Pub Date : 2023-10-24DOI: 10.25159/2522-3062/11091
Kolapo Omidire
The emergence of the COVID-19 pandemic early in 2020 has had unexpected consequences on virtually all aspects of human development, particularly businesses. Regrettably, the economies of most African countries are in a fragile state, and that fragility has had an effect on entrepreneurship, and in particular, small businesses that experienced the full brunt of the pandemic. This article seeks to examine the concept of corporate social responsibility (CSR), with a view to re-appraising the role of businesses, and to determine the extent to which CSR could facilitate post-pandemic socio-economic restoration and boost economic growth. To achieve this objective, the author engages in a qualitative study comprising a review of primary and secondary sources relating to CSR and its other variants. The role of CSR and how it can drive productive entrepreneurship, focusing on the two leading economies in Africa, namely South Africa and Nigeria will be examined. This is done with a view to making recommendations on the potential role of CSR in driving post-pandemic productive entrepreneurship, enhance sustainable development in society, and facilitate socio-economic restoration in a post-COVID-19 environment.
{"title":"Corporate Social Responsibility as an Enabler of Socio-economic Restoration in Post-COVID-19 Business Environment in South Africa and Nigeria","authors":"Kolapo Omidire","doi":"10.25159/2522-3062/11091","DOIUrl":"https://doi.org/10.25159/2522-3062/11091","url":null,"abstract":"The emergence of the COVID-19 pandemic early in 2020 has had unexpected consequences on virtually all aspects of human development, particularly businesses. Regrettably, the economies of most African countries are in a fragile state, and that fragility has had an effect on entrepreneurship, and in particular, small businesses that experienced the full brunt of the pandemic. This article seeks to examine the concept of corporate social responsibility (CSR), with a view to re-appraising the role of businesses, and to determine the extent to which CSR could facilitate post-pandemic socio-economic restoration and boost economic growth. To achieve this objective, the author engages in a qualitative study comprising a review of primary and secondary sources relating to CSR and its other variants. The role of CSR and how it can drive productive entrepreneurship, focusing on the two leading economies in Africa, namely South Africa and Nigeria will be examined. This is done with a view to making recommendations on the potential role of CSR in driving post-pandemic productive entrepreneurship, enhance sustainable development in society, and facilitate socio-economic restoration in a post-COVID-19 environment.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135322502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-20DOI: 10.25159/2522-3062/11858
Ahmed Linga
In the international legal system, there exist fields of law that are characteristically specialised than the general sphere of international law. The term ‘special’, ‘specialised’ or ‘self-contained’ regime will be revisited in the present article vis-à-vis possible norms that conflict in the international legal arena. International criminal law, a discrete branch of international law will be thoroughly discussed as to reveal its nature as one of international law’s special regimes that may arguably contribute to the issue of normative conflict, and further, a problem of legal fragmentation. The concept of legal fragmentation will thus be highlighted as linked to international law’s normative conflicts. Considering that international criminal law is potentially a special regime of international law, one of its codified rules seems to have led to an emerged normative conflict involving the legal interaction between the Rome Statute of the International Criminal Court 1998’s treaty-based rule, and the international customary law rule. The severity of a legal conflict not only impacts the treaty law and customary law areas of international law but to a greater extent also undermines the coherence of the international legal system as a whole. Therefore, this article aims to analyse and expound on the apparent normative conflict of international law character that needs to be addressed, especially by the International Criminal Court being one of the prominent international judicial organs. Supposedly, when a normative conflict becomes severe, the issue of fragmentation of international law looms out and effective determination of related conflicting norms is indeed appealing.
