Electronic Theses and Dissertations (Masters)

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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
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.
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.
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
Effects of donor funding on the HIV/TB programme outcomes in South Africa
(University of the Witwatersrand, Johannesburg, 2021) Sokhela, Cleopatra Zinhle; Saruchera, Fanny
There has been decreasing donor funding for the past years, especially in developing countries. With the global economic crisis fuelled by the COVID-19 pandemic, there has been mounting pressure on governments and NGOs to sustain healthcare services and the HIV/TB programme implementation. Despite the efforts made in curbing HIV and TB in South Africa, the country is still struggling to meet its planned HIV and TB programme outcomes. The purpose of this study was to establish the factors that influence donor funding for HIV/TB programmes in South Africa and understand how NGOs utilise donor funds to achieve HIV/TB programme objectives. The study intended to determine the factors that influence donor funding for HIV/TB programme in South Africa; to establish how NGOs utilise donor funds to achieve HIV/TB programme objectives in South Africa; to establish strategies to sustain South African NGOs beyond donor funding, and to propose HIV/TB programme implementation strategies for NGOs in South Africa. The study was guided by the donor and recipient models intended to establish the relationship between donor interest, political interest, NGO funding, and HIV/TB programme outcomes and establish if NGOs sustainability is influenced by decreased donor funding. A quantitative and deductive study was conducted using an online survey. Data was collected from 308 respondents drawn from 30 donor-funded organisations across South Africa. The study's key findings revealed that donors give generously for the HIV/TB programme with no expected returns. Poor HIV/TB programme implementation by NGOs and lack of social impact affects future international funding opportunities. The study further established a positive relationship between recipient needs, NGO funding, and HIV/TB programme outcomes. The paper also concludes that NGO sustainability is not affected by declining donor funding, but a strong positive relationship between NGO leadership capacity and NGO sustainability was identified. A significant portion of respondents indicated that sustainability planning, government co-funding, diversified revenue-generating strategies, meaningful stakeholders' engagement and NGOs leadership capacity development were essential to ensure better HIV/TB programme outcomes and NGOs' sustainability beyond donor funding. In order to enhance the sustainability of donor-funded organisations and programme outputs, the study recommended the need for donors to review regulation governing donated funds utilisation; developing sustainability plan at the beginning of the funding cycle, NGOs to review their business models and NGO leadership capacity development on resource mobilisation and financial management. Future studies could focus on South African NGOs providing HIV/TB services readiness to transition from donor funding and evaluating the most effective revenue-generating strategies that NGOs can implement in South Africa
The extent of protection provided by section 76(4)(a) of the companies act, 2008 to directors against personal liability for breaches of sections 76(3)(b) and (c) of that act
(University of the Witwatersrand, Johannesburg, 2021) Beja, Xolisa
This research report examines the extent to which section 76(4)(a) of the Companies Act, 71 of 2008 protects directors against personal liability for breaches of their duties to act in the best interests of the company and with due care, skill and diligence. The essential substantive elements of s 76(4)(a) create (as a minimum) a business judgment rule. Generally, that rule provides a director with a defence against liability for a breach of his duty of care, skill and diligence if, when he acted (or omitted to act), he did so reasonably, honestly, with no self-interest and in the interests of the company. In conducting an analysis of s 76(4)(a) as an embodiment of features of a traditional business judgment rule, this report considers (among other things) the legal nature of the protection created by s 76(4)(a), the requirements which a defendant director must meet in order to enjoy the protection of s 76(4)(a), the allocation of the burden of proof for the application of the provisions of s 76(4)(a), and a brief consideration of how a similar rule in Australia is drafted and has been applied in practice by courts there. The report concludes that, unlike the Australian counterpart, the provisions of s 76(4)(a) create a protection for directors that is more than the protection that is provided by a traditional business judgment rule. This conclusion is based on the extensive nature and scope of authority and powers which s 66(1) of the Act grants to directors. The substantive configuration and extensive ambit of s 76(4)(a) are thus anchored in, and justified by, s 66(1) of the Act and the carte blanche which the latter section grants to directors. Consequently, the protection given by s 76(4)(a) to directors is unusually wide, inasmuch as it shields directors against personal liability for breaches of a myriad of their duties and against liability risks arising from or created by the extensive powers and authority which s 66(1) of the Act gives SA directors. In the same breath, however, s 76(4)(a) manages to make directors appropriately accountable to the company’s stakeholders, in keeping with some of the fundamental objectives and purposes of the Act
