bluuebunny/crossref_metadata_2025 huggingface dataset:
Anti-corruption compliance in labor relations in the lightof digitalization and achieving sustainable development: an economic and legal examination
Authors:   Institute of Industrial Economy of NAS of Ukraine, Amelicheva Liliia
Published: September 2021

In the process of achieving Sustainable Development Goals by Ukraine and building Industry 4.0 here, which is accompanied by a global digital transformation (digitalization) of all public spheres of activity, such a multifunctional and multidimensional phenomenon as corruption is now a serious threat to all public relations, among which labor relations are no exception. It causes a decrease in the level of labor productivity of active employers due to manifestations of stigma, mobbing, bullying, primarily in relation to employees who expose corruption, etc. The purpose of the study is to clarify the content of one of the main elements of compliance in labor relations – anti-corruption compliance – using a synergetic approach characterized by a combination of labor law and labor economics, as well as to highlight the problems of regulating these relations and develop proposals for improving the current anti-corruption legislation in the field of labor in the light of digitalization of Ukraine and achieving sustainable development herein. The object of the study is the labor relations to ensure and support anti-corruption compliance at enterprises and the system of anti-corruption legislation, including in the field of labor, in Ukraine and abroad, which regulates these relations. The main methodological approach to the study of the chosen topic is synergetic, characterized by a combination of labor law and labor economics. The results of the study in the most generalized form justify the lack of certainty and little investigation of the legal and economic nature of such categories as "compliance" and "anti-corruption compliance", which have not yet become generally accepted for the conceptual apparatus of labor economics and, to a greater extent, labor legislation. Based on the theory of labor legislation and labor economics, the article describes anti-corruption compliance in labor relations as a condition of labor and a condition of an employment contract. The problematic issues of the implementation and regulation of labor relations in the field of anti-corruption compliance are identified: a low level of positive perception of the implementation of anti-corruption compliance policy in labor relations by the management of active enterprises; the existence of negative stereotypes in relation to employees who expose corruption; the lack of a clear methodology for measuring the level of digitalization of state processes today, which hinders the study of the impact of digitalization on strengthening the anti-corruption fight. In order to solve these problematic issues, it is proposed to supplement section X "Labor discipline" of the Labor Code of Ukraine, which regulates the internal labor regulations at an enterprise, institution or organization, with norms on new labor rights and obligations of the parties to labor relations that are directly related to combating corruption.
Digital platformization of strategic management of Ukrainian economy
Authors:   Institute of Idustrial Economy of NAS of Ukraine, Vyshnevskyi Oleksandr
Published: September 2021

The aim of the study is to substantiate the role and capabilities of the national digital strategy platform in the institutionalization of the strategic management process in Ukraine. The organizational and structural logic of the study is based on the ascent from the abstract (digital economy as an uncontested target image of the future and strategic management as a universal tool for organizing economic activity) to the concrete (the state of digitalization and strategic management in Ukraine), as well as on the dialectical triad (thesis, antithesis, synthesis). As a thesis, a positive analysis is given and the historical conditionality (determinism) of the digitalization of the economy is substantiated. It shows its local efficiency at the entrepreneurial level, as well as the fundamental role of goal-setting and strategizing from the standpoint of economic theory. At the stage of antithesis, a number of contradictions were revealed: (1) between the historically conditioned nature of digital platformization within the framework of economic laws and the modern basis of digitalization in the form of credit expansion; (2) between the effectiveness of digitalization at the micro level and the absence of its positive impact on social and economic development at the national level; (3) between the weak, but growing, platform economy of Ukraine and the dominance of vertical integration of national business in traditional spheres, which lead to the existence of orders of limited access and extractive institutions; (4) between the digitalization of the “public sector”, on the one hand, and the business and consumer (household) sectors, on the other; (5) between a theoretically grounded model of the strategizing process and its current position in Ukraine; (6) between a higher level of digitalization of the control object and the predominantly pre-digital level of the control subject. At the stage of synthesis, the potential of partial removal of these contradictions by improving the process of strategizing the development of the Ukrainian economy and its institutionalization using the national digital platform of strategizing is justified. The requirements for the architecture of the national digital strategy platform are substantiated, its blocks, key users and their roles are determined.
Problems and the future of corporate income tax and VAT in the conditions of digitalization
Authors:   Institute of Industrial Economy of NAS of Ukraine, Garkushenko Оksana , Kuvaldina Olha ,   Institute of Industrial Economics of the NAS of Ukraine
Published: September 2021

