Theses and Dissertations (Private Law)

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Addressing the role of internet intermediaries and other stakeholders in the online counterfeit market in South Africa : lessons from selected jurisdictions
Baloyi, Balehlogonolo Queeneth (University of Pretoria, 2025-01)
In recent times, the need to protect intellectual property rights (IPR) against infringement on the internet is increasing. The surge in commercial transactions on the internet continues to popularize the advertisement and sales of counterfeit goods. Such negative development has continued to engender the infringement of IPR, particularly trademark rights. Section 76 of the Electronic Communications and Transactions Act (ECTA) requires that internet service providers (ISP) only be held liable for infringing data or activities where they know such infringement emanating from their users exists. IPR holders have argued that the protection offered by section 76 of ECTA is enabling ISP to contribute to infringe content on the internet as the response to their complaints are not met with the urgency they deem is required simply because they benefit financially from their users. This continuous challenge prompts the need to research on the role of internet intermediaries and other stake holders on the internet counterfeit market in South Africa. Enforcement efforts observed in the USA and Europe to curb the internet counterfeit tide has necessitated that a comparative analysis takes place which has resulted in important lessons to be learnt and implemented. A qualitative research approach has shown that there has been instances wherein ISPs and consumers are guilty of secondary infringement of trademark rights on the internet and as such collaborative efforts are required from all stakeholders in eliminating such infringement so as to eventually curb the counterfeit tide significantly.
Consumer protection In electronic commerce
Bonfils-persson, Ayla J (University of Pretoria, 2024-09)
Mini Dissertation written by Ayla Bonfils-Persson for the partial fulfillment of the LLM Course work. This mini dissertation examines consumer protection in South African electronic commerce, with a particular focus on the Electronic Communications and Transactions Act (ECTA) and the Consumer Protection Act (CPA), evaluating whether these legislative frameworks align with international standards established by UNCITRAL and the OECD.
The effect of the National Credit Act, 34 of 2005 on the extension of credit by commercial banks
Buthelezi, Sithabiso (University of Pretoria, 2024-11)
Credit plays a very important role in the economy as it facilitates trade among consumers and suppliers. For businesses and suppliers, credit enables them to expand production as it gives them access to capital and allows them to take on bigger projects that they would not have taken without capital. It is also important for consumers as it allows them to obtain goods or/ and services that were out of reach without credit. Therefore, credit remains important for both consumers and businesses. Accessibility of credit determines the extent to which an economy grows. There’s evidence that economic growth is highly correlated with the country development of its financial system. Thus, it is not surprising that most developed countries have highly developed financial sectors to cater for the growing needs in the economy. However, while credit comes with many advantages for growing the economy, it also comes with its own challenges, particularly in an economy where consumer literacy and financial education levels remain low. In such instances, credit could be used as a weapon to take advantage of vulnerable and illiterate consumers. It is based on these factors that the South African government opted to enact the National Credit Act, 34 of 2005 to mainly regulate the credit market, promote access to credit and protect consumers. After the Act was enacted, there were concerns from mostly economic scholars about its impact on the extension of credit and economic growth. Moreover, some legal scholars also argued that the Act has an impact on the law of contract as it seeks to codify some of the common law positions in the law of contract. This study investigates the effect of the Act on credit agreements and credit that is extended by commercial banks in South Africa. To test the effect on credit agreements, the study assesses the available literature together with the applicable provisions of the Act which touch on credit agreements. To test the impact on credit extension, the study collected secondary data on credit that was extended by commercial banks between 1992 and 2021 issued by the South African Reserve Bank. Once collected, the data was coded and analysed through Microsoft Excel. The study also found that the Act influences credit agreements. The Act puts certain formalities that contract drafters must adhere to when drafting credit agreements. For example, the Act prescribes that the consumer has a right to receive a document in an official language that the consumer understands, to the extent that this is practical. This use of simple and understandable language is a new requirement brought by the Act on the law of contract. The study also found that the Act comes with new procedural requirements. According to the Act, credit providers are required to provide a quotation to credit consumers specifying the full detail of the cost to the consumer. The quotation will be valid for five days, giving ample time to the consumer to receive quotations from competitors should they wish to do so. This is a new procedural issue brought by the Act. The study also found that the Act was able to curb the rate of credit extended households and stabilized the rate of increase. Therefore, the study found that the Act was able to affect credit agreements and managed to stabilise the extension of credit in the economy.
