Theses and Dissertations (Private Law)

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The challenges of protecting copyright In the digital age due to digital piracy
(University of Pretoria, 2023-11-30) Papadopoulos, Sylvia; Simphiwe.Nyembe@adams.africa; Nyembe, Simphiwe
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
(University of Pretoria, 2024-05-07) Ozah, Karabo; christiebisrat@gmail.com; Bisrat Yibas, Christian
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
(University of Pretoria, 2023) Cornelius, Steve J.; thabe40@gmail.com; Daniels, Abel Nathaniel
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
(University of Pretoria, 2023) Cornelius, Steve J.; romi.comyn@gmail.com; Comyn, Romi Irene
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
(University of Pretoria, 2023) Muwanga, Tracy; u16246994@tuks.co.za; Moseki, Olebogeng
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.
From fair dealing to fair use : Striking a balance between competing interests in South African copyright law
(University of Pretoria, 2023) Okorie, Chijioke; mapulanemalise@gmail.com; Malise, Mapulane
The study has its motivation from the contentious South African Copyright Amendment Bill [B13-2017] that has been before Parliament for many years, and more recently, been passed by the National Council of Provinces and awaiting President’s assent. The Amendment Bill proposes, inter alia, a shift from the exception approach of ‘fair dealing’ to that of ‘fair use’ and this forms the basis of the study. Since copyright exceptions and limitations (including fair dealing and fair use) are a way in which competing interests in copyright law are sought to be harmonised, the study is concerned with whether such harmony would ensue notwithstanding the proposed shift of doctrines in South Africa. In founding its argument and addressing the core issue, the dissertation explores the idea of competing interests and its nexus with the exceptions and limitations in copyright law. Further, it engages in a comparative study to juxtapose the fair dealing and fair use provisions as employed in South Africa and other countries like the United States and Singapore. After conducting such comparative study, the dissertation analyses whether the proposed fair use is suitable for South Africa through a discussion of the international obligations, important socio-economic considerations and fundamental legal principles such as the rule of law that underpin South Africa. In conformity with its discussions, the study deems fair use, as proposed, to be unsuitable for the country. However, it does not suggest that the current fair dealing is adequate. In fact, it reveals the gaps in fair dealing through discussing the findings of the famous case of Moneyweb (Pty) Ltd v Media 24 Ltd and another [2016] 3 All SA 193 (GJ). The study shows more interest in the principles that the South African legislator followed (or ought to follow) in reforming the copyright exceptions. It establishes and analyses five principles or factors that the legislator should use as guidance when revising the exception provisions. Ultimately, it submits that a revision of the fair dealing clause may be more practicable than a reform to fair use.
Common law principles of contract viewed in the context of artificial intelligence
(University of Pretoria, 2023) Cornelius, Steve J.; u21794902@tuks.co.za; Mabasa, Khobae Clementine
Contract formation in the new age of advanced Artificial Intelligence has brought about varied world-wide legal concerns and debates. A preeminent and emerging legal concern is the legal capacity of the autonomous systems and machines that are based and function on advanced Artificial Intelligence. Further, legal debates raised questions of whether contracts that are concluded by autonomous AI-driven systems and machines should be legally recognised as valid and enforceable. The primary aim of the research is to analyse the South African common law principles of contract by determining whether the principles are relevant and applicable to contracts concluded by autonomous AI-driven systems and machines. The principles are discussed and viewed in the context of advance Artificial Intelligence. Various theories of contractual interpretation are analysed in an attempt to find the most suitable theory for the interpretation of the affected contracts. The drafting process of code-based contracts and prescribed formalities thereof are also discussed. The dissertation is concluded with guidelines and recommendation for the successful application of AI machine-based contracts.
