Resumé European Law against Unfair Competition This thesis focuses on the regulation of law against unfair competition adopted on the European Union level. The thesis is composed of two parts - the first one introduces legislative regulation of law against unfair competition, the second part analyses legal regulation of misleading and comparative advertisement as the examples of merits of unfair competition. The first part of the thesis firstly overviews the law against unfair competition on the international level; the core of the thesis, however, lies in the overview of legislation adopted by the European Union. Within the summary of the European legislation it firstly introduces the background for the legislative activity of the European Union in the field of unfair competition. Subsequently, it is followed up by the overview of directives with the primary aim to protect European businesses and consumers against unfair competition. When introducing the directives it emphasises mainly the findings whether it was adopted under minimum or maximum harmonisation, therefore to which extend the member state legislators are free to diverge from the regulation adopted by the European Union. The aim of the forth chapter is to look at the law against unfair competition as a part of private law. The second part of...

This thesis deals with the legal regulation of comparative advertising in the Czech Republic and the Federal Republic of Germany. The aim of this thesis is to explain the correspondences and differences between the legal regulation of comparative advertising in the Czech Republic and Germany using analysis and comparison with particular focus on the European regulation of this institute. The first chapter presents the underlying theoretical system and sets the examined institute into the general framework of legal order. It defines the terms advertising and comparative advertising. Emphasis is put on explaining different approaches of legal orders to comparative advertising as a foundation for an analysis in subsequent parts of this thesis. The first chapter also introduces types of comparative advertising distinguished by doctrine. The second chapter is, due to the irreplaceable position of European legal regulation, dedicated to the genesis of legal regulation of comparative advertising in the European law. This section contains an analysis of single directives and their effects in chronological order. The third chapter uses the knowledge of European law to analyse the evolution of legal regulation of comparative advertising in national legal orders of the Czech Republic and Germany. Historical...

Domain names in the Czech legal system The aim of this work is to introduce readers to the topic of domain names themselves with a necessary technical overlap, their legal regulation in the Czech legal framework, including a general analysis of particular legal institutes used for their protection (namely trademarks, unfair competition, name of an individual and name of a legal entity), and finally to outline the ways and development of the settlement of disputes arising from them before the judicial and extrajudicial bodies. The first chapter of the thesis covers the concept of domain names as such from a technical point of view. There is described the domain name function in the Internet and the domain name system as well, consisting of top level domains of different types with their specifics. Consequently are there through domain name registration covered domain name disputes in a global context, including the individual causes (types) of these disputes, and finally concludes with the description of a specific form of alternative dispute resolution called UDRP. The second, most extensive chapter is dedicated to the legal regulation of domain names in the Czech legal framework itself. The chapter begins with theoretical concept of domain names from the legal point of view and its historical...

LL.M. / Please refer to full text to view abstract

Magister Legum - LLM

In the thesis I consider the potential effectiveness of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereafter “the Act”) in reaching its stated goal of achieving societal transformation in South Africa. I consider and analyse those socio-legal theories that have a bearing on the relationship between “law” and “society”, and the extent to which state law may be used in a “top-down” or instrumental fashion to steer society in a desired direction. I identify several characteristics of effective laws and compare these to the Act. As the Act is the South African version of what may be termed “antidiscrimination legislation”, I determine the usual shortcomings of this legislation in foreign jurisdictions, and identify the steps the South African legislature has taken to obviate these shortcomings. This thesis analyses four requirements of effective laws in more detail: (i) that the enforcementmechanisms should consist of specialised bodies staffed by well-trained personnel; (ii) that the source of the new law must be authoritative and prestigious; (iii) that the purpose behind the legislation must at least to a degree be compatible with existing values; and (iv) that the required change must be communicated to the large majority of the population. In order to assess the degree of expertise of equality court personnel, the first requirement above, I discuss and analyse the implementation of training programmes for court personnel tasked to preside in courts applying the Act. I illustrate that the current pool of equality court personnel was probably inadequately trained, inter alia because the individuals tasked to manage the training of equality court personnel did not follow good management practice. As to the second and third requirements of effective legislation referred to above, I report on an empirical study relating to unfair discrimination undertaken in 2001 in “white Pretoria”, Mamelodi and Atteridgeville. The results of this study suggest that the majority of South Africans do not experience explicit discrimination and where they do, they generally do not approach courts to have their grievances aired. In turn, this finding suggests that the Act will be underutilised and will not play the role envisaged for it by Parliament in combating discrimination. As to the last requirement highlighted above, I illustrate that the public awareness campaign relating to the Act was inadequate in its impact. In conclusion, the study identifies a number of weaknesses in the Act and proposes a range of amendments that would facilitate the use of these courts by complainants. I also identify further avenues of socio-legal research that could be undertaken relating to the Act, specifically how the Act may be utilised to combat poverty in South Africa. / Thesis (LLD)--University of Pretoria, 2008. / Jurisprudence / LLD / Unrestricted

