School of Law

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15 years on, has the legal Pandora's Box yet to be sealed? : a critical analysis of the majority in the Heavy Metal case and determination of the correct interpretation of the concept of 'control' as it relates to associated ship arrests.
(2015) Mohamed, Faried.; Gevers, Christopher Carl.
In respect of company law, there are two main principles that govern it. The first principle is that a company is a juristic person, having a separate legal identity and thus existing separately from the individuals who stand behind the corporate veil and enjoy the benefits of the company. The second principle is that of limited liability. Collectively, these two principles aim to promote capital investment whilst limiting the liability of potential investors. In the maritime industry however, these two principles serve an entirely different purpose. Ship-owners form ‘one-ship’ companies where each vessel within the same fleet is registered under the name of a different shipping company. Hence due to the separate legal identity of companies, claimants could only proceed against the guilty ship. In 1983 South Africa enacted its reform legislation by introducing the Admiralty Jurisdiction Regulation Act with the aim to provide consistency and certainty within the legal sphere of the maritime industry. In doing so, the legislature saw the opportunity to remedy the mischief created by ‘one-ship’ companies by introducing the associated ship provisions which based the central enquiry in such arrests on ‘common-control’ rather than ‘common ownership’. Thus, the purpose of the provision was to provide claimants with a mechanism to penetrate complex corporate structures so as to locate and hold the true debtor in a maritime dispute liable. The general understanding therefore in associated ship cases was that the provisions concerned themselves with the ultimate or actual control of a shipping company. The leading case in interpreting the term ‘control’ is the Heavy Metal wherein the SCA adopted a restrictive and narrow understanding of ‘control’ which centralised the enquiry on the registered shareholder of a ship-owing company and in doing so, allowed for the existence of two repositories of control. It therefore allowed an association to be formed on the basis that the companies in question shared a common majority nominee shareholder without considering the fact that such a person may hold the said shares for two different entities. In this manner, the judiciary opened a ‘legal Pandora’s box’ in the sense that it created confusion and uncertainty in respect of the meaning to be acquainted to the term ‘control’. This dissertation will trace the background and history of the associated ship provisions so as to determine its nature, scope and underlying purpose. It will also conduct an investigation of the provisions and the relevant case law in order to determine what is meant by the term ‘control’. Lastly the dissertation will determine the correctness of the Heavy Metal case and its legal impact on courts applying its ratio.
A critical analysis of the legislative and policy response to protect transgender children in South African schools.
(2023) Govender, Tremelle.; Holness, Willene Audri.
The transgender community’s visibility has seen a global increase in the last few years. South Africa’s Constitution is praised for its progressive nature with the theme of inclusivity and equality echoed through its clauses. As institutions embodying the values of the Constitution, South African schools become pivotal spaces for fostering inclusivity and safeguarding the rights of transgender students. The study delves into the existing legal and policy landscape, evaluating its efficacy in addressing the unique slate of challenges faced by transgender children in schools. The study’s findings reveal strengths and shortcomings in the current legal and policy framework, providing insight into gaps hindering adequate protection. The analysis of South Africa’s legislative framework emphasises a need for a nuanced and comprehensive approach to address the diverse needs of transgender children with consideration for aspects of identity, mental health and social integration. This critical analysis contributes to the broader conversation on inclusivity and equality and highlights the necessity of proactive action to nurture a supportive educational environment for all students.
A critical analysis of the requirements needed for the commencement of business rescue in South Africa.
(2023) Chikuvanyanya, Tafadzwa Munashe.; Subramanien, Darren Cavell.
