Magister Legum - LLM (Mercantile and Labour Law)

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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.
Cross border tax assistance as a framework for revenue mechanism
(University of the Western Cape, 2023) Mvangeli, Nonkcubeko; Davis, Dennis
A national tax authority i.e., SARS has a wide range of powers at its disposal to collect taxes that are not paid or on time or in their full amount within the borders of South Africa. The issue arises when a taxpayer leaves their jurisdiction without settling the tax debt or has no asset within the jurisdiction that may serve to recover the tax debt. Tax authorities across the globe have thus come up with measures to ensure effective collection of taxes in response to the possibility that taxpayers may avoid paying their tax debts. The initial step is therefore to request for assistance from a foreign tax authority to collect the taxes due. The process of cross-border tax assistance is a significant and necessary one in ensuring the recovery of tax debts from a foreign government. As means of addressing the threat, South Africa introduced section 93 of the Income Tax Act which was later repealed by section 185 of the Tax Administration Act in the assistance of recovering of tax debts from a foreign government. This provision is however subject to the fact that there ought to be an international tax agreement concluded between South Africa and the foreign government. Recent cases show cooperation and assistance between SARS and foreign tax authorities in the enforcement of outstanding taxes and indicates an increase in international effort s to prevent efforts of taxpayers avoiding paying their taxes.
An assessment of the laws that aim to protect employees against discrimination on the ground of disability: a comparative analysis
(University of the Western Cape, 2023) November, Kerishnie Delicia; Van De Rheede, Jeannine
South Africa is known for its history of unfair discrimination. During apartheid persons with disabilities, women and black people were subjected to unfair discrimination and research shows that this is still the case. Disability discrimination in South Africa has become a pressing concern, not only for the government but also for the general public. In Smith v Kit Kat Group (Pty) Ltd the Labour Court held that: ‘The simple point is that [when] it comes to protection against discrimination in the case of a disability, it is of little relevance what the employee may think about his or her ability to fulfil the obligations and duties of the position. It is about what the employer perceives the disability to cause. Once the employer thinks that because an employee had a disability and this disability impacts on the employee’s ability to do the job, the discrimination protection against [persons with disabilities] must apply.’ The first democratically elected South African government realised the need to redress the injustices caused by the apartheid regime. This included employment opportunities for persons with disabilities. The desire of the government was to create access to labour markets for all South Africans. There was also a need to enact laws to eliminate inequalities and unfair discrimination in the workplace. This gave rise to the inauguration of the Constitution of the Republic of South Africa, 1996.
A reasonable expectation of indefinite employment upon the expiry of a fixed-term employment contract
(University of the Western Cape, 2023) Williams, Nathan Peter; Malherbe, Kitty
Section 186(1)(b)(ii) of the Labour Relations Act 66 of 1995 (LRA), as amended, came into effect on 1 January 2015. This section provides the special right, of an employee, to claim dismissal based on a reasonable expectation for indefinite employment upon the expiry of a fixed term contract of employment. The LRA, as amended, does not define a reasonable expectation for indefinite employment, nor does it provide factors to consider for an assessment or determination of what constitutes a dismissal based on a reasonable expectation for indefinite employment. This research paper provides an overview of the historical evolution of fixed term contracts in South Africa. It provides an understanding of the concept of a reasonable expectation and recommends a list of ten factors to be utilised in the assessment and determination of a dismissal based on a reasonable expectation of indefinite employment upon the expiry of a fixed term contract. In conclusion, it is recommended that the ten factors be codified in a Code of Good Practice in terms of the LRA.
Public-private partnerships as enablers of investment and infrastructure development in Africa: a South African perspective
(University of the Western Cape, 2023) Chiswa, Natasha; Wandrag, Riekie
Governments in sub-Saharan Africa cannot afford the enormous challenge of creating worldclass infrastructure to satisfy the rise in citizen demand and maintain and update the current infrastructure assets. This is a result of the financial limitations, subpar operations, and poor management that plague the majority of publicly owned and run utilities. Infrastructure development is a key factor in productivity and long-term economic growth. It substantially contributes to improving living standards, reducing poverty, and realizing sustainable development goals. There has been very little infrastructure development in developing countries, particularly in sub-Saharan Africa where it is most required. This is because investments in the current infrastructure are dominated by the public sector. Attracting investment is difficult since the public sector continues to struggle with issues including corruption, political instability, and money laundering. The need for infrastructure is increasing, yet finding public infrastructure financing is getting harder and the global financial crisis is placing pressure on public budgets. Every year, infrastructure spending in developing countries exceeds US$800 billion. The infrastructure financing deficit is projected to be roughly US$57 trillion until 2030, far exceeding the demands predicted to be more than twice that amount.
