The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

by | Aug 20, 2023 | FUND, FUND V29I1

The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

Author Gerda van Niekerk

ISSN: 2411-7870
Affiliations: BComm LLB LLD (UP). Senior lecturer, Department of Mercantile Law, University of Limpopo
Source: Fundamina, Volume 29 Issue 1, p. 80-109
https://doi.org/10.47348/FUND/v29/i1a4

Abstract

The debate continues about whether the South African Reserve Bank should be nationalised or not. This contribution looks at the evolution of central banks, as well as at the origin and historical background of the central banks in three countries, namely the South African Reserve Bank, the Reserve Bank of Australia and De Nederlandsche Bank. The shares in the South African Reserve Bank belong to private shareholders; the Reserve Bank of Australia has been the property of the government of Australia since its inception; and De Nederlandsche Bank was nationalised in 1948. The potential nationalisation of the South African Reserve Bank will come with a hefty price tag, as the shareholders will have to be compensated for the value of their shares. Section 224 of the Constitution of the Republic of South Africa, 1996 determines that the South African Reserve Bank should “protect the value of the currency in the interest of balanced and sustainable economic growth”. The constitutional power of the Bank to be responsible for monetary policy will not change if it is nationalised. This contribution recommends that the South African Reserve Bank not be nationalised due to the big cost thereof to South Africa and because not much will be achieved by such a step.

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

The Law Applicable to Tortious Liability: a Comparative Analysis of Article 4 of The Rome II Regulation and Private International Law in Ghana

Authors: Michael K Quartey, Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: BA LLB BL (Ghana) LLM (University of Johannesburg); Legal Associate: Ankomah Mensah
& Associates, Ghana; BA LLB (Ghana) LLM LLD (University of Johannesburg); Senior Postdoctoral Research
Fellow, Centre for International and Comparative Labour and Social Security Law (CICLASS), Faculty of Law, University of Johannesburg, South Africa; Research Associate, Research Centre for Private International Law in Emerging Countries (RCPILEC), Faculty of Law, University of Johannesburg, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 1 – 40
https://doi.org/10.47348/JCLA/v10/i1a1

Abstract

The law applicable to tortious liability involving a foreign element has become one of the most vexed questions in private international law. This can be attributed to technological advancements and the movement of people and goods across state lines. Accidents involving a foreign element are, therefore, reasonably foreseeable. Torts such as online defamation, accidents involving self-driving vehicles, and other technological acts involving a foreign element have heightened the possibility of cross-border torts. Considering the complexities associated with cross-border torts, the European Union (EU) has enacted the Rome II Regulation. The overarching objective of enacting the Rome II Regulation is to promote certainty and predictability when dealing with cross-border disputes, irrespective of the country of the court in which an action is brought in the EU. Conversely, Ghana relies on the broadly drafted section 54 of the Courts Act 459 of 1993 and common law principles of private international law to determine the aspects of choice of law. This has made the position in Ghana very uncertain and unpredictable due to the broad discretion given to courts under section 54 of the Courts Act, particularly in determining the law applicable to cross-border tort cases. Also, Ghanaian courts have applied the much-criticised double actionability rule to determine the rights and obligations of parties in cross-border tort cases. In light of the uncertain and unpredictable nature of Ghanaian law, some academics have suggested that Ghana adopt the traditional rule to determine the applicable law in torts. This article seeks to critically analyse the applicability of article 4 of the Rome II Regulation regarding non-contractual liabilities. The article compares how courts in EU member states have applied article 4 to determine the applicable law in torts, to how the Ghanaian courts use private international law rules to determine the applicable law in torts. The essence of the comparison is to ascertain whether Ghana can draw some legislative and judicial lessons from the position under article 4. In addition, the significance of the comparison is to determine whether the approach under the Rome II Regulation can serve as a basis for legal reforms in Ghana. Most importantly, the article explores the extent to which the legal approach under the EU law can bolster judicial certainty and predictability in Ghanaian law.

