AGBOR A “A delineation of the impact of illicit financial flows on the right to development: details from Cameroon’s special criminal court” Journal of Purpose – This paper advances the argument that misappropriation of public funds should be construed as illicit financial flows (IFFs) which, undoubtedly, have an adverse effect on the realization of the right to development. Furthermore, by detailing the nature of IFFs, this paper aims to demystify the shallow understanding of what is IFF or what are IFFs and why misappropriation of public funds should be seen in that light. Design/methodology/approach – This paper examines and interrogates the different judgements that have been delivered in cases tried and finalised by the special criminal court (SCC). With viewpoints that are backed by a theoretical understanding of Cameroonian criminal law in particular and criminal law in general, an analysis of the underlying intentions, motives and trajectories in the commission of misappropriation of public funds corroborate the view that the offence must be construed as IFFs. The data used in this paper are primary. Findings – A few pertinent findings were made in the course of this research. Firstly, the offence of misappropriation of public funds and IFFs are not distinct, and any effort to limit the use of “funds” to finances will ultimately miss the point as property with financial value will definitely amount to funds. Secondly, through misappropriation of public funds/property, IFFs have been committed based on the trends and figures disclosed in the judgements of the SCC. Finally, the right to development requires resources and by stealing public funds, resources are deprived, thereby compromising the realisation of development and the right to development. Originality/value – This paper examines the impact of IFFs on the right to development within the context of Cameroon. By diagnosing the definition of the crime of misappropriation of public property or funds, the paper argues that such an offence must be seen as IFFs given its nature, the motive and intention underlying its perpetration. There are different ways in which scholars comprehend secularism. According to some scholars, secularism is the phenomenon in which religion is fully separated from the state and plays no part in the public domain. Others are of the view that, while secularism denotes separation between religion and state, there should be little involvement of religion in the public domain because it is a vital part of the lives of individuals. This Article aims to discuss the various interpretations of secularism, create a classification of secularism models, and examine how secularism is considered in Bangladesh. For this purpose, this Article analyzes statements given by Sheikh Mujibur Rahman (known as the Father of the Nation and the leader of the Bangladesh Awami League) to identify the secularism model followed in Bangladesh. Sheikh Mujib and his political party, the Awami League, did not explicitly use the word “secularism” until the independence war in 1971. However, secularist ideals were emphasized by the party. After independence, the Constitution of Bangladesh was adopted in 1972 and secularism was included in the Constitution. In Bangladesh, secularism is understood as the antithesis of communalism. Anti-communalism in Bangladesh does not refer to anti-religion; rather, it eliminates conflict between the various subnational communities and describes politics by giving equal status to individuals in a unified national community. President Ziaur Rahman removed the secularism principle from the Constitution in 1977 through the Fifth Amendment. Islam was declared as the state religion in 1988 during the rule of President Hussain Muhammad Ershad through the Eighth Amendment. In 2011, the Fifteenth Amendment to the Constitution was adopted during the tenure of Sheikh Hasina’s Awami League as Sheikh Hasina saw the necessity for following an established religion model, while making sure that sufficient rights were also awarded to religious minorities. Adopting Islam as the state religion is considered by the Awami League as a means of satisfying the Muslim majority and peacefully coexisting with religious groups such as Hefazat-e-Islam. This Article argues that the Awami League’s stance implies the practice of modus vivendi, which, in contemporary terms, signifies a means of living together for the population, in spite of their contradictory features, which emerge mostly because of difference in opinions, interests, religions, ethnicities, or beliefs. Through the practice of modus vivendi, these differences are recognized and facilitated. The meaning of secularism (and the issue of whether the state should be committed to secularism) is deeply contested in Bangladesh, making the country an interesting case study. BIERMANN F, OOMEN J, GUPTA A, ALI S, CONCA K, HAJER M, KASHWAN P, KOTZÉ LJ, Leach M, Messner D, Okereke M, Persson Å, Potočnik J, Schlosberg D, Scobie M, and Van de Veer S “Solar Geoengineering: The