Barring County Governors from Office in Kenya: The Use of National Values and Principles in Constitutional Interpretation

by | Apr 27, 2021 | AJCL, AJCL 2019

Barring County Governors from Office in Kenya: The Use of National Values and Principles in Constitutional Interpretation

Authors: Francis Khayundi and Mwimali C Ongaro

ISSN: 2521-5434
Affiliations: Lecturer, United States International University, Africa; Candidate, Advocates Training Programme, Kenya School of Law Candidate
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 129 – 136

Abstract

The scourge of corruption has permeated all levels of government, with anecdotal accounts referring to ‘devolved corruption’, used to explain the fact that corruption has been rampant in the counties since the introduction of devolved governments in 2013. Where corruption flourishes, development and the rule of law fail. It is therefore essential that the government and other stakeholders take concerted measures to tackle corruption. Despite efforts to respond to this challenge, not much has managed to deter the vice. However, in the recent past, courts have made rulings that raised questions about what should happen when governors are on trial for corruption. The decisions of the courts have drawn mixed reactions from different quarters. There are those who believe the rulings by the courts amount to the unconstitutional removal of elected governors as they do not follow the laid-down procedure in the Constitution and other relevant laws. To others, the decisions are a timely and adequate response to the scourge of corruption. It is against this backdrop that this case review analyses the two cases of Moses Kasaine Lenolkulal v Director of Public Prosecutions and that of Ferdinand Ndungu Waititu Babayao v Republic [2019] eKLR which had similar outcomes in barring the accused governors from accessing their offices while corruption investigations were ongoing. The authors argue that the courts’ approach was progressive and in line with the 2010 Constitution of Kenya.

The role of technology in the historical development of the reproduction right in musical works

by | Mar 15, 2021 | FUND, FUND V26I2

The role of technology in the historical development of the reproduction right in musical works

Author: J Joel Baloyi

ISSN: 2411-7870
Affiliations: BJURIS LLB (Venda) LLM (UWC) LLD (UNISA).
Source: Fundamina, Volume 26 Issue 2, p. 233-287
https://doi.org/10.47348/FUND/v26/i2a1

Abstract

This contribution recounts the historical development and expansion of the reproduction right in copyright in response to, and as a result of, technological developments, with a focus on the music reproduction right. It is shown how the very first copyright statute, the Statute of Anne, was enacted in response to the effects of a technological development, namely the invention of the printing press, which had been experienced over some time. To safeguard the interests of rightsholders, the Statute of Anne gave rise to and was itself epitomised by the reproduction right (the right to copy or print). The uncertainty with regard to the question of whether the Statute of Anne applied only in respect of books and other literary works, or whether it also extended to musical works, was resolved in the case of Bach v Longman, which extended the application of the Statute to musical works. It was particularly in the area of musical works that the reproduction right was further developed in the wake of rapid technological developments that emerged at the end of the nineteenth century and have continued into the digital age. This has led to the expansion of the music reproduction right into a multi-pronged right, covering usages made possible by the various technological developments, thus creating increased sources of income for rights-holders. Using a historical and contextual analysis, the contribution recounts these developments and their continuing relevance today.

A history of Malawi’s criminal justice system: from pre-colonial to democratic periods

by | Mar 15, 2021 | FUND, FUND V26I2

A history of Malawi’s criminal justice system: from pre-colonial to democratic periods

Author: Lewis Chezan Bande

ISSN: 2411-7870
Affiliations: Senior Lecturer in Law, University of Malawi.
Source: Fundamina, Volume 26 Issue 2, p. 288-336
https://doi.org/10.47348/FUND/v26/i2a2

Abstract

This contribution traces the historical development of the criminal justice system in Malawi, from the pre-colonial period, through the colonial and independence periods, to the contemporary democratic period. It highlights the major political hallmarks of each historical period and their impact on the development of the criminal justice system. The contribution shows that all aspects of the current criminal justice system – substantive criminal law, procedural law, criminallaw enforcement agencies, courts and correctional services – are products of political and constitutional processes and events of the past century. Their origins are directly traceable to the imposition of British protectorate rule on Nyasaland in the late nineteenth century. The development of the Malawian criminal justice system since then has been heavily influenced by the tension and conflict of colonialism, the brutality of one-party dictatorship and the country’s quest for a constitutional order that is based on liberal principles of democracy, rule of law, transparency and accountability, respect for human rights, limited government and equality before the law. To properly understand Malawi’s current criminal justice system, one has to know and appreciate its historical origins and development.

