OpenUCT :: Browsing by Faculty "Faculty of Law"

Browsing by Faculty "Faculty of Law"

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Open Access
1. When to cry, "Sham!" 2. Residence of a trust as defined by its place of effective management
(2013) Stephens, Anthea Louise
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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
Open Access
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?
Open Access
A consideration of certain aspects of standard form contracts and exemption clauses [Microfiche] : standard form contracts, the credit receiver's title to sue ex delicto in instalment sale transactions, the nature of a contract and exemption clauses, the burden proof and exemption clauses
(1981) Van Dorsten, Johan Lourens; De Wet, Johannes Christiaan; Gibson, John
This dissertation, which is divided into four independent parts, deals with two aspects of standard form contracts: the general nature of standard form contracts and the credit receiver's title to sue ex delicto; and two aspects of exemption clauses: the nature of a contract and exemption clauses and the rules of incidence applicable to exemption clauses. In the first part standard form contracts in general are discussed. A brief historical background shows that standard terms and standard form contracts have a long history, but it is only in the last century that they have become predominant. Under the nature and categories of standard form contracts only the general characteristics are discussed; no definition is formulated because the widespread usage would necessitate too cumbersome a definition. Standard form contracts are generally documents in common form containing comprehensive pre-determined provisions designed to regulate all transactions of a particular type. Two classes of standard form contracts are distinguished: model contract forms (or agreed documents), which are specimen forms, incorporating settled practices, used at the discretion of the parties; and adhesion contracts which contain unilaterally fixed terms and are presented on a take-it-or-leave-it basis. Adhesion contracts arise from statutory intervention, regulations of associations or where individuals or business concerns have sufficiently strong bargaining powers. A further classification based on the situation in which standard form contracts operate distinguishes between horizontal or commercial standard contracts; vertical or commercial consumer standard contracts; end-consumer standard contracts; and personal service standard contracts. This classification is useful in that it provides a framework within which to deal with standard form contracts and to determine whether intervention is justified. The advantages of standardisation include uniformity; a saving in time and expense; costing and planning is facilitated; the promotion of economic stability; and legal certainty. The disadvantages include the shifting of the legal and economic equilibrium to the economically stronger party's advantage, the one-sided control of the contractual terms, the imposition of oppressive contracts, the limitation of the profaners' liability and the curtailment of the adhering party's rights and remedies. In the last section, the proposals for reform, various forms of administrative control and judicial control are briefly examined. The drawbacks of administrative control include the cumbersomeness of the administrative machinery which limits the effectiveness of the control, and the fact that general administrative powers are not always u'sed. to deal with a specific problem. The advantages of administrative control are that general measures can be imposed by administrative bodies acting mero motu, if necessary, and, if efficiently run, the process may be speedier because the procedures are generally more flexible. It is submitted that the Israeli and Swedish methods of providing for the submission of standard form contracts for approval prior to general use should be adopted. The disadvantages of judicial control are that until a body of case law develops uncertainty may arise, and many judges are reluctant to become involved in the morality of contracts. The advantage of judicial control is that general powers provide flexible remedies applicable to a wide range of problems. It is submitted that the English requirement that contractual provisions be reasonable to be enforceable be adopted. In conclusion it is recommended that administrative and judicial control be combined: a representative administrative body to provide prior approval and the courts to be given general powers to refuse to enforce unreasonable provisions. The second part examines the credit receiver's title to sue ex delicto in instalment sale transactions. This important academic and practical problem, which was not clarified in the new Credit Agreements Act, is concerned with whether a non-owner who buys on credit has sufficient interest to sue for patrimonial damage to the goods. The approach adopted here is to ascertain who has title to sue under the Lex Aguila; the legal status of the credit receiver/purchaser; and the various solutions adopted by the courts. Title to sue ex delicto is granted to owners and to a limited number of non-owners; of these only the bona fide possessor is ----,=---- entitled to a claim for the full measure of the damage, the others are limited to their id quod interest. Parties without the title to sue must obtain cession of action from the owner. The credit receiver/purchaser possesses the - goods with the intention of becoming owner; he enjoys all the