The historical legal exception, the exceptio doli generalis was widely applied and accepted in the South African law of contract as a justifiable defence by a defendant to recind unfair contracts or contractual terms during the twentieth century. Our courts implemented openended or abstract values of equity and fairness in the substantive law in order to allow a defendant to counter claim for the enforcement of an unfair contract. In spite of the wide application of this defence by our courts, it was put to an end in Bank of Lisbon and South Africa Ltd v De Ornelas in 1988. The outcome of this judgment created a lacuna in our law for court to consider criteria of fairness and equity in their deliberations when delivering judgments. The universal doctrine of unconscionability which advocates considerations of fairness and equity appeared to have influenced a move towards consumer legislation on a global scale and ultimately to the enactments of the Consumer Protection Act (CPA), introduced in 2008 and operational since 31 March 2011. The CPA contains several provisions which appear to revive the application of defences akin to the abolished exceptio doli generalis such as the codification of the consumer's right to "fair and honest dealing" and the right to "fair, just and reasonable terms and conditions" to name but a few. The question that arises and which is explored herein is whether the rights afforded by the CPA constitute the revival of the principles that used to apply in terms of the exceptio doli generalis. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Private Law / LLM / Unrestricted

The dissertation examines whether Kenya can retaliate in full self-defence against Al-Shabaab on Somali territory. Article 51 UN Charter contains the right to self-defence and is an exception to Article 2(4), which prohibits the use of force. The development of the right to self-defence is illustrated with reference to state practice, ICJ decisions and opinions of legal scholars. An enquiry is made into what the required nature of the military attack should be to be classified as an armed attack. This essentially encompasses the question whether an act by a non-state actor is of a sufficient gravity to trigger the right to self-defence. Furthermore, an enquiry is made into whether non-state actors, of whom attacks cannot be attributed to a state, can nevertheless launch armed attacks and trigger the right to self-defence. The current status of the traditional effective control test of attribution is examined as well as the unwilling or unable test which determines whether it is necessary to make use of full-scale self-defence. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

Mini Dissertation (LLM)--University of Pretoria, 2015. / Procedural Law / LLM / Unrestricted

The National Credit Act 34 of 2005 was the ultimate product of an initiative by the Department of Trade and Industry to address the shortcomings of the previous legislative enactments in the area of credit regulation, that is the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The Act is a dramatic departure from the old bi-legislative credit 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. The Act repealed the Usury Act and the Credit Agreements Act. Furthermore, it established two new bodies, namely the National Credit Regulator and the National Consumer Tribunal to monitor and enforce the framework relating to consumer credit. Through enactment of the National Credit Act the government appears to have focused much energy on the prevention of over-indebtedness by instilling prohibitions on reckless lending practices by credit providers and a variety of processes for the prevention and alleviation of over-indebtedness. However, and despite these endeavours, the ever important considerations of the inevitably commonplace breach of the credit agreement by consumers and the recovery process available to credit providers, remain to be deliberated. The relationship between the two major role players the provider and consumer is the nub of any discussion, theory or legislative enactment pertaining to credit. The thesis commences with an examination of the historical background and rationale for the Act, putting into context not only for the South African but so too for the foreign jurist, 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 Act. At all times the grounding of the common law, which acts as a stabiliser especially in times of changes in and of specific legislation, is examined in relation to breach and remedies as affected by the Act. Chapter 1 is a basic Introduction to the topic, sets the background for the discussion which ensues and examines the purpose and methodology adopted in the work. Chapter 2 encompasses a concise historical introduction to credit parameters; it looks at how the historical regulatory pendulum of the credit market swings to and fro. By examining the history one is able to discern what the current legislative trends are, and where they are likely headed. Chapter 3 examines the background and rationale for the new Act. The reasons why the previous credit regime was deemed ineffective for the present day credit market are also considered. Chapter 4 is a consideration of the previous legislative regime and introduction to the current legislative setting. Chapter 5 introduces the nature of the obligation and breach of contract, followed by a study of the procedures that are required before debts can be enforced through the courts. The procedures so required by the previous credit legislation, as well as those expected in foreign jurisdictions are also examined. The final chapter, Chapter 6, is an examination of specific remedies available to the credit provider as provided by the common law and by the Act and how the Act amends some of the common law remedies. Throughout the thesis a comparative examination of the jurisdictions of England and Italy are conducted as well as how these countries have tackled the problem of regulation of consumer credit, breach and their ensuing remedies and consequences. The jurisdictions examined are an example of a common law system and a civilian one, respectively. Due to the movements in harmonisation of commercial private law and due to the massive influence of this process on individual regional legislations, it is submitted that with contemporary legal developments due to cross-border trade, analysis of legislative developments in any European country cannot be carried out without reference to the law-making sanction of the European Union. Accordingly, the European Union, in so far as it relates to credit, has been studied together with the other two foreign jurisdictions. The conclusion is a consideration of whether the legislature has, through promulgation of the Act in relation to the remedies for breach, over protected the consumer through overregulation and whether such paternalism has proved, over time, to be detrimental to the credit market. The under protection of the consumer cannot be ruled out either, and this too has been considered given that the import of the wording of the Act as well as the interpretations of its sections by the judiciary will be an on-going exercise. The common law, the thread that gathers the South African legislative garment and sets it apart from the civilian tradition, and its effects are contemplated throughout the work. The closing remarks consider whether the Act is fair and sustainable in the South African environment and how it compares with foreign jurisdictions. The conclusion will reveal whether room exists for suggested improvements both to the Act and to the interpretation thereof in the area of recovery and whether the description given to the French Civil Code, that is that it is like an old lady, with both wisdom and weaknesses, will eventually be capable of assignment to the National Credit Act. / Thesis (LLD)--University of Pretoria, 2015. / Private Law / LLD / Unrestricted

