The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

by | Mar 16, 2025 | ACTA, ACTA 2024

The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

Authors Evance Kalula & William Mokofe

ISSN: 1996-2088
Affiliations: LLB (Zambia) LLM (London) PhD (Warwick); Professor Emeritus of Law, University of Cape Town; Independent Chairperson, ILO Committee on Freedom of Association; LLB (UFH) LLM LLD (South Africa); Advocate of the High Court of South Africa; independent researcher
Source: Acta Juridica, 2024, p. 117-148
https://doi.org/10.47348/ACTA/2024/a5

Abstract

This contribution is a tribute to Halton Cheadle’s work over the years, particularly his significant contribution to labour legislation and policy development and the enhancement of the role of international labour standards (ILS) in the SADC sub-region and elsewhere in Africa. Ever since the establishment of the International Labour Organisation (ILO) more than a hundred years ago, ILS has been a persuasive instrument in the search for universal democratic governance norms worldwide. Nowhere has that influence and impact been as visible as in developing countries. The impact of ILS in Southern Africa has been profound, not only in the struggle against racial discrimination, for instance in Zimbabwe and South Africa, but also in fostering labour rights through what was later designated as ‘decent work’. In more recent years, the promotion of ILS has been extended through the reform of labour legislation and policy. Cheadle has been deeply involved in the work of labour law reform, starting with South Africa in 1994, efforts that culminated in the current Labour Relations Act 66 of 1995, and then other African countries, such as Nigeria and Tanzania. His contribution continued when he served as a member of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR). In an era that can be characterised as one of ‘global polycrisis’, the importance of ILS as a well-tested yardstick, renewed to address the challenges of a rapidly changing world of work, has become greater than ever before. This article will examine and analyse selected areas related to democratic governance developments.

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

by | Mar 16, 2025 | ACTA, ACTA 2024

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

Authors Debbie Collier & Shane Godfrey

ISSN: 1996-2088
Affiliations: BA LLB (Rhodes) LLM PhD (UCT); Professor of Law and Director of the Centre for Transformative Regulation of Work, University of the Western Cape; BA (Hons) MA PhD (UCT) BProc (UNISA); Honorary Research Associate at the University of Cape Town; Honorary Senior Research Fellow, Global Development Institute, University of Manchester; Associate, Centre for Transformative Regulation of Work, University of the Western Cape
Source: Acta Juridica, 2024, p. 149-182
https://doi.org/10.47348/ACTA/2024/a6

Abstract

This article examines the role of ILO technical assistance in lawmaking and labour law reform, focusing on assistance provided in Lesotho prior to enactment of the Labour Act of 2024. ILO technical assistance often involves the use of external experts with significant influence over the development of domestic labour laws, raising questions about integrity and inclusivity in the law-making process. Drawing on our involvement in Lesotho’s labour law reform efforts between 2014 and 2024, the article considers key aspects of ILO assistance in the country’s unique socio-economic context. It highlights the importance of ensuring that labour laws are not only technically compliant with ILO conventions, but are also shaped by the deliberations of domestic stakeholders and are socially relevant and responsive to local employment and economic realities.

The Constitutional Court: Negotiating between constitutionalism and political power

by | Mar 16, 2025 | ACTA, ACTA 2024

The Constitutional Court: Negotiating between constitutionalism and political power

Authors Dennis Davis & Hugh Corder

ISSN: 1996-2088
Affiliations: BCom LLB (Cape Town) MPhil (Cantab); Judge Emeritus of the High Court of South Africa; Judge President Emeritus of the Competition Appeal Court of South Africa; Honorary Professor of Law, University of Cape Town and University of the Western Cape; BCom LLB (Cape Town) LLB (Cantab) D Phil (Oxon); Professor Emeritus of Public Law, University of Cape Town
Source: Acta Juridica, 2024, p. 183-221
https://doi.org/10.47348/ACTA/2024/a7

