Magister Legum - LLM (Mercantile and Labour Law)

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The tripartite free trade agreement among the EAC, COMESA & SADC as an approach to foster regional integration in Africa - a critical analysis
(Univesity of the Western Cape, 2011) Roggendorf, Armin; Lenaghan, Patricia
The Tripartite Free Trade Agreement among the Common Market for East and Southern Africa (COMESA), the East African Community (EAC) and the Southern Africa Development Community (SADC) was announced in October 2008. It aims to serve two goals. First it complements the broader objectives of the African Union to establish the African Economic Community by 2034 latest. Second it aims to foster intra-regional trade within Africa which is, in parts, still insignificant. Therefore, this thesis will critically analyse the legal and rational frameworks within which the new Free Trade Area aims to operate. Moreover, this thesis will consider the challenges that interfere with fostering regional integration by analysing product categories that are excluded (sensitive products) and by identifying selected non-tariff obstacles to trade.
Granting intellectual property rights on life forms and processes: does it ensure food security? A developing country perspective.
(Univesity of the Western Cape, 2005) Chekol, Abebe Abebayehu; Wandrag, Riekie
Today, we are unfortunately aware of the fact that sending food to underprivileged countries is not enough to solve the problem of malnutrition in the world. The only sustainable solution is to give each and every country the means of taking on the responsibility themselves in order to produce more food, and better food, to feed their people. In this respect, biotechnology offers real solutions. Posted by Monsanto in advertisements published in the French Press 1998, quoted in Robert Ali Brac de la Perriere and Franck Seuret: 2000:56
A critical analysis of the capital gains tax implications on the disposal of cryptocurrencies: an evaluation of possible lessons for South Africa from Hong Kong
(University of the Western Cape, 2025) Sithole, Makungu Duncan; Moosa, Fareed
Cryptocurrencies are internet-based digital currencies or digital representations of value that are not issued by a central bank. They are traded, transferred, and stored electronically, whether by natural or juristic persons, as a means for payment, investment, and other forms of utility, and it exists wholly in the virtual realm. In the South African context, cryptocurrencies are, presently, treated as neither official South African tender, nor are they, as yet widely used as a medium of payment or exchange. Similarly, the South African Revenue Service (SARS) does not yet consider cryptocurrencies as ‘currency’ for income tax and Capital Gains Tax (CGT) purposes. Instead, SARS regards cryptocurrencies as valuable property of an intangible nature. Conversely, the Hong Kong Inland Revenue Department does recognize cryptocurrencies and classify them into three categories, being payment tokens, security tokens, and utility tokens. Payment tokens are used as payment for goods and services. Security tokens provide the owner with interests in a business, such as debt or rights to a share in the profits in that business. Utility tokens give access to specialized products and services, which the company is working on, and thus, the taxation of cryptocurrencies in Hong Kong depends on the type and use of each token. This study shows that, while SARS levies tax on cryptocurrency using the legislative framework provided by the Income Tax Act 58 of 1962 (ITA), in Hong Kong, Capital Gains Tax are not levied on the disposal of any cryptocurrency. The study examines the legal position in South Africa and Hong Kong as to the treatment of cryptocurrencies for purposes of taxation with a view to hypothesizing that SARS ought to adopt an approach akin to that followed by the Hong Kong Tax Authority. The study provides concrete recommendations for the development and enhancement of tax policy in South Africa so far as it concerns cryptocurrency treatment.
Enquiry into what frustrates the efficacy of preferential public procurement as a policy tool for black economic empowerment
(University of the Western Cape, 2011) Beukes, Soraya; Fredericks, Izak
Black Economic Empowerment (BEE) has been a topic of discussion since the dawn of democracy in April 1994. Due to the entrenched inequalities of the past, economic empowerment is very important for the economic growth of the majority of South Africa's citizens. However, significant economic enrichment of black people has not been made, despite, economic success, legislation, state policies and programme interventions. This economic growth is to be realised through the use of preferential procurement as a policy tool for BEE. Whilst sufficient legislation has been enacted to regulate preferential procurement, to favour black people, much still seems to be lacking in the enforcement of the laws in public procurement. Central to the challenges of preferential procurement is the disharmony between the Framework legislation governing preferential procurement and BEE.