The law applicable to contractual obligations in consumer contracts of adhesion in Ghana
(University of Pretoria, 2023) Elsabe, Schoeman; chabbyethel@gmail.com; Fiattor, Ethel
This thesis argues for the inclusion of adequate choice of law rules for consumer adhesion contracts to ensure suitable protection measures for weaker parties in Ghana. To this end, the research seeks to add to existing literature by engaging in a comparative study of the legal development of choice of law rules in the jurisdictions of the European Union (EU) and the United States of America (US/USA), with specific reference to California and China. This study will assist in developing a theoretical framework to advance the jurisprudence of choice of law rules in consumer adhesion contracts in Ghana. The research considers the choice of law rules specifically in Articles 6 and 9 of Rome 1 where special rules have been promulgated to ensure the further protection of the consumer. Rome I ensures that the parties to a consumer contract may decide on the applicable law in accordance with Article 3 of Rome I. However, there are additional provisions to ensure the consumer’s protection in the form of mandatory provisions of the law applicable in the absence of a choice of law which under Rome I is the law of the country of the consumer’s habitual residence. The Restatement (Second) as it applies in California was designated for the comparative study. Sections 187 and 188 of the Restatement (Second) grant the parties to a consumer contract autonomy to incorporate a choice of law clause in their contract indicating the choice of the law of a particular state to govern their contract thereby limiting party autonomy in consumer contracts to the substantive provisions of the law of the state of their choice. The Restatement (Second) enhances the policies that are fundamental to the state with a material interest in the contract. The Chinese choice of law rules on consumer contracts follow the position in Rome I but are not as developed as regards interpretation and application of the 2010 Conflicts Statute and terminology. The promulgation of Article 42 provides expressly that a consumer contract is governed by the law of the consumer’s habitual residence. Article 42 further provides that the consumer contract is also governed by the law of the place where the commodity or the service is provided in absence of a choice by the parties. With respect to mandatory rules and public interest, China promotes policies that are fundamental to the state by ensuring the application of their mandatory rules and public interest. The research arrives at the conclusion that Rome I is the preferred standard worth emulating when developing a theoretical framework for Ghana. The absence of a Consumer Protection Act in Ghana will lead to the application of harsh common law principles of contract law which will not ensure the protection of weaker parties. Therefore, it is suggested that Ghana establish a consumer protection act in which choice of law rules on consumer adhesion contracts must be included. In light of attaining justice, the research equally considered through a comparative lens the effects of conflicts justice as against material justice in choice of law and arrived at the conclusion that choice of law rules must strive to attain a result-oriented form of justice in deciding the applicable law in consumer adhesion contracts. Recommendations are made to the effect that a theoretical framework mirroring the development of Rome I on the special rules for consumer adhesion contracts, which are tailored to suit the specific form of consumer transactions in Ghana, is best suited to consumer adhesion contracts and the protection of weaker parties in Ghana.
Law applicable to substantive issues in international commercial arbitration : an African Perspective
(University of Pretoria, 2023) Schoeman, Elsabe; Wethmer-Lemmer, Marlene; lawrenciaoppongpeprah@gmail.com; Oppong Peprah, Lawrencia
This thesis examines the law applicable to substantive issues in international commercial arbitration from an African perspective. More specifically, the thesis examines the methods used by arbitrators to assign the applicable substantive law in the absence of the parties’ choice in Egypt, Ghana, South Africa and Côte d’Ivoire. Considering the vital role of the law applicable in determining the rights and obligations of the parties to international commercial arbitration, the thesis seeks to identify the most efficient method for assigning the applicable law in the absence of the parties’ choice. To this end, the thesis explores existing literature including scholarly works on the topic, the national and selected institutional arbitration laws in Egypt, Ghana, South Africa, Côte d’Ivoire and elsewhere, to identify the common methods and strategies used by arbitrators in the selection of the law applicable to the merits of the dispute. The thesis scrutinises these methods to provide a comprehensive evaluation of the efficiency, predictability and legitimacy of each identified method from an African perspective. Ultimately, the thesis proposes a method that can enhance predictability and legal certainty for when arbitrators must assign the applicable substantive law in African international commercial arbitration, thereby promoting the development of a conducive business environment in the region. Moreover, by establishing a consistent regulatory framework for determining the substantive law in the absence of the parties’ choice, Africa may reinforce its position in the global legal landscape by developing its own distinctive jurisprudence in international commercial arbitration.
