Electronic Theses and Dissertations (Masters)
Permanent URI for this collectionhttps://hdl.handle.net/10539/37939
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Item Balancing majority shareholder rights, minority shareholder rights and creditors rights in statutory mergers: in terms of the Companies Act 71 of 2008(University of the Witwatersrand, Johannesburg, 2024) Ado, Jean Philippe Mathurin SikCompanies in their various forms are crucial to South Africa’s economy and its prosperity as they contribute towards wealth creation, social renewal and social welfare. In our growing world and borderless international markets, there are ongoing changes that affects a company’s competitiveness and productivity both nationally and internationally. These changes may be brought by the necessity to abide by international company law standards and practices that to some extent are aiming at sustainable economic growth and profitability. The South African company law regime, introduced since 1926, has undergone a series of amendments to ensure that its national companies and stakeholders benefit from the most updated legal system to galvanise its economy. In so doing, mergers and acquisitions represent one of the most cutting- edge concepts of company law around the world that encompasses the social, economic and financial needs of companies and that have been introduced in the current national company law regime. This research paper analyses the protections of shareholders and creditors in the statutory merger contained in the Companies Act 71 of 2008. It discusses also whether these protections are adequately balanced towards a fair consideration of majority shareholders, minority shareholders and creditors’ interests — which includes consideration of their rights too — in implementing a statutory merger. The main findings are that some protections are not properly balanced in consideration of the aforementioned parties’ interests. These include the appraisal remedy, the merger agreement and the oppression remedy — between minority and majority shareholders — and the creditors’ notification coupled with the court review, the open transferability of creditors’ contracts and the solvency and liquidity test — between majority shareholders and creditors — which in some aspects offers uncertainty in protecting their applicants. The approach adopted in the Canadian cases of Black & Decker and Loeb, set out in section 2 below, emphasises the importance of policy considerations which must meet the stated goals of s7 of the Companies Act 71 of 2008.Item Balancing the odds: A law to legalise and regulate online gambling on casino games in South Africa(University of the Witwatersrand, Johannesburg, 2024) Bate, David John; Cachalia, FirozOnline gambling has become a pervasive phenomenon across the world. Yet South Africans enjoy limited scope to participate legally in this activity. Current legislation permits online betting on sports events (including horse racing) but prohibits all other forms of online gambling. Despite this prohibition, online gambling on casino games is widespread in South Africa. The Government has a choice: continue to criminalise the activity or follow international trends and allow the same. It initially attempted to legalise and regulate online gambling through legislation without success. It subsequently opposed (and continues to publicly oppose) any legalisation of the activity. Significant adverse consequences arise from continued prohibition of online gambling on casino games in South Africa including, inter alia: the spread of illegal gambling sites; loss of confidence in law enforcement; loss of tax revenues; discrimination against casino operators; loss of job opportunities; and inability to monitor and regulate online gambling activities. This study proposes key features for a law and licensing and regulatory framework to legalise and regulate online gambling on casino games in South Africa. It reviews regulation of online gambling on casino games in a representative sample of international jurisdictions to identify issues and best practices that may be germane to South Africa’s circumstances. It examines and analyses current and proposed legislation and stare decisis in South Africa to identify challenges and opportunities for further consideration as part of any process to legalise and regulate online gambling on casino games. It summarises and analyses public interest concerns that likely require redress as part of any such process. Based on these efforts, this study highlights fourteen areas of law and makes recommendations regarding specific interventions in those areas that may merit further consideration in development of any ‘made in South Africa’ solution to legalise and regulate online gambling on casino games in the country.Item A review of the latest developments in South African refugee law and policy in light of the country’s international obligations(University of the Witwatersrand, Johannesburg, 2024) Boda, NabeelThis research considered the issue of whether latest developments regarding South African refugee law and policies are aligned to the country’s international obligations. The motivation behind this research report is to contribute to academic and public discourse on human rights, migration, and global responsibility. Furthermore, this report serves as a platform for critical analysis, shedding light on the intricacies of South Africa's approach to refugees and asylum seekers in the context of its international commitments. It is imperative to comprehend the evolution of the legal framework governing refugees and asylum seekers in South Africa, given the significant presence of hundreds of thousands of refugees and asylum seekers within the country's borders. The question of refugees and asylum seekers is both a legal and political matter. Legally, it involves navigating international agreements and national laws that dictate how these individuals are recognised and protected. Simultaneously, the issue extends into the political sphere, where decisions on refugee policies are influenced by domestic political considerations, public opinion, and concerns about national security or economic stability. The interplay between legal principles and political realities