Theses and Dissertations (Mercantile Law)

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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.
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 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.
Insurable interest in South African insurance law : anachronism or essential requirement
(University of Pretoria, 2024-04-30) Grové, Nicholaas Johannes Jr; mroos010@gmail.com; Roos, Micaela
This research comprises an analytical analysis of insurable interest doctrine, exploring its scope and application within indemnity insurance contracts. The statutory definition of insurable interest is explored while investigating its historical usage. The study examined how this doctrine should be applied in the present day, considering the economic state in South Africa. Even though South African insurance law and its principles originate from the Roman-Dutch insurance law and mainly concerned itself with corporeal property, it is English insurance law and its application of insurable interest, that have been consistently applied over the years and have prevailed over the common law-derived principle of insurable interest. Despite its significance, uncertainty remains regarding its application today. The central question revolves around whether insurable interest should remain an essential requirement in indemnity insurance contracts or be considered an anachronism. A comparative analysis is conducted among the scope, application, and statutory definition of insurable interest in South African law and its English counterpart. This study aimed to establish a clear and beneficial statutory definition, scope, and application of the insurable interest doctrine, aligning with the South African legal framework and benefitting insured parties and insurers in indemnity insurance contracts.
Lessons for insolvency law from the emoluments attachment order experience
(University of Pretoria, 2024-05) van Wyk, Jani; Boraine, André; frikgrobler3@gmail.com; Grobler, Frederik
Section 23(5) of the Insolvency Act poses an interesting challenge, namely vesting a portion of an insolvent’s post-sequestration income in the trustee of the insolvent estate without infringing on the insolvent’s constitutional rights. The income earned by the insolvent during sequestration is in general excluded from his estate and does not vest in the trustee, unless the Master determines that a portion of the insolvent’s income will not be required to maintain the insolvent and his dependents. In such a case, only the portion deemed to be surplus to requirements will be included in the insolvent estate and will vest in the trustee. The question of what role the insolvent’s income should play during the sequestration process, and therefore how section 23(5) should be interpreted and applied, has vexed the courts and numerous practical and constitutional issues arise. This study examines the application and shortcomings of section 23(5) during the administration phase of the sequestration process. It then explores the lessons learned during the recent constitutional scrutiny and subsequent amendment of the emoluments attachment process. Lastly, recommendations are made for possible law reform of section 23(5).
Squaring up with workplace bullying
(University of Pretoria, 2024) Maloka, Tumo; natashia.naidoo1@gmail.com; Naidoo, Natashia
Workplace bullying is not considered a form of harassment that is commonly acknowledged nor does it attract specific legislative protection. The aim of this mini-dissertation is to ascertain the degree to which victims of workplace bullying are protected by South African labour legislation and whether other measures are necessary to ensure that employees are adequately protected. A comparative analysis between South Africa and the United Kongdom's legislative frameworks that governs workplace violence and harassment and, by implication, bullying is a critical aspect of this mini-dissertation.
Advancing a constitutional approach in evaluating mergers and acquisitions in South Africa : lessons from competition commission of South Africa vs Mediclinic Southern Africa (PTY) LTD 2022 (4) SA 323 (CC)
(University of Pretoria, 2024-06-25) Prof Munyai, Phumudzo; u16046928@tuks.co.za; Masango, Wandile
Competition law is a vital tool that can be used to regulate and promote a competitive market economy. It is often argued that in a free market economy, market operation/performance should be left to be determined and regulated by market forces, and therefore state intervention should be minimal. Even though this view may have merit, it may be unsuitable or undesirable in developing countries like South Africa that are grappling with historical political ties that have engraved deep racial inequalities and uneven opportunities or access to participate in the economy. In the latter scenario, it is fundamentally important for the government to introduce measures to ensure that free market operations do not widen the inequalities and exclude other members of the society from meaningful participation in the economy. This is the story of the current South African competition law regime. The South African Competition Act has traditional competition objectives and equity objectives, both of which are explicitly set out in the preamble, section 2, and the substantive provisions of the Act. Section 12A of the Act, the merger control provision, is one of those provisions in the Act that incorporates both the competition and equity policy objectives. The legislature intended that both policy objectives be approached with and given equal weight in interpreting and applying section 12A. Section 12A is therefore a regulatory tool deployed by the South African government to regulate the implementation of mergers and acquisitions to promote competition and further advance access to and equal participation in the economy. These objectives are in line with some of the fundamental objectives underpinning our constitutional democracy including the right to equality and the advancement of human rights. The Constitution is the supreme source of law that sets the benchmark against which all laws must be interpreted. The Competition Act should therefore be applied within the framework of the Constitution. Section 39(2) enjoins courts, tribunals, and forums to promote the spirit, purport, and objectives of the Bill of Rights when performing judicial duties. It therefore follows that; competition authorities should give regard to the constitution and the Bill of Rights when evaluating mergers and acquisitions. In Competition Commission v Mediclinic, the Constitutional Court stated that when evaluating mergers, competition authorities are bound to give regard to all the policy objectives of the Competition Act, and further comply with all their constitutional duties including the injunction in section 39(2) to promote the spirit, purport and objects of the Bill of Rights.