Globalization and digitalization lead to significant changes in society and economy, including the field of taxation. Moreover, the efforts of governments of many countries are aimed at implementing measures to combat profit shifting and ensure that budget revenues from corporate income tax and VAT are received in the proper amount. The article analyses main problems of corporate income tax and VAT, possible ways to solve them in near and distant perspectives. With regard to respective taxes, the main aspects of combating tax base erosion and tax evasion with the use of new digital methods, and the state of BEPS steps implementation in this part are analysed. Given that the corporate income tax in modern conditions has a number of disadvantages, it is likely that in the future it will be replaced by an alternative – a tax on withdrawn capital or a tax on cash flows at destination. VAT, in turn, is a neutral tax that is easy to algorithmize and administer. Therefore, it can also displace corporate income tax from the tax systems of countries. At the same time, there are a number of problems with VAT: cases of fraud, non-taxation or double taxation of transactions in international trade. It has been found that in the short run (up to 5 years) it is important for national governments to increase efforts to implement BEPS plan and to strengthen information exchange and international cooperation to counteract base erosion and profit shifting. To simplify VAT administration and improve the interaction between taxpayers and tax authorities within the same country, as well as in international trade, it is feasible to use the e-invoicing practice more widely. In distant perspective, it is possible to use blockchain technology. Taking into account global trends, the article provides recommendations for improving VAT and corporate income tax in the context of globalization and digitalization (in particular – further implementation of BEPS measures in all countries of the world, mandatory registration as VAT payers in jurisdictions, where sells of goods and services to end users take place, strengthening international coordination and cooperation in the field of taxation), as well as general recommendations that should contribute to digitalization and economic development of Ukraine in the near and distant future.
Expansionary or restrictive policies in the Eurozone? Dominating trends in the first two decades
Authors: Stawska Joanna , Mourao Paulo Jorge Reis
Published: September 2021

Our aim is to identify periods of restrictive versus expansionary economic policy in the euro area in the last two decades. We firstly conducted the study for identifying the dominant trend in fiscal policies and then in monetary policies. We studied several fiscal outputs, focusing on the cyclical adjusted primary balance. We also analysed the European long-term and short-term interest rates. The study was conducted for several windows, namely for 3-, 4- and 5-year periods. Additional procedures were conducted for robustness checks, namely the study of structural breaks in the analysed time series as well as a study of them recurring to Markov-Switching Regimes models. For most of the analysed periods and subperiods of the series, we concluded for the presence of expansionary policies either in the fiscal or in monetary European domains. Finally, the results and the analysis of dependencies in the euro area economy favour the evidence that economic authorities in the euro area have sought to coordinate monetary and fiscal policy to stabilise the economy.
On feature-based vocabulary selection mechanisms in late insertion: third person number agreement in the French future tense
Authors: Frimu Rodica , Dekydtspotter Laurent
Published: September 2021

We propose that feature bundles in syntactic computations coactivate subset vocabulary items in content-based access. Thus, in French, an inflectional node for the future tense bearing [Number: Plural] activates third-person singular -a underspecified for [Number: Ø] and third- person plural -ont specified for [Number: Plural]. These activations compete in externalization. [Number: Ø/Plural] defines a <-ont, -a> scale where plural-marked -ont carries more information than -a, allowing scalar inferencing in form selection. Given an activated Plural-marked -ont, -a (3ps.sg) is automatically interpreted as [–Plural] via scalar inferencing and becomes unsuitable for insertion. Thus, -ont (3ps.pl) must be selected when -a (3ps.sg) is eliminated. We tested our model assuming an interaction of cross-domain inferencing with morphological selection, using two experiments. In forced-paced reading and listening tasks, 19 native speaker subjects per task classified picture probes accompanying matching and mismatching subject-verb future tense agreement. Classification times for pictures semantically linked to the verb probed for an interaction between the processing of agreement morphology and the ongoing conceptual processing of the sentence. Classification times were modulated by the type of morphological mismatch. Singular verb form mangera (eat-fut.3ps.sg) in plural contexts slowed down picture classifications, whereas plural verb form mangeront (eat-fut.3ps.pl) in singular contexts did not. This specific interaction between purely formal agreement and conceptual-structure processing is unexplained by superset models of late insertion, or by interface relations, frequency, load of stored information, and phonological cohort activation. It suggests that domain-general principles of inference enrich domain-specific feature-based computations accessing vocabulary items through the coactivation of features.
La violencia escolar desde las representaciones sociales de estudiantes de la institución educativa colegio Nuestra Señora de Belén.
Authors: Urbina Cárdenas Jesús Ernesto , Beltrán Castellanos Lucyraima
Published: September 2021

