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Authors (Full Papers): M - O

 

Click the link indicating the scholarly author's last name to view the abstract of their paper for presentation.

 

A - B   |   C - E   |   F - G   |   H - J   |   K - L   |   M - O   |   P - S   |   T - Z

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Ma, Fang (UK): Chinese Take-aways: What Can China Learn from the English Experience of Derivative Actions?

 

Magklasi, Ioanna (UK): "Electronic transport records": Assessing the contribution of the Rotterdam Rules

 

Makakaba, Phillemon (South Africa): Fitting the Circumstances of Online Use into Substantive Law Affected by Internet: Is it Sufficient?

 

Mantelero, Alessandro (Italy): The European Right to Be Forgotten

 

Masete, Naledi Thabang and Duvenhage, Jacques Clarence (South Africa): (INTER)National Standards on Money Laundering with Regard to the FATF Recommendation

 

Mashele, Shighughudwana and Nkosi, Gugulethu (South Africa): Gender Equality Gap in South Africa: Bridging the Divide

 

Masuku, Matome Boaz (South Africa): Liability to Gambling Fans and Supporters in Favour of Fair Play in Soccer

 

Maziarz, Aleksander (Poland): Tying and Bundling: Applying EU Competition Rules for Best Practices

 

Mbiriri, Edith (South Africa): Creditors' interests still carry the day in Business Rescue: Swart v Beagles Run Investments

 

Miliauskas, Paulius (Lithuania): Right of Inquiry in Corporate Law

 

Mmusinyane, Boitumelo and Serumaga-Zake, Steven (South Africa): An End to Impunity: the International Criminal Court's Indictment of African Dictators/Leaders

 

Mmusinyane, Boitumelo (South Africa): South Africa's Poverty Alleviation Strategy Through Housing: Chasing The 2015 Mdg's Pragmatic?

 

Modiba and Budeli, Mpfariseni (South Africa): The Right to Work as a Socio-economic Right: An International and South African Perspective

 

Mojsoska, Snezana (Macedonia): New technological progress in order of e- money laundering

 

Moosa, Najma (South Africa): An Analytical Overview Of The Legal Consequences (implications) Of A Muslim Divorce In The Context Of South African Law, Islamic Law And The Proposed 2010 Muslim Marriages Bill (MMB)

 

Mouhtaropoulos, Antonis and Li Chang-Tsun (Greece): Forensic Readiness Framework Components: a Preliminary Approach

 

Mthembu, Mpakwana Annastacia (South Africa): Marriage of Convenience: Bank-Customer Relationship in the Age of Internet a South African Perspective

 

Mukheibir, André (South Africa): The Tale of the Good Samaritan Revisited

 

Ndlovu, Lonias (South Africa): SADC Tribunal Review: Does the SADC Tribunal Require Appellate Jurisdiction?

 

Nottingham, Emma (UK): Breaking the rules: the importance of hypothetical challenge and procedural avoidance in the legal development of childrens' rights in health care

 

Ong, Rebecca (Hong Kong): Internet intermediaries: The liability for defamatory postings in China and Hong Kong

 

Owoeye, Olasupo (Australia): Parallel Trade and the Exhaustion Doctrine: Implications for the Access to Medicines Challenge

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Chinese Take-aways: What Can China Learn from the English Experience of Derivative Actions? by Fang Ma, School of Law, University of Hertfordshire, UK

 

 

 

 

 

 

 

 

 

 

 

 

Dr Fang Ma (PhD, LLM, LLB, PGCE) is a Lecturer in Law at the University of Hertfordshire in the United Kingdom. She obtained LL.M at University of Nottingham and gained Ph.D in Law at University of the West of England, Bristol. Fang lectures on Company Law and International Commercial Law at both undergraduate and postgraduate levels. Her research interests include Chinese and English company law, corporate governance, international trade law and corporate governance. Fang has published a book on Company Law Q&A (Pearson, 2012) and a number of articles in leading corporate and commercial law journals such as Company Lawyer and International Commercial and Company Law Review.

 

Abstract

This article evaluates the derivative actions in England and China from a comparative perspective. The statutory derivative actions are introduced by the Companies Act 2006 in England to replace the rules at common law; whilst derivative actions are introduced for the first time in China by the Chinese Company Law 2005. It is argued that some pertinent and important lessons can be learnt from the English experience for future law reforms in China, taking into account their distinct constitutional-political, socio-economic, legal and cultural backgrounds. In particular, a more sophisticated set of procedural rules should be established in China to minimize the number of malicious suits and the courts should play a substantially more active role in determining whether derivative actions can proceed. At the same time, the unfair prejudice remedy should also be considered for adoption in future Chinese company law reform.

 

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"Electronic transport records": Assessing the contribution of the Rotterdam Rules to e-commerce by Ioanna Magklasi, University of Southampton, UK.

