Magister Legum - LLM (Mercantile and Labour Law)

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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.
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.
A critical analysis of legal practitioners pursuing “hopeless cases” in the South African legal system.
(University of the Western Cape, 2024) Famate, Tinyiko Modjadji Comfort
This research paper investigates the conduct of legal practitioners who appear in matters (act on or defend) in which there are no reasonable prospects of success (hopeless cases). The study focuses on the potential legal and ethical implications for legal practitioners who choose to pursue such cases. Employing a qualitative research approach, this study will conduct an extensive literature review, which includes a critical analysis of the Constitution of the Republic of South Africa, 1996, relevant books, statutory provisions, journal articles, reports from South African legal commissions, case law, chapters, and the foreign legal framework. The findings of this study serve as an informative resource, providing insights that enable legal practitioners to make informed choices during the case selection process. This investigation also contributes to the ongoing debate regarding the Labour Court’s condemnation of legal practitioners for bringing hopeless cases before it.
Digital trade and its discontents: evaluating the impact of the African continental free trade area’s digital trade protocol on the regulatory autonomy of State Parties’
(University of the Western Cape, 2024) Kahumbu, Joanna Katunge
Trade, once conducted over camel caravans along the Silk Road, ships navigating the Cape of Good Hope, and, in more recent times, by cranes unloading containers at vast sea ports, has been fundamentally transformed in the digital age. Digitalisation has redefined the nature of commerce, significantly expanding its scope with the collection and transfer of data now integral to the delivery and provision of digital goods and services. This new scope of trade, formerly referred to as e-commerce, has been termed ‘digital trade’ and has been statistically defined as ‘all international trade transactions that are digitally ordered and/or digitally delivered’. Digital trade has emerged as a dynamic and rapidly growing area of the digital economy with the value of global exports of digitally delivered services reaching US$ 3.82 trillion in 2022 capturing an estimated 54 per cent share of total global services exports and accounting for 12 per cent of total goods and services exports. Together with digitally delivered services, digitally ordered trade is an important component of digital trade and is an increasingly vital way for producers to reach and take orders from customers located domestically or abroad.
Investment promotionin Tanzania: an examination of the legal and institutional framework.
(University of the Western Cape, 2025) Zacharia, Husna Ahmed
Foreign Direct Investment in Africa: The wave of political independence in Africa during the 1960s ushered in a strong desire among leaders to assert economic sovereignty. While colonial economies were open to foreign investments, these investments were primarily beneficial to colonial powers, fostering a deep scepticism of foreign post-independence dominance. Leaders like Julius Nyerere championed self-reliance through policies such as Ujamaa, emphasising socialism, nationalisation, and local empowerment. This cautious approach to FDI prioritised state-led development over external capital, reflecting dismay at neo-colonialism. Whereas these restrictive policies reinforced political independence, they delayed Africa's integration into global markets, contributing to the economic quagmire in subsequent decades.
The interplay between competition and patent laws in relation to access to medicines during future pandemics: a case study of the South African COVID-19 experience.
(University of the Western Cape, 2024) Makwara, Cathrine Ashley
Competition law and its enforcement have become necessary tools in combating global health crises. This is especially true in light of the COVID-19 epidemic, which has made it imperative to increase access to emergency medications. Many nations were forced to rely on pharmaceutical companies to decide the cost and quantity of COVID-19 vaccinations to be supplied. Considering the high number of deaths and infections associated with the pandemic, with the World Health Organisation reporting over 7 million deaths, more could have been done to prevent such mortality had the issue of accessibility of vaccines been resolved at an earlier stage to ensure a balance of the enjoyment of the patents as well as the right to health. One hand of the argument is the need for inventors to recuperate costs incurred in research and development and enjoy the monopoly granted by patents once vaccines have been developed. On the other side of the coin, competition law seeks to regulate any anti-competitive behaviour and it is undeniable that abuse of dominance which has resulted in extreme cases of exorbitant pricing of medication in the pharmaceutical industry needs to be curbed. As a solution, this current study makes specific recommendations that are directed at promoting the access to medicines in future pandemics by balancing intellectual property rights to competition law, drawing lessons from the COVID-19 experience in South Africa.

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