{"title":"International Law’s Specialised Regime and Normative Conflict: A Reflection on International Criminal Law","authors":"Ahmed Linga","doi":"10.25159/2522-3062/11858","DOIUrl":"https://doi.org/10.25159/2522-3062/11858","url":null,"abstract":"In the international legal system, there exist fields of law that are characteristically specialised than the general sphere of international law. The term ‘special’, ‘specialised’ or ‘self-contained’ regime will be revisited in the present article vis-à-vis possible norms that conflict in the international legal arena. International criminal law, a discrete branch of international law will be thoroughly discussed as to reveal its nature as one of international law’s special regimes that may arguably contribute to the issue of normative conflict, and further, a problem of legal fragmentation. The concept of legal fragmentation will thus be highlighted as linked to international law’s normative conflicts. Considering that international criminal law is potentially a special regime of international law, one of its codified rules seems to have led to an emerged normative conflict involving the legal interaction between the Rome Statute of the International Criminal Court 1998’s treaty-based rule, and the international customary law rule. The severity of a legal conflict not only impacts the treaty law and customary law areas of international law but to a greater extent also undermines the coherence of the international legal system as a whole. Therefore, this article aims to analyse and expound on the apparent normative conflict of international law character that needs to be addressed, especially by the International Criminal Court being one of the prominent international judicial organs. Supposedly, when a normative conflict becomes severe, the issue of fragmentation of international law looms out and effective determination of related conflicting norms is indeed appealing.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135010354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-18DOI: 10.25159/2522-3062/11831
Theophilus Edwin Coleman, Letlhokwa George Mpedi
Over the past decade, Ghana has significantly improved in the digitalisation and transformation agenda. The digitalisation agenda has paved the way for creating an inclusive digital economy. Through this agenda, many Ghanaians now have access to digital platforms, particularly those in the financial and transportation sectors. The quest to digitalise the Ghanaian economy has also created an enabling platform for digital entrepreneurship. The digital economy ecosystem has presented many Ghanaians with economic and employment opportunities that did not exist in the traditional or mainstream economy. While the economic potential of the Ghanaian digital economy cannot be denied, the employment opportunities created by the digital transformation drive present some challenges for the traditional labour market. Moreover, the novel nature of the digital transformation drive poses some difficulties for the existing legal framework of labour laws in Ghana. In addition to examining how Ghana’s labour laws can accommodate gig workers, this article discusses the digital economy’s meaning and significance in Africa, particularly in Ghana. Furthermore, it discusses the new modes of work associated with the digital economy. In addressing the issue of whether the current legal framework in Ghana can accommodate gig workers, the article reflects on the nature of the relationship between gig workers and owners of digital platforms. The article accordingly deals with the issue of whether the Labour Act 651 of 2003 offers guidance in addressing the employment status of gig workers in Ghana. In dealing with whether gig workers are employees of digital platform providers, this article draws some comparative and judicial lessons from the legal position in the United Kingdom (UK) and South Africa. The article concludes with a call for the statutory protection of gig workers in Ghana.
{"title":"Accommodating New Modes of Work in the Era of the Fourth Industrial Revolution in Ghana: Some Comparative Lessons from the United Kingdom and South Africa","authors":"Theophilus Edwin Coleman, Letlhokwa George Mpedi","doi":"10.25159/2522-3062/11831","DOIUrl":"https://doi.org/10.25159/2522-3062/11831","url":null,"abstract":"Over the past decade, Ghana has significantly improved in the digitalisation and transformation agenda. The digitalisation agenda has paved the way for creating an inclusive digital economy. Through this agenda, many Ghanaians now have access to digital platforms, particularly those in the financial and transportation sectors. The quest to digitalise the Ghanaian economy has also created an enabling platform for digital entrepreneurship. The digital economy ecosystem has presented many Ghanaians with economic and employment opportunities that did not exist in the traditional or mainstream economy. While the economic potential of the Ghanaian digital economy cannot be denied, the employment opportunities created by the digital transformation drive present some challenges for the traditional labour market. Moreover, the novel nature of the digital transformation drive poses some difficulties for the existing legal framework of labour laws in Ghana. In addition to examining how Ghana’s labour laws can accommodate gig workers, this article discusses the digital economy’s meaning and significance in Africa, particularly in Ghana. Furthermore, it discusses the new modes of work associated with the digital economy. In addressing the issue of whether the current legal framework in Ghana can accommodate gig workers, the article reflects on the nature of the relationship between gig workers and owners of digital platforms. The article accordingly deals with the issue of whether the Labour Act 651 of 2003 offers guidance in addressing the employment status of gig workers in Ghana. In dealing with whether gig workers are employees of digital platform providers, this article draws some comparative and judicial lessons from the legal position in the United Kingdom (UK) and South Africa. The article concludes with a call for the statutory protection of gig workers in Ghana.