D.Cur. / The midwife renders a service to assist the individual, family, and\or community to promote, maintain, and restore health during pregnancy, labour and the postpartum period. The nature of the service that the midwife renders is determined by law. The midwife is responsible and accountable for her actions and conduct. It is often expected of the midwife to take responsibility for a patient and to be accountable, although legislation does not support her function. In talking to other midwives and from own experienceit has become clear that the legislation which regulates the practice of the midwife causes confusion and is limiting. As a result of this, midwives sometimes hesitate to act, neglect their duties or act outside their scope of practice. The aims of the study are: • to analyse the legislation which regulates the conduct of the midwife • to propose guidelines for new comprehensive legislation. This study has been conducted in three phases. In phase 1 focus group interviews were used to determine the problems experienced by the midwife. Phase 2 of the study consists of the above mentioned legislation. A survey of available literature is used in the analysis to test the relevance of the legislation. Various problems with the legislation are identified. The legislation causes confusion among midwives, limits her practice and is outdated. In the last phase of the research, guidelines for legislation are formulated in order to resolve the current problems and to prevent the recurrence of problems in future. Recommendations for further research are made.

There are two broad areas of prisoner rights law that require development. The first area is that of the development of a common law framework with which to analyse disputes regarding the rights of prisoners. The second relates to the significant tension that exists between the conditions of detention that the Correctional Services Act envisages and the actual conditions of detention in South Africa prisons. This second aspect requires that a mechanism be created for the meaningful exercise of rights by prisoners. As a precursor to both of the above discussions it is necessary to understand the history of prisons and the intentions of those who designed this form of punishment. As will be illustrated there tends to be to-and-fro shift in intention on the part of the authorities between those who intend imprisonment as a humane form of punishment which seeks to reform the offender and the subsequent despair of that project of reformation with a resultant focus on security and mere detention of the offender. It is also a history of conditions of detention that are generally inhumane. These poor conditions are sometimes caused by neglect on the part of the authorities but ofttimes caused by the belief that harsh conditions of detention are a deterrent to wouldbe offenders. The advent of human rights law has placed an increasingly more onerous responsibility on the state to care for the well-being of prisoners whilst in custody. This duty includes, but is not limited to, the duty to care for the prisoner’s mental and physical health, ensure that they are safe from physical violence both from fellow prisoners and staff as well as a duty to ensure that they receive the necessities of life. Various failures by the state have led to increased litigation against the state. This will continue to create an ever increasing burden on the state as the number of long term prisoners increase and damages awards are made by the courts, in favour of prisoners, against the state for various reasons. These reasons include diseases contracted by prisoners whilst in custody and constitutional damages following death in custody. It is therefore necessary to develop a clear framework with which to analyse such disputes so that decisions are made which are consistent with the principles of South African law. It is this framework which this study seeks to develop. In order to do this the relevant principles of both international prison law as well as South African law will be drawn upon. In this regard the importance of the purposes of punishment will be emphasized when engaging upon an analysis of the limitations of the rights of a person in the context of prison law. Secondly, even though a sound framework may be developed with which to analyse prisoner rights there is still the difficulty of putting a system into operation which provides a mechanism through which prisoners can exercise those rights in a meaningful way. In order to create such a system there must be recognition of the impact of criminogenic conditions of imprisonment, the purposes of punishment and the values of the South African constitution. In this regard the principles of reductionism and restorative justice are considered. Furthermore, the role of special masters will be debated and amendments to the existing legislation will be proposed.

