Theses and Dissertations (Mercantile Law)

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Broad-Based Black Economic Empowerment within the context of competition law
(University of Pretoria, 2024-10) Church, Jacqueline; Padayachy, Thiruneson; u23786397@tuks.co.za; Bobo, Mpumzi
This paper reflects on competition law that incorporates Broad-Based Black Economic Empowerment (B-BBEE) features. The aim of this paper is to explain and discuss the relevance of B-BBEE in competition law. It seeks to determine if there is a supporting role that the Competition Act 89 of 1998 does or should play when it comes to B-BBEE. The public interest goals together with merger consideration in terms of the Competition Act 89 of 1998 (as amended) will be discussed, more particularly as they relate to small-medium sized enterprises (SMEs) and historically disadvantaged people (HDPs). This paper posits that most SMEs are owned by HDPs, so supporting SMEs largely equates to supporting HDPs, thereby centering both concepts on B-BBEE
The interpretation of business interruption clauses in South Africa : a constitutional analysis
(University of Pretoria, 2023-11-24) Ncube, Princess Thembelihle; Oscar.ditshego@gmail.com; Ditshego, Oscar Tebogo
A business interruption (hereafter, BI) policy is a type of cover that is generally added on top of another policy, such as property insurance or any comprehensive insurance policy. However, depending on the intention of the parties, the cover may be a stand-alone policy tailored according to its own specifications. Generally, a BI may cover a variety of contingencies such as loss of income, losses resulting from civil authority, loss of profits, costs of actions taken to mitigate losses and reasonable of expenses of running a business enterprise. BI coverage may also be subdivided into a ‘contingent’ BI cover that specifically protects the policyholder from damages or interruption affecting a third party such as a supplier.
'Banking' on artificial intelligence to enhance bank risk management
(University of Pretoria, 2024-10) Van Heerden, C.M. (Corlia); mayuree.chiba@gmai.com; Chiba, Mayuree
This dissertation investigates the impact of digital transformation on risk management within the banking sector, emphasizing the integration of artificial intelligence (AI) in enhancing operational risk management. It examines key research questions about how digitisation reshapes risk management practices, the extent to which South African banks align with international standards, and the role of AI in advancing these frameworks. The study finds that AI holds substantial potential to improve risk management, particularly in managing operational risks, while underscoring the indispensable role of human oversight. Ultimately, this shift toward a more AI-driven, adaptive approach marks a pivotal evolution in the financial sector, suggesting that the future of risk management can indeed rely on AI's transformative capabilities.
Prospects for an African continental model multilateral tax agreement for the co-ordination of cross-border corporate tax challenges
(University of Pretoria, 2023-10) Titus, Afton; Kekana, Nelson; u19388714@tuks.co.za; Aren, Marie-Louise Fehun
This study explores the creation of an African Continental Model Multilateral Tax Agreement (MMTA) to address the limitations of current bilateral tax treaties and enhance existing African Regional Economic Community (REC) frameworks for more effective taxation of cross-border business profits. Focusing on critical international taxation framework issues such as taxing rights allocation, Permanent Establishment criteria, and tax dispute resolution, it compares African REC MMTA provisions with those in non-African agreements to identify key weaknesses and propose improvements. The proposed MMTA aims to ensure equitable taxing rights, update nexus rules to capture both physical and digital businesses, and provide robust dispute resolution mechanisms to foster investment. It advocates for harmonized tax policies and tax agreements across African RECs to minimize tax competition, promote intra-African trade, and support regional economic integration under the African Continental Free Trade Area (AfCFTA). By aligning with the Abuja Treaty’s objectives, the framework seeks to enhance revenue mobilization and sustainable economic development in Africa. This research provides a roadmap for creating a tailored multilateral tax treaty that balances diverse regional interests, addressing Africa’s development financing needs while promoting cross-border taxation efficiency.
