OpenUCT :: Browsing by Subject "commercial law"

Browsing by Subject "commercial law"

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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 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 tax theory approach to income tax relief for black-middle class taxpayers contributing to the support of family
(2022) Ndebele, Zandile; Gutuza, Tracy; Moore Elena
The purpose of this thesis is to examine income tax relief measures for taxpayers with dependants in South Africa. This research has found that taxpayers who are black and middle-class are likely to make contributions to the support of household member and non-household member dependants. This is also supported by literature from the United States, where black middle-class individuals are found to make significant contributions towards the support of their kin when compared to other races. This support which a black middle-class taxpayer gives to their dependants entwines with their ability-to-pay in tax law. A taxpayer's ability-to-pay is reduced by the contributions made to their dependants. For this reason, it is relevant to examine the intersectionality of race, class, and family circumstances with tax law. The black middle-class are an interesting demographic in South Africa and are referred to as a “precariat class” because of the uncertainty and insecurity linked to this class. In 2021, the black middle-class carry a burden to contribute towards the support of dependants. This burden was imposed on them first by apartheid policies which excluded black South Africans from receiving social welfare assistance and then by racial and economic inequalities in post-apartheid South Africa. Through discussions on social justice and tax equity, the thesis finds a basis for income tax relief measures for taxpayers with dependants in South Africa. The introduction of such a tax system would allow the black middleclass taxpayers to take advantage of the income tax benefits. The definition of family and the definition of a dependant in allowing for the income tax benefits will be important. These definitions should reflect the meaning of family as understood by South African taxpayers. That way, the disparate impact, and unintended consequences of the income tax benefits on those that use these benefits are avoided to an extent.
Open Access
AfCFTA: the remedy to an enduring mischief?
(2022) Murphy, Liam Cailean; Ordor, Ada
The pervasive legacy of colonialism and neo-colonialism is steadfast. This mischief has been and is afflicting African trade and development. Its influence has permeated the ideological foundation of African integration and has been inimical to growth on the continent. The African Continental Free Trade Area agreement is the African Union's hopeful attempt to remedy this enduring mischief. The scope of AfCFTA indicates that State Parties have adopted the multidimensional approach of developmental regionalism to remedy Africa's developmental challenges. However, to fulfil the precepts of this model, State Parties will have to engage in further deliberations to expand AfCFTA's scope and tune it to the nuances of African developmental ills. Furthermore, in its current form, AfCFTA fails to resolve historical implementation hurdles and overlooks foreboding supranational crises. AfCFTA rests on Pan-African idealism and not pragmatism. Thus, if the implementation challenges and supranational crises are left unaddressed, Pan-African solidarity will fracture and State Parties will retreat into their sovereignty. Therefore, idealism must be balanced with pragmatism to forge robust collectivism to drive the remedy of Africa's enduring mischief. Only time will tell whether AfCFTA is a meretricious symbol of integration or a concerted and substantive effort to develop and unite Africa.
