OpenUCT :: Browsing by Author "Kalula, Evance"

Browsing by Author "Kalula, Evance"

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Open Access
A configuration of trade regimes in Eastern and Southern Africa region: Implication for deeper integration and WTO compatibility
(2003) Busieka, Wycliffe M; Kalula, Evance
This work has examined the implication the proliferation of identical econOITllC groupings portends for the east and southern Africa region. The thrust of the study here has been to interface and interrogate the incidence of the configuration of integration regimes in the east and southern Africa region. The work has investigated the question as to whether the proliferation of trade regimes has prepared a fertile ground for greater and deeper integration in the region. The thesis has also interrogated the proposition that such proliferation is the very antithesis of the desired goal to promote trade harmonization and reach out for deeper integration in the region. Importantly this work has ventured to query the confluence of identical trade regimes in view of the compatibility imperative as enshrined in the wro legal framework. We have examined the implication this configuration of integration regimes portends for the wro disciplines. This work conunenced with an extensive examination of current works on regional integration regimes in general and integration initiatives within the east and southern Africa region in particular. The interrogation exercise was premised on works, both economic surveys and legal treatises undertaken on the recently concluded EU-SA free trade agreement, the SADC Trade Protocol, the COMESA Treaty and the Cotonou Agreement. The actual texts of these instruments form the bulk of the sources. We note that without exceptlon, significant and to that extent costly restructuring programs will have to be undertaken by States in the east and southern Africa region in response to the disruptive EU-SA trade partnership. We have established that these integration regime scores well on the imperative of wro compatibility. We gather that the present wro structures are not malleable enough for the cash strapped sub-Saharan Africa trade regimes to reconfigure themselves in such a way as to deepen the integration agenda. We have urged for more flexibility in the wro framework on this score to augment integration processes currently crowding the regional landscape. Mataywa W Busieka - 10th July, 2003
Open Access
Arbitration practice in Zambia : the process and its legal impediments
(2016) Sianondo, Clavel; Kalula, Evance
Arbitration as a process of dispute resolution has been pivotal in addressing a lot of business needs to have the dispute resolved within a short period and with less inconveniences to their business. The principle of confidentiality gives impetus to the process. The skill of the arbitrators and the general party autonomy has made the process and awards to be fully complied. Despite the monumental progress made in the field of arbitration as a means of dispute settlement, the process has been beset by reversal which is inherent in the Arbitration Act itself thereby whittling down the advantages ascribed to the process. To this end, the study therefore highlights the historical development of arbitration in Zambia. The process of arbitration and its role in enhancing access to justice will also be examined. The advantages and how the same have been weakened by the Arbitration Act, other legislations and indeed the interpretive impositions by the court will be investigated. Among other provisions which fly in the teeth of the entire process is its usually unqualified attachment to the court system without cognisance of the aspiration of the entire process of arbitration. To redress these weaknesses in the Act and the rules which guide the arbitration process, this study will spur reforms so as to bring the law into conformity with the expectations of the end users.
Open Access
Assessing the role played by regional organisations in conflict resolution in Africa
(2009) Biraaro, Wendy; Kalula, Evance
The aim of this thesis is to analyse the role of regional organisations in conflict resolution and to what extent and with which legal authority are they allowed to participate in these resolutions taking into the consideration the norms of international law that is to say, the treaties and protocols relating to conflict resolution of the organisations shall also be focused upon. It will also determine if the role played by these organisations has led to increased peace and stability on the continent. This thesis will also deal with the influence that international non'state actors have on these organisations as well as the international norms that are to be respected and protected during conflict resolution. For this thesis, emphasis will be placed on the following regional organisations and the role they play in conflict resolution; these include: ECOWAS: Economic Community of West African States, EAC: East African Community, ECCAS: Economic Community for Central African States, COMESA: Common Market for East and Southern Africa, IGAD: Intergovernmental Authority on Development, SADC: Southern African Development Community.
