This dissertation critically considers the application of and necessity for the right to strike, especially regarding employees that are employed in an essential service. The South African position on the issue is examined and compared to the positions of the International Labour Organisation, the United Kingdom and the United States of America. The research in this dissertation shows that South Africaâs current labour legislation (especially regarding essential services) is in theory good, but that it is applied and enforced poorly in the country in spite of the provisions contained in the Labour Relations Act and the Constitution of South Africa. This was evident in the 2007, 2009 and 2010 public workersâ strike in which many essential services employees took part. The countries that are compared to South Africa all have different ways of dealing with strikes and essential services. These countriesâ approaches are similar to South Africaâs in some ways, (for instance regarding dispute resolution, conciliation and arbitration) but each contains some differences that could possibly be applicable in South Africa. Through these comparisons it becomes clear that the right to strike is an important international instrument of collective bargaining, but that each countryâs essential services (or services that can be classified as essential) are equally important. Every country places at the very least some limitation on essential services employeesâ right to strike. In conclusion this dissertation states that the South African labour law is not perfect and can through legal comparison be improved. This improvement, as will be made clear, is of vital importance for the lives, health and personal safety of every individual in the country.

The general principles of the law of agency form the basis of representation in South African company law. A unique set of agency principles have however developed in company law as a result of specific needs that arose from the application of certain company law doctrines (for example the doctrine of constructive notice, ultra vires doctrine, doctrine of disclosure and the Turquand rule) in this field of study. An attempt is made to elucidate the contiguity of these doctrines. The common law position regarding agency was originally regulated by the Roman Dutch principle of direct agency. This was coupled with extensive regulations regarding the relationship between principal and agent. These regulations have not provided a solution to the questions regarding agency in a modern society. A very strong need for the development of South African agency law arose as a result of this. English law provided the source for the development of the South African law of agency. The result of the development is that the law of agency in South Africa has a Roman Dutch base, but is strongly influenced by English law principles in this regard. The hybridisation of the South African legal position has provided some solutions. It must however be noted that this process has also created numerous problems. The question can be posed whether the game is worth the candle. If the position regarding agency is considered in other jurisdictions as well as in the law of close corporations it is clear that the only solution seems to be that the legislature has to remedy the situation. This has however not been done in South Africa. The South African law of agency in a company context is plagued by many difficulties. Possible solutions for these problems are provided. The research has been done on a comparative basis. The legal positions in Australia, England and the USA have been selected for this purpose.

Shareholder activism is a means by which shareholders voice their concerns or dissatisfaction in companies in which they invest. This phenomenon started centuries ago, but picked up momentum and developed in the United States of America (âUSAâ) in the 1930âs, after the fall of Wall Street in 1929. Soon thereafter, it spread to countries such as the United Kingdom and to the rest of the world. In the USA in 1934 the government passed the Securities and Equities Act, which also contains proxy rule Rule 14A-8. This rule is used as a tool to encourage shareholders to make proposals on matters to be voted on at annual general meetings. It introduced internal corporate governance approaches such as the ânegotiated agreementsâ, the ânexus of contractâ and the âone axisâ approach. In South Africa, section 185 of the Companies Act 61 of 1973 makes provision for shareholders to draw proposals to be presented at annual general meetings. Section 65 of the Companies Act 2008 will also afford shareholders to make proposals. A company is made up of shareholders. Shareholders are people or entities that have an economic interest in a company. Examples of shareholders include private individuals, directors, employees, customers, community, government, trade partners, media, creditors etc. Shareholders can be classified as individuals or institutional. Institutional activists include public pension funds and private equity funds. They can be business associations, social activists and labour unions. They can have a direct or indirect beneficial interest in a company. Shareholders can also be classified as preference, controlling, majority and minority shareholders. Companies can be incorporated as private or public. A company can be held liable for the actions of its directors. Shareholders have rights and duties in a company. These include the right to vote, monitor and elect directors etc. A company is juristic person with its own status. In terms of the rule in Foss v Harbottle a company can take legal steps against itself and if it fails any person can take legal steps on its behalf. A person who deals with a company is protected under the Turquand Rule. This rule allows persons who are dealing with a company to assume that all internal company matters have been complied with and that the agent of a company is not acting ultra vires. Companies are managed by directors who are appointed by shareholders. Directors should be natural persons who are not minors, or have committed serious offences or are unrehabilitated insolvents. Directors have duties such as to act intra vires, to exercise care, diligence and skill; to keep confidential information; to manage risks and to act as a board. Directors can be held jointly and severally for their actions. Directors can be executive, non-executive or independent non-executive directors. Directorship is terminated when a director has committed serious offences and are unrehabilitated insolvents or by agreement with a company. Reasons for shareholder activism include corporate governance. There are different systems of corporate governance such as âinsider dominatedâ, âoutsider dominatedâ, âcomply or elseâ and âcomply or explainâ. Sometimes shareholder activism has an influence over the way companies are managed. Due to shareholder activism, a company can change its management style, transform and change policies. The media, such as press, internet, radio and television play an important role in shareholder activism and therefore shareholder activists avoid the lengthy judicial process and opt for media to raise their discontent.