Selected challenges related to the business judgement rule
(University of Pretoria, 2024-11) Van Wyk, Jani Sani; Tichfombad@gmail.com; Fombad, Tichanung Chiano
This study analyses the South African business judgement rule and its introduction in the Companies Act 71 of 2008 through section 76(4). It investigates why a provision may be regarded as providing a “safe harbour” for directors against a breach of their fiduciary duty to act in the best interest of the company and their duty of care, skill, and diligence. This study reflects on the effect the 2008 Companies Act’s partial codification of directors’ duties in section 76(3) had on the South African business judgment rule. This is of particular importance given that the rule applies only to directors codified fiduciary duty to act in the best interest of the company and their duty of care, skill, and diligence. This study also looks at the development of the business judgement rule internationally and investigates its important role in being a foundational element of corporate governance. It investigates the key theoretical principles behind the rule that have developed internationally. This study aims to enhance readers' comprehension of the duty of care, skill, and diligence under both common law and statutory law in South Africa. This will provide the reader with insight into the business judgment rule and its relevance in South African law. The main aim of this study is to make recommendations in an attempt to improve/refine the formulation of the current section 76(4) of the Companies Act, 2008. These recommendations are based on the comparisons drawn with the jurisdiction of Australia. This study will hopefully enhance the judiciary’s understanding of how to approach the rule should it come under the subject of judicial scrutiny by the courts.
The dismissal of public-school educators on the grounds of sexual abuse of children : an appraisal of section 188a of the Labour Relations Act 66 of 1995
(University of Pretoria, 2025-01) Van Eck, B.P.S.; bernard.bushe@icloud.com; Bushe, Bernard
This doctor of laws (LLD) thesis examines the effectiveness of section 188A of the Labour Relations Act 1995 in handling dismissal disputes of educators charged with child sexual abuse in public schools in South Africa. The thesis acknowledges the development of labour dispute jurisprudence in the country which was galvanised by the constitutional dispensation in 1994. On attaining independence from a past riddled with apartheid policies and oppression, South Africa took a new direction and set itself a goal to develop democratic systems and institutions, including those related to labour dispute resolution. The Constitution of the Republic of South Africa recognised rights such as that of employees not to be subjected to unfair labour practices and the right to form and participate in trade unions. This development was bolstered by the enactment of several statutes, including the Basic Conditions of Employment Act, the Employment Equity Act, and the Labour Relations Act. Within the architecture of the LRA, the legislature provided specialised institutions and processes termed the “one-stop shop” for resolving labour disputes effectively. This provision included the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Courts, supported by bargaining councils. This thesis acknowledges the subtle prevalence of child sexual abuse in schools perpetrated by teachers as a besetting problem affecting children, parents, families and the community. There are international instruments applicable in South Africa that prohibit child sexual abuse against children such as the United Nations Convention on the Rights of the Child and the regional one called the African Charter on the Rights and Welfare of the Child as well as the domestic laws including the Constitution of the Republic of South Africa, 1996 which are explored in Chapter 2 of this thesis. These laws prohibit the sexual abuse and exploitation of children or anyone below the age of 18 years of age. The application of these laws has still not deterred errant educators from committing acts of child sexual abuse against children, which peaked during the global COVID-19 pandemic. South Africa also has various statutes applicable within the school sector such as the Children’s Act, the Schools Act, the Employment of Educators Act, the South African Council for Educators Act, and the Electronic Transactions and Communications Act that are all designed to both protect children from child sexual abuse, uphold the rights to dignity and basic education, and at the same time protect teachers against unfair labour practices and unfair dismissal. Implementing these statutes has neither stopped educators from sexually abusing schoolchildren nor protected some accused educators against unfair labour practices and unfair dismissals. As a result, the public schoolpublic-school sector decided to apply an innovative approach to dealing with child sexual abuse disputes against educators. This novel approach was inserted into the LRA as section 188A, termed a pre-dismissal arbitration, and renamed an inquiry by an arbitrator in 2014. For the sake of brevity, this thesis refers to section 188A of the Labour Relations Act 66 of 1995 simply as “section 188A”. The idea behind section 188A was to reduce the number of forums which prevailed until then, where children would have to endure the ordeal of testifying several times. This is a “one-stop shop” for conducting disciplinary proceedings against teachers charged with child sexual abuse. This dispensation eliminates a disciplinary hearing and possible appeal and adopts an arbitration proceeding under the auspices of the CCMA or an accredited