Theses and Dissertations (Mercantile Law)

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The provisions of the South African Competition Act 89 of 1998 relating to small and medium-sized enterprises
Sakata, Belobe Nelly (University of Pretoria, 2025-06)
Small and medium-sized enterprises (SMEs) play a vital role in a country’s economy. While their contribution to the economy is widely recognised, such contribution depends on a number of factors. One of the factors is the SMEs’ ability to compete effectively and fairly participate in the market. This study critically analyses the provisions of the South African Competition Act 89 of 1998, as amended (the Competition Act or the Act), relating to SMEs to consider whether these provisions adequately ensure that SMEs have an equitable opportunity to participate in the economy. Prior to the 2018 amendments to the Competition Act, SMEs’ interests were only specifically mentioned in the purpose section of the Competition Act, the exemption provisions and the public interest grounds of merger consideration. There was no express mention of SMEs in the prohibited practice provisions. The 2018 Competition Amendment Act changed this position by reinforcing references to equal opportunity for SMEs. The existence of these provisions would, however, be meaningless unless properly interpreted. The objective of promoting SMEs has always been part of the South African competition law. However, this objective was not effectively realised, seemingly due to, among others, the influence of foreign law pursuing different competition law goals, the lack of clear prohibited practice provisions protecting SMEs, or the absence of a standard of competition harm that could fulfil the specific objective of promoting SMEs under the Act. In this regard, this study compared the treatment of SMEs under the South African competition law with that of the United States (US) and the European Union (EU), which have well-established competition law frameworks that significantly predate the current South African competition law framework. However, unlike South Africa, these jurisdictions do not expressly afford a special place for SMEs in their legislative framework. It is, therefore, submitted that a specific mention of promoting SMEs as a competition goal in the South African competition legislation has the effect of forcing the competition authorities to consider this objective in matters involving SMEs. It also compels competition authorities to accord SMEs a special place in competition considerations. Accordingly, an adequate competition law framework for SMEs in South Africa should be one that considers not only international best practices, but also the socio-economic realities of South Africa. This calls for an application of the law that promotes transformation and provides a purposive interpretation of the provisions related to SMEs. This thesis, accordingly, submits that the efficiency paradigm “protect competition and not competitors” should not apply rigidly, but it should consider the “transformative context” of the purpose of the Act, which includes the promotion of SMEs.
A framework for bank resolution in Namibia.
Eiseb, Bryan Karl Gunther (University of Pretoria, 2025-07-28)
Banks are regarded as special financial institutions because, apart from the various critical intermediary and other functions they fulfil in a financial system, the hallmark of their business models is receiving deposits from the public and using such deposits for extending loans against interest from which they make profit. Unlike other companies, banks are however vulnerable to loss of public confidence and remain exposed to various risks and failure. Banks are thus critically important actors in domestic and global financial systems, - thus their safety is critical to the maintenance of financial stability. As a result, banks are subject to stringent regulation and supervision to ensure their safety. Despite prudential regulation, the failure of banks remains a reality. If the risk of bank failure is not adequately addressed through appropriate regulation and supervision, , it may result in a financial crisis like the 2008 Global Financial Crisis (2008 GFC). Because banks play a special role in an economy and their failure may have an adverse impact on financial stability and depositors, this thesis aligns with the view expressed by academics and international organisations that there is a need for a special regime (lex specialis) to deal with the failure of banks since normal insolvency procedures are not suitable for this purpose. f. This is because bank failures require swift, timely intervention by a supervisor to resolve failing banks in an orderly and optimal manner to ensure the maintenance of financial stability, depositor protection and relegating bailouts with taxpayers’ money as a last resort. A very notable lesson that emanated from the 2008 GFC is the criticality of special resolution frameworks for banks; the need to balance the interests