Magister Legum - LLM (Mercantile and Labour Law)

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

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From domestic work to the gig economy: challenging exclusion under workers compensation law
(University of the Western Cape, 2026) Willemse, Aubrey John; Mullagee, Fairuz
The research paper considers the structural and intersectional dynamics of inequality in labour and social security law pertaining to domestic workers and workers in the platform and gig economy, under workers’ compensation legislation. With reference to Mahlangu v Minister of Labour, the research focuses on the protection under the Compensation for Occupational Injuries and Diseases Act (COIDA), and considers the implications of the proposed International Labour Organisation (ILO) standards for platform workers, while reviewing the move from exclusion to inclusion of platform and gig economy workers under COIDA. The research considers the challenges that domestic workers still face, and the “mistakes” in the approach to domestic workers, to draw lessons that may be relevant as we move from exclusion to inclusion in the context of platform and gig economy workers. It is concluded that enhanced enforcement mechanisms are needed to ensure platform compliance with registration and contribution obligations, including substantial penalties for misclassification and proactive monitoring of emerging platforms. These enforcement efforts should be complemented by simplified claims procedures for platform workers and guaranteed interim payments during claim processing to prevent destitution following workplace injuries. Furthermore, the research paper suggests various recommendations.
An assessment of the rights and influence of debtholders in corporate decision-making in light of shareholder primacy
(University of the Western Cape, 2025) Mc Davids, Kaashif; Wandrag, Riekie
Within the realm of corporate governance, there is a widely-held belief that the board of directors of a company serve at the pleasure of shareholders, for the simple reason that shareholders “own” the company in question.1 While this notion of ownership has to a certain extent been discredited,23 the underlying principle remains sound – shareholders are contributors of capital, who have taken a risk through their investment in a company, and accordingly repayment of their faith shown should be at the forefront of a board of directors’ decision-making.4 This is, in essence, the premise of the “shareholder primacy” model of corporate governance, in terms of which a company’s shareholders are placed front and centre of decisions taken by a company’s board of directors with the ultimate goal of maximisation of the shareholders’ wealth.
An examination of the WIPO’s treaty on genetic resources and associated traditional knowledge and its implications on South Africa
(University of the Western Cape, 2026) Ndlazi, Tabile; Mupangavanhu, Yeukai
On 24 May 2024, the World Intellectual Property Organization (WIPO) recently adopted the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge. The Treaty creates an international obligation for patent applicants to disclose the source or origin of genetic resources (GRs) and associated traditional knowledge (TK) in patent applications. It represents a significant step toward curbing the misappropriation of GRs and TK, particularly for developing countries that have long advocated such measures. This Thesis evaluates the merits and demerits of the WIPO GR-ATK Treaty, the question whether the Treaty strengthens or challenges the existing legal framework in South Africa, and how regional and international commitments may influence its implementation. While the Treaty sets minimum standards for disclosure and sanctions, it affords Contracting Parties substantial flexibility in how these obligations are to be implemented. The key argument is that Indigenous People and local communities have the right to their resources and should benefit from the utilisation of such resources at international level through the mandatory disclosure requirement. The Treaty leaves room for future expansion of its scope to address emerging technologies and derivative products, ensuring that the framework can evolve in response to new challenges. The findings of the Thesis indicate that the disclosure requirement is narrow in its current application, and that its flexibility offers developing countries an opportunity to push for stronger protection through bilateral arrangements, including free trade agreements. There is a need to further ensure stronger protection of GR and associated TK at international and regional levels
The role of ESG in corporate decision-making: a South African analysis
(University of the Western Cape, 2026) Haynie, Zaytoen; Mupangavanhu, Brighton
