Presence as a Ground for Jurisdiction in Common Law Africa

by | Aug 3, 2025 | JCLA, JCLA V12 I1 2025

Presence as a Ground for Jurisdiction in Common Law Africa

Authors: Thomas Kojo Quansah and Theophilus Edwin Coleman

ISSN: 2521-2605
Affiliations: LLB (Ghana) LLM (UJ); Lecturer, Law School, University of Professional Studies, Accra, Ghana; Visiting Assistant Professor of Law, University at Buffalo School of Law, New York (USA); Senior 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 12 Issue 1, p. 103 – 145
https://doi.org/10.47348/JCLA/v12/i1a3

Abstract

Before rendering a binding judgment against a party, a court must have personal jurisdiction over that party. Courts may assume jurisdiction over a person in various ways. The oldest and most contentious method is the personal service of the defendant with the court process while they are present in the state. This basis is known as the mere presence, temporary presence, or physical presence rule, which originates from English common law. Under common law, the defendant’s presence within the court’s jurisdiction remains one of the primary bases for the court to assume jurisdiction over a civil action. The physical presence grounds for jurisdiction have recently faced significant challenges and criticisms from some scholars. Others contend that it is still relevant, primarily for the reasons behind its original justification. There is also the question of how the presence of a legal person is determined for establishing a court’s jurisdiction. Considering the foregoing, re-examining presence as a ground for jurisdiction appears warranted. This article, therefore, investigates presence as a basis for jurisdiction, its history, and the presence of natural and legal persons. Given the various common law countries with somewhat divergent approaches, a comparative study of relevant countries will be conducted, leading to pertinent observations, remarks, and recommendations regarding the way forward. With recent technological developments and advancements in common law African countries, this article explores whether the presence doctrine is an appropriate tool for courts to exercise jurisdiction.

Towards an Enabling Regulatory Environment for Fintech Startups in Africa: Lessons From Nigeria

by | Aug 3, 2025 | JCLA, JCLA V12 I1 2025

Towards an Enabling Regulatory Environment for Fintech Startups in Africa: Lessons From Nigeria

Author: Albert Chris Puja

ISSN: 2521-2605
Affiliations: LLB (Unizik), LLM cum laude, LLD (UWC)
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 146 – 189
https://doi.org/10.47348/JCLA/v12/i1a4

Abstract

This article examines how regulatory environments in Africa can be reformed to support fintech startups better, using Nigeria as a case study. Fintech startups are increasingly important in advancing financial inclusion, promoting competition and enabling innovation in African financial sectors. However, they face regulatory challenges that are sometimes overlooked in broader fintech discourse. These challenges include regulatory uncertainty, lack of tailored licensing regimes, fragmented oversight, and excessive compliance burdens. The article outlines the main elements of the regulatory environment in which fintech startups operate. These include policy frameworks, regulatory frameworks, institutional arrangements, and innovation-enabling mechanisms. It then explains how gaps in these frameworks create barriers to entry, restrict growth and increase regulatory complexity for fintech startups. The case study of Nigeria shows that, although policymakers and regulators have introduced a national fintech strategy, strengthened institutional capacity, established innovation facilitators and introduced tailored regulations, the regulatory environment remains characterised by some outdated laws, fragmented legal frameworks and flaws in regulatory co-ordination. The article proposes targeted reforms to address these issues and strengthen the regulatory environment. These proposals offer practical guidance for other African countries seeking to support their fintech startups more effectively. The article argues that an ideal regulatory environment enables fintech startups to thrive while upholding key regulatory objectives such as financial stability, financial integrity and consumer protection. Further, any reform to improve the regulatory environment must consider local conditions, including institutional capacity, resource constraints, and the maturity of the domestic fintech ecosystem.

Corporate Social Responsibility Within the Paradigm of Transformative Constitutionalism in South Africa

by | Aug 3, 2025 | JCLA, JCLA V12 I1 2025

Corporate Social Responsibility Within the Paradigm of Transformative Constitutionalism in South Africa

Authors: Tebello Thabane, Prince Mathibela and Justice Mudzamiri

ISSN: 2521-2605
Affiliations: Senior Law Lecturer, Commercial Law Department, University of Cape Town, South Africa, BA Law, LLB (National University of Lesotho), LLM (UP), LLM (UFS), PhD (UCT). Advocate of the High Court of South Africa and Lesotho; PhD candidate at Stellenbosch University Law Faculty, Commercial Law Department, Attorney of the High Court of South Africa. Legal Advisor at SouthSouth North NPC. BA, LLB (Wits), LLM (University of Cape Town); Postdoctoral Research Fellow, Department of Mercantile Law, University of Johannesburg. LLB (University of Fort Hare), LLM (University of Johannesburg), LLD (University of Fort Hare). Attorney of the High Court of South Africa
Source: Journal of Comparative Law in Africa, Volume 12 Issue 1, p. 190 – 218
https://doi.org/10.47348/JCLA/v12/i1a5

Abstract

South Africa is considered one of the most unequal societies in the world. This inequality is primarily attributed to the negative impact of apartheid on the distribution of resources. To address this issue, efforts have been made to transform society by incorporating substantive equality and transformative justice principles into the Constitution of the Republic of South Africa, 1996, related laws, and voluntary codes. The main object of this article is to investigate whether, in its current form, corporate social responsibility (CSR) has the potential to effectively deepen social transformation in South Africa or if it requires further strengthening. The article compares the approaches of South Africa and India in addressing inequality through legal tools, evaluates the strengths and weaknesses of each approach, and proposes law reform that would ensure social transformation in South Africa.

