Business rescue proceedings have been introduced into South African company law under chapter 6 of the Companies Act 71 of 2008. The United States Chapter 11 bankruptcy model was closely consulted by the legislature when drafting chapter 6. Further to this and although business rescue has been generally well received, there have been legal issues which have arisen in the interpretation of chapter 6. In particular, the issue of creditors' rights against third party sureties of financially distressed companies continues to fall under the spotlight which, in tum, has caused a ripple of commercial uncertainty to filter through to creditors. This issue will be investigated with comparative reference to the position in the United States. In doing so, a critical analysis will be undertaken of the procedures and processes in both of these jurisdictions, whereafter a comparative analysis will be presented. It will be advocated that although the essential difference between the two jurisdictions is the United States' legislative regulation on this issue, South African courts have correctly decided on creditors' rights against third party sureties. Unlike in the United States where conflicting decisions have been delivered, commercial certainty on this issue does in fact exist in South Africa notwithstanding the lack of statutory regulation under the Companies Act. It will be further advocated that although there is potential for this issue to be development under the South African common law when having regard to the decisions in the United States, caution is to be exercised as such development may generate commercial uncertainty.

This thesis presents human flourishment as the theoretical foundation from which to pursue social policy in the post-colony. Accepting this theoretical foundation, the purpose of this thesis is to reflect on the role and potential of small, micro and medium enterprises (SMMEs) in South Africa. Further, this thesis will consider in what manner the law can support the realisation of the potential of South African SMMEs. The main value of this thesis is to illustrate the positive distributional impact that a human flourishment approach to legal intervention can have for a property system, which has the objective of supporting the realisation of the capabilities of persons in society. This value is illustrated in this thesis by analysing the relationship between the South African SMME and retail banking sectors. This thesis has chosen to focus on the SMME sector because of the role identified for SMMEs in South Africa's growth strategy, the National Development Plan (NDP). This role includes recognising SMMEs as being an entry point for previously excluded persons into the mainstream economy. A recent report by the Small Enterprise Development Agency (SEDA) highlights that the potential of SMMEs in South Africa remain unrealised. The report identifies key barriers to SMME flourishment in South Africa. This thesis focuses on the following identified barriers in the report: (i) the existing legal framework with respect to SMMEs; (ii) existing government agency support available to SMMEs; and (iii) the ability of SMMEs to access finance and credit. A primary finding in this thesis is existing credit structures in the retail banking sector are negatively biased towards the black population group. This has an adverse impact on black entrepreneurs. It is suggested in this thesis that this negative bias is a consequence of apartheid. Apartheid had the effect of regulating the access that black people had to the mainstream economy and their ability to acquire and accumulate property. Recognising that SMMEs have an identified role to play in South Africa's growth strategy, this thesis finds that legislative intervention in the retail banking sector is needed in order to overcome this negative bias and to support increased SMME access to finance and credit. This thesis interprets the preamble to the Constitution, as well as the concept of transformative constitutionalism, as mandating a capabilities-approach to human development. It is for this reason that a property system with a distributional outcome that supports the realisation of the capabilities of persons in society is preferred by this thesis. It is only once there is a real commitment of moving the majority of South Africans into the mainstream economy will inroads to tackling inequality and poverty be made.

The recent years have seen the recognition of Multilateral Trading Facilities and Alternative Trading avenues in the American and European stock markets. This was required as the markets had grown and regulators were left perpetually behind their needs. This paper looks at whether South Africa has any such facilities/avenues and whether they are adequately regulated. These facilities/avenues allow investors to trade in equity securities away from the exchange on which they are listed. With their increased use however, there are policy concerns that arise that revolve around; price discovery, investor protection, market fragmentation, fair competition and access. It is these concerns that regulators aim to address. The law in South Africa is clear that there are no other legally recognised avenues to trade listed equity securities other than on the exchange on which they are listed. The equities market in South Africa is also comparatively smaller compared to its international counterparts, therefore it is difficult to assess whether there are persons in the business of providing an infrastructure for trading listed securities away from the exchange. Furthermore, they would be doing so illegally thus making monitoring it harder. This paper analyses the laws in the United States and the United Kingdom and uses the work of various authors to examine the policy concerns that arise with the increased use of these trading avenues and how these concerns were addressed. Finally, the paper proposes that the South African regulators should make changes in line with the international counterparts as the market grows.

Business rescue is a process through which a financially distressed company can be rehabilitated by providing for the temporary supervision of the company, the management of its affairs, business and property. Focused research indicates that one of the main reasons that business rescues in South Africa have failed is due to the lack of post-commencement rescue finance. This dissertation puts forward a researched and suggested financial structure solution that combines two comparatively new concepts in South African corporate law, being business rescue from the Companies Act 71 of 2008 and the financing of venture capital companies in the Income Tax Act 58 of 1962. The outcome of the suggested post-commencement finance structure is that the investors investing in this structured solution would receive an immediate benefit in the form of a tax deduction and a reduction in the financial risk exposure of the investment. In turn, the company in business rescue receiving the investment funds from this finance structure would also benefit from fewer cost burdens associated with traditional debt financing (i.e. servicing of the debt) and thereby increase the probability of a successful business rescue, concomitantly resulting in the improvement in economic activity and importantly, the retention of jobs in South Africa that it so desperately needs.