of shareholders, creditors, and depositors, while promoting financial stability objectives. As a result, the need for special resolution frameworks for banks which empowers Resolution Authorities with adequate resolution tools and powers to resolve a failing bank timeous and orderly , has become a legislative imperative in contemporary financial systems. To deal with bank failures in Namibia, the Banking Institutions Act, 2 of 1998 (the BIA 1998) contained provisions that allowed for the assumption of control and liquidation of a failed bank. However, the newly enacted Banking Institution Act 13 of 2023 (the BIA 2023 which repealed the BIA 1998) has changed that position and introduced a single provision in section 70 that provides for bank resolution. Until now, prior to the introduction of this very new statutory provision, all bank failures in Namibia were dealt with under the limited supervisory tools of the BIA 1998. This study seeks to determine whether section 70 of the BIA 2023, is sufficiently aligned with international best practice as captured in the Financial Stability Board’s Key Attributes of Effective Resolution Regimes for Financial Institutions (FSB KAs), issued in 2011, as updated in 2014 and 2024. Alternatively, if the regime introduced by the BIA 2023 does not adequately align with the FSB KAs it is then considered whether the new Namibian bank resolution framework requires to be strengthened further to better align it with the FSB KAs. To consider possible further reforms to the new Namibian bank resolution regime, this thesis considers the resolution frameworks in Germany and Nigeria by way of comparative studies to observe best practices.
A comparative appraisal of the regulation of cryptocurrency in South Africa
Mnisi, Ntokozo (University of Pretoria, 2023-10)
In recent years, South Africa has faced several challenges, including rising unemployment and inflation. These economic pressures have led an increasing number of South Africans to explore alternative sources of income and investment opportunities. Among the most promising of these alternatives is cryptocurrency. Cryptocurrencies are decentralised virtual currencies that use blockchain technology to facilitate peer-to-peer transactions. They are created and managed through the internet using open-source applications within a peer-to-peer network. Due to their innovative nature, cryptocurrencies offer numerous advantages and have been hailed as one of the most significant financial innovations of the 21st century. However, cryptocurrencies are also associated with a range of risks and challenges, both for individual users and for the broader financial system. One of the primary concerns is the attraction of criminal activities, which has led to increasing calls for regulatory intervention. The collapse of FTX and other cryptocurrency enterprises in 2022 has further emphasised the urgent need for robust regulation to protect consumers within a highly volatile and decentralised financial ecosystem. As a result, there is a pressing need for comprehensive regulatory measures governing cryptocurrencies, both locally and internationally. If cryptocurrencies are to achieve widespread adoption, as current trends suggest, their regulation must be prioritised. Furthermore, the introduction of such regulation is expected to bring much-needed stability to an otherwise volatile industry, helping to mitigate the risks that cryptocurrencies pose to financial stability. This dissertation aims to provide a critical analysis of South Africa’s proposed approach to cryptocurrency regulation, with a comparative assessment of Singapore’s regulatory framework. Additionally, it seeks to clarify the nature and functionality of cryptocurrencies, along with their associated benefits and drawbacks. Finally, the study will evaluate whether South Africa’s regulatory stance is optimal and explore opportunities for improvement by drawing lessons from Singapore’s approach.
The regulation and enforcement of consumer privacy in the digital age in South Africa
Salim, Salim Musa Lvuyo (University of Pretoria, 2025-04)
This study examines the strengths and weaknesses of South Africa’s legal framework for consumer privacy, focusing on the Constitution, the Electronic Communications and Transactions Act, the Consumer Protection Act, and the Protection of Personal Information Act. Key challenges identified include low administrative fines, the absence of AI-specific legislation, a lack of a clear breach notification period, no requirement for locally based Information Officers, and the Information Regulator’s inability to award damages directly to consumers. Through a comparative analysis of the EU and Indian privacy frameworks, the study proposes reforms to enhance South Africa’s alignment with global privacy standards and improve the enforcement of consumer privacy rights in the digital age.
The National Health Insurance Act 20 of 2023 : navigating constitutional obligations and the risk of regulatory overreach.
