Realising a ‘Right’ to Research in Nigeria and South Africa: the Role of the Executive Arm of Government

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

Realising a ‘Right’ to Research in Nigeria and South Africa: the Role of the Executive Arm of Government

Author: Chijioke Okorie

ISSN: 2521-2605
Affiliations: LLB (Nigeria); LLM (Strathclyde); PhD (Cape Town): Lecturer, Department of Private Law University of Pretoria
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 141 – 173
https://doi.org/10.47348/JCLA/v10/i2a5

Abstract

Development agendas and plans such as South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021–2025, indicate the need for, and benefits of, development research to sharpen countries’ innovative edge and to contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions allowing for the right to research. This can be in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of a right to research has been limited by a copyright legislative framework that may be challenging to interpret. Other hindrances to realising the right to research are limited access to courts for interpretation due to limited resources and also as a result of the inherent institutional limitations of courts to consider only the case pleaded by parties before them. In this environment, the role of the executive arm of government in driving the realisation of a right to research is crucial. Yet, there’s been no executive action to provide for the much-needed clarification to concretise and promote the right to research to actualise development goals. Focused on Nigeria and South Africa, this paper explores the duties imposed on the institutions of executive government and applies administrative law principles to indicate a policy toolkit within copyright statutes that may be deployed to realise a right to research and engender guidance for researchers, copyright owners, users and audience of research.

The Risk of Confusion in Trademark Infringement in South Africa and Kenya: Lessons from Singapore?

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

The Risk of Confusion in Trademark Infringement in South Africa and Kenya: Lessons from Singapore?

Authors: Yeukai Mupangavanhu and Kawake Sipelo Vuke

ISSN: 2521-2605
Affiliations: LLB (UFH) LLM LLD (UWC), Associate Professor, Department of Private Law, Faculty of Law, University of the Western Cape, Cape Town; LLB, LLM, University of the Western Cape
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 174 – 203
https://doi.org/10.47348/JCLA/v10/i2a6

Abstract

The risk of confusion in trademarks is exponentially high in light of international trade. Where identical or similar marks are used in the course of trade by different companies, this may result in consumers being confused with regard to the origin of the goods. Consumer confusion may result in the proprietor of the trademark suffering financial loss if customers start buying competitors’ goods or services. Most legal systems including those of South Africa and Kenya consequently have laws that contain provisions that seek to protect proprietors from the use of identical or similar trademarks in a manner that is likely to create deception or confusion among members of the public. The article discusses the approach to the likelihood of confusion inquiry in trademark infringement under the South African Trademarks Act 194 of 1993 and Kenya’s Trademarks Act 4 of 2002. Singapore’s step-by- step approach is examined as a best practice when assessing the likelihood of confusion in confusion-based infringement. It is argued that instead of South Africa and Kenya applying the global assessment approach, which seems to confuse and collapse the elements, a step-by-step approach should be preferred. The need to eliminate confusion when applying the elements of confusion-based infringement cannot be overemphasised in order to ensure predictability and consistency in Kenya and South Africa’s case law.

The Possible Impact of the Wilsnach V M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

The Possible Impact of the Wilsnach V M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

Author: Abduroaf Muneer

ISSN: 2521-2605
Affiliations: BA (Shariah) LLB, LLM, LLD, Associate Professor in Law, Faculty of Law, Department of Private Law, University of the Western Cape (UWC)
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 204 – 214
https://doi.org/10.47348/JCLA/v10/i2a7

Abstract

The Gauteng Division of the High Court, Pretoria handed down a judgment in Wilsnach v M [2021] 1 All SA 600 (GP) (Wilsnach) during 2020, where it held that a biological father could not inherit “in the capacity of a parent” due to absence, in terms of the Intestate Succession Act 81 of 1987 on the basis he inter alia lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005 (hereafter absent parent). This article analyses the potential impact that the Wilsnach judgment could have on the right of a Muslim father to inherit in terms of an Islamic will in the event where he too has lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005.1 An overview of the Wilsnach judgment is analysed by way of introduction. The right of a Muslim parent to inherit from their child in terms of “Islamic law” is then explored. The possible impact that the Wilsnach judgment could have on the right of a father to inherit in terms of the “Islamic will” is then investigated. The article concludes with an overall analysis of the findings and makes a recommendation as to how Islamic law consequences can be accommodated.

Stimulating Private Investment in Public Infrastructure Through Reform of the Nigerian Legal Environment

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

Stimulating Private Investment in Public Infrastructure Through Reform of the Nigerian Legal Environment

Author: Olufemi Oluyeju

ISSN: 2521-2605
Affiliations: Lecturer, Department of Public Law, School of Law, University of Venda, Limpopo, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 215 – 246
https://doi.org/10.47348/JCLA/v10/i2a8

Abstract

A massive infrastructure deficit seriously impedes business growth and economic progress in Nigeria. Given the current fiscal realities, it is apparent that the government cannot solely bankroll such infrastructure requirements. Therefore, the need for private sector involvement in infrastructure development cannot be over-emphasised. However, this paper contends that gaps in infrastructure-related laws are partly responsible for the failure to attract private sector investment into Nigeria’s infrastructure sector. In this regard, the paper seeks to investigate those legal impediments hobbling private sector participation in financing public infrastructure in Nigeria and what reforms, if any, should be made to stimulate private capital flows into the sector. Furthermore, it is argued that attracting private capital into the infrastructure sector requires, among other things, a favourable legal and regulatory environment that is rules-based, transparent, and predictable. It is therefore concluded that private resources could be unlocked by reviewing and improving appropriate infrastructure-related aspects of the country’s legal environment. This article adopts a doctrinal approach; hence, it is based on desktop and library-based or non-empirical research. As doctrinal research, it will rely on an analysis of existing literature on the subject under investigation.

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.