bargaining council. In the public schoolpublic-school sector, this responsibility was placed on the Education Labour Relations Council (ELRC) through Collective Agreement No. 3 of 2018 (the “ELRC Collective Agreement”). Whether this move was a panacea for resolving the problem of child sexual abuse perpetrated by educators in SA is the main problem and the golden thread of this thesis. Though offering a promise of resolving the problem and presenting the public schoolpublic-school sector with many advances, this thesis ascertained that its reliance on section 188A is bedevilled by many problems that impede its success. Apart from the problems already facing the public schoolpublic-school sector, such as acute fragmentation because multiple authorities exercise concurrent jurisdiction over the management of educator discipline, further challenges related to the application of innovation undermine its effectiveness. The main advantages revealed by Chapter 6 of this thesis include reducing the multiplicity of forums that conduct disciplinary inquiries into teachers’ misconduct as well as the related reductions in cost. From a psychosocial standpoint, using section 188A also reduces the chances of secondary trauma that schoolchildren may have to suffer by testifying in multiple forums and facing their possible sexual abuser. At the same time, this thesis observes that the ELRC faces challenges such as the lack of appropriate venues with circuit television among other requirements and suitable for conducting arbitration proceedings. The ELRC relies on borrowed premises at the magistrates’ courts throughout South Africa which lack security of tenure and predictability. The other challenge relates to litigants’ using lawyers in the arbitration proceedings, turning them into pseudo-court proceedings often riddled with technicalities, costs in time and expenses, and multiple postponements. Some postponements are often counterproductive because they lead to the disappearance of child witnesses as they graduate from the school system at the end of their secondary school period, whether in Grade 11 or 12. The processes depend on evidence which much of the time is derived from testimonies of victims and witnesses of child sexual abuse. The ELRC is also faced with the prospect of appointing sub-par commissioners to preside over cases, leading to new proceedings from the beginning under a different commissioner or to further court litigation. Nor has the employer of educators helped the section 188 proceedings. Problematically, the employer has sometimes misclassified cases, with sexual assault being classified as assault and vice versa. The employer has also been reluctant to use the section 188A process although party to a collective agreement requiring all child sexual abuse cases against teachers in public schools to be processed according to section 188A. Several cases have been processed through internal hearings since the ELRC Collective Agreement No. 3 of 2018 consenting to the use of the section 188A process was signed on 25 September 2018. This is an indictment of the legislative provision intended to safeguard the best interests of schoolchildren and the labour rights of teachers. Further problems critical to the process include the employer’s failure to conduct proper investigations to ensure that cases are ripe for prosecution when they appear before the ELRC arbitrator, the failure to present closing arguments at such proceedings, the failure to prove cases, and the failure to secure witnesses. The South African legislature has also exacerbated the problem by enacting parallel legislation providing for the employment of educators by the employer in terms of the Educators Act and then other educators employed by school governing bodies in terms of the Schools Act. The SGB educators are not covered by the ELRC Collective Agreement, so the ELRC lacks jurisdiction to preside over their cases when they commit child sexual abuse. This situation creates unnecessary confusion and disparities requiring a remedy to provide a single unified system for employing educators. Despite the promise of ending multiple forums through the section 188A process, the presence of the South African Council for Educators adds another layer of complexity to the whole system, which negates its importance. Employers’ decisions to dismiss educators for child sexual abuse are supposed to be reported to the regulator of teachers who may remove their licence to teach. The architecture of the South African Council for Educators Act requires the Council to note the report from the employer but not rely on it to charge a teacher for a breach of professional ethics. The Council for Educators must conduct its independent investigation, hearings and appeals on these educators reported to them by the employer because of dismissal for child sexual abuse. Section 15(2) of the Employment of Educators Act considers a teacher whose licence to teach has been withdrawn by the Council for Educators to have resigned, which has the effect of closing his access to the LRA dispute resolution processes. This step forces teachers to pursue civil litigation in the High Courts and Supreme Court of Appeal to insist upon their rights. The parallel educator disciplinary processes by the employer and the Council for Educators still pose the risk of subjecting children to multiple forums and attendant susceptibility to secondary trauma through multiple testimonies. This thesis also conducts a comparative examination of the systems in Nigeria and England for dealing with educator dismissal disputes for child sexual abuse cases. This examination revealed several lessons which might be useful for successfully dealing