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135207948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-11DOI: 10.25159/2522-3062/11632
Siphosami Malunga
The aim of this article is to evaluate whether individual criminal responsibility (ICR) is attributable to perpetrators of the Gukurahundi atrocities committed in Matabeleland and Midlands, Zimbabwe, between 1983 and 1987. The criminal liability of Gukurahundi perpetrators is evaluated against the legal requirements garnered from conventions, jurisprudence of international criminal tribunals and the work of leading scholars. Firstly, the article provides an overview and historical development of the concept of ICR under international law. Second, it examines the theories of criminality under international law. Third, it analyses the forms and modalities of ICR including relevant specific crimes. Fourth, it evaluates the individual and superior responsibility of Gukurahundi perpetrators. A crucial feature of international criminal law is the legal obligation to investigate, prosecute and punish perpetrators of international crimes. The article therefore explores the different ways in which ICR could be attributed to perpetrators of the Gukurahundi international crimes. The author sets out to advance knowledge and understanding of possible mechanisms to hold perpetrators of the Gukurahundi atrocities criminally accountable under international law.
{"title":"Evaluating the Individual Criminal Responsibility of Gukurahundi Perpetrators under International Law","authors":"Siphosami Malunga","doi":"10.25159/2522-3062/11632","DOIUrl":"https://doi.org/10.25159/2522-3062/11632","url":null,"abstract":"The aim of this article is to evaluate whether individual criminal responsibility (ICR) is attributable to perpetrators of the Gukurahundi atrocities committed in Matabeleland and Midlands, Zimbabwe, between 1983 and 1987. The criminal liability of Gukurahundi perpetrators is evaluated against the legal requirements garnered from conventions, jurisprudence of international criminal tribunals and the work of leading scholars. Firstly, the article provides an overview and historical development of the concept of ICR under international law. Second, it examines the theories of criminality under international law. Third, it analyses the forms and modalities of ICR including relevant specific crimes. Fourth, it evaluates the individual and superior responsibility of Gukurahundi perpetrators. A crucial feature of international criminal law is the legal obligation to investigate, prosecute and punish perpetrators of international crimes. The article therefore explores the different ways in which ICR could be attributed to perpetrators of the Gukurahundi international crimes. The author sets out to advance knowledge and understanding of possible mechanisms to hold perpetrators of the Gukurahundi atrocities criminally accountable under international law.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136024686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-11DOI: 10.25159/2522-3062/12608
Victor Amadi
To intensify regional integration in the context of a common market, it is fundamental that citizens within a region are allowed to move with little or no restrictions. The Southern African Development Community (SADC) initially adopted a Draft Protocol on the Free Movement of People in 1995, which later failed when South Africa, Botswana and Namibia withdrew from the agreement. The Protocol on Facilitation of Movement of Persons (Facilitation Protocol) was adopted in 2005. The two-thirds majority needed for its enforcement has yet to be reached. Hence it has no legal effect. Several regional arrangements like the European Union (EU) and the East African Community (EAC) within Africa, have utilised an approach of flexible integration with binding legal provisions that facilitated progress in their integration schemes. Considering that little has been achieved towards the movement of people in the SADC, this article explores the feasibility of adopting flexible integration, advanced by African scholars to encourage a response in regulating the movement of people. This paper builds on existing scholarship by arguing for a clear provision defining the approach to flexible integration including the criteria for initiating and utilising flexible integration. This provision will allow member states with similar interests to move beyond the impasse towards the regulation of movement and promote the movement of people in the region or afford member states the choice to opt out of the regional arrangement.