Case for an International Non-use Agreement” 2022(e754) WIREs Climate Change 1-8 Solar geoengineering is gaining prominence in climate change debates as an issue worth studying; for some it is even a potential future policy option. We argue here against this increasing normalization of solar geoengineering as a speculative part of the climate policy portfolio. We contend, in particular, that solar geoengineering at planetary scale is not governable in a globally inclusive and just manner within the current international political system. We therefore call upon governments and the United Nations to take immediate and effective political control over the development of solar geoengineering technologies. Specifically, we advocate for an International Non-Use Agreement on Solar Geoengineering and outline the core elements of this proposal. CHITIMIRA H “Theoretical aspects of insider trading regulation in Zimbabwe” Journal of Financial Crime, Vol. 29 No. 1, 2022, pp. 389-405 Purpose – Insider trading is treated as a punishable offence in many jurisdictions and countries. In relation to this, various theories were developed to justify and enhance the regulation of insider trading in such jurisdictions and countries. For instance, regulatory bodies and the relevant courts in jurisdictions such as the Commonwealth and the European Union as well as in countries such as the USA and the UK have to date developed and consistently applied theories such as the classical theory, misappropriation theory, fiduciary theory, unified theory and equal access theory in their quest to detect, prevent and combat insider trading activities. For the purposes of this article, the aforesaid theories are discussed so as to recommend possible measures that could be adopted by the policy makers to effectively curb insider trading activities in the Zimbabwean financial markets. It is against this background that some theoretical aspects of the insider trading regulation as adopted by the Zimbabwean policymakers, regulatory bodies and the relevant courts are scrutinised in this paper. This is done to, inter alia, investigate possible flaws and the rationale for such direct and indirect application of certain insider trading theorem in Zimbabwe. Design/methodology/approach – A qualitative research methodology is used in the entire paper. Findings – It is hoped that the recommendations in the paper will be used by the relevant policymakers to enhance the curbing of insider trading in Zimbabwe. Research limitations/implications – The paper does not use an empirical research. Practical implications – It is hoped that the recommendations in this paper will be used by the relevant policymakers to enhance the curbing of insider trading in Zimbabwe. Social implications – It is hoped that the recommendations in this paper will be used by the relevant policymakers to enhance the curbing of insider trading in Zimbabwe. Originality/value – This paper is original research on the theoretical aspects of the regulation of insider trading in Zimbabwe. BIERMANN F, HICKMANN T, SׅÉNIT C-A, BEISHEIM M, BERNSTEIN S, CHASEK P, GROB L, KIM R.E., KOTZÉ L.J., NILSSON M, LLANOS A.O., OKEREKE C, PRADHAN P, RAVEN R, SUN Y, VIJGE M, J., VAN VUUREN d, AND WICKE B. “Scientific evidence on the political impact of the Sustainable Development Goals” in Nature Sustainability (2022). In 2015, the United Nations agreed on 17 Sustainable Development Goals as the central normative framework for sustainable development worldwide. The effectiveness of governing by such broad global goals, however, remains uncertain, and we lack comprehensive meta-studies that assess the political impact of the goals across countries and globally. We present here condensed evidence from an analysis of over 3,000 scientific studies on the Sustainable Development Goals published between 2016 and April 2021. Our findings suggests that the goals have had some political impact on institutions and policies, from local to global governance. This impact has been largely discursive, affecting the way actors understand and communicate about sustainable development. More profound normative and institutional impact, from legislative action to changing resource allocation, remains rare. We conclude that the scientific evidence suggests only limited transformative political impact of the Sustainable Development Goals thus far. A company is a juristic entity possessing the legal capacity to acquire rights and obligations. However, since a company is an artificial person lacking a physical body, there are important functions that only natural persons will inevitably be required to perform on its behalf. A company usually acts through its directors or the board of directors. The interaction between company directors and other stakeholders creates various relationships between them and relevant legal subjects. In this regard, it is no longer debatable whether directors in South Africa owe fiduciary duties to the company or the shareholders as evident from section 76(3) of the Companies Act 71 of 