Magister Legum - LLM (Mercantile and Labour Law)

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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.
Copyright law as it pertains to machine learning as an artificial intelligence pillar in South Africa
(University of the Western Cape, 2024) Fisher, Amy
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.
A case for a legal and regulatory framework for cryptocurrency transactions in Kenya
(University of the Western Cape, 2024) Muthoni, Esther Nduta
Background: Lately, there has been a surge in the popularity of cryptocurrencies, also referred to as digital currencies. The emergence of virtual currencies like Bitcoin and Ethereum has disrupted the market and led to widespread speculation that cryptocurrencies may eventually replace traditional paper currency. The genesis of cryptocurrencies can be traced back to the global financial crisis of 2008. The inaugural cryptocurrency, Bitcoin, was introduced in 2009 by an anonymous entity known as Satoshi Nakamoto. These digital currencies are exchanged using blockchain technology. Notably, cryptocurrencies like Bitcoin function independently of intermediaries such as banks. The underlying blockchain technology operates with a high degree of anonymity, in contrast to banks, which require the disclosure of personal information, thus safeguarding the privacy of users. Consequently, individuals transacting in cryptocurrencies can do so without revealing their identities. Cryptocurrency is a virtual currency that uses cryptography as a security feature to prevent forging.6 One of the main features of cryptocurrencies is that they are not issued by central banks and are fully decentralized. Cryptocurrency is a digital representation of value that is digitally traded and also functions as a medium of exchange, a store of value, and a unit of account. However, some scholars argue that as a unit of account cryptocurrency is unreliable due to high volatility.
Examining the role of the African medicine agency within the framework of the African continental free trade area as a means of addressing vaccine production in Africa
(University of the Western Cape, 2023) Brown, Teri Francis; Lenaghan, Patricia
The World Health Organisation (WHO) proclaimed the coronavirus disease of 2019 (Covid19), which was brought on by the SARS-CoV-2 virus, to be a pandemic in March 2020. By late June 2022, there had been 540 million confirmed cases of Covid-19 worldwide, with more than 6.3 million fatalities. In the absence of effective treatments and vaccinations for Covid19, the focus across nations and continents was originally on the implementation of public health strategies to try and slow down the virus' transmission and its subsequent effects on morbidity and mortality. There was a significant demand for efficient immunisations to stop the virus from spreading. As lockdown restrictions were lifted, several vaccines were approved based on their antigenic responses to Covid-19. The rollout of vaccines in Africa took place during the first quarter of 2021. Egypt was the first African nation to start immunisation on 24 January 2021, followed by South Africa on 17 February 2021 and Zimbabwe on 18 February 2021. Other countries, apart from Tanzania, introduced their Covid-19 vaccines between March and April of 2021. The majority of the continents supplies of vaccines came from multilateral organisations, non-governmental organisations, and higher income economies like the United Kingdom and the United States of America.
A critical examination of the legal ambiguities surrounding labour tenants in terms of the Land Reform (Labour Tenants) Act
(University of the Western Cape, 2024) Gabriel, Bronwyn Amor; Fick, Sarah
The history of South Africa includes the recognition of labour tenants with the numerous enactment of legislation.9 The Land Reform (Labour Tenant) Act (LTA) was enacted to redress the past injustices suffered by labour tenants.10 However since the enactment it only had one amendment, which did not address the pertinent issue namely the definition of a labour tenant. Loosely defined a labour tenant is a person who has land, grazing and tenure rights on the land of another, subject to working on such land.11 The courts have explored various approached to interpret this definition and have caused inconsistency.12 If a claimant falls short of the definition he or she is disqualified from all benefits deriving from the LTA.13 Therefore placing this issue in the hands of the courts is an injustice to labour tenants. This mini dissertation will explore whether the LTA is affording enough protection to labour tenants with its implementation and interpretation of its provisions. The LTA will further be compared to previous legislation that governed labour tenants on farms and the Land Tenure Security Bill14 proposed by the Department of Rural Development and Land Reform (DRDLR). Studies of the landmark case law will be discussed to determine which interpretation of the definition of a labourtenant affords more protection.
