Browsing by Department "School For Advanced Legal Studies"

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    A comparative study of selected aspects of corporate liability of directors under Swiss and South African law
    (2008) Mueller, Dominique Chantal; Rademeyer, Conrad
    Corporate liability of directors is a current issue all over the world due to the financial failures of corporations in the United States and Europe in the past years. The current proceedings in Switzerland against former directors of Swissair, who are accused of having caused the grounding of the airline in October 2001, attracts not only the attention of the Swiss public but also the interest of the neighbouring countries. In this dissertation I will first point out the relevant principles of the Swiss corporate law dealing with liability of directors and then compare the legal situation in Switzerland with the legal situation in South Africa. As the analysis of the whole corporate liability issue would go beyond the scope of this dissertation I will focus on Article 754 of the Swiss Code of Obligations (organ liability) and compare it with the South African grounds of liability of directors for breach of their fiduciary duties and their duty of care and skill.
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    Corporate governance regulatory framework in Zambia: recommendations for improvement
    (2011) Luwabelwa, Walubita; Wiese, Tobias
    Formulating an effective regulatory framework for a country is a tasking exercise even to the finest policy maker. It calls for an appreciation of the intricate social, cultural and economic nuances of a country so as not to divorce the legal and institutional framework from the people the framework is meant to serve. This dissertation considers the legal and institutional framework of corporate governance in Zambia. It argues in favour of a contextualised study of corporate governance in Zambia due to the country's high poverty levels, favourable geographical location for trade, and unfavourable capital structures of public listed companies, among other reasons. Several weaknesses in the current corporate governance framework are identified. These include the weak institutional capacity of private regulatory bodies, lack of a proper legal framework of self regulatory organisations, and the large number of small and medium enterprises, mining companies and state owned enterprises that fall outside the purview of corporate governance regulation. More importantly, the dissertation undertakes a comparative analysis of selected corporate governance themes in South Africa, United States of America and the United Kingdom. Based on this comparative analysis, it makes recommendations for improvement of corporate governance in Zambia. It suggests a balanced mix of a prescriptive and enabling approach to corporate governance regulation in Zambia. In particular, it recommends that the Zambian Companies Act should be amended to provide for key corporate governance aspects. The dissertation however cautions against over regulation beyond what is necessary for Zambia's needs, and frowns upon adopting a 'one-size-fits-all' approach to corporate governance in Zambia.
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    Deconstructing Gangsterism in the Western Cape Policy Response to the National Anti-Gangsterism Strategy
    (2020) Viltoft, Clara Dybbroe; van de Spuy, Elrena
    In the Province of the Western Cape in South Africa, gangsterism continues to be associated with issues of violence, crime and localised conflicts, affecting residents on the Cape Flats in particular. Although the country's legal framework promotes human rights and despite ongoing interventions by law enforcement, the effectiveness of government responses is still debated by politicians as well as the general public. Using Carol Bacchi's ‘What's the Problem Represented to Be' (2009) approach to policy analysis, the aim of this dissertation is to deconstruct the Western Cape's political problematisation and representation of the ‘problem' by analysing the Western Cape Provincial Policy response to the National Anti-Gangsterism Strategy. From a social constructivist angle, this dissertation presumes policy as prescriptive guidelines that dictate action. Further, the aim is to discover how the problem is understood and represented and thus analyse which discourses and material responses are generated and which are not. The findings confirm that there is a discrepancy between what is articulated in policy and what actually happens on the ground, i.e. between discourse and practice. Moreover, it will be argued that sustained anti-gang intervention demand that structural obstacles and inequality in lieu of the spill over from the Apartheid era are addressed. Taking notice of these aspects, the minor dissertation concludes that it is critical to figure out how best to transform conflict conditions in areas with high levels of gang violence with the view to allowing both youth groups and individuals to exert agency and become empowered in pursuit of individual and community resilience.
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    Do indigenous peoples have the right to self-determination? If so what does the right contain?
    (2003) Kaunda, Lisette; Bennett, Thomas William
    The problem of indigenous peoples goes back a long way in history. In a sense, formulating the matter in this way itself give rise to serious problems. Why for example, is it a problem of indigenous peoples? It may rightly be argued that, far from being a problem of indigenous peoples, it is in fact a problem of the conquering or invading people. Nevertheless however it is formulated, it is an old problem. In the 15th century, during an era of intense exploitation, European explorers undertook many voyages to distant unknown lands; The Portuguese were the first European to make contact with West Africa in 1440. By 1498, Portuguese voyagers had traveled virtually right round Africa. In the 16th century, in their quest to find a more direct route to India, Spain and Portugal conquered what we today call south and North America and the West Indies.
