Bibliographie sélective OHADA

The likelihood of clashes between international norms has increased in correlation with the upsurge in the number of specialised regimes emerging within the international legal field. The present thesis takes a closer look at the different ways in which such norm conflicts can be addressed at the international level. In particular, it distinguishes between conflict resolution based on establishing priority by means of traditional maxims, and resolution based on the weighing of clashing norms to determine which prevails in the case at hand. To do so, the thesis takes a step back from the existing literature and examines the distinction within norms between rules and principles, relying predominantly on Robert Alexy’s theory on this subject. Taking a legal-theoretical approach to the subject of international norm conflicts, this thesis shows that Alexy’s principles theory is not only transferrable to international law in theory, but that we can, moreover, identify international norms as rules and principles respectively. Distinguishing between the different ways in which conflicts are resolved depending on whether the norms involved are rules or principles, it is shown that while both approaches are susceptible to certain conceptual uncertainties and pitfalls, this dichotomy nevertheless plays an important role in the efficiency of the international legal system, ensuring that a certain balance between stability and flexibility is maintained. Ultimately, it is demonstrated that by viewing international law, and international norm conflicts in particular, through the lens of Alexy’s principles theory, we can gain a clearer understanding of the structure and application of international norms on the one hand and, as a result, how to resolve international norm conflicts on the other. Thus, drawing a distinction between rules and principles among international legal norms can be a means by which scholars (as well as judicial bodies or even states) may analyse ambiguous judicial decisions or international legal provisions, and can thus foster greater clarity in the field of international law.

The concept of a sham trust has changed over the years. Presently it is defined as a perceived entity that is not entirely what it portrays to be. In addition, a sham is therefore regarded as invalid with a deceiving nature. A sham trust has the consequence that all the benefits and protection of assets are destroyed, seeing that no trust actually came into existence. Considering the above, for the purpose of the present study, only an inter vivos trust was evaluated and discussed in detail. The law of contract is considered to be the foundation of the principles for an inter vivos trust. Therefore, the law of contracts can be applied to solve problems presented by trusts. During the course of the present research, it became evident: in instances where a trust is declared a sham, the consequence is that the trust will be deemed void. There are instances where a sale agreement has been concluded prior to the discovery of the true nature of the trust, namely it being a sham. This raises the question on the legal position of assets vested in a sham trust. A further question arises about the consequences and whether the courts should set a guideline for such instances. From the findings it is evident that such a guideline is necessary. This would enable courts to determine the consequences of assets vested in a sham trust. There are various possibilities regarding consequences for assets vested in a sham trust. To determine the applicable consequence, the court should deal with each case individually based on the facts of that particular circumstances. This consequence could either entail that the assets should fall within the founder’s personal estate, or whether the concluded sale agreement should be deemed void. It is evident that the courts struggled with the distinction between a sham and alter ego trust, however, the case law referred to below gives more clarity in this regard. A proper formulation of the aspects of sham and alter ego trusts was provided in the cases of Van Zyl v Kaye1 and Van der Merwe v Hydraulics.2 The formulation of the two aspects in the above-mentioned cases was confirmed in the Supreme Court of Appeal judgement in the case of WT v KT.3 In the Khabola v Ralitabo,4 the court dealt with the typical example of the sham trust. In brief, the fact of the case were, that the parties had the intention to establish a partnership that was simulated to be a trust.