Abstract

The constitutional democratic order has been in place in South Africa for 30 years. During this period the Constitutional Court has established both its authority at the apex of the administration of justice and its legitimacy as the final arbiter of the lawfulness of the exercise of public power in all its manifestations. During its life, the Constitutional Court appears to have been guided in its approach to litigation before it by diverse concerns, often linked to strong personalities within its ranks and the prevailing socio-political context. It is difficult, however, to divine an overarching theory of adjudication to animate its jurisprudence. Such guidance can be discerned by attempts to ‘periodise’ the output of the Constitutional Court, as was attempted by Issacharoff in 2009. The courts have also been criticised and attacked in the public domain by party politicians who seek to divert attention from their unconstitutional conduct to scapegoat the judiciary; this is often accompanied by scandalous assaults on the constitutional order itself. Absent a unifying theory of adjudication in line with the transformative constitutional values at its core, we argue in this article that the Constitutional Court appears vulnerable to such unscrupulous undermining and is insufficiently able to defend itself and so retain public confidence in its stature, independence and fierce impartiality. Through an analysis of key judgments over the past fifteen years in particular, we seek to identify and propose the key elements of such a foundational theory of adjudication, applicable also in the vital sphere of extending constitutional prescripts into the private sphere, as contemplated by the Constitution.

An exploratory analysis of the financial incentives for small businesses amid erratic electricity supply in South Africa

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

An exploratory analysis of the financial incentives for small businesses amid erratic electricity supply in South Africa

Authors: Kolawole Olusola Odeku & Mudzielwana Takalani

ISSN: 1996-2185
Affiliations: Professor, Department of Public and Environmental Law, University of Limpopo; Senior Tutor, Department of Public and Environmental Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 135 – 162
https://doi.org/10.47348/SAMLJ/v36/i2a1

 Abstract

South Africa is experiencing erratic electricity supply daily dubbed ‘load shedding’. The impact and effect of electricity outages are being felt in all sectors of the economy and society at large, small businesses are no exception. Small businesses play a vital role in the economy and can be said to be the lifeblood of the economy by tackling social, and socio-economic challenges such as unemployment, inequality, and poverty. Nowadays, unreliable electricity supply and high tariffs are impeding entrepreneurial activities, particularly small businesses. The government has announced that load shedding would continue at least, for the next two years. To alleviate electricity poverty and ameliorate the impact and effect of the electricity crisis on small businesses, various financial incentive interventions become imperatives. To this end, through government institutions in collaboration with the financial sector particularly the banking industry, financial incentives are being deployed and used to alleviate financial burdens threatening the existence and survival of many small businesses. Against this backdrop, this article looks at the selected but germane financial incentive interventions that, even, amid the erratic electricity supply, will allow small businesses to continue to operate, thrive, grow, and prosper.

Exploring financial literacy-related consumer protection in the general code of conduct for authorised financial services providers and the representatives

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

Exploring financial literacy-related consumer protection in the general code of conduct for authorised financial services providers and the representatives

Author: Henk Kloppers

ISSN: 1996-2185
Affiliations: Professor, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 163 – 186
https://doi.org/10.47348/SAMLJ/v36/i2a2

 Abstract

South Africa has low levels of financial literacy and clients often, to their own detriment, take up specialised and complex financial products without a proper understanding of the product due to a lack of financial knowledge. This situation places the client at a clear disadvantage and the clients are unable to make informed decisions and because the advice tendered by the financial advisor did not enable the client to make an informed decision based on the client’s factually established or reasonably assumed level of knowledge. The Financial Advisory and Intermediary Services Act along with the General Code of Conduct for Authorised FSPs and their Representatives (the GCC) is aimed at protecting consumers in the financial services industry. The GCC, as one of the primary legal instruments for consumer protection in the financial services industry, specifically requires an advisor to provide advice based on the client’s factually established or reasonably assumed level of knowledge. Clients who are not satisfied with the advice provided by an advisor may approach the Ombud for Financial Services Providers (the FAIS Ombud) when this duty imposed by the GCC is not adhered to. Molate v Discovery Life Ltd (04862/15–16/GP2) serves as an example of the application by the FAIS Ombud of this specific duty. This contribution will briefly reflect on financial literacy and then explore financial literacy-related consumer protection in the GCC. Thereafter the contribution considers how this protection has been enforced by the FAIS Ombud by examining Molate v Discovery Life Ltd where the issue of the client’s level of knowledge of long-term insurance products was specifically placed under the microscope. The contribution concludes with recommendations to guide financial advisors providing advice in the context of the client’s factually or reasonably assumed level of knowledge.

