Masters Degrees (Mercantile Law)

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  • ItemOpen Access
    Rationale and rationality of South African ICC withdrawal: analysis, critique and the way forward
    (University of the Free State, 2020-12) Milnes, N.; Swanepoel, C. F.
    Informed by the strained relationship between the ICC, South Africa and the African Union, and the subsequent 2016 South African notice of withdrawal from the ICC, this dissertation considers whether the African Court on Justice and Human and Peoples Rights (ACJHPR) may be regarded as a viable substitute for the ICC and its system. It also considers the substantive issues that may arise out of South Africa’s withdrawal, should it still wish to withdraw from the ICC, particularly with consideration of the continued protection of human rights and section 7(2) of the South African Constitution. Considering a closed parameter of factors, the research demonstrates that after an initial strong show of support from Africa, the relationship between the ICC and the AU is disintegrating, mainly as a result of the Al Bashir matter. This led to: (a) South Africa filing a notice to withdraw from the ICC with the UN; and (b) the AU extending the jurisdiction of the ACJHPR to assume jurisdiction over the prosecution of individuals for international crimes. The dissertation compares the jurisdictions of the ICC with that of the ACJHPR and finds that even though the provisions of the Rome statute were painstakingly deliberated upon, there are still areas that are lacking in clarity. The research also shows that the Malabo Protocol was drafted in haste, which will not only impact the definitions of the crimes within the court’s jurisdiction but will also place an enormous financial burden on its contributors. The most concerning aspect of the Malabo Protocol relates to immunity. The immunity provision furthers the view that African leaders are reluctant to contemplate the possibility of being judged for their actions. In the case of Democratic Alliance v Minister of International Relations and Cooperation and Others, the Executive’s decision to withdraw from the ICC was found to be procedurally unconstitutional. The court did not address the substantive validity of the withdrawal. In an attempt to address the question of whether a withdrawal from the ICC may constitute an unconstitutional “regressive measure”, the researcher proposed the possibility of the Court declaring that a withdrawal may be constitutional, subject to the withdrawal taking place under court supervision in terms of a structural interdict. In this way, the court may ensure that a withdrawal from the ICC is not only procedurally correct but substantively justified. In conclusion, the research finds that popular support for the Malabo Protocol by African states seems bleak. It also seems unlikely that in its current form, the Protocol will ever become fully operational, simply because of its budgetary constraints. In the final instance, the research deduces that the ACJHPR will not become a viable substitution for the ICC and its system, mainly because of the immunity provisions in the Malabo Protocol. The researcher recommends that Article 46A bis of the Malabo Protocol be removed so that no immunity is provided to any individual, regardless of official position. Article 46H of the Malabo Protocol should be amended to clearly provide for continued cooperation with the ICC. Moreover, the AU ought to consider a provision with the effect that cases over which the ICC has jurisdiction are referred to the ICC by the ACJHR. This stipulation should apply at least until such time as the ACJHR has established itself well enough. To this end, consideration should be given to a gradual phasing in of the crimes within the ACJHR jurisdiction.
  • ItemOpen Access
    The protection of minority shareholders in affected transactions: a comparative study
    (University of the Free State, 2000-11) Du Toit, Sandra; Henning, J. J.
  • ItemOpen Access
    Ontslag van maatskappydirekteure in die Suid-Afrikaanse reg
    (University of the Free State, 1986-01) Du Plessis, Jean Jacques; Henning, J. J.
    Afrikaans: Daar bestaan heelwat onsekerhede aangaande die ontslag van maatskappydirekteure in die Suid-Afrikaanse reg. Hierdie onsekerhede spruit hoofsaaklik voort uit die gebrek aan 'n konsekwente onderskeid tussen die verskillende hoedanighede waarin 'n enkele persoon teenoor die maatskappy kan staan en dié waarin hy kan staan teenoor ander individue wat by die intrakorporatiewe verhoudingstruktuur betrokke is. 'n Faktor wat gewis 'n verdere verwarrende invloed het, is die feit dat daar aan 'n begrip soos "besturende direkteur" tans geen vaste regsinhoud gekoppel kan word nie. Juis daarom word die regsposisie van die direkteur en besturende direkteur in die besonder oorweeg en word daar gewys op aspekte soos die begripsverwarring tussen die Engelse en Suid-Afrikaanse reg, probleme ten opsigte van die onderskeid tussen werknemerskap, direkteurskap en besturende direkteurskap, en word die nie-kontraktuele verhouding tussen die direkteur en die maatskappyook oorweeg. As gevolg van ontslag kan daar in sekere gevalle 'n reg op skadeloosstelling of skadevergoeding bestaan. Alhoewel die grondslag van die reg op skadevergoeding nie al tyd konsekwent verklaar word nie, kan die aanwending van gewone kontraktuele beginsels 'n belangrike rol speel in die oplossing van bestaande probleme rondom die reg op skadevergoeding. Indien kontraktuele beginsels suiwer toegepas word en die besondere posisie waarin die direkteur hom bevind, in ag geneem word is daar geen klaarblyklike rede waarom die ontwikkeling op hierdie gebied nie op 'n behoorlike beginselgrondslag geplaas kan word nie. Faktore wat egter ongetwyfeld in samehang met die kontraktuele oorwegings beskou moet word, is onder andere dat ontslag ingevolge bepalings in die maatskappykonstitusie of ingevolge die statutêre middel kan geskied, dat die reg op skadevergoeding die direkteur in bepaalde gevalle ontneem kan word en dat daar besondere oorwegings ter sprake kan kom in die geval van die besturende direkteur met 'n dienskontrak. Alhoewel die ontslag van direkteure 'n aangeleentheid is wat volledig in die maatskappykonstitusie gereël kan word, is 'n statutêre middel steeds nodig om die lede in die finale instansie beheer te gee oor die bestuur van die maatskappy. Enige statutêre middel wat die beskerming van die lede as oogmerk het en wat hierdie oogmerk wil bereik deur voorsiening daarvoor te maak dat 'n direkteur wat nie meer die belange van die maatskappy (en daarmee saam ook nie die belange van die lede nie) op die hart dra nie, ontslaanbaar moet wees, moet vir 'n verskeidenheid van gevalle voorsiening maak. Die huidige statutêre middel wat ontslag van maatskappydirekteure in die Suid-Afrikaanse reg reël (art 220 van die Maatskappywet 61 van 1973), voldoen wel aan sommige van die vereistes wat nodig is om gevolg aan die ware oogmerk van so 'n middel te gee. Daar bestaan egter ook heelwat leemtes wat vandag gebruik word en ook somtyds misbruik word om direkteure onontslaanbaar te maak. Hierdie gevalle het hoofsaaklik betrekking op ooreenkomste tussen die maatskappy en 'n derde, die feit dat langtermynkontrakte van direkteure nie noodwendig deur die algemene vergadering goedgekeur hoef te word nie en dat daar geen duidelikheid in die Suid-Afrikaanse reg bestaan oor die vraag of 'n belading van stemme wat net by ontslag-besluite ter sprake kom, geldig is nie. Gevolglik word wetswysigings voorgestelom hierdie leemtes uit die weg te ruim. Selfs al word die voorgestelde wetswysiging deurgevoer, sal gevalle van ex lege-beskerming teen ontslag steeds behoue bly (onder andere deur die ontslagprosedure soos vervat in die statutêre reëling en deur die feit dat die te ontslane direkteur die maatskappy met likwidasie ingevolge art 344(h) van die Wet kan dreig). Daar sal ook steeds maatreëls bestaan waardeur ontslag voorkom kan word (onder andere deur die aangaan van stemooreenkomste). Die ex lege-beskerming teen ontslag en maatreëls ter voorkoming van ontslag wat dan nog bestaan, sal egter ongetwyfeld wettig en geregverdig wees.