The ripple effects of COVID 19, the rise of inflation, interest rate hikes, and the negative effects of the Russia-Ukraine war are some of the reasons that have led to the poor performance of global economies. South Africa is no exception to the negative impacts of these global challenges. South Africa, which is still a young democracy, faces unique challenges such as load-shedding. Load-shedding has adversely impacted all businesses that are being forced to operate at a loss because of the additional costs they are incurring to procure alternative electricity sources to keep their businesses operational. Interest rate hikes have also impacted South African businesses to the extent that they have been described as a ‘punch to the gut for businesses already struggling. These challenges bear negative consequences on the South African economy at large because both small and big businesses may be forced to default on their payment obligations due to insolvency. Insolvency usually results in businesses being placed in liquidation, which may result in their ultimate closure and job losses. To avoid this, South Africa, like other countries, has adopted a corporate rescue process as an alternative to liquidation proceedings. This corporate rescue process is commonly referred to as ‘business rescue’, and it is necessary to analyse its requirements to ensure that the maximum potential of this process is realized and that companies benefit more from it
A critical investigation into the reality of decolonising labour law: a South African perspective.
(2023) Mabaso, Fanelesibonge Craig.; Tenza, Mlungisi Ernest.; Whitear-Nel, Nicola Jane.
This study analysed labour law as more than just what the law is, at face value. The study examined labour law as being influenced by socio-political narratives. To better understand these socio-political narratives and their influences on labour law, the study posed much needed questions concerning race, gender and class in relation to labour law. The study noted that all of these socio-political narratives have been ignored social issues, which are collectively at the forefront to understanding decolonisation. The crux of the dissertation was the reality of decolonising labour law in South Africa. The study used the principle of decolonisation as means of addressing the issues faced by workers in the workplace. The study viewed decolonisation as a suitable tool of analysis in that it allowed the study to use the concept of intersectionality. Linking race, class and gender as the primary points of the oppression of employees in South Africa. The study addressed the different terminologies that were at the centre of the thesis, such as Whiteness, Blackness and African. The importance of this is that these terms are often used interchangeably but within the context of the study, they each play a different role in understanding the racial makeup of the South African workplace. The study presented a discussion of labour law advancing access to justice for the working class through the rejection of the civil litigation principle of costs orders following the result. This discussion highlighted the need to not simply burden workers with costs orders that would deter the poor, often black, workers from fighting injustices in the workplace. The study dealt with the omission of domestic workers from the definition of ‘employee’ in COIDA and provided a discussion on the intersectionality of this apartheid-rooted exclusion. The study also addressed the issue of the commodification of workers through a complete disregard of labour brokerage and suggestion that employees be given a right of first preference in share schemes. The study also discussed the appropriate remedy to racism in the workplace. Finally, the study addressed the link between race, class and the right to strike.
Abandonment in marine insurance law : an historical comparative study.
(1996) Marnewick, Christiaan Georg.; Staniland, Hilton.
This study follows upon an LLM thesis in which the writer submitted that South African marine insurance law should be allowed to develop by way of a codification process which co-ordinates research of the principles of Roman-Dutch law . Abandonment is defined as a special remedy available to the assured under a marine insurance policy in in special circumstances. It is related to the indemnity principle and subrogation and , operates as a method of transferring real rights. The reasons for the research are examined and the historical-comparative method is proposed as the appropriate rearch method. An historical review of the origins and early history of indemnity insurance is undertaken . It reveals that abandonment is an original institution of marine insurance which has been imported into to the legal systems of the countries of western Europe and England . After recounting the historical developments in customary and statute law pertaining to abandonment spanning the period from the birth of marine insurance to the end of the eighteenth century, the principles of abandonment currently applicable in Dutch, German, French, English and American law are analyzed and compared in order to determine what the basic rules of abandonment are. In this process certain common principles of abandonment are identified and arranged into a set of basic rules. The theoretical implications of abandonment and its relationship with the indemnity principle and subrogation are considered in order to arrive at some conclusions with regard to the origins of abandonment, its functions as a servant of the indemnity principle and its links with economic loss as a species of indemnifiable loss. It is concluded that the purpose of abandonment is to compensate for a loss which is wholly or partially economic in nature. Abandonment as a means of transferring real rights without formal delivery of the abandoned things is discussed against criticism by others that abandonment does not have the effect of transferring real rights in South African law. The development of abandonment principles in South Africa after 1652 is investigated against the background of the original customary law which applied in Europe, the local ordonnances which were promulgated in the towns of Holland between 1563 and 1744, the writings of the most important Roman-Dutch authors and developments in South African statute and case law. This allows the basic principles of abandonment in the law of the countries used for comparison and arrived at by the historical-comparative method to be compared to the principles of abandonment in the Roman-Dutch law of the seventeenth and eighteenth centuries and to current South African law. It is concluded that, whilst there are unimportant differences, the South African common law recognizes the same basic rules of abandonment as the classic Roman-Dutch law, recent Dutch law and current German, French, English and American law. In the- discussion of South African case law it is pointed out with reference to Roman- butch, English, French and Dutch authorities that an injustice has been done in the case of the 'Morning Star' . Three general recommendations are made with regard to the future development of South African law, namely that total loss should be recognized as a separate category of loss, that it is unnecessary to import the concept of a constructive total loss into South African law, and that the insurer should be allowed to decline receiving transfer of ownership of the abandoned ship or goods. The principles of abandonment are also stated on three different bases, allowing the South African legislature to choose its own model, namely: those which apply in South African law as the inherited Roman-Dutch principles; those which apply in English law, firstly as they applied prior to codification in 1906 and secondly as they now apply under the Marine Insurance Act 1906; and lastly those which the writer recommends should be taken up in a proposed South African marine insurance act . Case law is stated as at 31 December 1995. In the case of English law the wealth of material has made it necesary for the author to use his own discretion on the question whether any particular case or work was worthy of a mention .
The abused women in South Africa : statutory implications and the use of mediation to resolve domestic violence disputes.
(2000) Moodaliyar, Kasturi.; Louw, Ronald.
No abstract available.
Access to affordable life-saving medicines : the South African response.
(2012) Joseph, Coral Jade.; Vawda, Yousuf Abdoola.
Patent protection grants the patent holder with a market monopoly, free from market competition allowing the patentee to charge any price; therefore medicines are sold at prices much higher than the marginal cost of production and distribution. The connection between international trade and intellectual property has aggravated human rights and public health concerns surrounding the inaccessibility of essential medicines. The World Trade Organisation‘s Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement is an international instrument which has greatly impacted intellectual property rights protection and access to medicine. It has globalized intellectual property law by obliging all Members to subscribe to the minimum international standards of protection for intellectual property. South Africa is an example of the issues faced whilst attempting to bring their domestic laws into compliance with the Agreement. The government had to attempt to strike a balance between creating an effective intellectual property infrastructure whilst realizing the therapeutic needs of those affected by HIV/AIDS. The South African Patents Act 57 of 1978 did not comply with the Agreement and was subsequently amended in order to bring its patent legislation in full compliance with the Agreement. Currently, South Africa grants patents for new uses or formulations of existing medicines consequently lengthening the period of patent monopoly by allowing pharmaceutical companies to obtain new patents for slight modifications to existing medicines. It is submitted that South Africa‘s patent legislation is more extensive than is necessary under international law, examples of this being disclosure standards and the process for compulsory licensing. In addition, it has not made use of provisions in its existing law to take measures to improve access to essential medicines, nor has it implemented legislative amendments consequent to the flexibilities established in the Doha Declaration. This dissertation seeks to review the steps South Africa has taken in its compliance with the TRIPS Agreement with respect to the relevant intellectual property legislation that has been enacted, including its implications for access to essential medicines. The intention behind this dissertation is to assess the efficacy of the intellectual property legislation in South Africa and its impact on access to medicines.
Access to antiretrovirals : are there any solutions?
(2008) Broster, Emma Justine.
