Theses and Dissertations (Mercantile Law)
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Item The role of the national consumer tribunal in reckless lending in terms of the National Credit Act 34 of 2005(University of Pretoria, 2024-12) Renke, Stephan; Hermanvh1@icloud.com; Van Heerden, Willem HermanThe National Credit Act 34 of 2005 (NCA) prohibits the granting of reckless credit and identifies three types of reckless credit for which civil remedies may be granted in terms of section 83 of the Act. It also introduced mandatory pre-agreement assessment in terms of section 81(2) of the NCA read with the 2015 Financial Affordability Assessment Regulations which obliges a credit provider to assess a consumer for affordability before entering into a credit agreement with the consumer. The NCA has established the National Credit Regulator as primary enforcer of compliance with the Act. It further established the Tribunal to adjudicate reckless credit complaints. The Tribunal can impose administrative fines on credit providers who were found to have extended reckless credit and it can also cancel their registration as credit providers. Initially only the civil courts could grant the civil relief set out in section 83. However, since the National Credit Amendment Act 9 of 2014 came into operation, the Tribunal can now also grant the very same civil relief as the civil courts in terms of section 83 of the NCA. This dissertation interrogates the power of the Tribunal to grant civil relief and makes recommendations regarding whether this power should be retained.Item Implementation of safeguard measures in digital trade to protect African domestic industries and platforms(University of Pretoria, 2025-02) Brink, Gustav; u19383232@tuks.co.za; Rotich, Nelly ChepngetichAs technology continues to advance, more trade is moving online. The increase in digital trade brings with it both opportunities and challenges in the international trade field. The increase in digital trade could for instance result in a spike in digital trade imports which may subsequently cause or threaten to cause serious injury to domestic industries and platforms dealing in like or directly substitutable digital data/content and services. This would necessitate the application of safeguard measures to avert any such serious injury or threat to serious injury caused to the domestic industries and platforms. The procedure for applying safeguard measures to digital trade currently is unclear. The current legal framework on safeguard measures does not apply to digital trade despite increased digital trade over the years. Thus, this study explores the prospects and practical challenges relating to safeguard measures’ application to digital trade with a specific focus on African domestic industries and platforms. While domestic industries and platforms in any part of the world could be affected by surges in digital trade imports, Africa is in a precarious position. Intra-Africa digital trade volumes could be increased and disadvantages of African domestic industries and platforms by surges in digital trade imports could be prevented through regulation and judicious use of safeguard measures. This study established the need to regulate to tap into the potential of digital trade and prevent African industries and platforms from falling behind and from the disadvantage of market dominance by big techs from outside Africa. In conclusion, the study noted legal and institutional gaps in the application of safeguard measures to digital trade. The study has recommended that specific institutions at the global, continental and national levels take necessary actions to build a clear and robust framework for safeguard measures in digital trade.Item Aspects of debt enforcement in terms of the National Credit Act 34 of 2005(University of Pretoria, 2024) Renke, Stephan; u24017699@tuks.co.za; Dlamini, Dumsile (Dladla)The Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980 have governed consumer credit regulation in South Africa for more than 25 years. When South Africa became of democracy, it was clear that the financial credit market was ill suited to the country’s post-apartheid economy and, by extension, society. Kelly-Louw states that the financial credit market was “… characterised by discrimination, a lack of transparency, limited competition, high costs of credit, and limited consumer protection. The mechanism to prevent over-indebtedness that were in place at the time, could also not adequately promote the rehabilitation of consumers, and the available debt relief could also not assist already over-indebted consumers to deal with their debt.” This dissertation considers the prescriptions laid down in section 129(1)(a) of the National Credit Act 34 of 2005 (“NCA” or “Act”), which are pivotal in the debt enforcement of credit agreements. Section 129(1)(b), read with sections 130(1) and 130 (3)(a) of the Act, in essence encumbers a credit provider with the duty to deliver a section 129(1)(a) notice to the consumer prior to debt enforcement. It is noteworthy that debt enforcement is a lengthy, two-pronged procedure. This dissertation considers both aspects of debt enforcement; however, the focus is on the first stage of the process, which pertains to the required procedures prior to debt enforcement. The Act does not expressly define “delivered”, and, as such, inferences are taken from other sections to give effect to sections 129 and 130 of the