Magister Legum - LLM (Mercantile and Labour Law)

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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
An analysis of the meaning of section 24(a) of the South African Constitution in the context of correctional centres
(Universty of the Western Cape, 2026) Ntamnani, Akhona
The history of prisons in South Africa is important not only to determine how far we have come in aligning the correctional system to constitutional and human rights standards, but also to understand how the past system has impacted upon the current context. The history of prisons (now called correctional centres) began with the Cape prison system. Singh explains that when Jan van Riebeeck invaded the Cape colony, he introduced the 17th-century Dutch form of punishment.1 This manner of punishment was public and brutal. Despite its violent nature, this system influenced the administration of justice and the penal system in South Africa.2 Public crucifixion and firing squads were used to punish offenders.3 Convicted offenders were sometimes held in chains and kept in the Dutch East India Company’s slave lodge and forced to do public labour. Some offenders were deported to Robben Island to remove them from the public. The system, according to Van Zyl Smit, had no concern for the well-being of its subjects.
Resignation and Section 186(1)(e) of the Labour Relations Act 66 of 1995: are employees bound to notice periods?
(University of the Western Cape, 2025) Hussain, Waseem Goolam
This thesis explores the intricacies of constructive dismissal in South African labour law and specific emphasis is placed on the position of the employee. Whilst exploring constructive dismissal generally, further emphasis is placed on the issue of whether employees are bound to notice periods when they resign without notice due to intolerable conduct of an employer. The significance of this study cannot be understated – the wording of section 186(1)(e) of the LRA provides that a dismissal occurs when an employee terminates the employment contract “with or without notice”, however, an agreed or ex lege notice period may be applicable which binds the employee to serving a notice period before the employment contract can be terminated by resignation. The wording of section 186(1)(e) of the LRA envisages an instance in which an employee terminates a contract of employment with or without notice (which is done by resignation on notice often in terms stipulated by a contract of employment or in terms of the BCEA). This results in a potential incongruity between the relevant provisions of the LRA and the contact of employment and/or the BCEA in that employees are almost certainly bound by a notice period. Does the wording of section 186(1)(e) of the LRA mean that employees are bound to notice periods and thus prevented from resigning “without notice” in terms of section 186(1)(e) of the LRA? The research contained in this thesis will show that employees must adhere to applicable notice periods as courts have not pronounced specifically on the issue of whether a contract of employment may be terminated without notice when an employee faces intolerability in the workplace. This study further considers the equivalent legal position of employees in Kenya and ultimately calls for legal development/reform which would afford employees proper protection when resigning in the face of intolerable conduct from an employer in South Africa.
Presenteeism and the Law of dismissal in South Africa: a comparative analysis
(University of the Western Cape, 2025) Farao, Logan Curtleigh
The Labour Relations Act 66 of 1995 (LRA) provides for the dismissal of employees on grounds of misconduct, incapacity due to poor work performance or ill health, as well as based on the operational requirements of the employer. Presenteeism has increasingly emerged in the workplace, manifesting in reduced productivity and economic losses for employers. It takes various forms, including alcohol-related presenteeism, sickness presenteeism, and presenteeism linked to job insecurity, and has further impacted the common law employment relationship. This study evaluates presenteeism and its relation to the law of dismissal within the South African labour law framework. It also examines UK dismissal law and the approaches adopted to address presenteeism effectively. It does so by referencing the Labour Relations Act, the UK Employment Relations Act, the ACAS Codes, and the UK Flexible Working Regulations.
The extent to which South African law protects women with disabilities against unfair discrimination in the workplace
(University of the Western Cape, 2025) Lourens, Courtney
The legacy of apartheid has created a deeply unequal society in South Africa. The Constitution of the Republic of South Africa sought to build a united and democratic society, whilst ensuring that each citizen is equally protected by the law.1 A constitutional mandate is therefore imposed on the State to ensure that the right to equality is realised and that the most marginalised members of society are adequately protected.2 Research shows that women with disabilities are still unfairly discriminated against in the workplace. To give effect to the equality clause of the Constitution of the Republic of South Africa, the Employment Equity Act 55 of 1998 was enacted that endeavours to ‘promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and implement affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workplace.’4 The objective of this research paper is to examine the South African legislative framework to determine the extent to which the relevant provisions protect women with disabilities in the workplace. In addition, the flaws within the current legislative framework are identified. The theory of intersectionality is used as a lens through which the relevant law will be assessed. A comparison is made between the legislative frameworks in Canada and South Africa governing unfair discrimination to determine whether South Africa can learn any lessons from the legislative framework that exists in Canada when it comes to protecting women with disabilities.
Corporate governance in the fourth industrial revolution: how can blockchain technology be used to solve corporate governance problems?
(University of the Western Cape, 2024) Naidoo Tristan; Wandrag Riekie
Every industrial revolution has brought about drastic change and a quantum leap in human development, however, those who benefit the most from these changes are ones who take the first step in its adoption. Similarly, companies and organisations that adopt these new technologies will be the leaders and will set precedent for the adoption.1 The blockchain can serve three functions which benefit corporate governance: a public register, exchange for assets, as a way to establish complex organisations and governance systems.2 However, block chain protocols are developed to be decentralized, this causes various governance problems, which usually stem from conflicts of interest among the participants.3 With blockchain technology an organisation will be able to enhance its accountability, transparency, and security. This paper explores the applicability of blockchain into corporate governance. First, all the components of blockchain is discussed with particular focus on what it can provide. Then this paper will explore corporate governance frameworks across three jurisdictions. The three jurisdictions were chosen to contrast their levels of corruption. After having identified the root cause to corporate governance failures, this paper will explore the various use cases of blockchain to analyse how blockchain can actually be used in corporate governance. Thereafter, this paper will discuss recommendations for adoption.
