A comparative analysis of aspects of criminal and civil forfeitures: suggestions for South African asset forfeiture law reform
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
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- Date Issued: 2017
A comparative analysis of mental illness as a defence in criminal law
- Authors: Sitole, Sizakele Elias
- Date: 2007
- Subjects: Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10265 , http://hdl.handle.net/10948/843 , Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Description: This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
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- Date Issued: 2007
A comparative analysis of the development of performers' rights in the United Kingdom and South Africa
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
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- Date Issued: 2011
A comparative analysis of the enforcement of market abuse provisions
- Authors: Chitimira, Howard
- Date: 2012
- Subjects: Corporation law -- South Africa , Insider trading in securities -- South Africa , Securities -- South Africa , Efficient market theory , Securities fraud
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10240 , http://hdl.handle.net/10948/d1015008
- Description: Market abuse practices may directly or indirectly give rise to diverse problems such as inaccurate stock market prices, low public investor confidence, reduced market integrity and poor efficiency in the affected financial markets. This thesis reveals that three major forms of market abuse, namely insider trading, prohibited trading practices (trade-based market manipulation) and the making or publication of false, misleading or deceptive statements, promises and forecasts relating to listed securities (disclosure-based market manipulation) are prohibited in South Africa. However, although South Africa has had market abuse legislation for about 30 years, and must be commended for its great effort to enhance market integrity by combating market abuse practices, the enforcement of such legislation is still problematic. Moreover, in spite of the fact that there is no empirical data or accurate figures quantifying the occurrence and extent of market abuse activities in the South African financial markets, this thesis submits that market abuse practices are still to be completely eradicated. Accordingly, this thesis suggests that the aforementioned problem might have been aggravated by inter alia, various gaps, flaws and/or inconsistent implementation and enforcement of the market abuse legislation in South Africa. To this end, the anti-market abuse enforcement framework under the Securities Services Act 36 of 2004 is analysed to investigate its adequacy. The co-operation and role of the Financial Services Board, the courts, the Directorate of Market Abuse and other relevant stakeholders is also examined and discussed. Moreover, the co-operation between the Financial Services Board and similar international agencies is discussed to gauge its effectiveness in relation to the combating of cross-border market abuse practices. The adequacy of the awareness and preventative measures in place to curb market abuse practices is also investigated to determine whether such measures are robust enough to combat other new challenges that were posed by the 2007 to 2009 global financial crisis. Furthermore, a comparative analysis is undertaken of the enforcement of the market abuse prohibition in other jurisdictions, namely the United States of America, the United Kingdom, the European Union and Australia. This was done to investigate the relevant lessons that can be learnt or adopted from these jurisdictions. The thesis further discusses the adequacy of the recently introduced provisions of the Financial Markets Bill as well as the subsequent market abuse provisions of the Financial Markets Bill 2012. The thesis highlights that the aforementioned Bills are positive attempts by the policy makers to improve the enforcement of the market abuse provisions in South Africa. Nonetheless, the thesis reveals that most of the shortcomings contained in the Securities Services Act 36 of 2004 were duplicated in the Financial Markets Bill and the Financial Markets Bill 2012. In light of this, it remains to be seen whether the market abuse provisions contained in the Financial Markets Bill and/or the Financial Markets Bill 2012 will improve the combating of market abuse practices in South Africa. Consequently, it is hoped that the relevant market abuse provisions of the Securities Services Act 36 of 2004, the Financial Markets Bill and/or the Financial Markets Bill 2012 will be comprehensively reviewed in regard to the recommendations made in this thesis. To this end, the thesis proposes a viable anti-market abuse model and policy framework and sets out both policy objectives and provisions which policy makers could use to strengthen some of the market abuse provisions in South Africa.