{"title":"A Flexible Approach to Enabling the Free Movement of People in Southern Africa","authors":"Victor Amadi","doi":"10.25159/2522-3062/12608","DOIUrl":"https://doi.org/10.25159/2522-3062/12608","url":null,"abstract":"To intensify regional integration in the context of a common market, it is fundamental that citizens within a region are allowed to move with little or no restrictions. The Southern African Development Community (SADC) initially adopted a Draft Protocol on the Free Movement of People in 1995, which later failed when South Africa, Botswana and Namibia withdrew from the agreement. The Protocol on Facilitation of Movement of Persons (Facilitation Protocol) was adopted in 2005. The two-thirds majority needed for its enforcement has yet to be reached. Hence it has no legal effect. Several regional arrangements like the European Union (EU) and the East African Community (EAC) within Africa, have utilised an approach of flexible integration with binding legal provisions that facilitated progress in their integration schemes. Considering that little has been achieved towards the movement of people in the SADC, this article explores the feasibility of adopting flexible integration, advanced by African scholars to encourage a response in regulating the movement of people. This paper builds on existing scholarship by arguing for a clear provision defining the approach to flexible integration including the criteria for initiating and utilising flexible integration. This provision will allow member states with similar interests to move beyond the impasse towards the regulation of movement and promote the movement of people in the region or afford member states the choice to opt out of the regional arrangement.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136023555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-12DOI: 10.25159/2522-3062/12652
J. D. Mujuzi
According to the Seychelles Ministry of Employment, as of July 2022, twenty-five per cent of the workforce in Seychelles were migrant workers. In December 1994, Seychelles acceded to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (the Convention). Article 54(2) of the Convention provides that ‘[i]f a migrant worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State of employment.’ In 2008, the Seychelles Employment Act (the Act) was amended to establish the Employment Tribunal (the Tribunal) with exclusive jurisdiction over labour matters. Before an employer or worker lodges a grievance before the Tribunal, he/she is required to first attempt mediation before a competent officer in the Ministry of Employment. The Act includes specific provisions applicable to non-Seychellois workers. In this article, the author read the cases decided by the Tribunal between 2008 and September 2022 to establish how it has protected the rights of migrant workers. The author also assesses the mediation provisions under the Act—before competent officers. The findings show that the Tribunal’s approach substantially complies with Article 54(2) of the Convention. The author also illustrates the extent to which Seychelles complies with Articles 1(2), 25, 26, 32, 37, 43(3) 66(2) and 68 of the Convention. However, where necessary, the author suggests ways in which the rights of migrant workers can be better protected. Although there have been a few reported cases of irregular foreign workers in Seychelles, this article is limited to the protection of the rights of regular migrant workers. This is so because the author could not find a case in which the Tribunal or the competent officer dealt with the rights of irregular foreign workers. However, based on the drafting history of the Convention, it is argued that it applies to both regular and irregular workers.
{"title":"Migrant Workers in Seychelles: The Mechanisms in Place to Address Their Work-Related Disputes in the Light of Article 54(2) of the Convention on Migrant Workers","authors":"J. D. Mujuzi","doi":"10.25159/2522-3062/12652","DOIUrl":"https://doi.org/10.25159/2522-3062/12652","url":null,"abstract":"According to the Seychelles Ministry of Employment, as of July 2022, twenty-five per cent of the workforce in Seychelles were migrant workers. In December 1994, Seychelles acceded to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (the Convention). Article 54(2) of the Convention provides that ‘[i]f a migrant worker claims that the terms of his or her work contract have been violated by his or her employer, he or she shall have the right to address his or her case to the competent authorities of the State of employment.’ In 2008, the Seychelles Employment Act (the Act) was amended to establish the Employment Tribunal (the Tribunal) with exclusive jurisdiction over labour matters. Before an employer or worker lodges a grievance before the Tribunal, he/she is required to first attempt mediation before a competent officer in the Ministry of Employment. The Act includes specific provisions applicable to non-Seychellois workers. In this article, the author read the cases decided by the Tribunal between 2008 and September 2022 to establish how it has protected the rights of migrant workers. The author also assesses the mediation provisions under the Act—before competent officers. The findings show that the Tribunal’s approach substantially complies with Article 54(2) of the Convention. The author also illustrates the extent to which Seychelles complies with Articles 1(2), 25, 26, 32, 37, 43(3) 66(2) and 68 of the Convention. However, where necessary, the author suggests ways in which the rights of migrant workers can be better protected. Although there have been a few reported cases of irregular foreign workers in Seychelles, this article is limited to the protection of the rights of regular migrant workers. This is so because the author could not find a case in which the Tribunal or the competent officer dealt with the rights of irregular foreign workers. However, based on the drafting history of the Convention, it is argued that it applies to both regular and irregular workers.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47590691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-12DOI: 10.25159/2522-3062/12332
K. Anele
Nigeria and South Africa are the biggest economies in Africa, and they engage in substantial shipping and international trade. Therefore, effective shipping and trade legislation is a requisite for the resolution of disputes that may arise, and ship arrest is an important mechanism to resolve such disputes. This article employs the doctrinal legal methodology to reach a comparative analysis of ship arrest procedures in Nigeria and South Africa, and argues that the South African legal framework regarding ship arrest is more liberal and friendly than that of Nigeria. Given the plethora of trade arrangements involving both countries, this article recommends that Nigeria adopts some of the unique provisions of the South African arrest regime through legislation. It is also suggested that Nigerian courts should interpret the admiralty jurisdiction legal instruments to align with the local needs of the country.