Mini Dissertation (LLM)--University of Pretoria, 2015. / Centre for Human Rights / LLM / Unrestricted

Section 45 of the Income Tax Act1 provides a mechanism whereby a company may dispose of its assets to another company and defer the tax consequences thereof, if both companies form part of the same group of companies. Taxpayers seized the opportunity to manipulate the provisions of section 45 in order to enable a tax-free exit of their investments.2 The South African Revenue Service responded to this by introducing certain anti-avoidance measures.3 One of these anti-avoidance measures is the de-grouping charge in section 45(4)(b) of the Income Tax Act. This study aims to provide a critical analysis of the mechanics of section 45, the intended purpose of section 45(4)(b), how legislation should be interpreted and ultimately how far the implications of section 45(4)(b) reach. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

The objective of this thesis is to critically analyse synthetic securitisation schemes in South African law as synthetic collateralised debt obligations using primarily credit default swaps (CDSs). This transpires from the perspective of primarily company law, and secondarily securities law and the law of contract. It includes a contextualised study of these schemes with regards to their origins, their significance regarding the recent financial crisis, and their rationales micro-economic influence and Basel capital requirements. Not only are the participants, such as parties acting in a primary role and secondary role and special-purpose institutions, studied, but also the obligations between these parties, such as the CDS contract, and the meaning of commercial paper, the legal nature of credit-linked notes, the business of a bank, and the influence of recent case law. It also includes a consideration of synthetic securitisation schemes in terms of the Collective Investment Schemes Control Act 45 of 2002. Furthermore, the role of systemic risk and moral hazard is explained, as well as the interaction between synthetic securitisation schemes, credit rating agencies and the function of risk management. The CDS is compared with insurance contracts, and a discussion of the 2014 International Swaps and Derivatives Association Credit Derivative Definitions is incorporated. For legal comparison, the South African model is compared with Canadian law and its unfunded credit derivatives in the light of recent regulation, and compared to German law and its prevalence of funded credit derivatives. Finally, suggestions are made as to the future of synthetic securitisation schemes. / Thesis (LLD)--University of Pretoria, 2015. / Mercantile Law / LLD / Unrestricted

Exemption clauses are commonly used in hospital contracts to exclude the liability of the hospital or hospital personnel for personal injury or death and presented to the patient on a take-it-or-leave-it-basis. Patients usually sign these contracts containing the exemption clauses because it is impossible to negotiate the terms of the contract. Exemption clauses that are not contrary to public policy are enforceable between parties. Courts have generally favoured the application of the principles of freedom of contract and pacta sunt servanda to determine the enforceability of exemption clauses. The Consumer Protection Act, 68 of 2008 (CPA) was recently enacted, and among other things, it addresses the unfairness that is associated with exemption clauses and aims to improve consumer awareness. The common law principles were modified by the CPA. Exemption clauses, after the enactment of the CPA, are only enforceable if it complies with the requirements as set out in the Act. Exemption clauses must be drafted in plain and understandable language especially clauses that can be construed to be unfair and the risks pertaining to these clauses must also be drafted in an understandable manner. Such a clause must be brought to the patient s attention and a consumer must sign next to the clause after any term that can be interpreted as unfair terms and risks that is associated with such term is explained to him. A drafter should take into consideration greylist and blacklist terms when drafting exemption clauses, since certain clauses are prohibited and other terms are presumed to be unfair. A drafter can include a term that excludes liability for personal injury of the patient, but the hospital or its personnel will have to prove that such term is fair under the circumstances. A clause that excludes liability for death is not permissible. The enactment of the CPA was long overdue and it was vital, especially in respect of fairness of exemption clauses and the protection of patients against unfair contract terms. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Private Law / LLM / Unrestricted

