Real rights in respect of land are registrable in the deeds registration system of South Africa, while personal rights may not be registered. The Deeds Registries Act 47 of 1937, which allows an open system of real rights, does not define real rights and personal rights properly, and does not draw a distinction between such rights. In this article in two parts the view is expressed that the nature of these rights is determined by distinguishing real rights from personal rights, especially in terms of the doctrine of subjective rights, and by distinguishing between ownership and limited real rights by application of the subtraction from the dominium test (as supplemented by the intention test). Both fundamental distinctions are founded in the South African common law and still form the basis for a modern theory of real rights.
{"title":"The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South Africa – Part One: Statutory and Theoretical Distinction between Real Rights and Personal Rights","authors":"P. Badenhorst","doi":"10.3366/ajicl.2021.0376","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0376","url":null,"abstract":"Real rights in respect of land are registrable in the deeds registration system of South Africa, while personal rights may not be registered. The Deeds Registries Act 47 of 1937, which allows an open system of real rights, does not define real rights and personal rights properly, and does not draw a distinction between such rights. In this article in two parts the view is expressed that the nature of these rights is determined by distinguishing real rights from personal rights, especially in terms of the doctrine of subjective rights, and by distinguishing between ownership and limited real rights by application of the subtraction from the dominium test (as supplemented by the intention test). Both fundamental distinctions are founded in the South African common law and still form the basis for a modern theory of real rights.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45703677","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}
Ponzi schemes have ravaged financial markets and have caused considerable financial loss to many individuals. The continuous emergence of Ponzi schemes is as a result of a lacuna in financial regulation. The collapse of Menzgold, a company in Ghana, is another episode in the ebb and flow of Ponzi schemes in Ghana. This article therefore exploits this recent development to explain the emergence of Ponzi schemes in Ghana and situates this trend in the context of the lapses in financial regulation. In doing this, both the doctrinal approach and the comparative approach are applied in this article to contribute to the little Ghanaian literature there is on Ponzi schemes and regulation in Ghana.
{"title":"Ponzi Schemes in Ghana: The Menzgold Saga","authors":"Afia Agyeman Amponsah-Mensah","doi":"10.3366/ajicl.2021.0377","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0377","url":null,"abstract":"Ponzi schemes have ravaged financial markets and have caused considerable financial loss to many individuals. The continuous emergence of Ponzi schemes is as a result of a lacuna in financial regulation. The collapse of Menzgold, a company in Ghana, is another episode in the ebb and flow of Ponzi schemes in Ghana. This article therefore exploits this recent development to explain the emergence of Ponzi schemes in Ghana and situates this trend in the context of the lapses in financial regulation. In doing this, both the doctrinal approach and the comparative approach are applied in this article to contribute to the little Ghanaian literature there is on Ponzi schemes and regulation in Ghana.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41981313","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}
This article is concerned with ways in which international courts and tribunals take into account the rights and interests of individuals when they are affected by a dispute between states concerning the direct rights and obligations of those states under international law.
{"title":"Individual Rights in Disputes between States","authors":"Ben Juratowitch, Natasha McNamara","doi":"10.3366/ajicl.2021.0375","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0375","url":null,"abstract":"This article is concerned with ways in which international courts and tribunals take into account the rights and interests of individuals when they are affected by a dispute between states concerning the direct rights and obligations of those states under international law.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49193928","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}
{"title":"Front matter","authors":"","doi":"10.3366/ajicl.2021.0369","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0369","url":null,"abstract":"","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41780755","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}
{"title":"Back matter","authors":"","doi":"10.3366/ajicl.2021.0378","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0378","url":null,"abstract":"","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46673502","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}
Finding a balance between diversity and social cohesion is a common concern in constitutional design: in divided societies, such a balance has often been sought through federalism. But the need to reconcile diversity and social cohesion can also be addressed through aspirational values embedded in a constitution. In fact, constitutions may entrench fundamental principles directing policies to foster equality, eliminate obstacles or require the different tiers of government to collaborate harmoniously in the performance of their functions. In exploring solidarity between different communities and cooperative government in South Africa, ethnicity as foundational value in Ethiopia, and the federal character in Nigeria, this article offers a comparative account of the three most important federations in Africa to assess how their constitutions reconcile diversity and social cohesion through aspirational principles related to federalism.