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    Environmental governance in Kenya: the role of institutions
    (2011) Katee, Jacqueliyn Philomena; Gibson, John
    This study centers on a critical research problem namely: how does Kenya approach the question of Environmental Governance(EG) and what roles do the institutions created under the Environmental Management and Co-ordination Act (EMCA) play to facilitate EG in the country? The study is conducted within the context that Kenya's attempts to reform its EG institutional framework under the EMCA have been experiencing numerous challenges. Paitly due to these setbacks, the management of natural resources in the country is apparently stuck in the centralized and sectoral approach inherited from the colonial government. This is notwithstanding the fact that in the past decade the country registered abundant legal and institutional reforms that could easily be utilized to enhance a coordinated and decentralized approach in the management of natural resources. In spite of their perceived promise of Good Environmental Governance (GEG), these reforms are yet to have tangible impact in reality. The present reality is natural resource management that is scattered across sectoral lines and minimal decentralization to the rural areas. This state of affairs presents vital implications for Kenya's environmental future. The study therefore not only analyses the extent to which the EMCA promotes good governance by its institutions, but also provides proposals for strengthening EG in the country.
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    Examining copyright infringement and liability in Generative Artificial Intelligence training and use: a legal perspective in South Africa and beyond
    (2025) Mikioni, Tendai; Ncube, Caroline
    Once again, humanity has welcomed technological advancement, this time around artificial intelligence, with mixed reactions. The creative industry is no exception to this rapidly evolving technology, with generative AI (genAI) deepening its claws in the creative industry. What lies within the fabric of genAI is a primary concern. In order to be trained (taught), genAI ingests enormous amounts of data, which is harvested indiscriminately. This is a cause for concern for those whose work is harvested and utilised without compensation, credit and consent. In addition, when genAI is deployed, the user's input prompts it to create works of their desires, ranging from images to musical lyrics. To that end, it remains to be answered whether the use of works for the purpose of training genAI and the generation of works by genAI trained using copyrighted works amount to copyright infringement. It is the duty of this dissertation to examine whether the South African copyright regime would deem it an infringement to make use of copyrighted works for training genAI. In addition, this dissertation goes further to examine whether there is a possibility of copyright infringement materialising when a user generates works through genAI. In this dissertation, the training of genAI will be referred to as the “input phase”, while the use of genAI by a user will be referred to as the “output phase.” In addition, the issue of who is liable when copyright infringement materialises will be analysed. In the end, the author submits recommendations for South Africa to address copyright infringement liability. Leading jurisdiction in copyright and AI regulations will be infused to enrich the discussion
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    From litigation to arbitration: promoting international commercial arbitration through harmonisation in the East African community
    (2009) Nakueira, Sophie; Kruger, Thalia
    Important scholarship argues that adopting modern arbitration laws is a necessary requirement for promoting a region as a suitable venue for holding international commercial arbitration and attracting Foreign Direct Investment. This thesis takes a next step. With its main focus on the East African Community, the thesis advocates the need for placing developing countries' dispute resolution mechanisms in the broader context of economic development. It argues that there is a need for legal reform of the old arbitration legislation in the region. Furthermore, it posits that adopting a uniform statute on international commercial arbitration is essential to achieving the economic goals of the East African Community.
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    'Insider trading regulation': to be or not to be?
    (2010) Adetoun, Adedurotiivii Omowunmi; Jooste, Richard
    Insider trading may be defined as the act of trading in company securities by persons often referred to as insiders who by virtue of their relationship to the company, possess some information, not available to the public, but material to the securities concerned. For instance, insider trading occurs where a director knows that a company is in a bad financial state and sells his shares in it knowing that in a few days, a cut in the dividend payment will be made public. Likewise, the director will be an insider trader if on being informed before it was generally made public that the company has discovered oil on its own land, he buys more shares in the company with the hope of an increase in their market value as soon as the information is made public. There are two schools of thought with strong and divergent views on the effect of insider trading generally and particularly as it affects the stock market and the investing public. The proponents of the first school of thought encourage trading on insider information for its many advantages. According to them, the stock market generally feeds and grows on free flow of information. Disallowing insider trading would mean hampering the flow of trade. Furthermore, they have argued that insider trading is fundamental to capitalism because it pushes prices in the right direction, increases the number of transactions and provides the only real recompense for entrepreneurs. In addition, they are of the opinion that long-term investors stand a chance to benefit immensely from the act.
