Electronic Theses and Dissertations (Masters)
Permanent URI for this collectionhttps://hdl.handle.net/10539/37939
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Item Bypassing the union: An Employer's Right to Negotiate Directly with Striking Employees(University of the Witwatersrand, Johannesburg, 2016-08) Nkosi, Thulani Gift; Mahomed, ShahedaSouth 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.Item Financial inclusion in South Africa: An analysis of the financial sector regulatory framework and proposals for reform(2018-09) Duma, Amanda; Kawadza, HerbertAbstract Not Available.Item 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, MphoPhysical 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 AfricaItem The International Monetary Fund and the duty to make accountable decisions(University of the Witwatersrand, Johannesburg, 2023) Müller, ErnstItem An assessment of the adequacy of South African fintech regulation: comparative analysis and proposals for reform(University of the Witwatersrand, Johannesburg, 2023) Akhtar, Mohammad NaeemThe 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 regionItem Strengthening Accountability for Sexual and Gender-Based Violence under International Human Rights Law(University of the Witwatersrand, Johannesburg, 2023) Leung, Ka Yan; Chenwi, LillianThis 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 affectedItem The development of e-technology at the pleading And pre-trial stage of civil procedure(University of the Witwatersrand, Johannesburg, 2023) Ferreira, Marius SalomonSouth 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.Item Contractual liability of state-owned enterprises in international business transactions: a South African legal perspective(University of the Witwatersrand, Johannesburg, 2024) Danha, Mutsa DadisoThis 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 OrganizationItem 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, SheenaWith 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 inequityItem “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, FarzaanaThis 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