Browsing by Faculty "Faculty of Law"

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    3D-printing : a new challenge for intellectual property?
    (2015) Fuhrmann, Thomas; Schonwetter, Tobias
    The most important rights, which state such a balance between these two parties, are the rights of intellectual property. Thus, an important question is to what extent 3D-printing conflicts with intellectual property rights. In general, intellectual property balances the rights between the owners of genuine products and their use through third parties. On the one hand the intellectual property rights give exclusive rights to the genuine owners, on the other hand they give as well some important exceptions for the use of third parts material. Hence, the purpose of this work is to examine, which intellectual property rights are affected by the production of a 3D-printed object. In each of the following chapters I will look at the different categories of intellectual property rights. I will examine in how far the creators of a CAD, the uploaders who upload a CAD on a website for a free or commercial download, the website owners who facilitate that uploads and the printers, whether private or with a commercial purpose, may be in conflict with any intellectual property rights. The most important intellectual property rights, which could be affected, are copyright, patents, registered designs, trade marks and passing off. For the present investigation it will be necessary to have a closer look at the different steps of the developing process of a 3D-printed product. More precisely, we have to differentiate between the creation of the CAD, the uploading of a CAD and finally the home-printing or the printing on demand through a specialised company. The aim of this work is to show how these single steps conflict with intellectual property rights and how the different actors in this process are liable for any infringing activity and in how far their activity is covered by any exception. Furthermore, we will also examine whether current legislation and jurisdiction appropriately address issues brought about by this new technology. Because of the reason, that the issue of 3D-printing in relation to intellectual property is quite a new one, this work will occasionally have a look abroad to other jurisdiction how they already dealt with similar problems. With this in mind, especially the US, European and German jurisdiction and laws will be regarded.
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    A 'harvest' in Malawi: the position of albinism in Refugee Law
    (University of Cape Town, 2020) Bota, Jenala; Lutchman, Salona
    The albinism community in Malawi has been faced with gruesome human rights violations for the past decade. These violations have included, assaults, kidnapping, mutilations, and murder. The cause of such violations is that the community of Malawi has for so long embraced the superstitious belief that the body parts of people with albinism are an essential charm for good luck. As a result of this, the albino community faces extinction because of the small population. The definition of a refugee under the 1951 Refugee Convention on the other hand, only provides for five grounds of persecution which includes race, religion, nationality, political opinion and membership of a particular social group. The dissertation seeks to unravel whether the international law grants refugee status to people with albinism. In response to the question, the dissertation analyses the definition of a refugee under the 1951 Convention. Persecution and inability of a State to protect victims of human rights violations are important elements to establish a solid case for refugee application. Hence, the dissertation tends to analyse whether the treatment of people with albinism in Malawi amounts to persecution. Besides, whether, they could be granted refugee status in other countries. The dissertation, furthermore, tends to analyse whether there are other mechanisms of the international community that are used to protect people with albinism. The findings in this thesis are that albinism is a ground of persecution because of the treatment that is followed due to their defined characteristics. That due to certain factors that needs to be satisfied to amount to effective national protection; Malawi has failed to protect people with albinism. Therefore, based on those factors, people with albinism could be granted international protection of refugees. Though there are other mechanisms by the international community used to protect people with albinism, there is a need to change the definition of a refugee under the 1951 Convention to accommodate problems arising in the contemporary world.
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    A brief excursus through the concept of the trust, dealing with its origins and history and generally traversing taxation of a trust and its implications for the taxpayer
    (1995) De Mink, Jason; Emslie, T S
    A 'trust' is defined in the Income Tax Act [1] at section one as 'any trust fund consisting of cash or other assets which are administered and controlled by a person acting in a fiduciary capacity, where such person is appointed under a deed of trust or by agreement or under the will of a deceased person'. This is a recent introduction to the Act, coming into affect in respect of years of assessment ending on or after 1 January 1993 and sums up reasonably regarding satisfactorily what the various authorities have said to date trusts. In Estate Kemp v McDonald's Trustee [2] judge Solomons referred to the fact that in a trust the 'legal dominium of property is vested in the trustee' but that they have 'no beneficial interest in it but are bound to hold and apply it for the purpose of some persons or for the accomplishment of same purpose' [3] In Thome & Molenaar NNO v Receiver of Revenue, Cape Town [4] a trust was described as being 'created by contract, very often by contract of donation . . . or by way of a will. It is created in respect of defined administer property transferred to a trustee, who is burdened with the obligation to the property for the benefit of a third person’ [5]. In the case of Goodricke and Son (Pty) Ltd v Registrar of Deeds. Natal [6] the court held that the concept of a valid trust revolved around the removal of dominium (ownership) from the beneficiaries and placing it in the hands of the trustees [7]. ' ... [A] trust exists when property is to be held or administered by one person on behalf of another, or for some purpose other than his own benefit' [8]. The court went on to say that the essential elements which made up a trust were 'segregation of the trust assets by the founder' and the 'creation of an obligation to administer otherwise than purely for oneself' [9].
