School of Law (ETDs)
Permanent URI for this communityhttps://hdl.handle.net/10539/37938
Browse
140 results
Search Results
Item The meaning and role of the ‘pass-through analysis’ in subsidy and countervailing investigations(University of the Witwatersrand, Johannesburg, 2024) Naidoo, Darshen; Sucker, FranziskaThis research examines the complex issue of subsidies granted to input resources used in the production of goods traded internationally. The focus is on the "pass-through analysis," which determines whether subsidies benefiting input resources should be considered in countervailing measures imposed by importing countries. The study investigates the legal framework governing this analysis, its challenges, and the ambiguity surrounding its interpretation by the WTO Dispute Resolution Body. The research aims to shed light on this vague concept and provide recommendations for clarification. The study begins by exploring the fundamental concepts of subsidies, their benefits, and preconditions, before delving into the intricacies of countervailing investigations. The findings will contribute to a deeper understanding of the pass-through analysis and its implications for international trade law, ultimately informing policy decisions and promoting fair trade practices.Item Cannabis in the workplace: the implications of enever V Barloworld Equipment, a division of Barloworld SA (Pty) Ltd (2022) 43 ILJ 2025 (LC)(2024) Naidoo, Yuveshen; Pillay, KarminiThe Labour Courts in South Africa face many challenges in respect to cannabis-related issues within the workplace. This has been evident ever since the landmark constitutional ruling of Minister of Justice and Constitutional Development v Prince. The recent judgment of Enever v Barloworld Equipment (Pty), A Division of Barloworld SA (Pty) Ltd), highlights some of these challenges. The core challenge is in striking an appropriate balance between the rights between employers and employees, where our courts appear to tip the scale in favouring the employer. In Enever, despite the court acknowledging the fact that zero-tolerance policies prevent employees from being able to use cannabis within their own space, there was no attempt really made to rectify this issue. There is thus a need to provide greater protection for employees and achieve the ultimate aim of labour law, which is to effectively balance the rights between employers and employees. Another challenge relates to the testing for cannabis within the workplace. With no scientifically accurate method currently available for proving cannabis-induced impairment, many employers are of the view that for as long as an employee simply tests positive for the drug then an employer will be entitled to take disciplinary action. Many employers in South Africa make use of tests, such as urinalysis, which does not help in proving impairment but merely indicate recent use. As will be seen in Enever and various other decisions regarding cannabis, our courts appear to overlook the established jurisprudence in relation to testing for similar substances, such as alcohol, with no real justifications as to why they do this. I will consider two sources of foreign law, namely the United States of America (USA) and Canada respectively. Both jurisdictions have successfully struck a balance between balancing the rights and interests of the employee and employer following a fundamental shift in how cannabis is viewed societally and in the workplace. I will look to USA, where there has been a great shift towards accepting and normalising cannabis use, to determine exactly how selected the states effectively balance the rights between employers and employees. I will also consider lessons from Canada to tackle the testing issues for cannabis within the workplace and look at potential testing methods, which South African employers could adopt. It is clear, there is much development still to be made within the legal framework regarding cannabis regulation in the workplace and, as such, I will investigate and critically evaluate key changes that are likely to impact the regulation of cannabis in South Africa.Item Achieving SDG 10: What role for Competition Law and Policy?(University of the Witwatersrand, Johannesburg, 2024) Rampai, Karabo; Vinti, Clive; Beyleveld, Alexnequality has been one of South Africa’s biggest challenges and with stagnating economic growth, the future does not look enticing. If the country wants to ultimately achieve sustainable equality, an extensive legislative scheme that caters for the present and the future is crucial. The implementation of these legislative schemes should not give complete precedence to measures which lead to economic growth. This is because economic growth does not automatically lead to poverty reduction or reduced inequality. Poverty and inequality have increased in most countries over the last decades despite decent economic growth rates because the capital growth mostly goes to the top of the income distribution and does not trickle down. Rather, legislative schemes must