In South Africa 1 000 people die of AIDS everyday and 100 000 more people require ARVs every year. There is therefore an urgent need to provide access to ARVs andother essential medicines. The South African Constitution requires the government totake reasonable measures to ensure access to health care. The government has cited financial constraints as the major ohstacle to fulfilling this constitutional imperative. In an effort to stretch their budgetary resource other medium-income countries have used measures such as compulsory licences, voluntary licences and parallel importation. These measures, provided for in the TRIPS Agreement and the Doha Declaration, are available under South African legislation but have not been properly implemented due to a lack of political will. The proper use of compulsory licences by the South African government is vital because all twelve of the ARVs on the World Health Organisation's Essential Medicines List are protected in South Africa by our patent laws. However, in order to issue compulsory licences more easily and quickly the South African Legislature will need to pass legislation which clarifies the ambiguities contained in TRIPS and the Doha Declaration. Other methods to lower the price of medicines include the segmentation of the South African market in order to facilitate differential pricing. The State must balance its use of such measures with programmes to incentivise research and development into neglected diseases and HIV/AIDS. Such programmes will also assist the State's capacity to conduct its own research and development into new medicines, whilst bolstering its domestic pharmaceutical manufacturing capacity. The ultimate solution to South Africa's access to medicine problem is to create a pharmaceutical manufacturing industry capable of producing the most complex medicines, so as to lessen its dependence on drug manufacturers reducing their prices. The way to create a sophisticated pharmaceutical manufacturing capacity is to use the flexibilities in TRIPS and to uphold South Africa's high patent standards. The Constitutional Court's involvement is essential in order to force the State to implement its own policies so as to provide access to affordable medicines.
Access to genetic resources and sharing of benefits arising out of their utilization : a critical analysis of the contribution of the Nagoya Protocol to the existing international regime on access and benefit-sharing.
(2012) Kizungu, Dieu-Donne Mushamalirwa.; Lewis, Melissa Geane.
Prior to the commencement of the Convention on Biological Diversity (CBD), genetic resources were considered to be the common heritage of mankind; this principle gave the right to developed countries to obtain and freely use the genetic material of developing countries. Growing concern over the controversial ‘free access’ system and the monopolization of benefits led to the negotiation of an international treaty, the CBD, to regulate access to genetic resources and the sharing of benefits resulting from the utilisation of such resources. The CBD makes some important innovations. It recognizes that the authority to determine access to genetic resources depends on national governments and is subject to national legislation. Thus, the CBD recognizes state sovereignty over genetic resources and institutes the principles of Prior informed Consent (PIC), Mutually Agreed Terms and Benefit-Sharing. However, the CBD and other international instruments relating to genetic resources have not had the desired effect of preventing the misappropriation of genetic resources and associated traditional knowledge (TK). Developing countries suffered and continue to suffer from the piracy of their resources. This state of affairs has led to the recent adoption of the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to The Convention on Biological Diversity,’ (2010 Nagoya Protocol). This dissertation will consider the contribution of the Nagoya Protocol to the existing global and regional instruments concerning the access and benefit sharing of genetic resources. After explaining the gaps in the existing instruments, it will explore whether the Protocol is a miracle solution to the recurrent concern over misappropriation of genetic resources from biologically rich countries, or whether there is still much work to do to sort out this problem.
Access to healthcare in the age of CRISPR: an analysis of the right to heritable human genome editing in the context of the tuberculosis epidemic in South Africa.
(2022) Kamwendo, Tamanda Agatha.; Thaldar, Donrich Willem.
Tuberculosis (TB) is the leading cause of death from infectious diseases in South Africa and a major risk to global health security. Although notable progress has been made towards TB control, its effectiveness has been limited, partly due to acquired resistance during the first-line TB treatment or poor patient adherence to the treatment. Considering that genetic factors play an important role in one’s susceptibility to TB, it is imperative that all aspects of vertices of the TB triad — a susceptible host gene, pathogen, and environment — be considered in formulating treatment. CRISPR-CasX is a revolutionary new approach to genetic modification that promises effective disease treatment and control in humans. This thesis explores the right to heritable human genome editing in South Africa in the specific context of TB treatment. Against this backdrop is the uncertainty of the ambit of the Constitutional commitment to ensure that all South Africans have access to healthcare services such as gene-editing services. As a result, the application of gene-editing technology for TB treatment is contingent on how this the right of access to healthcare services is interpreted. This thesis endeavours to show how the right of access to healthcare should be interpreted as being inclusive of access to geneediting technology. This study hence serves as an appraisal for South Africans on how to demand access to gene-editing services as a legal right in the search for a suitable treatment for TB. The thesis also provides momentum for South African policymaking by providing recommendations for research and the clinical use of CRISPR therapeutics as a medicinal product as the country has no gene-editing-specific policies or statutes.