Uganda is in the process of enacting a competition law. Like most developing countries, it faces a unique adoption process, local circumstances and concerns that makes the competition law and enforcement practices distinguishable from other jurisdictions. This research will analyse the need for development of a successful competition regime in Uganda by highlighting the factors that should inform the law and policy. The study will analyse the adequacy of the current competition bill 2004 in comparison with the competition laws of Kenya, Tanzania and South Africa and propose that Uganda needs to develop a competition regime that is suited to its local development needs. The East African Community (EAC) aimed at enhancing trade liberalisation and development, among other sectors adopted the East African Competition Policy in 2004 and subsequently the East African Legislative Assembly enacted the East African Competition Act in 2006. However to date an East African Community Competition Authority has not been established and the law is not yet operational. The study will further appraise the challenges to the operationalisation and implementation of the East African Community Competition Act and suggest that apart from the fact that Uganda has not enacted a competition law as required by the East African community Protocol, there are other significant challenges hindering the operationalisation and implementation of the East African Community Competition Act.

In this dissertation I shall highlight the shortcomings of the microcredit regulations in the NCA to develop proposals that ensure that the microfinance regulatory framework is not only made sensible on paper but in practice. Furthermore, it is hoped that these proposals will reflect a prosperous reality for South Africa’s socio-economic context, at present and in the future. Through analysing South Africa’s unique context, and drawing on experiences of the microcredit industry in Bangladesh (a similar developing country), I shall contribute to South Africa’s policy framework in making recommendations on amendments. These recommendations will support the objective of giving effect to the aims of the NCA relating to equally accessible and responsible credit and in ensuring that the social and economic welfare of South African citizens are advanced. Research into this topic is essential for two reasons: The first reason is that it is a necessary contribution to the literature on microfinance in South Africa. Not only will this dissertation focus on highlighting all the main aspects of microcredit regulation in South Africa, but it will also tell a cohesive story from the introduction of microcredit regulation to present-day recommendations on the improvements of such. The second reason is that this dissertation will contribute to policy reform in South Africa, intended to be a feed for further research and action on creating amendments to the microcredit policy framework. In sum, this dissertation will have both theoretical and practical significance.

Includes abstract. / Includes bibliographical references. / Outsourcing is a growing modern method of conducting business. The reach of s 197 of the Labour Relations Act in outsourcing has sparked debate and controversy in the legal community. Albeit settled that s 197 may apply to initial outsourcing transactions, a lengthy litigation battle resulted in the recent seminal Constitutional Court judgment of Aviation Union of South Africa and other v South African Airways (Pty) Ltd. The Constitutional Court pronounced on the application of s 197 to second generation outsourcing.

Includes bibliographical references.

Includes bibliographical references.

Uber has reached rock-star status in the world of 'gigs’, 'rabbits’ and 'rides’ known as the 'on-demand economy’. Uber is but one in a sea of online platforms that seek to link clients with workers offering traditional services like transport, cleaning, repairs or running errands. These platforms act as a mediator between clients and workers and often set minimum quality standards, manage the payment process as well as the supply of work. However, as these platforms gain prevalence in today’s labour market, the question of worker protection comes rushing to the fore. On the one hand, these platforms are praised for having reduced the barriers to income for individuals who might not readily be able to enter the traditional labour market. On the other hand, critics of the on-demand economy argue that companies, like Uber, shift risks to their employees by misclassifying them as independent contractors, thereby weakening labour protections and driving down wages and in favour of their own profit margins. The question of whether Uber drivers are employees or independent contractors has sparked debate in the US. This study seeks to engage in this debate albeit in the South African context. In the absence of a definitive pronouncement from a South African decision maker as to the status of Uber drivers, the core research question posed by this study is whether Uber drivers are employees under South African law. The objective of the study is to determine whether existing labour laws in South Africa offer adequate protection to workers, like Uber drivers, in the on-demand economy. It will be argued that Uber drivers do not neatly fall within the definition of employee in section 213 of the LRA. However, Uber drivers do not neatly fit the category of independent contractor either. The fact that the aspects of the 'uberfied’ work relationship do not seem to speak to the factors enumerated in the South African tests of employment suggests that perhaps these factors are outdated in the context of the on-demand economy. But, this is not a new problem. It will be argued that the problems faced by 'gig’ workers in the on-demand economy should be viewed as an extension of a broader trend towards the casualisation of labour. In this sense, it can be said that the type of work relationship created by companies like Uber, is simply an 'uberfication’ of the status quo. In other words, companies like Uber have done no more than give the non-standard employee a smart phone application with which to earn an income.