OpenUCT :: Browsing by Author "Rycroft, Alan"

Browsing by Author "Rycroft, Alan"

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Open Access
A critical analysis of section 6(4) of the Employment Equity ACT: is it likely to achieve its stated objectives?
(2019) Maharaj, Pranisha; Rycroft, Alan
This dissertation presents a critical analysis of section 6(4) of the Employment Equity Act 55 of 1998 (“EEA”) and seeks to address the question of whether it is likely to achieve its stated objective of giving effect to the constitutional right to equality. In conducting my analysis, I consider the concept of managerial prerogative and discuss what underlies the drive for substantive equality in order to determine why the issue of protection from discriminatory income disparities has been removed from the realm of an employer’s traditional prerogative. Next, I highlight the requirements for establishing a claim of discrimination in terms section 6(4) and the remedies available to a successful complainant. I then turn to highlight the limitations introduced by the statutorily prescribed comparator in section 6(4) before demonstrating that the regulated methodology for assessing the value of work and the factors for justifying a differentiation in terms and conditions of employment give significant deference to employer prerogative. My analysis proceeds to consider whether, following the introduction of section 6(4), an administrative body whose primary function is the conduct of formal investigation into discriminatory pay practices and the resolution of equal pay disputes ought to have been created. I ultimately conclude that section 6(4) of the EEA provides only a partial solution to the issue of discriminatory pay disparities in South Africa and is likely to have a limited effect in contributing to the achievement of the State’s objective of achieving substantive equality. In analysing section 6(4), I draw on the experience of the United Kingdom, the United States of America and Canada. While the socio-economic and political landscapes of these jurisdictions may not be apposite to the South African experience, these jurisdictions have a long legislative history in pay equality issues which assist in establishing a benchmark for South Africa.
Open Access
A critical assessment of the conciliation hearing in Germany and South Africa from a comparative point of view
(2022) Ilies, Ines; Rycroft, Alan
This work gives an overview of the resolution of individual labour disputes through conciliation in Germany and South Africa. In a rapidly evolving labour environment, parties have an increased interest in obtaining legal clarity on the outcome of a dispute. Neither employers nor employees can afford delays. Access to justice is essential. An amicable settlement serves this aim and is likely to bring the dispute to a swift end in a speedy and inexpensive proceeding. Thus Germany and South Africa both developed a mechanism of mandatory conciliation as the starting point of every individual rights dispute, which aims to grant easy and fast access to justice at a low cost. In South Africa the Commission for Conciliation, Mediation and Arbitration (CCMA) has been established to resolve individual labour disputes through conciliation. In Germany a preliminary conciliation hearing takes place before the chairperson in the Labour Court of first instance. This work aims to critically assess the conciliation procedure in both countries, illustrate similarities and differences and suggest improvements. The question that arises is: what are the significant elements in the conciliation procedure of both countries and how do these elements impact the process and success rate? This research attempts to answer this question.
Open Access
Access to work for disabled persons in South Africa : the intersections of social understandings of disability, substantive equality and access to social security
(2015) Du Plessis, Meryl Candice; Rycroft, Alan
This thesis examines possible synergies and points of friction between understandings of disability that emphasise its social contingency and jurisprudential debates on substantive equality and access to social security in the context of the promotion of access to work for disabled persons in South Africa. In consequence of an analysis of theoretical debates in the field of disability studies and how these find application in the sphere of employment equity law, it is concluded that, while social understandings of disability mostly focus on structural changes that would see people with disabilities who can and want to work gain access to such work, the positive obligations imposed on employers and the state in terms of equality rights and employment equity legislation are of limited depth and breadth. It is proposed that one potential course of action to address the limited scope of equality law would be to emphasise the state's obligations in terms of socio-economic rights where these rights are relevant to work inequality. Particular emphasis is placed on how the interpretation and application of the right to access to social security could be used to activate government's duties in respect of unemployment protection and work creation. The conclusion reached is that while this strategy poses risks and has its limitations, it can be used to improve information gathering in respect of disabled work seekers that will aid planning and enforcement; to facilitate support for disabled work seekers who experience discrimination; to compel government to improve the implementation and enforcement of employment equity laws in respect of disabled work applicants; to catalyse a holistic approach to social security that considers the interrelationship between social assistance and promoting unemployment protection for disabled persons who are willing and able to work; and to provide different forms of support to disabled people who do not operate in the formal labour market, but who can and do perform work that falls outside the scope of traditional labour market regulation.
