Magister Legum - LLM (Mercantile and Labour Law)

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A Critical analysis of section 129 of the companies act 71 of 2008
(University of the Western Cape, 2017) Barends, Richard Heinz; Wandrag, Riekie
A company forms an important part of a community in which it conducts business. It, therefore, has a direct impact on the economic and thus the social well-being of that community through its employees, suppliers and distributors. Consequently, the failure of a company has a large effect on society than merely its employees and creditors. In some instances this may lead to companies being liquidated. Granting an order of liquidation, results in the demise of the corporate entity and the attendant loss of jobs. This is further protracted by an unsatisfactory pro rata share in the residue for unsecured creditors, and the abandonment of claims when such are not proved. Having a corporate rescue procedure in place can prevent or even limit the amount of job losses, or provide an alternative measure as opposed to liquidation of companies. Corporate rescue affords a company a second chance, after having once failed, to restructure its financial affairs and once again become a successful concern.
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, Patricia
Magister Legum - LLM (Mercantile and Labour Law)
Addressing the social protection deficits for waste declaimer’s in South Africa
(University of the Western Cape, 2023) Dotwana, Zintle; Malherbe, K
Globally, social protection is an important aspect of creating a well-functioning labour market that promotes decent working conditions and alleviates poverty.1 Social protection is crucial in both living and working conditions; it protects individuals and families against socio-economic risks.2 Social security is an important component of social protection that encompasses a single scheme or a number of different schemes that are regulated at the national level to provide income benefits for various social risks and contingencies.3 In South Africa, social security rights flow directly from the Constitution. The South African Constitution states that everyone has the right to have access to social security, including appropriate social assistance should they be unable to support themselves and their dependants.4 Social security systems in South Africa encompass social assistance and social insurance schemes. Social assistance is a non-contributory scheme that alleviates and prevents poverty among vulnerable groups who are unable to support themselves and their dependants.5 Social insurance is largely accessed through the existence of employment relationship and typically protects only formal workers.6
Addressing the social protection deficits for waste reclaimers in South Africa
(University of the Western Cape, 2023) Dotwana, Zintle; Malherbe, Kitty
Globally, social protection is an important aspect of creating a well-functioning labour market that promotes decent working conditions and alleviates poverty.1 Social protection is crucial in both living and working conditions; it protects individuals and families against socio-economic risks.2 Social security is an important component of social protection that encompasses a single scheme or a number of different schemes that are regulated at the national level to provide income benefits for various social risks and contingencies.3 In South Africa, social security rights flow directly from the Constitution. The South African Constitution states that everyone has the right to have access to social security, including appropriate social assistance should they be unable to support themselves and their dependants.4
The admissibility and evidential weight of electronic evidence in South African legal proceedings: a comparative perspective
(University of the Western Cape, 2013) Van Tonder, Gert Petrus; Koornhof, Pieter
This research will analyse legislation, case law, law commission papers and reports, as well as academic commentary on electronic evidence in South Africa, Canada and England. A comparative analysis will be conducted in order to determine whether South Africa is adequately regulating electronic evidence in light of international and foreign law.
Agenda 2030: A South African perspective on the sustainable development goals
(University of Western Cape, 2020) Ceaser, Cheslyn Craig; Scholtz, Werner
Environmental degradation and the impacts on sustained life for all on Earth has become a global concern. Climate change illustrates one of the Anthropocene affects on continued life for both human and non-humans. The global recognition of the importance of addressing climate change in light of Sustainable development has been well noted in international instruments inter alia the Kyoto Protocol, The Rio Declaration and the Paris Agreement. In recognizing the importance of continued sustainable development on Earth, various soft law goals were adopted.
Alternative dispute resolution in medical malpractice in south Africa
(University of the Western Cape, 2020) Nwedamutsu, Tsepo; Kondo, Tinashe
South Africa has seen a spike in medical malpractice litigation, including the number and size of claims instituted against healthcare practitioners. This has led to a backlog in medical malpractice court cases throughout South Africa and a strain on both the public and private healthcare sectors, affecting an already burdened healthcare system. The surge in medical malpractice litigation is not a new phenomenon in developed countries. Most have curbed this through alternative dispute resolution (ADR). This has been facilitated by effectively introducing efficient legal frameworks that promote ADR. Unfortunately, this is not the case in a developing country such as South Africa. To date, much research and literature has attributed blame for the large-scale increase in medical malpractice litigation to legal practitioners. This has been aided by comments made by the former Minister of Health, Dr Aaron Motsoaledi (Dr Motsoaledi). In as much as this may be the common perception, there appears, to the contrary, to be systematic problems in the South African healthcare system. The legal profession is only a minor contributing factor to the increase in medical malpractice litigation. The strained financial resources and shortage of healthcare staff in public hospitals contributes to the increased risk of medical malpractice cases. Furthermore, when considering the South African legal system, contingency fee arrangements have, in certain circumstances, increased vexatious litigation and, as such, it is on this basis that medical malpractice litigation has been on the increase in South African courts. This study seeks to analyse the current state of the South African healthcare system, and in light of the increasing number of medical practice claims and litigation, propose ADR mechanisms that offer efficient, cost effective, and expeditious channels to resolving these issues and to ensure that parties recognise the full benefits of ADR. This study proposes legal reform in medical malpractice litigation in South Africa. This thesis compares the experiences, legislative and policy frameworks in Australia and the United States of America (USA), in order to learn lessons that could assist South Africa in framing legislation and best practices for ADR. It contends that, in order to effectively develop and implement ADR to address medical malpractice litigation, it requires the involvement of the government, legislature, judiciary, legal profession and the public. It has identified court- iv annexed mediation as the appropriate ADR mechanism in addressing medical malpractice litigation.
