The thesis critiques South African secured lending laws by examining the contractual basis on which money is loaned and its repayment is secured, focusing on syndicated loans. The loan of money constitutes a loan for consumption in terms whereof the lender passes legal title to its money to the borrower, who must return the same number of units in the same currency, with or without interest. The law on loans for consumption is based on Roman law and Roman-Dutch law. The thesis analyses the principles whereby senior and mezzanine lenders, acting in a syndicate, lend money to a borrower in a loan for consumption where the repayments and security rights are ranked. The internationalisation of standard-form loan agreements is discussed, and some English law lessons are analysed. The principles that govern the legal nature, purpose and function of security rights in rem and in personam, and specifically security rights in syndicated loans, are analysed. In law, a security right is created when an asset is appropriated to a debt as contemplated by the common law and the Insolvency Act 24 of 1936. Security rights must be accessory to a valid principal debt. Insolvency law treats cessionaries as secured creditors and holders of guarantees as concurrent creditors. The principles of the law of cession, and the pledge and cession in securitatem debiti of rights in personam, including the theories that underly it, namely, the pactum fiduciae theory and the pledge theory, found security in personal rights and are measured against the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Secured Transactions, Vienna, 2019, the English law on charges and Article 9 of the American Uniform Commercial Code. A number of deficiencies and inconsistencies in our security rights laws are identified, including incongruency, the absence of a coherent and uniform security rights system, and adverse insolvency law consequences for the cedent on the cessionary's insolvency arise from applying the pactum fiduciae theory. I conclude that the time is opportune to codify and reform South African law on secured lending to remedy the identified deficiencies and inconsistencies.

The advent of digitalisation has fundamentally shifted the manner in which the commercial world carries on business away from the traditionally established brick-and-mortar business models. The thorough permeation of digitalisation through the economy has resulted in the proliferation of new digitalised business models. Resultingly, there is growing concern that economic actors are increasingly able to avoid, remove or significantly reduce their tax liability within the existent framework which was conceived in light of traditional business models. Moreover, the emerging business models are able to take advantage of the affordances of the digitalisation of the economy to increase their geographic commercial reach, alter the manner of value creation and operate substantial business functions within a jurisdiction without the traditionally concomitant taxable or physical presence. Therefore, this dissertation evaluates and examines the adequacy of the existing South African framework for source-based taxation in its application to the new digitalised business models. Primarily, it is established that the ‘benefit theory' provides the theoretical justification for the imposition of tax on the basis of source, and therefore provides the normative framework through which the adequacy of the existing South African source rules is determined. Both the statutory rules and judicial approach to the determination of source are found to be inadequate in their application to the new digitalised business models. There is limited scope for the application of the existing statutory source rules, contained in s9 of the Income Tax Act, to the digitalised economy. The absence of a statutory rule for the determination of source with regard to digitalised business models places pressure on the judicial approach, which is ill-equipped to deal with the complexities of the digitalised economy. There exists limited scope to extend the judicial approach to determine the source of income in the absence of activity or physical presence on the part of the taxpayer. The introduction of statutory rules, as recommended by the Davis Tax Commission, has not yet materialised. The international project toward addressing the tax challenges of the digitalised economy provides some guidance in the formulation of a South African statutory response. The revenue sourcing rules – which determine the jurisdiction from which the revenue was derived – proposed by the Organisation for Economic Co-operation and Development and the African Tax Administration Forum provides for the identification of a sourcing principle for different streams of revenue, with a hierarchy of indicators to determine the source. This approach is advantageous in that it is cognisant that for different business models, different revenue souring rules are more appropriate and accurate. Alternatively, the approach adopted by the United Nation relies on the ‘payer principle', which is similar to the recommendation made by the Davis Tax Commission. However, the payer principle is criticised as it fails to allocate taxing rights to the place where the value was created.