Open Access
Building or stumbling, blocks anyhow: a comparative approach of regional labour mobility frameworks towards global solutions
(2018) Sauriol-Nadeau, Isabelle; Kalula, Evance
While concessions to labour mobility at the international level seem off the agenda, with the General Agreements on Trades in Services essentially tabled, the past decades have produced a proliferation of regional trade agreements (RTAs), some of which are facilitating labour mobility specifically. In this paper, the author first conducts a comparative overview of RTAs that have a form of labour mobility programmes: namely, ECOWAS, ASEAN, the European Union, NAFTA, CARICOM and MERCOSUR. Building on an overview of the regulatory frameworks, institutions and legal instruments of these RTAs, the author seeks to find if patterns or lessons to be learned emerge that are relevant from a global perspective and to enhance the legal architecture of international labour mobility. The findings show positive outcomes, with some RTAs generating trade benefits and even moving forward with a common passport based on the newly shared regional identity, and at times even creating dispute settlement and legal systems for regional litigious matters. On the other hand, this exercise also points to various problems such as the poor implementation of the labour mobility provisions, to overly strict restrictions based on skill and to difficulty securing documents to benefit from the labour mobility programmes - in some of the agreements. In the second part, the author discusses these challenges faced in these regional systems. She notes that prioritising skilled as opposed to low-skilled workers has not yielded a comparative advantage and may also be fostering irregular movements. She also highlights that trade liabilities emerge from the association of countries with similar levels of development and that it accentuates the North-South paradigm. These problems disrupt access to the benefits of the programmes, which ultimately creates irregular migrations and uneven labour standards for migrant workers. Finally, the author finds that most RTAs reviewed are developing their own legal frameworks with limited interest for the international instruments available, which are at best a source of inspiration. In the third part, the author invites the reader to challenge many preconceived ideas on international mobility emerging from the first two sections, and shares her thoughts on ways forward to build an international framework, based on existing scholarly work and considering the unpopularity of the GATS. She concludes with a discussion on ‘new regionalism’ as an alternative until a shared international framework to facilitate migrations is set up, with the possibility of a merger between RTAs from the North and the South. This, she argues, could possibly unleash the full benefits of labour mobility such as increased GDPs, poverty reduction and tackling irregular migrations; benefits that have not been entirely felt to date.
Open Access
A case analysis of the viability of the current regulation and enforcement mechanisms of corporate governance in Zambia
(2016) Mwanawasa, Chipokota; Kalula, Evance
The narrative has changed. It is no longer 'Africa is rising' but 'Africa has risen'. Africa's economic potential is being sung from all corners of the world. One would think that the continent would undergo another 'scramble for Africa' following on from this economic boom. However, it is also clear that all this growth and foreign investment into African development cannot be embraced in the absence of proper commercial institutional structures and policy guidelines in the areas of corporate governance. While these structures may already exist to some degree, the areas of greatest concern are those of enforcement and regulation. This dissertation therefore examines the case for strengthening the regulation and enforcement mechanisms of corporate governance in Africa using Zambia as a case study. After an analysis of the law and the institutional framework surrounding corporate governance in Zambia, it becomes evident that the current self-regulatory system is weak and inadequate in terms of ensuring compliance: this shortcoming ultimately makes its raison d'être futile. A method of comparative law will be used to evaluate other models of enforcement and regulation by internationally recognised corporate governance codes and legislation in the United Kingdom, United States of America, South Africa and The Organisation for Economic Co-operation and Development (OECD). The objective is to try to answer the questions of what measures work well and to what extent; this information is used to ascertain which model would be suitable for Zambia to address the problems of regulation and enforcement. It should be noted however from the outset that this paper does not advocate for a 'copy and paste' modus operandi in responding to the challenges of corporate governance in Zambia. There is no one formula to answer economic corporate governance issues but these policies which have been successful elsewhere can be used as a basis to create an organic formulae that would ultimately be suitable for Zambia, taking into account the issues that are unique to its business culture, fiscal policies and economic growth among others.