Harry, Sujata (University of Pretoria, 2025-04)
This study examines South Africa’s National Health Insurance Act 20 of 2023 (NHI), a pivotal law implementing a universal healthcare coverage (UHC) model for South Africa. Section 27 of the South African Constitution permits the government to implement the national health insurance policy to guarantee social protection for all citizens. It will ensure equal access to comprehensive health services for all citizens, regardless of their financial status. The study examines the Constitutional responsibilities of national health insurance and potential regulatory overreach. Concerns about the national health insurance’s implementation include, integrating private providers and health insurers into the public system, the viability of a single-payer model, and the potential restriction of Constitutional rights for critical stakeholders. The main goal of this study was to examine the complexities related to the national health insurance and national health insurance fund while proposing recommendations for implementing national health insurance successfully. This was achieved by thoroughly analysing the legislation and stakeholder concerns, including the influence on the private healthcare sector. The analysis and contentious issues identified provide a detailed understanding of the national health insurance’s influence on the healthcare system, offering crucial insights for policymakers and stakeholders. This research structures the conversation on healthcare reform in South Africa, emphasising the need for a balanced approach considering Constitutional mandates and practical healthcare needs.
Ensuring fair customer outcomes : the role of representatives in South Africa's financial services industry
Hlalele, Maetheng B. (University of Pretoria, 2024-10)
The document discusses the role of representatives in enhancing fair customer outcomes in the South African financial services industry. The common law, the Financial Advisory and Intermediary Services (FAIS) Act, Policyholder Protection Rules (PPRs), and the General Code of Conduct provide duties and responsibilities of a representative when rendering financial services. The role of fairness, utmost good faith and achieving fair outcomes in contracting has been discussed in various case law and are referenced for a common law perspective on the requirement of fairness in contracting. The implementation of the FAIS Act, General Code and the PPRs codified the protection customers by establishing standards for financial services providers. Despite these regulations, financial customers still encounter challenges, such as mis-selling, being charged inappropriate fees, receiving insufficient disclosures, and are exposed to conflicts of interest between the representative and their personal interests. Using a doctrinal approach, the study aims to outline the role played by representatives in enhancing fair customer outcomes in the South African financial services sector. A representative is defined as an agent under common law and a representative under the FAIS Act. What entails fair customer outcomes is outlined including the regulatory development dealing with the protection of customers which include the FAIS Act, the General Code, PPRs, RDR, FSRA and the upcoming COFI Bill. The regulatory development on the protection of fair customer outcomes is compared against the UKs regulatory environment and any key takeaways are recommended for South Africa. Significant issues impacting on fair customer outcomes in both South Africa and the UK include inadequate disclosures on fees payable in financial products, inadequate explanation on the product, mis-selling. Recommendations include continuous staff training, explicit policy explanations, and ensuring remuneration structures do not compromise advice quality.
Business rescue proceedings as a tax avoidance tool
Dhumazi, Kulani Lionel (University of Pretoria, 2024-12)
Taxes are an important stream of revenue for the South African fiscus. The taxes collected through the different streams are used by government departments for numerous projects and processes that promote the overall well-being of the country’s citizens. This is why the downward trend of CIT contributions from its peak in the 2008/2009 tax season (26.7%) is worrying. This decline in contributions can be attributed in part to an increasing number of companies using business rescue as a form of tax avoidance. By unpacking key sections of the Companies Act 71 of 2008, this dissertation explores how businesses use the Act and its embedded business rescue process for tax avoidance. The importance of SARS as the country’s tax collection instrument and its weight as a creditor in the business rescue process is also discussed. The various forms of indemnity given to role players within the business rescue process and to its practitioners are unpacked through a discussion about the shortcomings of the Companies Act 71 of 2008. With suggestions proposed on how to integrate current best practices into the Act, proposes revisions to the Act, recommending the integration of best practices to mitigate these loopholes, thereby safeguarding the fiscal integrity of the South African economy.