Promoting and facilitating development through private sector inclusion under the Africa Continental Free Trade Agreement (AFCFTA) legal and institutional framework
(2023) Kobel, Victoria R. Kirunda; Lenaghan, Patricia
Free Trade Agreements (FTAs) have been fronted as vehicles for economic development by various scholars and economic organisations at large. But what is development? This is an important question which must be answered. Chidede, in his work, states that the term development has no universal definition but, at a more general level, entails a process, which aims at the constant improvement of the well-being of the entire population and all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom1 . This is an acceptable standard by which to judge development, especially in light of what has been termed as “sustainable development goals” 2. It is against this backdrop that this study aims to investigate the potential of the African Continental Free Trade Agreement (AfCFTA)3 to bring about not only development, but also inclusive development with a major focus on its ability to promote private sector inclusiveness, a key component to realising its agenda.
Examining the effectiveness of the Corporate Leniency Policy in combating cartels under the Competition Act in South Africa with specific reference to directors’ liability.
(2024) Nyembenya, Kamogelo; Lenaghan, Patricia
The economy is harmed by the behaviour of a director that engages in anticompetitive behaviour in the sense that consumers may suffer the economic consequences in the form of having lesser buying power. This restricts healthy economic growth, drive up prices and reduce innovation and investment. Section 73A of the competition Amendment Act introduces the criminalization of cartel conduct and will hold directors/managers criminally liable for infringing s4 (1) (b) of the Competition Act. Section 4(1) (b) specifically prohibits firms from engaging in price-fixing, collusive tendering, market allocation which are regarded as egregious forms of activity. It is for this reason that this study investigates whether directors can be held personally liable for engaging in cartel activities and the effectiveness of the Corporate Leniency Policy which incentives cartel members to self-report in order to obtain immunity from competition law prosecution.
Evaluating South Africa’s accession to the World Trade Organisation Government Procurement Agreement (WTO GPA).
(University of the Western Cape, 2024) Velebhayi, Vuyo; Lenaghan, Patricia
South Africa’s participation in international agreements is governed by s231 of the Constitution of the Republic of South Africa, 1996.1 This section states that the negotiation and signing of all international agreements is the responsibility of the national executive. An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3) of s231of the Constitution. Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect
The appointment of a SARS official as facilitator in alternative dispute resolution proceedings: is it a violation of a taxpayer’s right under section 34 of the Constitution?
(2024) Yokwana, Mellissa-Jane Ntomboxolo; Moosa, Fareed
In each year of assessment, qualifying taxpayers are, by virtue of the relevant provisions of the Income Tax Act 58 of 1962 read with the Tax Administration Act 28 of 2011 (‘TAA’), required to submit an income tax return to the South African Revenue Service (‘SARS’). In such return, the taxpayer accounts for income received and accrued in order that the SARS may assess the taxpayer for a potential income tax liability. Upon the issuance of an assessment by the SARS, a taxpayer who is dissatisfied may object to it, in whole or in part. The SARS must consider every objection and decide thereon. A taxpayer who is aggrieved by a decision in relation to an objection may lodge an appeal to a competent Tax Board or Tax Court. Pending the latter adjudicative process, the TAA allows a taxpayer to request that the dispute be referred to ADR facilitated by a person duly appointed in accordance with the law.
Invisible children: the rights of domestic child workers in South Africa
(University of the Western Cape, 2023) Makosana, Isobel Nokuzola Zola; Mezmur, Benyam Dawit
This research paper focuses on the violation of the rights of children aged 16–17 who are school dropouts and employed as domestic workers in South Africa. This is a violation of their rights and occurs in their employment in domestic work, which can be considered a worst form of child labour in third party households in South Africa. This type of work deprives these children of their rights to education, and family life, subjecting them, amongst others, to social isolation and long working ours. Children in these situations are not easy to identify as they are above the compulsory education age, as defined by the South African Schools Act of 1996. However, they are still considered to be children in terms of the Children’s Act of 2005 as well as the Constitution (2006) which defines a child as any person below the age of 18. The Children’s Act of 2005 also addresses child labour, observing it to have detrimental effects on children and their development, thus identifying all children as needing care and protection. Considering this aspect of the Children’s Act of 2005, this research paper scrutinises the role and obligations of the state regarding the protection of children who perform domestic work in third party households. Moreover, the study assesses the obligations of the South African government as a signatory of the UNs’ regional and domestic norms which protect the rights of children. The role of the state as the primary custodian for the advancement and protection of the rights of children is scrutinised particularly in terms of legislation and administration of related policies in pursuance of creating and promoting a child rights-based culture in South Africa. In addition, the ILO’s standards for decent employment for all and those specific to the employment of children are brought to bear in this research paper. The significant role of civil society organisations, the family, the community, and religious sector are brought to bear in terms of their assisting the state to meet its constitutional and global obligations, responsibilities, and commitments with regards to child domestic workers.
