Pub Date : 2022-04-15DOI: 10.17159/2077-4907/2021/ldd.v26.4
Jeannine Van De Rheede
Black Economic Empowerment (BEE) was launched as an integrated policy initiative to empower black people and redistribute wealth across the spectrum of South Africa's population. The Broad-Based Black Economic Empowerment Act 53 of 2003, as amended in 2013, was enacted to correct the imbalances of apartheid and promote transformation of the economy. The Codes of Good Practice adopted in terms of the Act were promulgated to provide a standard by which the BEE rating of enterprises can be calculated. BEE ratings are important to enterprises since enterprises use them to attract and retain clients: the higher an enterprise's BEE rating, the more it is likely to benefit financially. It is for this reason that it is in most enterprises' interests to have a good BEE rating. The BEE rating of an enterprise is calculated by using the rules and formulae in the Codes of Good Practice. However, despite the objectives of the Act, enterprises are able to obtain good BEE ratings even where a low percentage of black people form part of their management structures. It is important to determine how this is possible. This article exposes shortcomings in the existing BEE legal framework that make it possible for enterprises to obtain good BEE ratings under such circumstances.
{"title":"Black economic empowerment in South Africa: Is transformation of the management structures of enterprises as essential as it should be?","authors":"Jeannine Van De Rheede","doi":"10.17159/2077-4907/2021/ldd.v26.4","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v26.4","url":null,"abstract":"Black Economic Empowerment (BEE) was launched as an integrated policy initiative to empower black people and redistribute wealth across the spectrum of South Africa's population. The Broad-Based Black Economic Empowerment Act 53 of 2003, as amended in 2013, was enacted to correct the imbalances of apartheid and promote transformation of the economy. The Codes of Good Practice adopted in terms of the Act were promulgated to provide a standard by which the BEE rating of enterprises can be calculated. BEE ratings are important to enterprises since enterprises use them to attract and retain clients: the higher an enterprise's BEE rating, the more it is likely to benefit financially. It is for this reason that it is in most enterprises' interests to have a good BEE rating. The BEE rating of an enterprise is calculated by using the rules and formulae in the Codes of Good Practice. However, despite the objectives of the Act, enterprises are able to obtain good BEE ratings even where a low percentage of black people form part of their management structures. It is important to determine how this is possible. This article exposes shortcomings in the existing BEE legal framework that make it possible for enterprises to obtain good BEE ratings under such circumstances.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114644856","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 : 2022-04-15DOI: 10.17159/2077-4907/2021/ldd.v26.5
S. Bidie
For the purposes of protecting the rights and interests of sharehoIders, section 115(2)(a) of the Companies Act 71 of 2008 is imperative and essential. The section and its concomitant provisions are beginning to find their footing before South African courts. One of the occasions when the imperative nature of the section is seen is when directors take part in decision-making where companies intend to enter into share buy-back schemes of arrangement. In that respect, the clarity and precision of the section has so far received Iimited scrutiny. To compound matters, even before the roIe shareholders are expected to play has been thoroughIy scrutinised, the sections relating to shareholders' exercise of power are currently the subject of a proposed repeaI. FortunateIy, recent judgments have begun to provide insight into the interpretation of section 115(2)(a), and the same can be said with respect to simiIar sections from other jurisdictions. This contribution examines these Iatter sections. It chiefIy shows that the judgments consuIted regard shareholder protection, not as a straight-jacket; the protection has its pitfalls. Meritoriously, it shows how courts interpret section 115(2)(a) to protect shareholders from the pitfalls by promoting/advancing shareholder protection. The judgments also speak with one voice in their interpretation of provisions aimed at maintaining the necessary balance between the rights and interests of company stakeholders. Essentially, the judgments admirably show that the process of finding that balance is a delicate exercise.
