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Includes abstract. / Includes bibliographical references. / Climate change necessitates a shift from South Africa’s current fixation on coal fuelled energy to renewable energy. The private sector will play a pivotal role in making this shift. It is argued that there is a legal obligation to invest renewable energy. Such investment must take place within the existing regulatory and policy framework; however this framework is itself a barrier to private sector participation. Finance is the second barrier. An appropriate legal structure and entity must be used to raise the required funding but a variety of funding options exist. This paper examines the above barriers to private sector participation and proposes ways in which to overcome them.

Includes bibliographical references. / A Company is an integral part of the community in which it does business as it impacts on that community and the economy of the country as a whole. Consequently, the failure of that company not only affects that community but also the shareholders, suppliers, employees and customers. The company law of a country therefore needs to provide a means to preserve commercial enterprises that are capable of making a useful contribution to the economic life of a country. In recent years, several developed and developing countries have enacted business rescue legislation to supplement existing insolvency rescue procedures such as receivership and the scheme of arrangements. This dissertation discusses the need for Zambia to enact adequate business rescue legislation considering the current inadequacies in the existing Companies Act.

Includes bibliographical references (leaves 63-65). / The choice of a labour market regulatory system in any given social context is crucial for the economic development of that country. In South Africa, a challenge has been made to the key players in the labour environment to choose whether the primary focus should be on creating better jobs or whether the main challenge should be in creating many or more jobs (Baskin: 2004). These two conflicting interests, though almost intertwined to each other, are however standing on a separate footing. Of late in South Africa, there have been cries for an urgent need to deregulate the labour market in the quest to create more jobs and free the small and medium businesses to participate in the economy without stringent measures. Concern has been raised about the unavailability of jobs for the people of South Africa. The major challenge facing the Government is the need to create more jobs. In Swaziland, the problem of job scarcity is reaching a crisis level. A large section of the economically active population is unemployed. Previously, Swaziland was considered to be an ideal place to conduct business by many enterprises in Southern Africa. The new political dispensation in South Africa and the political stability in Mozambique have brought about a sudden and devastating effect on Swaziland. Businesses are closing down operations and very few enterprises are showing an interest to invest in that country. This notwithstanding, Swaziland has opted to use South Africa's system of labour market regulation. The essence of the paper will be to examine the choice of the labour market regulatory systems between these two countries and to try to establish the successes and failures of each system in its given context. The main focus will be on the dispute resolution mechanism that each system adopts and whether such system works well given the cultural, social, economic and political dispensation of that country. The institutions that will be discussed are the Commission for Conciliation, Mediation and Arbitration (CCMA), the Conciliation, Mediation and Arbitration Commission (CMAC), the Labour Court and the Industrial Court. At a later stage, the discussion takes a twist and focuses on the competing and overlapping jurisdiction between the labour dispute resolution systems as set out in labour legislations on the one hand, and the common law power of the High Courts to decide on labour related matters on the other hand. The idea is to shed some light on the difficulties that may arise if the jurisdictional problems are not resolved and that this may in turn impact negatively on the labour market regulatory systems.

Good faith is recognised as an underlying principle in South African contract law, and the contract law of many countries. There has been noticeable reluctance in some common law jurisdictions against the elevation of the role of good faith in contract law. This paper seeks to explore the tension between the Supreme Court of Appeal and the Constitutional Court in the application of good faith and by implication, fairness to South African contractual disputes. It illustrates that the Constitutional Court seeks to elevate the role of good faith while the SCA is not in favour of such an approach. As the two benches are not in step with their approach, this has led to legal uncertainty in this area of South African contract law. In South African consumer contracts, the concept of fairness is explored, and the remedies at the disposal of consumers to escape the operation of unfair contract terms in different sectors. As South Africa has only provided legislative protection for consumers in the past twenty years, this area of law is comparatively speaking 'new' when compared with other countries. There are therefore lessons to be learnt from other countries in this regard as they have the advantage of time and thereby experience gained over South Africa. For comparative purposes two common law jurisdictions were also explored, namely Australia and the United Kingdom. Both countries are facing similar challenges as South Africa to elevate and expand the role of good faith in the contractual space. Recent notable court decisions in Australia and England in the commercial contract space are explored to demonstrate these challenges. This paper also considers their consumer protection legislation in order to identify if there were lessons to be learnt from their protections that should be considered for South African legislation. Due to the EU membership by the UK, the increased recognition of good faith in civil law jurisdictions has made its way into UK legislation. Good faith as a concept has also found its way into Australian consumer legislation. It may only be a matter of time before the three countries explored in this paper elevate and expand the role of good faith and fairness beyond consumer contracts. The Constitutional mandate to develop the South African common law, the UK's (current) need to comply with civil law principles due to EU membership and generally, the conventional practice by common law legislatures, academics and courts of looking to England for legal developments, are factors which will contribute to the development.

