scholarly journals DISPUTE RESOLUTION IN THE SOUTH AFRICAN SOCIAL SECURITY SYSTEM: THE NEED FOR MORE APPROPRIATE APPROACHES

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
MAT Nyenti
Keyword(s):  
South Africa ◽  
Social Security ◽  
Dispute Resolution ◽  
South African ◽  
Access To Justice ◽  
Successful Implementation ◽  
Legal Assistance ◽  
The Right ◽  
Resolution Processes ◽  
Social Security Beneficiaries

The right to social security in South Africa is adjudicated and enforced mainly by means of litigation. This article examines litigation as a mechanism for the resolution of social security disputes in South Africa and its impact on both the right to have access to court and to social security. It argues that court-based adjudication may not be the most appropriate means of adjudicating social security claims. This is particularly as South Africa is a country where social security beneficiaries have limited knowledge of the laws and procedures, coupled with a lack of publicly-provided legal assistance/representation for social security cases. Dispute resolution mainly through the courts may contribute to the limitation of their right to seek redress and by implication, their right to have access to social security. Finally, the article proposes the investigation of more appropriate dispute-resolution processes. This is due to the failure of court-based adjudication to ensure access to justice (and to social security); constitutional requirements arising from the protection of the rights of access to justice and to social security; the Constitution’s focus on protecting persons who are particularly vulnerable and desperate; the availability of other (more appropriate) dispute-resolution mechanisms; and the relatively successful implementation of these mechanisms in the resolution of social security disputes in comparative jurisdictions. 

scholarly journals Developing an Efficient and Effective Social Security Adjudication Framework in South Africa

2015 ◽  
Vol 1 (1) ◽  
pp. 59-89
Author(s):  
Mathias Nyenti
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Social Security System ◽  
Security System ◽  
Policy Framework ◽  
Access To Justice ◽  
Recent Reform ◽  
Guidelines And Standards ◽  
The Right

South Africa is currently developing an overarching policy framework for effi-cient and effective resolution of social security disputes as part of reforms towards the establishment of a comprehensive social security system. In the development of the policy, international and regional guidelines and standards on access to justice were instrumental as they are benchmarks on the scope and content of the right of access to courts for social security claimants and the State’s obligations in this regard. This article outlines some international guidelines and standards relevant to the realisation of access to justice for social security claimants; and their role in recent reform initiatives that have been undertaken to promote access to justice in the South African social security system.

Alternative Dispute Resolution and Individual Workplace Rights: The Evolving Role of Fair Work Australia

2011 ◽  
Vol 53 (5) ◽  
pp. 718-732 ◽  
Author(s):  
Therese MacDermott ◽  
Joellen Riley
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Access To Justice ◽  
Traditional Role ◽  
Adverse Action ◽  
Recognition And Enforcement ◽  
Workplace Rights ◽  
The Right ◽  
Resolution Processes

This article examines the dispute resolution practices of Fair Work Australia that are evolving to deal with individual workplace rights, as its traditional role shifts away from conciliating and arbitrating collective industrial disputes. The workplace rights enshrined in the ‘general protections’ provisions in Part 3-1 of the Fair Work Act 2009 protect employees and prospective employees from any ‘adverse action’ taken against them because they are exercising a workplace right, or because they fall within one of the protected categories, such as the right to be free from discrimination. A broad range of alternative dispute resolution processes is now available to Fair Work Australia in dealing with such disputes. Alternative dispute resolution processes are seen as a way of avoiding costly and time-consuming litigation, and in some circumstances can improve access to justice for individuals. This article explores whether Fair Work Australia is likely to adopt different dispute resolution approaches from its traditional conciliation practices when managing ‘general protections’ applications, and whether the framework for dealing with these disputes will facilitate fair recognition and enforcement of workplace rights.

scholarly journals A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria

2021 ◽  
Vol 46 (2) ◽  
pp. 25-54
Author(s):  
EC Muller ◽  
◽  
CL Nel
Keyword(s):  
South Africa ◽  
Dispute Resolution ◽  
South African ◽  
Justice System ◽  
Access To Justice ◽  
Civil Justice ◽  
Department Of Justice ◽  
Constitutional Development ◽  
Optimal Functioning ◽  
Civil Justice System

