Browsing by Author "Le Roux, Rochelle"

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    Aspects of South African law as it applies to corruption in the workplace
    (Juta Law, 2004) Le Roux, Rochelle
    The modern workplace is often the closest interface that individuals have with one of modern society's greatest malaise: corruption. Job insecurity and the right to privacy, more particularly cyber privacy, are often perceived as forces undermining the prevention of corruption in the workplace. This article explores the means at the disposal of employers and employees to address corruption in the workplace and endeavours to illustrate that there are aspects of South African law that provide a framework within which corruption can be addressed in the workplace.
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    A comparative analysis of the protection of women's labour rights in the apparel industries of the Southern African Customs Union member states of South Africa and Lesotho, under the African Growth and Opportunity Act.
    (2014) Molapo, TÅ¡oarelo; Le Roux, Rochelle
    The introduction of the African Growth and Opportunity Act agreements between the Government of the United States of America and eligible Sub-Saharan countries has helped to highlight the shortcomings of labour laws in certain African states. These shortcomings are particularly evident in the textiles and clothing industries of these developing African countries. Provisions were created by the act for eligible African countries to export products duty free to American markets. One of the products exported by Africa states are textiles. This research aims to examine the shortcomings and benefits of labour laws of South Africa and Lesotho, two countries who have been granted access for their textile exports into the United States of America. An examination will also be done of the labour laws in China and Taiwan as predominant investors and owners in the apparel industries of South Africa and Lesotho where labour disputes have arisen between the Asian factory owners and local staff. The research indicates that irrespective of geographic location, garment workers’ labour rights are neglected the world over, (especially those of women) and that multinational corporations deliberately seek to subcontract garments from those countries with less labour regulation in order to source products cheaply.
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    Decent work in Malawi: social security; extension of social insurance to all workers
    (2015) Khembo, Loness; Le Roux, Rochelle
    The only way Malawi can ensure adequate social security coverage to her citizens is to extend the scope and coverage of social security benefits provided by the labour legislations to all workers as they are more reliable and less burdensome on the poor state. This is premised on the fact that most Malawians work, but only a few are employees as shall be seen later in this chapter. This will reduce the burden on the state of providing social security to all her citizens as most will be covered by social insurance. It is against this background that this study analyses the Malawian pieces of legislation on social security with the aim of identifying the gaps that are affecting social security coverage to Malawian workers. In doing so, these legislations will be examined against the relevant international conventions specifically the ILO C 102 and the SADC Code. The study will also focus on how best to improve social security benefits coverage in Malawi and making it more relevant to Malawians.
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    The development of a South African legal framework relating to patentable inventions made by employees
    (2016) Tong, Lee-Ann; Le Roux, Rochelle; Visser, Coenraad
    This thesis answers the question of how South Africa ought to regulate ownership of patentable employee-inventions within the prevailing patent system. It is concerned with developing a South African legal regulatory framework for an optimal default allocation of ownership in patentable inventions made by employee-inventors in the private sector. It approaches this concern from the perspective that the law relating to ownership of employee-inventions should align with the purpose of patents as tools for encouraging private sector investment in technological innovation. This perspective is informed by a theoretical framework based on assumptions about, amongst other things, the role of patents as individual incentives, the nature of inventorship, and the likely incentive effect of a grant of a patent on employers' and employee-inventors' contributions to inventive activity. The core of the thesis is an analysis of the South African law relating to the allocation of ownership of patentable inventions between employers and employees to determine whether and how it supports the incentive function of the patent system. This includes a consideration of the ownership of intellectual property which may arise as a consequence of the inventive activity and which attract statutory protection in the form of copyright, industrial design rights, and plant breeders' rights. In the absence of international guidance and a dearth of sources about the South African approach, an examination of the British and American approaches provides insight into divergent legal regulatory responses to the same issue. A key conclusion is that the prevailing South African law does not provide for an efficient legal framework for the allocation of patent rights between employers and employees when reviewed against the purpose of the patent system in the innovation context. Based on this and other conclusions about the factors which ought to inform the regulation of the allocation, recommendations for a new legislative framework which is responsive to the purpose of patents as individual incentives, but which is also cognisant of the dynamics of the employment relationship, are made.
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    Did the Constitutional Court decision in Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others(CCT194/17) [2018] ZACC 22 do away with the TES practice in South Africa?
