Magister Legum - LLM (Mercantile and Labour Law)

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Examining the interrelationship between competition law, the allocation of fishing rights, and transformation in South Africa’s fishing industry
(University of the Western Cape, 2024) Ranchod,Sunil; Ndlovu,Precious
The fishing industry in South Africa is distinguished by the various species of fish that can be caught and by the scale of operations required to undertake the various type of fishing activities. Furthermore, the industry is broadly divided into the commercial sector and the small-scale sector. Most of the commercial fishing takes place in the Western Cape. The HDST fishery and the SMP are the largest commercial fisheries and are the largest contributors to employment figures in the industry. The main body of legislation governing the fishing industry is the MLRA, and has, as one of its objectives, the transformation of the industry by broadening access to the industry. This means addressing past imbalances and broadening participation of HDPs in the fishing sector. The fishing industry is also a strategic sector for food security and employment. The Competition Act and the MLRA, not only intersect by virtue of commercial and small-scale fishing qualifying as economic activities, but both statutes have public interest or transformation objectives. The transformation of the fishing industry is seen as a constitutional and legal imperative. During the process of applying for commercial fishing rights, one of the main criteria is the transformation of the applicant, which carries a high weighting in the scoring process. Since the inception of the MLRA in 1998, there has been significant transformation in the fishing industry through the various fishing rights allocations process. The allocation of fishing rights is conducted in a systematic and transparent manner, and the criteria applicable and process for the allocation of fishing rights are contained in the general policy and sector specific policies for the allocation of commercial fishing rights.The Transfer Policy governs the transfer of fishing rights between the seller and purchaser. DFFE will not approve the application for the transfer of fishing rights which leads to a dilution of black ownership in an entity. This ensures that the transformation objectives of the MLRA are complied with.
Creditor protection and the related party financial assistance provisions in the Companies Act 71 of 2008.
(University of the Western Cape, 2023) Vilanculo ,Gladys; Olivier,Etienne
This mini-thesis investigates whether s 45 of the Companies Act 71 of 2008 provides adequate protection to creditors in related party transactions. Protecting creditors in such transactions is essential, as it instils confidence in their willingness to lend money to companies for day-to-day operations, with expectation that these loans will be repaid on time. This paper will analyse the amendments introduced by the Companies Act 71 of 2008 which shifted from prohibitive measures outlined in the Companies Act 61 of 1973 regarding financial assistance to related parties. In addition, the paper will analyse how the new approach balances the interests of the parties involved with the company and prevents the abuse that may arise in related party transactions. To achieve this, the thesis will explore the requirements that must be satisfied before providing financial assistance to related parties, as well as the remedies the Act imposes to protect the company and third parties when directors provide financial assistance in violation of s 45 of the Act. Additionally, the paper will offer recommendations for potential amendment to s 45 of the Act. The methodology employed includes a comprehensive review of relevant literature, legislation and an analysis of case law.
The prevention of unconscionable abuse of the separate personality of the company through corporate governance, business ethics and ubuntu
(Universty of the Western Cape, 2024) Mkwanazi, Thabiso; Olivier, Etienne
There seems to be a disconnection between South Africa's transformative Constitution and the canons of private law which had been shaped, particularly through our Roman Dutch tradition and then adulterated by decades of apartheid. Ubuntu has been far less welcomed in the field of private law than public law.1 Davis affirms that Ubuntu and private law remain a bridge away.2 If a company’s shareholders are shielded from both financial and ethical liability, and the corporation as a fictional legal ‘person’ does not have a psychology amenable to moral regulation, that leaves only the real human beings within organisations.3 At the heart of this problem of violation is said to be how to achieve a balance between the power of companies and their proper accountability.
Obesity and overweight discrimination in the South African workplace
(University of the Western Cape, 2023) Diedericks ,Amy; Huysamen, Elsabe
This research will focus on weight-related unfair treatment claims made by employees within the employment realm. The study will focus on protection available, if any, for employees in the South African workplace against weight-related unfair treatment claims, specifically in the form of unfair discrimination and unfair dismissals. South Africa does not have any labour laws which explicitly prohibit discrimination against weight, and neither does the Constitution of the Republic of South Africa or the Employment Equity Act (EEA) list weight as a protected ground. This thesis will also take a comparative view of the approach to such issues in the United States of America in an attempt to see what South Africa can perhaps learn from the approach adopted in the USA.