Open Access
African regional integration track: challenges and prospects
(2018) Madala, Sithembele; Ordor, Ada
Africa has been very slow in effectively implementing regional integration and trade agreements and has made little progress to achieve its stated objectives, especially the goal of eradicating poverty and promoting development. In addition, the economic integration model currently being pursued in Africa suffers from several challenges and has not achieved its goals, because of among other things, weak legal and institutional frameworks, and lack of support from ordinary African citizens and the private sector. In light of the above, this research investigate the appropriateness of this model. This research begins with the theoretical discussions of integration and identifies the existing gaps within the African regional integration process. This reveals that there are not only foundational and definitional disparities within the African regional integration process but also that Africa lacks the necessary prerequisite for any successful regional integration. In particular, this research reveals that the institutions that are mandated to accelerate regional integration process lack the necessary capacity to achieve regional integration process. The discussions of theories behind regional economic integration reveals that the understanding of regional integration in Africa are rooted in the economic understanding of regionalism with insufficient attention given to the importance of strong institutional and legal frameworks and a human centred development. Importantly, these discussions reveal that the European integration economic model that was a success in European Community has been adopted in Africa without reviewing its appropriateness for the continent. The debates of the history of African regional integration in Africa demonstrate that regional integration process is not a new phenomenon in Africa and that African leaders have always embraced integration and have perceived it as a way of addressing Africa’s social and economic challenges. Importantly, the discussions of the history demonstrate the role African leaders played in fighting colonialism and dismantling the apartheid system in South Africa. Unfortunately, these discussions also show that after independence Africa was a continent faced with many challenges. In particular, history shows that after independence African leaders gave little support to Pan Africanism which had been driving force behind decolonisation and became oppressive and in many instances, committed human rights violations against their own people. This state of affairs has led to economic development being sacrificed. The discussions of the benefits of economic integration shows that while there are benefits linked to economic integration such as the reduction of poverty and development in countries such as China, India and Thailand, for Africa is unable to deal with the challenge of poverty and underdevelopment . African countries continue to witness increasing levels of poverty and poor development while few businesses and political elites remain the main beneficiaries of the economic integration model. The analyses of the institutional and legal structures reveal that the institutions mandated with regional integration and the laws governing regional integration process are either weak or nonexistence. This is demonstrated by the slow implementation of regional projects. Even though Africa has made significant steps to facilitate its regional integration, it has been unable to deal with the challenges confronting the continent, especially the rising levels of poverty and underdevelopment. While this this research supports and approves the steps that have been adopted to facilitate regional integration and trade, nevertheless this research observes that institutions that are mandated to drive regional integration have been unable to promote African regional integration. Africa lacks the necessary infrastructure and human capacity to achieve regional integration. The research question therefore is whether the economic integration model currently being pursued in Africa under its existing framework is the appropriate model for African regional integration since it is not supported by a proper legal system and the African people and does not directly address the issues that confront ordinary African citizens? While the author observes that Africa has considerably improved its trade and strengthened its integration process, the author nevertheless concludes that the economic integration model currently being pursued in Africa is unlikely to succeed, because it does not take into account African realities and lacks the necessary prerequisites for successful economic integration.
Open Access
An analysis on taxation of South African residents who are employed and working outside the territorial borders of South Africa
(2022) Salie, Mogamat Shakir; Gutuza, Tracy
I am an Operational Specialist in the learning and development department at my company and I am often faced with questions on the tax treatment of employed individuals working abroad. It is for this reason that I have chosen to dedicate my research in this area. South African tax legislation on the exemption of foreign employment income has been amended with effect from 1 March 2020. These amendments affect the taxation of South African tax residents who are employed and working outside the territorial waters of South Africa. Furthermore, these amendments do not consider the exemption of non-employment foreign income. This analysis has only considered employed individuals who are tax resident in South Africa and who have not formally emigrated from South Africa. The aim of this analysis is focused on the equitable and neutral tax treatment between employment income and income earned from other services rendered following the amendments. I have centred my analysis around equity and neutrality by comparing the different tax treatment of employment income and other forms of income. This analysis seeks to answer whether the amendments to the tax legislation support equity and neutrality. The key findings from this analysis have given me a better understanding of the rules and regulations around the amendments. I am now able to offer sound advice to my clients who in turn will make more informed decisions when planning their international employment assignments. In addition to the above, I hope that my analysis below will contribute towards any future research that may be done in this area.
