Debt relief for South African NINA debtors and what can be learned from the European approach

by | Oct 1, 2019 | CILSA, CILSA V50 I2 2017

Debt relief for South African NINA debtors and what can be learned from the European approach

Authors Melanie Roestoff, Hermie Coetzee

ISSN: 2522-3062
Affiliations: Professor, Department of Mercantile Law, University of Pretoria; Associate professor, Department of Mercantile Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 2, p. 251 – 274

Abstract

The focus of this article is on the international trend of providing debt relief to all hopelessly insolvent individuals, so allowing them a fresh start. Such debtors include those with ‘no income and no assets’ (NINA), whose access to insolvency proceedings would yield no benefit for their creditors. The initial ultra-liberal American ‘straight discharge’, or ‘fresh start’, is contrasted with the ‘earned fresh start’ approach in Europe. The European approach is investigated in some detail and key elements in the German and French consumer-insolvency systems are specifically considered, as these systems respectively illustrate the traditional and the new European approaches to providing debt relief to NINA debtors. Internationally regarded principles and guidelines are considered as a subtext. The purpose of the investigation is to ascertain whether there are any lessons to be learnt by South Africa from the European approach, and to indicate a way forward for future law reform as regards debt-relief measures for NINA debtors. The research concludes with an evaluation of the different approaches within the South African context and offers some remarks on the way forward.

Step-parent adoption: To do, or not to do-that is the question

by | Oct 1, 2019 | CILSA, CILSA V50 I2 2017

Step-parent adoption: To do, or not to do-that is the question

Authors Sandra Ferreira

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Private Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 2, p. 230 – 250

Abstract

Once a child has been adopted, he or she is regarded as the child of the adoptive parent for all purposes, and vice versa. Conversely, an adoption also terminates relationships that existed before the adoption. This article focuses on step-parent adoption. I point out that there is a difference between step-parent adoption and other forms of adoption. I then consider whether it is still appropriate and in the best interests of the child to legalise the relationship between a step-parent and stepchild through adoption, and so to terminate the child’s legal relationship with a parent and/or family. In order to determine this, a comparative analysis is undertaken. Finally, I conclude that the time has come to consider alternative ways to formalise and protect the step-parent and stepchild relationship.

Revocation of citizenship in the face of terrorism

by | Oct 1, 2019 | CILSA, CILSA V50 I2 2017

Revocation of citizenship in the face of terrorism

Authors NR Motaung

ISSN: 2522-3062
Affiliations: Senior State Advocate in the Specialised Commercial Crimes Unit of the National Prosecuting Authority of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 2, p. 214 – 229

Abstract

This contribution deals with the revocation of citizenship as a preventative measure against terrorism and offers an exposition of the appropriateness of the practice and its conformity with international human-rights law.

A comparative study of the development of competition/antitrust laws with regard to the treatment of dominant firms

by | Oct 1, 2019 | CILSA, CILSA V50 I2 2017

A comparative study of the development of competition/antitrust laws with regard to the treatment of dominant firms

Authors Phumudzo S Munyai

ISSN: 2522-3062
Affiliations: Associate professor, College of Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 2, p. 196 – 213

Abstract

The majority of the decisions by competition authorities and by the courts, as well as academic commentary in modern competition law have embraced an interpretation and enforcement approach to competition rules that appears generally tolerant and welcoming towards firms that are dominant in markets. This is encapsulated by the oft-quoted mantras in modern competition-law enforcement that the mere acquisition of dominance is not unlawful and that no firm should be punished for the mere reason of its dominance, as it is only the abuse of a dominant market status that is prohibited. However, historically, antitrust enforcers and commentators have not exactly rolled out the red carpet for dominant firms. A study of the historical development of competition law overwhelmingly shows that the origin and development of competition law has its roots in the widespread hostility that existed towards dominant firms. This hostility towards dominant firms can, in some cases, still be seen in modern competition law.