A research report submitted to the Faculty of Commerce, Law and Management, University of Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (Specialising in Taxation) / The taxation of financial services is challenging from a Value-Added Tax (VAT) perspective. Conceptually, VAT should apply to any fee for services but where financial services are concerned, there is difficulty in quantifying the value-added by these institutions. According to the First Interim Report on Value-Added Tax for the Minister of Finance (the Davis Tax Committee report) most jurisdictions have therefore opted to exempt financial services from VAT. In South Africa, financial services are exempt from VAT, however, where an explicit fee is charged as consideration for a supply, it will be taxed. The South African VAT legislation provides for the denial of input tax on costs incurred to generate exempt supplies. The burden of an irrecoverable VAT cost exposes the financial industry to hindrances such as vertical integration and tax cascading. Certain VAT jurisdictions have however implemented policies to reduce the overall cost of financial institutions. This study will therefore analyse the alternate VAT methods to determine whether a more viable mechanism of taxing financial services in South Africa, exists. Key words: Apportionment, cascading, implicit fees, input tax, efficiency, exemption, explicit fees, equity, full taxation approach, neutrality, simplicity, standard rate, reduced input tax credit, value-added, VAT grouping, vertical integration, zero-rating / MT2017

A research report to be submitted to the Faculty of Commerce, Law and Management in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation), Johannesburg, 2017 / Transfer pricing is a continuously evolving phenomenon and is a topical issue world-wide. With increasing inter-company cross-border transactions, multinational enterprises are using loopholes in the interaction of tax legislation of different countries as a tool to shift profits to a more favourable jurisdiction, thereby avoiding tax in the jurisdiction in which they are resident and eroding the resident jurisdiction’s tax base. This research report examines and discusses the substituted South African transfer pricing legislation that applies for the years of assessment commencing on or after 1 April 2012 as well as the related SARS guidance. An analysis of transfer pricing legislation and guidelines in three selected countries and the OECD transfer pricing guidelines will also be performed. The comparisons of the legislation and guidelines will highlight whether there are still weaknesses in the South African transfer pricing legislation and will indicate possible solutions to these weaknesses which will assist in reducing the erosion of the South African tax base. Key words: Tax, Transfer pricing, Tax avoidance, Base erosion and profit shifting, Multinational enterprises (‘MNEs’), South African Revenue Service (‘SARS’), Organisation for Economic Co-operation and Development (‘OECD’). / GR2018

Food labelling serves to (a) inform consumers about the attributes of a food product so that they can make rational and well-informed choices; (b) assist manufacturers in marketing their product; and (c) warn consumers about the inherent risks of certain products, or ingredients in the product. The costs of labelling products fully and informatively are borne by consumers, but the benefits of labelling outweigh the costs. To understand the role of labelling in an regulatory system it is vital to consider the arrangement of the provisions protecting consumers generally before considering food laws and the labelling regulations. Furthermore, due to food being an international product, it is necessary to consider foreign countries and the manner they go about in protecting consumers. The United Nations, under the auspices of the Food and Agriculture Organization (FAO) and the \Vorld Health Organization (WHO), established a Joint FAO/WHO Food Standards Programme, called "Codex Alimentarius". The aim of the programme is to establish standards that can be used internationally to narrow the gap between developed countries and developing countries. To establish a standard various organs of the Codex Alimentarius are consulted. In addition, the standards have to comply with a prescribed format and follow a specified procedure. For the standard to be observed the member country has to incorporate the standard into its domestic laws. One of the advantages of the Codex Alimentarius is that the procedure to establish a standard is flexible. Australia, United Kingdom and the United States of America are member of the Codex Alimentarius. Australia, a federation of states, protects consumers by legislating either state and/or Commonwealth laws. Often there is a combination of statutes. Examples of subjects that are governed by both Commonwealth and states include false or misleading trade practices, and weights and measures. Commonwealth laws only deal with the freedom of information. Food laws are governed exclusively by state legislation. A significant area for future reform is uniformity of the state food laws. There are also other areas for future reform (eg date marking). England and Wales protect consumers by enacting statutes that relate to private and public rights. The important Acts that protect public rights are the Trade Descriptions Act, Weights and Measures Act, Consumer Protection Act, Fair Trading Act and Food Act. One of the provisions of the Criminal Courts Act is to protect personal rights when a consumer suffers personal injury, loss or damage as a result of the offender committing an criminal offence. Food labelling is governed by regulations, that are progressive. A fundamental criticism of the legislation and regulations is the lack of appropriate enforcement of the laws. The enforcement of most of the above Acts is delegated to the local weights and measures authorities. A further complication is the United Kingdom's membership of the European Economic Community. The United States of America enacts federal and state legislation. In protecting consumers in respect of food, it enacts federal legislation. The important Acts include the Fair Packaging and Labelling Act, the Meat Inspection Act, the Poultry and Poultry Products Inspection Act and the Federal Food, Drug and Cosmetic Act. The United States government also encourages openness, with regards to its public agencies, by creating the Freedom of Information Act. The class action is an innovative remedy established in terms of the Civil Procedure Act. The enforcement of food laws is delegated to the Food and Drug Administration (FDA). The protection afforded by the United States government is complex and sophisticated. Its laws serve as model for many countries. The common law of South Africa has limited value in safeguarding consumers. Consumer protection arise mostly by way of legislation and regulations. Consumers are protected generally by the Measuring Units and National Measuring Standards Act, Trade Metrology Act, Trade Practices Act and Harmful Business Practices Act, Standards Act, Dairy Industries Act and the Marketing Act. Consumers are protected against harmful and injurious foodstuffs by the Foodstuffs, Cosmetics and Disinfectants Act, and the regulations promulgated in terms of the Act. There are several problems with the laws, eg lack of enforcement, lack of consumer awareness and education, and so on. An analysis of the foreign countries discussed in Part II result in the indication of twel ve themes. Part III examine the twelve themes and present solutions. Some of the solutions are based on comparisons with foreign countries discussed in Part 11. The main issues that need to be addressed in the short-term are the lack of consumer education and problems of enforcement of consumer protection. Long-term issues include the feasibility of introducing a department of consumer affairs and the provision of statutory civil remedies for consumers. / Thesis (LL.M.)-University of Natal, Durban,1990.