essential rights and duties of ownership; he bears the risk of damage or destruction whilst remaining liable for the full purchase price; and is obliged to compensate the owner for damage to the goods. The case law is divided as to the credit receiver/purchaser's title to sue and where he has been allowed an action in his own right the juridical basis has varied. Actions have been allowed on the following grounds: (a) the contract itself which binds the purchaser to pay the full price after the risk has passed; (b) the contractual assumption of liability for loss; (c) the bona fide possessor analogy; and (d) as possessor being allowed to sue for the id quod interest which amounts to the risk borne, i.e. for the full amount of the damage. It is now clearly established in our law that the credit receiver/purchaser has title to sue because the second and the last ground has received the sanction of the Appellate Division. A brief comparative study shows that it is a widely accepted principle of law that possession gives title to sue. It is recommended that possible comprehensive statutory remedies dealing with remaining problems be examined. The third part examines the nature of a contract and exemption clauses: the relevance of this is that a clear understanding of each will assist in determining the effect of exemption clauses on contractual rights and duties: the exact content of the contractual obligation can then be established. A contract is an obligation-creating agreement which gives rise to various rights and duties: these may be classified into primary and secondary rights and duties to facilitate an examination of the nature and effect of individual provisions. The primary duty is the duty to perform in the agreed manner. The corresponding primary right entitles the creditor to demand performance and may be enforced by the primary remedy, a claim for performance - specific performance or damages as surrogate for performance. The primary rights and duties are binding and effective ab initio. The secondary rights entitle the creditor or injured party to the remedies of rescission or consequential damages: the corresponding secondary duty binds the debtor to make reparation for foreseeable damage caused by the breach. The secondary rights and duties arise ab initio but may be enforced only after a breach occurs. Both primary and secondary rights and duties may arise expressly or by operation of law. Exemption clauses restrict or exclude rights, liabilities, and remedies which, but for the exemption clauses, would form part of the relevant contracts. They have both a procedural and a substantive effect. A brief historical survey shows that in the Roman Law exemption clauses were either formal substantive stipulations or informal pacta adiecta which provided procedural defences. This substantive/procedural distinction was blurred in the Roman-Dutch law where added agreements have a substantive effect. Exemption clauses have a procedural effect if they limit or exclude adjectival or procedural rights of enforcement. The view that they operate as shields to damages by qualifying or excluding existing liabilities under a contract cannot be supported. Exemption clauses have a substantive effect because they are merely provisions which reflect the actual or presumed intentions of the parties and the rights and duties to which they pertain do not and are not intended to come into existence. Exemption clauses may be classified according to how they operate, and a distinction is here drawn between their excluding and limiting effects on primary, secondary, and procedural rights, as well as on special defences. Primary exemption clauses may be divided into primary exclusion clauses, which prevent naturalia or primary remedies from arising and primary limiting clauses, which merely qualify without excluding the naturalia or primary remedies. Secondary exemption clauses may, similarly, be divided into secondary exclusion clauses, which exclude secondary remedies: and secondary limiting clauses, which limit the creditor's secondary rights. Procedural exemption clauses exclude or qualify procedural rights of enforcement. Special defence examption clauses affect the right to rely on certain special defences based on factors such as defects in the formation of the contract or supervening impossibility. The latter two classes of exemption clauses have a procedurql effect whereas the former their effect.This analysis may assist understanding of the nature and effect thereby facilitating the drafting contracts. two are substantive in in gaining a clearer of exemption clauses and and interpretation of the final part deals with the burden of proof and exemption clauses: it examines the meaning of the expression onus or burden of proof and the rules of incidence applicable to the law of contract and exemption clauses. This is clearly relevant because in all disputes concerning the contents of contracts some party must ultimately prove the presence or absence of provisions. The meaning of the term onus, which must be distinguished from the evidential burden, is the duty borne by a litigant to ultimately satisfy the court that he is entitled to succeed in his claim or defence. Some of the more important rules of incidence are the onus rests upon the person who makes an assertion: or who affirms a fact: or against whom a rebuttable presumption of law operates. In the law of contract, the general rule is that the existence and contents of a contract must be proved by the person relying on the contract. This may be done by tendering a signed contractual