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    A case study of whether South Africa's foreign policy with Zimbabwe and China is informed by its constitutional and international human rights obligations
    (2020) Madima, Reshoketswe; Chirwa, Danwood
    South Africa is a country that in the past has experienced gross human rights violations, and therefore has sought never again to have such violations. The government has sought to protect people's human rights by including them in the country's Constitution. Furthermore, South Africa has engaged with various international human rights bodies to further advocate for good human rights practices. However, the country has encountered some domestic challenges, with inequality and poverty being rife in the country. These challenges have implications for South Africa's economic foreign policy goals. This study explores South Africa's foreign policy with the Chinese government and the Zimbabwean government to explain why the country has chosen countries with poor human rights such as these. The research study will be centred around the period from 2008 to 2017. The offensive realism theory formed the theoretic framework of this research study. The study employed a qualitative research strategy as well as an interpretivist research paradigm. The findings show that when it comes to South Africa's foreign policy agenda, the government's goal is to establish a partnership with another country that will ultimately benefit the economic interests of South Africa, regardless of the country's human rights principles.
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    A century worth celebrating
    (2010) Corder, Hugh
    It is understandable that no great fuss has been made of the hundredth anniversary of the establishment of South Africa as a nation state within its current borders (through the South Africa Act 9 Edw VII, ch 9). The Act of Union, after all, while it represented a triumph for those arguing for the formal reconciliation of ‘Boer and Brit’, marked much more negatively the exclusion of the majority of the new country’s population from any effective say in the institutions of government. Not only were the proponents of federalism, which might have allowed the less conservative leadership in the Cape Colony to retain a degree of autonomy through which to pursue government based on individual worth, soundly defeated, but the elements of non-racial government preserved in the Cape franchise arrangements (and to a lesser extent, those of Natal) were seen as provisions to be protected as a dying species, rather than as bridgeheads for their expansion more widely within the Union
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    A common maritime regime for the South China Sea
    (1994) Sun, Kuan-Ming; Devine, D J
    The South China Sea is a semi-enclosed sea in two respects. In terms of the geographical reality, the region is readily separable from the waters surrounding it. Moreover, it falls under the 1982 Law of the Sea Convention, which requires littoral states to cooperate in the maritime sphere. At present, a number of problems beset the region.
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    A company is a company because of other people: corporate social responsibility and the constitution
    (2009) Cockburn, Alexandra; Cornell, Drucilla
    The inability of governments worldwide to protect individuals from economic insecurity has led to a renewed interest and public expectation that corporations have public responsibilities in furthering the interests of the public or the public good. Corporate social responsibility is a serious and pressing concern for all members of the new South Africa. Recent reports of fraud and corruption in the corporate sphere, coupled with ongoing environmental disturbances and labour disputes, have exposed the dangerous and potentially disastrous effects which can be triggered by corporate abuse. Serious attention and reform in this sphere are critical to the preservation and promotion of a harmonious future. South Africa needs to develop a legislative framework tailored specifically towards the governance of corporate social responsibility in order to ensure that corporate disasters can be foreseen and prevented well in advance of their occurrence, an occurrence that will impact negatively on the well-being of the economy as a whole as well as on the rights of individual citizens. Corporate social responsibility is not only a social imperative but also a constitutional mandate. Since the implementation of the Final Constitution in 1996, the South African Legislature has had a duty to bring the corporate sphere in line with the foundational principles of our new constitutional democracy, in particular with the Bill of Rights. To date, there has been no evidence of law reform in this regard. The new Companies Act, which was promulgated this year but which is only destined to come into effect in 2010, purports to impose greater restrictions and sanctions on the actions of corporate officers. However, the effectiveness of the proposed mechanisms has never been tested and is by no means guaranteed. What is required in order to comply with the constitutional mandate- in place of the present framework of disjointed fragments of legislation which have no unified or valuable effect - is a detailed study of the scope, content and practical implementation of corporate social responsibility jurisprudence, uniquely tailored to the South African context. Corporations are vastly superior to humans in power, money, and resources. Without a clear reason for them to respect human beings, we will be at their mercy. We will have created monsters. Contemporary society is characterised, to a large extent, by commercial interchange and corporate supremacy. Companies control South Africa's