ItemThe evolution of an effective business rescue statutory regime in South Africa 1926 – 2021.Inguqukomumo yohlobombuso lokomthetho lokutakula amabhizinisi esebenza ngendlela eNingizimu Afrika 1926-2021.(2021) Phungula, Simphiwe Peaceful.; Williams, Robert Charles.ENGLISH ABSTRACT: An embryonic concept of what is now referred to as “business rescue” was enacted as so-called “judicial management” in the then Union of South Africa by the Companies Act 46 of 1926. It had already become clear that companies were substantial drivers of the country’s economy and a vital source of employment. It was therefore highly desirable that companies with economic potential should not be wound up and liquidated if they encountered financial difficulties that could, potentially, be relatively quickly overcome with a return to solvency and viability. The legal process of an attempt to achieve the “rescue” of struggling but potentially viable companies raised many difficulties. How was to be determined whether a company in serious financial difficulty had the potential to return to solvency? What legal process was to be set in train in attempting to achieve that objective? Who was to have locus standi to initiate that process? How would a company’s admission to a statutory business rescue regime affect the legal rights of creditors who had claims against the company and whose own solvency might be imperilled if payment to them was deferred? Who would be in managerial control of the company whilst it attempted to regain solvency? How long would the attempt in this regard be allowed to last? The thesis traces how these and other issues emerged and how potential answers presented themselves and have been refined. The judicial management provisions of the Companies Act 1926 were the first substantial attempt to provide answers to such questions, but the initial legislation was sketchy, vague, and, in some respects, contradictory. Early reported judgments revealed difficulties, and weaknesses in the statutory process, and divisions of judicial opinion soon became apparent. After a lengthy debate, a modern business rescue regime was incorporated into the Companies Act 71 of 2008. The lessons learned from the shortcomings of judicial management and the positive and negative aspects of the business rescue regimes of other countries had been considered, and important contributions were made by an international advisory team. The thesis traces the development of South Africa’s business rescue regime from its beginnings in the Companies Act of 1926 to the present day and provides a critical review of the present law in this regard with suggestions for improvements and further refinement. IQOQA LOCWANINGO: Umqondo osemusha walokho manje osekubizwa ngokuthi i “business rescue” wawushaywe ngokuthi i “judicial managment” endaweni ngaleso sikhathi eyayibizwa ngokuthi i-Union of South Africa ngokoMthetho Wezinkampani 46 ka-1926. Kwase kusobala ukuthi izinkampani zingabashayeli abakhulu bomnotho wezwe kanye nomthombo obalulekile womsebenzi. Ngakho-ke kwakufiseleka kakhulu ukuthi izinkampani ezinamandla kwezomnotho kwakufanele zingaqedwa uma zihlangabezana nezinkinga zezimali ezazingase, zinqotshwe ngokushesha uma kuqhathaniswa nokubuyela ekukhokheni nasekusebenzeni. Inqubo yezomthetho yomzamo “wokuhlengwa” kwezinkampani ezazidonsa kanzima kodwa ezazingase zikwazi ukuphumelela yeza nobunzima obuningi. Imibuzo eyavelwa kwabe kungukuthi kwakuzonqunywa kanjani ukuthi inkampani esebunzimeni bezezimaliy yayinalo ithuba lokubuyela kwi-solvency? Iyiphi inqubo engokomthetho okwakumelwe imiswe ukuze kuzanywe ukufeza leyo njongo? Ubani owayezoba ne-locus standi ukuze aqale leyo nqubo? Ukwamukelwa kwenkampani ohlelweni olusemthethweni lokuhlenga ibhizinisi kwakungabathinta kanjani abanamalungelo asemthethweni futhi abakweletwayo izinkampani uma besengozini yokuthi inkokhelo yabo ihlehliswe? Ubani owayengaba sesikhundleni sokuphatha inkampanini ngenkathi izama ukuhlengwa? Kwakuzothatha isikhathi esingakanani ukuhlenga inkampani? I thesis ilandelela ukuthi lezi zinkinga zavela kanjani nokuthi izimpendulo ezingaba khona ziye zavela kanjani futhi zacwengwa kanjani. Izinhlinzeko zokuphatha kwezobulungiswa zoMthetho Wezinkampani 1926 kwaba umzamo wokuqala omkhulu wokunikeza izimpendulo kuleyomibuzo, kodwa umthetho wokuqala wabe ungacacile, futhi, ngandlela thize, uphikisana. Izahlulelo ezenziwa ngalesenesikhathi zaveza ubunzima, nobuthakathaka enqubweni yomthetho, nokwehlukana kwemibono yenkantolo kwasheshe kwabonakala. Ngemva kwenkulumo mpikiswano ende, uhlelo lwesimanje lokuhlenga ibhizinisi lwafakwa kuMthetho Wezinkampani 71 wezi-2008. Izifundo ezatholwa kumthetho we judicial management kanye nezici ezinhle nezimbi zemibuso yokuhlenga amabhizinisi kwamanye amazwe kwase kucatshangiwe, kanye negalelo elibalulekile lethimba labeluleki bamazwe ngamazwe. Le thesis ilandelela ukuthuthukiswa kombuso wokuhlenga amabhizinisi aseNingizimu Afrika kusukela ekuqaleni kwawo kuMthetho Wezinkampani ka- 1926 kuze kube namuhla futhi inikeza ukubukezwa okubalulekile komthetho wamanje mayelana kanye neziphakamiso zokwenziwa kwentuthuko kanye nokuthuthukiswa okucutshunguliwe. ItemEnhancing South Africa’s traditional knowledge trade through the extension of geographical indications under the TRIPS Agreement.