Lex Mercatoria : does the law merchant apply in the South African law of contract?
Deonarain, Kiara (University of Pretoria, 2024-10)
The South African law of contract, which is rooted in Roman-Dutch law, aims to provide a legal framework that regulates the relationship of parties to a contract as they enter into business transactions and trade in goods and services with the peace of mind that the law will uphold their rights and protect their interests. A widely accepted principle in contract law is that the parties may choose which system of law should govern the terms of the contract, especially where there is an international element to the agreement. However, parties may, for various reasons, choose to disregard the national laws that would have been applicable and may rather opt for the general principles, customs and usages and trade norms practiced in a particular trade, such as the general principles of International Trade Law. These general principles are known as the lex mercatoria, or the law merchant. This legal phenomenon has subsisted for many years and the simple act of trading on mutually accepted customs is as old as time. In Medieval times, merchants travelled around the world, taking their customs and usages with them and, over time, this led to the development of the customs and usages into generally accepted principles applied in particular trade industries. Unfortunately, it disappeared when there were attempts to nationalise International Trade Law. The law merchant reappeared as the new lex mercatoria in the mid-20th century and evolved as the world saw an increase in international trade yet again. The history, as well as the sources of the lex mercatoria have continuously been a point of contention. This has resulted in various theories being put forward by proponents and critics of the law merchant with each school offering convincing arguments as to whether or not the law merchant still exists and whether it can be regarded as an independent legal system that should be applied to contracts and other legal agreements. Despite being shrouded in controversy, there have been many debates as to whether parties should be allowed to choose it as the applicable law. Does the law merchant have the ability to sufficiently govern a contract without the need for national law to intervene? What is its relationship with the national laws of a country? The answers to the questions posed above may be found in the sources from which the lex mercatoria is derived. These various sources, which include international instruments, are paramount to understanding how this a-national, seemingly uncodified body of rules has previously been applied and how it may, in turn, currently impact the South African contract law. Considering the above, this research attempts to define and detail the lex mercatoria throughout the years. further explores the debate between the opposing schools of thought by analysing the conflicting statements to determine whether each argument has merit. Furthermore, the study will look at the South African law of contract and set out the basic principles of contract as provided for in the legal framework. In doing so, it attempts to connect and link the sources of the law merchant to contract law and provide recommendations on whether the lex mercatoria should be applied in a South African context and if so, how we should attempt to resolve any inconsistencies in its interpretation and application.
The link between the assumption of support between life partners and the recognition and protection of life partnerships in South Africa
Botterill, Cherryl-Lee (University of Pretoria, 2024-11)
South African family law does not recognise a “law of life partnerships” and accords only piecemeal statutory and judicial recognition to life partnerships. While legislation to formally recognise life partnerships have been proposed, development of the law in this regard has thus far been driven almost exclusively by judicial precedent. The judiciary has adopted two different approaches as far as it relates to the role of a duty of support in recognising life partnerships and in determining whether life partners could qualify for spousal benefits. Under the first approach the courts derive a duty of support from the fact that the partners lived together with some form of permanence. The duty of support is therefore not a prerequisite for the existence of a life partnership but flows from the life partnership. Under the second approach a duty of support cannot be automatically inferred even though the partners lived together with some form of permanence. An undertaking of a duty of support between the partners is a prerequisite for the recognition and benefits of a life partnership. The legislature has proposed legislative proposals towards the recognition of life partnerships. The Domestic Partnerships Bill and the Single Marriage Statute proposed provision for the registration of life partnerships. Under the Domestic Partnerships Bill, the assumption of a duty of support is one of a number of factors for the recognition of a life partnership and therefore not required qualifying prerequisite for the recognition and protection of life partnerships. Under the Single Marriage Statute, the parties must have cohabited in a life partnership and have assumed a permanent responsibility for supporting each other. A permanent responsibility for supporting each other is made a prerequisite for recognition and protection of life partnerships. Although the mentioned proposed legislation provides for the recognition of life partnerships the legislature is advancing the Marriage Bill that provides recognition to all forms of marriage under a single Act. The Marriage Bill does not provide for life partnerships. Life partners will therefore have to rely on piecemeal recognition by the courts for the foreseeable future. The position in South Africa is compared to legislation in British Columbia in Canada and the Republic of Ireland. Both jurisdictions provide for the recognition of life partnerships. In British Columbia partners must cohabit for a specific time period in a marriage-like relationship. In Ireland an intimate and committed relationship is required with a prescribed time period and financial dependence. The jurisdictions both follow an ascription model. It is concluded that an ascription model similar to that of British Columbia would provide the most extensive protection for life partners in South Africa. The duty of support should not be a prerequisite for recognition and protection of a life partnership but rather a consequence of such a relationship.
