Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

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

Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

Authors: Clement Marumoagae and Siphethile Phiri

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Witwatersrand, School of Law Visiting Associate Professor, National University of Lesotho, Faculty of Law; LLB LLM LLD Candidate Teaching Assistant, University of Venda, Department of Private Law
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 496 – 517
https://doi.org/10.47348/SLR/2021/i3a7

Abstract

The South African business rescue procedure has not yet been adequately tested against the Constitution of the Republic of South Africa, 1996. In particular, the extent to which company stakeholders could raise constitutional rights to litigate against companies placed under business rescue is not clear. This contribution discusses the apparent tension between the ideal of providing business rescue practitioners the breathing space to attempt to rescue companies and the desire of the employees of those companies to litigate against such companies when they are placed under business rescue. It appears that generally, courts seem to be of the view that the moratorium established in chapter six of the Companies Act 71 of 2008  is broad enough to include employment-related disputes and that during the  period of business rescue, employees are not permitted to litigate against their employer companies. Nevertheless, it would also appear that courts have not adequately considered how this moratorium should be balanced with employees’ constitutional rights, like the right to fair labour practices, social security and equality, and whether the moratorium legitimately and reasonably prohibits employees from protecting these rights by approaching  courts during business rescue proceedings. It is argued in this contribution that either the courts or the legislature should provide clarity on the matter.

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.

Transition and the Pitfalls of Nondemocratic Institutions: A review of Constitutionality in Ethiopia

by | Jan 16, 2022 | AJCL, AJCL 2021

Transition and the Pitfalls of Nondemocratic Institutions: A review of Constitutionality in Ethiopia

Author: Tadesse Melaku

ISSN: 2521-5434
Affiliations: Assistant Professor, School of Law, Hawassa University, Ethiopia
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 67 – 87
https://doi.org/10.47348/AJCL/2021/a4

Abstract

Ethiopia has undertaken important political reforms after the fall of authoritarianism in 2018. This article examines the performance of Ethiopia’s constitutional review mechanism amid the ongoing political and institutional reforms in the country. The study focuses on the process and merit of the constitutional ruling to delay the 2020 national and regional elections because of the coronavirus pandemic, thereby extending the government’s tenure. It further unravels the challenges posed by nondemocratic institutions of the past regime in navigating the transition. In doing so, this study draws on legal, documentary and case analysis, and a literature review. While the mandate extension comes as no surprise, the reasoning of the decision to do so was disappointing for many, dashing the hope and sense of a constitutional moment that accompanied the highly publicised constitutional hearing process in June 2020. The judgment reveals an endemic deficiency of the institutional system. Thus, it is imperative for Ethiopia to establish an independent constitutional umpire to check and control the exercise of government power and support the transition to multiparty democratic governance in the country.

The Constitutionality of Covid-19 Measures Under the Nigerian Federal System

by | Jan 16, 2022 | AJCL, AJCL 2021

The Constitutionality of Covid-19 Measures Under the Nigerian Federal System

Author: Muyiwa Adigun

ISSN: 2521-5434
Affiliations: Senior Lecturer, Faculty of Law, University of Ibadan, Ibadan, Nigeria
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 88 – 121
https://doi.org/10.47348/AJCL/2021/a5

Abstract

In November 2019, a novel coronavirus appeared in China. Once it enters a person’s body, it causes a disease known as Covid-19. This disease is highly communicable and began to spread to other parts of the world, including Nigeria. To prevent the spread of the disease in Nigeria, the Nigerian president, Muhammadu Buhari announced measures in a national broadcast, introducing new measures in an attempt to combat the disease. This article examines the constitutionality of the measures taken within the framework of the Nigerian federal system. The article finds that the president did not expressly declare a state of emergency, did not indicate the constitutional provisions relied upon in his broadcast, while he did rely on the Quarantine Act in respect of regulations made and introduced measures that were far-reaching that had a telling effect on the Nigerian federal system. The article argues that measures could have been taken under the derogation clause, the limiting clause in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Quarantine Act, the Fundamental Objectives and Directive Principles of State Policy and the provisions of the Nigerian Constitution on emergency powers. However, none of these instruments would have constitutionally justified suspending the Nigerian federal system without a controversy, except for measures taken in the exercise of emergency powers. The article concludes that, since the Nigerian president did not declare a state of emergency, the measures taken could be said to have been unconstitutional to the extent that they suspended federalism, if federalism is considered an expression of checks and balances, and not only a mechanism to manage diversity. Furthermore, even under a pandemic situation, excessive power should be checked.

