Contractual fairness: Conflict resolved?

by | Jul 28, 2021 | ACTA, ACTA 2021

Contractual fairness: Conflict resolved?

Author A Price

ISSN: 1996-2088
Affiliations: BBusSci LLB (Cape Town) BCL (Oxon) PhD (Cantab); Adjunct Associate Professor, Law Faculty, University of Cape Town; member of the Cape Bar, advocate of the High Court of South Africa.
Source: Acta Juridica, 2021, p. 321 – 342
https://doi.org/10.47348/ACTA/2021/a12

Abstract

In 2019 Dale Hutchison called upon the Constitutional Court to resolve the apparent conflict between certain of its judgments and those of the Supreme Court of Appeal relating to the most burning issue in South African contract law, namely, the extent to which a judge can refuse to enforce an otherwise valid contract on the grounds that it would be unduly harsh, unfair or unreasonable to do so. Two of the Constitutional Court’s judgments handed down simultaneously in 2020 – Beadica 231 CC v Oregon Trust and AB v Pridwin Preparatory School – answered Dale’s call. In Beadica, the notion that abstract values such as fairness, reasonableness and good faith serve as directly applicable standards that courts may use to control contractual content and enforcement was rejected. The established Barkhuizen test for public policy should be employed instead, ‘it was held’. Nonetheless Pridwin provides fresh impetus to the horizontal application of constitutional rights to contracting parties in terms of s 8(2) of the Constitution. The courts will have to use the latter tool carefully and incrementally, particularly in the context of commercial contracting, if the careful balance between contractual fairness and certainty achieved in Beadica is to be preserved.

Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment

by | Jul 28, 2021 | ACTA, ACTA 2021

Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment

Author H Scott

ISSN: 1996-2088
Affiliations: Tutorial fellow of Lady Margaret Hall and professor of private law in the
Oxford Law Faculty.
Source: Acta Juridica, 2021, p. 343 – 373
https://doi.org/10.47348/ACTA/2021/a13

Abstract

First National Bank of Southern Africa v Perry, Nissan South Africa v Marnitz NO and Absa Bank v Lombard Insurance, as well as Trustees, Estate Whitehead v Dumas and Absa Bank v Moore, together amount to a concerted attempt on the part of South African courts to provide victims of the theft of incorporeal money with adequate redress. However, it has proved difficult to find a satisfactory juristic explanation for this series of decisions. This chapter shows that a model organised around the extension of the vindicatio to incorporeal money is unworkable. Instead, having considered briefly a second possibility, namely, the English constructive trust, this chapter advances an analysis of the plaintiff’s claim to the stolen money solely in terms of the non-consensual enrichment (that is, enrichment other than by deliberate conferral) of the defendant at their expense. Apart from its superior explanatory power, such an approach offers a blueprint for future development, insofar as it opens the way to the recognition of a secured claim where the proceeds of stolen money have been used to discharge the thief ’s pre-existing secured debts: the doctrine of subrogation to extinguished rights. This chapter closes by considering the implications of these conclusions for wider debates about the proper size and shape of the law of unjust enrichment.

‘When Rescuers become Refoulers: Closing Kenya’s Refugee Camps amid Terrorism Threats’ and leaving vulnerable groups out in the cold

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

‘When Rescuers become Refoulers: Closing Kenya’s Refugee Camps amid Terrorism Threats’ and leaving vulnerable groups out in the cold

Author Charles A Khamala

ISSN: 2521-2613
Affiliations: PhD (Université de Pau et des Pays de l’Adour) (mention trés honourable), LLM (London), LLB (Hons) (Nairobi), PGDip (KSL). Advocate of the High Court of Kenya and Senior Lecturer, Africa Nazarene University Law School
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 1 – 29
https://doi.org/10.47348/ANULJ/v8/i1a1

