Includes bibliographical references (p. 223-238). / The study of the nonprofit sector as the conglomeration of private initiatives in addressing public needs is increasing to match the growth of formal and informal associations of people in countries across the world. While writers generally agree that these private sector initiatives are not a new thing, there is a recognition that there has been a resurgence of a deliberate, conscious need to build and maintain these associations of civil society.

The metaphors used when speaking of equity are rather colourful. One reads, amused, of the ‘burning issue', the ‘shibboleth' and the ‘sacred cow'. But these metaphors, used as they are in a discipline which tends away from the dramatic in its everyday formulations, only lend more emphasis to the gravity of the quandary. A widening gap between views on the proper method for the judicial control of contract, be it a balanced public policy or unfettered equity, caused true discordance between the Supreme Court of Appeal and the Constitutional Court, our two highest courts. In Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) the Constitutional Court largely settled matters when it came down on the side of public policy. This no doubt caused surprise in some quarters, given its dicta in earlier cases. Nevertheless it settled the question of which legal device was to be used. Public policy is to have sole mandate and the ‘burning issue' was, apparently, doused. As to the nature of this legal device, it is a truism that the content of public policy changes with the times, but in the constitutional republic that South Africa is today the Constitution is an unassailable source of its content and values. This makes our interpretation of what it demands in the contractual context of huge import. The tension meant that instead of the cut and thrust of hard precedent, cases were largely evaluated for their tendency to reflect the increasing public facet to this most cloistered sanctum of private law. Brought back to the challenge in Beadica, this study traces in Chapters II and II something that went largely unnoticed in the shadow of the contract tectonics then on the move: the historical antecedents and theoretical underpinnings of the public interest aspect of public policy had culminated in a tension with separate legal personality. In Beadica the parties were juristic persons yet claimed the benefit of historical, substantive equality in their contractual affairs. This claim was weighed but found wanting in the Constitutional Court - but it is this ember, the implications of the corporate veil being lifted in the evaluation of equality, that represents, if not something new, then the confirmation of what some have long argued for - or suspected. Chapter IV accordingly argues that Beadica is a confirmation of the imperative of substantive equality in the contractual context, albeit that the bar has been set very high in light of the dangers. Chapter V briefly explores the adjacent legal routes by which similar outcomes could be reached before reflecting on the general historical treatment that is the bedrock of this piece.

The principal focus of the study is to investigate the role of the courts in mitigating operational requirements dismissals and consider possible interventions that can be applied to reduce their adverse effects. The role played by courts appear to be limited in the absence of legislation that requires employers to consider reskilling, redeployment and collective bargaining in mitigating operational requirements dismissals. It is well established that the significant increase in operational requirements dismissals can be attributed to the rise of the adoption of technology in the workplace. A major drawback in the existing literature is that most studies have neglected the examination of the role of the courts in mitigating dismissals, particularly in the banking industry. The study examined the regulatory framework for operational requirements dismissals by looking at the procedural and substantive fairness requirements and how the courts have handled these cases in the context of the banking industry. Deficiencies were reflected in the framework, it was observed that the provisions of s 189 are inadequate in protecting employees in faultless dismissals. What has been fleshed out from the study is that possible interventions such as collective bargaining, redeployment, and skills and training development can play an instrumental role in mitigating dismissals. The success of these interventions requires all role players such as employers, employees, and trade unions. However, without the amendment to the regulatory framework, the role of the courts remain limited. The study calls into question the effectiveness of s 189 provisions and sheds new light on how these can be amended as well as the role relevant stakeholders ought to play in the employment relationship.

A number of opportunities are available to South Africa through the use of international intellectual property flexibilities that are targeted and designed to protect and preserve access to medicine and health care. This dissertation will discuss a number of reasons and influences that have an effect on South Africa's accessibility to medicine through the means of intellectual property. This dissertation first embarks on giving a synopsis of the affects patents have with regards to access to medicine. It further contends that the use of the TRIPS flexibility known as compulsory licence should be utilised to realise the need of access to medicines in South Africa, together with how the pricing system has a weighty effect with regards to access to medicines. The TRIPS flexibility has given WTO members the liberty to determine and customise their policy space with regards to TRIPS obligations in a manner that is interpreted and implemented that meets and reflects its citizen's needs. This dissertation seeks to find if South Africa has made use of such means of reflection in its policy space and its proactive prioritisation of access to medicines in South Africa.