Exploring the necessity of insurable interest in South African insurance contracts : a critical inquiry
Mello, Nonthuthuko Boitumelo (University of Pretoria, 2024-11)
This paper considers the principle of insurable interest in South African law. It considers whether it aids in providing clarity to the parties of an insurance contract or whether it contributes to confusion for the parties. This paper further considers whether insurable interest should be a standalone requirement or whether it forms part of the risk requirement of an insurance contract. South African law has not definitely decided on the role that insurable interest plays in the insurance contract. This paper considers how the doctrine has evolved in South Africa via the courts and determines that the doctrine should be absorbed into the understanding of risk and requires that the legislation step in to provide clarity. Keywords: Insurable interest; transfer of risk; insurance regulations; elements of an insurance contract; requirements of risk in insurance.
A trans-border African crypto asset licence to promote economic growth and deepen financial inclusion
Van der Lith, Johann Daniel (University of Pretoria, 2025-04)
Financial technology (Fintech) is a rapidly growing industry, both locally and globally. In various ways, Fintech is undeniably transforming financial services and products in every possible part of the financial sector by changing how people access and use financial services. By using innovative technologies, such as distributed ledger technology and cloud technology, and combining large data sets, including alternative data sets, better products can be provided that can be hyper-personalised for market segments and improve access and participation in respect of financial services. Fintech is solving issues that touch the consumer, through a bottom-up approach, considering the retail consumer as a starting point, in contrast to the common traditional finance evolution from the institutional investors to the retail consumer in a top-to-bottom approach. What is exciting about what Fintech can do for Africa, is that it can move inefficiencies in services and product life cycles to become efficiencies and move the frontiers for already efficient products and services. Fintech, therefore, provides an opportunity to improve the archaic and pave the way for the future. This study focuses mainly on crypto assets to limit its scope. It first examines the Fintech landscape in Africa, more specifically, the activity level in each selected comparative country, namely Mauritius, Kenya, Zambia, Namibia and South Africa, and how the activity benefits or can potentially benefit the economy in the host country and lead to the deepening of financial inclusion. It further examines the regulatory frameworks in those countries. The study examines the regulatory approach taken and the local activity, exploring some of the risks identified in each country, and considers the requirements that regulators chose to implement to mitigate these risks, as well as the current state of regulatory frameworks. Consideration is given as to whether similarities in both the risks and the mitigation requirements exist and how this can be aligned across jurisdictions. Recently, international standard-setting bodies have increased their focus on ensuring the alignment and cooperation of regulatory approaches globally. In light of the call for alignment and increased collaboration through policy recommendations and guidance, and or regulators to provide comprehensive and effective regulatory approaches without stifling innovation, this study considers the theoretical possibility of allowing certain Fintech companies, specifically crypto asset service providers (subject to specified conditions) to operate across jurisdictions with a trans-border licence. This study examines Europe’s Markets in Crypto Assets Regulation, as it was the first of its kind continental-wide framework for crypto assets, offering numerous lessons to be learned from this framework. The Commonwealth Model Law on Virtual Assets is also considered, as it is intended to assist member countries in implementing Virtual Asset and Virtual Asset Service Provider regimes in their respective jurisdictions, as they deem appropriate. Lastly, the study will explore what a theoretical trans-border regulatory framework containing prudential and market conduct requirements could look like and what embedded supervision tools, for instance, through forensic nodes or zero-knowledge proofs, could be utilised to ensure that all the regulators participating as part of a licencing panel receive real-time data and have a full view of the level of compliance with the requirements imposed by the joint framework and can proactively and intrusively act, when needed. The proposed trans-border regulatory framework aims to support crypto asset service providers with multi-jurisdictional strategies in Africa in scaling their operations, with a focus on building Africa as a global Fintech hub. The proposed framework aims to achieve this through a harmonised regulatory framework that simplifies compliance, increases efficiencies, enhances innovation, allows for scalability, and better risk management. In addition to the goal of positioning Africa as a globally recognised Fintech hub, the harmonised framework aims to realise the purported benefits of the technologies utilised by crypto asset service providers, thereby deepening financial inclusion and promoting inclusive economic growth through increased access and participation, as well as lower costs.