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    International Legal Consequences of the Construction of a Barrier by Israel in the West Bank
    (2005) Golnitz, Hinnerk; Devine, Derry
    At the 10th emergency special Session on December 8, 2003, the 191-member United Nations General Assembly adopted a resolution requesting an 'urgent' advisory opinion from the International Court of Justice in The Hague on the legal consequences of Israel's construction of a 'Barrier' between itself and the West Bank and East Jerusalem. 1 The Secretary General of the United Nations transmitted the request for the advisory opinion to the Court in a letter dated December 8, 2003. The Assembly has requested advisory opinions from the Court fourteen times since the Court's inception in 1946, with the majority requested immediately following World War 11. While the Court's opinion is not legally binding, the opinion provides strong guidance to both parties, as well as the international community, on how to treat the current situation and how to proceed with negotiations.
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    Liability for animals a comparative study: south African and German law
    (2000) Muller, Stephanie; Fagan, Anton
    The field of' Liability for Animals' appears at first sight to be only of minor interest to academics. This, however, is a false syllogism as incidents involving animals are frequent, and courts constantly deal with claims regarding damages for injuries caused by animals. Indeed, in many countries the law of animals forms special subject. With respect to English law for instance Lord Simonds, using the metaphor of a train, remarked that the Common Law of torts has developed historically in separate compartments and that beasts have travelled in a compartment of their own. 1 However, it is also true, that within this "tort-train" a few animals lurking in the other compartments marked 'Negligence or Nuisance' may also be found.
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    Liability for animals a comparative study: South African and German law
    (2000) Müller, Stephanie; Fagan, Anton
    The field of' Liability for Animals' appears at first sight to be only of minor interest to academics. This, however, is a false syllogism as incidents involving animals are frequent, and courts constantly deal with claims regarding damages for injuries caused by animals. Indeed in many countries the law of animals forms a special subject. With respect to English law for instance Lord Simonds, using the metaphor of a train, remarked that the Common Law of torts has developed historically in separate compartments and that beasts have travelled in a compartment of their own. However, it is also true, that within this "tort-train" a few animals lurking in the other compartments marked 'Negligence or Nuisance' may also be found. Over the years the law of animals was subject to major developments.
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    Loss of sovereignty: transfer of trading competences from member states of the European Union under the Maastricht Treaty- an example of regional integration
    (1977) Bondt, Jan De; Devine, DJ
    Policy before World War I, the Great War, was dominated by national independence, the aspiration to hegemony and the creation of spheres of interest. Europe's old national structures were deeply disrupted by the end of World War I. The idea of a voluntary union 6, not governed by the dictates of a sovereign of whatever kind, was born.
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    Merges and acquisitions and the resultant ramifications on employees in the transaction. a study of South Africa's Section 197 Labour Relations Act 1995 as amended in 2002
    (2008) Ndungu, Herbert Mburu; Larkin, Mike
    Business organizations engage in mergers and acquisitions (M&As) to accomplish various objectives, including, but not limited to, increasing growth potential, expanding product lines, entering new markets at a faster speed, eliminating competitors gaining access to intellectual capital and gaining desired technologies. 1 M&As have lately also been undertaken as a means of business reorganization.
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    Penal labour in the constitutional context: a comparison of South African and Germany.
    (1999) Achelis, Felicitas; Van Zyl Smit, Dirk
    One of the most important reasons for doing comparative work in the field of law, is to get a better understanding of the legal jurisdictions of other countries. Studying the law of another country also enables one to understand one's legal jurisdiction in a better way. It helps one to see well-established principles in a new light and to ask questions about the continued applicability of such principles
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    Public Interest Environmental Litigation: A Comparative Study of Locus Standi Requirements in South Africa and Zambia
    (2021) Mulenga, Martin; Glazewski, Jan
    South Africa integrated environmental rights into its constitutional and legislative framework, and simultaneously expanded its locus standi rules that facilitated public interest environmental litigation a decade and a half earlier than Zambia. The incorporation of environmental rights and the liberalisation of legal standing requirements occurred in South Africa with the enactment of the interim democratic constitution of 1994 which eventually progressed into the final constitution of 1996. Zambia only legislated environmental rights and liberalised the locus standi rules in environmental litigation with the enactment of the Environmental Management Act of 2011. The Zambian constitution has not yet included environmental rights in its Bill of Rights, but it has incorporated many internationally recognised environmental principles which may become building blocks for the further entrenchment and enhancement of environmental rights. The purpose of this paper is to conduct a critical and comparative analysis of the South African and Zambian legal frameworks with regard to locus standi requirements in public interest environmental litigation. The objective is to appreciate the strides that South Africa has made in public interest environmental litigation by critically assessing the constitutional and legislative developments that have taken place in that jurisdiction with a view to drawing lessons for Zambia. Included in the critical analysis is a study of how the South Africa Judiciary has interpreted these legislative developments and implemented them in its judgments particularly with regard to legal standing requirements. The comparison is intended to identify challenges to and opportunities for public interest environmental litigation in Zambia.