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
Institutional racism and its oppression of the black employee’s economic freedom
(2021-11) Lubile, Nyota C.S
Institutional racism can be identified as a prominent factor, amongst numerous others, in the slow progression of the black population in the South African workplace. Consequently, due to the perpetual undermining of the black race and their professional capabilities, this leads to the rather slow (socio-) economic growth and progress of the black workforce and population in the long run. This report considers the extent to which institutional racism still has an impact on the (socio-) economic emancipation of the black worker which ultimately limits their standard of living. The origin of institutional racism from the colonial and apartheid era lay the foundation for the report, the effectiveness of corrective policies and legal frameworks are explored together with the elements of Critical Race Theory and how they are relevant to the issues pertaining to institutional racism in the workplace. Two areas that are specifically looked into are institutional racism against women and black women particularly as well as its presence in the legal profession. From a statistical perspective, theory is translated into numbers – the findings support and demonstrate how indeed there is a large gap between the saturation of the white race and the black race at different skills levels in the workplace as well as in business management and ownership in comparison to the economically active population of each race group. This corroborates the findings of the literary research in that systemic racism is still a major barrier to the elevation and progressions of the black population in the workplace and ultimately in their general standards of living
The constitutionality of trophy hunting of threatened or protected listed species in South Africa
(University of the Witwatersrand, Johannesburg, 2022) Lopes, Rui Jorge Coelho; Cameron, Justice Emeritus Edwin
Whilst South Africa continues to grapple with its radical levels of social and economic inequality within the country, the lucrativeness of natural resources forming part of the environment as a tool to bringing about redress to such inequalities becomes an ever-increasing consideration. Although there is merit in the statement that the use of natural resources may seek to alleviate social and economic inequality, our courts have already held that the provisions of section 24(b)(iii) of the Constitution of the Republic of South Africa (the “Constitution”) are required to link and intertwine the concepts of conservation with sustainable use and development, for unfettered use of natural resources may not be regarded as sustainable, and will ultimately lead to the decline of ecological conservation and biodiversity. This has, however, contributed to the increase in human-wildlife conflict and the increase in consumptive and extractive use practices in relation to the natural resources of the environment, and the consideration of trophy hunting, and in particular the trophy hunting of Threatened and Protected Species (“TOPS Species”) is not separate n or excluded from this consideration and the ultimate impact such has on biodiversity loss and ecological degradation. The continued race to the bottom of species both locally and globally, coupled with the vested financial gains sought to be obtained from the increased rarity of species subjected to trophy 3 hunts, seeks to bring into question whether the engaging or permitting of the trophy hunting of TOPS Species may fall foul of the provisions of section 24 of the Constitution. Accordingly, this research report seeks to consider the constitutionality of the trophy hunting of TOPS Species and how this practice is required to be viewed through the constitutional lens under which it takes place
South Africa’s legal framework to eradicate period poverty
(University of the Witwatersrand, Johannesburg, 2022) Jonker, Vivienne
A teenage girl attempting to complete high school in a low-income setting in South Africa is likely impeded by period poverty. Period poverty is the circumstance of women and girls1 being unable to manage their periods due to their socio-economic conditions. It compromises a plethora of human rights, such as the rights to education and equality. The South African state is legally obliged to ensure, at the very least, that these rights are not compromised. This paper equips the reader with an understanding of South Africa’s legal framework to address period poverty. It tells the story of the state’s measures to address period poverty; identifies their pertinent shortfalls and proposes amendments to the framework. Activists campaigning for the eradication of period poverty are encouraged to advocate for these amendments
The impact of covid-19 on international commercial contracts, as approved by postgraduate studies committee
