Technological innovations have significantly caused an unprecedented shift from the orthodox paper-based approach to a continuum of internet transactions. Technology redefined the status quo of traditional markets and resulted in the international community and territorial boundaries merging into one population of cyber citizens in the electronic commerce sphere. These new paradigms give rise to legal challenges which are precipitated by legal aspects of electronic commerce necessitating for the legal regulation. The 1996 United Nations Commission on International Trade Law on Electronic Commerce is a global legal framework for legislators. It seeks to address these issues by transposing common law requirements for validly concluded traditional contracts into cyber contracts in order to accord cyber contracts the same legal standing through functional equivalence approach. The Lesotho jurisdiction envisions to embrace this development through the envisaged Lesotho Electronic Transactions and Electronic Commerce Bill 2013. This study is the juxtaposition of the Lesotho Bill and the South Africa s Electronic Communications and Transactions Act 25 of 2002 on electronic transactions provisions covering the legal recognition of electronic messages, time of contract formation, time and place of dispatch and receipt of communication, and the in writing and signature requirements which are applied in online contracts in order to meet the similar common law contract demands for paper based contracts. The interrogation should indicate whether there are any challenges occasioned by the Bill in electronic contracting, and the recommended solutions, considering lessons learned from the South Africa s ECT Act, and compliance with the best international practices. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

The objective of this study is to analyze the compatibility of Mozambican legislation concerning HIV and AIDS (Law 5/2002 of 5 February 2002, Law 23/2007 of 1 August 2007, Law 12/2009 of 12 March 2009 and Law 19/2014 of 27 August 2014) with international human right standards for the protection of the fundamental rights and freedom of people living with HIV (PLHIV) in the workplace, in Mozambique. In particular, it critically looks at issues surrounding freedom of thought and conscience, criminalization of transmission of HIV and its impact on the human rights of PLHIV at the workplace, as well as issues of gender equality and discrimination and stigmatization under Mozambican law. The study attempts to offer some technical and legal solutions to these problems in order to fill the existing gaps in the law, with the intention of bringing the local legal framework in to conformity with the international human rights law that protects PLHIV at the workplace. Several challenges impeded the attainment of the objective of the study. The main challenge was the lack of literature that focuses on the subject. The study concludes that there is the need to incorporate fundamental principles of human rights, such as those of equality and non-discrimination, the right to freedom to movement and freedom of conscience into Mozambican legislation concerning HIV and AIDS in the workplace. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Centre for Human Rights / LLM / Unrestricted

The need for any aviation authority to have an alert and more so, efficient accident or incident investigation mechanism cannot be over emphasized particularly in present day aviation practice. It is thus, in the best interest of any state, not only to be on the high alert in the event of an accident occurring. As well as also having sufficient resources and expertise, to engage in the investigative process. A significant factor to the carrying out of such investigations is off course, the manner in which such process is regulated. More so because investigations of this nature can only be carried out and addressed in a manner stipulated as a matter of law. It would therefore follow, that the legislation which directly regulates the process in which the investigations are carried out should be both succinct and clear. Further, it should also adhere strictly to internationally established guidelines of due conduct in the occurrence of accidents. Aircraft accident and incident investigations are central to the observance of safety in aviation as a sector. Thus, the realization of aircraft safety in aviation is a central function of any aviation authority. It is a role so central, that it is one that is internationally recognised and harmonised. Though not a matter of enforced International law, international best practice in this field is established in a convention, in particular the International Convention on Civil Aviation of 1944, which is more commonly referred to as the Chicago convention. As all treaties and/or conventions this is an opt?in regulatory mechanism, in which only member states bind themselves. Therefore, where a state becomes a signatory to same and has bound itself, it is of crucial importance that it observes the laws or regulations to which it has bound itself. As a matter of course, individual state compliance at times even for mere ratification purposes has proved over time to be a tricky process for numerous states. This is particularly prevalent in developing countries. Some texts have attributed this to various aspects, such as lack of necessary expertise and resources amongst other factors. Whatever the reason however, it is important that states eventually comply with regulations laid out in conventions, so as to achieve harmonisation in processes of International applicability. This research paper seeks to take an in depth look into to the extent to which Swaziland as a member state of the Chicago convention, has achieved compliance with the set guidelines of the Chicago Convention. However, the report will confine itself to aircraft safety as the focal point, and in particular, focus on the specific regulatory mechanisms that relate to aircraft accident and incidents. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

The new Companies Act has recently been introduced in South Africa with specific focus on companies in financial distress and bringing those companies back to their wealth. Prior to the introduction of the new Companies Act, South Africa made use of the judicial management procedure in terms of the Companies Act No. 61 of 1973. This was not a very successful mechanism for distressed companies in South Africa as the Old Act lacked formalised focus on business rescue and mainly focused on terminating the companies through a liquidation process. The fundamental rationality of business rescue proceedings is that a company facing financial difficulty can be rescued which will in the long term result in job preservation, better returns for creditors and higher going concern values for the company, as opposed to simply liquidating the company. This study is thus meaningful in order to ascertain whether or not the introduction of business rescue proceedings will change the culture and/or overall understanding on the effectiveness of rescuing distressed companies in South Africa. Furthermore, this study will also assess and compare South African legislation pertaining to the business rescue regime as provided for in the Companies Act, with similar regimes in Australia and the United Kingdom. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

