A discussion of Moosa NO and others v Harnaker and others illustrating the need for legal recognition of Muslim marriages in South Africa

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

A discussion of Moosa NO and others v Harnaker and others illustrating the need for legal recognition of Muslim marriages in South Africa

Authors Waheeda Amien

ISSN: 2521-2605
Affiliations: Associate Professor, Faculty of Law, University of Cape Town. Attorney of the High Court of South Africa. Member of the Executive Body of the International Commission on Legal Pluralism.
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 115 – 130

Abstract

In this paper, one of the more recent decisions illustrating the South African judiciary’s intervention in the context of Muslim marriages is discussed namely, Moosa NO and Others v Harnaker and Others, which was decided in 2018. The paper highlights several issues through a discussion of the Western Cape High Court and Constitutional Court judgments in the Moosa NO case. For instance, notwithstanding previously decided cases, which permitted Muslim spouses to benefit from specific pieces of legislation, the Moosa NO case reinforces the fact that non-recognition of Muslim marriages in South Africa causes Muslim spouses, especially wives to continue to be excluded from legislation that has not been legally challenged for excluding Muslim spouses. The case confirms that failure to afford legal recognition to Muslim marriages results in the undermining of the rights to equality and human dignity of Muslim spouses, particularly Muslim wives. The case further illustrates the South African judiciary’s continued willingness to come to the aid of parties married by Muslim rites by among others, bringing them within the ambit of legislation that they are otherwise excluded from. Finally, the case demonstrates the need for official recognition of Muslim marriages to obviate the need for Muslim women having to approach the courts each time they require access to legislative (and other) benefits that their African customary law and civil law counterparts enjoy.

The process of giving domestic effect to treaties in Nigeria and the United States

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

The process of giving domestic effect to treaties in Nigeria and the United States

Authors Muyiwa Adigun

ISSN: 2521-2605
Affiliations: None
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 85 – 114

Abstract

There is no doubt that the volume of interaction among states has grown exponentially in modern times, thus making treaty making among states inevitable with the attendant consequence of incurring international legal obligations. But the domestic effect of treaty obligations is purely a constitutional matter. This study therefore examines the process of giving domestic effect to treaty obligations in Nigeria and the United States. The comparison is informed by the fact that the Constitution of the Federal Republic of Nigeria, 1999 was inspired by the Constitution of the United States of America, Nigeria and the United States share a common law tradition and both are federal states. However, while the United States has much influence at the international level, Nigeria does not enjoy identical sway. The study finds that the approach adopted by Nigeria is the complete opposite of that of the United States. Thus, while no treaty has effect in Nigeria unless enacted into law, all treaties take effect in the United States unless not self-executing. The position maintained in the United States and Nigeria can be likened to drawing a circle clockwise or anticlockwise with anything outside it being excluded. Thus, both the United States with great global influence and Nigeria without identical powers of persuasion see the reason why international norms should not be given domestic effect without being filtered. The study argues that while the law on the domestic effect of treaties is clear in Nigeria, treaties with international organisations are not contemplated, whereas in the United States while the law on the domestic effect of treaties is not clear because of the notion of self-execution which is confusing, the law contemplates treaties with international organisations. The study therefore recommends that Nigeria should amend its Constitution to take cognisance of treaties with international organisations while the United States should dispense with the notion of self-execution and make all treaties effective domestically unless otherwise declared by the Congress.

Advancing towards a more effective stakeholder engagement by multinational companies in Nigeria

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

Advancing towards a more effective stakeholder engagement by multinational companies in Nigeria

Authors Kunle Aina

ISSN: 2521-2605
Affiliations: Reader in Law, Faculty of Law, University of Ibadan
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 55 – 84

Abstract

Stakeholder engagement and reporting on non-financial issues enable the company to demonstrate that it understands the concerns of society and explain how it is addressing them. Social and environmental policies are currently incoherent, haphazard and without regulation in Nigeria. This paper examines stakeholder engagement as an offshoot of sustainable governance which is a concept whereby companies integrate social and environmental concerns in their business operations and their interactions with their stakeholders on a voluntary basis. The ongoing social upheavals in the Niger Delta Region of Nigeria are an attestation of failure of effective stakeholders’ engagement by the multinational companies (MNCs), This paper examines the concept of stakeholder engagement as a solution to these conflicts, its importance to sustainable corporate governance and the global practice and standards. This paper further appraises the adequacy of the current laws, regulations, policies and practice for regulating stakeholder engagement by MNCs in Nigeria. A mandatory legal, more effective disclosure regime and regulations of stakeholder engagement is advocated.