The Zimbabwean economy rapidly declined over the past two decades. A record hyperinflationary environment and a collapse of the financial service sector coupled by lack of external lines of credit created a difficult operating environment for corporate businesses. Businesses thus either closed down operations or resorted to survival strategies. Corporate mergers and acquisitions emerged as natural favoured strategies in implementing survival corporate restructuring transactions. However, the success of such strategies largely depends on the effectiveness of the merger regulatory framework, that is, its ability to promote beneficial corporate restructuring transactions on one hand and to maintain the competitive structure of the market on the other hand. This research analyses the current merger regulatory framework in Zimbabwe and assesses whether it is suited to promote beneficial corporate restructuring transactions implemented through mergers and acquisitions without unnecessarily distorting the competitive structure of the market. Employing the failing firm doctrine as the focal point, the research identified a number of shortcomings within the current merger regulatory framework that impacts upon its ability to effectively promote beneficial corporate mergers and acquisitions without sacrificing the competitive market structure. Selected comparative jurisdictions were used to draw various lessons for Zimbabwe. The aim of the comparative study was not to provide an exhaustive analysis of these jurisdictions but to identify specific arrears that can be used to develop and suggest an effective merger regulatory framework for Zimbabwe. In order to remedy the identified shortcomings inherent within the current Zimbabwean merger regulatory framework, this thesis proposes a number of amendments to the current Competition Act [Chapter 7:01] of 1996. These proposed amendments are aimed at bringing clarity, flexibility and strengthening the merger regulatory framework including the institutions tasked with such. The research is primarily a legal analysis of the Zimbabwean merger regulating statute and its implications on any decisions made by the competition authority. As such, the thesis states the status of legal development in Zimbabwe and the selected comparative jurisdictions as of 31 July 2013. / Thesis (LLD)--University of Pretoria, 2013. / Mercantile Law / LLD / Unrestricted

Advancing gender justice in countries such as Nigeria, South Africa and Zambia and in other countries in Africa is critical to the growth and development of the African society. Inheritance to property from the estate of a deceased father and/ or husband remains a critical resource to the development of the socio-economic conditions of many women in Africa. Unfortunately many are still disinherited, their property being forcefully grabbed and taken away by in-laws. Facing accusations of killing their husbands; many of these women are mandated to engage in demeaning cleansing ceremonies or widowhood practises. This study established that there is an immediate need for a paradigm shift requiring a re-engineering of society, the law and systems of justice in order to change the manifestation of attitudes and conducts that viciously create and recreate the unequal status of gender insubordination that has been declared invalid through a variety of national and international standards. Breaking new ground, this thesis calls for improved and more progressive yet sensitive means of accessing justice by way of Expanded Justice System (EJS). As a sui generis model to be established within the states, EJS should include all other forms of norm, rule-making and access mechanisms with the aim to creating that positive cultural context envisaged by Africa-based international human rights law for all persons; both women and men. The continent through international human rights law such as the Protocol on the Rights of Women in Africa has created normative standard that ensures that women and men are equal before the law with equal benefits of the law thereby guaranteeing various rights including the right to inheritance for women and children. In Nigeria, South Africa and Zambia, many women, despite admirable normative developments continue to face discrimination, dispossession and loss of their dignity. The study establishes that there is a huge gap between the law, policy and what actually happens in practice. The challenge lies in the laws that are inadequate and ineffective for the majority who have limitations in having full and equal benefit of the law. For many women, the resources available to them in accessing justice for appropriate redress are inadequate thereby sustaining their inequality and discrimination. The study reaffirms the importance of key role players in matters of culture such as the traditional leaders and their institutions and the prospects that such institutions bring towards ensuring gender justice. They are usually the first contact at the grassroots and so must be engaged with as the critical interface in dealing with the clash of culture and human rights for the benefit of all persons; men and women living within their various domains. / Thesis (LLD)--University of Pretoria, 2013. / Centre for Human Rights / LLD / Unrestricted