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- Date Issued: 2012
A comparative analysis of the rights of the child with particular reference to child soldiers
- Authors: Anwo, Joel Olasunkanmi
- Date: 2008
- Subjects: Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11108 , http://hdl.handle.net/10353/102 , Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
- Description: The recruitment, enlistment and forceful conscription of children as soldiers is a cause for grave concern all over the world and most especially in Africa, where years of factional fighting, civil wars and cross border conflicts have raged, children and youth have been pulled into violence not only as victims, but also as perpetrators. The involvement of children in war posses a severe challenge to prevailing moral and legal norms of the conduct of modern warfare. A major problem and most controversial issue, among others, is on the age at which children should be eligible to become combatants. Children, who may be viewed as a valuable resource due to their often inherent malleability, wish to avenge family member(s) killed in war, sense of immunity to danger, and or feeling of power in participating in the violence. Can the use of children as soldiers be effectively regulated in Africa? All efforts to assist child soldiers in recovering from the devastating effects of wars often unwillingly helped promote the growing number of child soldiers. This is in part because wars are now more fought internally among rebel armies and factions vying for power with the government and thus enlist children into their various armies. The study comes to a conclusion that drastic steps need to be taken to ameliorate this unfortunate situation. This formed the basis of the recommendations offered in the thesis to assist the African continent.
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- Date Issued: 2008
A comparative exposition of Islamic law relating to the law of husband and wife
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
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- Date Issued: 2017
A comparative study of employment discrimination in South Africa and Canada
- Authors: Dlamini, David Vusi
- Date: 2004
- Subjects: Discrimination in employment -- Law and Legislation -- South Africa , Discrimination in employment -- Law and legislation -- Canada
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11039 , http://hdl.handle.net/10948/330 , Discrimination in employment -- Law and Legislation -- South Africa , Discrimination in employment -- Law and legislation -- Canada
- Description: South Africa and Canada have emerged from a history fraught of inequalities, which were characterised by segregationist practices. Such inequalities have served as an epitome of discrimination taking place in the society and the workplace in both countries. Both South Africa and Canada had their discrimination affecting black peoples (Africans, Indians and Coloureds) and Aboriginal peoples (Indians, Inuits or Métis) respectively, women and people with disabilities. In both countries discrimination has polarised society. It is against this backdrop that both countries have attempted to eliminate unfair discrimination through the promulgation of relevant legislation that seeks to, inter alia, provide the regulatory framework in respect of employment discrimination. With the foregoing in mind, the purpose of this work is the provision of a selection of comparable aspects of employment discrimination in Canada and South Africa. This selection comprises discrimination on the basis of race, gender, sex, pregnancy, age and HIV/AIDS. The study uses, as its departure point, both countries’ constitutional framework to elicit the extent to which protection against unfair discrimination is extended to the workforce. Apart from looking at the constitutional provisions towards the elimination of unfair discrimination, reference is made to specific employment statutory provisions in order to provide a comprehensive and explicit picture of how workplace discrimination in both countries is regulated. The study focuses on substantive law from both countries about the above -mentioned aspects of discrimination. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of discrimination could lead to failure to achieve the objectives of the study. It also looks at specific Canadian and South African case law, judgments of the courts and jurisprudence in the field of employment discrimination in order that the reader is presented with a clearer picture of recent developments in addressing workplace inequalities.
