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SDG 17

Achieving the national development agenda and the Sustainable Development Goals(SDGs) through investment in ecological infrastructure: A case study of South Africa
04 April 2018
Stellenbosch University

Cumming, T.L.;Shackleton, R.T.;Forster, J.;Dini, J.;Khan, A.;Gumula, M.;Kubiszewski, I.

Ecological infrastructure (EI) refers to ecosystems that deliver services to society, functioning as a nature-based equivalent of, or complement to, built infrastructure. EI is critical for socio-economic development, supporting a suite of development imperatives at local, national and international scales. This paper presents the myriad of ways that EI supports sustainable development, using South Africa and the South African National Development Plan as a case study, linking to the Sustainable Development Goals on a global level. We show the need for EI across numerous development and sustainability issues, including food security, water provision, and poverty alleviation. A strategic and multi-sectoral approach to EI investment is essential for allocating scarce public and private resources for achieving economic and social-ecological priorities. Opportunities to unlock investment in EI, both internationally and on the national level, are identified. This includes leveraging private sector investment into landscape management and integrating the costs of managing EI into public sectors that benefit directly from ecosystem services, such as the water sector and infrastructure development. Additionally, investing in EI also aligns well with international development and climate change funds. Investment in EI from a range of innovative sources supports global and national development, while complementing other development investments.
Collaborative learning to unlock investments for functional ecological infrastructure: Bridging barriers in social-ecological systems in South Africa
04 April 2018
Stellenbosch University

Angelstam, P.;Barnes, G.;Elbakidze, M.;Marais, C.;Marsh, A.;Polonsky, S.;Richardson, D.M.;Rivers, N.;Shackleton, R.T.;Stafford, W.

Maintenance of functional ecological (or green) infrastructure is threatened by habitat conversion, fragmentation and loss, water scarcity, invasive species, climate change, resource extraction, poor policy implementation and societal inequity. Using South Africa as a case study, our transdisciplinary team identified actions likely to be effective in scaling up research and development projects that support implementation of policy about ecological infrastructure by active adaptive management. Based on expert knowledge at three scales, we analysed South Africa's opportunity to active adaptive management and to unlock investments that enhance functional ecological infrastructure. Barriers included lack of trust among actors, limited collaborative governance and integrated planning, including local partnerships; as well as a poor inclusion of evidence based knowledge based on monitoring of landscape restoration efforts and its social and ecological consequences. Bridges include practicing transdisciplinary knowledge production, enhancing social learning among actors and stakeholders, and advocacy based on improved understanding. We propose a portfolio of place-based actions that could help to facilitate unlocking investments for functional ecological infrastructure by prioritising conservation, management and restoration through integrated cross-scale, collaborative and multi-sector spatial planning. Understanding the structure and dynamics of social-ecological systems, identifying champions, framing key messages for different audiences, and sharing failures and success stories internationally, are crucial requirements to unlock investments.
Job insecurity , work-based support, job satisfaction, organisational commitment and general health of human resources professionals in a chemical industry
09 November 2009
North West University

Rani, Nomhlangano Florence

The work environment in which South African employees have to function is highly demanding, offering them little in terms of job security, but simultaneously expecting them to give more in terms of inter alia flexibility, competency, and effort. Tracking and addressing chemical industry employees' functioning in areas that could affect their general health and consequent standard of service is essential. Job insecurity, work-based support, job satisfaction, organisational commitment and general health are specific focus areas in this research. It is important to use reliable and valid measuring instruments to measure these constructs. It appears that job insecurity results in reduced organisational commitment as well as reduced job satisfaction. In the long run all this may have a negative impact on the psychological well-being of employees. Therefore, the right kind of support h m the right kind of people can be of significant value in reducing occupational stress, improving health, and buffering the impact of stress on health. A lack of South African research exists regarding job insecurity, work-based support, job satisfaction, organisational commitment and general health - hence the importance of this research. The primary objective of this research was to investigate the relationship between job insecurity, work-based support, job satisfaction, organisational commitment and general health of Human Resources Professionals (N = 114) in a chemical industry. A cross-sectional survey design was used to collect data. It was found that affective and cognitive job insecurity demonstrated a statistically significant negative correlation with emotional social support (supervisor and other), but practically and statistically negative correlation with intrinsic and extrinsic job satisfaction. With regard to affective and cognitive job insecurity and general health, a statistically significant positive correlation was obtained for somatic symptoms, social dysfunction and severe depression, and a practically and statistically significant correlation with anxiety and insomnia. Affective commitment demonstrated a statistically significant negative relationship with cognitive job insecurity. The regression analysis indicated that job insecurity has some predictive value with regard to the intrinsic and extrinsic job satisfaction and general health subscales, namely somatic symptoms, anxiety and insomnia, social dysfunction and severe depression. With regard to the two components of job satisfaction, intrinsic and extrinsic, job insecurity predicted 14% and 5% respectively of the variance. No predictions were found between affective commitment and job insecurity. With regard to general health, job insecurity predicted 5% (somatic symptoms), 11% (anxiety and insomnia), 1 % (social dysfunction) and 8% (severe depression). Conclusions were made, limitations of the cumin research were discussed and recommendations for future research were put forward.
To sequestrate or not to sequestrate in view of the National Credit Act 34 of 2005: A tale of two judgements
30 March 2011
North West University

Boraine, Andre;Van Heerden, Corlia

The purpose of this article is to consider the impact of some of the provisions of the National Credit Act1 (the NCA) on sequestration applications in the form of applications for voluntary surrender, as well as compulsory sequestration. This matter is of particular relevance in view of two recent cases: in Ex parte Ford2 the court refused to grant a sequestration order following an application for voluntary surrender since the applicant-debtors did not, according to the court, avail themselves adequately of debt relief measures provided for by the NCA where the bulk of the debt consisted of credit agreements regulated by the NCA; and in a more recent judgment, Investec Bank Ltd v Mutemeri,3 the respondent-debtors, namely the consumers, opposed an application for compulsory sequestration on the basis that the application for debt restructuring pursuant to debt review in terms of the NCA barred the applicant from proceeding with the application for compulsory sequestration, since they argued that such an application amounted to debt enforcement. This discussion therefore considers the impact of the debt relief remedies and certain special provisions that apply to debt enforcement in terms of the NCA on sequestration procedures provided for in the Insolvency Act4 in view of the above judgments.
A critical review on the reporting of surveys in transdisciplinary research: a case study in Information Systems.
19 January 2012
North West University

Van Biljon, J.

Variability of goals and evolving research methodologies are fundamental characteristics of transdisciplinary research. This integration of research strategies from different fields complicates the evaluation of transdisciplinary research since the variability of goals drives variability of criteria and quality indicators. The aim of this research is to investigate the implications of using research methods across disciplinary boundaries by drilling down into the use of one research strategy in one research context (Information Systems) and a related sub-context (Human-Computer Interaction). Surveys with questionnaires as data-capturing tools were selected as an established research method which is widely used in transdisciplinary research. Questionnaires are one of the most established data capturing tools and yet the validity of questionnaire-based findings have often been questioned. The main problem areas have been identified as the sampling of the data, the questionnaire design and the interpretation of the results. This paper looks into questionnaire reporting practices - an essential determinant in the validity and reliability of survey-based research. The field of Information Systems and Human- Computer Interaction has been chosen as the research context. Information Systems research is by nature interdisciplinary in focusing on social and organisational issues regarding the development and use of software in organisations. Human-Computer Interaction studies address the challenges of making computers and computations useful, usable, and universally accessible to humans. Both Information Systems and Human- Computer Interaction studies address complex, heterogeneous, real-world problems, thereby meeting the first criteria to be classified as transdisciplinary research. The research design entails document analysis of papers presented at conferences in Computer Science and Information Systems over a three-year period to identify trends in the reporting of survey results, especially the questionnaire design. Transdisciplinary research methodology facilitates the application of research methods across fields. However, if the constraints of the method are not recognised the validity of the results may be compromised in a plethora of ways. While fusion of methods are encouraged on a theoretical level in transdisciplinary research the findings of this study are a warning about the dangers of interdisciplinary application of research strategies without due diligence in observing best practices in the parent discipline. The paper aims to advance the discussion on research design and practice beyond disciplinary research and should be of interest to researchers and practitioners who deal with multidisciplinary, interdisciplinary, and transdisciplinary research.
Exploring local histories in the use and appreciation of heritage and history in history curricula.
14 February 2012
North West University

Van Eeden, Elize S

With the Internet so easily available nowadays, I decided (just for the fun of it but also out of curiosity) to do a Google search to see how many entries I could find for "heritage and history". In a split second no fewer than 840 000 results appeared. I felt exhausted even before I even started surveying the results. This gives a sense of how history educators must sometimes feel when they have to teach content or facilitate, but still have to find the time on a daily or weekly basis to engage with meaningful ideas and activities as part of the History curriculum. This is especially true for heritage assignments that from 2012 will, among others, be the focus in the Grade 10 History curriculum. In September 2010 the South African Society for History Teaching held its second conference since its founding on the theme of heritage and its inevitable associations with history. As I do not wish to repeat here the theories and practical suggestions1 which other educators of history with expertise in heritage have recently developed, my focus is more practical. It is practical in the sense that it will motivate educators to use existing content in local histories and local heritage within history curricula frameworks (in all educational phases) to serve as examples of broader trends – apart from this, heritage is also to be appreciated for its own sake as well as acting as a micro anchor and milestone from which broader historical developments evolve. In this regard my focus therefore was more on identifying historical content in past debates and research deliberations with the intention to support educators with content that they can explore inside and outside the formal classroom set-up. Therefore the discussion merely: • Gives glimpses of local history and heritage in the writing of historians and others; • Deals with one local heritage example in the classroom (to connect with the SASHT 2010 conference theme: The "how to of yours, mine and ours in a still divided community; environment"),namely the 2010 Shaka statue debacle; • Gives some concluding suggestions on heritage, history and the History curriculum.
South African History Online's Education Programme.
03 July 2012
North West University

Jardine, Varushka

This paper outlines South African History Online as a NGO that focuses on the enhancement of history especially at school level. The advent of digital and social media platforms has changed the way scholars learn and the way they perceive their world. The book, paper and journals should no longer provide the exclusive model for historical knowledge to be passed on. With this in mind, SAHO has developed a comprehensive online programme that focuses on the current curriculum as laid out by the Department of Education. The development of this website into an online classroom will assist both teachers and learners. Learners should be exposed to the wonders of digitisation and have the advantage of viewing primary source documents in their classrooms. This turns a normal classroom into a virtual archive making the learners instant historians who can now investigate their own case studies. Teachers have the opportunity of telling stories in new ways and in different means, and can use various materials from SAHO’s online media and library section to give the learners the opportunity to relive the story. SAHO has various projects such as the development of the online curriculum material and aids for history from Grades 4 to 12. The aim is to build up this project into a comprehensive online encyclopaedia. An Arts and Culture classroom will soon be developed in a similar format. SAHO’s teacher outreach programme, online support and e-learning focuses on the development of an online forum for both teachers and learners. Other campaigns include the ‘history matters’ campaign which is aimed at increasing interest in history at school and tertiary level. Monitoring and evaluating SAHO’s classroom support will be done through counters on the web pages.
A South African perspective on mutual legal assistance and extradition in a globalized world
04 September 2012
North West University

Watney, M

This contribution focuses on the modalities of mutual legal assistance and extradition from a South African perspective. The question is posed whether South Africa has succeeded to establish the required framework as a fully fledged member of the international community to make a positive contribution in the fields of mutual legal assistance and extradition subsequent to its international political isolation during the apartheid era. Although the international community derives substantial benefit from a borderless global world, it has as a result also to deal with the negative impact of globalization on international crime. Physical and/or electronic crimes are increasingly committed across borders and may be described as borderless, but law enforcement (combating, investigation and prosecution of crime) is still very much confined to the borders of a state. Criminal networks have taken advantage of the opportunities resulting from the dramatic changes in world politics, business, technology, communications and the explosion in international travel and effectively utilize these opportunities to avoid and hamper law enforcement investigations. As a sovereign state has control over its own territory it also implies that states should not interfere with each other’s domestic affairs. The correct and acceptable procedure would be for a state (requesting state) to apply to another state (requested state) for co-operation in the form of mutual legal assistance regarding the gathering of evidence and/or extradition of the perpetrator. Co-operation between states are governed by public international law between the requesting and requested state and the domestic law of the requested state. The South African legislature has increasingly provided for extraterritorial jurisdiction of South African courts in respect of organized crime and terrorism. It does however appear that existing criminal justice responses are experiencing challenges to meet the demands of sophisticated international criminal conduct. Mutual legal assistance and extradition provisions may show that the world is becoming smaller for fugitives and criminals, but the processes are far from expeditious and seamless. An overview of the South African law pertaining to mutual legal assistance and extradition indicates that the South African legislative framework and policies as well as international treaties make sufficient provision to render international assistance in respect of mutual legal assistance and extradition. The role of the courts in upholding the rule of law and protecting the constitutionally enshrined bill of rights, is indicative of the important function that the judiciary fulfills in this regard. It is important that extradition is not only seen as the function of the executive as it also involves the judiciary. It appears that South Africa has displayed the necessary commitment to normalize its international position since 1994 and to fulfill its obligations in a globalized world by reaching across borders in an attempt to address international criminal conduct.
Innovation in a hybrid system: the example of Nepal
24 October 2012
North West University

Urscheler, L H

The Nepali legal tradition is a legal hybrid in many regards. Nepal was not colonised by a Western state, and the Hindu legal tradition therefore dominated all areas of law until the middle of the 20th century. Since the 1950s there has been a strong influence of Indian common law. It is probably for this reason that comparative classifications that include Nepal see the legal system as a mixture of common law and customary law. However, other mixtures mark the Nepali legal tradition. French law inspired the ruler in the 19th century, and that influence can still be found in the formal law. In addition, the plurality of Nepalese society made it necessary to provide space for different customary regimes to coexist with the formal Hindu law. When it comes to innovations within the legal system, including international law, the different ingredients interact. In family-related matters, the case-law of the Nepali Supreme Court illustrates the confrontation between international legal standards and the traditional rules. The Supreme Court has referred to the culturally conditioned discrimination against women and called for a thorough (political) analysis in order to eliminate discrimination without a radical change of culture. In the area of discrimination against homo- and transsexuals the Supreme Court took a more innovative approach. It remains to be seen, however, if such a change is effective beyond the courtroom. In the area of private financial compensation for wrongs, the formal (written) Nepali law does not have a general concept of tort. Compensation is generally integratedwithin the ambit of criminal law. Field research indicates that it would be possible to resort to existing customary principles of compensation rather than to the relatively complex common law of torts favoured by some Nepali scholars. However, this approach might not be without difficulty, as it might imply admitting the “superiority” of the customary practices of ethnic groups of lower standing in society. The example of Nepal shows that innovation in a hybrid system is often marked by the difficulty of – at least apparently – contradictory elements and layers of the legal system. There might be a tendency towards choosing the dominant or the most easily accessible solution. This paper suggests that the hybrid nature of the legal system offers opportunities that could be taken in order to achieve effective change and appropriate solutions.
European and American perspectives on the choice of law regarding cross-border insolvencies of multinational corporations - suggestions for South Africa
31 January 2013
North West University