(University of the Witwatersrand, Johannesburg, 2022) Naidoo, Kammani; Schlemmer, Engela C
The Covid-19 pandemic had an immense negative impact across all industries and businesses in South Africa and internationally. The pandemic impacted many international commercial contracts, and this was due to the necessary precautionary measures and restrictions that were introduced and imposed by the South African governments, as well as governments around the world, to curb the spread of the virus. These measures included restrictions on domestic and international travel, quarantine measures and bans on imports and exports of goods and services, which severely restricted international trade. On a global level, the new precautionary regulations and measures imposed by various governments to curb the spread of the Covid-19 virus, has left many people, businesses and industries worldwide in a position where they are faced with numerous challenges, such as, being unable to carry out their daily functions and in particular being unable to perform their contractual obligations in terms of international commercial contracts. Failure to perform contractual obligations results in breach of a contract and undesired claims for damages. This research report will address the impact of Covid-19 on international commercial contracts, from a South African perspective, and will focus particularly on the performance of contractual obligations in international commercial contracts for the sale of goods. The research report will examine the consequences that arose, from the various actions that the governments around the world undertook and imposed to curb the spread of the Covid-19 virus. In addition, the research report will assess how the UN Convention on Contracts for the International Sale of Goods (CISG), which is the main legal instrument in harmonising and governing international commercial contracts, can assist parties who enter into international commercial contracts, as well as other legal instruments. Additionally, the research report will focus on whether contractual parties who enter into international commercial contracts can be exempt from liability in a situation where either contractual party fails to perform and breaches a contractual obligation, in light of the current pandemic. The report will also consider the force majeure and hardship clauses, as well as various other clauses and whether parties to a contract may rely on these clauses as grounds for non-performance of contractual obligations in international commercial contracts. Lastly, the research report will suggest what the impact of Covid-19 means for drafting future international commercial contracts and ways forward
The role of beneficial ownership reporting obligations and the reckless trading provision to prevent front companies in terms of the South African companies act 71 of 2008
(University of the Witwatersrand, Johannesburg, 2022) Dhana, N.
The corporate form has the potential to be abused by natural persons. A front company is an example of such abuse. A front company is an incorporated company that is used as a vehicle to conduct illegal activities. The natural persons controlling the company and that benefit from proceeds derived from the illicit conduct hide behind the company's separate legal personality to escape civil and criminal liability. Reports indicate that billions of rands are obtained through illegal activities perpetrated against the corporate form. This means that natural persons can successfully misuse the corporate form as a front. For this reason, it is imperative that a legal framework is in place to circumvent the formation and operation of front companies. This type of abuse is a company law issue and ought to be regulated by the Companies Act of 71 of 2008 ("Companies Act"). This research report demonstrates, however, that the Companies Act does not sufficiently guard against the formation and operation of front companies. The Companies Act must therefore be strengthened, by way of legislative amendment, to enhance corporate transparency and accountability. Four main areas in the Companies Act have been identified for possible legislative amendment. The anchoring argument that must be borne in mind with regards to any legislative amendment is that natural persons exert control over the corporate form and ultimately benefit from the company's activities. Further, comparative foreign law and domestic law will be used as a guide for the approach the legislature must adopt when amending the Companies Act. The first area of amendment is to expand the definition of beneficial interest to fully recognize beneficial ownership. The second area of amendment is to impose an obligation on natural persons to disclose their beneficial ownership in a company. The third area of amendment is to broaden the ambit of the reckless trading provision to apply to beneficial ownership. Lastly, the powers of the Companies and Intellectual Property Commission ("Commission"), the regulatory body of the Companies Act, must be enhanced to empower the Commission to institute legal proceedings against natural persons to cease abusing the corporate form as a front
Does section 198A (3) of the labour relations act create a sole or dual employment relationship after the period of three months?