with child sexual abuse in South Africa. Chiefly, both countries suffer the scourge of child sexual abuse by teachers but have a unified system for dealing with child sexual abuse cases and safeguarding the labour rights of teachers. England, in particular, took drastic measures to create a unified system by dissolving the General Teaching Council for England in 2012, as its commission of inquiry revealed that the GTCE created unnecessary problems of bureaucratic inefficiencies, duplication, and a financial burden on teachers through subscriptions to fund its existence. Now England has a united system and process for dealing with child sexual abuse cases against educators. Nigeria has a Teacher Registration Council of Nigeria with a diverse council running its affairs, unlike South Africa, whose council is dominated by teacher unions. The South African position is problematic, because it is dominated by teacher unions constituting 18 members out of 30 council members whose vote is determined by the ELRC. This position places the risk of union goals dominating the agenda over professional regulatory goals, leading to polarisation. The teachers and students do not also help with the effectiveness of the section 188A process in child sexual abuse cases. Errant educators use bribes, invoking the African cultural practice of offering to pay damages when they have impregnated schoolchildren to evade prosecution. In worst-case scenarios, they bribe parents and guardians from poor backgrounds, who then withhold the consent of children to testify in proceedings against them. Some children both in England and South Africa also frame educators with false accusations or become untruthful in disciplinary proceedings, and potential child sexual abusers thus go unpunished and are retained in the school system. This thesis concluded that the section 188A process in South Africa offers several benefits but is hampered by the negligence of the employer of educators in prosecuting cases and managing educators. The thesis also makes several recommendations for legislative reforms. For example, taking a cue from England, South Africa should abolish multiple authorities over educators. Moreover, prompt prosecution requires Parliament to exercise oversight over entities such as the employer of educators and the South African Council for Educators. These measures, among others set out in Chapter 8 of this thesis, require urgent attention to safeguard children’s rights to protection from sexual abuse, protection of their dignity and their unqualified right to basic education, while also safeguarding teachers’ rights.
The in duplum rules in terms of the common law and the National Credit 34 of 2005
(University of Pretoria, 2024-12) Renke, Stefan; u14190932@tuks.co.za; Chwi, Viona
It is common cause that consumer protection is a phenomenon that has been a subject of debate for centuries. In a modern society with developments in the economy, it is essential to ensure and maintain the balance between the rights of consumers and credit providers. The in duplum rule developed is a principle that is enforced to bar against exploitation of credit providers towards consumers and utilised as a debt relief mechanism against over-indebtedness in the credit industry. The in duplum rule operates to ensure that interest or costs associated with the debt do not go beyond the outstanding sum of the principal debt. The common law in duplum rule and the statutory in duplum rule will be explored to determine their applicability and the protection afforded by the rules. It will be seen that the rule in its two forms differs in that the common law in duplum rule is concerned with only interest. Whereas its counterpart, the statutory in duplum rule in accordance with the provision of the National Credit Act, has an extended application, as it includes, in addition to interest, “service fees, collection costs, default administration costs, costs of credit insurance, and initiation fees”. The in duplum rule is considered to apply to all credit transactions where interest is levied. However, it will be seen from case law that there are exceptions and limitations to the application of the in duplum rule. This dissertation is concerned with the species of consumer protection in the form of the in duplum rule and particularly legislation under consumer credit law. The protection afforded by the rule to parties in a credit transaction will be explored. Further discussions will be held pertaining to the limitations and/or shortcomings of the in duplum to different species of consumers and credit providers. The historical development of the in duplum rule and its application in the South African legal landscape is essential and will be analysed, and concepts such as public policy consideration will be explored.
Precautionary suspension in the South African public service
(University of Pretoria, 2025-08-31) Van Eck, B.P.S.; u23952602@tuks.co.za; Babuseng, Eugene Kabelo
This dissertation relates to the prolonged and costly precautionary suspensions in the South African public service. It entails a study of international law relating to this topic; through analysing international labour standards adopted by the International Labour Organisation. The study further discuss common law, as far as it relates to precautionary suspension. Then proceeds to discuss the definition of precautionary suspension, the audi alteram partem rule, and the current state of precautionary suspensions in the public service, by referring to latest developments in labour law. The study then concludes by conducting a comparative study with the United Kingdom and the Republic of Kenya, before a chapter on conclusions and recommendations.