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.
Protection of state parties’ rights under the dispute settlement mechanism of the African continental free trade agreement: Lessons from the World Trade Organisation
(University of the Western Cape, 2024) Kromah, Abraham Zaqi; Lenaghan, Patricia
This study examines the effectiveness of the dispute settlement mechanism of the African Continental Free Trade Area (AfCFTA DSM) as codified in the Protocol on Rules and Procedures for the Settlement of Disputes (AfCFTA DS Protocol). The primary focus is on whether the AfCFTA DS Protocol ensures that an aggrieved State Party can pursue dispute resolution to a definitive conclusion without it being unfairly stalled or terminated. Two key provisions of the AfCFTA DS Protocol, the decision-making requirement for the establishment of Panels and the decision-making requirement for the establishment of the Appellate Body (AB), are investigated. The study draws a comparative analysis of the provisions of the AfCFTA DS Protocol with the Understanding on Rules and Procedures Governing the Settlement of Disputes of the World Trade Organisation (WTO DSU). The study identifies some gaps in the provisions of the AfCFTA DS Protocol and suggests recommendations for improving the provisions to facilitate the protection of the rights of State Parties under the AfCFTA DSM.
Examining the interrelationship between competition law, the allocation of fishing rights, and transformation in South Africa’s fishing industry
(University of the Western Cape, 2024) Ranchod, Sunil; Ndlovu, Precious
The fishing industry in South Africa is distinguished by the various species of fish that can be caught and by the scale of operations required to undertake the various type of fishing activities. Furthermore, the industry is broadly divided into the commercial sector and the small-scale sector. Most of the commercial fishing takes place in the Western Cape. The HDST fishery and the SMP are the largest commercial fisheries and are the largest contributors to employment figures in the industry. The main body of legislation governing the fishing industry is the MLRA, and has, as one of its objectives, the transformation of the industry by broadening access to the industry. This means addressing past imbalances and broadening participation of HDPs in the fishing sector. The fishing industry is also a strategic sector for food security and employment. The Competition Act and the MLRA, not only intersect by virtue of commercial and small-scale fishing qualifying as economic activities, but both statutes have public interest or transformation objectives. The transformation of the fishing industry is seen as a constitutional and legal imperative. During the process of applying for commercial fishing rights, one of the main criteria is the transformation of the applicant, which carries a high weighting in the scoring process. Since the inception of the MLRA in 1998, there has been significant transformation in the fishing industry through the various fishing rights allocations process.
Creditor protection and the related party financial assistance provisions in the Companies Act 71 of 2008
(University of the Western Cape, 2023) Vilanculo, Gladys; Olivier, Etienne
This mini-thesis investigates whether s 45 of the Companies Act 71 of 2008 provides adequate protection to creditors in related party transactions. Protecting creditors in such transactions is essential, as it instils confidence in their willingness to lend money to companies for day-to-day operations, with expectation that these loans will be repaid on time. This paper will analyse the amendments introduced by the Companies Act 71 of 2008 which shifted from prohibitive measures outlined in the Companies Act 61 of 1973 regarding financial assistance to related parties. In addition, the paper will analyse how the new approach balances the interests of the parties involved with the company and prevents the abuse that may arise in related party transactions. To achieve this, the thesis will explore the requirements that must be satisfied before providing financial assistance to related parties, as well as the remedies the Act imposes to protect the company and third parties when directors provide financial assistance in violation of s 45 of the Act. Additionally, the paper will offer recommendations for potential amendment to s 45 of the Act. The methodology employed includes a comprehensive review of relevant literature, legislation and an analysis of case law.