2008 (Companies Act 2008). However, unprecedented global corporate scandals that occurred in the last two decades have triggered law reform in various jurisdictions like Australia and the United Kingdom (UK), to review directors’ duties and requiring them to become accountable to creditors. This article discusses the directors’ fiduciary duties to creditors under the South African company law in terms of both the Companies Act 2008 and the common law. The discussion of both the common law and the Companies Act 2008 is informed by the fact that the Companies Act 2008 has partially codified directors’ duties in South Africa and as such common law principles continue to apply. The article further discusses recent court jurisprudence, academic debates and the prescription of directors’ fiduciary duties to creditors in the context of insolvent companies in South African company law. https://dj.univ-danubius.ro/index.php/AUDJ/article/view/1579 CHITIMIRA H, HAMADZIRIPI F “An overview Analysis of Shareholder Activism in Zimbabwe” Perspectives of Law and Public Administration, Vol 11 Issue 1, March 2022, pp 176 – 188 Shareholder activism refers to any legal mechanisms that disgruntled shareholders invoke to change an investee company’s undesirable decisions, policies and practices. Shareholder activism entails, inter alia, measures, campaigns and/or proposals that are employed by one or more shareholders of a company to effect some reform in that company regarding its business, governance, management, strategy or in respect of a particular corporate action or fundamental transaction that is considered or undertaken by their company. Therefore, shareholder activism is one of the tools that could be employed by shareholders in Zimbabwe to voice their concerns and change certain poor corporate decisions and/or illicit conduct of company directors. As such, shareholders of companies in Zimbabwe have a plethora of mechanisms that could assist them to voice their concerns and promote good corporate governance practices. For example, in 2014, Zimbabwe introduced the National Code of Corporate Governance (Corporate Governance Code 2014) which consolidated corporate governance principles in a single policy instrument. The Corporate Governance Code 2014 empowers shareholder activist to promote good corporate governance practices by selling their shares, exercising their right to vote at annual general meetings and enforcing certain disclosure and transparency requirements in Zimbabwe. Zimbabwe has also recently enacted the Companies and Other Business Entities Act [Chapter 24:31] 4 of 2019 (COBE Act). The COBE Act provides shareholders with several avenues such as the derivative action, the oppression remedy and the appraisal remedy by which disgruntled shareholders could compel company directors to change their decisions and actions. However, despite these legislative and self-regulatory activism mechanisms that shareholders could employ to improve good corporate governance practices, corporate mismanagement remains a major problem in Zimbabwe. This article analyses shareholder activism under the current self-regulatory and statutory framework in Zimbabwe. It appears that the current statutory and self-regulatory framework for shareholder activism is flawed and inadequately enforced to combat shareholder passivity challenges in most companies in Zimbabwe. Accordingly, some recommendations that could be employed by policy makers and other relevant stakeholders to effectively promote shareholder activism in Zimbabwe are provided. CHITIMIRA H, HAMADZIRIPI F, MOPIPI KN “Reconceptualising The Focus of Corporate Social Responsibility Initiatives to Address the Digital Divide in South Africa During The Covid-19 Pandemic” Perspectives of Law and Public Administration, Vol 11, Issue 2, June 2022 pp. 294 - 305 One of the objectives of the Organisation for Economic Co-operation and Development’s (OECD) Principles of Corporate Governance is to create an inclusive society by nurturing a commercial environment rooted in trust, transparency and accountability. In creating a socially inclusive environment, the acceleration of the fourth industrial revolution (4IR) and its applicability in South African companies must be borne in mind. This acceleration has precipitated a shift in the manner in which South African businesses operate in several ways. For example, various South African companies have embraced several digital technologies such as artificial intelligence and machine learning. The use of these technologies has highlighted the inequality that has plagued South African companies. Additionally, the Coronavirus disease (COVID-19) has widened the digital divide in South African companies. This article highlights the importance of South African companies incorporating information and communications technology (ICT) infrastructure as a key corporate social responsibility (CSR) initiative. The article further argues that CSR initiatives targeting ICT infrastructure could benefit the South African economy and society