Economic efficiency is used as a proxy for the social welfare of a country's citizens and therefore it is held that if the efficiency of a country improves, so will the social welfare of its citizens. The efficiency of markets determine a country's overall efficiency and social welfare and as a result, the purpose of Competition Law has generally been to increase the efficiency of a county's markets. The efficiency of markets in turn, is increased by competition and therefore, Competition Law is generally aimed at maintaining and promoting competition, which is also the case in South Africa. Stated differently, efficiency is the purpose of Competition Law and competition the vehicle by which efficiency is enhanced. Central to Competition Law is the concept of the âefficiency defence.â In terms of the efficiency defence, efficiencies are used to justify conduct that limits competition within a relevant market (anti-competitive conduct). The general presumption is that anticompetitive conduct is detrimental to efficiency. This is not always true and in some instances anti-competitive conduct may in fact result in increased economic efficiency. The efficiency defence is the tool used to justify anti-competitive conduct in circumstances where limiting competition will result in increased economic efficiency. Despite the obvious flexibility the efficiency defence provides to competition authorities in their quest to enhance the efficiency of an economy, most jurisdictions have been reluctant to accept efficiencies as a defence against anti-competitive conduct. The South African Competition Act is still in its infancy and as a result, there are a number of grey areas pertaining to its interpretation and application. One of these areas of uncertainty pertains to the interpretation and application of the efficiency defence in South African competition matters. To date, the competition authorities have only once interpreted the efficiency defence and that was in the merger between Trident Steel (Pty) Ltd and Dorbyl (Pty) Ltd, more than 11 years ago.1174 This study contributes to the legal certainty pertaining to the interpretation and application of the efficiency defence in South African competition matters by making certain recommendations on its interpretation and application. These recommendations are based upon a comparison between South African, US and EU Competition Law jurisprudence. In addition, all recommendations are in line with contemporary economic theory, which functions as the validating criterion. The principle recommendation of this study is the recommendation that the consumer welfare standard should be employed in South African competition matters instead of the total welfare standard currently employed. This recommendation is based upon the South African economic environment which includes high levels of market concentration and high price mark-ups in the manufacturing industry. The implications of using the consumer welfare standard will be that the burden of proof to discharge in the efficiency defence is much higher than it is under the total welfare standard. The reason being that under the consumer welfare standard consumers have to benefit from efficiencies for them to be able to justify anti-competitive conduct whereas it is not the case under the total welfare standard.