Act. It is the very lack of a definition that has resulted in courts burdened with cases served before them for interpretation of the delivery of the statutory notice. In this dissertation, the Act’s varying provisions on “delivery” are considered and analysed, to determine and recommend, firstly, harmonisation of the conflicting sections within the Act and, secondly, other legislative enactments that have a bearing on the delivery of legal documents and, in particular, those that are mandatory for procedures in court, Lastly, the dissertation addresses the plethora of stare decisis that has served before the highest courts in the land, with a focus on landmark case.Item 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, MpumziThis 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-BBEEItem Credit agreements subject to the National Credit Act 34 of 2005(University of Pretoria, 2024-12) Renke, Stefan; Marvin30595@gmail.com; Mokagane, Kamogelo MarvinThe National Credit Act 34 of 2005 (“NCA” or “Act”) applies to three main categories of credit agreements, namely the credit facility, credit transaction and credit guarantee. Eight different credit transactions are subject to the Act. The purpose of the dissertation is to discuss and compare the credit agreements subject to the NCA. The ultimate aim is to identify the distinguishing characteristics of each credit agreement in terms of the NCA to serve as a guide to facilitate its classification as a particular type of credit agreement. This will be done with reference to the Act's provisions, case law and journal publications. Lastly, lacunae in the definitions of the credit agreements subject to the NCA, if any, will be pointed out and recommendations to address the lacunae will be made.Item 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 TebogoA 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.Item Transparency and oversight of broker incentive practices in South African insurance law(University of Pretoria, 2024-12) Ncube, Princess; Grove, Niek; sbmhlambi@gmail.com; Mhlambi, Sbongile Manana BernardetteThis research investigated the crucial concerns regarding broker remuneration practices, focusing on the transparency and oversight mechanisms governing these practices in the South African insurance sector. The central function of brokers in the relationship between consumers and insurers positions them to espouse consumer trust and actuate market efficiency. Despite this, the intricate nature of insurance products and services and the potential conflicts of interest attributable to wide-ranging compensation schemes and loopholes for exploitation have spurred concern from stakeholders in the insurance industry. The research contextualises broker remuneration schemes within the broader financial system and illuminates the various methods of compensation and incentivisation. The study investigated the main themes and challenges inherent to broker remuneration, such as a discord of interests and the ramifications for market integrity. An empirical analysis of data on remuneration structures is conducted using qualitative research methods, incorporating a literature review, theoretical framework, and a conceptual framework approach. The research findings expose anomalies in transparency, consistency, and legality of remuneration structures, undermining consumer confidence in the market. Variations in regulatory oversight are identified, and the discrepancies that could lead to unethical conduct and market abuse are highlighted. In conclusion, this research proposes a framework for enhancing regulatory oversight of remuneration methods for brokers. It also advocates for uniform disclosure requirements, innovative regulatory compliance strategies, and the assumption of best practices across the insurance sector.Item Burial society as an alternative to funeral insurance in South Africa(University of Pretoria, 2024-12-18) Grove, Niek; salomemok@nedbank.co.za; Mphafudi, Salome UtamaThis study analysed how culture influences the importance of funeral insurance in traditional African communities and how the quality of a funeral is linked to showing respect for deceased elders. The literature reviewed also indicated how funeral cover from burial societies and funeral parlours has helped to regulate the divergence created by the traditional insurance sector by offering products customised to low-income families. Recommendations are submitted on alternative regulatory frameworks and governance requirements that could be considered to protect consumers participating in burial societiesItem Assessing the effects of treating customers fairly principles on the insurance product lifecycle and claims handling in South African law(University of Pretoria, 2024-11-20) Grove, Niek; Mtho.Maphumulo@adams.africa; Maphumulo, MthokozisiThis research evaluates the effect of the Treating Customers Fairly (TCF) principles on the insurance product lifecycle and claims handling within South African law. The study contextualises the Treating Customers Fairly (TCF) principles together with the 2018 Policyholder Protection Rules (PPRs) against historical and economic developments. It examines the role of fairness in common law and insurance contracts, comparing the legal positions pre- and post-Treating Customers Fairly (TCF) implementation. The research aimed to determine whether the Treating Customers Fairly (TCF) principles have effectively enhanced the fair treatment of