No Abstract Available / Dissertation (LLM)--University of Pretoria, 2014. / lmchunu2014 / Mercantile Law / unrestricted

Class of 2014 Abstract / Specific Aims: To compare trends in user demographics, clinical effects, and clinical outcomes associated with the use of synthetic cannabinoids and cathinones before and after signing into law the Synthetic Drug Abuse Prevention Act of 2012 on July 9, 2012. Methods: Reports generated by the National Poison and Drug Information Center’s Toxic Exposure Surveillance System were used to isolate calls regarding patients who reportedly used either synthetic cannabinoids or synthetic cathinones from July 2011 to March 2013. Clinical effects, clinical outcomes, and demographic information of patients associated with these calls from July 9, 2011 to July 8, 2012, were compared to that of patients associated with calls from July 9, 2012 to July 8, 2013. Main Results: Pending Conclusion: Pending

Magister Legum - LLM

Magister Legum - LLM

This dissertation discusses the continued existence and enforceability of exemption clauses within the framework of the subsequent movement towards consumer protection. It is argued that the provisions of the Act will lead to the consequence that unfair exemption clauses will be phased out because it could be declared void in terms of this Act and consequently its use will become impractical. Although exemption clauses can be viewed as an essential part of most contracts, such clauses are regarded as one of the most contentious clauses in practice, because they usually exclude the liability of the supplier for losses resulting from defective performance. This Act will lead to a shift away from the strict rule of freedom of contract towards a position of consumer awareness and fair contracting. The Act further provides consumers with the right to, inter alia, good quality goods and services and guarantees these rights by prescribing and controlling the liability of the suppliers. As a result, liability due to defective goods and services may no longer be exempted through exemption clauses. Disputes regarding the fairness of such clauses must further also be considered in view of the guidelines set out in the Act. This study however welcomes the enactment of the Act and believes that it could benefit the country as a whole. / Dissertation (LLM)--University of Pretoria, 2011. / Mercantile Law / unrestricted

‘A critical analysis of section 49 of the Criminal Procedure Act 51 of 1977 - ‘The shoot to kill debate’ sought to investigate the rationale and necessity behind the call for yet another amendment of section 49, that purports to clarify the rules under which police are allowed to use their firearms. Bold statements emerged from South Africa’s leaders and several politicians, urging the police to ‘shoot to kill’, and may have the effect of threatening the country’s young and vulnerable constitutional democracy. The research comprised an historical overview of section 49, encompassing the use of force pre- and post- Judicial Matters Second Amendment Act 122 of 1998, followed by an overview of the current section 49. On the face of it, section 49 violates some constitutionally protected rights, among which are the right to life, to freedom and security, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. The ‘new’ section 49 however, withstood Constitutional muster as set out in Re: S v Walters&another. The research proceeded to contrast the current section 49, against the common law defence of private defence. A private individual invoking the defence of private defence is weighed against the law enforcement official invoking the defence under section 49. It is argued that the level of proof in the latter is higher as opposed to the former, resulting in the contention that the law enforcement officer is unfairly discriminated against. The reverse onus, whereby the onus is shifted onto the arrestor, is further canvassed. In an endeavour to interpret the Bill of Rights of the Constitution of South Africa Act 108 of 1996, the researcher considered international instruments such as the Canadian Constitution, where the use of force in effecting an arrest is regarded as legitimate, under certain conditions. In concluding the research it was established that the voiceferous calls, for the police to be able to ‘shoot to kill’, is both unnecessary and irresponsible. Section 49 has survived constitutional scrutiny. The use of force when effecting an arrest is sanctioned, provided that it is in line with the constitutional provisions where the sanctity of human life is respected and emphasized. The police do not need more powers to use deadly force because they already have all the powers that they need! There is a lack of knowledge and understanding by the leaders on the application and interpretation of section 49. Proper and effective training of police in Criminal Procedure and Criminal Law, specifically in the interpretation and understanding of section 49, with proper guidelines to limit the potentially excessive scope of section 49, is identified. The training should also include the mind set that ‘shooting to kill’, should not be taken lightly, should be limited and confined to what is reasonable and proportional in the circumstances and should only be exercised as a last resort A fully capacitated and well resourced police force will also empower and enable police officials. / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