Business-to-business data sharing : South African and European Union legal constructs
Pretorius, Johann Andre (University of Pretoria, 2024)
This dissertation reviews how the legal frameworks in South Africa and the European Union facilitate business-to-business data exchange while safeguarding information rights and how they align or differ. Chapter 1 examines how the current era commodifies personal and nonpersonal data, with Big Data notably impacting privacy norms and posing significant privacy challenges. Chapter 2 delves into the SA’s approach to using personal and non-personal information. SA has implemented the Protection of Personal Information Act, which imposes specific processing conditions for accountability and security and gives individuals rights over their data. The chapter concludes by examining the safeguarding of non-personal information and the importance of intellectual property rights. Chapter 3 analyses the similarities and differences between the Protection of Personal Information Act and the European Union’s General Data Protection Regulation. The chapter also examines the European Union's approach to protecting non-personal data, specifically their data strategy’s current legislative program. Chapter 4 assesses the sharing of business-to-business data between South Africa and the European Union. It looks into the contractual aspects of data sharing in the European Union, the role of Standard Contractual Clauses in international data transfers and the legal compliance required, especially for high-risk processing. Finally, the chapter concludes with recommendations for further research and policy changes that could enhance the efficacy of data sharing.
The implications and effect of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act 22 of 2022, on the Trust Property Control Act 57 of 1988
Batshabile, One Pearl (University of Pretoria, 2024-11)
The General Laws Amendment Act was promulgated as a result of efforts by South Africa to meet the recommendations by FATF and thereby to avoid being grey listed. The General Laws Amendment Act however introduced concepts (English concepts) which were foreign to the South African trust law principles. The aim of this study is to appraise the amendments introduced in the TPCA by the General Laws Amendment Act and to determine whether they are theoretically sound, practical and finally whether they achieve the aims and objectives of the Act. This study further undertook a comparative analysis with regards the concept of “beneficial owner” as applied in Namibia and Botswana and other provisions in their trust law legislation.
Patent quality and patent system in South Africa and selected foreign jurisdictions
Smith, Darren Marlin (University of Pretoria, 2024-11)
Various jurisdictions have introduced measures to ensure that exclusive rights are granted to patentees whose patents are of a high-quality and meets the theoretical justification for patent protection. This dissertation sought to determine what are the parameters and/or components of a quality patent. Thereafter, this dissertation evaluated South Africa's patent system to determine whether it grants patents that meet those parameters and/or components of patent quality. Finally, this dissertation looked at foreign jurisdictions to determine whether there were any lessons to be learned, and whether South Africa could find ways of improving its patent system to ensure the grant of higher quality patents.