International trade has increased significantly over the years and to enable this trend of increased volume of trade, there is a core focus on trade facilitation. Furthermore, customs play a key role in the movement of goods and have come to the spotlight as key role players in trade facilitation efforts. However, the problem that exists in modern international trends, specifically in Africa, is that the present customs administrations are inefficient to combat the increase in trade volumes and ensuring trade facilitation efforts are sufficiently implemented. With the current development of the African Continental Free Trade Area (AfCFTA) there is a potential for increased inter and intra-Africa trade and to strengthen regional integration. With such developments, African states must create an appropriate environment to advance and realise the trade objectives of AfCFTA. This thesis therefore aims to argue for an improved trading environment in Africa through a digitalised customs reformative tool, such as the Electronic Single Window (ESW), to ensure some beneficiation under the AfCFTA. The ESW is a trade facilitation tool aimed at easing and improving trade, and as this thesis argues, it can be a significant tool to realise the objectives of the AfCFTA. This thesis carried out desktop research based on literature to assess and provide the usefulness of the ESW in improving inter and intra-Africa trade. This was done by providing for key regional theories and approaches to integration efforts, assessing international trade facilitation regulatory frameworks, providing for the conditions of customs in Africa, the analysis of the ESW, and the implementation of the ESW in two African countries. Conclusively, this paper found that African states have several international and regional commitments to reform their customs and facilitate trade, and importantly, with the current era of digitalisation and a sound trade regulatory environment, the implementation of the ESW is achievable. Highlighting that digitalisation and a sound legal environment maximise the benefits of the ESW, which help improve inter and intra-Africa trade.

I am an Operational Specialist in the learning and development department at my company and I am often faced with questions on the tax treatment of employed individuals working abroad. It is for this reason that I have chosen to dedicate my research in this area. South African tax legislation on the exemption of foreign employment income has been amended with effect from 1 March 2020. These amendments affect the taxation of South African tax residents who are employed and working outside the territorial waters of South Africa. Furthermore, these amendments do not consider the exemption of non-employment foreign income. This analysis has only considered employed individuals who are tax resident in South Africa and who have not formally emigrated from South Africa. The aim of this analysis is focused on the equitable and neutral tax treatment between employment income and income earned from other services rendered following the amendments. I have centred my analysis around equity and neutrality by comparing the different tax treatment of employment income and other forms of income. This analysis seeks to answer whether the amendments to the tax legislation support equity and neutrality. The key findings from this analysis have given me a better understanding of the rules and regulations around the amendments. I am now able to offer sound advice to my clients who in turn will make more informed decisions when planning their international employment assignments. In addition to the above, I hope that my analysis below will contribute towards any future research that may be done in this area.

This thesis explores the important issue of protection of traditional knowledge from a gendered perspective. More specifically, it seeks to explore the traditional knowledge protection landscape in Zambia in the context of gender sensitivity and gender responsiveness. It further delves into the role of gender considerations in traditional knowledge protection in the achievement of Zambia's national and international development goals. The work relies on desktop research. It draws on primary and secondary sources of information to inform the analysis, provide the necessary background to ground and situate the research. This thesis argues that a gendered approach to TK protection is justified and important. Based on analysis of the prevailing traditional knowledge protection regime in Zambia, the thesis finds and contends that the current protection available is neither gender sensitive nor gender responsive. Further, the current traditional knowledge protection provided in Zambian legislation falls short in various aspects. The role of gender sensitive and gender responsive traditional knowledge protection in the achievement of Zambia's national and international development objectives as expressed in the Zambian Vision 2030 and Sustainable Development Goals is also explored in the work. This thesis suggests that Zambia's traditional knowledge protection regime must be changed to include gender considerations. It presents recommendations for change for Zambia from a legislative perspective partially based on emulating the traditional knowledge protection strategy adopted in Kenya. Gender considerations in traditional knowledge protection legislation in Zambia must be included to ensure that protection is real and effective for women. Through this work it is hoped that attention is drawn to the urgent need for decisive changes in the traditional knowledge protection regime in Zambia in the context of gender sensitivity and gender responsiveness.

