Browsing by Author "Lenaghan, Patricia"
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Item Access to essential medicines in East Africa: A review of East Africa community and its member states approach to WTO-TRIPS public health flexibilities(University of the Western Cape, 2018) Majok, Daniel Bol; Lenaghan, PatriciaMagister Legum - LLM (Mercantile and Labour Law)Item Advancing regional integration through the free movement of persons in the Southern African Development Community (SADC)(Nelson R Mandela School of Law, 2020) Lenaghan, Patricia; Amadi, VictorThe level at which the Southern African Development Community (SADC) region has managed to regulate the free movement of persons, so as to reduce or completely eliminate, rigorous administrative requirements poses a challenge in so far as the ease of services supply is concerned. The Draft Protocol on the Facilitation on the Movement of Persons of 2005, remains inoperative, leaving national immigration laws to regulate the movement of people in the region. This lack of progress may indicate a lack of political will towards creating an effective large-scale integrated community. Intra-regional trade in aspects relating to services in the SADC is at a low as will be seen in the background and introductory section of this paper. This paper seeks to argue for the adoption of a less restrictive approach towards movement of people as a strategy to further boost regional trade in the SADC.Item An assessment of Ghana's anti-dumping regime in line with the World Trade Organisation Anti-Dumping Agreement(University of the Western Cape, 2017) Mohammed, Anass; Lenaghan, PatriciaThe establishment of an anti-dumping regime has become commonplace for many a government that seeks to protect and promote its local industries. One reason which appears to be dominant by its proponents is the need to curb predatory pricing. Another reason given by the proponents of anti-dumping is the need to maintain a level playing field for players in any particular industry. With these reasons and probably many others, anti-dumping legislation began to find its way into present-day trade. Canada, with its anti-dumping statute of 1904 [An Act to Amend the Customs Tariff 1897, 4 Edw VIII, 1 Canada Statutes 111 (1904)] is credited with the first modern anti-dumping legislation. New Zealand followed in 1905 with the Agricultural Implement Manufacture, Importation and Sale Act 1905, which was primarily meant to protect New Zealand's manufacturers of agricultural implements. The Industries Preservation Act 1906 which Australia enacted was to deal with market monopoly by manufacturers but it also contained provisions on anti-dumping. The first decade of the 20th century will thus qualify to be called the introductory decade of anti-dumping legislation.Item The British exit from the European Union and its effects on existing legislation and other member states(The University of the Western Cape, 2017) Manjengenja, Hazel; Lenaghan, PatriciaThe European Union (EU) was formed so as to maintain peace and to unify Europe in a bid to ensure that the events caused by the Second World War would never be repeated again. The idea was to bring the nations together both economically and politically and to ensure long lasting peace. The EU, as we know it today was the brain child of Robert Schuman, who first introduced by the Schuman Declaration in 1950. The Schuman Declaration became the heart of the European Coal and Steel Community (ECSC) in 1951. The EU was subsequently created through a number of treaties with each Treaty and agreement bringing economic and political unity. The treaties of Rome signed in 1957 fostered economic cooperation. The Single European Act gave birth to the Common Market thus economic unity to the member states, completing the four freedoms, the freedom of movement of goods, services, people and money. The Maastricht treaty of 1992 created the EU because it addressed the measures of security and defence as well as home affairs. These treaties were followed by the Amsterdam (1997), Nice (2001) and the Lisbon (2007) treaties, while the community grew from original 6 members to having 28 member states.Item A critical analysis of the impact of Brexit on the SADC-EU EPA(University of the Western Cape, 2019) Vonya, Qamani; Lenaghan, PatriciaThe United Kingdom (UK) is one of the largest Member states within the European Union (EU) that receive export goods from developing countries. The UK has successfully voted to exit the EU through a referendum and this may impact the already existing developing countries’ markets that depend on their exports to the UK. On the one hand, the UK has promised that it intends on maintaining the existing trade agreements with most of its trade partners including the Southern African Development Community (SADC)-EU Economic Partnership Agreements (EPA). On the other hand, the UK is concerned of its independence from the EU and at this point in time, it can only be anticipated that, agreements