Electronic Theses and Dissertations (Masters)

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A comparison between internet anti-money laundering statutes and preventative mechanisms in South Africa
(University of the Witwatersrand, Johannesburg, 2022) Maistry, Kireen
South Africa has come a long way since the apartheid era, transitioning to a country of democracy for its people and advocating for non-violence. However, struggles persist in inequality, poverty, unemployment and crime. Due to the social, economic, and political challenges and allegations of continuous corruption the country is often perceived negatively. Despite a growing body of laws, regulations, and systems geared to fight crime, the crime rate remains high and prosecution low. As a result, South Africa has become a soft target for criminals who conceal the proceeds of crimes through money laundering. Through money laundering, criminals have exploited the banking and financial sector, the casino and gambling industry and the real estate business in South Africa. As a consequence of the onset of money laundering, the South African government has had to enact legislation and regulatory bodies in each sector to detect, prevent and prosecute organised crime. The latest challenge to combating money laundering is the advent of the internet which has created newer, faster and more evasive channels for criminals to launder money via cyberspace. Given that the internet and technology are ever-changing, historic anti-money laundering laws and mechanisms may not be effective enough to combat the crime of ‘cyberlaundering’. This thesis discusses pre- and post-internet methods of money laundering in the banking, casino and gambling and real estate sectors in the South African economy and focuses on whether current legislation and mechanisms are effective enough to combat developments in money laundering
A consideration of the bank’s position in the context of an erroneous deposit made
(University of the Witwatersrand, Johannesburg, 2023) Ncube, Vanessa; Dass, Daven
The issue of erroneous deposits is one that is of importance not only to academics and the public but banks too, especially with the rise of and change in technological developments which comes with the ineluctable erroneous/mistaken deposits, for example, through internet banking. It is within the context of the above that I seek to consider the bank’s position where an erroneous deposit has been made. In tackling this, I will examine whether a bank owes an obligation to a third party (the person that made the deposit) if the bank allows its customer (the accountholder to whom the erroneous deposit was made) to utilise the mistakenly deposited funds, given that the bank is aware that the customer does not have a well-founded entitlement to the funds. Within the context of the bank’s obligation, regard will be had to whether in fact the bank can use the funds for its own benefit by setting off the customer’s debt owed to it, taking into consideration the lack of legal entitlement of the customer to the funds. I will also discuss the bank’s ownership and potential liability in relation to the use of erroneously deposited funds. I also seek to examine possible remedies having regard to the litigious regulatory framework in subsequently recovering the mistaken deposit from the bank
A legal approach to whether ai generated content should be protected under copyright
(University of the Witswatersrand, Johannesburg, 2023-10) Stransky, Caitlin
Currently, there is no clear answer for whether AI-generated content should be protected under copyright law in South Africa and if so, who is the author and who owns the copyright. As AI is growing more advanced and widely used, the potential for confusion grows and thus clarity on the law’s position is important. In this paper, I will examine how AI generates works and compare this to the purpose of copyright law. I will then determine whether granting AI- generated works copyright protection aligns with the purpose of copyright law. Further, I will conduct an analysis on how different countries have dealt with the question of whether AI-generated content should be protected under copyright. This will help pinpoint the factors to consider when answering this question such as the requirement of human authorship, legal or juristic person ownership of the copyright and whether the works are copyrightable. It is important to consider how South Africa’s legal system should approach issues surrounding AI-generated content and copyright. In examining the South African legal position on this question, I will conduct an analysis on the approaches taken by the US, the UK, Germany, Australia, China, and South Africa in relation to AI-generated works and copyright. This range of countries will allow for a greater understanding of the issues, complexities, and factors to consider while answering this question
A new dispensation for excessive pricing in the South African competition amendment act
(University of the Witwatersrand, Johannesburg, 2023) Mokoena, Moleboheng Andronica
The Competition Act, 89 of 1998 (‘the 1998 Act’) was enacted as the law governing competition law in South Africa. Prior to its amendment, the provisions on excessive pricing were contained in section 8(a) of the 1998 Act which prohibited ‘dominant firms from charging excessive prices to the detriment of consumers’. The 1998 Act was amended by the Competition Act 18 of 2018 (‘the Amendment Act’). Central to these amendments was a change in approach to excessive pricing. In particular, the Amendment Act introduced a new test for excessive pricing and added new provisions to determine cases of excessive pricing. The purpose of this research report is to evaluate the new provisions of excessive pricing and to assess whether the newly introduced test for determining excessive pricing provides a clearer framework for competition authorities. The Report further discusses some of the seminal cases on excessive pricing decided pre and post the Amendment Act