    (2020) Mcaciso, Zola; Le Roux, Rochelle
    This paper is on the impact of the Labour Relations Amendment Act 6 of 2014(LRAA) on the Temporary Employment Services(TES) in South Africa. The TES practice involves a triangular relationship where the TES places workers/employees with a client to provide labour for the benefit of the client. Over the years, there has been an outcry from organised labour for the ban of the TES practice on the basis that it encouraged the exploitation of workers and undermined job security. Other issues associated with the practice were low wages and inferior conditions of service of the placed workers compared to employees employed by the client doing same or similar work. Initially, the TES practice was regulated in a limited way by the Labour Relations Act of 1956 as well as the Labour Relations Act 66 of 1995 (LRA). The LRA initially only regulated the TES practice in so far as it recognised that the TES is the employer of placed workers and it created provisions for joint and several liability for the client and the TES under certain limited circumstances. Despite these attempts to regulate the practice, organised labour felt it was still not good enough as the same problems continued to persist, as a result they continued to challenge the constitutionality of this practice and called for it to be completely banned. In response, the legislature introduced the Labour Relations Amendment Act No 6 of 2014 (LRAA) in an effort to close the loopholes identified. Section 198A(3)(b)(the deeming provision) introduced by the LRAA stipulates that after a period of three months of placement of workers by a TES with a client, the client is deemed the employer of those workers. It is the interpretation of this deeming provision that has sparked a legal debate in South Africa, resulting in two views on how the deeming provision should be interpreted. The first view is the ‘dual employment' interpretation which suggests that after the three months placement has lapsed, both the TES and the client become employers of the placed workers. The second view is the ‘sole employment' interpretation and it proposes that after the three months has lapsed, the client becomes the sole employer of the placed employees. This legal debate was eventually settled by the Constitutional Court(CC) in 2018 in the Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others(CCT194/17) [2018] ZACC 22(Assign Services). The majority view in the CC ruled that the sole employment interpretation is the correct interpretation to be ascribed to the deeming provision, whilst the minority view favoured the dual employment interpretation. This dissertation will critically analyse the legal jurisprudence involved in this debate as well as the implications of the CC decision on the operations of the TES practice in South Africa.
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    An evaluation of "work-life" legislation in South Africa
    (2012) Miller, Kristina Claire; Le Roux, Rochelle
    Includes abstract. Includes bibliographical references.
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    Inequality of opportunity: the plight of foreign workers in South Africa
    (2016) Biney, Elizabeth; Le Roux, Rochelle
    Migration can be a hazardous venture, particularly if carried out clandestinely. Evidence indicates that foreigners working without formal authorisation, i.e. 'irregular migrant workers', are in a particularly vulnerable position primarily because of their irregular immigration status. They are more likely to be subjected to exploitative and unsafe employment practices in terms of benefits and conditions. This study examines the protection available to this category of migrant workers in South Africa, particularly their right of access to work-related social protection. South Africa is a major migrant-receiving country in Southern Africa because of its relatively stronger economy and political stability. However, the employment of foreign nationals without work permits, or foreigners working contrary to visa requirements, raises a series of policy issues. These issues, against the background of fairness and equity discourses pertaining to socio-economic entitlements, become exacerbated. This study examines the adequacy of domestic, constitutional and legislative frameworks that offer work-related social protection to foreign workers in South Africa. In the context of international, continental, and regional instruments that provide similar protection to irregular migrants, it could be argued that South Africa's restrictive legislative framework compromises equality in the right of access to social protection for some migrants. Although effective migration management depends on careful juxtaposition of myriad policies, emerging evidence suggests conflicting interplay between key South African policies intended to manage the rights of workers specifically and labour migration in the country generally. Critical analysis of relevant national immigration, labour, and social security laws indicates inconsistency with international human rights principles concerning the equality of opportunity or treatment of irregular migrants vis-àvis regular migrants and nationals regarding social protection. Yet, inequalities in the actual processes or opportunities (means) embedded in these policies disentitle many vulnerable foreign workers from important constitutionally entrenched fundamental rights because their presence and/or employment violates existing immigration laws. The study concludes by recommending policy interventions that may help remedy these problems.
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    Labour regulation in the on-demand economy: an ‘uberfication’ of the status quo?