(University of the Witwatersrand, Johannesburg, 2022) Shezi, Nqubeko; Marumoagae, Clement
This research report is an overview of section 198 of the Labour Relations Act which regulates temporary employment services. It also evaluates the nature of employment of employees who are employed at the instance of the TES after a period of three months from the date of their employment. In 2002 this Act was amended by the Labour Relations Amendment Act which inserted section 198A. The purpose of this insertion was to protect TES employees from being exploited by their employers by making them work for years on a temporary basis. Employees would be deprived from acquiring permanent employment benefits because of the temporary contracts they are working under. However, it has appeared that this amendment did not fulfil its purpose because section 198A(3)(b) leaves employees even more vulnerable as it gives the window period of three months without being clear on what happens to the tripartite relationship between the parties. This section does not explain who the employer after the lapse of three months is, this leaves employees not knowing where they stand with both the client and the TES. Therefore, this research report discusses section 198A (3) of the LRA, with a view of assessing whether the client is the only employer (sole employment relationship) orboth TES and the client are employers (dual employment relationship). Further, this paper gives an overview of the case laws that have dealt with this section in trying to analyse and decide on the intention of the legislature when enacting the Amendment Act
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
The Energy Crisis and Sustainable Electricity: An Analysis of SADC’s role in the promotion of Climate Justice in the Regions’ Electricity Industry
(University of the Witwatersrand, Johannesburg, 2022) Kamurai, Rumbidzai Lindsay
Long having depended on fossil fuels to sustain its socio-economic aims, in the face of rolling blackouts and the emerging renewable energy mix the SADC region is under pressure to implement sustainable practises to meet electricity demands and ensure energy security. All in the hopes of attaining regional climate justice. This report aims to access the regions renewable energy and low carbon emitting alternative options as supported by SADC policy in order to understand how far these policies and potential can address the regions prevalent energy crisis. In so doing ,it outlines what an energy crisis is in the SADC context in order to more thoroughly evaluate SADC policies and projects implemented to meet this crisis. Having accessed the successes and failures of these, it endeavours to suggest possible ways forward in the context of the regions renewable energy potential. This report speaks to the role political will and overt nationalism have played in the regions failed energy policies, how current regional implementation is moving at too slow a pace to match socio-economic development and is thereby worsening the electricity crisis, that diversification of the renewable energy mix has been neglected and the fact that climate change must play a greater role in developing energy policies than it is currently, if climate justice is to be seriously attained. The impact of climate change on the region and its energy options is too great a factor to ignore and is used to back the use of regional SPV over the short-sightedness of hydro.
The need for legal reform to effectively protect the rights of queer-sexual pupils in south african public schools
(University of the Witswatersrand, Johannesburg, 2022) Booi, S
The South African community largely consist of marginalized and/or vulnerable groups, one of which is the queer-sexual community. This paper seeks to direct the attention of the social justice advocacy towards the children members of this groups. Within all the marginalized and vulnerable groups, children are the worst off. This study will focus on the children of the queer-sexual group, particularly, public school pupils. The ‘queer-sexual’ concept will be used to loosely mean children who are not heterosexual. Through examples of legal reforms that have proven, to an important extent, effective in protecting queer-sexual adults; and comprehensive research on how basic education schooling environment fails to offer queer-sexual pupils’ substantive equal opportunity to learn, this paper will prove the necessity of statutory intervention to achieve an effective protection of the right to equality for queer-sexual pupils in South African public schools. While the Constitution of the Republic of South Africa (hereinafter referred to as the Constitution) guarantees equal rights for everyone, it is the statutory regulations that give effect to the constitutional broad provisions. To a certain and significant extent, the amended Intestate Succession Act and Civil Union Act have given effect to the protection of adult queer-sexual identities. However, the existing children-centred statutes do not make specific provision for the recognition and protection of queer-sexual children, the result of which is lack of a legal regime that protects queer-sexual identities of children. While a society’s voluntary recognition of the existence and subsequent acceptance or tolerance of queer-sexual children is ideal, this paper will only focus on the necessity of legal mechanisms to protect the rights of minorities. Considering the efficacy of statutes such as the Employment Equity Act that fosters implementation of policies that vehemently prohibit discriminatory conduct and sexual harassment in the workplace, the obedience fostering character of the law makes the law integral to the protection of queer-sexual children
South African Climate Change Regulation: Towards Climate Change Mitigation
(University of the Witwatersrand, Johannesburg, 2022) Manzella, Marco John
Climate change is the change in earth’s weather and climactic conditions due to an average rise in the temperature of the earth’s surface. This temperature increase has principally resulted from an exponential increase in greenhouse gas (GHG) emissions resulting from anthropogenic activity. The consequences of climate change are experienced differently by different regions and the effects can reach across the globe ranging from minor to catastrophic proportions depending on the location of a country. The international response to this crisis has accelerated significantly since the early 1990s and the formation of the United Nations Framework Convention on Climate Change (UNFCCC). South Africa acknowledges the threat of climate change; however, the country has a strained relationship with climate change mitigation as one of earth’s highest emitters of GHGs per capita due to its dependency on coal combustion. This dependency is further complicated by the sector’s status as a primary employment and socio-economic driver domestically. These competing priorities impact upon South Africa’s climate change response. South Africa has advanced climate change mitigation to a limited extent through the slow development of a domestic regulatory framework. The mitigation effort is hampered by some shortfalls in the domestic regulatory framework. The country currently lacks climate change law. This paper seeks to determine how capable South Africa’s domestic framework is of facilitating climate change mitigation. It espouses the view that a robust and comprehensive regulatory framework is necessary for meaningful domestic mitigation action. It emphasizes the importance of regulatory certainty – where adoption and enforcement of the framework are concerned. The current regulatory framework – despite its fragmented, ad hoc nature – is already advancing limited mitigation action. This limited success can be amplified by the adoption of a better developed, more comprehensive framework
Does the role of a business rescue practitioner necessitate the imposition of fiduciary duties and liabilities to the same degree as directors of a company?