Promoting gender equality and equity remain an important goal for schools in South Africa, and strides have been made in many areas to reduce inequalities. Local and international legislative and policy frameworks create a context within which unfair discrimination can be curtailed, but these, albeit important, are not entirely sufficient, and inequities persist based on perceptions regarding motherhood and teaching. There is a need to address practices at grassroots level, where historical stereotyping and procedures have become entrenched in the system. For female teachers to experience meaningful equality, these underlying issues need to be addressed and this cannot be achieved through legislative processes. What is required is that the whole process of socialisation into sex roles needs to be addressed. This study sets out to analyse and describe the world of mother teachers, and to explore how entrenched assumptions, cultural values and beliefs impact on the meaningful construction and harmonisation of the dual role of mother and teacher. The professional woman who becomes a mother finds herself faced with the dual role of mother and professional and the result is that conflicting and complementary dimensions emerge that makes the pressure to meet all expectations overwhelming. These mother teachers consistently try to be what they think ‘others’ want them to be and, therefore, they often have not come to terms with who they are. Their life become a life to please ‘others’ and because they cannot please everybody, they experience feelings of failure. This study came to understand that the mother teachers’ will experience ambivalence and discomforts concerning their attempts to balance their personally constructed multiple roles successfully when they do not accept themselves fully as women with special talents, competencies and attributes. Supportive behaviour from the state, school principals and fathers is needed. However, mother teachers themselves are the main source for self-actualisation. Unfortunately, when mother teachers cannot accept themselves for who and what they are, no support system will be able to help them to feel successful about being both homemakers and professionals. I was interested in what each participant’s experiences of motherhood and teaching were; how she expressed herself in conveying these experiences; and consequently, the meaning she attached to her experiences. The research problem, and the nature of the information sought, suggested the use of three distinct methods, namely (1) the narrative interview; (2) reflexive journal entries; and (3) observational field notes. After these three data collection methods had been conducted, coding of the information gathered took place to facilitate analysis and interpretation. From the findings, I believe that these mother teachers will only find themselves and fulfil their place in society once they are able to redefine their own perceived role expectations of society when fulfilling personally constructed multiple role expectations. / Dissertation (MEd (Educational Management, Law and Policy))--University of Pretoria, 2008. / Education Management and Policy Studies / unrestricted

The core of the research focuses on the Temporary Employment Services (TES) Industry and its ability to provide labour flexibility for a number of client firms. The underlying notion that work is changing and becoming more flexible creates an exploratory realm for the concept of non-standard employment. The thesis draws on the conceptual model of the „flexible firm‟ and argues that the rise in non-standard forms of employment, particularly temporary employment within the TES industry, is primarily a result of the demand for labour flexibility. The TES industry that offers „labour on demand‟ is found to be an extremely secretive industry that is diverse in both its structure and services. The thesis reveals that the clients within the triangular employment relationship (TER) are reaping the most benefits especially with regard to escaping their obligations as the employer. The thesis explores human resource practices, unfair labour practices and the extensive loopholes exploited by the TES industry because of poor regulation. Consequently, the industry creates an „underclass‟ that is unprotected, insecure and easily exploitable. Qualitative research techniques were used in the form of semi-structured interviews. The thesis provides insights into the demand and supply of temporary workers in Port Elizabeth and addresses the problems associated with a TER and the TES industry as a whole.

This research paper explores the means at the disposal of employers and employees to address the phenomenon of unfair labour practice relating to promotion in the workplace. Furthermore the paper endeavours to illustrate that there are aspects of South African law that provide a framework within which unfair labour practices can be addressed in the workplace. As I explore these fundamental issues of the law, the fairness relating to recruitment and selection practices will be examined. Some recommendations are also made as to how departments and organisations must address promotion issues at the workplace. There are often perceptions of alleged unfairness committed by employers in the workplace. These perceptions emanate from a number of allegations. The allegations include but are not limited to past practices, policy considerations, acting in higher positions, prior promises, being better qualified, receiving higher marks in the interviews, irregular conduct by the interviewing panel, unfair decisions by appointing authority or their failure to apply their minds, affirmative action or equity considerations. The study seeks to explore some of these allegations and further provide certainty as to what the legal recourse is under those circumstances. The research further seeks to provide the legal certainty pertaining to issues of promotion in the workplace. The study commences on a general approach to the principles of law relating to unfair labour practice in the public sector. Further developments of the law relating to promotion as it applies to the education sector are explored. The study culminates with possible remedies available to instances where an unfair conduct has been found to be committed by the employer during the promotion process. There is sufficient case law which covers the promotion processes. The study also exposes forms of relief which can be awarded to applicants who had lodged disputes in which it is found that indeed the employer had committed unfair labour practice relating to promotion. The study further aims to explore both procedural and substantive fairness with regard to appointment and promotion processes. Issues which are dealt with concerning fairness in promotion disputes include polygraph tests, whether there are hard and fast rules to the process, whether employees have the general right to promotion, what the requirements for fair appointment or promotion are, the law on substantive fairness, affirmative action and promotion, the consequences of failure to appoint the most suitable candidate, dealing with candidates who obtained higher scores in the interviews, promoting a candidate who had not met minimum requirements and promoting candidates based on flawed scores. The research also deals with frivolous referrals of disputes and costs which can be awarded against such applicants. Further issues which are dealt with in this research include the concept of “joinder” which is critical where there is an incumbent in the post which is disputed and the relief sought is that such post must be set aside. Further clarity is given on who is supposed to be joined in a dispute which is referred in the education sector. The CCMA rules on joinder are also clarified. The consequences of failure to join the incumbent are also dealt with. The research is also clarifying the concept of prematurity or ripeness in promotion disputes and its consequent lack of jurisdiction if such is referred.

Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.