The Consumer Protection Act 68 of 2008 (“the CPA”) has created several enforcement mechanisms through which consumers may vindicate their rights. These enforcement mechanisms have been created to foster efficient redress by promoting forms of alternative dispute resolution which are often more cost-effective, accessible, and speedy. Since the CPA protects human rights and has been enacted to confront South Africa's egregious injustices of the past, ensuring prompt and effective redress is of vital importance. Despite this, South African consumers have experienced difficulties in accessing justice due to some of the CPA's inefficiencies. This dissertation seeks to pinpoint some of the Act's main shortcomings and thereafter proposes solutions. This is done in conjunction with examining the consumer mechanisms and laws put in place in both Nigeria and India as a comparison of how other developing countries have tackled similar issues. A striking takeaway point from both of these case studies is that regulatory bodies often do not have the capacity to play a central role in enforcing the consumer law of these countries. Therefore, it is important that individual consumers are able to vindicate their rights effectively. This dissertation focuses on s 69 of the CPA as somewhat of a stumbling block for consumers to individually enforce their rights. This is because s 69 precludes access to a small claims court in the first instance, presents an unclear hierarchy of redress mechanisms, and rigidly prevents access to a court unless all of the other redress mechanisms have been exhausted. Moreover, this dissertation also critiques the Act's position regarding the court's sole jurisdiction regarding unfair contract terms and the cumbersome two-step procedure prescribed when the quantification of damages is in issue.

Small and Medium Enterprises (SMEs) and small scale farming constitute an integral part of African economies. These small scale producers, however, face significant challenges in market access, marketing, advertising, and developing the reputation of their products and services. In this respect, appropriate intellectual property (IP) strategies could be leveraged, particularly where producers come together as a collective. The focus of this thesis is to explore options on how developing countries in Africa can begin to think about using trademarks and geographical indications for SMEs and small scale farmers. The international legal framework for the protection of trademarks and geographical indications has shaped the national legal regimes of countries. There is, however, flexibility in the type of legal protection strategy that could be utilised by small scale producers – trademark, certification mark, collective mark, geographical indication – but these options have not been sufficiently adopted for such producers. This thesis examines the legal frameworks for protection in Zimbabwe and South Africa and submits that by developing clusters to improve the efficiency of small scale producers and strengthening producer associations, governments can set the framework upon which to develop capacity to use trademarks and geographical indications. Using a case study, the thesis identifies issues that impede the adoption of trademarks and geographical indications, among these, institutional deficiencies, insufficient knowledge of trademarks and geographical indications and limited access to legal information. It proposes legislative and regulatory changes to enhance uptake of trademark and geographical indication protection and proposes identifying strategic clusters that could use these IP rights.

The effective protection of taxpayers' rights has not kept pace with the ongoing internationalisation of tax laws. The International Fiscal Association sought to clear this gap by drawing from the experiences of various countries on the subject. This endeavour culminated into a report in 2015 outlining 57 minimum standards for the practical protection of taxpayers' fundamental rights. The report is based on an analytical framework in the form of tax relationships, as well as on a normative framework, which acknowledges that taxpayers have fundamental rights and are protected by certain legal principles. This dissertation will analyse the application of the minimum standards in Mauritius by adopting the frameworks used in the report to provide insight into areas of tax relationships which are vulnerable whilst highlighting fundamental rights and legal principles which require urgent protection.

The English law traditional approach which deems restraint of trade agreements to be prima facie unenforceable was rejected under the South African legal system, as it was not consistent with the leading contractual law principles, from this the principle that restraint agreements are prima facie enforceable until the party seeking to escape the agreement shows that the agreement is unreasonable and contrary to public policy was founded. The application of the principle founded other restraint of trade principles which guide courts when making inquiries on the enforceability of a restraint of trade agreement. To determine whether uniformity existed in the application of the guiding principles of the restraint of trade doctrine in the employment law context, I examined and analysed case law from the year 2015 to 2020 using case law and academic writings. There has been in most of the cases, a uniform approach in the application of principles under the restraint of trade doctrine. Courts guided by constitutional values continue to endorse making value judgments. An important contribution has been regarding the operation of a garden leave clause together with a restraint clause in an employment contract, from which it was observed that where both clauses are included in an employment contract the operation garden leave clause will affect the operation of the restraint clause against an employee. The results from the research demonstrate that there has been in most of the cases, a uniform approach in the application of principles under the restraint of trade doctrine. The dictates of public policy governed by constitutional values which guide the balancing of the interests of the parties remain central to the determination of the enforceability of the restraint of trade agreement.