markets and its economy. The vast majority of South Africans rely on these 'corporate giants,' directly or indirectly, for their livelihoods. In an era of corporate dominance it is the responsibility of all South Africans to ensure that sufficient controls and restraints are placed on companies in order to prevent them from perpetrating fraud or other forms of abuse in respect of the societies in which they operate. There is a wide variety of individuals whose entire futures fall to be ruined on account of reckless and irresponsible business practices. On one end of the spectrum are the company's direct participants- employees and creditors - who will suffer direct and extensive financial loss through any malpractice on the part of the company. On the other end of the spectrum are various members of society who also have an interest, albeit an indirect one, in companies observing good business codes. For instance, where a company is polluting the environment of a specific community, every member of that community has an interest in ensuring that this matter is addressed and remedied. In addition, there are the consumers, who also have a direct interest in ensuring that companies observe high standards of care in their production processes and do not expose consumers to unnecessary product risks. Finally, the interests of all South Africans lie in the promotion and protection of the human rights enshrined in the Bill of Rights. The costs of corporate disaster have been brought to light in recent years. In the United States in the late 1990's, the fall of Enron and associated corporate giants exposed the dire societal consequences resulting from corporate abuse: "Total corporate debt in the form of outstanding bonds and loans soared to $8 trillion after 1998 ... " Americans insisted that the corporate officers responsible for this debt " ... should be forced to part with their ill-gotten gains, which could then be used as reparation for employees who lost jobs and pensions because of the deception. " However, in reality, only a fraction of the losses were recovered and paid out to the affected parties. More recently, the subprime crisis and resultant credit crunch over the last year, beginning with the collapse of the Lehman Brothers in the latter part of 2008, have wrought economic ruin on large portions of the global society. The results have been devastating with many people losing jobs, pensions and livelihoods the world over. The underlying cause of this corporate catastrophe was irresponsible business practices, most notably the activity of trading in non-existent securities. It is important to note that these corporate catastrophes originated in the United States, one of the wealthiest countries in the world. The results have been felt in South Africa, but we have managed to escape total financial ruin. However, if a similar disaster were to occur in South Africa alone, a significantly poorer country with far less advanced social welfare guarantees and virtually no means of supporting the financial burden of more insolvent citizens, it is unlikely that our foundling economy would be able to recover. "Susan George, author of A Fate Worse than Debt unambiguously demonstrates the inequity of the situation when she argues that Tanzania, a country with a gross national product of 2.2 billion dollars, has to share this between 25 million people; whereas Goldman Sachs, an investment firm ranking in annual profits of 2.2 billion dollars, shares these among 161 partners. "That's the world we're living in now," she says." It is clearly necessary to put in place effective preventative protection mechanisms to avoid corporate abuse in advance. The term generally used to describe such mechanisms is 'corporate social responsibility:' ... an agreement between business firms (all productive cooperative enterprises) and society (individual members of a given society in the aggregate) ... [and] the reciprocal expectations of the parties to the contract who were both assumed to be interested in maximizing the benefits (e.g. specialization, stabilisation of output and distribution, liability resources, increased wages) and minimizing the drawbacks (pollution, depletion of natural resources, destruction of personal accountability, worker alienation) of productive organizations. In order to supply a foundation for the concept of corporate social responsibility that is rooted directly in South African culture, it is both useful and enlightening to have regard to the philosophy of group and community solidarity enshrined in the African value of 'Ubuntu.' The cardinal belief of Ubuntu is that a person can only be a person through other persons. "The important values of Ubuntu are group solidarity, conformity, compassion, respect, human dignity and collective unity." It is clear that Ubuntu played a central role in the drafting of the South African Constitution, particularly in protecting human rights such as dignity, equality and freedom. However, in order to live up to the mandate of our constitutional democracy, it is necessary to continue to allow the values inherent in the Ubuntu culture to inform our decision making and legislating. In particular, respect and support for the rest of one's community is fundamental to the sustainability of a peaceful and progressive South Africa. This value must inform every facet of South African life, including the corporate sphere. Companies must fulfil their role as members of the African community and, as such, must provide guarantees that they will work in the interests of the community at large and provide respect and support to all members of that community. This attitude is entirely different to the present corporate mindset, a mindset driven entirely by the objective of unimpeded profit-maximisation at the expense of all other interests. However, as