if any, relating to Brexit will only suffice once the entire exiting process has been completed.Item A critique of the SADC region’s regulatory response measures to the Covid-19 pandemic, paying special attention to travel restriction measures and their effect on food security(University of the Western Cape, 2023) Chikodza, Englebert; Lenaghan, PatriciaThe transition in the economy around the globe has led many countries to pursue integration at various levels. The importance of regional integration is highly noted in various parts of the world, with the most successful countries reaping the benefits of such cooperation. Regional integration bodies such as the European Union (EU) are notable examples of successful integration efforts. Consequently, there has been much backing from the African community for regional assimilation since the attainment of independence from the European colonial powers.1 Regional integration is seen as a rational response to challenges faced by a continent with many small national markets and non-coastal countriesItem Customs reform as a means to enhancing trade facilitation for increased market access : a South African perspective(University of the Western Cape, 2015) Amadi, Victor; Lenaghan, PatriciaItem Discrimination to the employment context on the ground of religion: an examination of the position in South African and European union law(University of the Western Cape, 2008) Ahmed, Naima; Lenaghan, PatriciaIn this mini-thesis, I try to explore that the right to equality has brought with it the right not to discriminate against on various prohibited grounds, including religion. This minithesis examines the right not to be discriminated against on the ground of religion within the labour relationship context. The enquiry takes account of international instruments that impact upon the issue, but more particularly looks at the position in South Africa where the Constitution and the several Acts relating to labour law are of special importance] and undertakes a comparative enquiry of the relevant provisions in the EU' The analysis highlights the many problems arising out of the need to have definitions for the vital terms and concepts relevant to the discussion, in particular, meaning of 'religion', 'discrimination', and 'inherent requirements of the job.Item The establishment of Tripartite Free Trade Area institutions and its repercussions on countries with multiple memberships(University of the Western Cape, 2016) Chiundira, Isaac Chiphaso; Lenaghan, PatriciaThis mini thesis examines the repercussions of the establishment of institutions under the Tripartite Free Trade Area (TFTA) Agreement on countries that have multiple regional economic community (REC) memberships. The study notes that even though the TFTA initiative is being touted as a major milestone towards the ultimate establishment of the African economic Community (AEC) and that it will help solve problems associated with multiple REC memberships, the initiative may come at a cost to countries, especially those that have maintained multiple REC memberships. The study observes that the institutions that have been established under the TFTA are a mirror reflection of the already existing institutions in the three existing regional blocks forming the TFTA, thus the Common Market for Eastern and Southern Africa (COMESA), East African Community (EAC) and the Southern Africa Development Community (SADC). The mini thesis argues that the creation of new TFTA institutions, in addition to the similar existing regional institutions, will translate into more financial costs; increased human resource cost for government officers; increase in non-financial treaty related obligations; and a high possibility of reaping fewer trade related gains, for countries that have multiple REC memberships. The mini thesis further demonstrates how the lack of clarity and hierarchy in the relationship between the TFTA institutions and the RECs’ institutions may negatively impact on countries that have multiple REC memberships. The mini thesis concludes by offering recommendations on how these challenges or costs on countries with multiple REC memberships can be addressed or ameliorated.Item Evaluating South Africa’s accession to the World Trade Organisation Government Procurement Agreement (WTO GPA).(University of the Western Cape, 2024) Velebhayi, Vuyo; Lenaghan, PatriciaSouth Africa’s participation in international agreements is governed by s231 of the Constitution of the Republic of South Africa, 1996.1 This section states that the negotiation and signing of all international agreements is the responsibility of the national executive. An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3) of s231of the Constitution. Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. The Republic is bound by international agreements which were binding on the Republic when this Constitution took effectItem Examining the effectiveness of the Corporate Leniency Policy in combating cartels under the Competition Act in South Africa with specific reference to directors’ liability.