LLM / Department of Mercantile Law / The study critically analyses the concurrent enforceability of restraint of trade and garden leave in South African Labour law. The study seeks to answer the question of whether or not the simultaneous enforceability of restraint of trade agreements and garden leave is reasonable. Designed within a qualitative paradigm primarily based on a critical literature review, the study employs a doctrinal approach to establish the contemporary legal position in respect of the simultaneous enforceability of restraint of trade agreements and garden leave in South African Labour law. The objectives pursued by the study are to mitigate the controversies and clear the confusion relating to the enforceability of restraint of trade agreements; to justify the doctrine of restraint of trade; assess the reasonableness of the simultaneous enforceability of garden leave and restraint of trade; examine the onus of proof in matters dealing with the enforceability of restraint of trade agreements; test the constitutionality of restraint of trade agreements; evaluate the relationship between restraint of trade agreements and garden leave; and propose practical recommendations that can be employed to address identified legal flaws in the context of the topic. Structurally, the study begins with unpacking the background to the research topic, the history, origin and rationality of restraint of trade agreements together with an assessment of their enforceability. It further examines the effect of garden leave on restraint of trade agreements, outlines comparative perspectives on restraint of trade, including aspects relating to garden leave and highlights lessons South Africa may learn from the selected jurisdictions. Finally, the study recommends that South African jurisprudence should be developed to shift the burden of proof to employers to prove reasonableness of garden leave and restraint of trade agreements, to impose an obligation on employers to pay former employees for rendering them jobless and to set a maximum period that an employee can be prevented to compete or be employed by employer’s competitors. / NRF

D.Com. (Economics) / Please refer to full text to view abstract

On the 21st September 1995, the government introduced the Motor Industry Development Programme (MIDP), in compliance with the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO). Deliberate efforts by the South African government were required to promote structural changes to the domestic motor industry by opening up the economy to international competition through a programme of tariff reduction and export promotion. The integration of the South African automotive industry into global markets would have been extremely difficult, if not impossible, without the MIDP and it would thus be safe to conclude that the economic performance of the researched would have been close to impossible if it was not for the MIDP. The MIDP, as an economic policy, has been embraced by the researched company as a "vehicle" to drive corporate goals in terms of value creation for all stakeholders. The research proposition that the MIDP as an economic policy has contributed to the economic performance of the researched company is examined. In this respect, Annual and Management Accounting reports were analyzed to determine the effect the MIDP has had on the researched company over the last ten years. In addition, two semi-structured interviews were also conducted with the Strategic Finance Planning executive and the Financial Controller of the company. The results show that the MIDP has had positive spin-offs for the researched company. The same results should be valid for the other original equipment manufacturers (OEMs) in the local automotive industry that have embraced the MIDP as a vehicle to create economic value added.

This research analyses the impact and materiality of South Africa’s choice not to ratify the CISG on its trade as well as relations with other states. As the point of departure, the broader events leading up to the creation of the CISG will be examined as well as UNCITRAL’s mandate and the development of trade in the local and global context. At present, the CISG has been ratified by 85 states. The decisions by common law jurisdictions such as the UK and India not to ratify the CISG as well as the delay by Brazil and Japan will be discussed. The legal, business and political or policy reasons for and against the ratification of the CISG are investigated which focuses on aspects such as legal certainty, uniformity of laws and the reduction of legal costs. An investigation is carried out regarding the historical foundations of the South African law of contract to this framework sets the tone for a comparison between the South African law and the provisions of the CISG. Lastly, a comparison is drawn between the provisions of the CISG and the South African law with specific emphasis on the remedies of specific performance and the right to claim damages which culminates in an overall conclusion that the South African law is compatible with the CISG insofar as remedies for breach of contract are concerned. / Mercantile Law / LL. M. (International Economic Law)

Overall the conclusions drawn about South Africa’s negotiating style and tactics were arrived at by analysing a number of reports (that closely followed the evolution of the negotiations) and then paralleling this case study’s findings with the conjectures made by the theoretical frameworks (i.e. works by Putnam, Zartmann and Churchmann) about how negotiations proceed. In the final analysis, the findings of this case are intended to provide insight for the south about how to approach any future trade negotiations with the North (or more specifically with the EU).

This thesis aims to look at the agreement on Trade Related Intellectual Property Rights (TRIPS) with specific reference to their impact on South Africa's ability to combat HIV and AIDS. It begins by looking at the history of patents and intellectual property rights and illustrates why and how the TRIPS Agreement came into existence. The TRIPS Agreement exemplifies the disparities between developed and developing countries and this can clearly be seen with regard to the provision of anti-HIV and AIDS drugs. The developing world deals with the bulk of the HIV and AIDS epidemic whilst the developed world holds most of the patents on the medication needed to treat those living with HIV and AIDS. This situation lends itself to a rift between patient rights on the one hand, and patent rights on the other. Traditionally the state has been the provider of rights such as health, but TRIPS alters this to include strong patent protection that is in line with neo liberal doctrine. The thesis examines these tensions with specific reference to South Africa's ability successfully to implement programmes to combat HIV and AIDS.