This piece aims to prove that a compulsory retirement age can no longer be justified in South Africa as a constitutional state. In times where people are gradually reaching older ages due to advances in a variety of fields, it seemed that the concept of a compulsory retirement age requires an in depth consideration. This is especially measured against the backdrop of equality and discrimination legislation within The Republic of South Africa. The development of social security law provides the larger framework in which to understand the concept and intentions around retirement. Discrimination and equality legislation demonstrates that age as a listed ground for discrimination does not necessarily simplify the jurisprudence pertaining to it, especially where alternatives have been developed for continued employment. The main point of reference in the South African justice system concerning discrimination disputes is the Harksen v Lane test, whereas the principle encapsulated in Waco v Schweitzer, relates particularly to discrimination based on age. These judgements and subsequent application will be illustrated and considered during the course of this research. The influence of fund rules and fixed-term contracts on the situation will aim to show the reality of the situation. In an effort to show that the problem of an ageing workforce and retirement is not localised to South Africa, an international overview of other constitutional countries is included for context. The comparison goes further to include non-constitutional countries to illustrate the global issue. This comparison was also included in an effort to find alternative strategies that may be utilised in South Africa for retirement and age discrimination legislations and social policies.

M.Comm. (International Taxation) / Under the South African income tax system, para 12 of the Eighth Schedule states that, when a person ceases to be a resident, he/she is deemed to have disposed of his/her worldwide assets (subject to certain exclusions) at market value the day before he/she terminates his/her residency. Such deemed disposal triggers a capital gains tax charge. Commonly referred to as the ‘exit tax’, it has been in place since the introduction of capital gains tax on 1 October 2001. A recent ruling in the Supreme Court of Appeals found that according to article 13 of a double tax agreement (hereafter “DTA”) based on the Organisation for Economic Co-operation and Development Model Tax Convention, a deemed disposal is regarded as an alienation of property, and (provided the exclusions do not apply) exclusive taxing rights are given to the Resident State. This has the effect to include the deemed disposal rules relating to exit taxes under this article and potentially override the application of an exit tax under domestic legislation. The override of exit taxes based on a DTA can deprive a country of its fair share of taxes and there is no protection for a country’s tax base. It is important to understand the exit tax and the interaction with DTAs to ensure that there is fairness and equity in the South African income tax system.