The judicial review of CCMA awards in South Africa
(University of Pretoria, 2024-09-05) Van Eck, P.B.S.; endres.karla@gmail.com; Endres, Karla
The Labour Relations Act 66 of 1995 (“LRA”) brought fundamental changes to the South African labour dispute resolution system. The LRA is a codification of section 23 of the Constitution, being the right to fair labour practices. In line herewith employees are protected from being unfairly dismissed or having unfair labour practices committed against them by the employer. An aggrieved employee is entitled to challenge the dismissal or the unfair labour practice at the Commission for Conciliation, Mediation and Arbitration (“CCMA”). A right to review the outcome thereof rests with the Labour Court. Prior to the enactment of the LRA an employee had the right to appeal the outcome of the Industrial Court. The appeal process has subsequently been replaced with a review. The grounds for review are limited and set out in section 145(2)(a) of the LRA. Together with the grounds listed in section 145(2)(a) of the LRA, the Constitutional Court in Sidumo has formulated the test for reasonableness being; whether the decision reached by a commissioner is one that a reasonable decision-maker could reach? Since Sidumo, litigants have struggled to understand the impact the test has on the listed grounds for review and the Labour Court grapples with the level of intensity that it may delve into the merits of the matter. Inconsistent application of the review test continuous and some authors call for a return of the review, while others suggest that statutory reform is necessary. This study suggests that section 145(2)(a) of the LRA should be amended to include reasonableness as a ground for review and to allow the listed grounds to stand separate from the Sidumo requirement.
Secret strike ballots in South Africa
(University of Pretoria, 2024-07-18) Van Eck, B.P.S.; u23940922@tuks.co.za; Engelbrecht, Wilhelmus Christoffel
An evaluation of section 19 of the 2018 Labour Relations Amendment Act 8 of 2018, that served as a reintroduction to secret strike balloting in South Africa, prior to embarking on protected strike action. This dissertation evaluates secret strike balloting from a historical, international, and constitutional perspective to determine its effectiveness, constitutionality, legality, and enforceability.
Reflective Loss in South African Company Law
(University of Pretoria, 2024-09-30) Swart, Christiaan; jabu@mgmlaw.co.za; Gwebu, Jabulane Hosea
Whether the legislature by providing the rights to shareholders in section 161(1)(b)(ii)(bb) of the Companies Act 71 of 2008 intended to alter applicable common law, including the no reflective loss rule.
The interplay between anti-avoidance measures and curbing tax evasion and impermissible tax-avoidance arrangements
(University of Pretoria, 2024-08-22) Meyer, Carolina; Munyai, Phumudzo; emcronje@ensafrica.com; Cronje, Emile
This mini-dissertation examines the interplay between anti-avoidance measures and the curbing of tax evasion and impermissible tax-avoidance arrangements within the South African tax framework. It critically analyses the nuanced distinctions and interactions between the substance over form doctrine, specific anti-avoidance provisions (SAAPs), and the General Anti-Avoidance Rules (GAAR). The research highlights how these measures function collectively to ensure the integrity of the tax system while safeguarding taxpayers’ legal entitlement to structure their affairs in a tax-efficient manner, as embodied by the choice principle. Central to this study is the evaluation of the sole or main purpose requirement under the GAAR and its application within the South African context. This analysis extends to a comparative review of similar provisions in the tax systems of Australia and Canada, jurisdictions with comparable legal foundations. The study further delves into the constitutional implications of anti-avoidance measures, particularly the balance between enforcing tax compliance and upholding taxpayers’ constitutional rights, including property rights and freedom of trade. Through a comprehensive review of legislation, case law, and scholarly commentary, this research clarifies the practical and conceptual ambiguities of anti-avoidance measures. It offers critical insights for legal practitioners, courts, and policymakers, addressing both theoretical and practical challenges in adjudicating tax disputes. Ultimately, this mini-dissertation enhances the understanding of South Africa’s anti-avoidance framework and its broader implications, contributing to ongoing discourse on tax law reform and compliance. By shedding light on the constitutional underpinnings of the choice principle and its interaction with anti-avoidance measures, this study underscores the importance of balancing taxpayer rights with the need for a fair and effective tax system.
