Due to length and time constraints, this dissertation will briefly examine and provide an overview of the current method that courts have adopted in bringing a class action in Southern Africa and internationally. Specific focus will be on the Unites States of America, Australia and the Canadian province of Ontario. Challenges of bringing a class action will also be discussed, with a view of ascertaining the most appropriate or well-suited method of bringing a class action under the Consumer Protection Act 68 of 2008. The main issue that will be analysed will be the certification process. The key question to be answered is which approach or procedure, in dealing with the certification requirements under various jurisdictions, should South Africa adopt or incorporate into, class action procedure legislation? In chapter one I will introduce the concept of a class action as it is a relatively new concept found in South African consumer legislation. Different definitions of a class action will be discussed in context of particular statutes. I will define and highlight the purposes of a class action in South Africa and show why there is firstly, a need for such a procedure and secondly why there is a need for such procedure to be codified into legislation. In chapter two I will discuss certain important aspects of class actions. The purpose of this is to identify the main features of a class action. Ultimately, the purpose will be to discuss whether or not these features should be included in South African class actions. Chapter three will commence with the comparative perspective portion of this paper. The legislation adopted by the United States, will be discussed in chapter three followed by a discussion of the Ontario legislation in chapter four and the Australian legislation in chapter 5. The approaches that these jurisdictions have taken in respect of a class action procedure serve as a basis upon which a class action procedure for South Africa will be recommended. Chapter six will provide conclusions that have been drawn through analysis of the foreign jurisdictions’ class action procedures which will reflect the best and worst elements of a class action procedure. This is significant in determining what type of class action procedure would be best suited to South Africa. Chapter seven will highlight the current South African approach to class actions through an examination of case law and a Report by the South African Law Commission. This chapter will also analyse the short-comings in the South African approach through a critique of case law. In chapter eight of this paper I will propose an approach that South Africa should adopt with regard to a class action procedure that is best suited to South Africa’s social climate. Finally, I will conclude with a summation of the arguments presented in this paper in chapter nine. / Thesis (LL.M)-University of KwaZulu-Natal, Durban, 2013.

The franchising business model is an attractive option for both franchisors and franchisees. Franchisors grant the rights to use their intellectual property and business system to franchisees for a fee. Franchisees buy into the tried-and-tested business system, receive ongoing training and support and operate under an established trade mark or trade name. Fundamental characteristics of the franchise relationship include: the contractual nature thereof, the use of the franchisor‘s intellectual property by the franchisee, operating the franchise outlet according to the franchisor‘s business system, providing training and support to the franchisee, and paying for the use of the franchisor‘s intellectual property and business system. These characteristics have resulted in inherent tensions between franchisors and franchisees, which arise by virtue of, inter alia, the control exercised by the franchisor over the use of its intellectual property, franchisor opportunism, poor franchisee selection, franchisee free-riding, inadequate training and support, or the sunk investments made by the franchisee. The franchisor and franchisee generally use a franchise agreement to regulate their relationship. However, the franchise agreement itself can also lead to conflict between the parties, such as that arising from poor drafted clauses relating to territorial rights, renewal, payment, termination, restraint of trade, or confidentiality. The franchise agreement is typically drafted in the standard-form, resulting in franchisees faced with unequal bargaining power. The common law of contract is based on principles of freedom of contract and sanctity of contract and is, therefore, limited in its ability to resolve the tensions between the parties. Various models for regulating the franchising industry can be adopted, for example, self-regulation, statutory regulation, or co-regulation. Australia and Canada have adopted the statutory model by enacting franchise-specific legislation and New Zealand has followed the self-regulation model with no legislation regulating its franchising industry. South Africa did not formally regulate the franchise relationship through legislation until the enactment of its consumer protection legislation, the Consumer Protection Act 68 of 2008 (CPA), which includes a franchisee within the definition of consumer. This entails that all franchisees enjoy the protection of the CPA and all franchise agreements must comply with the provisions of the CPA. The South African economy is unique in that it is burdened by the social ills of its discriminatory past, such as high levels of unemployment, illiteracy and inequality. The country is faced with a slow growing economy with little development and promotion of entrepreneurship among small businesses. Despite the burdensome economy within which the franchising industry is required to operate, the industry‘s contribution to the Gross Domestic Product (GDP) of the country has remained stable. The South African government has identified the franchising industry as an opportunity for job creation, economic empowerment and promotion of entrepreneurship. The aim of the study is to ascertain whether the CPA is the correct legislative vehicle to regulate the franchise relationship, while enhancing the growth and development of the franchising industry. This thesis concludes that the introduction of fundamental consumer rights and rights of redress for franchisees through the provisions of the CPA has contributed to, or assisted in, the removal of the tensions inherent in the franchise relationship. In particular, the CPA has adequately addressed the lack of formal regulation of the franchise relationship through its disclosure requirements and its regulations. The thesis also proposes amendments to some of the CPA regulations, which will further enhance the disclosure requirements, and aid in curtailing the conflict caused by the terms of the franchise agreement. The thesis further proposes that the application of the CPA to franchise agreements should be limited to small, inexperienced or unsophisticated franchisees that are in need of the protection. An essential premise is that the CPA aims to protect ordinary consumers, including juristic persons, in day-to-day transactions (up to the threshold amount), to avoid suppliers taking advantage of them. Larger, more sophisticated or experienced franchisees, with stronger bargaining power and access to legal advice, do not necessarily require the protection of the CPA. The criteria relating to the size of class of micro-, very small and small enterprises, but not medium enterprises, within the different sectors or sub-sectors in terms of the National Small Enterprises Act, 102 of 1996, should be considered and used as a guide to determine whether the CPA applies to a franchise agreement. The development, growth and success of the franchising industry depends on the education of prospective franchisees wanting to adopt the franchising business model and invest in the industry. The CPA does not recognise or promote the roles of the various stakeholders (franchisors, franchisees and the government) with regard to the provision of education, training, ongoing support and assistance to prospective franchisees. This thesis proposes that mechanisms to enhance the education of prospective franchisees should be promoted, such as tandem franchising, obtaining advice undertakings from prospective franchisees before concluding franchise agreements, and increasing the role of the Consumer Commission in providing franchising education.