Contracts for the Sale of Goods: Passing of Property in Goods Under the Law of the United Kingdom and Ghana

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

Contracts for the Sale of Goods: Passing of Property in Goods Under the Law of the United Kingdom and Ghana

Author: Prince Obiri-Korang

ISSN: 2521-2605
Affiliations: BSc LLB (Cape Coast) PLT LLM LLD (Johannesburg). Senior Postdoctoral Research Fellow, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 41 – 57
https://doi.org/10.47348/JCLA/v10/i1a2

Abstract

A contract for the sale of goods is the most commonly used transaction domestically and at international level. Regardless of its relevance, there has been a wide variation in the concept of “sale” has existed in the course of legal history across the various legal systems of the world. Although a sales transaction may be rightly described as the most universal transaction, it is pertinent to point out that there is very little agreement on one of the transaction’s most fundamental incidents, which is the “passing of property”. In most legal systems, aside from the generally established rule on when the property in goods may pass from a buyer to a seller, property in goods can also pass at any time depending on the circumstances or terms of the relevant contract. Despite the above proposition, it is important for all persons who engage in a sale transaction to have an understanding as to when the property in the goods that they intend to purchase or that they have purchased passes from the seller to them. This article primarily focuses on when property passes in a sale contract in the legal systems of the UK and Ghana. This is relevant because when a buyer enters a sale contract, it is the property in the goods that they bargain for and not the use or mere possession or any other aspect of ownership.

Evaluating the Significance of Mandatory Offers in Contemporary Corporate Finance

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

Evaluating the Significance of Mandatory Offers in Contemporary Corporate Finance

Author: Justice Mudzamiri

ISSN: 2521-2605
Affiliations: LLB (Fort Hare) LLM (University of Johannesburg) LLD (Fort Hare). Postdoctoral Research Fellow, Department of Commercial Law, University of Cape Town, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 58 – 82
https://doi.org/10.47348/JCLA/v10/i1a3

Abstract

If a regulated company reacquires its voting securities in terms of section 48 of the Companies Act 71 of 2008 (2008 Act) or if a person, together with related persons who held less than 35 per cent voting rights before the acquisition attain 35 per cent of voting rights after the acquisition, they must offer to purchase the remaining securities within a prescribed period. Transactions that force the acquirer to offer the remaining securities holders acquisition of their securities as contemplated above are referred to as mandatory offers. Academics debate whether to retain or dispense with mandatory offers in corporate finance law. They question the rationales for mandatory offers. For instance, some academics argue that mandatory offers inhibit investment. The rationale of using mandatory offers to pursue equal treatment of securities holders is also challenged for being incompatible with generally accepted company law principles. It is within this context that this article seeks to reinforce the pertinence of mandatory offers in the South African takeover regulation regime. Mandatory offers are of practical relevance and important to achieve equal and fair treatment of the securities holders of a similar class in line with the overarching objectives of the 2008 Act read together with the Takeover Regulations, 2011 (2011 Regulations). Mandatory offers also protect minority shareholders from being forced to retain their investments in a company that has significantly shifted its securities holding control. This article suggests some amendments to the existing provisions of the 2008 Act to reinforce the functional purposes of mandatory offers.

From Subsistence to Commercialisation: Legal Implications of ‘Ecowas Regulations on Transhumance’ on Livestock Investment Options

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

From Subsistence to Commercialisation: Legal Implications of ‘Ecowas Regulations on Transhumance’ on Livestock Investment Options

Author: Jane Ezirigwe

ISSN: 2521-2605
Affiliations: LLB (Hons.) (Abuja) LLM (London) MBA (EBS) PhD (UCT); Senior Research Fellow, Nigerian Institute of Advanced Legal Studies
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 83 – 132
https://doi.org/10.47348/JCLA/v10/i1a4

Abstract

West Africa is expected to experience rapid population growth with a projected population of 796,494,188 in 2050, most of whom will be unemployed youths in quest of job and business opportunities. The increasing growth in population with an increasing demand for livestock products and a ready workforce presents exciting opportunities for investment in livestock production, job creation, poverty reduction, and food security. Nonetheless, private investment may not happen in a form that will achieve these gains if the ECOWAS texts are left in their current form, in promoting the transhumance business model to the detriment of meaningful large-scale investments that will increase productivity and create jobs for the region’s booming young population. This article adopts a socio-legal approach to examine the ECOWAS Decision and Regulation on Transhumance in order to determine whether they have adequately promoted transhumance in a form that is not inimical to other business investment options for livestock production in the region. Its aim is to show that the regulatory framework has not effectively ensured that transhumance exists in a form that will still provide other business models with opportunities to competitively engage in livestock production. This is given the fact that the transhumance method has been commercialised and even criminalised in ways that produce significant negative consequences for the livestock business. It recommends concrete plans with a view to phasing out transhumance across borders and designating rangelands in semi-arid areas of the region.

