Faculty of Commerce, Law and Management (ETDs)
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Item Beyond the click: Informed consent in the age of cookies(University of the Witwatersrand, Johannesburg, 2024) Finger, Mokone; Visser, C.Rapid evolution of technology and the internet has enabled vast data to be exchanged amongst people. These changes have introduced extraordinary data collecting methods that also recognise traces of personal information when users browse the internet. An example of such a tracking method is a cookie. Cookies, while they serve to enhance user experience, tend to collect and store personal information of data subjects without their knowledge and consent. For this reason, they raise a question of a threat to privacy and consent of data subjects. This research report principally examines the legal sufficiency of a mere click of a button in establishing valid consent for processing of personal information, which includes the collection, storage and transmission of personal information through cookies. The Protection of Personal Information Act 4 of 2013 (the POPI Act) was enacted to give effect to the constitutional right to privacy. Thus, the POPI Act operationalises the constitutional right to privacy by providing a framework for the processing of personal information, even though its application has shortcomings related to consent and cookies. In order to interpret the POPI Act, this paper will integrate the common law and the General Data Protection Regulation 2016/679, based on the adjudicative subsidiarity doctrine, as constitutional backdrop instruments to determine the threshold for consent in the POPI Act when using cookies.Item A practical review of the effectiveness of artificial intelligence in the automated review of legal contracts(University of the Witwatersrand, Johannesburg, 2024) Fouché, Jacques GerritThis 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.Item Oil Price Shocks and Financial Stress in Sub-Saharan African Countries(University of the Witwatersrand, Johannesburg, 2024) Frost, CallumThis study examines the nexus between financial stability and oil shocks within South Africa, a net-oil importer, and Nigeria, a net-oil exporter. A signal theory approach utilising pAUROC analysis is used to capture relevant indicators. Furthermore, sub-market indices are weighted using a diagonal BEKK-GARCH model, allowing for time-varying cross-correlations to determine sub-market weights, allowing the constructed financial stress index (FSI) for each economy to focus on systemic events of financial stress. The FSI for each economy is then incorporated into a SVAR model which disaggregates oil demand shocks into three components (economic activity, oil consumption demand, and oil inventory demand) following the framework of Baumeister and Hamilton (2019) to capture the effects of oil market shocks on financial stability. This paper finds that positive shocks to oil supply, economic activity, and oil inventory demand tend to reduce financial stress in South Africa. Interestingly, demand driven increases in the real price of oil reduces systemic stress, even though the economy is a net-oil importer. Oil supply shocks and economic activity shocks tend to have no significant effect on Nigerian financial stress while demand driven increases to real oil prices tend to decrease financial stress. Interestingly, shock increases in demand for oil inventories tends to raise financial stress.Item Deconstructing the debate around bank account closures on the pretext of institutional reputational risk(University of the Witwatersrand, Johannesburg, 2024) Hayath, Iram; Kawadza, HerbertThe Supreme Court of Appeal in Bredenkamp v Standard Bank found that a bank has a contractual right to close a client’s accounts on reasonable notice, and that a bank is entitled to exercise this right if it perceives that a continued relationship with the client may result in reputational and business risks to the bank (albeit may be premised on allegations which the client denies). Banks have regulatory obligations to (amongst others): (i) manage their reputational risk; and (ii) take steps to avoid their accounts being used by clients to facilitate the proceeds of unlawful activities. Banks are at the receiving end of scrutiny for the latter, including from the media. Banks’ actions of closing accounts for institutional reputational risk are however, often challenged by clients on the basis that these decisions are informed by untrue allegations and are contrary to public policy. A particular consideration is the potential consequences of the clients becoming ‘unbanked’. There are also other issues of contention including that reputational risk is an elusive reason. The competing interests and public policy considerations at play have not yet been adjudicated by our courts. This research report argues that the complexities involved necessitates legislative reform to ensure certainty and fairness on both sides.Item House Prices Against the Wind: Analysis of the use of Monetary Policy to Moderate House Price Bubbles and the Case of New Zealand(University of the Witwatersrand, Johannesburg, 2024) Jinabhai, Nikhil; Creamer, KennethItem The constitutionality of COVID 19 Vaccination Policies and its implications on the right to freedom of religion in South Africa(University of the Witwatersrand, Johannesburg, 2024) Karuaihe, Janee Raahua SiegfriedCovid-19 was declared by the World Health Organisation (WHO) as a disease affecting people over a large geographical area. It caused severe illness to millions of people around the world and the death of over four million people. This impact on people had a direct effect on employers, employees and the workplace. Religions and those practicing their religion weren’t spared from the impact of Covid-19. To control the impact of Covid-19 on the workplace, employers were obligated to take steps to keep the workplace safe and to ensure that businesses can reopen in a manner that would ensure the safety of employees and the public. One of the measures taken by employers to ensure the safety of the workplace was the introduction of vaccination policies. These policies varied from workplace to workplace, but a consistent feature was that employees were required to be vaccinated to return to the workplace. If such workplace were to be implemented without exception, it would fail to recognise the fact that certain religious practices and certain people who practice various religions do not permit vaccines, and where they do, only certain vaccines are allowed. As there is no specific legislation governing the implementation of vaccination policies in the workplace, many employees across South Africa believed these policies unjustifiably limited rights protected by the Constitution, including the right to religion. The courts have accepted that vaccination policies may have the effect of limiting rights that are protected in terms of the Bill of Rights. Still, such limitations may be justified where the employer takes steps and introduces such a policy where necessary to ensure the safety of the