No abstract

Pre-Democratic South Africa was largely an isolated State. With the exceptions of the automotive and textile sectors, the country did not attract significant foreign investment due to the economic sanctions imposed by the international community in response to the crimes of apartheid. Between 1993 and 1995, the newly elected democratic government of South Africa concluded its first bilateral investment agreements with European countries. These bilateral investment agreements were made the standard for future treaties. The newly elected government realised the importance of foreign direct investment for achieving its economic growth and development objectives. Moreover, the conclusion of several bilateral investment treaties was used to strengthen relations with other countries and a tool to promote investment. However, by the late 1990s the South-African government found that these treaties were no longer appropriate. They often conflicted with the States socio-economic development policies and presented unequal protections for foreign investors and the States national policies. The Piero Foresti case, in which Italian investors brought an international arbitration claim against the South African government, galvanized the investment policy review process. The policy recommendation stemming from the review process included; that the South African cabinet refrain from entering into new bilateral investment treaties (BITs) - unless there were compelling political or economic reasons to do so, terminate existing BITs and replace them with domestic legislation. This dissertation considers the impact of the change in South Africa's investment policy on the Southern African Development Community (SADC) regions' efforts to harmonise investment policy across member states. It is an empirical study which considers South Africa's policy shift within the international investment law global context. Given South Africa's powerful andsomewhat hegemonic position on the African continent and within the region, whatever changes take place internally, are bound to spill-over into the region and potentially across the continent. The regional impact is analysed and described in detail. The research encompasses broader regional integration challenges, relations among member states and implications for dispute resolution. The study concludes that South Africa's policy shift is in line with global developments. It is an attempt to find a balance between investor protection and the States' ability to regulate. However, the policy shift has created a measure uncertainty regarding the settlement investment disputes within South Africa and across the SADC region. Furthermore, the broader obstacles which inhibit regional integration across SADC need to be addressed in order to facilitate investment policy harmonisation.

The primary aim of this study is to identify the characteristics of the South African and German merger control regime with regard to public interest influences in order to compare the different approaches and conclude whether one system could learn anything from the other system and how it is implemented. In addition, it will investigate the casuistry on the legal terms and possible approaches to make a balancing of the competition and public interest effects more concrete. First, this paper will examine both merger regimes separately including a short introduction on the legislative background and an analysis of the merger cases before comparing the systems and coming to a conclusion. Emphasis is put on the investigation of the central public interest ground of employment. The casuistry in both countries falls short of more than some rules of thumb. Economic evaluations that become more detailed through the development of economic models should form the starting point for balancing deliberations, especially in Germany. Whereas the South African model promotes the evaluation of public interests intending to fight the inequalities of the past while also strengthening the economy, the German system gives preference to the independence of its Federal Cartel Office consequent to its focus on competition concerns allowing a ministerial authorisation only in exceptional circumstances. The paper will illustrate the advantages and disadvantages of both systems. The structural differences, in particular in terms of the competent decision making body, are justified on grounds of the different stages of development and the subsequently consistent goals aimed at in the respective country. The thesis therefore suggests that based on these circumstances, the systematic approaches which are tailored to the needs should not be changed. However, it is argued that the German Minister should exploit the full potential of § 42 ARC, especially through the use of appropriate remedies. Furthermore, it is recommended that South African competition authorities follow the objectives of the South African Competition Act with increased readiness and effort. The unique feature of the South African merger control with a mandatory public interest test which is included in the competition assessment has the potential to become a role model for other similarly situated countries with newly developing merger control systems in the future.

There has been a backlash against the Investor State Dispute Settlement (ISDS) system in recent times. Amongst other complaints, critics have argued that the ISDS whittles down the regulatory powers of states in favour of private adjudicators. These criticisms are premised on the fact that unlike commercial arbitration, investment arbitration awards may have far reaching effects on states. In response to these concerns, the United Nations Commission on International Trade Law (UNCITRAL) Working Group III and other similar bodies have been tasked to carry out reforms to address some of these issues. In spite of ongoing reforms, criticisms have continued with some countries abandoning the investor-state arbitration mechanism altogether. In Nigeria, the state of crisis in the judiciary has necessitated the need for a viable alternative to litigation. The ISDS framework therefore remains the preferrable option for the resolution of investment disputes. There have been recent attempts to amend the Arbitration and Conciliation Act 11 of 1988. Also, the Nigerian Investment Promotion Commission recently announced plans to reform the country's investment law framework. It is in the light of these developments that this research has been undertaken to examine the flaws in Nigeria's investment arbitration framework and reforms that may be introduced to address them. In making a case for the retention of the ISDS framework in Nigeria, this study critiques Nigeria's investment arbitration framework and explores a number of recommendations towards addressing current challenges. It is argued that the proposed solutions will improve the effectiveness of Nigeria's investment arbitration framework especially with respect to the legal framework for the consent of the Nigerian government to ICSID arbitration and in the area of court assisted measures and post-arbitral award litigation.