Towards an Appropriate Legal Framework for Sustainable Management and Disposal of Plastic Waste in Nigeria: Lessons from Other Jurisdictions

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

Towards an Appropriate Legal Framework for Sustainable Management and Disposal of Plastic Waste in Nigeria: Lessons from Other Jurisdictions

Author: Izuoma Egeruoh-Adindu

ISSN: 2521-2605
Affiliations: BL LLB LLM: Senior research fellow Nigerian Institute of Advanced Legal Studies
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 103 – 132
https://doi.org/10.47348/JCLA/v10/i1a5

Abstract

Plastic pollution from unsustainable management and disposal of plastic waste on land and in the marine environment is a very serious problem. Statistics indicate that more than one million plastic bags are used every minute, and approximately 500 billion plastic bags are used annually worldwide. This phenomenon has raised global concern leading to the adoption of measures by countries, including legislation to mitigate plastic waste pollution in the environment. Employing desk-based research methodologies, this paper examines the problems associated with the indiscriminate disposal of plastic waste in Nigeria. The paper argues that the extant legal framework on the management of solid wastes is ineffective, too general and does not take cognisance of the peculiarities and environmental hazards associated with plastic waste. The paper concludes that an appropriate legal framework complemented by effective enforcement mechanisms that target plastic waste management and sustainable disposal are required to address the problem. This paper, therefore, calls for the passage of the Plastic Bag (Prohibition) Bill of 2018 before the National Assembly and the effective implementation of the recommended measures aimed at ensuring environmentally-friendly disposal of plastic waste in Nigeria.

Traditional Justice Systems in the Nigerian Administration of Justice: Lessons from Kenya

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

Traditional Justice Systems in the Nigerian Administration of Justice: Lessons from Kenya

Author: Abdulrazaq Adelodun Daibu

ISSN: 2521-2605
Affiliations: Senior Lecturer, Department of Private and Property Law, Faculty of Law, University of Ilorin, Ilorin. Nigeria
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 133 – 168
https://doi.org/10.47348/JCLA/v10/i1a6

Abstract

The Nigerian administration of justice is facing many challenges such as congestion of cases in the courts, delays in the prompt resolution of cases, corruption in the formal justice system, a punitive and retributive approach to crime with little or no room for restitution and reparation of victims of crimes, as well as the adversarial, hostile, and technical nature of litigation. Although the federal government and some states have made efforts in respect of criminal matters by the enactment of the Administration of Criminal Justice Act (ACJA) and Administration of Criminal Justice Laws (ACJL) traditional justice systems can effectively ameliorate these challenges in the resolution of both civil and criminal matters. However, the potential benefits of the effective application and operation of traditional justice systems in Nigeria are hindered by their restriction to civil disputes, the lack of a clear and specific legal and policy framework, scant regard for procedural justice, inadequate or lacking of enforcement mechanisms and a retributive and punitive approach of the criminal justice system. This article analyses the nature of the Nigerian traditional justice systems and their relationship with alternative dispute resolution (ADR) mechanisms to see how ADR could complement the Nigerian administration of justice. The article further examines the challenges of the Nigerian administration of justice and the practice of traditional justice systems in Kenya to draw lessons for Nigeria. The article argues that the reconciliatory and restorative focus of tranditional justice systems could help resolve some of the challenges facing the Nigerian administration of justice. The article suggests legal, policy, and institutional reforms and their integration for effective application in Nigeria.

