Magister Legum - LLM (Mercantile and Labour Law)

Permanent URI for this collectionhttps://hdl.handle.net/10566/10403

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The extent to which South African law protects women with disabilities against unfair discrimination in the workplace
(University of the Western Cape, 2025) lourens, courtney
The legacy of apartheid has created a deeply unequal society in South Africa. The Constitution of the Republic of South Africa sought to build a united and democratic society, whilst ensuring that each citizen is equally protected by the law.1 A constitutional mandate is therefore imposed on the State to ensure that the right to equality is realised and that the most marginalised members of society are adequately protected.2 Research shows that women with disabilities are still unfairly discriminated against in the workplace. To give effect to the equality clause of the Constitution of the Republic of South Africa, the Employment Equity Act 55 of 1998 was enacted that endeavours to ‘promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and implement affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workplace.’4 The objective of this research paper is to examine the South African legislative framework to determine the extent to which the relevant provisions protect women with disabilities in the workplace. In addition, the flaws within the current legislative framework are identified. The theory of intersectionality is used as a lens through which the relevant law will be assessed. A comparison is made between the legislative frameworks in Canada and South Africa governing unfair discrimination to determine whether South Africa can learn any lessons from the legislative framework that exists in Canada when it comes to protecting women with disabilities.
Corporate governance in the fourth industrial revolution: how can blockchain technology be used to solve corporate governance problems?
(University of the Western Cape, 2024) Naidoo Tristan; Wandrag Riekie
Every industrial revolution has brought about drastic change and a quantum leap in human development, however, those who benefit the most from these changes are ones who take the first step in its adoption. Similarly, companies and organisations that adopt these new technologies will be the leaders and will set precedent for the adoption.1 The blockchain can serve three functions which benefit corporate governance: a public register, exchange for assets, as a way to establish complex organisations and governance systems.2 However, block chain protocols are developed to be decentralized, this causes various governance problems, which usually stem from conflicts of interest among the participants.3 With blockchain technology an organisation will be able to enhance its accountability, transparency, and security. This paper explores the applicability of blockchain into corporate governance. First, all the components of blockchain is discussed with particular focus on what it can provide. Then this paper will explore corporate governance frameworks across three jurisdictions. The three jurisdictions were chosen to contrast their levels of corruption. After having identified the root cause to corporate governance failures, this paper will explore the various use cases of blockchain to analyse how blockchain can actually be used in corporate governance. Thereafter, this paper will discuss recommendations for adoption.
Domestic investment in primary agriculture in South Africa
(University of the Western Cape, 2026) Small, Danielle Francine
In recent years, the South African farming sector has been experiencing important restructurings that pertained to the industrialisation of agriculture.2 These restructurings can be attributed to the development of farm financing and investment instruments by the increasing engagement of corporate entities interested in financing the sector in return for ownership of the land by incorporating primary production into their portfolios.3 When examining the performance of the South African agricultural sector and the policy reorganisation, it is necessary to take heed of its historical context. It was during the 1950s and 1960s that the government invested in research and development, infrastructure, extension services, direct subsidies for conservation works and debt relief, which grew the commercial sector’s agricultural output with guaranteed markets and prices for most farm commodities.4 However, by 1979 the economy had moved into a recession and economic policy prioritised its deregulation of the financial markets in South Africa.5 These events birthed the process of liberalisation in trade and deregulation of agriculture that was only partially completed by the early 1990s.6 The undeniable consequences of these transformations are the effects to the family farmer’s status as landowner to now being merely a service provider.7 In response to the failing land reform projects and in the absence of alternative successful investments and production models, these transformations are of course supported by the South African government.8
Gender discrimination in the South African workplace: a critical analysis
(University of the Western Cape, 2026) Dlomo, Nokwanda Zoleka
The South African Constitution guarantees the right to equality and protects everyone from unfair discrimination. In terms of right to equality contained in section 9 of the Constitution of South Africa, no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3).1 Section 9(4) of the Constitution further directs that “national legislation must be enacted to prevent or prohibit unfair discrimination”.2 The Employment Equity Act 55 of 1998, as amended was promulgated to give effect to section 9 of the Constitution. Research shows that females are still subjected to gender discrimination. This study contains a discussion on the laws governing gender discrimination in South Africa. Reference is made to the relevant constitutional provisions and the statutory provisions that aim to protect employees from gender discrimination. A comparison is made between the laws governing gender discrimination in South Africa, Canada and Germany to determine whether there are any lessons that South Africa can learn from Germany and Canada. The purpose of the study is to determine the extent to which the South African legislative framework protects female employees against gender discrimination and to determine whether the provisions governing gender discrimination in South Africa should be amended and/or supplemented. This is done by examining case law, the provisions contained in statutes and the contents of journal articles.