insurance customers, contributing to inclusivity and economic development. The study also directs the challenges and implications of enforcing TCF principles, considering the balance between customer protection and operational costs for insurers.Item Suicide and life insurance : the legal and ethical implications of suicide exclusion clauses in life insurance policies(University of Pretoria, 2024-10) Ncube, Princess Thembelihle; Ncube, Princess; u16193416@tuks.co.za; Phahlane, Zodwa SinahThe main purpose of suicide exclusion clauses is to protect life insurance companies from fraudulent activities such as where a policyholder plans and takes their own lives for financial gain. The typical exclusion period is 24 months, however, there are other insurers whose exclusion periods range between 6 and 12 months. Suicide deaths have always presented a problem for the insurance industry when it comes to the assessment claims and the payments of death benefits. Where a policyholder dies by suicide during the exclusion period, the insurer rejects the benefit claim, and either pays back the premiums received until death or does not pay out at all. When dealing with claims relating to suicide deaths, the insurer does not consider the circumstances surrounding the death, such as an inquiry into the policyholder’s mental state. This shows that mental health illnesses are not considered in this regard. The courts have upheld the rejection of claims by insurers to the detriment of beneficiaries, who face difficult financial and emotional distress after the death of a loved one by suicide. This dissertation will show the unfair treatment of people living with mental illnesses by life insurance providers and how this amounts to unethical conduct by these companies and provide a call to declare suicide exclusion clauses unlawful on the basis of discrimination.Item The impact of material non-disclosure and misrepresentation in South African insurance law : a comparative study(University of Pretoria, 2024-11) Ncube, Princess; Ncube, Princess Thembelihle; mabasavl@gmail.com; Mabasa, Vonani LuckySection 53 of the Short-term Insurance Act 53 of 1998 and section 59 of the Long-term Insurance Act 52 of 1998 deal with misrepresentation, and denies the parties to the insurance contract of the common law right to cancel the policy on the ground of misrepresentation, unless such misrepresentation is material. Both Acts did not define what is material and to what extent does the parties have to disclose during negotiation stages. Our courts depend on the Roman-Dutch law when confronted with insurance dispute whereas, the principle of utmost good faith had been rejected as it is part of the English law. Different types of misrepresentation call for different remedies in terms of the common law. The comparation with one of the best world insurance law, Australia was made. The uncertainty of duration upon which the parties to insurance contract may disclose the change in the material circumstances had been explored, although seem to favours the insurers than the insured. In this dissertation, ways in which the parties to insurance contract may reduce having their contract be invalidated due to misrepresentation and non-disclosure had been investigated. The impact of rejecting the utmost good faith principle had been discussed and the proposal to harmonize the Roman-Dutch law and English, which will reduce the impact of non-disclosure and misrepresentation in insurance contract.Item Transparency in the South African banking sector : improved consumer protection(University of Pretoria, 2024-10) Van Heerden, C.M. (Corlia); daddywatezwa@gmail.com; Watezwa, Daddy TokoBanks play an invaluable role in the development and growth of the South African financial system. The 2008 Global Financial Crisis (GFC) was a significant turning point in the global banking regulation system. The GFC which was caused by numerous factors, including inadequate banking transparency and disregard for financial consumer protection, led to the development of global banking regulatory trends in hopes of preventing the outbreak of future financial crisis. Post-GFC, the discourse of transparency as a tool to enhance financial consumer protection has gained traction in South Africa and across the world. The Bank for International Settlements and the Basel Committee on Banking Supervision are among the front runners of the global efforts for transforming banking regulations to become more robust and ensure the protection of financial consumers through transparency. This research aims to advance and contribute to the discourse of banking transparency in South Africa and interrogate the role that transparency plays in improving financial consumer protection in South Africa post-GFC. The study leads a discussion of South Africa’s banking regulation renaissance post-GFC and the implementation and adoption of various global standards to align South Africa’s approach to transparency in the banking sector and improved financial consumer protection with global best practice.Item Selected problem areas pertaining to the removal of directors from office(University of Pretoria, 2024-11) Van Wyk, Jani Sani ; u21696030@tuks.co.za; Shange, Thandokuhle WandileThis paper constitutes a composite analysis of the legal framework and procedures for removing directors and the key challenges presented by the framework. It achieves this by looking at four legal questions: Firstly, it looks