The legal consequences of ilobola in African customary marriages in South Africa
(University of Pretoria, 2023) Boterere, Shammah; kholofelomhlatse@icloud.com; Mohlala, Kholofelo Mahlatse Napogadi
South Africa has a hybrid legal system which comprises of among others, common law and customary law. Customary marriages are officially recognised under the Recognition of Customary Marriages Act 120 of 1998, however, unwritten living customary law plays a pivotal role in the validation of such marriages. The enactment of the Recognition of Customary Marriages Act ensured that customary marriages received equal status like other legally protected marriages in South Africa. However, section 3(1)(b) of this statute which outlines the validity requirements of a customary marriage has had the unintended consequences of creating an inconclusive locus in respect of what a valid customary marriage entails. This provision requires that a marriage be “negotiated” and “entered into” or “celebrated” in accordance with customary law. In terms of living customary law, ilobolo must be followed by the handing over of the bride in order to conclude a customary marriage. This comprises of various events and rituals depending on the ethnic groups involved. In essence these two practices are mandatory for the valid conclusion of a customary marriage. The position is however unclear within the prism of official customary law. This is elaborate in the dissensus within the judiciary in respect of the customary marriage practices that confirm the valid conclusion of a customary marriage. Due to the contestation centred around proving the existence of a valid customary, there are growing debates as a result of the judiciary’s inconsistent and at times misinterpretation on the provisions of section 3(1)(b). In light of this background, this research explores this debate and aims to provide clarity regarding the essential requirements for the valid conclusion of customary marriages in South Africa. In summary, this research investigates the legal consequences that the practice of ilobola paired with the custom of handing over the bride as an integral part of the marriage, have in the validation of a customary marriage. In doing so, the research considers official and living customary law by analysing various conflicting judgments on this debate. The study makes recommendations on how to resolve the inconsistencies, misinterpretations, and discord of what validates a customary marriage.
The impact of the National Credit Act 34 of 2005 on credit contracts by unregistered credit providers in South Africa
(University of Pretoria, 2023) Cornelius, Steve J.; manoko.mashangoane@gmail.com; Mashangoane, Manoko Magdeline
The research in this dissertation was conducted with the intention of providing an alternative viewpoint on the perceived unlawful dealings of unregistered credit providers while broadly examining the nature of the credit contractual arrangements they get into with their clients. With the National Credit Act 34 of 2005 as the core legislation, its scope is thoroughly examined in order to determine whether or not it is relevantly enforceable to the credit contracts in question, and whether it is a living or adaptable statute that can be open enough to the demands brought on by the socio-economic environment that civilians live in to the point at which the informal credit sector can be thought about in an effort to make the economy or access credit more equitable and practical. The National Credit Act requires creditors that are in the business of extending and/or granting credit to their consumers, to be registered with the National Credit Regulator. Failure to do so will result in the credit agreement being unlawful and therefore void. Consequently, section 89 will be enforced, which will cancel the credit provider’s right to reclaim the credit they have granted to consumer, or forfeit it to the state. Taking into account the merits of the legal precedents examined in this dissertation, with the history and the statistics of unregistered credit providers, an informal credit and/or financial market is therefore established. Which then compels us to re-evaluate the harsh provisions of section 89 and the impact it has on the said market. This dissertation is then aimed at shifting perspective on how the courts may deal credit contracts of this nature without harshly enforcing 89 and completely disregarding other factors that are discussed in detail in chapter 5, under the heading ‘unregistered or informal credit sectors’.”
The Impact of the constitution on the law of contract
(University of Pretoria, 2023) Cornelius, Steve J.; lekalamj@gmail.com; Lekala, Mogoatike Johannes
The research explores the impact of the Constitution,1996 on the common law of contract. A limited study of the relationship between the principles and rules of the law of contract and the open-ended values underlying the Constitution is undertaken. This limited study extends to the nature and extent of the influence of chapter 2 of the Constitution on the law of contract. Finally, the approach of the courts in the application of the open-ended values of the Constitution to practical law of contract situations is analyzed.