  • ItemOpen Access
    Internet related commercial crimes
    (University of the Free State, 2001-11) Ebersöhn, Gerhardus Johannes; Henning, J. J.; Verschoor, T.
    English: The purpose of this study was to determine whether these exists a need for legislation in South Africa criminalising Internet related commercial crimes and specifically computer-related crimes, which for all purposes refer to instances where computer experts (hackers) gain access to third parties' computers without authorisation or unlawfully interfere with the latter's computer systems as well as to instances where computer experts disseminate malicious computer programs that do the above. Collectively these instances are referred to as hacking and virus instances. The selling and/or distributing of hackers' tools (used to gain access to computer system or to interfere with the functioning of computer systems) and illegally obtained passwords are also examples of a computer-related crime, studied in this dissertation. In search for an answer to the above-mentioned question, this study assessed whether computer-related crimes can be accommodated by the current definitions of common law as well as statutory offences, with specific reference to the offences of theft, receiving stolen property knowing it to be stolen, fraud, theft by false pretences, malicious injury to property and crimen iniuria. After a thorough analysis of the current law obtaining in South Africa it was concluded that should local courts be willing to extend the application as well as the definitions of common law offences to computer-related crimes, then virtually all instances of computer-related crimes would be encompassed by the above-mentioned common law offences. Only the creation and possession of hackers' tools and illegally obtained passwords would not constitute offences in terms of the South African criminal law. It was further noted that should local courts refuse to extend the application of common law offences to computer-related crimes, then thirteen cyber-"transgression" have to be criminalised. Further note was taken of the South African Law Commission's draft bill, the Computer Misuse Bill, as a proposal to criminalise computer-related crimes. In order to assess whether such proposed legislation is in line with foreign legislation criminalising the above-mentioned aspects, this study also scrutinised the legislation of the United States, the United Kingdom, Singapore, the Netherlands as well as the newly enacted European Convention on Cybercrime. Certain recommendations were also made to the South African Law Commission with regard to the type of conduct that should be criminalised to bring foreseen South African legislation, dealing with cyber-related crimes, in line with foreign legislation.
  • ItemOpen Access
    The equitable foundations of South African labour law: an historical and comparative study
    (University of the Free State, 2012-01) Cloete, Neville; Du Plessis, J. V.; Raath, A. W. G.
    From the dawn of Western civilization, philosophers and jurists grappled with the nature and role of equity in jurisprudence. The Aristotelian theory of equity, as expounded in the Nicomachean Ethics, eventually emerged as the enduring equity paradigm in Western juridical thought. Aristotle taught that equity is an inherent and indispensable part of law. Law can never exist without, or ignore equity. However, even Aristotle and his followers admitted that the notion of equity is fraught with difficulty, hence they never provided any definition of equity. To Aristotle, it sufficed to state that equity was an inherent part of the virtue of justice, to be applied where law in the strict sense failed, such application always to be according to the circumstances of each case. The Roman jurists eagerly embraced the Aristotelian paradigm, regarding equity as a virtus or virtue - the virtue of living honestly, giving everyone his due, and causing injury to nobody. The Greco-Roman virtue theory of fairness aimed at the ideal of human perfection. Equity involved not simply the performance of objectively existing duties, but also the subjective and personal attribute of a virtuous disposition. The great Roman Dutch jurists were ardent adherents of Aristotelian doctrine. They emphasised that, with custom, equity was part of the unwritten law. Unlike law in the strict sense, equity was a matter best left to judicial discretion. There is a need for equity as the Legislator cannot by means of antecedent statute of general application provide fair solutions to the infinite variety of cases that present themselves for adjudication on a daily basis. In such situations, the equitable judge should consider and adjudicate the case before him, taking into account all relevant circumstances. Cicero, the Roman jurist, handed down a well-known adage to posterity, namely summum ius summa iniurie - the highest or best law often allows for the worst forms of injustices or unfairness. Hugo Grotius attached great significance to the conscienability attribute of fairness. He emphasized that the judge takes an oath of office to the effect that he would act according to the dictates of his conscience. An equitable judgment was a reasoned judgment, devoid of anything capricious, arbitrary or whimsical. It was a judgment infused by reason. Even a conscionable judgment was a reasoned judgment. Already in the 13th century Thomas Aquinas, the prime authority for Grotius and others in this regard, wrote that conscience was a judgment of reason. Influenced by the Biblical doctrine of the Fall of Man, the Roman Dutch jurists recognised the fact that at times, the reason of man was a sullied or muddled reason, hence they insisted on recta ratio, or sana ratio - literally sound reason. Sound reason required judicial impartiality, personal disinterestedness, and all other factors which modern labour law would require of a good judge or adjudicator. For various reasons, mainly historical, there is a dearth of direct textual authority on Roman and Roman Dutch labour law. A complete picture of the labour law of this epoch is unavailable. By means of textual analysis, criticism, and harmonization, we managed to form a still incomplete but bigger picture of Roman and Roman Dutch labour law. Our conclusion in this regard is that both systems knew a comprehensive equitable labour law regime, much as we currently have in South African law under the Constitution, 1996, and the Labour Relations Act, 1995. The common law of labour was therefore not devoid of equitable principle. So for instance, in sharp contrast with the English and American common law of dismissal which embraced the principle of employment at will, classical Roman Dutch law required lawful and even fair reasons for dismissal. Whereas in English and American Common law a judge was incompetent to inquire into the reasons for dismissal, such reasons being legally irrelevant, the very essence of the judicial function in Roman and Roman Dutch law was to investigate the lawfulness, reasonableness and fairness of such reasons. Unlike English and American common law where a dismissed employee could at most be awarded token damages in the form of the equivalent of the wage he would have earned had the notice period been complied with by the employer, the relief for unlawful, unreasonable and unfair dismissal in Roman and Roman Dutch law was a substantial relief in the form of damages representing the wage that would have been earned during the remaining period of service. In Roman Dutch law, a contract of service and all its terms as such, were void if it violated fairness, good faith or morality. Modern Dutch law built further upon these cornerstones of the common law, and adopted these requirements as the foundations of its most comprehensive principle of employment law, namely the good employer-good employee imperative. But despite the comprehensive equitable regime which formed the hallmark of the common law of labour, unsavoury doctrines such as employment and dismissal at will, forfeiture of wages already earned by some categories of dismissed workers, indivisibility of labour and token or notice damages where the required notice of dismissal had not been given, incrementally infiltrated early South African labour law through erroneous judicial recognition and application. But it was not these doctrines as they appeared in some old Dutch urban placaats and