LL.M. (Banking Law) / It has long been the vogue that the traditional fraud exception is the only exception capable of defeating the doctrine of independence in documentary-credit and performance-guarantee practice. The reason for this is self-explanatory, for it has been stated authoritatively that fraud unravels all. And on construction, this must be the correct legal position. Even then however, the fraud exception is not in itself unassailable. Given the nature and exigency of the contractual relationships peculiar to documentary credits and performance guarantees, it is indubitable for their success that these unique contractual relationships be independent of one another. The latter argument is well established in the law and practice of many jurisdictions. Commercial comity, aspirations, expediency, fair trading and a measure of certainty, inter alia, dictate the necessity for the sanctity and preservation of the doctrine of independence. Without such certainty, international commercial enterprise and entrepreneurship will be the victims. Nevertheless, it would still be fair to state that there is a broad consensus within various jurisdictions regarding the application of a fraud exception to the doctrine of independence, which simply cannot be said for an exception based on unconscionability. There are cogent reasons for this disparity, some in favour of and some against an unconscionability exception. The question which begs an answer is whether the recognition of such an exception would erode the certainty and cash characteristics, inherent and integral to documentary credit and performance guarantee practice. These instruments were, after all, designed and predicated upon tenets of certainty and considered as immediately redeemable cash. Ultimately, this debate involves a choice between embracing commercial certainty on the one hand, and fairness on the other hand. In South Africa however, unconscionability does not exist as a specific concept of law with wide and uncertain parameters. But, the concept of good faith, equally confusing, awkwardly finds its place in the South African general law of contract, but in an informative capacity to the substantive requirements of the law, and not as an independent general defence. A defence in the general law of contract in South Africa, premised on the lack of good faith is bad in law, given the established brocards such as inter alia, caveat subscriptor, caveat emptor, pacta sunt servanda, 5 and the contra proferentem rule. South African legal heritage and precedent have jettisoned the exceptio doli generalis, and this precedent is peculiarly protected by the judiciary at the highest level. Good faith, in the South African context, is not the equivalent of the so called doctrine of unconscionability analysed and discussed in the academic literature and court decisions of certain common-law jurisdictions, but the exceptio doli generalis may have been, or rather, if properly developed, could have been. And so, from a South African perspective, there is the added difficulty of considering the introduction of a foreign broad-based, uncertain and undefinable doctrine grounded in equity, when the narrowly defined concept of good faith, only informative of the substantive law, finds no general application in the law of contract in South Africa. Regard will thus be had to inter alia: the nature, scope and elements (facta probanda) of this exception; certain arguments for and against its recognition; its inability to be defined with the necessary precision required for legal efficacy and practice; its lack of certainty being in essence descriptive of a host of other conduct short of fraud and inclusive of fraud; and whether the case for its recognition might perhaps have merit and applicability in relation to performance guarantees, separate and distinct from documentary credits.

Thesis is submitted in partial fulfilment for the degree of Master of Science (Building) to the Faculty of Engineering and the Built Environment, School of Construction Economics and Management at the University of the Witwatersrand, Johannesburg, 2017 / The construction industry in many countries is faced with challenges when it comes to construction project delivery and this may be due to various factors, which are identified in the research. (Memon, et al ,2010), categorized the challenges faced in the construction industry as; delays in completing projects on time, expenditure exceeding budgets as well as poor quality. The purpose of the research is to determine the impact of unrealistic initial construction programmes on time performance on projects. The research Investigates how project managers or project planner determine the initial construction periods. Investigate how the three industry participants i.e. the contractor, the consultants, and the client contribute to project delay due to unrealistic construction time periods. And further investigates what can be done to assist inexperienced consultants in determining construction time periods. This study addresses factors that affect project time performance, with the focus on the initial estimated contract duration. A mono method quantitative research was selected and used, to identify the factors that affect timely completion of projects. 33 out of 70 respondents responded to the questionnaire. Through the analyses of questionnaires, the research reports on how industry professionals use existing construction guidelines in determining the construction duration as well as the impact of programming on project performance. From numerical data obtained from the respondents, 43% believes that the client determines the construction duration, while 38% says it’s the consultant project manager and only 14% says it’s the contractor. The client, through his representative determines the construction duration. There are no regulated or standardized guidelines for determining the construction duration, this is dependent on the project managers experience. Though there are other factors that causes construction delays, and not specifically the initial programme, all these factors can be directly linked to this programme. / XL2018

Thesis (MPA.) --University of Limpopo, 2005 / Refer to document

The construction industry in South Africa is envisaged to play a pivotal role in the reconstruction of the South African economy, via the delivery of economic and social infrastructure. The skewed ownership I patterns prevalent in the construction sector, resulted in the South African government utilising public sector procurement as a mechanism to address these imbalances, and to promote wider participation I in public sector construction opportunities. This dissertation analyses the role of the construction industry in South Africa, and explores the rationale behind utilising public sector procurement as a mechanism to promote wider participation in the construction industry in South Africa. The research then focuses on the application of the Affirmative Procurement Policy (APP) on construction projects procured by the National Department of Public Works, in order to evaluate the impact which this policy has had on the growth and development of Affirmable Business Enterprises (ABEs). The research evaluates the primary policy outcomes, via the development of appropriate indices and a diagnostic quadrant comparator, and concludes that the application of the APP has had a positive impact on ABE participation, with levels of participation varying across construction sub sectors and categories. It was also found that financial premiums, borne by the State in adopting this policy, were nominal when compared with the initial projected outcomes and the overall benefits. The overall performance of ABEs, measured against that of non-ABEs, was then tested to ascertain whether the adoption of the APP was a necessary and sufficient condition for ABE enablement and empowerment. The research concludes that there is a difference in overall performance between J ABEs and non-ABEs, and that supply side interventions and capacitation programmes are required to mitigate the increased risk exposure by the State, when engaging ABEs on construction projects. The : research also analyses the variation in the levels of participation of ABEs, in the different construction sub sectors and concludes that the manner in which ABEs are structured and their internal business processes tend to establish operational limitations, which influence their scope of activitiies to a larger extent than the existence of eternal sub sector thresholds. Similar characteristics were,observed in non-ABEs of a similar size, inferring that the problems encountered relate to business development and growth of small and medium enterprises, in general. The research also. analyses the impact that the APP has had on subcontracting relationships and the promotion of structured joint ventures. It concludes that whilst the requirements of the APP has seen the development of formalised subcontracting relationships, the form of subcontracts that are currently utilised do not comply with the requirements outlined in the APP, which are aimed at eradicating unfair subcontracting conditions. The adoption of the APP has seen an increase in structured joint ventures between ABEs and larger established contractors. The analysis of these joint ventures concludes that they provide an effective means of transferring expertise, provided that they are structured appropriately. The dissertation concludes with recommendations on APP policy refinements, mechanisms to enhance compliance and opportunities for international application. The recent enactment of the Preferential Procurement Policy Act (Act 5 of 20(0) in South Africa indicates that several elements of the APP are likely to be prescribed as mandatory requirements for public sector procurement by different government institutions and across the different industrial sectors. It is therefore important that the areas identified for further research be pursued, to ensure optimal policy outcomes across a range of industrial sectors. / Thesis (Ph.D.)-University of Natal, Durban, 2000.

Municipalities in South Africa are increasingly outsourcing municipal services, including basic municipal services such as water and sanitation services and refuse collection and disposal. The Constitution places onerous duties on municipalities to respect and promote human rights in the exercise of the powers and the performance of their functions. These duties are particularly prevalent when a municipality is deciding on the optimal service delivery mechanism for basic municipal services. It is thus crucial for the policy and legislative environment regarding municipal outsourcing to be firm and clear and for the municipality to ensure satisfactory implementation of outsourcing projects, including contract management. This thesis examined the policy and legislative framework governing municipal outsourcing and described the general features of a range of current South African outsourcing contracts. It also questioned whether the policy and legislative framework are consistent in their objectives and assessed how these objectives are carried through and translated into the contract drafting and implementation phases of outsourcing.

Text in Afrikaans / The study investigates legal and administrative aspects of the interaction between public sector and private enterprise effected by state procurement of goods and services. South African government contracts are, despite their elaborate regulation by statutory and administrative prescription, regarded as the subject matter of the private law of contract. In this regard, they may be distinguished from the contrats administratif of the French and related legal systems and resemble their British and, more closely, federal American counterparts. Important aspects of government procurement, notably the contractual capacity of organs of the state, those administrative procedures which precede the conclusion of agreements with contractors, and the right reserved to the state to rescind, in the public interest, a contract duly entered into, are nevertheless to be determined by the principles of administrative law. The budgeting, audit and parliamentary control of procurement expenditure, along with the invitation of suppliers' bids and the award of contracts, are the principal administrative aspects of the study and are analysed in Chapters III and IV. The pricing of government contracts in South Africa is, with scant exception, determined by competitive tender. Restrictive trade practices and bid preferences awarded by procuring agencies in the pursuit of socio-economic policies were found, in Chapter V, to impede the operation of free market forces. The law of contract features most prominently in the performance of contracts and is examined in Chapter VI. The discussion, depicting the essential provisions of six standard form contracts commonly employed by government for stores and works, is fairly concise. References to British and American procurement law and practice, a consistent feature of the study, are, however, extensive. In South Africa, the settlement of procurement disputes is generally entrusted to the ordillary courts. Chapter VII deals with a number of special remedies accorded to the state, procedural prerequisites for the institution of civil actions against the state, and alternatives to litigation, especially arbitration and administrative appeal. The final chapters survey the efficacy of procurement as an instrument of socio-economic policy, and advance a few recommendations regarding the proper law and more efficient administration of government procurement. / Constitutional, International and Indigenous Law / 1 online resource (306 leaves) / LL. D.

A DISSERTATION PRESENTED TO THE HIGHER DEGREES COMMITTEE OF THE CAPE PENINSULA UNIVERSITY OF TECHNOLOGY IN FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF TECHNOLOGY: CONSTRUCTION MANAGEMENT CAPE PENINSULA UNIVERSITY OF TECHNOLOGY, 2008 / This study investigated the impact of variation orders on project performance in order to take proactive measure to reduce them. The study had the following objectives, namely (1) to investigate the prevalence of variation orders on construction projects; (2) to determine the cost impact of variation orders; (3) to examine to what extent variation orders added value to construction projects; (4) to determine whether the activities associated with variation orders may be regarded as waste; (5) to identify the predominant origin agent as well as the causes of variation orders; and (6) to establish the nature and extent of the impact of variation orders on overall project performance. Literature relative to the research area was extensively reviewed. The data gathering approaches included an exploratory study on costs of variation orders on two construction projects, interviews with three top management personnel in construction contracting companies, the audit of site instructions with regard to waste and their value-addedness and self-administered questionnaires. A purposive sampling method was followed to identify participants into the study. The audit of site instructions revealed that most variation orders were beneficial. However, 14% of site instructions had waste associated with them. It was possible to quantify apparent waste associated with variation orders by means of an ‘origin-cause matrix’ designed for that purpose. Problematic situations arising from the occurrence of variation orders included discrepancies between the claimed and certified amounts. Variation orders impacted project performance with regard to cost and time overruns and disputes between parties to the contract. Most variation orders involved additional works. The complexity of works was the most predominant factor influencing the occurrence of variation orders. The reduction of the occurrence of variation orders was traced back to the pre-contract stage given that the most predominant origin agent of variation orders was the client and then due to an unclear brief of works to be executed. Suggestions regarding the reduction of variation orders include (1) adequate planning in advance is required by all involved parties before works start on site, (2) consultants should do a thorough concluding design and working drawings and contract documents should be complete at tender stage, (3) clients should provide clear brief, (4) enhance communication and all parties should be proactive at all times, (5) works should be supervised with an experienced and dedicated supervisor and (6) consultant should ensure that the design/specifications fall within the approved budget and the budget team should be appointed and participate during the design phase. The study suggests further investigation regarding the development of a more equitable basis of valuation of cost recovery which was beyond the scope of this research.

Dissertation submitted in partial fulfilment of the requirements for the degree Master of Technology of Technology: Business Information Systems in the Faculty of Business at the Cape Peninsula University of Technology / This study evaluates the utilisation and effectiveness of contract clauses in Information Technology (IT) and Information System (IS) projects in South Africa to address and mitigate key risks associated with these types of projects. This study established whether specific clauses were being utilised to address key risks, and where clauses were being utilised, whether these clauses were effective in addressing and mitigating the impact of these key risks. The need for the study arose because the researcher had experienced on several occasions in his workplace that contracts which appeared fail-safe during the negotiation stage did not reach the proposed targets, let alone maturity of the agreement. To establish whether colleagues in similar positions in computer-based organisations experienced similar disruptions a quantitative questionnaire was distributed to organisations in the Johannesburg area to gain an insight into their risk profile. Risk could arise from the contract construction and/or wording. Reference was made to the contracts in the engineering environment where standard contracts have been in place for a number of years. Specifically the New Engineering Contract (NEC) of 2011 and the Professional Services Contract were consulted. The study concentrated on four categories of risk identified in a literature review, namely corporate management risk, project management risk, resource utilisation risk and technology risk, which resulted in 42 sub-factors examined. The population of suitable and relevant IT and IS companies could not be definitely established but the researcher made telephonic contact with known organisations and 24 participants agreed to participate in the exercise; 12 service providers and 12 clients of providers, where 78% of participants experienced one or more of the risk factors, and 53% used NEC standard contracts.

LL.M. (International Commercial Law) / In 2006 the governing body of the Hague Conference on Private International Law furnished the Secretariat with a mandate to conduct a series of feasibility studies on the development of an instrument, relating to the choice of law in international contracts. The outcome of these studies was largely successful, finding that there was a need for an instrument of this nature and additionally it would be welcomed by the international legal community. In 2009 the Permanent Bureau of the Hague Conference on Private International Law was invited to form a Working Group (WG) to draft a soft-law instrument affirming party autonomy in international contracts on an international level. The Hague Principles on Choice of Law in International Commercial Contracts (P) was, thus, born. The P were drafted by a panel of experts representing the majority of the world’s legal systems. The working group commentary (WGC will be used to refer to the commentary, whilst WG will be used to refer to refer to the working group itself) which provided the discussions in respect of, and the reasoning behind, the principles has been invaluable in writing this dissertation. The purpose of this dissertation is to investigate the compatibility of Australian and South African law with the P. One of the aims of the P mentioned specifically in the preamble is that these principles are to be used by countries as a model with which to develop their own rules of private international law. A study of the current law as it stands in comparison to the P marks the first step in this exercise, through finding where the law differs we can begin to bridge the disparity between a specific country’s legal system and that of the P. Should the P become an important part of the private international law discourse comparative studies such as this will become common-place. The fact that the principles were drafted as a soft-law instrument is in line with the growing world trend. The flexibility that is achieved through the use of a soft-law instrument may lead to greater legal certainty down the road as contracting parties and international lawyers alike become more familiar with the principles. This familiarity may lead to consensus among experts from around the world and eventually invite the prospect of a binding instrument being drafted...

This thesis analyses the cost of credit in the micro-finance industry in South Africa. The study situates micro-lending agreements within the law of contract, beginning with an examination of contractual fairness in terms of the common law: the fundamental principle of freedom of contract that underpins the common law of contract; the principle that agreements contrary to public policy should not be enforced; and the impetus given by constitutional values that inform public policy. In regard to moneylending transactions, common law usury law will be explained. The study then goes on to trace the origins and rapid growth of the micro-finance industry which was made possible by its exemption in 1992 from the Usury Act 73 of 1968. The upshot of this development was that registered micro-lenders have for nearly 14 years charged excessive interest rates, and continue to do so. The dire socio-economic impact of these high interest rates on individual consumers and lowincome communities is then demonstrated: how borrowers of small loans soon become over-indebted; the loss of billions of rands every year to low-income communities in the form of interest on micro-loans. The study then shifts to the legislative response to the need for consumer protection in regard to consumer credit. The extensive credit law review process is explained, resulting ultimately in the National Credit Act 34 of 2005, which allows the Minister to prescribe limits on interest rates and fees in all sectors of the consumer credit market. The prescribed limits on the cost of credit in the micro-finance sector are thoroughly explained and analysed, with particular reference to the implications of each element of the credit costing structure, and the combined impact of the total cost of credit on different types and sizes of loans. The envisaged maximum interest and fees will markedly alter the positions of micro-lenders and consumers, and receive careful analysis. The study closes with a summary of findings in the thesis, which includes suggested amendments to the National Credit Regulations and a review of possible legal challenges to the high cost of credit on smaller loans.