M.A. / That South Africa is experiencing a water management crisis, is a fact that cannot be ignored. Although water supply departments and agencies are doing their best under the complex and demanding circumstances and have many examples of successful water projects to show for their efforts, inefficiency, unfairness and unsustainability still characterise much of the use and management of water and resources. This makes satisfying society's growing demand for reliable and legitimate water allocation extremely difficult. Groundwater is usually regarded by consumers as "private" water to be used as they please. Excessive use by such consumers of a borehole may lower the water table and reduce the amount of useable water for other consumers dependant on the same source. Some farms of land use, utilising a larger portion of available rainfall, for example commercial forestry in mountainous areas, reduce runoff into streams lower down, hampering the development potential of downstream areas. Other activities such as agriculture, mining and domestic uses, lower the quality of surface and underground water, making it unsuitable for use. Being such a scarce commodity, water should be used in the most efficient and beneficial way possible for every one in South Africa. In essence this means that all water used must be priced in accordance with its real economic value. The Water Act of 1998 is clearly based on an economic approach to bulk water tariffs. This means allocating water with the aid of water usage rights which are well defined, legitimate and non-discriminatory. The new water Act proposes a water licensing and pricing policy to achieve this goal. In striving for the economic goal, the ideal of sustainability of water management for future generations will become a reality. This study discusses the shortcomings of the previous water legislation as well as the replacement thereof with a more equitable and accessible water act. The study also contains comments on the possible shortcomings with the feasibility of some of the provisions of the new act, such as a conflict of interest that may develop, as well as possible preventive measures that should currently be undertaken to try and eliminate future problems.

LL.M. (Labour Law) / Please refer to full text to view abstract

A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, in partial fulfillment of the requirements for the degree of Masters of Management in Public Policy Johannesburg 2015 / When the newly elected democratic government came into office after the 1994 elections, it introduced reforms in the implementation of government procurement policy. The post-1994 dispensation fundamentally changed the old approach to the management of financial resources of the state. Government passed new legislation and adopted progressive policies relating to government procurement. The two major pieces of legislation, namely, the Constitution and the Public Finance Management Act (PFMA) infused the public policy concept of good governance within the realm of public sector procurement. The government procurement system was required to comply with the five principles of good governance, which are: (1) fairness, (2) equity, (3) transparency, (4) competitiveness and (5) cost effectiveness. These five principles have a universal applicability, as they are practised internationally. Their genesis is related to the period when new public management practices were attracting the attention of both developed and developing countries. However, the reforms in the implementation of the public procurement policy faced various challenges and imperfections. Given this, the primary aim of this research study is to examine whether the implementation of government procurement policy over the last 20 years has promoted the five constitutional principles that inform the concept of public procurement, as well as evaluate the implications of non-compliance as reflected in the Public Protector and Auditor General’s reports. The policy review applies a qualitative research methodology that analyses the data from official and unofficial documents, including case studies from selected Public Protector reports as well as selected court cases. Reports from the Auditor General and various newspaper articles are also used to evaluate the strengths and weaknesses of the implementation of the revised government procurement policy in the post-1994 era. iii | P a g e The results reveal a disjuncture in theory and practice in how public procurement policy is implemented to achieve the objective of good governance. In the main, government officials from affected departments fail to adhere to the requirements of applying a procurement system that is fair, equitable, transparent, competitive and cost effective. The results show that the cause of this state of affairs is a lack of understanding of what constitutes a procurement system that complies with the requirements of Section 217(1) of the Constitution. Secondly, the perceived overemphasis on socio-economic objectives over commercial considerations contributes to poor policy implementation. Lastly, the diminishing role of public participation in the processes of awarding tenders has negatively affected the public trust and confidence in public procurement. It is hoped that the recommendations contained in this research report will assist National Treasury in its continued efforts to transform and modernise the public sector procurement.