    (2019) Bruce, Caitlin; Le Roux, Rochelle
    Uber has reached rock-star status in the world of 'gigs’, 'rabbits’ and 'rides’ known as the 'on-demand economy’. Uber is but one in a sea of online platforms that seek to link clients with workers offering traditional services like transport, cleaning, repairs or running errands. These platforms act as a mediator between clients and workers and often set minimum quality standards, manage the payment process as well as the supply of work. However, as these platforms gain prevalence in today’s labour market, the question of worker protection comes rushing to the fore. On the one hand, these platforms are praised for having reduced the barriers to income for individuals who might not readily be able to enter the traditional labour market. On the other hand, critics of the on-demand economy argue that companies, like Uber, shift risks to their employees by misclassifying them as independent contractors, thereby weakening labour protections and driving down wages and in favour of their own profit margins. The question of whether Uber drivers are employees or independent contractors has sparked debate in the US. This study seeks to engage in this debate albeit in the South African context. In the absence of a definitive pronouncement from a South African decision maker as to the status of Uber drivers, the core research question posed by this study is whether Uber drivers are employees under South African law. The objective of the study is to determine whether existing labour laws in South Africa offer adequate protection to workers, like Uber drivers, in the on-demand economy. It will be argued that Uber drivers do not neatly fall within the definition of employee in section 213 of the LRA. However, Uber drivers do not neatly fit the category of independent contractor either. The fact that the aspects of the 'uberfied’ work relationship do not seem to speak to the factors enumerated in the South African tests of employment suggests that perhaps these factors are outdated in the context of the on-demand economy. But, this is not a new problem. It will be argued that the problems faced by 'gig’ workers in the on-demand economy should be viewed as an extension of a broader trend towards the casualisation of labour. In this sense, it can be said that the type of work relationship created by companies like Uber, is simply an 'uberfication’ of the status quo. In other words, companies like Uber have done no more than give the non-standard employee a smart phone application with which to earn an income.
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    A microsopic analysis of s 197 in the outsourcing context
    (2013) Sheen, Tamyn Helen; Le Roux, Rochelle
    Outsourcing is a growing modern method of conducting business. The reach of s 197 of the Labour Relations Act in outsourcing has sparked debate and controversy in the legal community. Albeit settled that s 197 may apply to initial outsourcing transactions, a lengthy litigation battle resulted in the recent seminal Constitutional Court judgment of Aviation Union of South Africa and other v South African Airways (Pty) Ltd. The Constitutional Court pronounced on the application of s 197 to second generation outsourcing.
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    Non-standard employment in South Africa: how have we adapted in the past five years post amendments related to non-standard employment?
    (2020) Mitchell, Alma Martha; Le Roux, Rochelle
    Non-Standard employment in South Africa: How have we adapted in the past five years post the amendments related to non-standard employment? Chapter 1 This chapter introduces the research question. Chapter 2 Focus on legislative history pertaining to non-standard employment. Chapter 3 Review four cases prior to the recent amendments with regard to the protection of non-standard employees. 3.1 Assist Bakery 115 CC v Ngwenya N.O. and Others. 3.2 Enforce Security Group v Mwelase and Others. 3.3 Piet Wes Civils CC and Another v Association of Mineworkers and Construction (AMCU) and Others. 3.4 Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others. Chapter 4 Conclusion in response to the research question.
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    The regulation of work : whither the contract of employment? : an analysis of the suitability of the contract of employment to regulate the different forms of labour market participation by individual workers
    (2008) Le Roux, Rochelle; Rycroft, Alan; Evance, Kalula Alan; Deakin, Simon
    The focal research question of this thesis is the relevance of the contract of employment in modern employment. In answering this question three broad areas associated with the contract are explored: (1) the evolution of the contract of employment in South Africa and the dichotomy between the contract of employment and the independent contract; (2) the forms of engagement of workers in the South African labour market; and (3) alternative regulatory models with specific reference to models that are consistent with the South African Constitution. Using a comparative approach it is shown that the contract of employment in South Africa is in a relative state of unification. However, some assumptions about its historical evolution and the influence of Roman and Roman-Dutch law are overstated, and more recent developments, such as tax legislation, arguably had a greater influence on the dichotomising of labour law. The study of the South African world of work illustrates that modern work is performed in diverse ways. After illustrating that labour law has both countervailing and social developmental roles, it is concluded that the contract of employment as traditionally understood is no longer capable of performing these roles. It is further claimed that a process of diversification (as opposed to the unification of the contract of employment) will help to redefine the contract of employment and this may extend the coverage of labour legislation to those who, bearing in mind the purpose of labour law, ought to be protected by labour laws. Finally, it is argued that the South African Constitution provides a ready paradigm within which to achieve such a process of diversification which would ultimately lead to an extension of the coverage of labour laws.