 

 

 

 

 

 

 

 

 

 

 

Ioanna is currently a Ph.D Researcher at the University of Southampton and the working title of her thesis is "The impact of the Rotterdam Rules on International Trade Law". She completed her LL.M (Master of Laws) in Maritime Law at the University of Southampton and her dissertation had the title: "Rights of rejection in International Trade Law- In quest for an ideal regime", in 2010. In 2009, she obtained her LLB (Bachelor of Laws) from the National and Kapodistrian University of Athens. She is a qualified lawyer and a member of the Athens Bar Association. Ioanna is a tutor in law of the course of International Commercial Sales at the Law School of the University of Southampton She has published extensively in top-ranked law journals. She was recently a speaker in the "Maritime Law and Policy Postgraduate Research Conference 2012 with the paper:"The Rotterdam Rules and paperless contracts:some critical reflections"(March 2012)..Last year she was an author and speaker in the 2011 IAITL Legal Conference NICOSIA, CYPRUS, under the 2nd International Private Law Conference (IPL) with the paper entitled: "Documents' Complexities under the Rotterdam Rules" (September 2011). She was also a speaker in Second Maritime Law and Policy Postgraduate Students Conference 2011, held at the University of Westminster with the presentation on "The impact of the Rotterdam Rules on International Trade Law"(1st April 2011).

 

 

Abstract

The Rotterdam Rules is the first international maritime carriage Convention that officially acknowledges electronic records of contracts of carriage and has devoted a separate chapter to their regulation. This paper aims to assess the impact of the Rotterdam Rules on facilitating the conclusion of maritime contracts electronically. Whether articles 8 and 10 of the Rotterdam Rules provide an effective mechanism for electronic cargo documentation, and in which ways will be investigated. Where the impact of these provisions of the Rotterdam Rules on electronic commerce is judged unsatisfactory more efficient and trustworthy ways of transforming the Rules to make them a more effective springboard for paperless trade will be suggested.

 

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Fitting the Circumstances of Online Use into Substantive Law Affected by Internet: Is it Sufficient? by Phillemon Makakaba University of South Africa, South Africa.

 

 

Phillemon Makakaba is a Lecturer at the Department of Mercantile Law, College of Law, University of South Africa. He worked as a school teacher at several public schools and left to join security industry where he qualified and worked up to the level of Security Instructor in South Africa. He holds a University Diploma in Education which he obtained at Moretele College of Education as affiliated with University of North West. He obtained his LL B at University of Limpopo where he received a Top Student Award, sponsored by Standard Bank, for outstanding achievement as Best Student in the Law of Evidence in 2006. He recently finished his LL M in Banking Law at University of South Africa. His areas of interest are Banking Law, Negotiable Instruments, Cyber Law and African Law.

Abstract

A long awaited South African judgment on online gambling was delivered by the Supreme Court of Appeal in Casino Enterprises v The Gauteng Gambling Board & others [2011] ZASCA 155 on 28 September 2011. That was an appeal from the North Gauteng High Court (the 'High Court') judgment in Casino Enterprises v Gauteng Gambling Board 2010 (6) SA 38 in which the High Court applied the National Gambling Act 7 of 2004 and Gauteng Gambling Act 4 of 1995 (the 'Provincial Act') to decide on an online related matter although these statutes do not include an online matter and decided that gambler on Casino Enterprises' online casino is playing one of the games offered by Casino Enterprises in Gauteng and not in Swaziland. This paper is a follow up of the paper that was presented at the European University of Cyprus on 21 September 2011 (see 'Regulation of Online Casinos Licensed in a Foreign Jurisdiction: South African Perspective' in Sylvia Mercado Kierkegaard (Ed) & Patrick Kierkegaard Assoc Ed) Law Across Nations: Governance, Policy & Statutes (2011) and published in "South African Regulation of Online Casinos Licensed in a Foreign Jurisdiction" (2012) 28 Computer Law and Security Review: The International Journal of Technology Law and Practice 445-452. This paper also argues that it is not sufficient in an online related matter, for the court to fit the circumstances of online use into substantive law (which the legislature did not have internet in mind), affected by internet.

 

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The European Right to Be Forgotten by Alessandro Mantelero, Politecnico di Torino, Italy.

 

 

 

 

 

Alessandro Mantelero is Professor of Private Law at Politecnico di Torino, (Fourth School of Engineering Management and Industrial Engineering) and Faculty Fellow at Nexa Center for Internet and Society. He graduated cum laude in Law at the University of Turin on 1998. Ph.D. in Civil Law from the same University. He is author of numerous publications and is currently focusing his studies on data protection, ISP liability and legal implications of cloud computing and big data. Alessandro Mantelero was admitted to the Italian bar in 2001. He is involved in different national and international research programs and is Project Member at the Network of Excellence in Internet Science and co-director of Cloud Computing Governance Initiative for the Nexa Center. The Cloud Computing Governance Initiative has been launched by the Berkman Center (Harvard University) and involves the following universities and research centers: Harvard University (Berkman Center), Politecnico di Torino ( Nexa Center), Keio University and University of St. Gallen. In 2012 he was Visiting Researcher at Berkman Center for Internet & Society at Harvard University.

Abstract

The presentation of the EU Proposal for a General Data Protection Regulation has caused a wide debate between lawyers and law scholars and many opinions have been voiced on the issue of the right to be forgotten. In order to analyse the relevance of the new rule provided by Article 17 of the Proposal, this paper considers the original idea of the right to be forgotten, pre-existing in both European and U.S. legal frameworks. This article focuses on the new provisions of Article 17 of the EU Proposal for a General Data Protection Regulation, in order to evaluate its effect on the court decisions. The author assumes that the new provisions do not seem to represent a revolutionary change to the existing rules with regard to the right granted to the individual, but have an impact on the extension of the protection of the information disseminated on-line.