Towards the formalisation of artisanal and small-scale mining in South Africa
(University of the Western Cape, 2026) Langa, Sinovuyo Unam
Artisanal and small-scale mining (ASM) plays a significant role in South Africa’s mineral economy by providing livelihoods to many who operate outside the formal mining sector. However, despite its contribution, the occupational health and safety (OHS) of these miners remain poorly regulated and often overlooked in existing labour and mining legislative frameworks. Current literature and legislation tend to address large-scale mining operations, leaving a gap in understanding how existing OHS frameworks apply to the informal or semi-formal ASM sector. This research seeks to bridge that gap through a doctrinal analysis of relevant legislation, case law, and policy instruments. The research identifies key shortcomings in the regulatory framework and proposes policy reforms aimed at strengthening OHS protections for artisanal and small-scale miners in South Africa.
The income tax resident status of internet-based companies: when is South Africa their place of effective management?
(University of the Western Cape, 2023) Nathaniel, Bradwin Joseph
In terms of the Income Tax Act 58 of 1962 (‘ITA’), taxpayers are liable to tax in the Republic of South Africa (‘SA’) on their worldwide revenue if they satisfy the test for residency within the meaning of the term ‘resident’ in s 1 of the ITA. Companies and other juristic taxpayers are ‘resident’ for income tax purposes in relation to a particular year of assessment if, for example, its ‘place of effective management’ is located in SA for that period. A key problem associated with the term ‘place of effective management’ which affects its application in practice, is that it is undefined in the ITA. Therefore, its meaning is open to interpretation and, possible, manipulation. The precise meaning of ‘place of effective management’ is particularly relevant to electronic commerce on the world wide web carried on by internet-based companies. To address the problem arising from the uncertainty of the scope and ambit of the term ‘place of effective management’ for ITA purposes, this thesis provides a comprehensive analysis of this term and its probable meaning in the context of the ITA.
An exploration of the conduct of business legal and regulatory frameworks for cryptoassets in South Africa
(University of the Western Cape, 2025) de Jager, Pieter Christian
Cryptoassets, also commonly called cryptocurrencies, are among the many fintechrelated financial products popularised during the 2008 global financial crisis. They offer a decentralised system of value transfer, independent of central banks or governmental authorities. However, their unconventional nature creates significant risks, making proper financial regulation essential. This mini-dissertation focuses on the conduct of business regulation of cryptoassets in South Africa, analysing existing laws such as the Financial Advisory and Intermediary Services Act, the Financial Sector Regulation Act, and the proposed Conduct of Financial Institutions Bill, and evaluating their applicability to cryptoasset service providers. It is argued that the current conduct of business framework lacks the specificity needed to manage the risks cryptoassets present. The EU’s Markets in Crypto-Assets Regulation (MiCA) is used as a case study, as it offers a dedicated legal framework that balances innovation with consumer protection and market integrity. The research also considers the recommendations of the Intergovernmental Fintech Working Group, which call for a risk-based, activity-focused regulatory approach. This mini-dissertation concludes that South Africa would benefit from enacting a dedicated and uniform legislative framework specifically tailored to the conduct of business regulation of cryptoassets. A law modelled on MiCA would reduce legal uncertainty, promote consumer protection, and support innovation in the cryptoasset market
The use of social media sites to obtain information on job applicants in the recruitment process
(University of the Western Cape, 2025) Marman, Abongile
The Constitution of the Republic of South Africa provides for the right to privacy. This constitutional right includes the right not to have one’s person or home searched; one’s property searched, and one’s possessions seized. In addition, the right to privacy includes the right not to have the privacy of communications infringed. To give effect to the constitutional right to privacy, the legislature has enacted the Protection of Personal Information Act 4 of 2013 that is aimed at protecting a person’s personal information. The South African Constitution also provides for the right to access to information. The constitutional right to access to information gives a person the right to access any information held by the State or any other person, that is required for the exercise or protection of any rights. To give effect to the constitutional right to access to information, the legislature enacted the Promotion of Access to Information Act 2 of 2000 which enables requesters to gain access to information held by the State and/or private bodies. Research shows that the use of social media background checks during the recruitment process has increased over the past decade. This study consists of a discussion on the practice of social media background checks and the legal issues surrounding it. This study consists of an examination of the laws in South Africa that are relevant when it comes to social media background checks. This study contains a discussion on the South African laws governing the privacy of job applicants as well as the laws relating to access to information. The rights of job applicants that may be violated in circumstances where social media background checks are conducted during the recruitment process, are discussed.