Open Access
Children's rights and child labour: a comparative study of children's rights and child labour legislation in South Africa, Brazil and India
(2014) September, Jerome; Kalula, Evance
This dissertation will, through the analysis of various pieces of legislation and taking account of the daily realities of children in South Africa, Brazil and India (IBSA), outline the progress made to reduce and eradicate the exploitation of children, through the elimination of child labour. These three countries are chosen because of the particular challenges they face, but also because as part of the IBSA group, they have committed themselves to working together in the advancement of key international matters, including issues of human rights and social justice. The India, Brazil and South Africa (IBSA) group has further recently been held up as a global example for the efforts made by nations in the elimination of the worst forms child labour. The ultimate goal is the total elimination of child labour. This dissertation will draw attention to the complexities and contradictions in policy and practice, with particular reference to concepts such as ‘Child Labour’ and the ‘Worst Forms of Child Labour’. This dissertation will compare [the experience of] childhood in these countries, and explore the risk factors that place particular children, and families, at risk of utilising child labour as a source of income.
Open Access
A comparison of the South African and Swaziland's labour market regulatory systems in dispute resolution
(2004) Dlamini, Bongani Sydney; Kalula, Evance
The choice of a labour market regulatory system in any given social context is crucial for the economic development of that country. In South Africa, a challenge has been made to the key players in the labour environment to choose whether the primary focus should be on creating better jobs or whether the main challenge should be in creating many or more jobs (Baskin: 2004). These two conflicting interests, though almost intertwined to each other, are however standing on a separate footing. Of late in South Africa, there have been cries for an urgent need to deregulate the labour market in the quest to create more jobs and free the small and medium businesses to participate in the economy without stringent measures. Concern has been raised about the unavailability of jobs for the people of South Africa. The major challenge facing the Government is the need to create more jobs. In Swaziland, the problem of job scarcity is reaching a crisis level. A large section of the economically active population is unemployed. Previously, Swaziland was considered to be an ideal place to conduct business by many enterprises in Southern Africa. The new political dispensation in South Africa and the political stability in Mozambique have brought about a sudden and devastating effect on Swaziland. Businesses are closing down operations and very few enterprises are showing an interest to invest in that country. This notwithstanding, Swaziland has opted to use South Africa's system of labour market regulation. The essence of the paper will be to examine the choice of the labour market regulatory systems between these two countries and to try to establish the successes and failures of each system in its given context. The main focus will be on the dispute resolution mechanism that each system adopts and whether such system works well given the cultural, social, economic and political dispensation of that country. The institutions that will be discussed are the Commission for Conciliation, Mediation and Arbitration (CCMA), the Conciliation, Mediation and Arbitration Commission (CMAC), the Labour Court and the Industrial Court. At a later stage, the discussion takes a twist and focuses on the competing and overlapping jurisdiction between the labour dispute resolution systems as set out in labour legislations on the one hand, and the common law power of the High Courts to decide on labour related matters on the other hand. The idea is to shed some light on the difficulties that may arise if the jurisdictional problems are not resolved and that this may in turn impact negatively on the labour market regulatory systems.
Open Access
A configuration of trade regimes in eastern and southern Africa region: implication for deeper integration and WTO compatibility
(2003) Busieka, Wycliffe M; Kalula, Evance
This work has examined the implication the proliferation of identical economic groupings portends for the east and southern Africa region. The thrust of the study here has been to interface and interrogate the incidence of the configuration of integration regimes in the east and southern Africa region. The work has investigated the question as to whether the proliferation of trade regimes has prepared a fertile ground for greater and deeper integration in the region. The thesis has also interrogated the proposition that such proliferation is the very antithesis of the desired goal to promote trade harmonization and reach out for deeper integration in the region. Importantly this work has ventured to query the confluence of identical trade regimes in view of the compatibility imperative as enshrined in the WTO legal framework. We have examined the implication this configuration of integration regimes portends for the WTO disciplines. This work commenced with an extensive examination of current works on regional integration regimes in general and integration initiatives within the east and southern Africa region in particular. The interrogation exercise was premised on works, both economic surveys and legal treatises undertaken on the recently concluded EU-SA free trade agreement, the SADC Trade Protocol, the COMESA Treaty and the Cotonou Agreement. The actual texts of these instruments form the bulk of the sources. We note that without exception, significant and to that extent costly restructuring programs will have to be undertaken by States in the east and southern Africa region in response to the disruptive EU-SA trade partnership. We have established that these integration regime scores well on the imperative of WTO compatibility. We gather that the present WTO structures are not malleable enough for the cash strapped sub-Saharan Africa trade regimes to reconfigure themselves in such a way as to deepen the integration agenda. We have urged for more flexibility in the WTO framework on this score to augment integration processes currently crowding the regional landscape.
