Doctoral Degrees (Mercantile Law)
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- ItemA comparative evaluation of the South African income tax regime for investments using trusts(Stellenbosch : Stellenbosch University, 2023-12) Herbst, Hendri; Du Plessis, Izelle; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT : This study evaluates the South African income tax regime for investments using trusts. It considers whether reforms are required, and if so, how can this be done to create a tax framework that will encourage investment, limit tax avoidance and curb capital outflows, while considering South Africa’s unique context and challenges.
- ItemLegal protection of the individual's image against unauthorised commercial exploitation in South Africa : a critical evaluation of existing law and suggestions for law reform(Stellenbosch : Stellenbosch University, 2023-12) Van Gensen, Layckan Inge; Louw, André; Louw, Andre Mouton; Wessels, Bernard ; Wessels, Albertus Bernardus; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT : No abstract available.
- ItemThe interface between competition and intellectual property law : finding common ground and resolving the tensions between these areas of law from a South African perspective(Stellenbosch : Stellenbosch University, 2023-03) Dercksen, Juletha-Marie; Sutherland, Philip; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH SUMMARY : Competition law and intellectual property law share the objective of incentivising innovation. However, this objective is achieved in different ways, which, at times, can create tension between the two areas of law. It is imperative that this tension at the interface of competition law and intellectual property law is resolved in a manner that encourages innovation. Issues regarding the licensing of intellectual property, Standard Essential Patents, pay-for-delay agreements and no-challenge clauses are instances where the tension between competition law and intellectual property law is especially prevalent. These instances will be discussed in detail, and what is learnt from how the European Union and Australia handles it, will be applied to South Africa. The European Union, Australia and South Africa have different ways of dealing with situations where the exercise of intellectual property rights has an effect on competition. The European Union has block exemptions, which contains “safe havens” for conduct in specific circumstances. The block exemptions are often accompanied by guidelines, providing firms and individuals with greater detail in order to self-assess their compliance with the exemption. Australia has authorisation, notification and class exemption procedures. Firms can apply to the Australian Competition and Consumer Commission to authorise conduct that might potentially breach the Competition and Consumer Act 2010. Exemptions may also be granted more broadly by the Australian Competition and Consumer Commission in terms of the class exemption procedures. In South Africa, the law concerning the interface between competition law and intellectual property is still in its infancy, and a lot can be learned from jurisdictions like the European Union and Australia regarding the most efficient way to handle this tension. Currently, the Competition Act 89 of 1998 in South Africa contains Section 10(4), the intellectual property exemption clause. A firm can apply to the Competition Commission for an intellectual property exemption from the application of Chapter 2 of the Competition Act “to an agreement or practice, or a category of agreements or practices” which pertains to the exercise of intellectual property rights. However, it is submitted that Section 10(4), by itself, is not the most efficient mechanism to resolve the tension that arises at the interface of competition law and intellectual property law in a way that incentivises innovation. It is proposed that the exemption provision can be made more effective if it is properly applied in conjunction with class exemptions and guidelines.
- ItemThe legal regulation of trade union recognition in South Africa in historical and comparative context(Stellenbosch : Stellenbosch University, 2023-03) Germishuys-Burchell, Wilhelmina; Garbers, Christoph; Calitz, Karin Beatrix; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH SUMMARY : This study investigates the impact and importance of the legal regulation of trade union recognition and associated challenges in South Africa. It evaluates the current regulation of trade union recognition, including legislation and judicial attitudes apparent from the interpretation, application, and enforcement of such legislation, to ascertain its continued appropriateness in the current South African industrial relations environment. The study considers the policy choices of both voluntarism and majoritarianism underlying the Labour Relations Act 66 of 1995 (“LRA”) and the “workplace” constituency to which it applies as factors that might be contributing to challenges experienced in the current regulation of collective bargaining in South Africa. It evaluates the current model of trade union recognition and representativeness as it applies to the acquisition by trade unions of organisational rights, collective bargaining rights and trade union recognition for purposes of retrenchment consultation. It recognises that the specific model chosen to regulate the representative status of trade unions has a significant effect on the ability of trade unions to organise and conclude collective agreements and, as such, on the distributive effects of such agreements in the labour market and broader society. The study commences with an historical overview of the regulation of trade union recognition under the 1956 LRA and thereafter considers the 1995 LRA as a product of criticism against the 1956 LRA. Specific issues considered, largely based on the analysis of the relevant decisions by the Constitutional Court, include the following: the impact of Constitutional Court jurisprudence relating to trade union recognition on the process of collective bargaining and on the legal regulation of the right to strike; the role of representativeness and its link with the workplace as the constituency for recognition and acquisition of organisational rights; the often winner-takes-all effect of the current model on collective bargaining as a major cause of labour unrest; the reactive role the legislature has played over the past, almost three decades to address challenges; the extent to which intervention should take place to safeguard the institution of collective bargaining from being undermined as well as the regulation of collective agreements as the product of collective bargaining and as the primary source of terms and conditions of employment. The comparative review of Canadian law focuses on a number of issues selected specifically for their potential to provide insights into how the weaknesses in South African regulation may be remedied. This includes insights into the accommodation of special or significant minority interests and how to address recognition in the context of multi-location employers. The thesis concludes with remarks on the insights gained from the Canadian model and the 1956 LRA. Where appropriate, suggestions are made on the way forward for South Africa as to the appropriate regulation of trade union recognition and representativeness.
- ItemThe impact of the legislative regulation of individual educator performance on the delivery of quality basic education(Stellenbosch : Stellenbosch University, 2022-03) De Villiers, Cecile; Garbers, Christoph; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT: The study was motivated by three factors. First, the critical importance of education for each individual and our society as a whole. Secondly, the poor state of basic education in South Africa. Thirdly, the central role educators play in the delivery of quality basic education. The process of education is a means of self-actualisation and provides individuals with the opportunity to experience their full intellectual and emotional potential as well as the means to participate in societal processes. It is also valuable to society as investment in education enriches the human capital of a country, is a source of responsible adults and a driver of economic growth. For the South African society, the most important contribution of education is that it is a vehicle for transformation and one of the only societal equalisers that exist. Unfortunately, despite the importance of quality education, all learners in South Africa do not have access to education of an equal standard. Qualified, competent, and professional educators are central to the delivery of quality basic education. This study identifies the educator as the most important role player in the delivery of quality basic education. The focus is on the employment of educators in public basic education which is defined to include school education in South Africa from grade 1 to grade 12. For purposes of the study, educator performance was defined to include the capacity and conduct of educators in delivering basic education. “Capacity” refers to the qualifications, competence, content knowledge and skills of educators whereas “conduct” refers to the professionalism and attitude of educators. One contributing factor to the poor state of basic education is the fragmented and otherwise inappropriate legislative regulation of educator performance in South Africa. For this reason, the experience with misconduct and incapacity of educators within the current legislative framework is investigated. The approach is descriptive and analytical - both quantitative and qualitative. It includes a description of existing research and views on the prevalence and impact of misconduct and incapacity of educators in and on basic education in South Africa. This is followed by a statistical overview of the extent of the application of discipline in the basic education sector based on information from the different Provincial Departments of Education and from arbitrations conducted by the Education Labour Relations Council. The qualitative analysis of these arbitration awards is particularly important since each matter provides insight into the application of legal principles and the exercise of discretion by the different role players responsible for addressing misconduct and incapacity in basic education. Based on these insights, deficiencies in the current system of regulation of educator performance are tabulated. This, together with comparative insights from the English experience, is used to make specific proposals for a range of legislative amendments.