document. If the terms of the latter are then disputed the defendant must prove one of the following: that it does not represent the true or complete agreement: that it was not signed animo contrahendi: or iustus error. Where exemption clauses are incorporated by implication or by reference the court's approach is as follows: the person is bound if he knows that the document contains writing relevant to the agreement: if he is unaware of the relevance of the writing but the other party did what was reasonably sufficient to bring the terms to his notice, he is also bound. The requirements of reasonable sufficiency and contemporaneousness of notice applies in all cases of incorporation by implication or by reference and the strictness of the requirements vary according to the circumstances of each case. A proper understanding of the incorporated provisions is not generally required; this it is submitted should be varied to require such understanding in circumstances that warrant it, to prevent disavadvantaged parties from being unfairly surprised by the provisions. Moreover, exemption clauses should be printed or suitably reproduced instead of merely referring to them. Only terms which originate in the contractual concensus need to be proved; the naturalia, being normal incidents of a contract do not have to be proved. Persons disputing naturalia must establish special agreements to that effect. Persons relying on exemption clauses must prove their existence and that they cover the acts that caused the loss in question. If liability for negligence is excluded the party covered by the clause need not disprove such liability: if further grounds for liability are alleged, they must be established. To avoid strict or absolute liability the defendant must prove that one of the acknowledged exceptions is applicable or that such liability was modified by special agreements. The application of the general rules to purchase and sale, letting/and hiring, special defences, unreasonable terms, and third parties is also briefly examined. A party who relies on a lawful contract need not prove that its terms are reasonable or conscionable. In the absence of fraudulent or criminal acts contractual terms are gene~ally· enforceable whether they , are harsh or onerous. However, if gross injustice will result the courts will in some cases uphold the defence of exceptio doli. This tendency and the statutory power given in terms of the Conventional Penalties Act does· not provide a general remedy. It is, therefore, recommended that a statutory remedy along the lines of the English Unfair Contract Terms Act be adopted. This would require that persons relying on exemption clauses must prove that they are reasonable to be enforced; this requirement should only be applicable where a marked inequality of bargaining power exists. Third parties are protected by exemption clauses only is intended by the parties; the onus of establishing obviously borne by the third party. if this this is This examination of the rules of incidence shows that the courts are aware of the injustices that could result if exemption clauses are imposed without restriction. Attempts to intervene are limited by powerful precedents and it is recommended that the legislature should provide a remedy which requires that exemption clauses be incorporated in a clear and conspicuous manner; that they be reasonable; and that the burden of proving this be borne by the party imposing the exemption clause.
Open Access
A critical analysis of section 6(4) of the Employment Equity ACT: is it likely to achieve its stated objectives?
(2019) Maharaj, Pranisha; Rycroft, Alan
This dissertation presents a critical analysis of section 6(4) of the Employment Equity Act 55 of 1998 (“EEA”) and seeks to address the question of whether it is likely to achieve its stated objective of giving effect to the constitutional right to equality. In conducting my analysis, I consider the concept of managerial prerogative and discuss what underlies the drive for substantive equality in order to determine why the issue of protection from discriminatory income disparities has been removed from the realm of an employer’s traditional prerogative. Next, I highlight the requirements for establishing a claim of discrimination in terms section 6(4) and the remedies available to a successful complainant. I then turn to highlight the limitations introduced by the statutorily prescribed comparator in section 6(4) before demonstrating that the regulated methodology for assessing the value of work and the factors for justifying a differentiation in terms and conditions of employment give significant deference to employer prerogative. My analysis proceeds to consider whether, following the introduction of section 6(4), an administrative body whose primary function is the conduct of formal investigation into discriminatory pay practices and the resolution of equal pay disputes ought to have been created. I ultimately conclude that section 6(4) of the EEA provides only a partial solution to the issue of discriminatory pay disparities in South Africa and is likely to have a limited effect in contributing to the achievement of the State’s objective of achieving substantive equality. In analysing section 6(4), I draw on the experience of the United Kingdom, the United States of America and Canada. While the socio-economic and political landscapes of these jurisdictions may not be apposite to the South African experience, these jurisdictions have a long legislative history in pay equality issues which assist in establishing a benchmark for South Africa.