Section 23 of the Constitution is an embodiment of fundamental labour rights. Section 23(1) reads as follows: â(1) Everyone has the right to fair labour practices.â The fair labour practice concept is a rather recent development in South African labour law and is it therefore still required to attempt to provide meaning to this concept. It further becomes essential to provide meaning to the concept if it is acknowledged that when this concept was introduced in 1979, the unfairness of the concept was regulated by labour legislation and the Industrial Courtâs equity jurisprudence; currently, not only the unfairness of this concept is legislatively regulated but is the fairness of this concept embedded as a constitutional guarantee in the Constitution of South Africa. It has therefore become necessary to determine the exact scope of this constitutional right in order to determine the relation between the legislative concept and the constitutional right and to investigate whether there is any room for an extended view of this right and to which limitations (if any) it should be subjected to. Prior to analysing the constitutional right to fair labour practices, a comprehensive investigation was led into the historical position preceding the introduction of this right. It was found that the history of fair labour practices played an immensely important role in the analysis of this constitutional right. The events, motivations and circumstances which consequently led to the introduction of this right, without any doubt, provided a useful guideline as to the interpretation of the right. The disregard for the human element present in the employment relationship, not only while slavery was in existence but also in the continued policies and mindsets of policy-makers thereafter, could be described as the first element contributing to the unfairness of labour practices. It was also found that, although the common law still being relevant, the common law contract of employment should no longer serve as the yardstick for establishing the existence of an employment relationship (for purposes of provision of protection and ensuring fair labour practices). Regards must rather be having to all the circumstances surrounding the relationship between a person rendering services and the person paying for the services in order to establish the true nature of the relationship. In the end, protection for either of these parties is not solely dependent on a contract of employment anymore, but rather on the fact whether an employment relationship was proven or not. Before the enactment of the Constitution, protection in an employment context was literally limited to legislation providing protection. It is suggested that legislation should be interpreted according to the Constitution and common law should be developed in terms of the Constitution. Based on this premise everyone can currently enjoy the right to fair labour practices based on section 23(1), even if excluded by legislation or common law and even in the absence of regulation by legislation or common law. When analysing the word everyone, it is submitted that our law has moved beyond the realms of contract to broad constitutionality in determining who is an employee. A claim to be recognised as an employee in terms of the 1995-LRA is not contractual in nature but rather a claim to enforce constitutional rights. Although a contract of employment (or being regarded as an employee) is required to claim labour rights in terms of the 1995- LRA and other labour laws, section 23(1) of the Constitution provides broader protection than labour laws where a person is in a work relationship akin to an employment relationship. Everyone should be determined with reference to âbeing involved in an employment relationshipâ. The following persons will therefore in general enjoy protection in terms of this right: natural persons, juristic persons, employers, workers (including employees employed in a contract of employment and employees in utero), independent â and dependent contractors, citizens, aliens, children, job applicants, illegal workers (to a certain extent), temporary workers, casual workers, acting workers, probationary workers and managerial employees. It is also suggested that the protection afforded by section 23(1) is not limited to an individual relationship but extends to collective relationships as well. Fairness is a concept that has drawn attention not only since the unfairness of labour practices in South Africa has been realised but since the beginning of time. In attempting to comprehend the meaning of this concept attention should therefore be divided to the unfairness complained of, the views of ancient philosophers, the recommendations of the Wiehahn Commission, the previous Industrial Courtâs perception and decisions on fairness, contemporary views and future predicaments (last mentioned form an important part of defining this concept due to the fact that much of the meaning of the concept of fairness is contained in its idealistic nature). Determining the fairness of a labour practice should not be done according to a value judgment made by a court as this would lead to much uncertainty. Therefore a statutory definition of an unfair labour practice must be interpreted and applied in accordance with the spirit, purport and objects of the fundamental rights guaranteed by the Constitution. It is not certain what type of value judgement will ensure fairness and it is also uncertain how it should be done. Furthermore, the content and standard of such a value judgment is uncertain. Brasseyâs determination of fairness ensures much more certainty: A labour practice will only be regarded as fair if it bears both an economic rationale and also proves to be legitimate. It is suggested that fairness is determined by balancing the respective interests of parties in any given situation. If the other factors, i.e. the concept of everyone and the meaning of fairness, influencing the application of section 23(1), the history of unfair labour practice regulation and the values of the Constitution are taken into consideration, it seems justified to conclude on the concept of labour practices in the following fashion: the Constitution envisaged to prevent and prohibit the repetition of a system that was representative of unfairness in the employment relationship. Both individual â and collective employment relations have bearing on the perceived fairness of the employment relationship. All practices concerned with the employment relationship (before, during and after such a relationship) should therefore be subject to the scrutiny of the constitutional right to fair labour practices.

The life insurance contract exists between the insurer and insured. A beneficiary may however be named in the policy to receive the proceeds at the death of the insured. This situation is assumed in the South African right to be a stipulatio alteri. Acceptance is a unique South African requirement set for the beneficiary in applying the stipulatio alteri. It does not entirely relate to the intention of a true agreement on behalf of a third. The beneficiary's rights are very limited. Before the death of the insured the named beneficiary has no right. At this stage it is also impossible for him/her to accept the stipulation to his/her advantage. At the death of the insured a contingent right developed for the beneficiary and must be protected until the beneficiary has indicated his/her intention to accept or refuse the benefit. Once the beneficiary accepts the benefit, he acquires a vested right to the proceeds of the policy.

BBBBBEE170 is an essential ingredient in facilitating the meaningful participation of blacks at all levels of the South African economy, in order to ensure sustainable socio-political and economic stability and the sustainability of the economic growth and development. BBBEE key principles ⢠It is an ongoing process and not an event ⢠It is a business imperative and an integral component of the companyâs business strategy and is based on the core values of the organization ⢠⢠It must result in meaningful and significant participation of blacks in the company and in the broader economy, through substantial changes in the racial composition of ownership, control, management structures and of skilled and specialist positions ⢠It must lead to advantaged strategic position for the company, greater profitability, business growth and sustainable increase in stakeholder value ⢠it is the responsibility of all management in the organisation

