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Masters Degrees (Law)

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    A legal based evaluation and discussion of the gender discrepancy in the intellectual property industry.
    (2021) Pillay, Kirshia.; Bellengere, Devarasi.
    Intellectual property (IP) is protected by the law. 1 The law grants an individuals’ creation a monopoly as a return for their creativity. 2 It generates incentives for creativity, for the benefit of both the creators and the society at large. 3 Intellectual property rights (IPR’s) are imperative to foster innovation and creativity in society. The protection allows for individuals to embrace the originality of what they have invented or created as recognition and gain from whatever financial benefit could occur. Therefore, the purpose of IP law would fail if it failed to identify creators. There is growing evidence that current IP laws and policies have failed to identify and prioritise many creators, including women. 4 Although being an international issue, South Africa (SA) has a greater gender discrepancy within the IP industry and very little improvement is shown compared to other countries. 5 Africa is a continent that has been seen to be patriarchal and lack gender equity.6 Therefore, in specifically African and patriarchal countries, like South Africa, it is important to encourage IP regulation, to increase the participation and rights of women in the IP industry. Ultimately, aiding towards a decrease in the gender discrepancy in the IP industry. Findings will show that more can and should be done by the legislature for a faster progression. The following dissertation aims to discuss policy reform and development with reference to IP law. It suggests that the progress to eliminate the gender discrepancy seen in the IP industry is too slow and focuses on IP policy development. Additionally, the historical treatment of women, past laws, and current statistics will be discussed. Understanding this will guide an appropriate suggestion towards successful policy reform and implementation. Moreover, the IP industry, as per the title of this dissertation, encompasses all aspects of IP, such as the ownership, inventorship, and legal aspects of the field. Additionally, there are various factors that differentiate women including race, disability, economic circumstances and social circumstances, to name a few. In terms of this dissertation women will be discussed as a group. However, consideration will be given to women from developing countries when appropriate. 1 S Gregory ‘Intellectual Property Rights and South Africa’s Innovative Future’ (2008) 23 Trade Policy Report. 2 Ibid. 3 D L Burk ‘Bridging the gender gap in intellectual property’, available at https://www.wipo.int/wipo_magazine/en/2018/02/article_0001.html, accessed on 7 August 2021. 4 Ibid. 5 J Berger and A Rens ‘Innovation and Intellectual Property in South Africa: The Case for Reform’ April 2018, available at https://www.tralac.org/documents/news/1917-innovation-and-intellectual-property-in-south-africathe- case-for-reform-accessibsa-april-2018/file.html, accessed on 1 March 2021. 6 The World Bank ‘Gender Equality: Why it Matters, Especially in a Time of Crisis’ 2020, available at http://www.worldbank.org/en/news/opinion/2020/04/13/gender-equality-why-it-matters-especially-in-a-time-ofcrisis, accessed on 3 May 2021.
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    Cyberdefamation: a comparative approach to how Zimbabwe can adapt in the digital era.
    (2021) Hungwe, Brian.; Mnyandu, Siphesihle Nobuhle.
    Society has since time immemorial sought to protect the reputation of individuals and provide scope for relief to vindicate the good name of the individual. The law of defamation has evolved over the centuries, in line with technological advancements, and growing standards of decency marking the progress of a maturing world. Common law has developed in defining defamation, its test and elements, and appropriate damages. In the 9th century, a slanderer's tongue could be cut as a penalty for damages. The development of the printing press in the 16th century, and radio in the 20th century, had the law reforming and adjusting to suit the technological advancements of the period. However, the development of the internet in the late 20th century has presented new significant challenges to the defamation law. The Internet is a global super-network used by millions of people the world over. This has provoked the need for a delineated legislative framework to redefine defamation law in line with technological advancements driven by the internet. This research will therefore evaluate the current state of defamation law in Zimbabwe in order to demonstrate the necessity of enacting law that adjust to the digital era, and offer protection to victims. The internet’s harm to reputation has been insidious, denying victims an opportunity for employment, company closures and devastating emotional trauma associated with reputational harm. The technological advancements have rattled the judiciary, and provoked scholars into research to provide ways in which the law could adapt and confront the emerging challenges, which had assaulted the traditional scope of defamation defining elements, publication, anonymity, jurisdictional and enforcement challenges, role of internet service providers and extent of damages. The internet has no respect for geographical boundaries, and could be used in via indeterminate routes, users, and jurisdictions. The Zimbabwean courts are yet to be confronted with complex cyber defamation related cases. The advent of the internet, is bound to present complex legal challenges for Zimbabwe’s legislative framework. Internet users are over 3.3 billion in the world, and half the population in Zimbabwe use the internet, representing about 2 per cent of the population in Africa. There is need for pre-emptive scholarly research to devise ways in which Zimbabwe can adapt in the digital era. There is death of precedents to provide scope for the development of common law. There are calls in various jurisdictions for countries to legally adapt to internet challenges, as internet communications are more ubiquitous than print and have the power to defame individuals. This research acknowledges that the law is failing to take into account changing realities technologically, and could lose credibility if the courts and scholars fail to respond applicably to changing times. Zimbabwe may face challenges of an unclear legislative frameworks, hence, this research becomes imperative.