Weideman, J;Stander, A L

An increase in economic globalisation and international trade has amounted to an increase in the number of multinational enterprises that have debt, own assets and conduct business in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross-border insolvency (CBI). The legal response to this trend has, inter alia, produced two important international instruments that were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law) in 1997, which has been adopted by nineteen countries including the United States of America and South Africa. Secondly, the European Union (EU) adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. Both the EC Regulation and Chapter 15 adopt a “modified universalist” approach towards CBI matters. Europe and the United States of America are currently the world leaders in the area of CBI and the CBI legislation adopted and applied in these jurisdictions seems to be effective. As South Africa’s Cross-Border Insolvency Act is not yet effective, there is no local policy guidance available to insolvency practitioners with regard to the application of the Model Law. At the basis of this article is the view that an analysis of the European and American approaches to CBI matters will provide South African practitioners with valuable insight, knowledge and lessons that could be used to understand and apply the principles adopted and applied in terms of the EC Regulation and Chapter 15, specifically the COMI concept, the “establishment” concept in the case of integrated multinational enterprises and related aspects.
Driving corporate social responsibility (CSR) through the companies act: an overview of the role of the social and ethics committee
20 May 2013
North West University

Kloppers, Henk J

The corporate social responsibility (CSR) movement can be described as a bundle of trends comprising regulatory frameworks aimed at improving corporate practices and leading to changes in these practices, the mobilisation of corporate role players to support the development of states, and a management trend the purpose of which is to enhance the legitimacy of a business. Government is regarded as one of the most important driving forces behind the CSR agenda and it has a particularly important role to play in the creation of an enabling CSR environment. In general, advocates of legislative involvement in framing the CSR policy highlight the failure of existing voluntary systems as one of the main reasons why the state should play a more important role in the facilitation of CSR. Although governments realise the importance of encouraging socially responsible business, it should be noted that CSR should not replace regulation or legislation concerning social rights. Furthermore CSR should not be seen as shifting (or outsourcing) the state's responsibility for the provision of basic services (such as education or the provision of health services) to the private sector and thus "privatising" the state's responsibilities. However, the legacies of apartheid remain firmly entrenched in the social problems facing South Africa and it seems as if the Government is unable to deliver the social and physical infrastructure required to effect the desired transformation, thus necessitating the engagement of the private sector. The role of Government in establishing a CSR policy framework and driving CSR has become increasingly important. The (perceived) failure of the welfare state has given further impetus to the move of governments toward tapping into the resources of the private sector (through their CSR) in order to address socio-economic challenges. A purely voluntary approach to CSR without any legislative intervention will not succeed – a clear public policy requiring the implementation of socially responsible practices by the entire private sector is a necessity. Governments in general are increasingly beginning to view CSR as cost-effective means to enhance their sustainable development strategies, and as a part of their national competitiveness strategies to attract foreign direct investment. Given South Africa's history, legislation should be viewed as one of the main instruments enabling the Government to address the private sector's social, environmental and economic outreach activities. Against this background, this contribution identifies the regulations released in terms of the Companies Act 71 of 2008 in which the issue of the social and ethics committee is dealt with, as an important measure taken by Government to create a possible CSR platform. This contribution argues that the requirements regarding the creation of a social and ethics committee have the potential to embed the CSR notion in the corporate conscience. The aim of the contribution is to provide an overview of the role of the social and ethics committee, as envisaged by the Companies Regulations, 2011, as a potential driver of CSR.
Reasonable and probable cause in the law of malicious prosecution: a review of South African and commonwealth decisions
20 May 2013
North West University

Okpaluba, Chuks

The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.
Population vulnerability and disaster risk reduction: a situation analysis among the landslide affected communities in Kerala, India
16 August 2013
North West University

Santha, Sunil Damodaran;Sreedharan, Ratheeshkumar Kanjirathmkuzhiyil

Landslides affect at least 15% of the land area of India, exceeding 0.49 million km2. Taking the case of landslide affected communities in the state of Kerala in India, this paper demonstrates that the focus has seldom been placed on assessing and reducing vulnerability. From the perspective of political economy, this paper argues that vulnerability reduction has to be the main priority of any disaster risk reduction programme. This paper also demonstrates that the interactions between ecological and social systems are usually complex and non-linear in nature. In contrast, interventions to tackle landslide risks have followed a linear course, assuming that one hazard event acts independently of another. The key findings of the study show that lack of access to political power, decision making, and resources, insecure livelihoods,environmental degradation, and ine#ectiveness of the state approach to disaster risk reduction are some of the major factors that lead to increasing vulnerability. Qualitative in nature, the primary data were collected through in-depth interviews with people from different groups such as farmers affected by the landslides and secondary floods, men and women living in the temporary shelter, government representatives involved in relief activities, health authorities, and elected representatives.
The unilateral determination of price - a question of certainty or public policy?
15 October 2013
North West University

Du Plessis, Hanri M

The unilateral determination of price has been a controversial issue for an extended period of time. During the 1990s the Supreme Court of Appeal asked if the rule should still form part of South African law. Specifically, the court raised a few questions in respect of the rule and commented that the rule as applied in South African law is illogical. The court also remarked that public policy, bona fides and contractual equity might also be employed when considering such issues. Despite the criticisms of the Supreme Court of Appeal, it would seem that the rule still forms part of our law. This article investigates whether or not the rule should be retained in the South African common law. The answer will depend on two separate questions: Is the rule a manifestation of the requirement of certainty of price? If not, does public policy require that the rule be retained? The article shows that the rule prohibiting the unilateral determination of price should not be seen as a manifestation of the requirement of certainty of price. This is because there are various circumstances where the unilateral determination of the price results in certainty of price or can be applied in such a way as to arrive at certainty of price. Most of these arguments require that the discretion to determine the price should not be unfettered and should be subject to some objective standard. This can be done expressly or tacitly in the contract, or an objective standard (in the form of reasonableness) will be implied by law. Thereafter, the article considers various public policy considerations that could be used to determine if a discretion to determine the price should be enforced. The article argues that public policy may dictate that such a discretion should be valid and enforceable provided that it is not unfettered and subject to an external objective standard or reasonableness. However, in cases where an unfair bargaining position is present, public policy may dictate otherwise. The article accepts that whether a term providing for the unilateral determination of the price would be contrary to public policy or not will depend on the facts of the case. However, it is submitted that, at a minimum, the considerations and factors discussed in the article should be taken into account when making such an assessment.
The quest for a supranational entity in West Africa: can the economic community of West African states attain the status?
16 October 2013
North West University

Lokulo-Sodipe, Jadesola O;Osuntogun, Abiodun J

To reflect the growing trends in the international scene and in furtherance of the objective of its Revised 1993 Treaty, the Economic Community of West African States (ECOWAS) summit in December 2006 revolutionised the structure of ECOWAS by re-designating the Executive Secretariat into a quasi-independent commission headed by a President with a Vice President and seven commissioners. The rationale behind the revision was to make ECOWAS a supranational entity. This article considers whether or not a supranational system is essential for the attainment of ECOWAS' objectives. It asks if the conditions for an effective supranational system are in place in the West African sub-region which could provide a solid foundation for its success and why the quest for a supranational system has not yielded any fruitful result in West Africa. It argues that a retreat from the quest for supranationalism and a return to an inter-governmental system would be a retreat rather than the way forward, and expresses the need for the course of action to be sustained courageously till the impact of integration begins to emerge, and the disguised, patriotic impulse of states to protect their national sovereignty gives way to the full manifestation of ECOWAS as a supranational entity.
The South African defence review (2012) and private military / security companies (PMSCs): heralding a shift from prohibition to regulation?
29 January 2014
North West University

Juma, Laurence;Tsabora, James

This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.
The impact of the labour relations act on minority trade unions: a South African perspective
29 January 2014
North West University

Kruger, Johan;Tshoose, Clarence Itumeleng

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level. It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to 2 freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.
Reforming the multilateral decision-making mechanism of the WTO: what is the role of emerging economies?
12 March 2014
North West University

Saurombe, Amos;Nkabinde, Happy Ignacious Vusi

The paper focuses on the future of global economic governance in the light of the current state of multilateral trade negotiations. The aim is to analyse identified key historical issues at the heart of the decision-making system of the World Trade Organization (WTO). The current and ongoing Doha Round of trade negotiations and the multilateral system reflect inequalities that still prevail in the global trade architecture. Is there a need for a paradigm shift? The paper will provide recommendations on how reform of the multilateral decision-making structures should focus on promoting the interests of developing countries that have historically been marginalised. Developing countries, like those making up BRICS, stand ready to contribute to the construction of a new international architecture, to bring the voices of the south together on global issues and to deepen their ties in various areas.
Why indigenous knowledges in the 21st Century? A decolonial turn.
28 July 2014
North West University

Ndlovu, Morgan

Never in the history of knowledge production in the age of Western-centred modernity has the idea of indigenous knowledges been as important to the imagination of the future of the world as in the 21st century. This is mainly because the 21st century is a period in which the current hegemonic Western ways of knowing, imagining and seeing the world have proved to be inefficient in providing solutions to many of the global challenges that they have caused. This failure by the Western knowledge production system to provide lasting solutions to the most pressing challenges of the 21st century that it has caused, such as the global financial crisis, conflict and climate change, has led to the emergence of the question of whether a different model of the world outside the Western-centred one can be imagined. This article is a decolonial critique of the popular but controversial subject of indigenous knowledges in the 21st century. The article argues that the idea of indigenous knowledges can serve as a basis on which another world outside the present Western-centric one can be imagined.
Skills training through hands-on practical activities in civil technology – a case study of three technical schools in South Africa
17 December 2014
North West University

Maeko, Mogale S A;Makgato, Moses

Skills training for Civil Technology learners in South African schools, is an aspect entrenched in the Civil Technology policy document in order to produce skilled personnel for a sustainable economy. Practical activities through the Practical Assessment Task (PAT) are national requirements for all practical-based subjects from grades 10–12 in South African schools. The purpose of this study was to investigate the status of Civil Technology practical activities in three South African schools in the Eastern Cape Province. Purposive sampling was used to identify 41 learners and 3 teachers to participate in the study. Questionnaires, semi-structured interviews and observation as data collection methods were instruments used to collect data. The study has found that learners exit grade 12 without basic practical hands-on skills. Civil Technology practical activities were found to be inadequately offered in the three schools investigated. Educators should be well-trained by higher education institutions (HEIs) to conduct practical activities with learners so that these learners are equipped with marketable skills in order to contribute to a sustainable economy after grade 12. Technology teacher education and training should include regular exposure and visits to relevant industries in order for teachers to keep abreast with the latest technological developments. The supply of equipment to schools should be coupled with routine maintenance of the equipment.
Cultural conflicts, dilemmas and disillusionment among the San communities at Platfontein
29 January 2015
North West University

Bahta, G T

This article examines the cultural conflicts, dilemmas and disillusionment among the San communities at Platfontein in the Northern Cape province of South Africa. A critical review of written texts, interviews, observations and focus group discussions with the community knowledge-holders shows that the community’s new Westernised lifestyle in the midst of the capitalist society at Platfontein turns the collective spirit, human relations, mutual reverence, sincerity and self-confidence that existed before their contact with Westernised societies into unusual selfishness, individualism, impiety, dishonesty, greed and disregard for others. The conflict between the communal hunter-gatherer culture and the alien individualist mode of existence has created serious dilemmas and moral conflicts in the community. The Westernised mode of existence has alienated the community from their human nature, their natural environment, their productive chores and their communal life. The community has an undefined, unclear and controversial understanding of their own racial identity. The San refer to the black and white races that have historical relationships with them as Others, which in turn has an Othering effect on the San themselves. The causes of moral and psychological conflicts, identity crises, dilemmas and disillusionment are power relations related to ethnic and racial politics, colonial discourse and identity politics. The researcher recommends that to achieve harmonious relationships with other communities and among themselves, the San need to redefine themselves and other societies that have historical ties with them.
Limiting organisational rights of minority unions: Popcru v Ledwaba 2013 11 BLLR 1137 (LC)
05 February 2015
North West University

Cohen, Tamara

The Labour Relations Act 66 of 1995 unequivocally promotes the policy choice of majoritarianism, in furtherance of orderly collective bargaining and the democratisation of the workplace. The majoritarian model aims to minimise the proliferation of trade unions in a single workplace and to encourage the system of a representative trade union. Section 18(1) of the Labour Relations Act enables majority unions to enter into collective agreements setting thresholds of representivity for the granting of access, stop-order and trade-union leave rights to minority unions. In furtherance of the majoritarian framework, collective agreements concluded between majority unions and employers can be extended to non-parties to the agreement in terms of section 23(1)(d) of the Labour Relations Act provided specified requirements are satisfied. In Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (POPCRU) the Labour Court was required to consider if the collective agreements concluded between the employer and the majority union could be relied upon to prohibit the minority union from securing organisational rights. In so doing, the Labour Court had to reconcile the fundamental principle of freedom of association and the right to fair labour practices (to organise and engage in unfettered collective bargaining) within the context of the majoritarian framework. The Labour Court in POPCRU held that the collective agreement concluded with the majority union must have preference over the organisational rights of minority unions, in keeping with the principle of collective bargaining hierarchy and the legislative framework. This case note argues that, while the finding of the labour court in POPCRU is correct on the facts and is in keeping with the principle of majoritarianism, the legislative model may no longer be suitable within the context of the current socio-economic and political landscape. Strike violence, loss of confidence in existing bargaining structures, and the alienation of vulnerable employees from majority unions has resulted in minority unions taking up the cudgels of frustrated and disempowered employees, as witnessed in the Marikana experience. The note suggests that in the light of the changing dynamics of the collective bargaining environment, it may be time to revisit the majoritarian model.
Contributions of internationalization to psychology: toward a global and inclusive discipline
18 March 2015
North West University

Van de Vijver, Fons J.R.

In this article I define and describe the current state of internationalization in psychology. Internationalization refers here to the approach in which existing or new psychological theories, methods, procedures, or data across cultures are synthesized so as to create a more culture-informed, inclusive, and globally applicable science and profession. This approach is essential to advance psychology beyond its Euro-American context of development and to achieve a more global applicability of its theories and professional procedures. Internationalization already has led to a better integration of cultural aspects in various psychological theories, to more insight into how to deal with methodological aspects of intact group comparisons (such as bias and equivalence), and to the development of guidelines in areas such as test development, test adaptations, ethics codes, and Internet testing. I review systemic and scientific climate factors in psychology that thwart the progress of internationalization, and conclude by suggesting methods of enhancing internationalization, which is essential for developing a truly universal psychology
The impact of Global Partnership for Development (Goal Number 8) in achieving the Millennium Development Goals in Africa
13 April 2015
North West University

Vyas-Doorgapersad, Shikha

In 2000, the United Nations (UN) made a Millennium Declaration that commits governments across the globe to develop the lives of the people by 2015. This declaration is known as Millennium Development Goals (MDGs). This paper will examine the role that every government has to play in achieving the goals by focusing on Goal number 8, which encourages global partnerships for development. It will interrogate the agreements that respective countries enter into in the quest to achieve the MDGs and what these agreements mean. There are only five years left for the MDGs to be met. This paper will reflect on the progress of Africa and its agreements on a country level to achieve the MDGs; evaluate the agreements that each country enters into with another country; and discuss the level of beneficiation each country has on the other for the development of each country.
Caregivers' experiences of the South African judicial system after the reporting of child sexual abuse
04 May 2015
North West University

Paulsen, Nicole;Wilson, Lizane

Child sexual abuse (CSA) is found to occur in alarming proportions worldwide. In South Africa, children represent almost half of the victims of known sexual abuse, and this is becoming a great concern even being described as silent epidemic. This research study serves as a qualitative exploration of caregivers' experiences of the South African judicial system after CSA has been reported. For the purpose of this study, the researcher used a descriptive qualitative research design so as to thoroughly describe the caregivers' experiences. From the empirical findings and the literature the researcher concluded that there is a general sense that CSA investigations are poorly conducted. The empirical findings indicated that caregivers of child victims of sexual abuse and their children have experienced great frustration when dealing with the judicial system after CSA had been reported. These frustrations were due to the investigation of CSA cases, the court process, and the lack of communication from prosecutors and other professionals in the judicial system. The findings are recommended to be used to inform and raise the awareness of social workers and other role-players working in the field of CSA about caregivers' experiences with the South African judicial system after CSA has been reported.
Selected legal challenges relating to the military use of outer space, with specific reference to Article IV of the outer space treaty
12 January 2016
North West University