(2024) Nyembenya, Kamogelo; Lenaghan, PatriciaThe economy is harmed by the behaviour of a director that engages in anticompetitive behaviour in the sense that consumers may suffer the economic consequences in the form of having lesser buying power. This restricts healthy economic growth, drive up prices and reduce innovation and investment. Section 73A of the competition Amendment Act introduces the criminalization of cartel conduct and will hold directors/managers criminally liable for infringing s4 (1) (b) of the Competition Act. Section 4(1) (b) specifically prohibits firms from engaging in price-fixing, collusive tendering, market allocation which are regarded as egregious forms of activity. It is for this reason that this study investigates whether directors can be held personally liable for engaging in cartel activities and the effectiveness of the Corporate Leniency Policy which incentives cartel members to self-report in order to obtain immunity from competition law prosecution.Item The implementation of trade in services liberalisation : challenges to enhancing the movement of natural persons across borders (Mode IV) and the recognition of foreign qualifications in South Africa(University of the Western Cape, 2015) Ifubwa, Afulabula; Lenaghan, PatriciaItem The implications of the African continental free trade area on existing regional economic communities in Africa(University of the Western Cape, 2023) Tembo, Aaron; Lenaghan, PatriciaCountries world over are employing different strategies to grow their economies and improve the living standards of their people. Among the initiatives being employed is regional economic integration. Regional economic integration is seen as a pathway to ensure easier access to bigger markets and increased levels of trade resulting in higher economic growth.1 Africa is not an exception to the foregoing. Indeed, Africa has since the early years of independence in the 1960s been pursuing the regional integration agenda. Independent Africa perceived increased trade through regionalism as the universal remedy for the twin problems of slow rates of economic growth and alleviation of poverty on the continent.Item Invesment law in a globalised enviroment: A proposal for a new foreign direct invesment regime in Zimbabwe(University of the Western Cape, 2017) Kondo, Tinashe; Lenaghan, PatriciaMost developed countries that enjoy the lion's share of foreign investment do not have domestic legal frameworks on foreign direct investment. This is because investors are attracted by a holistic picture of these countries. Such countries have strong institutions of governance, enjoy political and economic stability, embrace democracy, have respect for rights, and have high levels of development - factors which attract investors. In terms of regulation, many of these countries are heavily reliant on bilateral investment treaties. However, this is not the case in developing countries such as Zimbabwe. The existence of an effective and efficient legal framework on the governance of foreign direct investment is an important consideration for investors. This emanates from the fact that developing countries often have weak legal systems, shaky economies and uncertain political environments.Item Promoting and facilitating development through private sector inclusion under the Africa Continental Free Trade Agreement (AFCFTA) legal and institutional framework(2023) Kobel, Victoria R. Kirunda; Lenaghan, PatriciaFree Trade Agreements (FTAs) have been fronted as vehicles for economic development by various scholars and economic organisations at large. But what is development? This is an important question which must be answered. Chidede, in his work, states that the term development has no universal definition but, at a more general level, entails a process, which aims at the constant improvement of the well-being of the entire population and all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom1 . This is an acceptable standard by which to judge development, especially in light of what has been termed as “sustainable development goals” 2. It is against this backdrop that this study aims to investigate the potential of the African Continental Free Trade Agreement (AfCFTA)3 to bring about not only development, but also inclusive development with a major focus on its ability to promote private sector inclusiveness, a key component to realising its agenda.Item Prospects of formal regional stock exchange in the East African community: legal and regulatory considerations(2021) Mziray, Sia Aidan; Lenaghan, PatriciaThe East African Community (EAC) is among the eight regional economic communities recognised under the platform of the African Union.1 What has transformed to become the EAC was initially founded in 1967 with the name East African Co-operation, having Kenya, the United Republic of Tanzania and Uganda as members states.2 The Treaty establishing