Open Access
An evaluation of the adequacy of the existing framework for source-based taxation in South Africa as applied to the new business models proliferated by the digitalisation of the economy
(2022) Roche, James; Hattingh, Johann
The advent of digitalisation has fundamentally shifted the manner in which the commercial world carries on business away from the traditionally established brick-and-mortar business models. The thorough permeation of digitalisation through the economy has resulted in the proliferation of new digitalised business models. Resultingly, there is growing concern that economic actors are increasingly able to avoid, remove or significantly reduce their tax liability within the existent framework which was conceived in light of traditional business models. Moreover, the emerging business models are able to take advantage of the affordances of the digitalisation of the economy to increase their geographic commercial reach, alter the manner of value creation and operate substantial business functions within a jurisdiction without the traditionally concomitant taxable or physical presence. Therefore, this dissertation evaluates and examines the adequacy of the existing South African framework for source-based taxation in its application to the new digitalised business models. Primarily, it is established that the ‘benefit theory' provides the theoretical justification for the imposition of tax on the basis of source, and therefore provides the normative framework through which the adequacy of the existing South African source rules is determined. Both the statutory rules and judicial approach to the determination of source are found to be inadequate in their application to the new digitalised business models. There is limited scope for the application of the existing statutory source rules, contained in s9 of the Income Tax Act, to the digitalised economy. The absence of a statutory rule for the determination of source with regard to digitalised business models places pressure on the judicial approach, which is ill-equipped to deal with the complexities of the digitalised economy. There exists limited scope to extend the judicial approach to determine the source of income in the absence of activity or physical presence on the part of the taxpayer. The introduction of statutory rules, as recommended by the Davis Tax Commission, has not yet materialised. The international project toward addressing the tax challenges of the digitalised economy provides some guidance in the formulation of a South African statutory response. The revenue sourcing rules – which determine the jurisdiction from which the revenue was derived – proposed by the Organisation for Economic Co-operation and Development and the African Tax Administration Forum provides for the identification of a sourcing principle for different streams of revenue, with a hierarchy of indicators to determine the source. This approach is advantageous in that it is cognisant that for different business models, different revenue souring rules are more appropriate and accurate. Alternatively, the approach adopted by the United Nation relies on the ‘payer principle', which is similar to the recommendation made by the Davis Tax Commission. However, the payer principle is criticised as it fails to allocate taxing rights to the place where the value was created.
Open Access
An examination of the law relating to inherent vice in marine insurance
(1988) Kaplan, Jonathan
It is proposed in this thesis to analyse the law relating to inherent vice in South Africa and in so doing to develop a range of tests for application in instances where the defence of inherent vice is pleaded as an exclusion.
Open Access
BEPS action 14 – the effectiveness of the dispute resolution proposals, with specific reference to South Africa
(2020) Lalor, Diane Susan; Hattingh, Johann
The focus of this minor dissertation is on the dispute resolution methods proposed by Action 14 of the Base Erosion Profit Shifting (BEPS) Project. The BEPS Project' was introduced in 2013 by the OECD working together with the G20 and other states to reform the international tax framework. The reform was necessary to deal with the challenges posed by globalisation. The existing international tax framework had not changed for many years and was unable to deal with these new challenges. As stated by the OECD in its Explanatory Statement in 2013, there was a need to build an international tax system to support economic growth and a resilient global economy. The report highlighted that the loss to international corporate income tax caused by these challenges was between 4% and l 0% of global corporate income revenues. As part of the proposed reforms, the report highlighted the need for new measures to address the problem of BEPS as well as provide a structure to support these newly introduced measures. Improving the international dispute resolution mechanisms was identified as an essential structural reform to support the new BEPS measures, as it was anticipated these measures would give rise to more inter-State disputes.
Open Access
Beyond the Corporate Veil a commentary on the approach of the South African Courts to the question of lifting the corporate veil, with particular reference to a tax-avoidance based structure in common use in South Africa at this time
(1994) Perrins, R H
"The Court of Appeal has declared that the formation of the respondent company and the agreement to take over the business of the appellant were a scheme "contrary to the true intent and meaning of the Companies Act". I know of no means of ascertaining what is the intent and meaning of the Companies Act except by examining its provisions and finding what regulations it has imposed as a condition of trading with limited liability .... we have to interpret the law, not make it." Salomon v Salomon & Co Ltd, per Herschell, LJ. Thus the starting point of the court in this seminal case (which has been followed ever since in regard to corporate personality) was to interpret the law as they found it in the Act - if the formalities had been complied with a separate judicial person came into being: 2 "The Company is at law a different person altogether from the subscribers to the memorandum; and, although it may be that after incorporation the business is precisely the same as before, and the same persons are managers, and the same hands receive the profits company is not in law the agent of the subscribers or trustee for them".
