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 II

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

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 3, p. 303 – 346

Abstract

Part I of the article dealt with the regulatory and supervisory frameworks for consumer-credit information in South Africa and Namibia. The principles developed by the World Bank were canvassed as a point of departure for evaluation of the chosen jurisdictions. In Part II, the substantive frameworks in South Africa and Namibia are investigated and the development in the two systems compared in order to learn from each other. The themes discussed are: registration or licensing of credit bureaus, the notion of consumer-credit information, obligations imposed on credit bureaus in respect of data quality and consumer rights. We also refer to some themes dealt with by the World Bank, but not in detail by the drafters of the South African and Namibian frameworks. We conclude with observations and recommendations pertaining to the article as a whole and present South Africa and Namibia as in-house examples of credit bureau regulatory drafting in these two select African jurisdictions, against the backdrop of the World Bank’s principles. As such, it may serve as case studies for other African countries.

Contractual Capacity in Private International Law: The Lizardi Rule in the Far East

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Contractual Capacity in Private International Law: The Lizardi Rule in the Far East

Authors Eesa Allie Fredericks

ISSN: 2522-3062
Affiliations: Senior Lecturer, Head of Department: Practical Business Law, Deputy Director: Research Centre for Private International Law in Emerging Countries, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 116 – 134

Abstract

This article concerns the contractual capacity of natural persons in the conflict-of-law rules in various Far Eastern jurisdictions. In particular, attention is devoted to the so-called Lizardi rule, which is based on a decision of the French Cour de cassation in 1861. The rule provides certain conditions for the application of the law of the place of contracting in addition to the relevant personal law(s). The Lizardi rule, in amended form, became part of European regional and supranational private international law. The influence of the rule is traced in the conflicts codes in force in China, Japan, Macau, Mongolia, the Philippines, South Korea, Taiwan, Thailand and Vietnam. The various arrangements in these codes are compared to the original formulation of the rule in the Lizardi case, and with its amended form in the Rome Convention and the Rome I Regulation on the Law Applicable to Contractual Obligations. The author submits that the arrangement in the South Korean Conflict of Laws Act is the most preferable in this regard, as it constitutes a commendable via media between the interests of the incapacitated party and the capable contractant.

Class Action Settlements: Issues and the Importance of Judicial Oversight

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Class Action Settlements: Issues and the Importance of Judicial Oversight

Authors Estelle Hurter

ISSN: 2522-3062
Affiliations: Professor of Law, Department of Criminal and Procedural Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 97 – 115

Abstract

Like ordinary civil matters, most class actions settle before trial. However, unlike ordinary civil matters, the representative nature of the class action and the consequential risk of collusive practices to the detriment of the absent group members, have led the leading class action jurisdictions to require court approval of all settlements. Various criteria have been developed (mainly by courts) in order to assess whether a proposed settlement meets the required fairness standard. This article briefly examines the concerns regarding collective settlements; the various sets of criteria used by leading class action jurisdictions; and presents a set of criteria for possible consideration and adoption by South African courts when in future confronted by the need to develop local assessment criteria.

Spotlight on the Guardians of the Gatekeepers: An Assessment of the Judicial Service Commission of Malawi

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Spotlight on the Guardians of the Gatekeepers: An Assessment of the Judicial Service Commission of Malawi

Authors Mwiza Jo Nkhata

ISSN: 2522-3062
Affiliations: Associate Professor of Law, University of Malawi and Research Fellow, Free State Centre for Human Rights, University of the Free State
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 66 – 96

Abstract

The judiciary is commonly regarded as the gatekeeper of democracy and constitutionalism. In Malawi, the work of the judiciary must be appreciated closely with the powers and functions of the Judicial Service Commission (JSC). While precise connections have yet to be fully unravelled, it is clear that the JSC or any other body, however named, that manages appointments and discipline of judges, can influence the quality of a judiciary. By focussing on the JSC, the article demonstrates that the JSC has remained dormant, especially in terms of elaborating on the framework governing its operations. The article focuses specifically on the composition and legal status of the JSC; the record of the JSC in maintaining discipline among judicial officers; the accountability of the JSC in its operations and the role of the JSC in the appointment of judges and the maintenance of judicial independence. It is the article’s conclusion that these aspects of the work of the JSC are in dire need of reform. Building on a comparative expose, the article recommends that legislation should be adopted to clarify the duties and operations of the JSC; that there should be enhanced transparency and accountability in the operations of the JSC; that greater administrative support be rendered to the JSC; and that the composition of the JSC be altered to increase its size and diversity.

