Bibliographie sélective OHADA

This thesis comparatively analyses the SA income tax general anti-avoidance rule (GAAR) in s 80A-L of the Income Tax Act 58/1962 and similar rules in Australia, Canada, the UK and the judicial doctrines in the US and the UK. It is argued that, while the SA GAAR may serve as a deterrent, it is going to have limited efficacy against impermissible tax avoidance due to the uncertainty it creates. It is argued that uncertainty will cause judicial activism to protect permissible tax avoidance, extensive and inconsistent judicial interpretation and confusion amongst taxpayers and SARS as to what constitutes permissible or impermissible tax avoidance. This thesis ends by recommending certain amendments, based on the comparative analysis, to the SA GAAR which can reduce uncertainty and thus improve it efficacy.

This article argues that, with the global or cross-border nature of many corporate activities, there is an increasing need for a uniform insolvency law approach to the financial distress of a corporation in the Southern African Development Community. In doing so, the article highlights lessons the community may learn from the Insolvency Act of the Organisation for the Harmonization of Business Law in Africa. Emphasis is given to that organization’s success in developing a uniform insolvency act (ie one which is directly applicable in its contracting states). The article also proposes a number of recommendations.

In a region where there is diversity of laws, the author maintains that law reform is a catalyst for investment and development. This thesis aims at demonstrating that OHADA provides practical lessons for the development of a uniform commercial law structure in the SADC. This is following OHADA’s success in developing uniform commercial rules that are directly applicable in the contracting states. To achieve this, the thesis uses a “structured focused comparison” methodology that allows for two separate, but structurally linked accounts of the structures of both organisations. In exploring the structures of both organisations, the thesis endeavours to: determine whether there is the need for the development of a commercial law structure in the SADC; whether such a structure can be developed within the current SADC structure and whether OHADA can serve as a possible model for the SADC. The findings show that no part of the African continent has witnessed regional legal reform on the scale of that initiated by OHADA. It equally reveals the absence of a uniform commercial law structure in the SADC and the lack of supranational structures to adopt full panoply of business laws and to preserve the uniformity of laws in the member states. The findings from this thesis provide evidence that there is the need forthe development of a commercial law structure in the SADC and improvement of the current SADC structure. There is no doubt that thi swould do away with legal uncertainty in cross-border commercial transactions among SADC states.

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 Tanzanian private sector is growing, partly due to the state’s efforts to conform to the global economy. As the economy expands and the National Microfinance Policy of 2001 is realised, more and more credit has been made available to consumers. As a direct consequence of the increase of credit, the number of over- indebted consumers in Tanzania is on the rise. The current debt relief system is regulated by the Tanzanian Bankruptcy Act no. 9 of 1930, a piece of colonial legislation. Unfortunately this law is ineffective, costly and outdated. Some of the problems identified in this study with this debt relief regime include the lack of a cost- effective alternative to bankruptcy and its total reliance on the judiciary, an institution that is itself overburdened and requires reform. The purpose of this study is to make recommendations for the reform of the current debt relief system and propose a debt relief dispensation for consumer debtors in Tanzania that will efficiently cure over- indebtedness. A wide comparative investigation was undertaken in this study of selected common law, civil and mixed legal systems that have substantial experience with the boom in over-indebted consumers now facing Tanzania. A number of solutions were borrowed from these systems that may potentially solve Tanzania’s debt relief problem. One of the main findings of this thesis is that, over time, developed jurisdictions that rely on credit in the private sector appear to be converging on the same type of procedures and moderate philosophies for consumer debt relief. These include less judicial supervision for debt relief procedures, less freedom of choice for over-indebted consumers when it comes to the type of procedures available, and mandatory surplus income repayments for debtors who can afford it. In order to address the problems of the Tanzanian debt relief system, this thesis proposes a complete overhaul of the administration of debt relief procedures in Tanzania and the introduction of a combined alternative to bankruptcy that consists of three joint procedures. A number of amendments are also proposed for the Bankruptcy Act no.9 of 1930. This thesis states the status of legal developments as they were in the selected jurisdictions on 31 December 2012.

