Electronic Theses and Dissertations (Masters)

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

Browse

Now showing 1 - 20 of 100

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 constitutionalised approach towards consent and private information on social media platforms: adjudicative subsidiarity and the privacy laws of South Africa
(University of the Witwatersrand, Johannesburg, 2023) Panda, Thabiso
This research inquiry analyses the concept of consent in a social media context, which is a part of the process which individual users have to undergo when affiliating themselves with online social media platforms. The aim of these platforms is to use, collect, process, share and store users’ private personal information. The analysis engages various legislative frameworks such as the common law, statute, and legislation, to adjudicate issues related to the concept of consent – which ought to be informed. If consent is not informed, this analysis highlights the effect(s), by accentuating its negative implications on the constitutional rights of individual users, such as privacy and dignity. The research inquiry starts by examining these constitutional provisions and is followed by applying a rights-based approach to address the nuances concerning consent on online social media platforms. Furthermore, it considers whether an adjudicative subsidiary can be employed to avoid overextending the powers of the Constitution. The inquiry also investigates infringements related to informational privacy and evaluates the legal framework intended to safeguard user information from anticipated risks on online social media platforms. The purpose of the legal framework, involves interrogating non-constitutional sources against the Constitution – by giving effect to the constitutional right to privacy, as well as in part, dignity. These non-constitutional sources aim to address the potential risks of privacy violations that users may encounter consequent to giving consent when joining the online social media platforms. The act of consenting by users on these platforms allows them to exercise their right to autonomy – which has a significant moral role.
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
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
A practical review of the effectiveness of artificial intelligence in the automated review of legal contracts
(University of the Witwatersrand, Johannesburg, 2023) Fouché, Jacques Gerrit
This 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
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 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
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
Artificial intelligence and automated decision making under the GDPR and the POPIA
(University of the Witwatersrand, Johannesburg, 2024) Goldman, Gavin David; Zitzke, E.
This analysis considers the concepts of AI and machine learning and examines their reliance on the processing of personal data and the challenges this poses from a data- privacy and human-rights perspective, particularly in relation to profiling. It evaluates the effectiveness of the General Data Protection Regulation (GDPR) and the Promotion of Personal Information Act 4 of 2013 (POPIA) in regulating Automated Decision Making (ADM) and considers the limitations of the right to an explanation under these provisions. The analysis proposes that the current framework of the GDPR and POPIA does not clearly address the issue of explainability and that the focus should shift to providing a data subject with a counterfactual to give practical effect to this right which would better serve data subjects
The authority of the United Nations Security Council to waive the personal immunity of heads of States in the context of international crimes
(2019) Memela, Sinethemba
In 1998, the Rome Statute of the International Criminal Court (ICC) was adopted with the aim of ending impunity for perpetrators of international crimes. Under Article 13(b) of the Rome Statute, if the United Nations Security Council (UNSC) refers a situation to the ICC while acting under Chapter VII of the UN Charter, the ICC is entitled to exercise jurisdiction over the territory and nationals of the relevant State that. In some cases, the referred State is neither a party to the Rome Statute nor has consented to its jurisdiction, and implicated senior officials of the state enjoy immunity. In terms of Article 27 of the Rome Statute, immunity does not bar the ICC from exercising jurisdiction. However, customary international law has historically afforded immunity to senior State officials, such as Heads of State, from prosecution. This dichotomy has been a challenge in international criminal law; specifically, the question of balancing the competing objectives of ending impunity for international crimes while maintaining stable relations and respecting the sovereignty of States by respecting customary international law rules on immunity. This challenge has been compounded by the question of the implication of a UNSC referral, of a non-State party to the Rome Statute, to the ICC on the immunity of implicated senior state officials of that State. Accordingly, this study is primarily concerned with whether, and the extent to which, the UNSC can waive the immunity enjoyed by senior state officials of UN Member States, particularly Head of State immunity, when it refers a situation to the ICC using its Chapter VII powers in the UN Charter. Before dealing with the above, the study analyses the concept of immunity, specifically personal immunity, in international law and the obligations of States to respect such immunity, taking into consideration their obligations under the Rome Statute as applicable.