The legal framework regulating the duties of insurance intermediaries
(University of Pretoria, 2024-02) Thiruneson, Padayachy; Maralize, Conradie; u21454371@tucks.co.za; Sithole, Eugine
In South Africa, before the Financial Advisory and Intermediaries Services Act (FAIS Act) and other insurance laws came into existence, intermediary services regarding the rendering of insurance products have always been regulated by the law of agency and mandate. This means that the Roman-Dutch principles provided for the standards to which the conduct of intermediaries was to comply with when rendering insurance services. The mandate of intermediaries in terms of the Roman-Dutch Principles also included the fact that they had to act with care, skill and in good faith. When the FAIS Act came into operation, it introduced several detailed rules and minimum standards for insurance intermediaries to comply with, and these minimum standards are not limited to qualifications, experiences and characteristics of honesty and integrity that an intermediary must comply with, but they also stipulated in detail what an intermediary must do when discharging insurance intermediary duties. The FAIS Act is the leading legislation when it comes to the regulation of intermediary services. The FAIS Act, under section 16, provides for a General Code of Conduct for Authorised Financial Services Providers and their Representative (GCC), which contains a set of rules that are applicable to all intermediaries. These rules under the GCC are aimed at ensuring that insurance customers are provided with material facts that will enable them to make a prior informed decision and that their reasonable financial needs concerning insurance products will be carefully considered so that they can be provided with a product that will be suitable to satisfy their needs. Furthermore, in terms of South African laws and practices, intermediaries play an essential role in the creation of legally binding insurance contracts. Insurance businesses are concluded through intermediaries. Considering that many insurance companies are juristic persons, and they can only conduct business by means of human agents, insurance laws make it compulsory for intermediaries to have skills, knowledge, and experience regarding insurance products that they are rendering to insurance customers. It is commonly believed that intermediaries with skills, knowledge and experience, they always act in the best interest of the client, and they ask relevant questions to assist the clients to disclose all material facts, and they always make sure that material facts are clearly communicated/disclosed to the insurer and insured to avoid future conflicts. The legal framework placed a duty on the intermediary to assist the insured to disclose all material facts and to explain all clauses contained in the insurance contract which may lead to the insurer repudiate its liability. Furthermore, an intermediary is at all material times expected to first consider the financial situation of the potential insured before determines a cover that will be best suitable for the insured’s needs. However, despite the best guidelines outlined by applicable insurance laws and regulations, mistakes are still being made by intermediaries, which lead to insurance customers to suffer the consequences of impractical intermediary services, and that has resulted in numerous complaints, legal disputes, debarments, and other regulatory actions. As a result of intermediaries’ continuous misconduct, insurers have been repudiating claims, and it has created a presumption that insurers conduct businesses to enrich themselves instead of protecting the interests of their customers as required by regulating legal framework. Therefore, so many people have lost confidence in the insurance industry due to unlimited court cases and complaints arising from misconduct or omissions of intermediaries, such as their failure to disclose material facts to the parties. Once it is found that material facts were not fully disclosed between the insurer and insured, both parties would have been deprived of their right to make an informed decision before consenting or signing a legally binding contract. Therefore, a need is created for intermediaries to be educated of their legal duties when rendering insurance services and that will help strengthen or restore the confidence of the public towards insurance industry.