The exceptio doli generalis, which is the Roman law defence of “bad” faith, in the general form, has , until the decision of Bank of Lisbon and South Africa (SA) (Pty) Ltd, been one of the mechanisms that has been utilised by South African courts to apply abstract values of fairness and equity into the South African substantive law. The exceptio dolis generalis was available to a party in circumstances where the act of bringing the action by the other party constituted an act of “bad” faith. The court in the Bank of Lisbon and South Africa case decided that the exceptio doli generalis had never been received into Roman Dutch law and didn’t accept it as a defence that could be utilised and applied in South African law. After the decision in the Bank of Lisbon case there have been many differing views on whether the exceptio doli generalis can and should still be applied in South African law and concern in legal circles regarding the “gap” that the decision left in our law and the need to develop other means of ensuring greater fairness in the operation of the law of contract through possibly legislative intervention which at a stage was being investigated by the Law Commission. With the introduction of the Consumer Protection Act, Act 68 of 2008, the question which now comes to the fore is whether the Consumer Protection Act is a reintroduction of the exceptio doli generalis or whether the Act is merely a codification of the common law principles and abstract values of public policy/interest and good faith, which could mean one and the same thing. In order for this question to be answered an in depth investigation and study of theexceptio doli generalis, its applicability and development in South African law is required. Such a study is of importance in order for the aim and purpose of the defence to be properly understood. It is also necessary in order to understand how such a defence ties in and is closely linked with the abstract values and concepts of good faith and public policy/interest, which we have seen courts recognise in decisions subsequent to the Bank of Lisbon and South Africa case. Once this question is answered, attention will be turned to the Consumer Protection Act, its provisions and the effect thereof, and whether such provisions amount to the reintroduction of the exceptio dolis generalis but in an indirect way by the codification of the concepts of public policy/interest and good faith, which in turn could be the exceptio dolis generalis just called by a different name. The answer to this research question is very relevant and of extreme significance. It could mean that the South African legislature eventually got to doing what the legal profession has been asking of it for years and that is to put clarity on the defence of the exceptio doli generalis. / Dissertation (LLM)--University of Pretoria, 2013. / Private Law / unrestricted