The National Credit Act 34 of 2005 came into operation in 2006 with the purpose to promote and regulate the credit market and industry and to protect consumers by promoting development of the credit market, consistent treatment of different credit products and different credit providers, promoting responsibility in the credit market, addressing incorrect imbalances, improving consumer credit information and reporting regulation of credit bureaus, addressing and preventing over-indebtedness of consumers, to develop a consistent and accessible system of consensual resolution of disputes and a consistent and harmonized system of debt restructuring, enforcement and judgment. With reference to the credit history and the many over-indebted South Africans, it is clear that the National Credit Act came into operation to repair the shortcommings of our previous credit legislation. With the commencment of the National Credit Act various forms of consumer credit protection was introduced to the credit market of which the most important is debt review. Notwithstanding the negative reception and impression the National Credit Act made on many South Africans, the majority of consumers welcomed the Act with open arms. The expectation of consumer protection, with reference to the prevention of over-indebtedness and debt review, was created for many consumers. After the completion of the obligated course, individuals throughout the country applied to the National Credit Regulator to be registered as debt counsellors with the prospect to assist consumers in accordance with section 3 of the National Credit Act. The National Credit Act was seen as something that will help everyone seeing that consumers do not have to run away from their obligations anymore. On paper this Act seemed to be executable, but unfortunately practical complications started to show in the National Credit Act that influenced the enforcement thereof. Grey areas like unreasonable litigation and termination of debt review, jurisdiction and cost complications are just some of the problems that debt counsellors have to face today. The consequence of these problems is that the debt review process becomes longer and more expensive than the National Credit Act aimed. To correct these grey areas in the National Credit Act, some sections of the Act must be amended to ensure that during the course of the debt review process, debt counsellors, credit consumers and credit providers will act in good faith so that the aim of the National Credit Act can be fullfilled.

