Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa

Author Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (Pretoria) LLM (Free State) LLD (Western Cape), Professor of
Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 425 – 445

Abstract

Section 4(1)(a) of the Refugees Act disqualifies from refugee status any person who is alleged to have ‘committed a crime against peace, a war crime or a crime against humanity, as defined in any international legal instrument dealing with any such crimes’. The Implementation of the Geneva Conventions Act and the Implementation of the Rome Statute of the International Criminal Court Act provide that South African courts have jurisdiction over war crimes committed abroad. The Implementation of the Rome Statute of the International Criminal Court Act is only applicable to crimes that were committed after July 2002. However, the Implementation of the Geneva Conventions Act is silent on whether South African courts have jurisdiction over war crimes committed by non-South Africans in noninternational armed conflicts outside South Africa. As a result, if a person whose application for refugee status has been declined under s 4(1)(a) on the ground that there is reason to believe that he committed a war crime in a non-international armed conflict cannot be extradited for prosecution, South African courts will not have jurisdiction over him. It is argued that there is a need to amend the Implementation of the Geneva Conventions Act to address this loophole. In order to support this argument, the article addresses the following issues: a discussion of s 4(1)(a) of the Refugees Act; the admissibility of foreign convictions in refugee determination cases; prosecuting a person who has committed war crimes outside South Africa; and excluding a person from being recognised as a refugee on the basis of an offence of a non-political nature and the principle of non-refoulement.

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? (Part 1)

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? (Part 1)

Authors Samantha Goosen and Nicci Whitear-Nel

ISSN: 1996-2118
Affiliations: LLB LLM (UPE) PhD (UKZN), Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg; BA LLB (UN) LLM (UKZN), Senior Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 446 – 468

Abstract

Spousal testimonial privilege and marital communications privilege are distinct concepts, but both are underpinned by the same policy rationale: The desire to protect the sanctity of the marriage relationship, encourage communication between spouses, and to prevent a spouse from being faced with the moral dilemma of either telling the truth and risking the relationship or committing perjury to avoid incriminating the other spouse. Collectively, spousal testimonial privilege and marital communications privilege are referred to as the marital privileges in this article. The law indicates a clear policy choice in favour of protecting the marriage relationship as opposed to the public interest in ensuring that the maximum relevant evidence is placed before the court, by virtue of the existence of the marital privileges. In part one of this two-part article, the authors discuss the marital privileges and the rationales underpinning them. Then the article considers the problems with the marital privileges and whether the law needs reform. The authors discuss whether the marital privileges should be extended to include cohabitant life partners. It is argued that the law on marital privileges is arbitrary and incoherent and does not adequately reflect or take into account the types of relationships that exist in multicultural South African society. In part two, the authors discuss the position as regards the marital privileges in a constitutionally comparable democracy – that of Canada. Also considered is the position adopted by the European Court of Human Rights in respect of the marital communications privilege in the Netherlands.

Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code

by | Dec 4, 2020 | JCLA, JCLA V7 I1 2020

Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code

Author Jonathan Bashi Rudahindwa

ISSN: 2521-2605
Affiliations: Lecturer in law, Université Protestante au Congo (DRC); Research Associate, Centre for Comparative Law in Africa (CCLA), University of Cape Town; Research Associate, School of Law, SOAS, University of London. Correspondence address: Université Protestante au Congo, Faculté de Droit, Croisement des Avenue Libération et Boulevard Triomphal, Commune de Lingwala, Ville de Kinshasa, République Démocratique du Congo, BP. 4745 Kinshasa 2

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 1 – 29

Abstract

The Organisation for the Harmonisation of Business Law in Africa (OHADA)  was established 27 years ago, in October 1993. Using legislative harmonisation or  unification of its 17 Member States’ business laws, through the adoption of several  Uniform Acts that are meant to be simple and modern, the organisation aims to  produce a business law that is adapted to each Member State’s context, thereby  facilitating commercial transactions within the OHADA area. While noting the  relative success of the OHADA harmonisation or unification process, this article  aims to highlight the advantages and shortcomings of its legislative harmonisation  mechanism. This aspect of the OHADA process is analysed by considering the  judicial harmonisation process that resulted in the adoption of the United States  Uniform Commercial Code (UCC), which is codified legislation that aims to  harmonise the law of sales and other commercial transactions across US states,  hence promoting inter-state trade. This comparative analysis is conducted with a  view to perfecting the harmonisation of business laws across Africa, while ensuring  that harmonisation achieves the goal of promoting intra-African trade. The  ultimate goal of the article is to demonstrate the need to place a greater emphasis  on judicial harmonisation and highlight its ability as a law-making method to  produce a commercial law that truly meets the needs and aspirations of the business  community across the continent. 

