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

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

“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

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

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

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.

Coping with the Covid-19 pandemic: A comparative study of the capabilities of the Kenyan and Nigerian insolvency frameworks

Coping with the Covid-19 pandemic: A comparative study of the capabilities of the Kenyan and Nigerian insolvency frameworks

Authors: Williams C Iheme and Sanford U Mba

ISSN: 2521-2575
Affiliations: Associate Professor of Law, Jindal Global Law School, India; Senior Counsel, ACAS-LAW Firm, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 112 – 138
https://doi.org/10.47348/JCCL/V6/i2a4

Abstract

The Covid-19 pandemic has undeniably ravaged the global economy and plunged many countries in Africa, including Kenya and Nigeria into an economic recession. This article departs from the premise that credit is the lifeblood of market systems. Accordingly, the credit and insolvency laws of both countries must be adjusted in certain ways during and after the pandemic, in order to enable them to cope with the dire economic challenges resulting from the pandemic. The article identifies some material defects in the Insolvency Act 2015 (Kenya) and the Companies and Allied Matters Act 2020 (Nigeria), and argues that these defects will debilitate a meaningful economic recovery from the pandemic. The paper shows the lack of suitability of their existing insolvency frameworks, as well as some aspects of the public law: it proposes a number of tailor-made recommendations that benefitted from the experiences of certain other common law jurisdictions.

Towards a conceptual framework for local participation in the Zambian power sector

Towards a conceptual framework for local participation in the Zambian power sector

Author: Lyatitima (Lee) Ernest Mate

ISSN: 2521-2575
Affiliations: Doctoral candidate, University of the Witwatersrand, Johannesburg
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 139 – 165
https://doi.org/10.47348/JCCL/V6/i2a5

Abstract

None

The conceptual underpinnings of secured transactions and the reform of personal property security laws

The conceptual underpinnings of secured transactions and the reform of personal property security laws

Author: Gregory Esangbedo

ISSN: 2521-2575
Affiliations: Barrister and Solicitor of the Supreme Court of Nigeria. Principal Partner, Greg Esangbedo & Associates, Lagos, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 166 – 189
https://doi.org/10.47348/JCCL/V6/i2a6

Abstract

Law reforms typically epitomise the need to effect positive change. The reform of personal property security laws which has attained increased prominence amongst common-law states in recent years is by no means different. However, there appear to be mixed views about the exact impact of these reforms including whether and to what extent they achieve their stated objectives. This article explores the connection between the reforms of personal property security law and the conceptual underpinnings of secured transactions in order to ascertain the extent to which such reforms actually reflect such underpinnings as a preliminary step in evaluating their impact on society.

Protecting taxpayer information from the public protector – A ‘just cause’?

Protecting taxpayer information from the public protector – A ‘just cause’?

Author: Fareed Moosa

ISSN: 2521-2575
Affiliations: Associate Professor at the Department of Mercantile & Labour Law, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 190 – 211
https://doi.org/10.47348/JCCL/V6/i2a7

Abstract

Under the Tax Administration Act, 2011 (TAA), taxpayers enjoy a right to privacy of information disclosed to the South African Revenue Service (SARS). This note shows that tax officials are obliged to protect the secrecy thereof. It is argued that the Commissioner for the SARS correctly resisted compliance with a subpoena issued by the Public Protector for access to the records of former President Jacob Zuma. If it acquiesced without objection, shock waves would have reverberated through South Africa’s tax community. It is contended that the Commissioner’s decision to maintain taxpayer secrecy under pain of a potential criminal sanction contributed to restoring some of the lost confidence and respect for the SARS which has, in recent times, endured reputational damage owing to internal squabbles which morphed into public scandals. This note hypothesises that CSARS v Public Protector is good authority for the proposition that governmental departments and state institutions not expressly mentioned in s 70 of the TAA do not have statutory rights of access to taxpayer information and must, to gain access, follow due process. This note argues that the judgment in casu is not only a victory for taxpayer rights but also for the rule of law.

Section 165(5)(b) of the Companies Act 71 of 2008: A discussion of the requirement of good faith

Section 165(5)(b) of the Companies Act 71 of 2008: A discussion of the requirement of good faith

Author: Darren Subramanien

ISSN: 2521-2575
Affiliations: Senior Lecturer School of Law (PMB) University of Kwa-Zulu Natal
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 212 – 232
https://doi.org/10.47348/JCCL/V6/i2a8

Abstract

In terms of s 165(5)(b) of the Companies Act 71 of 2008, ‘the court must be satisfied that the applicant is acting in good faith’; that ‘the proceedings involve the trial of a serious question of material consequence to the company’; and that it is ‘in the best interests of the company’ that the applicant(s) be granted leave. The legislature has chosen to provide guiding criteria that are vague and general rather than detailed legal steps for the exercising of judicial discretion. It would therefore be open to the courts to provide an interpretation of the words found in s 165(5)(b) especially regarding the good faith requirement. This article discusses the requirement of good faith. The interpretation and application of the good faith requirement found in s 165(5)(b) will ultimately determine the success or failure of the new statutory derivative action as an adequate remedy for aggrieved applicants who may seek redress on the company’s behalf, if the company or those in control of it improperly fail or refuse to do so. The comparable sections in the law of the United Kingdom will be evaluated in order to determine whether it is feasible to transplant selected rules and principles into South African law.