Compliance with decent work standards by multinational enterprises
(University of Pretoria, 2024-08) Van Eck, B.P.S.; advfostermaluleke@gmail.com; Maluleke, Tirhani Foster
In contemporary times, the issue of human and labour rights violations has gained significant momentum, rendering it imperative for international organisations, states, and businesses to address this critical concern. It is widely acknowledged that while multinational enterprises can aid in achieving economic growth by investing directly overseas and raising the standard of living for the residents of host nations, their business operations may also result in abuse of human and labour rights. The United Nations (UN) Charter was drafted to set forth obligations for individual states, yet businesses do not bear international legal obligations. The Universal Declaration on Human Rights was adopted to implement the substantive contents of human rights referred to in the UN Charter in the general way. The preamble of the Universal Declaration refers to all organs of society, but, at the time of its adoption, businesses were not considered among such organs. It was inconceivable that business organisations would become so economically powerful within a few decades that they would pose a significant risk to human and labour rights, which would not be easily regulated under the national law of their host nations. It is the hypothesis of this study that numerous multinational enterprises (MNEs) violate core human and core labour rights, and that the existing regulatory framework does not adequately regulate them. To prove this hypothesis, this thesis will adopt a two phased approach. Firstly, a careful case law and literature review will reveal the inadequate regulation of MNEs. Evidence suggests that MNEs are guilty of flagrant labour standards and human rights violations. As a result of globalisation, MNEs have gained stronger international influence, and they are able to move their businesses to countries with low cost of labour and less regulations. This phenomenon weakens the governments of host nations as they are keen to promote foreign direct investment in order to reduce unemployment and to ensure economic growth. As a result, the host nations are encouraged to set laws that will attract MNEs at the expense of human and core labour rights. As result, MNEs are not held accountable in respect of their violation of human and labour rights. Secondly, this thesis will assess the efficacy of the regulatory instruments developed by the international community in response to the mentioned problem. This aspect is covered in Chapter 3 to 7 of this thesis. The strategies include the public and private hard law and soft law mechanisms developed at international level as well as campaigns by Non-Governmental Organisations (NGOs). Based on evidence, this thesis will conclude that a soft law approach is not fully effective. As such, Chapter 8 of this thesis proposes the introduction of some hard law measures to improve the existing soft law instruments to augment the existing legislative frameworks of the host countries. In particular, the thesis recommends regulatory reforms, which will empower the International Labour Organisation to intervene to prevent the labour rights violations by MNEs and where such violations occur, to at least provide effective remedies to vulnerable employees. This thesis constitutes a theoretical study, which attempts to provide suggestions regarding the implementation of realistic measures, which if implemented, may contribute to the attainment of decent work for all men and women who are engaged in work for MNEs.
The constitutionality of mandatory retirement in South African labour law
(University of Pretoria, 2024-07-31) Maloka, Tumo; Van Eck, B.P.S. ; rorton@labournet.com; Orton, Ruben Joseph Charles
This thesis examines whether South African mandatory retirement (MR) law unjustifiably impairs the constitutional rights to fair labour practices and against unfair age discrimination (affected rights, collectively), and is therefore unconstitutional; and if South African MR law is unconstitutional, how the South African MR law should be adapted to render it constitutional. In doing so, the following areas are explored: the meaning of MR and the principles that underpin South African MR law; the constitutional principles that apply to the affected rights, and the manifestation of the affected rights in labour law; the effect of the constitutionalisation of labour law; the detriments that MR causes for older persons; the predominant justifications of MR; and the applicable international, regional law, and comparative Canadian and German law. A dignity framework is developed and presented. The relevant parts of this framework are combined with applicable constitutional principles to propose a three-step test to determine whether an older person’s dignity, based on self-fulfilment (self-fulfilment dignity), and concomitantly the affected rights, are unjustifiably impaired by MR. The first step is to provisionally determine the meaning of the older person’s self-fulfilment dignity and whether it had been impaired by MR in relation to individualistic considerations. If it is found that there was a provisional impairment, the second step is to verify whether there are MR justifications that are worthy of shaping the provisional meaning of an older person’s self-fulfilment dignity. The worthiness of the MR justification must be verified by applying relevant social justice norms and proportionality considerations in terms of section 36(1) of the Constitution. Third, if the MR justifications are found to be worthy, it must finally be established what the meaning of an older person’s self-fulfilment dignity is with due regard to the worthy MR justifications, and whether this final version of self-fulfilment dignity had been impaired. It is argued that MR, in general, provisionally impairs an older person’s self-fulfilment dignity because MR often suppresses an older person’s ability to realise, maintain, and develop their physical, psychological, and social identity, health, capacities and desires, in accordance with their unique attributes. It is contended that the majority of the MR justifications that are examined are unworthy because it is not sanctioned by applicable social justice rules; and/or MR does not reasonably fulfil the purpose that the MR justifications aim to achieve; and/or there are other ways of achieving the purpose that the MR justification endeavours to achieve. In consequence, it is advanced that the provisional impairment of self-fulfilment dignity occasioned by MR will, in the final analysis, therefore mostly constitutes an unjustifiable impairment of an older person’s self-fulfilment dignity. As a result, this thesis concludes that South African MR law, in terms whereof employers enjoy a very broad MR right, unjustifiably impairs the affected rights and is therefore unconstitutional. This conclusion is bolstered by the assertion that the “high situation-dignity MR approach” to the affected rights, in terms whereof MR is permitted in exceptional circumstances, is the only constitutionally congruent approach. This proposition follows from an assessment of the general South African human rights design; applicable international and regional law; and comparative Canadian and German law. To remedy the unconstitutionality of South African MR law it is recommended that sections 187(2)(b) and 198B(1)(c) of the LRA must be repealed; that the worthiness of MR justifications must be evaluated exclusively by determining whether it constitutes an inherent requirement of the job in terms of section 187(2)(a) of the LRA; and a Code of Good Practice: Mandatory Retirement is formulated to provide clarity in regards to the continued application of MR in South Africa.
