An analysis of the right of Muslim adopted children to inherit from their deceased parents in terms of the law of succession: A South African case study

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

An analysis of the right of Muslim adopted children to inherit from their deceased parents in terms of the law of succession: A South African case study

Author: Muneer Abduroaf

ISSN: 2521-2605
Affiliations: BA (Shariah) LLB, LLM, LLD, Senior Lecturer in Law, Faculty of Law, Department of Criminal Justice and Procedure, University of the Western Cape (UWC)
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 63 – 73
https://doi.org/10.47348/JCLA/v8/i2a3

Abstract

This paper analyses the right of Muslim adopted children to inherit from their deceased parents in terms of the laws of succession within the South African legal context. The status of adoption in South African and Islamic law is looked at first by way of an introduction. This is followed by looking at the rights of adopted Muslim children to inherit from their deceased parents (biological and adoptive) in terms of the South African and Islamic laws of intestate (compulsory) and then testate (optional) succession.1 The paper further looks at the possibility of applying relevant Islamic law of succession provisions applicable to enable adopted Muslim children to inherit from the estate of their deceased biological parents within the South African legal framework. The paper concludes with an analysis of the findings and makes a recommendation.

Pandemic recovery in Africa: A case for strengthening insolvency laws for rescuing small and medium enterprises

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

Pandemic recovery in Africa: A case for strengthening insolvency laws for rescuing small and medium enterprises

Authors: Williams C. Iheme and Sanford U. Mba

ISSN: 2521-2605
Affiliations: LLB, LLM, SJD. Associate Professor of Law, Jindal Global Law School; Visiting Professor, Strathmore Law School; LLB, LLM, SJD. Senior Associate in the law firm Dentons ACAS
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 74 – 103
https://doi.org/10.47348/JCLA/v8/i2a4

Abstract

Small and Medium Enterprises (SMEs) play a significant role in the economy of developing countries. Although SMEs contribute to economic growth, they still struggle with access to finance and cash flow constraints. The coronavirus (COVID-19) pandemic worsened this situation, making it necessary for countries to develop rescue regimes suitable for financially distressed SMEs. Focusing on Nigeria and Kenya – which represent the largest economies in West Africa and East Africa respectively – this paper critically sheds light on the socio-legal challenges posed by extant insolvency law regimes in both countries and their unsuitability for driving SME rescue. As a conversation starter in the African context, the authors identify transplanted concepts and structures which make SME rescue a futility, in the light of local circumstances, while proposing solutions tailored to the social milieu of both countries.

Protection of the right to social security of the migrant worker in international law

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

Protection of the right to social security of the migrant worker in international law

Author: Kehinde Anifalaje

ISSN: 2521-2605
Affiliations: LLB (Unilag), LLM (Ibadan), PhD (Ibadan), Faculty of Law, University of Ibadan, Ibadan, Nigeria, West Africa
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 104 – 148
https://doi.org/10.47348/JCLA/v8/i2a5

Abstract

The right to social security is recognised as a basic human right in a number of international instruments. While most nations give recognition to social security rights and generally enforce them within the dictates of domestic legislation to their nationals, the narrative is different for non-nationals, particularly the migrant worker. The article examines the measures that have been deployed at international and regional levels to protect the social security rights of migrant workers, with particular attention to the regular ones. It argues that a number of factors, including the doctrines of territoriality and nationality, account for the marginalisation of the migrant worker in the enforcement of these rights. Some migrant-specific international instruments and series of bilateral and multilateral agreements to overcome these perceived challenges are being hindered by the low number of ratifying countries and disparities in the design and level of development of schemes for specific branches of social security across countries. The article concludes that the social security right of the migrant worker would be enhanced if more countries ratify, domesticate and enforce relevant international instruments on the social security rights of the migrant worker and complement same by a much more coordinated bilateral and multilateral social security agreements.

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

by | Dec 17, 2021 | JCLA, JCLA V8 I2 2021

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

Author: Paul Nkoane

ISSN: 2521-2605
Affiliations: BCom, LLB (UNISA), LLM (UCT) Lecturer: University of South Africa (UNISA)
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 149 – 174
https://doi.org/10.47348/JCLA/v8/i2a6

Abstract

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

Growing threats to environmental human rights defenders: The latest SLAPP suit developments in South Africa

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Growing threats to environmental human rights defenders: The latest SLAPP suit developments in South Africa

Author: Lisa Chamberlain

ISSN: 2616-8499
Affiliations: BA LLB (Wits) LLM (Michigan). Senior Lecturer, School of Law, University of the Witwatersrand, Research Associate, Southern Centre for Inequality Studies, University of the Witwatersrand
Source: South African Journal of Environmental Law and Policy 2020, p. 5 – 38

Abstract

Human rights defenders’ lives, activism, and livelihoods are under threat globally. This is a particular reality for those working to protect land and natural resources. This article examines one of the forms in which environmental activists are being targeted in South Africa, namely the abuse of litigation processes to silence dissent, referred to as Strategic Litigation Against Public Participation (SLAPP suits). This article examines the development of SLAPP suits in South Africa and the impact that they have on the environmental sector and environmental rights. It then discusses some of the latest developments in SLAPP suits locally, including how in recent years, in addition to the more traditional defamation-style SLAPP suit, SLAPP suits have started to take new forms such as costs proceedings and allegations of intellectual property infringement. Lastly, this article explores possible responses to SLAPP suits, concluding that serious consideration needs to be given to anti-SLAPP legislation, the use of the special plea mechanism, and the opportunities for enhanced advocacy and solidarity action that SLAPP suits provide.

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