Toward human rights-compatible bilateral investment treaties: the case of Ghana
(University of the Western Cape, 2023) Luguniah, Lambert; Wandrag, Riekie
The legal structure of the existing bilateral investment treaties (BITs) of Ghana consists of the title, preamble, scope, most-favoured-nation rule, national treatment, fair and equitable treatment, full protection and security, expropriation, compensation, and dispute settlement. Save the title and the preamble, the rest of the elements of the structure constitute the substantive clauses of the BITs. These clauses do not contain substantive human rights dimensions in their text. Meanwhile there is proven evidence of human rights violations associated with foreign businesses, especially in the gold mining sector in the country. The nature and character of the structure of Ghana’s BITs is akin to the structure of BITs generally. There is, however, a wave of new generation BITs which provide for substantive human rights provisions, and this is grounded in both regional and international human rights and related instruments and declarations as well as national legislation. The study makes the strongest recommendation for Ghana to lawfully terminate its existing BITs and to negotiate new treaties which would be human rights compatible. This process should commence with development of a well-crafted Model BIT anchored on a National Action Plan (NAP) on Business and Human Rights (BHR). The preparation and implementation of the NAP on BHR should not only be inclusive but also assume a national character. The inclusive processes would be key to promoting national buy-in and ownership of the new investment aspirations of the country to maintain human rights consistent BITs independent of the political party in power or government of the day. The study concludes that constitutional and legislative amendments are necessary to guarantee success in the pursuit of making Ghana’s BITs human rights compatible; and further developed a prototype Model BIT in furtherance of this objective.
The protection of personal information in smart cities: lessons for South Africa from the European union and the United States
(University of the Western Cape, 2023) Sheikh, Faisel Idris; Kondo, Tinashe
Innovative technologies are being employed in both public and private sectors alike. Since the beginning of the 21st century, the use of these technologies has grown in both volume and type. E-commerce services have also developed utilising these technologies, complemented by the use of devices such as smartphones, tablets and computers. The integration of these technologies has even moved into homes. Modern technologies are being used to control homes, run appliances, amongst other purposes. Many of the devices in this ecosystem can be connected to the internet. Nowadays, one can switch on their air-conditioning system away from home using a mobile application. The same goes with closed-circuit television systems (CCTV) which can be monitored and controlled remotely using of an application enabled by wireless technologies (for example, WIFI).
Addressing the social protection deficits for waste declaimer’s in South Africa
(University of the Western Cape, 2023) Dotwana, Zintle; Malherbe, K
Globally, social protection is an important aspect of creating a well-functioning labour market that promotes decent working conditions and alleviates poverty.1 Social protection is crucial in both living and working conditions; it protects individuals and families against socio-economic risks.2 Social security is an important component of social protection that encompasses a single scheme or a number of different schemes that are regulated at the national level to provide income benefits for various social risks and contingencies.3 In South Africa, social security rights flow directly from the Constitution. The South African Constitution states that everyone has the right to have access to social security, including appropriate social assistance should they be unable to support themselves and their dependants.4 Social security systems in South Africa encompass social assistance and social insurance schemes. Social assistance is a non-contributory scheme that alleviates and prevents poverty among vulnerable groups who are unable to support themselves and their dependants.5 Social insurance is largely accessed through the existence of employment relationship and typically protects only formal workers.6
Addressing the social protection deficits for waste reclaimers in South Africa
(University of the Western Cape, 2023) Dotwana, Zintle; Malherbe, Kitty
Globally, social protection is an important aspect of creating a well-functioning labour market that promotes decent working conditions and alleviates poverty.1 Social protection is crucial in both living and working conditions; it protects individuals and families against socio-economic risks.2 Social security is an important component of social protection that encompasses a single scheme or a number of different schemes that are regulated at the national level to provide income benefits for various social risks and contingencies.3 In South Africa, social security rights flow directly from the Constitution. The South African Constitution states that everyone has the right to have access to social security, including appropriate social assistance should they be unable to support themselves and their dependants.4
Collective bargaining in the digital platform economy