From 1904 the worldâs first antidumping law was enacted by Canada, South Africa followed in 1914, the GATT in 1947, and China in 1994. Over time, antidumping law has become a potent weapon in most countries of the world. South Africa and China, as member states of the WTO, increasingly participate in international trade and must remain aware of their legal right in respect of antidumping law. The purpose of this study is to identify and analyse some problematic issues of antidumping regulations, with specific reference to the legal framework in South Africa and China. With this purpose in mind, firstly, the background information and a brief history of the development of antidumping legislations by the international community, South Africa and China are discussed. Then, the issues of antidumping substantive law (including normal value, export price, dumping margin, injury, and domestic industry), especially with the problem of a nonmarket economy country and captive production, price undertaking, price undertaking reviews, and anticircumvention are analysed. In order to come to a clear understanding of the problems and solutions, the antidumping laws of the U.S., the E.U., South Africa and China are compared. This study resulted in the following conclusions: ⢠The provision for a nonmarket economy country in the South African Antidumping Regulation is not adequate. China has no stipulation about this problem. ⢠Both South African and Chinese antidumping regulations have no captive production provisions. The E.U. model is recommended. ⢠With respect to price undertaking, the South African Anti- dumping Regulation followed the stipulations of the WTO. The Chinese Antidumping Statute is only superficially compliant with the WTO Antidumping Agreement. ⢠The South African Antidumping Regulation leaves a gap with regard to price undertaking reviews. China has definite provisions on it. ⢠With respect to anticircumvention, both countriesâ antidump- ing regulations are not adequate, especially for China. Recommendations are made with regard to South African and Chinaâs antidumping laws. This research is hoped to contribute to the improvement of the legal framework of antidumping regulations in South Africa and China.

In the South African context, BEE is not only regarded as a moral and social imperative, but also as a legislative one. BEE functions on two levels, namely the creation and sustenance of wealth, and the creation of opportunities, in order to widen the economic sphere. If successful transformation is to be achieved in South Africa, it is of vital importance that practical suggestions for its implementation be investigated. The co-operative has been described by international organisations like the International Co-operative Alliance, as a business enterprise that develops and /or empowers people through self-help. Locally the co-operative both on SMME and large corporate scale has been identified as a potential vehicle to drive the social and economic upliftment of the people of the South Africa. The Co-operatives Act 14 of 2005 was promulgated to give effect to this. Co-operatives have the following characteristics that make them ideally suited to the current South African situation: they are versatile in their application, they are accessible enterprises as initial establishment is cost effective and they are generally easy to establish, they provide both a social and economic function (dual function) to their members, generally apply a one-member-one-vote-system in management thereby promoting democratic principles, and they promote the concepts of individualism and autonomy within their structures. A successful co-operative enhances both individual and collective human dignity and promotes the values of ubuntu, which uplifts people on all levels, thereby complying with both the social and economic aspects of BEE in the creation of opportunities to widen the economic sphere. Furthermore, the cooperative as an enterprise complies with the BEE scorecard as well as with the Codes of Good Practice which were drafted by government in accordance with the provisions of the Broad-based Black Economic Empowerment Act 53 of 2003.

With the coming into force of the Constitution of South Africa one of the main objects was the achievement of equality. This entails the use of different measures in order to achieve a general state of equality in every sphere of society. These measures, better known as affirmative action, aim at making the workplace more representative of designated groups. This lead to the coming into force of the Employment Equity Act which aims at eliminating unfair discrimination and implementing affirmative action measures in order to promote equality in the workplace. This study acknowledges the importance of affirmative action, but the application thereof is mostly criticised as being unfair. The gaps that have been identified include the following: The arbitrary application of equality in that the court does not give proper consideration to fairness and the wrong application and notion of affirmative action by making use of indirect discrimination such as previous disadvantage in stead of neutral considerations such as under representation in the workplace. Affirmative action is also understood by some as being a right and not a measure and a defence. The Employment Equity Act is also exclusively utilised which will result in nondesignated groups being indirectly drawn from the labour market. Furthermore, to much stress is put on employment and not enough attention is given to job-creation and socio-economic development and training. Lastly there is little consideration of the importance of the employment equity plan in that it is an instrument for the application of affirmative action in the workplace. In considering these problems it is evident that the Employment Equity Act will have to be amended by adding proper criteria in evaluating the fairness of employment equity and providing for the inclusion of non-designated groups in order to insure the elimination of under-representation in all labour sectors. Furthermore, more attention must be paid to other problems like training and development that will add to the success of affirmative action. Finally employers will have to acknowledge the importance and advantages of an employment equity plan in that it is an instrument protecting the employer and assisting him in implementing employment equity. The reform of affirmative action and more specific employment equity can possibly result in a more positive attitude and a more effective application in South Africa.

When engaged in multilateral trade discourse developing countries have to take heed of involved principles and the general impact of the enforcement of such principles to their economic trade background. The principle of special and differential treatment is one of the principles that directly affect this category of states. It is therefore essential to know its proper interpretation and the ensued implementation. There is also the need for both the developed and developing countries alike to take special and differential treatment seriously in order to achieve indiscriminately the best system suitable for fair-trade practices.