Businesses communicate a wide variety of messages to diverse audiences using a number of different communication types and channels daily. For example, business communication includes business reports, documents (booklets, leaflets, and official communiqués), notices, agreements, web copy and advertisements that are produced continually to address a variety of business communication needs for a variety of audiences. Although written business communication has a significant impact on customer satisfaction and consumer attitude which, in turn, affects consumer behaviour positively or negatively, there is a lack of research investigating the knowledge and application of plain language in business communication. Many studies were found to be related to communication and language, however, studies about plain language use were less prevalent. Therefore, this study aimed to investigate the awareness of the plain language regulations stipulated in the South African Consumer Protection Act (CPA) 68 of 2008 (2009). The application of these plain language principles within businesses in the Port Elizabeth Metropole, with specific reference to its use in written business communication was also investigated. The study also aimed to identify plain language best practices and constraints resulting from plain language application or non-application within the selected organisations. The research focused attention on the impact of business communication on customer satisfaction, consumer attitude and, ultimately, consumer behaviour as well as the need for plain language use in written business communication practices to ensure effective and fair (ethical) communication. A comprehensive literature review was conducted on communication, communication theory and consumer behaviour, as well as on plain language principles which might add to the effectiveness of organisations’ written business communication, to provide a theoretical foundation for the study. The study’s research methodology was approached from a phenomenological (descriptive and interpretive), and somewhat positivistic perspective, utilising qualitative and limited quantitative measures to obtain data. For this reason, three managers from three respective organisations within the Port Elizabeth Metropole were interviewed and asked to complete a rating-scale survey to obtain insight on the written business communication practices of these organisations. A content analysis of documents supplied by the participating organisations were also reviewed to provide commentary on the plain language application in each organisation. Furthermore, Section 2 of the South African CPA 68 of 2008 (2009) was also reviewed to measure and comment on the application of plain language in these organisations. Based on the data analysis, it was evident that organisations in the Port Elizabeth Metropole were aware of plain language and the plain language regulations stipulated in the South African CPA 68 of 2008 (2009), but that they were not certain what the regulations entailed exactly. Furthermore, plain language principles were applied in the participating organisations, however, complications and areas for possible improvement were identified in the data. From the study’s findings, various recommendations were made that could assist the organisations to improve their organisations’ plain language application. These recommendations included, for example, appointing plain language champions to monitor plain language application in the organisation, as well as assessing language competence of staff and training them to improve their language competencies. Recommendations for future research suggested that future studies needed to include a larger research sample, a more diverse sample population to include consumers and a broader industrial demographic. In addition, future studies could attempt to investigate communication barriers that inhibit or challenge comprehension in consumer communication.

This dissertation considers the possible influence of the Consumer Protection Act 68 of 2008 on the common law obligations of the seller vis-à-vis: 1) risk and duty to take care, 2) eviction and 3) defects. Before one can have a look at the influence of new legislation on the common law, it is necessary to first go backward to look at where it all started in order to understand any possible influence. In the first chapter there is therefore a historical overview of the common law in general as well as the law of contract. Reference is also made to the Roman law perspective as well as the Roman concept of contract; the Roman-Dutch law perspective as well as the Roman-Dutch concept of contract; and the South African law perspective as well as the South African concept of contract. In chapter 2 the common law and the law of contract is discussed in general with reference to concepts such as ownership, law of obligation, and the emptio venditio. Chapter 3 deals with the essence of this dissertation as we look at the common law obligations of the seller and in specific the risk and duty of the seller to take care of the thing sold until it is handed over to the buyer (factors that influence the duty to take care, passing of risk, and passing of risk in sales by way of consignment); the seller‟s warranty against eviction (including the obligations of the buyer when there is a threat of possible eviction); and the seller‟s warranty against latent defects (ex lege warranties, ex contractu warranties, the actio empti and the aedilitian actions). In chapter 4 there is a very short discussion on the influence of the Constitution of South Africa, 1996 in general as well as specifically on the law of contract. Chapter 5 deals with the influence of the Consumer Protection Act 68 of 2008 in general, specifically on the law of contract (why an Act to protect the interests of consumers?) and then the influence on risk and the seller‟s duty to take care of the thing sold (the consumer‟s right to return goods; the supplier‟s obligation to draw potential risk of an unusual character or that the consumer could not reasonably be expected to be aware of or that could result in serious injury or death to the attention of the consumer), the influence on the seller‟s warranty against eviction (the consumer‟s right to assume that the supplier is entitled to sell the goods; sections 44 and 51) and the influence on the seller‟s warranty against latent defects (disclosure of reconditioned or grey market goods; quality of goods). The conclusion follows in chapter 6. / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

