This article discusses the pertinent issue of employer-employee relations in respect of the employee’s duty of good faith. In terms of the common law, an employee owes a general duty of good faith to the employer, which includes the obligation not to engage in activity which is in conflict with the employer’s interests. This duty brings to the fore the question of the status of an employee who engages in a side business in order to supplement his or her income. Looking through the lens of Bakenrug Meat v CCMA and Others, the article examines the scope of “conflict of interest” and finds that it is an expansive concept that has failed to keep up with the evolving nature of employer-employee relations as well as the socioeconomic pressures that have necessitated side businesses as a means to make ends meet. The argument here is that the court's interpretation of the duty of good faith was too wide, owing to the lack of a definition for “good faith”. In that light, the article suggests a reconceptualisation of the duty of good faith and calls for its codification to ensure certainty and consistency in its interpretation and application.
Article 20 of the African Continental Free Trade Agreement (AfCFTA) establishes a dispute settlement mechanism (DSM) for resolving trade disputes between member states. Its design reflects a move towards transparency, accountability, fairness, predictability and consistency in dispute resolution in Africa’s regional trade regime. Like the dispute settlement system at the multilateral level, AfCTA’s Dispute Settlement Protocol is formally structured with defined stages and timelines. However, it faces challenges akin to those confronting the World Trade Organization’s dispute settlement system. Notably, the DSM’s stateto-state nature, state membership of overlapping trade agreements, and lack of capacity are key barriers to ensuring dispute resolution under the AfCFTA. African countries’ low levels of participation in trade disputes at the multilateral level and in regional economic communities indicates that, of these challenges, lack of capacity is the main barrier to the use of the dispute settlement system. Effectiveness can be conceptualised as success in attaining the objectives of the dispute settlement in three areas: the inclusiveness of the process, especially in regard to non-state actors; the finality of the process; and the availability of alternative fora of dispute resolution. This article examines the DSM under the AfCFTA Dispute Settlement Protocol to assess its implementation and effectiveness. The enquiry begins by discussing the background to the DSM and its benefits to members before delving into the host of challenges it faces. The article concludes by recommending, among other things, that member states amend the DSM protocol to allow for the inclusive participation of all actors in trade disputes.
E-commerce has witnessed remarkable growth since the COVID-19 pandemic, catalysing newfound interest among global corporations in the South African market. The influx of international companies into the South African landscape foreshadows a wave of technological transformation in the realm of e-commerce. Notably, as these companies predominantly originate from nations at the vanguard of technological innovation, the concomitant changes are anticipated to reverberate globally. However, the impending revolution is poised to usher in a constellation of changes within the sphere of electronic contracting. This article seeks to dissect the regulatory facets of electronic contracts in both South Africa and United Kingdom. Since the United Kingdom is positioned as pacesetter in technological advancement, an exploration of its regulatory dimensions stands to furnish invaluable insight into mitigating the prospective predicaments engendered by the surge in e-commerce activities in South Africa. This article explores the dynamic interplay between global-e commerce trends and regulatory frameworks, shedding light on the importance of a “wet” signature in ensuring the harmonious coexistence of technological advancement and legal safeguards in South Africa’s burgeoning landscape of electronic contracting
The African Continental Free Trade Area (AfCFTA) is the largest free trade area after the World Trade Organization. Among other aims, the AfCFTA seeks to achieve deeper economic integration by creating a single market among African states through trade liberalisation via the elimination of tariff and non-tariff barriers to trade. Non-tariff barriers, particularly technical barriers to trade, have long been considered the biggest obstacles to intra-African trade. To this end, multilateral and regional legal instruments that seek to regulate technical barriers to trade in Africa have been concluded. The recently adopted AfCFTA adds an important normative layer to the regulation of technical barriers to trade in Africa. This article, through the examination of the regulatory framework of technical barriers to trade in Africa, argues that it is not the conclusion of harmonised frameworks per se which is important, but the implementation of these frameworks in the domestic legal systems of African states, as this can help boost intra-African trade and achieve the objectives of the AfCFTA. The article thus provides recommendations for the successful implementation of rules governing technical barriers to trade under the AfCFTA. It posits that the elimination of technical barriers to trade should remain a priority for the successful implementation of the AfCFTA.
The Constitutional Court of South Africa in Nu Africa Duty Free Shops v Minister of Finance decided on whether the Minister of Finance has the power to amend the Schedules to the Customs and Excise Act 91 of 1964 (CEA). The High Court had ruled that this amendment power was a violation of the principle of legality, since it unlawfully allowed the delegation of a plenary legislative power. In the confirmation proceedings, the Constitutional Court declined to confirm the High Court order on the grounds that South African law does not prevent the delegation of the power to amend schedules of a statute. The apex court based this finding on the view that this amendment was subject to parliamentary oversight, that it must be in the public interest, and that the duty would lapse after a year if Parliament did not approve it. This article discusses the implications of the decision for the imposition of tariffs and trade remedies. The discussion reviews relevant case law, legislation, literature, and domestic law