shall be exposed in this dissertation, a purely money-driven corporate mindset is unsustainable and harmful to both South African citizens and the environment in which they live. One of the interesting aspects of the value of Ubuntu is the fact that it is not an objective value against which Africans measure their actions but is instead an intrinsic part of every African, "entrenched and pervasive in virtually all aspects of their lives on a daily basis." This is exactly what is required in the sphere of corporate social responsibility. The entire corporate attitude must be altered so that respect and responsibility towards the South African community is not simply an ideal which may be promoted wherever possible in corporate action but is rather an intrinsic, fundamental and overarching principle which informs every decision and action on the part of the company. It is only through the achievement of this attitude that South Africans will be able to rely on companies behaving in a compliant and responsible manner: strict adherence to the values enshrined in Ubuntu will prevent corporate disasters - financial, environmental or personal - from taking place at all. This is superior indeed to the alternative, which is to force companies to provide remedies and redress to affected persons only after the relevant corporate disasters have taken place. It is far better to develop a corporate ethos that will prevent and curb the advent of such disasters in advance. That companies should amend their attitudes and respect their role as mutually dependent members of the communities in which they operate is evidenced from the following quotation: No enterprise or corporation can survive without society. In fact business enterprises are a creation of society. Society is made up of what have been referred to as the 'stakeholders' of business. They include the community in which the corporation or business enterprise operates, its customers, employees and suppliers. Business and society are mutually dependent. In pursuit of wealth and profit maximisation, companies utilise human and other resources, and in so doing provide employment, investment, goods and services. Business therefore forms part of the fabric of society. The practical starting point for the development of a South African doctrine of corporate social responsibility is the stakeholder model of company law. The present corporate mindset is controlled by the interests of shareholders only and, consequently, is fundamentally driven by a hunger for ever-increasing profits. However, the King Report on Corporate Governance suggests that companies should be required to promote the interests of all stakeholders, not merely the controlling shareholders. Clearly, this is the first step in ensuring that employees and creditors are protected from abuse, and that environmental activists and similar bodies are given the consideration and respect due to them. Such a model complies with the Ubuntu conception of mutual support and promotion, and with the mandate imposed by the Constitution that all South Africans should work together in pursuing the shared objective of a better life for all. However, the stakeholder model of corporate law is by no means a blueprint for a South African doctrine of corporate social responsibility. It is merely a starting point. One of the problems which are not directly addressed by this model is the ominous threat of fraud perpetrated by company officers. The new Companies Act attempts to curb the opportunities for fraud by imposing an "almost-strict liability" sanction on company directors and managers who do not act in the best interests of the company at all times. If the stakeholder model of corporate governance is introduced then the 'interests of the company' will be the interests of all the stakeholders of the company. The Supreme Court of Appeal in the Shaik criminal trial of 2006 emphasised the widespread and devastating results which fraud and corruption can have on the sustainable development of this country, and called for the Legislature to introduce even more stringent and powerful restrictions against such action. It is therefore necessary to evaluate the current position and determine the most effective mechanisms for dealing with corruption in the corporate sphere. This is an essential component of the principle of' accountability' contained in the Preamble to the Constitution. Up until recently, corporate social responsibility has been identified only in negative terms. It encompasses the obligation to refrain from fraud and corruption; to refrain from devaluing and abusing the interests of stakeholders such as employees, consumers and the like; to refrain from polluting the environment, and so on. But does the concept of corporate social responsibility amount to something more than this? Do the Constitution and the underlying African principle of Ubuntu require companies to take positive steps in the promotion and improvement of South Africans in general? The concept of corporate social responsibility could indeed be interpreted to impose positive duties on companies. Examples of what such duties would entail are numerous. Legislation may require that companies donate a portion of their profits to charity, or that all corporate officers and employees participate in pro bono work programmes. The affirmative action policies that are in place in most companies at present are an ideal example of an attempt to impose some level of social responsibility on companies and to force them to take part in the necessary redressing of the wrongs committed by the Apartheid State. The degree to which positive obligations may effectively be imposed on companies without inhibiting profit-maximisation is an issue requiring much more consideration and will be explored in more detail in this dissertation.
