LL.M. / Despite payment cards being of a fairly recent origin,1 these instruments of payment play an increasingly significant role in commerce. With reference to credit cards, Cornelius already in 2003 stated: “They fulfil various functions that are increasingly important at a time that ecommerce is taking off at a tremendous pace.”2 Similarly criminals continuously use more inventive and technologically advanced methods to commit fraud, including counterfeit card fraud. Is the South African criminal law, however, keeping up? The aim of this study is to investigate whether the various activities which form part of the criminal business value chain relating to counterfeit card fraud, with specific reference to bank payment cards, are sufficiently criminalised in South Africa or whether the inability of our criminal law to address the challenges posed by this crime type necessitates the introduction of further legislation. In the first part of the dissertation the South African common and statutory criminal law is investigated in some depth to establish the applicability thereof on the activities forming part of the criminal business value chain relevant to counterfeit card fraud. The appropriateness of certain statutory provisions is questioned and recommendations are made to amend current legislation. An argument is also advanced for further development of the common-law offence of theft to include identity theft and the unlawful copying and subsequent use of data. Brief reference is made to the international situation. Chapter 2 is an introduction to bank payment card fraud in South Africa focusing on the most prevalent forms thereof being card-not-present fraud and counterfeit card fraud. Reference is made to the manner in which offences related to counterfeit card fraud are currently approached in our criminal courts and the limited impact prosecutions has on the prevalence of this fraud type.

The parent-child relationship in South Africa has recently undergone revolutionary changes. These changes are especially evident in relation to guardianship, care and contact. <p.The parent-child relationship has been revolutionised from one where the paterfamilias had the right of life or death (ius vitae necisque) over members of the family who fell under his power, to one where children have rights and parents have responsibilities. In Roman law the original power of the paterfamilias was later limited and duties were placed on the paterfamilias. In Roman Dutch law parents had not only parental powers or rights over their children, but also parental duties which they had to perform. In both Roman law as well as Roman Dutch law the father of a child born out of wedlock had no parental authority whatsoever. This meant that such father did not even have a right of access to his child. Roman Dutch law was received into South Africa. The South African Children’s Act 38 of 2005 does not refer to parental power or parental authority, instead the term “parental responsibilities and rights” is used. Guardianship is defined similarly in South African law prior to the Children’s Act as well as in the Children’s Act itself. The Children’s Act replaces the term “custody” with the term “care”. The Act also replaces the term “access” with the term “contact”. The definitions of these terms in the South African Children’s Act are similar to the definitions found in South African law prior to the Children’s Act. However, the Children’s Act has revolutionised the concepts of guardianship, care and contact in a number of ways. Firstly, the father of a child born out of wedlock acquires automatic parental responsibility and rights in certain instances. Secondly, the mother of a child may enter into a parental responsibility and rights agreement with the father of a child born out of wedlock, who does not acquire automatic parental responsibility and rights, or with any other person. Thirdly, any person having an interest in the care and welfare of the child, this includes the father of a child born out of wedlock and grandparents, may approach the court for an order granting them guardianship, care of or contact with a child. In South African law the best interests of the child standard has been applied for a number of years in matters concerning children. The best interests of the child standard is enshrined in section 28(2) of the South African Constitution, 1996 and in the Children’s Act. The rights of children in South Africa are protected in the South African Constitution, as well as in the Children’s Act. The trends evident in the Children’s Act, such as the emphasis of parental responsibility, and the protection of the rights of the child, are in line with trends in both international law (found in international conventions) as well as foreign law (for example, in the Children’s Acts of Ghana, Uganda, Kenya and the United Kingdom) and enhances the evolution of children’s rights. / Thesis (LLD (Private Law))--University of Pretoria, 2008. / Private Law / unrestricted

La presente investigación aborda el problema de las altísimas tasas de interés que se cobran en los contratos de crédito de consumo por parte de la banca múltiple, puesto que es una situación anormal que tiene que encararse y solucionarse dentro del marco legal existente y mediante mecanismos institucionales que garanticen el respeto al Estado de Derecho. / Trabajo de investigación