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    Restraints of trade agreements revisted: the law and recent developments
    (2021) Singo, Bertha Hloniphile; Le Roux, Rochelle
    The English law traditional approach which deems restraint of trade agreements to be prima facie unenforceable was rejected under the South African legal system, as it was not consistent with the leading contractual law principles, from this the principle that restraint agreements are prima facie enforceable until the party seeking to escape the agreement shows that the agreement is unreasonable and contrary to public policy was founded. The application of the principle founded other restraint of trade principles which guide courts when making inquiries on the enforceability of a restraint of trade agreement. To determine whether uniformity existed in the application of the guiding principles of the restraint of trade doctrine in the employment law context, I examined and analysed case law from the year 2015 to 2020 using case law and academic writings. There has been in most of the cases, a uniform approach in the application of principles under the restraint of trade doctrine. Courts guided by constitutional values continue to endorse making value judgments. An important contribution has been regarding the operation of a garden leave clause together with a restraint clause in an employment contract, from which it was observed that where both clauses are included in an employment contract the operation garden leave clause will affect the operation of the restraint clause against an employee. The results from the research demonstrate that there has been in most of the cases, a uniform approach in the application of principles under the restraint of trade doctrine. The dictates of public policy governed by constitutional values which guide the balancing of the interests of the parties remain central to the determination of the enforceability of the restraint of trade agreement.
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    Safeguarding the illegal rethinking the interface between labour and immigration laws
    (2012) Biney, Elizabeth; Le Roux, Rochelle
    The rendering of work by foreigners without the authorization to work is a contentious issue in South Africa. South Africa possesses one of the most progressive Constitutions, yet many are left at the fringes of the economy with little protection. Despite constitutional entrenchment of fundamental labour rights, many well-deserving workers are disentitled from important labour protections because their employment contract violates immigration laws. Unauthorized workers are formally excluded from access to certain legal institutions and economic benefits as most of the protective labour laws are centred on an existing employer-employee relationship.
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    Standards of care, skill, diligence, and the business judgment rule in view of South Africa's Companies Act 71 of 2008: future implications for corporate governance
    (2016) Mupangavanhu, Brighton Murisa; Ncube, Caroline; Le Roux, Rochelle
    Decision-making is the most critical role that company directors have to play in the life of a company that they are appointed to manage. South African law (in s66 of the Companies Act 71 of 2008, the Act) has now followed the global trend of recognising that directors have original authority/mandate to manage or direct company affairs or business. A director is accorded (by law) powers to exercise to enable him or her to fulfil the functions of that office. Decision-making, which is not an easy task, is critical to enterprise efficiency and advancement of the national economy. Directors have to make business decisions, at times under imperfect circumstances and while confronting tensions inherent in the corporate form. Not least of these tensions is the pressure to balance the profit maximisation drive from shareholders and accountability for how the directors exercise the powers at their disposal. Despite pressures involved in decision-making, the law requires that directors should exercise their powers in the best interests of the corporation. Thus the Act has attempted to put mechanisms in place to ensure that directors' freedom to manage corporations has to be necessarily constrained and balanced by the need for them to be accountable. The thesis focuses on the duty of care, skill and diligence on one hand (standard of conduct), and the business judgment rule (BJR- standard of review) on the other. These are two mechanisms put in place by the Act to ensure a balance between directors' freedom to manage and accountability. The thesis seeks to answer the key question whether the Act has made standards of care, skill and diligence clearer, more accessible and enforceable than before in light of the Act's adoption of BJR. The thesis analyses the duty of care, skill under s76(3)(c) and BJR under s76(4) in light of the context of law reform (that is the purposes of law reform) and international experiences. In this thesis, an appraisal of the positives brought about by the codification of the duty of care and the adoption of BJR into statute for the first time in SA is given. It is argued that while some purposes of law reform have been achieved, the Act has not achieved the purpose of clarity of standards. For example, the analysis reveals unfortunate omissions and worrying ambiguities in the formulation of standards of care, skill and diligence in s76(3)(c). While giving in-depth analysis of the scope and policy rationale of BJR under the Act, the thesis further notes that the characterisation of BJR in s76(4)(a) as a standard of conduct as opposed to standard of review is problematic. It has also been argued that the BJR is not properly aligned to international standards. Clear amendments to the Act have been suggested to improve clarity of standards and the law in s76(3)(c) and s76(4)(a).
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    The world anti-doping code: A South African perspective
    (2004) Le Roux, Rochelle
    During February 2003 the World Anti-Doping Agency adopted the World-Anti Doping Code in Copenhagen in an effort to create and independent anti-doping body and to co-ordinate the harmonisation of doping regulations. The Code encompasses the principles around which the anti-doping effort in sport will revolve in future and has since been adopted by the International Olympic Committee. Many countries, including South Africa, are signatories to the Copenhagen Declaration that was adopted at the same time in an effort to involve governments in the fight against doping in sport. This commentary deals with the effect and possible legal implications of this Code in the South African context and endeavours to show that unless the purpose of doping control is more clearly defined, the Code will not be effective in a human rights culture.
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    Transfer of undertakings - the protection of employment in South Africa from adopting European law to present problems of Section 197 of the Labour Relations Act
    (2012) Weber, Eckhardt; Le Roux, Rochelle
    Includes abstract. Includes bibliographical references.
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