An analysis of the role and mandate of the motor industry ombudsman of South Africa under Consumer Protection Act 68 of 2008
(University of Pretoria, 2023-10-02) Magau, Phemelo; u22789627; Tshabalala, Thapelo
This study is aimed at analysing the role and mandate of the Motor Industry Ombudsman of South Africa (MIOSA) under the Consumer Protection Act 68 of 2008 (CPA). The MIOSA was established as an organisation that regulates the interaction between suppliers and consumers and provides for alternative dispute resolution between the automotive industry and consumers as well as among participants in the automotive and related industries in South Africa. Moreover, the MIOSA is an impartial organisation that focuses on the resolution of disputes where a deadlock has been reached between the automotive and related industries and their customers, as well as relationships among participants in the automotive and related industries to the benefit of the parties. The role of the MIOSA is to make recommendations in cases referred to it where all parties are unable to reach mutually acceptable agreements when a dispute arises. This research seeks to discuss the role and mandate of the MIOSA as well as the challenges that prevent the MIOSA from effectively carrying out its mandate under the CPA. Furthermore, this study seeks to investigate the relevant provisions of the CPA to determine whether they contain adequate and clear guidelines that the MIOSA could adhere to when carrying out its role and mandate.
Balancing Risk and Rights : The Constitutional validity of Premium Discrimination in Life Insurance
(University of Pretoria, 2023) Grove, Niek; biankaoosthuizen@gmail.com; Oosthuizen, Bianka
This dissertation will explore the constitutional validity of premium discrimination within the life insurance industry and examine whether premium discrimination can be legally and ethically justified. Premium discrimination in insurance law refers to the practice of charging higher premiums to individuals or groups based on characteristics such as age, gender, health status, or occupation. Insurance companies typically use this practice to adjust their pricing based on the perceived risk that individuals with specific characteristics are more likely to make a claim on their insurance policies than others.1 Discrimination extends beyond simple distinction or differentiation, involving biased actions that result in unjust treatment toward individuals.2 Premium discrimination can result in unfair pricing, with some individuals or groups being charged significantly higher premiums despite not necessarily posing a higher risk to the insurer. To combat this issue, some countries have laws and regulations in place that prohibit or restrict premium discrimination in specific contexts, such as health insurance or auto insurance. This study aims to assess the legal and ethical issues surrounding the practice of premium discrimination and to analyse the implications for the life insurance industry and the public. This dissertation will review existing legal and ethical literature and survey current industry practices. This research aims to contribute to the professional knowledge and practice of life insurance. It may be used to make informed legal and ethical decisions regarding premium discrimination.
Debt relief in terms of the National Credit Act 34 of 2005
(University of Pretoria, 2023) Renke, Stefan; Selolomp@gmail.com; Selolo, Matlou Phineas
The National Credit Act 34 of 2005 (“NCA”), the legislative enactment regulating the credit industry, provides debt relief mechanisms (in addition to the other laws, (Insolvency Act-sequestrations and Magistrates’ Courts Act-administrations) to natural person consumers. The original NCA introduced debt review in the South African credit laws, in terms whereof an over-indebted credit consumer subject to the NCA can apply to a debt counsellor for the review of his or her debt, and the eventual re-arrangement of the debt by a court. This process is too expensive for the less affluent consumer and only caters for the needs of mildly-indebted consumers. Additionally, their income or assets do not merit the economic feasible re-arrangement of their debts. The debt review process does not afford a discharge of pre-debt review debts. Consequently, the National Credit Amendment Act 7 of 2019 (“NCAA 2019”) was promulgated (but not put into effect yet) with the aim to address the plight of these no-income-no-asset (“NINA”) or low-income-low-asset (“LILA”) consumers, and to provide them with an alternative debt relief mechanism to debt review. The NCAA 2019 when it becomes effective introduces debt intervention into the NCA. This dissertation investigates and compares debt review and debt intervention, the latter permitting the consumer’s debt eventually be extinguished.