As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.

scholarly journals REFORMING THE SOUTH AFRICAN SOCIAL SECURITY ADJUDICATION SYSTEM: INNOVATIVE EXPERIENCES FROM SOUTH AFRICAN NON-SOCIAL SECURITY JURISDICTIONS

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Mathias Ashu Tako Nyenti
Keyword(s):  
Social Security ◽  
Dispute Resolution ◽  
South African ◽  
Access To Justice ◽  
Constitutional Rights ◽  
The South ◽  
Labour Relations ◽  
Resolution System ◽  
Dispute Resolution System ◽  
Limited Scope

There is currently no uniform social security dispute resolution system in South Africa due to the piecemeal fashion in which schemes were established or protection against individual risks regulated. The result is that each statute provides for its own dispute resolution institution(s) and processes. There are also various gaps and challenges in the current social security dispute resolution systems, some of these relating to the uncoordinated and fragmented nature of the system; inaccessibility of some social security institutions; inappropriateness of some current appeal institutions; the lack of a systematic approach in establishing appeal institutions; a limited scope of jurisdiction and powers of adjudication institutions; inconsistencies in review and/or appeal provisions in various laws; an unavailability of alternative dispute resolution procedures; and an absence of institutional independence of adjudication institutions or forums. The system is therefore in need of reform. In developing an appropriate system, much can be learned from innovative experiences in comparative South African non-social security jurisdictions on the establishment of effective and efficient dispute resolution frameworks. Dispute resolution systems in the labour relations, business competition regulation and consumer protection jurisdictions have been established to realise the constitutional rights of their users (especially the rights of access to justice, to a fair trial and to just administrative action). They thus provide a benchmark for the development of the South African social security dispute resolution system.

scholarly journals ACCESS TO SOCIAL SECURITY FOR NON-CITIZENS: AN INTERNATIONAL, SOUTH AFRICAN AND EUROPEAN VIEW

2011 ◽  
Author(s):  
Taryn Lee Vos
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Political Stability ◽  
Constitutional Court ◽  
The South ◽  
Foreign Nationals ◽  
European Approach ◽  
The Republic ◽  
The Right

South Africa has become a magnet to a larger group of foreign migrants than the global average. This is due to the fact that it is a front-runner, economically speaking, in Sub-Sahara Africa with a reputation of political stability. The South African Constitution is the supreme law of the Republic, to which all other law is subject. South Africa’s constitutional framework, coupled with immigration legislation and policies, aim to promote the rights enshrined in the Bill of Rights for all individuals living within the borders of the Republic. While certain rights are expressly reserved for citizens only and are largely of a civil or political nature, the remaining rights are those that ‘everyone’, including foreign nationals, may enjoy. Non-citizens within the borders of the Republic receive, inter alia, the protection of South Africa’s basic constitutional values; in particular the right to equality, human dignity and freedom. Socio-economic rights, subject to the limitations clause in section 36 of the Constitution, are also made available to everyone. This includes both citizens and foreign nationals. These rights can be found in section 25, 26, 27, 28 and 29 of the Constitution and relate to issues of access to land, housing, health care, food, social security and education. The focus of this paper will be the right of access to social security for non-citizens, particularly migrants, in South Africa. Who falls within the scope of the term ‘everyone’ as found in section 27 of the Constitution? The international perspective on the issue of social exclusion of non-citizens from accessing social security benefits is briefly dealt with, followed by a discussion of the South African perspective on the matter. The approach of the South African Constitutional Court in respect of the protection of the rights of noncitizens will then be discussed. The European approach to the matter, including the approach of European courts, will then be examined. The concluding paragraphs entail an evaluation of the improvements that can be made to the South African social security system as inspired by the European approach.

scholarly journals The Compliance of the South African Social Security System with the International Covenant on Economic, Social and Cultural Rights