by-laws that served as the sources of judicial inspiration in this regard. These were specifically disavowed in cases like Spencer. At the early stages of the development of a unique South African system of labour law proper, it was rather English common law that served as judicial precedent. Equity played no role in such precedent. Even today, the application of equity in employment related issues is foreign to English law. The prime English statute governing dismissal disputes, namely the Employment Rights Act of 1996, is the only English piece of legislation making provision for the application of fairness, but its field of application is limited to unfair dismissal disputes. The concept of unfair labour practice remains foreign to English law. Equity also remains virtually unknown to American employment law. The National Labor Relations Act of 1935 introduced the concept of unfair labour practice, but its area of application is largely limited to collective labour law, namely the relationship between employers and representative trade unions, union membership and the like. The employment and dismissal at will principle is still in full force in America. Only in 11 States has judicial creativity introduced implied contractual terms to the effect that good faith and fair dealing should govern the employment relationship. Even this move is relatively feeble, isolated and quite casuistic, and has made little inroad on employment and dismissal at will. As indicated earlier, unsavory doctrines such as employment and dismissal at will, forfeiture of wages earned, token damages in respect of the notice period of dismissal and the like, were nor derived from Roman Dutch Law, but rather from English law as described above. Such was the position when the Industrial Conciliation Act, 1956 was amended in 1979, directly as a result of the Report of the Wiehahn Commission, which first identified the need for a comprehensive equitable regime in South African labour law. As a direct result of the recommendations of the Wiehahn Report, the erstwhile Industrial Court was also introduced by the 1979 Amendments. There seems to be a general consensus amongst labour lawyers today that the Industrial Court performed pioneering work and that it left a rich jurisprudential heritage of equity in labour matters. The drafters of the 1995 Labour Relations Act made ample use of this heritage, and rightly so, we submit. But the drafters also consulted foreign legislation. This was a prudent thing to do, even though it seems that some of the textual deficiencies in the 1996 LRA could be traced back to such legislation. It also appears as though the political and constitutional junctures which obtained at the time that the 1995 LRA was drafted, left their mark on the text of the LRA. It is not an indelible mark however. Although the eventual LRA text was a political and ideological compromise somewhat hurriedly constructed, it is still an impressive document. Such deficiencies that still do occur in the text, need to be addressed by legislative intervention. The problem in this regard seems to exist mainly in the form of shortcomings in the definitions of unfair labour practices, and to a lesser extent, unfair dismissal, resulting in the LRA text not giving adequate expression to the more general right to fair labour practices as enshrined in s 23 of the Constitution. The jurisdictional conundrum often resulting in forum shopping amongst litigants has been largely addressed by the Constitutional Court in cases like Gcaba. The same applies to the traditional differentiation or discrepancy between the status and rights of public sector as opposed to private sector employees. However, it is still desirable that the legislature address these issues again and harmonize them as much as possible with the tenets of s 23 of the Constitution and the guidance given by the Constitutional Court in this regard. Both legs of South African labour law, namely the common law of employment and the statutory scheme enshrined in s 23 (1) of the Constitution, as given effect to by the LRA, 1995, give recognition to and a role for equity to fulfil. The common law of employment assigns a supplementary, tempering, moderating and correctional role to equity, whereas the statutory scheme raises equity to the sublime status of ultimate yardstick for the resolution of labour disputes. In this statutory scheme, fairness and fairness alone serves as the final determinant of the fairness of labour practices, including dismissal. The common law has virtually reached a ceiling of development as far as employment fairness is concerned. S 23 (1) of the Constitution as given effect to by the LRA, 1995, constitutes that ceiling. In SA Maritime the SCA held that the common law cannot be developed to the extent where it recognizes an implied term of fairness in contracts of employment. The rationale for this decision was that such development would intrude onto the terrain of the statutory scheme, and was therefore not intended by the legislator. A development of this nature should best be left to the legislature, the courts argued since SA Maritime. English persuasive jurisprudence such as Johnson v Unisys played a pivotal role in this regard, as it will without doubt do in the foreseeable future. The obvious vehicle to be used by the Legislature for this purpose is appropriate amendment of the LRA. We have noted that although a progressive piece of legislation, the LRA suffers from many deficiencies in its quest to give effect to the imperative contained in s 23 (1) of Constitution, namely the right of everyone to fair labour practices. Hopefully the legislature will take note of SA Maritime and cases in similar vein, and come forward with the necessary and desired amendments to the LRA so as to take it to its next level of alignment with s 23 (1) of the Constitution. In conclusion, a brief outline of the insights we have gained since the inception of the Industrial Court, and even prior to that auspicious event, into the nature and role of equity in South African labour law. We subscribe to the view espoused by virtually all labour courts, but especially the Constitutional Court, that it seems to be undesirable to provide a definition of equity or fairness. The nature and role of fairness are dichotomous: on the one hand is fairness a relatively familiar concept in daily use, not only in the labour courts as such, but in virtually all courts of law. At times, the concept is consciously and deliberately applied during the course of judicial activity, while it sometimes fulfills its role quietly, unobserved and without any recognition. Fairness is sometimes derissen by sceptics - mostly ignorant - while it is more often eagerly embraced by realists, i.e. those who have come to the realization that strict legal principle is sometimes hopelessly insufficient for the resolution of legal disputes, and that equity has an inherently supplementary role to fulfil in all legal practice. Moreover, in labour law such role is not merely supplementary, but pivotal. Unfair labour practice and unfair dismissal disputes are ultimately resolved by application of the criterion of equity alone, and nothing else. But despite the healthy disinclination of the courts to provide an attempted definition of equity, some theory of equity seems to be steadily developing. This fledgling theory is torn between the opposites of strict law and the traditional need for legal certainty on the one hand, and the inherent flexibility which is the hallmark of equity on the other. A theory of equity should not be confused with a definition of equity. In fact the very theory is predicated on the versatility, flexibility and adaptiveness of the notion of equity - attributes not readily accommodated by definition. It is for this reason that we have entitled the section of this study dealing with this theory merely as "factors informing equity". This is to emphasize that no attempt is made at all to provide a numerous clauses or closed list of factors to be taken into account by the presiding official applying equity. In fact such a closed list will probably never be developed. The labour courts appear to be alive to the unique opportunity that the open-ended, flexible and indeterminate concept of equity provides them for the fulfiIIment of the ideal enshrined in s 23 (1) of the South African Constitutional, namely fair labour practices.