Objetivo. Comprender las representaciones sociales sobre violencia escolar en estudiantes de la Institución Educativa Nuestra Señora de Belén de la ciudad de Cúcuta. Metodología. Estudio cualitativo desde el enfoque procesual de la teoría de las representaciones sociales. Resultados. Los estudiantes con conductas agresivas consideran que ninguna estrategia de prevención logrará un impacto favorable frente al fenómeno violento, teniendo en cuenta que representa un mecanismo de supervivencia donde estas conductas son aceptadas; mientras que los estudiantes no agresivos sugieren que las estrategias de prevención tendrían efectos positivos si además del castigo, permitieran la participación activa y el acompañamiento de las familias. Conclusión. Es necesario replantear el papel de la escuela como escenario para aprender a resolver los conflictos de manera pacífica, de modo que la naturalización de la violencia, el silencio de los afectados y la no autorregulación de las emociones no constituyan prácticas cotidianas socialmente aceptada.
Design and application of a distributed generation hosting capacity algorithm
Authors: Sam M. A. , Oyedokun D. T. O , Akpeji K.O
Published: September 2021

Distribution networks in Southern Africa and elsewhere are witnessing an unprecedented growth of consumer-side distributed generation (DG) courtesy of governmental interventions to maximise the utilisation of renewable energy resources through low-carbon grid-edge technologies. To deal with the increasing adoption of consumer-side DG, distribution network operators need to conduct technical studies to foster an understanding of the benefits and impacts of DG and the hosting capacity (HC) of existing distribution networks. This will aid the implementation of measures to manage grid exports. Using a distribution network in Namibia as a case study, this paper presents an algorithm for assessing the HC of consumer-side DG in existing distribution networks that are situated in areas anticipating high and uniform uptake of DG. The algorithm is a hybrid of deterministic and probabilistic methods. The uniqueness of the algorithm is the concept of calculating monthly HC. The algorithm was tested on a real existing residential distribution network and the results confirmed that HC varies monthly. However, the practical implementation of monthly HC requires upgrades to existing inverter technology, which currently contains a single export limit functionality. This opens the possibility to drive innovation in the inverter technology to develop a date-based multiple export limit functionality.
Assessing the awareness and adoptability of pellet cookstoves for low-income households in Lusaka, Zambia
Authors: Mulenga Mukuka Mpundu , Roos Anders
Published: September 2021

Wood fuel, charcoal, and firewood comprise over 70 percent of the national energy consumption in Zambia, as only about 25 percent of the population has access to electricity. Replacing charcoal braziers with cookstoves using sawdust pellets can support sustainable energy provision in urban Zambia while reducing deforestation on the countryside. However, acceptability of pellet cookstoves remains low, while the demand for wood fuel is increasing. The study investigated the acceptability of pellet cookstoves, in view of governmental policies, in the Matero-George compound, Lusaka. Qualitative approaches were applied, and respondents were households, and officers at the Departments of Energy and Forestry, and at Lusaka City Council. Factors shaping the stoves’ acceptability included their convenience, possibility of reusing pellets, their long-term cost advantages, and the perceived health benefits of pellets. The barriers included limited supply of pellets, combustible pellet cookstoves, stove size, maintenance costs, cooking traditions, and government policies for dissemination, sensitisation, and communication about pellet stoves. This study demonstrated that implementation of pellet cookstoves at the local level depends on a multitude of contextual factors, and confirms the need for relevant policy instruments if such energy consumption is to be accepted.
A cost-benefit analysis of implementing a 54 MW solar PV plant in a South African platinum mining company: A case study
Authors: Barnard S.S.S. , Smit A.M. , Middelberg S.L. , Botha M.J.
Published: September 2021

A reliable and secure supply of energy is a prerequisite for adequate output and economic growth – especially in a platinum mining company. With exponential tariff increases, inadequate power supply leading to power cuts, and a carbon tax introduction, this study compared the costs with benefits by implementing a 54 MW solar photovoltaic (PV) plant. Two scenarios were compared over the same 20-year period in a case study of a South African platinum mining company operating in the platinum belt of Rustenburg. The first scenario was grounded upon the decision to proceed with the conventional manner of sourcing electricity from Eskom, South Africa’s power utility. The second scenario assessed the implementation of a 54 MW solar PV plant. The findings reveal that the company could generate 2 439 753 MWh of clean energy over 20 years with an investment of ZAR 910 857 920, giving a ZAR 563 205 994 (11%) carbon tax saving and a ZAR 5 614 426 335 (10%) reduction in electricity costs. Further, installing the solar PV plant could reinforce the company‘s dedication to protecting the environment and creating job opportunities through the employment of staff to install and maintain the plant.
Factors influencing the use of firewood post-electrification in rural South Africa: The case of Ga-Malahlela village
Authors: Masekela Mahlodi Esther , Semenya Khomotso
Published: September 2021