during the COVID-19 pandemic. In this regard, the authors will demonstrate how the stakeholder approach is vital for corporate growth in South Africa. The authors also argue that concerted efforts by companies to build more ICT infrastructure could lead to a more inclusive society which could promote an efficient economy that attracts investors and enhances domestic and international trade. CHITIMIRA H, SETHUNYANE T and MAGAU P “Overview Challenges The adoption of poor corporate governance measures has to date given rise to many problems of corruption, embezzlement of public funds and maladministration in several municipalities in South Africa, including the Mahikeng local municipality. The Mahikeng local municipality has had a bad reputation of corruption, embezzlement of public funds and maladministration challenges in the recent years. These challenges are reportedly perpetrated by the municipal manager who is responsible for the management of the municipal budget and related funds. Moreover, irregular expenditure, wasteful and irregular expenditure, non-compliance with the relevant laws, poor management, political interference, lack of political will and lack of accountability are further challenges that have crippled the proper and effective management of the Mahikeng local municipality. In light of this, this article investigates the adequacy and enforcement of the relevant laws to promote good corporate governance in Mahikeng local municipality. This is done to recommend the adoption and utilisation of good corporate governance principles and related measures to, inter alia, promote accountability and consequent management of the Mahikeng local municipality. CHO DT and AGBOR AA “Prosecuting Human Violations Committed in the Anglophone Cameroon Crisis: A Disquisition on the Legal Framework” PER Vol 25 (2022), pp 1- 29 The prosecution of perpetrators of mass violations of human rights remains one of the unfinished tasks of Africa's ʺdemocraciesʺ which, in itself, is eloquent evidence of the need for systemic arrangements to protect human rights, build a culture of the rule of law and ultimately defeat impunity. Emboldened by the absence of the foregoing, accountability for human rights violations of individuals and the fulfilment of the corresponding duty to prosecute violators have been contentious issues in Africa's politically volatile communities. As states are caught betwixt and between protecting human rights and holding individuals accountable, the questions about the State's fulfilment of its international obligations arises. Sourced primarily from international treaties, customary international law, and general principles of law, the duty to prosecute violations of human rights is revisited with a focus on the theoretical and legal framework. Situated in the context of the ongoing Anglophone Cameroon crisis in which political factions of the English-speaking regions are pitted against the French-speaking dominated Government of Cameroon, and bringing to the fore the violations, which have become an odious scourge, this paper argues that there is a sacrosanct duty on the Government of Cameroon to investigate, prosecute and punish such violations. The paper interrogates the relevant international law instruments and engages in a dialogue with relevant and respectable literature penned by prominent scholars and jurists on the issue of accountability. It provides an analytical disquisition on the duty to prosecute which, as argued herein, must be fulfilled by Cameroon given the violations that have been committed during the ongoing Anglophone Cameroon crisis. DU PLESSIS, E. (2022). “Does Dagan's liberal theory of property provide for compensation at nil compensation in the South African context?” International Journal of Law in Context, 18(2), 250-258. Being asked to write a few words on a book entitled A Liberal Theory of Property stirred conflicting emotions in me. While reading the book, I often had to ask myself: ‘Oh dear, does this mean I am a liberal?’ Upon self-reflection, I concluded that this is probably due to my limited understanding of the various traditions within liberalism. Liberalism has of late become an insult on both the Left and the Right. Believe in equality? Libtard, would be the retort from the Right. Believe in a market economy and private property (in all its complexity)? Neoliberal, would be the retort from the Left. I had to lay down my preconceived ideas of liberalism when I read the book, and I am glad I did. This note will engage with only a few of its ideas, most notably framing the failed 18th Amendment Bill to the South African Constitution that sought to amend the country’s ‘property clause’, as well as Expropriation Bill, through the ideas it puts forth. DU PLESSIS, E., VAN NIEKERK, D., Rosenkranz, B. et al. “After the COVID-19 state of disaster in South Africa” Nature Human Behaviour (2022). Arbitrarily extending a national state of disaster beyond the conditions that necessitate it can create the perception of despotic power. Declaring