Ferreira-Snyman, Anél

Since the end of the Second World War the potential use of outer space for military purposes persisted to be intrinsically linked to the development of space technology and space flight. The launch of the first artificial satellite, Sputnik 1, by the USSR in 1957 made Western states realise that a surprise attack from space was a real possibility, resulting in the so-called "space-race" between the USA and the USSR. During the Cold War space activities were intrinsically linked to the political objectives, priorities and national security concerns of the USA and the Soviet Union. After the Cold War the political relevance and benefits of space continued to be recognised by states. In view of the recent emergence of new major space powers such as China, the focus has again shifted to the military use of outer space and the potential that a state with advanced space technology may use it for military purposes in order to dominate other states. Article IV of the Outer Space Treaty prohibits the installation of nuclear weapons and weapons of mass destruction in outer space and determines that the moon and other celestial bodies shall be used for peaceful purposes only. Due to the dual-use character of many space assets, the distinction between military and non-military uses of outer space is becoming increasingly blurred. This article discusses a number of legal challenges presented by article IV of the Outer Space Treaty, relating specifically to the term peaceful, the distinction between the terms militarisation and weaponisation and the nature of a space weapon. It is concluded that article IV is in many respects outdated and that it cannot address the current legal issues relating to the military use of outer space. The legal vacuum in this area may have grave consequences not only for maintaining peace and security in outer space, but also on earth. Consequently, an international dialogue on the military uses of outer space should be facilitated under the auspices of the UNCOPUOS to address these uncertainties as a matter of urgency. Although it is agreed with the proponents of a hard law approach that a legally binding instrument should be adopted to regulate the military use of outer space, it is submitted that, as an interim measure, soft law guidelines should be developed to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use of outer space.
A comparison between centre-based and expedition-based (wilderness) adventure experiential learning regarding group effectiveness: a mixed methodology
17 February 2016
North West University

Greffrath, Gustav;Meyer, Charlé Du P.;Strydom, Herman;Ellis, Suria

The purpose of this study was to compare the effectiveness of a centre-based adventure program with an expedition-based wilderness program with regard to group effectiveness. For comparisons, this study made use of a crossover experimental design combined with a mixed-method approach. Participants were 28 third-year students (14 men and 14 women), aged 20-23 years (21.6±0.7) of the North-West University. Both quantitative and qualitative instruments were used to gather the data. The results indicated medium (d=0.5) to practically significant (d≥0.8) differences mostly in favour of the centre-based adventure program (communication abilities, productiveness and competition within the group). Only ‘group morale’ was in favour of the expedition-based wilderness program, which showed a medium effect (d=0.5). A significant sequence effect in favour of first attending the centre-based adventure program and thereafter the expedition-based wilderness program was documented, which led to the conclusion that the two programs should be used in combination. Although both programs were rated very efficient for the improvement of group effectiveness, it is strongly recommended that a centre-based adventure program be used – mainly on account of active involvement, intensive social interaction and continuous group discussions
Primitive terms and the limits of conceptual understanding
07 March 2016
North West University

Strauss, Danie

Ignoring primitive terms leads to an infinite regress. The alternative is to account for an intuitive understanding (immediate insight) into the meaning of such terms. The current investigation proceeds on the basis of an idea of the structure of the various modes of being (modi/modalities) within which concrete (natural and social) entities function. Examples of primtive terms are given from disciplines such as mathematics, physics and logic and they are related to the general idea of a modal aspect. It is argued that primitive terms are not isolated but reveal their meaning only through their interconnections with other primitive terms that are embedded in other modal aspects. However, although primitive terms are found within the various aspects, the meaning of an aspect only comes to expression through its coherence with other aspects, evinced in modal analogies that are qualified by the core meaning of an aspect. There appears to be two options, either reduce what is irreducible or merely provide (partial) synonymous terms for given primitives. The former happens when other unique (primitive) terms are used to define a specific one and the latter when the attempted ‘definitions’ revert to terms with which the original terms could be meaningfully replaced. It is been pointed out that the coherence between primitives invites every academic discipline to account for the meaning attached to the analogies of primitive terms it is employing, without exploring this additional theme any further
Investigating the appropriateness of the theory of organisational knowledge creation as a management model for practice-led research
22 April 2016
North West University

Marley, Ian R.

This article explores ways in which current practice of conducting multipractitioner practiceled research projects in the creative disciplines (Graphic Design, History of Art and Creative Writing) at the North-West University, Potchefstroom Campus, may benefit from the application of a specific managerial theory which focuses on knowledge creation. To this end, the concepts propounded in the theory of organisational knowledge creation, as conceptualised by Nonaka and colleagues, are investigated and a number of compatible and complementary aspects shared by this theory and practice-led research are highlighted. Guiding this article was the argument that the conceptualisation of knowledge as a subjective and socially constructed phenomenon is central to both this theory and research mode. Furthermore, I argue that an integration of tacit and explicit knowledge provides for a holistic view of knowledge that would not be possible if one were to view knowledge in reductively scientific terms. Consequently, the transdisciplinary practice-based research project, Transgressions and boundaries of the page is analysed in terms of the socialisation, externalisation, combination and internalisation (SECI) knowledge conversion modes, which are the driving force, facilitating the move from tacit to explicit knowledge by means of social interaction. The aim of the Transgressions and boundaries of the page project was to create an exhibition of artists’ books, which would form the beginning of a knowledge creation cycle. Forty artists were invited to create artists’ books for exhibitions held in Stellenbosch, Potchefstroom and Johannesburg in 2010. Those artists involved were selected from various fields of arts as well as related fields. It is concluded that the utilisation of knowledge management in multipractitioner practice-led research projects such as this one, within the creative disciplines at the North-West University, Potchefstroom Campus, will facilitate a better understanding of knowledge management and will yield more effective knowledge creation in that both tacit and explicit knowledge is utilised optimally
The impact of global partnership for development (Goal number 8) in achieving the millennium development goals in Africa
27 June 2016
North West University

Vyas-Doorgapersad, S.

In 2000, the United Nations (UN) made a Millennium Declaration that commits governments across the globe to develop the lives of the people by 2015. This declaration is known as Millennium Development Goals (MDGs). This paper will examine the role that every government has to play in achieving the goals by focusing on Goal number 8, which encourages global partnerships for development. It will interrogate the agreements that respective countries enter into in the quest to achieve the MDGs and what these agreements mean. There are only five years left for the MDGs to be met. This paper will refl ect on the progress of Africa and its agreements on a country level to achieve the MDGs; evaluate the agreements that each country enters into with another country; and discuss the level of benefi ciation each country has on the other for the development of each country
Community-researcher liaisons: the Pathways to Resilience Project advisory panel
29 June 2016
North West University

Theron, Linda C.

The Pathways to Resilience Project is an ongoing, community-based participatory research (CBPR) project. Its express focus is the exploration of how at-risk youths use formal services and/or informal, naturally occurring resources to beat the odds that have been stacked against them, with the intent of partnering with communities to promote youth resilience. As part of this exploration, project researchers partnered with representatives of participating communities, or advisory panels (AP). However, in literature documenting the worth of participatory methodologies in knowledge generation and social change, there is little mention of how partnerships with AP support communities build on existing knowledge to effect meaningful change. Therefore, the aim of this article is to report the instrumental case study of the AP to the South African Pathways to Resilience Project, between 2008 and the present, in order to foreground the research-informing, knowledge-generating, and practice-shaping value of collaboration with an AP. Simultaneously, this case showcases the complexity of AP-researcher partnerships in order to sensitise CBPR researchers to the need for reflexive, flexible cooperations if communities are to cogenerate and implement local knowledge in enabling ways
Implementing a programme for coping with stigma for women whose partners died of AIDS: a case study
06 July 2016
North West University

Manyedi, M.E.;Greeff, M.;Koen, M.P.

The purpose of this research was to develop a programme to help women whose partners died of AIDS to cope with stigma. Having experienced severe stigmatisation these women used mostly ineffective problem-focused strategies and limited emotion-focused strategies. Due to their difficulty in coping there was a need to develop a programme to assist them to cope with the stigma of having lost a partner to AIDS, as well as being HIV positive themselves. The programme was developed, implemented and evaluated by means of a holistic multiple case design with a sample of four women. Data were collected by means of multiple sources from transcripts of the eight sessions, naïve sketches by participants, as well as field notes from observations of individuals and of the group. Data analysis was done according to the case record method. The conclusions about the impact of the programme were that it had a positive impact based on the fact that these women grew from being lonely, reserved, having negative self perceptions, to being open about their HIV status, sharing their problems related to stigma, seeking support, being altruistic by advocating for assistance of other women in the same situation, as well as suggesting the establishment of a home-based care facility where they can assist in caring for others
Employers' statutory vicarious liability in terms of the protection of Personal Information Act
27 July 2016
North West University

Millard, Daleen;Bascerano, Eugene Gustav

A person whose privacy has been infringed upon through the unlawful, culpable processing of his or her personal information can sue the infringer's employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (a "data subject") whose privacy has been infringed upon with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for the processing of the personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term "responsible party" is undoubtedly a synonym for "employer" in this context. By holding an employer accountable for its employees' unlawful processing of a data subject's personal information, POPI creates a form of statutory vicarious liability. Since the defences available to an employer at common law and developed by case law differ from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act perhaps takes matters too far. This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is too harsh, the defences contained in section 99(2) of POPI are further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes.
Simple forms and invariant subspaces of H-expansive matrices
02 September 2016
North West University

Fourie, J.H.;Groenewald, G.J.;Janse van Rensburg, D.B.;Ran, A.C.M.

In this paper we consider a simple form for pairs of matrices (A,H)(A,H), where H is a real symmetric invertible matrix, and A is a real H -expansive matrix, that is, ATHA−HATHA−H is positive semidefinite. For such pairs we use the simple form to give an explicit construction of real A-invariant maximal H-semidefinite subspaces
Appraising the value of independent EIA follow-up verifiers
12 September 2016
North West University

Wessels, Jan-Albert;Retief, Francois;Morrison-Saunders, Angus

Independent Environmental Impact Assessment (EIA) follow-up verifiers such as monitoring agencies, checkers, supervisors and control officers are active on various construction sites across the world. There are, however, differing views on the value that these verifiers add and very limited learning in EIA has been drawn from independent verifiers. This paper aims to appraise how and to what extent independent EIA follow-up verifiers add value in major construction projects in the developing country context of South Africa. A framework for appraising the role of independent verifiers was established and four South African case studies were examined through a mixture of site visits, project document analysis, and interviews. Appraisal results were documented in the performance areas of: planning, doing, checking, acting, public participating and integration with other programs. The results indicate that independent verifiers add most value to major construction projects when involved with screening EIA requirements of new projects, allocation of financial and human resources, checking legal compliance, influencing implementation, reporting conformance results, community and stakeholder engagement, integration with self-responsibility programs such as environmental management systems (EMS), and controlling records. It was apparent that verifiers could be more creatively utilized in pre-construction preparation, providing feedback of knowledge into assessment of new projects, giving input to the planning and design phase of projects, and performance evaluation. The study confirms the benefits of proponent and regulator follow-up, specifically in having independent verifiers that disclose information, facilitate discussion among stakeholders, are adaptable and proactive, aid in the integration of EIA with other programs, and instill trust in EIA enforcement by conformance evaluation. Overall, the study provides insight on how to harness the learning opportunities arising from EIA follow-up through the appointment of independent verifiers
An analysis of climate change, poverty and human security in South Africa
21 October 2016
North West University

Chikulo, Bornwell Chishala

In South Africa, climate change mitigation poses significant challenges to the South African Government because it has to juggle the climate change imperatives , with the critical issues of poverty and human security, as well as a host of daunting development challenges inherited from the Apartheid regime. This paper utilizes a qualitative methodology to collect and analyse data on climate change, poverty and human security nexus in South Africa. It outlines the development challenges and development policy responses targeting poverty and human security. The analysis of the causes and effects, as well as the impact of climate change, is followed by a discussion of the delivery of basic social services and the resultant public disaffection leading to violent service protests. A significant proportion of South Africans, especially the poor, have to contend with poverty, a lack of basic social services and unemployment which are being compounded by climate change. The final section of the paper argues that despite significant service delivery milestones, little progress has been made on the central objective of reducing poverty and inequality. Consequently, although a lot has been achieved in terms of the legislation, policies, programmes, and provision of basic services for the poor, the challenge facing the South African Government is how to link the objectives of poverty alleviation policy with those of climate change and human security priorities within a sustainable development framework. The paper recommends that in order to reduce poverty and increase the poor people’s capacity to adapt or respond to climate change the government will need to: firstly , mainstream or integrate climate change adaptation with sustainable development policies; and secondly, improve the capacity of local authorities to effectively deliver services to their communities . This paper has been motivated by the explosion of service delivery protests around the country, which have become violent and increasingly xenophobic resulting in attacks on African nationals and foreign –owned small businesses in the townships and informal settlements.
United Nations Security Council reform and the dilemmas of African continental integration
25 October 2016
North West University

Maseng, Jonathan Oshupeng;Lekaba, Frank

This article analyses the disunity among African states in terms of United Nations Security Council (UNSC) reform, and attributes it to the contest between South Africa and Nigeria. These two countries have been locked in a hegemonic contest for continental domination. To this end, the article notes that African unity, not in terms of protocol but on the basis of principles and cooperation, is sacrosanct in order for the African Union to make a significant contribution to the reform of the UNSC. It is asserted that the contest between South Africa and Nigeria has been symbolised by the continental leadership aspirations of the heads of state of both countries, and recommends that it be tamed through forging diplomatic and strategic partnerships between the ruling parties of these two countries. The influence of external actors on the African countries, particularly that of France, is underscored as a contributing factor in stalling the debate on the UNSC reform. It recommends that South Africa use its strategic partnership within the association of Brazil, Russia, India, China and South Africa (BRICS), particularly Russia and China as permanent members of the UNSC, to influence the realisation of the reform debate.
An overview analysis of selected challenges in the enforcement of the prohibition of insider trading and market manipulation in the European Union and South African regulatory frameworks
03 November 2016
North West University

Chitimira, Howard

It is submitted that cross-border trading in securities has caused a great number of challenges for various national regulators, especially with regard to the enforcement of market abuse laws. For instance, cross-border trading in securities has exacerbated the commission of other related illicit trading practices, such as, high frequency trading, credit default swaps, short selling and front running, particularly during the 2008-2009 global financial crises. Moreover, cross-border trading in securities has, to some extent, given rise to the inconsistent application and enforcement of the market abuse prohibition in South Africa and other European Union (EU) Member States. Accordingly, the need for strong co-operation and co-ordination between such regulators is still crucial and inevitable for the purposes of combatting market abuse in the EU and other jurisdictions, such as, South Africa. It is against this background that some selected national regulators and/or role players in the enforcement of the market abuse prohibition in South Africa, such as, the Financial Services Board (FSB), the Directorate of Market Abuse (DMA) and the Enforcement Committee as well as the EU’s Committee, of the Wise Men, the Forum of European Securities Commissions (FESCO), the Committee of European Securities Commissions Regulators (CESR), the European Securities and Markets Authority (ESMA), the Lamfalussy Process and the EU’s Action Plan for Financial Services, will be discussed. This is mainly done to isolate and expose the challenges and/or flaws in the enforcement of market abuse laws in both the EU and South Africa8 in order to recommend, where applicable, possible anti-market abuse measures that could be employed to enhance the curbing of market abuse activities in their respective jurisdictions. Thereafter, some concluding remarks will be provided
Financial guarantees and public debt in South Africa
04 October 2017
North West University

Miruka, Ogutu;Mah, Gisele;Nchake, Mamello A.