Despite improved electrification rates and several government policies introduced to encourage rural households to switch from traditional to modern fuels, most South African households still rely on firewood for their energy needs. This study sought to assess the factors that influence the use of firewood in Ga-Malahlela village in the Limpopo province. To this end, a structured questionnaire was administered to 67 households. Microsoft Excel and the Statistical Package for Social Sciences were used to code and log in the data. The chi-square test was used to determine the relationship between the choice of energy source(s) and socio-economic factors. It was established that firewood was still widely used: by 61% of the participants for cooking, by 64% for space heating, and by 46% for water heating. For lighting, electricity was used by 98.5% of the participants, while liquefied petroleum gas was used by 1.5%. The dependency on firewood was mainly due to the socio-economic status of the surveyed households, which included income, education level, household size, and preference. Rural firewood reliance continues, due to socio-economic factors such as indigence, preference, and the inaccessibility of services like free basic electricity. It is therefore recommended that the Polokwane Local Municipality should play a part in assisting poor communities with cleaner, cost-effective fuel alternatives such as solar energy, biogas, and liquefied petroleum gas.
Development of low-cost reflective plate thermal energy absorber systems for application in South Africa
Authors: Mutizhongo Fanos , Snyman Lukas Willem , Jalet Kevin
Published: September 2021

An innovative solar heat collector system was developed from low-cost materials by applying innovative design technology and using adaptive technologies. The system design entails placing long black polymer pipes connected in series circulation, mounted and positioned in grooves of inverted box rib galvanised steel plating. The grooves reflect and focus the incident rays on the centre piping, concentrating incident sun rays on the black piping and increasing the absorption of thermal energy in the piping filled with circulating water. The circulation of the water is facilitated by a direct-current solar-driven pump powered by a small photovoltaic panel. The thermal energy as collected is stored in a standard household geyser tank. A 3 × 4 m heat absorber of this type collects approximately 10 kWh of energy per day. The estimated cost of the system, considering the capital outlay over an expected ten-year life cycle for the product was estimated at R0.25 per kWh. This pricing competes extremely favourably with the general cost of grid electricity in South Africa for medium-sized households, which is of the order of R2 per kWh up to 1000 kWh per month, including taxes. With an estimated electricity cost escalation of above 5% every year, the ten-year saving for a household using this prototype can be approximately R200 000. The technology and designs developed through the study can create many new business opportunities in South Africa in both urban and rural environments, through manufacturing, installing, repairing, and maintaining the systems.
An empirical analysis of volatility in South African oil prices
Authors: Mofema Victor Mbua , Mah Gisele
Published: September 2021

Volatility of the oil price has been around since the 1970s and an understanding of how it evolves provides insight into solving macroeconomic challenges. The main objective of this study was to analyse the volatility of South African oil prices using quarterly time series data from 2000 to 2020. The effect of growth in gross domestic product per capita, interest rate, inflation and money supply growth on oil price changes was assessed. Generalised autoregressive conditional heteroscedasticity (GARCH) was estimated and diagnostic tests – namely ARCH, normality and autocorrelation tests – were conducted. The GARCH (1,2) model was the best fit, based on the Alkaike information criterion. The result revealed that interest rates and money supply growth have a significant positive effect on oil price changes in South Africa, while growth in GDP per capita and inflation has an insignificant impact. Past one and two-quarters’ oil price volatility increases and decreases the current oil price volatility respectively. Based on the findings, a contractionary monetary policy is recommended in order to reduce the volatility of South African oil prices.
moderating and mediating role of local government in the community engagement strategy of a renewable energy company in South Africa
Authors: Robinson Bryan Michael Kenneth , Stephens Siân
Published: September 2021

Adopting a qualitative case study approach of a renewable energy company in South Africa, the research investigated community engagement within the tripartite relationship of a wind farm, the communities, and the local government. It was found that local government played a moderating role in the community engagement efforts of the wind farm which had to comply with certain engagement protocols determined by local government. Local government also played a mediating role in corporate community engagement, as the wind farm developed their engagement strategy in alignment with local government’s policies and acted as a ‘dot-connector’ between local government and communities. The wind farm played a reciprocal mediating role on local government’s own engagement with their communities in the face of local government’s inefficiencies and complemented service delivery outcomes. The wind farm’s engagement strategy thus enabled local development which was appreciated by communities and local government.
LIFE HEALTHCARE ESIDIMENI: A (HUMAN RIGHTS) DREAM DEFERRED
Authors: Leoni van der Merwe
Published: September 2021

