Electronic Theses and Dissertations (Masters)

Permanent URI for this collectionhttps://hdl.handle.net/10539/37939

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    Bypassing the union: An Employer's Right to Negotiate Directly with Striking Employees
    (University of the Witwatersrand, Johannesburg, 2016-08) Nkosi, Thulani Gift; Mahomed, Shaheda
    South African labour law influenced by the Constitution and notions of equity and fairness has undergone a total change and will, without doubt, continue to change to meet the ever changing nature of employment it seeks to regulate. It is after all in the nature of all laws to change with the society they seek to regulate and our labour law is no exception. Recently, focus has shifted to the institution of collective bargaining and the questions posed are whether our labour laws as they currently stand are capable of adequately regulating the process of collective bargaining in such a way that the main objective of collective bargaining which is to bring about industrial peace is promoted and maintained at all times. These questions are posed on the back of the unprecedented spates of prolonged violent strikes that have resulted in the destruction of property and loss of life as well as unimaginable financial losses not only for the employers affected but also for the economy as a whole. These unprecedented prolonged violent strikes have caused employers to engage in bargaining conduct that could erode the participation of trade unions from the collective bargaining process which bargaining conduct takes the form of employers bypassing trade unions and negotiating with striking employees directly. But do employers have a right to bypass trade unions in this way? This paper investigates this question against the background of the case of Amcu v Lonmin where the Labour Court on application by a trade union had to decide whether to grant an urgent interdict restraining employers from negotiating directly with striking employees. The employers considering themselves to be acting within their rights opposed the application. The Labour Court unfortunately dismissed the application on technical grounds relating to the lack of urgency without considering or deciding this question. This paper accordingly picks up the debate; considers the historical evolution of collective bargaining in our labour law including the voluntarist argument that is said to be embodied by the Labour Relations Act (LRA), and concludes that when all things considered employers in fact do not have a right to bypass trade unions. If employers had this right certain provisions of the LRA that guarantee trade union participation would be rendered nugatory and the whole collective bargaining process would become unworkable. The LRA envisions that once parties have voluntarily embarked on collective bargaining they bargain in good faith and do not bypass each other.
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    Financial inclusion in South Africa: An analysis of the financial sector regulatory framework and proposals for reform
    (2018-09) Duma, Amanda; Kawadza, Herbert
    Abstract Not Available.
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    Unpacking physical accessibility to primary education under the international covenant on economic, social and cultural rights: lessons for South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Liphapang, Mpho
    Physical accessibility to primary education is a component of the feature of accessibility under the 4As framework of the UN Committee on Economic, Social and Cultural Rights. Up to the present time, the dimension of physical accessibility in the implementation of a primary education for children, has regrettably been the least engaged subject by human rights scholars, lawyers, and judges alike. This fact is reinforced in two main ways that are immediately apparent, namely (1) the scarcity of focused scholarship and judicial engagements on the subject, and (2) the minimal attention afforded to the content and meaning of physical accessibility when the subject is eventually engaged. These shortcomings have culminated in the emergence and broad acceptance of narrow theorisations of physical accessibility, through which the dimension is generally understood as a sole concern for schools to be situated at geographically convenient and accessible locations for the learners. In this research report, an examination of physical accessibility is undertaken with the aim to uncover its substantive content and meaning under the ICESCR, and to draw lessons on how it can contribute meaningfully to the achievement of a basic education in South Africa
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    Digitalisation in the banking industry – the future of banking
    (University of the Witwatersrand, Johannesburg, 2023) Basdewo, Kishen; Matasane
    The South African banking sector has undergone a profound digital transformation due to rapid and continuous technological advancements. Being Africa’s largest economy, South Africa offers a unique context for examining the trajectory of digital banking and its ramifications for business and society. The emergence of new technologies has fundamentally changed how banks generate and deliver financial services. In particular, digitalisation has empowered banks to operate predominantly online with minimal physical branches, giving rise to novel intermediaries like peer-to-peer lending platforms and payment service providers. Despite the evident significance of digitalisation in the banking sector, its transformative effects raise concerns about financial inclusion and the security of customers’ confidential information. Additionally, while many customers embrace digital platforms, a considerable segment still values the human touch, especially for more intricate transactions. Against this background, this Research Report seeks to explore the impact of digitalisation on the bank/customer relationship. The research further evaluates how emerging technological innovations are creating novel sources of systemic risk which could in turn pose regulatory and policy challenges. The data for this research report was collected from amongst others, various pieces of relevant legislation, scholarly articles, case law, as well as reports from financial regulators and commentators. The research findings reveal that the technological advancements compel banks to change their operating models to meet customer demands. While this introduces challenges both the consumers and banks, effective implementation holds significant benefits for both parties
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    The International Monetary Fund and the duty to make accountable decisions
    (University of the Witwatersrand, Johannesburg, 2023) Müller, Ernst
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    An assessment of the adequacy of South African fintech regulation: comparative analysis and proposals for reform
    (University of the Witwatersrand, Johannesburg, 2023) Akhtar, Mohammad Naeem