Inducement as an abuse of dominance in South African Competition Law
Bizana, Kutala (University of Pretoria, 2022-12-15)
Section 8(1)(d)(i) of the South African Competition Act 89 of 1998 prohibits a dominant firm from requiring or inducing its supplier or customer not to deal with a competitor unless there are technological, efficient or other pro-competitive gains that outweigh the anti-competitive effects of the act concerned. The key problem that competition authorities globally are facing, South Africa included is that competition, quite literally, is tantamount to inducement. Every advertising campaign or innovation is aimed at inducing customers or suppliers not to deal with competitors. The critical issue is distinguishing between well-functioning competition and malfunctioning competition. As dealt with in this dissertation, significant research has been conducted and a number of cases have been decided in South Africa to deal with this critical question. This study also considers how the issue of inducement is dealt with in the European Union (EU) and whether there is any guidance that can be taken by South Africa from the manner in which the EU approaches inducement by a dominant firm
Who speaks for girls? The conflicting voices on sexual education and reproductive health rights in the United Nations system
Swartz, Wendy Jean (University of Pretoria, 2025-02-14)
Women and girls’ sexual and reproductive health are fundamental human rights, as enshrined in international laws and agreements and recognized by human rights’ bodies. However, despite instruments promoting the sexual and reproductive health and rights (SRHR) of women and girls and the right to comprehensive sexual education (CSE), these rights are often limited, restricted or denied. This research considers whether the differences between the Charter-driven and treaty-derived bodies within the United Nations are impeding the advancement of these rights for women and girls. The divergent logic, processes and activities of the actors within these bodies, namely the human rights experts and state representatives, are examined. Furthermore, the validity of positions adopted by states, whether political, legal, cultural or religious, are explored. The research is a qualitative study drawn from primary and secondary sources in UN agencies, international human rights law, academic research and government policies addressing SRHR and CSE. This thesis contributes to the understanding of the lack of collaboration between the human rights experts and States parties within certain UN bodies. The study concludes that whilst UN documents continue to reflect progressive recognition of these rights, challenges persist across all geopolitical regions in the understanding, realisation and implementation of these rights. The research furthermore definitively concludes that cultural or traditional practices cannot be justified should they impede on a girl’s rights in any way. As the narrative on girls’ rights is not linear, but is instead co-located within numerous other interests, the polarisation and politicisation of these issues are expected to continue.
The liability of state officials for public procurement irregularities
Baloyi, Reason Misiiwa (University of Pretoria, 2025-01)
Abstract This research focuses on liability of the state officials with regard to the public procurement irregularities on the procurement of goods and/or services, the delimitation of such liabilities, and remedies, for non-compliance with the Constitution and certain key public procurement legislation. This research identifies certain public procurement irregularities, and discusses some of the conceptual principles of liability under the administrative law, law of delict and law of contract, for these irregularities. The research illustrates the state officials’ liabilities with regard to their wrongful conducts in the public procurement of goods and/or services, public resources, good governance, and on social-economic conditions. After reviewing the range of approaches of the public procurement legislation with regard to the state officials’ liabilities, a conclusion is that government, judiciary and the public need to come together and take a decision to hold the state officials liable for the public procurement irregularities which results from the wrongful conducts of the officials. Liabilities of the state officials for the public procurement irregularities appear to be lacking some theoretical basis because of its interconnection with the administrative law, law of contract, criminal law and law of delict, which affects the systematic implementation and enforcement of the constitutional obligations with regard to the procurement of goods or services.
The use of a single-entity closed league model in South African soccer
Zwane, Kagiso (University of Pretoria, 2024)
South African club football is in a state of sporting and financial instability and inequality. This state of disarray is to such an extent that the integrity of the football pyramid has been breached with clubs selling their statuses in the South African top flight, the Premier Soccer League (PSL), on the open market thus subverting the requirement of sporting merit as a determinant for promotion and relegation. This mini-dissertation seeks to explore the possibility of an alternative organisational model where rather than continuing with the pretense of a pyramid an entirely new model is implemented for top-flight clubs. This model would be a publicly owned and traded single-entity closed league model. A single-entity closed league as used by the Major League Soccer (MLS) league in the United States of America is a model where the respective clubs in the league are centrally owned by the league itself and investors invest in the league rather than investing in individual clubs. This model would necessitate forgoing the relegation and promotion system which is utilised in open leagues. A single-entity closed league allows for greater control on spending and the institution of cost-control measures such as salary caps, which can be paired with salary floors, as well as greater standardisation of infrastructure throughout the league and the strategic placement of teams in cities and metros to ensure greater commercial exploitation of the largest catchment areas. How the model complies with South African competition law will also be examined with the single economic entity doctrine being applied to the league as a means of addressing the potential allegation of the formation of this new league amounting to the formation of a cartel.