Developing critical citizenship in LLB students: the role of a decolonised legal history course

by | Mar 15, 2021 | FUND, FUND V26I2

Developing critical citizenship in LLB students: the role of a decolonised legal history course

Author: Lize-Mari Mitchell

ISSN: 2411-7870
Affiliations: Lecturer, University of Limpopo.
Source: Fundamina, Volume 26 Issue 2, p. 337-363
https://doi.org/10.47348/FUND/v26/i2a3

Abstract

Within the neoliberal ideals of society, social science subjects are battling for their rightful place in curriculums. As a result, legal history courses are being presented by increasingly less universities in South Africa. In the tendency towards a skills-based LLB, higher education institutions are neglecting to acknowledge the immense impact students’ ideologies and critical thinking will have on the future of South Africa. This contribution argues that it is not only possible to deliver competitive graduates, to retain social subjects and to heed the call for decolonisation, but that a transformative, decolonised legal history course is vital to these ideals. The contribution explores the role of such a course in the development of LLB graduates where it strives towards constitutional ideals and social justice. Furthermore, it takes a look at legal history as a form of critical citizenship education, where it is based on the holistic development of students within constant critical self-reflection and the promotion of a common set of shared values. The development of critical citizenship in students are explored by defining this concept, as well as by discussing the manner in which it can be taught and the importance to the so-called born-free LLB student. This study concludes with broad outlines of the manner in which a legal history course would have to be presented within a critical pedagogy to achieve the aims of critical citizenship.

On Florentinus’ definition of Libertas

by | Mar 15, 2021 | FUND, FUND V26I2

On Florentinus’ definition of Libertas

Author: Carlos Amunátegui Perelló

ISSN: 2411-7870
Affiliations: Professor of Roman Law, Pontificia Universidad Católica de Chile.
Source: Fundamina, Volume 26 Issue 2, p. 364-373
https://doi.org/10.47348/FUND/v26/i2a4

Abstract

Libertas is one of the main concepts of public life in the Roman world. It has a public content when referring to the freedom of the Republic, and a private implication when it is opposed to slavery. Florentinus’ definition of libertas is quite interesting, because it was given within the context of slavery, although it does not fit that scenario entirely. In fact, it seems more cogent with regard to the public concept of libertas. This contribution analyses this aspect in detail.

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

by | Mar 15, 2021 | FUND, FUND V26I2

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Authors: Stephen Allister Peté

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) M Phil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal.
Source: Fundamina, Volume 26 Issue 2, p. 374-423
https://doi.org/10.47348/FUND/v26/i2a5

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Peté, SA
Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1
Fundamina, Volume 26 Issue 2, p. 374-423
https://doi.org/10.47348/FUND/v26/i2a5

Abstract

The political economy of colonial Natal was based on a coercive and hierarchical racial order. Over decades, the white colonists struggled to assert their power over the indigenous inhabitants of the colony, to force them off their land and into wage labour in service of the white colonial economy. This process resulted in ongoing resistance on the part of the indigenous population, including a series of rebellions and revolts throughout the colonial period, which were met with force by the white colonists. White colonial ideology was shaped by the violent and adversarial nature of the social, political and economic relations between white and black in the colony. It was also influenced by the broader global context, within which colonisation was justified by racist variants of the theory of Social Darwinism. Driven by a strange mix of deep insecurity and fear on the one hand, and racist paternalism on the other, the white settlers of colonial Natal developed a variant of white supremacist ideology with a special flavour. Nowhere was this more apparent than in their near obsession with flogging as the most appropriate manner of dealing with African offenders in particular. By closely examining a series of public debates that took place in the colony of Natal between 1876 and 1906, this contribution seeks to excavate the various nuanced strands of thinking that together comprised the ideology of white supremacy in the colony at that time.

“What’s past is prologue”: an historical overview of judicial review in South Africa – part 2

by | Mar 15, 2021 | FUND, FUND V26I2

“What’s past is prologue”: an historical overview of judicial review in South Africa – part 2

Author: D M Pretorius

ISSN: 2411-7870
Affiliations: BA LLB (Stell) BA (Hons) LLM PGCE (SA) PhD (Witwatersrand). Partner: Bowmans, Johannesburg.
Source: Fundamina, Volume 26 Issue 2, p. 424-519
https://doi.org/10.47348/FUND/v26/i2a6

Abstract

This contribution explores the historical origins and development of judicial review in South Africa, as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state. It also provides bibliographical details of sources chronicling these historical processes. The first part focused mainly on constitutional review, namely the power of the law courts to test the validity of statutes against constitutional criteria. This second part analyses the historical development of administrative law, especially the common-law evolution of judicial review of the decision-making processes of organs of state, and how that process unfolded reciprocally with political shifts in twentieth-century South Africa. There is also a synopsis of the introduction of administrative law as a discrete subject in South African law schools. Finally, this contribution briefly explores historical aspects of the role of interpretation of statutes in the context of administrative law, and briefly touches on special statutory review as distinct from common-law review.