Bullying in the workplace is a kind of aggression that occurs where an individual or group intimidates, excludes, harasses, insults, mistreats or demeans another individual or group at work, either directly or indirectly. A complex power imbalance presents itself, in that the perpetrator uses formal or informal power over his or her victim to such an extent that the victim is almost powerless to defend him or herself. Bullying can occur from the top to the bottom, from the bottom to the top, or horizontally. Not all kinds of bullying give rise to illegal acts, but even if menial bullying continues over time, it can give rise to severe negative effects. Due to new digital developments in employment, the management of cyberbullying, as a form of workplace bullying, complicates the legal dilemma even further. Not only do bullied victims have to continue in a working relationship where the bullying took place, but depression, stress, anxiety, post-traumatic stress disorder and a plethora of physical illnesses also take their toll, as reflected in abnormally high turnover and absenteeism figures. If no timeous intervention occurs early during the bullying, severe psychological problems have been reported by bullied victims, which render them incapable to continue with work, or lead to summary resignations accompanied by claims for constructive dismissal. Low morale and negativity have been shown to be linked to workplace bullying and impact negatively on the organisation as a whole, and vicarious liability for the employer may follow. Due to the fact that there is no universally accepted definition for bullying and different jurisdictions place bullying on different continuums, it adds to the problem of regulating and preventing workplace bullying. The question has been asked whether there is a need to legislate employees into being âniceâ to one another, but that merely shows the lack of knowledge about the notion and effects of workplace bullying. Sexual harassment is a form of human behaviour and is regulated extensively. With bullying four times more prevalent than sexual harassment, there is no reason why bullying should not be regulated also. Many countries, such as Sweden, Germany and France, have legislated bullying and there is a strong drive in the USA to have the Healthy Workplace Bill passed. Many states have introduced different versions thereof, but none have been passed. The USA treats bullying as a form of harassment, and no protection exists for employees who fall outside the scope of certain âclassesâ, unless, of course, the bullying amounts to criminal actions or tort action. The UK treats workplace bullying as a dignity violation and extensively uses antistalking law, in the form of the Protection from Harassment Act of 1997, to curb bullying. Australia views bullying from a health and safety perspective and, in South Australia, it is currently dealt with by means of Codes. There is a drive to eradicate bullying from the workplace on a national level through a new Code (dealing with workplace bullying), for which public commentary has recently closed. Little has however been done in South Africa to create awareness of, or deal with, this peril. The country is in dire need of a uniform approach to workplace bullying. It is not clear on which continuum bullying should be placed, but as our discrimination laws are not limited to certain âclassesâ, it is not suggested that separate legislation should be passed. The new Protection from Harassment Act could be used, as in the UK. Employers should embark on the creation and implementation of zero-tolerance policies in the workplace to deal with this pervasive problem. For too long the victims of workplace bullying have suffered silently at the hands of bullies.

The term âcloud computingâ, i.e. âthe cloudâ, is used to describe a virtual platform in cyberspace from and to which a user can process store data that is literary, musical, artistic or informative in nature, and which is accessible via an Internet connection. The cloud therefore functions as virtual container that holds, processes and distributes all forms of copyrighted content, and which operates outside the confines of recognised territorial boundaries. The cloud is not only distributive but participatory. It fosters a âcut and pasteâ culture by allowing users to access, store, remix and create content. The cloud promotes user-created content, a term that encompasses and insurmountable range of actions by users with respect to cloud content available on the World Wide Web. Prominent scholars have devised a taxonomy for the categorisation and classification of cloud content to some degree, but there is wide spread acknowledgement that the nature of the cloud cannot be confined to a decisive definition, nor its content exact parameters. The inexact nature of the cloud and its content poses challenges for copyright law, a regime that is premised on a distinctive subject matter, confined to territorial boundaries and aimed at identifiable parties with respect to its application. In the cloud traditional copyright law seems wholly inadequate to provide regulation on matters of infringement, fair dealing and copyright recognition. Moreover, the inadequacy of the regime for cloud application threatens to weaken its validity as a mechanism that aims to promote the innovation of works for the benefit of the general public. If copyright law is to remain a valid instrument for the regulation of user-created content in cloud computing there is a definitive need to re-evaluate, revise and expand some of the regulatory devices thereof to accommodate the expectations and interests of cloud users. Finding a means to balance the rights of copyright holders against the interests of the general public has never been more critical, and policy makers have become ever aware of the need to develop a robust copyright regime for cloud application. Accordingly, this study aims to investigate the insufficiency of South African copyright law to adequately regulate the conduct of users who can acquire, remix, upload, derive and share vast amounts of copyrighted works via the Internet. The purpose of this study is to analyse potential developments in copyright law for cloud application in order to gain insight on the regulation and adjudication of user-created content within a South African context.