The South African Reserve Bank’s mandate to promote and maintain financial stability in terms of the Financial Sector Regulation Act 9 of 2017
Makuyana, Ntando Andrew (University of Pretoria, 2024-12)
A stable and resilient financial system contributes substantially to balanced and sustainable economic growth. Financial stability instils confidence in the economy by reducing systemic risks, facilitating effective fund intermediation, and preventing the fallout from failing financial institutions. The 2008 Global Financial Crisis (GFC) was a watershed moment in financial regulation, highlighting the challenges posed by large, complex, and highly interconnected financial institutions, as well as intricate financial instruments like derivatives. The crisis emphasised the need for robust regulatory frameworks to prevent similar future crises. Key regulatory responses included raising bank capital requirements, intensifying supervision, and improving bank resolution and deposit protection mechanisms. Together, these measures emphasised financial stability as a primary focus in the post-GFC regulatory landscape. The South African Reserve Bank (SARB) is central to maintaining financial stability as mandated by the Financial Sector Regulation Act 9 of 2017 (FSRA). The SARB is responsible for monitoring the financial landscape and mitigating systemic risks that could disrupt the stability of the financial system. This research assesses the SARB’s effectiveness by comparing its financial stability tools to those used in the United States (US), which was the financial system of origin of the GFC. The study also examines how these US tools were applied during the 2023 banking turmoil. By analysing these comparisons, this research aims to identify specific improvements that could strengthen the SARB’s financial stability framework. In an era of interconnected financial systems, ineffective financial stability management can lead to far-reaching consequences, impacting key economic indicators such as gross domestic product (GDP) growth, unemployment, and public trust. Effective financial regulation is crucial for maintaining financial stability, especially in South Africa’s economy. This research examines the tools and strategies employed by the SARB to fulfil its mandate of ensuring financial stability to uncover insights that can enhance the resilience of South Africa’s financial system in times of stress or systemic crises such as pandemics or other large-scale economic shocks.
International investment regime reform : integrating sustainable development into Uganda’s bilateral investment treaty system – a new model bit
Asiimwe, Esther Muchwa (University of Pretoria, 2025)
This thesis critically analyses Uganda’s bilateral investment treaty (BIT) system to determine its compatibility with sustainable development imperatives and proposes a new model BIT that aligns with Uganda’s evolving development priorities. Recognising the country’s reliance on foreign direct investment (FDI) for economic growth, this study interrogates the extent to which Uganda’s current BITs—many of which were concluded during earlier policymaking eras—expose the country to legal, economic, and regulatory risks. These include susceptibility to investor–state dispute settlement (ISDS) claims, constraints on the host state’s right to regulate, and a lack of provisions promoting environmental, social, and developmental objectives. Through doctrinal and comparative legal analysis, the study traces the historical evolution of international investment law (IIL), critiques the limitations of Uganda’s domestic and treaty-based FDI frameworks, and identifies substantive and structural weaknesses in Uganda’s in-force and model BITs. The analysis also considers international reform efforts and best practices from new-generation investment agreements, including the AfCFTA Protocol on Investment, the Investment Facilitation for Development (IFD) Agreement, and the SADC and EAC Model BITs. Particular attention is paid to the South African BIT reform experience as a comparator for Uganda’s reform journey. The study finds that Uganda’s BIT system is outdated, overly protective of investors, and poorly aligned with its sustainable development goals (SDGs). It recommends terminating unratified and problematic BITs, renegotiating existing ones, and adopting a new model BIT that balances investor protection with Uganda’s regulatory autonomy and sustainable development objectives. To this end, a draft model BIT is proposed as an annex to guide future treaty negotiations and reform Uganda’s investment regime in line with contemporary global standards and regional aspirations.