Alternative dispute resolution in the BRICS nations: A comparative labour law perspective
(University of the Western Cape, 2019) Gerber, Marcel; Huysamen, Elsabe
Alternative dispute resolution refers to forms of dispute resolution, other than traditional and formal court based litigation. A notable benefit of alternative dispute resolution is that different processes are available for resolving a particular dispute in the most effective and efficient manner possible. Alternative dispute resolution includes but is not limited to arbitration, mediation, negotiation, conciliation and facilitation. The Constitution of the Republic of South Africa, 1996, lists human dignity, equality and the advancement of human rights and freedoms as the founding values of the Republic of South Africa. In terms of section 9(1) of the Constitution everyone is regarded as equal before the law and has the right to equal protection and benefit of the law in South Africa. Often it is however argued that traditional court based litigation hinders the full enjoyment of these rights by individuals. Consequently, alternative dispute resolution is attractive as an alternative to court based litigation as it is regarded as less expensive, more time effective and results in less conflict when it comes to resolving disputes in the most accessible, effective and efficient manner possible, in both developed and developing countries. The study will first focus on the pitfalls to traditional court based litigation in South Africa. The relevant legislation and processes which provide for alternative dispute resolution processes in South Africa, with specific focus on alternative dispute resolution in labour disputes, will be considered. Consideration will be given to the provision of alternative dispute resolution as contained in the Constitution, the Labour Relations Act 66 of 1995, the Rules for the Conduct of Proceedings before the CCMA of 2003 and the Arbitration Act 42 of 1965. The study will thereafter proceed to consider the use of alternative dispute resolution in labour disputes in Brazil, Russia, India and China, who, together with South Africa, are collectively referred to as BRICS. These five nations are considered the world’s leading emerging economies, with similar economic capabilities and demographics.
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, Patricia
The 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.
An analysis of trademark infringement by dilution under South African law
(University of the Western Cape, 2020) Miggels, Alvizo Romano; Mupangavanhu, Yeukai
The rights relating to a trademark are said to be found in the fact that proprietors have acquired goodwill and a repute in their mark. Trademark law has always protected that aspect of what a trademark embodied, inter alia, to serve as a symbol of where a product originates from and guarantee quality by the setting the registered trademark proprietor’s goods apart from those of his competitor. The dilution of a trademark is one of the most challenging issues facing the sphere of trademark law in South Africa. Trademark proprietors have in the past relied successfully on primary and secondary or extended infringement. There has, however, been a dearth of cases on infringement by dilution thus far. The research in this study will primarily take the form of an evaluation of the development of the anti-dilution action and why there is dearth of successful cases in South Africa. Trademark proprietors are at risk of suffering financial loss if they are not able to protect their marks from dilution. The thesis will make recommendations whether the dilution provision contained in the Act need reform or whether the approach to the application of the anti-dilution provisions by our judiciary needs to change.