African customary law and its Impact on the rights of women : A study of South Africa and Lesotho
(University of Pretoria, 2023) Maimela, Charles; matselatebello@gmail.com; Matsela, Tebello Bernice
Colonialism and apartheid were alien forces that changed the trajectory of customary law in the legal systems of South Africa and Lesotho. The effect of this interruption positioned customary law as a secondary legal system, compared to Roman-Dutch Law and English common law, which both form South African and Lesotho common law. The South African and Lesotho Constitutions currently recognise customary law as being on a par with common law. Nevertheless, customary law in its current state is distorted and underdeveloped. In both South Africa and Lesotho, customary law was encoded through legislation during colonial and apartheid times, with the intention of such customary law fitting in with Western standards. These Western standards formulated customary law to bear Eurocentric principles such as patriarchy and, in turn, discriminated against and excluded women’s rights and status in traditional environments. Therefore, this thesis focuses on the effect of colonisation and apartheid on customary law and the rights of women in traditional environments. The study argues that due to the marginalisation of customary law endured in the South African and Lesotho legal systems, women in traditional settings end up further marginalised, as evident from the judgments discussed in the study. Moreover, women, who were formerly protected under indigenous institutions like marriage, are now excluded from the collective group to which they belong in areas such as succession and inheritance, property ownership and traditional leadership roles because of the patriarchal systems that have dominated indigenous communities. This happens even though numerous women in contemporary societies are currently leading and heading households. The failure to develop customary law continues to restrict the way women are perceived in traditional contemporary communities and as a result this also affects their status. This thesis seeks to provide recommendations that can emancipate women in traditional environments, as well as the promotion of customary law in its living state.
Protecting vulnerable purchasers of immovable property against fraud and misrepresentation
(University of Pretoria, 2023) Cornelius, Steve J.; u16051123@tuks.co.za; Makeketa, Thabiso
There’s a general rule in South African law that says a party cannot raise the defence of estoppel successfully if it would lead to the enforcement of a void contract. The research project aims to expose and protect vulnerable purchasers of immovable property against scrupulous sellers of immovable property in circumstances where guilty parties fraudulently misrepresent certain facts to cause innocent parties not to comply with statutory requirements in terms of section 2(1) of the Alienation of Land Act knowing well enough that they cannot rely on estoppel because it would lead to the enforcement of an unlawful contract. The research proposes alternative solutions to solve this predicament.
South African law of contract : consensus in the context of the Electronic Communications and Transactions Act 25 of 2002
(University of Pretoria, 2023) Cornelius, Steve J.; Maimela, Charles; u22856392@tuks.co.za; Broodryk, Jacques
This research project encompasses several essential objectives. It offers a holistic exploration of online contracts, providing a comprehensive definition and categorization of the types of online agreements. Concurrently, it delves into the legislation that governs these digital agreements, and which provides for its validity and enforceability. In parallel, this study assesses paper-based contracts, unveiling their fundamental nature and core principles. It identifies the prerequisites for a contract to be considered valid and binding under common law, whilst considering the critical elements of consensus, offer, and acceptance. These established principles are then examined within the context of online contracts to assess their relevance and applicability. Further consideration is given to online contracts as a subset of contracts of adhesion, a detailed analysis of their unique characteristics and inherent complexities is conducted to assess their propensity to inform the extent of perfect consensus. This investigation extends to the caveat subscriptor rule and its exceptions, exploring their implications in both the South African legal landscape and the broader international arena. Another integral facet of this study involves an exploration of judicial perspectives and the South African Courts’ approach to the interpretation of paper-based and online contracts. A comparative analysis is undertaken to highlight the contrasting features between traditional paper-based contracts and their digital counterparts, format, structure, content, and methods of expressing agreement. Finally, the research underscores and champions the transformative impact of plain language in contracts. It highlights how the use of clear, unambiguous language could enhance the reader’s comprehension of contract terms and increase the achievement of perfect consensus.