The interpretation of insurance contracts in South African and English law
Mitchley, Justine (University of Pretoria, 2024-12)
The principles relevant to contract interpretation concerning South African law experienced substantial development. Although a contract of insurance is subject to the general law of contract, the insurance industry in South Africa has become highly regulated, resulting in additional duties and obligations enforced against insurers. Conversely, contracts are not governed by statute but by the common law. South African common law is primarily based on Roman Dutch law, but South African law has also been significantly influenced by English law, especially in areas such as procedure, evidence, company law, and insurance. To this day, English law decisions are persuasive to the South African courts, and the principles of the English law of insurance profoundly influence South African insurance law. This research considers the fundamental principles of interpreting a commercial contract in South Africa, how an insurance agreement will be interpreted under South African law, and the differences and similarities between interpreting a commercial contract and a contract of insurance. Since South African common law has been influenced by English law, this study also considers the position regarding interpreting an insurance agreement under English law and the differences and similarities between interpreting an insurance agreement under South African law and English law.
Impact of the basel accords on small indigenous banks in developing countries : the case of Zambia
Rolls II, Douglas Walter (University of Pretoria, 2025)
The purpose of this thesis is to evaluate the impact of the Basel Accords on small indigenous banks in developing countries, with particular concentration on small Zambian banks. The problem statement intends to investigate whether implementing the three Basel Accords is conducive to the growth of small banks in Zambia. The study further aims to determine whether the present approach to legal regulation of small banks in Zambia is appropriate. The methodology is based on desk-bound research and examination of both primary sources and secondary sources of material such as books, journals, and relevant articles. The study is impacted by the dearth of secondary research work and the difficulty of getting information from sources like the Zambian central bank and other information centres. While Basel I and II seem to have stabilised the Zambian financial sector, the Basel III Accord appears to have impacted negatively on many small banks to the extent that they have been forced into merger and acquisition arrangements with larger foreign banks to fund their undercapitalised positions to survive. It also emerges that the Zambian financial system is strongly linked to the international global economy; regionalisation with organisations like SADC and COMESA being the first stages in the process. This situation is likely to introduce increased instability in the Zambian financial sector by making banks more vulnerable to the vagaries of the international financial markets. It is thus recommended that the Zambian central bank should be more proactive in lobbying for better conditions for small banks from the Basel Committee for Banking Supervision and other international financial regulatory bodies; it should also avoid “cutting and pasting” rules from other jurisdictions to avoid possible distortions in the banking sector. It should also encourage further development of primary and secondary markets in low-cost paper and provide small banks with long-term, low-interest loans to support their growth. The Bank of Zambia, the Zambian central bank, should consider establishing a separate Act financial services Act for small banks to better regulate them. The central bank should also seek out non-Basel Accord solutions for small banks including re-examining the positive aspects of the infant-industry argument. Lastly, it should introduce a formal system for classifying banks in Zambia. At the international level, it is suggested that the global standard-setting bodies should undergo radical reforms to ensure that they are in tandem with the problems that banks in developing countries face as well as allow them to have a say in global standard setting. It is recommended that global standard-setting bodies apply simpler rules for smaller banks. The impact of the Basel Accords on small indigenous banks in developing countries and Zambia, in particular, is important because of the role that small banks play in developing economies in growing small and medium-sized businesses that are often ignored by large foreign banks. It is also important that small banks are allowed to grow into large and medium-sized banks to effectively compete against foreign multinational banks. Institutions based on neoliberal ideals appear to only serve Western businesses’ interests despite their call for all countries to create a level playing field. Due to the dearth of empirical research, there are several gaps in the work that may provide opportunities for further research in this important area of the law.