This thesis examines the prospects and potentials of implementing the United Nations Guiding Principles on Business and Human Rights (GPs), in the extractive industry in Nigeria. It considers the prospects of amending existing laws and strengthening regulatory agencies. At the same time, it explores the option of creating new business and human rights institutional agencies to address corporate and business-related human rights abuse. Using the elements of the rights-based approach, the linkages between human rights and extractive activities are examined. The lack of an effective legal and institutional framework to integrate human rights protections into environmental laws has prevented communities which host extractive projects from realising their human rights. On 16th June 2011, the United Nations Human Rights Council, unanimously endorsed the Guiding Principles on Business and Human Rights which provide guidelines for the state's duty to protect human rights, corporate responsibility to respect human rights and access to remedies for victims of corporate-related human rights violations. The GPs provide a rights based approach to safeguarding extractive resource governance, pertinent to a jurisdiction like Nigeria. Drawing significant lessons from South Africa - due to its proactive legislation imposing human rights compliance on companies - the research examines the potential of implementing the GPs in Nigeria's extractive resource industry. A combination of doctrinal and empirical research is utilised in the examination of the subject matter. A key finding of the research is that a proactive implementation of the GPs will reduce or prevent the harmful exploitation of natural resources, thereby creating a positive extractive resource governance and guaranteeing sustainable development. The critical steps towards implementation would be to integrate the GPs into current laws in a way that does not undermine the social contract, but enhances positive governance within communities. The contribution of the thesis in this respect is the development of a legal and institutional framework through which human rights principles can be integrated into domestic legal regimes in the extractive resource industry in Nigeria so as to guide the implementation of the GPs The rights-based approach adopted in the research provides a pathway for the sustainable development of Nigeria's extractive resources. South Africa is at the forefront of the campaign for a binding business and human rights treaty and its domestic legal regime and judicial activity continue to demonstrate the progressive realisation of human rights. Only credible institutions infused with an in-depth understanding of the socio-economic, cultural and political realities of extractive communities can legislate properly for them and monitor compliance. The GPs present a valuable roadmap for strengthening institutions to ensure that business activities in the extractive industry and beyond are not devoid of pertinent human rights considerations.

This dissertation explores the content of the fiduciary duty of a company director to act in ‘the best interests of the company' as expressed in the common law and section 76(3)(b) of the Companies Act 71 of 2008. The central contention is whether the duty is owed to shareholders or otherwise to stakeholders and if the latter, to what extent. The content of and approach favoured in the present duty is analysed first through a discussion of theories on corporate governance, personality and social responsibility. This provides theoretical context. A thorough analysis of the common law follows. This provides evidence of the development of the duty to act in the best interests of the company and the policy choices which may be implied from those developments. That analysis concludes that the duty means that directors shall perform their functions to the benefit of ‘the company.' The common law provides that ‘the company' has developed to mean the shareholders as a whole but not necessarily exclusively or primarily. Since the duty to act in the best interests of the company is largely open to interpretation in accordance with the policy of the time, this dissertation proceeds with a discussion of the influence of the Constitution and the value of ubuntu on the duty. The conclusion is that even in the constitutional era, the fiduciary duty requires little more than a consideration – and not a championing – of stakeholder interests. Ultimately, the duty to act in the best interests of the company is ambiguous. Directors may be uncertain of what standard the law expects of them in exercising their decision-making power. Given this uncertainty, a discussion of the business judgment rule is necessary. The business judgment rule requires rationality from directors if they are to avoid liability. The rule is therefore crucial to informing what standard of conduct is expected of directors.