E-commerce b2c contracts of necessity: a South African legal perspective on unilateral amendments
(University of the Western Cape, 2026) George, Clayton Rewayne; Kondo, Tinashe
This thesis examines unilateral amendment clauses in South African e-commerce business-to- consumer (B2C) contracts of necessity, focusing on their fairness and enforceability under contract and consumer protection law. It addresses power imbalances in digital contracts where vulnerable consumers, compelled by economic and social needs, have limited alternatives and bargaining power. The study develops a definition of ‘e-commerce B2C contracts of necessity’ which integrates legal doctrine, constitutional principles, and consumer protection concerns and emphasizes contracts that are essential for basic human rights such as life, dignity, healthcare, housing, and education. Using reliance theory, the thesis shows how unilateral amendments undermine consumers’ reasonable reliance on stable contract terms and erodes trust and fairness. It identifies challenges such as complex legal jargon, hidden clauses, vague hyperlinks, and lengthy contracts that impair informed consent, particularly by disadvantaged consumers.
An assessment of section 198 of the labour relations act: problems and possible solutions
(University of the Western Cape, 2011) Lopez, Shehaam; Koornhof, P
Many people in South Africa are employed by temporary employment services.' Unbeknown to them from the time of their employment, they are bound to a three party employment relationship. Like ordinary businesses, TES have a client base to which they provide their employees' skills to when they are needed. Consequently, the prospect of being employed by a TES depends on the availability of work offered by the client base indicated above who happens to be a client of the TES, even though the latter is considered the employer in terms of this relatlonship. It is only when there is availability of work that the TES and the client conclude an agreement to use a particular or group of employees. These employees would then perform the work at the client's workplace and according to its rules. Significantly enough, the Labour Relations Act'is premised on the traditional employment relationship involving two parties: the employer and employee. Throughout the LRA, there are various provisions that regulate the resolution of different issues that may arise in an employment relationship. Yet there are no provisions beside section 198 of the LRA that regulate the different issues that may arise in this unique tri-partite relationship. This then raises the question as to whether or not the LRA protect temporary employees as it protects employees in the traditional employment relationship. In order to answer this pertinent question, three things need to be done. The first is to identify if there are any problems that temporary employees' experience in enforcing the provisions of the LRA. If there are any problems, the issue as to whether or not section 198 of the passes constitutional scrutiny must be explored. Should the said section pass or not pass muster, various solutions would then be offered to ensure that temporary employees rights are enforceable since the use of TES are encouraged given the high unemployment and poverty rate in South Africa.
A review of provincial land-use planning in the Western Cape
(University of the Western Cape, 2005) Abrahams, Farah; De Ville, Jacques
Planning administration in the Western Cape is at a critical juncture. It is faced with having to address planning issues and housing needs whilst at the same time demonstrating through its practices the promotion of environmentally sustainable development. This paper will discuss planning and environmental legislation and the impact that the application of the legislation has on development proposals. Current legislation addresses issues of spacial development in developed areas and new development proposals but lacks the ability to address issues within informal settlements. Although socio-economic factors are not currently considered when assessing the viability of applications, the courts seem to consider these factors. Since new housing settlements are often developed for the poor and industrial developments in close proximity to these areas have direct impact on these individuals, planning could only gain if these factors are taken into consideration.