Open Access
Company law and the interests of company employees
(1991) Venter, Willem Mattheus
The present state of law in South Africa appears to create a dichotomy between labour lawyers on the one hand, and commercial lawyers applying their revered company law principles, on the other. This dissertation will deal with some aspects of law which create tension between the two and discuss some solutions towards resolving such tension. The development of the employment relationship makes it imperative to remove from labour law excessive influences of patterns of company law which may exacerbate the relationship between employer and employee. I Some of the difficulties created by company law which manifest themselves in the employment relationship will be examined. This task becomes necessary in order to find some means in the South African labour scene, towards lessening conflict between employers and employees. One needs to search no further than to consider an example such as the impact of sophisticated mergers or take-overs. The application of the legal fiction of the separate entity of a company in these circumstances is perhaps too rigid to inflict upon a relatively unsophisticated .workforce which otherwise enjoys little or no assistance from company law. There is also no touchstone in South African law to guide company directors towards recognising the need for some form of protection of company employees since the. company director is currently bound, in the exercise of his fiduciary duties, to act only in the "interests" of his company. It seems more than likely that South Africa will have a mixed economy . based on market principles for the foreseeable future until constitutional · issues have been laid to rest. The future South Africa is not likely to have a political economy which is either vigorously worker controlled or entirely I free enterprise in character. This may dictate future policy, but the need to be resilient during the period of change, is imperative. This prognosis of the South African labour law scenario makes it extremely difficult to attempt to lay down strict guidelines for dealing with the problems, but a closer examination of the shareholder/ employee positions within a company, the duty of directors, legislation and socio-political trends impacting upon companies, may result in alleviating at least some of the social disorders created by retrenchments. The current situation within the country with its massive unemployment, demands that labour law and its peer, company law, recognise the effect of loss of employment on the wellbeing of workers and that it is inevitable, in instances where tensions are created between these disciplines, that these be addressed to attain urgent conciliation. This may conceivably add to the fiduciary duties of directors of companies by setting mandatory standards which will recognise the severe socio-economic impact of dismissals. It must somehow also be captured within the ambit of the "interests" of a company which the director is obliged by common law to protect. Loss of employment as a result of workforce reductions is widely seen as a major social issue requiring the attention of policy-makers at governmental level as well as that of industry and of undertakings. Lawyers also, must not be seen to be lacking in ability and willingness to create an equitable balance in the modern.day employment relationship. In the last decade, at least, policies applicable to workforce reductions have undergone considerable development in many countries through legislative or administrative action and collective bargaining. It is the purpose of the present study to attempt, through the medium of company law, to address some of these issues with the view to attenuating their dire social results and thereby create a territory on which commercial lawyers and labour lawyers are able to exist in relatively peaceful condominium. This dissertation examines the effect of the company as a legal person and argues for a change in the "interests" of a company from a solely profit making enterprise, to one which, by force of circumstances, must change to keep pace with developments in the employment relationship. This inevitably leads to a discussion of the relationship between the shareholders of a company and its employees and an examination of extended duties of its directors. This becomes necessary if the welfare and interests of a company's employees are to be catered for. Finally, some comment on take-overs, mergers and transfers will be offered and a conclusion, which includes some aspects of juridification, is reached.