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    A comparative analysis of emigration taxes for migrating individuals
    (2024) du Plessis, Adelle Charlene; Titus, Afton
    Emigration taxes have become increasingly relevant in a globalized world, where individuals frequently seek new opportunities abroad. when an individual taxpayer opts to relocate to another jurisdiction, effectively relinquishing their South African tax residence, a fiscal event is triggered. This event assumes the form of a deemed disposal of their assets, except for those that fall within specific exclusions, valuated at their prevailing fair market value. Consequently, an exit tax liability ensues, tethered to the theoretical capital gain arising from this fictional disposition. It is imperative to note that the South African exit tax system mandates the immediate payment of this tax obligation. Worth highlighting is the notable exemption, as it stands currently, pertaining to an emigrant's interest in retirement funds. However, the fiscal landscape faced a proposed amendment in the year 2021 when the National Treasury, in its National Budget Speech, endeavoured to incorporate such retirement fund interests into the purview of exit taxation. This proposed inclusion encountered vehement opposition from tax professionals and media outlets alike. The Canadian system's operative provisions are similar to the South African provisions in that when a Canadian resident becomes a non-resident for tax purposes, they are deemed to have disposed of certain types of property at their fair market value. This deemed disposition can result in a capital gain, which is subject to taxation. However, there are provisions in place to provide relief for certain assets, such as a principal residence and certain pension plans, to mitigate the tax burden on emigrants. Notably, the Canadian system provides for a deferral of payment of the exit tax as triggered on the date of cessation of tax residence. This minor dissertation embarks on a thorough comparative examination of the emigration tax regimes in South Africa and Canada, aiming to elucidate critical aspects encompassing tax residence, system introduction, application, implications for emigrants, and the administrative processes involved in each jurisdiction. It will also seek to identify areas for possible double taxation that could occur due to the application of either respective system. The study commences with an explanation of the fundamental concepts and determinants of emigration taxes, offering a comprehensive definition along with an explanation of the various types of emigration taxes. Furthermore, it delves into the temporal aspects associated with these taxes and explains the mechanisms employed for their recuperation. In light of the aforementioned aspects, the study furnishes the overarching rationale that underlies the imposition of emigration taxes. The research continues to delve into the core components of the two systems of emigration tax implemented by the respective jurisdictions, examining and comparing the mechanisms of each. It also briefly investigates the possible application of the emigration tax to retirement savings and the possible reason for its inclusion or exclusion. Furthermore, the study explores the administrative processes and compliance requirements associated with emigration taxation in South Africa and Canada. It analyses the ease of understanding, reporting, and adhering to these tax regulations, considering the potential influence of administrative complexity on emigration decisions. This comparative analysis aims to highlight key similarities and differences inherent in the two systems that form the subject of this minor dissertation. Following the aforementioned research and analysis, this dissertation will endeavour to compare the systems and accordingly discern potential advantages intrinsic to the Canadian framework that may offer pragmatic applicability within the South African context and vice versa.
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    A Comparative Analysis of Legal Frameworks for Investments in Africa by China and the European Union
    (2020) Hügens, Jonathan; Ordor, Ada; Lefifi,Tebogo
    This thesis presents a comparative analysis of the legal investment frameworks of the European Union and China in African countries. The thesis reviewed financial instruments of foreign direct investments, official development assistance and other official flows. The legal analysis focus on the demand on political conditions to access the financial assistance; under which conditions are the projects tendered; and which labor standards set the parties while the project is implemented. All reflected under the aspect of the fairest condition for African countries. The comparison figured out that the European Union with its demands for the implementation of human rights, democracy and the rule of law facing certain reluctance of most African governments for a full implementation while contrary to that the OneChina principle is broadly acknowledge by African governments to gain investments. When projects are tendered the research presents that the European Union searches for local and regional providers to strengthen African businesses. This with guidelines for core labor laws based on human rights when it comes to the implementation. While China tenders with a strong commercial self-interest and does not set any labor standards relaying on local laws and showing limited interest and understanding when it comes to implementation.
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    A comparative analysis of shareholders' appraisal rights in Nigeria and South Africa
    (2019) Eniola, Abimbola; Yeats, Jacqueline
    First, this study stems from the urge to bring clarity as to whether, in Nigeria, there is a statutory framework based on which shareholders can seek appraisal in relation to their shares at any point in time. This is significant in that the corporate statutes in both South Africa and Nigeria provide for similar mechanisms for the protection of minority shareholders in almost every respect including the prejudicial and oppression remedy, derivative actions, squeeze-outs and so on, excepting the appraisal rights. Whilst there is clarity as to the existence of the appraisal remedy provision in South Africa’s corporate statute, the same cannot be said of Nigeria’s corporate statute. Consequently, the primary goal of this study is to identify if there is a framework for the exercise of appraisal remedy in Nigeria’s corporate statute. In carrying out this study, this dissertation examines the various components of the appraisal right provision in South Africa in detail. This helps to provide an understanding around the structure and the rationale behind a standard appraisal right provision. It is based on this understanding that certain pre-identified provisions in Nigeria’s corporate statutes will be investigated with a view to identifying potential statutory framework bearing semblance to South Africa’s appraisal right provision.