Freedom and sanctity of contract are principles well found in our law, however, true freedom of contract has become undermined with the increased use of standard-form contracts and this has an effect on equality. An important feature of the supreme law of the country, the Constitution of the Republic of South Africa, is the principle of equality, which is provided for in section 9. The application of this principle has a significant effect on contract law. Inequality of bargaining power occurs when the terms and provisions of a contract are unfair, unjust and unreasonable. This is the case when a term is excessively one-sided or provides for a provision that is adverse to the consumer. The case is the same where one party is afforded greater protection while the other is defenseless. There is a possibility that the Consumer Protection Act, 68 of 2008 (the CPA ), in trying to promote equal bargaining power, has caused the opposite to happen. The consumer has now been afforded with greater protection and more rights. It is perhaps possible to conclude that, whether the contract will continue is now more strongly determined by the consumer, even though the supplier has fulfilled his obligations in terms of the CPA. A party to a contract who enjoys a large amount of bargaining power in comparison to the other party to the contract may be able to persuade others to act while they themselves do very little or nothing at all. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Private Law / LLM / Unrestricted

The study analyses whether taxpayers may deduct for tax purposes losses and expenses which they incur as a result of embezzlement activities. Whilst the SCA finally got the chance and held that income which is illegally obtained by a taxpayer as a result of illegal activities indeed forms part of the taxpayer s gross income, the SCA is still to get the chance to pronounce whether taxpayers should be allowed to deduct expenses and losses which are incurred as a result of embezzlement activities which may be perpetrated by shareholders, partners, senior managers, junior employees and people unrelated to the taxpayers. The study utilises legislation, cases and commentary from South Africa and other jurisdictions. For a deduction to be allowed for losses and expenditure which are incurred as a result of embezzlement, it must be established that losses and expenditure which the taxpayer incurs as a result of embezzlement are sufficiently close to the taxpayer s production of income as held by the court in CoT v Rendle.1 As required by section 11(a) of the Act, embezzlement losses and expenditure which are incurred in the production of income may be allowed for deduction. For a deduction to be allowed, the risk of incurring the loss or the expenditure must be inherent to the business enterprise of the taxpayer. The study concludes by proffering recommendations which our courts can consider when they get an opportunity to pronounce on whether losses and expenditure which taxpayers incur as a result of embezzlement activities come before our courts again. The study recommends that losses and expenditure which are incurred by taxpayers as a result of embezzlement activities by partners and shareholders in a firm should not be allowed for deduction, and that they should rather be treated as drawings by those partners or shareholders. The study recommends that losses and expenditure which are incurred as a result of embezzlement activities by senior managers in a firm may be allowed if the senior managers did not occupy a position which is akin to that of a shareholder of the company. The study recommends, in line with the decision in Rendle2 that losses and expenditure which are incurred as a result of embezzlement activities by people unrelated to the company should be allowed for deduction. The study also recommends that losses and expenses incurred as a result of embezzlement by junior employees should be allowed for deduction. Finally, the study recommends that as embezzlement activities are secretive and may take long to be detected, the Act must be interpreted flexibly so that taxpayers are not restricted to claiming embezzlement losses and expenditure in the years in which the embezzlement activities occur, as taxpayers may be disadvantaged if they discover embezzlement after some period. Taxpayers should be allowed to claim for tax deductions in the year which they discover the embezzlement losses, even though the losses might have been incurred in prior years. This is the approach which was advanced in the United States cases in Alison v United States3 and United States v Stevenson-Chislett Inc4 and also the approach which is used by the United States Treasury. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

This study argues the relevance of the delimitation debate which has existed for over half a century. The study will show that a legally accepted boundary between air space and outer space would effectively close the existing gap within air and space law which has led to uncertain legal application over space activities. Technology changes in aircraft, spacecraft, combined with the growth of space activity, creates a sense of urgency to have the boundary issue resolved, a situation different from the early days of the space era when it was assumed that a boundary would be defined at a future indeterminate date. This study will examine the legal regime governing airspace and outer space and the growing pressures on questions of sovereignty resulting from the unknown delimitation line. To be followed by a background study of the delimitation debate, discussing the advantages and disadvantages of the approaches furnished in light of the emerging space technologies and space activities. The urgency to resolve the delimitation debate is put into context, by a discussion of the legal significance of the boundary issue in respect of problems arising in space activities and the regulation of space activities. The study will conclude by furnishing a preliminary proposal to resolve the delimitation debate. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