Remedies for breach of contract in South Africa
(University of Pretoria, 2023) Cornelius, Steve J.; kenomokolobate@gmail.com; Mokolobate, Kenosi Norman
If a contracting party fails to fulfil its obligations it is in breach of the contract. The innocent party may sue the defaulting party for breach of contract. Our law recognises a unitary concept of breach which encompasses specific forms of breach i.e., mora debitoris, mora creditoris, positive malperformance, repudiation, and prevention of performance. For each form of breach, remedies for breach are the same. There are five remedies for breach, specific performance, declaration of rights, damages, interdict and cancellation. Each remedy has its requirements and consequences on the position of a defaulting party. Certain remedies may be claimed in combination or in the alternative as they are mutually exclusive. Interpretation of a contract requires an in-depth knowledge of substantive law and case law. As our courts are tasked with interpreting the law and thus guidance for interpreting remedy clauses may be sought from decided cases. In interpreting remedies for breach, normal rules of interpretation apply. This involves attributing meaning to words contained in a contract by giving words their ordinary grammatical meaning as used in everyday sense. Thus, interpretation of a contract involves ascertaining what the language in the contract means. Express words take precedence over tacit or implied words. To give effect to the principle of equity underlying the law of contract, Roman law recognised the need for certain presumptions from which interpretation could proceed. For example, it is presumed that contracts are performed ‘in forma specifica.’ Whether there must be performance ‘in forma specifica’ a court will be careful to apply the legal notion of de minimis non curat lex. Drafting of remedy clauses require an in-depth knowledge of substantive and case law to ensure that drafted remedy clauses are enforceable. Whilst there are no rules for drafting of contractual remedies, specific ways of drafting contractual clauses are preferred more than others. This study firstly explores substantive law overlaying contractual remedies. Secondly, the study investigates the rules of interpretation of contractual remedies. Lastly, the study applies substantive law and rules of interpretation to redraft certain precedents for remedy clauses.
Exemption clauses in medical contracts
(University of Pretoria, 2023) Cornelius, Steve J.; u14148235@tuks.co.za; Langa, Charity Ntokozo
Many private hospitals in South Africa have consistently tried to discharge themselves from liability by having patients sign admission forms that contain indemnity or exclusionary clauses. They rely on standard legal rules like the caveat subscriptor rule and pacta sunt servanda to bind vulnerable patients to unconscionable terms. The former rule binds contracting parties to an agreement they signed, irrespective of whether they read and understood it. In the well-known Afrox Healthcare Bpk v. Strydom decision, the Supreme Court of Appeal ruled that common law allows hospitals to escape responsibility for medical malpractice causing death or bodily or psychological harm, excluding cases of gross negligence. The consequences of this judgment have now been surpassed by the provisions of the Consumer Protection Act of 2008 (‘CPA’), which came into effect in March 2011. The Act aims to ‘promote and advance the social and economic welfare of consumers in South Africa.’ My research identifies the effect of exclusionary clauses in medical and hospital contracts, particularly when analysed in light of the provisions of the Consumer Protection Act. The Afrox case has been controversial, with many legal scholars arguing that the case's premises must be reversed since the ruling violates public policy. It is argued that with the Consumer Protection Act in effect, exclusionary provisions in medical and hospital contracts should gradually lose their substantial influence over consumers. The Act is a step in the right direction toward patient and consumer protection and education.
The Use of Force in Mass Evictions
(University of Pretoria, 2022) Muller, Gustav; u11041898@tuks.co.za; Gevers, Marc B.