Protection of Internally Displaced Persons in Kenya under the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012: An Appraisal

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Protection of Internally Displaced Persons in Kenya under the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012: An Appraisal

Authors Laurence Juma

ISSN: 2522-3062
Affiliations: Professor of Law, Rhodes University
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 44 – 64

Abstract

This article discusses Kenya’s Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012, which is among the very few national legislations globally that addresses the plight of internally displaced persons. While it records the momentous achievement in creating a viable and legally enforceable legislative framework for the protection of IDPs, the article highlights some of the areas that could be improved for the Act to realise its promise. It notes for example the inchoate manner in which institutions are created and the lack of resources. The article while isolating these challenges also suggests numerous ways in which such challenges can be overcome. It underscores the need for harmonised legal regimes, improvement of data collection and proper monitoring programmes, all which can be achieved and strengthened by a supportive political establishment as well as strategic amendments to various provisions of the Act.

The Prohibition of Child Slavery in South Africa, Uganda and Zimbabwe: Overcoming the Challenges of Implementation of Legislation

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

The Prohibition of Child Slavery in South Africa, Uganda and Zimbabwe: Overcoming the Challenges of Implementation of Legislation

Authors Rufaro Audrey Mavunga

ISSN: 2522-3062
Affiliations: Institute for Dispute Resolution, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 19 – 43

Abstract

The elimination of child slavery is a priority in many international instruments today. This article investigates the extent to which South Africa, Uganda and Zimbabwe comply with international instruments to which they are party. It therefore compares and contrasts the different legislative provisions that prohibit child slavery in South Africa, Uganda and Zimbabwe. The municipal laws of these countries in some cases do not always reflect the principles and standards of international law. The research subsequently prompts the reformulation or refinement of some laws. In other instances, legislation adequately prohibits child slavery, but the law is ineffectively enforced. These states face challenges with the enforcement of legislation and this article further investigates some of the problems faced with regard to the implementation. Furthermore, this article also proposes practical ways in which states can effectively overcome the challenges they face in enforcing such laws.

Deferrals of Investigations and Prosecutions in the International Criminal Court

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Deferrals of Investigations and Prosecutions in the International Criminal Court

Authors Johan D van der Vyver

ISSN: 2522-3062
Affiliations: IT Cohen Professor of International Law and Human Rights, Emory University, School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 1 – 18

Abstract

In its efforts to stifle the prosecution of Sudanese President Omar al-Bashir from prosecution in the ICC, the AU has appealed to the Security Council of the United Nations to order the deferral of proceedings against the accused within the confines of Article 16 of the ICC Statute. The AU has also submitted a proposal for the amendment of Article 16 of the ICC Statute. The proposed amendment would: (a) authorise states with jurisdiction in a particular situation to request the Security Council to use its Article 16 powers; and (b) grant the power to defer proceedings in the ICC to the General Assembly in cases where the Security Council, within a period of six months, fails to take action under Article 16. The fact, though, is that Article 16 was inserted into the ICC Statute to avoid a conflict of interest between the Security Council and the ICC in cases where both institutions are seized with investigations into the same situation. The Security Council could not use its Article 16 powers in the case against al-Bashir because it was not engaged in an investigation into the situation in Darfur. The proposed amendment of the ICC Statute is in total conflict with the true meaning of Article 16 as reflected in the history and purpose of its creation.