Open Access
A critical analysis of statutory deeming in the context of the interaction between South Africa's controlled foreign company regime and model-based bilateral tax treaties
(2020) Daniels, Imran; Hattingh, Johann; Roeleveld, Jennifer
Fiction in domestic tax law is a peculiar legal construct. Set in contradiction, the result is plainly counter-factual. The question arises as to what the fiction means when constructed in the context of tax treaties? This minor dissertation draws a comparative analysis between the statutory construction of two opposing international tax treaty cases, one more recent than the other, in regard to the effect of one particular fiction in domestic tax law – the ‘as if'. In 1997, the United Kingdom court of appeal ruled on Bricom Holdings Limited v IRC. The finding from that decision surrounded the interpretation of the ‘as if' fiction in British Controlled Foreign Company (CFC) rules. In that case, the court found that the reference to ‘as if' was a purely notional definition based on fictional assumptions. These assumptions resulted in a product of artificial calculation, such that when constructed in CFC rules, resulted in a tax charge that was not a charge on the CFC's actual income, but a notional amount based on a notional definition of that income. The notional amount could, therefore, not be provided relief by way of tax treaties. In 2000, South Africa followed the British court's reasoning by updating its domestic Controlled Foreign Company rules with the same ‘as if' terminology. In 2018, the principle which formulated that longstanding argument appeared to be rejected by the same British court in the decision of Fowler v HMRC. The court of appeal reached the opposite result by finding that the fiction arising from the ‘as if' terminology did not represent a notional tax charge. Instead, the ‘as if' assumption created a new and exclusive taxable subject matter on the same income source, alike to statutory deeming. The fictional income arising from that fictional treatment was the substitution of one (notional) source of taxable income for another (actual, but disregarded) source. The deemed character in the computation was, therefore, retained in tax treaties, allowing tax treaty relief. This minor dissertation analyses both cases in order to posit whether or not the net income imputed from South Africa's CFC rules, using the same ‘as if' terminology, may be construed as a deeming rule on the same CFC's income. The finding in this minor dissertation is that an ‘as if' fiction may not represent a purely notional definition. The computation of CFC net income in tax treaties may, therefore, be afforded tax treaty relief akin to statutory deeming.
Open Access
A critical analysis of the Delay Rule in South African Administrative Law post State Information Technology Agency Soc Limited v Gijima Holdings (PTY) Limited
(2022) Basini-Gxokonyeka, Nosicelo Natasha; Ally, Nurina
The State Information Technology Agency's (SOC) Limited v Gijima Holdings (Pty) Ltd was seminal in establishing that the Promotion of Administrative Justice Act, 2000 is not available to an organ of state wishing to set aside its own decision while acting in its own interest. The case is also significant for the impact it has had on the delay rule. This paper identifies a problem presented by what will be referred to as the Gijima principle. The principle suggests that a court may be required to declare a decision unconstitutional in accordance with section 172(1)(a) of the Constitution even if there is no basis for overlooking the unreasonableness of the delay. This paper considers the impact of the Gijima judgement on the delay rule and the continued relevance of the delay rule in administrative law post- Gijima. It will be argued that there are three major challenges this principle poses to the rule of law namely, it promotes arbitrary and opportunistic self-serving reviews by state officials. Secondly, it indirectly promotes disregard of public procurement laws by making it easy for organs of state to undo their decisions. Lastly, it undermines the finality and certainty of decisions, which have the potential to deter prospective suppliers from contracting with the state. This paper critically assesses trends emerging from lower courts in response to the Gijima principle and provides recommendations as to how some of the issues raised by the judgment's approach may be rectified. Overall, I argue that the Gijima principle effectively eradicates the delay rule and that there is a need for continued relevance of the rule in administrative law. The Constitutional Court needs to strike a balance between preserving the delay rule on the one hand and exercising its prerogative to develop the common law on the other.