apply measures which promote and emphasise participation of historically disadvantaged persons in the economy. This kind of approach is good because it decreases levels of inequality in such a manner that is good for sustainable economic growth. Furthermore, this approach shares similarities with the United Nations Sustainable Development Goal 10: Reducing Inequalities and it is also cognisant of the economic circumstances in South Africa and has had relative success when executed correctly.Item The role of corporate governance in reducing illicit financial outflows In South Africa(University of the Witwatersrand, Johannesburg, 2024) Ramparsad, Tia-SchaeIllicit financial outflows have emerged as a significant concern in South Africa, impeding economic growth, exacerbating social inequality, and undermining the country's developmental efforts. This research report aims to investigate the crucial role of corporate governance in reducing illicit financial outflows in South Africa. By examining the factors contributing to these outflows and exploring the effectiveness of corporate governance mechanisms, this study provides insights into how ethical and accountable business practices can contribute to curbing illicit financial activities. This research report highlights significant corporate scandals in South Africa, underscoring the imperative need for strong corporate governance practices to prevent illicit financial outflows. Despite sterling efforts, various areas require improvement and pose distinct challenges. Enforcing corporate governance practices demands adequate resources and capacity within regulatory bodies. Additionally, challenges include the lack of transparency in beneficial ownership and limited shareholder activism, both hindrances to curbing illicit financial outflows. Collaborative efforts are paramount, with stakeholders, including regulatory bodies, companies, shareholders, and the government, working together to fortify corporate governance frameworks, enhance regulatory oversight, foster ethical business conduct, and elevate public awareness. Critical areas of focus encompass strengthening internal controls, ensuring board independence and composition, addressing executive compensation structures, promoting shareholder engagement, enhancing risk management and internal control mechanisms, and improving regulatory oversight and enforcement. Moreover, fostering collaboration among stakeholders and upholding ethical standards are essential elements in curtailing illicit financial outflows, ultimately fostering transparency, accountability, and sustainable economic development in South Africa.Item Can emoji constitute defamatory content in the context of the South African law of defamation?(University of the Witwatersrand, Johannesburg, 2024) Saloojee, RaeesaThe use of emoji in digital communication often reflects a casual and carefree approach to conveying emotions and sentiments. Frequently added alongside text messages, emoji are seen as harmless embellishments, requiring little thought regarding their meaning or potential consequences. However, these seemingly innocuous additions may carry significant legal implications. Some emoji have acquired secondary meanings and connotations, which may give rise to defamation claims. This research report thus delves into the intersection of defamation law and emoji. Specifically, we examine the potential for emoji to constitute defamatory elements and explore how courts may interpret their usage. Drawing on legal perspectives from the United Kingdom and Australia, this research report sheds light on the evolving challenges posed by emoji in the realm of defamation law. As South African jurisprudence has yet to grapple with the defamatory potential of emoji, this research report explores whether South African courts will follow the lead of their international counterparts in interpreting emoji. This study thus contributes to the evolving discourse on the intersection of technology, communication, and the law in the digital age.Item Zero- Hours Contracts in South Africa: Is there a need for Legislative Intervention(University of the Witwatersrand, Johannesburg, 2024) Serakwana, Promise Babiki MamoketiThe South African law of contract is centred on the principles of freedom of contract and good faith. These principles mean that parties are free to choose what terms to contract on and with whom to contract with, provided that the result is not contrary to public policy. Consequently, the resulting contract is likely to be more favourable to the party in a higher bargaining position. It is noted that there is no general rule providing that contracts must be fair. Considering this, zero-hours contracts freely entered into, which are not against public policy, are valid in South Africa, even if they are unfair. According to research conducted by the CIPD, zero-hours contracts can benefit both parties if they are well regulated. The CIPD research also suggests that the contracts are often only advantageous to employees whose circumstances