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- Date Issued: 2004
A comparative study on the effectiveness of minimum service agreements within the public service
- Authors: De Bruin, Frederik Johannes
- Date: 2013
- Subjects: Strikes and lockouts -- Public utilities , Collective labor agreements -- Service industries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10253 , http://hdl.handle.net/10948/d1020811
- Description: The principle of the right to strike is Internationally recognised. Although the right to strike is not set out explicitly in the International Labour Organizations (ILO) Conventions and Recommendations. It has been discussed on several occasions in the International Labour Conference during the course of preparatory work on instruments dealing with related topics, but for various reasons this has never given rise to international standards (Conventions or Recommendations) directly governing the right to strike. The ILO has determined that the right to strike can be derived from the right to Freedom of Association. The ILO Committee does however recognises certain limitations on the right to strike such as not finding any objection to national legislation that would prohibit the right to strike of armed or police forces. Both the Committee on Freedom of Association and the Committee of experts were also mindful, where public servants are concerned, that the recognition of the right to association of public servants in no way prejudges the question of the right of public servants to strike. The ILO also makes provision for the establishment of essential services as to ensure the continuation of services were the interruption of such would endanger the life, personal safety or health of the whole or part of the population. In this limitation it however holds that a “minimum safety service” may be imposed to ensure the safety of persons, the prevention of accidents and the safety of machinery and equipment In our Constitution, the supreme law of the Country, the right to strike is enshrined and protected in section 23 under the bill of rights. The Constitution however allows enabling legislation, under specific circumstances, to limit a right listed in section 23. The Labour Relations Act (LRA) places a limitation on the right to strike, specifically providing that no person may take part in a strike if that person is engaged in an essential service. Because the right to strike is so important, a limitation of these kind needs to be justified and, to be justified it needs, among other things, to be limited. In section 72 of the LRA provision is made for a minimum service within a designated essential service. Therefore, the ambit of the designated essential service is shrunk to the minimum service and those employees who were denied the right to strike while the broader essential service designation was in place, but who fall outside the defined minimum service, regains the right to strike. The concept of minimum services has however became a matter of regular discussion and debate. The concept of minimum services is not defined to the letter but it is regarded as the minimum service an industry or workplace would require as to ensure interruption of services would not endanger the life, personal safety or health of the whole or part of the population. Our legislatures have also been grappling with the concept of essential and minimum services. They have developed a comprehensive set of amendments trying to address some of the concerns in the composition, powers and functions of the Essential Services Committee (ESC). It is debatable if these proposed amendments would bring forth the necessary change to address these concerns or just become a further bureaucratic hindrance and due to the extreme complexity may even pose a limitation on the right to strike. There is also no differentiation made in the current labour legislation and the proposed amendments, between the public service and the private sector in application of the principle of essential and minimum services. Implementation of these principles in the public services has shown to be extremely challenging. Part of the proposed amendments however makes provision for the specific inclusion of government in the composition of the ESC. It is viewed by the drafters, that the introduction of government nominees to be an innovation to ensure that government is adequately represented on the essential services committee in its capacity as an employer, as a high proportion of essential service matters occur within the public service. This may be viewed as contrary to International standards as the ILO makes clear provision for a differentiated interpretation of the right to freedom of association, the right to strike, essential services and minimum services for people performing functions in the name of the State (public servants). The concept of public servant varies considerably from one country to another. Germany within their governance structure makes provision for a differentiation between civil servants and public servants and the labour rights the two groups may have. In France the military, police and prison services does not have the right to strike. In India public service employees have very limited organising and collective bargaining rights. In Brazil the police and the military do not have the right to strike and there are no legal provisions concerning the right to strike for civil servants. This is in strong contrast with the South African model. The South African Constitution and National Legislation does not allow for a differentiation in the application of labour legislation in the public service and the private sector. The application of the principles of labour relations and more specifically that of the right to strike and the determination of essential services must differ in the public services from that of the private sector. The public service is unique in that when workers in strike action it is not a purely defined labour process between an employer and employees but the public at large becomes a third player within the process. When public servants engage in industrial action they do not only deprive the community of certain rights, but indirectly deprive themselves from the same rights. There has been a resistant fear to implement the provisions of minimum services within the designated essential services within the public service, mainly because of the challenges in conceptualization of the practical implementation of the same. The environment created by the LRA does not specifically provide for the unique circumstances of the public service. The right to strike is a fundamental right for workers and therefore public servants won’t forfeit such. There is a recognition that the State needs to deliver services which will necessitate the application of the principle of essential services. However the answer will be in how minimum services is determined within these essential services. An answer that may not necessarily be contained within the Labour Relations Act.