Abstract

Kenya’s counter-terrorism measures, following entry into Somalia, relocated refugees to designated camps. However, by violating a refugee’s freedom of movement, mass relocation contravenes the African Charter on Human and Peoples’ Rights (ACHPR). Regional jurisprudence informed the Kenyan High Court’s Kituo cha Sheria v Attorney General decision holding that mass refugee relocation is indeed refoulement. It necessarily discriminates, punishes disproportionately, and may amount to a ‘failure to protect’ refugees against torture, a crime against humanity. However, the United Nations Convention Relating to the Status of Refugees (Refugees Convention) merely prohibits hosts from returning escapees to countries where they are targeted for persecution. Conversely, refugees who are either reasonably regarded as threatening national security or reasonably suspected of serious crimes are deemed to ‘waive’ their non-refoulement right. Nonetheless, the court’s legal moralism insisted that states should prove ‘waiver’ and never torture refugees. Invoking an ‘individual criminality’ principle required proof of a refugee’s dangerousness. Suspects can furthermore not be condemned unheard. Therefore, establishing whether ‘mass waiver’ is possible, is problematic. Are blanket relocation directives justifiable simply because proving ‘reasonable belief’ of refugees committing terror acts or serious crimes are difficult? Although Samow Mumin Mohamed v Cabinet Secretary, Ministry of Interior Security and Co-Ordination condoned mass refugee relocation Refugee Consortium of Kenya v Attorney did not. Curiously, to clarify the ambiguity Kenya National Commission on Human Rights v Attorney Genera elevated the required standard of proof for ‘waiver’ under the Refugees Convention to one of ‘beyond reasonable doubt.’ Previously, in Coalition for Reform and Democracy (CORD) v Republic of Kenya legislative caps on refugee numbers were rejected. Subsequently, a new Refugee Bill (2019) proposes to legalise confining refugees to designated camps. This article applies common-law principles of the duty on rescuers to evaluate whether mass refugee relocation refoules.

The application of Islamic inheritance law in independent and contemporary Kenya: A Muslim’s right to equality and freedom from discrimination

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

The application of Islamic inheritance law in independent and contemporary Kenya: A Muslim’s right to equality and freedom from discrimination

Authors Moza Jadeed, Attiya Waris and Celestine N Musembi

ISSN: 2521-2613
Affiliations: TBC
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 30 – 64
https://doi.org/10.47348/ANULJ/v8/i1a2

Abstract

This article argues that the observance of Islamic inheritance law (IIL) by Muslims in Kenya while the rest of the citizens employ a universal inheritance law is legitimate. It is within the Muslims’ right to equality and freedom from discrimination both under the now-repealed 1963 independence Constitution and the present Constitution of Kenya 2010. Through analysis of previous works, cases (local and foreign), statutes, international human rights instruments, international consensus documents, other international agreements, in-depth interviews and focus group discussions, the article justifies the application of IIL in the country. It also conducts a thematic reading of the Qur’an, the Muslim Holy Book and the primary source of Islamic law, to demonstrate that IIL is a matter of exceptional importance to Muslims and therefore deserves accommodation in the Kenyan legal system under the right to equality and freedom from discrimination. The article, therefore, allays fears and misconceptions that the recognition of IIL in the country’s normative structures gives Muslims special treatment, makes them lucky and/or disunites Kenyans. Instead, it shows that such an arrangement is lawful and aligns with the principle of separation of the state and religion. It also makes Kenya inclusive and cohesive as it respects the rights of all its citizens, including the minorities. And because the enjoyment of this right is personal, the article highlights that the hesitance by other minority groups (locally and abroad) to assert it during their countries’ lawmaking or law reform processes does not estop Kenyan Muslims from doing it.

Sexual violence against women during times of conflict: Promise of the vulnerability theory

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Sexual violence against women during times of conflict: Promise of the vulnerability theory

Author Judith A Oloo

ISSN: 2521-2613
Affiliations: BAL, LLB, LLM, PhD. Advocate of the High Court of Kenya and lecturer at the School of Law at Jomo Kenyatta University of Agriculture and Technology (JKUAT) in Nairobi, Kenya
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 65 – 85
https://doi.org/10.47348/ANULJ/v8/i1a3

Abstract

Compared to most countries in sub-Saharan Africa, Kenya has, for a long time, enjoyed relative peace. However, this perceived peace has been marked with several incidents of internal clashes exposing women to large-scale gender-based sexual violence. While sexual violence is generally common in peacetime, it is exacerbated in conflict situations such as the post-election violence of 2007–2008 which saw mass incidents of rape and unprecedented killings in Kenya. This happened despite a robust legal framework prohibiting sexual violence. This article shows that the state’s to take cognisance of certain issues uniquely affecting women in Kenya in various aspects and contexts accumulate to disadvantage women, thereby making them more vulnerable. Second, the state’s failure to respond adequately to the unique plight of women during peacetime further exacerbates their suffering during armed conflicts. Thus, in a bid to find a better legal framework to protect women during conflict in Kenya, this article analyses the vulnerability theory of human rights which acknowledges that humans are generally and naturally vulnerable to certain elements. It concludes by stating that only when the vulnerability of women is understood and appreciated, can the law be effectively used to protect women against sexual and gender-based violence in conflict situations, among other hardships that women face, just by virtue of being women. It proposes among others a multidimensional approach including law reform, strict implementation of the existing law, economic inclusion of women and more investment in women as a remedy.