(University of the Witwatersrand, Johannesburg, 2022) Tampson, arryn Jamie; Thambi, Kiyasha
Business rescue practice is a legislative mechanism in terms of Chapter 6 of the Companies Act 71 of 2008 (“the Act”), aimed at rehabilitating failing companies. Business rescue proceedings (“proceedings”) are defined as the ‘[facilitation of the] rehabilitation of a company that is financially distressed’.1 This is achieved through the temporary supervision of the company by the business rescue practitioner (“practitioner”), as well as a temporary moratorium on the rights of claimants. The goals of business rescue proceedings are to either rehabilitate the company to operate on a solvent basis, or to secure a better return for creditors upon the company’s liquidation.2 The ultimate manner of rehabilitation of a company is set out in the business rescue plan drafted by the practitioner and voted on by affected parties3 as envisaged in the Act
The evolution of the test for rationality under the legality principle in South African administrative law
(University of the Witwatersrand, Johannesburg, 2022) Bekker, Chrisna Jooste; Hoexter, C.
The principle of legality was confirmed early in South Africa’s constitutional era as a product of the rule of law and the minimum standard to which the exercise of public power must be held to account. It has become an indispensable tool and ‘safety net’ to review administrative decisions where the action which it reviews does not constitute administrative action as it is defined in the Promotion of Administrative Justice Act, 2000. Rationality has emerged as the test applied in such reviews of whether the means applied to reach a decision are rationally related to the ends (the decision). Rationality has however come to comprise elements such as procedural fairness and -rationality that are not always consistently defined or applied by the courts. This variability and unpredictability lead to uncertainty in administrative law review which has the effect of causing the ‘safety net’ to stretch too far – by undermining the rule of law, the principle of legality itself and constitutional democracy
The bread cartel: can the conduct of firms in contravention of the competition act be recognised as a violation of human rights?
(University of the Witwatersrand, Johannesburg, 2022) Motshidisi , Vilakazi
Section 4 of the South African Competition Act, 89 of 1998 (‘the Competition Act’) prohibits horizontal restrictive practices in the form of price-fixing, market allocation, and collusive tendering. According to Maphwanya, cartels are among the most egregious forms of competition harm globally. Entities that form cartels frequently weigh the benefits of joining a cartel against the risks of being investigated by competition authorities (Maphwanya, 2017). The Pioneer Foods decision handed down by the Competition Tribunal (‘the Tribunal’) in 2009 charts a complaint lodged in 2006 against various bread manufacturers for allegedly engaging in cartel behaviour; in that these manufacturers engaged in a cartel which had the outcome of fixing the price of bread and dividing markets between themselves. Following the Competition Commission’s investigation and a determination that the bread manufacturers had indeed participated in the cartel, the Tribunal penalised the cartel members by imposing various administrative penalties. The conduct of the bread manufacturers occurred in a South African context, where bread is considered a staple food for many South Africans living in poverty. In light of the aforementioned decision, it is to be considered whether the coordinated conduct of firms seeking to raise prices to maximise on profits at the expense of ordinary and penurious South Africans should be considered a human rights violation. The impact of section 27(1) (b) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which states that everyone has the right to access to food, will be considered explicitly in this report. Furthermore, the obligations of firms found to have violated the provisions of section 4 of the Competition Act are examined in light of whether private persons have constitutional obligations to provide access to food in accordance with section 27(1) (b) of the Constitution. To this end, reference will be made to the provisions of sections 8(2) and 39(2) of the Constitution