Adopting the theory of degrowth as a means to achieve sustainability in South African law
(University of the Witwatersrand, Johannesburg, 2023) Ramsay, Madison; Bapela, Mpho
Capitalism’s mandate of infinite, exponential growth on a planet with finite, non-renewable resources has resulted in global environmental crisis. Contextualized by South Africa’s industrial Minerals-Energy Complex, this paper submits that the growth imperative of neoliberal fossil capitalism is resulting in unsustainability in South African environmental management. Decision-making is skewed in favour of economic growth at the expense of sustainability. Degrowth is a movement that rejects the growth imperative as compulsory; it is a call not only to do less, but to do differently, a counterhegemonic alternative to capitalism that seeks environmental justice, decolonization of the North-South divide, and alternatives to growth and development. This paper posits that rejecting capitalism’s growth imperative and approaching environmental management from a degrowth perspective can inform sustainability in South African environmental law. It posits that degrowth can find applicability in South African environmental law through its compatibility with ubuntu, which in the context of this study is accepted as a similar counterhegemonic alternative to capitalism. This paper emphasizes ubuntu degrowth as a framework to conceptualize South African environmental management, insofar as it offers a transformative alternative to growth, and to capitalism itself
Algorithmic pricing and its implications on competition law and policy in South Africa
(University of the Witwatersrand, Johannesburg, 2023) Fowler, Ashly
The upsurge in the use of technology has proliferated the use of pricing algorithms which have become essential to e-commerce. Although South Africa had been privy to this shift prior to 2020, the onslaught of the Covid-19 pandemic exacerbated this shift. While the use of pricing algorithms in Competition law is accompanied by many pro-competitive benefits, it is also accompanied by various anti-competitive effects which include algorithmic-based collusion. Despite the fact that this topic has been addressed within the context of competition law in other jurisdictions, it has yet to be addressed from the viewpoint of the South African Competition Act 58 of 1998. Accordingly, the aim of this paper is to establish whether the Competition Act and South African competition policy at large, is robust enough to withstand the effects of digitalisation, particularly from the perspective of section 4 of the Competition Act which regulates relationships between competitors. In carrying out this analysis, this paper defines pricing algorithms and outlines their pro-competitive and anti-competitive effects.Thereafter, through the prism of four scenarios where pricing algorithms facilitate collusion, as posited by Ezrachi and Stucke in their seminal work on Virtual Competition, this paper establishes the robustness of the Competition Act by applying the scenarios to the Acts. Ultimately, this paper concludes that the current Competition Act (as amended) is in fact robust enough to tackle situations where algorithmic-based collusion arises. Where it is not, this paper argues that it is, at present, unnecessary for the relevant authorities to amend the current law or introduce any new laws
An assessment of voluntary debt review termination and the shortcomings of the National Credit Act in relieving the debt burden of over-indebted consumers in South Africa
(University of the Witwatersrand, Johannesburg, 2023-03) Brown, Robin-Lee; Du Plessis, Riette
Among other objectives, two of the primary goals of the National Credit Act (NCA) are to help over-indebted consumers and to prevent the abuse of credit. This research report examines the NCA’s legal framework and impact of the NCA on over-indebted consumers with regard to debt review and the voluntary termination process. This research report delves into the challenges that consumers face when attempting to voluntarily terminate debt review prior to their debts being paid off in full as seen in the Van Vuuren case whereby a consumer was unable to exit debt review despite having the means to manage his own finances. The conclusion reached in this study is that, while the NCA has introduced a procedure which results in the reduction of over-indebtedness among consumers, there are issues with the debt review regime that should be addressed. The report further concludes with recommendations for improving the NCA’s debt review regime and providing an enhanced debt relief procedure for consumers in the Republic of South Africa. By adopting these recommendations, the debt review process will further advance the interests and protection of consumers
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
"Are all things equal? Operational considerations in the integration of deemed employees into workplaces"
(University of the Witwatersrand, Johannesburg, 2022) Otten, Rosita Joanne; Mushariwa, Muriel
This research report is a policy-based study of the regulation of temporary employment services in South Africa. It is set against a contextual background of the development of Labour Brokers in South Africa as well as a contextual understanding of the regulation of temporary or atypical employees under International Labour Organisations Standards (ILO). The scope of this research is limited to only considerations of ILO Standards and does not consider a comparator of other countries. Future research could take it further in this regard to measure how Labour Brokers are offered labour law protections globally. This research report considers the development of labour law in South Africa and how the changes in the South Africa’s labour law policy have introduced mechanisms to afford and ensure greater protection of this vulnerable employee. The research reviews the recent legislative overhaul, in consideration of having the purpose to offering progressive protection to various atypical forms of employees and specifically a temporary employee who attains a deemed employment relationship status. The research aims to assess the extent to which the amendments to the South African labour legislative framework has been able to achieve its desired aims, by first considering how the provisions relating to temporary employment services, should be interpreted and applied. Secondly reviewing various operational considerations that impact the full integration of the deemed employee into the workplace in order to ensure on the whole not less favourable treatment and finally in having reviewed such operational considerations, assess and critique the impact these amendments have achieving protection of this vulnerable class of employee