NFTS—Buyer’s remorse and a flash in the pan? Some thoughts on the nature and usefulness of NTFS in virtual worlds and the metaverse

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

NFTS—Buyer’s remorse and a flash in the pan? Some thoughts on the nature and usefulness of NTFS in virtual worlds and the metaverse

Author: Wian Erlank

ISSN: 1996-2185
Affiliations: Professor, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 187 – 202
https://doi.org/10.47348/SAMLJ/v36/i2a3

 Abstract

NFTs or Non-Fungible Tokens have recently made their appearance as a phenomenon branching off from cryptocurrencies and blockchains. Lately the discussions about NFTs have focused on the investment value of NFTs and the risks associated with the investment and trade in such NFTs, which have led to huge capital losses similar to those seen in the speculative investment and trade in cryptocurrencies such as Bitcoin. After the initial hype, the value of NFTs as investment vehicles has mostly collapsed with many early adopters now experiencing buyer’s remorse. From this background the use and value of NFTs in several online virtual world or gaming environments is discussed with a focus on whether they add value to or detract from the user experience. While NFTs do appear to have the potential to function as a new addition to the existent types of digital property objects in terms of digital assets or virtual property, the use case as a new technological feature in online gaming environments remains contentious. It is argued that the future usefulness of NFTs will increase as the metaverse is developed and NFTs are not restricted to various proprietary ecosystems. Once someone can use their NFTs linked object in an unrestricted common environment such as the envisaged metaverse, the use case for NFTs will be much more convincing. The speculative aspect of investing in NFTs and the often ludicrous amounts of money spent on such nebulous objects set the stage for the discussion.

A legal analysis of the Nigerian National Inspector General for Tax Crimes Commission Bill, 2022

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

A legal analysis of the Nigerian National Inspector General for Tax Crimes Commission Bill, 2022

Authors: Oyesola Animashaun & Howard Chitimira

ISSN: 1996-2185
Affiliations: Associate Professor, Faculty of Law, Kwara State University; Research Director, Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 203 – 217
https://doi.org/10.47348/SAMLJ/v36/i2a4

 Abstract

The number of Ministries, Departments and Agencies (‘MDAs’) listed on the Nigerian Federal Civil Service official website is 1316. Although this figure is unwieldy, the cost of governance and the debt profile of these civil services are equally astounding. This prompted the Federal Government of Nigeria to set up the Oronsaye Presidential Committee on the Reduction and Rationalization of Federal Government Parastatals, Commissions and Agencies to consolidate the MDAs and reduce governance costs. However, the Nigerian National Assembly is currently deliberating on the National Inspector General for Tax Crimes Commission Bill, 2022 (‘the Bill’) with the aim of creating a National Inspector-General for Tax Crimes Commission. This article analyses the Bill and the various statutes aimed at curbing tax crimes such as the Economic and Financial Crimes Establishment Act, 2004 (‘EFCC Act’) and the Federal Inland Revenue Services (Establishment) Act 2007 (‘FIRS Act’) in order to determine whether the Bill is a duplication of these Acts and agencies. The adopted methodology is doctrinal. This article provides that creating a National Inspector- General for Tax Crimes Commission will inevitably lead to an increase in the cost of governance, overlapping functions, friction and conflicts with agencies such as the Federal Inland Revenue Services (‘FIRS’), Economic and Financial Crimes Commission (‘EFCC’), the Revenue Mobilisation, Allocation and Fiscal Commission (‘RMAFC’) and the Nigeria Customs Service. Accordingly, there is a need to harmonise the existing revenue agencies, tax administration and enforcement mechanisms.

De Facto and Shadow Directors: Lessons from New Zealand

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

De Facto and Shadow Directors: Lessons from New Zealand

Authors: Lindi Coetzee & Bernardus Hermanus Botha

ISSN: 1996-2185
Affiliations: Deputy Dean Faculty of Law Nelson Mandela University; LLD student and Post Graduate Associate Faculty of Law Nelson Mandela University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 218 – 250
https://doi.org/10.47348/SAMLJ/v36/i2a5

 Abstract

The term ‘director’ is commonly limited to de jure directors. The Companies Act applies to those individuals who fall within the definition of ‘director’. However, de jure directors are not the only type of director found in practical corporate settings. De facto directors are not appointed as directors but are held out by companies as directors. Shadow directors are persons who have not been validly appointed as directors and are not held out by a company as directors, but who exercise some measure of control over the affairs of a company. The existence of de facto and shadow directors is not peculiar to South Africa. New Zealand has seen it fit to regulate de facto and shadow directors and has done so for over 70 years. It is uncertain whether the wording of the definition of ‘director’ in the South African Companies Act, includes de facto and shadow directors. The practical effect of uncertainty is the absence of clear avenues of accountability to those who occupy a position of power within a company without being validly appointed. This article illustrates the far-reaching consequences of the non-regulation of de facto and shadow directors, and a possible solution is suggested.

