Electronic Theses and Dissertations (Masters)

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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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    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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    “What are the preferential trade implications for South Africa’s change in status from a developing country to a developed country in US law?”
    (University of the Witwatersrand, Johannesburg, 2023) Chand, Farzaana
    This paper addresses the question: what are the preferential trade implications for South Africa’s change in status from a developing country to a developed country in US law? To answer this question, this paper considers international agreements and US legislation. This essay examines the implications of being a developed country by considering the background of developing and developed countries, and the difference in advantages of these countries in trade treaty negotiations. To address international trade concerns, the GATT was established. This essay briefly considers the GATT as the non-discrimination principle is currently incorporated in the WTO. This essay addresses the non-discrimination principle, by considering the Most Favoured Nation principle and its exception – the Enabling Clause. Thereafter, this essay examines the Trade Act as US legislation that incorporates special and differential treatment provisions. This essay discusses the US Generalized System of Preferences (GSP) as a condition under the Enabling Clause, that allows for preferential treatment of developing countries. Furthermore, this essay discusses the AGOA as it is beneficial to South Africa since South African products – such as textiles and apparel – benefit the most from it. This essay argues that South Africa’s agricultural sector will be impacted, if South Africa’s designation changes. This essay considers the IIPA’s petition to place South Africa’s GSP eligibility under review, and additionally it examines the standard of implementation of the TRIPS Agreement. This essay submits that the African Continental Free Trade Area Agreement may be turned to, which may divert developing countries' reliance on preferential schemes, to each other
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    The sub judice rule in South Africa: a tool for justice or a shield for the powerful?
    (University of the Witwatersrand, Johannesburg, 2023) Phahle, Sello Ivan; Albertyn, Cathi
    This research report delves into the sub judice rule in the South African context and its impacts on the constitutional right of freedom of expression. The report analyses how elected officials wield the sub judice rule as a protective barrier to responding to questions that relate to matters before a competent court involving them, which tends to happen in cases where there is no actual risk of prejudicing the proper administration of justice by providing answers to the questions posed. This report argues that the misapplication of the sub judice rule undermines the fundamental principles of accountability, transparency, and openness, which are the cornerstones of our democracy, and also infringes the mandate of the media to communicate information to the public and the public’s right to access and consume such information. It further contends that the continued abuse and misuse of the rule calls for its reform through legislative measures. Such legislation must delineate circumstances in which the rule may be rightfully summoned, maintain the integrity of the rule and ward off its misuse to conceal information without a valid cause
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    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
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    Extended locus standi for representative complaints in terms of the South African protection of personal information act 4 OF 2013
    (University of the Witwatersrand, Johannesburg, 2023) Morwenyane, Emmanuel Letlhogonolo; Andanda, Pamela
    The Protection of Personal information Act 4 of 2013 does not seem to provide for lodging of representative complaints in order to vindicate data subjects’ rights in terms of section 73 of the Act. This paper critically analyses the approach taken in the Act and argues that the approach may cause inefficiencies when complaints that arise from the same cause of action or from the same incident are lodged on an individual basis with the Information Regulator. The recent mass data breaches in South Africa have created an incentive for the Act to be amended to provide for representative claims to be lodged in the form of class complaints not only to accommodate the data subjects, but other stakeholders such as the responsible parties themselves who may be affected by the infringement of data subjects’ rights in terms of the Act. By shining a light on cases like Nkala, the research shows how principles of locus standi in class actions can be incorporated into our data privacy legislation in order to facilitate the vindication of rights of data subjects, which may be infringed including data subjects who may not even know about the infringement of their privacy rights. The paper argues for a more liberal approach to be adopted when it comes to class complaints. This will not only improve efficiency when the Information Regulator deals with complaints, which arise from the same cause of action, but also facilitate the administration of justice
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    The constitutional exercise of the right of a bank to cancel its contract with a customer on notice: Revisiting Bredenkamp v Standard Bank of South Africa (SCA)
    (University of the Witwatersrand, Johannesburg, 2023) Naidu, Dhahini; Norje, Minette
    The enforcement of a valid clause in a contract when determining public policy considerations is the subject of this study. This research report investigates the application of the public policy test for determining the enforceability of a valid contractual clause as established in Barkhuizen.1 After Bredenkamp,2 important legal developments arose in this area of law. In this report, the three Bredenkamp judgments are analysed. This discourse shows that Beadica3 provides clarity on fairness and reasonableness in contracts, but the clarity lacks practicality on how courts should determine cases that raise contractual disputes between the parties. Survé4 and Oakbay5 are discussed to examine the bank’s enforcement of its termination clause and the resultant effect on the client. This research report provides recommendations regarding the approach courts should take when considering the circumstances of the strict (unfair) enforcement of valid contractual clauses. It argues that a more practical guide, and assessment on a case-by-case basis, is prudent for judges when considering the strict (unfair) enforcement of a valid clause. The suggestions ought to allow for a more consistent analysis of the enforcement of contracts and its clauses in South African contract law