Since the turn of the 20th century, there has been intensified use of federalism as a tool for conflict resolution. Scholars are divided, however, about the potential of federalism to manage conflict. Some argue that it can accommodate the aspirations of both national and regional actors. Others see it as a road to conflict or state disintegration. The debate over the pros and cons of federalism is undecidable as both sides make reasonable theoretical claims and can point to some evidence in support of their propositions. Hence, the lesson drawn from divergent views on federalism is that there is no single federal formula for peace in divided societies. Instead, the degree to which federal institutions can contribute to preserving peace depends on how these institutions respond to the characteristics of the societies they govern. The findings of this study are that Somalia's Provisional Constitution makes provision for a number of significant institutional features of federalism that, if correctly embraced, could enhance peace in Somalia. However, most of these provisions are defective. Some need follow up legislation, while others need to be agreed upon by both the federal government and the federal member states. This thesis further reveals that Somali societies are inherently federal. For instance, practices such as negotiation and reconciliation, decentralised decision-making, and transparent dispute resolution form part of the governance system in the traditional Somali society. If properly adapted and utilised, these features of the Somali traditional governance system can help to strengthen the federal political system in Somalia. The major argument of this dissertation is hence that in view of the peculiarities of the Somalia state, the federal values inherent in the Somali traditional governance system should be included in a new federal constitution. Only a federal system built on such traditional values will be conducive to peace and stability in Somalia and help stem the tide of secession currently threatening to tear the federation apart.

South African courts and academics alike have grappled with ascertaining the exact role that good faith plays in the law of contract for years now. Determining the proper operation and application of this principle has lent itself to many problems that have manifested in an inconsistent application of the principle of good faith and, therefore, a lack of predictability and certainty in how cases involving good faith will be decided by our courts. At the heart of the issue lies the tension between the competing goals of freedom of contract/certainty on the one hand and fairness on the other. As a result, the question of when a court may intervene in contractual dealings between parties and refuse to enforce an otherwise valid contractual term that has been freely and voluntarily entered into has been the subject of much debate. After years of having the principle of good faith inconsistently applied by our courts and witnessing a noticeably incongruent approach taken by the Supreme Court of Appeal and the Constitutional Court on the matter, this very question received much needed attention in a recent judgment by our Constitutional Court in the case of Beadica 231 CC & Others v Trustees for the time being of the Oregon Trust & Others. Following this latest judgment by our Constitutional Court on the matter, the pertinent question now is whether the uncertainty surrounding the proper application of the role of good faith in contract law has been satisfactorily addressed and the matter sufficiently settled. This thesis aims to answer this exact question by engaging in a critical analysis of the Beadica judgment. In analysing the judgment the aim is to answer namely two questions, the first is whether the matter has in fact been definitively settled by our court in this recent judgment and if so, what the current role of good faith can be understood to be in our law of contract today. The second question is whether, in arriving at the precedent set in Beadica, the court has adequately fulfilled its mandate to develop the law of contract in accordance with Constitutional values and uphold the principle of ‘transformative constitutionalism' and if not, whether further development of the principle is still needed, either by developing our common law through our courts or creating further legislation on the matter.

The rules regulating corporate representation relating to the conclusion of contracts have vexed courts for over a century. Even today this area of law is recognised as one of complexity, with the principles of agency, court-made company law doctrines and legislative provisions sitting side by side, with no sure guide as to their interaction. In South Africa, this sense of uncertainty is particularly acute, given the fact that there is disagreement over the nature of the applicable common law rules, the Companies Act No 71 of 2008 has introduced radical changes into this area of law and our Constitutional Court has recently made pronouncements which have brought settled agency law principles into question. This thesis attempts to lay the groundwork for an understanding of corporate contracting under the Companies Act, taking into account relevant historical, judicial and legislative developments in English and South African law over the last 150 years. In particular, this thesis argues that an approach to corporate contracting which focusses on the third party's perspective, which is rooted in the appearances of (ostensible) authority of the company's representatives, came to dominate over the perspective of the company, which is rooted in the constitutional (actual) authority of its representatives. The implication of this shift has been the gradual de-emphasising of the corporate constitution in relation to corporate contracting. This shift has manifested in both judicial analysis (by courts placing the principles of agency, in particular ostensible authority, at the centre of unauthorised contracting cases) and statutory intervention (by the introduction of sections which expressly make constitutional provisions irrelevant to third parties). Taking into account these developments, it is submitted that the Companies Act has continued the abovementioned trend by introducing sections which further entrench the 'third party perspective' of corporate contracting. Moreover, it is averred that the Companies Act may have overturned case law which limits the protection available to third parties contracting with companies in particular circumstances.