Nigeria and the Riddle of Two Constitutions

by | Jan 16, 2022 | AJCL, AJCL 2021

Nigeria and the Riddle of Two Constitutions

Authors: Akintunde Emiola and Idowu A Akinloye

ISSN: 2521-5434
Affiliations: LLM, PhD, BL, JP, KSC, Retired Professor of Law and Former Dean of Faculties of Law, Ambrose Alli University, Ekpoma; Delta State University, Abraka, and Niger Delta University, Amassoma; B.Th, LLM, PhD, BL, Lecturer, Ajayi Crowther University, Oyo, Nigeria
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 122 – 141
https://doi.org/10.47348/AJCL/2021/a6

Abstract

This article brings to the fore the problem of two constitutions (the 1963 and the 1999 Constitutions) coexisting in Nigeria. It argues that the ongoing debate on the need for Nigeria’s restructuring may not be resolved until this problem is addressed. By using a historical approach and an analytical research methodology, the article lifts the discourse about restructuring above mere political expediency to the realm of law, which is the only instrument for restructuring. The authors forcefully argue that the 1979 and 1999 Nigerian constitutions are “military unconstitutional constitutions” that lack legitimacy and legal validity. It submits that the 1963 Constitution, which made Nigeria a republican state, was never repealed but was used by the military to govern and it is, therefore, intact, unencumbered and operatable in the country. This paper argues that it is only after reverting to the 1963 Constitution that an honest and sincere search for a valid foundation upon which a truly federal, democratic and just Nigerian society can be built.

The Quest for Coherence in Kenya’s Judicial Sentencing Policy: A Review of the Jurisprudence Following the Muruatetu Case

by | Jan 16, 2022 | AJCL, AJCL 2021

The Quest for Coherence in Kenya’s Judicial Sentencing Policy: A Review of the Jurisprudence Following the Muruatetu Case

Author: Phyllis Ngugi

ISSN: 2521-5434
Affiliations: Advocate of the High Court of Kenya. LLM (UQ), LLB (MOI) PDG (KSL)
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 142 – 149
https://doi.org/10.47348/AJCL/2021/a7

Abstract

The Supreme Court decision in the now-infamous case Francis Karioko Muruatetu v Republic seemed to settle the enduring debate whether sentencing is a judicial or a legislative function. The court’s ruling was that sentencing is a judicial function and that the mandatory nature of the death penalty for murder was unconstitutional because it took away the courts’ discretion to determine a just and proportionate punishment to impose on a convicted person. In its judgment, the court ordered that the judiciary sentencing policy be revised to reflect the court’s guidelines on the obligation of courts to listen to the accused’s mitigation before sentencing. The court also directed that a framework for sentence rehearing be prepared immediately to allow applicants who had been sentenced in circumstances similar to those of the petitioners to apply for sentence a rehearing from the trial court. This article examines the aftermath of this judgment in terms of whether the Supreme Court’s decision helped to cure the challenge that lies in the current sentencing process; achieving coherence and proportionality in the sentencing process. By using jurisprudential arguments, we intend to demonstrate that, despite the court’s direction to all courts to ensure that no person should be subjected to a disproportionate sentence, the problem of disproportional sentencing is one that goes beyond merely reviewing of the sentencing guidelines but also demands a reform of the entire criminal justice system.