The authority of the United Nations Security Council to waive the personal immunity of heads of States in the context of international crimes
(2019) Memela, Sinethemba
In 1998, the Rome Statute of the International Criminal Court (ICC) was adopted with the aim of ending impunity for perpetrators of international crimes. Under Article 13(b) of the Rome Statute, if the United Nations Security Council (UNSC) refers a situation to the ICC while acting under Chapter VII of the UN Charter, the ICC is entitled to exercise jurisdiction over the territory and nationals of the relevant State that. In some cases, the referred State is neither a party to the Rome Statute nor has consented to its jurisdiction, and implicated senior officials of the state enjoy immunity. In terms of Article 27 of the Rome Statute, immunity does not bar the ICC from exercising jurisdiction. However, customary international law has historically afforded immunity to senior State officials, such as Heads of State, from prosecution. This dichotomy has been a challenge in international criminal law; specifically, the question of balancing the competing objectives of ending impunity for international crimes while maintaining stable relations and respecting the sovereignty of States by respecting customary international law rules on immunity. This challenge has been compounded by the question of the implication of a UNSC referral, of a non-State party to the Rome Statute, to the ICC on the immunity of implicated senior state officials of that State. Accordingly, this study is primarily concerned with whether, and the extent to which, the UNSC can waive the immunity enjoyed by senior state officials of UN Member States, particularly Head of State immunity, when it refers a situation to the ICC using its Chapter VII powers in the UN Charter. Before dealing with the above, the study analyses the concept of immunity, specifically personal immunity, in international law and the obligations of States to respect such immunity, taking into consideration their obligations under the Rome Statute as applicable.
Balancing the Necessity of Mining Activities and Community Participation in the Pursuit of Environmental Protection
(University of the Witwatersrand, Johannesburg, 2021-01-31) Laka, Tshepiso Josephina
Mining activities result in a myriad of e nvironmental and health impacts. These issues remain to be primarily ignored by mining companies and government departments. The need for public participation in relation to environmental awareness and protection must be taken into account within mining affected communities, u nfortunately, most mining communities are often not aware that they are entitled to an environmental right under the Constitution of the Republic of South Africa, 1996 (the Constitution). Communities suffer from environmental degradation that is inextricably linked to their quality of life and their well- being. Most mining companies fail to protect mining communities from harmful environmental impacts resulting from mining activities. South Africa depends heavily on mining sectors for its socio-economic advancement to such an extent that many millions of people rely on the revenue generated from mine. It is crucial that while mining sectors are pursuing economic developments, the environment, human health and social issues must be afforded the required protection. As such, this thesis explores the environmental harms associated with mining and the importance of meaningful participation. Notably, these environmental injustices can be mitigated by implementing the already established environmental legal framework. This thesis will further critically discuss how mining companies fail to encourage and promote environmental health and wellbeing by not only enhancing public participation within mining affected communities but to also provide communities with concrete measures to promote the ecologically-centred sustainable development
Caught in a gap? An examination and human rights assessment of immigration detention laws and practices in South Africa
(2013-03-19) Tay, Roanna
Abstract: This study examines the laws and practices relating to immigration detention in South Africa. It provides an in-depth examination of the legislation, with reference to known state practices and cases where migrants have been subjected to prolonged and repeated periods of immigration detention. The study highlights gaps in South African law that contribute to certain categories of migrants being especially vulnerable to immigration detention. Four categories are identified: (1) asylum seekers; (2) persons with difficulty obtaining travel documents; (3) stateless person; and (4) persons subject to other prohibitions against refoulement. The study offers recommendations for legislative reforms to fill the gaps in the law that contribute to these migrants’ vulnerability to immigration detention
Condonation of non-compliance under section 67(1) of the competition act 89 of 1998
(University of the Witwatersrand, Johannesburg, 2023) Humphreys, Russell