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    A comparative analysis of the regulations governing mobile money services in South Africa and Zimbabwe and their impact on sustainable financial inclusion of the poor and vulnerable people
    (2022) Mavhuru, Luck; Hutchison, Andrew
    Mobile money services refer to service where a mobile phone is used to provide banking services with little or no involvement of traditional banks. This service has become a powerful tool for bringing unbanked and underbanked people into the formal financial sector. The roll out and success of the service in question has not been smooth in some countries due to stringent financial regulations. The purpose of this study was to conduct a comparative legal analysis of how financial regulations have enhanced or hindered mobile money services adoption in South Africa and Zimbabwe and the extent to which this has helped to increase financial inclusion. Through a comparative analysis of primary and secondary sources of law, this study observed that South Africa and Zimbabwe have contrasting mobile money services fortunes which can be attributed to the regulatory approaches adopted by the two countries towards the mobile money services. South African adopted a no regulation approach requiring any entity that engages in mobile money services to do so within the confines of existing financial regulations. As a result of this, mobile money services have made little to no contribution to the fight against financial exclusion in South Africa. On the other hand, this research found that Zimbabwe has a thriving mobile money service sector. This can be attributed to the test and learn regulatory approach adopted by the country's regulators. At the time of writing this thesis, MTN and Vodacom in South Africa are relaunching their mobile money services after discontinuing the services 5 years ago. Rigid financial regulations were fingered as one of the causes of failure of the first attempt. The author hopes in highlighting the regulatory shortfalls of the approach adopted by South Africa in regulating mobile money services, this thesis will help policy makers, regulators and industry players to develop robust and inclusive mobile money regulatory eco-systems which promote financial inclusion as is the case with Zimbabwe.
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    A comparative review of German and South African environmental law with special reference to pollution control
    (1991) Schulze, Ekkehard
    In this, dissertation the principles, instruments · and remedies of German and South African environmental law are examined, as far as they are relevant for pollution control. The purpose is to investigate whether the two countries can learn from each other. In the beginning three principles are discussed which have been formative on German environmental law. The principle of prevention which aims at minimising pollution regardless of its actual hazard and the polluter-pays principle are considered important for an effective environmental law. In general the so-called principle of co-operation appears to have no specific effectivity. Administrative law is then examined. While control the two there procedures are similar in are substantial differences as far pollutioncountries, as judicial control of administrative acts is concerned. In Germany permits for emitters can be challenged by anybody living in the vicinity of a polluting installation; German 2 administrative courts may always reconsider the merits of an administrative .decision. In South Africa concerned citizens may not contest the licence to operate an installation, unless their real or personal rights are infringed; even in the latter case the normally not consider the merits a decision. courts may In Germany environmental impact assessments and public participation are obligatory in many cases. While in South Africa their implementation is left to the discretion of the Minister of Environment Affairs and other ministers involved. The main difference between German and South African criminal law is that the penalties, in particular fines, are far lighter in South Africa. Environmental protection by means of private-law remedies differs considerably in the two countries. The injunction is a primary remedy in Germany which requires the infringement of real or personal rights of the plaintiff. The interdict under South African law is a subsidiary remedy only available where an action for damages does not afford adequate protection; yet the interdict can be based upon the infringement of rights of personality. 3 Under the new UmweltHG (Environmental Liability Act) strict liability and a presumption of causality has been introduced in Germany for major installations and activities. In South Africa the burden of proving a causal relationship is always upon the plaintiff; strict liability has only been implemented for nuclear installations. In Germany various emission fees and tax concessions are in force or under consideration. In South Africa no financial incentives have been introduced to date to promote emission control. Lastly environmental protection by a means of a human right or legislative objective is examined. The intention is to insert the objective into the German constitution that the environment is to be protected. A similar idea of including a legal principle of environmental protection into the Environment Conservation Act has been abandoned in South Africa. It is suggested that pollution fees should be introduced on all levels in order to minimise pollution. Such fees have in principle proved to be effective Tax law should be supplemented by an improved civil, administrative and criminal law. 4 In the field of civil law strict liability and a relaxation advisable. of the burden of proving Public participation procedures causality is should become mandatory in licensing procedures. should be increased considerably. Criminal penalties In Germany it is advisable to introduce the possibility for an injunction if rights of personality are infringed since environmental degradation does not cause violation of real or personal rights.