The application of the business judgment rule in fundamental transactions and insolvent trading in South Africa : foreign precedents and local choices
(University of the Western Cape, 2016) Smit, Imogan; Wandrag, Riekie
The application of the business judgment rule in fundamental transactions and insolvent trading in South Africa: foreign precedents and local choices
(University of the Western Cape, 2016) Smit, Imogan; Wandrag, Riekie
The so called business judgment rule (hereinafter referred to as ―the BJR or the rule‖) that serves to protect directors from liability for negative consequences of honest, reasonable business decisions that went wrong, was developed by the American judiciary in the early 19th Century.2 Percy v. Millaudon, a Louisiana Supreme Court decision quoted above, articulated what is now referred to as the BJR.3 This case provides the earliest expression of the American BJR.4 Delaware courts subsequently issued a series of cases formulating the BJR as a presumption.5 Although the earliest expression of the rule was provided by a Louisiana court, the dissertation will focus on the Delaware case law formulation of the rule.6 The essence of the BJR is that judges should not second guess directors‘ decisions if certain elements of the BJR are fulfilled.7 Courts are required to exercise caution when dealing with claims brought by either stakeholders or shareholders against directors who have made bona fide, also referred to as good faith, business decisions.8 In order to be protected by the BJR and for it to act as a safe harbour, the court will determine whether certain requirements have been met before applying the rule.9 The Delaware courts formulated the BJR as a presumption and in order for directors to be protected by the rule they must have made an informed business decision, in good faith and in the honest belief that the decision will be in the best interest of the company.10 As will be discussed later, this formulation of the rule is referred to as the traditional BJR. In addition to the aforementioned formulation, another formulation was provided by the American Law Institute (hereafter referred to as the ―ALI formulation‖).11 Initially there had been difficulties codifying the ALI version of the rule but later it was successfully codified in paragraph 4.01(c) of the ALI Corporate Governance Project.12 This formulation requires a director to ensure that he has no personal interest in the matter, he is reasonably informed of the matter prior to making the decision and he rationally believes the decision will be in the best interest of the company.13 If the director complies with the aforementioned requirements, the director will be considered to have acted in good faith.14 Directors owe fiduciary duties to the company and in instances where they breach one or more of these duties they can incur personal liability.15 The rule thus emerged because of the need to protect directors and it serves as a safe harbour for those individuals who made a decision in conformity with the aforementioned requirements.16 In commercial terms the rule bestows economic freedoms and freedom of entrepreneurship to directors guided, in any case, by ―the best interest of the company‖.17 The most commonly cited reasons for the existence of the rule are that it promotes risk taking, encourages competent persons to serve as directors, prevents judicial second-guessing and promotes judicial efficiency. It further provides directors with sufficient freedom to manage the company and it ensures that the interest of shareholders and those of directors are balanced.18
The appointment of a SARS official as facilitator in alternative dispute resolution proceedings: is it a violation of a taxpayer’s right under section 34 of the Constitution?
(2024) Yokwana, Mellissa-Jane Ntomboxolo; Moosa, Fareed
In each year of assessment, qualifying taxpayers are, by virtue of the relevant provisions of the Income Tax Act 58 of 1962 read with the Tax Administration Act 28 of 2011 (‘TAA’), required to submit an income tax return to the South African Revenue Service (‘SARS’). In such return, the taxpayer accounts for income received and accrued in order that the SARS may assess the taxpayer for a potential income tax liability. Upon the issuance of an assessment by the SARS, a taxpayer who is dissatisfied may object to it, in whole or in part. The SARS must consider every objection and decide thereon. A taxpayer who is aggrieved by a decision in relation to an objection may lodge an appeal to a competent Tax Board or Tax Court. Pending the latter adjudicative process, the TAA allows a taxpayer to request that the dispute be referred to ADR facilitated by a person duly appointed in accordance with the law.
Appraisal of South Africa’s legislative adoption of the twin-peaks system in light of international experiences
(University of Western Cape, 2021) Bedeker, Chad-Lee; Mupangavanhu, Brighton
The 2007-2008 global financial crisis demonstrated the weakness of a light-touch financial regulatory system. The global financial crisis thus formed the basis for countries to reconsider a model of financial regulation that functions as a preventative measure and was able to protect the financial sector in the wake of a financial crisis. This saw an international trend in financial regulation, with many countries such as Australia, the United Kingdom, Netherlands, Belgium, New Zealand, inter alia, adopting the Twin Peaks model of financial regulation. The impact felt in South Africa (SA) saw the loss of millions of jobs owing to the global financial crisis.
Are employees suffering from depression in the South African workplace protected by the existing disability provisions within employment law?
(University of the Western Cape, 2017) Welgemoed, Bernice; Huysamen, Elsabe
Depression is a mood disorder that negatively affects the way in which a person feels about himself or herself. This can ultimately affect an employee's ability to work, through reducing his or her capabilities to perform within the workplace. Individuals who suffer from depression are often discriminated against due to the societal prejudice that continues to exist about depression. In the workplace such discrimination often prevents employees from qualifying for promotions, or prospective employees from being offered employment. The fear of being subjected to unfair discrimination because of depression frequently results in employees not disclosing their mental health status to their employers, which often then causes the depression to become worse. In order to effectively address this issue, the legislative framework in South Africa dealing with employment rights can be broadened to include depression as a disability, thereby also further protecting depressed employees from discrimination in the workplace.