A critical appraisal of law reform in Cameroon: Pluralism and harmonisation of laws

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

A critical appraisal of law reform in Cameroon: Pluralism and harmonisation of laws

Authors Mikano Emmanuel Kiye

ISSN: 2521-2605
Affiliations: Lecturer, Department of English Law, University of Buea, Cameroon
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 28 – 54

Abstract

This paper, through conceptual and practical analyses, unravels the challenges posed to the Cameroonian legal system by the existence of multiple and divergent values. It addresses the challenges associated with law reform in the polity and advocates for an alternative approach to reform, which is holistic and practical in nature. Cameroon’s legal system is mostly a relic of colonialism and consists of multiple divergent values that interact with each other. Among these values are civil law derived from France, common law received from England and customary law that has, hitherto, been in existence prior to colonialism. The differences between these values are insurmountable, and have led to tensions and frictions which have, in turn, made incidences of conflict of laws and forum shopping inevitable. The situation is compounded by the fact that, although being a unitary state, the laws are applicable in the entity as if it consisted of several different territories. While acknowledging the laudable initiatives toward reform, the paper questions the rationality and objectivity underlying the policies adopted, consisting mostly of the harmonisation of received laws and the restriction of customary jurisdiction. Law reform has been problematic: harmonisation is at the verge of establishing a uni-jural system founded on civil laws; restriction of customary jurisdiction has fragmented the legal process; and law reform has failed to completely eradicate conflict of laws and forum shopping. The paper calls for alternative approaches that, among others, equally reflect the country’s inherited traditions while also strengthening the role of customary law.

Proxy statements under Maryland Law – 2015

by | Oct 8, 2019 | JCCL, JCCL V1 I2

Proxy statements under Maryland Law – 2015

Authors James J Hanks Jr, Michael A Leber

ISSN: 2521-2575
Affiliations: Partner, Venable LLP, Baltimore, MD; Partner, Venable LLP and a member of the firm’s corporate group
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 95 – 109

Abstract

None

Domestic employees to be furnished with a copy of an application for sequestration of the employer’s estate. Will it always be possible? Stratford v Investec 2015 (3) SA 1 (CC)

by | Oct 8, 2019 | JCCL, JCCL V1 I2

Domestic employees to be furnished with a copy of an application for sequestration of the employer’s estate. Will it always be possible? Stratford v Investec 2015 (3) SA 1 (CC)

Authors Tshegofatso Kgarabjang

ISSN: 2521-2575
Affiliations: Senior Lecturer, College of Law, Unisa
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 82 – 94

Abstract

None

Are shareholders exclusive beneficiaries of fiduciary obligations in South Africa? The role of fiduciary obligations in the 21st Century

by | Oct 8, 2019 | JCCL, JCCL V1 I2

Are shareholders exclusive beneficiaries of fiduciary obligations in South Africa? The role of fiduciary obligations in the 21st Century

Authors Brian Peter Lee Jennings

ISSN: 2521-2575
Affiliations: Director at ENSafrica
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 54 – 81

Abstract

This paper investigates and evaluates the existing South African common law position of to whom directors owe their duties, in light of the transformative requirements of the Constitution. Unsurprisingly, the South African legal position largely mirrors the position found within Anglo-American jurisdictions, on which our company law is based. But whether this is justified, or warranted, in a post-constitutional South Africa, which values equality, dignity and freedom as being paramount, is the subject of this paper. This paper will attempt to address the question whether South Africa’s Constitution, and the recently promulgated 2008 Companies Act, appropriately balances the competing ideological tensions found within South African society. In undertaking this balancing act, one will consider whether the Companies Act gives effect to the most appropriate ideology in the most appropriate circumstances, to give effect to the constitutional values of dignity, equality and freedom. The hypothesis at the forefront of this paper is that the legal interpretation of the beneficiary of the duties owed by directors in South Africa must be revisited in a post-constitutional environment, in the very least. That revisiting must be dependent on the company to whom the rule is being applied, and its position in society. This will, in turn, determine the most appropriate theory (from a legal, socio-economic and philosophical point of view) to apply to determine to whom such company’s directors owe their duties.