 

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(INTER)National Standards on Money Laundering with Regard to the FATF Recommendation by Naledi Thabang Masete and Jacques Clarence Duvenhage, University of South Africa, South Africa.

 

Ms Naledi Thabang Masete is a Lecturer within the Department of Mercantile Law at the University of South Africa. She obtained her LLB degree from the University of South Africa and she is an LLM Candidate in Banking Law. Her research interest is on Banking law, Tax law and Social Security Law.

 

 

 

 

 

 

 

 

Mr Jacques Duvenhage is a lecturer in the Department of Mercantile law at the University Of South Africa (UNISA). He teaches Commercial Law and Supervises LLM students in the fields of Corporate and Labour Law. He graduated with his LLB at the University of Pretoria in 2009. During his undergraduate studies he was awarded meritorious performance awards as well as an ABSA bursary (member of Barclays). These awards included the South African Society for Labour Law (SASLAW) prize for the best student in Fundamental Labour Law in 2009. He was placed on the Dean's Merit List for academic excellence. He is also a member of the Golden Key International Honour Society. In 2010, he completed his LLM degree at the University of Pretoria specialising in Mercantile Law, which included the following subjects: Specific Contract Law with specialisation on the new Consumer Protection Act, Statutory Competition Law, Transnational Business Law and a Dissertation topic on Anti-dumping and Anti-dumping Regulations between the European Union, China and South Africa: A Comparative Study. During his LLM, he was awarded an Achievement Bursary from the University of Pretoria. He completed a trial advocacy course presented by the Pretoria Bar as well as a Certificate Course on Air, Space and Telecommunications Law presented by Prof Hobe from the University Of Cologne, Germany. Furthermore he is a qualified Commercial mediator and negotiator. He is currently reading for a LLD at UNISA.

Abstract

The variations that exist in the definitions or interpretations of money laundering is not relevant to the actual meaning of the term money laundering, but rather to the transactions that could be indicative of money laundering. Therefore money laundering becomes easier when scantily legislation creates loopholes that can be demoralised by criminal syndicates and terrorist financing. In recent years, the international community has become more aware of the dangers that money laundering poses. Many countries have committed themselves in taking action against these dangers. Money laundering attracted increasing interest since the late 1980's. To control the increase in money laundering, a number of initiatives were adopted, for example the Financial Action Task Force on money laundering (FATF) in 1989. Money laundering activities can occur in any country, but they may have a more significant impact on developing countries with small or fragile financial systems or weak economies that are susceptible to disruption as a result of illicit activities. The new recommendations made by the FATF will be discussed critically with regard to combating of money laundering. This article gives an historical overview of what money laundering entails in South Africa, the typologies thereof as well as the legislation dealing with money laundering. Money laundering is difficult to measure, but a preliminary attempt is made to give recommendations on this global predicament.

 

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Gender Equality Gap in South Africa: Bridging the Divide by Shighughudwana Mashele, Executive Director of Tashima Research, Nelspruit, South Africa and Gugulethu Nkosi, University of South Africa, South Africa.

 

GUGULETHU SHARON NKOSI, BProc, LLB- University of KwaZulu Natal; LLM - University of the Witwatersrand; is a Senior Lecturer in Social Welfare Law in the Department of Jurisprudence, College of Law, University of South Africa. Gugulethu is an admitted advocate of the High Court of South Africa. Her research interest is on Social Security Law, Child Law, Gender & the Law and Indigenous African Law. Gugu is also the author of several articles in accredited journals locally and internationally.

 

 

 

 

SHIGHUGHUDWANA MASHELE, BA with Hons (Addis Ababa University, Ethiopia), MA in Development Studies (Institute of Social Studies, The Hague), DLitt et Phil (Economics & Econometrics - University of Johannesburg). After teaching Economics for a number of years, he retired from academia and is now the Executive Director of Tashima Research, based in Nelspruit, South Africa.

Abstract

Gender discrimination in South Africa (SA) has been premised on a framework that balances precariously on archaic social, cultural, customary, and legal pillars. Since the pre-colonial era, patriarchy has wormed its way to corrupt the moral fibre of society to the extent of trampling on the inherent dignity of women. This incivility has been propelled by chauvinistic, male interests hiding behind the fig leaf of culture, religion and even "civilised" legal systems. Cumulatively, gender discrimination contributed towards a feminization of poverty in SA. However, with the advent of democracy in 1994, SA has taken commendable legislative and policy strides towards the disentanglement of the shackles that kept women subdued under the jackboot of male domination. SA has also acceded to international and regional instruments designed to achieve gender equality and to empower women. One such instrument is the United Nations Millenium Declaration of 2000 which identified 8 Millenium Development Goals (MDGs) to be achieved by developing nations by 2015. This paper focuses on MDG 3 with specific reference to SA. MDG 3 relates to gender equality and women empowerment. Technically, gender parity in the education system has been achieved, but not holistic women empowerment.