Examining the legal effects of EU concluded treaties, this book provides an analysis of this increasingly important and rapidly growing area of EU law. The EU has concluded more than 1,000 treaties including recently its first human rights treaty (the UN Rights of Persons with Disability Convention). These agreements are regularly invoked in litigation in the Courts of the member states and before the EU courts in Luxembourg but their ramifications for the EU legal order and that of the member states remains underexplored. Through analysis of over 300 cases, the book finds evidence of a twin-track approach whereby the Court of Justice of the European Union (CJEU) adopts a maximalist approach to Treaty enforcement, where EU agreements are invoked in challenges to member state level action whilst largely insulating EU action from meaningful review vis-à-vis agreements. The book also reveals novel findings regarding the use of EU agreements in EU level litigation including: the types and which specific EU agreements (including the types of provisions) have arisen in litigation; the nature of the proceedings (preliminary rulings or direct actions) and the number of occasions in which they have been addressed in challenges to member state or EU action and the outcomes; who has been litigating (individuals, institutions, or member states) and which domestic courts have been referring questions to the CJEU. The significance of the judicial developments in this area are situated within the context of the domestic constitutional ramifications for member state legal orders thus revealing a neglected dimension in the constitutionalization debates, which traditionally emphasized the ramifications of internal EU law for the domestic constitutional order without expressly accommodating the constitutional significance of this external category of EU law nor the different challenges that this poses domestically.

This study is concerned with integration efforts on the African continent. This study sets out to investigate the politico-legal and economic impediments to regional and continental integration efforts in Africa. The documents, processes, and organs of the African Union, as the main continental organisation, are the focal point of this study. In order to achieve this, the study primarily adopted a qualitative approach since the literature involved in this work could not be reduced to a quantitative concept. The study ensured that the premises and the conclusions in this work conform to the principles of reliability and validity and in addition the elimination of bias in this was curtailed by validation and triangulation. This was achieved by the fact that the arguments in this work were not only based on qualitative arguments but, where possible, quantitative data was brought in to validate/ triangulate the qualitative arguments. Evidently, the study would have been incomplete if it did not discuss and evaluate the many regional economic communities that have been established to further the objectives of the Treaty establishing the African Economic Community. One of the major premises that this study discovers is that there is a direct and demonstrable relationship between democracy and economic progress; genuine and sustainable development has to be fostered primarily by securing peace and stability on the African continent. Some of the other key findings of the study include that; a) the ultimate goal of the African Union is full political and economic integration leading to the United States of Africa; b) overlapping memberships to a custom unions are highly detrimental to the state since it has to subscribe resources and political will to two or more different arrangements. c) overlapping memberships cause confusion, inertia and most importantly legal uncertainty thereby stifling trade liberalisation efforts; d) many African states still guard their sovereignty closely and that many perceive that yielding their sovereignty to a continental body is tantamount to losing their independence; e) the African Union infrastructure still lacks supra-national and national institutions that are capable of implementing its values; f) the African Union infrastructure does not contain an institutionalised mechanism for the promotion and management of Union affairs at national level; g) the NEPAD initiatives, the APRM process and the functions of the Peace and Security Council play a positive role in African politico-legal and economic development. It has however been shown that these mechanisms are more reactive than preventative and as such intervene too late in the internal affairs of member states; h) armed conflicts cause a reduction in the per-capita Gross Domestic Product growth rate of a nation experiencing a civil war/ conflicts. i) the African Union has regressed from the original timelines of the African Economic Community. The highest regression being Phase 2 which involves the most critical element of strengthening of African regional integration arrangements and the harmonisation of policies concerned. A thirteen (13) year postponement is noted in this regard. j) Africa's poor intra-trade performance is also attributed to the limited progress among African countries in fostering structural transformation. This structural transformation relates to the building of roads, bridges, railway lines and power grids; In order for the African continent to re-position itself in an attempt to harness the benefits of regional integration, some of the recommendations that the study makes are that; a) the African Union grant supra-national status to institutions of the Union for the equitable and speedy attainment of integration; b) the Union and member states should as soon as possible create mechanisms with decision making powers to manage Union affairs at regional and national level; c) the operationalization of the Pan African Parliament should be pursued with the utmost determination to bring the Parliament to full functionality as a Continental legislative body; d) the operationalization of the African Court of Justice and Human Rights be completed as soon as possible in order to allow the body to function as a fully-fledged continental judiciary. This will ensure that the development of integration jurisprudence from an international law perspective is not delayed. The Court will also pursue the enforcement of Human rights norms and practices; e) the Union should further lead the continent in the following sectors with clear and predictable deliverables; i) the establishment and upgrading of regional land, air, and other means of transportation and communication; ii) the creation of a cross-border power and energy generation and distribution network; iii) the establishment, advancement, and diversification of regional financial and commodity markets; iv) the establishment of a regional higher education system by facilitating wider access through specialization in regional integration; The study further acknowledges that these recommendations are not conclusive since the study of regional integration is still at its infancy and many other ideas on how to strengthen African regional integration still await discovery.