Open Access
The basis and boundaries of employee fiduciary duties in South African common law
(2015) Idensohn, Kathleen; Rycroft, Alan
The nature and potential application of the common-law fiduciary doctrine, and of the distinctive nature of the duties to which it gives rise, is seldom appreciated or analysed in South African law. This is particularly evident in the law of employment, where the courtsâ€™ references to the â€˜fiduciaryâ€™ nature of employment and the â€˜fiduciary dutiesâ€™ of employees have often been ambiguous, confused and unprincipled. In addition, there is almost no reference to employee fiduciary duties in the general literature on South African labour and employment law and, even where these duties are (briefly) mentioned, they are not acknowledged as being in any way separate or distinct from the employeeâ€™s other duties to the employer. This contrasts noticeably with other Commonwealth jurisdictions, where fiduciary duties form the basis of increasing numbers of cases, and are well-established and extensively debated aspects of the general jurisprudence, both generally and in relation to employees. This thesis critically explores and advances certain propositions about the general theoretical nature of the South African common- law fiduciary concept and the principles that govern the incidence, nature, purpose, scope and operation of fiduciary duties, with comparative reference to the positions in English and Canadian law. The first six chapters provide a critical analysis of those general propositions and principles. They also locate them and the debates that surround them within their broader legal and theoretical context. Chapter 7 considers their application to relationships of employment in order to determine the basis and boundaries of the fiduciary duties of employees (as â€˜ordinaryâ€™ employee and in certain other established â€˜fiduciaryâ€™ capacities commonly associated with employment) in terms of South African common law. In particular, the chapter considers when those duties will arise, their scope of application, what they require of the employee, and how they differ from other employee duties. Chapter 8 considers the broader issues of whether all relationships of employment are inherently and necessarily â€˜fiduciaryâ€™ ones and whether they ought generally to be classified as a class of â€˜fiduciary relationshipâ€™. The final chapter critiques the current position in South African law on these matters. It also suggests a set of fiduciary principles and propositions for the future application and development of fiduciary duties, both generally and in relation to employment, that are theoretically sound, clear, coherent and, where appropriate, consistent with contemporary jurisprudence in other comparable jurisdictions.
Open Access
Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis
(2017) Kritzinger, Julian; Rycroft, Alan; Ncube, Caroline
Online Arbitration is an online alternative dispute resolution (OADR) process that resolves disputes without litigation outside national courts. Due to globalisation and increased e-commerce, international commercial online arbitration has become more important and it is therefore essential to look at the legal and technical requirements for a more effective international online arbitration regime or lex electronica arbitralis, specifically focused on disputes that arise from cross-border, low value e-commerce transactions for both goods and services, and especially between online businesses and consumers (B2C), but also between online businesses (B2B). The lex electronica arbitralis should lead to swift outcomes that will be able to be enforced efficiently anywhere in the world, without impairing the requirements of accountability, due process, efficiency, impartiality, independence, fairness, transparency, etc. The 'UNCITRAL Technical Notes on ODR of 2016' follows a non-binding guideline format, so there is currently no legal outline that exclusively regulates online arbitration. Due to this lacuna, the guidelines of the 'Technical Notes' and rules of traditional international commercial arbitration will have to be used as far as they accommodate online arbitration. Due to its unique features, online arbitration however needs an exclusive set of rules that will deal with its legal and technical requirements. The most comprehensive manner to have realised an online arbitration regime or lex electronica arbitralis would have been by the proposed 'UNCITRAL Draft Procedural Rules (DPR) on OADR for Cross-Border E-Commerce Transactions'. Unfortunately, since Working Group III (WG.III), who was mandated by UNCITRAL to compile the 'DPR', could not manage to reach consensus on many aspects, the 'Technical Notes' was adopted instead. The thesis will review WG.III's progress to complete the 'DPR' and how it eventually led to the adoption of the 'Technical Notes'. The 'Technical Notes' still leaves many questions and uncertainties on many of online arbitration's legal and technical requirements that will be pointed out. The thesis will indicate that these legal and technical requirements do not compose insurmountable challenges, but that UNCITRAL will have to address them when they decide to revise the 'Technical Notes' in the future or when they decide to compile a set of legal standards exclusively for online arbitration in the future. The focus will also be directed to the future of international arbitration legislation in a developing country such as SA, while a plea is made to SA lawmakers to make provision for online arbitration.