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    An analysis of the international regulation of hazardous waste from a South African perspective.
    (1996) McCann, Howard Earle.
    Abstract available in the PDF.
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    Environmental impact assessments in Southern Africa : towards a regional protocol.
    (2001) Kalima, Justin Moses.; Kidd, Michael Anthony.
    Abstract available in PDF file.
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    To what extent do sps measures impact on market access for developing countries: a case study of South Africa.
    (2016) Mutamba, Tendai.; Stevens, Clydenia Edwina.
    Abstract not available.
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    Judicial recourse by public sector employees : applying administrative law to labour cases.
    (2016) Jackson, Sean Alan.; Kruger, Shaun.
    Within a public employment setting, both administrative and labour law jurisprudence continue to advance the fundamental rights and protections afforded to individuals by the Constitution under section 23 and 33. Although the Constitutional Court (arguably) seems to favour the determination of one right over another, there exists no legal basis – other than a policy basis – for such a direction. In the context of the employment of public officials, the Constitutional Court side-lined administrative law jurisprudence. The purpose of this dissertation is to explore whether public sector employees are still able to bring an application in a court of law under administrative law even when such is to be applied to quintessential labour cases. This dissertation has analysed the meaning of administrative action under section 33 and PAJA in Chapter 2 and, in Chapter 3, how the courts have approached administrative law within labour cases, uncovering important judicial arguments and direction. This leads to Chapter 4 where since Gcaba, case law and academic arguments have shown that the extent to which section 33 and PAJA apply to public-sector employment depends primarily on how one pleads. The research methodology used in advancing these objectives has comprised solely of desktop literature review of case law, statute, various text books and academic journal articles. In the absence of legislative intention to deny public sector employees their right to administrative justice, it is shown that it is not uncommon for more than one constitutional right to apply to one set of facts. It is argued that three causes of action exist under PAJA, the LRA and legality and that these causes of action are still available to litigants, even though the court in Gcaba provided the general rule that administrative law no longer applies. The Constitutional Court’s explicit recognition on pleadings has resulted in lower courts providing protection to public sector employees by hearing matters pleaded under PAJA or the principle of legality as the chosen forum. A new direction of administrative law jurisprudence is being realised by lower courts in labour cases, which correctly balances the intention of the legislature and favourably adds to the notion that rights are cumulative and complimentary of each other. Chapter 5 concludes all the relevant literature as well as providing several recommendations. Although PAJA and legality are applicable, the LRA should be the first port of call. It would be beneficial for the Constitutional Court to re-look at this area of law with the aim of advancing fundamental rights.
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    An alternative approach to dolus eventualis.
    (2016) Tsuro, Janet Audrey.; Hoctor, Shannon Vaughn.
    Abstract not available.
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    A critical analysis of the definition of “property” in clause 1 of the expropriation bill b4d – 2015.
    (2017) Otten, Edward.; Freedman, David Warren.
    Property remains a contentious issue in the new South Africa due to the unequal distribution of wealth. At the heart of this emotive issue is the question of land reform - owing to the history of racially based land dispossession. Politicians have been discussing using expropriation as a method to transform land ownership and redress past injustices. The Expropriation Bill has been introduced in this context with the aim to assist the state in its land reform policies. The Bill contains a definition of property (which is capable of expropriation) that simply directs the reader to Section 25 of the Constitution, which itself has no express or limited definition of property. The logical question which faces scholars, politicians, foreign investors and the man-on-the-street therefore is, “What constitutes property for the purpose of section 1 of the 2015 Expropriation Bill?”