The use of artificial intelligence to combat cybercrime in South African banks
(University of Pretoria, 2023) Ncube, Princess; 14056322@tuks.ac.za; Maposa, Khodani
The rise in Cybercrimes in South African banks continues to increase. The borderless nature of Cybercrime and its rapid evolution continues to be a problem for law enforcement agencies such as the South African Police Service. This is because the South African police Service does not have adequate Cybercrime training programmes, and their Cybercrime division is not adequately funded. In this regard, the South African Police Service cannot investigate Cybercrime properly, and the traditional crime investigation methods are ineffective as the face of Cybercrime is always changing. Artificial Intelligence, in this regard, can aid in detecting, investigating, and combatting Cybercrime. The nature of Artificial Intelligence is compatible with the rapid evolution of Cybercrime as it can study Cybercrime and its evolution in real time. The available Artificial Intelligence used in South African banks, such as chatbots, are ineffective in detecting and combatting Cybercrime. This has placed a responsibility on South African banks to explore other forms of AI that can be used to combat Cybercrimes. However, Artificial Intelligence is not regulated in South Africa, leaving room for uncertainty about how Artificial Intelligence should operate or be implemented.
Sales of immovable property in terms of the National Credit Act 34 of 2005 and the Alienation of Land Act 68 of 1981
(University of Pretoria, 2024) Renke, Stefan; u19046792@tuks.co.za; Pretorius, Mishalia
The National Credit Act 34 of 2005 (“NCA”), the Act currently regulating the consumer credit industry in South Africa, enjoys a wide field of application. The reason for this is that, in addition to the fact that the NCA applies to basically all agreements in terms whereof credit is granted (sales and leases of movable goods, service rendering contracts, mortgage agreements, credit facilities such as credit cards, money loans), it also contains a catch-all provision in section 8(4)(f). The latter provides that the NCA also applies to any other agreement (than the ones specifically defined) in terms whereof money that is owed by one person to another is deferred, and interest, fees or charges are payable to the provider of the credit. This dissertation investigates sales of immovable property as an example of the other agreement in terms of the NCA. It also shows that Chapter II of the Alienation of Land may simultaneously to the NCA be applicable to a contract of sale of immovable property. The interrelationship between the two pieces of legislation is investigated, with a particular reference of their debt enforcement notices. The dissertation culminates in a discussion of the Amardien-decisions in terms whereof a High Court decision was overturned by the Constitutional Court.
Anti-Money laundering developments : A comparative appraisal
(University of Pretoria, 2023) Van Heerden, C.M. (Corlia); marlizes@live.com; Schlebusch, Marlize
The objective of this study is to understand and explore the rapid pace at which ML has evolved and the global and local impact thereof.
Equality at Work with the Focus on Unequal Pay for Work of Equal Value
(University of Pretoria, 2023) Van Eck, B.P.S.; u15292232@tuks.co.za; Moage, Jethro
The South African labour force is undeniably complex and not easy to deal with. Issues such as historical injustices and inequality are still prevalent in many South African communities. The same is true in the various workplaces of the South African economy however, South African workers are fortunate because legislation has been enacted to ensure that there is equality and fairness in the workplace regarding compensation of workers. The Constitution guards against unequal and unfair treatment of workers by their employers in the workplace. Section 23(1) of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”) states that everyone has a right to fair labour practices. These fair labour practices include fair and equal pay for work of equal value. This study will attempt to address the issue of equal pay for work of equal value done by employees who are employed by the same employer within the South African labour market. Legislation such as the Employment Equity Act, 1 (hereinafter “the EEA”), provides the grounds for unfair discrimination.2 Section 6(4) of the EEA provides that it is unfair discrimination when workers are paid differently yet they are doing work of the same equal value.3 Section 11 of the EEA on the other hand provides for who bears the burden of proof wherein there is a claim of unfair discrimination in the workplace by an employer. In terms of the above legislation and the Constitution, case law and journal articles, this study will expand on this discussion. The study will address the issue of whether it is justified for employers to pay employees doing the same work or work of equal value differently.

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