Addressing child marriages through law reform : a case study of Zimbabwe.
(2015) Nyamadzawo, Ruth Tafaozwa.; Epstein, Carol Anne.
Abstract not available.
The admission of hearsay evidence, evidence obtained from entrapment and the interception and and monitoring of communications in arbitration proceedings conducted in terms of the Labour Relations Act, 1995.
(2014) Ndlovu, Nduduzo Ayanda.; Whitcher, Benita Mandy.
The law of evidence takes quite a rigid stance in criminal courts in order to afford an accused person a fair trial, as envisaged by the Constitution. It thus follows that the standard of proof in criminal courts is beyond a reasonable doubt. In civil courts the standard is not as high, and is thus based on a balance of probabilities. Nonetheless, civil court proceedings have to afford fairness to all parties in a particular matter. Part of achieving fairness requires adherence to the rules of evidence. In any case, evidence plays a crucial role in determining a case. It is thus of paramount importance to follow the rules of evidence when deciding whether to admit or reject evidence, its evaluation and the weight to attach to it. The Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body established to process labour disputes with minimum of legal formalities, and in the shortest time possible due the amount of disputes that it deals with, in light of its easily accessible services. The CCMA is not a civil court. Thus CCMA proceedings are not civil proceedings. The environment of CCMA proceedings should not duplicate court proceedings because of the informal nature of the CCMA. However, this informality should not cause commissioners or arbitrators to not deal with the merits of any matter in which they are presiding over. A number of arbitration awards have been successfully reviewed due to errors committed by arbitrators, with regard to evidentiary errors. This paper will look into the admissibility of some of the most testing kinds of evidence to deal with, namely: hearsay evidence, evidence obtained from entrapment and evidence obtained from the interception and monitoring of employees telecommunications. This paper will also assert to clarify when such evidence should be admitted and when it should be rejected, in light of the CCMA not conducting civil proceedings yet still having a standard of proof based on a balance of probabilities.
Advance directives and euthenasia in frail care and the terminally ill.
(2015) Chetram, Alicia.; Maropeng, Norman Mpya.
Abstract not available
Advancing human rights in patient care through strategic litigation: the case of Uganda.
(2022) Aruho, Amon.; Mnyongani, Freddy Duncan.
No abstract provided.
Aerospace law : the regulation of space activities and space exploration.
(1985) Reddy, Karunanidhi.; Soni, Ramanlal.
No abstract available.
Affected persons in business rescue proceedings : has a balance been struck?
(2016) Silangwe, Thandeka.; Williams, Robert Charles.
Abstract not available.
Affirmative action for people with disabilities in the South African workplace : compliance and enforcement.
(2015) Makhubele, Decide Friday.; Cohen, Tamara Jodi-Ann.
This study is concerned with affirmative action for people with disabilities in the South African workplace with a focus on compliance and monitoring. Affirmative action is a temporary means to promote equality. In South Africa, the concept of affirmative action is constitutionally recognized in the form of substantive equality. This dissertation examines whether or not employers are complying with the Employment Equity Act by implementing affirmative action. It also seeks to determine whether affirmative action is enforced by the Department of Labour and the courts. The methodology involved a review of the relevant literature, legislation and policies on employment equity and an analysis of case law. The study found that affirmative action is not implemented correctly by most employers and that there is little enforcement. It recommends that employees with disabilities, and trade unions, should challenge employers who are not complying with the Employment Equity Act.