Open Access
Contracting work out to self employed workers : does South African law adequately recognise and regulate this practice?
(2011) Bamu, Pamhidzai Hlezekhaya; Kalula, Evance
Labour law is premised on the paradigm of a full-time, indefinite and bilateral employment relationship between employer and employee. Increasingly, this standard employment relationship model is being undermined by the proliferation of non-standard forms of work as employers seek greater labour market flexibility. These forms of work have been driven by three processes, namely casualisation (the engagement of workers on a fixed-term, casual or part-time basis), externalisation via commodification of the employment relationship (the engagement of workers in terms of a commercial contract, which excludes labour law from the relationship) and externalisation via intermediation (the use of intermediaries such as subcontractors). This study focuses on a work arrangement or practice referred to as contracting work out to self-employed workers. This involves contracting work out to individual workers who in turn employ other workers to assist them. The study considers the use of this practice in South Africa, where it emerged in the 1990s. It examines empirical research on the practice in the mining, clothing and construction sectors, and in relation to truck drivers. South African employers have argued that this practice advances government's small business and black economic empowerment policies.
Open Access
A critical analysis of international legal regulations of child labour : a case study of Tanzania
(2004) Bahati, Angela Anthony; Kalula, Evance
This research examines the problem of child labour in Tanzania. It seeks to explore the magnitude, scope, causes and consequences of child labour, and the worst forms of child labour. Children are defined as persons less than 18 years and child labour refers to specific categories of children between 5 years and 18 years who are economically active. Children may be involved in paid as well as unpaid work within the formal and informal sectors, or in urban and rural areas. The Worst Forms of Child Labour include slavery, prostitution or pornography, illicit activities and hazardous work. As in many African societies, Tanzania's children are expected to carry out several tasks as they progress to adulthood under the principle of preparing them to be adults; this is generally referred to as 'socialization'. These tasks often place children in danger or expose them to unhealthy, dirty, strenuous, moral and exploitative conditions and constitute the type of child labour that the Tanzanian government is concerned about.
Open Access
A critical analysis of the law on sexual harassment in the workplace in South Africa in a comparative perspective
(2007) Ndema, Yondela; Burchell, Jonathan; Kalula, Evance
A central feature of sexual harassment in the workplace is that it essentially involves two sides of a coin an impairment of dignity, self-esteem, self-worth, respect, ubuntu, individual autonomy, and equality from a positive aspect and freedom from insult, degrading treatment, disrespect, abuse of trust and unfair discrimination from a negative aspect. The overlap between equality and dignity as founding values of the Constitution, constitutionally entrenched rights, and values underpinning the limitation clause in the Constitution is explored with a view to illustrating why sexual harassment is unacceptable in an open and democratic South Africa. The central theme of the thesis is that the future of the law on sexual harassment lies in the adoption of a multi-dimensional approach which focuses on dignity/ ubuntu because there can never be equality without respect for dignity/ ubuntu which is an essential pillar in the celebration of self-autonomy and humanity in a democratic society. A central focus of the research is that the harm of sexual harassment gives rise to various remedies, which are not mutually exclusive. The plaintiff can use one or more of the available remedies because sexual harassment is potentially a labour issue; a constitutional rights matter; a delict; unfair discrimination and can even manifest itself as a specific offence in criminal law. A wide range of data collection methods were used including reference to South African judicial precedent; legislation; selected foreign case law; the Constitution; textbooks; journal articles; feminist theories; and international conventions. The aim is to underscore the impairment suffered by women through sexual harassment, which includes economic harm, psychological harm, unfair discrimination, work sabotage, unequal access to employment opportunities and abuse of organizational power by supervisors. The multiple facets of the harm of sexual harassment such as treating women as sub-human, un-equal and as sub-citizens in total disregard of their constitutional rights, self-autonomy and ubuntu is highlighted in an effort to identify the essence of sexual harassment. The judicial tests, which determine whose perception of the nature of sexual harassment is decisive, are described. The focal point of the thesis advocates a judicial test for identifying sexual harassment, which is gender neutral, objective, and promotes the objects, purport, and spirit of the Bill of Rights by offering equal protection before the law. A critique of the current law on sexual