This study is about labour dispute resolution in Botswana, Lesotho and Swaziland. The study involves an extensive examination of the political philosophy, methods, structures and rules of engagement comprehensively described as 'emerging' trends. It concerns labour relations in developing African countries and is necessarily located along the continuum of the socio-legal and historical context of each country. The study asserts that there is an indisputable connection between the past colonial state and the post-colonial state. It contends that the post-colonial elite openly assimilated the regulatory legal framework of the colonial master and consolidated this framework soon after independence. The study therefore examines the mode of buttressing the status quo and the sustenance of command and control inherent in labour legislation. This tendency was rationalised by a misguided fear that those advocating for reforms, particularly those with economic power exerting a diluting influence on the dominant position of the state. The research demonstrates how such orientation accounts for subsequent reluctant tinkering with transformational efforts. It also resulted in sporadic, reactive and generally incremental concessions in the direction of workplace democracy. Essentially, this study is about societies in conjunction with law. Inferentially, this means the impact of legal rules and agencies on society in the finding of solutions to societal problems. The study is not based on an assumed premise on the basis of which a credibility test may be made or comparisons drawn. The study sets out to study each society as a unique, discrete entity within a particular blend of social, historical, political and legal contextual permutations. The primary objective therefore is to examine and try to understand and appreciate the strengths, weaknesses, threats and both missed and potential opportunities of each, in addressing a specific social issue such as labour disputes. This study adopts a 'law in context' approach as a sub-text within the broad framework of socio-legal studies. It does not derive from any abstract theoretical hypothesis. It is not based on any quantitative survey approach that warrants the administration of questionnaire. It is strictly an academic observation of distinct, discrete social formations. These are then considered as in transition along the continuum of their socio-economic developmental trajectories. It also ascertains the ground realities such as the political economy of labour disputes. This study required an interdisciplinary perspective, using a sociological approach to the study of law. By consciously focusing on the central institutions of substantive law, it demonstrates the weakness of law's claim to autonomy, its factual interpenetration of all levels with more general structures of government power, In effect, the conclusion drawn is that the attempt at effective dispute resolution, via the instrumentality of legislation, can lead to juridification, the multiplicity of institutionalised structures, over- administration and eventual dysfunction.

MARPOL Annex VI agreement (IMO 2020) entered into force in January 2020, seeking to reduce sulphur emissions in the global shipping industry arising from ships burning high sulphur bunker fuel. The regulation is estimated to cost the industry up to US$ 30 billion and offers no apparent direct benefit or advantage to the industry, as well as being ill-designed for effective enforcement. Shipowners who plan to comply have called for modifications to the regulation to address opportunities for non-compliance so that their good faith will not become a competitive disadvantage. These concerns around compliance are just one of the areas in which the efficacy of this regulation is being questioned. This paper takes a structured approach to assess the efficacy of this regulation in terms of four explicit goals: realising the necessary reduction in global sulphur emissions, achieving high compliance, encouraging continuous improvement in technology and business practices, and not unduly damaging the global shipping industry. These goals are assessed across five chapters, the first of which interrogates the legal framework of the regulation, exploring the complicated question of regulatory authority, with a special focus on the enforcement mechanisms and the catastrophic effect of the COVID-19 pandemic on basic enforcement processes. The next chapter investigates the likely impact on the industry, contrasting the impact of market-based regulations and control and command type regulations, and different tools such as permits and taxes. This chapter also discusses the emerging disagreement between developing and developed countries over who should be responsible for the costs of environmental reform. Next, a case study of A.P. Møller – Mærsk A/S (Maersk) explores the compliance experience of the largest shipping company in the world, including their internal structuring to deliver compliance, and their pricing adjustments to offset some of the costs. The following chapter evaluates the practical and economic costs of this regulation across all major elements of the global shipping industry. The penultimate chapter makes an effort to predict what the long-term impact of this regulation is likely to be, using two different models for evaluating the interactions between profit-seeking industries and new environmental regulations in general: the Porter Hypothesis and the Polluter Haven Hypothesis. The final chapter concludes the paper with an evaluation of the regulation, and some suggested next steps which could improve the likelihood that the long-term goals of IMO 2020 will be realised.