South African ports are regulated by a compulsory pilotage system. This means that when a vessel enters or leaves any of the South African Ports regulated by Transnet National Ports Authority, this vessel is obliged by law to utilize a pilot to navigate the vessel safely into and out of the port. The reason for doing so is to reduce the risk of incidents that occur within the ports due to the fact that the pilots have specialized knowledge of the port’s specific conditions. However, collisions may still occur in these ports. One such incident is the collision of the MV Stella Tingas. The case of the MV Stella Tingas brought to light the unacceptable situation created by the lacunae in the Legal Succession To The South African Transport Act of 1989, where the innocent vessel that was involved in a collision with a vessel under compulsory pilotage could not get satisfaction for damages from either the ship-owner of the guilty vessel or from the Port Authority. In order to resolve this position, the Legislature enacted the National Ports Act 12 of 2005, specifically section 76, to resolve this problem. Section 76(2) states that the ship-owners of vessels under compulsory pilotage will be liable for all actions of a pilot, whilst section 76(1) provide that the Port Authority will not be liable for actions of the pilot done in good faith. The National Ports Act has however not defined good faith and the courts have not interpreted this concept since the commencement of the Act. This dissertation will investigate what good faith is, by examining exclusionary clauses and by exploring the concepts of gross negligence and intention in order to ascertain whether good faith excludes these concepts. Thereafter the dissertation will seek to discover a test that can be used in order to assess whether the actions of the pilot were done in good faith or not. The dissertation will trace the history of compulsory pilotage from its origins in English Law to South African law. It will also examine the relationship between the master and the pilot as well as the circumstances where the master can intervene in the affairs of the pilot, by ascertaining what an emergency is, as contemplated by the National Ports Act. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

No abstract available. / Thesis (M.Com.)-University of Durban-Westville, 2002.

This study was undertaken to analyse the developments in the anti avoidance legislation over a five year period from 1 March 2006 to 28 February 2011. Emphasis were placed on describing the road from the old section 103 provisions leading to the new general anti avoidance rules (GAAR) as contained in sections 80A to 80L of the Income Tax Act 58 of 1962. The study began with a detailed analysis of the differences between tax evasion and tax avoidance based on definitions and interpretations by various courts. It then went further in chapter two to formulate an acceptable distinction between Tax evasion, Tax planning and impermissible tax avoidance as currently used by the South African Revenue Services (SARS). It appeared from the study that firstly, courts have historically reviewed the circumstances surrounding an arrangement when determining whether tax evasion has occurred. The new GAAR requires the individual steps of an arrangement to be reviewed in isolation. Secondly, the courts have historically held that the purpose test, when determining the taxpayer‘s purpose, was subjective. The wording of the new GAAR indicates that this test is now objective. Thirdly, the courts have historically viewed the abnormality of an arrangement based of the surrounding circumstances. The wording of the new GAAR requires an objective view of the arrangement. A comparison was made between countries that have adopted statutory GAAR with a view of understanding how they have applied these general anti avoidance provisions successfully to tax avoidance cases. This comparison revealed that there is an inconsistent application of these general anti avoidance provisions by different countries. Courts and administrators apply them differently, based on circumstances and the nature of avoidance. Lastly, it has been acknowledged that most avoidance schemes are very complex and their perpetrators are always on the look for gaps in tax systems, hence any avoidance legislation to effectively curb tax evasion will need to be revised on a regular basis. Therefore, the Commissioner would be expected to issue regular updates on anti avoidance provisions and latest developments in the form of interpretation and or practice notes. / Thesis (MBA)-University of KwaZulu-Natal, Westville, 2011.