The development of explicit deposit insurance schemes in selected countries in Southern Africa
(University of Pretoria, 2024-04-25) Nyaude, Ashley; mbakisod@gmail.com; Moloi, Mbakiso Ndumiso
This dissertation explores the evolution of explicit deposit insurance schemes (EDIS) in Southern African countries. It emphasises the important role of banks in the economy and their vulnerability to failures despite prudential requirements and supervision. Financial safety nets are essential for failing banks, and deposit insurance is the primary mechanism to protect depositors and maintain financial system stability in the event of a bank's failure. Originating in 1933 with the establishment of the Federal Deposit Insurance Corporation in the United States of America during the Great Depression, EDIS has become a global standard. Southern Africa, with its developing financial sector, faces many challenges including bank failures, causing depositors to lose funds. The region's high interconnectedness increases the threat of contagion if parent banks fail. The absence of deposit insurance raises the likelihood of fiscal authorities succumbing to political pressure to bailout failing banks during crises as seen during the 2007-09 Global Financial Crisis (GFC). The GFC prompted the International Association of Deposit Insurers and the Basel Committee on Banking Supervision to establish the Core Principles for Effective Deposit Insurance Systems. Issued in June 2009, these principles are used by jurisdictions as a benchmark for assessing the quality of their deposit insurance systems and identifying gaps in their deposit insurance practices. This research aims to evaluate international best practice standards for EDIS and extract lessons from the establishment of EDIS in the USA to address gaps in the implementation of deposit insurance schemes in Southern African countries. Examining ten Southern African countries, this research investigates varied progress in EDIS adoption. Case studies, particularly Zimbabwe as a pioneer of EDIS in the region and Namibia as a recent entrant, help to identify gaps and opportunities for enhancing deposit insurance frameworks in the region.
The legitimacy of dismissals for off-duty misconduct in South African labour law
(University of Pretoria, 2024-01-31) Newaj, Kamalesh; thandekilempo@gmail.com; Phulu, Thandekile
The main aim of this thesis is to solve the uncertainties brought about by dismissals for off-duty misconduct. First, it should be acknowledged that the world as we know it has changed and continues to evolve. Dismissals have been significantly impacted by the use of social media outside the workplace. The legalisation of the use of cannabis by an adult person has also brought uncertainties in the way dismissals are handled, especially in cases where an employee consumes cannabis off-duty. These two aspects have significantly influenced dismissals for off-duty misconduct in South Africa, with employees alleging that their rights to privacy, dignity and freedom of expression are infringed. The thesis reveals that regardless of these modern changes, off-duty misconduct dismissal is still governed by the generic provisions of the Labour Relations Act 1995 and its Code of Good Practice: Dismissal. The thesis underscores the lack of clarity regarding the regulation of dismissals for off-duty misconduct in South Africa. Furthermore, despite the judiciary’s establishment of tests (the nexus test and the breakdown of the employment relationship), challenges in adjudicating off-duty misconduct cases persist. This thesis analyses the South African legal framework governing dismissals for off-duty misconduct. The research investigates the evolution of South African dismissal law, tracing its development from the pre-democratic era to the post-democratic era. This investigation scrutinises the shifts in the legal landscape regarding dismissals for off-duty misconduct. The analysis encompasses a range of legal instruments pertinent to South Africa, including legislation, international law, common law, and judicial precedent. The current need for a Code of Good Practice for off-duty misconduct dismissal is highlighted. This rationale is prompted by a comparative examination of other countries where, despite the absence of specific codes addressing off-duty misconduct, a proactive stance has been adopted to safeguard employees’ off-duty rights by enacting relevant legislation. These chosen states have statutes regulating employees’ off-duty conduct and clarifying which conduct is protected and in which circumstances. Consequently, the thesis proposes a Code of Good Practice: Dismissal for Off-duty Misconduct. This Code would assist in the uniformity of application of relevant aspects in determining the fairness of dismissals for off-duty misconduct, thus alleviating labour suits concerning this type of dismissal. The Code would also provide employers with guidelines on how to draft off-duty misconduct policies without infringing employees’ constitutional rights.
