Presence as a Ground for Jurisdiction in Common Law Africa

by | Aug 3, 2025 | JCLA, JCLA V12 I1 2025

Presence as a Ground for Jurisdiction in Common Law Africa

Authors: Thomas Kojo Quansah and Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: LLB (Ghana) LLM (UJ); Lecturer, Law School, University of Professional Studies, Accra, Ghana; Visiting Assistant Professor of Law, University at Buffalo School of Law, New York (USA); Senior 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 12 Issue 1, p. 103 – 145
https://doi.org/10.47348/JCLA/v12/i1a3

Abstract

Before rendering a binding judgment against a party, a court must have personal jurisdiction over that party. Courts may assume jurisdiction over a person in various ways. The oldest and most contentious method is the personal service of the defendant with the court process while they are present in the state. This basis is known as the mere presence, temporary presence, or physical presence rule, which originates from English common law. Under common law, the defendant’s presence within the court’s jurisdiction remains one of the primary bases for the court to assume jurisdiction over a civil action. The physical presence grounds for jurisdiction have recently faced significant challenges and criticisms from some scholars. Others contend that it is still relevant, primarily for the reasons behind its original justification. There is also the question of how the presence of a legal person is determined for establishing a court’s jurisdiction. Considering the foregoing, re-examining presence as a ground for jurisdiction appears warranted. This article, therefore, investigates presence as a basis for jurisdiction, its history, and the presence of natural and legal persons. Given the various common law countries with somewhat divergent approaches, a comparative study of relevant countries will be conducted, leading to pertinent observations, remarks, and recommendations regarding the way forward. With recent technological developments and advancements in common law African countries, this article explores whether the presence doctrine is an appropriate tool for courts to exercise jurisdiction.

Towards an Enabling Regulatory Environment for Fintech Startups in Africa: Lessons From Nigeria

by | Aug 3, 2025 | JCLA, JCLA V12 I1 2025

Towards an Enabling Regulatory Environment for Fintech Startups in Africa: Lessons From Nigeria

Author: Albert Chris Puja

ISSN: 2521-2605
Affiliations: LLB (Unizik), LLM cum laude, LLD (UWC)
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 146 – 189
https://doi.org/10.47348/JCLA/v12/i1a4

Abstract

This article examines how regulatory environments in Africa can be reformed to support fintech startups better, using Nigeria as a case study. Fintech startups are increasingly important in advancing financial inclusion, promoting competition and enabling innovation in African financial sectors. However, they face regulatory challenges that are sometimes overlooked in broader fintech discourse. These challenges include regulatory uncertainty, lack of tailored licensing regimes, fragmented oversight, and excessive compliance burdens. The article outlines the main elements of the regulatory environment in which fintech startups operate. These include policy frameworks, regulatory frameworks, institutional arrangements, and innovation-enabling mechanisms. It then explains how gaps in these frameworks create barriers to entry, restrict growth and increase regulatory complexity for fintech startups. The case study of Nigeria shows that, although policymakers and regulators have introduced a national fintech strategy, strengthened institutional capacity, established innovation facilitators and introduced tailored regulations, the regulatory environment remains characterised by some outdated laws, fragmented legal frameworks and flaws in regulatory co-ordination. The article proposes targeted reforms to address these issues and strengthen the regulatory environment. These proposals offer practical guidance for other African countries seeking to support their fintech startups more effectively. The article argues that an ideal regulatory environment enables fintech startups to thrive while upholding key regulatory objectives such as financial stability, financial integrity and consumer protection. Further, any reform to improve the regulatory environment must consider local conditions, including institutional capacity, resource constraints, and the maturity of the domestic fintech ecosystem.

Corporate Social Responsibility Within the Paradigm of Transformative Constitutionalism in South Africa

by | Aug 3, 2025 | JCLA, JCLA V12 I1 2025

Corporate Social Responsibility Within the Paradigm of Transformative Constitutionalism in South Africa

Authors: Tebello Thabane, Prince Mathibela and Justice Mudzamiri

ISSN: 2521-2605
Affiliations: Senior Law Lecturer, Commercial Law Department, University of Cape Town, South Africa, BA Law, LLB (National University of Lesotho), LLM (UP), LLM (UFS), PhD (UCT). Advocate of the High Court of South Africa and Lesotho; PhD candidate at Stellenbosch University Law Faculty, Commercial Law Department, Attorney of the High Court of South Africa. Legal Advisor at SouthSouth North NPC. BA, LLB (Wits), LLM (University of Cape Town); Postdoctoral Research Fellow, Department of Mercantile Law, University of Johannesburg. LLB (University of Fort Hare), LLM (University of Johannesburg), LLD (University of Fort Hare). Attorney of the High Court of South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 190 – 218
https://doi.org/10.47348/JCLA/v12/i1a5