This article delves into South Africa’s compliance with its obligations in terms of the United Nations Convention on the Rights of Persons with Disabilities in light of the deaths of 144 mental health patients transferred from the Life Healthcare Esidimeni facility to various nongovernmental organisations during 2016. Consideration is given to South Africa’s constitutional framework as well as the overall enforcement mechanisms and application of the said Convention in Africa given the existence of unique challenges such as HIV/AIDS, poverty and a scarcity of resources. The article recognises the importance of transcending beyond policy development, approval and publication to improve the lives of persons with disabilities in South Africa.
A PRIMER ON THE DIRECTORS’ OVERSIGHT FUNCTION AS A STANDARD OF DIRECTORS’ CONDUCT UNDER THE COMPANIES ACT 71 OF 2008
Authors: Jan Louis Van Tonder
Published: September 2021

The recent well publicised corporate scandals and widespread allegations of corporate fraud and corruption in both the private and public sector, which occurred seemingly unnoticed and caused public outrage, prompted this article. Although it is clear that directors should not be passive in their monitoring and oversight function and the notion of a passive director must be discouraged, as such, the oversight function has received little or no attention in South Africa, and is, as a result, not well developed in South Africa. The aim of this article is to provide a preliminary analysis of the content and meaning of the directors’ oversight function as a standard of directors’ conduct and to reconcile the oversight function with the business judgment rule. Section 5(2) of the Companies Act provides that, to the extent appropriate, a court interpreting or applying the provisions of the Companies Act may consider foreign company law. This is complementary to section 5(1), which directs that the Companies Act must be interpreted and applied in a manner that gives effect to the purpose of section 7. In light hereof, the article will refer to the Model Business Corporation Act to assist the research in examining the content and meaning of the oversight function as a standard of directors’ conduct and to reconcile the oversight function with the business judgment rule.
STATE LIABILITY FOR MUTINOUS ACTS OF POLICE AND MILITARY OFFICERS: A CRITIQUE OF LESOTHO AND ZIMBABWE CASES IN LIGHT OF THE MODERN TEST FOR VICARIOUS LIABILITY IN SOUTH AFRICA
Authors: Chuks Okpaluba
Published: September 2021

A mutiny by soldiers or police officers is no doubt, a serious criminal offence. So is the rape of a young girl or woman by police officers, or shooting someone by the police or military personnel without lawful authority, or supplying military hardware by a defence official charged with guarding the armoury to those who use them for armed robbery purposes? However, if the State as the employer is held vicariously liable for these acts of misconduct, why should it be absolved from liability for the wrongful acts of the soldiers or police officers for injuries caused in a situation of mutiny? It seems clear from the case law that an argument that the State is vicariously liable in such circumstances is bound to hit a dead end if it is based on the old “standard test” which contemplated only negligent, at most, reckless conduct of the employee. This was the beginning of the collapse of the arguments of the plaintiffs in the Lesotho Court of Appeal in Chabeli v Commissioner of Police; the High Court in Seoane v Attorney General; and the Harare High Court in Munengami v Minister of Defence, where the question of the liability of the State was canvassed on the basis of the old “standard test” for determining vicarious liability. It is submitted that if these cases were argued around the “close connection” test as enunciated by the Constitutional Court in K v Minister of Safety and Security and affirmed in F v Minister of Safety and Security, the outcomes might have been different. It seems compelling, therefore, that in analysing these Lesotho and Zimbabwean cases, one must do so with the hindsight of the modern test for determining vicarious liability in South Africa, where the conduct of the employee is not merely negligent in character but deliberate or dishonest in nature.
UNTANGLING THE REQUIREMENT OF GOOD FAITH IN THE DERIVATIVE ACTION IN COMPANY LAW (Part 1)
Authors: Maleka Femida Cassim
Published: September 2021

A crucial prerequisite for a derivative action is that the applicant must be acting in good faith in terms of section 165(5)(b)(i) of the Companies Act 71 of 2008 in order to obtain the leave of the court to bring the proposed derivative action. Both the Supreme Court of Appeal and the High Court have recently made important pronouncements of legal principle on the approach that the courts would take to the determination of good faith for the purposes of the statutory derivative action under section 165 of the Companies Act. These judicial findings relate not only to the complex issue of how to prove good faith but also to the meaning and content of the requirement of good faith. The courts have now reached a crossroads in delineating the content of good faith and how it is to be proved. This two-part series of articles critically evaluates these judicial pronouncements. While the focus of these articles is mainly on the tangled requirement of good faith, relevant judicial findings on the other prerequisites for a derivative action under section 165(5)(b) read with (7) and (8) of the Companies Act are also discussed. A comparative approach is adopted that takes into account the jurisprudence developed in Australia, Canada and Singapore. This article, the first in the series of two articles, focuses on the test of good faith. The proof of good faith will be discussed in the second article.
EXPLORING THE CONCEPT OF UBUNTU IN RELATION TO DYING WITH DIGNITY IN PALLIATIVE AND HOSPICE CARE
Authors: Ntokozo Mnyandu
Published: September 2021