A few years since the worst of the Euro sovereign debt crisis, many nations, from Cyprus to Ireland, including South Africa are re-visiting their public debt management to avert or lessen the impact of similar such happenings in the future. There are a number of studies on risk assessments of fiscal sustainability; however, few focus on contingent liabilities and even fewer on financial guarantees. In South Africa, financial guarantees have consistently comprised just above or below 50% of all contingent liabilities since the early days of majoritarian rule. In lieu of this, the paper analyses the risks posed by financial guarantees to fiscal sustainability in South Africa. We estimate the effect of financial guarantees on public debt in South Africa via the Engle Granger and causality model with quarterly time series data obtained from the South African Reserve Bank (SARB) as well as the National Treasury. The data covers the April 1997 to December 2011 period. All econometric methods were executed using the statistical software package E-Views 7. We found that no long run relationship exists between national net loan debt and financial guarantees in South Africa. The pass rate of financial guarantees significantly affects its present value. The pass rate of financial guarantees has a predicting ability in determining the present value of national net loan debt. These findings may be contrary to what would be expected in the case of South Africa considering that the country is managing the issuance of financial guarantees prudently and that at present levels, there is no need for a radical policy shift. The study therefore offers a lesson to similar merging economies on the good governance of contingent liabilities.
The Right to Just Administrative Action in the Context of Suspending the Payment of Disputed Tax
16 April 2018
North West University

de Lange, S;van Wyk, D

Section 164(3) of the Tax Administration Act 28 of 2011 (hereafter TAA) provides a senior South African Revenue Service official (hereafter, respectively, SARS and senior SARS official) with discretionary powers to suspend the payment of disputed tax or a portion thereof, having regard to relevant factors, if the taxpayer intends to dispute the liability to pay such tax. Making a decision in terms of section 164(3) of the TAA constitutes administrative action. Section 33(1) of the Constitution of the Republic of South Africa, 1996 (hereafter Constitution) grants everyone the right to just administrative action that is lawful, reasonable and procedurally fair and the Promotion of Administrative Action Act 3 of 2000 (hereafter PAJA) was promulgated to give effect to this right. The objective of this article is to apply the right to just administrative action to the manner in which the decision in terms of section 164(3) of the TAA is taken. This is achieved by adopting an explanatory research approach and performing a literature review of the process in terms of section 164(3) of the TAA and the constitutional obligations in terms of section 33 of the Constitution as given effect to in PAJA. As the decision taken by the senior SARS official is influenced directly by the right to just administrative action, it should be taken in a lawful, reasonable and procedurally fair manner to ensure compliance with the Constitution and PAJA. For the decision to be taken in a lawful manner, the senior SARS official must at least be authorised to exercise the discretion in terms of the TAA and comply with the procedures and conditions stated in section 164(3) of the TAA. For the decision to be considered reasonable, the decision must be, at the minimum, rational and proportional, and to ensure that the decision is taken procedurally fair, SARS should comply with at least the relevant compulsory elements in terms of section 3(2)(b) of PAJA. A decision in terms of section 164(3) of the TAA which fails to meet the requirements of lawfulness, reasonableness and/or procedural fairness will be subject to review on several grounds listed in section 6(2) of PAJA.
Diversity of participant representation within the 66th Lindau Nobel Laureate Meeting
17 April 2018
North West University

Ndlovu, Sphumelele C.;Engelbrecht, Nicholas E.;Marais, Adriana;Shabangu, Promise T.;Noto, Luyanda L.

The 66th Lindau Nobel Laureate Meeting (LiNo16) was dedicated to the field of physics. A total of 29 Nobel Laureates, 1 A.M. Turing Award recipient and 400 young scientists attended LiNo16 in Lindau, Germany. Young scientists from 80 countries attended the meeting. Out of the 400 young scientists at the meeting, only 30% were women scientists, and only one of the Nobel Laureate attendees was a woman. Natural sciences have often been dominated by a single stereotype: white men from predominantly Western or developed countries. Although a lot is being done to increase human capacity in the sciences in the less developed and developing world, it has become apparent that there is a persistent lack of diversity in the sciences.1,2 Extensive studies have also revealed that the rate of participation of women and minority groups in science, technology, engineering and mathematics (STEM) is significantly lower than the representation of women and minorities in society at large. As a strategy to improve women and minority representation, more countries are encouraging the involvement of these groups in science from a young age – a strategy which is the norm in many developed countries and which has been shown to have a positive correlation with high representativity of women and minority groups. It is evident that global scientific collaborations encourage unity and inclusion regardless of power, race, beliefs and gender.3,4 It has become imperative for society to be well capacitated in order to deal with global issues. The exclusion of certain groups based on gender and race, among other factors, means the game is played with less than half of the team. Diversity should be the basis for increased collaboration and not grounds for marginalisation. Nowotny et al.5 describe diversity as a prominent theme in science and technology to determine technical processes, economic systems and social structures. Since 1951, 350 Nobel Laureates have committed to the exchange among scientists with the aim of fostering education, inspiration and connection,6 leveraging on diversity for increased scientific output as a result of collaboration and sharing of best practice experiences. This initiative, which is realised through annual meetings, has fostered and increased exchange amongst young scientists within their respective fields by exposure to a diversity of thinkers and new ideas. The meetings have encouraged global engagement on the unprecedented scale of the global problems we face today. Furthermore, the meetings enable the exploration and encouragement of the scientific diversity that lies in the world and the potential for addressing global issues. We analysed diversity in terms of representation of gender and countries of origin at the 66th Lindau Nobel Laureate Meeting. Additionally, we ponder here on the lessons that came with the meeting. It is expected that our analysis will help to sensitise, motivate and improve the number of women and underrepresented regions with respect to participation in STEM meetings and forums. A diversity of attendees ensures a balanced benefit from the lessons that are acquired during such meetings. Through diversity, we believe that current scientific global challenges can be re-evaluated and innovations towards solutions developed more objectively, independent of gender, beliefs and race bias
An assessment of the relationship between foreign trade and economic performance: empirical evidence from South Africa
13 June 2018
North West University

Ogbokor, C.A.;Meyer, D.F.

The driving objective of the study was to estimate the impact of foreign trade on economic performance using the economy of South Africa as a test site. The study contributes to the empirical literature by testing for a long-run relationship between foreign trade and economic performance in South Africa by employing quarterly data stretching from the period 1995Q1 to 2015Q4. The method of vector autoregression (VAR) was employed. Variables included in the study consisted of real GDP, exports, openness of the economy and exchange rate. The study found cointegrating relationships among the variables investigated, and that export was found to contribute more towards economic performance compared to openness of the economy and exchange rates. When it came to Granger-causality analysis, the study found a number of unidirectional relationships between the pairs of variables examined in the model. For example, it was found that economic growth granger causes exports and also openness of the economy granger causes exports. The forecast error variance decomposition suggests that economic performance itself accounted for most of the innovations that ensued during the 10-period forecast horizon employed in the analysis. Policymakers could utilize the results of this study, when it comes to policy formulation and design for the economy of South Africa. The findings of the research could be used to improve upon economic policy for South Africa and other developing countries on a similar path. The study creates opportunities for further research endeavours concerning the issue under investigation so as to unveil more evidence on the nature of the relationship between foreign trade and economic performance in the economy of South Africa.
Decolonising the higher education curriculum : an analysis of African intellectual readiness to break the chains of a colonial caged mentality
19 October 2022
North West University

Nyoni, Jabulani

Background: Forging ‘new’ decolonial education curriculum policy reform with ill-conceived intents may lead to both socio-political and economic pathologies and failure. Aim: The aim of the social sciences meta synthesis done was to consolidate gathered evidence from published scientific articles on decolonial curriculum reform policies. It was critical during the process of synthesising to acknowledge the fact that Africans continue to experience multifaceted socio-political and economic shifts of being as influenced by a variety of global ideologies. Concerted decolonial efforts should be made to manage these matrices of material social constructs such that the contamination and decapitation of true African educational curricula, identities, cultures, values, ethos and principles are curtailed. Setting: The critical exploration of meta-data underpinned by a critical-dialectical perspective attempted to dig beneath the impact of coloniality of power on the conscious mind of an African intellectual. The critical social research analyses how the African colonised mind can effectively decolonise African university curriculum given their colonially captured mind. Method: An extensive search, guided by selected key words, yielded about 35 articles on decolonisation but were trimmed down to 15 as determined by my main focus thus: decolonial curriculum reform in post-colonial nation states. Results: Findings indicate that African scholars, political pundits and researchers tend to rely on the mentally embedded notion of caged colonial mentality (CCM) in advocating for decolonial curriculum reform, with little regard for the multifaceted seismic shifts that impact on the socio-politico-education life of post-colonial African existential Beings. Conclusion: I strongly advocate for the dismantling of systemic CCM and embrace those seismic shifts that incorporate contemporary decolonial projects when crafting the architecture for decolonial curriculum designs that build on appropriate knowledge, competences, skills, values, beliefs and practices from around the globe to buttress multiplicities of identities, while nevertheless retaining Africa’s interests at the centre.
Teacher training for religious education : engaging academics through the Dialogical Self Theory
19 October 2022
North West University

Bakker, Cok;Ter Avest, Ina

Background: In the Netherlands, most of the academic curricula for teacher training in religious education (RE) focus on shortfalls of students, like a lack of knowledge about the plurality of worldviews and the diversity in interpretations of the Christian tradition. In our research project, the focus is not on the students, but on the university professors and lecturers who teach the subject of RE: professors and lecturers who train and educate students to teach RE. Aim: The main aim of the project was to gain a better insight into the inherent complexity of the professionalism of academics, that is, their own positionality in the plurality of the Roman Catholic traditions they adhere to in relation to their capabilities and commitment to the current curriculum – the ‘old’ one – and the new curriculum to be developed, in the context of the Dutch plural society. Setting: Respondents in this research were university professors and lecturers of the Teacher Training Institute of Tilburg University, located at Utrecht, the Netherlands. Methods: For this investigation, we used a research instrument based on the dialogical self theory and its self confrontation method for organisations to gain insight into professionals’ own and their colleagues’ positionality regarding teaching RE. Results: Preliminary results show that the self confrontation method for organisations has shown itself to be a challenging instrument to invite academics involved in the process of data construction and data analysis. Conclusion: Based on these results, we recommend to include the research population in a validation process to increase the sustainability of the results and to maximise engagement in the implementation phase of the new curriculum.
TRADITIONAL APPROACHES AND LEADERSHIP PERSPECTIVES ON SUSTAINABLE ENVIRONMENTAL CONSERVATION PRACTICES IN AFRICA
21 November 2022
North West University

Saurombe, Hazvineyi;Du Plessis, Yvonne;Saurombe, Talkmore

Environmental sustainability has become a priority agenda globally, with World bodies such as the UN, UNESCO and World Bank encouraging environmental restoration with various incentives for all nations (UNCTAD, 2019; Kiran, 2015). The Sustainable Development Goals (SDGs) agreed at the Rio+20 UN Conference on Sustainable Development refl ect the linkages between poverty reduction, natural resource management and development, as well as local and global environmental challenges to collectively manage shared global environmental risks and to build resilience across all types of countries to contribute to inclusive and sustainable development, taking into account complex issues such as the interactions between food, water and energy security (OECD, 2015).Environmental sustainability is not a new subject, but rather, as stated by Field Museum, (2019); communities and early civilisations’ understanding of sustainability traces to the distant past and links with the Zhou dynasty in China (1100-171), as well as the Egyptian, Mesopotamian Greeks and Romans (Du Pisani, 2006). It is notable that the most serious problems facing the world today, such as water and food supply crises, extreme volatility in energy and food prices, rising greenhouse gas emissions, severe income disparity, chronic fi scal imbalances and terrorism (World Economic Forum, 2012) either stem from environmental mismanagement or inequality, or both (OECD, 2012). This demands the need for the implementation of the Green Growth Development agenda (African Development Bank, 2012) in which sustainable development projects are supported on the African continent. According to the AfDB (2013: 60),“Africa should seize opportunities for greener, more sustainable growth to become more resilient in the face of climate change. By incorporating green principles in development plans, African countries will extend access to water, energy and transport, boost agricultural productivity and create new jobs and expertise; they will also build sustainable cities and develop their natural resources while reducing waste
The impact of colonial and contemporary land policies on climate change adaptation in Zimbabwe’s communal areas
27 April 2023
North West University

Maganga, Trymore;Suso, Catherine Conrad

The main aim of this article was to examine the impact of colonial and contemporary development policies on climate change adaptation among communal farmers in Zimbabwe. As such, the objective was to document and better understand how the legacy of colonialism, coupled with the current climate change impacts is making adaptation a serious challenge for farmers in particular regions of the country. This study was conducted in Zimbabwe’s Buhera Rural District (Ward 30) and Chipinge Rural District (Ward 11). Data collection involved the use of individual household interviews, with the use of a snowball sampling method, focus group discussions, key informant interviews and direct observation in the field. It was found that the lack of income diversity opportunities has further exposed several livelihoods to climate change and compromised their abilities to respond and recover under periods of climatic stress. It was ascertained that the adaptation challenges experienced by African farmers were brought about by the colonial land system that evicted them from their customary lands and allocated them land in poor agroecological regions that fail to support production. The authors argue that climate change adaptation challenges in communal areas should be understood from a colonial and historical development perspective that led to the establishment of communal farming zones. There is also a need to understand climate vulnerability in the context of post-independence development strategies that have led to the underdevelopment of peasant agriculture and reduced farmers’ ability to adapt to climate change. Contribution: Climate change adaptation policies should recognise the country’s colonial and historical legacy that has led to poverty and other livelihood challenges in communal areas. By acknowledging this, policymakers are better positioned to understand the structural issues making adaptation difficult, and they could intervene by proposing context-specific adaptation strategies that meet the needs of communal farmers.
A Comparative Analysis of the Approach to the Conformity of a Supporting Statement Calling for Payment Under Demand Guarantees
28 April 2023
North West University

Chivizhe, Tinaye

The core requirement of a demand guarantee is to receive payment through the delivery of documents or a call for payment that meets the requirements of the demand guarantee. The call for payment may be accompanied by a declaration alleging a breach of the underlying agreement or a statement with full particulars of the breach. However, the extent to which the data in the supporting statement or statement of breach must comply with the guarantee requirements is not always entirely clear. Over the years, a strict standard of compliance of the statement with the terms of the guarantee has been employed. This has threatened the commercial use of demand guarantees due to demands for payment being rejected. This article draws upon the approach in resolving the problems related to the conformity of a statement accompanying the call for payment through an analysis of international instruments applicable to demand guarantees (the Uniform Rules for Demand Guarantees (URDG758); the International Standby Practices (ISP98); the United Nations Convention on Independent Guarantees and Standby Letters of Credit (UNCITRAL Convention); the Supreme Court of the People's Republic of China Letter of Credit Rules (Chinese LC Rules); the Provisions of the Supreme People's Court of the People's Republic of China on Several Issues Concerning the Trial of Disputes Over Independent Guarantees (Chinese IGP), the recently issued International Standard Demand Guarantees Practice (ISDGP) and international case law in an attempt to find the most feasible approach for South African law. A supporting statement accompanying a call for payment is conforming if it indicates the event triggering the guarantor's obligation to pay as specified in the demand guarantee. Furthermore, in ascertaining whether a supporting statement is compliant, a technical interpretation of the terms of the guarantee should be avoided in favour of one that advances the common intention and purpose of the guarantee.
Higher education leadership responses applied in two South African comprehensive universities during the COVID-19 pandemic : a critical discourse analysis
02 May 2023
North West University

