Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases

2021 ◽  
Vol 33 (2) ◽  
pp. 238-259
Author(s):  
Chuks Okpaluba ◽  
Tumo Charles Maloka
Keyword(s):  
South African ◽  
Case Law ◽  
Rugby Union ◽  
Department Of Education ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
The Law ◽  
Bear Witness

Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case law abound to bear witness to this assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC, Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd v Padayachee [2018] ZALCJHB 307 and Watson v South African Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility was approached respectively, from the prism of operational requirements; incapacity and misconduct; coupled with some recent cases discussed herein, clearly indicate that incompatibility has not only covered the field, it has also acquired a pride of place in contemporary South African law of unfair dismissal. Given these circumstances, the authors recommend the insertion into s 188(1)(a)(i) by way of an amendment such that the subsection will include a fair reason ‘related to the employee’s conduct, incapacity or ‘‘incompatibility’’ ’. This will definitely clear any lingering doubts surrounding the role of incompatibility and empower the arbitrator and the Labour Court to adjudicate with a level of clarity in the law of unfair dismissal.

scholarly journals A tale of two citizens: The Brey-Dano proportionality gap in UK courts and tribunals

2021 ◽  
pp. 138826272110049
Author(s):  
Victoria E. Hooton
Keyword(s):  
Decision Making ◽  
National Level ◽  
Case Law ◽  
Eu Law ◽  
The Law

The role of proportionality and individual assessments in EU residency and welfare access cases has changed significantly over the course of the last decade. This article demonstrates how a search for certainty and efficiency in this area of EU law has created greater uncertainty, more legal hurdles for citizens, and less consistency in decision-making at the national level. UK case law illustrates the difficulty faced by national authorities when interpreting and applying the rules relating to welfare access and proportionality. Ultimately, the law lacks the consistency and transparency that recent CJEU case law seeks to obtain, raising the question of whether the shift from the Court's previous, more flexible, case-by-case approach was desirable after all.

Determining a Suicide under Australian Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Stephanie Jowett ◽  
Belinda Carpenter ◽  
Gordon Tait
Keyword(s):  
Case Law ◽  
Law Reform ◽  
Practical Matter ◽  
The Law ◽  
Recent Government

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

scholarly journals Servants or Masters? Linguistic Aids in Legal Interpretation

2021 ◽  
Vol 10 (1) ◽  
pp. 73-102
Author(s):  
Paulina Konca
Keyword(s):  
Case Law ◽  
Legal Interpretation ◽  
Legal Regulations ◽  
Correct Interpretation ◽  
Fourth Section ◽  
The Third ◽  
Ordinary Meaning ◽  
Legal Literature ◽  
The Law

This paper presents the role of some intrinsic sources in legal interpretation. Some of linguistic aids follow from provisions of the law and other from the commonly accepted ruling practice or views expressed in literature. The position of those aids was verified through the analysis of case-law, literature, and provisions of law. The first section and second section focus on the priority of plain meaning rule and intrinsic sources in legal interpretation which is strongly emphasized in legal literature, case-law and the interpretative provisions of many countries. Next, it presents how certain linguistic tools work in case law practice, what problems they can cause and what problems they can solve. The third point addresses the use of dictionaries as tools of linguistic interpretation. The fourth section explores the role of selected interpretative canons often found in legal regulations and case law practice: ordinary meaning canon, gender/number canon, ejusdem generis canon, presumption of consistent usage and prefatory-materials canon. It is concluded that the priority of a linguistic interpretation is not absolute and can never be understood as its exclusivity. Linguistic tools are not in themselves determinants of correct meaning. In order to make a correct interpretation, it is necessary not to be guided, by indications labelled as objective, sometimes artificially imposed, but by the intention of the legislator, which such tools may discover and should only be used for that purpose. 

scholarly journals Unpacking the Law and Practice Relating to Parole in South Africa

2017 ◽  
Vol 14 (5) ◽  
pp. 204
Author(s):  
Jamil D Mujuz
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Early Release ◽  
Correctional Services ◽  
The Law ◽  
Parole System

