For over a period of over sixty years, South Africa has applied the provisions of the MSA enacted in 1951 to matters relating to shipowner’s right to limit liability. Since then, Parliament has made several attempts at amending the MSA with no success. However, determining whether South Africa should implement the proposed amendments in terms of the MSA Draft Bill, is an inquiry that should not only include a comparison of the old order with the newly proposed order, but, it should also require reasons as to why the reform should be achieved in a particular manner. This is important because knowing what the discrepancies of the current dispensation are, will enable us to evaluate whether the newly proposed amendments will address them.

Cryptocurrency - and indeed the underlying blockchain technology in general - have the potential to become a dominant method of effecting the transfer of value in a manner that fundamentally shifts the way in which electronic transactions take place. South Africa is a strong emerging market with the potential to attract substantial investment in new technologies should its regulatory response to such innovation remain principled. The primary purpose of this dissertation is to investigate the most appropriate classification of cryptocurrency in South African law. The research is qualitative in nature. It considers selected aspects of the existing legislative framework and scholarly opinion in determining whether cryptocurrency is best classified as property or as currency. The necessary corollary of this research focus is to consider the fundamental importance of such a classification for legal policy design generally, and the practical effects thereof. This dissertation hypothesises that the value of the blockchain technology lies in its commercial viability and its potential scalability, particularly in the African context. Thus, the required objective of regulatory intervention should be to preserve the commercial viability of cryptocurrency and avoid stifling technological advancement, whilst simultaneously ensuring the protection of vulnerable users. The conclusion is that cryptocurrency is best classified as foreign currency. This dissertation acknowledges that although it is possible to fit such a classification into existing legislative frameworks, a more specialised structure is ultimately required. Additionally, it raises concern about the harm caused by reactive regulatory intervention and instead recommends a principled policy approach, cognisant of the need for maturation of the technology.

Includes bibliographical references.

The objective of this thesis is to research to what extent do the duties and powers conferred to the business rescue practitioner conflict with that of the directors during the business rescue proceedings since both of them form part of the management of the financially distressed company. In so doing, an analysis of the South African statutory provisions will be undertaken, followed by a probe into how those provisions can lead to the probable conflicts to be encountered between management and the practitioner, which can in turn considerably affect the effectiveness and success of the corporate reorganisation. In order to be able to find solutions to reduce possible conflicts, a juxtaposed analysis will be made with similarly statutory provisions in Australia, United Kingdom and United States of America.

Includes bibliographical references (leaves 297-330). / This doctoral thesis deals with freedom of association and trade unionism in South Africa. Freedom of association is one of the fundamental rights and freedoms enshrined in a number of legal instruments both at the international and municipal levels. Progress and democracy require respect for human rights, including the right to freedom of association at the workplace. Trade unionism is the expression of this right. The development of trade unionism in South Africa is closely related to that of freedom of association and was instrumental to the demise of apartheid. This work provides a theoretical, historical and legal background to freedom of association and trade unionism, both from a comparative and international law perspective. It then investigates the legal and jurisprudential protection of freedom of association and trade unionism under apartheid before dealing with their protection under the post-apartheid legal order. The thesis argues that international law in general and international labour law in particular contributed a lot to the development of freedom of association and trade unionism in South Africa. It concludes that South Africa has gone a long way in protecting freedom of association at the workplace and trade unions played a critical role in the consolidation of democracy in the country. The prospects for the protection of freedom of association and trade unions are good. However, there are also a number of challenges, political, social, economic, and intellectual. These challenges need to be overcome to consolidate democracy and a culture of human rights. The thesis ends with some recommendations for further research to ensure the best protection of freedom of association and trade unions in South Africa and the rest of our continent.

General average emerged as an independent mechanism in ancient times for the redistribution of losses incurred for the safety of the common maritime adventure from peril. Its robustness and efficiency as a risk and loss distribution device led to its recognition and incorporation in a plethora of medieval codes and the laws of many maritime states. As the concept evolved in different maritime states there emerged a divergence in the principles and practice of general average. The undesirability of a divergence in such a concept of international import led to the adoption of the York-Antwerp Rules by the maritime community as a tool for achieving uniformity. The York-Antwerp Rules have been amended periodically over the course of more than a century with the object of achieving greater uniformity in the law of general average and to keep abreast of developments in international trade and the maritime industry. The most recent revision of the York-Antwerp Rules adopted in 2004 (York-Antwerp Rules 2004), is the first revision adopted without a consensus amongst the majority of interested parties. Nine years after their adoption, the York-Antwerp Rules 2004 have failed to gain widespread acceptance and use in the maritime industry. An attempt by the Comité Maritime International to resolve the impasse on the use of the Rules at its 2012 Beijing Conference was unsuccessful and it was resolved instead to work towards the adoption of a new set of Rules at its next Conference in 2016. To ensure that the revision of the York-Antwerp Rules presented for acceptance at the 2016 Conference does not suffer the fate of the York-Antwerp Rules 2004 it is important that the mistakes made with regard to the York-Antwerp Rules 2004 are not repeated. Consequently, this thesis analyses the substantive revisions made in the York-Antwerp Rules 2004 to ascertain why other interested parties, particularly shipowning interests, are opposed to the York-Antwerp Rules 2004. This will assist in the recommendations to be made with regard to the substantive changes to the York-Antwerp Rules 2004 that could ensure the widespread acceptance of the Rules to be adopted in 2016. Furthermore, the factors that led to the periodic revision of the Rules are examined and the ingredients of the previous successful revision processes are identified as a comparative base to ascertain the flaws, if any, in the process that led to the adoption of the York-Antwerp Rules 2004; which culminated in the lack of widespread acceptance of the Rules in the maritime industry. This thesis contends, among other things, that the York-Antwerp Rules 2004 failed to gain widespread acceptance in the maritime industry because the substantive changes introduced by the Rules did not ensure a measure of equitable balance of the interests of all interested parties. Furthermore, the ingredients of the previous successful revision processes were disregarded in the process of adopting the 2004 Rules. This thesis makes recommendations on the content of the York-Antwerp Rules to be adopted in 2016 and the process of adopting the new Rules in an attempt to enhance their widespread acceptance and use in the maritime industry.

