School of Law (ETDs)

Permanent URI for this community

https://hdl.handle.net/10539/37938

Browse

Now showing 1 - 20 of 90

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 analysis of the complexity of race and gender disadvantage in terms of the Employement Equity Act in South Africa
(2019) Mushariwa, Muriel Tapiwa
Centuries of colonialism and Apartheid created a legacy of inequality in South Africa that the democratic Constitution, 1996, seeks to address. The constitutional mandate in section 9 of this Constitution, enacted through the Employment Equity Act 55 of 1998 (EEA), requires designated employers in the public and private sphere to address the inequality in the workplace through the application of affirmative action. The EEA identifies the beneficiaries of affirmative action policies as black people, women and persons with disabilities. It is clear that these constitute three distinct groups, but that it is also possible for an individual to belong to more than one of these collectives. For example, black women fall within two designated groups on the basis of race and gender, and this dual disadvantage creates a multi-layered, unique and complex type of inequality. The main aim of the EEA is to create a representative workforce, and designated employers have a duty to break down the barriers that prevent members of the designated groups from entering the workplace. Once employed, employers need to assist members of the designated groups to progress in the workplace. However, having a representative workforce does not translate into a transformed workforce. It will be argued in this thesis that a transformed workplace is representative, but also requires the breakdown of institutional norms, processes and structures that prevent the progression of members of the designated groups. The question to be asked is whether affirmative action, in its current form, is able to transform the workplace. To answer this question, it is vital that consideration be given, firstly, to the type of substantive equality that is to be achieved in the application of affirmative action. It will be shown that the aim should be a transformative substantive equality of outcome. Focus will be placed on the fact that individuals who fall within the designated groups are not equally placed in terms of their experience of disadvantage. It is submitted that consideration of differing experiences of disadvantage needs to be taken into account so as to avoid the creation of an elite middle class black, and possibly male, group, which benefits from affirmative action to the exclusion of others, thus hampering the achievement of equality in the workplace. This thesis will show that a transformative form of substantive equality of outcome needs to be applied to affirmative action in the workplace. This transformative form of substantive equality includes a situation sensitive approach to the implementation of affirmative action in the workplace. A situation sensitive approach will apply affirmative action strictly on a case by case basis with regard to the demographic profile of the specific workforce, and the employment equity policy of the particular workplace. A one size fits all approach cannot deal with the complexity of disadvantage that needs to be addressed. It will be argued that, besides a situation sensitive approach to race, gender and disability, the issues of social, political, economic and educational disadvantage are factors that should be given consideration in identifying the true beneficiaries of affirmative action. To further illustrate this point, particular attention will be given to women within the designated groups, in order to unpack the nature of disadvantage they experienced in the workplace. Two case studies, focusing on women in male dominated professions, the legal profession and the mining industry, will be used to illustrate this point. This thesis will show that ultimately, the goal of affirmative action must be seen to be to change the workplace by breaking down both the visible and invisible barriers of equality and, in doing so, create an environment where, constitutional values of equality, human dignity and freedom are truly recognized and protected.
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
Adequacy of Data Protection Regulation in Kenya
(University of the Witwatersrand, Johannesburg, 2023-10) Laibuta, Antony Mugambi; Zitzke, Emile
Article 31 of the Kenyan Constitution provides for the right to privacy. The Kenyan Data Protection Act, 2019 gives effect to Article 31(c) and (d) of the Constitution. This study is about whether data protection regulation in Kenya would inspire any confidence in data subjects who enjoy protection of their right to privacy under Article 31 of the Constitution. Kenya, going with the global trend, in November 2019 enacted the Data Protection Act. Before the enactment, Kenya had debated data protection Bills for over a decade. But even with the enactment of the Data Protection Act, the question remains whether this was sufficient to guarantee the right to privacy and specifically data subject rights. The main aim of this study is to determine the adequacy of data protection regulation in Kenya by responding to five questions: How has data protection evolved in Kenya? What framework should be used to determine the adequacy of data protection regulations? To what extent is the legal framework on state surveillance adequate? To what extent is the legal framework on commercial use of personal data adequate? How adequate are the available remedies in relation to data protection in Kenya? To wit, no comprehensive academic discussion has explored the history of privacy and data protection in Kenya. This study fills this gap in the academic literature. It has established, through highlighting constitutional and statutory provisions, that the right to privacy in Kenya has been in existence since Kenya gained independence from colonial rule. Conversations during the clamour for constitutional reforms shaped the current text that provides for an individual right to privacy which has been the springboard for data protection rights to be introduced. There is no immediately obvious framework that would be ideal to determine the adequacy of data protection regulation in Kenya. In light of this gap, this study has presented a simple set of questions used in day-to-day legal practice to be used as the determination-of-adequacy framework. The questions, “who?”, “why?”, “what?”, “when?”, “where?”, and “how?” are iv posed on State surveillance, surveillance capitalism, and access to effective remedies. Responses to these questions are juxtaposed with provisions of the European Union’s General Data Protection Regulation and South Africa’s Protection of Personal Information Act. The responses reveal the level of adequacy of data protection regulation in Kenya. On adequacy in State surveillance, surveillance capitalism, and availability of effective remedies, the study has revealed that while there are provisions of the law that adequately regulate the three issues, there are gaps and ambiguities that must be addressed to raise the level of adequacy and inspire confidence in data subjects. For the gaps and ambiguities, this study recommends law reforms in the form of amendments to provisions of the Kenyan Data Protection Act, Data Protection (General) Regulations, Competition Act, National Intelligence Service Act, and the Data Protection ADR Framework. This study also recommends enactment of new law including an Artificial Intelligence Act, Data Protection (Statutory Database) Regulations, and Regulations on interception of communications under the Prevention of Terrorism Act and other enabling statutes.
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
At the crossroads of international human rights law and international investment law: reflection on the right to development in the exercise of expropriation
(2021) Kim, Young Jae
Given the current legitimacy crisis of international law, particularly the international law of investment owing to fragmentation and the negative impact of unfettered economic development on the environment and human rights, competing claims between North and South, sovereign states and multinational corporations, and sovereign states and their nationals over development and its benefits must be effectively and legitimately reconciled before any strategy to promote development can be implemented. In this respect, the human right to sustainable development, which this thesis introduced, provides a framework in which the potential competing claims of economic value and human rights value can be reconciled. This thesis considers the interplay of international development law, international human rights law and international investment law, by reference to the evolution of a right to sustainable development. In particular, it focuses on how the international investment law regime has evolved to incorporate human rights and sustainable development, by examining expropriation as a case study. The thesis traces the concept of development as it underlines international development law, and shows how it has moved from ‘orthodox economic development’ to ‘modern human development’ by means of the evolution of the human right to sustainable development. It proceeds to contemplate the content of this human right to sustainable development, with a view to demonstrating its relevance to international investment law. Thereafter, it shows how international investment law has evolved over time, from being narrowly focused on upholding foreign investors’ interests and rights, to taking into account international human rights and the human right to sustainable development. As a concrete example of this shift in international investment law, the thesis then conducts a case study of expropriation, which illustrates the increased interaction between the three clusters of international law. In particular, the protection of foreign investors’ rights and host states’ rights to regulate foreign investment for the purpose of ensuring international human rights and sustainable development are explored through leading cases in international investment tribunals. In conclusion, it is argued that the legitimacy of the international investment law regime can be enhanced through continuing efforts of the international community to harmonise the three clusters of international law within the human right to sustainable development .
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 legality and certainty: the Oudekraal principles and their development
(2020) Mahlangu, Siyabonga
This thesis is a study of the Oudekraal principles and their development. In Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA), the Supreme Court of Appeal fundamentally transformed the approach of South African law to the anomaly that an unlawful administrative act may have legal consequences. The court rejected past explanations for this phenomenon, such as the presumption of validity, the distinction between voidness and voidability, the theory of legal relativity and, where the courts have declined to set aside unlawful acts on grounds such as delay, judicial pragmatism. Instead, the court developed a principled approach by which it sought to strike a careful balance between the competing rule-of-law values of legality and certainty. Four principles emanating from this seminal judgment are identified in the thesis. These are that an unlawful act may have legal effect for so long as it has not been set aside; that the legal effect depends on whether the validity of an originating act is a precondition for the validity of the subsequent act; that an unlawful act which compels a person to do or not to do something must be valid, and a person affected by it is entitled to challenge its invalidity collaterally; and that the court reviewing an unlawful act has discretion to refuse the remedy of setting aside even if a ground of review has been established. The thesis investigates how the courts since Oudekraal have interpreted, applied and developed these four principles. It concludes that there is an interplay between the various principles. In this interplay the Constitutional Court has recently tended to emphasise the value of legality over that of certainty, resulting in a lack of clarity as to what it means for an unlawful act to have legal effect prior to its being set aside
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
Combating economic inequality: the strategic role of the fund management industry in promoting inclusive development in Nigeria
(2020) Yetunde, Omotuyi Opeyemi; Omotuyi, Opeyemi Yetunde
There is growing inequality in many countries around the world, and particularly in Nigeria. Recognising this global challenge, the United Nations agreed to seventeen sustainable development goals in 2015. As part of a global agenda to tackle inequality and promote inclusive development, the United Nations agreed to a specific goal to reduce inequalities among and within countries. To enable effective implementation, the United Nations calls for a global partnership, involving the public and private sector, in the achievement of the goals. This thesis highlights the state of economic inequality in Nigeria. In so doing, the thesis finds that the high rate of inequality in Nigeria is mostly as a result of poor social spending on the part of government, as well as adverse corporate impacts, resulting in poor social opportunities and outcomes for citizens. Furthermore, the thesis analysed Nigeria’s legal and regulatory provisions on issues of inequality, highlighting the strengths and weaknesses of the laws. The thesis finds that these laws are grossly inadequate to address the inequality challenges in Nigeria, and a complementary approach to address these challenges is needed. Since the thesis finds a significant increase in the growth of investment funds in Nigeria over the last decade, the thesis proposes the Nigerian Fund Management Industry as an avenue for improving the state of economic inequality in Nigeria, through the implementation of the principles for responsible investment
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

Browse

Browsing School of Law (ETDs) by Title

Results Per Page

Sort Options