(2018) Balaram, Sujata.; Stevens, Clydenia Edwina.Due to the absence of an international agreement to protect traditional knowledge, divisive measures need to be taken in order to ensure that a governing structure is available, if not to fully protect traditional knowledge but at least to recognise it and limit its usage in order to prevent misappropriation. Geographical indications can provide such a governing structure, on an international level, as it is already entrenched under TRIPS. The hindrance to such governing structure being realised is that enhanced geographical indication protection under Article 23 of TRIPS is only available to wines and spirits. Negotiations have been initiated to see such enhanced protection be extended to products other than wines and spirits, such as traditional knowledge. Such negotiations started off with vigour but have since reached a stagnate point, with developing countries appealing for the reigniting of negotiations, with limited success and progress to no avail. The prime cause for the stagnation is the stalemate debate between the proponents (the EU and its supporters) and the opponents (the USA and its supporters) of the extension and thus recommendations need to be sought to identify measures to appease both parties to reach an amicable agreement. South Africa has seen success with the use of geographical indications to protect traditional knowledge, in light of the Rooibos issue. If such success is garnered through a free-trade-agreement with the EU, then success can be anticipated if geographical indication protection is extended to traditional knowledge on a multilateral level, through the WTO. It is against this background, that the research seeks to identify recommendations that can propel the support of the TRIPS geographical indication extension and see its realisation so that traditional knowledge can be enhanced in developing African countries such as South Africa ItemLaw of money, value and payment.(2002) Eitelberg, Eduard.; O'Shea, A. G.; Somaroo, Harichand.Societies have, since time immemorial, traded real goods and services for expectations of goods and services in some future. These expectations have been associated with tangible and, lately, intangible property - which is generally called money. From the crude quantity theory of money, the purchasing power of a monetary unit is given as 1/ P = T/(Mv). P is the price of the traded goods and services T, M is the total money supply and its turnover rate is v. The total money supply M is dominated by bank credit. In the South African law (and elsewhere) the judicial recognition given to bank credit (1) as money seems to have happened as an unintended side-effect to accepting cheques as delivery vehicles in a cash transfer without any tangible money moving from the transferor to the transferee. In payment of money, the law of property and the law of contract overlap and become inseparable. Both the English and South African laws define payment as performance of a preceding duty. The Supreme Court of Appeal, in the Vereins- und Westbank case seems to have declared an abstract transfer of ownership of money to be payment even though no preceding duty to pay was found. The profit of a financial investment is called interest and is calculated from a simple or compound interest formula. Despite medieval legal, theological and ethical objections, neither is illegal in the South African positive law. The last remnant of the medieval protection of a guilty debtor (often the ruler) at the expense of an innocent creditor is the in duplum rule. This is particularly obnoxious during modern rampant inflation that was unknown and could not be predicted when only metallistic money was in use. The influence of the in duplum rule is being limited by recent restrictive judgments in South Africa and in Zimbabwe. In South Africa, the Government has a constitutional duty to ensure that its subjects are not deprived of property. Specifically, the Constitution prescribes in Section 224(1) that the South African Reserve Bank must 'protect the value of the currency'. It is shown that the recent Reserve Bank policies, unless urgently modified, are in conflict with the publicly promised inflation rate of no greater than 6%. The exchange rates depend fundamentally on the price levels of the traded or tradable goods and services in the respective economies. This leads to the concept of purchasing power parity, which is most accurately reflected in the relationship between interest rates in different states and their relative foreign exchange depreciation rates. It is submitted that the South African Exchange Control Regulations have outlived their usefulness (if ever they had any) and are unconstitutional - at least in so far as they interfere with the South African Reserve Bank's obligation to pursue its primary object 'independently and without fear'. In the main, the South African Courts have applied restrictive interpretation to the Exchange Control Regulations and they have justifiably ignored the public international law obligation of the Republic to recognise the Exchange Control Regulations of fellow IMF members extraterritorially. (1) To money related claims on banks - see the body of the thesis for the two-creditor-two-debtor legal aspects in the 'bank credit'.