L'émergence du droit de la consommation en tant que discipline autonome, peut être analysée dans les effets qu'elle a produits dans le discours juridique dans sa globalité, de diverses manières. Lors des célébrations de l’anniversaire de la signature du Traité de Rome qui a jeté les bases de l'Union Européenne actuelle, on doit souligner que « L'UE a largement amélioré la vie quotidienne de ses citoyens». Qu'en est-il plus précisément de la protection des consommateurs? Sans l’Europe, le droit de la consommation ne se serait pas développé aussi solidement qu'il ne l’a fait aux cours des quarante dernières années. Le droit européen de la consommation trouve sa source essentielle dans le programme préliminaire d'avril 1975 pour une politique de protection et d’information des consommateurs qui a énoncé cinq droits fondamentaux : droit à la protection de la santé et de la sécurité, droit à la protection des intérêts économiques des consommateurs, droit à la réparation des dommages, droit à l’information et à l'éducation, droit à la représentation. Le E-commerce (achat et vente de services et produits via Internet) a transformé notre manière de consommer, offrant aux consommateurs plus de choix qu'auparavant. Mais il soulève également de nouveaux problèmes, qui doivent être réglés. Les conditions de protection des consommateurs différent encore beaucoup d’un pays à l'autre. Si dans certains pays, 76% des consommateurs déclarent se sentir suffisamment protégés par les mesures existantes, dans d'autres ce chiffre tombe à 28%. Or, depuis qu’ils ont rejoint l’Union européenne, les pays de l'Est de l'Europe, généralement situés assez bas sur l’échelle de satisfaction, ont vu ces pourcentages s'améliorer de façon importante. / In regulatory jurisdictions that provide for this consumer protection is a group of laws and organizations designed to ensure the rights of consumers, as well as fair trade, competition, and accurate information in the marketplace. The laws are designed to prevent the businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors. Furthermore the importance of the consumer protection is to safeguard the consumer from exploitation. In the absence of consumer protection, consumers were exploited in many ways for example sale of unsafe products, adulteration and hoarding of goods, using wrong weights and measures, charging excessive prices and sale of inferior quality goods. Through various Consumer Protection Acts, business organizations are under pressure to keep away from exploiting consumers. Consumer protection law is considered an area of law that regulates private law relationships between individual consumers and the businesses that sell those goods and services. In 2018, the European Commission is proposing a New Deal for Consumers to ensure that all European consumers fully benefit from their rights under Union law. A study on transparency in online platforms, also published, supports the New Deal’s proposals on online market places. Finally, the different theories show the sophisticated aspects of the French consumer law which has been developing since the Code Napoleon.

MPM / Oliver Tambo Institute of Governance and Policy Studies

The thesis analyses the concept ‘fairness’ in consumer contracts regulated by the Consumer Protection Act 68 of 2008, mainly from the perspective of a freedom and fairness orientation. It discusses the evolution of ‘fairness’ as background to a more detailed discussion of the classification of fairness into substantive and procedural fairness. The thesis examines dimensions of fairness, factors which play a role in the determination of fairness, and fairness- oriented approaches in an attempt to formulate a framework for fairness in consumer contracts. The main aspects that should be taken into account to justify a finding of fairness, or to determine whether a contract is fair, are identified. This analysis addresses, too, the extent to which the fairness provisions of the Consumer Protection Act are appropriate (with reference to the law of South Africa, Europe, and England). / Mercantile Law / LL.D.

This study focuses on the right to privacy in the workplace, specifically employees' expectations of electronic privacy where personal information is processed. The main aim of this dissertation is to establish whether, given advantages in technology, South African laws offers adequate protection for employees when their electronic information is being processed. The study analyses South African law as it relates to the privacy of employees during the processing of their personal information in the workplace.This is examined within the parameters of the constitutional and legislative framework with due regard to the common-law right to privacy. The legal issues are examined from a South African context and is compared with data protection laws and regulations of the United Kingdom. It also offers recommendations based on experience gained in the United Kingdom. / Private Law / LL. M.

The thesis analyses the concept ‘fairness’ in consumer contracts regulated by the Consumer Protection Act 68 of 2008, mainly from the perspective of a freedom and fairness orientation. It discusses the evolution of ‘fairness’ as background to a more detailed discussion of the classification of fairness into substantive and procedural fairness. The thesis examines dimensions of fairness, factors which play a role in the determination of fairness, and fairness- oriented approaches in an attempt to formulate a framework for fairness in consumer contracts. The main aspects that should be taken into account to justify a finding of fairness, or to determine whether a contract is fair, are identified. This analysis addresses, too, the extent to which the fairness provisions of the Consumer Protection Act are appropriate (with reference to the law of South Africa, Europe, and England). / Mercantile Law / LL.D.

This dissertation considers the possible impact certain requirements of the National Credit Act 34 of 2005 (hereafter NCA) has on reckless credit lending by credit providers. The dissertation will identify problem areas created by the provisions of the NCA and the impact thereof on security or partial performances linked to the credit agreement. “Reckless credit lending” used to be a new terminology introduced in the credit market to increase consumer spending, but it is currently a well-known practice in the credit industry. The NCA aims at protecting consumers, especially against present everincreasing reckless-credit practices. However, certain provisions relating to reckless credit are mostly ambiguous and vague. The NCA is silent on the development and implementation of guidelines and policies relating to the prevention of reckless credit and the consequences of such an order on security and/or performances (whether there was partial or full performance). This study will discuss the prevention and consequence of reckless credit by referring to the NCA, articles written by various authors, as well as court decisions where related concerns were addresses by the judges concerned with this issue. Although the provisions stipulated in the amended NCA improve the position of the consumer in the credit market, the legislature should have drafted certain applicable provisions with more care and detail. A more detailed draft could circumvent vagueness in particular areas of concern. / Private Law / LL. M.

Competition and data protection law are two powerful regimes simultaneously shaping the use of digital information, which has given rise to new interactions between these areas of law. While most views on this intersection emphasize that competition and data protection law must work together, nascent developments indicate that these legal regimes may sometimes conflict.  In the first place, firms faced with antitrust allegations are to an increasing extent invoking the need to protect the privacy of their users to justify their impugned conduct. Here, the conduct could either be prohibited by competition law despite of data protection or justified under competition law because of data protection. In the EU, no such justification attempt has reached court-stage, and it remains unclear how an enforcer ought to deal with such a claim. In the second place, competition law can mandate a firm to provide access to commercially valuable personal data to its rivals under a competition law remedy. Where that is the case, the question arising in this connection is whether an enforcer can and should design the remedy in a way that aligns with data protection law. If so, the issue remains of how that ought to be done. The task of the thesis has been to explore these issues, legally, economically, and coherently.  The thesis has rendered four main conclusions. First, data protection has a justified role in EU competition law in two ways. On the one hand, enhanced data protection can increase the quality of a service and may thus be factored in the competitive analysis as a dimension of quality. On the other, data protection as a human right must be guaranteed in the application of competition law. Second, these perspectives can be squared with the criteria for justifying competition breaches, in that data protection can be invoked to exculpate a firm from antitrust allegations. Third, in that context, the human rights dimension of data protection may entail that the enforcer must consider data protection even if it is not invoked. However, allowing data protection interests to override competition law in this manner is relatively inefficient as it may lead to less innovation, higher costs, and lower revenues. Fourth, the profound importance of data protection in the EU necessarily means that enforcers should accommodate data protection interests in designing competition law remedies which mandate access to personal data. This may be done in several ways, including requirements to anonymize data before providing access, or to oblige the firm to be compliant with data protection law in the process of providing access. The analysis largely confirms that anonymization is the preferable option.