Double taxation agreements: an assessment of their efficacy in the Equitable allocation of taxing and tax collection rights among State parties
(University of the Western Cape, 2025-12-12) Julius, Leonardo; Moosa, Fareed
This study critically evaluates South Africa’s Double Taxation Agreements with Saudi Arabia and the United Arab Emirates, assessing their effectiveness in achieving an equitable allocation of taxing and tax collection rights. While these treaties successfully mitigate double taxation, the analysis reveals a structural bias favoring residence-state and investment-promoting interest, rooted in OECD model provision, over robust source-state taxing authority. Key treaty features such as tie-breaker residency rules, permanent establishment thresholds and capped withholding taxes on dividends, interest and royalties constrain South Africa's domestic revenue mobilization as a developing capital-importing country. This formal reciprocity masks substantive asymmetries, disproportionately impacting South Africa’s fiscal base while benefiting Gulf states that impose minimal or alternative tax regimes. Judicial confirmation of treaty primacy, alongside administrative limitations and interpretative challenges, further complicates enforcement and revenue protection. By employing doctrinal, comparative, empirical and normative methodologies, the research identifies obstacles in mutual assistance and dispute resolution mechanisms. The study recommends strategic treaty renegotiations, enhanced administrative capacity, taxpayer education and updated cross-border tax collection frameworks aligned with digital economy realities. These measures seek to advance fiscal equity, transparency and sustainable international economic cooperation, contributing to the refinement of international tax law practices.
Unequal pay for equal work: the case for equal pay for the South African women’s senior national football team
(University of the Western Cape, 2025) Gagayi, Mandla; Collier, Debbie
This study investigates the policies and practices of the South African Football Association (SAFA) relating to terms and conditions, and specifically the differences in pay between the senior national teams, Bafana Bafana (men) and Banyana Banyana (women). The study questions whether SAFA’s unequal payment of the men and women’s senior national teams constitutes unfair discrimination in terms of the applicable law.
The right of access to social security as an element of the right to an adequate standard of living in South Africa
(University of the Western Cape, 2025) Smith, Dylan; Basson, Yvette
Social security has been in practice globally for years. The human rights movement which was created after the end of the Second World War, created consensus in the international community that basic social amenities are indispensable for human development. The United Nations recognises that all rights are interrelated, and that the realisation of one of these rights could contribute towards the full realisation of other rights. Therefore, social security contributes directly to the full realisation of the right to an adequate standard of living. The concept of social protection is an international practice used to address national socio-economic issues. The International Labour Organisation (ILO) has defined the concept of universal social protection to include adequate cash transfers for all who need it. The Universal Declaration of Human Rights (UDHR) recognises the right to social security and the right to an adequate standard of living as fundamental human rights.
The legal and regulatory framework on safeguards measures in Tanzania
(University of the Western Cape, 2025) Salum, Hamisi S; Lenaghan, Patricia
The global trade landscape has seen increased interdependence among countries, leading to increased bilateral relations. This has underscored the necessity for an entity to oversee and regulate countries' trade activities. As a result, the World Trade Organisation WTO was established in 1994, superseding the General Agreement on Tariffs and Trade (GATT) formed in 1947 during the Uruguay Round. The WTO governs global trade with a membership of over 164 since 29 July 2016,1 the WTO facilitates smooth trade by eliminating barriers and promoting import and export agreements between nations. The GATT 1994 permits members to establish Preferential Trade Agreements (PTAs), such as customs unions and free-trade areas, as an exception to the principle of non-discrimination.
East African community-European union economic partnership agreement, to be or not to be? Will economic partnership agreement undermine or accelerate trade development within the East African Community?
(University of the Western Cape, 2011) Wambui, Macheru Maryanne
The economic relationship between the African, Caribbean and Pacific group 1 (ACP) and the European Union (EU) formally the European Economic Community (EEC) has a long history that stretches beyond 30 years of Lome and Yaounde Conventions? Formally this relationship started in 1957 when the EU signed an Agreement in Yaounde, Cameroon with the ACP countries'' committing to help the latter in promoting their economic and social development." The Yaounde Convention allowed for non-reciprocal duty free market access of the imports from the ACP countries into the European market. The Convention which had a life span of five years was renewed in 1969 for further five years till 1975 hence Yaounde II Convention." The structure established in Yaounde remains the framework for many aspects of ACP-EU cooperation until to date."