“Well-known” as in well-known trade marks : the scope of well-known marks protection in South Africa and other jurisdictions
Patel, Zahra (University of Pretoria, 2024-10)
The dissertation compares the extent of protection granted to well-known trade marks in South Africa with the legal frameworks of the European Union and the United States of America. Well-known trade marks hold significant value in the global marketplace, making their protection critical for safeguarding brand identity, consumer trust, and fair competition. This study addresses the lack of clear legislative definitions and criteria in South Africa, which may result in inconsistent protection for well-known marks, for example in relation to the term 'well-known' trade mark, and compares this approach with those in the European Union and the United States. The methodology employed is a comparative legal analysis, assessing statutory provisions, books, case law, articles and websites that influence trade mark protection across the three jurisdictions. The analysis reveals differences in how well-known trade marks are recognized and protected in the United States, South Africa and the European Union. While the European Union and United States have more defined criteria and consistent practices, South Africa's approach remains less clear, leading to potential legal uncertainties for trade mark owners. There is a pressing need for South Africa to refine its legal definition and criteria for well-known trade marks to align with international standards. This would enhance the predictability and effectiveness of trade mark protection in the country. The recommendations include adopting a non-exhaustive set of criteria similar to those used by the European Union and the United States, as well as considering the explicit inclusion of concepts such as dilution by blurring and tarnishment in South African law. The findings have significant implications for policymakers, legal practitioners, and trade mark owners, particularly in ensuring that South Africa's legal framework effectively protects well-known trade marks in a manner consistent with international best practices. Such reforms are essential for maintaining a more competitive and fair market environment while preventing monopolistic practices.
Compulsory patent licensing in South Africa : a comparative analysis
Peÿper, Johannes Arnoldus De Villiers (University of Pretoria, 2024-12-02)
This dissertation exposes misapprehensions about compulsory patent licensing and the abuse of patent rights as a possible barrier to commercialisation, founding its arguments on legislative provisions applicable to the inventor, vis-à-vis, the public interest, and entrepreneurs choosing their trade freely. The regulatory environment in the granting of compulsory patent licensing is discussed, through a local and comparative analysis. As such, the objective of this study is to investigate best practices and to introduce changes in compulsory patent licensing which are less onerous to interested persons. A study is made to determine if compulsory patent licensing can effectively regulate and remedy cases of abuse of patent rights and remove limitations to patent accessibility from a constitutional and competitive perspective. The study critiques the current South African Patents Act for being reactive rather than proactive in preventing patent abuse. It proposes a shift towards preventative measures, aligning with international standards, and offers a novel approach in the local context. It is concluded that barriers to commercialisation under compulsory patent licensing can be eliminated by shifting the burden of proof of abuse from the interested person to the patentees when a license is requested. Detailed proposals for amendments to the Patents Act are proposed to include omitted TRIPS provisions also providing for the Registrar and the Patent Examination Board to adjudicate licensing in certain instances as opposed to the Commissioner. The research suggests a novel framework for compulsory patent licensing that places human rights and anti-competitive behaviour at its core.
The development of image rights in the South African sports and entertainment industries
Sefume, Modise (University of Pretoria, 2024-06-30)
This study concerns itself with the study of image rights in the sports and entertainment industries. It traces the origins of image rights in the South African jurisprudence and follows the development of image rights alongside technological advancements through the years. It concludes by translating the observations on the development of image rights into recommendations that will assist in providing legal certainty.
The challenges of protecting copyright In the digital age due to digital piracy
Nyembe, Simphiwe (University of Pretoria, 2023-11-30)
This mini dissertation examines the challenges that arise in protecting copyright in the digital age due to piracy. With the rise and emergence of new technologies and the internet, piracy has only become a prevalent problem that threatens the economic viability of creative industries, harms the reputation, integrity, and dignity of copyright owners, and discourages innovation worldwide. Piracy has caused significant issues for copyright owners by infringing upon their exclusive rights to distribute their works without permission while profiting from their creations. Due to the development of digital technology and the internet, it has become simpler for individuals to stealthily duplicate and distribute protected works, threatening the economic viability of creative industries. Piracy drastically decreases the number of legal sales of intellectual works, which costs a lot of money for authors, publishers, and other key stakeholders. It can have serious financial repercussions on both individual copyright holders and entire companies. This paper looks at several types of piracy, including peer-to-peer file sharing, streaming, and illicit downloads, and how they affect artists and businesses. Due to the works being distributed without permission, it leads to a loss of control over how the work is presented and interpreted by the public. For instance, lower-quality pirated versions of a movie or album could give people a bad impression of the overall calibre of the work, which could influence sales and the reputation of the copyright owner. If creators are not assured of protection from piracy, creators might be less inclined to develop new works. Hence, the cultural and financial importance of the creative industry may be significantly impacted. Furthermore, this study looks at the difficulties faced by the current legal and technological solutions used to prevent piracy. Due to the number of pirate websites that are available on the internet, it is evident that although legal and technological remedies have made a dent in piracy, they are still insufficient to solve the issue fully. This mini dissertation finishes with suggestions on how to strengthen copyright protection in the digital age, which includes but is not limited to better legal frameworks, stakeholder cooperation, and public awareness campaigns.