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    A critical analysis of temporary employment services in terms of current legislation.
    (2016) Naidoo, Shalina Sinanin.; Whitear-Nel, Nicola Jane.
    This paper focuses on the protection of vulnerable employees in South Africa, especially in regard to Temporary Employment Services (hereinafter referred to as “TES”). The protection of employees against unfair labour practices is crucial for job security. ¹According to Odeku, “decent work and decent conditions of employment are components of sustainable socio-economic development frameworks around the world.” ² However, according to Van Eck, “over the past two decades, business owners in South Africa have increasingly sought to ‘externalise’ the traditional full-time, permanent, employer-employee relationship into a triangular labour broker connection” ³ and “this [is done] when [TESs] make employees available to [clients] (third parties) and the client assigns duties to the employee and also supervises these services.” ⁴ The tripartite relationship involving the TES is regulated by s 198 of the Labour Relations Act⁵ (hereinafter referred to as “LRA”). A TES is defined as a person who for reward, provides to a client, persons to render services to or to perform work for the client and obtains remuneration from the TES. ⁶ This triangular relationship is established by an employment contract (which forms the basis of the employment relationship) and a commercial contract between the TES and the client.⁷ In terms of this relationship, the employee provides his or her services to a client, and such relationship is then regulated by a commercial contract between the client and the TES.⁸ Van Eck stipulates that in such a case, the TES entering into an employment contract with the employee administers the payroll and deducts taxes from the employee’s remuneration and “the commercial agreement usually incorporates a clause that such agreement will continue only for as long as the client needs the services of the employee”.⁹ Thus there is no contractual relationship between the client and the employee, even though the client supervises the services of the employee.¹⁰ The Labour Relations Amendment Act 6 of 2014 (hereinafter referred to as the “LRAA”) came into effect on the 1 January 2015 and made changes to the law relating to the regulation of tripartite relationships. The amendments to s 198 will be discussed in this dissertation and in particular, there will be an analysis pertaining to whether these changes provide adequate protection to vulnerable employees engaged by TESs.
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    Paediatric euthanasia : do terminally ill mature minors have the right to die?
    (2016) Gray, Simone Jacqueline.; Bhamjee, Suhayfa.
    Euthanasia is a highly controversial and topical issue in South Africa at the moment. Following recent developments in common law, the need for euthanasia legislation in South Africa needs to be considered and further whether such legislation should allow for a mature minor to request euthanasia provided they are considered sufficiently mature to make such a decision. The purpose of this dissertation is to show the need for implementation of euthanasia legislation which would also permit terminally ill mature minors to request euthanasia. This research will involve a rights-based analysis in order to show that a terminally ill mature minor can successfully rely on his or her Constitutional rights to dignity, bodily integrity, privacy, equality, healthcare and freedom to request active euthanasia. There is a duty on the state to protect and promote the rights of terminally ill minors and it can be shown that it does such a minor more harm than good to force him or her to suffer unbearable pain until their natural death occurs. Having shown that minors can rely on the rights above, this dissertation will conduct an investigation of a child’s right to autonomy and bodily integrity in order to show that to limit a child’s right to make decisions about his or her own body is an overextension of legal paternalism. In all matters concerning a child, the child’s best interests are always of paramount importance. The purpose of this research is to show that it cannot be in the child’s best interests to force a terminally ill child to continue to suffer until their natural death despite the child requesting otherwise. In the discussion of paediatric euthanasia, the concept of competence to make a decision will also be considered. It is essential that should a child be permitted to request euthanasia, that child must be sufficiently competent and mature to make the decision to die. Methods of assessing competency and maturity will be analysed in addition to existing legislation, such as the Children’s Act,¹ which specifically provides instances in which a child can make a decision regarding their own body, showing an acknowledgement by the legislature of the need to promote and protect a child’s right to autonomy. The final section of this dissertation considers the foreign jurisdictions of Belgium and the Netherlands in order to critically assess how euthanasia legislation can be implemented with the inclusion of children. These are the only two jurisdictions worldwide which allow for a child to request euthanasia. The South African Law Commission’s report on euthanasia is also considered to contemplate the need for safeguards in respect of euthanasia that will ensure minimal abuse. ² The research is concluded by suggesting safeguards for implementation in legislation which permits terminally ill adults and mature minors to request euthanasia.
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    The rule of law, the principle of legality and the test for rationality: a critical analysis of the South African jurisprudence in the light of the separation of powers.