Sustainable Solid Waste Management Practices in South Africa: a Comparative Legal Analysis

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Sustainable Solid Waste Management Practices in South Africa: a Comparative Legal Analysis

Authors: Katlego Mashiane, Kola O Odeku

ISSN: 2521-2605
Affiliations: LLD Candidate, Faculty of Management and Law, University of Limpopo; Professor, Faculty of Management and Law, University of Limpopo
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 1 – 42
https://doi.org/10.47348/JCLA/v11/i2a1

Abstract

South Africa is facing increasing mismanagement of solid waste, such as illegal dumping in open areas. This mismanagement of solid waste in South Africa is an environmental issue that threatens human rights. This study analyses sustainable solid waste management practices in South Africa and draws lessons from England and Kenya focusing on solid waste management, collection and disposal. England is a developed country with advanced waste management systems, while Kenya is a developing country facing similar solid waste management challenges to South Africa’s. While South Africa has its legal framework on solid waste management, the lessons from both England and Kenya are to improve and strengthen waste management practices and enforcement in South Africa. This study deployed and used a qualitative research approach to highlight how England, Kenya, and South Africa’s legal frameworks reflect their socioeconomic conditions, environmental priorities, and governance enforcement. The findings of the study are important for policy development. The study concludes that South Africa’s legal and policy framework needs to be inclusive and enhanced for effective enforcement of sustainable solid waste management.

Incorporating Sustainable Development Principles in Africa’s Investment Treaty-Making

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Incorporating Sustainable Development Principles in Africa’s Investment Treaty-Making

Author: Mmiselo Freedom Qumba

ISSN: 2521-2605
Affiliations: LLB (WSU) LLM (International Trade and Investment Law) (UP) Lecturer at UP Mercantile Law Department, University of Pretoria
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 43 – 79
https://doi.org/10.47348/JCLA/v11/i2a2

Abstract

African states have long been critical of the international investment law regime, believing that international investment agreements (IIA) are misaligned with their sustainable development efforts. As a result, they have crafted modern IIAs to address the legitimacy crisis within the investment law regime. Despite improvements in Africa’s new, modern IIAs, some countries continue to conclude bilateral investment treaties (BITs) framed in line with older-generation agreements. An overview of the recent trends in treaty drafting shows that African countries have embraced IIAs as important tools for sustainable development. This article revisits the International Law Association ‘New Delhi Declaration of Principles of International Law’ to formulate concrete legal solutions not only as binding legal principles for investors within the African continent but also as incentive to improve sustainability through self-monitoring rather than international or domestic enforcement. This underscores the importance for treaty interpreters and drafters to carefully recognise the integration and application of a sustainable development framework. Accordingly, the article integrates lessons from African experiences and articulates the sustainable development-oriented principles and concepts that should be considered by policy makers and treaty drafters when developing new model BITs or renegotiating the old generation IIAs.

Duty to Act Provisions and Omissions Offences Under the Anti-Human Trafficking Statutes of Malawi, Uganda and South Africa

by | Jan 19, 2025 | JCLA, JCLA V11 I2 2024

Duty to Act Provisions and Omissions Offences Under the Anti-Human Trafficking Statutes of Malawi, Uganda and South Africa

Author: Martin Visuzgo Chipofya

ISSN: 2521-2605
Affiliations: LLM (Sussex), LLB (Hons) Mw, Principal Resident Magistrate (Malawi Judiciary), Part-Time Lecturer (University of Malawi)
Source: Journal of Comparative Law in Africa, Volume 11 Issue 2, p. 80 – 108
https://doi.org/10.47348/JCLA/v11/i2a3

Abstract

To effectively combat human trafficking, states have enacted domestic anti-human trafficking statutes to support the cause. Many of these statutes impose positive duties on both natural and legal persons, reinforced by criminal sanctions. The article examines the anti-human trafficking statutes of Malawi, Uganda, and South Africa, focusing on provisions that carry positive duties and, consequently, create omissions offences. It argues that while most positive duties – and the resulting offences of omission – in these statutes comply with criminal-law principles for imposing positive duties and criminalising their breach, some provisions in Malawi’s and South Africa’s anti-human trafficking statutes contain vague terms or phrases. Such terms or phrases may undermine the effective enforcement of these provisions and violate the principle of legality with respect to offences of omission resulting from non-compliance. The article further observes that while certain provisions in Uganda’s and South Africa’s anti-human trafficking statutes fail to consider the duty bearer’s capacity and opportunity to comply when imposing positive duties, these provisions are generally precise. The article argues that the benefits of precise language in an anti-human trafficking statute outweigh concerns regarding disregard for the duty bearers’ capacity and opportunity. Moreover, any consequences from this disregard can be addressed through sensitive or proactive prosecution or, where prosecution is pursued, the defence of impossibility.