{"title":"Examining the interpretation of section 115(2)(a) of the Companies Act of 2008","authors":"S. Bidie","doi":"10.17159/2077-4907/2021/ldd.v26.5","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v26.5","url":null,"abstract":"For the purposes of protecting the rights and interests of sharehoIders, section 115(2)(a) of the Companies Act 71 of 2008 is imperative and essential. The section and its concomitant provisions are beginning to find their footing before South African courts. One of the occasions when the imperative nature of the section is seen is when directors take part in decision-making where companies intend to enter into share buy-back schemes of arrangement. In that respect, the clarity and precision of the section has so far received Iimited scrutiny. To compound matters, even before the roIe shareholders are expected to play has been thoroughIy scrutinised, the sections relating to shareholders' exercise of power are currently the subject of a proposed repeaI. FortunateIy, recent judgments have begun to provide insight into the interpretation of section 115(2)(a), and the same can be said with respect to simiIar sections from other jurisdictions. This contribution examines these Iatter sections. It chiefIy shows that the judgments consuIted regard shareholder protection, not as a straight-jacket; the protection has its pitfalls. Meritoriously, it shows how courts interpret section 115(2)(a) to protect shareholders from the pitfalls by promoting/advancing shareholder protection. The judgments also speak with one voice in their interpretation of provisions aimed at maintaining the necessary balance between the rights and interests of company stakeholders. Essentially, the judgments admirably show that the process of finding that balance is a delicate exercise.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117262080","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 : 2022-04-15DOI: 10.17159/2077-4907/2021/ldd.v26.1
Yidnekachew Mitiku Mekone
Infectious agents posing a human security threat have been recorded throughout history. Today, COVID-19 poses a serious human security threat in the world, forcing governments to take extraordinary measures. Extraordinary measures, such as declarations of a state of emergency, basically determine the legal and operational resources available to respond to an emergency. Hence, it has implications for governments, the private sector and the general public. The legal authority of the state of emergency declarations during public health crises in federal countries basically relies on the emergency powers vested in the levels of government. Understanding the scope of state and federal emergency declarations and authorities and how they interact is, therefore, an important part of preparing for, and responding to, "public health emergencies". This article, through a detailed examination of relevant laws and other countries' experiences, attempts to shed light on the "public health emergency declaration" in Ethiopia with a particular focus on understanding the scope of state and federal emergency declarations and authorities.
{"title":"\"Public health emergency declarations\" in the Ethiopian federal system: understanding the scope of state and federal emergency declarations and authorities","authors":"Yidnekachew Mitiku Mekone","doi":"10.17159/2077-4907/2021/ldd.v26.1","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v26.1","url":null,"abstract":"Infectious agents posing a human security threat have been recorded throughout history. Today, COVID-19 poses a serious human security threat in the world, forcing governments to take extraordinary measures. Extraordinary measures, such as declarations of a state of emergency, basically determine the legal and operational resources available to respond to an emergency. Hence, it has implications for governments, the private sector and the general public. The legal authority of the state of emergency declarations during public health crises in federal countries basically relies on the emergency powers vested in the levels of government. Understanding the scope of state and federal emergency declarations and authorities and how they interact is, therefore, an important part of preparing for, and responding to, \"public health emergencies\". This article, through a detailed examination of relevant laws and other countries' experiences, attempts to shed light on the \"public health emergency declaration\" in Ethiopia with a particular focus on understanding the scope of state and federal emergency declarations and authorities.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122015914","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 : 2021-12-15DOI: 10.17159/2077-4907/2021/ldd.v25.11
Ntokozo Sobikwa, Moses Retselisitsoe Phooko
The purpose of this article is to critically assess the constitutionality of the COVID-19 regulations against the backdrop of the constitutional mandate to facilitate public participation in the law-making process in South Africa. This assessment is conducted by outlining the scope and content of public participation. This will be followed by an exposition of the legal framework that provides for the duty to facilitate public participation in South Africa. Thereafter, the scope and content of the duty to facilitate public participation is assessed against the conduct of the government in promulgating the COVID-19 regulations. The authors argue that the disregard for and limited nature of public participation during the process leading up to the enactment of the COVID-19 regulations amount to a material subversion of the core tenets of our constitutional democracy and largely renders the COVID-19 regulations unconstitutional for lack of procedural compliance with the demands of the Constitution. The authors provide a few recommendations to remedy the unconstitutionality of the regulations and further propose guidelines to facilitate public participation in cases of future pandemics and/or disasters of this nature.
