Recontextualising the teaching of commercial transactions law for an African university

by | Jul 28, 2021 | ACTA, ACTA 2021

Recontextualising the teaching of commercial transactions law for an African university

Author A Hutchison

ISSN: 1996-2088
Affiliations: BA LLB LLM PhD (Cape Town); Associate Professor, Department ofCommercial Law, University of Cape Town.
Source: Acta Juridica, 2021, p. 275 – 296
https://doi.org/10.47348/ACTA/2021/a10

Abstract

This article reflects on the changing political environment in South African higher education and offers one potential view of the future of contract law teaching in the twenty-first century. Specifically, the author discusses changes made to the final-level LLB course, Commercial Transactions Law, at the University of Cape Town. These changes were inspired by the #MustFall protest movements and also incorporated the requirements of the South African Council on Higher Education’s 2018 report on the LLB degree. In essence, this involved a recontextualisation of the component topics to speak to a broader range of student life experiences, as well as an attempt to incorporate more materials focused on social justice or which are characteristically ‘African’.

Authority by representation – a rule lacking a theory: A reappraisal of Makate v Vodacom (Pty) Ltd 2016 (4) 121 (CC)

by | Jul 28, 2021 | ACTA, ACTA 2021

Authority by representation – a rule lacking a theory: A reappraisal of Makate v Vodacom (Pty) Ltd 2016 (4) 121 (CC)

Author C Pretorius

ISSN: 1996-2088
Affiliations: BLC LLB (Pret) LLD (Unisa); Professor in the Department of Private Law, University of South Africa.
Source: Acta Juridica, 2021, p. 297 – 320
https://doi.org/10.47348/ACTA/2021/a11

Abstract

In Makate v Vodacom (Pty) Ltd 2016 (4) 121 SA (CC) the Constitutional Court had to consider the difficult question whether an agreement to negotiate compensation at a later date for an employee who had invented something for his employer was enforceable, where in the absence of later agreement the issue would be referred to the Chief Executive Officer of the employer for final determination. Although the court answered this in the affirmative, the more pressing issue for present purposes was whether the representative of the employer who had negotiated the agreement with the employee had the necessary actual or apparent authority to conclude the agreement. In dealing with the matter of authority, the apex court took an unconventional approach to ‘ostensible’ or ‘apparent’ authority: Whereas the basis of such authority has traditionally been seen as the doctrine of estoppel, the court held that the expressions ‘apparent authority’ and ‘ostensible authority’ have no bearing on estoppel as such, but rather refer to a form of actual authority arising from a representation of authority by the principal in respect of the agent. This article examines the court’s approach in that regard and concludes that, although the decision attracts criticism from a conceptual viewpoint, there is merit in such an approach if it is adapted and defined purely in terms of the reliance theory.

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.

Gains and Losses: The Impact of the Beijing Declaration and Platform for Action on the Legal Status of Kenyan Women

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

Gains and Losses: The Impact of the Beijing Declaration and Platform for Action on the Legal Status of Kenyan Women

Author Nancy Baraza and Karen Koech

ISSN: 2521-2613
Affiliations: LLB, LLM, LLD. Senior lecturer at the School of Law, University of Nairobi; Student at the school of law, University of Nairobi 
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 86 – 110
https://doi.org/10.47348/ANULJ/v8/i1a4

Abstract

The Beijing Declaration and Platform for Action (BDPFA) or ‘the Platform for Action’ (PFA) of 1995 is the landmark blueprint on how the globe intends to achieve a solution to the never-ending debate regarding equality of the sexes. In 1995, women globally gathered at the Chinese capital, Beijing, for the monumental Fourth World Conference on Women. They agreed on the BDPFA, through which they forged an elaborate path towards gender equality and women’s empowerment. From the first wave of feminism in the nineteenth century to the current #MeToo movement, it is apparent that the realisation of gender equality is a marathon and not a sprint. The 2015 Report of the United Nations (UN) Secretary-General on the 20-year review and appraisal of the implementation of the BDPFA irrefutably brings this reality to light. The PFA has seen significant reforms in both laws and regulations in many states aimed at attaining gender equality over the years. However, these reforms do not match the magnitude of the efforts put into the fight to achieve equality; the world is still lagging. In Kenya, there has been a remarkable shift in the laws and regulations providing for gender equality and non-discrimination after the BDPFA. The dawn of the current genderresponsive constitutional dispensation has seen the enactment of several statutes that specifically address issues that have historically perpetuated patriarchy and disempowered women in Kenya. In attempting to implement these laws, the country has unveiled the roots of gender discrimination and highlighted the dangers of disregarding other nuances of this form of inequality such as economic, social, legal, and cultural factors and the intersectional nature of gender imparity. The impact of the BDPFA on the legal status of women in Kenya is evident; the implementation, however, has presented a few challenges as a result of the distinctive difficulties encountered by Kenyan women and the existing Kenyan legal system.