Kele, Kamvalethu;Mzileni, Pedro

Background: This article explored the leadership responses that were used by two comprehensive universities in South Africa (Nelson Mandela University and University of Johannesburg) during the coronavirus disease 2019 (COVID-19) pandemic in continuing with the rolling out of their teaching and learning programmes safely and digitally under disruptive conditions. Aim: Whilst universities in the developing world such as South Africa were expected to face challenges during the pandemic, this article showed that the leadership executives and general staff in two of its large universities, instead, crafted equitable and flexible improvisations to overcome the social challenges that could have posed a threat to their academic project. Setting: The selection of these two specific universities provided a unique opportunity to engage with comprehensive, massified and post-merger former Technikon-university institutions that mainly cater for working-class students. Methods: The social justice theory was utilised to frame the study, whilst critical narrative analysis was the methodology. Results: This research reveals that South African comprehensive universities possess capacity to adapt and innovate in the middle of an institutional crisis using their flexible systems and agile personnel to drive the academy under such circumstances. The study also reveals that the process of social justice is full of contradictions. As the universities created equitable measures to assist underprivileged students, these measures also generated injustices for others. Conclusion: This generated admirable and productive systematic traits to observe about some of our universities, as the South African higher education sector continued to engage with difficult conversations such as transformation.
An analysis of the 2021 South African FATF mutual evaluation report: terrorist financing and NPOs
04 May 2023
North West University

Bissett, Bernice;Steenkamp, Philip;Aslett, Duane

Purpose – In the aftermath of the 2021 Financial Action Task Force Mutual Evaluation Report, legislators, supervisory bodies, law enforcement and the like are focusing on preventing South Africa from being greylisted. This paper performs an analysis of the 2021 South African Financial Action Task Force (FATF) Mutual Evaluation, specifically Recommendation 8 and Immediate Outcome 10. The purpose of this paper is to address the concerns raised and assist those tasked with implementing remediation measures. Design/methodology/approach – Secondary sources such as legislation, case law, textbooks and peer reviewed publications are used in addressing the concerns. A major focus is placed on the evaluation itself, with an analysis of Recommendation 8 and Immediate Outcome 10. Findings – Despite the non-compliance rating and a low level of effectiveness received regarding non-profit organisations, authorities might not place a large focus on remediating this, as more pertinent issues arise in the report. The lack of focus in this area adds to the likelihood of grey listing by FATF. However, with co operation from the relevant stakeholders, these low ratings can be improved. Originality/value – Since the Mutual Evaluation’s release in October 2021 there have not been any papers addressing the highlighted issues in the non-profit sector in South Africa, to the best of the authors’ knowledge. This paper will be the first of its kind and will be of use to authorities as regards mitigating the concerns raised by FATF.
Two Fallacies About DNA Data Banks for Law Enforcement
01 January 2001
University of Pennsylvania

Kaye, David H.

This commentary on the article Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Data Banks, 67 Brook. L. Rev. 127 (2001), by Mark Rothstein and Sandra Carnahan, argues that the case for confining law enforcement DNA databases to noncoding loci and to samples from individuals convicted of violent crimes is quite weak. It describes alternative approaches, including the possibility of a population-wide database; the privacy implications of the loci now used in forensic identification; the law governing DNA dragnets; and the limits on DNA databases imposed by recent cases on searches and seizures. It notes the importance of addressing issues of racial equality along with privacy concerns in designing DNA databases for law enforcement.
DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage
01 January 2003
University of Pennsylvania

Kaye, David H.;Smith, Michael E.

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at all convicted offenders or at all arrestees. It suggests that such coverage results in sampling DNA disproportionately from racial minorities, which exacerbates racial tensions and undermines the preventative and investigative value of the databases. It argues that a population-wide database with strict privacy protections may supply the better answer to the coverage question, and to the privacy concerns raised by any government program to take and analyze individuals' DNA.Part I discusses two theories that might dictate which offenders should be included in these databases. The first theory holds that by virtue of a conviction, offenders forfeit the Fourth Amendment right to be free from unreasonable searches and seizures. This forfeiture-of-rights theory would confine the databases to convicted offenders, but it cannot be squared with settled constitutional principles. The second theory holds that because convicted offenders are more likely to re-offend than are other groups, they pose a special risk that justifies the incursion on their Fourth Amendment rights. Although this recidivism theory may seem more protective of individual liberties, it fails to constrict coverage to convicted offenders or even to arrestees.Part II considers extensions of coverage to various groups of people who have not been convicted of crimes. It suggests that the Constitution may permit DNA to be collected from persons who have only been arrested, and even from certain groups of persons who have neither been convicted nor arrested.Part III questions the desirability of limiting database coverage to convicted offenders, or to convicted offenders plus arrestees (or "suspects"). It notes that by restricting coverage to these groups, we are fast producing a racially distorted system in which, however lawfully the DNA samples are taken, they are taken disproportionately from members of racial minorities. We conclude that a population-wide database would be more effective and more fair than any system in which conviction or arrest is the threshold for database inclusion. We also indicate how such a system can be structured to protect personal privacy.
The Evolution of Chinese Merger Notification Guidelines: A Work in Progress Integrating Global Consensus and Domestic Imperatives
01 January 2009
University of Pennsylvania

Farmer, Susan Beth

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption. This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; after an introduction, part two analyzes the AML with respect to mergers, part three examines predecessor pre-merger notification guidelines for foreign acquisitions and the "legislative history" of the AML pre-merger notification thresholds, which went through successive drafts and significant amendments between March and August, 2008. Part four addresses international benchmarking, raises unanswered questions and issues, and part five concludes. A variety of international organizations advocate strong national competition policy and use the substance and deployment of national antitrust law to evaluate a jurisdiction's economic regulation. With the adoption of the AML, China joined a growing number of states that have adopted comprehensive competition laws, but the test of the AML will be in its application. The challenges facing new enforcement agencies are vast: organizational, establishing enforcement procedures that comport with the existing Chinese legal system, allocating appropriate functions to three entities and coordinating process and substance, and, finally, establishing policies and priorities. Given the choice of where to begin enforcement, an agency should weigh the destructiveness of the restraint, importance and ability to enforce, and its own proficiency or readiness to enforce the particular category of violations. China chose to promulgate its first set of AML Guidelines on the subject of pre-merger notification. In a different system, pre-merger notification and enforcement may not be an obvious first step for a new competition agency implementing a new antitrust law. On the one hand, since the AML itself requires pre-merger notification but does not provide sufficient information to comply, Guidelines are needed. On the other hand, the relevant enforcement agency could have paced its enforcement of mergers. In addition, the enforcement mechanism in China will involve three different government ministries, each responsible for enforcing different segments of the AML. The SAIC, the State Administration of Industry and Commerce, will be responsible for enforcing the provisions against abuse of dominant positions, the NDRC, National Development and Reform Commission, will be entrusted with anti-cartel enforcement, and MOFCOM, the Ministry of Commerce, will have jurisdiction over the merger review provisions of the AML. The organizational structure of three entities with separate responsibilities under the AML may complicate the priority-setting process and set up incentives for maximum activity by each as it competes for position. Additionally, given China's rapid economic growth and pace of mergers, including foreign investments, there may have been a felt need to assert enforcement power in this arena early. MOFCOM has already begun to issue additional draft Guidelines and review proposed mergers. Emerging from a lengthy drafting process, the operative agencies appear to be moving with alacrity. Going forward, clarity, transparency and predictability would be recommended in the refinement of the notification procedures and promulgation of substantive merger standards. The AML is indeterminate and judicial interpretation is unavailable, so a clear articulation of the appropriate methodology and controlling legal standard is an unfinished project. Retrospectively, the experience of the AML and Guideline process has revealed notable receptivity to international commentary on the substance and procedures of merger review. The now-adopted Notification Guidelines went through several public drafts and comments were affirmatively solicited from "all sectors of society" including domestic and foreign scholars and lawyers. Viewing the various official drafts and public comments suggests that some of the recommendations were taken on board. Additionally, the solicitation itself refers to the consensus-based international benchmarks of the ICN and asserts consistency with international standards. The application of the AML, Notification Guidelines and additional Guidelines continues to be a work in progress.
Rounding Up the Usual Suspects: A Logical and Legal Analysis of DNA Trawling Cases
01 January 2009
University of Pennsylvania

Kaye, David H.

Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a crime. Arguing that there is no generally accepted scientific opinion on how the probative value of a match from a database trawl should be quantified, some of these defendants have moved to exclude the DNA evidence. Trial courts have ruled both ways. Appellate courts in California and the District of Columbia have rebuffed these challenges, reasoning that the general-acceptance standard for scientific evidence does not apply in this situation. Furthermore, they have held that even though the defendant was not selected randomly, the jury can be given the usual probability that a randomly selected individual will match a crime-scene sample. This Article criticizes the reasoning (but not the outcome) in these opinions. It argues that the attempts to avoid directly confronting the debate among scientists and statisticians rob the opinions of any persuasive value. Elaborating on earlier statistical analyses of the database-trawl question, it presents a more satisfactory rationale for admitting the unadjusted random-match probability.
Response, the Obama Administration, In Defense of DACA, Deferred Action, and the DREAM Act
01 January 2012
University of Pennsylvania

Wadhia, Shoba S

This essay responds to “The Obama Administration, the DREAM Act and the Take Care Clause” by Robert J. Delahunty and John C. Yoo. Though I credit Yoo and Delahunty for considering the relationship between the DACA program and the President’s duties under the “Take Care” clause, they miss the mark in at least three ways: 1) Contrary to ignoring immigration enforcement, the Obama Administration has executed the immigration laws faithfully and forcefully; 2) Far from being a new policy that undercuts statutory law, prosecutorial discretion actions like DACA have been pursued by other presidents, and part of the immigration system for at least 35 years; 3) Despite the unsurprising fact that some people who could qualify for the congressionally-created DREAM Act possess the kinds of equities that make them attractive for a prosecutorial discretion program like DACA, it is simply inaccurate to equate the limbo status offered with a grant under DACA to the secure status that attaches to those eligible under the congressional solution known as the DREAM Act. These three points are analyzed in greater detail in this essay. While the DACA program “feels” like something more or greater in scope than previous acts of prosecutorial discretion, the authority being exercised by the agency is no greater or different. It is dangerous to argue that the potential size of the class that stands to benefit from DACA or the greater transparency somehow makes the DACA program legally unsound or different. Conceivably, a future Administration could place a cap on the number of applications that can be approved under DACA but this is a policy question, not a constitutional one.
Enforcing Integrity
01 January 2012
University of Pennsylvania

Copeland, Katrice Bridges

Over the past several years, the marketing practices of large pharmaceutical companies have come under intense scrutiny. The government spends years investigating and building cases against pharmaceutical manufacturers that engage in illegal promotional activities to promote their drugs but does not prosecute them. Instead, the government enters into Corporate Integrity Agreements (CIAs) with the pharmaceutical giants. As a result, the pharmaceutical manufacturers are able to avoid the collateral consequences of conviction, such as exclusion from Medicare and Medicaid. Participation in Medicare and Medicaid is crucial for a pharmaceutical manufacturer because the government spends over $60 Billion per year through those programs on reimbursements for prescription drugs. In return for remaining eligible for Medicare and Medicaid reimbursements for their drugs, the manufacturer pays the government a huge fine and agrees to structural changes to the company designed to prevent future marketing violations. The CIA seems like a reasonable response to the marketing violations until the pharmaceutical company engages in illegal marketing practices while still under the CIA for the previous marketing violation. In those situations, the government remains unwilling to pursue the pharmaceutical manufacturers in court and seek exclusion from Medicare and Medicaid. Rather than pursue exclusion, the government has entered into successive CIAs with pharmaceutical manufacturers and collected additional fines. The government enters into these agreements because exclusion of the manufacturer from participating in Medicare and Medicaid has devastating consequences that spill over to innocent patients, employees, and stockholders. Not only does the impact of the exclusion hit innocent third parties, but its imposition on the manufacturer substantially outweighs the harm the manufacturer inflicts through its improper marketing practices. The penalty for improperly marketing one drug is exclusion of all drugs produced by that manufacturer from Medicare and Medicaid. It is the government’s unwillingness to harm innocent third parties and its reluctance to impose a disproportionate penalty on drug manufacturers that leads them to CIAs. Thus, the problem is not that the government uses CIAs to combat health care fraud; it is that the government lacks penalties of increasing severity to impose when a manufacturer violates an existing CIA. This Article argues that neither the exclusion of manufacturers from Medicare and Medicaid nor the use of Corporate Integrity Agreements coupled with large fines is an effective deterrent for pharmaceutical manufacturers that repeatedly engage in illegal marketing activities to promote their drugs. In particular, it argues that CIAs fail to deter drug manufacturers from engaging in illegal promotional practices because the penalty imposed and the cost of compliance with the CIA are significantly lower than the profits that a pharmaceutical company can obtain by illegally marketing its drugs. Further, the government’s willingness to enter into multiple CIAs with repeat offenders of the marketing rules rather than exclude them from Medicare and Medicaid substantially diminishes the ability of CIAs to deter illegal promotional activities. Finally, this Article argues that there are viable alternatives to be used in place of or in conjunction with CIAs, such as funding clinical trials, compulsory licensing, corporate officer liability, and targeted exclusion, that would be more effective deterrents for repeat offenders. Each of these remedies could be used to increase the severity of punishment when a one-time offender becomes a repeat offender. This Article concludes that these proposed measures would be more successful than CIAs at increasing compliance and enforcing integrity in drug promotion.
From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nations Protect, Respect and Remedy and the Construction of Inter-Systemic Global Governance
01 January 2012
University of Pennsylvania

Backer, Larry Cata

Once upon a time, and for a very short time, there was something that people in authority, and those who manage collective memory, considered a stable system of political and economic organization. It was grounded on a complex division of authority between states, economic entities and social collectives. Contemporary economic globalization has destabilized this traditional system. Corporations are no longer completely controlled by the states that chartered them or within complex enterprises, even by those in which they operate. Social collectives now operate to change the political cultures that affect the public policy of states and the economic behavior of companies. These changes have produced a dynamic state in governance, one which has been characterized as furthering misalignment among governance regimes. These misalignments have the potential to detrimentally affect the welfare of individuals and groups. Over the last decade a number of efforts have been made to offer a new context for stability in the relationships between the political, economic and social orders at the national and international levels. Among the most valuable proposals, one most likely to contribute significantly to the new governance order, has been efforts to elaborate a transnational regulatory framework for transnational corporations and other business enterprises - the United Nations’ 'protect, respect, and remedy' framework. This framework system has been developed to reframe the way in which the political, economic and social governance orders work together. Now reduced to a set of Guiding Principles, this framework seeks inter-systemic harmonization that is socially sustainable, and thus stable. The framework both recognizes and operationalizes emerging governance regimes by combining the traditional focus on the law systems of and between states with the social-systems of non-state actors and the governance effects of policy. This paper critically analyzes the Guiding Principles and its three key parts - the state duty to protect, the corporate responsibility to respect and the access to remedies. Part One provides a short introduction to the problems and issues that led to the movement toward the development of a framework for governance regimes for business and human rights. Part Two then focuses on the development of the Guiding Principles from conception to articulation. Part Three examines the Guiding Principles in detail. The examination starts from the report introducing the Guiding Principles, and then turns to a section-by-section analysis of the Guiding Principles themselves. These serve as a basis for an overall assessment of the Protect, Respect and Remedy framework as a viable, coherent and comprehensive effort to frame a governance regime for business and human rights. The Protect, Respect and Remedy Framework operationalized through the Guiding Principles presents an innovative approach to governance. But its most forward looking and valuable characteristics are also ones that make the project vulnerable - for states there is too great a recognition of the autonomy and power of social-norm systems. The GP framework represents a microcosm of the tectonic shifts in law and governance systems and the organization of human collectives confront the consequences of globalization.
Beyond Hot Spots & Crises in Our Interconnected World
12 April 2012
University of Pennsylvania

nan

Professor Anne-Marie Slaughter, of Princeton University, discusses the impact of global interconnectedness on diplomatic and international security efforts in The Big Picture: Beyond Hot Spots & Crises in Our Interconnected World on March 15, 2012.
Stop the Money, Stop the Attacks: A Categorical Approach to Achieving an International Terrorist Financing Sanction Regime
23 April 2012
University of Pennsylvania