The Supreme Court of Appeal in Minister of Justice and Correctional Services v Estate Stransham-Ford raised more questions than the answers it provided. However, of note is the enquiry it made regarding the implications of palliative care in relation to whether the criminality of physician-assisted suicide and physician- administered euthanasia infringes a person’s dignity. In response, this paper aims to reconstruct – through the lens of Ubuntu – our understanding of human dignity and draw links with how the values of compassion and survival, which underpin Ubuntu, enjoin us as a re-affirmation of human dignity, to strive towards making hospice and palliative care readily available. Ultimately, this is done for the benefit of providing constitutionally sound reasons for why greater emphasis should be placed on palliative and hospice care when it comes to dying with dignity. To this effect, a conceptual framework of human dignity that is based on Ubuntu is summarised. This is done for the purpose of properly aligning the understanding of the right to dignity to one that represents our constitutional dispensation and ethos. Flowing from this is an extract of the values of compassion and survival that underpin Ubuntu. These values are then used to gain a lucid perspective, as to why – in our pursuit of providing a dignified death for terminally ill patients – greater emphasis should be placed on hospice and palliative care.
THE DICHOTOMY BETWEEN SIGNAL AND CONTENT AS BASIS OF BROADCAST COPYRIGHT: A KENYAN AND SOUTH AFRICAN PERSPECTIVE
Authors: Hezekiel Oira  , Lonias Ndlovu
Published: September 2021

The concept of broadcast copyright is one of the most controversial and non-felicitous subjects, both at national and transnational levels. Most municipal copyright laws and relevant international instruments merely provide that broadcasting organizations shall enjoy protection over their broadcasts and programme-carrying signals. Some of those international instruments include The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961 (hereinafter “the Rome Convention”). Article 13 thereof grants specific exclusive rights against certain activities in relation to the broadcasts of broadcasting organizations. Additionally, Article 1 of the Rome Convention guarantees that its exercise and implementation shall leave intact and in no way affect the protection of copyright in literary and artistic works. The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter “the TRIPs Agreement”) of 1994 follows the model of the Rome Convention, and under Article 14 (3) grants broadcasting organizations the same neighbouring rights as the latter does. In both instruments, the object of protection in a broadcast or broadcasts was never defined. The Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (hereinafter “the Satellite Convention”) of 1974 does not grant broadcasting organizations any specific right but obliges Contracting Parties to prevent unauthorized distribution on or from their territories of any programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended. The protection conferred upon the broadcasting organizations under the above international instruments are replicated in the copyright laws of Kenya and South Africa without clarifying upon the property and the scope of protection of a broadcast. The failure to specifically define the subject matter of protection in broadcast copyright as well as its outer boundaries forms the genesis of the current controversy. Amid this controversy, this article examines two emerging global approaches around which broadcast copyright revolves, namely the content or rights-based approach, and the signal-based approach. Drawing from the two approaches, the article examines the extent to which they apply to Kenya and South Africa.
DEAL PROTECTION MEASURES IN TAKEOVERS AND MERGERS: BREAK FEES
Authors: Madimetja A Lucky Phakeng
Published: September 2021

This article discusses an agreement by directors to pay a break fee during a takeover or a merger and highlight some corporate governance issues that may arise due to such payments. The article further discusses how regulators limit such payments. Takeover and merger agreements contain numerous terms and conditions intended to protect all parties to the transaction. The agreements are also aimed at ensuring that, where there is a breach, the innocent party is able to recoup the costs incurred in undertaking the transaction. Break fees are some of the terms and conditions included in the takeover and merger agreements known as deal protection measures. However, these terms and conditions raise a number of concerns for shareholders, directors and regulators. They have the potential to affect the shareholders’ interests negatively during a takeover or a merger. Accordingly, the Takeover Provisions set parameters within which break fees are monitored and regulated. In terms of the Takeover Provisions, the decision whether or not to agree to payment of a break fee lies with the directors of the target company. Therefore, this article is aimed at raising awareness and promoting corporate governance during takeovers and mergers.
THE REASONABLENESS AND EFFECTIVENESS OF THE AMENDMENT TO SECTION 26 OF THE MAINTENANCE ACT 99 OF 1998
Authors: B Batchelor
Published: September 2021