harassment in South Africa is conducted in the light of the common-law principles of vicarious liability. An evaluation is made of how and to what extent the South African case law is compatible with Canadian and English authorities. This was done by broadening the scope of employment test to include approaches compatible with an abuse of power and trust; frolic of one's own; enterprise risk; mismanagement of duties; and abuse of supervisory authority and the sufficiently close nexus between the wrongful conduct and the employment. The United States supervisory harassment approach, which focuses on sexual harassment as an abuse of power or trust in employment relations, is critically regarded as having truly captured the essence of the risk of abuse inherent in the supervisor's delegated power. Statutory vicarious liability in terms of labour law is underscored because it is distinct from the common-law principles of vicarious liability in creating an element of deemed personal liability on the part of the employer for failure to take steps and ensure the eradication of gender discrimination. It is observed that women cannot be liberated as a class (gender equality) if they are not liberated as autonomous individuals (dignity). It is concluded that South African law is in harmony with the Canadian and English authorities on sexual harassment in the workplace and has the potential to deal adequately with sexual harassment cases in the workplace but only if attention is paid to the proposed emphasis and suggestions made in the thesis.
Open Access
The duty to bargain and collective bargaining in South Africa, Lesotho and Canada : comparative perspectives
(2005) Ndumo, Mothepa E; Kalula, Evance
Includes bibliographical references (leaves 80-84).
Open Access
Economic Partership Agreeements and Regional Integration: A Case Study of the Southern Africa Customs Union and the Southern African Development Community
(2009) Mwanahawa, Aziza Khauhelo Mdee; Kalula, Evance
In many respects, developing countries have sought regional integration (RI) as the device to propel them into a new era of development and economic prosperity. Within an African context, the importance of regrouping countries was further strengthened by the need to deconstruct the artificial borders that had been imposed, and thus became a post-colonialism mantra. The belief in the importance of integration and its' consequent pursuit has continued, despite its admittedly limited success on the continent, amidst what has been referred to as a 'puzzling web of overlapping, contradictory and ineffective agreements. In this regard, Southern Africa is no exception. There is a litany of socio-economic challenges that the region faces. Consequently, regional organizations such as Southern African Development Community (SADC) and the Common Market for East and Southern Africa (COMESA) continue to search for new approaches to RI to enable them to tackle these challenges. Although technocrats profess 'integration fatigue', the advancement of regional efforts continues.
Open Access
Eliminating child labour in South Africa: legislation, education and non governmental organisation strategies
(1998) Ntloko, Nomfundo; Kalula, Evance
The interest and concern around the issue of child labour has been growing in the past. few years throughout the world. With all that has happened in South Africa, with the transition to a democratically elected government, the is a need for us to focus on all the issues affecting our country in order to make the democracy real for the person in the street. With the present government focusing on improving the conditions under which children live, the is a responsibility on everybody. The government is presently changing and introducing new legislation. The focus of the legislation is based on the constitution which is the superior law that governs the country. The government hence has an obligation to change those laws which discriminated against any of the South African children and introduce legislation which is in line with the constitution governing the country. The President has put the right of children as one of his Presidential Lead projects and part of the Reconstruction and Development Programme. The role of the Ngo and Cbos is pivotal in working towards a better society for the children of South Africa. However, the information on child labour in South Africa is very inadequate, the very few studies available have been conducted mostly in the agricultural sector. Thus, it is important that more energy be put into conducting research to establish which forms of child labour exist and in which areas it is escalating. Once this has been established it will become easier for the relevant role players to implement measures to counter the increase of child labour This study will then analyze the status of child labour in South Africa, what has been done in the past by legislation and other role players and what the government is at present doing in order for them to meet the standards set out for them in the international documents especially the United Nations Convention on the Right of the Child, bearing in mind that South Africa ratified the convention on the 16 June 1995. This would also be in line with the National Programme of Action which sets out the programme that the country has set itself towards improving the total being of the South African child.