 

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Liability to Gambling Fans and Supporters in Favour of Fair Play in Soccer by Matome Boaz Masuku, University of South Africa, South Africa.

 

 

 

Matome Boaz Masuku is a Lecturer at the Department of Mercantile Law,UNISA, South Africa.

 

 

 

 

 

 

 

 

 

 

 

 

Abstract

This article is inspired by the 2010 World Cup™ qualifying soccer match between Ireland and France. In that match, a hand was used to steer a ball which led to a goal being scored against Ireland in favour of France. That is something which could have happened in any other big soccer event. It is something which was once referred to as 'The Hand of God' by Diego Maradona, in which England was knocked out of the World Cup in 1986.With all this happening in a field of soccer, many supporters and fans are involved in different forms of sport betting – in particular soccer. Wrong decisions often lead to certain results which then influence the outcome of a bet. Should football association be liable to gamblers who lost their fortunes?

 

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Tying and Bundling: Applying EU Competition Rules for Best Practices by Aleksander Maziarz, Kozminski University Law School Warsaw, Poland.

 

Dr Aleksander Maziarz, is the Deputy Director of the Law School of the Kozminski University in Warsaw. Dr Maziarz obtained his Master's degree in Law from Maria Curie-Sklodowska University in Lublin. He holds a PhD in law form Catholic University of Lublin and MBA degree from the Warsaw University of Technology. He lectures on EU Competition Law, Economic Law and Administrative Law. He is attorney at the Warsaw Bar where he also conducts classes for trainee lawyers.

 

Abstract

Tying and bundling are examples of practices that constitute abuse of a dominant position whiting the meaning of art. 102 TFEU. Such practices can take many various forms –from technological tying to mixed bundling. There are many reasons for tying. One of them is that companies can reduce costs by offering together products and provide customers with products of better quality or cheaper. On the other hand in most cases the European Commission of the EU courts had found that tying practices were aimed at causing damage to competitors or customers. The article presents case law of the EU Courts and the decisions of European Commission concerning tying practices. It focuses conditions that have to be met in order to classify the practice of the company as abuse of dominant position.

 

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Creditors' interests still carry the day in Business Rescue: Swart v Beagles Run Investments by Edith Mbiriri, University of South Africa, South Africa.

 

EDITH MBIRIRI ( LLB; LLM (Specialisation in Insolvency Law) - University of Pretoria, is a Lecturer in Insurance Law in the Department of Mercantile Law, College of Law, University of South Africa. Her research is on Insurance Law, Insolvency Law and Corporate Law.

 

 

 

 

Abstract

The Companies Act 71 of 2008 introduced a new business rescue regime into South African corporate law. Business rescue is a procedure that facilitates the rehabilitation of a financially distressed company. The business rescue regime is debtor-friendly and replaced the judicial management which was creditor-friendly and which proved to have been inadequate and ineffective in rescuing companies experiencing financial difficulties. The case of Swart v Beagles Run investments 25 (Pty) Ltd is significant as it was the first case dealing with the business rescue provisions. The court had to consider the requirements for commencing business rescue and looked to the judicial management provisions for assistance. The study focuses on the decision of the court and its reliance on judicial management despite the two regimes having different emphasis in terms of the interests of the stakeholders and the requirements for commencing the business rescue procedure as set out in the Companies Act.

 

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Right of Inquiry in Corporate Law by Paulius Miliauskas, Vilnius University, Lithuania.

 

 

Paulius Miliauskas is pursuing a joint PhD degree at the Private Law Department, Faculty of Law, Vilnius University (Lithuania) and Faculty of Law at Ghent University (Belgium). Paulius Miliauskas has started his PhD research in 2009 after earning his Master of Laws degree from Vilnius University. His PhD thesis is entitled "Company Law: Conflicts of Interests Arising in Publicly Traded Companies" and is focused on analysing legal measures to solve agency problems (particularly shareholders' agreements). Paulius has also practiced law in private sector, specialising in company law. Main research interests include legal issues arising in company law and corporate governance.

 

Abstract

Due to the major role that shareholders play in both private and public companies, legislators in various jurisdictions emphasize the need to protect their interests and rights through legal instruments. In this regard, the right of inquiry is a unique right granted to shareholders enabling them to better protect their interests in the company. In essence, the right of inquiry allows shareholders of a company to assess whether the company is managed according to the principles of company law, whether there has been a misconduct in the management of the company (fiduciary duties of the members of the board are especially emphasized in this case) and whether the company is managed for the benefit of all the shareholders. Once the assessment of the management of the company is complete, the right of inquiry provides just and effective reliefs in order to remedy the situation in question after the misconduct has been identified. Only two countries in the European Union are known to empower shareholders with such a right – the Netherlands and Lithuania. Due to this reason, a legal analysis of the right of inquiry is necessary to determine whether it positively influences the relations between the shareholders and members of the board of the company and if it can be used to address the issue of conflicts of interests between the aforementioned subjects. The article examines the right of inquiry in the Netherlands and Lithuania, discusses the differences of the procedures established by the laws of each country and analyses whether the right of inquiry is an essential right for the shareholders of the company that could be introduced in the laws of other jurisdictions.

