Incorporating Sustainable Development Principles in Africa’s Investment Treaty-Making

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Incorporating Sustainable Development Principles in Africa’s Investment Treaty-Making

Author: Mmiselo Freedom Qumba

ISSN: 2521-2605
Affiliations: LLB (WSU) LLM (International Trade and Investment Law) (UP) Lecturer at UP Mercantile Law Department, University of Pretoria
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 43 – 79
https://doi.org/10.47348/JCLA/v11/i2a2

Abstract

African states have long been critical of the international investment law regime, believing that international investment agreements (IIA) are misaligned with their sustainable development efforts. As a result, they have crafted modern IIAs to address the legitimacy crisis within the investment law regime. Despite improvements in Africa’s new, modern IIAs, some countries continue to conclude bilateral investment treaties (BITs) framed in line with older-generation agreements. An overview of the recent trends in treaty drafting shows that African countries have embraced IIAs as important tools for sustainable development. This article revisits the International Law Association ‘New Delhi Declaration of Principles of International Law’ to formulate concrete legal solutions not only as binding legal principles for investors within the African continent but also as incentive to improve sustainability through self-monitoring rather than international or domestic enforcement. This underscores the importance for treaty interpreters and drafters to carefully recognise the integration and application of a sustainable development framework. Accordingly, the article integrates lessons from African experiences and articulates the sustainable development-oriented principles and concepts that should be considered by policy makers and treaty drafters when developing new model BITs or renegotiating the old generation IIAs.

Duty to Act Provisions and Omissions Offences Under the Anti-Human Trafficking Statutes of Malawi, Uganda and South Africa

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Duty to Act Provisions and Omissions Offences Under the Anti-Human Trafficking Statutes of Malawi, Uganda and South Africa

Author: Martin Visuzgo Chipofya

ISSN: 2521-2605
Affiliations: LLM (Sussex), LLB (Hons) Mw, Principal Resident Magistrate (Malawi Judiciary), Part-Time Lecturer (University of Malawi)
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 80 – 108
https://doi.org/10.47348/JCLA/v11/i2a3

Abstract

To effectively combat human trafficking, states have enacted domestic anti-human trafficking statutes to support the cause. Many of these statutes impose positive duties on both natural and legal persons, reinforced by criminal sanctions. The article examines the anti-human trafficking statutes of Malawi, Uganda, and South Africa, focusing on provisions that carry positive duties and, consequently, create omissions offences. It argues that while most positive duties – and the resulting offences of omission – in these statutes comply with criminal-law principles for imposing positive duties and criminalising their breach, some provisions in Malawi’s and South Africa’s anti-human trafficking statutes contain vague terms or phrases. Such terms or phrases may undermine the effective enforcement of these provisions and violate the principle of legality with respect to offences of omission resulting from non-compliance. The article further observes that while certain provisions in Uganda’s and South Africa’s anti-human trafficking statutes fail to consider the duty bearer’s capacity and opportunity to comply when imposing positive duties, these provisions are generally precise. The article argues that the benefits of precise language in an anti-human trafficking statute outweigh concerns regarding disregard for the duty bearers’ capacity and opportunity. Moreover, any consequences from this disregard can be addressed through sensitive or proactive prosecution or, where prosecution is pursued, the defence of impossibility.

Navigating the Complex Terrain of Competition Law Enforcement in Nigeria’s Petroleum Sector: an Examination of the Nigerian National Petroleum Company Limited (NNPCL)

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Navigating the Complex Terrain of Competition Law Enforcement in Nigeria’s Petroleum Sector: an Examination of the Nigerian National Petroleum Company Limited (NNPCL)

Author: Laura Ani

ISSN: 2521-2605
Affiliations: Senior Research Fellow, Nigerian Institute of Advanced Legal Studies (NIALS)
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 109 – 141
https://doi.org/10.47348/JCLA/v11/i2a4

Abstract

The convergence of the Petroleum Industry Act of 2021 and the Federal Competition and Consumer Protection Act of 2018 offers a unique opportunity to reshape the Nigerian Oil and Gas sector. However, the true potential of these legislative reforms can only be realised through vigilant enforcement. This article comprehensively analyses the critical role of competition law in fostering a dynamic and competitive energy sector in Nigeria. By immersing into the labyrinth of competition law, this article distils the challenges and opportunities arising from the convergence of the Petroleum Industry Act and the Federal Competition and Consumer Protection Act. Additionally, the article expounds upon how a proactive stance by the NNPCL, within the ambit of competition compliance, can infuse dynamism into market dynamics and, ultimately, rebound to the collective economic well-being of Nigeria. The methodology involves a desktop review of laws and regulations pertinent to competition and petroleum. The aim is to assess the influence of these laws on market competitiveness, consumer welfare, and economic efficiency within the Nigerian petroleum industry. The article finds that though the dominance of the NNPCL is not problematic per se, the ownership structure of the NNPCL is an impetus for the government to undesirably influence the entity’s autonomy to compete like other undertakings. If left unchecked, it could potentially affect smaller private competitors in the industry. The article recommends more robust regulatory compliance to ensure fair competition and prevent the abuse of the NNPCLs dominant position.

