Regulating Substantively Unfair Terms in Online Contracts

by | Jan 19, 2022 | SLR, SLR V32 I3

Regulating Substantively Unfair Terms in Online Contracts

Author: Sanmarie van Deventer

ISSN: 1996-2193
Affiliations: BComm LLB LLM LLD, Temporary Lecturer, Department of Private Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 518 – 542
https://doi.org/10.47348/SLR/2021/i3a8

Abstract

The possible risks that standard form contracts pose to consumers have long been recognised. This article focuses on the impact that the online environment has on these risks, and it questions whether existing rules sufficiently protect consumers against unfair or abusive provisions in online contracts (ie standard form contracts appearing in electronic form). Several clauses which are affected by the unique characteristics of the online environment are identified and analysed. These include clauses relating to the use of personal information and consumer-generated content, clauses affected by the ongoing nature of online contracts (such as unilateral variation and unilateral termination clauses) and clauses affected by the global nature of online contracts (such as choice-of-law and choice-of-forum clauses). It is concluded that existing measures of control are inadequate to ensure proper protection for online consumers. It may allow suppliers to rely on generally unread terms included in online contracts to exploit consumer data or content, to modify terms without proper notice, to cause loss to consumers through unilateral termination, and to deprive consumers of effective enforcement measures or legal remedies. Proposals are then made for legislative provisions that aim to prevent suppliers from abusing online terms.

Die Vrugte van Beswaarde Bates by die Bereddering van ‘n Insolvente Boedel

by | Jan 19, 2022 | SLR, SLR V32 I3

Die Vrugte van Beswaarde Bates by die Bereddering van ‘n Insolvente Boedel

Author: AL Stander

ISSN: 1996-2193
Affiliations: BIuris LLM LLD, Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 543 – 558
https://doi.org/10.47348/SLR/2021/i3a9

Abstract

If the executor of a deceased estate finds that the estate is insolvent and the creditors of the deceased estate have not instructed him to sequestrate the estate in terms of the Insolvency Act 24 of 1936, he may choose to administer the estate as an insolvent deceased estate in terms of section 34 of the Administration of Estates Act 66 of 1965. Section 34(7) of this Act requires an executor to submit liquidation and distribution accounts of the estate to the Master within certain specified periods of time and section 34(7)(b) prescribes that these accounts must provide for the distribution of the proceeds according to the preferred order prescribed by the Insolvency Act. Section 95(1) of the Insolvency Act provides that “the proceeds of any property which was subject to a special mortgage, landlord’s legal hypothec, pledge or right of retention, after deduction therefrom of the costs mentioned in subsection (1) of section 89, shall be applied in satisfying the claims secured by the said property”. The question that this contribution seeks to answer is whether “the proceeds of any property” in section 95(1) includes the amount(s) paid by a tenant as rent after the date of sequestration, but before the property was sold by the trustee or liquidator? According to Singer NO v The Master 1996 2 SA 133(A), this phrase includes interest derived from the deposit of the purchase price of the property. However, the Appellate Division also accepted that “the proceeds of any property” were not limited to the purchase price of the property, but included fruits derived after the date of sequestration such as rent paid by a tenant before the property was sold or interest paid by the purchaser. It is recommended in this contribution that rental income that accrues prior to the realisation of the secured property should not be treated in the same way as, for example, rental income and occupational interest that accrues after realisation of the property. This recommendation is based on the interpretation of section 95(1) of the Insolvency Act, in conjunction with section 83 and section 95(2).

Judicial Enforcement of Constitutionalised Anti-Corruption Principles: The Case of Kenya

by | Jan 16, 2022 | AJCL, AJCL 2021

Judicial Enforcement of Constitutionalised Anti-Corruption Principles: The Case of Kenya

Author: Walter Khobe Ochieng

ISSN: 2521-5434
Affiliations: LLM (Pretoria), LLB (Moi), PGD (Kenya School of Law), Lecturer, Department of Public Law, Moi University and Advocate of the High Court of Kenya
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 1 – 22
https://doi.org/10.47348/AJCL/2021/a1

Abstract

The Constitution of Kenya 2010 has entrenched values and principles of leadership and integrity. Adherence to these values and principles is an eligibility criterion for appointment to public office. The Anti-Corruption and Economic Crimes Act 3 of 2003, one of the laws that give effect to constitutionally entrenched values and principles of leadership and integrity, provides for the suspension from office of public officers charged with offences relating to corruption and economic crime. The enforcement of these twin innovations, ethical standards on eligibility for state/public office and suspension from office pending trial, constitute a key cog in Kenya’s anti-corruption strategy. This paper examines the emerging practice and contestation in the enforcement of these twin constitutional innovations by the judiciary.

Judicial Interpretation of the Presidential Power of Pardon in Nigeria

by | Jan 16, 2022 | AJCL, AJCL 2021

Judicial Interpretation of the Presidential Power of Pardon in Nigeria

Author: Sogunle Benjamin Abayomi

ISSN: 2521-5434
Affiliations: LLB (Hons), BL, LLM, Senior Lecturer, Faculty of Law, Olabisi Onabanjo University, Ago-Iwoye, Ogun State, Nigeria
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 23 – 40
https://doi.org/10.47348/AJCL/2021/a2

Abstract

The exercise of the presidential power of pardon has generated periodic controversies and elicited various reform proposals in Nigeria in recent times because this power is often exercised in ways that are clearly at odds with Nigerian society’s interests, including granting pardons to further narrow partisan interests and other personal ends. Of utmost concern is the question of the proper time to exercise this power—whether before or after conviction or at any time in-between. Although the Supreme Court of Nigeria takes the view that the power should not be exercised until after conviction, this paper examines, by way of a comparative analysis, the full amplitude of this power within the narrow confines of this riposteprovoking issue, juxtaposing the reasoning of the Supreme Court of Nigeria against the text of the Constitution, and concludes that, since pardon, an act of grace, operates outside of strict legal rules, subjecting its exercise by the president to the high due process threshold canvassed by the court would defeat the essence of this power.

The Interface Between National and International Law in Africa: Nigeria and Kenya in Comparative Perspective

by | Jan 16, 2022 | AJCL, AJCL 2021

The Interface Between National and International Law in Africa: Nigeria and Kenya in Comparative Perspective

Authors: Sylvanus Gbendazhi Barnabas and Donatus Onuora Okanyi

ISSN: 2521-5434
Affiliations: Faculty of Law, Nile University of Nigeria, Abuja; Nigeria Law School, Enugu Campus
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 41 – 66
https://doi.org/10.47348/AJCL/2021/a3

Abstract

This paper examines the interface between national and international law in Africa, with a special focus on Nigeria and Kenya, by comparatively examining both states. The choice of Kenya as a comparator is because, like Nigeria, Kenya is anglophone. Kenya has embarked on fairly recent constitutional reforms in relation to the position of international law in its legal system. The choice of Nigeria is because as an Anglophone African state, it represents the traditional attitude towards international law practised in Anglophone Africa. The purpose of the comparative analysis is to investigate whether there are lessons that Nigeria and other Anglophone African states may glean from Kenya’s constitutional law reforms. In addition to the comparative approach, the methodology is also doctrinal. It will be suggested that Anglophone African countries like Nigeria should adopt the current approach that Kenya has adopted towards engaging with international law at its national level.