The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole.

scholarly journals THE CONSTITUTIONAL DUTY TO ENGAGE IN COLLECTIVE BARGAINING

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Angela Patricia Molusi
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Case Law ◽  
Labour Relations ◽  
The Law

The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act (LRA) refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism (SANDU v Minister of Defence 2003 3 SA 239 (T) I; SANDU v Minister of Defence 2004 4 SA 10 (T) II; and Minister of Defence v SANDU 2007 1 SA 422 (SCA) III (hereafter “SANDU I, II and III”)). These cases are relevant in terms of the courts’ interpretation of collective bargaining as a duty or freedom. They are currently the main cases dealing with this issue in South Africa. This has created doubt as to whether the distinction provides an acceptable basis to use the terms interchangeably, both by the courts as well as those involved in collective bargaining. The purpose of this paper is firstly to sketch the landscape of South Africa’scollective bargaining jurisprudence, touching on the current legislation and secondly to give an overview of why collective bargaining is a necessary tool to balance power in the workplace. I shall examine the discourse as to whether the term “collective bargaining” creates a duty to participate (which can mean compelled) in collective bargaining on the part of the employer, as opposed to a right to engage in collective bargaining (which is voluntary). Lastly, the author will attempt to show the thread of how the courts have answered the question in case law.

scholarly journals Greening the Judiciary

2017 ◽  
Vol 9 (3) ◽  
pp. 71
Author(s):  
M Kidd
Keyword(s):  
South African ◽  
Environmental Context ◽  
Correct Interpretation ◽  
The South ◽  
The Future ◽  
The Law

This note considers the performance of the South African courts in deciding environmental cases and suggests that, notwithstanding some good decisions, there are still too many decisions where the courts are not applying relevant legislative provisions or misinterpreting the law. It is suggested that the future acceptable performance of the courts not only rests on correct interpretation and application of the legislation, but also increased familiarity by judges with the technical environmental context within which the cases are situated. The role of legal practitioners in achieving this is also highlighted.

15. Undue Influence, Unconscionability, and Equality of Bargaining Power

2021 ◽  
pp. 500-533
Author(s):  
André Naidoo
Keyword(s):  
Consumer Protection ◽  
Bargaining Power ◽  
Case Law ◽  
Third Party ◽  
Undue Influence ◽  
The Third ◽  
The Law

This chapter examines undue influence, which is largely about pressure and influence arising from a relationship. It begins with the basic role of the law on undue influence before moving to the substantive case law. The case law is divided into three categories, which are based on the different ways of proving undue influence. The first relates to what is known as ‘actual undue influence’, which is where a complainant proves undue influence. The second is where undue influence between two parties can be presumed from the circumstances. The third category has been a major problem in modern cases and it involves undue influence coming from a third party. The chapter then turns to the wider issues that complete the ‘bigger picture’. The first of these is the area often referred to as ‘unconscionability’, which is about the exploitation of weakness. The second is the attempt to create a wider ‘inequality of bargaining power’ principle. Finally, the chapter looks at the Consumer Protection from Unfair Trading Practices Regulations 2008, which can cover conduct otherwise classed as duress, undue influence, and harassment.

9. Unfair dismissal

2021 ◽  
pp. 133-150
Author(s):  
Michael Jefferson
Keyword(s):  
Case Law ◽  
Essential Information ◽  
Code Of Practice ◽  
Unfair Dismissal ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the law on unfair dismissal. The principal cases are discussed in full. It is easy to get lost in the mass of case law and concentration must be kept on the statute and these leading cases. The employer must demonstrate that the reason for the dismissal relates to capability or qualifications, conduct, a statutory ban, or some other substantial reason of a kind to justify the dismissal. An employer must act reasonably in treating a reason as sufficient for dismissal. This is the famous ‘range of reasonable responses’ test. It should be guided by the ACAS Code of Practice 2015 and must follow contractual procedures. The remedies for unfair dismissal include re-employment or compensation.

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