The Zimbabwean economy rapidly declined over the past two decades. A record hyperinflationary environment and a collapse of the financial service sector coupled by lack of external lines of credit created a difficult operating environment for corporate businesses. Businesses thus either closed down operations or resorted to survival strategies. Corporate mergers and acquisitions emerged as natural favoured strategies in implementing survival corporate restructuring transactions. However, the success of such strategies largely depends on the effectiveness of the merger regulatory framework, that is, its ability to promote beneficial corporate restructuring transactions on one hand and to maintain the competitive structure of the market on the other hand. This research analyses the current merger regulatory framework in Zimbabwe and assesses whether it is suited to promote beneficial corporate restructuring transactions implemented through mergers and acquisitions without unnecessarily distorting the competitive structure of the market. Employing the failing firm doctrine as the focal point, the research identified a number of shortcomings within the current merger regulatory framework that impacts upon its ability to effectively promote beneficial corporate mergers and acquisitions without sacrificing the competitive market structure. Selected comparative jurisdictions were used to draw various lessons for Zimbabwe. The aim of the comparative study was not to provide an exhaustive analysis of these jurisdictions but to identify specific arrears that can be used to develop and suggest an effective merger regulatory framework for Zimbabwe. In order to remedy the identified shortcomings inherent within the current Zimbabwean merger regulatory framework, this thesis proposes a number of amendments to the current Competition Act [Chapter 7:01] of 1996. These proposed amendments are aimed at bringing clarity, flexibility and strengthening the merger regulatory framework including the institutions tasked with such. The research is primarily a legal analysis of the Zimbabwean merger regulating statute and its implications on any decisions made by the competition authority. As such, the thesis states the status of legal development in Zimbabwe and the selected comparative jurisdictions as of 31 July 2013.