{"title":"An assessment of the constitutionality of the COVID-19 regulations against the requirement to facilitate public participation in the law-making and/or administrative processes in South Africa","authors":"Ntokozo Sobikwa, Moses Retselisitsoe Phooko","doi":"10.17159/2077-4907/2021/ldd.v25.11","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v25.11","url":null,"abstract":"The purpose of this article is to critically assess the constitutionality of the COVID-19 regulations against the backdrop of the constitutional mandate to facilitate public participation in the law-making process in South Africa. This assessment is conducted by outlining the scope and content of public participation. This will be followed by an exposition of the legal framework that provides for the duty to facilitate public participation in South Africa. Thereafter, the scope and content of the duty to facilitate public participation is assessed against the conduct of the government in promulgating the COVID-19 regulations. The authors argue that the disregard for and limited nature of public participation during the process leading up to the enactment of the COVID-19 regulations amount to a material subversion of the core tenets of our constitutional democracy and largely renders the COVID-19 regulations unconstitutional for lack of procedural compliance with the demands of the Constitution. The authors provide a few recommendations to remedy the unconstitutionality of the regulations and further propose guidelines to facilitate public participation in cases of future pandemics and/or disasters of this nature.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132727237","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 : 2021-12-14DOI: 10.17159/2077-4907/2021/ldd.v25.15
Prof Cornelis F Swanepoel
Drawing on both legal and political sources, this article scrutinises the policy of cadre deployment that the African National Congress (ANC), the ruling party in South Africa, has implemented, and continues to apply. The analysis begins by recalling and commenting on the only reported judgment in South African jurisprudence that dealt with the political influencing of municipalities' exercise of their public power to make appointments, namely, Mlokoti v Amathole District Municipality & another 2009 (6) SA 354 (ECD). What the Mlokoti case has confirmed is that the legal foundation for the exercise of public power is found in the Constitution and its enabling legislation, and not in party political policy, such as the ongoing practice of cadre deployment. In an investigation of cadre deployment, the article then demonstrates that this ANC policy, particularly judging by its stated purpose, is incompatible with the constitutional State and, instead, enables the rise of the shadow State. Unsurprisingly, therefore, political commentators increasingly observe that, apart from the revelations at the Zondo Commission of Inquiry, State capture in South Africa in fact commenced when the ANC assumed political power in pursuit of the National Democratic Revolution. It is argued that the pursuit of a National Democratic Revolution in South Africa is directly at odds with the vision and goals of the 1994 constitutional pact. Convening a bipartisan national convention on philosophical and other approaches to the fight against corruption may offer a solution. Here, a starting point would be to reconsider the country's anti-corruption strategies to pay proper attention to the ethical causes of this scourge.
{"title":"The slippery slope to State capture: cadre deployment as an enabler of corruption and a contributor to blurred party-State lines","authors":"Prof Cornelis F Swanepoel","doi":"10.17159/2077-4907/2021/ldd.v25.15","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v25.15","url":null,"abstract":"Drawing on both legal and political sources, this article scrutinises the policy of cadre deployment that the African National Congress (ANC), the ruling party in South Africa, has implemented, and continues to apply. The analysis begins by recalling and commenting on the only reported judgment in South African jurisprudence that dealt with the political influencing of municipalities' exercise of their public power to make appointments, namely, Mlokoti v Amathole District Municipality & another 2009 (6) SA 354 (ECD). What the Mlokoti case has confirmed is that the legal foundation for the exercise of public power is found in the Constitution and its enabling legislation, and not in party political policy, such as the ongoing practice of cadre deployment. In an investigation of cadre deployment, the article then demonstrates that this ANC policy, particularly judging by its stated purpose, is incompatible with the constitutional State and, instead, enables the rise of the shadow State. Unsurprisingly, therefore, political commentators increasingly observe that, apart from the revelations at the Zondo Commission of Inquiry, State capture in South Africa in fact commenced when the ANC assumed political power in pursuit of the National Democratic Revolution. It is argued that the pursuit of a National Democratic Revolution in South Africa is directly at odds with the vision and goals of the 1994 constitutional pact. Convening a bipartisan national convention on philosophical and other approaches to the fight against corruption may offer a solution. Here, a starting point would be to reconsider the country's anti-corruption strategies to pay proper attention to the ethical causes of this scourge.