Magister Legum - LLM (Mercantile and Labour Law)

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South Africa's energy crisis and its implications for trade dynamics.
(University of the Western Cape, 2024) Mathibe, Miriam Karabo
Sustainable, efficient, and affordable access to energy is fundamental to encouraging, strengthening, and elevating trade-intensive industries, both domestically and internationally. Consequently, this has not been the case for South African industries as they bear the brunt and challenges of unsustainable, inefficient, and expensive energy, as a result of a 15-years plus and counting run of the ever-growing energy crisis. The crisis has proven to stunt growth and undermine the capacity of South African industries to contribute effectively to the nation's economy. This position has made it necessary to explore how the South African legal and policy frameworks in view of the significance of access to stable and affordable energy in relation to stability and competitiveness trade in South Africa. This study explored the implications of the South African energy crisis on trade dynamics. Investigating the relationship between sustainable and efficient energy and trade, the research seeks the potential benefit of reforming South African law and policies for trade. Using desktop research by gathering information and data from existing sources consisting of literature from primary and secondary sources, the study assessed the correlation between renewable energy policies and their adoption and the reduction of energy sustainability and efficiency. The study revealed that the energy crisis significantly affected trade to the point of economic deterioration. Data analysis demonstrated a reduction in a number of trade intensive sectors and GDP supporting the hypothesis that energy policies need to be reformed in order to have sustainable and stable energy supply. Because Denmark has achieved estimable success its intervention through legal and policy frameworks that promote renewable energy and reduction of fossil fuels usage, the study explored the Danish experience and draws lessons capable of being adapted to South Africa's unique situation.
Dismissals for misconduct conducted outside the employer's premises, particularly with misconduct that takes place on social media.
(University of the Western Cape, 2024) Hartnick, Heike
South African labour laws have been amended several times since 1994 and continues to change with the circumstances employers and employees face daily. Given the pandemic, the place where employees render services in terms of the employment contract is not always at the employer's premises. The Labour Relations Act 66 of 1995 (LRA) is a key piece of employment legislation in South Africa, designed to promote fair practices and protect the rights of employees. One of its primary provisions is the protection against unfair dismissals, which appears in section 185 and further supported by Schedule 8: The Code of Good Practice: Dismissal. Research shows that some employees are dismissed unfairly for misconduct that takes place outside the employers' premises particularly when it comes to misconduct in relation to social media. The objective of this research is to determine the extent to which South African laws protect employees from dismissals based on misconduct conducted outside the employer’s premises, particularly with reference to misconduct that takes place on social media. This research contains a comparison between the legislative framework in South Africa and Australia to establish whether the South African laws that aim to protect employees against unfair dismissals on the ground of misconduct should be amended and/or supplemented.
Legal challenges of artificial intelligence driven corporate decision making and corporate governance
(University of the Western Cape, 2024) Nyasulu, Angella Ruth
The rise in the use of Artificial Intelligence in the boardroom has significantly transformed corporate governance, necessitating an examination of the legal challenges it presents. This study aims to explore whether the South African legal landscape is equipped to incorporate the use of Artificial Intelligence into corporate governance and decision-making. This is achieved by establishing the foundations of the current legal framework governing corporate governance and analysing the impact of AI in decision-making on directors' duties, accountability, and the overall effectiveness of corporate governance practices. Using desktop research methodology, data was collected from a wide range of primary and secondary sources, including case law, legislation, and academic journals. This method provided an in-depth analysis of existing findings related to the role of Artificial Intelligence in corporate governance. The findings indicate that the use of AI in decision-making impacts ss 76(4) and (5) of the Act, specifically concerning delegation, reliance, and the business judgment rule. Notably, the paper demonstrates that directors cannot delegate their duties to AI, can only indirectly rely on AI, and may invoke the business judgment rule to avoid liability under certain conditions. This study highlights the need for the legislature to establish clearer regulations and guidelines regarding the application of AI in corporate governance and decision-making. These measures should ensure that AI is implemented in a way that upholds accountability, transparency, and ethical standards, while also addressing concerns about directors' duties and the potential risks of delegating key decisions to AI systems.