This dissertation examines the fusion of Environmental, Social, and Governance (ESG) considerations into corporate decision-making within the framework of South African company law. It explores the shift from a shareholder-centric model, to a model that embraces stakeholder considerations and corporate social responsibility. The study critically analyses the Companies Act 71 of 2008, with a special focus on section 76(3)(b), other national pieces of legislation such as the National Environmental Management Act 107 of 1998, relevant principles from the Constitution of South Africa, inter alia along with secondary sources, highlighting the ambiguity surrounding directors’ duties and the limited enforceability of ESG obligations. The research evaluates the contribution of the work of the Social and Ethics Committee while drawing guidance from global frameworks such as the UN Global Compact, OECD Principles, and statutory developments in jurisdictions including the UK, India, and New Zealand. The findings reveal that while ESG principles are increasingly recognised in South African governance discourse, their legal status remains fragmented and interpretive. The study concludes with recommendations for legislative reform, including clarifying directors’ obligations, strengthening the mandate of the Social and Ethics Committee, and aligning corporate governance practices with constitutional values and universal ESG standards.
Examining integration of artificial intelligence into corporate governance in South African state-owned businesses
(University of the Western Cape, 2025) Kunene, Thato; Mupangavanhu, Brighton
African state-owned enterprises there has been little to no consideration of incorporating artificial intelligence into corporate governance to address the existing challenges within SOEs. SOEs in South Africa face numerous challenges hindering their effectiveness and sustainability. These include financial instability due to poor management and rising debt, pervasive corruption and governance issues, and operational inefficiencies stemming from outdated infrastructure and bureaucratic red tape. Political interference disrupts their ability to function independently, while human resource challenges like skills shortages and nepotism further weaken their operations. Additionally, SOEs struggle to compete with more efficient private sector companies, impacting service delivery and economic growth. Complex regulatory environments add to these difficulties. Considering the continuous technological advancement, it should come as no surprise that AI has the potential to revolutionise the management of SOEs. Predictions suggest that AI will soon be integrated into corporate boardrooms, becoming a cornerstone for gaining competitive advantage through strategic management and operational decision-making. Furthermore, AI may soon augment human governance boards, aid decision-making and executing digital strategies. This signifies a significant shift towards AI-enabled governance in the corporate world. Hence this mini thesis examines how AI can enhance corporate governance of SOEs and SOCs, specifically focusing on the potential advantages that AI could offer in SOEs and SOCs decision-making. The central research question which the thesis sought to answer is: in what ways may the integration of artificial intelligence (AI) into corporate governance enhance corporate performance, accountability and decision-making? The thesis has argued that while AI is an important enabler for strengthening governance within South African SOEs, AI should be integrated as a decision-support mechanism that complements human decision-makers, and should not necessarily replace human oversight and fiduciary responsibility. To ensure that AI adoption aligns with constitutional and ethical requirements, urgent legal reform, streamlined institutional oversight, and capacity-building within SOE leadership are essential
Global pandemics and the waiver of intellectual property rights: possibilities and challenges
(Univesity of the Western Cape, 2026) Kamish, Yusra; Mupangavanhu, Yeukai
The coronavirus (COVID-19) pandemic has highlighted the conflict between intellectual property rights (IPRs) and public health. During a global pandemic, IPRs can act as an impediment to equitable access to essential pharmaceutical products, such as vaccines. This is because IPRs create monopolistic privileges. In turn, the monopoly on essential pharmaceutical products counteracts public health objectives. This dissertation investigates whether intellectual property (IP) waivers are a definitive solution to the systemic crises that is access to essential pharmaceutical products during a global pandemic. This is done by scrutinising theWorld Trade Organisation (WTO) legal instruments, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the 2025 World Health Organisation (WHO) Pandemic Agreement. The WTO Agreement on TRIPS provides flexibilities such as compulsory licensing, parallel importation and regulatory review exception to balance IPRs against the interests of the public, with specific attention to public health. The study evaluates these mechanisms available to state parties during international health emergencies. The findings suggest that the compulsory licensing flexibility as contained in Articles 31 and 31bis of the TRIPS Agreement, and the 2005 Protocol Amending the TRIPS Agreement, is cumbersome and largely ineffective during situations of emergency, such as a global pandemic. The research indicates that IP waivers are the most effective solution to the issue of inequitable access to medicine during a global pandemic. With restructuring of the WTO IP waiver decision-making process, it offers a quick and expeditious solution to the issue of access to medicine during situations of urgency, such as global pandemics.
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.

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