The prevention of unconscionable abuse of the separate personality of the company through corporate governance, business ethics and ubuntu
(Universty of the Western Cape, 2024) Mkwanazi, Thabiso; Olivier, Etienne
There seems to be a disconnection between South Africa's transformative Constitution and the canons of private law which had been shaped, particularly through our Roman Dutch tradition and then adulterated by decades of apartheid. Ubuntu has been far less welcomed in the field of private law than public law.1 Davis affirms that Ubuntu and private law remain a bridge away.2 If a company’s shareholders are shielded from both financial and ethical liability, and the corporation as a fictional legal ‘person’ does not have a psychology amenable to moral regulation, that leaves only the real human beings within organisations.3 At the heart of this problem of violation is said to be how to achieve a balance between the power of companies and their proper accountability.
Obesity and overweight discrimination in the South African workplace
(University of the Western Cape, 2023) Diedericks ,Amy; Huysamen, Elsabe
This research will focus on weight-related unfair treatment claims made by employees within the employment realm. The study will focus on protection available, if any, for employees in the South African workplace against weight-related unfair treatment claims, specifically in the form of unfair discrimination and unfair dismissals. South Africa does not have any labour laws which explicitly prohibit discrimination against weight, and neither does the Constitution of the Republic of South Africa or the Employment Equity Act (EEA) list weight as a protected ground. This thesis will also take a comparative view of the approach to such issues in the United States of America in an attempt to see what South Africa can perhaps learn from the approach adopted in the USA.
Reforming the approach to mediation legislation in South Africa: a comparative analysis
(Universty of the Western Cape, 2023) Naidoo, Verusha; Huysamen, Elsabe
The Constitution of the Republic of South Africa, 1996, is the cornerstone of the country's legal framework, establishing fundamental human rights, including the right to access to justice. Section 34 of the Constitution unequivocally states that every individual has the right to a fair and public hearing before a court or an independent tribunal. This right is seen as an inherent constitutional guarantee, reflecting South Africa's commitment to democracy and justice. However, the South African civil justice system grapples with persistent challenges and operates under considerable strain. Delays in case resolutions, exorbitant litigation costs, uncertainty surrounding outcomes, and the intricacies of the legal process have cast a shadow over the system. The proliferation of cases, leading to overcrowded court dockets, has placed a significant impediment on individuals' access to justice. Alternate Dispute Resolution (ADR) encompasses a gamut of informal dispute resolution methods outside the conventional court system. Among these, mediation, arbitration, and conciliation stand out in South Africa. Mediation, in particular, emerges as a valuable ADR tool, providing a platform for parties to resolve disputes through a neutral third party, fostering confidentiality, and voluntary engagement. In contrast to other ADR methods, mediation refrains from determining right or wrong; instead, it aims to nurture mutual understanding and the acceptance of differences.
The infraction of the right to dignity on social media: the liability of the group administrator and the commenting users
(Universty of the Western Cape, 2022) Okika, Emmanuel; Kondo, Tinashe
Background: In recent times, it has been demonstrated that a huge chunk of the world’s population is on some form of social media. It is estimated that between 4.6 and 5 billion people out of the world's population use social media. Such platforms include WhatsApp, Instagram, Twitter and Facebook. Of these, Facebook has the biggest following, boasting of an estimate of over 2.9 billion monthly active users (as of January 2022). WhatsApp, as a cross-platform instant messaging service, is Facebook’s closest competitor (although now owned by Facebook), frequented by more than two billion monthly active users. Instagram and Twitter follow behind WhatsApp with figures of 1.48 billion and 436 thousand active users respectively.
Understanding and resolving corporate governance in banks and financial regulation twelve years after the crisis in the United States of America and Europe
(University of the Western Cape, 2024) Rundaba, Tanaka; Wandrag, Riekie
Over the past years, there have been global financial and corporate crises that have occurred. Crises have arisen as a consequence of the consistent influence of two factors, namely, poor corporate governance and regulatory mechanisms. In the last forty years crises such as the Savings and Loan Crisis of the1980s and 1990s, the junk bond crash of 1989, the Asian financial crisis of 1997 and 1998 and the dotcom bubble of from 1999 to 2000 all exhibit a high degree of commonality. All appear to be characterised by excessive exuberance poor financial practices by those who managed the financial institutions, poor regulatory oversight, fraudulent accounting, herd mentalities and, in many cases, a sense of infallibility. William Rhodes, the author of Banker to the World, describes the phenomenon as a common theme of the propensity of countries and markets for believing that they are different in the sense that they would be immune to bank failures that would result to a financial crisis.