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- Date Issued: 2013
A comparison between the approaches to unfair discrimination in employment in South Africa and Nigeria
- Authors: Odeyemi, Hannah Olubunmi
- Date: 2012
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10270 , http://hdl.handle.net/10948/d1012054 , Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Description: Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.
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- Date Issued: 2012
A comparison between the South African and Kenyan labour law systems
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
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- Date Issued: 2008
A comparison of the implementation of equal pay for work of equal value with Canadian law
- Authors: Mamashela, Ntsoaki Lydia
- Date: 2017
- Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18332 , vital:28622
- Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
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- Date Issued: 2017
A comparison of the labour dispute resolution systems of South Africa and Swaziland
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
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- Date Issued: 2007
A comparison of the petroleum legislation of gabon and South Africa as instruments of development
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
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- Date Issued: 2015
A comparison of the South African and Namibian labour dispute resolution system
- Authors: Musukubili, Felix
- Date: 2009
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10207 , http://hdl.handle.net/10948/1040 , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Description: The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.
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- Date Issued: 2009
A critical analysis of South African anti-money laundering legislation regarding cryptocurrency
- Authors: Bowden, Susan
- Date: 2019
- Subjects: Money laundering -- South Africa , Money -- Law and legislation -- South Africa Electronic funds transfers Money -- Technological innovations
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42107 , vital:36626
- Description: Cryptocurrencies are decentralised virtual currencies, using blockchain technology to process peer-to-peer electronic payments. In 2009, the first successful cryptocurrency, Bitcoin, was established. As a result of the Internet, cryptocurrencies had soon made their way into South Africa. As such, cryptocurrencies are currently not included under the definition of a legal tender and therefore remain unregulated by the legal framework. This issue is examined within this research project. The objectives were to understand the concepts of cryptocurrency, the relevance in the financial sector, the associated risks and to establish whether regulatory interference is necessary for the operation of cryptocurrency. The legal and regulatory framework of cryptocurrencies within Canada, the United States of America and the European Union were compared to that of South Africa. The research explained that cryptocurrencies are decentralised convertible currencies which are secured by cryptography. It highlighted the risks associated with cryptocurrencies, some of which are detrimental due to the wide use of cryptocurrencies. One of the risks included using cryptocurrencies to launder money. In order to mitigate these risks, jurisdictions such as Canada, the United States of America and the European Union have begun to regulate cryptocurrencies by establishing a legal framework for its operation. However, no such legal framework existed in South Africa for the regulation of cryptocurrencies. As a result, the South African Reserve Bank and National Treasury released position papers, which warn consumers of the associated risks. Therefore, the conclusion was made that regulatory intervention is necessary in South Africa. Following this, the recommendation was made to integrate cryptocurrencies into relevant existing legislation. It was recommended that regulation is the most effective method of combatting money laundering using cryptocurrencies.
