Browsing by Department "School For Advanced Legal Studies"

Now showing 1 - 20 of 33
  • No Thumbnail Available
    Item
    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.
  • No Thumbnail Available
    Item
    Open Access
    Analysis of legal and regulatory framework for electronic commerce in Rwanda
    (2011) Nyiringabo, Joseph; Ferguson, Steve; Ncube, Caroline
    Information communication technology (JCT) is a significant tool and support for socio economic development. Developing countries are following the lead of developed countries in integrating the use of technology in different sectors in order to increase their performance. Rwanda is in a process of creating an enabling environment for the population to use the information technology in their daily activities to enhance their socio-economic development. For a country to attain sustainable development, it needs to remove the national and international barriers of doing business by establishing electronic commerce (E commerce). The Government of Rwanda has adopted some laws that govern E-commerce in the country. Due to the complexity of the E-commerce system, the legislature must ensure that the relevant laws are harmonised and consistent. The E-commerce regime includes the domestic legislation as well as international treaties, Model laws and guidelines. This study intends to analyse in detail the way of harmonising the existing the legal and regulatory framework on E-commerce in Rwanda.
  • No Thumbnail Available
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    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.
  • Thumbnail Image
    Item
    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.
  • No Thumbnail Available
    Item
    Open Access
    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.
  • No Thumbnail Available
    Item
    Open Access
    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
  • No Thumbnail Available
    Item
    Open Access
    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.
  • No Thumbnail Available
    Item
    Open Access
    Independent bank guarantees as protection against breach of contract in international trade
    (2001) Schelenz, UIf; Hare, John
    Independent bank guarantees are commonly used in international trade as protective means in order to ensure that the underlying obligation is properly fulfilled. These guarantees take a number of different forms and are often interlinked in one and the same major international transaction. It is essential for the participants to know about the operation of bank guarantees and to be aware of the risks involved. Frequently the parties' attention is taken up with negotiation of the substantive contract and insufficient time is allocated for consideration of the text of the guarantee. As an international businessman of a major company and former European counsel to Citibank emphasizes, 'there is a widespread but erroneous belief that employers never call these guarantees'. 1 Accordingly, insufficient effort is made to negotiate them and useful protective measures are not incorporated.
  • No Thumbnail Available
    Item
    Open Access
    '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.
  • Thumbnail Image
    Item
    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.
  • Thumbnail Image
    Item
    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.
  • No Thumbnail Available
    Item
    Open Access
    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.
  • No Thumbnail Available
    Item
    Open Access
    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.
  • No Thumbnail Available
    Item
    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.
  • Thumbnail Image
    Item
    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
  • No Thumbnail Available
    Item
    Open Access
    Protecting the environment using the GATT Article XX: chasing shadows
    (2010) Tapiwa, Shumba; Hare, John; Gibson, John
    Economic development is at the heart of the World Trade Organisation There is little doubt that trade liberalisation has had some positive effects on the global economy. However, there is considerable agreement on the fact that economic growth may also co me at the expense of environmental protection. To this end, there is also agreement on the need to protect the environment from harmful economic activities such as trade liberalisation which is one of the current multilateral trading system's main instruments for economic growth. The debate on how this can be achieved has been going on for some time and has mainly been around the use of Article XX of the General Agreement on Tariffs and Trade to protect the environment from harmful trade practices. Some piecemeal fashioned suggestions have been made on how to deal with this issue and there has been some hope in many instances that environmental protection will become accommodated within the multilateral trading system. However, as practice has shown, the use of Article XX of the GATT has not, at most, been successful for many reasons. It is these reasons and the solutions to such, which this paper seeks to address, in light of a strong view that the use of the GATT article XX, in its current state, to protect the environment is a futile process and cannot yield positive results.
  • Thumbnail Image
    Item
    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.
  • No Thumbnail Available
    Item
    Open Access
    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.
  • No Thumbnail Available
    Item
    Open Access
    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.