Assessing the viability of implementing explicit mandatory corporate social responsibility regulation in South African law
(University of the Western Cape, 2024) Cupido, Shayne
Throughout history, there have been a several devastating events which has shaped the realities of this world and required a rethink about potential ways forward for a restored and an improved future. These include events such as the Great Depression of 1929–39 which was considered the worst financial and economic disaster of the 20th century; and the Financial Crisis of 2007–08 which sparked the Great Recession, the most-severe financial crisis since the Great Depression.1 The COVID-19 pandemic is another catastrophic event which has changed the course of human history in a multitude of ways. The COVID-19 pandemic was the largest public health crisis in living memory, which had subsequently generated a major economic crisis; caused individuals and communities to endure relentless suffering; and caused a collapse in confidence throughout countries worldwide.2Minister of Trade, Industry and Competition, Ebrahim Patel, expressed how the COVID-19 pandemic in South Africa had caused a massive and rapid shock on the economy, and how the impact on gross domestic product (GDP) will be very significant with a projected recession, accompanied by big job losses and high levels of social hardship.
Providing clarity on the true reason for section 187(1)(c) dismissals: an examination of the various approaches by the courts
(University of the Western Cape, 2024) Marshall, Kirsten
South Africa has a long history of inequality because of the apartheid regime and this significantly shaped the country’s labour laws. An example of these laws is the Labour Relations Act (LRA) 66 of 1995 which was enacted to provide many safeguards against unfair dismissals. One such safeguard is the right not to be automatically unfairly dismissed in terms of section 187(1) of the LRA. Specifically, section 187(1)(c) states that any dismissal of employees by an employer for refusing to accept a demand in a matter of mutual interest between the parties is prohibited. Despite this statutory provision, if an employer’s demand is based on a legitimate operational need, the refusal of employees can be met with a dismissal for operational requirements in terms of section 189 of the LRA. There has been conflicting interpretation of the application of sections 187(1)(c) and 189 in many labour court judgements. This research paper discusses the apparent conflict and its jurisprudence. In addition, a key Constitutional Court’s judgement which provides some clarity on how these sections should be interpreted is analysed.
The regulation of digital currencies in South Africa: law, trade, aftermath
(University of the Western Cape, 2024) Ismail, Zaakirah
Over the years, cryptocurrencies such as Ethereum, Bitcoin, World Coins and others have experienced a significant growth, which has consequently attracted considerable attention from regulatory bodies and governments. This study investigates the regulatory landscape for cryptocurrencies in South Africa, utilizing a doctrinal research design to critically analyse existing literature and legal frameworks. This paper begins by delving deeper to the conceptual framework of the cryptocurrencies to unmask the technological underpinnings and their influence in the traditional financial systems. Some of the main issues that are addressed include country’s response to the emergence of digital assets and how these assets are treated under South African Financial laws. The paper will equally address cryptocurrencies regulations and their implication on tax, consumer protection and existing policies to curb related financial crimes. The paper begins by providing a comprehensive legal and conceptual framework for cryptocurrencies in South Africa, focusing on unmasking their technological and underpinnings and the impact on regulations. This analysis reveals that South Africa has adopted a conservative but a progressive approach to regulating cryptocurrencies. The South African Reserve Bank (SARB) and other regulatory bodies have published several guidelines and policy papers with the intention of striking a balance between innovation and the existing financial systems. However, there are indications that the cryptocurrencies’ regulatory structure in South Africa is not well defined and it equally leaves some serious legal implications on transactions, and other related cryptocurrencies operations. This doctrinal analysis questions the efficacy of present laws based on an extensive legal literature search of statutes, cases and commentaries. The research does state that South Africa has come a long way in the regulation of cryptocurrency, but there are regulatory implications that need progressive actions to monitor, and regulate transfers and its economic implications. This study adds to the literature on cryptocurrency regulation and has implications that extend beyond South Africa to other developing countries that are also grappling with the issues of digital finance.