    (2016) Mzolo, Nkosinathi.; Freedman, David Warren.
    Over the past twenty (20) years the South African jurisprudence has been shaped by numerous factors that emanate primarily from the interpretation of the Constitution. As a result the study, knowledge and philosophy of law has witnessed vital developments which at some point seem to cause confusions in the legal fraternity. Among other confusions that exist is what constitutes “rationality” in law, what factors are relevant in defining rationality, how has rationality been defined and how has it been applied? The thesis explores various instances where our courts particularly the Constitutional Courts and the Supreme Court of Appeal has defined and applied the rationality test when testing for the exercise of public power by the public functionaries. To begin with, our courts have held that rationality is a central principle under the principle of legality which is an implicit term to the study of the rule of law. The rule of law itself has been held to be an implicit term to the Constitution of the Republic of South Africa and that all actions will only be valid if they comply with the rule of law as a constitutional value thereof. However this is not to imply that other values of the constitution like transparency, openness and accountability are less important than the rule of law but most litigation has occurred under rule of law, hence why the focus of this thesis is on the rule of law. Under this legality principle, there are a lot of principles like the principle of authority but rationality appears to be the most significant and the courts have focused mostly on it. In defining what legality rationality is, our courts have pronounced that it is a legal safety-net applicable to every exercise of public power but more particularly where no constitutionally defined right has been violated, it protects individuals against the abuse of power. The courts initially envisaged a ‘poor rationality”, however when comparing how the principle has developed over years it is clear that the principle has been used variably. At some point rationality has been applied leniently while at some point more stringently without any clear guidance, which creates uncertainty as to the correct legal position. Among other considerations of the thesis includes the fact that when the rationality principle is stringently applied, it has been held to threaten the principle of the separation of powers, however when the same principle is leniently applied, it has been held to fall short of the required standards and the demands of the constitutions especially the transparent basis of the decisions. And when this principle is applied variably, it has been seen to undermine the very principle of the rule of law that it is meant to give effect to; this is because the rule of law demands that law should be static and predictable. This confusion stimulates the construction of the thesis as different developments have been formulated but most interestingly proposes the different standards that should apply to executive and legislative decisions.
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    A discussion surrounding restraint of trade in employment law.
    (2017) Danka, Aamina.; Subramanien, Darren Cavell.
    This dissertation seeks to critically examine the restraint of trade doctrine in South African law. Section 22 of the Constitution, 1996 guarantees every citizen the right to not only choose a trade, profession, or occupation, but also to practise them. However, in terms of section 36 of the Constitution, the rights in the Bill of Rights are not absolute. Restraint of trade provisions are incorporated into an employee’s employment contract by the employer, and has the effect of limiting the employee’s free exercise of his/her chosen trade, or profession. An employee who is bound by a restraint of trade cannot compete with his/her employer during the employment relationship and after its termination. The dissertation will explore the enforceability of restraint of provisions in South African law by tracing its history of enforceability in South African law, defining a restraint of trade provision and discovering the reason why such a provision exists, the implications of its incorporation, its status in employment law, as well as contentious issues which arise in respect of such a provision. The dissertation also articulates the requirements which must be met in order for a restraint of trade provision to be upheld by the courts, and the current law on restraint of trade. Garden leave clauses have not been considered by South African courts before February 2016. Garden leave primarily originated from English law and employers, especially in the financial sector have been incorporating them into their employees’ employment contracts. This dissertation will investigate the new concept of garden leave in South African law, by considering its origins, definition, and its applicability in South African law.
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    Affected persons in business rescue proceedings : has a balance been struck?
    (2016) Silangwe, Thandeka.; Williams, Robert Charles.
    Abstract not available.
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    Pre-contractual liability : the enforceability of agreements to negotiate.
    (2016) Ngcobo, Thokozani.; Sharrock, Robert Douglas.
    Abstract not available.
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    Section 15 and 16 of the Criminal Law (sexual offences and related matters) Amendment Act 32 of 2007; lessons from the teddy bear clinic case.
    (2016) Denness, Yolynn Rutanya Nicolette.; Khumalo, Khulekani.; Hoctor, Shannon Vaughn.
    Abstract not available.
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    The legal and ethical implications of implementing partial-birth abortion in South Africa.
    (2017) Jogee, Faadiela.; Singh, Jerome Amir.
    Abstract not available.