shapes the approach a nation takes, highlighting the need for nuanced solutions that address both aspects of this complex challenge. The aim of this research report is to consider the recent developments of South African refugee law and policy and how it aligns with the country’s international obligations.Item A review of the right to basic education, the 2020 Covid-19 related schools' shutdown, and the courts in South Africa(University of the Witwatersrand, Johannesburg, 2024) Booi, Ntombizinhle PrincessOwing to COVID-19, the South African government ordered the closure of educational facilities in the country to try and curtail the spread of the virus. At the time, no one knew the extent to which the virus had spread, its potency for the South African public, how it impacted on children and what actions the government could take, besides locking down the country. Both the government and the public were facing a pandemic of this kind for the first time. However, the closure of schools placed the educational rights of learners under a spotlight, as under the Constitution of the Republic of South Africa, 1996, basic education is a right. The closure of the schools had many consequences for the right to basic education, including that education delivery, as it was then known, had to be changed. Yet, it is reasonable to assume that many schools were ill equipped for the sudden change which could not have been foreseen. To this end, there had to be a way forward for schools, and online learning became a viable avenue for ensuring that education did not come to a standstill. Yet again, it is reasonable to assume that many schools would not have had the capacity to transition to, let alone facilitate and maintain, online learning. A preliminary conclusion then would be that COVID-19 had a direct impact on the right to education. This is only the start, however, because the next line of inquiry would be whether the decision of the state to close educational facilities through the lockdowns was reasonable, and consequently justified considering the limitation it brought to the right to education. This report concludes by examining two cases that addressed these questions.Item Pharmaceutical patents and public health: facilitating access to affordable medicines in South Africa through trips flexibilities(University of the Witwatersrand, Johannesburg, 2024) Bouwer, Ryan; Andanda, PamelaThe Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) aims to strike a balance between the protection of creators and providing access to creative works to users of same. South Africa, as a member of the World Trade Organisation (WTO), has the flexibility to define its policy space in an internationally recognised and compliant manner to achieve an equilibrium between upholding public interest objectives and the private interests of patent holders in the field of health. South Africa has taken steps over the years to revise its medicine and intellectual property (IP) policies to address the issue of medicine access; however, implementation of reform is hampered by resource and capacity constraints, as well as economic and political pressures. As a result, the exorbitant pricing of pharmaceutical patented products continues to have an impact on the availability of essential medicines in South Africa. This report examines the functioning of the patents system in South Africa as it relates to the granting of pharmaceutical patents. The report discusses the link between intellectual property rights (IPRs) and public health and how the patent system can create barriers to access to affordable medicines. This report contends that the current patent climate exists due to shortcomings in South Africa’s Patent Act of 57 of 1978 (Patents Act) and its under-utilisation of TRIPS flexibilities. Pharmaceutical companies have exploited the current patent regime through evergreening and other abusive practises, resulting in the postponement of off-patent drugs and stifled competition, ultimately at the expense of public health. This report seeks to determine the extent to which South Africa has implemented TRIPS flexibilities in promoting access to affordable medicines in the realm of pharmaceutical patents, as well as whether South Africa can strike a balance between protecting pharmaceutical innovation and public health. It concludes by looking at how competition policy can be used to correct the imbalance and suggests that a focused and convergent approach to capacity building and transnational collaboration be employed.Item Effects of Investor Treatment on FDI Inflow: Developed v Developing States(University of the Witwatersrand, Johannesburg, 2024) Carides, TelisIt has been widely accepted that investor treatments afforded by states alone do not have a significant impact on FDI inflow. Rather, FDI inflow has been shown to be dependant on numerous other factors. This has however been traditionally examined against the backdrop of an ever-more globalised world, whereas more recent years have seen an uncharacteristic slowdown in globalisation, and indeed has ushered in a post-pandemic anti-globalisation trend. During this period, FDI in developed and developing states has faired very differently. Specifically, FDI into developing states has proven significantly more resilient compared to their developed counterparts, and indeed has overtaken developed states in net FDI inflow for the first time. Can this resilience be attributed to divergent approaches in investor treatments? This enquiry was undertaken by examining representative proxy states from the pool of developed and developing nations. After carefully electing said proxy states from both ends of the FDI inflow spectrum, I analysed whether, and to what extent they provided the most considered investor treatments; MST/FET, NT, MFN, pre-establishment protection and protection against expropriation. Notably, although the USA generally provides for these protections and is at the top of the FDI spectrum, Angola remained at the bottom of the spectrum whilst providing similar, and indeed broader protection in the case of NT and MFN. Furthermore, the Netherlands is the only state lower than Anglo during the examined period, yet it, save for pre-establishment protection, offered similar treatment. The