Companies convicted of economic crimes and their participation in government tender processes in South Africa: A comment on Namasthethu electrical (PTY) LTD v City of Cape Town and another (201/19) [2020] ZASCA 74 (29 JUNE 2020)

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Companies convicted of economic crimes and their participation in government tender processes in South Africa: A comment on Namasthethu electrical (PTY) LTD v City of Cape Town and another (201/19) [2020] ZASCA 74 (29 JUNE 2020)

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 102 – 122
https://doi.org/10.47348/JCLA/v8/i1a4

Abstract

In South Africa, persons or companies convicted of fraud or corruption or companies whose directors have been convicted are debarred from participating in bidding for government tenders. Although it is easy to establish whether or not a natural person has been convicted of an offence, because a certificate can be obtained from the South African Police Service to that effect, it is the opposite with juristic persons. This issue came up in the case of Namasthethu Electrical (Pty) Ltd v City of Cape Town and Another in which the appellant company was awarded a government tender although the company and its former director had been convicted of fraud and corruption. The purpose of this article is to analyse this judgment and show the challenges that the government is faced with when dealing with companies that have been convicted of offences that bid for government tenders. Because South Africa is in the process of enacting public procurement legislation, the Public Procurement Bill was published for comment in early 2020. One of the issues addressed in the Bill relates to debarring bidders who have been convicted of some offences from bidding for government tenders. Based on the facts of this case and legislation from other African countries, the author suggests ways in which the provisions of the Bill could be strengthened to address this issue.

Book Review: Jurisprudence: Theory and context 8 ed by Brian Bix, London: Sweet & Maxwell, 2019

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Book Review: Jurisprudence: Theory and context 8 ed by Brian Bix, London: Sweet & Maxwell, 2019

Author: Edmund Ato Kwaw

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 123 – 126
https://doi.org/10.47348/JCLA/v8/i1a5

Abstract

None

The Economy in the Constitution: An Appraisal of Kenya’s 2010 Constitution as an Economic Charter

by | Jun 9, 2021 | AJCL, AJCL 2020

The Economy in the Constitution: An Appraisal of Kenya’s 2010 Constitution as an Economic Charter

Author: Eric Kibet

ISSN: 2521-5434
Affiliations: LLD (Pretoria), LLM (Boston College), LLB (Nairobi), Advocate of the High Court of Kenya and Assistant Professor, United States International University, Nairobi, Kenya
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 1 – 30
https://doi.org/10.47348/AJCL/2020/a1

Abstract

The idea of constitutions as instruments of political governance or ‘power maps’ is well established. Constitutions set down the foundation for political governance, establish organs of the state, allocate them power, define their relationships inter se, and most importantly, limit public power. The conception of constitutions as instruments of economic governance has not received as much scholarly attention. The lack of constitutionalism and rule of law has tended to coexist with poor economic prospects in Kenya and elsewhere in Africa, suggesting a link between them. This has made the question of whether constitutions and the idea of constitutionalism can contribute to better economic governance besides political governance, more important. While it cannot be assumed that the stipulations in a constitution on economic governance automatically translate into good governance and economic growth, such provisions are nonetheless important as they provide an encouraging impetus for sound economic governance that is indispensable in achieving growth and development. This article appraises Kenya’s Constitution as an economic charter that dedicates significant attention to regulating economic affairs through setting a foundation for the country’s economic orientation, protecting private property and enterprise, securing the rule of law and good governance, including economic governance, and making provisions on other economic concerns such as labour relations, consumer protection and competition.

The Role of Founding Values and Principles in Constitutional and Statutory Interpretation: Lessons for Zimbabwe

by | Jun 9, 2021 | AJCL, AJCL 2020

The Role of Founding Values and Principles in Constitutional and Statutory Interpretation: Lessons for Zimbabwe

Author: Admark Moyo and Basutu S Makwaiba

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 31 – 58
https://doi.org/10.47348/AJCL/2020/a2

Abstract

This article explores the role of constitutional values and principles in statutory and constitutional analysis. Given that the exact meaning of these values and principles remains largely unexplored, the article starts by explaining the differences between these terms and argues that these differences are not important for purposes of determining the role of values and principles in the interpretation of legal texts. In addition, the article examines the meaning and scope of the teleological theory of interpretation which forms the philosophical basis of a value-laden approach to constitutional and statutory analysis. More importantly, the article proceeds to unpack the letter and reach of the constitutional provisions that explicitly require courts to pay due regard to values and principles when interpreting any part of the Declaration of Rights. Towards the end, the article demonstrates the role of values in both the interpretation of enactments and the development of the common law or customary law.

An Evaluation of the Enforcement of Fundamental Rights and the Controversy of Jurisdiction of the Federal and State High Courts in Nigeria

by | Jun 9, 2021 | AJCL, AJCL 2020

An Evaluation of the Enforcement of Fundamental Rights and the Controversy of Jurisdiction of the Federal and State High Courts in Nigeria

Author: Bo Alloh

ISSN: 2521-5434
Affiliations: LLB, LLM, BL, PhD, Lecturer, Acting Head, Department of Jurisprudence and International Law, Faculty of Law, Delta State University, Oleh Campus, Delta State, Nigeria.
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 59 – 78
https://doi.org/10.47348/AJCL/2020/a3

Abstract

This article examines the issue of jurisdiction between various high courts on the enforcement of fundamental rights in Nigeria. Fundamental rights are derived from the constitution and are expressly entrenched in the constitution of a country. They vary from one country to another and are specifically enacted in a country’s constitution in line with the history and culture of the country. In Nigeria, jurisdiction is vested in both State and Federal High Courts with respect to the enforcement of fundamental rights. However, the jurisdiction of the State High Courts is ousted and donated to the Federal High Courts, once a case on fundamental rights falls under section 251 of the 1999 Constitution of the Federal Republic of Nigeria. The researcher adopted the doctrinal method of research. The objective of this article is to reveal that the concurrent jurisdiction of both the Federal and State High Courts to hear and determine applications to secure the enforcement of fundamental rights has led to years of seemingly unsettled controversies, academically and procedurally. However, this controversy has been settled in the case of FUT Minna v Olutayo. This article concludes that the Supreme Court decision in the case of FUT Minna v Olutayo supports the realisation of the enforcement of fundamental rights in Nigeria.