do not allow them to be engaged in full-time employment. This paper explores the need for the legislature to intervene in regulating zero- hours contracts. It emphasizes the need for the legislature to limit the unfettered exercise of bargaining power in zero-hours contracts to provide for the balancing of employee and employer rights. South Africa’s current legal framework does not specifically regulate the use of zero-hours contracts. In the absence of such regulation, vulnerable employees find themselves at the mercy of unscrupulous employers who exploit the weaknesses in the legal system for their own gain. The effect, thereof, being the blatant disregard of statutory obligations, Constitutional rights and values, and an unfettered exercise of power. The paper further explores the regulation of zero-hours contracts in jurisdictions such as the United Kingdom and New Zealand which have legislation specifically dealing with these contracts and recommends that South Africa should follow suit. It also recommends, inter alia, that the Labour Relations Act be amended to specifically deal with zero-hours contracts, that the use of exclusivity clauses be reserved for specific circumstances, and the amendment of the Basic Conditions of Employment Act to provide for minimum working hours. It concludes that there is a need for the legislature to intervene in regulating zero-hours contracts to ensure the protection of vulnerable employees from exploitation; the fair balancing of employee and employer rights; the advancement of Constitutional values of Ubuntu, fairness, and dignity; and the prevention of abuse of power by parties in strong bargaining positionsItem An Analysis of the Fairness, Sufficiency, and Clarity of Section 71 of the Companies Act 2008 for the Removal of Directors(University of the Witwatersrand, Johannesburg, 2024) Shnketa, Isreal; Katzew, JudithThe removal of directors in corporate governance is a subject of paramount importance, as it pertains to the dynamic equilibrium of power within a company. This research report delves into the intricate landscape of director removal by shareholders under section 71 of the South African Companies Act.1 Specifically, it scrutinises the contested view that shareholders are not obligated to supply motives for their removal decisions, relying solely on an ordinary resolution. This report examines the implications of the above provision on the delicate balance of power shared between directors and shareholders within the corporate structure. It traverses the historical evolution of director removal laws in South Africa, offering a comprehensive analysis of the legislative framework and its historical context. Furthermore, this report aims to critically assess the recent Miller v Natmed Defence (Pty) Ltd2 case, a landmark judgment, which like the case of Pretorius v Timcke3 challenges the conventional understanding of director removal. While Miller is currently binding only within a specific province, its dissent from the Pretorius case on the requirement for shareholders to provide reasons for director removal sparks debate and calls for further exploration by the higher courts. The findings of this research report aim to contribute to a nuanced understanding of the legal intricacies surrounding director removal and its implications for corporate governance in South Africa. The conclusions drawn shed light on the evolving dynamics of power, underscore the need for legal clarity, and beckon for potential legislative adjustments in pursuit of a balanced and transparent corporate landscape.Item Remote work and employee privacy in South Africa law(University of the Witwatersrand, Johannesburg, 2024) Sibanyoni, Aaron BonginkosiIn South Africa, the right to privacy is guaranteed in the Constitution, and is given effect by the Protection of Personal Information Act (POPIA) and protected by other pieces of legislation. This research looks at remote work and employee privacy under South African law. The right to privacy, which is a human right that employees must also enjoy. However, the right to privacy impacts the employer’s right to manage the business enterprise in a remote working setting. Therefore, the research explores the concept of control and subordination, which are central to the employment relationship. The employee is subordinate to the employer; otherwise, there would not be a contract of employment. These characteristics of control and subordination are drastically diminished by the employee’s right to privacy and consequently impact negatively on the employer’s entrepreneurial control. Employers should take note that it is not the “activities” of the employee that matter but the “purpose” of monitoring, which must be balanced with the rights and interests of both parties in the employment relationship.1 South African law does not adequately deal with the issue of employee privacy in the context of remote work. South Africa can draw lessons from jurisdictions where this aspect of the law has been significantly developed. These