Open Access
The convergence of labour and commercial law: executive dismissals in contemporary South Africa
(2014) Pottas, Ruan; Rycroft, Alan
The intricacies and legalities concerning the notion that under certain circumstances a director may be regarded as an employee have given rise to much litigation in the past two decades. It is humbly submitted that few scenarios have created as much confusion and grief as the aforementioned idea in our South African jurisprudence. For the past two decades lawyers have jousted in the CCMA, Labour Court and Labour Appeals Court on the question of whether or not a company director is an employee and subject to the protection from unfair dismissal contained in the LRA. This dissertation approaches the controversial topic by examining the history and origin of the concept of the office of director. The legislative framework concerning company and labour law is examined along with the judicial decisions which have shaped this particular aspect of the law. A brief overview of comparative labour law is discussed in an attempt to gain a multinational view of the matter. Throughout this dissertation it is of cardinal importance to view the text through both the lenses of Company- and Employment Law. Failing to do so will have the inevitable result that one does not properly reflect and weigh in on the theoretical implications associated with the development of both these branches of law.
Open Access
A critical evaluation of judicial mediation in Malawi
(2013) Kapanda, Frank Edgar; Rycroft, Alan; Debbie, Collier
This dissertation considers the place of mediation within the constitutional framework of Malawi, with particular reference to the High Court (Commercial Division) (Mandatory Mediation) Rules, 2007 (the Commercial Division mediation rules). These rules prescribe the process of mediation that is presided over by the Judges of the Commercial Division. Of particular interest is the question whether the High Court mandatory mediation rules are in keeping with the spirit and purpose of mediation. Further, the research critically examines the current practice of mediation in the Commercial Division. On 18 May 1994 Malawi adopted a Constitution which is founded on various underlying principles and policies. These include a commitment to actively promote the welfare and development of the people of Malawi by adopting and implementing policies and legislation aimed at achieving the peaceful settlement of disputes. In order to achieve this goal an attempt has been made to adopt mechanisms by which differences can be settled through negotiation, good offices, mediation, conciliation and arbitration. In particular, Malawi through its judicial arm of government has adopted mediation as part of the process of settling disputes.3 Further, in 2007, the Malawi judiciary established the Commercial Division to deal with commercial matters. The jurisdiction of the Commercial Division is provided under Rule 5 of the High Court (Commercial Division) Rules (the Commercial Division rules).4 And, through subsidiary legislation the Malawi Judiciary has what are called the Commercial Division mediation rules. Accordingly, it is expected that, except where the rules allow it, every matter that comes before the Commercial Division must first go through a process of mediation. Such a process has to be overseen by Judges who sit in the Commercial Division
Open Access
A critique of the concept of disadvantage in relation to the identification of affirmative action beneficiaries race as proxy for disadvantage
(2013) Charles, Stephen; Rycroft, Alan
Open Access
Developing countries participation in the WTO Dispute Settlement System: how to facilitate?
(2017) Donmez, Alara; Rycroft, Alan
This dissertation examines the developing countries participation and usage of the World Trade Organization's dispute settlement system. Although the World Trade Organization provides equal rights and obligation to enter into the dispute settlement process for all member countries, the litigation process is complex and costly for developing countries. There are various limitations for developing country participation when they want to use the dispute settlement mechanism and this dissertation mainly discusses the lack of legal and financial means of developing countries. In this regard, this dissertation examines possible solution which could increase developing country participation in the dispute settlement mechanism. These alternative resolutions may address the problem of the participation of developing countries in the dispute settlement system and it also try to develop a more effective working dispute settlement mechanism for developing countries. Therefore, World Trade Organization system could propose significant reforms in the Dispute Settlement Body which encourage developing country participation.
Open Access
Development of ADR mechanisms in Kenya and the role of ADR in labour relations and dispute resolution
(2015) Nyakundi, Freda Moraa; Rycroft, Alan
Alternative Dispute Resolution (ADR) is a vastly growing enterprise in conflict management the world over. Its application in managing labour relations and the attendant disputes has been tested and is well settled. Kenya, in recognition of this phenomenon, has adopted a legal framework making provisions for both ADR and Labour rights in its most supreme law, the Constitution of Kenya, 2010. This informs the theme of the current study. The disciplines that are ADR and labour relations are overwhelmingly extensive. Thus they cannot find conclusive commentary in a single book leave alone a thesis with a predicated word count. This paper is neither a one stop-shop treatise nor an integral text on either disciplines but a comprehensive commentary, on the interplay between ADR and labour relations. Fair treatment has been accorded and care has been borne to neither starve one nor belabor the other. It is a commentary spanning eons, reaching out to the past, tracking development and addressing the prevailing circumstances in respect of ADR's application in labour dispute resolution in Kenya. The rich literature review (books, statutes, conventions, journals, articles) quoted is as informative as it is illuminating, and presents a wealth of knowledge. The overall aim is to assess the place of ADR in labour relations in Kenya and spur academic, intellectual and sector-wise debate on the foregoing.