 

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An End to Impunity: the International Criminal Court's Indictment of African Dictators/Leaders by Boitumelo (Tumi) Mmusinyane, University of South Africa and Steven Serumaga- Zake, The Vaal University of Technology, South Africa.

 

 

Mr. Boitumelo (Tumi) Mmusinyane is a Senior Lecturer within the Department of Private Law, University of South Africa (UNISA), and an LLD Candidate at UNISA, with his thesis on the comparative analysis of the right to adequate housing in South Africa, India and Canada. Tumi holds a Diploma in Human Rights Law from Åbo Akademi University-Finland, LLM in Human Rights Law from the University of Pretoria and an LLB Degree from then Vista University. He is a former Presiding Judge of the 3rd and Judge of the 2nd World Human Rights Moot Court Competitions (University of Pretoria) in 2011 and 2010 and also the Presiding of the 2nd and 1st National Schools Moot Court Competition (2012-2011h). His research interest is approaching the law from a Human Rights Law perspective.

 

 

 

Advocate Steven Serumaga- Zake is a lecturer at The Vaal University of Technology, Vernderbjilpark Campus -South Africa. He completed his LLB and LLM degrees, majoring in International Law at the North West University. He also holds a Bachelors of Technology Degree: Forensic Investigation from the University of South Africa that qualifies him to be a forensic investigator. He lectures commercial law, Law for public relations, and Crime Investigations, while his field of specialisation is on international law and international humanitarian laws.

 

 

Abstract

Africa has for long been seen as a hub for the cultivation and preservation of dictators, whose ambition is to stay in power forever if not for life. Their determination to clinch to power has seen them employing tyrannical rules ultimately leading to a significant number of victims some dead and some still alive. While some dictators have died, some fled their countries and some still in power, the latter continues to rule with an iron fist. The adoption of the Rome Statute seems to have brought a paradigm shift in the whole international criminal law spectrum by bringing hope to the victims of these tyrannical rules. Such hope is as a result of the Rome Statute stripping off these leaders of their diplomatic immunity thereby making it possible to investigate and prosecute them for the crimes they committed. Although the ICC is viewed by many African leaders as a tool being used by the West to victimise African leaders and humiliating them at the international platform, this paper attempts to critically justify the ICC's mission through evaluating and exposing reasons why the ICC should be supported and encouraged. Advantages such as the possibility of redressing the rampant impunity pandemic is the major justification why it may be using Africa as a test to bring an end to impunity at the same time rehabilitating those still in power to comply with the international humanitarian and human rights law obligations.

 

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South Africa's Poverty Alleviation Strategy Through Housing: Chasing The 2015 Mdg's Pragmatic? by Boitumelo (Tumi) Mmusinyane, University of South Africa, South Africa.

 

Mr. Boitumelo (Tumi) Mmusinyane is a Senior Lecturer within the Department of Private Law, University of South Africa (UNISA), and an LLD Candidate at UNISA, with his thesis on the comparative analysis of the right to adequate housing in South Africa, India and Canada. Tumi holds a Diploma in Human Rights Law from Åbo Akademi University-Finland, LLM in Human Rights Law from the University of Pretoria and an LLB Degree from then Vista University. He is a former Presiding Judge of the 3rd and Judge of the 2nd World Human Rights Moot Court Competitions (University of Pretoria) in 2011 and 2010 and also the Presiding of the 2nd and 1st National Schools Moot Court Competition (2012-2011h). His research interest is approaching the law from a Human Rights Law perspective.

 

 

Abstract

Section 26(1) of the Constitution of the Republic of South Africa, 1996 grants everyone the right to have access to adequate housing and in terms of section 26(2) it is government's duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. This paper critically evaluates the extent to which housing to the poor, the unemployed and the homeless contributes to government's poverty alleviation strategy and also how the provision of housing to these categories of people will help the government in meeting its MDGs targets. The paper also engages the challenges the country is facing since 1994 in delivering housing to those in need.

 

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The Right to Work as a Socio-economic Right: An International and South African Perspective by Mobida and Mpfariseni Budeli, University of South Africa, South Africa.

 

 

 

 

 

Mpfariseni Budeli completed her undegraduate studies at the University of the North, with a Bachelor Degree (LLB) in 2000. In 2003, she was awarded the degree Master's of Laws (LLM in Labour Law). In 2007, she completed her PhD in Commercial Law at the University of Cape town and was the first black South African woman to obtain a PhD in Commercial Law from the University of Cape Town. In 2008, she was awarded a certificate of an expert on workers' rights to freedom of association and collective bargaining by the International Labour Organisation's Office (Geneva, Switzerland). She joined the University of South Africa (UNISA) in 2008. She was awarded a certificate of being the youngest PhD holder at UNISA in 2008. In 2010 she was promoted to a position of an associate professor. Mpfariseni Budeli is currently Professor in the Department of Mercantile Law at UNISA. She is also a visiting professor for Labour Law at the University of Lusaka, Zambia and the University of Dar Es Salaam, Tanzania. She is one of the 20 founding members of the South African Young Academy of Science(SAYAS). Prof Budeli is also admitted as an attorney of the High Court of South Africa.

 

MR MODIBA (LLB LLM (University of Limpopo) PhD (UCT)) is an Associate Professor in the Department of Mercantile Law, School of Law, University of South Africa, admitted attorney of the High Court in South Africa.

 

Abstract

The 1996 Constitution of the Republic of South Africa contains a Bill of Rights which is the cornerstone of democracy in South Africa. The Bill of rights enshrines the rights of all people in the country and affirms democratic values of human dignity, equality and freedom. The South African Bill of Rights was hailed as one of the most progressive in the world in so far as it provides for all "generations" of rights. It provides for civil and political rights as well as social and economic rights. According to the human rights doctrine, the right to work falls in the last category of rights. It is one of the core socio-economic rights. However, despite tremendous progress that has been made, unemployment still remains one of the top challenges that South Africa faces and the fight against it featured prominently in the manifestos unveiled by different political parties ahead of the 2009 general election. Unfortunately, in spite of its great importance, the right to work has not sufficiently been discussed. A lot has been written on issues such as discriminatory access to work, dismissals at the workplace but little on the right to work itself. This could be justified by some reluctance to deal with the right to work as justiciable and enforceable on the same par as other human rights or by the lack of understanding of what the right to work actually entails. It is against this background that this paper seeks to investigate the right to work as a socio-economic right under the 1996 Constitution of the Republic of South Africa. The paper first reflects broadly on social and economic rights and on state's obligations in enforcing this right. It also assesses the protection of this fundamental right in universal and regional human rights instruments. It then examines its protection and enforceability as a socio-economic right and ends with a brief conclusion.

 

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New technological progress in order of e- money laundering by Snezana Mojsoska, University "St. Kliment Ohridski"-Bitola, Macedonia.

 

Asst .Prof. Snezana Mojsoska, Faculty of security-Skopje, University "St. Kliment Ohridski"-Bitola, Macedonia

 

 

 

 

 

Abstract

E-money, e banking, e- trade, e-business is e-economy. As a result of technology development and modernization, the Internet takes a key role in communication between individuals, business community and society and arise new way of crime known as cyber laundering. Electronic use of money has many positive sides (payments at any time, checking account at any time, transfer of money, less commissions, etc.), but also has disadvantages and possibility for fraud especially for money laundering. According to data from the Institute for Statistics, use of e- payments in Macedonia is in growing, but still on a low level. Macedonia has no regulations for controlling and preventing e-money laundering. It is necessary to establish appropriate bodies and procedures for operation and control of international e-payments systems, regulatory authorities to monitor the activities of these systems through the implementation of a framework for the registration and identification of users and etc.

 

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An Analytical Overview Of The Legal Consequences (implications) Of A Muslim Divorce In The Context Of South African Law, Islamic Law And The Proposed 2010 Muslim Marriages Bill (MMB) by Professor Najma Moosa, University of the Western Cape, South Africa.

 

Professor Najma Moosa (BA LLB LLM LLD (UWC), is a Professor of Law at the Faculty of Law, University of the Western Cape;Dean of the Faculty of Law from 2002 to 2008.;Advocate of the High Court of South Africa. Member of the Project (59) Committee (Islamic Marriages & Related Matters) of the South African Law Reform Commission from 1999-2003.

 

 

 

 

 

 

Abstract

Although Muslims first arrived in South Africa more than 350 years ago, their religious marriages are currently still not directly recognised in terms of South African (common) law. However, Muslim marriages are in the process of being formally recognised and recognition is proposed to take place by adjusting South African law. Following a protracted process, a statement of Muslim Personal Law (MPL) has been framed that can satisfy and synthesise both diverse Muslim (ideological) perspectives and the relevant constitutional commands (guarantees of religious freedom and equality to all South Africans). One of the key objectives of the proposed legislation (2010 MMB) is to regulate the consequences flowing from the termination of such Muslim marriages through divorce. The proposed legislation does not further reform divorce laws but accords with Islamic law as it is currently understood and practically implemented in the Muslim world. In South Africa, MPL is informally and unofficially regulated through Muslim religious (ulama) tribunals whose decisions, although morally binding, are not legally enforceable. Recalcitrant husbands therefore cannot be legally compelled to abide by the decisions of these tribunals or to give effect to the usually limited consequences flowing from such divorces. This has often resulted in Muslim women, left with no other option, seeking recourse in terms of South African law and approaching secular courts for relief. When provided by secular courts, relief is usually, although not necessarily, limited to the confines of Islamic law. Given this context, I propose to critically analyse and provide an overview of the legal consequences flowing from such a Muslim divorce in the context of South African law, Islamic law and proposed MMB.

 

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Forensic Readiness Framework Components: a Preliminary Approach by Antonis Mouhtaropoulos and Chang-Tsun Li, Department of Computer Science, University of Warwick, UK.

 

 

Antonis Mouhtaropoulos is a Ph.D. student at the Department of Computer Science, University of Warwick under the supervision of leading researcher Prof. Chang-Tsun Li. He is a member of the Digital Forensics Laboratory and the Performance Computing and Visualisation research group. He has received a B.Sc. (Hons) in Economics (2003) from the Department of Development and Economic Studies, University of Bradford (UK) and an M.Sc. in Computer Science (2004) from the Department of Computing, University of Bradford (UK). His research interests lie in the overlap of Information Security, Digital Forensics and Economics. Antonis is also a Professional Member of the IEEE and the BCS.