Debt Intervention as a Debt Relief Remedy
Popoola, David Olugbenga (University of Pretoria, 2024-10-29)
There has been a shift in the approach taken to accommodate vulnerable debtors internationally from a heavily creditor-oriented approach to a more friendly system which aims to prioritise the needs of vulnerable debtors. The insolvency system of South Africa is still however heavily creditor-oriented. This research aims to examine the statutory debt relief measures available to debtors in South Africa. In addition, this research will examine the debt relief measures available to debtors in New Zealand, in particular the no asset procedure. This research will conclude by examining the debt intervention procedure introduced in the National Credit Amendment Act of 2019. A comparison of the debt relief measures in South Africa will be made to that in New Zealand and recommendations will be made on how to improve South Africa’s insolvency system to cater to vulnerable debtors.
Enhancing the approach to piercing the corporate veil in South African company law
Buthelezi, Samantha Phumzile (University of Pretoria, 2024-09)
This dissertation examines a critical analysis of the South African approach to piercing the corporate veil in comparison to English and Australian law will be done in an attempt to: (i) draw ways in which South African courts can improve their approach; and (ii) achieve a more coherent framework that can be utilised to curb the abuse of the concept of separate legal personality.
The regulation of crypto-assets in South Africa with particular regard to crypto-asset market manipulation
Mgijima, Lwandiso (University of Pretoria, 2025-05)
Market manipulation is one of the dishonest means used by unscrupulous investors to make unjustified profits. It is conduct which unlawfully interferes with the normal operations of the markets in order to create false appearances with respect to the trading activity or the price of a financial asset. Market abuse is one of the various challenges plaguing the crypto-assets market, and is one of the financial regulators’ priority concerns. This study examines and discusses the problem of market manipulation in crypto-assets, and the need for the enactment of an effective regulatory framework in order to combat this problem and to promote investor protection and safeguard the integrity of the markets. The study finds that South Africa and other countries need to introduce rules in crypto-assets market which aim at regulating the activities of crypto-asset service providers. Currently South Africa has not enacted a comprehensive regulatory framework to address the various illegal uses of crypto-assets. The general approach adopted by South Africa to regulate crypto-assets activities involves subjecting crypto-asset service providers and their activities under the various financial sector laws established to regulate the traditional financial markets. This approach has been criticised as being inefficient in light of the unique risks presented by crypto-assets. The study discusses some of these arguments in detail and concludes by highlighting the need for the adoption of innovative regulations, in the long term, which comprehensively and effectively addressed the various risks presented by crypto-assets which also include market manipulation.
Climate change and international investment law : lessons from Africa's investment treaty practice
Mogashoa, Lebogang Paul (University of Pretoria, 2024-11)
This dissertation critically analyses new generation continental, regional and bilateral investment treaties in Africa with the aim to explore enhancements that could be made thereto in order to enable African citizens to hold investors accountable for investment-related climate change issues in Africa. The main research question answered in the dissertation is: to what extent does African investment treaty practice incorporate climate change-related provisions and investor accountability for climate change. The dissertation analysed traditional investment treaties, particularly noting their silence on climate change and investor accountability, and their partiality to investor protection. Using the AfCFTA Investment Protocol as an anchor alongside other new generation continental, regional and bilateral investment treaties in Africa, it discusses a fundamental contemporary shift in African investment treaty practice towards ensuring sustainable investments and greater investor accountability for sustainability in Africa. It also explores the various limitations in these new generation investment treaties that still make investor accountability. In the end it proposes reforms to the Investor-State Dispute Settlement provisions of these investment treaties to recognise citizen-led arbitral claims against investors, utilising the Hague Rules on Business and Human Rights as the procedural infrastructure for handling arbitration of such claims.
The role of the national consumer tribunal in reckless lending in terms of the National Credit Act 34 of 2005
Van Heerden, Willem Herman (University of Pretoria, 2024-12)
The National Credit Act 34 of 2005 (NCA) prohibits the granting of reckless credit and identifies three types of reckless credit for which civil remedies may be granted in terms of section 83 of the Act. It also introduced mandatory pre-agreement assessment in terms of section 81(2) of the NCA read with the 2015 Financial Affordability Assessment Regulations which obliges a credit provider to assess a consumer for affordability before entering into a credit agreement with the consumer. The NCA has established the National Credit Regulator as primary enforcer of compliance with the Act. It further established the Tribunal to adjudicate reckless credit complaints. The Tribunal can impose administrative fines on credit providers who were found to have extended reckless credit and it can also cancel their registration as credit providers. Initially only the civil courts could grant the civil relief set out in section 83. However, since the National Credit Amendment Act 9 of 2014 came into operation, the Tribunal can now also grant the very same civil relief as the civil courts in terms of section 83 of the NCA. This dissertation interrogates the power of the Tribunal to grant civil relief and makes recommendations regarding whether this power should be retained.