Open Access
Emerging trends in labour legislation and policy in the SADC region : the experiences of Botswana and Swaziland in the context of the ILO convention on freedom of association and protection of the right to organise (C.87)
(2003) Ntumy, Emmanuel K B; Kalula, Evance
The advent of the Southern African Development Community (SADC) brought with it a · euphoric expectation of instantaneous transformation of the sub-region into a vibrant, viable economic haven for its inhabitants. Time and reality have since reduced this euphoria to disillusionment. This state of affairs has resulted in a lot of introspection leading to vital questions about the readiness and capacity of the member states to let go of their national sovereignty as a price for more meaningful regional integration. Embedded in this is the major question of how the labour law regimes have lent themselves to change and whether they can be transformed into engines of growth that can facilitate employment within internationally acceptable environments. To attempt to answer this question, one needs to examine closely the individual domestic situations in order to determine how strong differences are in the context of international labour standards such as the very basic freedom of association and protection of the right to organise. The examination of • Botswana and Swaziland was therefore undertaken for this purpose. It has led us to the conclusion that essentially, labour legislation in these countries is common in many significant respects, unwilling to approximate to expected international standards but flexible enough for potential harmonization and transformation. This dissertation is however fairly inconclusive given the size of the SADC itself. It is therefore only a pointer, a part of the critical foundation of enquiry. It is thus only part of the preliminary survey for the roadmap that needs to be drawn on which a workable integration in the SADC could be built in the future.
Open Access
Equality in higher education partnerships: defining the concept in divergent contexts
(2021) Hagenmeier, Conrad Cornelius Andreas; Kalula, Evance; de Wit, Hans; Amien, Waheeda
This thesis investigates how an appropriate theoretical framework for equal partnerships between universities in divergent contexts could be formulated, based on the principle of substantive equality. Literature has to date not addressed whether equality should be a principle underlying higher education partnerships, and the concept of equality in higher education partnerships has not yet been defined. This thesis explores present practices and conceptualisations of equality, specifically in partnerships between higher education institutions of divergent strengths, through a literature study, a survey of university stakeholders responsible for the management of bilateral international university partnerships, four minicase studies and a doctrinal review of the South African Constitutional Court's equality jurisprudence. An interpretivist paradigm is applied; Fredman's four-dimensional understanding of substantive equality serves as its theoretical framework. The internet-based survey tool ‘SurveyMonkey' was used to collect data for the survey. Data evaluation was undertaken using the analytical tools embedded in SurveyMonkey, the Statistical Programme for the Social Sciences (SPSS), and qualitative data was thematically analysed. The mini-case studies applied present practices and conceptualisations of equality in higher education partnerships, specifically in those between higher education institutions of divergent strengths, as the primary unit of reference. The substantive equality jurisprudence of the South African Constitutional Court was evaluated using Fredman's four-dimensional model of substantive equality. The most notable insight from the empirical research is that there is no uniform understanding of equality in higher education partnerships. Based on the empirical and doctrinal research, a theoretical framework was formulated. For partnerships to be considered equal, certain criteria from an open-ended list should be met, which include a value-foundation in mutuality, transparency and accountability, trust, equity and fairness, academic freedom, promotion of education, research and development, and ubuntu. Partners should make contributions that are equally meaningful, considering their context. They should be able to achieve their priorities to an equal extent through the partnership. The partners should recognise and affirm their equal worth, as well as the equal worth of all those who participate in partnership activities in all spheres of the collaboration. Open and transparent communication should be practised, and partnership decision-making processes should equally weigh all partners' voices and ensure that minority views are considered. The partnership as a whole should affirm the diversity of partner universities.
