis recognises that the implementation of these pathways has policy implications that require further reflection in the process of designing an appropriate legal framework to regulate the Nigerian informal economy.