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.

Can ownership of reproductive material be transferred?

Can ownership of reproductive material be transferred?

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

NOTES

Can ownership of reproductive material be transferred?

Author: Donrich Thaldar

ISSN: 1996-2177
Affiliations: Professor of Law, University of KwaZulu-Natal; Visiting Scholar, Petrie-Flom Center, Harvard Law School
Source: South African Law Journal, Volume 140 Issue 3, p. 495-504
https://doi.org/10.47348/SALJ/v140/i3a3

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Thaldar, D
Can ownership of reproductive material be transferred?
South African Law Journal, Volume 140 Issue 3, p. 495-504 https://doi.org/10.47348/SALJ/v140/i3a3

Abstract

Regulation 18 of the Regulations Relating to the Artificial Fertilisation of Persons provides for an ownership scheme in reproductive material — eggs, sperm and embryos — outside the human body. Within this regulatory scheme, the following question is pertinent: can ownership of reproductive material, once acquired in terms of reg 18, be transferred to someone else? To answer this question, reg 18 is analysed using well-established tools of statutory interpretation. The conclusion drawn is that a broad interpretation of reg 18 should be followed that allows for the transfer of ownership. Attention is drawn to case law that contradicts this conclusion, but it is shown that the rationale for the relevant decision lacks any depth. Accordingly, the decision should urgently be challenged in the public interest.

In defence of the Pretoria Crits

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

NOTES

In defence of the Pretoria Crits

Author: Emile Zitzke

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 3, p. 505-520
https://doi.org/10.47348/SALJ/v140/i3a4

Abstract

This note acts as a reply to the critique levelled at the Pretoria Crits by Willem Gravett in two articles published in 2018. The note begins by summarising Gravett’s objections to the Pretoria Crits’ views about the South African legal system and the teaching of law in South African universities. Thereafter, errors of argument are identified that undermine, or are even destructive of, Gravett’s critique. In the course of his five-part rebuttal, the author remedies certain misconceptions about the Pretoria Crits’ views and beliefs. He also identifies how the Pretoria Crits have made important critical contributions to a broader understanding of the nature of South Africa’s legal system and the challenges of teaching law in a transforming society.

Exploring the idea that increasing profits is a legitimate operational requirement: Revisiting a twenty-year-old impulse

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

Exploring the idea that increasing profits is a legitimate operational requirement: Revisiting a twenty-year-old impulse

Authors: Bhavna Ramji, Jeremy Phillips & Ihsaan Bassier

ISSN: 1996-2177
Affiliations: Institute for Poverty Land and Agrarian Studies, University of the Western Cape; Director, Cheadle Thompson & Haysom Inc; Associate, Cheadle Thompson & Haysom Inc; Centre for Economic Performance, London School of Economics and Political
Science; Southern Africa Labour and Development Research Unit, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 3, p. 521-549
https://doi.org/10.47348/SALJ/v140/i3a5

Abstract

This article is intended as a catalyst to re-open a debate that was closed perfunctorily and prematurely in the 2000s: is increasing the profits of an already profitable company an operational requirement for purposes of the LRA? We review key retrenchment judgments in these scenarios over the past 20 years and advance two main arguments. First, the debate should be re-opened because the current position that increasing profits is an operational requirement for purposes of the LRA is based on obiter remarks that have been elevated, without in-depth inquiry, to the position of binding authority. Secondly, if the debate is re-opened, there are compelling reasons why increasing profits of an already profitable company should not constitute an operational requirement. To this end, we employ an interdisciplinary approach that combines legal and economic knowledge and demonstrates that, despite earlier opinions, the current position is destructive to the LRA, the position unduly favours employers, and the judicial and scholarly assumptions about the effects of increasing company profits are not always economically correct. Ultimately, we argue that courts’ approach to retrenchments in the case of already profitable companies must be revisited with less deference to employers and with an openness to exploring different understandings of the definition of operational requirements in the LRA.