Implementation of safeguard measures in digital trade to protect African domestic industries and platforms
Rotich, Nelly Chepngetich (University of Pretoria, 2025-02)
As technology continues to advance, more trade is moving online. The increase in digital trade brings with it both opportunities and challenges in the international trade field. The increase in digital trade could for instance result in a spike in digital trade imports which may subsequently cause or threaten to cause serious injury to domestic industries and platforms dealing in like or directly substitutable digital data/content and services. This would necessitate the application of safeguard measures to avert any such serious injury or threat to serious injury caused to the domestic industries and platforms. The procedure for applying safeguard measures to digital trade currently is unclear. The current legal framework on safeguard measures does not apply to digital trade despite increased digital trade over the years. Thus, this study explores the prospects and practical challenges relating to safeguard measures’ application to digital trade with a specific focus on African domestic industries and platforms. While domestic industries and platforms in any part of the world could be affected by surges in digital trade imports, Africa is in a precarious position. Intra-Africa digital trade volumes could be increased and disadvantages of African domestic industries and platforms by surges in digital trade imports could be prevented through regulation and judicious use of safeguard measures. This study established the need to regulate to tap into the potential of digital trade and prevent African industries and platforms from falling behind and from the disadvantage of market dominance by big techs from outside Africa. In conclusion, the study noted legal and institutional gaps in the application of safeguard measures to digital trade. The study has recommended that specific institutions at the global, continental and national levels take necessary actions to build a clear and robust framework for safeguard measures in digital trade.
Aspects of debt enforcement in terms of the National Credit Act 34 of 2005
Dlamini, Dumsile (Dladla) (University of Pretoria, 2024)
The Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980 have governed consumer credit regulation in South Africa for more than 25 years. When South Africa became of democracy, it was clear that the financial credit market was ill suited to the country’s post-apartheid economy and, by extension, society. Kelly-Louw states that the financial credit market was “… characterised by discrimination, a lack of transparency, limited competition, high costs of credit, and limited consumer protection. The mechanism to prevent over-indebtedness that were in place at the time, could also not adequately promote the rehabilitation of consumers, and the available debt relief could also not assist already over-indebted consumers to deal with their debt.” This dissertation considers the prescriptions laid down in section 129(1)(a) of the National Credit Act 34 of 2005 (“NCA” or “Act”), which are pivotal in the debt enforcement of credit agreements. Section 129(1)(b), read with sections 130(1) and 130 (3)(a) of the Act, in essence encumbers a credit provider with the duty to deliver a section 129(1)(a) notice to the consumer prior to debt enforcement. It is noteworthy that debt enforcement is a lengthy, two-pronged procedure. This dissertation considers both aspects of debt enforcement; however, the focus is on the first stage of the process, which pertains to the required procedures prior to debt enforcement. The Act does not expressly define “delivered”, and, as such, inferences are taken from other sections to give effect to sections 129 and 130 of the Act. It is the very lack of a definition that has resulted in courts burdened with cases served before them for interpretation of the delivery of the statutory notice. In this dissertation, the Act’s varying provisions on “delivery” are considered and analysed, to determine and recommend, firstly, harmonisation of the conflicting sections within the Act and, secondly, other legislative enactments that have a bearing on the delivery of legal documents and, in particular, those that are mandatory for procedures in court, Lastly, the dissertation addresses the plethora of stare decisis that has served before the highest courts in the land, with a focus on landmark case.

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