There is enough evidence on how climate change consequences will adversely affect Africa despite the fact that it is the continent that has least contributed to the problem. The international climate change regime recognises Africa's vulnerability to climate change and provides for special treatment under the United Nations Framework Convention on Climate Change (the UNFCCC). Thus, the international climate change regime presents an opportunity for African countries to adapt and mitigate the consequences of climate change through the UNFCCC mechanism. However, the international climate change legal regime has not been able to adequately assist African countries to address the consequences of climate change under the vulnerability principle. Although the current international climate change regime requires developed countries to reduce their greenhouse gas (GHG) emissions, Africa needs to take steps itself to address the problem, because it is most vulnerable to the consequences of climate change. The African Union (AU) could play a great role in ensuring that the international climate change regime addresses the consequences of climate change in the region. This could be done through fostering strong African common positions during international climate change negotiations. A strong common position could strengthen African bargaining power and might result in more funding, capacity building and technology development and transfer for adaptation and mitigation programmes under the UNFCCC-Kyoto Conference of Parties. However, reaching a strong common position requires the cooperation of the AU member states. In this context, African regional integration is an opportunity for the AU to foster such cooperation among member states. The Treaty Establishing the African Economic Community (the Abuja Treaty), the Constitutive Act of the AU and the Protocol on the Relations between the AU and Regional Economic Communities (RECs) prioritise regional economic integration and call for states' cooperation, but the call has not yet been heeded. To realise deep and viable African integration, there must be a well-structured institutional and legal framework that defines the relationship between the AU, the AEC and the RECs. African regional integration is also seen as an avenue whereby the AU can create its own regional climate-change regime. In this regard, the AU's and RECs' normative framework on climate change is examined in order to assess whether it adequately integrates climate change issues. This study finds that although Africa is most vulnerable to the consequences of climate change, the AU's and RECs' normative framework on climate change is weak and inadequate to address the problem. The Framework should integrate climate change issues in order to achieve sustainable development. The AU should also ensure that member states ratify the relevant treaties and protocols (the Maputo Nature Convention and the Protocol establishing the African Court of Justice and Human Rights) that have not yet been ratified in order that they may become operational. The Maputo Nature Convention puts sustainable development in the forefront of attention as a reaction to the potentially conflicting environmental and developmental challenges facing the continent (such as climate change), but it is not yet in force. This work finds that human rights law can strengthen the AU's role in addressing climate change through its normative framework. The human rights approach to climate change under the African Charter on Human and Peoples' Rights (the Banjul Charter) is a viable avenue because human rights law forms the basis for states' responsibility based on human rights obligations and principles. The extraterritorial application of the Banjul Charter presents an avenue for AU institutions such as the Human Rights Commission and the African Human Rights Court to curb the effects of climate change through a human rights lens. The future of the AU is presented within the context of a set of recommendations that identify strong African regional integration as an avenue through which the AU can foster the cooperation of member states to address the consequences of climate change in the AU's and RECs' normative frameworks. General recommendations are made on the need for the international climate change regime to pay more attention to issues of funding, capacity building and technology development and transfer on the basis of the vulnerability principle and in relation to the principles of equity and common but differentiated responsibilities and respective capabilities. Also, the AU needs to strengthen its legal and institutional structures to ensure deep African integration that is capable of addressing common challenges such as the consequences of climate change.

The thesis considers the approaches followed by the European Union with the Brussels Regime, the federal system of the United States of America under the ‘full faith and credit clause’; the inter-state recognition scheme under the Australia and New Zealand Trans- Tasman judicial system; as well as the convention-approach of the Latin American States. It finds that the most suitable approach for the SACU is the negotiation and adoption by all SACU Member States of a multilateral convention on the recognition and enforcement of foreign judgments, comparable to the 1971 Convention of the Hague Conference on Private International Law; the EU Brussels I Regulation and the Latin-American Montevideo Convention, as complemented by the La Paz Convention. It is imperative that a proposed convention should not merely duplicate previous efforts, but should be drafted in the light of the legal, political and socio-economic characteristics of the SACU Member States. The current legislative provisions in force in SACU Member States are compared and analysed, and the comparison and analysis form the basis of a proposal for a future instrument on recognition and enforcement of foreign judgments for the region. A recommended draft text for a proposed Convention on the Recognition and Enforcement of Foreign Judgments for the SACU is included. This draft text could form the basis for future negotiations by SACU Member States

The security cession of the rights under life policies marries two separate areas of the law: The Law of cession and the Law of Insurance. This makes for a complex union since varying common law and statutory principles ����ind application, and in reality trade practices also play a role. In theory a cession in securitatem debiti may take one of two possible constructions, namely a pledge or a fiduciary security cession, and each has its own advantages and disadvantages. Disparity arose when judicial preference was given to the pledge construction while academics preferred the other. The problem, however, was larger than a disagreement as to the better construction. The underlying problem was that there was a lack regarding clarity as to the practical operation of security cession of life policies, in addition to the problems surrounding the construction thereof. As a solution to this problem some academics have suggested legislative intervention. The South African Law Reform Commission, nevertheless, advised against it in 1991 and was of the opinion that the issue was one which our courts would eventually solve. In the 22 years since then, our courts have merely confirmed its preference for the pledge construction. The intricacies of security cessions of life policies have seen no further judicial development. It is probable that the courts do not have enough practical information at hand to advance this area of the law. An investigation into the operation of such cessions in practice was thus necessary. The outcome of the practical investigation reveals that legislative intervention is indeed a viable solution especially since the issues are too complex for the courts to solve. As part of this work, legislation has been drafted and it is recommended that this is inserted into the Security by Means of Movable Property Act .

The Basel Committee on Banking Supervision has defined operational risk, legal risk and compliance risk. However, the definitions might not be adequate for countries with a hybrid legal system, such as South Africa. This study aims to provide a practical solution to the problems faced by countries with a hybrid legal system wishing to comply with the Basel Committee’s standards. It is argued that compliance, compliance risk and regulatory risk should all be viewed as constituent components of legal risk, and in turn necessarily also of operational risk in a hybrid legal system. Legal risk is a wide concept which includes all aspects of a legal system, while compliance risk is a narrower concept which only includes the codified aspects of a legal system. Legal risk therefore includes compliance risk. However, the opposite is not true as compliance risk does not include legal risk, and the two concepts are decidedly shown not to be synonymous in a mixed legal system.

The role of the Court of Justice of the European Union in the process of direct tax integration in the European Union (EU) has been widely discussed in the academic literature, while another important actor, the European Commission, has attracted much less attention. The Commission’s input is commonly perceived to be limited to the right of legislative initiative. This study questions such an oversimplified interpretation and draws a more nuanced picture of EU tax harmonisation by integrating an analysis of the complex regulatory approaches adopted by the Commission for the establishment and smooth functioning of the Internal Market. It is argued that the past decade brought a notable change in the Court-dominated pattern of direct tax integration. This change is apparent first in the evolution of enforcement strategies under Articles 258 and 260 TFEU; and second, in the increased reliance upon non-binding regulatory measures. Both developments have strengthened the role of the Commission, supplying it with more possibilities for influencing national direct tax systems, despite the reluctance of Member States to agree upon legislative harmonisation. Against this background, the procedural and substantive problems associated with these instruments require closer examination. The normative scope of this research covers the key procedural problems related to the infringement procedure and non-binding regulatory measures. The empirical component explores the Commission’s enforcement and coordination practices, drawing particular attention to two case studies: the tax treatment of losses in cross-border situations and exit taxation. Following the analysis of enforcement and coordination in the field of direct taxation, the study argues the need and proposes potential solutions for (i) the developing of a more comprehensive procedural framework for the infringement procedure and non-binding regulatory acts; (ii) the strengthening of accountability mechanisms; and (iii) the enhancing of the effectiveness of their application.

The objectives of this research paper are: to examine the status of collective agreements under the common law; highlight impacts of statutory intervention on common law perception of collective agreements, and discuss how the National industrial Court (NIC) and the Constitution of the Federal Republic of Nigeria 1999 (as altered) have broadened the horizon of enforceability of collective agreements in Nigeria. Reliance is placed principally on statutes, judicial decisions, textbooks written by learned authors as well as international best standard and practices championed by the International Labour Organization (ILO) and practices in some foreign jurisdictions. The findings of the research were that under the common law, collective agreements are ordinarily not binding, they are considered as a ‘gentleman's agreement‘, a product of a trade unionist's pressure, binding only in honour or on the goodwill of the parties thereto, unless and until it is incorporated expressly or impliedly into the contract of employment. However, statutory intervention has slightly altered the common law notion of collective agreements, e.g. where the Minister of Labour and Productivity is empowered to declare, by order, that part or the whole of an agreement deposited in his office is binding on the parties. Furthermore, with the enactment of the NIC Act and the listing of the NIC in the 1999 Constitution as a superior court of record (following the alteration of the Constitution, necessitated by the N.U.E.E. V BPE case), the Court now has exclusive jurisdiction to adjudicate on a wide range of labour matters, industrial relations and application of international best practices such as the standard and principles of the International Labour Organization (ILO), and practices in foreign jurisdictions. It has been argued that the enforceability of collective agreements is in tandem with international best practices, which the NIC can readily give effect to, if it is pleaded and established/ proved as a fact. This has invariability expanded the frontiers of enforceability of such agreements. Therefore, the common law position on the status of collective agreements has been rendered otiose and obsolete, giving way to the sparkling provisions of enforceability guaranteed by the NIC Act and the Constitution respectively. Notwithstanding, it is highly recommended that parties to a collective agreement should expressly state their intention whether or not to be bound; the duration of the agreement should be stated and whether, and when, it should, be reviewed; experts and other stakeholders should be properly consulted before an agreement is entered into; an arbitration clause may be included in case a party breaches its own part of the agreement. Industrial democracy ought to be promoted in all sectors. Strikes and lock outs should be used only as a last resort for enforcing compliance with a collective agreement, because these industrial actions cause devastating effects on the economy and on the lives of the citizenry generally.