Open Access
The development of concept of arbitrability - an international comparison
(2017) Mrotzek, Carla; Rycroft, Alan
The title of this dissertation is "The development of concept of arbitrability - an international comparison". In this dissertation I will compare the approach towards arbitrability in Germany, the United States of America and South Africa and how it developed until today. I will further give a brief overview of arbitrability in Europe and Africa. I will start by giving a brief introduction of arbitration and the definitions of objective and subjective arbitrability. In this dissertation I will only compare the development of objective arbitration. For every country I will first discuss the respective provision in the arbitration act and then discuss certain subject matters, which need further considerations. Arbitrability of some subject matters developed in a particular way either in legislation or jurisprudence, which need further explanation and some are handled in a separate statute. The term objective arbitrability describes the capacity of a subject matter to be resolves in arbitration. In former times arbitration was not seen as an appropriate alternative to jurisdiction and often prohibited. This changed over the past decades, which I will outline. In most countries in Europe and in the United States are close to no boundaries of arbitration anymore. African countries still have more restrictions, but also take a more liberal stand. Particular attention is amongst others brought to the following subject matters: intellectual property, antitrust, insolvency, family matters, labour law and consumer protection. In the United States and in South Africa subject matters which concerned public policy or involved public interests, such as antitrust, were restricted from arbitration for longer. This changed when legislators and jurisdiction gained trust in arbitral tribunals and statues and sets of rules for the conduction of arbitration were established. I will conclude that the general development to a greater scope of arbitrability is a welcomed progression. In the conclusion I will discuss the arbitrability of disputes involving public authority, family disputes and consumer and employers. In these areas arbitrability still needs further development.
Open Access
The doctrine of confidentiality in arbitral proceedings and its implementation to the Tanzanian arbitration system
(2014) Borhara, Paren Chandrakant; Rycroft, Alan
Confidentiality has been regarded as an essential attribute of arbitration over litigation due to its “private and confidential” nature in arbitral proceedings. Such attribute of arbitration has been subject to debates over recent years from different scholars in the world of arbitration. Two common law jurisdictions have been the result of such debates. The United Kingdom (England) who has for decades assumed the existence of an implied obligation of confidentiality in its arbitration proceedings while Australia has rejected such an implied obligation and have held that confidentiality is not an essential attribute of arbitration. In Tanzania, the current arbitration laws are silent with respect to confidentiality provisions and there seems to be no literature or any article written on the subject matter. This dissertation therefore aims to introduce the doctrine of confidentiality in Tanzania by examining the two common law approaches case-to-case basis and to show how a developing nation like Tanzania could implement one or combination of the different approaches into its arbitration system. Chapter 1 introduces the doctrine of confidentiality in arbitral proceedings by examining how different scholars have interpreted the concept and by distinguishing the doctrine from privacy. This chapter also covers the nature of confidentiality in arbitral proceedings and the main actors involved in preserving the confidentiality obligation in the arbitral process. Chapter 2 provides for an overview of the arbitration system in Tanzania as well covering the position of the doctrine in its arbitration proceedings. Chapter 3 gives a comprehensive overview of the doctrine of confidentiality in both England and Australia and its implementation to the Tanzanian arbitration system. Chapter 4 concludes and provides for recommendations with further research to be carried out on the doctrine of confidentiality in Tanzania in case of a future arbitration dispute arises on the subject matter.
Open Access
The employment recruitment and promotion process: legal regulation and practice
(2015) Adonis, Tanya; Rycroft, Alan
Recruitment is an integral part of any organization. It forms the foundation upon which every other practice is built. It is a process which is often regarded lightly and not given the due consideration it deserves. It is therefore pertinent to have a recruitment process in place which ensures legal compliance, as well as the longevity of the business. The concept of legal compliance in the employment recruitment and promotion process has proved at best inconspicuous. The process has allowed for much legal debate, which spans from the CCMA all the way through to the Constitutional Court. The process has also allowed for much jurisprudence to be developed regarding the implementation and application of the statutes governing it. This dissertation will focus on the limitations placed on management prerogative by labour law the procedural and substantive fairness requirements. It will do so by exploring case law, risk management measures and what is required to ensure a contract of employment is legal and binding on both parties. It is important to read this dissertation in the light of how labour law overlaps with and impacts on management prerogative. This view is necessary to understand how the push - pull dynamic between these two factors in recruitment and promotion have molded the process to encompass issues that substantively outweigh their procedural counterparts and vice versa. It is necessary in this dissertation to expound on the fundamental law governing the recruitment and promotion process and will explore concepts of management prerogative, amongst others. The objective of this dissertation is to investigate the ambiguities imposed by procedural and substantive fairness and will venture into risk management measures and contractual obligation s as a failsafe for employers to demystify the process.