A comparative analysis of codes of corporate governance and their impact on the boards of public companies in Nigeria and South Africa

by | Dec 4, 2020 | JCLA, JCLA V7 I1 2020

A comparative analysis of codes of corporate governance and their impact on the boards of public companies in Nigeria and South Africa

Author Akin Olawale Oluwadayisi

ISSN: 2521-2605
Affiliations: BL ACIArb FIPMD LLM PhD and Notary Public, Lecturer, Department of Commercial Law, Faculty of Law, Adekunle Ajasin University, Akungba Akoko, Ondo State, Nigeria

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 30 – 62

Abstract

The growth of the economy of any nation requires that public companies, which  dominate the securities sector, are strong financially, and also requires that the  modality for their governance and operations should accord with acceptable and  beneficial standards. Corporate regulatory bodies prescribe codes of corporate  governance (CCG) that regulate the daily activities and performance of corporate  entities. However, it appears that despite the introduction of CCG in Nigeria and  South Africa, public companies are yet to deliver the desired results, due to noncompliance,  enforcement challenges and a lack of internal mechanisms to implement  the spirit and content of CCG. This research provides a comparative analysis of  boards and the compliance level of public companies in Nigeria and South Africa.  The research methodology adopts a combination of doctrinal legal research and  qualitative analysis. The research aims to discover how the two countries can benefit  from each other. The objectives include determining the level of knowledge of CCG,  the level of accountability of boards, the level of responsibility, and enforcement and  compliance levels. The research identifies the gaps in the law and practice, while  offering solutions on how best to apply and enforce the codes in the two countries. 

A critical analysis of codification: Analysing the value of family preservation in African Law

by | Dec 4, 2020 | JCLA, JCLA V7 I1 2020

A critical analysis of codification: Analysing the value of family preservation in African Law

Author Gloria Paidamoyo Chikaonda

ISSN: 2521-2605
Affiliations: BA LLB LLM; PhD candidate and researcher, University of Cape Town

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 63 – 92

Abstract

The laws and practices of African people have often been regarded as repugnant,  and in many cases have been completely ignored. During the colonial period,  African laws were denied. In this context the important questions surrounding the  preservation and development of a legal theory that is distinctly African arises. I will  argue that the codification of African customary law values is one way of ensuring  the survival of African law and, in furtherance of that aim, I will examine the  value of preserving the family. With reference to South African and Zimbabwean  legislation and jurisprudence and an overview of the Namibian approach to dealing  with the recognition of customary law, I propose that in place of the codification of  customary laws and practices, consolidating – in textual format – the underlying  values, such as the preservation of the family, will be an effective way of laying  the foundation for an African legal theory. This will preserve African law, while  maintaining the dynamism and fluidity of customs and practices. 

Contentious jurisdiction: The Kenyan Kadhis’ courts and their application of the Islamic law of custody and maintenance of wives and children

by | Dec 4, 2020 | JCLA, JCLA V7 I1 2020

Contentious jurisdiction: The Kenyan Kadhis’ courts and their application of the Islamic law of custody and maintenance of wives and children

Author Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 93 – 119

Abstract

Article 170(5) of the Constitution of Kenya provides that ‘[t]he jurisdiction of  a Kadhis’ court shall be limited to the determination of questions of Muslim law  relating to personal status, marriage, divorce or inheritance in proceedings in which  all the parties profess the Muslim religion and submit to the jurisdiction of the  Kadhi’s courts.’ A provision to the same effect is also included in s 5 of the Kadhis’  Courts Act. It is clear that the Kadhis’ Courts have jurisdiction over marriage,  divorce and inheritance and they have handed down many judgments dealing  with these issues. Neither art 170(5) of the Constitution nor s 5 of the Kadhis’  Courts Act expressly permit or prohibit these courts from dealing with custody  and maintenance matters. This approach is different from the one taken in other  African countries such as Tanzania (Zanzibar) and Uganda, where the issues of  custody and maintenance are expressly mentioned in the law on Kadhis’ Courts.  As a result, there are conflicting decisions from the Kenyan Kadhis’ Courts and  the High Court on the issue of whether the Kadhis’ Courts have jurisdiction  over custody and maintenance matters. In this article, I illustrate how the Kadhis’  Courts and the High Court have dealt with the issues of custody and maintenance  in Islamic law and I refer to Kenyan case law and the drafting history of art  170(5) to argue that the Kadhis’ Courts do not have jurisdiction over custody and  maintenance issues. I rely on legislation and practice from other African countries to  suggest ways in which the issue of the jurisdiction of the Kenyan Kadhis’ Courts  in relation to custody and maintenance could be addressed.