This thesis analyses current South African copyright law to ascertain the proper interpretation and application of the fair dealing provisions contained in the Copyright Act 98 of 1978. Copyright law ensures that authors’ works are not used without their consent, which they can grant subject to compensation or conditions attached to the use. Fair dealing exceptions allow the general public to use copyright works for certain purposes without the copyright owner’s consent and without paying compensation. These provisions are intended to balance copyright owners’ interests with the interest that members of the public have in using copyright works for socially beneficial purposes. These provisions typically allow the use of a copyright work for the purposes of research or private study, personal or private use, criticism and review, and news reporting. Unfortunately there is no South African case law concerning the fair dealing provisions, and the application of these exceptions remains unclear. This study aims to clarify the extent of application of the fair dealing exceptions to copyright infringement so that courts may be more willing to consider foreign and international law and in doing so develop South African intellectual property law. The social and economic policy considerations underlying the fair dealing exceptions are considered to determine their function. International conventions relating to copyright and neighbouring rights are examined, specifically the provisions allowing exceptions to copyright. The legislation and case law of Australia and the United Kingdom are analysed to determine the proper interpretation and application of these statutory defences. This knowledge is then used to inform South African law. The Copyright Act 98 of 1978 does not contain a fair dealing exception for parody and satire. Australian legislation does contain such an exception, and it is analysed in that context. An exception for parody is proposed for South African law, and the need for and application of this provision is considered. The constitutionality of the proposed exception is evaluated in terms of its impact on the constitutional property rights of copyright owners.

L’objectif de cette recherche est de démontrer que les décisions arbitrales de la Chambre de commerce internationale peuvent être considérées comme une source potentielle de droit au Canada. Il existe actuellement une incertitude quant au droit matériel utilisé en arbitrage international pour résoudre les différends commerciaux. Bien que l’utilisation de la lex mercatoria pour résoudre un litige soit une option, elle se heurte à de nombreuses incertitudes terminologiques et conceptuelles. L’utilisation d’une approche méthodologique de la lex mercatoria permettrait une classification de ses sources en deux branches: (1) le droit statutaire international et (2) le stare decisis des tribunaux d’arbitrage commercial international. Une telle approche méthodologique conférerait plus de certitude quant à l’application d’un droit uniforme. De plus, elle faciliterait l’étude de l’interlégalité entre les règles de la lex mercatoria et le droit matériel interne. Plus particulièrement, elle permet de comparer les similitudes et les différences des règles du droit matériel entre les décisions arbitrales internationales, le droit statutaire international et les juridictions canadiennes de common law et de droit civil. Cette comparaison rend possible une évaluation de l’influence potentielle des décisions arbitrales de la Chambre de commerce internationale sur le droit matériel canadien et si cette influence est plus importante en droit civil ou en common law.