The GmbH and the close corporation within their respective legal contexts provide alternative legal options for small and medium sized business entities, giving them a simpler and less expensive legal form, thus satisfying the need for flexibility while guaranteeing liability limitations and continuity. While the maximum number of members in the GmbH is unlimited, the close corporation is restricted to ten members. Membership in the GmbH is open to natural and juristic persons alike. The close corporation is, generally speaking, only open to natural persons. Membership as such is expressed through shares in the GmbH and members' interests in the close corporation. The transfer of a share and a memberâs interest is allowed. The regulations for transfer and restrictions vary. In both entities the members as such are the highest decision making organ. Regarding organs, the GmbH is more formally structured and has, as mandatory organs, the managing director and the shareholders' meeting. Such a strict distinction is not embodied in the CCA; and while the GmbH-members must appoint a managing director to represent the GmbH, the close corporation uses the partnership principle of mutua praepositio. Each member of the close corporation has the right to participate in the management of the affairs of the corporation. While for the GmbH articles of association are compulsory, in the close corporation it is up to the members whether they conclude an association agreement or refrain from doing so. The applicable legislative measures provide differently for the protection of the financial well-being of the entities. The GmbH as 'Kapitalgesellschaft' requires strict compliance with specific obligations imposed by its members regarding their share capital contribution, while for the close corporation various aspects of liability and external relations are equally important. The innovative liability solution found in the CCA is remarkable. Concerning transparency of financial matters the close corporation requires the position of an accounting officer, and through this achieves some kind of control with regard to the financial matters, which are otherwise an internal affair of the corporation. The GmbH is 'forced' to make its financial matters more transparent. Subject to specific conditions, companies are required to have their financial results audited and approved by a certified public accountant. In the African context it is noteworthy that the principal objectives of the African Union aim at accelerating political and socio-economic integration. Given the success of the close corporation this legal form, a Societas Africaea, utilized for smaller entrepreneurs, can play a role in achieving these goals. The reform process initiated through the SA DTI must take into account that the creation of wealth in South Africa is achieved by companies in which the close corporation plays an important part. Necessary reforms must therefore be pursued with precaution. A possible one-Act approach for South African company law is to be viewed critically as the differentiation between various types of enterprises should not easily be put aside. It will be interesting to see how the GmbH takes on the challenge of the new legal forms within Germany and the competition with similar foreign business forms now entering the German market as a consequence of the ECJâs recent judgements and how the close corporation will develop within the context of a company law in the process of reform. It is also of relevance for the South African reform process to follow the developments in Britain. The close corporation has been commented on positively not only within South Africa. The recent discussion in the USA on the close corporation approach and its legal structure is of relevance here.

The South African labour law stands central to the economic development of South Africa and the relationship between employer and employee is therefore very important. The dismissal of an employee is the strictest possible sanction in the workplace. It does not only end the service relationship, but also deprives the employee of his source of income. The status of the person changes from being an employee and breadwinner to being unemployed and dependent. This holds economic and social consequences not only for the individual, but also for the economy of the country. The fairness of the employeeâs dismissal is therefore crucial. The Constitution of the Republic of South Africa reconfirms the importance hereof by the right to fair labour practices â a right everyone is entitled to. This right is included in the Labour Relations Act of 1995 and especially in the principle that everyone is entitled not to be dismissed unfairly. Focus areas dicussed in this thesis are the importance of and the manner in which discipline is applied in the workplace, as well as the principle of procedural fairness within the international area. This thesis discusses the international debate on fairness and considering various interests against the background of legislation, application and exclusion. The development of the notion of âfairnessâ is discussed within the South African context, before focusing on procedural fairness in the workplace. The individual employeeâs rights and the employerâs responsibility during disciplinary processes are dicussed in this thesis. The specific focus of this study includes the following aspects of a fair process: ⢠the employee should know what the charge against him entails; ⢠the employee should receive a fair opportunity to prepare himself; ⢠the employee should get the opportunity to state his side of the case and to put questions to witnesses of the employer; ⢠the employee has the right to receive assistance during the process; and ⢠the employer should notify the employee of the decision in writing. This study recommends that employers should revise their internal codes to fulfil the objectives of the Labour Relations Act, Schedule 8, Item 4 and to simplify the total disciplinary process in the workplace without parting with the principles of fairness, and also that legal representation should be allowed. The recommendation is that a new category should be created for small business employers in order to simplify the dismissal process and that employees are excluded for the first 12 months of service, and therefore cannot claim against the employer. A Code of Good Practice for dismissal in a small business and a control form to be completed by the employer were created. It is also suggested that the model for renumeration after dismissal should be adapted in cases where either the employer or the employee did not comply with the internal procedures and that cost orders at the CCMA/councils should be reinvestigated to avoid abuse. Dismissal has been and always will be an action in dispute. Therefore, the process should be clear and should give the necessary direction, in order to ensure that workplace disputes can be settled within an open and democratic society, within the framework of the Constitution.