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131514592","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 : 2021-12-14DOI: 10.17159/2077-4907/2021/ldd.v25.12
H. Thopacu
Zambia faces a serious vitamin A deficiency (VAD) that affects most infants and expectant mothers, leading to night blindness, maternal deaths, and more. One of the efforts to address this is by permitting only the manufacture, sale, or import of household consumption sugar which is fortified with vitamin A - which is seen as a disguised restriction on international trade. Through a desk-top research study, the article examines the question, as to what extent Zambia's fortification requirement complies with the necessity principle in the Technical Barrier to Trade Annex to the Southern African Development Community Protocol on Trade (TBT Annex) and Article 2(2) of the World Trade Organization's Agreement on Technical Barriers to Trade (TBT Agreement). The research finds that the measure is a technical regulation with a legitimate objective to protect the health and lives of a target VAD Zambian population. Further, it is applied to both domestic and like foreign products; therefore, it is neither discriminatory nor directly linked to the lack of competitive opportunities for like foreign products. Even if fortified maize meal could be opted for instead of sugar, it cannot achieve the equivalent contribution in dealing with the VAD problem because of challenges, such as, the uncertainty in regulatory regime, and its irregular consumption pattern. Consequently, the sugar fortification requirement is not more trade restrictive than necessary under the TBT Annex and Article 2(2) of the TBT Agreement.
{"title":"The necessity for Zambia's vitamin A sugar fortification requirement","authors":"H. Thopacu","doi":"10.17159/2077-4907/2021/ldd.v25.12","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v25.12","url":null,"abstract":"Zambia faces a serious vitamin A deficiency (VAD) that affects most infants and expectant mothers, leading to night blindness, maternal deaths, and more. One of the efforts to address this is by permitting only the manufacture, sale, or import of household consumption sugar which is fortified with vitamin A - which is seen as a disguised restriction on international trade. Through a desk-top research study, the article examines the question, as to what extent Zambia's fortification requirement complies with the necessity principle in the Technical Barrier to Trade Annex to the Southern African Development Community Protocol on Trade (TBT Annex) and Article 2(2) of the World Trade Organization's Agreement on Technical Barriers to Trade (TBT Agreement). The research finds that the measure is a technical regulation with a legitimate objective to protect the health and lives of a target VAD Zambian population. Further, it is applied to both domestic and like foreign products; therefore, it is neither discriminatory nor directly linked to the lack of competitive opportunities for like foreign products. Even if fortified maize meal could be opted for instead of sugar, it cannot achieve the equivalent contribution in dealing with the VAD problem because of challenges, such as, the uncertainty in regulatory regime, and its irregular consumption pattern. Consequently, the sugar fortification requirement is not more trade restrictive than necessary under the TBT Annex and Article 2(2) of the TBT Agreement.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129215660","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 : 2021-12-14DOI: 10.17159/2077-4907/2021/ldd.v25.16
D. Zongwe
Tinashe Kondo's book, Law and investment in Africa, narrates the efforts of a country to regain the trust [and the love] of foreign investors after several decades of argument and hostility. Encapsulated in the "Zimbabwe is open for business" slogan, these efforts show "how a country can move to regain credibility and commit to global rules despite its recent history".2 This review of Kondo's book concerns the manner in which readers can take advantage of this immensely useful publication. Particularly, this review looks into the book in order to advise law academics on possible strategies to integrate the book into their curricula in Zimbabwe and elsewhere on the continent.
{"title":"T Kondo (Ed) Law and Investment in Africa: The Governance of Foreign Direct Investment In Zimbabwe","authors":"D. Zongwe","doi":"10.17159/2077-4907/2021/ldd.v25.16","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v25.16","url":null,"abstract":"Tinashe Kondo's book, Law and investment in Africa, narrates the efforts of a country to regain the trust [and the love] of foreign investors after several decades of argument and hostility. Encapsulated in the \"Zimbabwe is open for business\" slogan, these efforts show \"how a country can move to regain credibility and commit to global rules despite its recent history\".2 This review of Kondo's book concerns the manner in which readers can take advantage of this immensely useful publication. Particularly, this review looks into the book in order to advise law academics on possible strategies to integrate the book into their curricula in Zimbabwe and elsewhere on the continent.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114713575","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 : 2021-12-14DOI: 10.17159/2077-4907/2021/ldd.v25.14
Clement Marumoagae
This article demonstrates that the retirement industry is fragmented, with different pieces of legislation which contain differently drafted provisions addressing the same issue. In particular, it illustrates that several pension statutes provide protection against creditors to retirement benefits held by retirement funds. Further, that, while held in retirement funds, retirement benefits are protected from assignment, transfer, cession, hypothecation, pledge, reduction, attachment and execution. Furthermore, that some of these transactions appear in some of the provisions of the pension Statutes whereas they do not do so in similar provisions of other pension statutes. This article argues that the differences in the way similar provisions in different pension statutes are drafted leads to the development of confusing jurisprudence regarding the protection of members' retirement benefits, which needs legislative intervention. This article calls for a uniform approach across all pension statutes regarding the protection of pension benefits against members' creditors. This article further examines whether retirement benefits can be declared realisable property to enable creditors to enforce payment of their debts from these benefits. It illustrates that while it is clear that legislative protection of retirement benefits is available before these benefits accrue to members, there is, however, controversy whether this protection remains intact when these benefits have accrued to members.
{"title":"Overview of the legislative protection of retirement benefits against transfer, reduction, hypothecation and attachment in South Africa","authors":"Clement Marumoagae","doi":"10.17159/2077-4907/2021/ldd.v25.14","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v25.14","url":null,"abstract":"This article demonstrates that the retirement industry is fragmented, with different pieces of legislation which contain differently drafted provisions addressing the same issue. In particular, it illustrates that several pension statutes provide protection against creditors to retirement benefits held by retirement funds. Further, that, while held in retirement funds, retirement benefits are protected from assignment, transfer, cession, hypothecation, pledge, reduction, attachment and execution. Furthermore, that some of these transactions appear in some of the provisions of the pension Statutes whereas they do not do so in similar provisions of other pension statutes. This article argues that the differences in the way similar provisions in different pension statutes are drafted leads to the development of confusing jurisprudence regarding the protection of members' retirement benefits, which needs legislative intervention. This article calls for a uniform approach across all pension statutes regarding the protection of pension benefits against members' creditors. This article further examines whether retirement benefits can be declared realisable property to enable creditors to enforce payment of their debts from these benefits. It illustrates that while it is clear that legislative protection of retirement benefits is available before these benefits accrue to members, there is, however, controversy whether this protection remains intact when these benefits have accrued to members.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133473549","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 : 2021-12-14DOI: 10.17159/2077-4907/2021/ldd.v25.13
S. Bidie
Impediments to corporate accountability have over the recent years manifested in diverse forms. What took place in Peel v Hamon J&C Engineering (Pty) Ltd is a case in point. The aim of this article is in two forms. First, from the commentaries and cases consulted, it is clear that the character of who must qualify in terms of the section 163 criterion is not settled. Moreover, this can be gleaned from the criticisms against Moshidi J's judgment in Peel for having extended/expanded the section 163 remedy to afford relief to shareholders and directors whom the legislature may not have contemplated to cover under the relief. The aim here is to argue in support of this expansion as promoting accountability. Secondly, it is to make some comments on the criterion that it is only a shareholder and a director who are accorded locus standi to invoke the remedy. From the discussion, the paper makes numerous commendable observations. First, the complaint raised in Peel was not an abuse of process; it was a genuine complaint/application seeking to address genuine and novel issues which often arise between the parties in company law. Second, Moshidi J's judgment demonstrates evolution/progress for its contextual approach to the section 163 remedy's interpretation. The judgment heralds/foreshadows colossal principles/practices within company law aimed at balancing stakeholder interests. Third, the judgment potently disentangles hurdles which normally impede accountability by company directors. Lastly, the paper recommends that other stakeholders be considered for relief under the remedy.