Domestic investment in primary agriculture in South Africa
(University of the Western Cape, 2026) Small, Danielle F.
In recent years, the South African farming sector has been experiencing important restructurings that pertained to the industrialisation of agriculture.2 These restructurings can be attributed to the development of farm financing and investment instruments by the increasing engagement of corporate entities interested in financing the sector in return for ownership of the land by incorporating primary production into their portfolios.3 When examining the performance of the South African agricultural sector and the policy reorganisation, it is necessary to take heed of its historical context. It was during the 1950s and 1960s that the government invested in research and development, infrastructure, extension services, direct subsidies for conservation works and debt relief, which grew the commercial sector’s agricultural output with guaranteed markets and prices for most farm commodities.4 However, by 1979 the economy had moved into a recession and economic policy prioritised its deregulation of the financial markets in South Africa.5 These events birthed the process of liberalisation in trade and deregulation of agriculture that was only partially completed by the early 1990s.6 The undeniable consequences of these transformations are the effects to the family farmer’s status as landowner to now being merely a service provider.7 In response to the failing land reform projects and in the absence of alternative successful investments and production models, these transformations are of course supported by the South African government.8
Gender discrimination in the South African workplace: a critical analysis
(University of the Western Cape, 2026) Dlomo, Nokwanda Zoleka
The South African Constitution guarantees the right to equality and protects everyone from unfair discrimination. In terms of right to equality contained in section 9 of the Constitution of South Africa, no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3).1 Section 9(4) of the Constitution further directs that “national legislation must be enacted to prevent or prohibit unfair discrimination”.2 The Employment Equity Act 55 of 1998, as amended was promulgated to give effect to section 9 of the Constitution. Research shows that females are still subjected to gender discrimination. This study contains a discussion on the laws governing gender discrimination in South Africa. Reference is made to the relevant constitutional provisions and the statutory provisions that aim to protect employees from gender discrimination. A comparison is made between the laws governing gender discrimination in South Africa, Canada and Germany to determine whether there are any lessons that South Africa can learn from Germany and Canada. The purpose of the study is to determine the extent to which the South African legislative framework protects female employees against gender discrimination and to determine whether the provisions governing gender discrimination in South Africa should be amended and/or supplemented. This is done by examining case law, the provisions contained in statutes and the contents of journal articles.
Towards the formalisation of artisanal and small-scale mining in South Africa
(University of the Western Cape, 2026) Langa, Sinovuyo Unam
Artisanal and small-scale mining (ASM) plays a significant role in South Africa’s mineral economy by providing livelihoods to many who operate outside the formal mining sector. However, despite its contribution, the occupational health and safety (OHS) of these miners remain poorly regulated and often overlooked in existing labour and mining legislative frameworks. Current literature and legislation tend to address large-scale mining operations, leaving a gap in understanding how existing OHS frameworks apply to the informal or semi-formal ASM sector. This research seeks to bridge that gap through a doctrinal analysis of relevant legislation, case law, and policy instruments. The research identifies key shortcomings in the regulatory framework and proposes policy reforms aimed at strengthening OHS protections for artisanal and small-scale miners in South Africa.
The income tax resident status of internet-based companies: when is South Africa their place of effective management?
(University of the Western Cape, 2023) Nathaniel, Bradwin Joseph
In terms of the Income Tax Act 58 of 1962 (‘ITA’), taxpayers are liable to tax in the Republic of South Africa (‘SA’) on their worldwide revenue if they satisfy the test for residency within the meaning of the term ‘resident’ in s 1 of the ITA. Companies and other juristic taxpayers are ‘resident’ for income tax purposes in relation to a particular year of assessment if, for example, its ‘place of effective management’ is located in SA for that period. A key problem associated with the term ‘place of effective management’ which affects its application in practice, is that it is undefined in the ITA. Therefore, its meaning is open to interpretation and, possible, manipulation. The precise meaning of ‘place of effective management’ is particularly relevant to electronic commerce on the world wide web carried on by internet-based companies. To address the problem arising from the uncertainty of the scope and ambit of the term ‘place of effective management’ for ITA purposes, this thesis provides a comprehensive analysis of this term and its probable meaning in the context of the ITA.
An exploration of the conduct of business legal and regulatory frameworks for cryptoassets in South Africa
(University of the Western Cape, 2025) de Jager, Pieter Christian
Cryptoassets, also commonly called cryptocurrencies, are among the many fintechrelated financial products popularised during the 2008 global financial crisis. They offer a decentralised system of value transfer, independent of central banks or governmental authorities. However, their unconventional nature creates significant risks, making proper financial regulation essential. This mini-dissertation focuses on the conduct of business regulation of cryptoassets in South Africa, analysing existing laws such as the Financial Advisory and Intermediary Services Act, the Financial Sector Regulation Act, and the proposed Conduct of Financial Institutions Bill, and evaluating their applicability to cryptoasset service providers. It is argued that the current conduct of business framework lacks the specificity needed to manage the risks cryptoassets present. The EU’s Markets in Crypto-Assets Regulation (MiCA) is used as a case study, as it offers a dedicated legal framework that balances innovation with consumer protection and market integrity. The research also considers the recommendations of the Intergovernmental Fintech Working Group, which call for a risk-based, activity-focused regulatory approach. This mini-dissertation concludes that South Africa would benefit from enacting a dedicated and uniform legislative framework specifically tailored to the conduct of business regulation of cryptoassets. A law modelled on MiCA would reduce legal uncertainty, promote consumer protection, and support innovation in the cryptoasset market
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.

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