the East African Cooperation was subsequently dissolved in 1977 owing to various reasons, including the perceived dominance of Kenya, misunderstandings on resource sharing and ideological differences of the three-member states.3 The Treaty for the Establishment of the East African Community of 1999 (henceforth called the EAC Treaty) signed by Kenya, Uganda, and the United Republic of Tanzania revived the EAC as we have it today.4 These founding member states signed the EAC Treaty on 30 November 1999, and it entered into force on 7 July 2000.5 In July 2007, Rwanda and Burundi joined the EAC.6 The Republic of South Sudan became the last country to join the EAC in April 2016,7 thereby bringing the total number of member states to the EAC Treaty to six.Item Regulating third party funding in arbitrations help within South Africa(University of the Western Cape, 2018) Lawrence, Lyn; Lenaghan, PatriciaThe decision by countries to relax the common law doctrines of maintenance and champerty to accommodate Third Party Funding (TPF) in dispute resolution has sparked a worldwide debate. The controversial practice of funding disputes in exchange for a share of a successful outcome or settlement has left courts and administering institutions in a compromising position. South Africa joined the debate in 2004 after the Supreme Court of Appeal (SCA) relaxed the application of the doctrines in favour of TPF. The SCA found that domestic courts have the necessary mechanisms to protect themselves against any repercussions of TPF without the assistance of the doctrines. The SCA limited their search to the abilities of the courts and did not consider the effect TPF could have on other dispute resolution processes such as arbitration. This study seeks to discover whether arbitration can protect itself against the repercussions of TPF. It further questions the possibility of adopting regulations to aid in the protection of arbitration should the current mechanisms be insufficient.Item Rethinking the right to water in rural Limpopo(Pretoria University Law Press, 2020) Maziwisa, Michelle; Lenaghan, PatriciaFor decades Africa has been losing billions of dollars every year as a result of illicit financial flows. When export and import figures are tampered with this has the tendency to erode the tax base. It is common cause that in Africa a large percentage of state revenue emanates from taxation. The consequence of tax base erosion is that the government has less revenue. With less revenue, the government is increasingly unable to provide social services. The consequences for women are particularly dire as women have to end up subsidising the state in providing services, reproductive and care work. This article argues that the government has a responsibility to ensure that the maximum ‘available resources’ are allocated to the attainment of socio-economic rights, particularly the right to water, especially for the poorest in the country. The article is limited in scope to the province of Limpopo in South Africa.Item A review of the legal measures to protect indigenous culture in South Africa(University of Western Cape, 2021) Anirudhra, Swasthi; Lenaghan, PatriciaGlobalisation has enabled the different countries of the world to be connected to each other irrespective of geographical constraints or time zones. Such connectivity has resulted in more than just an economic exchange, but also a cultural exchange in most instances.1 Due to the advancement of globalisation a new manner of life has commenced, one which has both positive changes and challenges. Globalisation has led and continues to increase the economic growth of countries and in so doing, the poverty levels of various countries has reduced.2 Despite the reduction of poverty levels, it is proposed that globalisation poses a challenge in the culmination of cultural homogeneity.3 In our rapidly developing world, there is a flow of ideas, capital, commodities, knowledge, information and beliefs.Item Revolutionising cross-border remittances; A legal framework for mobile money interoperability in Southern Africa(University of Western Cape, 2021) Mafongoya, Chido Pamela; Lenaghan, PatriciaRegiоnаl trаde, investment аnd crоss-bоrder remittаnces аre аll criticаl cоmpоnents оf ecоnоmic аnd sоciаl develоpment in the Sоuthern Аfricаn Develоpment Cоmmunity (SАDC) regiоn.1 Crоss bоrder remittаnces аre а mаin аnd stаble sоurce оf incоme fоr а mаjоrity оf the pоpulаtiоn in mоst develоping cоuntries, accounting fоr а third оf the tоtаl Grоss Dоmestic Prоduct (GDP).2 One in seven Аfricаns receives remittаnces frоm fаmily аnd friends аbrоаd аmоunting tо аpprоximаtely US$ 60 milliоn per year.3 As such, crоss bоrder remittаnces аct аs а criticаl lifeline tо develоping ecоnоmies аnd hаve hаd а significаnt impаct оn the stаndаrd оf living оf mаny recipient hоusehоlds.4 In the SАDC regiоn, crоss-bоrder remittаnces аre cоmmоnplаce, wherein remittаnce inflоws аccоunt fоr а sizeаble prоpоrtiоn оf GDP аfter Fоreign Direct Investments (FDI).