Natural Person Debt Relief Reforms in Nigeria—A Comparison with South Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Natural Person Debt Relief Reforms in Nigeria—A Comparison with South Africa

Authors Tobi Osunlaja, Hermie Coetzee & Melanie Roestoff

ISSN: 2522-3062
Affiliations: LLB (Olabisi Onabanjo University), LLM (University of Pretoria), LLD candidate, Department of Mercantile Law, University of Pretoria; BCom Law (University of Pretoria), LLB (University of Pretoria), LLM (University of Pretoria), LLD (University of Pretoria), Associate Professor, Department of Mercantile Law, University of Pretoria; BLC (University of Pretoria), LLB (University of Pretoria), LLM (University of Pretoria), LLD (University of Pretoria), Professor and Acting HoD, Department of Mercantile Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 319 – 351

Abstract

The purpose of this article is to compare the proposed natural person debt relief procedures in Nigeria with South Africa’s existing and proposed measures. It is the first time that the proposed Nigerian system is analysed. The comparison is made in order to determine whether Nigeria can learn from South Africa’s experience regarding natural person insolvency law. South Africa is chosen as a comparative jurisdiction because it has a wealth of documented experience relating to insolvency law. Furthermore, Nigeria and South Africa boast the two largest economies on the African continent and consequently share economic and developmental challenges. These challenges are intrinsically linked to natural person insolvency law, since they determine the context in which an insolvency law system must be developed and within which it must function. As a subtext, the research considers whether Nigeria complies with some of the more pertinent international principles and guidelines regarding natural person debt relief. To achieve this objective, the Nigerian system is measured against the yardstick of the World Bank Report on the Treatment of the Insolvency of Natural Persons. Two key foundations of effective and efficient natural person insolvency systems highlighted by the World Bank’s report relate to (a) access to insolvency systems and (b) the eventual discharge of debts that such systems should result in. The research concludes that the Nigerian natural person insolvency law reforms do not meet the required international standards in these respects and that the jurisdiction may learn from South Africa’s successes and failures within the field, particularly from the circumstances leading up to and its recent proposals for reform.

The Realisation of Children’s Survival Rights in South Africa, Kenya and the Democratic Republic of the Congo: A Comparative

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

The Realisation of Children’s Survival Rights in South Africa, Kenya and the Democratic Republic of the Congo: A Comparative

Authors Mafuku Tholaine Matadi & Desan Iyer

ISSN: 2522-3062
Affiliations: LLB (Honours) (Université William Booth/Kinshasa), LLM (University of KwaZulu-Natal), LLD (University of Zululand), Lecturer in the Department of Public Law, University of Zululand; BROC (Natal University, Durban), LLM (University of South Africa), LLD (University of Zululand), Attorney of the High Court of South Africa, Associate Professor of Law, University of Zululand.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 352 – 388

Abstract

Child rights are particularly sensitive due to the power relations within societies. As early as 1924, a number of countries collaborated to produce the Declaration of the Rights of the Child. In 1945, the Charter of the United Nations appeared, followed three years later by the Universal Declaration of Human Rights (UDHR). Although the latter is concerned primarily with everyone’s rights, Article 25(2) refers to children as well and provides that all children must receive special care and assistance. The article focuses on the most important children’s rights instruments both at regional and international level; respectively the African Charter on the Rights and Welfare of the Child of 1990 (ACRWC) and the United Nations Convention on the Rights of the Child of 1989 (CRC). Particularly, these conventions are binding on all the states which sign and ratify them. Although the CRC classifies children’s rights into four main categories, this article focuses on life and survival rights in selected African countries that have committed themselves to implement and enforce basic rights for children, namely South Africa, Kenya and the Democratic Republic of the Congo. The article is an evaluative and comparative analysis of the selected countries, based on international law and domestic legislation, as standards of actual delivery of child rights. The authors aim to produce a model guideline for effective realisation and observance of the specified children’s rights in the countries under investigation.

The Removal of Directors by a Company’s Board of Directors under the Companies Act 71 of 2008: Should it be a Mandatory or an Alterable Provision?

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

The Removal of Directors by a Company’s Board of Directors under the Companies Act 71 of 2008: Should it be a Mandatory or an Alterable Provision?