The home of a debtor has never enjoyed specific statutory protection against forced sale in the individual debt enforcement and insolvency procedures in South Africa. In Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others (2005 (2) SA 140 (CC)) and Gundwana v Steko Development CC and Others (2011 (3) SA 608 (CC)), the Constitutional Court recognised that in the individual debt enforcement process execution against a debtor's home, even where it has been mortgaged in favour of a creditor, may constitute an unjustifiable infringement of the right to have access to adequate housing, provided by section 26 of the Constitution. The effect of these decisions is that, in every case in which a creditor seeks to execute against a person's home, a court must consider "all the relevant circumstances" to determine whether execution is justifiable, in terms of section 36 of the Constitution. The absence of a properly constructed framework, incorporating clear substantive and procedural requirements, within which these recently established principles must be applied, has led to divergent approaches in the courts and a lack of clarity regarding circumstances in which execution against a debtor's home will be permitted. Further, courts have not considered the impact of section 26 and other rights on the position where a debtor's home is realised by the trustee of an insolvent estate in terms of the Insolvency Act 24 of 1936. This has given rise to a number of unanswered questions as well as to a lack of predictability that potentially hold adverse consequences for bond finance, commerce, and the economy generally. The need to balance the competing interests emphasises the necessity for a coherent contextual framework within which forced sale of a debtor's home may occur. This thesis examines issues surrounding forced sale of a debtor's home in South Africa. It compares the position in other legal systems and suggests mechanisms and an appropriate method, or process, for inclusion in statutory provisions to regulate the forced sale of a debtor's home in both the individual debt enforcement and insolvency procedures in South Africa.

This study aims to investigate the different ways in which the position of people with disabilities can be addressed. Antidiscrimination legislation can play a very important role. Efforts to create equal opportunities must, however, not be limited to legislative initiatives and policy declarations. There is an urgent need for education and training of this minority group. 7 Systematic efforts to heighten public awareness of civil rights and in particular the recognition of the rights of the disabled community are imperative. This study aims to bring home the truth that "disability rights are an idea and ideal whose time has come. ,, When addressing the issue of disability discrimination (or for that matter any kind of discrimination) several principles need to be addressed, the most important being the following: The meaning of the concept of "equality" needs to be established. The fact that all people are equal, does not necessarily mean that all people must be treated the same. When speaking about disability discrimination one must know who forms part of the protected class. For that reason the first issue that must be addressed is the definition of "disability": This leads to the next question, namely which individuals should be protected by anti-discrimination laws and should they benefit from affirmative action measures? What is meant by the term "discrimination"? Is it at all permissible to distinguish between groups of people and, if so, when and which standards are to be applied? What role can anti-discrimination legislation fulfil in the struggle for equality? When dealing with anti-discrimination legislation, what is required in order to prove discrimination and what remedies must be available to an aggrieved party? Normally, in case of criminal action proof is required beyond reasonable doubt and in case of civil action on the balance of probabilities. 10 Civil action offers more effective remedies, but should it be punitive in nature (by awarding damages to the aggrieved party) or non-punitive (by putting the aggrieved party in his/her "rightful place")? What sort of enforcement mechanism is needed? Is it a task for the ordinary tribunals or rather a special body created for that purpose? What defences should be available to an employer accused of discriminatory practices? Who should benefit from enforcement? Only the individual victim or all members of that group? Is anti-discrimination legislation sufficient or is something in addition called for? If positive measures are required, what form must these measures take? This study will address these questions specifically with relation to people with disabilities.The "equality principle" will first be studied. Thereafter the concept of "disability" will be defined. There is a movement away from a medical model of disability towards a social model that takes account of the disabling effects of attitudes and structural barriers on the position of disabled people. Then the concept of "discrimination" will be addressed. Discrimination has many different forms and can take place in different contexts In the following chapter possible solutions to the problem of disability discrimination will be raised. Thereafter follows an important comparative analysis of different jurisdictions on international, supra-national and national level. Different jurisdictions have reached different stages in addressing this problem. The factual analysis of each jurisdiction will include the existence of any anti-discrimination legislative measures, the scope of the protected class, applicable employment provisions, defences available to employers, and the success achieved in addressing the problem. The contentious issue of affirmative action measures will also be addressed. By drawing inferences from the comparative study, suggestions will be made for future developments in South Africa. The conclusion is reached that it is imperative for South Africa to draft disability anti-discrimination legislation that takes account of the needs of this minority group. Legislative initiatives, however, are not enough and must be supported by various programmes aimed at the disabled themselves and the community that they live in. Only then can human rights become a reality also for people with disabilities.