into what is the legal framework for director removal in South Africa, secondly, it delves into the challenges and/or uncertainties presented by this process, and further explores if there are any possible learnings South Africa can learn from foreign jurisdiction.Item The effectiveness of the Financial Intelligence Centre Act 38 of 2001 in combating money-laundering in South African banking institutions(University of Pretoria, 2024-12) Ncube, Princess; Ncube, Princess Thembelihle; u23920166@tuks.co.za; Modise, Bongani MichealMoney laundering is a clandestine financial phenomenon involving the concealment of the origins of illicit funds. It can be defined as the process of disguising illegally acquired money to make it appear legitimate. This practice negatively impacts global economies and the stability of financial institutions. Banking institutions, as financial intermediaries, are at high risk of facilitating these illicit transactions, making them accountable institutions mandated to report suspected money laundering activities. To combat money laundering, South Africa has enacted key legislation, such as the Prevention of Organised Crime Act (POCA), the Protection of Constitutional Democracy against Terrorist and Related Activities Act (POCDATARA), and the Financial Intelligence Centre Act (FICA). These statutes provide for mandatory anti-money laundering measures such as Know Your Customer (KYC), transactional monitoring, suspicious activities reporting, record-keeping, and ongoing staff training. This study examines the effectiveness of the current regulatory framework, specifically FICA, in addressing money laundering within banking institutions. The findings indicate that while the framework is effective, improvements are necessary. Issues such as operational capacity, employee training, and technological innovations impact compliance. Newer and emerging banking institutions face challenges in incorporating these requirements. This study proposes solutions to enhance the effectiveness of anti-money laundering measures in South Africa.Item Perspectives of post-commencement financiers regarding their voting rights on a business rescue plan(University of Pretoria, 2024-11-25) Van Wyk, Jani; larisa@shplaw.co.za; Van Niekerk, LarisaPost-commencement financiers provide a lifeline to companies under business rescue and these financiers have their best interest in the survival of these companies. Should it be that the business rescue plan is unsuccessful, the chances are that the post commencement financiers will be the largest creditors. In Wescoal Mining (Pty) Ltd v Mkhombo NO, a dispute arose regarding the appropriate adoption of a business rescue plan during the meeting. One critical legal issue was whether the Companies Act bestows voting rights exclusively to the company's creditors who existed at the initiation of business rescue, or if creditors accruing after the commencement may also partake in voting on the plan. Following an assessment by Judge Wilson, it was established that only creditors with claims predating the commencement were eligible to participate in the voting process. Subsequently, Judge Wilson believed that section 135 of the Companies Act places post-commencement financiers as creditors in a different class and provides for their protection and interests in a different way. Against this background, the dissertation evaluates the position of post-commencement creditors when it comes to voting on a business rescue plan.Item Exploring the fraud exception in demand guarantees : a comparative study of South African and Singaporean approaches(University of Pretoria, 2024-12-01) Grove, Niek; mvandermerwe77@gmail.com; Van der Merwe, M. (Michelle)The research explores the intricate challenges with the fraud defence and proposes suggestions, through international jurisprudential developments, regarding a possible additional defence to curtail abusive calls on-demand guarantees. The additional defence, the ‘unconscionable conduct’ exception, is illustrated as seemingly indirectly finding its way into South African case law under the guise of the broad approach to the fraud defence.Item A critical and comparative analysis of the South African and Australian product liability regimes(University of Pretoria, 2024-10) Van Heerden, C.M. (Corlia); u18031219@tuks.co.za; Matekwe, TakudzwaProduct liability claims involve recovering damages for harm, whether through property damage or personal injury, caused by a defective product. In South Africa, the concept of product liability initially found its roots in common law, either in the law of delict or via contract, which usually takes the form of a breach of warranty or misrepresentation regarding the suitability and non-defectiveness of the product concerned. A delictual claim is based on the negligent causing of harm by the supplier. However, the common law exhibits various shortcomings in terms of the protection afforded to the consumer. One of the main challenges posed by the common law is the requirement that the consumer has to prove fault on the part of the supplier of the defective goods. Due to the lack of knowledge of the supplier’s processes, consumers often cannot discharge this burden, thus leaving them without any sufficient legal recourse. This inadequacy of the common law to facilitate sufficient redress, the constitutional dispensation that came into effect through the introduction of the Constitution of the Republic of South