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In the current economic climate, where more and more companies find themselves under financial strain, an effective business rescue system is essential. A system is needed which affords the company an opportunity to once again become a successful concern and carry on business on solvent grounds. South Africa's business rescue provisions is contained in the Companies Act 71 of 2008 and is known as business rescue proceedings. These proceedings replace the previous rescue model, judicial management, contained in the 1973 Companies Act. Judicial management was largely unsuccessful as a rescue model. This is mainly due to factors such as the fact that judicial management was to a great extent dependant on court proceedings, that the court turned it into an extraordinary remedy and the that liquidators were appointed as judicial managers. The new business rescue system notes various improvements to its predecessor and indicates the development of a true rescue culture in South African law. Some of these improvements are: the court acts more in a supervisory capacity than before, the system is more easily available and more accessible to companies undergoing financial difficulties and the business rescue practitioner should have experience in turnaround practice according to the new Act. A few problematic aspects could, however be noted. If rectified it could provide all interested parties with a valuable remedy. The true efficacy and success of the new business rescue proceedings would only be determinable after being tried and the possible practical shortcomings have been identified and corrected.

My research considers whether deposits made into banking accounts by bank customers are protected in the event of a bank failure through common law as well as existing and proposed legislative frameworks. The contractual relationship between a bank and its customer is assessed as well as the impact of a bank failure on that relationship. It is submitted that a bank failure could be construed as a breach of contract with suitable remedies to protect depositors and stabilize the financial sector during financial distress. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Mercantile Law / LLM / Unrestricted

Thesis (LLD (Mercantile Law))--University of Stellenbosch, 2006. / The objective of this study is to examine the significance of postmodern insights regarding interpretation (especially the rejection of intentionalism) and subjectivity for contractual interpretation theory. In Part One (consisting of chapters 2-5), the leading postmodern insights on interpretation, individual autonomy, texts and intentionalism are discussed. This is done by analysing the present interpretive practice in four chapters: 1) Different theories of interpretation ranging from objectivism and natural law theories to post-structuralism are discussed in chapter 2. 2) In chapter 3 individual autonomy (as advocated by liberal theorists) is contrasted with communitarianism in order to problematize the notion of contracting parties as autonomous, self-regulating beings. By highlighting criticism against liberalism and communitarianism, and also by suggesting critical self-rule as an alternative, the assertion that contracting parties are autonomous and self-regulating is contested. 3) The process of textual definition is critically analysed with emphasis on the position reflected by the application of the parol-evidence rule and also post-structuralist ideas on the definition of texts in chapter 4. It is shown that textual definition consists of interpretation rather than identification. 4) The nature of intention and the process of intention “discovery” are analysed in chapter 5. Because of the centrality of intention in contractual practice, alternative theories on intention (and its role during interpretation) are postulated and it is suggested that post-structuralism can provide a critically reflective theory of intention. It is clear (from the critical analysis of intentionalism) that the way intention is presently approached is theoretically flawed. It is also apparent from the critique of liberal beliefs held regarding the nature of interpretation, subjectivity and the definition of texts that the theoretical foundations of these beliefs are fundamentally flawed. A critical re-imagination of contractual interpretation is necessary. In Part Two, questions about the justifiability of the present interpretive theories are posed. In chapter 6 the practical implications of a new theoretical basis for contractual interpretation are considered by examining the way various rules of interpretation are influenced by the new theoretical basis of interpretation. Three “rules” are examined: 1) The golden rule of interpretation is examined because of its reliance on intentionalist assumptions; 2) the parol-evidence rule is examined because of its relation to positivist assumptions about the definition of texts; 3) the relevance of bona fides as a substantial remedy during the interpretation of the contract is analysed to reveal assumptions about the nature of legal subjectivity in which the present consideration of the bona fides is grounded. It is shown that rules depend not on their content for operation, but rather on the assumptions upon which they are grounded. In short, we do not have to do away with our rules of contractual interpretation, but we have to re-evaluate how we apply those rules. The final part of this dissertation consists of a summary of the conclusions drawn during the course of this study.