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    Resale price maintenance in South African competition law
    (2011) Spangler, Simon; Kelly, Luke; Davis, Dennis
    Resale Price Maintenance (‘RPM') refers to a particular type of vertical agreement in which an upstream firm controls or restricts the price at which a downstream firm can on-sell its product or service, typically to final consumers.1 Usually the parties agree to set either a minimum or maximum resale price. Maximum RPM covers those situations in which an upper limit or ceiling is placed on the price the retailer can charge for a product. In contrast, when it comes to minimum RPM, a lower bound or floor is placed on the price at which the retailer can on-sell the product.2 Fixing the minimum resale price is generally treated more strictly by competition law as it is considered to have more severe anti-competitive effects, for example the elimination or reduction of intra-brand competition and an increase in price transparency that might facilitate horizontal collusion upstream or downstream.
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    The effect of stronger intellectual property protection on technological innovation in developing countries: the case of Lesotho
    (2011) Leseeo, Mapitso; Tong, Lee-Ann
    Intellectual property (IP) is one of the legal subjects which is increasingly receiving attention, but about which little is generally known outside specialised legal circles. 1 This is because IP in itself has always been an integral part of the general economic social and cultural development worldwide.2 This begs the question: What is intellectual property? IP refers broadly to a number of distinct types of creations of the human mind, for which property rights are recognised. Its influence extends to every aspect of life because it cuts across all disciplines.
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    The foreign direct investments and their impact on Canadian and South African telecommunications industry
    (2008) Bergeron, Caroline; Hudsun, Janisch
    The scope of this paper is to demonstrate that countries should abolish the restrictions on FDI in order to create a successful telecommunications market. FDI can increase competition with amazing consequences for consumers. In Canada, FDI restrictions apply on basic suppliers and are a major burden for companies competing in this market. The illustration of this issue occurred with the take over of one of the incumbent companies, Bell Canada Enterprise (BCE). In South Africa, the telecommunications industry is stagnate and needs the influx of FDI to compete on an international level. FDI restrictions thwart the expansion of the South African telecommunications industry by turning down foreign capital. Countries around the world are benefiting from FDI and it is time for Canada and South Africa to liberalise their telecommunications market and step forward in this new trend.
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    The impact of offshore oil and gas exploitation on the marine environment and its regulations under selected national regimes
    (2000) Fombang, Humphrey Fombang; Hare, John
    Despite the numerous advantages accrued from the exploitation of oil and gas worldwide, the repercussion of its activities on the marine environment has put the entire world under panic about the future of our beloved planet. Political leaders from both developed and developing countries through Conventions, Conferences, national policies and legislation, have been seeking various ways to regulate the exploitation of oil and gas on the continental shelf and Exclusive Economic Zone in order to protect the marine environment that is at the brink of losing its socio-economic values. With the present trend of events threatening the planet such as climate change and the call for sustainable development, the regulation of oil and gas exploitation on the marine environment remains a dilemma. It is now crystal clear that the principle of 'Common but Differentiated Responsibilities' as advocated by both the Rio and Johannesburg world summits on sustainable development, with regard to the regulations of oil and gas exploitation, which have already been put in place, must be strengthened.
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    The law of defamation - a comparison between the South African, the Canadian and the German legal systems
    (2000) Wegmeyer, Sandra Yuki; Fagan, Anton
    "The law of defamation aims at the protection of a person's reputation." This definition was found in the Canadian, the South African as well as in the German law. However, the question that arises is whether the law of defamation only protects the reputation and the good name of a person. Defamation can affect an individual's personality with all its aspects such as reputation, dignity or privacy. One can think of a broad range of possible violations. Due to the broad concept of the law of defamation, this article can only focus on the civil law of defamation and will analyse some specific legal problems that arise in all of the aforementioned legal systems. Therefore, the thesis begins with an analysis of the ambit of the law of defamation in the three different legal systems and examines the similarities and the differences. The second chapter deals with the problem of the title to sue in a defamation action. Not only living persons can be the target of defamatory words and conduct but also deceased person as well as legal entities. What parties have a right to sue for compensation in the aforementioned legal systems will be analysed. The third chapter illustrates under which circumstances a person will be held liable in a defamation action. Here, some major differences between the three legal systems are presented. In the fourth chapter the criteria of defamatory words and conduct, which are required in the Canadian, the South African and the German law, are examined and it is demonstrated how the different legal systems deal with the difficult problem of defining a defamatory action. After examining the different criteria for a successful action of defamation, the article goes on to compare the different defences that a defendant can raise under the three different legal systems. Eventually, the issue of compensation in an action for defamation arises. Therefore, the last chapter analyses what kind of damages the plaintiff can claim in an action for defamation and makes clear that major differences exist between the three legal systems.