Open Access
The enforcement and setting aside of mediation settlement agreements : a comparison between German and international commercial mediation
(2015) Wilking, Felix; Rycroft, Alan
The number of disputes solved through mediation has increased steadily over the last centuries. A mediation settlement agreement is supposed to end a dispute. But from time to time it can be the beginning of a new dispute. Parties to the mediation settlement agreement might want to get rid of it meanwhile the other party seeks for enforcement of the agreement. This minor dissertation examines the possibilities of the parties as to the questions of enforcing and setting aside of mediation settlement agreements in Germany and in international mediation. It furthermore deals with the attempts of international unification through the EU Directive 2008/52/EC and the proposed UNCITRAL Convention on International Commercial Mediation and Conciliation.
Open Access
From Sidumo to Dunsmuir the test for review of CCMA arbitration awards
(2013) Fergus, Emma; Rycroft, Alan
This thesis seeks to identify the test for judicial review of arbitration awards issued by the Commission for Conciliation, Mediation and Arbitration ('CCMA'). Currently, that test is set out in section 145 of the Labour Relations Act 66 of 1995 ('LRA'), read with the Constitutional Court's decision in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). In terms of Sidumo, section 145 of the LRA has been suffused by the standard of reasonableness, consistently with the right to just administrative action found in section 33 of the Constitution of the Republic of South Africa, 1996 ('the Constitution'). In search of a clear formulation of the test, an extensive examination of South African case law on the subject is undertaken. Thereafter, relevant principles of judicial review in South Africa in the administrative sphere generally are considered. Finally, an assessment of Canadian case law and commentary in this field is conducted. The conclusion to this thesis proposes a revised test for review of CCMA awards. The principal research findings begin by recognising the significance of efficiency, accessibility, flexibility and informality to ensuring fair and efficacious labour dispute resolution. The implication of this is that the test for review of CCMA awards should not be too exacting. Still, section 33 of the Constitution cannot be ignored and a broader ambit of review may therefore be necessary in certain instances. In fact, to maintain legal certainty, intrusive review may sometimes be crucial. These factors must be balanced when formulating a reliable and practical approach to review of CCMA awards. A key finding of this thesis is that – ostensibly due to the complexity of doing so – the Labour Courts have struggled to apply the current test for review consistently, fairly or predictably.
Open Access
General Average and the York-Antwerp Rules: The historical quest for international conformity, the divisive effect of more recent amendments to the Rules and recommendations with regard to the way forward to regain more widespread acceptance of the Rules in today's global maritime industry
Ukattah, Chukwuechefu Okwudiri; Rycroft, Alan; Bradfield, Graham
General average emerged as an independent mechanism in ancient times for the redistribution of losses incurred for the safety of the common maritime adventure from peril. Its robustness and efficiency as a risk and loss distribution device led to its recognition and incorporation in a plethora of medieval codes and the laws of many maritime states. As the concept evolved in different maritime states there emerged a divergence in the principles and practice of general average. The undesirability of a divergence in such a concept of international import led to the adoption of the York-Antwerp Rules by the maritime community as a tool for achieving uniformity. The York-Antwerp Rules have been amended periodically over the course of more than a century with the object of achieving greater uniformity in the law of general average and to keep abreast of developments in international trade and the maritime industry. The most recent revision of the York-Antwerp Rules adopted in 2004 (York-Antwerp Rules 2004), is the first revision adopted without a consensus amongst the majority of interested parties. Nine years after their adoption, the York-Antwerp Rules 2004 have failed to gain widespread acceptance and use in the maritime industry. An attempt by the Comité Maritime International to resolve the impasse on the use of the Rules at its 2012 Beijing Conference was unsuccessful and it was resolved instead to work towards the adoption of a new set of Rules at its next Conference in 2016. To ensure that the revision of the York-Antwerp Rules presented for acceptance at the 2016 Conference does not suffer the fate of the York-Antwerp Rules 2004 it is important that the mistakes made with regard to the York-Antwerp Rules 2004 are not repeated. Consequently, this thesis analyses the substantive revisions made in the York-Antwerp Rules 2004 to ascertain why other interested parties, particularly shipowning interests, are opposed to the York-Antwerp Rules 2004. This will assist in the recommendations to be made with regard to the substantive changes to the York-Antwerp Rules 2004 that could ensure the widespread acceptance of the Rules to be adopted in 2016. Furthermore, the factors that led to the periodic revision of the Rules are examined and the ingredients of the previous successful revision processes are identified as a comparative base to ascertain the flaws, if any, in the process that led to the adoption of the York-Antwerp Rules 2004; which culminated in the lack of widespread acceptance of the Rules in the maritime industry. This thesis contends, among other things, that the York-Antwerp Rules 2004 failed to gain widespread acceptance in the maritime industry because the substantive changes introduced by the Rules did not ensure a measure of equitable balance of the interests of all interested parties. Furthermore, the ingredients of the previous successful revision processes were disregarded in the process of adopting the 2004 Rules. This thesis makes recommendations on the content of the York-Antwerp Rules to be adopted in 2016 and the process of adopting the new Rules in an attempt to enhance their widespread acceptance and use in the maritime industry.