(University of the Western Cape, 2022) Fredericks, Davronae Robyn; Malherbe, Kitty
Collective bargaining is a process in which collective negotiation takes place between an employer and groups of employees who are represented by trade unions with conflicting interests seeking to reach an agreement.1 Collective bargaining is ‘collective’ in the sense that it cannot take place on an individual basis between an employer and an individual employee but rather between an employer and groups of employees that are represented by trade unions or trade union federations.2 The collective nature of collective bargaining is only necessary on the side of employees and a single employer can be a party to the bargaining process.3
A critique of the SADC region’s regulatory response measures to the Covid-19 pandemic, paying special attention to travel restriction measures and their effect on food security
(University of the Western Cape, 2023) Chikodza, Englebert; Lenaghan, Patricia
The transition in the economy around the globe has led many countries to pursue integration at various levels. The importance of regional integration is highly noted in various parts of the world, with the most successful countries reaping the benefits of such cooperation. Regional integration bodies such as the European Union (EU) are notable examples of successful integration efforts. Consequently, there has been much backing from the African community for regional assimilation since the attainment of independence from the European colonial powers.1 Regional integration is seen as a rational response to challenges faced by a continent with many small national markets and non-coastal countries
Examining privatisation as a solution to rescue South African state-owned entities
(University of the Western Cape, 2023) Ganda, Sibulelo; Wandrag, Riekie
The term ‘state-owned entity’ (SOE) has no universal definition. ‘SOE’ refers to businesses founded by central and local governments and managed by government officials.1 An SOE can also be understood as a legal entity established by government to conduct commercial operations on behalf of the government. It is often entirely or partially owned by the government and is intended for a certain commercial activity.2 Globally, countries utilise SOEs to supply public goods, limit private sector and foreign control of the local economy, produce revenue for the fiscus, improve service delivery, and promote economic development and industrialisation.3 Thus, it is accurate to define SOEs as businesses that are sui generis in origin and are utilised by governments to either engage in the economy commercially, or to enable the government to offer services to its inhabitants.
The enlightened shareholder value (esv) approach and the interpretation of the phrase ‘best interests of the company’ in South Africa
(University of the Western Cape, 2023) Nel, Timothy; Mupangavanhu, Brighton
According to section 76(3)(b) of the Companies Act 71 of 2008, directors are obligated to incorporate the company's best interests in their objectives. Generally, this phrase denotes the interests of the shareholders collectively.1 It has been difficult to establish what exactly the term ‘company’ means. The phrase 'best interests of the company' has similarly been difficult to explain. Currently, the efforts to provide answers are represented by three approaches, viz (i) the shareholder value approach, (ii) the pluralist/stakeholder approach and (iii) the enlightened shareholder-value (ESV) approach. While some authors may be convinced that South Africa has adopted the ESV approach under the Companies Act 71 of 2008, the phrase ‘best interests of the company’ requires further unpacking to determine its exact meaning.2
Implications of patriarchal customs on the enjoyment of human rights by women and children in South Africa
(University of the Western Cape, 2023) Ndivhuwo, Mudzwiri; Diala, Anthony C.
This study argues that in South Africa, women and children lack sufficient knowledge about their human rights, specifically their cultural rights. Human rights are inherent in everyone simply because they are human. Human rights serve as the foundation on which entitlements and minimum standards for every individual are built. The essence of human rights is to protect each person’s dignity and promote their welfare, including those of women and children. This study focused on the implications of cultural norms on the rights of women and children in South Africa. It validated the findings of scholars on the implications of cultural practices on human rights.
An examination of the corporate governance failures and challenges at key South African SOEs and the implications on enterprise efficiency: A case study of ESKOM
(University of the Western Cape, 2023) Davids, Dustin Joshua; Mupangavanhu, Brighton
Corporate Governance encapsulates a set of rules and corporate systems which have been established to steer a company in a certain direction. In the case of State-Owned Entities, these entities were established as a mechanism to provide a strategic developmental social upliftment focus to the population of South Africa. Moreover, directors have an individual and collective fiduciary responsibilities and should ensure that the principles of corporate governance, including instruments such as the Memorandum of Incorporation, are upheld and realised through well-informed decisions.

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