Credit bureaus in South Africa and Namibia: A comparative analysis of the regulatory frameworks evaluated against the World Bank’s principles for credit reporting-Part I

by | Oct 1, 2019 | CILSA, CILSA V50 I2 2017

Credit bureaus in South Africa and Namibia: A comparative analysis of the regulatory frameworks evaluated against the World Bank’s principles for credit reporting-Part I

Authors André Boraine, Jani van Wyk

ISSN: 2522-3062
Affiliations: Dean, Faculty of Law, University of Pretoria; Doctoral candidate under the auspices of the ABSA Chair in Banking Law in Africa, Department of Mercantile Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 2, p. 147 – 195

Abstract

Over the years, the South African and Namibian systems have faced challenges relating to credit-information dissemination and, in view of the importance of credit information and credit-information arrangements, it is necessary to consider, evaluate, and compare the jurisdiction-specific measures in order to address identified challenges. We analyse and compare the current frameworks of the two jurisdictions in order to highlight differences. We discuss the World Bank reports on ‘the Observance of Standards and Codes’ for South Africa and Namibia and the ‘General Principles for Credit Reporting’ as general, principled frameworks for the regulation of consumer-information. This is followed by a comparison of the South African and Namibian structures as frameworks with specific structural and substantive features. The discussions focus on the South African National Credit Act 34 of 2005, the South African Protection of Personal Information Act 4 of 2013 and the Namibian Credit Bureau Regulations of 2014. Our aim is to investigate the improvements effected by the systems, the reasons behind these adaptions and, ultimately, the lessons that can be learnt from each jurisdiction.

The recent global financial crisis: delinking security-protectionism and relinking fraudulent misrepresentation in MNCs and the global market-contending existing issues in international law and international relations

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

The recent global financial crisis: delinking security-protectionism and relinking fraudulent misrepresentation in MNCs and the global market-contending existing issues in international law and international relations

Authors Brian Ikejiaku

ISSN: 2522-3062
Affiliations: Senior Lecturer in law Coventry University, United Kingdom
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 442 – 467

Abstract

The global financial crisis that started in the late 2000s incited a heated debate in academic circles with divergent viewpoints. The view that dominated the debate between 2008 and early 2010, was politics that is protectionist-bid of the US and UK—that is, the war on terror, particularly in Afghanistan; and/or the quest for mineral-resource wealth—for example, the US invasion of Iraq. However, since mid-2010 the perspective has shifted to global business in most quarters with some crucial legal issues. This article argues that the primary problem is not that the GFC has affected businesses, but rather that the reverse is the case—the fraudulent business activities of multinational corporations (MNCs) and poor corporate-governance accountability issues, specifically fraudulent misrepresentations, are at the root of the crisis. This article examines on the one hand the impact of politics—security-protectionism—and on the other hand the implication of fraudulent misrepresentations within global business on the recent GFC. This is examined in theory and is analysed by applying such theory in practice using two brief empirical illustrative cases: the strained US-China economic relations and the Euro-zone crisis; as well as other examples, such as Lehman, Enron, Anderson, Mediaset and Mahindra.

New directions by the Panel in Russia-Commercial Vehicles and the implications for South African anti-dumping investigations

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

New directions by the Panel in Russia-Commercial Vehicles and the implications for South African anti-dumping investigations

Authors Gustav Brink

ISSN: 2522-3062
Affiliations: Extraordinary Lecturer: Mercantile Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 417 – 441

Abstract

A World Trade Organisation (WTO) Panel recently issued its report in the Russia—Commercial Vehicles matter. It made some interesting decisions, deviating from earlier decisions on the same topic by other Panels and the Appellate Body; it further diluted the requirement of establishing a causal link between dumped imports and the injury experienced by the domestic industry; and it strengthened earlier panels’ findings on issues, such as the requirement to inform all interested parties of the essential facts under consideration in an anti-dumping investigation. This article considers seven key findings in the report, compares them with the requirements of the WTO Anti-Dumping Agreement and, where applicable, previous Appellate Body and Panel reports, and then considers what each finding means for anti-dumping in South Africa. It concludes that South Africa’s anti-dumping system fails to meet its WTO obligations in several respects and that there is a need to amend the Anti-Dumping Regulations.