Open Access
Copyright in the music industry: the protection of artists' rights against exploitation in South Africa
(2022) Mayeza, Mzimasi; Ncube, Caroline; Okorie, Chijioke
Over the years, artists who were once the biggest selling artists in the South African music industry have been witnessed to have no financial or other resources upon their death; or when they left the record labels they were signed to, their careers faded and they had nothing to their name. There have been numerous allegations from artists about the treatment they have received from their record labels, particularly with regard to being inadequately compensated for their work and record labels not honouring the agreements they had with them. This dissertation examines how copyright law, as applied to the music industry, solves or tries to solve the problem of artists who die or live as paupers, after having been among the biggest selling artists in the country. It evaluates whether copyright law provides any mechanism to deal with the alleged exploitation that has existed for a very long time in the music industry. Understanding that the purpose of copyright protection is to incentivise authors and motivate them to create more works, the dissertation evaluates whether copyright law has any specific provisions to safeguard this purpose. The dissertation further considers the principles of contract law as a tool used to create binding agreements between artists and record labels. The dissertation argues that the contracts that artists and record labels enter into are unfair, which is as a result, amongst other things, of the imbalance of the negotiating power of the two parties.
Open Access
Formalising the informal: The ‘fate’ of Village Banks
(2018) Bolton, Katy May; Hutchison, Andrew
As our lives become more and more regulated by the powers that be, it is pertinent that there be acknowledgement of the people that are subject to these rules. When government attempts to regulate aspects of human lives, these regulations exist alongside the embedded mores of communities and the resulting social constructs.1 For this reason, one cannot dismiss the relevance of informal practices when discussing the formal sector and the prospect of regulation of such. With the gradual ‘financialising’ of those previously thought of as ‘unbanked’, there is a steady move toward increased interaction with credit, savings and financial transactions in general.2 Elizabeth Hull notes that as this trajectory continues, there has been a shift in efforts to provide financial services to those who fall outside of the formal sector. 3 The enthusiasm of such efforts has however differed between the informal and formal sector. Formal financial service provision for the poor is still severely lacking, due to the systemic flaws in financial institutions, which include high transaction costs, the need for collateral and stringent regulations.4 As a result of these inadequacies, informal financial services have flourished as they aim to mitigate the flaws associated with the formal sectors, in the hopes of fostering inclusion and pursuing economic sustainability.5 The Village Bank is one such informal financial service. The term ‘Village Bank’ is one widely used in the economic and anthropological literature to describe a member-based bank, usually operating at the intersection of the formal and informal sectors. I will use this terminology throughout my dissertation to reflect the concept as framed in the social science literature. In part 1.4 below, I give further details as to a possible definition of the Village Banks concept.
Open Access
Labour regulation in the on-demand economy: an ‘uberfication’ of the status quo?
(2019) Bruce, Caitlin; Le Roux, Rochelle
Uber has reached rock-star status in the world of 'gigs’, 'rabbits’ and 'rides’ known as the 'on-demand economy’. Uber is but one in a sea of online platforms that seek to link clients with workers offering traditional services like transport, cleaning, repairs or running errands. These platforms act as a mediator between clients and workers and often set minimum quality standards, manage the payment process as well as the supply of work. However, as these platforms gain prevalence in today’s labour market, the question of worker protection comes rushing to the fore. On the one hand, these platforms are praised for having reduced the barriers to income for individuals who might not readily be able to enter the traditional labour market. On the other hand, critics of the on-demand economy argue that companies, like Uber, shift risks to their employees by misclassifying them as independent contractors, thereby weakening labour protections and driving down wages and in favour of their own profit margins. The question of whether Uber drivers are employees or independent contractors has sparked debate in the US. This study seeks to engage in this debate albeit in the South African context. In the absence of a definitive pronouncement from a South African decision maker as to the status of Uber drivers, the core research question posed by this study is whether Uber drivers are employees under South African law. The objective of the study is to determine whether existing labour laws in South Africa offer adequate protection to workers, like Uber drivers, in the on-demand economy. It will be argued that Uber drivers do not neatly fall within the definition of employee in section 213 of the LRA. However, Uber drivers do not neatly fit the category of independent contractor either. The fact that the aspects of the 'uberfied’ work relationship do not seem to speak to the factors enumerated in the South African tests of employment suggests that perhaps these factors are outdated in the context of the on-demand economy. But, this is not a new problem. It will be argued that the problems faced by 'gig’ workers in the on-demand economy should be viewed as an extension of a broader trend towards the casualisation of labour. In this sense, it can be said that the type of work relationship created by companies like Uber, is simply an 'uberfication’ of the status quo. In other words, companies like Uber have done no more than give the non-standard employee a smart phone application with which to earn an income.