Balancing the Necessity of Mining Activities and Community Participation in the Pursuit of Environmental Protection
(University of the Witwatersrand, Johannesburg, 2021-01-31) Laka, Tshepiso Josephina
Mining activities result in a myriad of e nvironmental and health impacts. These issues remain to be primarily ignored by mining companies and government departments. The need for public participation in relation to environmental awareness and protection must be taken into account within mining affected communities, u nfortunately, most mining communities are often not aware that they are entitled to an environmental right under the Constitution of the Republic of South Africa, 1996 (the Constitution). Communities suffer from environmental degradation that is inextricably linked to their quality of life and their well- being. Most mining companies fail to protect mining communities from harmful environmental impacts resulting from mining activities. South Africa depends heavily on mining sectors for its socio-economic advancement to such an extent that many millions of people rely on the revenue generated from mine. It is crucial that while mining sectors are pursuing economic developments, the environment, human health and social issues must be afforded the required protection. As such, this thesis explores the environmental harms associated with mining and the importance of meaningful participation. Notably, these environmental injustices can be mitigated by implementing the already established environmental legal framework. This thesis will further critically discuss how mining companies fail to encourage and promote environmental health and wellbeing by not only enhancing public participation within mining affected communities but to also provide communities with concrete measures to promote the ecologically-centred sustainable development
Caught in a gap? An examination and human rights assessment of immigration detention laws and practices in South Africa
(2013-03-19) Tay, Roanna
Abstract: This study examines the laws and practices relating to immigration detention in South Africa. It provides an in-depth examination of the legislation, with reference to known state practices and cases where migrants have been subjected to prolonged and repeated periods of immigration detention. The study highlights gaps in South African law that contribute to certain categories of migrants being especially vulnerable to immigration detention. Four categories are identified: (1) asylum seekers; (2) persons with difficulty obtaining travel documents; (3) stateless person; and (4) persons subject to other prohibitions against refoulement. The study offers recommendations for legislative reforms to fill the gaps in the law that contribute to these migrants’ vulnerability to immigration detention
Competition, Systemic Risk and Financial Inclusion: Assessing the Adequacy of South Africa’s Merger Control Framework for Navigating Policy Frictions Arising in the FinTech Industry
(University of the Witwatersrand, Johannesburg, 2023) Stathoulis, Maria Olga
An adequacy assessment is conducted through outlining a proposed FinTech competition policy that serves as a yardstick in relation to which the merger control framework is evaluated. The adequacy assessment is informed by whether the merger control framework, in theory, facilitates the implementation of the proposed policy principles that are calculated to aid competition authorities to balance competition, systemic risk, and data protection concerns in a manner that optimises financial inclusion. This research report proposes that the balancing exercise built into the merger control framework, the substantial public-interest grounds that factor in industry-specific policies, and the socio-economic framework within which the public-interest provisions should be considered, will enable the competition authorities to navigate policy frictions arising in the FinTech industry. However, the Minister of Finance’s power to exclude bank mergers from the purview of the merger control framework and the Prudential Authority’s stability-orientated primary objectives, have the potential to undermine competition in the banking sector. Competence and resource constraints aside, regulatory authorities can only be as effective as their mandate is appropriate. To create an appropriate regulatory architecture and optimal jurisdiction allocation, reform permutations that redefine the relationship between the Banks Act 94 of 1990 and the Competition Act 89 of 1998 are suggested. Merger control is as much of a transaction-specific analysis as it is context specific. Therefore, a FinTech-traditional financial market inquiry is recommended to enable the competition authorities and, more broadly, the Intergovernmental Fintech Working Group members, to understand the current state, and trajectory, of the FinTech industry
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
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