{"title":"Aspirational Principles in African Federalism: South Africa, Ethiopia and Nigeria Compared","authors":"Erika Arban, Adriano Dirri","doi":"10.3366/ajicl.2021.0371","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0371","url":null,"abstract":"Finding a balance between diversity and social cohesion is a common concern in constitutional design: in divided societies, such a balance has often been sought through federalism. But the need to reconcile diversity and social cohesion can also be addressed through aspirational values embedded in a constitution. In fact, constitutions may entrench fundamental principles directing policies to foster equality, eliminate obstacles or require the different tiers of government to collaborate harmoniously in the performance of their functions. In exploring solidarity between different communities and cooperative government in South Africa, ethnicity as foundational value in Ethiopia, and the federal character in Nigeria, this article offers a comparative account of the three most important federations in Africa to assess how their constitutions reconcile diversity and social cohesion through aspirational principles related to federalism.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44050515","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}
In this article, I provide a historical narrative and legal analysis of the Southern Cameroons’ quest for sovereign statehood on the basis of the right to self-determination under international law, which grants entitlement to political independence and to socio-economic and cultural development. This account is motivated by the manner in which the question of self-determination for the Southern Cameroons has been dealt with since the times of decolonisation, resulting in yet another bloody conflict on the African continent. Contrary to the global commitment to secure universal peace and security and the adherence by member states of the African Union to human rights and a peaceful and secure Africa, the escalating conflict in the Southern Cameroons not only challenges these aspirations but has also generated a humanitarian emergency of enormous proportions. Because self-determination is guaranteed to apply unconditionally within the context of decolonisation, I post two important questions. First, why was the Southern Cameroons deprived of the right to sovereign statehood when other trust territories gained independence? Second, is the Southern Cameroons still entitled to assert sovereignty on the basis of the inalienable right to self-determination? In responding to these questions, I explain how self-determination for the Southern Cameroons was compromised and further provide justification for the legitimate quest to sovereign statehood.
{"title":"Self-Determination and the Southern Cameroons’ Quest for Sovereign Statehood","authors":"Carol Chi NGANG","doi":"10.3366/AJICL.2021.0364","DOIUrl":"https://doi.org/10.3366/AJICL.2021.0364","url":null,"abstract":"In this article, I provide a historical narrative and legal analysis of the Southern Cameroons’ quest for sovereign statehood on the basis of the right to self-determination under international law, which grants entitlement to political independence and to socio-economic and cultural development. This account is motivated by the manner in which the question of self-determination for the Southern Cameroons has been dealt with since the times of decolonisation, resulting in yet another bloody conflict on the African continent. Contrary to the global commitment to secure universal peace and security and the adherence by member states of the African Union to human rights and a peaceful and secure Africa, the escalating conflict in the Southern Cameroons not only challenges these aspirations but has also generated a humanitarian emergency of enormous proportions. Because self-determination is guaranteed to apply unconditionally within the context of decolonisation, I post two important questions. First, why was the Southern Cameroons deprived of the right to sovereign statehood when other trust territories gained independence? Second, is the Southern Cameroons still entitled to assert sovereignty on the basis of the inalienable right to self-determination? In responding to these questions, I explain how self-determination for the Southern Cameroons was compromised and further provide justification for the legitimate quest to sovereign statehood.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"29 1","pages":"288-308"},"PeriodicalIF":0.2,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46860053","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}
This article discusses the case of September v. Subramoney heard in 2019 in the Equality Court. Following a discussion of the case, the article examines the implications of this case for future jurisprudence with reference to the use of non-binding international law in South African litigation, the implications this case has for other transgender inmates as well as its implications for other state institutions, for example the principle of reasonable accommodation in so far as it applies to transgender persons, the recognition of gender identity as an analogous ground in discrimination law, and the endurance of the binary model of gender identification in South Africa.