No reflective loss: The English approach reconsidered

by | Feb 27, 2021 | JCCL, JCCL V6 I2

No reflective loss: The English approach reconsidered

Author: Ataollah Rahmani

ISSN: 2521-2575
Affiliations: Lecturer in Commercial Law, Al-Maktoum College of Higher Education Dundee, Scotland, UK
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 1 – 48
https://doi.org/10.47348/JCCL/V6/i2a1

Abstract

A company shareholder should have no difficulty in commencing a claim to recover the loss suffered due to a wrong done to their personal property. The right to the protection of property is a fundamental human right in English law. A wronged person whose property right is infringed will have the right to commence legal proceedings against wrongdoers. However, in the company context, the exercise of a shareholder’s right of action may conflict with the company’s right of action where the loss sought is reflective. The English company law’s arrangement has been that a shareholder’s action is exceptional beyond which it will routinely be barred through the principle of the ‘no reflective loss’. Where company’s loss and the shareholders’ loss are reflectively linked, then the company’s action prevails against the shareholder action. This paper argues that the two actions should swap places in law. Shareholder action should be recognised as a general principle of law while it is barred exceptionally in circumstances where stronger policy considerations such as the observation of the corporate autonomy are to be prioritised. This article refers to company law in the UK.

A critical analysis of the competition authorities’ treatment of the element of causation in exclusionary abuse cases

by | Feb 27, 2021 | JCCL, JCCL V6 I2

A critical analysis of the competition authorities’ treatment of the element of causation in exclusionary abuse cases

Author: Sibusiso Radebe

ISSN: 2521-2575
Affiliations: Research Assistant, the Mandela Institute, University of the Witwatersrand, Johannesburg
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 49 – 81
https://doi.org/10.47348/JCCL/V6/i2a2

Abstract

It is trite law that in order for an impugned act to be condemned in terms of the exclusionary abuse prohibition, entrenched under the Competition Act 89 of 1998, there must be evidence evincing that the said act caused some anti-competitive effect and that the anti-competitive effect caused by the said act outweighs any procompetitive effect caused by it. This position makes the element of causation of central importance in the determination of whether or not to condemn an impugned act in terms of the exclusionary abuse prohibition. However, despite the pivotal role played by causation in the resolution of exclusionary abuse cases, the competition authorities have repeatedly neglected to, inter alia, expound the framework of causation envisaged under the exclusionary abuse prohibition and state the legal principles upon which their conclusions of causation are based. This neglect has caused some competition law commentators to argue that the competition authorities have failed to assess the element of causation in exclusionary abuse cases. This paper examines exclusionary abuse case law through the lens of the common-law framework and tests for assessing causation and demonstrates that, despite the criticism levelled against the competition authorities, first, the authorities do in fact have a framework of causation and tests for assessing causation; secondly, the authorities have been employing the framework referred to above consistently since its first appearance in the case law; and thirdly, the said framework is consistent with the framework of causation envisaged, or apparently envisaged, under the exclusionary abuse prohibition entrenched in the Competition Act 89 of 1998.

The impact of the capacity provisions in the Companies Act 71 of 2008 on the insolvency-remoteness of limited capacity special purpose vehicles used in securitisation schemes

by | Feb 27, 2021 | JCCL, JCCL V6 I2

The impact of the capacity provisions in the Companies Act 71 of 2008 on the insolvency-remoteness of limited capacity special purpose vehicles used in securitisation schemes

Author: Etienne A Olivier

ISSN: 2521-2575
Affiliations: LLD Candidate, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 82 – 111
https://doi.org/10.47348/JCCL/V6/i2a3

Abstract

The insolvency-remoteness of a special purpose vehicle (SPV) used in a securitisation scheme is of critical importance, because insolvency of the SPV can interrupt the payment streams due to the investors in such schemes. Several contractual methods are implemented to achieve insolvency-remoteness. In this article, it is argued that pacta de non petendo (non-petition clauses), limited recourse provisions, and subordination clauses, all common insolvency-remoteness provisions, do not violate public policy. It is also argued that the capacity provisions in the Companies Act 71 of 2008 (the Act) do not reduce the insolvency risk of a limited capacity SPV used in a securitisation scheme. The fact that ultra vires contracts concluded by limited capacity companies will be provisionally valid under the Act means that provisions in a company’s MOI that limit a company’s capacity will have very little external significance. It is argued that the right to restrain ultra vires contracts in terms of s 20(5) of the Act, in conjunction with the right to ratify such actions in terms of s 20(2), do not provide reliable legal certainty or protection to the investors in assets securitised through a limited capacity SPV.