The Companies Act, 71 of 2008 repealed the Companies Act, of 61 of 1973, the former Act came into operation on the 1st May 2011.The repealing of the 1973 Act meant that a new legal dispensation was ushered in, these changes obviously affected the manner in which the law worked prior to the 1st May 2011. The repurchase of shares by the company is just but one of the many aspects which were affected by the new act. In order to understand the thought process of the legislature when enacting the current law, the history and evolution of section 48 is imperative. Section 80-90 and 46 together with 48 of the old and the new act respectively are the legislative framework behind the South African share repurchases rule. This research investigates the genesis of share repurchases in South Africa and thereafter observes the exodus from the original principle to the status quo. Prior to 1999, share repurchases were governed through the capital maintenance rule which was imported from England and other foreign jurisdictions. In terms of the capital maintenance rule the reduction of contributed share capital in any manner was prohibited. The issued share capital of the company was perceived as a guarantee fund intended for the payment of the claims of the creditors of the company in the event that the company defaults on its payments or is liquidated. In 1999, the Companies Amendment Act introduced sections 85 to 90 which was a paradigm shift from the out dated and superfluous share capital maintenance rule, this paradigm shift spared no sub rule within the capital maintenance rule and it is from these legal developments where we saw share repurchase rules including other sub-rules (which are beyond the scope this work) emerging. Section 48 of the new companies act read with other relevant sections the Act thereof prescribes the procedure and requirements for share repurchases, these sections further prescribe the consequences and remedies for non-compliance with the prescribed procedure and requirements. It is against this background that section 48 effects, impact as well as the interpretation thereof are investigated. In terms of section 48, the company may purchase shares issued by it under certain circumstances provided that it complies with the requirements laid down in the Act, furthermore section 48 transactions may under certain circumstances trigger tax liability for the parties involved. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

The purpose of the study is to ascertain the meaning and ambit of section 12(2)(g) of the Competition Act 89 of 1998. The main question that the study will focus on is in which instances a firm can be said to control another firm by having the ability to materially influence the policy of that firm in a manner comparable to a person who, in the ordinary commercial practice, can exercise an element of control referred to in section 12. The study will look at: <ul> (a) the South African competition law and policy; (b) the Competition Act and its application; (c) merger definition and regulations; (d) the concept of control and definition of control; and (e) the scope of application of 12(2)(g) of the Competition Act.</ul> Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

During the last decade a considerable number of statutes were adapted in South Africa pertaining to the medical treatment of children. Following international norms regarding this matter, South African law also prescribes a minimum age of consent for children seeking medical treatment without the parent’s or guardian’s consent. The long awaited Children’s Act revolutionised child law in South Africa in that it is a piece of legislation touching on a wide spectrum of issues which impact on children’s lives. Before the Children’s Act, matters regarding children were found in scattered fragments in a number of Acts and were not always focused on the child. The Act was hailed by children’s rights activists and generally welcomed. However, as with all legislation, the Act is not without its shortcoming and there are several areas which are vulnerable to criticism. In any communication or transfer of information, the manner in which the message or information is constructed will influence the ultimate decision. The Act does not address the manner or mode in which information is conveyed to the child. For instance, it does not address the predisposition that the medical practitioner consulting the child may have, nor does it require an impartial medical practitioner to assist the child in his/her assessment and decision in the matter. In this regard, the caution offered by Du Preez may be applicable, that “if the effective meaning of the information predominates over the conceptual meaning thereof, the listener/ reader will fail to make a proper judgement of what is being said.” 1 Section 129 does not contain any guidelines or provisions on how a medical practitioner should test whether a child has the mental capacity to understand the information regarding the proposed treatment. The study will report on the results of a consultation with a counselling and educational psychologist to determine which tests or methods could be used by medical practitioners to evaluate the maturity of child patients and the implications this could have on the child and his/her medical treatment. The prerequisites as set out in the new Children’s Act will be examined and the possible problems which might occur will be discussed. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Private Law / unrestricted

The Consumer Protection Act (the CPA), 68 of 2008, has certainly evoked much debate and expectations in the consumer market. Most certainly, one of the most debated topics is how this new piece of legislation would influence common law of contract. Principles such as freedom to contract, caveat emptor and pacta servanda sunt, will from the effective date of this act certainly bear a new meaning. No longer will the consumer be faced with the might of the sword of the court's interpretation not to excuse contractual unfairness. The CPA seeks specifically to ensure contractual fairness through the principle of public policy and good faith, by promoting a fair, accessible and sustainable marketplace for consumer products and services, and for that purpose to establish national norms and standards relating to consumer protection. The CPA burdens the seller with rigid obligations and creates a plethora of rights available to the consumer. To a certain extent these rights and obligations are similar to the common law rights and obligations of the parties to an agreement of sale. But, in certain instances these rights and obligations differ in a considerable way. The main focus point of this dissertation is how the duties of a seller to an agreement of sale will be influenced and amended, either expressly or by implication. The study will start of with a brief discussion on the implementation and need for a Consumer Protection Act in South Africa, followed by the seller's common law obligations. Thereafter the systematic and application of the CPA will be set out, followed by an extensive discussion of the seller's obligations flowing from the CPA, as well as the specific differences as regards to the common law obligations. From here on, certain practical implications of the CPA will be discussed, followed by a general conclusion. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted