The focus of this contribution is on the consumer's cooling-off right in terms of section 16 of the Consumer Protection Act 68 of 2008 in the case of consumer agreements in South Africa compared with the positions in the EU member states: the United Kingdom and Belgium. In its simplest form a cooling-off right can be described as a statutory right accorded a party in terms of which he or she may withdraw from the agreement without reason or penalty within a specified time, provided that this is done in accordance with the statutory formalities of the particular Act. A comparative analysis is conducted to determine if a cooling-off right is in fact advantageous and how the advantage is to be determined. As a basis the concept of virtue by Aristotle is used in that a 'virtue is to make a habit of choosing the mean'. The concept is analysed comparatively by discussing 'the mean' (the possible voices between which a mean needs to be found); 'the choice' (the responsibility of making the choice lies not only in the hands of the consumer but also of the supplier and legislature); and finally making 'a habit' of choosing the mean (conclusion after comparative analysis).
The 1996 South African Constitution is transformative. It was adopted to address the injustices of the past by establishing an egalitarian society characterised by non-discrimination, respect for human rights, dignity and equality for all. This paper critically explores the extent to which the Constitution had been transformative for learners with severe intellectual disabilities. Answering this question will entail addressing the extent to which legal and education policies and practices are in line with article 24 of the Convention on the Rights of Persons with Disabilities (CRPD) which compels state parties to provide the right to inclusive education for persons with disabilities (PWDs). This paper will distinguish between a segregated education system and an inclusive education system. These models will provide the context of the paper's analysis. Based on the social constructionism theory, a segregated education system gathers all learners with disabilities in one school (for special needs learners) away from 'able bodied' learners. This approach is also informed by an essentialist theory which regards disability as pathology. It is the medical model of disability. On the other hand an inclusive education system recognises that children have different abilities and are all gathered in the same classroom where there is a universal learning design (ULD) to ensure the success of all. This model is characterised by support to all learners, teachers and the system as a whole, to cater for various learning needs in the classroom. Informed by neurological science, the ULD method seeks to understand how people learn through memory, language, perception, problem solving and thinking. Nevertheless, the concept of inclusive education (anchored in the ULD) is evolving with numerous schools of thought advocating for the implementation of various approaches including the rule of 'separate but equal' as an appropriate exception. This entails the placement of learners with severe disabilities in special schools for their own interest. Given the evolving nature of inclusive education, the paper also examines how inclusive education is responsive to a human rights model of disability especially in the case of learners with severe intellectual disabilities. As part of assessing the inclusion of learners with severe intellectual disabilities in the South African basic education, the paper critically examines legal and policy documents as well as state practice. Among the criteria used when determining whether education is inclusive is whether it is discriminatory and whether it provides learners who have severe intellectual disabilities with adequate resources for learning as their counterparts with mild or with no disabilities. The paper relies on local and foreign jurisprudence on equality and inclusive education to inform the discussion. Ultimately, it argues that the South African basic education system is yet to be inclusive of learners with severe intellectual disabilities.
Combating human trafficking and, in particular, the successful prosecution of this crime remains a daunting challenge worldwide. To address the global trade in human beings, the Convention against Transnational Organised Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, established international minimum standards for combating and effectively prosecuting human trafficking. States party to these treaties - including South Africa - must comply with these standards in their domestic law. On 9 August 2015 South Africa's first comprehensive counter-trafficking law, the Prevention and Combating of Trafficking in Persons Act 7 of 2013, came into operation. This article seeks to contribute to the existing body of knowledge by assessing whether or not the new South African law complies with five key international standards on the prosecution of human trafficking. Although the study reveals some minor shortcomings, it is submitted that the new South African legislation fundamentally complies with the main international prosecutorial standards. Apart from complying with minimum standards, the legislation further includes a number of additional provisions which significantly extend the prosecution's arsenal in respect of various trafficking offences.
In South African law the required standard of compliance regarding documents presented in terms of commercial letters of credit is unclear. It is presumed that the English law is followed. However, the English law is also not entirely clear as to the required standard of compliance for documents and demands required in terms of demand guarantees. Some English courts have expressed the view that as regards demand guarantees, the doctrine of strict compliance is not as strict as that demanded for letters of credit. In two recent South African cases it was argued that a less strict standard of compliance applies to demand guarantees in South Africa. English authorities were advanced to support this argument. However, this article shows that the exact application of the doctrine of strict compliance to demand guarantees under the English law is neither straightforward nor has it yet been fully established. The article examines these South African cases against the backdrop of the English cases.
This second part of the article on 'base erosion and profit shifting' (BEPS) in Africa', is a critical analysis of two of the OECD's BEPS action points that are of priority in most African countries. These are; Action 4: limit base erosion via interest deductions and Action 6: prevent treaty abuse. This analysis is premised on the view that Africa must come up with customised solutions to protect its own tax base in order to ensure domestic resource mobilisation. The paper stresses that international tax cooperation in addressing BEPS concerns should take into account the needs and capacities of all countries. In this African customised analysis on Actions 4 and 6, the author identifies the general concerns most African countries face with respect to base-eroding interest payments and abuse of tax treaties and provides examples on specific matters from an array of African countries. It provides recommendations as to how African countries can effectively adopt the OECD recommendations to prevent base-eroding interest payments and abuse of tax treaties in light of their economic development and tax administrative capacity constraints.