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 850-870
Author(s):  
Yvette Basson
Keyword(s):  
South Africa ◽  
Social Security ◽  
South African ◽  
Social Security System ◽  
Security System ◽  
The South ◽  
Cultural Rights ◽  
The Right

The ratification of the International Covenant on Economic, Social and Cultural Rights by South Africa has resulted in the provisions thereof becoming binding on the South African legislature. The right to social security is entrenched in the ICESCR, which provides for the elements of a social security system that must be complied with by states. This article sets out what is required of states in terms of the right to social security in the ICESCR by way of crystallising the elements of a social security system. Thereafter, the South Africa social security system is compared to these elements to determine whether there is compliance with the right to social security in the ICESCR.

Victim Participation in Parole Proceedings in South Africa

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Jamil Mujuzi
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Prison Inmate ◽  
Parole Board ◽  
Victims Of Crime ◽  
The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

scholarly journals The transition to general management in South Africa

2017 ◽  
Vol 15 (0) ◽  
Author(s):  
Stephen J. Mallaby ◽  
Gavin Price ◽  
Karl Hofmeyr
Keyword(s):  
South Africa ◽  
South African ◽  
Personal Characteristics ◽  
Structured Interviews ◽  
General Manager ◽  
General Management ◽  
General Managers ◽  
Managerial Implications ◽  
Effective Development ◽  
The Right

Orientation: Understanding the nature and challenges of making the transition from a functional role to a general management role in South African organisations.Research purpose: The objective of this study was to gain insight into the obstacles that affect the transition from functional to general management and identify steps that may be taken to overcome these challenges.Motivation for the study: One of the most difficult crossroads for a manager is making the shift from being a functional specialist to becoming a general manager. New competencies and behaviours are required, as well as a more strategic mind set. If the transition is not made successfully, the manager and the organisation suffer.Research design, approach and method: A qualitative design was used consisting of in-depth, semi-structured interviews, with 19 senior business leaders who had successfully made the transition. The interviews were used to gather insights into the challenges they faced during their transitions, and how these were overcome.Main findings: To make the transition successfully, functional managers need to gain relevant experience to prepare them for the broader scope of a general management role. They need to develop appropriate skills, attitudes and personal characteristics. Mentoring is an effective development process. Newly appointed general managers need to learn to let go of control while maintaining ownership, build relationships and strike the right balance between strategic thinking and execution. There are unique aspects of being a general manager in South Africa, such as dealing with Black Economic Empowerment and challenges of race and identity, given the country’s history.Practical and managerial implications: Specific interventions are suggested which are directed at both aspiring general managers and organisations seeking to assist middle managers to make the transition to general managers.Contribution: This study contributes to knowledge concerning the skills and attributes required by potential general managers, and the practical steps to be taken by South African organisations to facilitate the development of general managers. 

Summary judgment — Quo vadis?

2021 ◽  
Vol 138 (1) ◽  
pp. 88-114
Author(s):  
Thino Bekker
Keyword(s):  
South African ◽  
Historical Development ◽  
Access To Justice ◽  
High Court ◽  
The Core ◽  
Golden Opportunity ◽  
Quo Vadis ◽  
The Right ◽  
Summary Judgment ◽  
Made In

The summary judgment procedure in South African law provides for a speedy judgment in favour of a deserving plaintiff where it can be shown that the defendant does not have a triable defence. In 2019 the Rules Board made certain drastic amendments to the procedure of summary judgment in the high court. In this article the historical development of the procedure of summary judgment will be discussed, and the new amendments to rule 32 of the Uniform Rules of Court critically evaluated. It will be argued that the amendments to rule 32 were unnecessary and that it may diminish the right to access to justice in civil disputes. It will, however, also be argued that there are some merits in the critique raised by the Rules Board in relation to rule 32 and that the Rules Board missed a golden opportunity to overhaul the entire summary judgment procedure in a more sensible manner and in line with the core constitutional values of s 34 of the Constitution. It will be argued that rule 32 should be replaced in its entirety by a new, more streamlined procedure, and some recommendations for legal reform will be made in this regard.

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