Off the Beaten Track into the Savannah: The Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe Ruling Imperils SADC Investment Law

by | Oct 14, 2019 | SADC, SADC 2013

Off the Beaten Track into the Savannah: The Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe Ruling Imperils SADC Investment Law

Authors Tawanda Hondora

ISSN: 2026-8556
Affiliations: None
Source: SADC Law Journal, The, 2013, p. 23 – 58

Abstract

This article considers the investment law implications of the celebrated case of Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe. In its decision, the Southern African Development Community (SADC) Tribunal declared that the 79 applicants, among which were 28 private limited companies and their shareholders: (i) had been subjected to unlawful race discrimination; (ii) had been unlawfully denied access to the courts of Zimbabwe; and (iii) were entitled to be paid ‘fair compensation’ for farms expropriated by the respondent State. This article argues that the Campbell case was wrongly decided. Contrary to the Tribunal’s decision under international law: (a) a company — such as Mike Campbell (Pvt) Ltd — cannot assert a race discrimination claim; (b) a shareholder in a company — such as William Michael Campbell — does not have a cause of action or jus standi against a State in a claim seeking compensation for property expropriated from the company, except where the company has been wound up, the direct rights of the shareholder — qua shareholder — have been breached, or a specific and enabling investment treaty applies to the dispute; and (c) a State is not required to pay ‘fair compensation’ or ‘prompt, adequate and effective compensation’ to its national from whom it has expropriated property. Although decided using international human rights law principles, the Campbell ruling is relevant to, and will imperil, SADC investment law, if it is treated as persuasive authority.

Using Local Legal Cultures to Evaluate the OHADA Regime as a Precedent for Business Law Integration in the SADC

by | Oct 14, 2019 | SADC, SADC 2013

Using Local Legal Cultures to Evaluate the OHADA Regime as a Precedent for Business Law Integration in the SADC

Authors Isabelle Deschamps

ISSN: 2026-8556
Affiliations: Lawyer, D.C.L. Candidate, McGill University; Non-practising Solicitor, Law Society of England and Wales (2008)
Source: SADC Law Journal, The, 2013, p. 1 – 22

Abstract

This paper discusses the importance for states, transnational organisations and ‘norm entrepreneurs’ in Africa to account for local legal cultures when contemplating regional business law unification and economic integration. It explores how local legal cultures shape commercial usages and how commercial law integration projects in Africa, in particular the OHADA and the SADC could better account for them. To begin with the paper revisits anthropological, critical and international law definitions of culture and analyses the attributes of local legal cultures. Building on this discussion, the article then analyses the relationship of general cultural norms to the particular informal legal norms that shape the living law of business in some OHADA and SADC countries. It looks at specific spheres where local business law cultures can be observed. The point is not to describe the specific business law cultures operating in the OHADA and the SADC regions, but rather to draw attention to settings where jurists and lawmakers can observe local business legal culture in action. The article concludes that paying attention to local business law culture will help assess the merits of the OHADA as a model for the SADC. On a broader scale, it will assist legislators, governments, jurists and other transnational business law experts in assessing the feasibility of an African economic and legal integration project.

Prospects for medicines regulation harmonisation in the SADC: Reflections on the AU draft model law and other developments

by | Oct 13, 2019 | SADC, SADC 2014/15

Prospects for medicines regulation harmonisation in the SADC: Reflections on the AU draft model law and other developments

Authors Yousuf A Vawda

ISSN: 2026-8556
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal
Source: SADC Law Journal, The, 2014/15, p. 209 – 223

Abstract

Fourteen of the fifteen SADC member states signed the Protocol on Health, in Maputo, on 18 August 1999. The Protocol recognises, among other things, ‘that close co-operation in the area of health is essential for the effective control of communicable diseases, non-communicable diseases and for addressing common health concerns in the Region’. Critically, it provides that ‘State Parties shall co-operate and assist one another in the harmonisation of procedures of pharmaceuticals, quality assurance and registration’. There is thus a regional imperative to harmonise medicines regulatory laws, regulations and procedures. In the ensuing decade and a half, a number of developments have taken place along the path to harmonisation. The AU’s ‘draft Preliminary Model Law on Medicines Regulation Harmonization’ has sought to take the process of harmonisation to a continental level. Given the complexities and disparate backgrounds of AU member states, this is a mammoth task to accomplish. For example, a number of thorny policy issues will need to be clarified. Furthermore, the success of AU-wide harmonisation and model legislation must be premised on the regional blocs achieving significant consensus within their ranks. This contribution evaluates the progress which the SADC bloc is making to attain harmonisation, identifies the critical issues which need to be addressed in the run-up to full harmonisation, and explores how these may be addressed. It concludes that the significant progress made by other regional blocs in Africa, and the experience of the AU Model Law, offer useful exemplars for progress by the SADC in this regard.