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- Date Issued: 2019
A critical analysis of the application of South African business rescue provisions on small to medium enterprises (SMEs)
- Authors: Peteni, Ushimin https://orcid.org/ 0000-0001-6478-9862
- Date: 2021-09
- Subjects: Small business , Business enterprises , Business failures--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/20328 , vital:45655
- Description: Small to Medium sized Enterprises (SMEs) play an essential role and can be described as the crucial bread and butter of the South African economy. They have the potential to create employment and skills development opportunities pertinent for sustainable economic growth. The unfortunate part is that South African Small to Medium sized Enterprises have the lowest survival rates in the world, resulting in high rates of business failure and job losses. This is because the South African economy does not favour SMEs, which are often burdened with structural hurdles including access to funding, lack of access to markets, inadequate skills, uncompetitive regulatory frameworks and technological disruptions. A developing economy such as South Africa cannot grow if companies facing financial difficulty are constantly liquidated. This is because the liquidation system does not offer companies an opportunity to restructure and possibly function within the context of raised concerns. In order to facilitate sustainable SMEs growth, the legislature has come up with statutory mechanisms to support SMEs and save them from total liquidation. Most recently, the Companies Act 71 of 2008 Chapter 6 introduces a business rescue mechanism applicable to all business structures established under the Act. The purpose of business rescue is to provide companies in financial distress with opportunities to reorganise, strategize and come up with useful corporate reorganisation measures which are useful and efficient in saving the financially distressed company and possibly yielding a better return for the creditors than would have been the case if the company was liquidated. This new enactment is seen as both an improvement and necessary reform from its predecessor, judicial administration which has widely been condemned as a failure. However, despite this improvement, the application of the current business provisions to SMEs is questionable. Although Chapter 6 of the Act makes provision for SMEs, it also presents a number of stumbling blocks, including the fact that services of business rescue practitioners are out of reach for most SMEs in South Africa. The purpose of this study is to consider challenges faced by SMEs in the practical application of the current business rescue provisions. This study further emphasizes the importance of South African SMEs, whilst looking at their challenges and how the Companies Act 71 of 2008 provisions, regarding business rescue, assists SMEs. The study looks at the impediments of certain provisions of business rescue and proposes recommendations. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
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- Date Issued: 2021-09
A critical analysis of the deductibility of audit fees
- Authors: Hattingh, Leon
- Date: 2013
- Subjects: Auditing -- Fees , Tax deductions
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
- Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
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- Date Issued: 2013
A critical assessment of credit provision governance in South Africa with a focus on balancing the rights and responsibilities of credit providers and consumers under Section 129 of the National Credit Act 34 of 2005
- Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Date: 2022-05
- Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26715 , vital:65967
- Description: The National Credit Act of 2005 (the NCA), described as the fourth generation of consumer protection legislation in South Africa, is the product of an initiative by the Department of Trade and Industry to address the shortcomings of the third generation of consumer protection legislation, being the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The NCA seeks to unify legislation and departs radically from the old dispensation. Its aims are, inter alia, to provide a fair and non-discriminatory marketplace, to prohibit unfair credit practices and reckless lending, to establish national norms and standards relating to consumer credit and to promote a consistent enforcement framework relating to consumer credit. Through enactment of the NCA the government appears to have focused on the protection of consumers through pre-enforcement procedures, prohibitions on reckless lending practices, prevention of over-indebtedness, alleviation of over indebtedness, and an array of other measures. This protection is deemed necessary due to the relative unequal bargaining power between the credit provider (provider) and the consumer at the time of conclusion of an agreement. This consumer protection has, however, sometimes come at the cost of provider protection. Despite these endeavours, there is still the inevitably common occurrence of breach of the agreement by consumers and the ensuing recovery process available to providers. The relationship between the two major role players – the provider and consumer - is the epicentre of any discussion, theory or legislative enactment pertaining to credit. This study commences with an examination of the historical background and rationale for the NCA, putting into context the rules and regulations which govern the relationship between the parties when an agreement is breached as well as the remedies and recourses that are available to the aggrieved party in terms of the NCA. The common law, which acts as a stabiliser especially when there are legislative changes, is examined in relation to preenforcement procedures, breach and the remedies as affected by the NCA. The equitable balancing of the rights and responsibilities of these two major role players is essential to the continued well-being of not only the parties but also the credit industry and economy as a whole. The most common way for individuals