An appraisal of HIV and Aids (Anti-Discrimination) Act, 2014 and the tide of employment discrimination in Nigeria

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

An appraisal of HIV and Aids (Anti-Discrimination) Act, 2014 and the tide of employment discrimination in Nigeria

Author David Tarh-Akong Eyongndi

ISSN: 2521-2613
Affiliations: LLB (Hons) UNICAL, LLM (Ibadan) BL. Lecturer, College of Law, Bowen University, Iwo, Osun State, Nigeria
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 111 – 127
https://doi.org/10.47348/ANULJ/v8/i1a5

Abstract

Subjecting employees or applicants to a medical test to determine whether they are fit for employment and so pre-empt any liability that the employer may suffer owing to the unfitness of the employer has become a prevalent practice. However, a trend has developed in terms of which employers subject employees to medical tests to use the outcome as a reason to discriminate against them and terminate their employment. Testing positive for HIV/AIDS is one such outcome where the status of the employee, despite their right to be free from discrimination, has been used to terminate their employment. This is the plight that persons living with HIV/AIDS (PLW HIV/AIDS) must suffer at the hands of employers as they were being discriminated against based on their health status even though it did not affect their ability to discharge their duties. This situation led to discontentment which developed into serious pressure to protect PLW HIV/AIDS. To address the phenomenon, the legislature enacted the HIV and AIDS (Anti-Discrimination) Act 2014. This article adopts the desk-based methodology in appraising the provisions of the Anti-Discrimination Act to determine the extent to which the Act has dealt with the quagmire of employment discrimination against PLW HIV/AIDS in Nigeria. It also considers the challenges confronting the implementation of the Act. The Anti-Discrimination Act has criminalised termination of employment on account of the HIV/AIDS status of an employee and prohibits other forms of discrimination sequel to the status. The article concludes by making vital recommendations on how to implement the Act in a way that strikes a balance between curbing discrimination while promoting the employer’s business.

Reforming the UNSC by the African Union proposal to address inequality: The limitations

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

Reforming the UNSC by the African Union proposal to address inequality: The limitations

Author Tatenda Leopold Chakanyuka

ISSN: 2521-2613
Affiliations: PhD Candidate in International Law, Institute of International Law, Wuhan University School of Law, Wuhan, China
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 128 – 148
https://doi.org/10.47348/ANULJ/v8/i1a6

Abstract

The United Nations Security Council (UNSC) has been accused of serving the interests of the victors of World War II rather than the collective interests of the current world. Countries, regions, and academics have all called for UNSC reform. The African Union (AU) argues that the current arrangements of the Council do not reflect the broad membership of the United Nations (UN) and ‘equitable geographical distribution’ provided for under the Charter of the United Nations and calls for equitable representation and involvement as per its proposal. Though the African position enjoys the support of most African countries, some African countries have described it as becoming unreasonable and obstructionist to the reform process. Despite, many scholars and countries questioning the practicality and prospects of the AU position gaining universal acceptance, the AU has not stopped calling for reforms by their position. Based on the realities of Article 108 and the responses the African proposal has received, it is time to compromise, but the compromise must be mutual. Currently, the African position does not seem to have the support of either the P5 or the majority of the other UN members. There is a need to devise a new plan that can get the support of the majority. Since Africa is the only region highly underrepresented in the UNSC, representation for Africa is long overdue. This article concludes that for the African position to gain the support of the other countries, including that of the P5, Africa must compromise but the compromise must be reciprocal. Africa can propose two permanent members with one veto power which will increase the veto holders to six.