This thesis deals with a very important issue in government, i.e. the process of procuring goods and services. The state is the biggest consumer of goods and services in South Africa and with the increasing privatisation of government services, the ambit of procurement is expanding.<br /> <br /> Government procurement is afforded constitutional status in South Africa. Section 217 of the Constitution provides that the state must contract for goods or services in a manner which is fair, equitable, transparent, competitive and cost-effective. This does not prevent the state from using procurement as a policy instrument, i.e. to, for example, address past discriminatory policies and practices. Legislation must furthermore be enacted to make provision for the use of procurement as a policy tool.<br /> <br /> A number of statutes have been enacted to reflect the constitutional status of government procurement in South Africa. In addition to these statutes, government procurement decisions and procedures are regulated by the common law, in particular, the law of contract and the law of delict. The general rules of constitutional and administrative law also apply to government procurement.<br /> This thesis evaluates the way in which the legal regime in South Africa collectively gives effect to section 217 of the Constitution. First, the constitutional standard against which the elements of the legal regime can be measured is set out. In doing so, meaning is given to the different principles in section 217 (fairness, equity, transparency, competitiveness and cost-effectiveness) and attention is given to the legal nature of the principles and the relationship that exists between the different principles. The focus then shifts to how the principles are given effect to in legislation / how the courts give meaning to the different principles / whether there is compliance with the principles throughout the procurement process, i.e. from the time that the decision is made to procure goods or services until the conclusion of a contract and completion of contractual performances / and whether adequate provision is made for the effective enforcement of the principles in practice.<br /> <br /> It is argued that aside from a few shortcomings, the legal regime in South Africa generally gives adequate effect to section 217 of the Constitution. Not only has the procurement procedures and decisions of the state been constitutionalised, section 217 can be said to capture the most essential elements of a good procurement system. The principles of fairness, transparency and value for money, in particular, are generally regarded as the cornerstone of good procurement practices. The principles in section 217 will furthermore form part of South Africa&rsquo / s government procurement system for a very long period of time. The state will therefore always have to take serious account of the principles in section 217 and ensure compliance therewith.

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.

The Public Service is service delivery driven, and is dependent on the quality, skill and performance of the employees to carry through its business. It is therefore imperative that the policies and systems pertaining to human capital are effectively and efficiently managed. The Basic Conditions of Employment Act regulates the basic conditions of employment and states that employees’ may be absent from duty due to illness. The public sector uses the Determination on the Leave of Absence in the Public Service as a tool to regulate leave in the public sector. The Determination provides employees with 36 paid sick days to be utilised by an employee within a three-year cycle. In cases where an employee has exhausted the sick leave, the employer may grant Temporary Incapacity Leave, which is discretional. The Public Service Commission has a constitutional obligation to monitor the performance of the public sector and produce reports covering the human resources management practices. With regards to the management of leave in the public sector, the reports reveal the abuse of sick leave by employees, non-compliance and the in-effective management. The Department of Public Service and Administration then developed the PILIR as a guide to manage and administer sick and incapacity leave in the public sector. This treatise therefore, discusses the regulation of sick and incapacity leave in the public sector and investigates the extent to which the applicable legislative framework is effective. The discussion uses the Labour Court judgment in the matter between The Public Service Association & Others versus the PSCBC & Others as reference, and further evaluates the judicial jurisprudence to demonstrate the extent of contentions of the private sector employers by the employees. Furthermore, this treatise seeks to evaluate the extent of similarities or differences of the practices both the private sector and the municipalities. In conclusion, the treatise makes recommendations on the best practices that can be adopted by the public sector to turn the situation around.

The main aim of the study is to determine the views of teachers in the East London district on the influence of quintile-based school categorization on the culture of teaching and learning in No Fee Schools (NFS). The study is motivated by the high rate of underperformance registered by the NFS despite the huge amount of support and intervention directed to them. The study is located in the interpretive paradigm and hence used, was a qualitative approach and case study design. Purposive sampling technique was followed to identify participants. Twelve (12) teachers from three research sites, which are NFS, participated in the study. Data was gathered through observations, document analysis and one-on-one semi-structured interviews, respectively. In each school, a principal, a School Management Team (SMT) member and two Grade 12 teachers were interviewed as participants in order to enrich the study. The study is underpinned by the Social Identity Theory (SIT) which is guided by the pursuit of evaluative positive social identity through positive intergroup distinctiveness, which is, in turn, motivated by the need for positive self-esteem (Tafjel & Tunner in 1979). Thus, according to Hogg (2006), social identity is motivated by self-enhancement and uncertainty reduction, which causes groups to strive to be both better than and distinct from other groups. This theory afforded the researcher the opportunity to understand how teachers’ personal identity and professional identities are influenced by the categorisation status of their schools as well as by their associates. This study revealed that the no fee categorisation status seems to affect the teacher identity and their professional identities which in turn appears to affect the culture of teaching and learning in NFS. This is indicated by data that some of the teachers in NFS seem to be in denial or feel rejected whilst some are proud and embracing teaching in these disadvantaged schools. The study further reveals inadequacy of the funding systems to address lack of resources in NFS means teaches have to provide for these in one way or another. One of the main findings of this study is that various strategies used by the NFS in trying to enhance the culture of teaching and learning in their schools produces differentiated results depending on teacher’s attitudes, commitment, determination and hard work. The study also reveals that teachers from the same communities as the schools in which they work are more dedicated and willing to go an extra mile to plough back. In addition to this, teachers from similar environments seem to be driven by their backgrounds to help and support destitute learners. Amongst the strategies used in schools, matric revision camp, cell phone policy and parenting of learners by teachers are the most effective in terms of enhancing culture of teaching and learning thereby improving matric results. Moreover, the study further divulges that some of the teachers in NFS are committed, motivated and hardworking despite the contextual factors found in these schools. Furthermore, learners in these schools tend to mirror their teacher’s positive attitudes, hard work and determination towards their work which in turn they apply in their own studies. The study concludes with the findings that the teachers in underperforming NFS have to prove their worth to their associates in affluent schools or high performing NFS. Structural committees used at school levels have a positive contribution in the effective implementation of the intervention and support programs directed at NFS.