to purchase any large asset like a home or motor vehicle is to approach a financial institution for provision of a loan or credit agreement. To protect its interest, the financial institution would normally register a mortgage bond over the property or hold the title of the motor vehicle until all instalments have been settled. The problem arises when the consumer defaults on repayment of the loan or credit agreement. The financial institution would then be forced to institute legal proceedings to for example foreclose on the bond and repossess the property or motor vehicle. The preenforcement procedure finds itself in the centre of the tug of war between the parties in that this is the area and time that both parties require their rights and interests to be protected. The pre-enforcement procedures determine to a large extent, if properly implemented, how many agreements are seen to successful finalisation versus the alternative of those being cancelled and / or enforcement pursued through litigation by the provider. Successful implementation of agreements and repayment of debt would support a healthy credit industry and therefore, a strong economy. This is also the favoured outcome by the NCA. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines balancing the parties’ rights and responsibilities through its interpretation and application. The section, however, would appear to fall short in that the delivery requirement of the notice is not adequately defined and has therefore resulted in many disputes, interpretations and two subsequent amendments to the section by the National Credit Amendment Act of 2014 and 2019. The purpose of this study is to critically analyse section 129 of the NCA and determine if the rights of both the consumer and provider have been equally protected, with particular reference to the burden of bringing the section 129 notice to the attention of the consumer. The question posed by all parties involved is always inevitably: Must the section 129 notice come to the actual knowledge of the consumer in order for it to be valid? The answer to this question has varied between two schools of thought. The first school of thought, being the pro-provider approach, answers the question in the negative and holds that as long as the provider has met certain delivery requirements their duty has been fulfilled whether or not the consumer actually receives the notice. The second school of thought, being the pro-consumer approach, answers the questions in the affirmative and requires the provider to carry the burden of ensuring the consumer actually receives the notice in order for it to be valid. There are numerous reasons in support of both schools of thought. It is hoped that this study will make a helpful contribution to the balanced interpretation of section 129. The study aims to provide a consistent interpretation of the section whilst balancing the rights of the consumer and provider respectively. , Thesis (LLD) -- Faculty of Law, 2022
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- Date Issued: 2022-05
A Critical Assessment of the Legal and Policy Frameworks for Combating Child Trafficking in the Southern African Development Community
- Authors: Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Date: 2022-09
- Subjects: Child trafficking -- Law and legislation -- Africa, Southern , Child welfare -- Africa, Southern
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26728 , vital:65969
- Description: Child trafficking is a longstanding problem which affects victims and communities in various ways and therefore requires stern action both at the global and regional level. In the Southern African Development Community (SADC) region, the crime is closely connected to the existing socio-economic challenges such as poverty; underdevelopment; lack of equal economic opportunities; HIV/AIDS; and human rights violations. As a result, SADC States are fertile sources, transit zones and destinations for child trafficking. It is internationally recognised that it is States such as those in the SADC region that require a comprehensive approach to prevent and prosecute the crime while simultaneously ensuring victim protection. To this effect, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children is the primary instrument that seeks to provide such a comprehensive approach to child trafficking. Therefore, the current regional and national responses to child trafficking in most SADC States, are influenced by this Protocol. Despite these legislative and policy efforts to combat the crime, statistics show that in recent years child trafficking has been rapidly increasing in SADC. Thus, this research seeks to investigate why child trafficking remains prevalent in the region despite a plethora of measures against the crime. The research, therefore, assesses the effectiveness of the legal and policy measures taken by the SADC States to combat child trafficking using a qualitative approach involving analysis and interpretation of relevant legislation and policies. The primary focus is on the Trafficking Protocol as the main child trafficking instrument at the international level. The role of non-child trafficking instruments in the absence of a community instrument against the crime in SADC is also analysed. This research observes that the increasing child trafficking problem in the region is not mainly because of a lack of adequate legislation or policies but the lack of effective implementation of measures. Without a regional comprehensive and coordinated implementation approach, these measures remain weak and inadequate to fully combat child trafficking in the region. To this end, numerous legislative, policy, institutional and operational reform mechanisms to strengthen the subsisting measures against child trafficking in the region and areas for further research are recommended. , Thesis (LLD) -- Faculty of Law, 2022
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- Date Issued: 2022-09
A critical evaluation of section 332 of the Criminal Procedure Act 51 OF 1977
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
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- Date Issued: 2008