Section 26 of the Maintenance Act as amended by the Maintenance Amendment Act 38 of 2005 (hereinafter “Amendment Act”) is a key provision for enforcing maintenance orders in South Africa. Underpinning this provision is the need to ensure that children are protected from destitution and deprivation due to maintenance defaulters. Primarily, this section limits a maintenance defaulter’s access to credit by negatively affecting his or her credit rating. The utility and legality of this provision as a measure of enforcing maintenance orders has yet to be judicially tested in South Africa. Therefore, this article evaluates the reasonableness of the limitation of a maintenance payer’s fundamental rights in the light of foreign jurisdiction mechanisms for enforcing maintenance orders.
TOWARDS AN EFFECTIVE KENYAN LABOUR DISPUTE RESOLUTION SYSTEM: A COMPARISON WITH THE SOUTH AFRICAN LABOUR DISPUTE RESOLUTION SYSTEM
Authors: Johana K Gathongo  , Adriaan van der Walt
Published: September 2021

There have been notable concerns in the current dual dispute resolution system in Kenya. The problems include protracted referral timeframes for dismissal disputes, non-regulation of maximum timeframes for the agreed extension after 30 days conciliation period has lapsed, the absence of statutory timeframes for appointing a conciliator/ commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government through the Ministry of Labour. There is still no independent statutory dispute resolution institution as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increase in strikes and lockouts.This article examines the effectiveness of the Kenyan labour dispute resolution system. The article evaluates the provisions of international labour standards relevant to labour dispute resolution. The article illuminates and describes the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. A comparative approach with South Africa is adopted to see how independent institutions, such as the Commission for Conciliation, Mediation and Arbitration, Bargaining Councils and specialised Labour Courts can lead to effective dispute resolution. In view of that, a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study are made. Systematically, the article provides suggestions and possible solutions for a better institutional framework and processes to address them.
FOREWARNED IS FOREARMED, MUTHI IN THE WORKPLACE: A REFLECTION ON NATIONAL SUGAR REFINING AND ALLIED INDUSTRIES UNION ON BEHALF OF MNGOMEZULU AND TONGAAT HULETT SUGAR LTD (2016) 37 ILJ 2441 (BCA)
Authors: Clarence Tshoose
Published: September 2021

The use of traditional medicine (muthi) is an integral part of the African culture. In fact, there is greater acceptance of the use of traditional medicine among Africans for health care purposes.Be that as it may, there are cases where traditional medicine is used for ulterior motives, such as witchcraft, causing harm, and casting a negative spell on other people. The aim of this case note is to look at the issue of dismissal arising from the use of traditional medicine and witchcraft in the workplace. This issue was examined in National Sugar Refining and Allied Industries Union on behalf of Mngomezulu and Tongaat Hulett Sugar Ltd (2016) 37 ILJ 2441 (BCA) (hereinafter “National Sugar Refining”). The note concludes with a discussion on whether the use of traditional medicine or witchcraft in the workplace constitutes a dismissable offence?
OF SEMI-COLONS AND THE INTERPRETATION OF THE HATE SPEECH DEFINITION IN THE EQUALITY ACT South African Human Rights Commission v Qwelane (Freedom of Expression Institute as Amici curiae) and a related matter [2017] 4 All SA 234 (GJ)
Authors: Joanna Botha
Published: September 2021

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.
REPRESENTATION OF A COMPANY WHEN CONTRACTING WITH ANOTHER PERSON UNDER SOUTH AFRICAN COMPANY LAW Makate v Vodacom (Pty) Ltd [2016] ZACC 13
Authors: Vela Madlela  , Palollo Michael Lehloenya
Published: September 2021