This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints

Cloud Computing has advanced to the point where it may be considered an attractive proposition for an increasing number of South African organisations, yet the adoption of Cloud Computing in South Africa remains relatively low. Many organisations have been hesitant to adopt Cloud solutions owing to a variety of inhibiting factors and concerns that have created mistrust in Cloud Computing. One of the top concerns identified is security within the Cloud Computing environment. The approaching commencement of new data protection legislation in South Africa, known as the Protection of Personal Information Act (POPI), may provide an ideal opportunity to address the information security-related inhibiting factors and foster a trust relationship between potential Cloud users and Cloud providers. POPI applies to anyone who processes personal information and regulates how they must handle, store and secure that information. POPI is considered to be beneficial to Cloud providers as it gives them the opportunity to build trust with potential Cloud users through achieving compliance and providing assurance. The aim of this dissertation is, therefore, to develop a framework for Cloud Computing adoption that will assist in mitigating the information security-related factors inhibiting Cloud adoption by fostering a trust relationship through compliance with the POPI Act. It is believed that such a framework would be useful to South African Cloud providers and could ultimately assist in the promotion of Cloud adoption in South Africa.

The primary objective of this dissertation is to assess the impact of regulation on the asset management industry. The secondary aims of the study are to investigate whether the South African asset management industry regulation is aligned towards creating an enabling economic environment, analyse the regulatory regime affecting the asset management industry and provide recommendations regarding the strategies that may be adopted by asset managers, in order to effectively and efficiently comply with existing and new regulations. A quantitative research methodology was adopted. A survey was conducted by means of questionnaire design. The questionnaire was administered to a sample of asset management companies registered with the Financial Services Board. Through empirical research the researcher gained in-depth knowledge regarding the impact of regulation on the asset management industry. There is an appreciation of the economic importance of the asset management industry, as a creator of employment and its effect on the growth and development of the South African economy in general. The regulation of the asset management industry contributes towards an enabling economic environment and development of the industry. The rationale and objectives of regulation of the asset management industry, as it pertains to systematic issues associated with externalities, market imperfections and failures, economies of scale in monitoring, consumer confidence and the consumer demand for regulation, would seem to justify the existence and development of compliance requirements. Regulation must however balance the goals of competition and efficiency versus safety and soundness. The current regulatory universe applicable to the asset management industry is justifiable, beneficial and is achieving the intended objectives. The rapid changes in regulation and costs of regulation of the asset management industry, which entails utilisation of resources such as personnel, time and systems required and limitation on investment freedom and creativity, remain the cause for concern. However based on the outcomes of the research, there is adequate evidence to suggest that the benefits of regulation of the asset management industry outweigh the costs thereof. The outcomes of the research suggest that under the new paradigm, success will be determined by how asset managers can solve several key challenges such as enhancing operational efficiency, complying with the complex and rapidly changing regulatory environment and meeting the changing customer expectations. The new era of compliance will force asset managers to focus on an enterprise-wide integration of business strategy and not simply short-term tactical solutions. For asset managers that effectively meet the challenge of the changing regulatory environment, substantial investments in infrastructure or data architecture and implementation of an enhanced operating model will provide opportunities to enhance profitability and ensure growth. / Economics / M. Com.