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    A comparative study of China's foreign direct investment in Africa: regulation, policy, and legal cooperation
    (2023) Lefifi, Tebogo; Ordor, Ada; Kalula Evance
    A new era of Africa-China legal cooperation in Foreign Direct Investments (FDI) was inaugurated following the successful founding of The Forum on China Africa Cooperation (FOCAC) in 2000. In 2015, China became a capital exporter and adopted a new global strategy to reverse the hegemony comprising norm-making and advising law reforms in developing countries. However, a comprehensive approach is still lacking to determining and understanding the potential impact and influence of China's outbound FDI (OFDI) policy, laws and regulations on Africa's economic development agenda and legal environment. Previous research has interpreted China's increasing outward foreign direct investment OFDI as a byproduct of China's market- or resource-seeking agenda and failed to consider the legal aspects of the relationship. Contrarily, this study argues that China's OFDI influence introduces a novel type of south-south legal transplant that will shape prospective African legislative initiatives, ideologies, and norms. By examining China' legal transplant experience and FDI governance model ideology, this research aims to provide a comprehensive understanding of China's influence on Africa's future legal reforms. The analysis explicitly explores Africa's transplant of China's cyber sovereignty governance model. The study utilises a desktop research study methods using a combination of primary and secondary sources. The data is gathered from research from various sources in official government websites, action plans documents, academic literature, and case studies. A comparative analysis of the benefits and drawbacks of China's and Africa's experiences with FDI regulation and legal transplant are key considerations to the study. The findings of the study reveal and highlight the benefits and challenges of legal cooperation through OFDI and present recommendations for the development of laws with Africa-China characteristics. The research will guide Africa's policy response to regulating Chinese investments in the Continent and guide lawmakers in transplanting laws from China.
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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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    A comparison between the European Court of Justice, the International Court of Justice and the International Tribunal of the Law of the Sea Convention with special emphasis on jurisdiction and enforcement
    (1997) Blum, Jan Burkhard; Devine, D J
    On May 9, 1950 Robert Schuman, the French Foreign Minister, announced his proposal to place the whole French and German steel production under a common High Authority which allowed other European countries the opportunity to participate. In his proposal he took care to provide for the establishment of a court of justice subjecting the new authority to judicial control. One year later, in April, 1951 the European Coal and Steel Treaty (ECSC) was signed in Paris creating the Court of Justice, which was intended to ensure that the new community was governed by democratic principles and the rule of law. Following this, the ratification debates took place in the parliaments of the six countries.
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    A comparison between the manner in which court will second-guess the exercise of a private contractual power, on the basis of public policy, and the manner in which court will second-guess the exercise of public power, on the basis of rationality
    (2021) Du Plessis, James; Hutchison, Andrew
    This thesis considers and compares the standards against which Courts in South Africa review the exercise of private contractual power, on the basis of public policy, and the standards against which Courts in South Africa review the exercise of public power on the basis on rationality. This thesis undertakes this task in four main parts. Firstly, this thesis outlines important theoretical distinctions between legal and nonlegal powers, and private and public legal powers. In this regard, it is argued that what distinguishes a legal power from a non-legal power is the ability of the exercise of a legal power to in and of itself change another person's legal situation. This differs from the exercise of a non-legal, or a "power of influence" which has natural, and no automatically legal consequences, and will only change another legal situation if other (natural) consequences come to bear first. In relation to the distinction between private and public powers, this thesis outlines the traditional justifications for the distinction drawn between private and public power. Drawing on Austin, this thesis proposes that a useful demarcation between public and private powers is that the latter, more peculiarly, regards persons determined specifically, while the former, more peculiarly, regards the public considered indeterminately. Secondly, this thesis unpacks and details the standard of rationality that a Court will hold the exercise of a public power to, and highlights how rationality in this respect is an objective standard that relates essentially to a power's objective and whether or not the exercise of that power is related to that objective. Thirdly, and drawing on the latest pronouncements of the Constitutional Court, this thesis details what public policy requires of the exercise of private contractual power and highlights how what it requires is a value laden and facts dependent inquiry. Fourthly, this thesis goes on to argue that the standard of public policy, to which exercises of private contractual power are held to, is a higher standard than the standard of rationality that the exercises of public power is held to. Furthermore, this thesis argues that while such a situation is justifiable, it may become unjustifiable should Courts begin to misconstrue the fundamental differences between a legal and non-legal, and private and public power. Finally, this thesis submits that another iv cornerstone of South Africa's contract law, namely, that of privity of contract, may be a useful tool that Courts can use to keep balanced, on what this thesis outlines is a tightrope, that Courts have to walk in both having to imbue South Africa's contract law with Constitutional values, while at the same time ensuring that the higher standard that private contractual power wielders are held to, does not become unjustifiable.