{"title":"The Arrest of Ship Regime in Nigeria: Lessons from South Africa","authors":"K. Anele","doi":"10.25159/2522-3062/12332","DOIUrl":"https://doi.org/10.25159/2522-3062/12332","url":null,"abstract":"Nigeria and South Africa are the biggest economies in Africa, and they engage in substantial shipping and international trade. Therefore, effective shipping and trade legislation is a requisite for the resolution of disputes that may arise, and ship arrest is an important mechanism to resolve such disputes. This article employs the doctrinal legal methodology to reach a comparative analysis of ship arrest procedures in Nigeria and South Africa, and argues that the South African legal framework regarding ship arrest is more liberal and friendly than that of Nigeria. Given the plethora of trade arrangements involving both countries, this article recommends that Nigeria adopts some of the unique provisions of the South African arrest regime through legislation. It is also suggested that Nigerian courts should interpret the admiralty jurisdiction legal instruments to align with the local needs of the country.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48033624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-12DOI: 10.25159/2522-3062/12748
Kamalesh Newaj
South Africa (SA), like the United Kingdom (UK) and New Zealand (NZ), makes use of the services of Uber, which is a taxi or transportation service that connects the transport provider and passengers via a mobile application. Uber has defined itself as a technology company, as opposed to a transportation company, to avoid attracting employer status. In 2018 the Labour Court (LC) in SA was called upon to determine whether Uber drivers are independent contractors or employees. The definition is vital because employee status confers legislative protection, such as the right not to be unfairly dismissed. Somewhat surprisingly, the LC failed to come to the aid of the drivers, despite the Commission for Conciliation, Mediation and Arbitration (CCMA) affording them employee status. The UK and NZ similarly had to contend with disputes from Uber drivers. In the UK, the Supreme Court (SC) confirmed the findings of the Employment Tribunal, affording the drivers worker status. The Employment Court in NZ similarly declared drivers as employees. Considering the growth in the use of Uber and the growing traction of other forms of platform work, this article seeks to critically evaluate the South African position, considering the recent decisions in the UK and NZ.