Open Access
Justifications for piercing the corporate veil
(2011) Kakubo, Mwanchela M; Rycroft, Alan
According to the decision in Salomon a company is recognised as a legal entity separate and distinct from its shareholders. Although this fundamental rule has had a considerable influence in company law worldwide, it cannot be absolute and, as such, must allow for exceptions where the courts may disregard the separate legal personality of the company. The general rule is that a court will pierce the corporate veil “only where special circumstances exist indicating that it is a mere façade concealing the true facts, so that the separate existence of the company is in some sense being abused or, at least, is not being maintained in the full sense, with the result that separates between the company and its members does not in fact exist. However the courts uniformly exercise significant discretion, and fail to offer a clear standard for veil piercing.”4 Besides company law, this research paper also considers other areas of law where this principle has been applied. These include labour law, criminal (corporate liability) and maritime law.
Open Access
A perspective of the role of Tanzanian national courts in commercial arbitration
(2014) Mlimuka, Shirley Aggrey; Rycroft, Alan
Open Access
Polygraph testing in the South African workplace : the law and practice
(2015) Marks, Andhor Grey; Rycroft, Alan
The South African labour market is, after the enactment of the Constitution of the Republic of South Africa and Bill of Rights, faced with the enormous challenge of limitations placed in the workplace to the constitutional guarantees. The limitations referred to are specific to the extent to which some institutions restrict the employee's rights to dignity, privacy and just administrative action. The perception of just administration questions evidence obtained by the use of lie detector (polygraph) tests comes under scrutiny as far as the admissibility and weight of such evidence is concerned. This research paper will recommend and conclude the following: 1. Constitutional guarantees are sacrosanct as enshrined in Sections 8(2),10,12,14,23,25. 39 2. In the absence of SA legislation the common law has developed to the level where the jurisprudence have accepted polygraph testing as admissible when certain conditions are met inter alia: Polygrapher must be registered and qualified; the consent of the employee must be given before test are conducted; the test are used to corroborate evidence such as for example circumstantial evidence. 3. The South African Qualification Authority development of unit standards is an indication of the acceptance of Polygraph testing in the South African Labour Law sphere. 4. The private sectors in South Africa are utilizing these tests in the absence of policies and procedures in the workplace, hence the need for directives, policies and procedures to guide against the abuse or misuse. 5. That polygraph testing have developed to a level of sufficient acceptance in the workplace.
Open Access
Private Ordering and Dispute Resolution
(2018-05-01) Hutchison, Andrew; Rycroft, Alan; Porter-Wright, Michelle
Here we discuss the current state of ADR law, practice, and education in South Africa, with a particular focus on the potential role for mediation in commercial disputes. Our angle is to frame the material with a discussion of economic and contract theory, particularly that on private ordering and relational contracting. We link this socio-legal theory to more specific theory on ADR itself, and then go on to contextualise ADR in South Africa. We discuss the role of ADR in commercial practice generally, as well as providing a detailed account of the South African construction industry specifically. Our major conclusion is that ADR is often the most appropriate form of dispute resolution, particularly where social capital is at stake. This provides the link between ADR theory and private ordering/relational theory. Another important conclusion is that South Africa needs more specialist mediators, as well as a legal and political environment which incentivises such training.