Evaluating the Efficacy of Alternative Dispute Resolution Methods in Resolving Marital Conflicts in Nigeria

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Evaluating the Efficacy of Alternative Dispute Resolution Methods in Resolving Marital Conflicts in Nigeria

Author: Solomon O. Afolabi

ISSN: 2521-2605
Affiliations: LLB (Hons) Ife, BL, LLM (ABU), MBA (Unilorin), PhD (ABU), Associate Professor of Private & Property Law, University of Ilorin, Nigeria
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 142 – 168
https://doi.org/10.47348/JCLA/v11/i2a5

Abstract

Disputes may be a fact of life, but they are no less troubling when they occur. They often need resolution, and swift, meaningful resolution at that. While litigation is the most popular means of settling disputes, this paper appraises the application of Alternative Dispute Resolution (ADR) mechanisms to marital conflicts in Nigeria. In Nigeria, litigation which is the most common means of settling disputes is often inadequate for the settlement of marital conflicts for the simple reason that it is rarely personal, empathic or collaborative for that matter. This paper therefore appraises the nature and extent of the application of ADR mechanisms to marital conflicts and also tests the proposition that a ‘cause and effect’ relationship exists between ADR and healthy marriages. The paper adopts doctrinal and empirical approaches by leveraging on qualitative analysis of responses to structured questions administered to participants within the Ilorin metropolis, Kwara State, Nigeria. The paper finds that there is an overwhelming use of ADR mechanisms for the settlement of marital conflicts, albeit with most leaning towards non-institutional ADR mechanisms, and that a ‘cause and effect’ relationship does exist between ADR and healthy marriages. This paper recommends that more importance be given to ADR in the place of settlement of marital conflicts and that better awareness be made in respect to institutional ADR mechanisms in Nigeria. The work also recommends that serious consideration be given to the establishment of family courts that would operate using collaborative approaches unique to ADR mechanisms.

Le Droit au Juge Naturel en Droit Camerounais

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Le Droit au Juge Naturel en Droit Camerounais

Author: Tchabo Sontang

ISSN: 2521-2605
Affiliations: Maitre de Conférences, Droit privé, FSJP-UDs. Membre de l’URDIIC
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 169 – 188
https://doi.org/10.47348/JCLA/v11/i2a6

Abstract

A fair trial presupposes, among other things, that the judgment is pronounced by a court and/or an independent and impartial judge. In any state based on the idea of the rule of law, justice must be organized in such a way as to be stripped of any risk of serious grievance affecting its neutrality or that of the judges. It is on objective bases that the assignment of a court or a judge to a case must be made. The litigant must have for judge the one whom the law alone has established, his natural judge. Their meeting should not result from manipulation or a particular arrangement, but result from the implementation of criteria specially predefined by the legislator, taking into account the equality of citizens before the law and justice. These principles are indeed in force in Cameroonian law, although mistreated in their implementation.

The Need for Effective Implementation of the Nigeria Anti-Torture Act, 2017

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

The Need for Effective Implementation of the Nigeria Anti-Torture Act, 2017

Author: Ayo-Ojo Bayode Sunday

ISSN: 2521-2605
Affiliations: LLB (Kenyatta), LLM (KwaZulu-Natal), LLD (Pretoria)
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 189 – 208
https://doi.org/10.47348/JCLA/v11/i2a7

Abstract

The Anti-Torture Act 2017 prohibits torture without exceptions for government or military officials, including during emergencies and war, and imposes consequences on those who commit acts of torture. Those who carry out torture can face up to 25 years of imprisonment. Accordingly, the effectiveness of the Act must be measured by its effectiveness in ending torture by government and military officials. This article aims to assess the effective implementation of the Anti-Torture Act 2017. In doing so, the article questions whether any perpetrator has been punished in accordance with s 9 of the Act or whether detainees have access to medical examinations as specified in s 7 of the Act. This article analyses the need to effectively implement the Nigeria Anti-Torture Act 2017. Thus, this article finds that, in reality, there is no record of the punishment of any perpetrator under the Anti-Torture Act 2017, nor has the Attorney-General of the Federation provided any additional regulations to ensure its practical applications.