A company is an artificial person and has no mind, will or hands of its own. It is, therefore, compelled to act through human agents. The board of directors is responsible for the management and direction of the business affairs of the company. Under South African company law the directors’ powers of management are statutorily entrenched (S 66(1) of the Companies Act 71 of 2008). The board of directors may, however, delegate its powers to an individual director (or individual directors), a committee of the board, a managing director or other officers of the company. Before an individual director or officer of the company can conclude a binding transaction on behalf of their company, they must have the authority to do so. In South Africa, the issue of authority to enter into a transaction or agreement on behalf of a company is dealt with using the principles of the law of agency.The crisp issue in this note relates to the circumstances in which an individual company director or officer who, when contracting with another person, purports to be acting on behalf of the company will bind the company. In the recent case of Makate v Vodacom (Pty) Ltd ([2016] ZACC 13 (hereinafter “Makate v Vodacom”)), which involved a claim for reasonable compensation by the inventor of the concept of “Please Call Me” against Vodacom (Pty) Limited (hereinafter “Vodacom”), the Constitutional Court dealt specifically with the authority of a director to conclude a contract with a third party on behalf of the company. This note discusses Makate v Vodacom and the approach of the court regarding when a company will be bound by contracts concluded by its director or another person purporting to represent the company in a transaction with a third party. It examines the main judgment of Jafta J and the concurring judgment of Wallis J in relation to the legal nature of ostensible authority in the absence of actual authority.The note further looks at the issue of prescription, which Vodacom in its defence raised against the claim for compensation brought by Mr Makate. It explores the circumstances in which prescription can be successfully invoked to deflect a contractual claim brought against a company, the impact of the Constitution in this area of the law and whether the claim lodged by Mr Makate amounted to a “debt” for purposes of the Prescription Act (68 of 1969). To this end, again, both the main judgment of Jafta J and the concurring judgment of Wallis J are examined. This is followed by critical insights on the implications of this case and some concluding remarks.
NO ORDINARY HEARSAY! A Discussion of Minister of Police v RM M, Safety and Security Sectoral Bargaining Council and M Smith NO (2017) 38 ILJ 402 (LC)
Authors: Nicola Whitear
Published: September 2021

One is constantly reminded not to emulate the criminal courts when conducting disciplinary enquiries, nor, for that matter, labour dispute resolution arbitrations.The locus classicus dealing with the appropriate manner to conduct disciplinary enquiries is the Avril Elizabeth Home for the Mentally Handicapped v CCMA ([2006] 9 BLLR 833 (LC)) case. It was in this case, which has been quoted and followed innumerable times (a significant recent case being that of BEMAWU v SABC [2016] ZALCJHB 74 (2 March 2016)), that the court emphasised item 4(1) of the Code of Good Practice: Dismissal (Schedule 8, Labour Relations Act 66 of 1995) which provides that there does not have to be a formal disciplinary enquiry. The court indicated that the approach outlined in the code was a “significant and fundamental” departure from the criminal justice model, which “likened a workplace disciplinary enquiry to a criminal trial”.It is also, however well-established that arbitrators, and disciplinary chairpersons, must follow basic rules of fair procedure and evidence.This tension between avoiding over-formality while remaining true to basic rules of evidence and procedure is again evident in a recent case (Minister of Police v RM M Safety and Security Sectoral Bargaining Council (2017) 38 ILJ 402 (LC)), which deals with the proper manner to treat hearsay evidence in a labour dispute resolution arbitration.The case sends the message that if the proceedings of a disciplinary enquiry are conducted with a relatively high degree of formality, and fairly scrupulous adherence to what might be described as the criminal justice model – then one might be able to create a prima facie case against the dismissed employee at the de novo arbitration hearing while avoiding the re-calling of the witnesses – and instead by simply tendering the (hearsay) record of the disciplinary proceedings. The case also contributes to the jurisprudence seeking to protect  (such as children, in casu) by canvassing means by which such witnesses may be spared having to repeatedly testify to traumatic events.
DRESS CODES IN SCHOOLS: A TALE OF HEADSCARVES AND HAIRSTYLES
Authors: Fatima Osman  , Jean Wilké
Published: September 2021

In 2016 independent or private schools made headlines as learners protested the codes of conduct of various schools and the lack of accommodation of African hairstyles. The question of a school’s autonomy to enact a code of conduct and prohibit certain religious or cultural dress is not new and there has been worldwide controversy regarding schools banning the Islamic headscarf. This article examines the obligation of South African public and independent schools to accommodate the headscarf and diverse hairstyles. It argues that the Islamic headscarf is a central tenet of the Islamic faith protected by the constitutional right to religious freedom and that given the current guidelines on school uniforms, public schools are bound to accommodate the headscarf. The matter is more nuanced with independent schools that may be established in the pursuit of a religious ethos. The article argues that independent schools are equally prohibited from discrimination on religious and cultural grounds and must demonstrate the justifiability of the lack of accommodation. While these bans may be allowed, the historical inequalities in education and the socio-economic context in which the provision of excellent education still favours certain races must be weighed carefully against the school’s religious vision.Hairstyles are a more complex matter given their diversity. The article argues that disputes as to whether a hairstyle forms part of a culture are likely to become difficult given the porous and evolving nature of culture. Public and independent schools are rather urged to re-evaluate their codes of conduct. Codes that favour Eurocentric notions of neatness may indirectly discriminate on race, a completely untenable situation in a constitutional South Africa. These codes must be revised to celebrate and affirm our diversity rather than be used to exclude and alienate segments of society.