An assessment of the constitutionality of the directions and regulations issued to local government during the Covid-19 state of disaster
(2021) Thabo, Victor; Visser, D
President Cyril Ramaphosa first addressed the nation regarding the Covid-19 pandemic on the 15th of March 2020, when he announced the national state of disaster in terms of the Disaster Management Act (DMA) to prevent the rise of Covid-19 infections.1 On the 23rd of March 2020 in his second address, the President announced a national Lockdown, initially for 21 days, and outlined more stringent interventions to limit the transmission of the coronavirus and to mitigate its economic and social impact.2 Since then, there have been at least four sets of directions issued to the provinces and municipalities in terms of the Disaster Management Act, with the first set of directions to provinces and municipalities taking effect on the 25th of March 2020. The purpose of the directions issued to municipalities were to direct municipalities in respect of the following matters in response to Covid-19 namely, the provision of water and sanitation services, hygiene education, communication, and awareness. For the purposes of this research, the word coronavirus will be used interchangeably with Covid-19. The first set of directions titled ‘COGTA COVID-19 Disaster Response Directions 2020’ took effect on the 25th of March 2020.3 The directions stipulated that no council meetings outside the District Command Centre meetings may be undertaken during the initial 21 Day Lockdown period, or any other extended period that may be declared. Since then, there have been amendments to these directions. The directions which commenced on the 3rd of July 2020, as far as local governance is concerned, stated that municipalities and municipal entities could convene council meetings.
An assessment of the laws that aim to protect employees against discrimination on the ground of disability: a comparative analysis
(University of the Western Cape, 2023) November, Kerishnie Delicia; Van De Rheede, Jeannine
South Africa is known for its history of unfair discrimination. During apartheid persons with disabilities, women and black people were subjected to unfair discrimination and research shows that this is still the case. Disability discrimination in South Africa has become a pressing concern, not only for the government but also for the general public. In Smith v Kit Kat Group (Pty) Ltd the Labour Court held that: ‘The simple point is that [when] it comes to protection against discrimination in the case of a disability, it is of little relevance what the employee may think about his or her ability to fulfil the obligations and duties of the position. It is about what the employer perceives the disability to cause. Once the employer thinks that because an employee had a disability and this disability impacts on the employee’s ability to do the job, the discrimination protection against [persons with disabilities] must apply.’ The first democratically elected South African government realised the need to redress the injustices caused by the apartheid regime. This included employment opportunities for persons with disabilities. The desire of the government was to create access to labour markets for all South Africans. There was also a need to enact laws to eliminate inequalities and unfair discrimination in the workplace. This gave rise to the inauguration of the Constitution of the Republic of South Africa, 1996.
Bad office politics: victimisation and intimidation in the workplace
(University of the Western Cape, 2013) Potgieter, Lauren; Koornhof, Pieter
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, Patricia
The 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.
The challenges posed by mandatory minimum sentence legislation and recommendations for improved implementation
(University of the Western Cape, 2003) Saptoe, Alvin; Fredericks, I.
Towards the end of 1997 Parliament unanimously enacted legislation that prescribe severe mandatory sentences for a large number of serious offences. Sections 51, 52 and 53 of the Criminal Law Amendment Act1 (hereinafter referred to as the Act) came into effect. Sections 51 and 52 of the Act were to have effect for two years from the date, save that the operation could be extended for one year at a time by Proclamation of the President with the concurrence of Parliament (sections 53(1) and 53(2)). The operation of the sections has in fact been extended for one year.2 The legislation came in the wake of an outcry from the community for severe punitive and exemplary sentences to be imposed by our courts. Public dissatisfaction with the crime situation in the country and the lenient sentences imposed was reflected in various television and newspaper reports. The public outcry, coupled with the problems experienced in the sentencing process, compelled the lawmakers to take action. This unhealthy state of affairs prompted the Minister of Justice in 1996 to appoint a new project for the South African Law Commission's (SALC)3 investigation of all aspects of sentencing. The use of mandatory minimum sentences for certain serious crimes is one of the options being considered to address crime in this country. The main objectives of the minimum sentence legislation were to deter criminal activity, avoid disparities in sentencing and to deal harshly with perpetrators of serious offences. Since the promulgation of the Act, the meaning and implications of section 51 have been adjudicated upon in a variety of cases in different High Courts. These cases have been r alia, with the interpretation of Schedule 2 and the references to the circumstances under which certain offences attract a sentence of life imprisonment and the meaning of 'substantial and compelling circumstances'. The minimum sentence provision has been opposed and supported by two divergent views. This paper will analyse the provisions in the Criminal Law Amendment Act relating to the imposition of minimum sentences for certain serious offences. It will also, based on case law, establish the extent to which the Legislator allows a sentencing court to depart from the prescribed minimum sentencing provisions; and discuss the applicability of the minimum sentence provisions to juvenile offenders. Finally, it will establish whether the minimum sentence provisions bind the district magistrates' courts and discuss the implications of the provisions relating to referral on the jurisdiction of the courts as contained in section 52. Recommendations for the improved implementation of the Act are also made.

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