Examining the Propriety of Section 84(1) of the Sheriffs and Civil Process Act of Nigeria from the Lens of the Supreme Court’s Decision in Central Bank of Nigeria V Insterstella Com Ltd

by | Aug 14, 2023 | JCLA, JCLA V10 I1 2023

Examining the Propriety of Section 84(1) of the Sheriffs and Civil Process Act of Nigeria from the Lens of the Supreme Court’s Decision in Central Bank of Nigeria V Insterstella Com Ltd

Authors: David Tarh-Akong Eyongndi, Oluwakemi Oluyinka Odeyinde

ISSN: 2521-2605
Affiliations: LLB (Hons) UNICAL, LLM (Ibadan), BL, Assistant Professor, College of Law, Bowen University, Iwo, Osun State, Nigeria; LLB (Hons) Ibadan, LLM (UNILAG), BL Lecturer Centre for Foundation Education, Bells University of Technology, Ota, Ogun State
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 169 – 189
https://doi.org/10.47348/JCLA/v10/i1a7

Abstract

Where a person has litigated a case against anybody or the government and judgment is given in monetary value, where the judgment debtor fails to voluntarily settle the judgment sum, the judgment creditor must enforce the judgment. In enforcing the judgment which is usually via garnishee proceedings, the Sheriff and Civil Process Act (SCPA) provides that the consent of the Attorney General (AG) must be sought and obtained once the funds to be used in satisfying the judgment are in the possession of the public officer. This paper, while underscoring the rationale for this prerequisite, examines its propriety vis-à-vis the finality of a court judgment, by adopting doctrinal methodology. It raises the question that since the AG’s consent is to be sought and same can be denied, what option, if any, is open to a person after such denial? Can a mandamus be used to compel the AG to consent, seeing that the giving of consent is not a duty to be performed but a discretion? The paper argues that this practice amounts to subjugating the implementation of Court’s determination/decision to the discretion of the AG which is inimical to the smooth delivery of justice. It may undermine the sanctity of court’s pronouncements as well as democracy. Therefore, the paper calls for the abolition of this practice as way forward.

Murder and fraud for inheritance: Smit v The Master of the High Court, Western Cape

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

NOTES

Murder and fraud for inheritance: Smit v The Master of the High Court, Western Cape

Author: Mohamed Paleker

ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 3, p. 465-480
https://doi.org/10.47348/SALJ/v140/i3a1

Abstract

In South African law, a beneficiary may be disqualified from inheriting for killing the deceased, forging the deceased’s will, or acting in a morally reprehensible manner towards the deceased. In Smit v The Master of the High Court, Western Cape [2022] 4 All SA 146 (WCC), the court disqualified a wife from inheriting from her deceased husband because she had conspired to kill him. The court also disqualified her for forging his testamentary documents and his mother’s will. In addition, the court held that she was not entitled to claim maintenance and other benefits from his estate. This note critically evaluates the theoretical underpinnings of the court’s findings, with regard to the facts and the evidence in the case.

A call for specialised foreclosure courts and a separate foreclosure roll — An analysis of South African Human Rights Commission v Standard Bank of South Africa Ltd (CC)

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

NOTES

A call for specialised foreclosure courts and a separate foreclosure roll — An analysis of South African Human Rights Commission v Standard Bank of South Africa Ltd (CC)

Author: Ciresh Singh

ISSN: 1996-2177
Affiliations: Associate Professor, University of South Africa
Source: South African Law Journal, Volume 140 Issue 3, p. 481-494
https://doi.org/10.47348/SALJ/v140/i3a2

Abstract

In South African Human Rights Commission v Standard Bank of South Africa Ltd 2023 (3) SA 36 (CC), the Constitutional Court held that a bank is not obliged to take a foreclosure matter to the magistrate’s court, even if the magistrate’s court has jurisdiction over the matter. The apex court confirmed that a court is not entitled to decline to hear a matter properly brought before it because another court has concurrent jurisdiction. Before this decision, the Gauteng and Eastern Cape Divisions of the High Court both found that the High Court was entitled to decline to hear a matter if the matter fell within the jurisdiction of a magistrate’s court. These decisions were taken on appeal to the Supreme Court of Appeal, which upheld the appeal and found that the High Court has no power to refuse to hear a matter falling within its jurisdiction on the ground that another court has concurrent jurisdiction. The Constitutional Court has now confirmed the decision by the Supreme Court of Appeal, finding that complex matters such as foreclosure applications deserve more judicial scrutiny, and ought to be heard by the High Court.