{"title":"Dismantling obstacles impeding better governance in companies: Affirming the expansion of the interpretation of \"shareholder and director\" under section 163 of the 2008 Act","authors":"S. Bidie","doi":"10.17159/2077-4907/2021/ldd.v25.13","DOIUrl":"https://doi.org/10.17159/2077-4907/2021/ldd.v25.13","url":null,"abstract":"Impediments to corporate accountability have over the recent years manifested in diverse forms. What took place in Peel v Hamon J&C Engineering (Pty) Ltd is a case in point. The aim of this article is in two forms. First, from the commentaries and cases consulted, it is clear that the character of who must qualify in terms of the section 163 criterion is not settled. Moreover, this can be gleaned from the criticisms against Moshidi J's judgment in Peel for having extended/expanded the section 163 remedy to afford relief to shareholders and directors whom the legislature may not have contemplated to cover under the relief. The aim here is to argue in support of this expansion as promoting accountability. Secondly, it is to make some comments on the criterion that it is only a shareholder and a director who are accorded locus standi to invoke the remedy. From the discussion, the paper makes numerous commendable observations. First, the complaint raised in Peel was not an abuse of process; it was a genuine complaint/application seeking to address genuine and novel issues which often arise between the parties in company law. Second, Moshidi J's judgment demonstrates evolution/progress for its contextual approach to the section 163 remedy's interpretation. The judgment heralds/foreshadows colossal principles/practices within company law aimed at balancing stakeholder interests. Third, the judgment potently disentangles hurdles which normally impede accountability by company directors. Lastly, the paper recommends that other stakeholders be considered for relief under the remedy.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"31 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124326286","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 : 2021-11-29DOI: 10.17159/2077-4907/2020/ldd.v25.spe2
Jane C. Diala
Broadly, the concept of social exclusion denotes a condition in which peopie are unabie to voice their opinion freeiy and fuiiy in matters affecting their iives. It often manifests as unequai respect for, and protection of people's rights based on gender, age, race, and simiiar demographics. Sociai inciusion has become a concern for poiicy deveiopment and impiementation, particuiariy in cuiturai matters, where tensions often arise between traditionai norms and universaiist State iaws. In this context, brideweaith payment in Southern Nigeria presents an intriguing iens for examining social exclusion. Here, women's exciusion from their own brideweaith negotiation iiiustrates the interpiay of agency and unequai power reiations, two twin elements that affect access to justice and policy development. So, in what ways does women's exclusion from bridewealth negotiation broaden understanding of access to justice and development programming? This article argues that women's cultural exclusion from bridewealth negotiation hinders their agency in marriage under customary law. Using data obtained from Southern Nigeria in 2016, it shows how the sustenance of social exclusion stands at the intersection of law, culture, and justice.
{"title":"\"Talk to my father\": re-thinking social exclusion and access to justice in the context of bridewealth negotiation","authors":"Jane C. Diala","doi":"10.17159/2077-4907/2020/ldd.v25.spe2","DOIUrl":"https://doi.org/10.17159/2077-4907/2020/ldd.v25.spe2","url":null,"abstract":"Broadly, the concept of social exclusion denotes a condition in which peopie are unabie to voice their opinion freeiy and fuiiy in matters affecting their iives. It often manifests as unequai respect for, and protection of people's rights based on gender, age, race, and simiiar demographics. Sociai inciusion has become a concern for poiicy deveiopment and impiementation, particuiariy in cuiturai matters, where tensions often arise between traditionai norms and universaiist State iaws. In this context, brideweaith payment in Southern Nigeria presents an intriguing iens for examining social exclusion. Here, women's exciusion from their own brideweaith negotiation iiiustrates the interpiay of agency and unequai power reiations, two twin elements that affect access to justice and policy development. So, in what ways does women's exclusion from bridewealth negotiation broaden understanding of access to justice and development programming? This article argues that women's cultural exclusion from bridewealth negotiation hinders their agency in marriage under customary law. Using data obtained from Southern Nigeria in 2016, it shows how the sustenance of social exclusion stands at the intersection of law, culture, and justice.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"232 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134064867","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：