The aim of this dissertation is to recommend an alternative approach to the fraud exception in South African law. The Current South African position as with the English law, places more weight on upholding the sanctity of the autonomy principle in letters of credit than preventing fraud. This is mainly because the courts have traditionally taken the view that protection of the autonomy principle is central to promoting the needs of trade and maintaining the integrity of the international banking community. Hence, this dissertation argues that an approach to the fraud exception in South African law that is more in line with that of the American law and/or the UNCITRAL Convention strikes a better balance in upholding the value of letters of credit and combatting fraud than the current South African position. Based on the comparative analysis of the position in the United Kingdom, United States of America and under the UNCITRAL Convention, the dissertation seeks to draw upon important lessons and principles pivotal to a preferable approach to the fraud exception in South African law that would enhance a better balance between the autonomy arguments and deterrence of fraud.

Human capital signifies the idea that skills and capabilities embodied in human beings constitute a form of capital. The collection of human skills and capabilities i.e. human capital, in a country, represents the human capital accumulation in that economy. This human capital accumulation is achieved through a process of instilling, building up and developing skills and capabilities. This dissertation considers use of tax incentives to contribute to human capital accumulation in Kenya and South Africa. Currently, there are some indirect tax incentives in both countries which give favourable treatment to some employee related expenses. There also exists, in both Kenya and South Africa, a direct employer tax incentive aimed at encouraging employment of graduates and specific job seekers. In both countries, however, there is no broad direct tax incentive that benefits all employers who contribute to developing various other forms of human capital. The dissertation therefore looks at considerations and reforms which are necessary to establish a desirable tax incentive for employers in Kenya and South Africa that contributes to human capital accumulation. Some of the considerations which the dissertation looks at include; why employers should be given the incentive, why the incentive should be direct, whether the existing tax incentives meet the goal of human capital accumulation and the relevance of human capital accumulation to Kenya and South Africa. The dissertation also suggests some reforms that should be made in developing a desirable direct tax incentive for employers. The suggested reforms are based on deficiencies identified from an evaluation of the like direct employment incentive schemes offered by Kenya and South Africa to employers to encourage employment of graduates and specific job seekers.

Includes bibliographical references. / As a general rule in company law, the business of the company is conducted based on the votes of the majority of shareholders in that company. In certain instances however, the majority might take decisions that are detrimental to the minority shareholders of the company and therefore it is imperative that any company legislation has significant protective measures for minority shareholders in place. This paper will discuss the concept of minority shareholder protection. This paper will do a comparative study between the shareholder appraisal regimes in the United States, Canada and South Africa. Since appraisal rights do not exist in Swaziland, a comparative study of minority shareholder protection in the United Kingdom will also be undertaken because Swaziland was colonised by the British and as such most of its law is rooted in English Law. It is from this lens that this paper will then examine minority shareholder protection in Swaziland. The research question addressed by this dissertation is two-fold. The first part of the question analyses the current measures in place for minority shareholder protection in Swaziland in comparison to measures that other jurisdictions have in place for the protection of minority shareholder rights. The second part looks at what the ideal shareholder appraisal rights law in Swaziland should contain in light of the current legislation as a means to make it more easily accessible to minority shareholders. The purpose of the dissertation is not to recommend a wholesome transplant of shareholder appraisal rights of either one of the jurisdictions under discussion, but to highlight the best practices of the jurisdictions and suggest a shareholder appraisal rights law that best suits the Swaziland business and economic environment.

The case for cross-border merger control and the need for a supranational merger control system has been debated upon and several scholars have written extensively on the subject. What is immediately evident from literature is that it is not easy to regulate such mergers because of the challenges encountered. The challenges are pronounced in developing and emerging economies (DEEs) as arguably they have less experience in the enforcement of merger laws and lack adequate resources for such an exercise. Other challenges identified from publicly available information are the lack of extra territorial application of national competition laws to conduct taking place outside their borders, limited skills and expertise and poor cooperation and coordination arrangements among the jurisdictions involved. Further cross-border merger regulation presents challenges to merging parties too due to their exposure to different national competition laws. The dissertation focuses on whether supra-national competition authorities address the challenges of cross-border merger regulation in DEEs. However, there are a number of supranational competition authorities established by DEEs that generalising the study would be an unrealistic and impractical task to undertake. In view of this, the Common Market for Eastern and Southern Africa (COMESA) was selected as a sample because it is the regional economic community that has recently established a fully operational supra-national competition authority to regulate inter alia, cross border mergers. Further, all COMESA Member States are DEEs which provides to a greater degree a relatively uniform sample.