{"title":"September v. Subramoney and its Implications for Transgender Persons in South Africa","authors":"Rachel Sloth-Nielsen","doi":"10.3366/AJICL.2021.0366","DOIUrl":"https://doi.org/10.3366/AJICL.2021.0366","url":null,"abstract":"This article discusses the case of September v. Subramoney heard in 2019 in the Equality Court. Following a discussion of the case, the article examines the implications of this case for future jurisprudence with reference to the use of non-binding international law in South African litigation, the implications this case has for other transgender inmates as well as its implications for other state institutions, for example the principle of reasonable accommodation in so far as it applies to transgender persons, the recognition of gender identity as an analogous ground in discrimination law, and the endurance of the binary model of gender identification in South Africa.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"29 1","pages":"325-337"},"PeriodicalIF":0.2,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43084248","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}
This paper examines the theory and practice of electricity federalism in the Nigerian federation. Although Nigeria is an American-styled federal entity, its practice does not reflect the true principles of federalism as practiced in America. Nigeria's electricity sector is a reflection of its imperfect practice of federalism. The effect is felt in the poor performance of the electricity sector, especially off-grid undertakings. Thus, this study turns to the practice of electricity federalism in the United State of America as a model federalist system from which Nigeria can draw inspiration towards a better practice of electricity federalism. Evidence from America demonstrates how fiscal federalism led to a robustly developed power sector. It is argued that, although constituent states of Nigeria have the legal capacity, they lack the wherewithal to develop robust off-grid electricity undertaking under the current federalist system. Hence, political restructuring that would ensure fiscal federalism is needful in Nigeria.
{"title":"Application of Electricity Federalism in Nigeria: Drawing Inspiration from America","authors":"E. Herbert","doi":"10.3366/AJICL.2021.0361","DOIUrl":"https://doi.org/10.3366/AJICL.2021.0361","url":null,"abstract":"This paper examines the theory and practice of electricity federalism in the Nigerian federation. Although Nigeria is an American-styled federal entity, its practice does not reflect the true principles of federalism as practiced in America. Nigeria's electricity sector is a reflection of its imperfect practice of federalism. The effect is felt in the poor performance of the electricity sector, especially off-grid undertakings. Thus, this study turns to the practice of electricity federalism in the United State of America as a model federalist system from which Nigeria can draw inspiration towards a better practice of electricity federalism. Evidence from America demonstrates how fiscal federalism led to a robustly developed power sector. It is argued that, although constituent states of Nigeria have the legal capacity, they lack the wherewithal to develop robust off-grid electricity undertaking under the current federalist system. Hence, political restructuring that would ensure fiscal federalism is needful in Nigeria.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"29 1","pages":"223-243"},"PeriodicalIF":0.2,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46321555","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}
A fundamental requirement of Islamic financial practice, Shariah-compliance covers all aspects of the transaction from contractual agreements to execution to dispute resolution. Thus a sound judicial system with in-built Shariah-compliance mechanisms is indispensable to facilitate the execution of such contracts and to ensure the sustainability of the practice. In Nigeria, this system is still under development with the judiciary the most readily available option for dispute resolution. However, comprised merely of civil courts with jurisdiction to hear Islamic finance cases, these mechanisms subject the industry to possible legal and Shariah-compliance risks. Having conducted a series of interviews with experts, this study recommends: constitutional and legislative reform to grant jurisdiction to existing civil courts; the Financial Regulations Advisory Committee of Experts (FRACE) should be statutorily entitled to offer binding advice to courts; the practice itself should be enshrined in appropriate legislation; and there should be curricular reform to ensure judges and lawyers are adequately trained/educated in the particulars of Islamic finance.
{"title":"Judicial Challenges Facing the Islamic Finance Industry of Nigeria","authors":"Zakariya Mustapha, S. Kunhibava, Aishath Muneeza","doi":"10.3366/AJICL.2021.0362","DOIUrl":"https://doi.org/10.3366/AJICL.2021.0362","url":null,"abstract":"A fundamental requirement of Islamic financial practice, Shariah-compliance covers all aspects of the transaction from contractual agreements to execution to dispute resolution. Thus a sound judicial system with in-built Shariah-compliance mechanisms is indispensable to facilitate the execution of such contracts and to ensure the sustainability of the practice. In Nigeria, this system is still under development with the judiciary the most readily available option for dispute resolution. However, comprised merely of civil courts with jurisdiction to hear Islamic finance cases, these mechanisms subject the industry to possible legal and Shariah-compliance risks. Having conducted a series of interviews with experts, this study recommends: constitutional and legislative reform to grant jurisdiction to existing civil courts; the Financial Regulations Advisory Committee of Experts (FRACE) should be statutorily entitled to offer binding advice to courts; the practice itself should be enshrined in appropriate legislation; and there should be curricular reform to ensure judges and lawyers are adequately trained/educated in the particulars of Islamic finance.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"29 1","pages":"244-262"},"PeriodicalIF":0.2,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48903518","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}
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