study in casu was unable to establish that differences in investor treatments had any bearing on FDI inflows, and could not account for the converse performance of developed and developing states during the anti-globalisation period.Item nformation Asymmetry and Merger Performance on the Johannesburg Stock Exchange(University of the Witwatersrand, Johannesburg, 2024) Dludla, Sambulo Siyanda; Chipeta, ChimwemweThis study examines the impact of information asymmetry on the long-term performance of mergers and acquisitions (M&A) on the Johannesburg Stock Exchange (JSE). The empirical test evaluates the 3-year period of share performance from 2001 to 2019. An event study methodology is utilized to evaluate the relationship between information asymmetry and M&A performance after the deal's completion. The study interrogates the relationship between information asymmetry through proxies and the M&A performance measures (BHAR & CAAR) and the relationship between the deal specific variables and the M&A performance measures. The results reveal several information asymmetry proxies (SPREAD, VOLATILITY, TRADED VOLUME, and TRADED VALUE) exhibit a statistically significant relationship with one or more M&A performance measures in the panel OLS fixed effects model. However, ANALYST COVERAGE was not statistically significant for M&A performance. This suggests that information asymmetry impacts M&A transactions on the JSE on the long run. Additionally, mixed results are observed in the Generalised Method of Moments (GMM) regression. When observing deal-specific variables, the panel OLS regression emphasises their significant relationship with M&A performance, particularly against the CAAR, rejecting the null hypotheses for cash, mixed, size, leverage, and value variables at a 1% or 5% level. Controlling for the financial industry, both panel OLS regression and GMM show a significant relationship between CAAR, which is consistent with Harford's (2005) concept of M&A waves and industry clustering. This emphasises the critical role of industry dynamics on M&A performance. The results suggest that management and investors need to be aware of the information asymmetry in the market when conducting and concluding an M&A transaction. Moreover, management and investors must be aware of the information asymmetry in the market in the long run post-merger.Item Beyond the click: Informed consent in the age of cookies(University of the Witwatersrand, Johannesburg, 2024) Finger, Mokone; Visser, C.Rapid evolution of technology and the internet has enabled vast data to be exchanged amongst people. These changes have introduced extraordinary data collecting methods that also recognise traces of personal information when users browse the internet. An example of such a tracking method is a cookie. Cookies, while they serve to enhance user experience, tend to collect and store personal information of data subjects without their knowledge and consent. For this reason, they raise a question of a threat to privacy and consent of data subjects. This research report principally examines the legal sufficiency of a mere click of a button in establishing valid consent for processing of personal information, which includes the collection, storage and transmission of personal information through cookies. The Protection of Personal Information Act 4 of 2013 (the POPI Act) was enacted to give effect to the constitutional right to privacy. Thus, the POPI Act operationalises the constitutional right to privacy by providing a framework for the processing of personal information, even though its application has shortcomings related to consent and cookies. In order to interpret the POPI Act, this paper will integrate the common law and the General Data Protection Regulation 2016/679, based on the adjudicative subsidiarity doctrine, as constitutional backdrop instruments to determine the threshold for consent in the POPI Act when using cookies.Item A practical review of the effectiveness of artificial intelligence in the automated review of legal contracts(University of the Witwatersrand, Johannesburg, 2024) Fouché, Jacques GerritThis research report compares the performance of AI-driven automated contract review platforms with that of human contract reviewers, aiming to see improved effectiveness for the elements of time, cost and quality. An empirical study is done by comparing the specific performance of an automated contract review platform provider, Lawgeex, to the human contract reviewers of a business entity, Endress+Hauser. The results of the effectiveness assessment are reported on through dashboard data and questionnaires to the users of the platform. Recommendations are made both in general and specific to the two entities of the empirical study.Item Deconstructing the debate around bank account closures on the pretext of institutional reputational risk(University of the Witwatersrand, Johannesburg, 2024) Hayath, Iram; Kawadza, HerbertThe Supreme Court of Appeal in Bredenkamp v Standard Bank found that a bank has a contractual right to close a client’s accounts on reasonable notice, and that a bank is entitled to exercise this right if it perceives that a continued relationship with the client may result in reputational and business risks to the bank (albeit may be premised on allegations which the client denies). Banks have regulatory obligations to (amongst others): (i) manage their reputational risk; and (ii) take steps to avoid their accounts being used by clients to facilitate the proceeds of unlawful activities. Banks are at the receiving end of scrutiny for the latter, including from the media. Banks’ actions of closing accounts for institutional reputational risk are however, often challenged by clients on the basis that these decisions are informed by untrue allegations and are contrary to public policy. A particular consideration is the potential consequences of the clients becoming ‘unbanked’. There are also other issues of contention including that reputational risk is an elusive reason. The competing interests and public policy considerations at play have not yet been adjudicated by our courts. This research report argues that the complexities involved necessitates legislative reform to ensure certainty and fairness on both sides.