Open Access
Forced child labour a critical analysis of the Democratic Republic of Congo' s
(2013) Kamwimbi, Kasongo Theodore; Kalula, Evance
Scroll down to electronic link to access the thesis. Includes bibliographical references.
Open Access
Freedom of association and trade unionism in South Africa : from apartheid to the democratic constitutional order
(2007) Budeli, Mpfariseni; Kalula, Evance; Okpaluba, Chuks
This doctoral thesis deals with freedom of association and trade unionism in South Africa. Freedom of association is one of the fundamental rights and freedoms enshrined in a number of legal instruments both at the international and municipal levels. Progress and democracy require respect for human rights, including the right to freedom of association at the workplace. Trade unionism is the expression of this right. The development of trade unionism in South Africa is closely related to that of freedom of association and was instrumental to the demise of apartheid. This work provides a theoretical, historical and legal background to freedom of association and trade unionism, both from a comparative and international law perspective. It then investigates the legal and jurisprudential protection of freedom of association and trade unionism under apartheid before dealing with their protection under the post-apartheid legal order. The thesis argues that international law in general and international labour law in particular contributed a lot to the development of freedom of association and trade unionism in South Africa. It concludes that South Africa has gone a long way in protecting freedom of association at the workplace and trade unions played a critical role in the consolidation of democracy in the country. The prospects for the protection of freedom of association and trade unions are good. However, there are also a number of challenges, political, social, economic, and intellectual. These challenges need to be overcome to consolidate democracy and a culture of human rights. The thesis ends with some recommendations for further research to ensure the best protection of freedom of association and trade unions in South Africa and the rest of our continent.
Open Access
Gender equality in employment in the Southern African Development Community (SADC) region
(2002) Leslie, Graham Andrew; Kalula, Evance
The primary objective of this dissertation is to explore the ways in which gender discrimination in employment is being combated in the Southern African ~ Development Community (SADC) · region. My original intention was to simply examine what measures were being taken in the SADC to attain gender equality at work, and analyse these in light of the various models of equality and feminist theories relevant to the labour market. However, after my initial research it became clear that this approach was unlikely to yield the expected dividends. This was so for a variety of reasons. First, the varying levels of development in the region preclude the divulgence of any hard and fast rules regarding the position of women in 'the labour market'. Second, the 'labour market' is by no means a homogenous entity in Southern Africa, making generalisations more dangerous than ever. Third, it is difficult to accurately gauge the real impact of measures being taken at the regional level on practices and policies in member states. It appears that, even where policy and legislative changes have been made, there is little or no evidence to show that the position of women in the workplace has actually improved. Most importantly, however, was the nature of equality and feminist theories themselves, which has led to the formation of the overwhelming recurring hypothesis underlying this dissertation, namely that equality is as much about the limits of the law as its potential. It was thus necessary to move away from my initial approach, which was predicated on a rather formal conception of the juridical, rights-based notion of equality, towards a much more contextual approach to the subject matter. This approach is borne of the understanding that equality for women in the Southern African labour market will not be attained in universities or parliaments alone. Rather, it is in the application of principles arising out of equality discourse to a specific context that any model purporting to attain gender equality in the workplace must ultimately stand or fall. Further, although increasing and widespread disillusionment with the 'failed notion of gender equality' has led to calls from some quarters for an end to the juridical, or rights-based, model of equality itself, I have resisted this conclusion for two reasons; namely, the lack of viable alternatives to the substantive model of equality offered by critics; and secondly, the fact that the 'hollow' nature of equality, in the sense that it has no intrinsic meaning in isolation of the context to which it is applied, renders it unsusceptible to attack. A corollary of this reasoning is, of course, that those who would hide behind the rights-based model can be properly called to account and will not be permitted to merely pay lip-service to rights-talk without supporting such propositions with meaningful evidence of clear and tangible impact in key targeted areas of intervention. Following the brief introduction in chapter one, chapter two proceeds to examine some of the relevant theoretical aspects of contemporary equality theory, including many of the issues alluded to above. Ultimately, while mindful of the various criticisms that have been levelled at the juridical notion of equality in recent years, I have argued for a substantive model of equality, insofar