A critical legal and economic analysis of the potential threats and opportunities associated with the outsourcing of e-commerce services in developing countries with specific emphasis on India and selective SADC countries
(University of the Western Cape, 2007) Van Wyk, JW
As the cross-border trade in services increases it is to be anticipated that it could become an important source of economic growth and employment to many countries in the developing world. l) Within context of the international trade in services, it is particularly the outsourcing of e-commerce services that could present attractive developmental advantages to developing countries. In addition to the obvious advantage of creating employment opportunities the educational, social and associated benefits cannot be disputed.2) A useful illustration in this regard is the significant effect that outsourcing in e-commerce has had on the economy of India. India has managed to leverage its comparative advantage in the supply of low-cost and high-skilled labour in the IC'T sector to provide cost-effective outsourcing opportunities to companies in the developed world, especially to the USA.
An evaluation of the parametric amendments of legislation relating to the distribution of retirement benefits upon divorce
(University of the Western Cape, 2011) Wild, Yvette
This thesis will examine the effects of divorce on the benefit payable to a member of a retirement fund, where divorce has occurred before the member has reached retirement age. In particular, parametric (that is, piecemeal) amendments to the relevant legislation will be analysed in order to outline the development of the legislation relating to divorce and the consequent distribution of assets (including retirement savings). The previous and current legal position in South Africa relating to divorce and retirement savings will be set out and critically analysed to determine whether the current position can be regarded as an improvement upon the previous legal position, or whether other and/or new problems in this area have been created. Parametric amendments to relevant legislation have thus far been the subject of many cases in our courts and adjudicative tribunals.
The Impact of the South African constitution on labour law
(University of the Western Cape, 1995) Solomon, Maxwell Charles; Murphy, John
The fact that labour rights have been adopted in our interim constitution' is largely due to a campaign led by COSATU. COSATU's campaign was basically to ensure that labour rights are included in the interim constitution so as to prevent a future democratic government from undermining workers' rights again as was the case under previous apartheid regimes". COSA TU formed an alliance with the ANC and the SACP where it put labour rights on the political agenda of both parties". Workers' alliance with the ANC and the SACP paid off. Both the ANC and SACP were asserting at negotiating forums such as the Constituent Assembly that labour rights should be entrenched in the constitution. Such entrenchment would allow workers to pursue their interests as against the property rights of employers. Labour rights are now specifically guaranteed in sec 27 of the constitution, namely, the right to fair labour practices, the right to form and join a trade union, the right to bargain collectively and the right to strike. Sec 17 provides for a general right to freedom of association and sec 12 provides that workers should not be subjected to servitude or forced labour. Sec 8 provides that workers have the right to equality before the law. In terms of sec 33 of the constitution, however, the rights are subject to limitation where necessary.
Ensuring international confidence in the South African perishable products export industry through regulatory body, the perishable products export control board
(University of the Western Cape, 2014) Levendal, Jill Althe; Lenaghan, Patricia
Primary agriculture, despite its relatively small share of the total Gross Domestic Product (GDP), is an important sector in the South African economy and is an important engine of growth for the rest of the economy. In order to ensure or assist in the growth of the economy, it is imperative to regulate industries and trade. This research paper provides a uruque contribution to an understanding of how internal regulation has a positive impact on the South African economy and particular focus, for purposes of this research paper, will be on agricultural industry, but more specifically the perishable products export industry. To this end the Perishable Products Export Control Act 9 of 1983 (PPEC Act) and Agricultural Products Standards Act 119 of 1980 (APS Act) regulates the perishable products export industry.