  • ItemOpen Access
    The core content of public school learners' right to a basic education in terms of Section 29 (1)(A) of the Constitution
    (University of the Free State, 2015) Merabe, Maisa Jeremiah; Deacon, H. J.
    This study attempts to address a complex question: What is the content of the right to ‘a basic education’?. In 20 years of democracy the Constitutional Court has been unwilling to determine the minimum core content of the socio-economic rights in the context of the Constitution. The study explored the scholarly debate and case law from the year 2009 up to and including 2014 where High Courts have started to determine the content of a right to ‘a basic education’. The study concludes by suggesting that the core content of the right to a basic education, more especially when that right is in issue, should be determined by using all the relevant policies and legislative measures the government had put in place since the new constitutional dispensation in the country in 1994 in order to give effect to the right. In so doing, the State should at the very least include school governing bodies, teachers, parents and learners and meaningfully engage with them to ensure that the content of a right to ‘a basic education’ is sufficiently tailored to their needs.
  • ItemOpen Access
    Evaluation of the legislative provisions with regard to school discipline in South Africa and determination of whether these provisions provide sufficient guidelines
    (University of the Free State, 2015) Mofokeng, Thabo Moses; Deacon, H. J.
    Abstract not available
  • ItemOpen Access
    'n Vergelykende studie van die regte van benoemde begunstigdes in lewensversekeringskontrakte
    (University of the Free State, 2012-12) Van Zyl, Rika; Hyland, S. A.
    English: The life insurance contract exists between the insurer and insured. A beneficiary may however be named in the policy to receive the proceeds at the death of the insured. This situation is assumed in the South African right to be a stipulatio alteri. Acceptance is a unique South African requirement set for the beneficiary in applying the stipulatio alteri. It does not entirely relate to the intention of a true agreement on behalf of a third. The beneficiary's rights are very limited. Before the death of the insured the named beneficiary has no right. At this stage it is also impossible for him/her to accept the stipulation to his/her advantage. At the death of the insured a contingent right developed for the beneficiary and must be protected until the beneficiary has indicated his/her intention to accept or refuse the benefit. Once the beneficiary accepts the benefit, he acquires a vested right to the proceeds of the policy.
  • ItemOpen Access
    A comparative labour law perspective on categories of appearance-based prejudice in employment
    (University of the Free State, 2014-11) Viviers, Damian John; Smit, D. M.
    English: Appearance discrimination entails discrimination against persons because of an aspect of their appearance, such as their physical attractiveness, height, weight, manner of dress and grooming styles. It also extends to individuals who elect to alter their appearance by undergoing gender reassignment. Appearance-based discrimination is a prevalent concern in workplaces across the globe, with jurisdictions such as the United States of America, Australia, the United Kingdom, Europe, Malaysia, Japan, China and South Africa showing signs of this problem. Employers‘ subconscious appearance preferences seem to filter into their employment decisions, policies and practices, causing employees who do not meet certain appearance standards to suffer discrimination in employment. Employees may also be subjected to bullying, harassment and hostile work environments because of their appearance characteristics. Research indicates that individuals who are physically more attractive as well as taller enjoy preference in the employment realm, while less attractive and shorter individuals are discriminated against and often suffer employment detriment, even when these characteristics are unrelated to the inherent requirements of the job. Employers‘ discretion to impose dress codes and grooming standards (when such criteria are unrelated to the inherent nature of the employment position) in effect curb employees‘ right to freedom of expression via their appearance, as well as their individuality and personal autonomy. Particular considerations in the context of appearance-based discrimination include weight-based discrimination, discrimination against so-called ―trans-employees‖, as well as appearance-related bullying and harassment of employees. Individuals whose body weight deviates from the norm experience significant discrimination in the workplace. Overweight and obese individuals suffer particularly severe employment detriment, as they are assumed to be in ill health, to be lazy and lacking work ethic. Employees who choose to alter their appearance through the process of gender reassignment are equally severely discriminated against in the employment setting. As is the position with the other categories of appearance discrimination, these individuals have little legal recourse that explicitly addresses the nature of the unfair discrimination to which they are subjected. Bullying and harassment of employees because of an aspect of their appearance is another significant concern in employment, with the same limited legal protection currently available to victims. As bullying is not governed or prohibited by law, and the appearance categories fall outside the ambit of the listed grounds of prohibited discrimination, such conduct does not officially amount to harassment either. The global attitude towards appearance discrimination is however beginning to change, and the International