The Competition Act 89 of 1998 (Competition Act), contains merger review provisions that establish a mandatory merger filing regime for merger transactions that meet the statutory definition of a merger as well as the prescribed thresholds for notification.1 The mandatory merger requirements are contained in section 13(1)(b) and section 13A(3), of the Competition Act. These sections prohibit any party from implementing a merger without the approval of the respective competition authority. Section 13 and 13A read with 59(1)(d)(vi) grants the Competition Tribunal (Tribunal), a competition regulator that is established in terms of section 26(1) of the Act, the power to impose an administrative fine on the parties that contravene the provisions of sections 13 and 13A. Section 59(2) reads, An administrative penalty imposed in terms of subsection (1) may not exceed 10% of the firm s annual turnover in the Republic and its exports from the Republic during the firm s preceding financial year. The prescribed administrative fine is the same as the fine that the Tribunal might impose on companies that are found guilty of engaging in prohibited practices contained in Chapter 2, which relates to, inter alia, cartel conduct2 or abuse of dominance3 or price discrimination.4 By not making a distinction between the fines imposed for anti-competitive conduct under chapter 2, the Competition Act illustrates how important it is for merging companies to not implement the merger transaction without the approval of the competition authority. Despite the possibility of sanctions by the Tribunal and the imposition of a maximum fine of 10%, of the companies turnover of the previous financial year, the Competition Act does not provide a definition or an explanation of what implementation means. A definition of the term implementation is important for two reasons, firstly it helps the merging companies to avoid conduct that contravenes section 13 and 13A(3) and secondly, it ensures that the competition authorities are able to effectively use merger review to prevent conduct that facilitates or creates anti-competitive markets. The question that this dissertation seeks to answer is, what does implementation means for purpose of merger review? This dissertation considered the merger review provisions that are applied in the European Union s (EU) legislations and the case law of the European Commission (EU) to find out how the term implementation has been defined in the EU. A comparison of the EC merger control regime and the South African merger control regime assisted to identify possible similarities and differences that might assist to find the definition of the tern implementation. This dissertation identified factors, in the considered EU decisions, which are important for merger review in the South African context as these factors assist to understand how the merging companies might avoid contravening the South African Competition Act in the context of a merger. The factors identified in the EU decisions include, inter alia, merger agreement, control, jurisdiction and effects in South Africa. Although these factors are not exhaustive, the competition authorities need to consider all factors together when determining what implementation means. When applying the above factors to South African merger review it can be concluded that, implementation for purpose of merger review entails the enforcement of the terms of a merger agreement or terms of reference of the merger agreement, to the extent that such conduct constitute control either by way of majority shares or by way of influencing the business of the company being acquired. The enforcement of such merger agreement terms must take place in South Africa and do not necessarily need to have any direct effects on competition. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

Prior to the enactment of the Companies Act 71 of 2008 (the 2008 Act), financially troubled companies were either liquidated or placed under the supervision of a judicial manager who was trusted with rehabilitating or restoring the company to a profitable going concern. Judicial management, as the process was called, did not achieve the results that were anticipated by the legislature and hence became a dismal failure. One of the reasons advanced for its failure was the fact that it was creditor-oriented. As a result of its failure, new legislation (Companies Act 71 of 2008) was promulgated and came into effect in May 2011. Chapter 6 of the 2008 Act introduced the business rescue regime in line with other international jurisdictions as a replacement for judicial management and this was seen as a major improvement as the new business rescue regime does not only seek to save the company as a going concern, but also aims at maintaining a proper balance between the interests of different stakeholders. This research will analyze the impact of business rescue on creditors by assessing the effectiveness of business rescue proceedings and also focus on the extent to which Chapter 6 has embraced debtor-friendliness by scrutinizing the requirements for the proceedings and the procedure itself. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

The purpose of this dissertation and the research contained therein was to discuss and investigate the influence of the CPA on concept of plain language in standard-form consumer contracts. In order to do so, it was important to discuss the historic background of the law of contract as well as the position where the CPA was not applicable. This refers to a position where common law principles determined the law of contract (including standardform contracts). One of the fundamental principles of common law is freedom of contract. Freedom of contract is a notion that parties are free to decide whether or not to contract, with whom to contract, the nature of the contract and the terms of the contract. Despite the fact that freedom of contract is deeply engrained in our legal system, does not erase the fact that when it comes to consumer contracts (in particular standard-form contract or contrat d adhésion) it is to the detriment of consumers. Under the principle of freedom of contract the assumption is that parties have equal bargaining powers which is, in fact, not always true. In light of the above, the South African legislature promulgate the Consumer Protection Act, Act 68 of 2008 which aims at improving the quality of information conferred to consumers by the sellers, to ensure consumers make informed decisions which are in line with their needs prior to contracting. Though the CPA changes the common law, it still makes provision to preserve common law. Section 2(10) of the CPA leaves no doubt that the common law is not replaced in its entirety by the Act for those matters that apply to it. The introduction of the CPA brought about changes to the South African consumer protection law. One of the changes is Section 22 which deals with plain language. A fundamental consumer right under the CPA, the consumer s right to disclosure and information (Part D) of the Act includes section 22 within its ambit and provides that consumers have the right to information in plain and understandable language. It is perceptible from this that the legislature envisions the plainness of language in contracts (including standard-form contracts) and other legal documents as means to redress imbalances between suppliers and consumers. While it is undeniable that the will now be additional burdens on being in business, everyone will benefit from the CPA. We are all consumers, after all. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted