OpenUCT :: Browsing by Department "School For Advanced Legal Studies"

Browsing by Department "School For Advanced Legal Studies"

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Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
The legal regulation of the right to strike in Zimbabwe: international and comparative perspectives
(2008) Chitima, Washington; Kalula, Evance
This dissertation explores the legal regulation of the right to strike in Zimbabwe. The Zimbabwean workers, like other workers the world over have struggled and continue to suffer to express their interests and views in the workplace. The study looks critically at the legislation which has regulated the right to strike in Zimbabwe, with particular emphasis on the period after 1990. The study also focuses on other legislation which though not being labour related, has had a lot of influence in the employment relations in the country, in particular as regards to strike action. The method of research has largely been literature review and to a great extent on a comparative perspective. Not much has been written by way of text books on the subject of the right to strike in Zimbabwe. Some scholars have however put together various writings which have been a great reference point for this study. Among them are Professor Lovermore Madhuku and Munyaradzi Gwisai, who are part of the leading authors in the study of Labour Law in Zimbabwe. Zimbabwean case law is also rich in matters pertaining to strike law in Zimbabwe and it forms part of the research material for this study. The aim of the study is to make an assessment of whether the legal regulation of the right to strike in Zimbabwe assists or act as an impediment to the Zimbabwean workers to exercise the right to strike. A relative result is obtained by undertaking a comparative analysis. The study reveals that the right to strike is provided for under legislation in Zimbabwe. In practice however the study reveals that it is almost impossible for the Zimbabwean workers to embark on a lawful strike. The procedural requirements to engage in a lawful strike are so cumbersome that what the legislation gives with one hand it takes away with the other. Coupled with this is the criminalisation of strike action which fails to meet the procedural requirements. The study observes that the failure of the Zimbabwean legislature to provide for a worker friendly regulatory framework on the right to strike is three fold. Firstly, this is a result of a failure to acknowledge that strike action plays an important role in collective bargaining. The regulation of the right to strike thus is not in sync with objectives of promoting collective bargaining. Secondly, there is absence of an effective social dialogue policy in Zimbabwe. Theoretically there appears to be efforts towards this, but the government, employers and labour, as a combined entity, hardly have any influence in labour law reform. The result has been a failure to meet each party's expected aspirations and relationships tainted by suspicion. Thirdly, and flowing from the second, the political climate in Zimbabwe is such that the government and the workers view each other as two parties in different political divides. This has been attributed to the formation of an opposition political party whose birth is associated with the biggest labour centre in the country. The result has been that the government takes labour not as a vital social and economic partner, but as a political foe to compete with for political survival.
Open Access
'The Protected Disclosures Act 2000: limitation on the defamation law in South Africa'
(2008) Liwanga, Roger-Claude; Calland, Richard
Freedom of expression is constitutionally protected by the 1996 Constitution of South Africa. The constitution makes special provision to include freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity, academic freedom and freedom of scientific research. [FN11 However, the scope of freedom of expression does not cover the propaganda for war, incitement of imminent violence and advocacy of hatred based on race, ethnicity, gender or religion. [FN21 While freedom of expression constitutional protected, it is not the paramount value. It is limited as well by section 36 of Constitution, with the possibility of one being charged with defamation. Defamation is a public communication that tends to injure the reputation of another. [FN31 It includes both libel (written defamatory statement) and slander (oral ones). [FN41 Most jurisdictions, including South African, allow legal actions, civil and/or criminal against the defamatory statement. In the Court, therefore, in order to be found innocent, the defendant has to establish the "truth" of his/her statement. Failing to do so implies his/her liability and/or guilt.
Open Access
The public policy exception to the enforcement of foreign arbitral awards under the New York convention
(2008) Chibwe-Kombe, Mwila; Christie, Richard
Commercial arbitration is one of the most commonly used methods of resolving disputes in the international business arena. The attributes of arbitration that provide an impetus for growth are multivariate. This includes party autonomy, speed, economy, the pool of available arbitrators, consistency, avoidance of local courts and finality. 1 However, arbitration is not without limitations and therefore the avoidance of local courts is not absolute. Any successful party in an international commercial arbitration expects the award to be performed without delay and therefore winning the arbitration is half the battle. 2 This is particularly true where the award is ~ot voluntarily carried out and the assets of the losing party are not at the seat of arbitration.
Open Access
The use of port state measures as a tool of combating illegal unreported unregulated fishing: Is there a need for expansion of coastal state jurisdiction?
(University of Cape Town, 2020) Ogega, Peris B; Bradfield, Graham
This dissertation examines the scope and limitations of port state jurisdiction with respect to the enforcement of international conservation and management measures established under international and national instruments. The current fisheries regulatory regimes rely primarily on flag states to enforce these measures against foreign vessels. The aim of this dissertation is to recommend an expansion of port state enforcement jurisdiction over foreign vessels when fishing in the high seas. The expansion of port state jurisdiction supplements the role of flag states in enforcing the provisions of international conventions and agreements applicable in the high seas and also fills in where flag of convenience fishing vessels have failed to do so. To support this view, the dissertation will compare the issue of illegal unreported unregulated fishing with the issue of marine pollution. The significance of this comparison is to show how provisions in regard to marine pollution, have legitimized the expansion of port state jurisdiction to the extent that port states have enforcement jurisdiction over foreign flagged vessels which violate the provisions of LOSC relating to marine pollution in the high seas.
Open Access
Themes and theories of the insider treading provisions of the 2004 Securities Service ACT
(2007) Adams_M; Professor Larkin
According to Blackman et al, ‘insider trading' initially referred ‘to the sale and purchase of a company's shares, debentures or other securities by persons connected or associated with the company (the ‘insiders'), who are in possession of confidential, ‘price-sensitive' information…gained as a result of that association and not available to (other) shareholders or to the general public.'1 The practice of insider trading was first made illegal in South Africa with the introduction of s 233 of the Companies Act 61 of 1973. By the criminalising of insider trading, the conduct of an insider trader has been classified as a wrong against society.2 At present, the relevant provisions of the Securities Services Act of 2004 regulate such practices.3 The Act has repealed the Insider Trading Act 135 of 1998, which had previously governed criminal and civil liability in terms of the offence. The insider trading provisions of the Act form part of corporate governance regulations, which are aimed at improving the efficiency of financial markets. This dissertation focuses on the significant transformation that South Africa's insider trading laws have gone through since this practice was first outlawed in 1973. It aims to tease out and discuss some of the core themes of the Act, and in doing so, note the various consistencies that exist between these themes and those of South Africa's previous insider trading laws. A similarly important aim will be to determine whether the Act represents a different emphasis in regard to what has previously constituted the ‘wrong' of insider trading. In addition, the relevant flaws and inadequacies of the Act that appear to have resulted from the legislature's attempt to ‘toughen' up on the previous provisions as well as certain evidential problems will be discussed. It will be shown that, despite the fact that there has been a general trend to broaden the offences as well as certain key definitions, notably that of an 'insider', so that the link between the Act and the previous enactments is not as obvious as it use to be, it is submitted that this link has not completely broken down.
Open Access
When equality and freedom of contract meet: a consideration of the horizontal application of the Bill of Rights
(1998) Erasmus, Andre Alexander; Meyerson, Denise
The application of human rights to private relationships is a difficult question that must be answered by all legal systems which have accepted human rights as binding upon their law. To answer this question a State has to make fundamental ideological decisions, both as to its role in society and the individual citizen's right to self-autonomy. Is law to be neutral, leaving private citizens to order their relations without intervention from the State? Or, should it play a more active transformative role by regulating and organising society to accord with a particular set of moral values and economic objectives? This dilemma is a current which runs through most contemporary moral and human rights discourse. It is not merely of abstract or academic interest. Both the reach and content of the law will be determined by which approach may prevail.

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