The interaction between public procurement policies and international investment agreements: challenges and legal implications in Kenya and South Africa
(University of the Western Cape, 2025) Kimani, Peter Mbogo
Background and context: International investment agreements refer to ‘agreements regarding a State’s treatment of investments made by individuals or companies from another State.’13 According to the International Centre for Settlement of Investment Disputes (ICSID), these may be bilateral such as bilateral investment agreements (BITs), multilateral, sectoral and either standalone or part of investment chapters in a free trade agreement (FTAs)—and are variously referred to as international investment treaties or IIAs.14 IIAs usually include provisions that commit a host country to adhere to specific treatment standards when dealing with foreign investors or foreign direct investment15 (FDI) from the other counterpart country.16 In addition, they grant foreign investors the right to have recourse to investor-state dispute settlement (ISDS) mechanisms to resolve disputes with a host country. While IIAs are designed to promote FDI, this research hypothesises that IIAs significantly constrict the ability of Kenya and RSA to use social policies in their public procurement framework to promote socioeconomic development of their nationals.
Corporate social responsibility: the analysis of the social and ethics committee in terms of the Companies Act 71 of 2008
(University of the Western Cape, 2024) Farao, Miché-Tanielle Vanashree
Companies in South Africa are beginning to recognise the critical connections between corporate activity and socio-economic growth. It is undeniable how important it is for businesses to use corporate social responsibility (hereinafter referred to as ‘CSR') programmes to give back to the community in South Africa. The stressed relationship that companies have with society and the environment in today's interconnected world highlights urgent problems like social inequality, environmental degradation and economic disparity. The situation becomes more severe when the company's decisions or activities lead to the possibility of personal liability for its directors and shareholders. In such settings, CSR becomes a crucial instrument for promoting sustainable solutions and balancing these dynamics for the benefit of companies and for the communities they serve.
Regulating lobbying’s influence on trade policy in South Africa to achieve openness, transparency and integrity.
(University of the Western Cape, 2024) Vanqa, Sakhile Siphelele
It is a narrative as ancient as time itself that wherever power is amassed by individuals or groups, others instinctively align themselves with it, seeking to exploit that power for their own interests. This phenomenon is epitomised by lobbyists, whose roots can be traced back, according to American political scientist Lipsen, to the Garden of Eden, where the serpent lobbied Eve to persuade Adam to defy his covenant with God, lending credence to Lipsen’s assertion that lobbying is the oldest profession in the world. In today’s world, biblical covenants have given way to social contracts between governments and citizens in terms of social contract theory which posits that citizens relinquish power to governments in exchange for governance aligned with their interests; while lobbying has surged into a multi-billion dollar industry, with the United States alone spending $4.26 billion in lobbying practices in 2023.
The implementation of trade remedies in burundi’s international trade legal framework
(University of the Western Cape, 2024) Mfuranzima, Noël
After the Second World War, international trade liberalisation was on the agenda of the international community.1 An International Trade Organisation (ITO) was proposed during the Bretton Woods Conference. The aim was to complement the work of the International Humanitary Fund and the World Bank. The ITO marked the initial step in formalising international trade, with the General Agreement on Tariffs and Trade (GATT) serving as the means to support and promote trade development among nations. The significant goal included the reduction of tariffs and the removal of quantitative restrictions on global trade. Establishing modern international trade standards and the World Trade Organisation (WTO) have both been lengthy processes. Over a span of 47 years, from 1948 to 1995, the trading system transitioned from GATT to the WTO, evolving from the Havana Conference to the Marrakesh Agreement. This transformation occurred after the ITO initiative was abandoned. GATT played a crucial role in creating a strong and successful multilateral trading system that became increasingly liberal through various rounds of trade negotiations. However, by the 1980s, it was clear that the system required a comprehensive overhaul to meet the changing global trade landscape.4 This process led to the establishment WTO in 1995.5 The GATT was a provisional instrument for almost half a century.6 It effectively established the rules governing global trade and marked a significant growth period in the international trade system.
A critical analysis of the legal strength of creditor rights during the business rescue proceedings of a company operating in the South African aviation sector
(University of the Western Cape, 2024) Ennes, Keanu A
This research primarily concerns the protection of creditor rights during the process of business rescue of a company operating in the South African aviation sector. The research also examines a specific international hard law instrument, the UNIDROIT Convention on International Interests in Mobile Equipment (2001), known as the Cape Town Convention (CTC) along with the application of the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment (2001) (the Aircraft Protocol). This analysis investigates whether having adopted the CTC would change the legal nature of a creditor’s rights during the South African business rescue process. The research will further analyse two specific aspects, namely the general moratorium and the protection of property interests, which applies during business rescue against creditor claims. The analysis will establish if both aspects, the general moratorium and the protection of property interests, would apply to a creditor with an international interest (security right) in terms of the CTC. The outcome of this study will be to determine whether a creditor with an international interest will be in a more secure position compared to a creditor merely having a security right established under South African law during the business rescue proceedings of a debtor operating in the South African aviation sector.