Labour Organisation has recognised this problem. Various states in the United States of America and in Australia have started enacting legislation to govern this issue and outlaw appearance discrimination in the employment arena. The judiciaries of these jurisdictions, as well as those in the European Union and South Africa, are also hearing more and more cases in this regard. South Africa still lags behind the rest of the world in dealing with this concern, even though many employees in the country do suffer unfair discrimination, bullying and harassment on the basis of their appearance. Discriminating against employees based on their appearance, without such discrimination being legally justifiable, amounts to unfair discrimination, and violates victims‘ rights to equality and dignity. It also acts as a barrier to equity in the workplace. Harassment and bullying of individuals because of an aspect of their appearance is equally unacceptable, amounting to a dignity violation. Afrikaans: Voorkomsdiskriminasie behels diskriminasie teen persone as gevolg van ‘n aspek van hul voorkoms, onder meer fisiese aantreklikheid, lengte, gewig, klerestyl of persoonlike versorging. Dit geld ook vir individue wat kies om hul voorkoms deur geslagswysiging te verander. Voorkomsdiskriminasie is ‘n algemene probleem in werkplekke oor die hele wêreld, met jurisdiksies soos die Verenigde State van Amerika, Australië, die Verenigde Koninkryk, Europa, Maleisië, Japan, China en Suid-Afrika wat tekens daarvan toon. Werkgewers se voorkomsvoorkeure sypel deur na hul indiensnemingsbesluite, beleide en praktyke, en stel werknemers wat nie aan sekere voorkomsstandaarde voldoen nie, aan diskriminasie bloot. Werknemers word ook dikwels blootgestel aan bullebakkery en teistering op grond van hul voorkoms. Navorsing dui daarop dat individue wat fisies aantrekliker en langer is, voorkeur in die werkplek geniet, terwyl minder aantreklike en korter individue diskriminasie en benadeling in die werksomgewing ervaar, selfs wanneer hierdie eienskappe nie met die kernvereistes van hul werk verband hou nie. Werkgewers se diskresie om dragkodes en versorgingstandaarde neer te lê (waar sulke kriteria nie met die kernvereistes van die werk verband hou nie), beperk inderwaarheid werknemers se reg op vryheid van uitdrukking via hul voorkoms, en lê hul individualiteit en persoonlike outonomie aan bande. Bepaalde oorwegings in verband met voorkomsgegronde diskriminasie sluit in gewigsdiskriminasie, diskriminasie teen sogenaamde ―transwerknemers‖, sowel as voorkomsverwante bullebakkery en teistering van werknemers. Individue wie se liggaamsgewig van die norm afwyk, ervaar beduidende diskriminasie in die werkplek. Oorgewig en vetsugtige individue ondervind veral erge benadeling in die werkplek omdat daar aangeneem word dat hulle siek is, lui is en oor swak werksetiek beskik. Werknemers wat kies om hul voorkoms deur die proses van geslagswysiging te verander, ervaar ewe erge diskriminasie in die werksomgewing. Soos met die ander kategorieë van voorkomsdiskriminasie, het hierdie individue weinig remedies tot hul beskikking wat die onbillike diskriminasie spesifiek hanteer. Afknouery en teistering van werknemers as gevolg van ‘n aspek van hul voorkoms is nóg ‘n beduidende bron van kommer in die werksomgewing, met ewe min wetlike beskerming tot slagoffers se beskikking. Aangesien bullebakkery en teistering nie volgens wet gereguleer of verbied word nie, en die voorkomskategorieë buite die bestek van die gelyste gronde van verbode diskriminasie val, is sulke optrede ook nie (wetlik beskou) teistering nie. Die wêreldwye houding teenoor voorkomsdiskriminasie is egter besig om te verander, en die Internasionale Arbeidsorganisasie het reeds die probleem erken. Verskeie state in die Verenigde State van Amerika en in Australië het begin om wetgewing uit te vaardig om hierdie probleem in die werksomgewing te reguleer en te verbied. Die howe van dié jurisdiksies, sowel as dié in die Europese Unie en Suid- Afrika, hoor ook al hoe meer geskille op hierdie gebied aan. Suid-Afrika is egter steeds agter die res van die wêreld in die hantering van hierdie kwessie, al gaan heelwat werknemers in die land gebuk onder onbillike diskriminasie, teistering en bullebakkery op grond van hul voorkoms. Diskriminasie teen werknemers op grond van hul voorkoms, sonder dat dit wetlik geregverdig kan word, kom neer op onbillike diskriminasie, en skend die slagoffers se reg op gelykheid en waardigheid. Sulke diskriminasie dien ook as ‘n hindernis vir gelykheid in die werkplek. Teistering en afknouery van individue as gevolg van ‘n aspek van hul voorkoms is ewe onaanvaarbaar, en kom op ‘n skending van menswaardigheid neer.
  • ItemOpen Access
    Special and differential treatment under the WTO with specific reference to the application of the Agreement on Agriculture
    (University of the Free State, 2005-06) Monyakane, ’Mampolokeng ’Mathuso Mary-Elizabeth; Snyman-van Deventer, E.
    When engaged in multilateral trade discourse developing countries have to take heed of involved principles and the general impact of the enforcement of such principles to their economic trade background. The principle of special and differential treatment is one of the principles that directly affect this category of states. It is therefore essential to know its proper interpretation and the ensued implementation. There is also the need for both the developed and developing countries alike to take special and differential treatment seriously in order to achieve indiscriminately the best system suitable for fair-trade practices.
  • ItemOpen Access
    'n Kritiese ondersoek na die leemtes van regstellende aksie-maatreëls in Suid-Afrika: 'n regsvergelykende studie
    (University of the Free State, 2007-11) Simpson, Lorénze Jean; Du Plessis, J. V.