Nguyen, Vietlong

Money allows terrorist organizations to continue their day-to-day operations. Stopping the flow of financial support to terrorist organizations will diminish the intensity and frequency of the attacks and ideally lead to a cessation of such attacks. One country may be able to establish barriers to terrorist financing through government sanctions. These barriers will not stop terrorist financing; but rather, it will divert it to another country. The only way to effectively stop such financing is to implement international standards for terrorist financing sanctions. But as countries differ economically and politically, a solution must accommodate each countries’ unique situation. This comment analyzes the approaches of the United States, Tanzania, and Macau, showing the gaping differences that exist within the international community. By applying the “Willingness to Buy” Theory, this comment offers a solution which coordinates and maximizes participants in the international terrorist financing sanctions regime.
The Balance of Power, Public Goods, and the Lost Art of Grand Strategy: American Policy toward the Persian Gulf and Rising Asia in the 21st Century
27 November 2012
University of Pennsylvania

Leverett, Flynt;Leverett, Hillary Mann

An important driver of relative decline in America’s international standing is the failure of its political elites to define reality-based foreign policy goals and to relate the diplomatic, economic, and military means at Washington’s disposal to realizing them—the essence of “grand strategy.” For several decades, American policy has been pulled in opposite directions by two competing models of grand strategy. In one—the leadership model—America maximizes its international standing by adroitly managing regional and global power balances and promoting the processes of economic liberalization known collectively as globalization. In the second model—the transformation model—America seeks not to manage power balances but to transcend them by becoming a hegemon, in key regions and globally. The chief reason American policy is failing is because, since the Cold War’s end, the transformation model has gained almost complete ascendancy in American political circles. That is problematic because transformationalists reject a lesson that balance of power theorists and foreign policy realists know: while hegemony seems nice in theory, in the real world it is unattainable. Pursuing hegemony is not just quixotic; it is counter-productive for a great power’s strategic position. To arrest its decline, the United States must recover a capacity for sound grand strategy, grounded in the leadership model. This is especially so with respect to two regions where policy efficacy will largely determine America’s standing as a 21st-century great power: the Persian Gulf and rising Asia. Deficiencies in U.S. policy toward each of these critical regions have become synergistic with deficiencies toward the other; over time, these deficiencies have contributed much to the erosion of America’s international standing. Recovering a capacity for sound grand strategy will require a thoroughgoing recasting of policy toward both regions—and more nuanced appreciation of the interrelationship between them for U.S. interests.
A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases
01 January 2013
University of Pennsylvania

Kaye, David H.

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for “special needs” or “administrative search” cases, for defining new exceptions to the warrant requirement of the Fourth Amendment, or for applying fact-intensive standards such as probable cause, reasonable suspicion, or excessive force. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting.
On the 'Considered Analysis' of Collecting DNA Before Conviction
01 January 2013
University of Pennsylvania

Kaye, David H.

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below." The full Court then granted a writ of certiorari. This essay briefly examines the opinions listed by the Chief Justice and finds their analysis incomplete. I outline the Fourth Amendment questions that a fully considered analysis must answer, identify questionable dicta on the definition of "searches" and "seizures" in the opinions, describe a fundamental disagreement over the analytical framework for evaluating the reasonable warrantless searches or seizures, and criticize a creative compromise in one of the opinions that would allow sample collection without DNA testing before conviction. I conclude that the Supreme Court not only must assess the actual interests implicated by pre-conviction collection and profiling of DNA but also should articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general.
Teaching the Art of Defending a White Collar Criminal Case
01 January 2014
University of Pennsylvania

Copeland, Katrice Bridges

This Article discusses the author's experience with effectively teaching a white collar crime course.
Why So Contrived? Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King
01 January 2014
University of Pennsylvania

Kaye, David H.

In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. In doing so, it stepped outside the usual framework that treats warrantless searches as per se unconstitutional unless they fall within specified exceptions to the warrant and probable cause requirements. Instead, the Court balanced various individual and state interests. Yet, as regards the state interests, the Court confined this direct balancing analysis to the perceived value of using DNA to inform certain pretrial decisions. Oddly, it avoided relying directly on DNA’s more obvious value in generating investigative leads in unsolved crimes. This Article suggests that this contrived analysis resulted from the structure of existing Fourth Amendment case law (and perhaps a desire to avoid intimating that a more egalitarian and extensive DNA database system also would be constitutional). It demonstrates that the opinion does not support a “no lines” system of ad hoc judgments about the reasonableness of every search using the totality of the circumstances. Recognizing that the existing framework of categorical exceptions to the warrant requirement diverges from an older “warrant preference” rule that demands a warrant whenever feasible, the Article shows that King leaves the current per se framework largely intact. Nevertheless, this Article questions the resort to direct balancing. It presents a more coherent doctrinal framework for scrutinizing not just DNA profiling, but all forms of biometric data collection and analysis. In this regard, it notes that the dissenting King opinion overstates the differences between fingerprinting and DNA profiling as currently practiced. Finally, it suggests that the cramped reasoning in both opinions limits the implications of the case for more aggressive DNA database laws — ones that cover more crimes, more people, more loci, and more methods for acquiring DNA samples.
National Security and the Protection of Constitutional Liberties: How the Foreign Terrorist Organization List Satisfies Procedural Due Process
18 April 2014
University of Pennsylvania

Schwartz, Aaron

Foreign terrorist organizations pose a real and constantly evolving threat to U.S. national security. The Foreign Terrorist Organization (FTO) List seeks to temper that threat by extending the U.S. government an effective legal tool to identify and sanction members of terrorist organizations and those who support them. At the same time, however, the government must also ensure that its efforts to protect U.S. citizens do not trample constitutionally protected rights. This comment begins by exploring the FTO List's authorizing legislation and the policy and goals of that legislation. The comment then reviews and analyzes a series of cases discussing the due process rights given to designated organizations, and assesses whether the FTO designation processes effectively balance the government’s duty to protect the nation’s security and liberty.
U.S. Aid to Agriculture: Shifting Focus from Production to Sustainable Food Security
11 February 2015
University of Pennsylvania

Cohen, Marc J.

Since the 1960s, agriculture has waxed and waned as a key theme of U.S. international development assistance. In the 1970s, the United States and other donors focused on “growing the pile of food” through the use of high-yielding cereal grain varieties, mineral fertilizer, and synthetic pesticides in developing countries—the Green Revolution. This led to huge productivity increases and lower food prices in Asia and Latin America. But donors paid less attention to questions of equity, environmental sustainability, and gender equality. Due to increased food availability at lower prices, the United States and other donors reduced their focus on aid to agriculture from the mid-1980s until the escalation in global food prices of 2007-2008. The latter crisis led to hardship and protests in many countries. In 2009, the G-8 Summit in L’Aquila pledged $22 billion to support agriculture in developing countries. President Obama established the Feed the Future (FtF) Initiative to fulfill the $3.5 billion U.S. pledge at L’Aquila. In contrast to the Green Revolution approach, FtF focuses on sustainable production and income gains among smallholder farmers, improved nutrition linked to agricultural development, and empowerment of women. Although this more holistic approach is welcome, there have been some issues with FtF implementation: insufficient attention to sustainable gains once aid ends; inadequate consultation of beneficiary farmers regarding program design; and in some instances, the skewing of benefits to relatively well-off farmers. A more consistent effort to draw on farmers’ own knowledge and problem definitions would give program participants a greater sense of buy-in, thereby increasing the likelihood of sustainability.
The Evolution of China's Foreign Investment Policy and Law
01 January 2017
University of Pennsylvania

Gao, Shan

This study explores the evolution of China's foreign investment policies and laws between 1978 - 2016. The main goal of this study is to provide an objective narrative about the past and present development of Chinese foreign investment from a legal perspective. The study includes discussions about the creation, development, and reforms of these policies and laws. In addition, this project considers problems and opportunities of Chinese foreign investment regulatory regime. The first chapter is the introduction, which offers detailed explanations for the main focus, issues, and structure of the thesis, the methodology of the study and the reason for conducting this study, an executive summary for each chapter is provided at the end. Second, the third, and the fourth chapter will respectively focus on China's foreign investment regulatory framework during 1978-1991, 1992-2005, 2006-2016. A short summary is provided at the end of chapter four to conclude this study.
The Evolving Korean Statutory Law on Arbitration
01 January 2018
University of Pennsylvania

Park, Eunok

The Republic of Korea (Korea) is one of the countries the economy of which has developed rapidly over the past four decades. According to the World Bank, in 2016, Korea had the world’s eleventh-largest economy and was in eighth place in the world for trade. Considering its land mass, population, and natural resources, it is amazing how fast and big the Korean economy has developed. In the 1980s, Korea was known as one of the “Asian Dragons” along with Taiwan, Hong Kong, and Singapore. All these countries were believed to have great economic potential and the possibility for development. Among the four countries, Korea showed the greatest economic growth. In fact, Korea has become a model for national economic development. Other emerging countries in Asia are trying to emulate Korea’s strategy of economic development. At the beginning of the industrialization of the Korean economy, Korea pursued an export-oriented industrialization by combining mass production-mass exports with relatively high productivity-low wages. At that time, Korean trade focused mainly on the export of goods manufactured in Korea through cheap labor. Since the 1990s, however, the Korean strategy for economic development changed because of the rapidity of its economic development; labor-intensive industry declined and more technology-intensive industry began to develop. As a result, Korea is now a player in international business activities. Unlike the past - when Korea was simply manufacturing products through borrowed technology - Korean companies now create the technology they use and, as a result, compete effectively in global commerce. The Korean brand has become a guarantor of high quality. For example, the Hyundai cars have a good reputation abroad and combine relatively high quality with reasonable prices. Electronic goods manufactured by LG or Samsung are recognized as having the highest quality in various Middle Eastern countries. As Korean companies engaged in more complex international business transaction, they became involved in contracts for sales of goods, licensing, agency, distribution, franchise, construction, and turn-key operations. For example, the Hyundai automobile company began exporting Korean-made cars to countries all over the world; nowadays, they build factories abroad and employ local people to produce cars locally. Thus, Hyundai avails itself of many transactional contracts; agency or distributorship contracts with business partners abroad to sell the cars; service contracts with carriers for the transportation of cars; construction contracts with constructors to build local factories; and supply contracts to service manufacturing abroad. In addition, the company enters into employment contracts with local employees and to address consumers. Just like Hyundai, other Korean companies are also conducting international business in more complex ways. They, too, encounter greater transactional disputes with foreign companies, consumers, and employees. Contracts are used to identify and provide for the best ways to solve disputes. Arbitration dominates dispute resolution in international business. To bolster its competitive edge, Korea has begun to devote greater attention to arbitration in ICA. There is now no doubt that arbitration is more efficient and effective for the adjudication of international commercial disputes as a necessary appendage to the legal system. In Asia, Hong Kong with Singapore as a close second has become the center of ICA. It is the Korean conviction that Korea offers a better society, economy and government and can outdistance either Hong Kong or Singapore. While China seeks to be the Asian leader in ICA, Korea is better positioned geographically to intermediate between China and Japan - the two Asian economic giants. In ICA, contracting parties generally choose a country with no ties with either party. This practice enhances the neutrality of the arbitration. In comparison to Chinese or Japanese venue, Korea offers greater neutrality. Hong Kong is well-developed as a place for ICA, but that venue might well favor Chinese interest. In addition, Korea’s status in Asia has expanded significantly over the last fifteen years, primarily because of the Hallyu. The Hallyu started spreading among the younger generation and now it has spread to the middle-aged generation. With a combination of economic development and improved image, organizations like the Korean Commercial Arbitration Board (KCAB), the Korean Bar Association (KBA), the Korea Chamber of Commerce (KCC) have urged that Korea take advantage of its position and use it as a platform to become a center of ICA in Asia. Moreover, lawyers, entrepreneurs, and scholars have advocated that the Korean government should aggressively develop its infrastructure in ICA. In 2013, the Seoul International Dispute Resolution Center (Seoul IDRC) was established through the support of the Seoul Metropolitan Government, the Ministry of Justice, Korea Commercial Arbitration Board (KCAB), and the Korean Bar Association (KBA). The purpose of the Seoul IDRC is to act as a center for Asian ICA proceedings by providing hearing facilities with the cooperation of leading arbitral institutions including the American Arbitration Association (AAA), the Hong Kong International Arbitration Center (HKIAC), the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the Singapore International Arbitration Center (SIAC). There needs to be even more progress. Because the legal system and courts are instrumental to the functionality of arbitration, judges need to undertake special training and the current Korean perception of arbitration needs to be revamped. The Korean arbitration law should be reexamined. The national arbitration law measures the depth of the legal acceptance of arbitration. The Korean Arbitration Act (KAA) was enacted as an independent law for the first time in 1966; it was completely amended in 1999 after two partial amendments in 1973 and 1993. In 1999, the KAA was brought into line with UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UNCITRAL Model Law). The UNCITRAL Model Law aims to unify and harmonize worldwide arbitration laws. It was intended to allow jurisdictions in the developing world especially to become instantly seen as favorable to arbitration. Some countries in the developed world (like Germany) also relied on the UNCITRAL Model Law because it reflected global standing and regulation of arbitration. Because of their participation in the development of ICA, countries (like France, the United States, and England) enacted their own statutes on arbitration. Korea amended the KAA in keeping with the UNCITRAL Model Law, allowing it to participate in the global law of arbitration. Korea is now hospitable to arbitration and regulates it in a manner that allows it to be autonomous and effective. The Korean law is fully conversant with the global regulation of arbitration. In terms of the 1999 amendment to the KAA, Korean scholars and practitioners strongly argued that the KAA had to reflect the changes in the Korean economy and integrate the international regulation of ICA. The need to amend the KAA became more evident when the UNCITRAL Model Law was itself amended in 2006. Nonetheless, it took a decade to achieve the evident emendation. The KAA was finally amended in 2016. The 2016 amendment focuses on (i) the removal of inefficiency and the restriction on arbitration law, (ii) adding or drafting new regulations to help arbitral proceedings to operate more smoothly and effectively. By doing so, Korea may have taken its initial step toward becoming an Asian Hub for ICA.
Alternative Dispute Resolution: Toward a Clear, Reliable and Effective Dispute Resolution System in Saudi Arabia
01 April 2019
University of Pennsylvania