Implementing a Southern Africa development community-regional public stockholding to enhance food security under world trade organisation rules
(University of the Western Cape, 2024) Mathebula, Tintswalo
Public Stockholding (PSH) entails government procurement of staple food commodities, such as grain, for storage and subsequent release. This stock is managed by government-run entities or public institutions. Procurement can take place through international markets at an import price, within the domestic market at the prevailing price, or within the domestic market at a set procurement price, which may be fixed or regulated (administered price). The release of stockpiles can be managed by selling them in international markets at an export price, to domestic consumers at the current market price, or to domestic consumers at a subsidised price that is lower than the market rate.
The Constitutionality of the beneficial ownership disclosure requirements in terms of the Companies Act 71 of 2008
(University of the Western Cape, 2024) Mnyamana, Zenande
The Constitution of the Republic of South Africa, 1996 provides that its supremacy is not only a value, but also a binding and enforceable provision on its own. Section 2, which houses the supremacy clause, leaves little to no room for interpretation, simply stating that the Constitution is the supreme law of South Africa and providing, in part, that any law or conduct inconsistent with it is invalid. This is later reiterated in subsequent provisions, for instance s39(2) that provides that courts when interpreting legislation must promote the spirit, purport and objects of the Bill of Rights. The importance of the Constitution can be seen in the Companies Act 71 of 2008 (the Companies Act), which provides that one of the purposes of the Act is to promote compliance with the Bill of Rights as provided for in the Constitution, in the application of company law.
The position of the emerging countries, Brazil, Russia, India, China, and South Africa (BRICS), in the further development of the multilateral trading system.
(Univeristy of the Western Cape, 2014) Meye, Boris Armel Zue
The evolutions of geopolitics are exceptional but nevertheless ensure that events involve international relations. 1 After the period of unpredictability following the 1971 failure of the Bretton Woods system of fixed international exchange rates, in terms of which exchange rates were tied to the price of gold, and the 1973 oil crisis, the need for a well co-ordinated multilateral trading system at the highest level became evident.2 As a result, in 1974, after the first oil shock, an informal intergovernmental organisation namely G group (G5)3 was initiated with a series of meetings in Washington between the United States of America USA, Japan, France, West Germany and the United Kingdom. This group was replaced by the G6 with the addition of Italy. At the first summit of the G6, convened at the initiative of French President Valery Giscard d'Estaing at Rambouillet Castle in 1975, the six leaders of the group of states agreed to meet annually, under a rotating presidency, to informally discuss economic and financial issues.
The right of access to information for visiually disabled and hearing impaired persons in South Africa
(Univeristy of the Western Cape, 2011) Noucke, Alphonse Landry
In the modern era, the predominant ideology of the notion of disability was considered in "a medical paradigm,'" in way that people with disabilities were considered as persons unable to perform any social expectation, in other words they were perceived as a problem for society. The policies and the rules of society were dominated by discrimination against people with disability on the ground that they cannot be assimilated or cope with standards of the mainstream society. The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) is an important step towards effective protection and promotion of human rights of disabled persons throughout the world, and even more importantly in the case of Africa:' The promotion and protection of the rights of persons with disabilities reinforces the basic socioeconomic and civil rights guaranteed in the mainstream human rights documents. However, instruments such as the CRPD serve to emphasize and give special protection to the rights of persons with disabilities. The CRPD provides for rights such as the right to life, the right to education, the right to personal mobility, the right to work and the right to freedom of expression and opinion. and access to information and disabled persons shall not be discriminated on the ground of their disability.