Thesis (MA)--University of Stellenbosch, 2002. / ENGLISH ABSTRACT: This thesis is a descriptive and interpretive study into the political economy of intellectual property rights, the conceptual and practical implications for the phenomenon of global governance, and how developing countries experience problems with the implementation of national policies that infringe on international intellectual property rights. The specific area of interest is the generic medicine debate that ensued in South Africa after the alleged violation of patent rights of anti-HIV/Aids drugs by the Department of Health. The research question that is addressed is to what extent has the existing international intellectual property rights regime been influenced and/or undermined by South Africa's intended application of WTO regulations in terms of compulsory licensing and parallel imports of "essential" medicines. In doing so, the paper examines the roles of the important states, international organisations, institutions, and private sector firms within the sphere ofthe political economy of intellectual property and how they impede upon or improve the functioning of the intellectual property rights regime. The methodology entails analytical inquiries into documentary evidence on the nature of the international intellectual property rights regime. Areas that are examined are the agendas of the important actors, namely states and their respective departments; individuals and firms; and international organisations. The concept of intellectual property is examined to determine its dynamic role within the generic medicine debate. The thesis concludes that the agendas of pharmaceutical firms and states are exploiting current political stalemates in the negotiations for a fair intellectual property rights regime. National health agencies, and specifically the South African Department of Health, are under enormous pressure to provide affordable health services. Specifically, the US Government and US pharmaceutical firms are dominating discussions on the architecture of the international intellectual property law regime. By using an analysis incorporating systemic, domestic interest, institutional, and ideational perspectives, it is argued that South Africa's drive for a more distributive intellectual property rights regime has placed the issue of health, Aids and generic medicine firmly within the sphere of the political economy of trade agreements. / AFRIKAANSE OPSOMMING: Hierdie tesis is 'n deskriptiewe en 'n interpretiewe studie oor die politieke ekonomie van intellektuele eiendomsregte, die konseptuele en praktiese implikasies vir die verskynsel van globale regering, en hoe ontwikkelende lande probleme ervaar met die implimentering van nasionale beleid wat internasionale intellektuele eiendomsregte aantas. Die spesifieke area van belang is die generiese medisyne debat wat onstaan het na die beweerde skending van patentregte van anti-HIVNigs medisyne deur die Departement van Gesondheid. Die navorsingsvraag wat beantwoord word behels die omvang van die impak van Suid- Afrika se voorgenome toepassing van WTO bepalinge, met betrekking tot die verpligte lisensiering en parallelle invoer van "essensiele" medisyne, op die bestaande internasionale intellektuele eiedomsreg regime. Hierdie tesis ondersoek vervolgens die rol van state, internasionale organisasies, instellings, en privaat sector firmas binne die sfeer van die politieke ekonomie van intellektuele eiendom en hoe hulle afsonderlik die funksionaliteit van die intellektuele eiendomsregte regime beïnvloed. Die metodologie behels 'n analitiese ondersoek van die literatuur oor die aard van internasionale intellektuele eiendomsreg regimes. Areas wat ondersoek word, is die agendas van belangrike akteurs, naamlik die staat en sy onderskeie departemente; individue en firmas; asook internasionale organisasies en instellings. Die konsep van intellektuele eiendom word ondersoek om die dinamiese uitwerking daarvan op die generiese medisyne debat te verstaan. Hierdie tesis voer aan dat die agendas van firmas, spesifiek farmaseutiese firmas en state die huidige politieke dooiepunt in die onderhandeling rondom 'n regverdige intellektuele iendomsregte-regime, uitbuit. Nasionale instellings, soos die Suid-Afrikaanse Departement van Gesondheid, is onder groot druk om bekostigbare gesondheidsdienste te lewer. Die VSA en farmaseutiese firmas domineer onderhandelinge vir 'n nuwe struktuur vir die internasionale eiendomsregte-regime. Deur gebruik te maak van 'n analitiese raamwerk wat sistemiese, interne belange, institusionele, en ideologies perspektiewe inkorporeer, word daar geargumenteer dat Suid-Afrika se pogings om 'n meer distributiewe intellektuele eiendomsregte regime te verseker, die probleem van gesondheid, Vigs, en generiese medisyne binnne die sfeer van die politieke ekonomie van handelsooreenkomste, plaas.

This study uses annual data for the period 1975-2014 for South Africa and Botswana, and 1979-2013 for Lesotho to examine empirically the impact of trade openness on economic growth in these three South African Customs Union (SACU) countries. The motivation for this study is that SACU countries are governed by the common agreement for the union that oversees the movement of goods that enter the SACU area. However, although these countries are in a com-mon union, they have quite different levels of development. Based on the country’s level of development, Lesotho is a lower middle-income and least developed country, whereas Botswana and South Africa are upper middle-income economies. Thus, these disparities in the levels of economic development of SACU countries i are expected to have different implications in relation to the extent to which trade openness affects economic growth. It is within this background that the current study seeks to examine what impact trade openness has on economic growth in each of the three selected countries. To check the robustness of the empirical results, this study uses four equations based on four different indicators of trade openness to examine the linkage between trade openness and economic growth. While Equation 1, Equation 2 and Equation 3 employ trade-based indicators of openness, Equation 4 uses a modified version of the UNCTAD (2012a) trade openness index that incorporates differences in country size and geography. Using the autoregressive distributed lag (ARDL) bounds testing approach to cointegration and error-correction modelling, the study found that the impact of trade openness on economic growth varies across the three SACU countries. Based on the results for the first three equations, the study found that trade openness has a positive impact on economic growth in South Africa and Botswana, whereas it has no significant impact on economic growth in Lesotho. Based on Equation 4 results, the study found that after taking the differences in country size and geography into account, trade openness has a positive impact on economic growth in Botswana, but an insignificant impact in South Africa and Lesotho. For South Africa and Botswana, the main recommendation from this study is that policy makers should pursue policies that promote total trade to increase economic growth in both the short and the long run. For Lesotho, the study recommends, among other things, the adoption of policies aimed at enhancing human capital and infrastructural development as well as the broadening of exports, so as to enable the economy to grow to a threshold level necessary for the realisation of significant gains from trade. / Economics / Ph. D. (Economics)