Africa, 1996, and the influence of international consumer standards such as the EU Product Liability Directive and Part 3 to 5 of Schedule 2 of the Australian Competition and Consumer Act (ACL) urged the South African legislature to enact the Consumer Protection Act 68 of 2008 (CPA). In a bid to remedy the shortcomings of the common law, a “strict” product liability regime was introduced and captured in section 61 of the CPA, albeit the South African product liability regime can be regarded as “hybrid” rather than strict due to the defences it affords to suppliers. Product liability under the CPA affords consumers greater protection by no longer requiring a consumer to prove fault on the part of a supplier. It holds the whole supply chain strictly liable for the harm caused by releasing defective goods on the consumer market. However, the statutory strict liability regime came with its practical flaws. One of the flaws in the Act that materialised concerned identifying potential claimants (consumers) for strict product liability under section 61 of the CPA. In the hope that judicial precedence would resolve this lacuna in the Act, the court in Eskom Holdings Limited v Halstad-Cleak 2017 (1) SA 333 (SCA) to some extent unfortunately exacerbated this flaw and provided little guidance to the provision. This dissertation is a critical appraisal of the South African “strict” product liability regime as introduced in section 61 of the CPA. The research seeks to determine whether product liability in section 61 sufficiently protects consumers. The current and the previous positions governing product liability in South Africa will be meticulously examined to determine the sufficiency of the current regime. Lastly, the Australian product liability regime will be considered, in an attempt to find solutions or draw recommendations regarding the shortcomings in the South African product liability laws.Item Proposed legal reforms to protect South Africa's informal social security(University of Pretoria, 2024-11) Newaj, Kamalesh; zeelie.robin@gmail.com; Zeelie, Robin ErinInformal social security is a non-governmental form of social security between kin and/or community members and is a prevalent practice in South Africa. The question this dissertation analyses is whether the South African government fails in its constitutional duty to protect and advance informal social security. The dissertation limits itself to analysing cash transfers through social grants, and social insurance in the Unemployment Insurance Act and the Compensation for Occupational Injuries and Diseases Act. This dissertation delineates its definition of informal social security, historically contextualises its practice, and explains the contemporary formal social security framework. This dissertation finds five prominent shortcomings in the formal framework, and that these shortcomings have a profoundly negative, weakening effect on informal social security, as the more people who rely on informal mechanisms, the less it can respond to needs arising from life contingencies, shocks, and risks. The dissertation concludes by analysing three legal reform proposals the state can implement: extending existing social insurance frameworks to those in the informal sector, promoting cooperatives as a formal platform for the informal, and the basic income grant.Item Theories on the nature and purpose of the company and their implications for corporate governance(University of Pretoria, 2024-11) Delport, P.A. (Piet A.); Esser, I.M.; ansieramalho@gmail.com; Ramalho, Anna FrancinaDespite the emergence of corporate governance as a formal discipline more than thirty years ago, the proliferation internationally of scholarly work on the topic and its formal regulation over this period, the scope, definition and direction of corporate governance remain contested. Company theories could potentially assist in this regard but have been inconsistent in their explanations of the both the means and ends of corporate governance. This has led to scepticism about the efficacy of theories to illuminate the phenomena associated with companies and company law. Notwithstanding, theory is critical as it makes explicit what is implicit in policymaking by regulators, as well as in the behaviour and decision-making by corporate actors, so that regulation and decisions are transparent for analysis and evaluation. The study, therefore, set out to provide a synthesis and doctrinal analysis of the main theories on the nature and general purpose of corporations in historical context. It was found that objections can be raised against all of these theories to a greater or lesser extent for inaccurate portrayal of the law, limited explanatory power and detachment from the real word. This study shows that corporate theories are a product of the settings in which they have developed and consequently none of these theories represents a universal or absolute truth, nor are they an inevitability due to widespread adoption and use. This leaves room for new formulations of the corporate form and its purpose fit for today’s context with its political, social and environmental challenges. This dissertation also includes further directions for theoretical exploration.Item 'Banking' on artificial intelligence to enhance bank risk management(University of Pretoria, 2024-10) Van Heerden, C.M. (Corlia); mayuree.chiba@gmai.com; Chiba, MayureeThis 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.