 

Chang-Tsun Li received the B.E. degree in electrical engineering from Chung-Cheng Institute of Technology (CCIT), National Defense University, Taiwan, in 1987, the M.S. degree in computer science from U. S. Naval Postgraduate School, USA, in 1992, and the Ph.D. degree in computer science from the University of Warwick, UK, in 1998. He is currently a professor of the Department of Computer Science at the University of Warwick, UK, the Editor-in-Chief of the International Journal of Digital Crime and Forensics, an editor of the International Journal of Imaging (IJI) and an associate editor of the International Journal of Applied Systemic Studies (IJASS) and the International Journal of Computer Sciences and Engineering Systems (IJCSE). He has been involved in the organisation of a number of international conferences and workshops and also served as member of the international program committees for several international conferences. His research interests include digital forensics, multimedia security, bioinformatics, computer vision, image processing, pattern recognition, evolutionary computation, machine learning and content-based image retrieval.

 

 

Abstract

Digital Forensic Readiness is defined as the pre-incident plan within the digital forensics lifecycle that deals with digital evidence identification, preservation, and storage whilst minimizing the costs of a forensic investigation. Such a plan is a mandatory requirement for all organizations and agencies connected to the UK government. Even though a number of forensic readiness policies have been proposed in the past, a universal academic framework to facilitate the application and integration of a proactive plan does not exist. In this paper, we propose a preliminary approach on components needed to devise a forensic readiness framework. The components aim to satisfy both objectives of a proactive plan: the maximized usage of digital evidence and the minimized cost of forensics on incident response.

 

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Marriage of Convenience: Bank-Customer Relationship in the Age of Internet a South African Perspective by Mpakwana Annastacia Mthembu, University of South Africa, South Africa.

 

MPAKWANA ANNASTACIA MTHEMBU (BJuris, LLB- University of Zululand; LLM (Specialisation in Commercial Law) - University of South Africa; LLM (Specialisation in Mercantile Law)- University of Pretoria, is a Senior Lecturer in Corporate Law in the Department of Mercantile Law, College of Law, University of South Africa. Mpakwana is an admitted advocate of the High Court of South Africa. Her research interest is on Labour, Banking, Technology and Corporate Law

 

 

 

 

Abstract

The last three decades has experienced the introduction of computers and information technology at many levels of human transaction, namely transfer of funds, data collation and conclusion of contract. The internet is used a medium of transmission of a customer's mandate and communication of information between the parties. Banking law proper deals with the relationship between the bank and the customer. Traditionally the relationship is that of the mandator and mandatee. This relationship not only embraces mutual duties and obligations for the parties, but also offers privileges. Internet improves the efficiency of the bank's systems of collecting and transmitting orders for execution, regardless of the location of the customer. In a typical internet banking transaction, the relationship between the online bank and the customer gives rise to a hybrid nature of the contract between the parties. The relationship of the bank and the customer does not arise unless both parties intend to enter in a relationship. This paper will analyse some of the legal risks created by laws regulating the bank-customer relationship.

 

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The Tale of the Good Samaritan Revisited by André Mukheibir, Nelson Mandela Metropolitan University (South Campus), South Africa.

 

Andre Mukheibir is Head of Department of Private Law at the Nelson Mandela Metropolitan University in Port Elizabeth. She holds the degrees BMus, BJuris and LLB from the erstwhile University of Port Elizabeth, BA (Hons) from the University of South Africa. She successfully defended her doctoral thesis at the University of Amsterdam in 2007. Her research interests are Law of Delict, Law of Damages and Tort theory. She currently lectures law of delict and law of damages.

 

 

 

 

 

Abstract

The South African law of delict follows a generalising approach; however it recognises a number of specific actions for specific situations, for example, harm caused by employees in the course and scope of their work and harm caused animals. South African law has increasingly recognised liability for wrongful omissions on the part of people who have a legal duty to prevent harm. Several of these "special" cases referred to above could thus also be brought within the ambit of the more general actions by imposing liability for negligent omissions on the part of certain people. The need to establish specific requirements is reduced. Instead of imposing liability on someone based on specific rules, one can instead impose liability on the basis that the defendant failed to prevent harm when there was a legal duty to do so. This legal duty would accord with the notion of Ubuntu.

 

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Exactly When Does The 'imposition' Of An Anti-dumping Duty Commence? Progress Office Machines V South African Revenue Services by Lonias Ndlovu, University of Zululand, South Africa.

 

 

 

 

Lonias Ndlovu is currently a senior lecturer and former vice Dean in the Faculty of Commerce, Administration and Law at the University of Zululand, KwaDlangezwa South Africa. He has spent the last seven years in the legal academy and has presented and published scholarly papers on a number of issues ranging from international trade law to law and pedagogy. Lonias' academic career kicked off in 2005 when he joined the University of Fort Hare in South Africa as a junior lecturer. He possesses the following academic qualifications: Diploma in secondary education (University of Zimbabwe, 1997); Certificate in International Human rights (University of Cape Town, 2001); LLB (University of Fort Hare, 2003; and LLM (University of Fort Hare, 2005). Lonias is currently an LLD candidate with the University of South Africa and the study deals with access to medicines by SADC member states in light of the flexibilities afforded by the WTO TRIPS Agreement. He teaches courses in commercial law, advanced company law, international trade and intellectual property law.