Reforming the approach to mediation legislation in South Africa: a comparative analysis
(Universty of the Western Cape, 2023) Naidoo, Verusha; Huysamen, Elsabe
The Constitution of the Republic of South Africa, 1996, is the cornerstone of the country's legal framework, establishing fundamental human rights, including the right to access to justice. Section 34 of the Constitution unequivocally states that every individual has the right to a fair and public hearing before a court or an independent tribunal. This right is seen as an inherent constitutional guarantee, reflecting South Africa's commitment to democracy and justice. However, the South African civil justice system grapples with persistent challenges and operates under considerable strain. Delays in case resolutions, exorbitant litigation costs, uncertainty surrounding outcomes, and the intricacies of the legal process have cast a shadow over the system. The proliferation of cases, leading to overcrowded court dockets, has placed a significant impediment on individuals' access to justice. Alternate Dispute Resolution (ADR) encompasses a gamut of informal dispute resolution methods outside the conventional court system. Among these, mediation, arbitration, and conciliation stand out in South Africa. Mediation, in particular, emerges as a valuable ADR tool, providing a platform for parties to resolve disputes through a neutral third party, fostering confidentiality, and voluntary engagement. In contrast to other ADR methods, mediation refrains from determining right or wrong; instead, it aims to nurture mutual understanding and the acceptance of differences.
The infraction of the right to dignity on social media: the liability of the group administrator and the commenting users
(Universty of the Western Cape, 2022) Okika, Emmanuel; Kondo, Tinashe
Background: In recent times, it has been demonstrated that a huge chunk of the world’s population is on some form of social media. It is estimated that between 4.6 and 5 billion people out of the world's population use social media. Such platforms include WhatsApp, Instagram, Twitter and Facebook. Of these, Facebook has the biggest following, boasting of an estimate of over 2.9 billion monthly active users (as of January 2022). WhatsApp, as a cross-platform instant messaging service, is Facebook’s closest competitor (although now owned by Facebook), frequented by more than two billion monthly active users. Instagram and Twitter follow behind WhatsApp with figures of 1.48 billion and 436 thousand active users respectively.
Understanding and resolving corporate governance in banks and financial regulation twelve years after the crisis in the United States of America and Europe
(University of the Western Cape, 2024) Rundaba, Tanaka; Wandrag, Riekie
Over the past years, there have been global financial and corporate crises that have occurred. Crises have arisen as a consequence of the consistent influence of two factors, namely, poor corporate governance and regulatory mechanisms. In the last forty years crises such as the Savings and Loan Crisis of the1980s and 1990s, the junk bond crash of 1989, the Asian financial crisis of 1997 and 1998 and the dotcom bubble of from 1999 to 2000 all exhibit a high degree of commonality. All appear to be characterised by excessive exuberance poor financial practices by those who managed the financial institutions, poor regulatory oversight, fraudulent accounting, herd mentalities and, in many cases, a sense of infallibility. William Rhodes, the author of Banker to the World, describes the phenomenon as a common theme of the propensity of countries and markets for believing that they are different in the sense that they would be immune to bank failures that would result to a financial crisis.
Directors’ duties and the race to incorporate corporate social responsibility into company activities in South Africa
(University of the Western Cape, 2024) Maziya, Thembelihle Precious Funekile; Olivier, Etienne
The principle of good corporate governance denotes that a company’s board of directors should not only look after the interests of shareholders but also of other stakeholders when managing the company. The obligation of taking care of stakeholder interests can be enforced through Corporate Social Responsibility (CSR). For this to happen, the board of directors would have to incorporate CSR into company activities. In South African law, the duties of the board of directors as the drivers of the company do not explicitly include taking care of stakeholder interests but require directors to act in the best interests of the company. This leaves the implementation and inclusion of CSR into company activities at the discretion of the board of directors, based on the prevailing interpretation of the ‘best interest of the company’. The lack of guidance in the scope of directors’ duties to look after the interests of stakeholders may weaken a company’s corporate social responsiveness. This study seeks to investigate whether the duties of directors should be amended and couched in a manner that explicitly includes looking after the interests of stakeholders. In achieving the forgoing aim, it will study and analyse the directors’ duties as envisaged in the Companies Act 71 of 2008 (the Act) to determine whether directors have the mandate to incorporate CSR into company activities. It will further investigate whether the duties of directors under the Act are adequate to promote the inclusion of CSR in board strategy and company activities
The regulation of social media content personalisation: An international human rights perspective
(University of the Western Cape, 2023) Lewis, Clifford Pierre; Kondo, Tinashe
This mini-thesis critically examines the extent to which existing international, regional, and domestic legal frameworks provide effective mechanisms for preventing social media content personalisation from violating Article 25(b) of the International Covenant on Civil and Political Rights. Through a comprehensive analysis of human rights law and emerging cyber law, the study explores the complex interplay between psycho-social patterns of engagement, social media algorithms, and the human right of democratic participation. The research employs historical, analytical, and comparative methodologies, and draws on literature from law, psychology and technology to evaluate legal instruments and enforcement mechanisms across international, regional, and domestic contexts. It identifies significant gaps in current frameworks, including challenges related to the inter-actor interconnectedness of human rights in cyberspace, jurisdictional issues arising from the borderless nature of social media, and evidentiary difficulties in establishing direct links between algorithmic content curation and human rights violations.
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.

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