jurisdictions include EU countries such as Germany, France and the UK. In the US, protection of privacy is based on liberty which requires a person to prove the expectation of privacy to enjoy the protection and therefore individualistic in nature, while in the EU it is based on dignity as a fundamental right which gives the power of individuals to control information about themselves and therefore communal.2 The research explores these two analytical approaches and argues that the South African Constitution elevates human dignity and has been confirmed by the Constitutional Court in AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services (Media Monitoring Africa Trust) and a related matter 2021 (4) BCLR 349 (CC)(Amabhungane). Thus, it should be the yardstick as in the EU countries instead of the US culture. This research makes a proposal for South Africa to adopt legislation or a Code of Good Practice on remote work and employee privacy.Item Limitations of litigation as a tool for achieving social change: A perspective on South African and Zimbabwean litigation environment(University of the Witwatersrand, Johannesburg, 2024) Sigwegwe, Dumolwethu; Samtani, SanyaThis research report seeks to investigate and analyse the limitations of using litigation as a tool for achieving social change in the legal environments of South Africa and Zimbabwe, with a particular focus on relevant provisions in the Constitutional framework. In other words, I consider how litigation related to socioeconomic rights, with a particular focus on the right to healthcare, has been limited in its capacity to bringing about societal transformation. Juxtaposing these legal systems should highlight the opportunities and challenges of utilising litigation. In South Africa the 1996 Constitution, and in Zimbabwe the 2013 Constitution play a significant role in shaping socio-economic rights, enhancing access to justice, and promoting social transformation. Further, the Bill of Rights and the Constitutional Court all contribute to the potential effectiveness of litigation. Relying on the Constitutional framework, literature concerning the effectiveness and critique of litigation, and case studies from South Africa and Zimbabwe the article illustrates the potential and shortfalls of litigation in advancing socio- economic rights. The argument highlights that litigation has made substantial advancements in effecting systemic and policy changes, as well as in holding governments accountable. However, it also emphasizes the existence of potential obstacles, such as the failure to implement court orders, institutional barriers, and structural or procedural issues that require addressing in the pursuit of societal transformation. The research report concludes that whilst litigation can be seen as just one tactic in the repertoire for challenging societal and systemic injustices, it must however, be complemented with a broad range of strategies that include advocacy, grassroots movements, and policy reform, to address the complex underlying causes of social issues effect social change in South Africa and ZimbabweItem Intimate partner killings, criminal defences and the law(University of the Witwatersrand, Johannesburg, 2024) Sithole, Patience ThandekaThe Constitution of the Republic of South Africa, 1996 in section 9 resoundingly guarantees the ‘equal protection and benefit of the law’ to all who are within the Republic. This undertaking is a crucial part of the South African democracy, and it is a manifestation of the law’s progression from being grossly and arbitrarily discriminatory, to becoming more inclusive and considerate of people from all walks of life. Contrarily though, a close analysis of some aspects of the law as it currently exists, shows that equality before the law is more aspirational than it is a reality. Women, in particular, are often overlooked and subjected to unfairness by the same law that, in theory, vows to protect them. The lack of accommodation of abused women who kill, by the private defence ground of justification, under criminal law is an apt example of the law’s marginalisation of women. This marginalisation manifests itself in the rigid approaches to cases of abused women who kill. The typical approach is the objective ‘reasonable person’ standard which is effective in most instances but has fallen short in cases of abuse, as such cases require consideration of the abused woman’s unique set of circumstances. This calls for a closer exploration of the specific and subjective factors of women’s experiences in order to comprehend the nature and extent of the abuse. Although expert witness evidence is admissible in these cases, the weight placed on such evidence is minimal, often leading to a miscarriage of justice. In view of that, this paper serves to play a dual role of re-identifying the inadequacies that continue to exist under the private defence laws in South Africa, while simultaneously providing recommendations on how the law can be developed to successfully address these inadequacies.