workplace.Item Realising the right to healthcare: the legislative frameworks pertaining to private health establishments and private healthcare funding models in South Africa(University of the Witwatersrand, Johannesburg, 2024) Labuschagne-Kom, Lindsie; Mahery, Prinslean; Martin, BlakeThe Universal Declaration of Human Rights recognises access to healthcare as a fundamental human right and is guaranteed by the South African Constitution. An analysis of this right reveals that it comprises of two main components, namely financing and delivery of healthcare services. These are fulfilled by the government in the public sector and by private healthcare funders and private health establishments in the private sector. However, an analysis reveals that access to healthcare is substantively inequitable due to the fragmentation of the health system and unveils significant inefficiencies in the private sector that impeded realisation of this right. This dissertation examines the cause of this fragmentation and the inefficiencies within the private healthcare funders and private health establishments market. It investigates how these issues can be resolved to realise the right to healthcare. This study applied a qualitative desktop review of governmental policies, direct and incidental legislation, and multidisciplinary fields of academic reviews such as competition, healthcare, constitutional law and international policies to evaluate the effect of historical, contemporary and prospective policies and legislation, on access to healthcare. This analysis reveals that access to healthcare was historically manipulated to achieve political ideology through a legislative framework that provided the foundation for private funding models and private health establishments to flourish. This occurred at the expense of the public sector and embedded the fragmentation and inefficiencies in the health system. Notwithstanding the enactment of the Constitution, which envisioned a transformed and equal society, access to healthcare remains substantively inequitable. This is due to governmental failings to regulate these stakeholders. Given this state of affairs, the government intends to enact legislative reform through the National Health Insurance Bill to meet its constitutional mandate to realise the right to healthcare. An analysis of the Bill’s framework, however, reveals that it will have a cascading effect with the collapse of the private healthcare funders and private health establishment markets. This will ultimately cause a regression in access to healthcare and impede the practical realisation of this right. An investigation into alternative mechanisms to fulfil the right to healthcare reveals that incorporation and collaboration with private healthcare funders and private health establishments is a pragmatic alternative to the National Health Insurance Bill that will aid with the practical realisation and vindication of this right. These findings indicate the need for government to improve its stewardship of the health system and provide pragmatic solutions to reform the legislative and regulatory frameworks governing these stakeholders to resolve inefficiencies and to foster collaboration to fulfil the right to healthcare.Item The price effects of a hospital merger: a case study of the Mediclinic Southern Africa (Pty) Limited (Mediclinic) and Matlosana Medical Health Services (Pty) Limited (MMHS) merger(University of the Witwatersrand, Johannesburg, 2024) Laurence, Marcelle; Mncube, LibertyThis study evaluates the assessment conducted in the prohibited Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services (Pty) Ltd (MMHS) proposed merger. The study employs a qualitative approach, centred on a case study methodology, to assess the theories of harm discussed. It aims to provide insights into the adequacy and outcome of the competition authorities’ assessment drawing comparisons to international literature and policy implications. It uses economic theory to analyse and show the significance of robust and nuanced regulatory frameworks in healthcare merger evaluation.Item Multidimensional measure of energy poverty in Lesotho(University of the Witwatersrand, Johannesburg, 2024) Lehema, Nthati ‘Mabatho; Ye, YuxiangThis study employs the Alkire-Foster methodology to assess multidimensional energy poverty in Lesotho, using data from the Household Energy Consumption Survey in Lesotho. The investigation considers three dimensions, cooking, lighting, and water heating in constructing the multidimensional energy poverty index. In terms of the three dimensions, the overall findings indicate that at the national level, approximately 61% of the households experience multidimensional energy poverty. Upon decomposing the Multidimensional Energy Poverty Index (MEPI) by the settlement type, the results indicate that 83.50% of the households in rural areas are multidimensionally energy poor while 51.20% of the peri-urban households are deprived. In the urban areas, only 19% of the households experience energy poverty. In decomposing the MEPI by the gender of the household head, the results demonstrate that around 59.40% of female-headed households exhibit multidimensional energy poverty than their male-headed counterparts with 54.40%, with an average intensity of 91% of the weighted indicators. Decomposition by districts reveals that Butha-Buthe, Mokhotlong, Qacha, and Thaba-Tseka have over 80% of the multidimensionally poor households. Additionally, the study highlights the prevalence of traditional cooking fuels in rural areas, with minimal reliance on electricity. This pattern shifts with urbanization, where traditional fuel consumption decreases.Item Examining the relationship between governance and gross fixed capital formation in Sub-Saharan Africa(University of the Witwatersrand, Johannesburg, 2024) Machobani, Dennis; Mahonye, NyashaThis study delves into the intricate relationship between governance and Gross Fixed Capital Formation (GFCF) in Sub-Saharan Africa (SSA), aiming to address the substantial infrastructure deficit in the region. Employing the System GMM methodology, the primary research question focuses on understanding the correlation between institutions and GFCF in SSA. Subsequent sub-questions delve into the relationships between political stability and GFCF, as well as the composite index of institutions and GFCF. Policy recommendations highlight the pivotal role of good governance, advocating for reforms, institution strengthening, and enhanced transparency. The study's outcomes emphasize the intricate interplay of diverse factors impacting GFCF, prompting policymakers to adopt comprehensive strategies for sustainable development. Persistent effects of past investment choices underscore the necessity for continuous efforts to incentivize investment. Key determinants such as trade policies, current account balances, gross domestic savings, and government expenditure are identified, suggesting targeted interventions to stimulate private sector engagement and cultivate an environment conducive to heightened investment in Sub-Saharan Africa.