Causes of action for dismissal in South African labour law
(University of the Western Cape, 2012) Lekhuleni, James Dumisani; Du Toit, D
For the past eighteen years we have witnessed the dawn of a constitutional dispensation. One of the greatest changes experienced by the South African legal system in modem times has been the enactment of the Constitution containing the Bill of Rights. The Labour Relations Act 66 of 1995 (the LRA) was a product of that Constitution. Most significant was the labour clause, in particular the 'right to fair labour practices'. The Industrial Court established in terms of the Labour Relations Act 28 of 1956, with its power to determine unfair labour practice, played a major role in the development of South African labour law. The Industrial Court ushered in the development of a new labour law system which recognised that employees need protection and that the law of contract is not suited to regulate employment relationship without the creation of a floor of rights for employees. On 11 November 1996, two years after the democratic elections, the legislature established a fresh set of dispute resolution institutions to resolve labour disputes emanating from the LRA. The LRA does not cover the whole sphere of law regulating employer and employee relationships. The focus of the LRA falls on the regulation of collective labour law, the codification of unfair dismissal law and the establishment of dispute resolution institutions. The LRA essentially refers to two types of disputes, namely those referred in the labour legislation and those based on constitutional grounds. The LRA does not regulate disputes emanating from the cornmon law contract of employment. This category of disputes is regulated by the Basic Conditions of Employment Act 75 of 1997. The termination of an employment contract has both contractual and statutory implications. In Fedlife Assurance Ltd v Wolfaardt [2001] 12 BLLR 1302 (SCA), the Supreme Court of Appeal has accordingly found that the LRA did not expressly abrogate an employee's cornmon law entitlement to enforce contractual rights, nor did it do so by necessary implication. The court held that the cornmon law right of an employee to claim for damages for breach of contract was not in conflict with the Bill of Rights. Despite the fact that the LRA provides a remedy, the court held that the employee, whose fixed-term contract has been terminated before its full course, can sue the employer for damages for the remainder of his/her contract. The Labour Court in Mangope v SA Football Association [2011] JOL 26612 (LC) has also recently confirmed that in general, the remedies of an employee whose employment contract has been terminated by an employer can be found in either the concept of breach of contract under the common law, or in the unfair labour practice concept under the LRA. The Labour Appeal Court in Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC) has also found that an employee whose fixed-term contract had been terminated prematurely on the grounds of the employers' operational requirements had been dismissed without a fair reason. This conclusion was based entirely on the finding that at cornmon law, an employer may not terminate a fixed-term contract in the absence of an agreement to that effect or material breach by the employee and that the LRA has not amended that principle. A dualistic model has emerged, one based on statute giving effect to the basic right to fair labour practices as contained in the Constitution and on the other hand the contract of employment. The thesis analyses the processes for the resolution of labour disputes, in particular unfair dismissal disputes from the CCMA to the Constitutional Court and further investigates remedies available to a dismissed employee under the common law and the LRA and how these remedies interact with one another. It traverses the problems experienced by the imbrications or the interface between the common law and the LRA and how our courts in a number of cases upheld the common law remedies notwithstanding the availability of remedies in terms of the LRA. It also demonstrates that South African courts have found it difficult to draw a line between competing LRA and common law remedies in dismissal cases. The thesis also surveys the law of dismissal in the UK, Australia, Canada and the US, which have mixed legal systems that are based both on the common law and labour legislation. It also focuses on the labour law systems of these countries in a quest to find a solution to this conundrum. The thesis also looks at the law of dismissal in Germany where the labour courts have exclusive jurisdiction in all labour matters and suggests that South Africa can draw lessons from their model and improve our labour law system. The thesis concludes by making far-reaching suggestions for the resolution of this problem. The thesis concludes by making proposals for a comprehensive labour statute that will regulate all employment-related matters. It also proposes that in terms of that statute, once a remedy is provided, that remedy should be the exclusive remedy of the employee. It also suggests that, as in Germany, the Labour Courts must be clothed with exclusive jurisdiction in all labour matters.
TRIPS and the WTO August 2003 deal on medicines: is it a gift bound in a red tape to developing countries?