An analysis of aspects of the consumer protection framework for mobile money services in Zambia
(University of the Western Cape, 2025) Mwenda, Joseph Mambwe
This mini-dissertation examines the consumer protection framework for mobile money services in Zambia. It identifies gaps in the current framework and highlights areas for reform to strengthen consumer protection for mobile money users. Mobile money has played a key role in advancing financial inclusion in Zambia. However, its rapid growth has outpaced the development of adequate consumer protection measures, exposing users to potential exploitation and financial risks. The study adopts a qualitative research approach, using secondary data and legal sources to evaluate Zambia’s consumer protection framework for mobile money services. It highlights key gaps in financial education, dispute resolution mechanisms, transparency, and overlapping jurisdiction among regulators such as the Bank of Zambia (BoZ), the Zambia Information and Communication Technology Authority (ZICTA), and the Competition and Consumer Protection Commission (CCPC). Drawing lessons from South Africa’s Twin Peaks regulatory model and the Southern African Development Community (SADC) Mobile Money Guidelines, the mini-dissertation recommends adopting a principles-based regulatory framework, strengthening coordination among regulators, and establishing dedicated consumer protection measures such as an ombudsman for dispute resolution. Additionally, it emphasises the need for enhanced financial literacy programmes and standardised disclosure requirements to mitigate information asymmetry. In addressing these gaps, Zambia can institute a more secure, transparent, and inclusive mobile money ecosystem, aligning with international best practices and sustaining the benefits of digital financial services for its population.
Examining the challenges and strategies of intellectual property management in technology startup companies in South Africa
(University of the Western Cape, 2025) Mahamba, Zibele Theophylus
Intellectual property (IP) refers to the fruits of original human creativity and ingenuity that qualifies for legal protection. Types of IP include patents, copyrights, trademarks, designs, and trade secrets and confidential information. Research has shown that effective management of IP improves business performance and competitiveness, more especially for startup companies. Startup companies are newly formed companies with an objective of developing a unique product or service, bringing it to the market, and making it irresistible and irreplaceable for customers. It is even more crucial for technology focused startup companies to effectively manage their IP portfolios because of the competitiveness of the technology market. Literature reveals that there is consensus amongst researchers about the impact of IP management on performance of business entities. It has also been suggested that larger businesses tend to use formal ways of IP protection than startup or smaller businesses due to various constraints which smaller business are subjected. Research have shown that smaller businesses opt for informal ways of protecting their IP such as trade secrecy but according to the researchers, evidence shows that this approach yields below average business performance. This research studied the challenges to, and strategies of IP management in technology startup companies in South Africa. The research sought to determine how best technology startup companies in South Africa can manage their IP in order to get the best value out of their intangible assets. The study utilised doctrinal research methodology, it analysed primary and secondary sources of law. It was found that South African technology startup companies lack the understanding of IP and the benefits associated with it. Furthermore, they do not have sufficient financial resources to invest in the protection of IP. The study recommends that South African technology startup companies should use cost control strategy to manage IP in order to get the best value.
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.

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