Includes bibliographical references. / This dissertation seeks to assess the impact the new Companies Act will have on the socio-economic transformation of the South African society and point out areas where corporate law can do more to help bring about this transformation. It focuses on creditors and employees as key corporate constituencies whose interests the board of directors have to constantly consider in making decisions. It argues that an expansive approach to corporate governance that includes other corporate constituencies, not only the shareholders, is the best way to harness the impressive wealth generating capacity of the corporate form to bring about socio-economic transformation in South Africa.

Includes bibliographical references. / The purpose of this paper was to determine whether arbitration is a viable alternative for resolving commercial disputes in Kenya. More so, because Kenya has adopted the UNCITRAL Model law, 1985 and revised the same in line with the model law, 2006. Furthermore, Kenya has set up the Nairobi Centre for International Arbitration, with an aim to promote and improve the conducting of arbitrations in the country. To answer the research question, the writer looked at the history of the arbitration law in Kenya, how the communities living in Kenya settled their disputes. In doing so, the writer looked at the dispute resolution mechanisms of the Kamba, the Kikuyu and the Kipsingis, all communities living in Kenya before the country was colonised by the British. We also looked at how the law of arbitration was introduced. Having established the basis of the Arbitration law in the country, the writer canvassed on the development of the law since independence in 1963 to the current situation. This included the support recently given to alternative dispute resolution mechanisms by the Constitution of Kenya as well as the establishment of the Nairobi Centre for International Arbitration. The writer also gave an overview of the role of the court in arbitration in Kenya, giving instances and examples at which the law envisages the involvement of the court in the arbitration process. Court supervised arbitration was also canvassed. The paper went on to look at the situation of commercial arbitration in two other developing countries in Africa, South Africa and Mauritius. It was found that Mauritius, which enacted its International Arbitration Act in 2008, has moved decisively to market itself as a viable, safe and prospective place of international commercial arbitration. It was also established that South Africa has not been able to review its Arbitration law, which was enacted in 1965. Last the writer looked at the opportunities, the benefits and the challenges that face arbitration in Kenya today. The research was limited by the fact that it was not possible to write about the practice of all communities in Kenya and therefore the three chosen were taken as samples to represent all the others.

The Companies Act of 2008 (the Act) has revolutionised the corporate law landscape in South Africa. The Act has been drafted with the specific intention of promoting access to the economy and of ensuring that cumbersome and costly procedures are (to a large extent) a thing of the past. These objects are a necessity when striving to ensure that South Africa's alarming inequality is abated. One of the central features of the 2008 Act is the introduction of business rescue, a procedure which represents a blatant attempt at striving to preserve ailing companies. The Act states that one of the main objects with regards to business rescue is ensuring that the procedure balances the competing interests involved. The purpose of this thesis therefore is to consider to what extent the 2008 Act has been able to achieve this. This will be done by analysing the rights given to employees, shareholders and creditors. This thesis will argue that though the procedure is a step in the right direction, it has failed to strike a proper balance by overly empowering employees and conversely leaving shareholders somewhat impotent. This thesis will also argue that some of the mechanisms employed, though they may be admirable in what they strive to achieve, leave far too much doubt as to their practicality. The overall conclusion reached is that a major overhaul is not required in order to rid this much needed procedure of its flaws.

Business rescue regime has led to dramatic improvement in ailing organizations across the globe in recent years. This work critically examines current South African business rescue option in the context of her role in the SADC sub-region. A robust model, taking into consideration, the legal, socio-cultural, political and economic diversity of SADC members is proposed. It is believed that the model can serve as a template for other regions in the continent.

Includes bibliographical references. / Preventing cartels from forming or detecting and punishing existing cartels should therefore be an important task in every country. This paper shows how South Africa and the United Kingdom deal with this task by introducing criminal sanctions into their competition law for individuals engaging in cartel conduct. As the criminal law is the ultima ratio of a constitutional state, its introduction into competition law needs some justification. In the context of competition law, criminal law is not designed to punish the offender retrospectively but to deter people from cartel conduct according to the utilitarian approach.