This Dissertation examines the question of whether competition authorities are the appropriate place to consider public interest considerations in the assessment of mergers in competition law. The Dissertation does this by looking at the South African merger review process in the Competition Act, 1998 in comparison to other more developed economic jurisdiction such as the United Kingdom and the United States of America in examining the tension and criticism around the incorporation and balancing of public interest considerations and core economic consideration under the same competition law merger review process and competition authority. The South African merger review provisions as well as watershed cases such as the Wal-Mart Stores Inc and Massmart Holdings Ltd case, are considered. The Dissertation establishes that the concerns are legitimate around the potential muddying of the competition analysis with public interest considerations. Some of the concerns which arise include that: a) public interest considerations can be broad thereby creating sense of uncertainty for both parties to a merger, as well as prospective investors; b) public interest traverses areas concerning other stakeholders such as government or organised groups such as labour or business, thereby creating opportunity for interference, whether political or otherwise in the work of competition authorities; c) can increase the time spent in merger review because of the challenges in the types of evidence required to prove public interest impact; d) and/ or that competition authority officials may lack capacity and expertise to consider the public interest consideration. The Dissertation concludes that notwithstanding, the South African approach in incorporating public interest into the merger review process is legitimated by the unique socio-economic history of South Africa, and that the concerns raised are sufficiently mitigated and a delicate balance struck between core economic considerations and public interest in merger review. Competition Authorities are capable of balancing core competition concerns and public interest considerations, provided that Competition Authorities are independent; steps are taken to clarify the scope of the public interest concerns; public interest considerations are looked at within a limited scope of merger specificity; and further clarity and transparency is provided through open and transparent hearings and guidelines, amongst other features.

Chinese investments in Africa, are visible in almost all African Countries. In many ways, one could claim, China's commercial activities in Africa has rebranded its image from a dark and desolate continent to an upcoming economic hub. To compliment these commercial activities, the Forum on China-Africa Cooperation (FOCAC) was established in 2000 and played an instrumental role in enhancing the investment relationship between the two sides. However, this increase of investments, inevitably led to the surge of Africa-China investment disputes. The settlement of these disputes, faces many challenges in domestic and international legal frameworks. Therefore, this paper aims to analyse the FOCAC platform's contributions in settling Africa-China investment disputes. The requirement for an effective dispute settlement mechanism, is also imperative for Africa China economic relations. This could, ensure that the commercial relationship between the two sides, endures continuously and yields ample mutual benefits. According to the African Development Bank Group, Africa has an infrastructure gap of approximately U$D93 billion. Thus, African Countries are reliant on Chinese investments because most of these investments focus on developing roads, railways, bridges, airports amongst others. Infrastructure remains a quintessential component regarding economic stimulation and growth. However, many of these infrastructural investments experiences complexities such as quality control checks, environmental damages, unfair labour practices to name a few. Therefore, it is important to establish a dispute settlement forum, which is affordable, easily accessible, non-bias, fast and reliable inter alia. Moreover, many benefits are attributable to Africa-China investments such as the creation of employment, building of key infrastructures and transfers of skills to name a few.6 Considering that, the FOCAC forum significantly boosted economic developments between the two parties, it is worthwhile to investigate its responses to the overwhelming rates of investment disputes.

South Africa has had a fragmented approach to natural person insolvency by having numerous legislative mechanisms. Statutory relief in the form of sequestration under the insolvency Act, administration orders under the Magistrates Courts Act, and debt relief under the National Credit Act, have failed to aid in the plight of the no income no asset (‘NINA') debtor. Barriers to access and financial obligations in attaining any form of debt relief under these measures have been inherently problematic as will be shown in this contribution. The NINA debtors, as well as the low income low asset (‘LILA') debtors, have had no reasonable prospect of legislative intervention for debt relief. As a result, I submit that due to a dysfunctional development of South African natural person insolvency law, it has sequentially played a contributory role in perpetuating the over indebtedness of many South Africans. To this effect, debtor rehabilitation is an impossibility in the absence of a straight forward mechanism providing for a discharge of debt. This is especially true in the South African context where many consumers are indigent and cannot afford even the most modest forms of sustenance for sustainability. To disregard the plight of the NINA debtor is to not only subject these individuals to a never-ending cycle of debt distress but to further negatively impact an individual's wellbeing for various reasons. For instance, debt issues have been associated with lowered self-esteem, pessimistic outlooks on life and reduced mental health attributed to depression and severe anxiety. Debt has further been linked to a decline in physical health. In this regard, burdened with high repayments, many debtors sacrifice numerous ways to keep healthy such as foregoing medical care and healthy foods. Furthermore, the correlation between debt and suicide cannot be ignored. Financial despair has been found to lead to more suicide attempts than any other psychological condition, barring that of depression. For the abovementioned reasons, it is appropriate to analyse and critique South Africa's current debt relief landscape in order to assist the NINA debtor by suggesting a way forward.