Open Access
Non-standard employment in South Africa: how have we adapted in the past five years post amendments related to non-standard employment?
(2020) Mitchell, Alma Martha; Le Roux, Rochelle
Non-Standard employment in South Africa: How have we adapted in the past five years post the amendments related to non-standard employment? Chapter 1 This chapter introduces the research question. Chapter 2 Focus on legislative history pertaining to non-standard employment. Chapter 3 Review four cases prior to the recent amendments with regard to the protection of non-standard employees. 3.1 Assist Bakery 115 CC v Ngwenya N.O. and Others. 3.2 Enforce Security Group v Mwelase and Others. 3.3 Piet Wes Civils CC and Another v Association of Mineworkers and Construction (AMCU) and Others. 3.4 Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others. Chapter 4 Conclusion in response to the research question.
Open Access
Open and freemium music business models in Africa - copyright and competition consequences
(2018) Okorie, Chijioke Ifeoma; Ncube, Caroline
This thesis considers how South Africa and Nigeria can apply copyright and competition laws to regulate the open and freemium music business model that involves the use of copyright-protected music content to generate revenue from advertising. To enhance their competitiveness and escape copyright infringement liability, the firms that deploy the business model impose contractual terms to explain their use of protected content and direct the actions of platform users. Using case law from the Court of Justice of the European Union (CJEU), the thesis argues that although these terms result in free and wider distribution of copyright content, some aspects of their implementation may be unaligned with the regulatory framework. The thesis finds that these misalignments exist because the non-payment of royalties to copyright owners and their exclusion from revenue-sharing arrangements may adversely affect their viability of copyright owners as small and medium-size enterprises (SMEs) while their inclusion necessitates the imposition of restrictions that may prevent innovative uses of copyright products. Further, the thesis finds that the misalignments are caused by legal uncertainties regarding the exclusive rights of the copyright holders and the scope of their limitations and exceptions, as well as unavailability of competition law enforcement criteria that protect the economic freedom of SMEs including copyright owners. Because of the copyright covering the music content and its use in the economic activity of advertising, which is regulated by competition law, the thesis argues for aligning the business model with the regulatory frameworks. Further, the thesis argues that by ratifying international copyright treaties in ways that provide exclusive rights limited by compulsory licensing, and by amending and enforcing competition law to recognise unconscionable conduct as xiv anticompetitive, copyright and competition laws may be used to regulate the open and freemium music business model. By adopting a South African and Nigerian perspective and proposing competition law solutions, this study aims at filling a gap in the academic literature, which does not appear so far to have attempted a pro-Africa assessment of the business model and/or considered the complementary role of competition law in copyright-related industries in specific jurisdictions.
Open Access
Policy harmonisation, regional integration and energy security: the participation of independent power producers in the Sub-Saharan African energy sector
(2019) Pailman, Kelsey Amy; Mostert, Hanri
The United Nations Sustainable Development Goal Seven (SDG 7) promotes access to 'affordable, reliable, sustainable and modern energy for all’. Sub-Saharan Africa is however characterised by high levels of energy insecurity. Regional integration is a way in which energy security in the region can be achieved through the sharing of resources, infrastructure and expertise. Electricity trade in Sub-Saharan takes place primarily through the Southern African Power Pool. The Power Pool consists of 13 member countries that import and export electricity across transmission infrastructure. Regional integration is however hampered by unreliable state-owned centralised grids. Many grids in sub-Saharan Africa do not have sufficient energy generation capacity for regional trade. Independent Power Producers (IPPs) promote regional integration and energy security by increasing a country’s energy generation capacity and diversifying its energy mix through renewable energy sources. Sub-Saharan Africa currently lacks a harmonised policy framework on the participation of IPPs in national energy markets. This thesis argues that a harmonised policy framework on IPP participation on a national level can increase electricity trade and energy security regionally.