(University of the Western Cape, 2003) Enga, Kameni Innocent; Wandrag, Riekie
This study evaluates the benefits and the problems of implementing the World Trade Organisation's (WTO) decision on the implementation of Paragraph 6 of the Doha Declaration by Developing country members. A lot has been said about the implementation of the said WTO decision by Third World countries. While some writers contend that the deal on the implementation of Paragraph 6 of the Doha Declaration has been beneficial to Developing Country members, others postulate that it has not brought any meaningful change to the health plight of citizens of these countries and has worsened instead of ameliorating their condition.' Therefore, the purpose of this study shall be thus: a. Discuss the reasons for the incorporation of a multilateral agreement on intellectual property within the World Trade Organization (WTO) framework b. Analyse Paragraph 6 of the Doha Declaration stating the flexibilities it brought to certain provisions of TRIPS. c. Evaluate the problems encountered, and the benefits accruing to African countries as a result of the WTO 30 August decision on the implementation of Paragraph 6 of the Doha Declaration and investigate whether the costs have been more than the benefits or vice versa.
Towards facilitating decent work for all in the Fourth Industrial Revolution: an exploration of transitionary schemes for workers in South Africa
(University of the Western Cape, 2025) Mohamed, Firoza
The Fourth Industrial Revolution (4IR) is transforming workplace dynamics and reshaping the employer and employee relationship. Organisations must harness advanced technologies while addressing risks, which calls for amendments to labour legislation to safeguard workers’ rights, preserve industrial relations, and stimulate innovation. In South Africa, these challenges are heightened by unemployment, inequality, and skills deficits among youth and marginalised groups. Furthermore, the transformation of advanced technology such as automation, digitalisation, and artificial intelligence (AI) displacestraditional jobs while creating new opportunities, underscoring the urgency of reskilling. However, vulnerable sectors such as mining, manufacturing, and agriculture are most affected, while platform-based work exposes gaps in workforce regulation. Despite existing labour laws - including the Labour Relations Act 66 of 1995, Basic Conditions of Employment Act 75 of 1997, Employment Equity Act 55 of 1998, and Skills Development Act 97 of 1998, remain rooted in a pre-digital era and inadequately address non-traditional work. This study argues for reform by redefining ‘employee,’ modernising skills development, and extending protections to gig workers through bodies such as the CCMA. However, a human-centred, rights-based approach is essential to uphold dignity, equality, and social justice in the evolving world of work under the 4IR.
An analysis of South Africa’s efforts to realise the right to health through vaccine access during Covid-19
(Univeraity of the Western Cape, 2025) Hermans, Simone
The COVID-19 pandemic critically tested governments worldwide in upholding the right to health, particularly through equitable access to vaccines. In South Africa, where the right to health is constitutionally enshrined, the pandemic exacerbated existing inequalities and placed significant strain on health systems and policy frameworks. The global pandemic emerged in China in December 2019 and reached South Africa in March 2020. South Africa’s response was required to give effect to the International Covenant on Economic, Social and Cultural Rights, specifically Article 12, and particularly Article 12(c), which obligates State Parties to take necessary steps towards the full realisation of the right to health, including the prevention, treatment, and control of epidemic, endemic, occupational, and other diseases. The right to treatment encompasses access to vaccines. However, vaccine access was inequitable both internationally – where high-income countries secured vaccines first – and domestically, where initial distributions favoured urban centres. South Africa had previous experience managing a pandemic, notably HIV/AIDS. Lessons from both the HIV/AIDS and COVID-19 pandemics should inform future efforts to achieve health equity in subsequent health crises. Using a qualitative socio-legal approach, this study examines the legal and policy framework underpinning the right to health, assesses the equity and inclusiveness of vaccine procurement and distribution strategies, and evaluates the effectiveness of government interventions and partnerships, including those with international actors such as COVAX and the private sector. This study critically analyses South Africa’s efforts to realise the right to health through its COVID-19 vaccine response

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