Student (K-12) Data Protection in the Digital Age: A Comparative Study

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Student (K-12) Data Protection in the Digital Age: A Comparative Study

Authors Kai Feng, Sylvia Papadopoulos

ISSN: 2522-3062
Affiliations: Bachelor of Law; Deputy Director and Associate Professor of America-China Law Institute, China University of Political Science and Law; Senior Lecturer University of Pretoria and Chair of the Law Schools Global League: New Technology and the Law Research Group
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 261 – 287

Abstract

Schools have traditionally aggregated student education records themselves, in written formats and with relatively unsophisticated systems. However, today the amount of record keeping has increased and schools are ever more reliant on third-party operators, who compile information and operate databases systematically and more efficiently. These and other factors have opened opportunities for private vendors to access student data and to share it with others. In addition, schools now routinely incorporate various forms of digital technology in the form of educational software, teaching aids, websites, and programmes that provide connected devices to each student, allowing and encouraging teachers to incorporate technology into their lessons. By its very nature, the internet is a marketing information-sharing environment and the potential for traceability exists whenever the students are engaged in online activities. With these advances and developments, data security and other concerns become of paramount importance. Among the issues that have been raised are issues such as how can the legal system engage in harm reduction? Which legal approach is appropriate? What is the scope of student data that the law should protect? To what extent should schools and operators be held accountable for compliance? How do regulators maintain the balance between the need for student data protection and other interests? To date, proponents of new technology have given insufficient answers to these questions. This comparative study aims to find common strengths in different approaches to these issues relating to student data protection, while at the same time considering cultural and legal differences that exist among the following jurisdictions: the United States (US), the European Union (EU), China, and South Africa.

Intervening for Democracy: The Threat or Use of Force and Crisis in The Gambia

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Intervening for Democracy: The Threat or Use of Force and Crisis in The Gambia

Authors Andrew G Jones

ISSN: 2522-3062
Affiliations: Master’s degree in International Law from Bangor University, UK; PhD candidate of China University of Political Science and Law
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 241 – 260

Abstract

The recent constitutional crisis in the West African state of the Republic of The Gambia saw the incumbent president of the state refuse to relinquish power after he was defeated in a democratic election. While political means were ultimately successful, the early response to the crisis involved the threat of force, which was held over the state throughout the situation and was ultimately carried out by the involved nations. Despite the lack of bloodshed and actual conflict, this resort to the threat and use of force was not in keeping with the accepted prohibitions contained in the United Nations Charter system and international law. This article seeks to outline how the international response to the crisis in The Gambia was a breach of international law in an attempt to impose the will of other states upon the internal political workings of another under the moral justification of the defence of democracy. Further, it will show that the prohibition of the threat or use of force established by the UN Charter system does not make room for force to stand as a stick with which to guarantee democratic freedoms.

The Rule of Law and Integrity: Appraising the Place and Role of Anti-Corruption Standards in the Fight against Corruption within the Central African Economic and Monetary Community

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

The Rule of Law and Integrity: Appraising the Place and Role of Anti-Corruption Standards in the Fight against Corruption within the Central African Economic and Monetary Community

Authors Caroline J Nwabueze, Diane Pofinet

ISSN: 2522-3062
Affiliations: Post-Doctorate Research Fellow at the South African Research Chair in Law, Society and Technology, University of South Africa, and Africa Chairperson of Advocates International Rule of Law and Integrity Task Force; Attorney at law and member of the Chad Bar Association
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 207 – 240

Abstract

The Central African Economic and Monetary Community (CEMAC) is an organisation of states of the central Africa sub-region that aims to promote economic integration among member states. Notwithstanding the plausible aims and laudable objectives that gave rise to CEMAC, its member states have not been exempted from the syndrome of corruption. Corruption represents a fundamental catalyst to developmental endeavours of governments at various levels of governance. To enable the fulfilment of its primary objectives, CEMAC has adopted several anti-corruption legal instruments. Paradoxically, years after the implementation of these laws, corruption indexes have continually portrayed CEMAC nations as taking the lead in the hierarchy as the most corrupt nations in Africa and the world at large. This article examines the place and role of CEMAC as regional regulator of economic development in the fight against corruption within its member states. First, this article reviews the legal anti-corruption framework in CEMAC and other regional anti-corruption treaties in Africa. Does corruption now not make a mockery of the purpose of CEMAC as well as raising questions as to why CEMAC was conceived and has not yet delivered? The article underlines the growing number of corruption cases and reports within CEMAC to illustrate this. Second, the article analyses the existence of constraints on member countries of CEMAC in relation to corruption. Anti-corruption enforcement proceedings are reviewed as well as the legal incentives for local governance integrity. Third, the article scrutinises the value added by the CEMAC Treaty within the sub-region over the African Union anti-corruption instrument and concludes with recommendations for a sustainable link between the rule of law and fight against corruption in CEMAC member states.