Affording patients the right to access experimental stem cell treatment: a comparative analysis of the legal and ethical consequences.
(2021) Gosai, Yadhna.; Botes, Wilhelmina Maria.
Despite revolutionary advances in the medical field, with specific reference to stem cell technologies and therapies, South African laws do not adequately address gaps that currently exist when it comes to legally accessing the various forms of experimental therapy. The Constitution of South Africa does make provision for the right to access health care, however most stem cell therapies are not yet approved or registered by the relevant authorities and can therefore not be considered as accessible health care. Patients are increasingly becoming aware of their rights when it comes to health care which may be partially linked to the advances in, and knowledge of medical professionals diagnosing and treating auto immune and other previously incurable diseases. While conventional treatments yield positive results, there are a number of incurable and novel diseases that cannot be managed with approved treatments. Stem cell therapies, currently still in its experimental phase have shown some great promise in treating and managing various diseases. The fact of the matter is that that access to such experimental therapies is limited. The rationale behind this is reasonable and justified. The safety and interests of patients are protected by numerous laws and ethical principles as such, if the safety and efficacy of medical treatments have not been clinically proven, it is not in the patient’s best interests to be subjected to such treatment. However, the principle of patient autonomy does support the position that a patient should be able to choose whether or not he or she wishes to be subjected to experimental medicines, such as stem cell therapies or not, on condition that they are fully informed about the risk and consequences of doing so. Against this background, other countries, such as the United States, have enacted laws to address the lack of access to potentially lifesaving treatments. Considering that the benefits of stem cell therapies are becoming more and more evident, access to these therapies whilst not yet fully clinically approved and registered as a medicine or therapy, should, in certain circumstances, be an option for those patients who have exhausted all legally available medicine and treatments without success. Laws that afford access to experimental medicine are seen as both controversial and progressive. A balance must therefore be struck between the individual patient’s right to access and his or her safety. Although expanded access programs have been around for a while, the restrictive nature of these programs often does not necessarily result in access to experimental therapies. It is important that there are viable, legal and ethical ways to access experimental stem cell therapies, whether through right to try laws or through expanded access programs.
African customary law : a constitutional challenge for gender equality.
(1999) Govender, Anneline Michelle.; Perumal, Devina Nadarajan.
No abstract available.
The African Union and human rights : drawing from the European experience of human rights supervision, what impact might the African Union, and the consequent creation of an African court, have on Africa with regard to human rights, African unity, and the issue of state sovereignty?
(2003) Bodasing, Anshal.
The formation of the African Union (AU) holds great promise for Africa with regard to development. It also brings a new dimension to human rights in Africa, with the creation of the African Court. However, the OAUs legacy of human rights supervision and the development of democracy lacks in many areas. Europe, however, has manifested itself into an entity capable of trans-border cooperation and has been able to sustain this over a long period of time. What the OAU has accomplished in this regard is not compatible with the current status of international law theory and practise. There is a need then for change in these areas, and what better opportunity is there, than for a new dispensation in regional governance to apply to relevant policies and programmes to effect this change? This dissertation will endeavour to present a study of how the European legacy in Africa worked to the latter's detriment over the past five or six decades since decolonisation. Yet, there are lessons that may be learnt from Europe's unification that can be successfully implemented in Africa. Further, by analysing the weaknesses of Africa's current system of human rights supervision, and rectifying or reforming them, much may be accomplished in the advancement of the system. Therefore reformation of the system will be discussed at length. However, the success of the system will be evidenced by the commitment of its component members. Thus far the status quo in Africa reflects unwillingness on the part of the state to surrender its sovereignty. This was one of the reasons for the impotence of the OAU. Will the AU be able to overcome this condition? The onus remains on the state to shore up their commitments to the treaties which they have ratified, and to deliver on the promises they have made, because there are solutions, and whether or not they are implemented ultimately depends on the AU.

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