This dissertation focuses on the use of force during evictions, particularly in the context of mass evictions (where mass evictions are defined as the eviction of a group of people from unlawfully occupied property). The South African approach to the use of force during evictions is evaluated through an analysis of section 4(11) of the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998. This section allows third parties to assist the sheriff in executing an eviction order. Based on the principles of subsidiarity, ancillary empowering legislation such as the Sheriff’s Act 90 of 1986, the South African Police Service Act 68 of 1995, and the Private Security Industry Regulation Act 56 of 2001, are also considered in this analysis. A determination is then made on whether said legislation adequately provides for the use of force in evictions. Where such framework is found to inadequately provide procedural and substantive protection, this dissertation analyses the international and foreign framework of laws as they relate to the use of force and evictions in order to provide guidance as to the shortcomings and possible solutions to any inadequacies in the current South African approach. Thus, better providing the necessary procedural and substantive safeguards for the use of force in evictions.
The scope of the adaptation right in South Africa, foreign and international copyright regimes
(University of Pretoria, 2023) Okorie, Chijioke; lucindakok.law@gmail.com; Kok, Lucinda Elizabeth
As a pervasive feature in modern society, the adaptation right within the context of infringement and fair dealing has been a frequent subject of heated debate for several years. The power disparity between copyright owners and users makes it difficult for the user to determine when it is appropriate to pay for permission and when to use the work without permission, resulting in numerous legal debates over what is considered lawful or permissible use. Moreover, the complexities of copyright law and its application within the context of the various forms of adaptation set out in the Copyright Act (i.e., an arrangement, transcription, translation, transformation) remain primarily undefined, leaving those attempting to create a work of adaptation or resolve a dispute over one in a state of considerable ambiguity. This is exacerbated by the absence of case law meant to provide clarifications. The findings in Blind SA v Minister of Trade, Industry, and Competition, and the almost decade-long debate of the Copyright Amendment Bill, indicate numerous gaps in South Africa's legal system concerning adaptations and their role in legal proceedings. Accordingly, a need to revise existing copyright laws and the intended forthcoming changes by way of the Copyright Amendment Bill is justifiable to protect the rights of creators while facilitating the equitable use of works in the digital age. Through an in-depth analysis of the available evidence (i.e., existing South African legislation and case law, foreign legislation and case law, and the Copyright Amendment Bill B13-17), this dissertation seeks to determine which approaches and forms of assessment are best suited for the South African framework in adaptation cases and, based on this discovery, to make recommendations for their adoption.
The potential delictual liability of non-vaccinating parents in South Africa
(University of Pretoria, 2023) Schoeman, Elsabe; Zitzke, Emile; liesl.hager@up.ac.za; Hager, Liesl
This thesis explores the potential delictual liability of non-vaccinating parents in South Africa for the harm caused to another by failing to have their child vaccinated. The South African common-law delict is explored with specific reference to the five common-law delictual elements, as well as the three historic actions: the actio iniuriarum; the Germanic action for pain and suffering; and the actio legis Aquiliae. In Chapter 1, the reader is introduced to the research topic, and specifically the issue of non-vaccination, what it entails for purposes of this thesis, and why the non-vaccination of a child may potentially attract delictual liability. Chapter 2 explores non-vaccination in greater detail, including the importance of vaccination, a short overview of the history of non-vaccination, and why non-vaccination is still regarded as a global health threat. Non-vaccination is considered against a constitutional backdrop in Chapter 3 to establish whether children have an express or implied constitutional right to vaccination and whether or not parents have a corresponding duty to vaccinate their children. Chapter 3 also considers the common-law rights of parents as well as the role of the Children’s Act in the constitutional conundrum. Foreign-law considerations regarding the potential civil liability of non-vaccinating parents are considered in Chapter 4 with reference to foreign case law and legislation. The South African common-law delict is explored in Chapter 5 and each delictual element is considered in detail to establish whether non-vaccinating parents could possibly face delictual liability for the harm caused to others by their failure to have their child vaccinated. In Chapter 6 recommendations for statutory reform are made with reference to the consequences of imposing delictual liability and to assist litigants in a delictual suit. Chapter 7 concludes the thesis with a short summary of the chapters and concluding remarks. Keywords: non-vaccination; anti-vax; delictual liability; children’s rights; negligence; torts; duties; breach; best interests; common-law delict; wrongfulness; harm; conduct; causation; fault.

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