This thesis considers and compares the standards against which Courts in South Africa review the exercise of private contractual power, on the basis of public policy, and the standards against which Courts in South Africa review the exercise of public power on the basis on rationality. This thesis undertakes this task in four main parts. Firstly, this thesis outlines important theoretical distinctions between legal and nonlegal powers, and private and public legal powers. In this regard, it is argued that what distinguishes a legal power from a non-legal power is the ability of the exercise of a legal power to in and of itself change another person's legal situation. This differs from the exercise of a non-legal, or a "power of influence" which has natural, and no automatically legal consequences, and will only change another legal situation if other (natural) consequences come to bear first. In relation to the distinction between private and public powers, this thesis outlines the traditional justifications for the distinction drawn between private and public power. Drawing on Austin, this thesis proposes that a useful demarcation between public and private powers is that the latter, more peculiarly, regards persons determined specifically, while the former, more peculiarly, regards the public considered indeterminately. Secondly, this thesis unpacks and details the standard of rationality that a Court will hold the exercise of a public power to, and highlights how rationality in this respect is an objective standard that relates essentially to a power's objective and whether or not the exercise of that power is related to that objective. Thirdly, and drawing on the latest pronouncements of the Constitutional Court, this thesis details what public policy requires of the exercise of private contractual power and highlights how what it requires is a value laden and facts dependent inquiry. Fourthly, this thesis goes on to argue that the standard of public policy, to which exercises of private contractual power are held to, is a higher standard than the standard of rationality that the exercises of public power is held to. Furthermore, this thesis argues that while such a situation is justifiable, it may become unjustifiable should Courts begin to misconstrue the fundamental differences between a legal and non-legal, and private and public power. Finally, this thesis submits that another iv cornerstone of South Africa's contract law, namely, that of privity of contract, may be a useful tool that Courts can use to keep balanced, on what this thesis outlines is a tightrope, that Courts have to walk in both having to imbue South Africa's contract law with Constitutional values, while at the same time ensuring that the higher standard that private contractual power wielders are held to, does not become unjustifiable.

Inequality and injustice are deeply rooted within the South African mining industry, and have been since at least the discovery of commercially viable diamonds in 1868, followed by gold in 1886. From the labour policies of the past, the effects of globalisation, and the dysfunctional labour relationships on many mines (as depicted by the Marikana tragedy of 2012) arise mismatched regulatory patterns on labour relations. Labour patterns in the mining sector are continuously shifting, yet the foundations of labour regulation have remained largely the same, focusing primarily on protecting employees who are in a standard employment relationship at the expense of non-standard workers. This has left many workers in non-standard employment relationships inadequately protected by the labour framework. Nonstandard mineworkers generally lack full-enabling rights, including the ability to exercise their rights to freedom of association and collective bargaining effectively. In addition, they face challenges when exercising their right to a working environment that is not harmful to their health and safety, leading to the worsening of their already dire socio-economic conditions. The state is battling to protect these workers from exploitation, but continues to legislate, primarily attempting to widen the definition of those who qualify to access rights under the legal framework. Notwithstanding these attempts, numerous workers at mines remain inadequately protected, thereby stimulating regulatory debates on new ways of organising non-standard workers. One such mechanism, which continues to gather traction in the regulatory debates is the use of codes of conduct to offer protection to workers who, by virtue of the arrangements of their work, cannot organise or access the full rights under the applicable legal framework. Codes of conduct have been popular in many sectors, such as the apparel industry but have not been fully tested in the mining context, leaving many questions around whether they can be labelled genuine regulatory instruments or whether they are mere window dressing tools. Through an assessment of codes of conduct, tracing their development, place in the regulatory spectrum and usage by mining companies in South African mines, this thesis assesses their effectiveness in protecting non-standard workers' rights. Questions on whether such instruments can be viewed as genuine complementary regulatory instruments are raised, focusing on the weaknesses of these instruments. This dissertation offers recommendations for redesigning codes of conduct to make them more legitimate, effective and democratic instruments in the regulation of labour standards at mines.