Access to international justice in Africa: the conundrum of states’ non-compliance with judicial decisions

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

Access to international justice in Africa: the conundrum of states’ non-compliance with judicial decisions

Authors Swikani Ncube

ISSN: 2522-3062
Affiliations: Post-Doctoral Research Fellow, South African Research Chair in International Law, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 395 – 416

Abstract

Following the African Court on Human and Peoples’ Rights decision in the Atebong Denis Atemnkeng case in 2013, critics predictably focused on Article 34(6) of the Protocol Establishing the Court as far as its application is a hindrance to individuals’ access to justice on the continent. Forgotten in this discussion were the far-reaching consequences of states’ noncompliance with judicial decisions, even where individuals have direct access to international judicial organs. This article argues that, in Africa, greater threats to access to justice are posed by states’ conduct post adjudication. Using the experiences of the ECOWAS Court of Justice, the International Criminal Court and the suspended SADC Tribunal as empirical evidence, this article argues that post adjudication, states can seriously reverse the gains made by the international justice agenda. Finally, this article cautions against judicial activism as a means of seeking the extension of locus standi to individuals before the African Court on Human and Peoples’ Rights and urges contentment with the snail’s pace at which the continent’s judicial organs are evolving.

Harmonising or unifying the law applicable to international sales contracts between the BRICS states

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

Harmonising or unifying the law applicable to international sales contracts between the BRICS states

Authors Marlene Wethmar-Lemmer

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Jurisprudence, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 372 – 394

Abstract

This article seeks to investigate the harmonisation of international sales law between the BRICS states in order to foster successful trade and investment relations within this trading bloc. It is postulated that the United Nations Convention on Contracts for the International Sale of Goods (CISG) offers a good starting point for the harmonisation of substantive sales laws among the BRICS states—especially in light of the fact that three of these states are already CISG contracting states. However, harmonisation of substantive sales laws does not supersede the need to refer to the rules of private international law. Therefore, rules relating to choice of law also need to be harmonised within the BRICS grouping.

Domesticating the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities to access essential medicines: Any lessons for the SADC from Botswana?

by | Oct 1, 2019 | CILSA, CILSA V50 I3 2017

Domesticating the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities to access essential medicines: Any lessons for the SADC from Botswana?

Authors Lonias Ndlovu

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Mercantile Law, University of Venda, Thohoyandou, South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 50 Issue 3, p. 347 – 371

Abstract

The Southern African Development Community (SADC) has a high disease burden. This is largely attributed to HIV/AIDS, tuberculosis, malaria, and, most recently, life-style diseases, such as cancer and heart disease. In order for the disease burden to be reduced, access to medicines, which are usually expensive and protected by patent rights, must be improved. Access to medicines, a concept with no clear definition, is generally considered to include various dimensions, such as accessibility, affordability, acceptability and availability. In developed nations, over 70 per cent of drugs are publicly funded or reimbursed. However, in Africa, 50 to 90 per cent of pharmaceutical expenditure is funded out of pocket. This impedes access to medicines, because, in the absence of price regulations, drug prices create affordability barriers. One of the most frequently touted solutions to access to medicines is the continuing call to reform intellectual-property (IP) laws, especially patent laws, to reduce the effect of monopolistic prices charged by large pharmaceutical companies. It has been suggested that, in order for this law-reform project to yield positive results, it must be conducted in compliance with the tenets of the World Trade Organisation’s (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement by taking advantage of flexibilities, which include parallel imports, competition law, compulsory licensing, pre- and post-grant patent opposition and research exceptions. Botswana, a WTO member, has set the trend for other SADC members by courageously initiating patent-law reform in order to improve access to medicines through promulgating the Industrial Property Act of 2010. The Act incorporates most of the TRIPS Agreement flexibilities and Botswana’s experience may, therefore, offer a useful example for other SADC members. This article provides a critical appraisal of Botswana’s recent IP law-reform project directly relevant to access to medicines and identifies thematic lessons from which other SADC members may benefit.