Author Rehana Cassim

ISSN: 2522-3062
Affiliations: BA (cum laude), LLB (cum laude), LLM (cum laude) (University of the Witwatersrand); LLD (University of South Africa). Associate Professor, Department of Mercantile Law, School of Law, University of South Africa; Attorney and Notary Public of the High Court of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 389 – 409

Abstract

The Companies Act 71 of 2008 introduced into South African law a provision which for the first time permits a company’s board of directors to remove a director from office in certain circumstances. This provision is contained in section 71(3). Compared to the equivalent provisions in some leading foreign jurisdictions, section 71(3) of the Companies Act is unique in two important respects. First, a board’s power to remove board members is an unalterable and a mandatory power. Second, a board’s removal rights do not follow appointment rights. Consequently, a board is empowered to remove from office any director, regardless of whether shareholders or any other person had appointed that director to office. This article questions whether a board’s power to remove directors from office under the Companies Act ought, instead, to be an alterable provision. With a view to protecting the minority shareholder representatives on the board of directors, it questions whether section 71(3) should distinguish between directors appointed by a board and directors elected by shareholders. The comparable provisions on the removal of directors by a board of directors in corporate legislation in Australia, the United Kingdom, and the United States of America are examined. Some recommendations are made to modify section 71(3) of the Companies Act to improve the new power conferred on boards of directors to remove fellow board members.

Human Dignity and other Relevant Concepts in International and South African Human Rights Law: A Search for Content

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Human Dignity and other Relevant Concepts in International and South African Human Rights Law: A Search for Content

Authors Gerrit Ferreira & Anél Ferreira-Snyman

ISSN: 2522-3062
Affiliations: B Iuris (PUCHO), LLB (PUCHO), LLM (RAU), LLD (UNISA), LLD (PUCHO), Professor of Law Extraordinary, NWU, Potchefstroom Campus; B Iuris (PUCHO), LLB (PUCHO), LLM (PUCHO), LLD (UJ), Professor of Law, UNISA.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 410 – 442

Abstract

As a result of the human rights atrocities committed during the Second World War, the human dignity of individuals has become the central concern in many international and regional instruments and domestic constitutions. The Constitution of the Republic of South Africa, 1996 is no exception and places a particular emphasis on the concept of human dignity. In view of the continuing popularisation of the concept, this contribution discusses the current application of human dignity and related concepts within international, regional and South African human rights law in an attempt to get a clearer grasp of its contents. Although human dignity is not explicitly protected in all international and regional instruments and domestic constitutions, its protection is either implicit in the protection of other specific human rights, or explicitly forms part of the protection of such rights. It therefore seems that every individual human right protects some aspect of human dignity. Furthermore, the application of the concept of human dignity seems to relate to other existing concepts in both international and South African law. First, the question as to whether the protection of human dignity in international law may be equated with concepts such as jus cogens and non-derogable rights is analysed. Second, the issues regarding the relation between human dignity and the concepts of ubuntu, boni mores and the public interest are discussed. It is concluded that human dignity is a fluid, vague and ever-changing concept and that as a result of cultural and religious differences it would be virtually impossible to formulate a generic (one-size-fits-all) definition of human dignity that would be acceptable to all cultural and religious groups. It is therefore suggested that the application of human dignity by the courts should be limited to that of a constitutional value that underpins all fundamental rights, rather than elevating it to an all-encompassing right that functions, in practice, independent from all other fundamental rights. The latter would result in an attenuation of the human rights regime in international, regional and domestic law.

Case Note: Litigating about where to Litigate: Vedanta Resources Plc v Lungowe [2019] UKSC 20

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Case Note: Litigating about where to Litigate: Vedanta Resources Plc v Lungowe [2019] UKSC 20

Author Elsabe Schoeman

ISSN: 2522-3062
Affiliations: BLC (University of Pretoria); LLB LLD (University of South Africa). Dean: Faculty of Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 445 – 457

Abstract

None.

Rupturing International Law to Realise the Right to Development

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Rupturing International Law to Realise the Right to Development

Author Isaac Shai

ISSN: 2522-3062
Affiliations: BA (University of the Witwatersrand); LLB (University of the Witwatersrand); LLM (University of South Africa); LLD (University of Pretoria). Postdoctoral Fellow, Thabo Mbeki African Leadership Institute.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 151 – 168

Abstract

The realisation of the right to development is contingent on the appropriation of the excesses generated by the counter-imperial dimension of international law and on the strategic rupturing of international law. Embedded in this approach is the implicit acceptance that the right to development is a derivative of international law and that international law has an imperial dimension. There is in this sense a golden thread that uninterruptedly connects colonialism, international law and the notion of development. This is buttressed by the fact that international law was the mode within which calls for decolonisation were couched. In addition, post-colonial states advanced arguments for decolonisation using the medium of development under the auspices of international law. In this sense, decolonisation was effected using the language of development. In order to avert re-inscribing the very imperial dimension of international law that must be disrupted, the notion of the right to development ought to treat the excesses generated by international law as political opportunities rather than legal ones. In this sense, law becomes a political strategy as opposed to a legal strategy.