{"title":"Re-evaluating the Employment Status of Uber Drivers in South Africa: Lessons from the United Kingdom and New Zealand","authors":"Kamalesh Newaj","doi":"10.25159/2522-3062/12748","DOIUrl":"https://doi.org/10.25159/2522-3062/12748","url":null,"abstract":"South Africa (SA), like the United Kingdom (UK) and New Zealand (NZ), makes use of the services of Uber, which is a taxi or transportation service that connects the transport provider and passengers via a mobile application. Uber has defined itself as a technology company, as opposed to a transportation company, to avoid attracting employer status. In 2018 the Labour Court (LC) in SA was called upon to determine whether Uber drivers are independent contractors or employees. The definition is vital because employee status confers legislative protection, such as the right not to be unfairly dismissed. Somewhat surprisingly, the LC failed to come to the aid of the drivers, despite the Commission for Conciliation, Mediation and Arbitration (CCMA) affording them employee status. The UK and NZ similarly had to contend with disputes from Uber drivers. In the UK, the Supreme Court (SC) confirmed the findings of the Employment Tribunal, affording the drivers worker status. The Employment Court in NZ similarly declared drivers as employees. Considering the growth in the use of Uber and the growing traction of other forms of platform work, this article seeks to critically evaluate the South African position, considering the recent decisions in the UK and NZ.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42083691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-15DOI: 10.25159/2522-3062/10789
KA Seanego
A disgorgement remedy for breach of contract seeks to take away profits acquired through breach of contract. Since contractual damages only seek to compensate the plaintiff for the patrimonial loss suffered due to breach of contract, the law of contract does not generally provide for the disgorgement of profits generated through breach of contract. However, there have been circumstances where the party in breach generates profits as a result of breach contract and the other party does not suffer patrimonial loss. As a result, the plaintiff in these circumstances would not have a remedy against the defendant because he cannot prove patrimonial loss caused by the breach. However, this position is changing. The recognition of disgorgement of profits acquired through breach of contract appears to be gaining acceptance around the world. The United States of America has recognised a disgorgement remedy to take away profits acquired through breach of contract to ensure that the defendant does not gain as a result of his breach of contract. A similar remedy has not yet gained acceptance in South Africa. This study seeks to assess how the United States of America has recognised a disgorgement remedy and draw some lessons for South African law in recognising a similar remedy.
{"title":"Recognition of a Disgorgement of Profits for Breach of Contract in the United States of America Law: Lessons for South African Law","authors":"KA Seanego","doi":"10.25159/2522-3062/10789","DOIUrl":"https://doi.org/10.25159/2522-3062/10789","url":null,"abstract":"A disgorgement remedy for breach of contract seeks to take away profits acquired through breach of contract. Since contractual damages only seek to compensate the plaintiff for the patrimonial loss suffered due to breach of contract, the law of contract does not generally provide for the disgorgement of profits generated through breach of contract. However, there have been circumstances where the party in breach generates profits as a result of breach contract and the other party does not suffer patrimonial loss. As a result, the plaintiff in these circumstances would not have a remedy against the defendant because he cannot prove patrimonial loss caused by the breach. However, this position is changing. The recognition of disgorgement of profits acquired through breach of contract appears to be gaining acceptance around the world. The United States of America has recognised a disgorgement remedy to take away profits acquired through breach of contract to ensure that the defendant does not gain as a result of his breach of contract. A similar remedy has not yet gained acceptance in South Africa. This study seeks to assess how the United States of America has recognised a disgorgement remedy and draw some lessons for South African law in recognising a similar remedy.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":" ","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48589326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-08DOI: 10.25159/2522-3062/10071
L. Ndlovu, N. Ngema
One of the main functions of lobolo is to create a marriage relationship between the bride’s kindred and the groom’s family. Lobolo, which must be practised subject to the Constitution, still plays a significant role in the lives of many South Africans today. However, we concede that there are some instances in which lobolo has been abused to infringe women’s reproductive rights. The apprehension that lobolo may be refunded puts unnecessary pressure on women, thereby infringing and violating their right to freely decide on reproductive issues free of discrimination and pressure. The practice of lobolo is evolving, but approaches to its return or refund are not homogenous. Some families may insist that lobolo be returned while others will not. In South Africa, the solemnisation, and the legal process for terminating a customary marriage is now regulated by the Recognition of Customary Marriages Act 1998 (Recognition Act). Lobolo is not explicitly mentioned as a requirement for the validity of a customary marriage. Additionally, the Act does not contemplate refunding or retention of lobolo during the termination of a customary marriage through divorce. Section 8 of the Recognition Act makes it possible for a customary marriage to be terminated by a decree of divorce, approved by a competent court, thus making it possible to dissolve a customary marriage like its civil counterpart. In this article, we interrogate whether the claim for a lobolo refund violates the reproductive rights of South African women. We use feminism as the theoretical lens through which we view and answer the question and draw some modest lessons from Eswatini and Zimbabwe, and to some limited extent, Uganda.
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