In a world of globalized capital, individuals, companies, individuals, and nations, often benefit from investment opportunities in which capital is free to flow across borders and jurisdictions with limited restrictions. Foreign direct investment in developing nations is certainly one of the perceived benefits of this milieu in which capital is liberalized, as it often provides critical funds for resource extraction, industrial growth or increased agricultural output, and, supposedly, an overall influx of positive development potential (Rixen, 2015: 325). Indeed, many developing nations work very hard to attract foreign investment capital, including through tax incentives, which can create opportunities for utilizing natural resources, employment, and infrastructure development. Overall, international investment is often portrayed as win-win scenario, with some, but few drawbacks. However, this does not mean that the international flow of capital is not without its complications. Not all pertinent actors involved in the global chains of investment, industry, and development, feel as though the international system is a level playing field for all parties. This is particularly true when it comes to the notion of taxation, which is on one hand largely a domestic issue, meaning that taxation policy is ultimately in the jurisdiction of national governments. Yet with that said, the international arena in the early part of the second millennium is a world of international business in which capital investment flows readily across and between jurisdictions, heightening the need for more robust, creative, and far-reaching policy and legislation that allows nations to capture the taxable income generated from their domestic resources in foreign destinations, because of the high degree of foreign ownership through globalized capital (Toledano, Bush, & Mandelbaum, 2017: 13). Depending on the country in question, this can be a daunting task. The reality of the international arena is one of countries that are divided across a spectrum of wealth, from a small number of very wealthy and powerful nations, (from which stem most of the powerful corporations and other investment engines), to those who struggle to meet the basic needs of their people, and to maintain stable governance. It is those nations at the lower end of the scale that are generally recognized as being the most vulnerable to powerful international forces. The economic drivers in such nations are often found in raw resources, whether in labour, mineral deposits, or agriculture, most of which rely on some degree of foreign investment both in capital and technological capacity in order to harness and extract their value (Kosters, 2004: 7). In turn, the taxes that are generated from such activity not only play a substantial role in filling the coffers of these governments, but are one of the few potential resources for meaningful earnings for the state, in countries where they are most needed, primarily for very basic needs of infrastructure and daily governance (Marais, 2018: 611). Increasingly over the past decades, it has been recognized that there is a great deal more that powerful countries and institutions can and perhaps should do in order to help the less powerful harness their wealth, from taxation and other sources (Kosters, 2004: 7). As of more recent years, various institutions have entered the fray in regard to development and related issues like taxation at the international level, operating via collective agreements. These include groups such as the Organization for Economic Cooperation and Development (OECD), International Monetary Fund (IMF), and World Bank. While several international bodies, the OECD included, provide some guidance and direction for taxation, these agreements are voluntary, and do not supersede the power or responsibility of national governments to monitor the usage, flow, and taxation of national resources. Further, there is a notable critique on the somewhat conflictual nature of these institutions, in that they get their power from the same powerful nations whose business elites have been benefiting from lopsided power dynamics on the international level all along, and in many ways, despite the good intentions of some initiatives on their part, on the whole, they continue to do so, meaning that developmental needs and the ethics of equity and fairness still must fight to be recognized against a backdrop of profiteers who are in many ways loathe to surrender their advantages, whether they are deemed to be fair or not (Marais, 2018: 612). In briefly considering the taxation landscape in regard to OITs, at present there exists a variety of approaches. On one hand there are some guidelines presented by some intergovernmental organizations, for example, the OECD, which suggests taxation of OITs in some limited cases. However, this serves as a guideline for member countries and not a regulation. It should be further noted that, regardless of policy source and orientation, any application of taxation to OITs can only occur when a nation has a suitable domestic taxation policy in place, as such taxes are ultimately under the authority of national governments where the resource resides. This has led some researchers to comment on the distinction between developed and developing nations when it comes to the value and importance of taxing OITs, whereby it may be very much in the interest of developing countries to harness the tax on this activity, and much less important for developed nations (Lau, 2015:43) . This is owing largely to the fact that such holdings and transfers by multinationals are far more common in developing nations, and to the fact that the taxes on such. This may provide a meaningful backdrop for understanding the variance in approach to OITs from nation to nation, as well as create a focal point for understanding how developing nations in particular can use taxation as one of the tools needed to harness the power of its own resources in order to better foster development.