    Afrikaans: Met die inwerkingtreding van die Grondwet van Suid-Afrika was een van die grootste oogmerke van die Grondwet die bereiking van gelykheid. Dit behels grootliks dat verskeie maatreëls aangewend moet word om ‘n algemene staat van gelykheid te bereik in elke sfeer van die samelewing. Hierdie maatreëls, beter bekend as regstellende aksie, het veral gepoog om die werkplek beter verteenwoordigend te maak van aangewese groepe. Dit het aanleiding gegee tot die inwerkingtreding van die Wet op Gelyke Indiensneming wat ten doel het om onbillike diskriminasie te verwyder en regstellende aksie maatreëls te implementeer om sodoende gelykheid te bevorder in die werkplek. Hierdie studie erken dus die belang van regstellende aksie, maar die toepassing daarvan word grootliks gekritiseer. Die leemtes wat geïdentifiseer is sluit onder andere die volgende in: Die arbitrêre toepassing van gelykheid deurdat die hof nie meer behoorlik oorweging aan billikheid skenk nie en die verkeerde toepassing en begrip van regstellende aksie deur gebruik te maak van indirekte diskriminasie soos voorheen-benadeling in plaas van neutrale gronde soos onderverteenwoordiging van die werkplek. Sommige het ook die wanpersepsie van regstellende aksie as ‘n reg en nie ‘n maatreël en ‘n verweer nie. Verder bestaan daar tans ‘n eksklusiewe toepassing van die Wet op Gelyke Indiensneming wat tot gevolg het dat nie-aangewese groepe indirek uit die arbeidsmark geskuif word. Verder val die klem te veel op indiensneming in plaas daarvan om meer aandag te gee aan werkskepping en sosio-ekonomiese ontwikkeling en opleiding. Laastens is daar ‘n groot onderwaardering van die gelyke indiensnemingsplan as instrument vir die toepassing van regstellende aksie in die werkplek. In die lig van hierdie problem is dit duidelik dat die Wet op Gelyke Indiensneming gewysig sal moet word deurdat daar duidelike billikheidskriteria neergelê moet word waaraan gelyke indiensneming moet voldoen sowel as die insluiting van nie-aangewese groepe om sodoende te verseker dat onderverteenwoordiging in alle arbeidsektore verwyder sal word. Verder sal daar meer aandag gegee moet word aan ander probleme soos ‘n gebrek aan opleiding en ontwikkeling wat indirek die sukses van regstellende aksie sal beïnvloed. Werkgewers sal ten slotte die belang en voordele van gelyke indiensnemingsplanne moet besef as ‘n instrument wat dien as beskerming sowel as ‘n riglyn vir die toepassing van gelyke indiensneming. Die hervorming van regstellende aksie en meer spesifiek gelyke indiensneming, kan moontlik ‘n meer positiewe houding en meer effektiewe toepassing in Suid-Afrika tot gevolg hê.
  • ItemOpen Access
    Dumping and antidumping regulations with specific reference to the legal framework in South Africa and China
    (University of the Free State, 2006-05) Tao, Meng; Snyman-van Deventer, E.
    From 1904 the world’s first antidumping law was enacted by Canada, South Africa followed in 1914, the GATT in 1947, and China in 1994. Over time, antidumping law has become a potent weapon in most countries of the world. South Africa and China, as member states of the WTO, increasingly participate in international trade and must remain aware of their legal right in respect of antidumping law. The purpose of this study is to identify and analyse some problematic issues of antidumping regulations, with specific reference to the legal framework in South Africa and China. With this purpose in mind, firstly, the background information and a brief history of the development of antidumping legislations by the international community, South Africa and China are discussed. Then, the issues of antidumping substantive law (including normal value, export price, dumping margin, injury, and domestic industry), especially with the problem of a nonmarket economy country and captive production, price undertaking, price undertaking reviews, and anticircumvention are analysed. In order to come to a clear understanding of the problems and solutions, the antidumping laws of the U.S., the E.U., South Africa and China are compared. This study resulted in the following conclusions: • The provision for a nonmarket economy country in the South African Antidumping Regulation is not adequate. China has no stipulation about this problem. • Both South African and Chinese antidumping regulations have no captive production provisions. The E.U. model is recommended. • With respect to price undertaking, the South African Anti- dumping Regulation followed the stipulations of the WTO. The Chinese Antidumping Statute is only superficially compliant with the WTO Antidumping Agreement. • The South African Antidumping Regulation leaves a gap with regard to price undertaking reviews. China has definite provisions on it. • With respect to anticircumvention, both countries’ antidump- ing regulations are not adequate, especially for China. Recommendations are made with regard to South African and China’s antidumping laws. This research is hoped to contribute to the improvement of the legal framework of antidumping regulations in South Africa and China.
  • ItemOpen Access
    The co-operative as an appropriate form of enterprise for Black Economic Empowerment
    (University of the Free State, 2006-11) Schoeman, Nicolene Francina; Snyman–van Deventer, E.; Conradie, M.; De Lange, A.
    English: In the South African context, BEE is not only regarded as a moral and social imperative, but also as a legislative one. BEE functions on two levels, namely the creation and sustenance of wealth, and the creation of opportunities, in order to widen the economic sphere. If successful transformation is to be achieved in South Africa, it is of vital importance that practical suggestions for its implementation be investigated. The co-operative has been described by international organisations like the International Co-operative Alliance, as a business enterprise that develops and /or empowers people through self-help. Locally the co-operative both on SMME and large corporate scale has been identified as a potential vehicle to drive the social and economic upliftment of the people of the South Africa. The Co-operatives Act 14 of 2005 was promulgated to give effect to this. Co-operatives have the following characteristics that make them ideally suited to the current South African situation: they are versatile in their application, they are accessible enterprises as initial establishment is cost effective and they are generally easy to establish, they provide both a social and economic function (dual function) to their members, generally apply a one-member-one-vote-system in management thereby promoting democratic principles, and they promote the concepts of individualism and autonomy within their structures. A successful co-operative enhances both individual and collective human dignity and promotes the values of ubuntu, which uplifts people on all levels, thereby complying with both the social and economic aspects of BEE in the creation of opportunities to widen the economic sphere. Furthermore, the cooperative as an enterprise complies with the BEE scorecard as well as with the Codes of Good Practice which were drafted by government in accordance with the provisions of the Broad-based Black Economic Empowerment Act 53 of 2003.
  • ItemOpen Access
    An analysis of the codes of good practice issued in terms of the Broad Based Black Economic Empowerment Act 53 of 2003
    (University of the Free State, 2006-11) Knoetze, Hyla Magdalena; Snyman-Van Deventer, E.; Conradie, M.
    English: BBBBBEE170 is an essential ingredient in facilitating the meaningful participation of blacks at all levels of the South African economy, in order to ensure sustainable socio-political and economic stability and the sustainability of the economic growth and development. BBBEE key principles • It is an ongoing process and not an event • It is a business imperative and an integral component of the company’s business strategy and is based on the core values of the organization • • It must result in meaningful and significant participation of blacks in the company and in the broader economy, through substantial changes in the racial composition of ownership, control, management structures and of skilled and specialist positions • It must lead to advantaged strategic position for the company, greater profitability, business growth and sustainable increase in stakeholder value • it is the responsibility of all management in the organisation.