Bedaiwi, Ahmad

Saudi Arabia has declared its post-oil economic plan: Vision 2030 seeks to make the Kingdom "a global investment powerhouse" and disentangle national economic growth from oil revenues. This dissertation argues that jurisdictions like Saudi Arabia that hope to foster hospitable environments for foreign investment and efficient trade systems must establish effective dispute resolution systems that all business parties can trust. Alternative Dispute Resolution (ADR) mechanisms fit perfectly in this context. ADR has become increasingly prevalent and popular around the world; indeed, arbitration and other means of ADR have become universal methods for resolving disputes in international commerce. Determining whether the current ADR system in Saudi Arabia can support Vision 2030 goals this requires comprehensive investigation and analysis. This dissertation thoroughly examines the reasons that many continue to perceive the Kingdom as inhospitable to ADR. identifying the root causes and analyzing their consequences. It also emphasizes the need for creating an effective ADR system in the Saudi jurisdiction. It evaluates the current status of ADR in the Kingdom by comparatively and critically analyzing the reality of ADR processes in the Saudi legal system and identifies possible strategies for expanding and improving ADR practices within that system. It offers multiple levels of analysis, comparing the Saudi system and experience to those of some leading jurisdictions around the world. The dissertation argues that, at the national level, implementing a clear and effective ADR system will benefit the public system of justice in many ways. The use of ADR in traditional courts via specialized public agencies as well as in other private bodies, if implemented within a clear legal framework, will, for instance, positively contribute to efforts to improve the justice system by reducing court caseloads and enhancing "access to justice." The dissertation examines and answers the following research questions: (1) What is the current status of the Saudi dispute resolution system? (2) Does the dispute resolution system in Saudi Arabia need to find "a better way"? (3) If so, can ADR contribute positively to the system's reform? (4) What are the benefits of creating a clear ADR legal framework? (4) Should ADR be a part of the many legal reform initiatives concerning the justice system in Saudi Arabia? (5) What law and practice reforms will enhance the functionality of ADR instruments? (6) What lessons do the experiences of some of the world's leading jurisdictions in the field of ADR provide? (7) What role can education play in the development of ADR in Saudi Arabia? (8) How can institutionalization contribute to the growth of ADR in the Saudi jurisdiction? (9) What aims should the Kingdom establish in this area and how should it endeavor to accomplish them? This dissertation fills the gap in the current scholarly literature by accomplishing several objectives. It highlights, for example, the importance of having a clear ADR framework, addressing the benefits of structuring and regulating ADR methods in the Kingdom. It also emphasizes that implementing an effective and efficient ADR legal framework will require reform in many areas. The dissertation consists of seven chapters. Chapter 1 serves as an introduction; it provides general background information regarding the subject of the dissertation, stating the central problem it addresses and specifying its aims. Chapter 2 conceptualizes the dissertation's subject and examines the history and development of ADR in both the Saudi jurisdiction and several leading jurisdictions. It also explains the concept if justice in Islamic law, which is crucial to understanding the evolution of the Saudi system of justice and comparing current practice to its root. Chapter 3 provides a comprehensive critical analysis of arbitration-related law and practice in the Saudi legal system. Chapter 4 derives several valuable lessons from arbitration laws and practices in the United Kingdom and the United States. Chapter 5 comprehensively examines the role of education in the development of ADR in Saudi Arabia and discusses the findings of a survey conducted on ADR instruction in Saudi law schools. Chapter 6 analyzes the benefits of institutionalizing ADR in the Saudi legal system, outlining the improvements required to ensure effective implementation, examining why and how the Kingdom should take the steps in question, and identifying what it should seek to reinforce, alter, and avoid. Chapter 7 concludes the dissertation and makes recommendations.
Reining in Commercial Exploitation of Consumer Data
01 June 2019
University of Pennsylvania

Helveston, Max N.

The collection and use of consumer data by commercial entities has quickly transitioned from being an obscure topic to a headlining issue in leading media outlets. The burgeoning societal awareness of how digital devices are collecting and transmitting data about individuals has led to growing concerns about how this information is being used, stored, and sold. Legal scholars have identified insurance as one of the market sectors where commercial use of individuals' data could be particularly harmful to consumers. They have argued that, if left unrestricted, insurers would use Big Data analytics in ways that would decrease marginalized populations' access to insurance, limit individual liberties, and allow insurers to shirk their contractual obligations. Working from the assumption that these concerns are valid, this Article considers whether existing laws are sufficient to prevent these abuses and provides an account of where further protections are needed. It argues that the primary laws targeted at restricting companies' purchase and use of personal data-the Fair Credit Reporting Act, the California Consumer Privacy Act, and the Vermont Data Broker Act-may prevent certain problematic behaviors, but will not deter others. Additional state action will be necessary to protect consumers from exclusionary advertising practices, unfair underwriting rules, and bad faith claims handling behaviors.
Reassessing Aspects of the Contribution of African States to the Development of International Law Through African Regional Multilateral Treaties
01 May 2020
University of Pennsylvania

Maluwa, Tiyanjana

For decades, debates about Africa’s contribution to the development of international law have been dominated by two opposing schools of thought. First, that European colonial powers deliberately erased Africa and Africans from the history of the creation and use of international law. Second, that, on the contrary, over the last six decades (since the emergence of the newly independent African states in the late 1950s and early 1960s), Africa has contributed to the making of international law and has not been merely a passive recipient of a Eurocentric international law. This article underscores the role of the postcolonial periphery in the scheme of modern international law by highlighting specific examples of African states’ contributions to international legal norms through multilateral treatymaking. To that end, this article assesses a number of African Union and Organisation of African Unity treaties for their content, relevance, and impact. It concludes that postcolonial African states have been active participants in developing new rules of international law—and strengthening existing ones—through the adoption of path-breaking conventions that work to either (1) establish African commitment to new norms with potential global application or (2) supplement existing global (United Nations) instruments with commitments specific to the African context. It also shines a light on the desirability and pertinence of regional diversity in the continuing development and application of international law, and on the changing geographies of international lawmaking.
Century's Reply in Further Support of Its Motion Seeking Order Authorizing Requests for Production of Documents Directed to Debtor
24 February 2021
University of Pennsylvania

nan

Century's Reply in Further Support of Its Motion Seeking Order Authorizing Requests for Production of Documents Directed to Debtor, filed February 24, 2021.
Reinterpreting The Reinterpretation: Collective Self-Defense As Constitutional Fidelity
14 May 2021
University of Pennsylvania

Evans, C.D.A;Menter, Aviel

As currently interpreted, Article 9 of the Japanese Constitution requires Japan’s Self-Defense Forces (JSDF) to operate in a purely defensive capacity. Recently, however, the United States has increasingly asked Japan to participate in joint military operations, in which Japanese forces would defend not only themselves, but also their American allies. This raises an important legal question: does Article 9 permit the JSDF engage in this kind of collective self-defense? Former Prime Minister Abe Shinzo believed so. After a government panel of legal experts found that collective self-defense was consistent with Article 9, the Abe administration adopted the panel’s conclusion. However, this “Reinterpretation” of Article 9 has been highly controversial. Japanese scholars of constitutional law are deeply divided on the meaning of Article 9 and the legality of the Reinterpretation. While some maintain that Article 9 prohibits collective self-defense, others have argued that Article 9 either permits it, or is superseded by Japan’s treaty obligations to the United States. However, until now, these arguments have not been reflected in the non-Japanese literature. Accordingly, English-language scholarship has often assumed with little discussion that the Reinterpretation is inconsistent with Article 9, before proceeding to analyze the Reinterpretation as a failed attempt to informally amend the Article 9 without the requisite democratic support. This essay re-frames the debate. The Reinterpretation is not an attempt to amend Article 9, but an attempt to understand it. Accordingly, its legitimacy is not derived from the magnitude of its popular support, but the strength of its legal justifications.
Decoding Nondelegation after Gundy: What the Experience in State Courts Tells Us about What to Expect When We're Expecting
01 January 2022
University of Pennsylvania

Walters, Daniel

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill up details or find facts triggering policies, which can be. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects such limits to be highly consequential. While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This Article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, this Article shows that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Supreme Court actually does over a series of cases, not on what it says it is going to do. Moreover, the research findings suggest significant limitations on the ability of the Gundy dissent’s approach to provide any ex ante guidance to the lower courts, or even future Supreme Courts, about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.
THE INTERNATIONAL LAW AND POLITICS OF THE TRUMP ADMINISTRATION'S IRAN POLICY
04 June 2022
University of Pennsylvania

Hogic, Nedim

Abstract: Donald Trump’s promise to lead an “America first” foreign policy captured the attention of both American and international legal scholars. This paper aims to join that debate by examining the international legal challenges of Trump administration’s policy towards Iran. It does so by examining two main approaches of the administration: the exercise of unilateral sanctions towards Iran and the negotiation strategy deployed by Donald Trump personally. In examining the former, the paper relies on doctrinal legal research. In examining the latter behavioral approach to international law and economics, I use a relatively novel approach borrowing insights from political psychology and behavioral economics to explain many of the high-risk choices that the Administration took over the course of events. I find that after the cancellation of the Joint Comprehensive Plan of Action (the “Iran nuclear deal”), unilateralism—as one of the main characteristics of this policy—failed to coerce Iran into negotiating a new deal. Instead, the unilateral exercise of sanctions reduced the “weaponized interdependence” of the sanctions’ regime into a negotiation leverage. Despite being almost unchallengeable before a legal forum, the lack of wider support for the sanctions led to considerations of their evasion from the European Union and other international actors. The negotiation style coupled Trump’s calls for a new deal with bold threats of military might and failed to lead to reconsideration of Iran’s approach to regional security. By staying within the Iran nuclear deal, Iran managed to strengthen its immediate negotiation position. Ultimately, after two and a half years of such policy, both the United States and international actors have launched a number of multilateral initiatives that are to remedy the damage done by high-risk negotiation tactics deployed by the administration and then President Trump personally.
EDNAM
30 August 2006
University of Pretoria

Baker, Herbert, Sir, 1862-1946

Site plan/garden design for Walter Webber's house in Parktown, Johannesburg.
The relationship between the mathematics identities of primary school teachers and new curriculum reforms in South Africa
23 March 2007
University of Pretoria

Jita, Loyiso C.;Vandeyar, Saloshna

Based on life history accounts of two elementary school teachers in South Africa, this article examines the construction of two teachers' mathematics identities. In the article we juxtapose these identities with the identity forms that are envisaged by the policymakers and the mathematics reforms currently underway in the country. Using the data on contradictions between the reformer's visions and the teachers' accounts of their lived experiences and identities, we construct an account of why the goals of reforming mathematics in primary school classrooms in South Africa continue to elude even this latest set of reform proposals. We conclude by exploring some possibilities for bridging the divide in order to transform mathematics teaching and learning in the South African classrooms and elsewhere.
The African Union
30 March 2007
University of Pretoria

Heyns, C.H. (Christof H.);Baimu, Evarist;Killander, Magnus

The article examines the objectives and institutional structure of the African Union (AU) in the light of the experiences of its predecessor the Organization of African Unity (OAU) as well as the African Economic Community (AEC). The OAU largely exercised a political function. The African Union has a much broader mandate, which includes economic integration. Among the new features of the AU are its efforts to be more people-centered through the establishment of a Pan-African Parliament, the Economic, Social and Cultural Council (ECOSOCC) and an emphasis on gender issues. Human rights is included in the mandate, as is conflict management and resolution, including humanitarian intervention. A development blueprint, New Partnershop for Africa's Developemnt (NEPAD), has been established with peer review as its main implementing mechanism. The Constitutive Act of the AU creates a number of new institutions, many of them not yet operational. Attention is drawn to the dangers inherent in the proliferation of institutions. On 26 May 2001 the Constitutive Act of the African Union entered into force. This paved the way for the establishment of the AU. The new organization, with 53 States as Members, was founded with the twin goals of furthering the economic integration and political unity of Africa. This ushered in a new phase in Africa's continental cooperation, a process which had started almost 40 years earlier.
Communications before the African Commission on Human and Peoples' Rights 1988-2002
30 March 2007
University of Pretoria

Killander, Magnus

This article gives an overview of the work of the African Commission on Human and Peoples’ Rights with regard to individual communications from its first decision in 1988 until the end of 2002.
Investment management education : is there a gap between the perceptions of academics and of practitioners?
20 June 2007
University of Pretoria

Wolmarans, H.P. (Hendrik Petrus)

In recent years, investment management education has become increasingly relevant. As a result of this development, it is essential that various role players should be consulted to ensure that investment management is taught in line with practitioners' requirements. The South African Qualifications Authority also specifies that educators and practitioners should collaborate to maintain relevance in all fields of education. The importance of various areas in investment management was investigated. This article compares the ranking of these areas in terms of their importance as perceived by academics and practitioners. The study being reported also aimed to determine whether gaps exist between the areas that academics regard to be important and the areas that practitioners regard as such. Areas that are generally regarded to be most important include asset allocation, fundamental analysis and the measurement of risk and return. Areas that are regarded to be least important include arts, antiques and other hard assets; rights and capitalisation issues; and real estate. Areas in need of research include the measurement of risk and return; asset allocation; derivatives; and global markets and instruments. The findings of this study could have a significant impact on the provision of relevant training for South African investment specialists.
Obstacles in establishing and operating a public sector internal auditing function in a developing country : the South African experience
20 June 2007
University of Pretoria

Van der Schyf, D.B.

The point of exit in this research is that there should be an internal audit department in a national government department in South Africa to render a top-class internal auditing service that is cost-effective and affordable, preferred by clients, continuously complies with the standards of professional practice of internal auditing and best practice and have a positive impact on the national government department's bottom line. The empirical research has highlighted several factors, including the ignorance of key role players and lack of professional proficiency on the part of internal auditors, as factors that impede the establishment and operation of an internal auditing function in the public sector in South Africa. It is recommended, that audit committees in the public sector should launch a joint marketing action, directed at key role players, to promote the potential value of a top-class internal auditing service in the public sector, as well as the factors that impede it.
The concept of a national security strategy : the case of the United States and South Africa
20 July 2007
University of Pretoria

Hough, Mike (Michael)

Discusses the concept of a national security strategy in the United States as an example of a distinctive broad national security strategy supplemented by more specific national security strategies. Presents an overview of the South African situation.
Western privacy and/or Ubuntu? Some critical comments on the influences in the forthcoming data privacy bill in South Africa
02 August 2007
University of Pretoria

Olinger, Hanno N.;Britz, Johannes J.;Olivier, Martin S.

There is a worldwide concern growing regarding the increasing potential threats to the personal privacy of individuals caused by technologies and governments. The international response of governments has been to draught comprehensive privacy legislation in order to protect their citizen's personal information and to enable their citizens to have control over their personal information. In South Africa, the right to privacy is protected by both Section 14 of the Constitution and the provisions of the Common Law, but at this stage no formal privacy legislation is in place to enforce fair data protection principles. A new Data Privacy Bill is in the process of being draughted by the South African Law Commission and it is taking into account South Africa's unique political and social context as well as international demands made by the global economy. The prime influences acting upon the new Data Privacy Bill are the mandate in the Constitution, the EU Data Protection Directive and the Ubuntu worldview. Ubuntu can be described as a community-based mindset in which the welfare of the group is greater than the welfare of a single individual in the group. In this article, we argue that the EU Data Protection Directive is one of the best articulated privacy laws in existence today and the Ubuntu philosophy has been pressed into service very successfully in diverse arenas in South Africa. This paper argues that both influences will be seen in the future Data Privacy Act, but that the EU Data Protection Directive's influence will be pre-eminent.
Moral luck : exploiting South Africa's policy environment to produce a sustainable national antiretroviral treatment programme
02 August 2007
University of Pretoria

Sprague, Courtenay;Woolman, Stu (Stuart Craig)

What kinds of social policy interventions will enable South Africa to offer a universal, free and sustainable antretroviral treatment programme? Some commentators assert that government's best chance at offering such a programme will require the use of compulsory licenses and that the state's failure to make use of such a weapon is a failure to discharge its constitutional duties. The authors demur. The threat of a compulsory license is only as good as the ability to make use of such a license. South Africa currently lacks the basic science community, reverse engineering capacity and fine chemicals industry necessary to make good on such a threat. The government's best hope for discharging the duties imposed by the Constitution is a systematic, structural intervention: the implementation of a socio-industrial policy that leverages existing industrial capacity and voluntary licenses in a manner that generates price reductions and offers an uninterrupted sustainable local supply. However, voluntary licenses will only create downward pressure on prices when South Africa is able to establish a robust generics pharmaceutical industry. Such an industry can be created with appropriate tax relief, investment credits, technology transfer and assured access to active pharmaceutical ingredients. South Africa's industrial, legal and financial resources can thereby be profitably exploited in a manner that progressively achieves a comprehensive and coordinated antiretroviral treatment programme.
From phenomenology to critical theory : the genesis of Adorno's critical theory from his reading of Husserl
16 August 2007
University of Pretoria