Abstract

South Africa is considered one of the most unequal societies in the world. This inequality is primarily attributed to the negative impact of apartheid on the distribution of resources. To address this issue, efforts have been made to transform society by incorporating substantive equality and transformative justice principles into the Constitution of the Republic of South Africa, 1996, related laws, and voluntary codes. The main object of this article is to investigate whether, in its current form, corporate social responsibility (CSR) has the potential to effectively deepen social transformation in South Africa or if it requires further strengthening. The article compares the approaches of South Africa and India in addressing inequality through legal tools, evaluates the strengths and weaknesses of each approach, and proposes law reform that would ensure social transformation in South Africa.

The Plight of First Responders Suffering from Mental Disorders: Will an Amended Workers’ Compensation Act Relieve their Predicament?

by | Jul 27, 2025 | ILJ, ILJ V46 I3

The Plight of First Responders Suffering from Mental Disorders: Will an Amended Workers’ Compensation Act Relieve their Predicament?

Author Karin Calitz

ISSN: 2413-9874
Affiliations: Professor Emeritus and Research Fellow, Department of Mercantile Law, Stellenbosch University
Source: Industrial Law Journal, Volume 46 Issue 3, 2025, p. 1523 – 1550

Abstract

First responders are at great risk to contract Post Traumatic Stress Disorder (PTSD), because of the nature of their work. This often leads to suicide or homicide-suicide, involving family members.
The process of claiming benefits from the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), often exacerbates the PTSD symptoms because the onus of proof that PTSD arose out of and in the course of employment rests on the employee. Claiming compensation often takes years, partly due to the lack of expertise of commissioners and tribunals, leaving employees no other choice but to appeal to the High Court.
Legal comparison indicates that certain provinces in Canada, and some states in the US and Australia, have adopted presumptive legislation which relieves first responders of the onus to prove that PTSD arose out of their employment.
The Compensation for Occupational Injuries and Diseases Amendment Act 10 of 2022 (COIDAA), which is not in force yet, for the first time includes PTSD (but no other mental illness) in the definition of an occupational disease. COIDA’s draft Schedule 3 lists PTSD as an occupational disease that will be covered by a presumption but does not limit the presumption to any categories of injured or diseased employees. This means that any employee suffering from PTSD will be covered by the presumption as soon as it is established that the person suffers from PTSD. In light of the fact that the Compensation Fund (CF) experiences serious financial difficulties, the article agrees that rehabilitation and return-to-work measures introduced by the COIDAA are laudable, but at present financially unattainable. More informal, less costly measures, such as online psychoeducation training of first responders, peer groups and families to recognise the symptoms of PTSD and how to deal with those, can nurture resilience of first responders and empower those closest to them to support them. By ensuring a psychosocial safety climate, employers can do much to prevent PTSD. A code of good practice could include these recommendations.
The article further recommends that the presumption should at first only cover first responders as a matter of urgency until the CF becomes financially viable again.

‘Just and Equitable’ Grounds for Review in Section 158(1B) of the LRA

by | Jul 27, 2025 | ILJ, ILJ V46 I3

‘Just and Equitable’ Grounds for Review in Section 158(1B) of the LRA

Author Andrea Joy Zitzke

ISSN: 2413-9874
Affiliations: BA Law (Pretoria), LLB (Pretoria), LLM (Stellenbosch), LLD candidate (Free State)
Source: Industrial Law Journal, Volume 46 Issue 3, 2025, p. 1550 – 1573

Abstract

When will a court find it ‘just and equitable’ to intervene during incomplete proceedings in terms of s 158(1B) of the Labour Relations Act 66 of 1995 (LRA)? It is becoming more and more commonplace, contrary to the purpose of the LRA, to bring reviews during incomplete Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining council proceedings. It is therefore necessary to clarify when a court will exercise its discretion to review proceedings before their finalisation. Since determining what is ‘just and equitable’ has been a ‘difficult horse to ride’ for the court and litigants alike, it is necessary for principles to be extracted from previous decisions in order to produce concrete rules that will assist with establishing when a court may intervene during incomplete proceedings in terms of s 158(1B) in accordance with legal certainty and stare decisis. In this contribution, the history of case law is traced in an attempt to distil relevant concrete principles that can assist practitioners and courts in this determination.