Is the Protected Disclosures Act 26 of 2000 Applicable to Members of Parliament

Smit, Nicola; Botha, Monray Marsellus

doi:10.2139/ssrn.2663548

Cited by 3 publications

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“…163 The Labour Appeal Court's reasoning that there is a single statutory scheme between the LRA and the PDA is valid on its face but apparently disregards the different One solution has been suggested by Nicola Smit and MM Botha. 175 They claim that the best option is to amend the PDA. 176 The amendment would list MPs in the definition of "employee" so that they are deemed to be employees for the purposes of the PDA.…”

Section: Academic Criticismmentioning

confidence: 99%

Rethinking Parliamentary Status: Are Parliamentarians Bound by the Protected Disclosures Act 2000? A Comparison Between South Africa and New Zealand

Hilton¹

2018

VUWLR

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This article compares the Protected Disclosures Act 2000 (PDA) in South Africa and New Zealand. The comparison is framed by the question whether the PDA binds members of Parliament (MPs) or not. Regarding South Africa, the article analyses the provisions of the PDA and its curial interpretation in the Charlton litigation. Technically, MPs are bound by the PDA. This article nonetheless defends the Labour Appeal Court's merits judgment, which held that MPs are not bound. Regarding New Zealand, the article analyses the provisions of the PDA and suggests the probable outcome in court if similar litigation were ever to occur in New Zealand.

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Section: Academic Criticismmentioning

confidence: 99%

Rethinking Parliamentary Status: Are Parliamentarians Bound by the Protected Disclosures Act 2000? A Comparison Between South Africa and New Zealand

Hilton¹

2018

VUWLR

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South African Whistleblowers

Uys

2021

Whistleblowing and the Sociological Imagination

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The different worlds of labour and company law: truth or myth?

Botha

2015

Potch Elekt regs

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There are some cross-cutting issues concerning company and labour law as far as the issue of flexibility and workers' aspirations are concerned. Many prescriptions relating to the organisation of a workplace and rights and duties and employment contracts have an impact on the prerogative of management. It should also be noted that there are generally limitations to the scope and effect of legal provisions and, accordingly, employee protection derived therefrom. ... Company law regulates the actions of companies in the market. Unfortunately, very little attention is bestowed on the interests of employees in company law, either nationally or internationally. As far as insolvency law is concerned, the position is not much different. There would thus seem to be a vacuum in research in this field, since it certainly cannot be argued that employees are not closely connected to the companies they work for and on which their livelihoods depend. Employees deserve to have more attention paid to their often precarious position. It should be evident that labour can only do so much and that other branches of the law, including company law, must address some of the new challenges facing markets. 15 Glynn 16 adds (in his discussion of the American position) that corporate law, in simplified terms, usually purports to serve two kinds of functions. First, it establishes the legal form of the firm and it also provides whether its attributes can be waived or not. These attributes include its legal personality, equity ownership structure, decisional structure, and limited liability. 17 Second, corporate law potentially addresses three sets of "value-reducing forms of opportunism" or agency problems: first, a conflict exists between manager and shareholder interest; second, there is a conflict between the interests of controlling and non-controlling shareholders or shareholder groups interests; and third, there is a conflict between the interests of shareholders and of other stakeholders who may be viewed as outside the firm, including employees, creditors, customers, and society as a whole. 18 Although what is said above is true, it does not mean that scholars and lawyers in labour law have expressed no interest in the field of company law and vice versa. It is thus clear that both corporate law and labour law have provided certain fundamental starting points for analysis, each of which shapes the regulatory scope of the other. Corporate law, for example, bestows legal personality on business entities, and allows such entities to enter into bilateral employment contracts with 15

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Is the Protected Disclosures Act 26 of 2000 Applicable to Members of Parliament

Cited by 3 publications

References 0 publications

Rethinking Parliamentary Status: Are Parliamentarians Bound by the Protected Disclosures Act 2000? A Comparison Between South Africa and New Zealand

Rethinking Parliamentary Status: Are Parliamentarians Bound by the Protected Disclosures Act 2000? A Comparison Between South Africa and New Zealand

South African Whistleblowers

The different worlds of labour and company law: truth or myth?

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