Directors’ duties and the race to incorporate corporate social responsibility into company activities in South Africa
(University of the Western Cape, 2024) Maziya, Thembelihle Precious Funekile; Olivier, Etienne
The principle of good corporate governance denotes that a company’s board of directors should not only look after the interests of shareholders but also of other stakeholders when managing the company. The obligation of taking care of stakeholder interests can be enforced through Corporate Social Responsibility (CSR). For this to happen, the board of directors would have to incorporate CSR into company activities. In South African law, the duties of the board of directors as the drivers of the company do not explicitly include taking care of stakeholder interests but require directors to act in the best interests of the company. This leaves the implementation and inclusion of CSR into company activities at the discretion of the board of directors, based on the prevailing interpretation of the ‘best interest of the company’. The lack of guidance in the scope of directors’ duties to look after the interests of stakeholders may weaken a company’s corporate social responsiveness. This study seeks to investigate whether the duties of directors should be amended and couched in a manner that explicitly includes looking after the interests of stakeholders. In achieving the forgoing aim, it will study and analyse the directors’ duties as envisaged in the Companies Act 71 of 2008 (the Act) to determine whether directors have the mandate to incorporate CSR into company activities. It will further investigate whether the duties of directors under the Act are adequate to promote the inclusion of CSR in board strategy and company activities
The regulation of social media content personalisation: An international human rights perspective
(University of the Western Cape, 2023) Lewis, Clifford Pierre; Kondo, Tinashe
This mini-thesis critically examines the extent to which existing international, regional, and domestic legal frameworks provide effective mechanisms for preventing social media content personalisation from violating Article 25(b) of the International Covenant on Civil and Political Rights. Through a comprehensive analysis of human rights law and emerging cyber law, the study explores the complex interplay between psycho-social patterns of engagement, social media algorithms, and the human right of democratic participation. The research employs historical, analytical, and comparative methodologies, and draws on literature from law, psychology and technology to evaluate legal instruments and enforcement mechanisms across international, regional, and domestic contexts. It identifies significant gaps in current frameworks, including challenges related to the inter-actor interconnectedness of human rights in cyberspace, jurisdictional issues arising from the borderless nature of social media, and evidentiary difficulties in establishing direct links between algorithmic content curation and human rights violations.
China in Africa: neocolonialism or mutual relationship?
(University of the Western Cape, 2024) Msibi, Nombuso; Wandrag, Riekie
As China’s investment in Africa continues to show unprecedented growth, 1questions are being raised about many aspects, including the infrastructure for ordering economic relations. The principal legal instruments that govern China-Africa investment relations are Bilateral Investment Treaties. In December 1997 the People's Republic of China (PRC) and the Republic of South Africa (RSA) entered into an agreement that came into force in January 1998. South Africa–China relations are developing at a steady pace, from the onset of formal diplomatic ties in 1998 to the multi-faceted partnership we see today. Its various elements include historical links, diplomatic relations, multilateral cooperation, trade and investment, and public media engagement. At the same time, there are differences between the two countries that continue to shape ties and distinguish them from China’s relations with other African countries. South Africa is a diversified economy with relatively strong institutional structures and is home to a vibrant civil society; China is seen as a key competitor in sectors South Africa views as strategic, as well as being an investor in resources that enjoy a favourable trade balance. Sharing a similar global vision, the two emerging countries are working towards closer strategic cooperation that takes account of the structure of bilateral economic ties, domestic diversity and overlapping interests.

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