The Possible Impact of the Wilsnach V M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

The Possible Impact of the Wilsnach V M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

Author: Abduroaf Muneer

ISSN: 2521-2605
Affiliations: BA (Shariah) LLB, LLM, LLD, Associate Professor in Law, Faculty of Law, Department of Private Law, University of the Western Cape (UWC)
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 204 – 214
https://doi.org/10.47348/JCLA/v10/i2a7

Abstract

The Gauteng Division of the High Court, Pretoria handed down a judgment in Wilsnach v M [2021] 1 All SA 600 (GP) (Wilsnach) during 2020, where it held that a biological father could not inherit “in the capacity of a parent” due to absence, in terms of the Intestate Succession Act 81 of 1987 on the basis he inter alia lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005 (hereafter absent parent). This article analyses the potential impact that the Wilsnach judgment could have on the right of a Muslim father to inherit in terms of an Islamic will in the event where he too has lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005.1 An overview of the Wilsnach judgment is analysed by way of introduction. The right of a Muslim parent to inherit from their child in terms of “Islamic law” is then explored. The possible impact that the Wilsnach judgment could have on the right of a father to inherit in terms of the “Islamic will” is then investigated. The article concludes with an overall analysis of the findings and makes a recommendation as to how Islamic law consequences can be accommodated.

Stimulating Private Investment in Public Infrastructure Through Reform of the Nigerian Legal Environment

Stimulating Private Investment in Public Infrastructure Through Reform of the Nigerian Legal Environment

Author: Olufemi Oluyeju

ISSN: 2521-2605
Affiliations: Lecturer, Department of Public Law, School of Law, University of Venda, Limpopo, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 215 – 246
https://doi.org/10.47348/JCLA/v10/i2a8

Abstract

A massive infrastructure deficit seriously impedes business growth and economic progress in Nigeria. Given the current fiscal realities, it is apparent that the government cannot solely bankroll such infrastructure requirements. Therefore, the need for private sector involvement in infrastructure development cannot be over-emphasised. However, this paper contends that gaps in infrastructure-related laws are partly responsible for the failure to attract private sector investment into Nigeria’s infrastructure sector. In this regard, the paper seeks to investigate those legal impediments hobbling private sector participation in financing public infrastructure in Nigeria and what reforms, if any, should be made to stimulate private capital flows into the sector. Furthermore, it is argued that attracting private capital into the infrastructure sector requires, among other things, a favourable legal and regulatory environment that is rules-based, transparent, and predictable. It is therefore concluded that private resources could be unlocked by reviewing and improving appropriate infrastructure-related aspects of the country’s legal environment. This article adopts a doctrinal approach; hence, it is based on desktop and library-based or non-empirical research. As doctrinal research, it will rely on an analysis of existing literature on the subject under investigation.

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

Authors: Michael K Quartey, Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: BA LLB BL (Ghana) LLM (University of Johannesburg); Legal Associate: Ankomah Mensah
& Associates, Ghana; BA LLB (Ghana) LLM LLD (University of Johannesburg); Senior Postdoctoral Research
Fellow, Centre for International and Comparative Labour and Social Security Law (CICLASS), Faculty of Law, University of Johannesburg, South Africa; Research Associate, Research Centre for Private International Law in Emerging Countries (RCPILEC), Faculty of Law, University of Johannesburg, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 1 – 40
https://doi.org/10.47348/JCLA/v10/i1a1

Abstract

The law applicable to tortious liability involving a foreign element has become one of the most vexed questions in private international law. This can be attributed to technological advancements and the movement of people and goods across state lines. Accidents involving a foreign element are, therefore, reasonably foreseeable. Torts such as online defamation, accidents involving self-driving vehicles, and other technological acts involving a foreign element have heightened the possibility of cross-border torts. Considering the complexities associated with cross-border torts, the European Union (EU) has enacted the Rome II Regulation. The overarching objective of enacting the Rome II Regulation is to promote certainty and predictability when dealing with cross-border disputes, irrespective of the country of the court in which an action is brought in the EU. Conversely, Ghana relies on the broadly drafted section 54 of the Courts Act 459 of 1993 and common law principles of private international law to determine the aspects of choice of law. This has made the position in Ghana very uncertain and unpredictable due to the broad discretion given to courts under section 54 of the Courts Act, particularly in determining the law applicable to cross-border tort cases. Also, Ghanaian courts have applied the much-criticised double actionability rule to determine the rights and obligations of parties in cross-border tort cases. In light of the uncertain and unpredictable nature of Ghanaian law, some academics have suggested that Ghana adopt the traditional rule to determine the applicable law in torts. This article seeks to critically analyse the applicability of article 4 of the Rome II Regulation regarding non-contractual liabilities. The article compares how courts in EU member states have applied article 4 to determine the applicable law in torts, to how the Ghanaian courts use private international law rules to determine the applicable law in torts. The essence of the comparison is to ascertain whether Ghana can draw some legislative and judicial lessons from the position under article 4. In addition, the significance of the comparison is to determine whether the approach under the Rome II Regulation can serve as a basis for legal reforms in Ghana. Most importantly, the article explores the extent to which the legal approach under the EU law can bolster judicial certainty and predictability in Ghanaian law.