Reflecting on the need for the South African Takeover Regulation to promote private contracting to mitigate the effects of post-merger or takeover eventualities on directors

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

Reflecting on the need for the South African Takeover Regulation to promote private contracting to mitigate the effects of post-merger or takeover eventualities on directors

Author: Justice Mudzamiri

ISSN: 1996-2185
Affiliations: Postdoctoral Research Fellow in the Faculty of Law, Mercantile Law Department, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 251 – 276
https://doi.org/10.47348/SAMLJ/v36/i2a6

 Abstract

This article asserts that consistent with the shareholder and stakeholder perspectives, during mergers and/or takeovers, the law must, within prescribed limits, mandatorily ‘up-weight’ the interests of the directors by providing fair and adequate compensation through either creating new remedies and/or promoting private contracting. In particular, this article seeks to bolster the appropriateness and adequacy of the South African takeover regulatory framework in protecting directors through compensation after losing their office and/or employment in the face of mergers and/or takeovers through a comparative assessment with the United Kingdom (UK), and the United States of America (US). Often takeover transactions, heighten the possibility of the incumbent directors facing severe conflicts of interest, because, by nature, when these transactions succeed, they potentially affect directors personally. The varied potential consequences of takeovers include, on the one hand, fear of the loss of employment, and on the other hand, directors may loathe continuing their employment in a newly formed company which would have significantly altered its ownership structure and/or corporate objectives. This article argues that to mitigate conflicts of interest, takeover regulatory regimes must provide for fair and adequate compensation to the incumbent directors’ post takeover-related employment losses, to minimise the likelihood of the directors being influenced by self-serving objectives. This article identifies the weaknesses and strengths of directors’ protection in South Africa, the UK, and the US — providing lessons for bolstering directors’ protection post-takeovers in South Africa.

The right to equal parental leave rights for mothers and fathers in the South African Workplace: An analysis of Van Wyk & others v Minister of Employment and Labour 2024 (1) SA 545 (GJ) Intelligence Systems in South Africa

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

The right to equal parental leave rights for mothers and fathers in the South African Workplace: An analysis of Van Wyk & others v Minister of Employment and Labour 2024 (1) SA 545 (GJ) Intelligence Systems in South Africa

Authors: Howard Chitimira & Elfas Torerai

ISSN: 1996-2185
Affiliations: Research Director, Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University; Postdoctoral Research Fellow, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 277 – 296
https://doi.org/10.47348/SAMLJ/v36/i2a7

 Abstract

The application of the right to equality as provided for in the Constitution of the Republic of South Africa, 1996, is contentious, especially in the provision of parental leave between mothers and fathers in the South African workplace. While considerable progress has been achieved in the realisation of the rights to equal pay for the performing of the same functions, and the right to equal opportunities for equal qualifications, the same cannot be said of parental leave for employed mothers and fathers. This article explores the law relating to parental leave rights in South Africa in light of the Van Wyk & others v Minister of Employment and Labour 2024 (1) SA 545 (GJ) case. The article evaluates whether the High Court provides adequate guidance in balancing parental leave rights available to employed mothers and fathers in South Africa. In this regard, the question is asked whether the legislature fully understands and correctly interprets the import of the right to equality as provided for in the Constitution. The analysis is premised on the argument that the Van Wyk case presents a fascinating interpretation and application of the right to equality on parental leave rights for mothers and fathers in South Africa. The authors argue that the High Court was correct in its approach though it could have gone further to qualify and elaborate more on the right to equal parental rights for mothers and fathers. The court missed a golden opportunity to unequivocally set out that equality in being is not the same as equality in function and that a misunderstanding of the two breeds unfair discrimination and inequality in the provision of parental leave rights. A gender stereotypical application of the right to equality defeats the letter and spirit of the Constitution which is more inclined to the achievement of equality in being rather than equality in function.