Continuation Funds: The New Dawn in Private Equity Fund Formation

by | Jan 17, 2025 | BTCLQ, BTCLQ V15 I4

Continuation Funds: The New Dawn in Private Equity Fund Formation

Authors: Michael Rudnicki

ISSN: 2219-1585
Affiliations: Tax Executive, Bowman’s Attorneys
Source: Business Tax & Company Law Quarterly, Volume 15 Issue 4, 2024, p. 1 – 8

 Abstract

This article explores the principal tax themes emanating from a new fund structure in the Private Equity industry referred to as a Continuation Fund. A Private Equity fund in South Africa is established in the form of a common law partnership, more specifically an en commandite partnership, meaning a distinction between so-called limited partners (limited in liability to their partnership contribution) and general partners (unlimited in terms of their liability to third parties, but share in profits disproportionate to their capital contribution).
Given the life expectancy of a PE Fund (typically a maximum of 10 years), the disposal of portfolio assets may be premature upon termination, given their inherent future value and poor market conditions. An appropriate investment remedy for investors wishing to further exploit the intrinsic value of PE portfolios is the establishment of a Continuation Fund.
Simplistically, the Continuation Fund is a new partnership whereby partners of the existing fund contribute their interests from the old fund. Issues such as the term of the fund, establishing which partners are limited and general, and fees, are key aspects that required consideration.
In South Africa, a partnership under common law is not a legal person distinct from the partners, nor is a partnership a taxable person.
An important consideration relating to partners exiting partnerships is the theory that partners co-own, in an abstract sense, undivided shares in the underlying assets. Accordingly, a partner does not own a piece of the land or a portion of the shares in the object sense, but rather jointly owns an indefinite whole until action is taken to divide the common asset. So when a partnership dissolves, the partner’s interest becomes a divided interest in the assets. For tax purposes, a partnership interest includes an undivided share in the assets of the partnership.
A ‘disposal’ for Capital Gains Tax purposes is defined in paragraph 11 of the Eighth Schedule to the Income Tax Act 58 of 1962 (the Act), and includes ‘any event, act, forbearance or operation of law which results in the creation, variation, transfer, or extinction of an asset’ (my emphasis).
In terms of the common law, partners entering and leaving the partnership results in the extinction of the old partnership and the creation of a new partnership.
For tax purposes, the disposal of an interest in the underlying assets, will result in a disposal subject to CGT.
In the context of a re-investment in a Continuation Fund, it is submitted that the disposal must have resulted in a parting with the asset, in whole or in part. On dissolution of the old fund, the fund’s assets are distributed in accordance with the respective partners’ contractual interest, established upfront. An abstract interest in the assets is replaced with actual ownership of not parted with anything nor gained anything. A limited partner in the old fund which contributes its shares to the Continuation Fund, as a general partner, will not give up value on the date of entry to the new partnership. This is because the value of the contribution equals the value of the shares distributed from the old fund. A reconstitution of partner rights to profits does not result in the giving up of anything on the date of the contribution. The sharing of profits from that point on determines the profit allocation.
Accordingly, a disposal for CGT purpose should not arise upon entry in the Continuation Fund.

 

Hidden Complexities in the Right of Recourse Between Co-debtors and Co-sureties

by | Jan 17, 2025 | BTCLQ, BTCLQ V15 I4

Hidden Complexities in the Right of Recourse Between Co-debtors and Co-sureties

Authors: Leon Kuschke SC, John Butler SC and Matthew Blumberg SC

ISSN: 2219-1585
Affiliations: Members, Cape Bar
Source: Business Tax & Company Law Quarterly, Volume 15 Issue 4, 2024, p. 9 – 20

 Abstract

Does a co-debtor or co-surety who is called upon to pay, and does pay, more than his or her proportionate share of the principal debt enjoy an ex lege (i e automatic) right of recourse or contribution against his or her co-debtors or co-sureties? This is the question that the authors — sitting as an arbitration appeal panel of three — were called upon to answer in recent arbitration proceedings.
The common assumption, amongst lawyers and businesspeople alike, is that there is an ex lege or automatic right of recourse or contribution in these circumstances. However, as appears from the analysis below, that assumption oversimplifies the legal position — which, on an overview of the relevant authorities, has two central tenets.
The first is that the default or presumptive position is that co-debtors and co-sureties do enjoy a mutual right of recourse or contribution in the circumstances described above.
The second is that the default or presumptive position may be displaced by the nature of the underlying relationship between the individual co-debtors or co-sureties. It is their underlying relationship — not merely the existence of a relationship of co-debtorship or co-suretyship — that is ultimately determinative of whether or not a mutual right of recourse or contribution exists.
As an example, assume that budding entrepreneur A wishes to start a business. A seeks to borrow R100 as start-up finance from lending institution X. To satisfy X’s requirements in respect of security, A’s wealthy relative B agrees to assume personal liability, jointly and severally alongside A, for repayment of the loan. The position then is that Y, as creditor, is owed R100 by A and B as co-principal debtors.
On settling the loan in full, does A then enjoy a right to recover R50 (half of the total debt paid by A) from his co-debtor B?
On the common assumption referred to above, the answer would be yes. But the legal principles, properly understood and applied, yield the opposite answer. Unlike A, B (the wealthy relative) has no genuine interest in the advance of the loan. The law recognises that in these circumstances, the underlying relationship between A and B is inconsistent with the latter owing the former an obligation to relieve him or her of the full debt burden (i e by distributing it between the two of them).
In this example, the nature of the underlying relationship between the co-debtors A and B — which, again, is inconsistent with a mutual right of recourse or contribution between them — has the result that the default or presumptive position is displaced and does not apply.