Punishing foreign and local companies (corporations) for bribery in Mauritius: The need to amend the Prevention of Corruption Act

by | Oct 8, 2019 | JCCL, JCCL V1 I2

Punishing foreign and local companies (corporations) for bribery in Mauritius: The need to amend the Prevention of Corruption Act

Authors Jamil Ddamulira Mujuzi

ISSN: 2521-2575
Affiliations: Associate Professor of Law, Faculty of Law, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 42 – 53

Abstract

The 2002 Mauritian Prevention of Corruption Act [fn1] (POCA or the Act) provides for different offences. Section 5 of POCA provides for the offence of bribery and states that ‘any person guilty shall be liable to penal servitude’. This means that POCA does not provide an appropriate sentence for juristic persons because juristic persons cannot be sentenced to imprisonment or penal servitude. This is what one of the courts in Mauritius found when it convicted two foreign companies of bribery but could not sentence them to prison. In this article the author argues that Mauritian legislators should amend POCA to provide for sentences that may be imposed on companies convicted of offences under the Act. The author also argues that, in addition to prosecution, Mauritius may find it useful to adopt the deferred prosecution agreements approach as one of the ways to ensure that companies are deterred from committing corruption and also to ensure that they put effective measures in place to combat corruption. footnote 1: Prevention of Corruption Act 5 of 2002, proclaimed by Proc 18 of 2002 wef 1 April 2002.

The wolf in sheep’s clothing – when debtor-friendly is creditor-friendly: South Africa’s business rescue and alternatives learned from the United States’ Chapter 11

by | Oct 8, 2019 | JCCL, JCCL V1 I2

The wolf in sheep’s clothing – when debtor-friendly is creditor-friendly: South Africa’s business rescue and alternatives learned from the United States’ Chapter 11

Authors Richard Bradstreet, Marius Pretorius, Philip Mindlin

ISSN: 2521-2575
Affiliations: Senior Lecturer in Commercial Law, University of Cape Town; Professor of Business Strategy, University of Pretoria; Partner at Wachtell, Lipton, Rosen & Katz, New York
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 1 – 41

Abstract

The American Chapter 11 has inspired the reform of many legal systems globally to embrace the notion of reorganisation rather than administration. The recent corporate law reform in South Africa is an example of such an attempt to de-emphasise the right of creditors to liquidate a company, and develop a culture of reorganisation. The new South African procedure, called ‘business rescue’, enables a company to restructure its affairs more informally and with less judicial oversight than was previously possible. An independent third party then develops a formal plan to rescue the company, which must be approved by the body of creditors, while a moratorium prevents them from enforcing their existing claims. The authors analyse the problems that have arisen in business rescues in practice during the first four years of the procedure’s existence and, drawing from the experience of the United States, propose possible solutions to the shortfalls of business rescue that may also assist in developing a true reorganisation culture in South Africa.

Notes: Rethinking the definition of the ‘business of banking’ in South Africa against the backdrop of Registrar of Banks v Net Income Solutions [2013] ZAWCHC 92

by | Oct 8, 2019 | JCCL, JCCL V1 I1

Notes: Rethinking the definition of the ‘business of banking’ in South Africa against the backdrop of Registrar of Banks v Net Income Solutions [2013] ZAWCHC 92

Authors H Kawadza

ISSN: 2521-2575
Affiliations: Senior lecturer, School of Law, University of the Witwatersrand
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 1, 2015, p. 105 – 115

Abstract

The recent financial crisis has amplified calls for the effective regulation of banks. However, an appreciation of bank regulation necessitates an understanding of what a bank is. It is only when that has been accomplished that resources can be channelled towards the regulatory and supervisory objective of those institutions. The major challenge, however, has been the growing difficulty associated with defining what the business of banking is. Statutory definitions have been too restrictive and have confined banks to certain activities. Much as that can be justified as necessary to prevent banks from engaging in other activities, that constraint has had the potential of exposing banks to, among other disadvantages, unfair competition especially given that the activities which have traditionally been the preserve of banks are now being undertaken by non-banking institutions.