Copyright Law as it pertains to machine learning as an artificial intelligence pillar in South Africa
(University of the Western Cape, 2024) Fisher, Amy; Wandrag, Riekie
Globally, artificial intelligence has drawn much interest in the literature in most sectors of the economy. What many scholars have been grappling with is the relationship between artificial intelligence and legislation. Some of these areas include criminal law, labour law, ethics, amongst other areas. Hence, it is no surprise that artificial intelligence also raises issues in copyright law, mainly concerning a critical question about what protection authors and owners have with regard to artificial intelligence and copyright law. Based on an examination of artificial intelligence and copyright law (that is, the existing intellectual property system), this mini-thesis contends that the current legislation is inadequate to keep abreast with the advances and complexity of artificial intelligence. The absence of updated copyright legislation is a serious concern for artificial intelligence authors and owners. This problematic phenomenon presents itself all over the world, such as the United States, the United Kingdom, China and many other countries. Several efforts made to protect the author and owner has rendered ineffective, due to the insurmountable challenge of keeping pace with the rapid advances of technology.
An overview of the employment rights of domestic workers In South Africa
(University of the Western Cape, 2024) Ellis, Gabrielle
This mini thesis will consider the precarious nature of domestic work and the various rights domestic workers have in South Africa. The research is aimed towards establishing how the legislature could improve the legislative rights and remedies that are availed to domestic workers. The mini thesis will also be focusing on domestic workers’ rights in the jurisdictions of Singapore and Morocco in comparison to the South African context. The research will also analyze international laws and conventions regarding domestic workers and whether those laws are implemented in South Africa or can possibly be implemented into the South African labour legislation.
Creating an enabling environment for the application of anti-dumping measures through law reform in Namibia
(University of the Western Cape, 2024) Hinda, Susan Lizette Mbahahiza Katiri
Background: Trade remedies are measures countries can take to address the harm caused by imports that negatively impact domestic industries. These remedies can be divided into three categories: anti-dumping measures, countervailing measures, and safeguard measures. While both anti-dumping and countervailing measures address unfair trade practices, they differ in their specific focus. Anti-dumping measures target exports sold at lower prices than in the exporting country’s domestic market, while countervailing measures address harm caused by subsidised imports. Cohn provides insight into the definition of dumping, explaining that it happens when a company sells its products in an export market at a price lower than what it charges in its home market or below the cost of production. This raises the question of why firms would sell goods below cost. There can be various reasons, including a desire to eliminate competition by driving other parties out of business. This practice raises questions about how dumping should be regulated and whether it reflects a country’s competitiveness.
The representation of persons with disabilities in the South African workforce
(University of the Western Cape, 2024) Davids, Shafiek
This dissertation will examine the ways in which the South African government includes persons with disabilities in the workforce. According to the Commission for Employment Equity, the current statistics show that only about 1% of persons with disabilities are represented on all levels of employment in the South African workforce. The current legislative framework in South Africa relating to the representation of persons with disabilities in the workforce will be outlined and critically assessed to determine whether there has been an improvement or stagnation in fulfilling the obligations placed on the government and its institutions. South Africa has an extremely high unemployment rate; according to Statistics South Africa (Stats SA), the unemployment rate in 2021 was at an all-time high of 34.4% an increase of 1.9% from the previous Quartey Labour Force Survey. By examining the legislative framework, this dissertation will argue in favour of the obligations imposed on the state by both local legislation and international law instruments ratified by South Africa to increase the representation of persons with disabilities in the workforce.
Constitutionalising competition law: the advancement of socio-economic rights through competition law
(University of the Western Cape, 2024) Moate, Josephina Boagelo Mpho; Tinashe Kondo
Competition law is often seen as a specialized field primarily understood and utilized by business lawyers and their clients. This perception may overlook its significance in supporting the socio-economic goals of the new democratic South Africa, as outlined in the Constitution. This research paper explores the potential role of competition authorities in advancing socio-economic rights (SERs) enshrined in Chapter 2 of the Constitution. It questions whether these authorities, with their regulatory powers under the Competition Act, can contribute to promoting access to SERs. The paper examines cases where competition authorities in South Africa have impacted the rights to access healthcare and food. It does not conduct an impact study due to data limitations and focuses on specific cases within these sectors. Using a desktop analysis of relevant cases from the Constitutional Court, Competition Commission, and Competition Tribunal, the paper considers how competition authorities have addressed issues related to healthcare and food access. The findings suggest that competition authorities have addressed cases in prioritised sectors aligned with constitutional rights, aiming to improve and advance access to healthcare and food. Although they are limited in nature, the authorities often leverage public interest considerations (mainly found under the merger control provisions) to achieve these goals. This paper also compares the concept of public interest considerations in South Africa, which are limited in scope, with the more expansive approach taken in Zambia.

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