The legal framework regulating cyberbullying among children in South Africa
Bisrat Yibas, Christian (University of Pretoria, 2024-05-07)
The development of information and communication technology, as well as digital media, has transformed the way society interacts. Online users are dependent on the safety and security of the internet in every sphere of life, ranging from education and work activities to entertainment and communication. Modern technology has changed the way people communicate and has introduced several new platforms for social interaction. While the digital transformation of society is welcomed, the expansion of the internet has resulted in new criminal behaviors. Children are especially vulnerable to cyber threats, and the increase of internet usage among children presents several challenges including malware infection, cyberbullying, identity theft, and cyber terrorism. Cyberbullying has become prevalent among children and has a detrimental impact on the well-being of children with far-reaching negative consequences on a child’s growth and development. The prevalence of the use of social media and access to the internet for children poses great risks, making them vulnerable to the act of cyberbullying. This study will examine the emergence of cyberbullying in South Africa and the existence of appropriate legislative frameworks that address cyberbullying. This study shall critically analyze whether legislation has been able to keep pace with advancing technology in order to provide sufficient relief to victims of cyberbullying. This study will also examine the extent to which legislative remedies provide children with protection from cyberbullying and the impact on various constitutional values, including the right to privacy, freedom of speech, and human dignity through the lens of the best interest of the child.
The Legal Effect and Implication of Deviation and Expansion of Government Procurement Contracts
Daniels, Abel Nathaniel (University of Pretoria, 2023)
The objective of the study is to consider and examine factors that influence grounds and create circumstances which causes the variation clauses of procurement contract viz. deviation and expansion of procurement contract, and to critically analyse the objective and subjective factors that often precipitate organs of state so prone to flouting legislation governing public procurement.
Supervening Impossibility and the interpretation of force majeure clauses during a pandemic
Comyn, Romi Irene (University of Pretoria, 2023)
This dissertation aims to assess and deal with the common law doctrine of supervening impossibility and the use of force majeure clauses in contracts, specifically during a pandemic such as the COVID-19 pandemic. Since the South African contract law does not consider force majeure, per se, it is necessary to fall back on the common law which regulates performance of a contract. When parties enter into a contract which does not make provisions for unforeseeable events or circumstances, they are bound by the common law doctrine of supervening impossibility. The reason for this is that the contracting parties have some protection or recourse in times of crises. It is, however, important to keep in mind the intention of the parties and thus consider a more flexible clause such as a force majeure clause which is specific to the parties’ contract and makes provisions that suit the parties needs and can avoid the termination of the contract in the event of an unforeseeable event beyond the parties’ control. This dissertation thus investigates performance of contracts in South Africa and the effectiveness of the South African common law.
The CIPC DABUS Decision and What it Means for Our Patent Laws
Moseki, Olebogeng (University of Pretoria, 2023)
The mini dissertation looks at the decision of the CIPC to approve an invention created solely by an AI system, becoming the first country in the world to do so. In light of the foregoing, the research analyses the current patent laws and whether such laws are equipped to deal with AI-generated inventions. The dissertation provide a comparative analysis of the CIPC decision to that of the United States Trademark and Patent Office (USTPO), the European Patent Office (EPO), and the United Kingdom Intellectual Property Office (UKIPO). The dissertation further argues against the conferment of legal personality on AI based on ethical considerations and its ability to differentiate between wrong and right. To conclude the dissertation recommends design rights as an alternative to patent rights.

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