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    A comparison of the substantive aspects of impermissible tax arrangements under South Africa's General Anti-Avoidance Rule and the Principal Purpose Test with specific reference to the examples found within the 2017 OECD Model Tax Convention
    (2021) Zebert, Bradley Arthur; Hattingh, Johann
    The Organisation for Economic Cooperation and Development released the 2017 Model Tax Convention on Income and on Capital (hereafter "Convention") which contains a Principal Purpose Test under article 29(9). The practical application of this test is explained with the use of various examples within the accompanying commentary to the Convention. However, various ambiguities both in the Convention and the accompanying commentary exist. The author raises these ambiguities and contrasts them with the general anti-avoidance rule (hereafter "GAAR") found within S80A of the Income Tax Act 8 of 1962. In doing so, the author asked which areas of the Principal Purpose Test are vague and can be interpreted in light of the South African GAAR to assist with attributing a meaning to it. The key findings from this paper identified various areas of the Principal Purpose Test where the GAAR could be used to assist in the interpretation and application of the Principal Purpose Test being the phrases "the principal purpose", "benefit" and "arrangement". Other areas of ambiguity which were also interpreted with the assistance of the GAAR related to whether the Principal Purpose Test contained a business reality test as well as the further aspects of the test relating to its interpretative aspect, subjective enquiry and burden of proof. It was argued that these areas may indicate how the South African courts may apply the Principal Purpose Test in the South African context.
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    A configuration of trade regimes in Eastern and Southern Africa region: Implication for deeper integration and WTO compatibility
    (2003) Busieka, Wycliffe M; Kalula, Evance
    This work has examined the implication the proliferation of identical econOITllC groupings portends for the east and southern Africa region. The thrust of the study here has been to interface and interrogate the incidence of the configuration of integration regimes in the east and southern Africa region. The work has investigated the question as to whether the proliferation of trade regimes has prepared a fertile ground for greater and deeper integration in the region. The thesis has also interrogated the proposition that such proliferation is the very antithesis of the desired goal to promote trade harmonization and reach out for deeper integration in the region. Importantly this work has ventured to query the confluence of identical trade regimes in view of the compatibility imperative as enshrined in the wro legal framework. We have examined the implication this configuration of integration regimes portends for the wro disciplines. This work conunenced with an extensive examination of current works on regional integration regimes in general and integration initiatives within the east and southern Africa region in particular. The interrogation exercise was premised on works, both economic surveys and legal treatises undertaken on the recently concluded EU-SA free trade agreement, the SADC Trade Protocol, the COMESA Treaty and the Cotonou Agreement. The actual texts of these instruments form the bulk of the sources. We note that without exceptlon, significant and to that extent costly restructuring programs will have to be undertaken by States in the east and southern Africa region in response to the disruptive EU-SA trade partnership. We have established that these integration regime scores well on the imperative of wro compatibility. We gather that the present wro structures are not malleable enough for the cash strapped sub-Saharan Africa trade regimes to reconfigure themselves in such a way as to deepen the integration agenda. We have urged for more flexibility in the wro framework on this score to augment integration processes currently crowding the regional landscape. Mataywa W Busieka - 10th July, 2003
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    A consideration of certain aspects of South African civil procedural law and civil jurisdiction
    (1989) Faris, John Andrew; Taitz, J
    A salient defect of South African civil procedural law is its lack of a formally recognised fact-discovery mechanism for the purpose of complimenting the process of pre-trial litigation. This defect comes to the fore when the South African discovery model is compared with those of other Anglo-American jurisdictions. In common with other Anglo-American civil procedural systems, South African civil procedural law has formally incorporated within its rules of court a system of discovery, but its discovery model is restricted to that of documentary discovery. 1 In contradistinction with the South African model, the scope of the discovery models of the United Kingdom,2 Austraiia3 and New Zealand4 is far wider in that they include not only documentary discovery but also fact-discovery in the form of interrogatories. The discovery models of the United States5 and Canada6 are even more liberal than the aforementioned because, apart from the practice of documentary discovery and the exchange of interrogatories, oral depositions as a mode of discovery are also permitted. Seen in this context, there is a notional difference between the South African model and the discovery models of other Anglo-American systems in that the latter recognise and apply fact-discovery as a procedure distinct from documentary discovery. Why is this so?