This dissertation studies three topics in financial economics. In the first chapter, "ESG Investing in Emerging Markets: Betting on Firm Fundamentals or Riding Investor Preferences?", we examine the relation between firms' environmental, social, and governance (ESG) practices and the pricing of corporate bonds in emerging markets, which is an important yet understudied market for ESG-related issues. Firms with different ESG scores can have different costs of capital, either because ESG scores help forecast future cash flows -- the "fundamental" channel -- or because investors have non-pecuniary preferences for high-ESG-score assets -- the "preference" channel. We identify the existence of a preference channel with a natural experiment -- the historical opening of the Chinese onshore bond market -- that leads to an increase in the proportion of international investors, who are more ESG-conscious. Consistent with theory, we find that the bond yield of companies with high ESG scores decreases more than that of companies with low ESG scores. By focusing on firms that also have bonds traded in the offshore market, which, as opposed to the onshore market, does not experience any change in regulation, we can control for issuer-time fixed effects in a triple difference design, hence reducing considerably the influence of the fundamental channel. In the second chapter, "Watch what they do, not what they say: Estimating regulatory costs from revealed preferences", we show that distortion in the size distribution of banks around regulatory thresholds can be used to identify costs of bank regulation. We build a structural model in which banks can strategically bunch their assets below regulatory thresholds to avoid regulations. The resulting distortion in the size distribution of banks reveals the magnitude of regulatory costs. Using U.S. bank data, we estimate the regulatory costs imposed by the Dodd-Frank Act. Although the estimated regulatory costs are substantial, they are significantly lower than those in self-reported estimates by banks. In the third chapter, "Fuzzy Bunching", we introduce a new fuzzy bunching approach that is robust to noise. The existing bunching approach identifies the extent of bunching from a sharp spike in the probability density function. In many finance settings, however, the sharp spike could be diffused by data noise. The key idea behind our fuzzy bunching estimator is to identify bunching from the area of a bulge in the cumulative distribution function. The fuzzy bunching approach also avoids density estimation, which makes it easy to implement in sparse data. We provide the theoretical foundation of this approach and illustrate the advantages by using simulated and real data.

The law of contract in South African affords parties the freedom to enter into a contract and who they wish to enter with. The general requirements for a legally enforceable contract are consent, good faith, and the sanctity of contract. The contractual freedom of parties also offers them freedom to choose the terms of their contract. Part of these terms is the freedom to incorporate exemption clauses in contracts. An exemption clause is a waiver of liability or the apportionment of risk in the event of an occurrence materialising as defined in the contract. Exemption clauses have become the norm rather than the exception and parties must therefore expect a contract to contain an exemption clause, albeit unfair. Until recently, there was no legislation that declared exemption clauses as unfair. The Consumer Protection Act is South Africa's first legislative regulation on unfair contract terms and the waiver of liability. The Act does not address the contractual freedom of parties to incorporate exemption clauses and whether they will be unenforceable in the light of section 48. The Act cannot be implemented without considering the freedom of contract to rely on exemption clauses. A literature study will be undertaken in order to establish the influence of section 48 of the Consumer Protection Act on South African law of contract and exemption clauses. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2015

The law of contract in South African affords parties the freedom to enter into a contract and who they wish to enter with. The general requirements for a legally enforceable contract are consent, good faith, and the sanctity of contract. The contractual freedom of parties also offers them freedom to choose the terms of their contract. Part of these terms is the freedom to incorporate exemption clauses in contracts. An exemption clause is a waiver of liability or the apportionment of risk in the event of an occurrence materialising as defined in the contract. Exemption clauses have become the norm rather than the exception and parties must therefore expect a contract to contain an exemption clause, albeit unfair. Until recently, there was no legislation that declared exemption clauses as unfair. The Consumer Protection Act is South Africa's first legislative regulation on unfair contract terms and the waiver of liability. The Act does not address the contractual freedom of parties to incorporate exemption clauses and whether they will be unenforceable in the light of section 48. The Act cannot be implemented without considering the freedom of contract to rely on exemption clauses. A literature study will be undertaken in order to establish the influence of section 48 of the Consumer Protection Act on South African law of contract and exemption clauses. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2015

No abstract available. / Dissertation (LLM)--University of Pretoria, 2013. / gm2014 / Mercantile Law / unrestricted

MPM / Oliver Tambo Institute of Governance and Policy Studies