 

Abstract

In comparison with other countries in the SADC region, South African courts have relatively been active in developing World Trade Organisation (WTO) law in the municipal context. This development has widely been confined to dumping/anti-dumping matters and to a very limited extent, safeguards measures. In this paper, I critically analyze one contentious case, namely, Progress Office Machines CC v South African Revenue Services and come to the inescapable conclusion that the decision in the case was wrong. Such a conclusion is borne out of the fact that the Court's ruling had no textual basis either at WTO law or municipal law. The above criticism notwithstanding, the judgment does make a modest contribution to the development of South African jurisprudence on the subject of dumping/anti-dumping. Therefore, the decision has both positive and negative aspects which this paper attempts to highlights in a balanced critical manner.

 

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Breaking the rules: the importance of hypothetical challenge and procedural avoidance in the legal development of childrens' rights in health care by Emma Nottingham, University of Southampton, UK.

 

Emma Nottingham (LL.B. (Hons) University of Southampton) is a Ph.D. candidate and part-time tutor at Southampton Law School, University of Southampton. Her research interests include health care law, bioethics and family law.

 

 

 

 

 

 

Abstract

Gillick v West Norfolk and Wisbech Area Health Authority and another, the leading case on children's rights, should not have reached the House of Lords because rules of procedure, which ordinarily would have had the case struck out at first instance, were not followed. The Law Lords and judges in the lower courts overlooked these procedural questions in their judgments in order to reach the substantive issues Gillick raised in relation to children's rights. This article contends that the Law Lords were correct to do so. Gillick raised pressing issues relating to children's rights which had the potential to develop the law. If the procedure had been rigidly adhered to, these issues would not have seen the light of day. The UK Parliament has not led the way in strengthening child rights. Given this fact, this article contends that Gillick shows that the judiciary can and should decide future test cases which raise important matters in relation to children and their legal status. Judges should overlook procedural issues if there are substantive rights questions to be addressed.

 

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Internet intermediaries: The liability for defamatory postings in China and Hong Kong by Rebecca Ong, City University of Hong Kong, Hong Kong.

 

Prof. Rebecca Ong (LLB (Hons) University of London, Master of Laws King's College, London, Barrister at Law (Lincoln's Inn), Master of Laws University of Strathclyde, Glasgow, PhD(Leiden), Advocate & Solicitor, High Court of Malaya (Not presently in practice), PhD (University of Leiden, The Netherlands) is an assistant professor at the School of Law of the City University of Hong Kong.

Abstract

The debate between protecting the freedom of expression on the one hand and the right to an individual privacy on the other is not new. Certainly with the introduction of the Internet, the debate has moved onto a whole new level. While no-one disputes that the Internet has significantly transformed lives by allowing netizens to create, share, and communicate within the global village, the Internet has also provided the means to publish and disseminate false information and derogatory remarks callously and expediently. The aim of this paper is to provide a brief comparative study of the approaches in China and in Hong Kong with respect to Internet intermediary liability for defamatory postings and whether the approaches taken provide the necessary balance between the right of free expression and the right to protect one's reputation. The paper starts by dealing with the position in China pre and post Tort Liability Law. The paper then continues by examining the position in Hong Kong focusing particularly on the recent Court of Appeal decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd. In comparing the position in China and Hong Kong, the paper provides a conclusion as a possible way forward for Internet intermediary liability in China and Hong Kong.

 

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Parallel Trade and the Exhaustion Doctrine: Implications for the Access to Medicines Challenge by Olasupo Owoeye, Doctoral Researcher and Tutor, School of Law, University of Tasmania, Australia.

 

 

Supo Owoeye obtained his Bachelor of Laws degree from the University of Ibadan Nigeria in 2007. He was called to the Nigerian Bar in 2008 and worked with leading Nigerian law firms, including Punuka Attorneys and Solicitors, Nigeria, during which time he wrote and published a book on the Nigerian Legal System. He commenced his research programme as an LL.M (Thesis) Candidate at the University of Tasmania, Australia before he was upgraded to the PhD candidature. Supo's doctoral thesis is examining the WTO TRIPS Agreement patent regime and its implications for access to medicines, particularly in Africa and the options African countries can explore within and without the TRIPS Agreement in addressing the access to medicines conundrum.

 

Abstract

This paper takes a look at the vexed issues of exhaustion of intellectual property rights and parallel importation and the extent to which these can actually be useful in facilitating access to medicines in the developing world. The paper examines the legal framework for exhaustion of rights in public international law and how it relates to the idea of parallel importation (otherwise known as parallel trade). It equally considers the concept of geographical differential pricing which strives to achieve market segmentation by ensuring that goods are charged according to the purchasing powers of a given market. The paper highlights the emerging conflicts between the concept of parallel importation and the differential pricing phenomenon as well as whether competition policy would be a more effective option than parallel trade in addressing the access to medicines conundrum in developing countries.

 

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