Linkages between Illicit Financial Flows and the Non-realisation of the Right to Development in Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Linkages between Illicit Financial Flows and the Non-realisation of the Right to Development in Africa

Author Gerard Emmanuel Kamdem Kamga

ISSN: 2522-3062
Affiliations: Associate degree, Bachelor degree (University of Dschang); Maitrise (Yaoundé II); LLM, LLD (University of Pretoria). Postdoctoral Research Fellow, Faculty of Law, Department of Public Law, University of the Free State.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 169 – 192

Abstract

In this article, I start on the premise that the gap between the excellent economic performance of Africa and its state of generalised underdevelopment coupled with rampant poverty, corruption, prolonged economic crisis and political instabilities is not the cause but rather the symptom of a deeper evil. In doing so, I review the extent to which the right to development in Africa has not been realised owing to the proliferation of illicit financial flows. The fact is that development is a broad concept, for not only does it include sound economic performance and fair distribution of benefits, but it requires the improvement of the living conditions of individual citizens through the provision of healthcare services, housing, education and infrastructures. This article will shed light on the scope, mechanisms and patterns as well as sophisticated criminal networks and obscure chains of command through which a persistent proliferation of illicit outflows of capital divert resources from their legitimate purpose and result in states losing control over staggering funds and assets that could otherwise be used for poverty alleviation and other basic needs. The article reviews from a comparative perspective some instruments and initiatives in a bid to curb illicit financial flows.

Illicit Financial Flows, Asset Recovery, the Power Game and the Right to Development in Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019, Uncategorized

Illicit Financial Flows, Asset Recovery, the Power Game and the Right to Development in Africa

Author Serges Djoyou Kamga

ISSN: 2522-3062
Affiliations: Associate Professor at the Thabo Mbeki African Leadership Institute, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 193 – 214

Abstract

The right to development (RTD) is controversial. This controversy is built on the identification of the international community as one of the duty bearers of the RTD. This means that state members of the international community should fund development projects outside their territory or should contribute to resource mobilisation for the achievement of the RTD beyond their borders. Against this backdrop the article seeks an alternative solution for resource mobilisation for the achievement of the RTD. It shifts the RTD from depending on donors and developed countries to the recovery of assets stolen from developing countries through illicit financial flows. The article relies on the power game theory that posits that in the international arena, initiatives are informed by self-interest. However, it also recognises the challenges linked to asset recovery and articulates this position considering the new institutional theory, which believes in ‘the common good’. Another key issue associated with anticorruption and anti-money laundering initiatives which informs asset recovery is that different countries have different norms and values, which are likely to influence the interpretation of the laws and regulations in consideration of the context. Ultimately, successful asset recovery requires a joint adoption and harmonisation of common strategies by actors.

Realising the Right to Development in Africa: Responsible, Responsive and Ethical Political Leadership as a Conditio Sine Qua Non

by | Jun 2, 2021 | CILSA, CILSA V52 I2 2019

Realising the Right to Development in Africa: Responsible, Responsive and Ethical Political Leadership as a Conditio Sine Qua Non

Author Avitus Agbor

ISSN: 2522-3062
Affiliations: Research Professor at the School of Postgraduate Studies, Faculty of Law, North-West University, North West, South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 215 – 233

Abstract

At the dawn of the twenty-first century, the African continent showed very little progress in terms of surmounting its many challenges such as poverty, malnutrition, social injustices, underdevelopment and the plight of diseases and intractable internecine conflicts. The progress reports on the achievements of the African continent were abysmal. Despite the abundance of natural resources on which dynamic and energetic Africans tread their feet, the continent has not been able to move from one in which a good chunk of its people is mired in underdevelopment and injustices to prosperity and justice for everyone. International aid, just like bilateral and multilateral partnerships concluded and provided for the purpose of catapulting socio-economic, cultural and political development, have not yielded the desired results. The fundamental question is what lies between the wealth of the African people and their prosperity? In other words, what prevents Africa from moving from poverty to prosperity, despite its wealth of resources and the support provided by the international community? It is the view of this article that this is attributable to unethical, irresponsive and irresponsible political leadership that has come as a malediction to the continent. Drawing from scholarship on the notion of leadership as well as regional instruments on how political power should be guided in democratic settings, this article argues that ethical leadership becomes the panacea to the surmountable man-made crises plaguing the African continent. Leadership, as used in this context, is at all levels and not limited to the national executive. In short, the survival of Africa, the restoration of hope on the continent and the cultivation of a uniquely impressive African identity that portrays the continent as a benefactor rather than a beneficiary, a role player rather than having an allocated role, will be facilitated by responsive, responsible and ethical leadership.