  • ItemOpen Access
    The efficiency defence in South African competition law: application and recommendations
    (University of the Free State, 2012) Marais, Adam Johannes; Kitching, Karlien; Brits, Pieter
    English: Economic efficiency is used as a proxy for the social welfare of a country's citizens and therefore it is held that if the efficiency of a country improves, so will the social welfare of its citizens. The efficiency of markets determine a country's overall efficiency and social welfare and as a result, the purpose of Competition Law has generally been to increase the efficiency of a county's markets. The efficiency of markets in turn, is increased by competition and therefore, Competition Law is generally aimed at maintaining and promoting competition, which is also the case in South Africa. Stated differently, efficiency is the purpose of Competition Law and competition the vehicle by which efficiency is enhanced. Central to Competition Law is the concept of the “efficiency defence.” In terms of the efficiency defence, efficiencies are used to justify conduct that limits competition within a relevant market (anti-competitive conduct). The general presumption is that anticompetitive conduct is detrimental to efficiency. This is not always true and in some instances anti-competitive conduct may in fact result in increased economic efficiency. The efficiency defence is the tool used to justify anti-competitive conduct in circumstances where limiting competition will result in increased economic efficiency. Despite the obvious flexibility the efficiency defence provides to competition authorities in their quest to enhance the efficiency of an economy, most jurisdictions have been reluctant to accept efficiencies as a defence against anti-competitive conduct. The South African Competition Act is still in its infancy and as a result, there are a number of grey areas pertaining to its interpretation and application. One of these areas of uncertainty pertains to the interpretation and application of the efficiency defence in South African competition matters. To date, the competition authorities have only once interpreted the efficiency defence and that was in the merger between Trident Steel (Pty) Ltd and Dorbyl (Pty) Ltd, more than 11 years ago.1174 This study contributes to the legal certainty pertaining to the interpretation and application of the efficiency defence in South African competition matters by making certain recommendations on its interpretation and application. These recommendations are based upon a comparison between South African, US and EU Competition Law jurisprudence. In addition, all recommendations are in line with contemporary economic theory, which functions as the validating criterion. The principle recommendation of this study is the recommendation that the consumer welfare standard should be employed in South African competition matters instead of the total welfare standard currently employed. This recommendation is based upon the South African economic environment which includes high levels of market concentration and high price mark-ups in the manufacturing industry. The implications of using the consumer welfare standard will be that the burden of proof to discharge in the efficiency defence is much higher than it is under the total welfare standard. The reason being that under the consumer welfare standard consumers have to benefit from efficiencies for them to be able to justify anti-competitive conduct whereas it is not the case under the total welfare standard.
  • ItemOpen Access
    ‘n Kritiese analise van die Nasionale Kredietwet 34 van 2005
    (University of the Free State, 2012-02) Bester, Ankia; Mould, K. L.; Conradie, M.
    English: The National Credit Act 34 of 2005 came into operation in 2006 with the purpose to promote and regulate the credit market and industry and to protect consumers by promoting development of the credit market, consistent treatment of different credit products and different credit providers, promoting responsibility in the credit market, addressing incorrect imbalances, improving consumer credit information and reporting regulation of credit bureaus, addressing and preventing over-indebtedness of consumers, to develop a consistent and accessible system of consensual resolution of disputes and a consistent and harmonized system of debt restructuring, enforcement and judgment. With reference to the credit history and the many over-indebted South Africans, it is clear that the National Credit Act came into operation to repair the shortcommings of our previous credit legislation. With the commencment of the National Credit Act various forms of consumer credit protection was introduced to the credit market of which the most important is debt review. Notwithstanding the negative reception and impression the National Credit Act made on many South Africans, the majority of consumers welcomed the Act with open arms. The expectation of consumer protection, with reference to the prevention of over-indebtedness and debt review, was created for many consumers. After the completion of the obligated course, individuals throughout the country applied to the National Credit Regulator to be registered as debt counsellors with the prospect to assist consumers in accordance with section 3 of the National Credit Act. The National Credit Act was seen as something that will help everyone seeing that consumers do not have to run away from their obligations anymore. On paper this Act seemed to be executable, but unfortunately practical complications started to show in the National Credit Act that influenced the enforcement thereof. Grey areas like unreasonable litigation and termination of debt review, jurisdiction and cost complications are just some of the problems that debt counsellors have to face today. The consequence of these problems is that the debt review process becomes longer and more expensive than the National Credit Act aimed. To correct these grey areas in the National Credit Act, some sections of the Act must be amended to ensure that during the course of the debt review process, debt counsellors, credit consumers and credit providers will act in good faith so that the aim of the National Credit Act can be fullfilled.
  • ItemOpen Access
    Shareholder activism: the birth of a new phenomenon in South African corporate law
    (University of the Free State, 2009-11) Lekhesa, Motlatsi William; Snyman-Van de Venter
    English: Shareholder activism is a means by which shareholders voice their concerns or dissatisfaction in companies in which they invest. This phenomenon started centuries ago, but picked up momentum and developed in the United States of America (“USA”) in the 1930’s, after the fall of Wall Street in 1929. Soon thereafter, it spread to countries such as the United Kingdom and to the rest of the world. In the USA in 1934 the government passed the Securities and Equities Act, which also contains proxy rule Rule 14A-8. This rule is used as a tool to encourage shareholders to make proposals on matters to be voted on at annual general meetings. It introduced internal corporate governance approaches such as the “negotiated agreements”, the “nexus of contract” and the “one axis” approach. In South Africa, section 185 of the Companies Act 61 of 1973 makes provision for shareholders to draw proposals to be presented at annual general meetings. Section 65 of the Companies Act 2008 will also afford shareholders to make proposals. A company is made up of shareholders. Shareholders are people or entities that have an economic interest in a company. Examples of shareholders include private individuals, directors, employees, customers, community, government, trade partners, media, creditors etc. Shareholders can be classified as individuals or institutional. Institutional activists include public pension funds and private equity funds. They can be business associations, social activists and labour unions. They can have a direct or indirect beneficial interest in a company. Shareholders can also be classified as preference, controlling, majority and minority shareholders. Companies can be incorporated as private or public. A company can be held liable for the actions of its directors. Shareholders have rights and duties in a company. These include the right to vote, monitor and elect directors etc. A company is juristic person with its own status. In terms of the rule in Foss v Harbottle a company can take legal steps against itself and if it fails any person can take legal steps on its behalf. A person who deals with a company is protected under the Turquand Rule. This rule allows persons who are dealing with a company to assume that all internal company matters have been complied with and that the agent of a company is not acting ultra vires. Companies are managed by directors who are appointed by shareholders. Directors should be natural persons who are not minors, or have committed serious offences or are unrehabilitated insolvents. Directors have duties such as to act intra vires, to exercise care, diligence and skill; to keep confidential information; to manage risks and to act as a board. Directors can be held jointly and severally for their actions. Directors can be executive, non-executive or independent non-executive directors. Directorship is terminated when a director has committed serious offences and are unrehabilitated insolvents or by agreement with a company. Reasons for shareholder activism include corporate governance. There are different systems of corporate governance such as “insider dominated”, “outsider dominated”, “comply or else” and “comply or explain”. Sometimes shareholder activism has an influence over the way companies are managed. Due to shareholder activism, a company can change its management style, transform and change policies. The media, such as press, internet, radio and television play an important role in shareholder activism and therefore shareholder activists avoid the lengthy judicial process and opt for media to raise their discontent.
