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Now showing 1 - 5 of 19

Recent Submissions

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Does South Africa’s energy regulatory framework promote renewable energy?
(University of the Witwatersrand, Johannesburg, 2023) Netshithuthuni, Meshack Fhatuwani; Field, Tracy Lynn
The South African economy heavily relies on fossil fuels such as coal as its major energy source. However, for more than fifteen years, South Africa has been faced with loadshedding and interrupted power cut, that results in persistent energy demand management. The cause is ascribed to inter alia, coal-fired power plants that are ageing, corruption, and lack of promotion of more renewables. The high dependence on coal-fired energy results in high significant environmental effects to the environment and human well-being. The environmental impacts include water and air pollution, climate change impacts due to GHG emissions. These emissions contribute to global warming, and diseases such as asthma, cancer, heart, and lung ailments. At the same time, South Africa has abundant renewable energy sources that can potentially reduce loadshedding, environmental effects or its energy deficit. The study accepts that renewable energy is sustainable, clean, and environmentally friendly in comparison to coal, although energy derived from renewables such as wind, solar, hydrogen cells and renewable- powered batteries also produce GHG emissions during manufacturing processes. The purpose of this study is to analyse and investigate the existing legal framework for promoting renewable energy sources as an alternative to non-renewable energy sources. In addition, this report seeks to determine whether the current regulatory framework sufficiently promotes and supports the integration of more renewables. It concludes that the current regulatory regime does not sufficiently promote and support the integration of renewable energy sources.
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Anti-competitive behaviour as a ground for compulsory licensing of pharmaceutical patents in South Africa
(University of the Witwatersrand, Johannesburg, 2023-09-14) Omar, Fathima; Andanda, Pamela
While the South African Patents Act provides for compulsory licensing in instances of an abuse of patent rights, millions of South Africans remain unable to access essential medicines because of inter alia the high prices charged by pharmaceutical patent holders. This research explores the idea of utilising Article 31(k) of the TRIPS agreement – which allows for compulsory licences to be issued to remedy anti-competitive behaviour – to ensure access to patented essential medicines. The central argument in the report is that compulsory licenses on Article 31(k) grounds should be granted by the competition authorities after having found anti- competitive behaviour on the part of the pharmaceutical patent holder. Moreover, this research provides solutions and recommendations to appropriately deal with the role of the competition authorities in the regulation of patented pharmaceutical
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Transforming the mining industry: in search of legal certainty and meaningful empowerment
(University of the Witwatersrand, Johannesburg, 2023-02-28) Lawrence, Zinzi Nicollet; Murombo, Tumai
The South African government adopted the Broad-Based Socio-Economic Empowerment Charter for the Mining Industry in 2004 pursuant to section 100(2)(a) of the Mineral and Petroleum Resources Development Act, 2002 to regulate empowerment in the mining industry. Since then, various iterations of the Mining Charter have been published. The legal challenges resulting from the different interpretations of the attainment of the goals set out in the Mining Charter have resulted in uncertainty regarding empowerment and have been the subject of much judicial attention. One of the fundamental issues with the Mining Charter is its status and the lack of authority of the Minister of Mineral Resources and Energy to publish subsequent updated iterations. The growing regulatory burden and uncertainty has increasingly hampered efforts to transform the mining industry. Considering the importance of transformation of the mining industry, this paper analyses the legal and policy impediments to achieving empowerment and proposes solutions to bring about certainty
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The legitimacy of land use planning laws governing the spatial location of urban functions: an assessment in terms of the international covenant on economic, social and cultural rights (ICESCR).
(University of the Witwatersrand, Johannesburg, 2023-09) Banda, Felemont Kayulayula Zilale; Coggin, Thomas
The study's primary objective was to evaluate the legitimacy of Malawi's land use planning laws and regulations using ICESCR and Thomistic natural law frameworks. In order to achieve the primary objective, the study sought to explain the scope and nature of states parties’ obligations in the implementation of economic, social, and cultural rights in the urban space; examine the legitimacy of land use planning laws governing the spatial location of urban functions; and analyse indicators of dissonance between discursive practices and written law in the urban space. In pursuit of these objectives, the study used a doctrinal research approach. The study thus analysed legislation, rules, regulations, orders, By-laws, authoritative court decisions, and planning-related literature. The study shows that states parties to the ICESCR do not attach spatial context to the Covenant obligations. As a result, they fail to ensure that the Covenant rights are enjoyed on an equal footing in the urban space among residents of different income statuses. The study has also found that, in order for land use planning laws to be legitimate, the state shoulder the obligation to ensure that the enacted planning laws are for the common good, do not impose unfair burdens on citizens, and are enacted with authority in line with consent and social contract doctrines. Land use planning laws in Malawi do not reflect the economic realities of urban citizens. These planning laws are neo-colonialistic as they principally reflect the European colonial planning paradigm, whose objective was the appropriation of resources to benefit the White settler community in colonial territories. Such a legislative background has resulted in the dissonance between the written law and discursive practices, which has caused a crisis of the legitimacy of land use planning laws as evidenced by massive noncompliance and the state’s inability to enforce the laws in urban spaces. My central thesis demonstrates that the chaotic nature of urban development in Malawi emanates from the state’s failure to enact legitimate fair laws from the perspective of low-income urban residents who are in the majority. The thesis is significant because it has revealed that states must review their laws in good faith and that a Thomistic reading of the laws would assist in aligning them with state-party obligations under the Covenant. Moreover, the thesis highlights the importance of land use planning laws reflecting urban citizens’ socioeconomic needs, which is the principal condition precedent for the legitimacy of laws in the urban space
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A critical analysis of the foreign business establishment exemption and its role in the prevention of base erosion and profit shifting
(University of the Witwatersrand, Johannesburg, 2023) Vally, Ra’eesah
Section 9D of the Income Tax Act 58 of 1962 sets out the controlled foreign companies rules. This section contains anti-avoidance provisions that seek to prevent South African tax residents shifting their taxable income to foreign countries by way of a controlled foreign company. In terms of section 9D the net income of controlled foreign companies is taxed in the hands of the South African residents in proportion or their shareholding, unless the amount is subject to one of the specific exemptions. One such exemption is the foreign business establishment exemption. This exemption has been criticised as the definition of foreign business establishment is not adequate. The criticism arises from the fact that many controlled foreign companies meet the definition of a foreign business establishment by default even though they do not constitute a bona fide foreign business establishment. This paper critically evaluates this exemption considering the OECD BEPS Pillar Two Rules, the Income Tax Act 58 of 1962 and the Mauritian and UAE substance standards and whether the rules of this exemption should be more specific and stringent. The substance standards were found to be more stringent in comparison to the FBE definition and therefore enhanced the FBE definition. The scope of the Pillar Two blueprint meant that many South African companies would more likely than not be scoped out of its realms and therefore would not assist in enhancing the FBE definition