    The past few years have been characterised by unprecedented developments in financial technology (fintech) including rapid innovation in mobile payment systems, peer-to-peer lending, virtual currencies and blockchain technology. A sizeable portion of innovative fintech has arisen outside of the traditional financial and banking system largely driven by venture capital-backed fintech start-ups. This disruption and evolution in banking and financial services caused by fintech innovation has heightened the need for new policies and rules regarding the regulation of fintech to be both thorough and forward thinking. This is because the effective regulation of fintech is crucial to innovation and the future success and stability of the financial services industry as a whole. This paper assesses the adequacy South Africa’s current regulatory framework in relation to fintech, with a primary focus on the emergence of specific fintech in South Africa such as payment systems, lending and cryptocurrencies and their respective regulatory frameworks. A review of the risks posed by fintech usage and inadequate regulation is carried out – of which cybercrime and data privacy were identified as emerging risks. This is followed by an analysis of the strengths and challenges of South Africa’s regulatory framework which indicates that South Africa boasts a robust and well-regulated financial sector. The focus is then turned to a comparative analysis of foreign jurisdictions, particularly Australia, Nigeria, and Kenya with the aim of identifying measures that could be adopted to further strengthen fintech regulation. The paper ends off with a list of proposed recommendations to be adopted to improve South Africa’s fintech regulation, including inter alia the adoption of open banking and the creation of a harmonised system of regulation in the region
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    Strengthening Accountability for Sexual and Gender-Based Violence under International Human Rights Law
    (University of the Witwatersrand, Johannesburg, 2023) Leung, Ka Yan; Chenwi, Lillian
    This research report critiques the current mechanisms available for ensuring accountability for sexual and gender-based violence (SGBV) in the context of international human rights law. It appraises the international, as well as regional, legal frameworks for SGBV, identifying common mechanisms flowing from those instruments. The report also identifies gaps and current challenges in the efforts to provide increased accountability for survivors and victims of SGBV. Key findings include an inefficient, heteronormative approach in respect of, and protection for, non-binary and gender-diverse victims of SGBV, and poor reporting by states in terms of the international human rights instruments. It concludes that taking a more gender-inclusive approach to instruments, and advocating for a new binding instrument with a more encompassing human-rights framing, may be of value, alongside the development of more progressive feminist jurisprudence. While these solutions do not claim to be the cure for all SGBV violations, they will greatly contribute to the protection of persons affected
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    The development of e-technology at the pleading And pre-trial stage of civil procedure
    (University of the Witwatersrand, Johannesburg, 2023) Ferreira, Marius Salomon
    South Africa has been lodged into embracing the e-platforms since the advent of the lockdown restrictions of the Covid-19 pandemic. CaseLines, and later-on Court Online, have been introduced to the South African judicial adversarial system in the High Court Divisions in Gauteng. Since its inception, the Caselines and Court Online electronic platforms (e-platforms) have undergone numerous amendments to comply with traditional civil procedure. At the same time, the e-platforms are being used to change the civil procedure at the Gauteng Divisions. The purpose of this report is to critically analyse the CaseLines and Court Online e-platforms and the online civil procedure, through the applicable directives in place, as well as the current Rules of Court, in order to determine its effectiveness in South African civil procedure as well as its fairness in the current South African dispensation. The procedure at the High Court Gauteng Divisions is further compared to the procedure at the Labour Court and Commission for Conciliation, Mediation and Arbitration (CCMA), who have both utilised the use of certain online procedures long before the introduction CaseLines and Court Online. The use of evidence on an online e-platform is critically discussed to determine whether it is in line with the current laws involving the admission of evidence in the South African judiciary. The online judicial system in South Africa is critically compared to the current online procedures in the United States of America and in the United Kingdom to determine whether any lessons can be taken from the foreign judiciaries in terms of online civil procedure. Lastly, the report will provide concluding remarks and recommendations to consider for the South African e-platform and online civil procedure.
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    Contractual liability of state-owned enterprises in international business transactions: a South African legal perspective
    (University of the Witwatersrand, Johannesburg, 2024) Danha, Mutsa Dadiso
    This research report examines the legal regime that governs South African state-owned enterprises (SOEs) as they participate in transnational commercial transactions (transactions involving multinational corporations foreign to South Africa). It primarily seeks to lay out the optimal path through which South African law would allow for the State to be held contractually liable for the SOE's failure to perform its international contractual obligations. Following this will be a comparative analysis between the principles of South African law and those of International Business Transactions Law regarding the same. The South African legal framework that this paper examines comprises of the South African Company Law regime, the South African law of contract, and the South African administrative law regime. The legal framework to which this will be compared is International Business Transactions Law, which does not have such clearly delineated subcategories. Issues which fall outside of the scope of this paper are the appropriate forum of the matter, the choice of law which applies to the contract, public international trade law, and the regulations of the World Trade Organization
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    A feminist ontology to data commercialisation: Evaluating women's access to information and privacy within the medico-legal sphere in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Neto, Ângela Pacheco; Swemmer, Sheena
    With the dawn of the Fourth Industrial Revolution, rapid exchanges of data have intensified. Technologies like biometric monitoring, female-oriented technologies, and artificial intelligence bring with them a host of legal issues related to consent, access, privacy, and liability. Vulnerable populations or groups must be given particular attention as standard data practices serve to reinforce existing inequalities. For this reason, female-directed and female- generated health data is specifically considered herein. By employing a data feminism lens, it becomes apparent that the current South African regulatory framework has been legislatively misapproached with regards to the medico-legal sphere in South Africa. The methodology herein draws on critical review methods, thematic analysis, and legal discourse analysis, ultimately utilising the general principles of research inherent in the socio-legal sciences. A responsive and flexible health data law that incorporates intersectional narratives is advanced. This holistic response must account for the two-faced coin of female access to information and privacy in order to address historical structures of power inequity