Taxpayer Confidentiality : implications of the tax secrecy provisions regarding illegal miners
(University of Pretoria, 2024-05-29) Meyer, Dr Carolina; u18375457@tuks.co.za; Kgobe, Kgothatso
Taxpayer confidentiality and its implications (if any), on illegal miners
The use of blockchain for collecting value-added tax on online cross-border trade in digital goods
(University of Pretoria, 2024-06-30) van Zyl, SP; lelouche773@gmail.com; Kabwe, Ruddy Kapasula
The collection of value-added tax from the cross-border supply of digital goods remains a challenge for tax authorities around the world. South Africa is no different. The traditional methods of collecting VAT from the supply of digital goods relies on the honesty of the consumer and on the supplier to account for and remit VAT to the tax authorities in the jurisdiction where the goods are consumed. The traditional collection models are often unreliable, inefficient, burdensome, and expensive for the consumers and the suppliers. The adoption of blockchain technology as a model to collect VAT on the cross-border supply of digital goods has the potential to alleviate the compliance burden on consumers and suppliers of digital goods, improve the efficiency of tax administration, and reduce VAT fraud. Importantly, blockchain technology can create trust between tax authorities, suppliers of digital goods, and consumers. This thesis critically discusses the advantages and disadvantages of implementing blockchain technology for the collection of VAT on the cross-border supply of digital goods in South Africa. This thesis unpacks the consideration factors for policymakers in the implementation of blockchain technology for the collection of VAT on cross-border trade in digital goods. The thesis makes recommendations for the South African VAT Act to be amended to make provision for the collection of VAT by utilising blockchain technology.
The deposit insurance scheme under the financial sector regulation Act 9 of 2017
(University of Pretoria, 2023-11-29) Nyaude, Ashley; u19300680@tuks.co.za; Lepele, Seipati E.
This study explores the features of South Africa’s recently adopted Explicit Deposit Insurance Scheme (EDIS). EDIS serves as a mechanism designed to enhance financial system stability during bank failures by instilling confidence in depositors regarding the recovery of their insured funds, thereby reducing the likelihood of a bank run. EDIS, initially pioneered by the United States in 1933, has become a global mechanism adopted by various countries. South Africa’s recent transition from implicit deposit insurance, characterised by a lack of rules governing coverage and compensation, to a rules-based EDIS is captured in the Financial Sector Regulation Act 9 of 2017 (as amended). This development aligns the country with international best practices, particularly the International Association of Deposit Insurer’s Core Principles for Effective Deposit Insurance Systems (Core Principles). This study benchmarks South Africa’s EDIS against these Core Principles to assess its alignment with international standards and identify any potential shortcomings. Additionally, the study examines the deposit insurance systems in the United States and Kenya to extract valuable lessons for South Africa, considering the extensive experience of these jurisdictions in managing such systems.
South Africa’s position on and regulation of treaty shopping
(University of Pretoria, 2024-10-31) Khodani, Sengwane; u17007730@tuks.co.za; Haring, Tegan Natalie
This thesis explores the critical issue of treaty shopping and its implications for South Africa's tax base. Treaty shopping, a practice where entities exploit tax treaties to avoid or minimise taxation, poses a significant threat to national revenues. The study aims to clarify South Africa's strategies in combatting treaty abuse, evaluating their effectiveness in safeguarding the tax base.

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