Contracts for the Sale of Goods: Passing of Property in Goods Under the Law of the United Kingdom and Ghana

Contracts for the Sale of Goods: Passing of Property in Goods Under the Law of the United Kingdom and Ghana

Author: Prince Obiri-Korang

ISSN: 2521-2605
Affiliations: BSc LLB (Cape Coast) PLT LLM LLD (Johannesburg). Senior Postdoctoral Research Fellow, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 41 – 57
https://doi.org/10.47348/JCLA/v10/i1a2

Abstract

A contract for the sale of goods is the most commonly used transaction domestically and at international level. Regardless of its relevance, there has been a wide variation in the concept of “sale” has existed in the course of legal history across the various legal systems of the world. Although a sales transaction may be rightly described as the most universal transaction, it is pertinent to point out that there is very little agreement on one of the transaction’s most fundamental incidents, which is the “passing of property”. In most legal systems, aside from the generally established rule on when the property in goods may pass from a buyer to a seller, property in goods can also pass at any time depending on the circumstances or terms of the relevant contract. Despite the above proposition, it is important for all persons who engage in a sale transaction to have an understanding as to when the property in the goods that they intend to purchase or that they have purchased passes from the seller to them. This article primarily focuses on when property passes in a sale contract in the legal systems of the UK and Ghana. This is relevant because when a buyer enters a sale contract, it is the property in the goods that they bargain for and not the use or mere possession or any other aspect of ownership.

Evaluating the Significance of Mandatory Offers in Contemporary Corporate Finance

Evaluating the Significance of Mandatory Offers in Contemporary Corporate Finance

Author: Justice Mudzamiri

ISSN: 2521-2605
Affiliations: LLB (Fort Hare) LLM (University of Johannesburg) LLD (Fort Hare). Postdoctoral Research Fellow, Department of Commercial Law, University of Cape Town, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 58 – 82
https://doi.org/10.47348/JCLA/v10/i1a3

Abstract

If a regulated company reacquires its voting securities in terms of section 48 of the Companies Act 71 of 2008 (2008 Act) or if a person, together with related persons who held less than 35 per cent voting rights before the acquisition attain 35 per cent of voting rights after the acquisition, they must offer to purchase the remaining securities within a prescribed period. Transactions that force the acquirer to offer the remaining securities holders acquisition of their securities as contemplated above are referred to as mandatory offers. Academics debate whether to retain or dispense with mandatory offers in corporate finance law. They question the rationales for mandatory offers. For instance, some academics argue that mandatory offers inhibit investment. The rationale of using mandatory offers to pursue equal treatment of securities holders is also challenged for being incompatible with generally accepted company law principles. It is within this context that this article seeks to reinforce the pertinence of mandatory offers in the South African takeover regulation regime. Mandatory offers are of practical relevance and important to achieve equal and fair treatment of the securities holders of a similar class in line with the overarching objectives of the 2008 Act read together with the Takeover Regulations, 2011 (2011 Regulations). Mandatory offers also protect minority shareholders from being forced to retain their investments in a company that has significantly shifted its securities holding control. This article suggests some amendments to the existing provisions of the 2008 Act to reinforce the functional purposes of mandatory offers.

From Subsistence to Commercialisation: Legal Implications of ‘Ecowas Regulations on Transhumance’ on Livestock Investment Options

From Subsistence to Commercialisation: Legal Implications of ‘Ecowas Regulations on Transhumance’ on Livestock Investment Options

Author: Jane Ezirigwe

ISSN: 2521-2605
Affiliations: LLB (Hons.) (Abuja) LLM (London) MBA (EBS) PhD (UCT); Senior Research Fellow, Nigerian Institute of Advanced Legal Studies
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 83 – 132
https://doi.org/10.47348/JCLA/v10/i1a4

Abstract

West Africa is expected to experience rapid population growth with a projected population of 796,494,188 in 2050, most of whom will be unemployed youths in quest of job and business opportunities. The increasing growth in population with an increasing demand for livestock products and a ready workforce presents exciting opportunities for investment in livestock production, job creation, poverty reduction, and food security. Nonetheless, private investment may not happen in a form that will achieve these gains if the ECOWAS texts are left in their current form, in promoting the transhumance business model to the detriment of meaningful large-scale investments that will increase productivity and create jobs for the region’s booming young population. This article adopts a socio-legal approach to examine the ECOWAS Decision and Regulation on Transhumance in order to determine whether they have adequately promoted transhumance in a form that is not inimical to other business investment options for livestock production in the region. Its aim is to show that the regulatory framework has not effectively ensured that transhumance exists in a form that will still provide other business models with opportunities to competitively engage in livestock production. This is given the fact that the transhumance method has been commercialised and even criminalised in ways that produce significant negative consequences for the livestock business. It recommends concrete plans with a view to phasing out transhumance across borders and designating rangelands in semi-arid areas of the region.