The world of work has changed and this includes its fundamental design, purpose and coverage of employment. Work in the informal economy has increased and in many developing and middle income countries, work in the informal economy is the norm. In South Africa as well as in other developing countries informal economy workers do not enjoy sufficient protection in terms of labour and social protection measures. These workers are not recognised, regulated or protected by labour legislation or social protection measures and can be characterised by varying degrees of dependency and vulnerability. In countries where the informal economy is increasingly creating a parallel economic world to that of the formal economy, the extension of protection by facilitating the ability of these workers to bargain collectively and the role of national and local governments become increasingly important. Women workers in the informal economy are particularly vulnerable and face discrimination on multiple grounds and levels as gender inequalities in the informal economy cut across race and class lines. Linkages between informality, gender and poverty exists, namely: the poor are more likely to work in the informal economy; more poor women than non-poor women work in the informal economy and that there is a gender gap in earnings in the informal economy as women were earning less than their male counterparts and were less likely to be organised and have social protection. It is of the utmost importance that labour and social legislation accommodates and extends protection to informal economy workers. The larger the informal economy becomes, the greater the need becomes for social and labour protection. It will be impossible to provide these workers with the protection they deserve without legislative intervention. Furthermore, this intervention must be innovative and tailor-made to successfully extend labour and social protection to informal economy workers. When considering the protection of these workers it is also of importance to explore the design and implementation of innovative and tailor-made solutions, considering for example the nature of their work and their workplace. The focus of this study is specifically on distinctive vulnerable categories of women workers in the informal economy who are without adequate labour and social protection. These categories are domestic workers, informal traders and waste pickers. It is important to consider lessons learnt in other jurisdictions to adequately address the challenges in the informal economy. This study considers interventions in two leading developing jurisdictions, namely India and Brazil. Both these countries have a high prevalence of informal workers with inadequate labour and social protection. Labour law must thus meet the challenges posed by the realities of new forms of work. The important function of labour law to protect and promote the human dignity of workers will often result in a cross-over of various subsystems of the law. If we consider human dignity as an important component of labour law, then we need to consider an interdisciplinary approach and the promotion of such an approach. This approach will mean that labour law can no longer function in isolation and other branches of the law, such as social security law, corporate law, human rights and family law will increasingly have an impact on the human dignity of workers. When considering the future of labour law and specifically in relation to the labour and social protection of women in the informal economy, it is vital that the new framework is intrinsically linked to concepts such as democracy, social justice, freedom, and human rights. International and regional institutions are playing an increasingly important role in the empowerment of women, the promotion of equality and decent work for all women. This study identifies and critically considers the relevant international institutions and instruments, the impact of international standards, regional institutions and regional labour standards, particularly those of the African Union (AU) and the Southern Africa Development Community (SADC), and other global initiatives directed at the social and labour protection of women workers in the informal economy. The South African position with reference to domestic workers appears to provide an adequate regulatory framework in respect of the regulation of these workers; however, in practice there are various challenges, including the enforcement of the legislative provisions and a disregard for the notion of substantive equality. Although domestic workers enjoy some protection, waste pickers and informal traders as own-account workers without a distinctive employee-employer relationship are excluded from most labour and social protection measures and innovative and tailor-made solutions are required. The regulation of waste pickers and informal traders in South Africa is fragmented and lacks comprehensive and uniform legislation is absent. Voice and representation is of paramount importance to these women to ensure decent work. Enabling frameworks must be established to promote this. One of the most important objectives of organisation for women workers is to promote the recognition of these women and given their vulnerabilities experienced on various levels, this recognition must be wide and include recognition as workers, citizens and members of society that must be afforded human dignity on all levels. The position of the three categories of women workers was also considered in two jurisdictions, namely India and Brazil to distil best practices with reference to these workers. The research question of this study is: How can labour law and social protection measures provide vulnerable women workers in the informal economy with the appropriate protection to ultimately give effect to decent work? The main inquiry of this thesis, therefore, is to explore the issue of extending labour and social protection to these workers through the extension of existing labour and social security rights; including, where necessary, the design and implementation of innovative and tailor-made solutions.

This research sought to establish whether the general acceptance that the common construction and engineering contracts as falling within the classification of the locatio conductio under South African law is correct. As the classification of a contract attracts specific essentialia and naturalia, and then too certain implied terms one example of an implied term that would have practical relevance is specifically investigated: The warranty against latent defects. Through this example I seek to demonstrate the relevance and importance of establishing what the classification of these contracts is, and its ensuing essentialia and naturalia. The investigation commenced by firstly considering the classification of the common building, construction and engineering contracts, with reference to the South African publications of JBCC and GCC, as well as the internationally published FIDIC Silver Book, FIDIC Yellow Book, and FIDIC Red Book, as well as the NEC ECC Option A and Option B. With alternate dispute resolution mechanisms, such as adjudication and arbitration, resulting in limited publications by way of case law and academic writing on the subject (specifically in South Africa), English law and German law were also consulted. It was established that, unfortunately, the classification of the common building, construction and engineering contracts under South African law is problematic: It does not fit the ordinary and previously accepted classifications, specifically that of the locatio conductio. This makes it questionable whether the warranty against latent defects could be, and should be, implied into any one of these contracts. The recommendation, accordingly, is that it is crucial for the construction and engineering industry to carefully consider and develop the true and relevant essentialia and naturalia applicable to these contracts. Only then will there be certainly as to what may be implied into these contracts, and what will not so be implied. Until this is achieved, the parties to these contracts, in order to have certainty, must deal with aspects such as the warranty against latent defects by way of an explicit written term in the particular contract.