Customary Land Laws within Legal Pluralism over the Generations

by | Oct 13, 2019 | SADC, SADC 2014/15

Customary Land Laws within Legal Pluralism over the Generations

Authors Gordon R. Woodman

ISSN: 2026-8556
Affiliations: Emeritus Professor of Comparative Law, Birmingham Law School, University of Birmingham
Source: SADC Law Journal, The, 2014/15, p. 189 – 208

Abstract

This paper considers the ways in which customary land laws in Africa have been changed over time, especially by their interaction with other laws, using examples of specific developments taken largely from certain common law jurisdictions. The purpose is to assist decision-making for immediate and long-term legal development. The relationship of types of customary land laws to types of legal pluralism forms a framework. State law pluralism is commonly the coexistence within a state law of received law and one or more customary laws ‘recognised’ by the state. These ‘recognised’ customary laws are official customary laws, as created and developed through state authorities. Deep legal pluralism is the coexistence of these plural state laws with living customary laws, which are the customary laws observed within communities. Customary land laws have never been static. Changes in living customary land laws have often been brought about by indigenous factors such as contact between communities with different customary laws, or the influences of globalisation. Some changes in living customary land laws, such as the extent and nature of the authority of chiefs over land, have ensued from the very existence of the state. Many others have arisen from state ‘recognition’ of customary land laws. State ‘recognition’, whether institutional or normative, creates official customary laws, the content of which can result from misunderstandings of living customary laws, policies aimed at modifying them, and the necessity to reformulate customary law for use in state institutions. Other changes have resulted from deliberate state attempts to replace or change living customary land laws. Examples of significant changes concern the character of allodial titles, of communal land rights, and of transactions affecting land. Possible results of changes in the future are the disappearance of elements or entireties of current customary land laws, and the unification or integration of plural land laws.

Communal land tenure after 20 years of democracy in South Africa

by | Oct 13, 2019 | SADC, SADC 2014/15

Communal land tenure after 20 years of democracy in South Africa

Authors Tara Weinberg

ISSN: 2026-8556
Affiliations: Researcher, Centre for Law and Society, University of Cape Town
Source: SADC Law Journal, The, 2014/15, p. 164 – 188

Abstract

Twenty years have passed since the Bantustans were reintegrated into South Africa. Yet for the 17 million people still living in these former homelands, the struggle for full recognition of their land rights persists. The post-1994 government refers to the former homelands as ‘communal areas’, where ‘communal tenure’ is at play. This paper focuses on ‘communal tenure’ reform developments (or lack thereof) with reference to law, policy and practice in rural areas in South Africa. While laws to promote tenure security for farm dwellers and labour tenants have been enacted, there is no legislation beyond the Interim Protection of Informal Land Rights Act (IPILRA) to secure the land rights of people living in the former Bantustans. Despite the post-1994 constitutional requirement that the state make secure the land tenure of people in all of South Africa, it has so far failed to do so. This legislative ‘vacuum’ has contributed to the precarious nature of people’s land rights in the former homelands. This paper argues that communal land tenure is not in a healthy state and discusses recent laws and policies that are symptoms of this ill health, including the ‘willing buyer-willing seller’ policy, the Communal Land Rights Act, the Traditional Leadership and Governance Framework Act and the government’s recent new communal land tenure policy. Taking cognisance of the interface between customary and ‘informal land rights’, and South Africa’s legal systems of property recognition, the paper explores the historical roots of the insecurity of land tenure with which millions of South Africans struggle. Finally, the paper diagnoses some of the root causes of the failures of communal land tenure reform and posits some alternative solutions.