Wolff, Ernst

This article investigates the importance of the evolution of Adorno's interpretation of Husserl for the formation of his own philosophy. The weakness of Husserl's notion of immediate data is revealed within the light of Hans Cornelius' Transcendentale Systematik. When Adorno discovers in his Habilitationsschrift the importance of the social setting and ideological function of theory, he departs from Cornelius' transcendentalism as norm for his reflection - and this insight is deployed against Husserl. Henceforth, Husserl's philosophy is interpreted as idealist, as a prima philosophia, as a philosophy of identity and totality and ultimately in service of the totalitarian political tendencies.
Composer in interview : Edward Rushton - an Englishman in Switzerland
21 August 2007
University of Pretoria

Walton, Chris, 1963-

Interview with English composer Edward Rushton : his brief autobiography; reason for writing music in Switzerland; views on the aesthetic gap between Britain and Switzerland; influence of his stay in Switzerland on his music.
'. . . my duty to defend the truth' : Erich Schmid in Schoenberg's Berlin composition class
21 August 2007
University of Pretoria

Walton, Chris, 1963-

Explores the career of composer and conductor Erich Schmid. Brief information on his autobiography; influence of Arnold Schoenberg on Schmid's career; information on the compositional techniques of Schoenberg; relationship between Schmid and Schoenberg.
China fuels its future with Africa's riches
18 September 2007
University of Pretoria

Naidu, Sanusha;Davies, Martyn

Examines critically China's acquisition of and investment in Africa's natural resource sector, as well as the short- to medium term political, economic, social and environmental implications this has for African states.
Formalising the informal sector : a case study on the City of Johannesburg
07 November 2007
University of Pretoria

Van Rooyen, Enslin;Antonites, Alexander Josef

Informal trading is a phenomenon prevalent throughout the world, but nowhere more visible and contributively to local economies than in the developing world. South Africa faces similar challenges as any other emerging economy, which demonstrates a duality insofar as its formal and informal arrangements are concerned. In addition, poverty and unemployment, HIV/AIDS and concomitant social problems all form part of the Country’s current socio-economic landscape. The Constitution of the Republic of South Africa, 1996 provides local government with a mandate to govern, provide service and to promote development within their areas of jurisdiction. The Constitution of the Republic of South Africa, 1996 stipulates in Section 153 that local government must structure and manage its administration, budgeting and planning processes to give priority to the needs of the community and promote the social and economic development of the community. The concept of developmental local government is extensively elaborated upon in policy documents and legislation, which impress the obligation of local government to apply technologies to further its developmental objectives. The Metropolitan Trading Company (MTC) in the City of Johannesburg is mandated to manage trading within the area of its jurisdiction by acting as a conduit and facilitator to economic activities associated with bottom end trading. This function poses significant challenges, especially if taken into account the extent of poverty and different forms of disenfranchisement, which traders currently experience. Location in terms of finding appropriate trading venues, abiding with the regulatory framework imposed by the authorities (especially the municipal authorities) and access to support mechanisms to enhance their prospects of success (including finance, skills development and product/market options etc.) are all contributive factors to limiting the success and growth that is needed by such traders. On the one hand, a proper system within which orderly trading is assured (such as a regulatory framework that limits trading in particular areas and registration) is necessary and highly desirable. Yet, on the other hand it should be noted that the trading community would remain and possibly even grow. It should be noted furthermore that the trading community would continue to expand even if general local economic growth is significantly improved. Global trends in countries, which demonstrate similar socio-economic characteristics as South Africa, testify to this. Urgent support mechanisms are needed to improve this state of affairs. The fundamental role of these mechanisms is to transform the informal sector and trade into a contributing channel of entrepreneurial performance and job creation. This article endeavours to assess the issues faced by local government in this process and offer some solutions within the frame of a case study.
Continental policy targeting and the Nepadisation process : issues, trends and options
14 November 2007
University of Pretoria

Kuye, Jerry O.

This paper explores the use of public administration approaches to targeting policy for continental development. The paper argues that it is vitally important for participation in the re-vitalization of the governance and leadership imperatives in both the African Union (AU) and the New Partnership for Africa's Development (NEPAD). Although the paper supports the idea of the founding principles of the NEPAD concept within the framework of the AU, it further contends that the need for a systematic and continental public administrative policy making process must be in the forefront of decision making. The paper further argues that at the same time, sound leadership and governance infrastructures must be put in place to attract viable economic co-operation between African states. This is paramount towards the development of the African continent. At the same time, the paper circumvents to argue that regional imperatives towards development must be evident, as it must serve as the fundamental role in the welfare of the people of Africa. It is within this framework that targeted public policies towards development are paramount; and this must be supported by regional projects within the confines of the African Union.
Accounting standard-setting in South Africa - past practices and proposed reform : is public accountability strengthened?
12 December 2007
University of Pretoria

Gloeck, Juergen D. (Juergen Dieter), 1956-

This article deals with various public accountability issues. It comments on the need for public accountability and briefly describes the concept. It then elaborates on an approach or conceptual framework for improving public accountability, particularly in developing countries. Once this framework has been set, the second part of the article focuses on accounting standards and establishes the relationship between accounting practices and the accounting standard-setting process. It highlights public ownership of a territory which is traditionally claimed by accountants and certain of their private bodies. An examination of the accounting standard-setting process in South Africa reveals deficiencies which impede the process from producing products that advance accountability and that are socially acceptable. The last part comments on reform initiatives as contained in the Proposed Financial Reporting Bill. These initiatives claim to advance and strengthen the accountability framework and to address "serious problems" associated with South Africa's accounting standard-setting process and present accounting practices. The article concludes that serious reform is necessary to address the shortcomings identified. Contrary to institutional opinion, these reform initiatives will have to be directed not at those labeled to be guilty of creative accounting practices or non-compliance with GAAP, but rather at the accounting standard-setting process and the institutions that have arrogated this process to produce current accounting standards. The reform processes will have to be based on public interest perspectives that incorporate as the clearly stated objective the advancement of public accountability.
Seeking a brighter future for auditing in South Africa
12 December 2007
University of Pretoria

Gloeck, Juergen D. (Juergen Dieter), 1956-;De Jager, Herman

This is a Position Paper on structural reforms in the South African audit industry. This Paper is presented at a time where the existing legislation regarding the auditing industry is being reviewed by a committee consisting of South Africa's Public Protector and a retired judge with a view to producing a Bill to be tabled for approval in Parliament. The authors hereby heed calls made by the drafters of the new statutory framework to present suggestions regarding the transformation of the audit industry in South Africa and addressing existing shortcomings. The authors propose the formation of a new body (or the transformation of the existing Public Accountants' and Auditors' Board) to perform additional functions which would strengthen the statutory framework within which auditors operate. The proposals also discuss and address social priorities and imbalances in South Africa.
Special report on South African Cardiovascular Risk Management Symposium
12 December 2007
University of Pretoria

Ker, James A.;Horak, Adi;Opie, L.;Sapire, K.E.

A recent update meeting, held in major centres in South Africa and sponsored by Bayer HealthCare, provided useful data and practical advice from South African experts on improving cardiovascular and diabetes risk management in daily practise.
From equality of opportunity to equality of treatment as a value-based concern in education
10 January 2008
University of Pretoria

Nieuwenhuis, Jan;Nieuwenhuis, F.J.

The article argues that concepts, such as equality and values, are caught up in the quagmire of contestations about meanings and their use within educational contexts. The author argues that all concepts that describe an essential element of being human should therefore firstly be understood in terms of this relation to other concepts, and secondly, within the context of society where each collective part of society imparts its own unique meaning to the concept. In analysing values and equality the author indicates that values are first and foremost personal cognitive and affectively laden constructs that could be shared by the collective, but do not of necessity overlap completely with those of other members of the collective. This raises the questions: whose values should be included in education and how should they be taught? Equality cannot be taken to mean "identical", but at best a tertium comparationis, for equality is "shared humanity". Analysing the three possible outcomes of equality, the author concludes that important as equality of opportunities may be, it may not be sufficient to ensure meaningful social justice if equality of treatment is not planned into the process. Equality of treatment should promote the core human values of respect, compassion, just treatment, fairness, peace, truthfulness, and freedom.
African business schools : information and communication technology survey
23 January 2008
University of Pretoria

Tobin, Peter K.J.

PURPOSE: The aim of this paper is to report on research into the status of information and communication technology in use at members of the Association of African Business Schools (AABS). DESIGN / METHODOLOGY / APPROACH: The research reported on in this paper was carried out using a questionnaire sent by email to the target population (all the members of the AABS). The questionnaire covered a wide range of issues, including information technology strategy and governance, as well as the operational aspects of the use of Information and Communication Technology (ICT) in the institutions surveyed. Questions were based on topics identified from the literature and a recent industry survey conducted in one of the member countries, and the assessment criteria were based on a maturity rating scale. FINDINGS: This research helps to further an understanding of the use of ICT in the organisations that responded to the survey. Overall, there was a high level of understanding or applicability (over 95%) among the topics surveyed across all schools, but there was a significant proportion where no action on that topic had yet been taken (over 30% of all maturity ratings across all respondents). Average maturity rating across all topics for all respondents was 2.3 (action taken but an informal approach to the topic is currently used) on a scale from 0 to 5. Implications: This research has important implications for the organisations responding to the survey and their awareness of the issues they face as institutions that seek to leverage their investments in ICT to raise their own competitive position and thus that of African organisations which have students educated at these business schools. There are also implications for the future success of the newly-formed AABS and its other initiatives in terms of meeting the objectives of the Association. ORIGINALITY / VALUE: This research is original in terms of which there is a broad understanding of the extent to which ICT is available and in use amongst the members of the AABS. Prior to the foundation of the Association, no suitable forum existed for the conduct of this research. The originality therefore, is in the opportunity presented to form a broader understanding of the status of the use of ICT to support the activities of business schools across Africa. The value of this research may be applied to both those respondents to the survey, other members of the AABS and other business schools operating in Africa that wish to understand the issues in the field of ICT that they should be addressing.
Automotive Industry Development Centre
15 February 2008
University of Pretoria

Roodt, Marius

A feature compiled on the AIDC and the reasons for establishing such a Centre.
Public choice and the regulatory role of government
15 February 2008
University of Pretoria

Jordaan, Andre Cillie;Jordaan, Yolanda

This article attempts to describe the formation of public choice and the role that government should play in accommodating this in its regulatory environment. The need to foster institutions arises from certain intrinsic qualities of society at large, such as the limited capacity of individuals to address public issues. Collective needs are often expressed and one of the roles of an institution such as government is to address these needs. It is assumed that government should, in the design of optimal public policy, adhere to human response and take cognisance of public choice. There is evidence that the general public in South Africa are concerned about the protection of their personal information when engaging in transactions with business enterprises and that they expect government to enforce protection. Although very strict information privacy laws exist in many countries of the international world, South Africa is still a surprising exception. Given the ostensible role of government in harnessing public choice, it is evident that the regulatory environment concerning the protection of consumer information in South Africa is not yet successfully addressed, let alone adheres to international best practices.
Atlas.ti for quality in qualitative research : a CAQDAS project
16 February 2008
University of Pretoria

Smit, Brigitte

In this paper, I discuss a variety of theoretical and conceptual dimensions of Atlas.ti (Muhr, 1994, 1997a, 1997b). I draw on my own Atlas.ti experiences, and discuss advantages and disadvantages of using computer aided qualitative data analysis software (CAQDAS) (Lee and Fielding 1995). How can the quality of a research project be enhanced and how will the end product be affected? These are some questions I intend to answer. Firstly, I will introduce Atlas.ti for qualitative data analysis. Secondly, I discuss how Atlas.ti, focusing on some coding procedures, (cf. Miles and Huberman 1994, and Dey 1993) supports a grounded theory approach for data analysis. Thirdly, I explain the VISE principles, visualisation, integration, serendipity and exploration as the main strategic modes of operation that may enhance the quality in the data analysis. Atlas.ti is a powerful workbench for qualitative data analysis, particular for large sections of text, visual and audio data. This software offers support to the researcher during the data analysis process. Texts are analised and interpreted using coding and annotating activities. It provides a comprehensive overview of the research project, the Hermeneutic Unit, and facilitates immediate search and retrieval functions. Atlas.ti also has a network building feature, which allows one to visually connect selected texts, memos, and codes by means of diagrams.
Public-private partnerships – a mechanism towards fiscal responsibility : an overview of issues, trends and options for HIV/AIDS intervention strategies in South Africa
18 March 2008
University of Pretoria

Schoeman, Linda

Public-Private Partnerships are seen as mechanisms that offer the promise to strengthen government’s policy implementation capacity and its ability to deliver services efficiently, effectively, economically and equitably (4Es) to communities. HIV/AIDS-related problems add to the complexities associated with building partnerships and networks as it demands a shift towards horizontal and broader based policy issues that show no respect to boundaries or do not fit neatly into areas of jurisdiction. Traditional models that described public and private relations have become obsolete, forcing governments to revisit their role and the type of outcomes they want to achieve. The symbiotic relationship between the economy, society, political philosophy and public finances increase the difficulty of finding a balance between the relative sizes of public and private health sectors steered by supply and demand functions, against a background of political performance which focus on finding the correct inputs for political, governmental and administrative systems to deliver quality outputs. In this presentation the authors take a critical look at the key issues necessary to ensure that accountable and fiscal responsible measures are in place when PPP networks are built in the health care sector. Their views are supported by the outcomes of a comparative research study that investigates PPP as a mechanism for public finance management in the macro- and micro-economic planning through the application of four international case studies. These case studies are benchmarked against the national situation to identify the best practices and find a best value for money approach to address the core issues, trends and options available to HIV/AIDS intervention strategies in South Africa.
Atlas.ti for qualitative data analysis
02 April 2008
University of Pretoria

Smit, Brigitte

In this article I discuss a variety of theoretical and conceptual dimensions of Atlas.ti (Muhr, 1994, 1997a, 1997b). I draw on my own Atlas.ti experiences (Smit, 001), and discuss advantages and disadvantages of using computer-aided qualitative data analysis software (CAQDAS) (Lee & Fielding, 1995). How can the quality of a research project be enhanced and how will the end product be affected? These are some questions I intend to answer. Firstly, I introduce qualitative data analysis in general. Secondly, I discuss the relevance of computer-aided qualitative data analysis software in qualitative research and how Atlas.ti, focuses on coding procedures, (cf. Miles & Huberman, 1994; Dey, 1993) which supports a grounded theory approach for data analysis. Thirdly, I illustrate some facets of my Atlas.ti project and explain some technical aspects, such as the VISE principles, visualisation, integration, serendipity and exploration as the main strategic modes of operation that may enhance the quality in the data analysis.
Building a brighter future for government auditing in South Africa
14 April 2008
University of Pretoria

Gloeck, Juergen D. (Juergen Dieter), 1956-

Although South Africa's public sector generally experiences skills shortages at many levels, the financial sector is particularly adversely affected. Whilst the private sector has in operation a highly effective system to ensure a constant supply of financial skills, no such system has to date been implemented for the public sector. To address the above shortcoming, the Southern African Institute of Government Auditors (SAIGA) has developed a unique public sector professional: the Registered Government Auditor (RGA). The syllabus of the RGA is public sector focused and incorporates concepts and approaches based on the PFMA, MFMA and the Treasury Regulations. The RGA-model must be seen against the background of initiatives such as the Joint Initiative on Priority Skills Acquisition (JIPSA) and the broader objectives of the Accelerated and Shared Growth Initiative of South Africa (ASGISA). It also contributes towards the professionalisation of the Auditor-General and ensures that the Auditor- General maintains the independence that is required by our country's Constitution. Wider recognition of the RGA by specific role-players and the integration of the RGA-concept in strategic approaches by specific public sector entities and universities will provide a continued long term supply of financially skilled professionals to the public sector. This is exactly what South Africa needs.

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