 

Early Termination of a Lease: Tax Implications in the Hands of the Lessor

by | Jan 17, 2025 | BTCLQ, BTCLQ V15 I4

Early Termination of a Lease: Tax Implications in the Hands of the Lessor

Author: Des Kruger and Karabo Mogashoa

ISSN: 2219-1585
Affiliations: Consultant, Webber Wentzel Attorneys; Candidate Attorney, Webber Wentzel Attorneys
Source: Business Tax & Company Law Quarterly, Volume 15 Issue 4, 2024, p. 21 – 32

Abstract

It is not uncommon for a lessee to seek to exit a lease prior to termination date, for varied reasons. The lessor will usually only be amenable to such early termination in exchange for an early termination payment. The crisp issue is: is such termination payment a receipt of a capital or revenue nature. Intuitively, the answer is that the compensation is of a revenue nature as the compensation is to compensate the lessor for a loss of the rentals that would have been paid by the lessee had the lease run its course.
However, the answer, as argued in this article, is not that straight forward. The answer is very dependent on the facts. The premise of this article is that where compensation is paid by a lessee to a lessor as compensation for the lessor agreeing to cancellation of a lease agreement, the compensation will be of a capital nature where the lease agreement constitutes the major, or the whole, business of the lessor. The fact that the lessor will in all probability be able to find a new tenant does not affect this conclusion. Nor is the conclusion different if the compensation is determined by reference to the loss of rentals that will arise in consequence of the termination of the lease agreement. By contrast, where the lease arrangement is merely a part (i e not a major or the whole) of the lessor’s business, the compensation will in all likelihood be regarded as a receipt of a revenue nature.
On the basis that the compensation derived by the lessor for the early termination of the lease agreement is a receipt of a capital nature in these specific circumstances, the issue arises as to the capital gains tax (CGT) implications that arise in consequence of such receipt. The authors conclude that while the termination payment will constitute proceeds for CGT purposes, as the lessor will not have incurred any expenditure in respect of the acquisition or creation of the lease agreement qua asset, the base cost in such asset is nil.
As the termination of the lease agreement constitutes the surrender of a right, and accordingly the supply of a service for value-added tax (VAT) purposes, VAT will need to be accounted for by the lessor (if a VAT vendor) on receipt of the termination payment.

 

Analysis of the Effect of Artificial Intelligence on Employment Relationships in South Africa: Ethical Implications for Workers’ Rights, Privacy and Policy Frameworks

by | Jan 12, 2025 | ILJ, ILJ V46 I1

Analysis of the Effect of Artificial Intelligence on Employment Relationships in South Africa: Ethical Implications for Workers’ Rights, Privacy and Policy Frameworks

Authors Professor Franaaz Khan & Kirstin Hagglund

ISSN: 2413-9874
Affiliations: rofessor, Department of Private Law, University of Johannesburg; LLB, LLM, PhD (UKZN); LLD Candidate, Stellenbosch University; LLB, LLM (cum laude)
Source: Industrial Law Journal, Volume 46 Issue 1, 2025, p. 1 – 28
https://doi.org/10.47348/ILJ/v46/i1a1

Abstract

The sharp rise of artificial intelligence (AI) has dramatically changed the employer and employee relationship. The advantages are, for example, an increase in efficiency and improved decision making. However, it has also given rise to challenges relating to ethical and policy issues, primarily regarding privacy, bias, accountability, and job safety. AI systems rely on datasets. These datasets include sensitive personal information that can raise privacy concerns within a working environment. Another concern is bias in AI algorithms, which can unwittingly perpetuate discrimination. This may result in unfair outcomes in respect of hiring, performance assessments, and promotions that would solidify disparities in the workplace. In addition, the computerisation of tasks through AI poses threats to job security, as it could disrupt workers’ stability. These ethical concerns compel employers and policymakers to alleviate the negative consequences of AI. This article addresses the ethical implications of AI in the workplace, with a focus on South African labour law. It discusses current relevant legislation, such as the Labour Relations Act, to assess its efficacy in addressing AI-related issues as well as the new National Artificial Intelligence Framework Policy 2024. A comparative analysis of AI legislation in the European Union and United States is also included in which best practices are identified. The article suggests a balanced regulatory approach that supports innovation while providing clear guidelines to protect employee rights and maintain fairness.