Open Access
A critical analysis of the implications of the fourth industrial revolution on tax regulation: relevance of the robot tax debate in South Africa from a developing country perspective
(2020) James, Evidence; Titus, Afton
The world is experiencing a paradigm shift exhibited by the unprecedented convergence of the biological, physical, and technological environments. This paradigm shift, occasioned by the Fourth Industrial Revolution (4IR), is transforming the way of life, work, business, the law, and government policy across the world. The introduction of 4IR technologies such as robotization and Artificial Intelligence is threatening massive labour displacements and resultant significant erosion of the tax base. With the full extent of the 4IR yet to obtain scholars, international organisations such as the Organisation for Economic Cooperation and Development (OECD), World Economic Forum (WEF) and governments have initiated policy inquiries and debates to respond to the looming threats and to maximise on opportunities presented by the 4IR. This research falls within the broader context and out of similar concerns to the OECD Base Erosion and Profit Shifting project (BEPs) and as expressed under Action 1 which deals with the taxation of the digital economy. Amongst the proposals to respond to robotization threats to the tax base is the imposition of a robot tax. Therefore, the robot tax debate is the foci of this research. So far, the robot tax debate has been restricted to developed countries and now slowly gaining momentum in developing countries. The South African president, Cyril Ramaphosa constituted the Commission on the Fourth Industrial Revolution in 2019 in response to the dawning realities of the 4IR. The commission is tasked with the mammoth task of deciphering the 4IR and diagnosing its impact across various sectors in South Africa and to report its findings and recommendations. The establishment of the commission on 4IR underscores the imperativeness of this study whose crux is to explore the relevance of the robot tax debate in the South African context representative of developing countries. This is in cognisance of the struggle against inequality, rising unemployment, a broadening budget deficit, stagnant economic growth, and declining revenue collections against a growing demand for free education and social security. Using a doctrinal approach, this research finds that the robot tax debate is not only relevant but imperative in developing countries and that the socioeconomic circumstances present in these countries aggravate the negative impact of 4IR.
Open Access
A Critical and Comparative Analysis on the Effect of Business Rescue on Creditors’ Rights against Sureties
(2018) Tsangarakis, Andreas; Hutchison, Andrew
Business rescue proceedings have been introduced into South African company law under chapter 6 of the Companies Act 71 of 2008. The United States Chapter 11 bankruptcy model was closely consulted by the legislature when drafting chapter 6. Further to this and although business rescue has been generally well received, there have been legal issues which have arisen in the interpretation of chapter 6. In particular, the issue of creditors' rights against third party sureties of financially distressed companies continues to fall under the spotlight which, in tum, has caused a ripple of commercial uncertainty to filter through to creditors. This issue will be investigated with comparative reference to the position in the United States. In doing so, a critical analysis will be undertaken of the procedures and processes in both of these jurisdictions, whereafter a comparative analysis will be presented. It will be advocated that although the essential difference between the two jurisdictions is the United States' legislative regulation on this issue, South African courts have correctly decided on creditors' rights against third party sureties. Unlike in the United States where conflicting decisions have been delivered, commercial certainty on this issue does in fact exist in South Africa notwithstanding the lack of statutory regulation under the Companies Act. It will be further advocated that although there is potential for this issue to be development under the South African common law when having regard to the decisions in the United States, caution is to be exercised as such development may generate commercial uncertainty.
Open Access
A critical assessment of the conciliation hearing in Germany and South Africa from a comparative point of view
(2022) Ilies, Ines; Rycroft, Alan
This work gives an overview of the resolution of individual labour disputes through conciliation in Germany and South Africa. In a rapidly evolving labour environment, parties have an increased interest in obtaining legal clarity on the outcome of a dispute. Neither employers nor employees can afford delays. Access to justice is essential. An amicable settlement serves this aim and is likely to bring the dispute to a swift end in a speedy and inexpensive proceeding. Thus Germany and South Africa both developed a mechanism of mandatory conciliation as the starting point of every individual rights dispute, which aims to grant easy and fast access to justice at a low cost. In South Africa the Commission for Conciliation, Mediation and Arbitration (CCMA) has been established to resolve individual labour disputes through conciliation. In Germany a preliminary conciliation hearing takes place before the chairperson in the Labour Court of first instance. This work aims to critically assess the conciliation procedure in both countries, illustrate similarities and differences and suggest improvements. The question that arises is: what are the significant elements in the conciliation procedure of both countries and how do these elements impact the process and success rate? This research attempts to answer this question.
Open Access
A critical discussion of the collective bargaining provisions in Labour Relations Act 66 of 1995
(1996) Marinus, Grant Brett; Thompson, Clive
The Labour Relations Act of 1995, hailed as an achievement to rank in importance alongside the Industrial Conciliation Act of 1924, remains the legal punchbag of the nineties. Despite its hurricane passage through NEDLAC and Parliament, the criticism generated by its predecessor (the Draft Bill) remains for the most part unanswered. It would appear that the drafter's optimism, epitomised by the kind fashionable, rhetoric that has become equally synonymous with this the age of co-operation and reconstruction, will have to suffice.