as it is capable of taking account of the context in which it is to be applied. It is asserted that, while criticisms have quite correctly exposed the ways in which equality discourse has actually masked entrenched patterns of gender discrimination in the labour market, none have yet successfully attacked the root of substantive equality, which calls for nothing more, or less, than the imperative to 'be equal'. Having decided to rally behind the substantive model of equality, in chapter three I set about exploring, in general terms, the environmental or contextual factors informing our modem-day understanding of gender equality in employment. In light of the conceptual findings in chapter two, this contextual enquiry is exposed as the real heart of the debate, which is dissected and examined accordingly. Starting with the universal picture as set out in the Beijing Declaration and Platform for Action 1996, chapter three looks at crucial issues informing and constituting the environment in which any conception of gender equality must take root. In particular, the impact of globalisation on women workers, the gendered aspect of statist theories and the trend towards the 'feminisation' of poverty are explored. It is here that the desirability of regional harmonisation of labour standards becomes evident, as does the need for proactive state intervention aimed at addressing persisting cycles of entrenched gender discrimination and disadvantage. Finally, the role of international institutions such as the International Labour Organisation (ILO), and the opportunities for women's empowerment in the workplace presented by collective bargaining, are highlighted. The focus then turns to the application of these contextual considerations within the SADC region itself. Chapter four explores the nature and extent of gender inequality in the labour markets of Southern Africa and looks at economic factors entrenching the feminisation of poverty throughout the region. In order to understand the range of the types of issues that are likely to be encountered in Southern Africa, country profiles are conducted on Lesotho and South Africa, which offer contrasting examples of almost polar proportions as regards economic development in the region. From the country profiles it is clear that a significant amount of intervention on the part of the state is required in order to combat the patriarchal heritage of customary and colonial law still operative throughout the region. Even where steps have been taken to ensure the eradication of sexist policies and laws, there is little evidence of direct positive impact on the lives of Southern African women. Chapter five critically examines developments underway at the regional level in the SADC, .and the SADC Employment and Labour Sector (ELS) in particular. Among other initiatives, the ELS has recently adopted a Gender Policy which sets out its plans for attaining gender equality in the workplace. Although measures such as the Gender Policy taken at the regional level are undoubtedly necessary and positive developments, much remains to be done by way of follow-up and implementation in member states. This chapter analyses these developments in light of the theoretical and contextual issues raised in foregoing chapters. In particular, from this regional perspective, the need for harmonisation of labour standards pertaining to gender equality, and a holistic approach to address the feminisation of poverty, including appropriate social protection measures, are argued for. Chapter six sets out a brief summary of the central arguments put forward in this dissertation, and provides some suggestions by way of outlook for gender equality in SADC labour markets.
Open Access
Impact of the new South African and German constitutions on labour law: a comparative analysis
(1999) Woehlert, Silke; Kalula, Evance
The main concern of the study is to present some reflections on the impact which the new South African and German constitutions have on labour law and labour relations. It assesses the efficacy of the two constitutions in the development of labour law and promotion of various employees rights such as freedom of association, collective bargaining, workplace democracy and industrial conflict resolution. The content of human rights standards and the role of the state in the exercise of such rights are considered in interpreting the constitutions. The study locates labour relations within the context of International Labour Organisation standards. The relevance of Conventions no. 87 and no. 98 of the International Labour Organisation on the right to form and belong to unions and to bargain collectively and to strike are examined. There are also other factors, which have to been taken into account. These factors include the different historical development and the different economic and political contexts of both legal systems. In this regard, the study discusses the problems and benefits of each system. The contention is made that there is a profound effect on employment and labour law where fundamental worker rights have been adopted. Continental systems of labour laws as in Germany have experienced a different judical performance as a result of the constitutional entrenchment of worker rights. The new South African constitution is going to have a profound effect on labour law because the constitution is supreme law and enumerates workers rights wich the Constitutional Court has the power to adjudicate on the validity of all such laws. The study concludes that the South African constitution will achive success and improve the working lives of employeers in many aspects.