Open Access
Promoting creative economies in Nigeria and South Africa through communal and collaborative intellectual property rights strategies
(2022) Chuma-Okoro, Helen; Schonwetter, Tobias, Ncube, Caroline
The contention against and for extending intellectual property rights (IPRs) to traditional cultural expressions (TCEs) is strong on both sides: on one hand IPRs remain largely incompatible with TCEs and inadequate for safeguarding them. On the other hand, TCEs need protection in the interest of both the knowledge and their owners. The main challenges for Nigeria and South Africa as developing African countries in harnessing the benefits of their creative economy by exploiting the potential of their TCEs, particularly tradition-based arts and crafts, are tied to these contentions. IPRs remain the dominant framework for reaping the benefits of the creative economy; yet there are conceptual and practical challenges in applying IPRs to fully exploit the economic values of TCEs. Adopting a desktop and library-based research approach, this thesis seeks to resolve this dilemma by relying instead on alternative interpretations of narratives that underpin the dilemma, to justify the protection of tradition-based resources via IPRs. It also relies on the utilitarian outcomes from exploiting TCEs as valid rationales for the use of IPRs by the two study countries to fully exploit the economic benefits of their tradition-based arts and crafts. It examines how communal IPRs constitute a strong point of convergence between IPR and TCEs in ways that make them compatible and suitable measures to help derive greater benefits from TCEs in the market environment. It highlights the connections between the sector and the creative economy, and the socio-economic benefits of this nexus as justification for promoting, protecting and preserving tradition-based arts and crafts; and the suitability of communal IPRs in achieving these tripartite objectives. It concludes that the extant laws of the two countries do not adequately support the effective use of communal IPRs to achieve the objectives as such, and makes recommendations for addressing the gaps.
Open Access
Protection of traditional knowledge, an incomplete victory, towards inclusion of gender considerations in traditional knowledge protection: a Zambian perspective
(2022) Sinkala, Ruth Mulenga; Ncube, Caroline
This thesis explores the important issue of protection of traditional knowledge from a gendered perspective. More specifically, it seeks to explore the traditional knowledge protection landscape in Zambia in the context of gender sensitivity and gender responsiveness. It further delves into the role of gender considerations in traditional knowledge protection in the achievement of Zambia's national and international development goals. The work relies on desktop research. It draws on primary and secondary sources of information to inform the analysis, provide the necessary background to ground and situate the research. This thesis argues that a gendered approach to TK protection is justified and important. Based on analysis of the prevailing traditional knowledge protection regime in Zambia, the thesis finds and contends that the current protection available is neither gender sensitive nor gender responsive. Further, the current traditional knowledge protection provided in Zambian legislation falls short in various aspects. The role of gender sensitive and gender responsive traditional knowledge protection in the achievement of Zambia's national and international development objectives as expressed in the Zambian Vision 2030 and Sustainable Development Goals is also explored in the work. This thesis suggests that Zambia's traditional knowledge protection regime must be changed to include gender considerations. It presents recommendations for change for Zambia from a legislative perspective partially based on emulating the traditional knowledge protection strategy adopted in Kenya. Gender considerations in traditional knowledge protection legislation in Zambia must be included to ensure that protection is real and effective for women. Through this work it is hoped that attention is drawn to the urgent need for decisive changes in the traditional knowledge protection regime in Zambia in the context of gender sensitivity and gender responsiveness.