  • ItemOpen Access
    A South African perspective on user-created content in cloud computing: a copyright conundrum
    (University of the Free State, 2014-01) Hauman, Mignon; Brits, P. S.
    English: The term “cloud computing”, i.e. “the cloud”, is used to describe a virtual platform in cyberspace from and to which a user can process store data that is literary, musical, artistic or informative in nature, and which is accessible via an Internet connection. The cloud therefore functions as virtual container that holds, processes and distributes all forms of copyrighted content, and which operates outside the confines of recognised territorial boundaries. The cloud is not only distributive but participatory. It fosters a “cut and paste” culture by allowing users to access, store, remix and create content. The cloud promotes user-created content, a term that encompasses and insurmountable range of actions by users with respect to cloud content available on the World Wide Web. Prominent scholars have devised a taxonomy for the categorisation and classification of cloud content to some degree, but there is wide spread acknowledgement that the nature of the cloud cannot be confined to a decisive definition, nor its content exact parameters. The inexact nature of the cloud and its content poses challenges for copyright law, a regime that is premised on a distinctive subject matter, confined to territorial boundaries and aimed at identifiable parties with respect to its application. In the cloud traditional copyright law seems wholly inadequate to provide regulation on matters of infringement, fair dealing and copyright recognition. Moreover, the inadequacy of the regime for cloud application threatens to weaken its validity as a mechanism that aims to promote the innovation of works for the benefit of the general public. If copyright law is to remain a valid instrument for the regulation of user-created content in cloud computing there is a definitive need to re-evaluate, revise and expand some of the regulatory devices thereof to accommodate the expectations and interests of cloud users. Finding a means to balance the rights of copyright holders against the interests of the general public has never been more critical, and policy makers have become ever aware of the need to develop a robust copyright regime for cloud application. Accordingly, this study aims to investigate the insufficiency of South African copyright law to adequately regulate the conduct of users who can acquire, remix, upload, derive and share vast amounts of copyrighted works via the Internet. The purpose of this study is to analyse potential developments in copyright law for cloud application in order to gain insight on the regulation and adjudication of user-created content within a South African context.
  • ItemOpen Access
    'n Regsvergelykende analise van geregtelike bestuur en ondernemingsredding ingevolge relevante maatskappywetgewing
    (University of the Free State, 2012-01) Jacobs, Lézelle Marianné; Snyman-Van Deventer, E.; Burdette, D.
    English: In the current economic climate, where more and more companies find themselves under financial strain, an effective business rescue system is essential. A system is needed which affords the company an opportunity to once again become a successful concern and carry on business on solvent grounds. South Africa's business rescue provisions is contained in the Companies Act 71 of 2008 and is known as business rescue proceedings. These proceedings replace the previous rescue model, judicial management, contained in the 1973 Companies Act. Judicial management was largely unsuccessful as a rescue model. This is mainly due to factors such as the fact that judicial management was to a great extent dependant on court proceedings, that the court turned it into an extraordinary remedy and the that liquidators were appointed as judicial managers. The new business rescue system notes various improvements to its predecessor and indicates the development of a true rescue culture in South African law. Some of these improvements are: the court acts more in a supervisory capacity than before, the system is more easily available and more accessible to companies undergoing financial difficulties and the business rescue practitioner should have experience in turnaround practice according to the new Act. A few problematic aspects could, however be noted. If rectified it could provide all interested parties with a valuable remedy. The true efficacy and success of the new business rescue proceedings would only be determinable after being tried and the possible practical shortcomings have been identified and corrected.
  • ItemOpen Access
    The relevance of business ethics in defining the role of internal company stakeholders
    (University of the Free State, 2014-06) van Wyk, Riche; Snyman-van Deventer, E.
    English: Over the past 22 years, corporate governance internationally has revealed the following core ethical principles, namely transparency, fairness, accountability and responsibility. King lll, the latest code in South Africa, emphasises the importance of these factors and ethical leadership within a company. The root of ethical behaviour within the company lies in the notion that the company must please society instead of just being a moneymaking machine. Companies should focus more on the triple bottom line approach, namely profit, social and environmental issues. The ethicality of behaviour lies in the balance struck by a person or an organisation between these three bottom lines. A good balance of these bottom lines will result in behaviour being deemed as ethical. The company should draft a code of conduct to aid employees, as the internal stakeholders, in the promotion and maintenance of ethical behaviour. This code of conduct is the “ethical constitution” of a company. Directors have the main obligation to maintain ethical behaviour. King lll refers to directors as being the “ethical leaders” of a company. They must act ethically in all their relations with stakeholders, put the company and stakeholder needs before their own and establish the company as a socially responsible corporate citizen. Companies must comply with the notions of Corporate Social Responsibility and Corporate Social Investment in order to maintain its reputability in society. It must benefit the community as a whole and be a philanthropic being, by granting sponsorships, making donations and investing in society. The importance of ethics in the business world is two-fold: firstly, it has a positive motivation to earn the respect of the society within which the company operates and, secondly, it has a negative motivation in that ethical behaviour will combat fraud and other economic crimes with which our country is associated. It is recommended in this study that all employees should be informed of the role they play in ethics maintenance and management. It is also recommended that a separate ethics committee be established apart from the social and ethics committee to assist the company in more complex ethical issues, such as drafting codes of conduct and steering employees in the right direction.