The Competition Commission has long sought to extend its powers to investigate and refer complaints to the Competition Tribunal for prosecution. Prior to the decision of the Constitutional Court in the case of the Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC) (the ‘Pickfords’ case), the power of the Commission to initiate investigations and therefore refer matters to the Competition Tribunal was limited by section 67(1) of the Act. Those accused of breaching the Competition Act 89 of 1998 have, in their defence, relied on the limitations of section 49B of the Competition Act - the procedure for initiating a complaint and section 67(1) which provides for a time limitation on initiating/referring a complaint to the Competition Tribunal. The Constitutional Court in the Pickfords case considered whether in light of section 34 of the Constitution, section 67(1) of the Competition Act should be interpreted as an absolute bar (a prescriptive provision) or procedural time bar (capable of condonation). Section 67(1) was, however, amended in 2018 to limit the referral of a compliant to the Tribunal to no more than three years after the practice ceased. This paper considers the statutory limitations on the Commission to initiate and refer complaints to the Competition Tribunal in terms of sections 49B, 50, 67(1) and section 58(1)(c)(ii) and to examine how these limitations have been by interpreted by our courts
Critical analysis of harassment in the changing workplace: how the courts developed the definition of sexual harassment and the parameters of the employer's responsibility in curbing this problem
(University of the Witwatersrand, Johannesburg, 2023) Gibson, Kirsty Anne
The definition of the workplace is changing as more employee's start to work remotely. This change in the workplace will affect the manner in which employees communicate and engage with one another. It will also change the manner in which employees are harassed within the work environment. Sexual harassment has been regulated in South Africa for over 20 years in Codes of Good Practice. The regulations define sexual harassment and indicate the obligations of the employer to take steps to prevent the conduct within its workplace. In addition to the Codes of Good Practice, the courts have continuously developed the definition of sexual harassment. Through the development by the courts, the definition of sexual harassment remains current and in line with international standards. However, important factors are not always given the same weight by judges which has led to inconsistent decisions by the courts. The definition of sexual harassment and the manner in which the court applies the definition is analysed in this thesis and compared to recent decisions in the Netherlands. The employer’s responsibility to prevent sexual harassment is regulated by the Employment Equity Act, 55 of 1998. The court's findings on whether an employer is liable for failing to prevent sexual harassment has also been developed by the courts. Through the court decisions, the obligations of the employer have been advanced and clarified. This thesis looks at the obligation of the employer to curb sexual harassment in the workplace and what further steps employers can take to assist victims who report this conduct
A critical analysis of the legal framework relating to cybercrime in Uganda
(2021) Adesuyi, Daramola
This dissertation examines the legal framework relating to cybercrime in Uganda and its effect on the enforcement of its terms. Investigating this issue is crucial in the wake of the rise in global interconnectivity as a result of the relative advances in technology, which challenge the application of the old standard of classification and investigation of traditional crimes. Unlike the advanced nations, the current laws regulating criminal conduct in most developing nations today are ill-equipped to cope with these emerging cybercrimes. Therefore, this dissertation argues that Uganda’s extant legal framework is manifestly inadequate to protect individuals from the threats resulting from cybercrime effectively. This view is held based on an analysis of the major procedural challenges and issues in Uganda today and a review of the current legal regime. This dissertation contends that, contrary to the common belief, merely enacting legislation, which is a ‘cut and paste’ of foreign cyber laws, does not automatically resolve issues related to cybercrimes in Uganda. Furthermore, the dissertation argues that useful lessons can be obtained from an effective legal regime based on insights from the Council of Europe Convention on Cybercrime, and South Africa. Similarly, other pragmatic ways of effective protection against cybercrime in Uganda are suggested to improve awareness and scholarship, strengthen law enforcement agencies and the judiciary, and improve cooperation with international and regional cybercrime regimes
Critical evaluation of possibility of retirements funds members directly claiming damages from their fund's service providers for loss suffered
(2020) Davis, Kent Murlis
This research report proposes that where a service provider of a retirement fund (such as an insurer or asset manager) exercises a high degree of discretion in respect of the investment decisions it makes for, or on behalf of, a retirement fund, if one has regard to the nature of the relationship between such service provider and the members of the retirement fund, a limited fiduciary duty should be imposed on the service provider in favour of the members. It is proposed that the fiduciary duty should be separate from, and in addition to, the fiduciary duties owed by the board of management and should also differ in its content. Further, it is submitted that to the extent a service provider breaches this duty; the members should have a claim against such service provider. Due to the fact that the benefits payable to a member only vest in terms of the rules, any claim for damages would likely occur before a member's right to benefits vests. A member would therefore need to claim for prospective damages and argue that once their benefit vests, they will suffer a loss. Despite the courts not recognising claims for prospective loss, it is submitted that in the case of members, compelling reasons exists to allow a claim for prospective loss provided the claim for prospective loss is established as a matter of reasonable probability.
Cryptocurrencies and the Risks of Money Laundering and Terrorist Financing: Proposals for a Regulatory Regime
(University of the Witwatersrand, Johannesburg, 2023) Masuku, Owen Jabulani; Kawadza, Herbert
Rapidly emerging new technology and payment methods are gradually replacing traditional payment methods and sovereign legal tenders as viable substitutes in the global economy. The emergency of cryptocurrencies on the world’s economies has brought with it excitement, frustration, and uncertainty in equal measures. Cryptocurrencies are decentralised convertible virtual currencies that rely on the use of blockchain technology and the math-based peer-to-peer reference without the reliance on a central controlling authority to administer, monitor, regulate and exercise oversight control. Cryptocurrencies offer many potential benefits, such as speed of payment settlement, reduced costs of doing business, speedy cross-jurisdictional reach, and accessibility, as well as the anonymity of the users compared to the traditional payment methods. The integrity of the financial systems is at danger due to these same benefits and advantages. The risks and dangers of money laundering, terrorist financing, fraud, tax evasion, and other unlawful actions are associated with cryptocurrencies. The first cryptocurrency, Bitcoin, was created in 2008. The internet and globalization have allowed cryptocurrencies to enter South Africa. These currencies are not accepted as legal money in the South African legal system at this time. The objective of this desk-top research is to consider, amongst others, the following: what cryptocurrencies are, why cryptocurrencies are a Money Laundering and Terror Financing (ML/TF) risk, the red flags in ML/TF through cryptocurrencies transactions, structural and regulatory weaknesses associated with ML/TF through cryptocurrencies and the recommendations for structural and regulatoryenhancements and changes to combat the ML/TF risks from cryptocurrencies. This thesis recommends the need for regulatory intervention in South Africa. It argues that there is a need to regulate cryptocurrencies through the amendments to the relevant legislations such as the Financial Intelligence Centre Act, the Consumer Protection Act, Financial Advisory and Intermediaries Act, amongst others
Data protection and borderless borders: the effect of the namibian data protection bill on transborder data flows
(University of the Witwatersrand, Johannesburg, 2022) Negonga, Paulina Nangula; Klaaren, Jonathan
Data is the sine qua non of the modern economy. The proliferation of digital industries has led to concerns about the misuse of personal data. The resultant risks have sparked ethical and legal concerns across the globe, prompting the adoption of data protection laws. The Namibian constitution guarantees the right to privacy in Article 13, but the country lacks a comprehensive data protection legal framework. The Namibian government issued a Data Protection Bill in 2013.This dissertation critically analyses sections 2 and 48 of the Data Protection Bill dealing with transborder data flows, by employing a two-part theme. In the first instance, the dissertation advocates for a holistic approach that strikes a balance between the individual’s right to privacy and the economic imperatives of transborder data flow. In the second instance, the dissertation investigates how to effectively govern transborder data flow with the continuous blurring of lines between physical and virtual worlds, where data transcends territorial borders with a simple click. The mainstream argument for regulating transborder data flow is that if there are no restrictions on the transfer of data to third-party countries, personal data may end up in jurisdictions with the laxest, or more likely, no data protection standards, just as money ends up in tax havens. To put the oft-quoted tax analogy into context, there may be nothing preventing international data processors from circumventing domestic data protection requirements by gravitating personal data to data havens. Through an elaborate comparative analysis, primarily referencing three instruments: the oecd Guidelines, the GDPR, and the POPI Act; the dissertation looked at how these issues are considered and whether the Namibian Data Protection Bill matches up to these standards. The analysed regulatory regimes varied; nonetheless, a corollary was drawn to adopt a broader EU-style territorial scope. This dissertation recommends that section 2 of the Bill should be amended to conform with Article 3(2) of the GDPR (targeting test/market principle). The chosen approach actively embraces the fourth industrial revolution by allowing data protection to ‘travel’ with personal data wherever it goes in a globalised world.
