|Member of the Durham Law School|
Kershwyn is currently on sabbatical and is undertaking his PhD in Law at Durham University. He is a full-time lecturer in law at the University of Cape Town, South Africa. He completed his articles of clerkship in 2014 and is an admitted attorney of the High Court of South Africa and an accredited commercial mediator.
Kershwyn, previously having worked for a large business law firm, has an interest in employment law but is primarily focused in applying the alternative dispute resolution principles found in the employment law sphere to commercial matters and expanding the area of resolving disputes without litigation.
Alternative Dispute Resolution is the current area of his research and the title of his PhD is ‘Legal review of settlements – the limits of privacy and confidentiality’.
A cornerstone to the mediation process is confidentiality. This aspect of private dispute resolution has made mediation a very attractive form of coming to a settlement as parties are able to keep sensitive and private matters out of the courts. The inclusion of a robust confidentially clause may keep private details of the settlement out of the public eye and media. This PhD examines the extent that parties to a mediation settlement may have their information protected post settlement.
A futher question is this - what becomes of confidentiality when after mediation and after a settlement has been agreed upon, a party now suffers from a kind of buyer’s remorse and makes a myriad of allegations - including but not limited to - duress, misrepresentation or undue influence? When is it appropriate for a court to intervene and enforce the rules of standard contract law principles?
In summary the research aim of the PhD thesis is firstly to determine the limits of a court to review a settlemenet agreement. Secondly, whether a mediator should enjoy immunity from being a witness in legal proceedings contesting a settlement agreement reached in a confidential mediation?
- Bassuday, K (2016). Law@work, Labour Relations Law: A Comprehensive Guide and CCMA — A Commentary on the Rules with a Practical Guide for Unfair Dismissal Claims (2016) SALJ 936. South African Law Journal
- Bassuday, K (2018), Deciding the appropriate disciplinary sanction – trust, remorse, & disciplinary sanctions in the alternative, 31st Annual Labour Law Conference. Johannesburg, South Africa.
- (2017), The Effect of Globalisation on the South African clothing job sector, 4th International Seminar on International and Comparative Labour Law. Venice, Italy.
- Bassuday, K (2017), What is a Private Settlement?, BRICS Legal Forum. Moscow, Russia.
- Bassuday, K (2018). Dispute Resolution Mechanisms in Employment Contracts – When should the Labour Court Intervene? SA Football Players Union & others v Free State Stars Football Club (Pty) Ltd (2017) 38 ILJ 1111 (LAC)(2018) 39 ILJ 97. Industrial Law Journal
- Bassuday, K (2016). Derivative misconduct and an employee's duty of good faith: Western Platinum Refinery Ltd v Hlebela & others (2015) 36 ILJ 2280 (LAC) (2016) 37 ILJ 86. Industrial Law Journal
- Bassuday, K (2016). Disciplinary Sanctions in the Alternative (2016) 37 ILJ 2251. Industrial Law Journal
- Bassuday, K & Rycroft, A (2015). Incapacity or Disability? The Implications for Jurisdiction Ernstzen v Reliance Group Trading (Pty) Ltd (C717/13)  ZALCCT 42 (2015) 36 ILJ 2516. Industrial Law Journal
- Bassuday, K (2018). Time’s up for employers hiding from sexual harassment settlements. De Rebus
- Bassuday, K (2017). Is there an onus to prove an impairment of dignity in discrimination cases? De Rebus
- Bassuday, K (2016). Retrospective corporate validity and the Companies Act 71 of 2008 – legislative intention or oversight? De Rebus