Digital skills development at a global assurance, tax and advisory consulting firm in South Africa
(University of the Witwatersrand, Johannesburg, 2023) Saley, Azhar; Gobind, J.
Digital technology continues to evolve, and the way employees work is constantly changing. To keep up with the rapid technological developments and compete in the digital economy, organisations need a digitally skilled workforce with the skills and capabilities required to drive digital transformation. However, a qualification audit conducted by the Consultancy X HR team in February 2022 indicated that the qualifications and certifications of employees do not equip them with the skills required to support the consultancy's digital transformation journey. The purpose of this study was to investigate the low uptake in digital skills development for employees at a global assurance, tax and advisory consulting firm in South Africa. This study followed a qualitative research design, and data was collected through semi-structured interviews, which involved the researcher conducting 60-minute virtual interviews with 9 participants to collect in-depth insights and data from participants on their perceptions of digital transformation and the digital skills uptake at Consultancy X, the impact of the emerging technologies on their roles and the effectiveness of the organisation's current digital skills development approach. The thematic analysis technique was used to analyse the themes and patterns in the feedback from participants. The study found that the low uptake in digital skills development at Consultancy X was primarily due to time constraints resulting in digital skills development not being prioritised, lack of exposure to digital technologies/skills and resistance to change from employees. The findings also revealed that the organisation’s current digital skills development approach is ineffective due to limited resources being available to support digital skills development and leadership not actively driving digital skills development. However, employees are willing to learn and adopt emerging technologies if they have clarity on the objectives/benefits of the technology; the technology is user-friendly and saves them time. Recommendations were made that may assist the leadership team at Consultancy X in increasing the uptake in digital skills development
Does international commercial arbitration provide an effective remedy? as approved by postgraduate studies committee
(University of the Witwatersrand, Johannesburg, 2022) Naidoo, Prenisha; Schlemmer, Engela C.
The following research report aims to establish whether international commercial arbitration provides an effective remedy to international contracting parties that have elected to have any dispute that arises between them resolved by means of arbitration. The report emphasizes the practicality of international commercial arbitration by accentuating the main advantages that the procedure has to offer to international contracting parties. It also brings to light the challenges that are associated with effectuating and enforcing an international arbitral award. These challenges have the potential to affect the efficacy of the arbitral award in its entirety. The report then focuses on the role and importance of international instruments, such as the New York convention, in international commercial arbitration proceedings, particularly when it comes to the enforcement of international arbitral awards. The report further examines the fruitfulness of such international instruments as well as the benefits that are associated with South Africa being a signatory to the New York convention. The report finds that international treaties and conventions instil credence to international commercial arbitration as it ensures that an effective enforcement mechanism is available for international contracting parties. For international contracting parties, this ensures that parties are able to attain the relief set out in the arbitral award. Thus, rendering the award effective. However, there are certain inadequacies inherent in the New York convention that have surfaced over the years. These inadequacies have the potential to affect the efficacy of international arbitral awards. For instance, the New York convention bestows upon the national courts of contracting states, the ability to set aside and refuse recognition and enforcement of an arbitral award on grounds that the award is non- arbitrable or that the recognition and enforcement of the award will go against the public policy standards of that specific region. The New York convention does not define what constitutes arbitrable matters and neither does it circumscribe the limits on the public policy exception. Therefore, national courts of contracting states are free to interpret the limits of these grounds themselves. This has implications for contracting parties to an arbitration agreement as apartfrom creating uncertainty, it also affords national courts a certain degree of leverage to set aside and refuse recognition or enforcement of foreign arbitral awards on grounds that may be unbeknown to the contracting parties.

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