an emergency or a disaster enables governments to invoke extraordinary measures, usually through the executive, and allows the limitation or derogation of rights as may be necessary to deal with the emergency. To respond to the COVID-19 pandemic, many countries used emergency legislation, through a ‘state of emergency’ or through disaster or other national legislation that provided for responses to emergencies, as exemplified for the Asia-Pacific region. DU TOIT L and KOTZE LJ “Reimagining international environmental law for the Anthropocene: An earth system law perspective” Earth System Governance 11 (2022) 100132 pp 1-10 Concerns have been raised regarding the ability of international environmental law to respond to potentially irreversible earth system transformations in the Anthropocene. We argue that in order for international environmental law to have the capacity to respond to the socio-ecological challenges of the Anthropocene, it should embrace an earth system perspective. Earth system law, which is grounded in an earth system perspective, has been proposed as a new epistemic framework to facilitate the legal transformations necessary to respond to such socio-ecological challenges. With reference to recent developments in the international environmental law domain, we discuss the ways in which international environmental law currently fails to align with such a perspective and the types of considerations that international environmental law should reflect in order to be more responsive to a transforming earth system and, thus, better fit-for-purpose in the Anthropocene. DU TOIT P “Vonnisbespreking: Beheer oor eiendom as faktor by die oorweging van die toelaatbaarheid van getuienis wat by wyse van Control over property as factor considered in the context of the admissibility of evidence obtained on the strength of irregular searches Section 35(5) of the Constitution requires of a criminal court to exclude evidence obtained in a manner that violates any right in the Bill of Rights if the admission of that evidence will render the trial unfair or otherwise be detrimental to the administration of justice. In S v Tiry 2021 1 SASV 349 (HHA) the Supreme Court of Appeal upheld a decision of a high court to admit evidence obtained as a result of a defective search warrant. The court relied on a number of factors normally considered at the inquiry into the issue of trial fairness and the interests of the administration of justice, such as the good faith of the officers executing the warrant, whether the breach was technical or flagrant and whether the evidence was obtained as a result of compelled participation or conscription. In this contribution it is argued that although these factors cannot be ignored, they do not always offer useful guidance in the context of evidence obtained on the strength of an irregular search warrant. In most cases evidence obtained in this fashion will be of a non-conscripted nature and the breach of the right to privacy will be seen as technical in nature. The law, however, requires extreme care and technical thoroughness in the application for and issuing of search warrants in order to guarantee the meaningful protection of individuals against arbitrary intrusions by the state. DUBE F “Testing the right to vote in free and fair local government elections in South Africa: challenges from the COVID-19 pandemic” This article uses the doctrinal legal research method to examine the challenges that faced South Africa in preparing for the 2021 local government elections. The health risks posed by the COVID-19 pandemic led the national executive to promulgate emergency health regulations and impose lockdowns to combat the spread of the coronavirus. Inadvertently, these measures threatened the freeness and fairness of the local government elections by restricting political mobilisation and freedom of movement and association. They also led the Electoral Commission to attempt, through an inquiry and a court application, to postpone the 2021 local government elections. The discussion shows that contrary to its contentions on the impossibility of holding the elections in 2021, the Electoral Commission had unwittingly demonstrated that it was well-prepared to mitigate the risk of COVID-19 infections. This article concludes that a postponement of the elections was not warranted and would have led to legitimacy and constitutional crises. It would have undermined the democratic foundation of the South African Constitution and would have unlawfully infringed on the right to participate in free, fair, and regular elections. DUBE F “The ethos of tolerance of diversity in post-apartheid jurisprudence” Obiter 43(1) 2022 124-141 This article examines the South African judiciary’s understanding, interpretation, and application of the ethos of tolerance of diversity. The case law analysis shows that the courts treat tolerance of diversity as a constitutional value that derives from the Preamble and founding values of the Constitution of the Republic of South Africa, 1996. It also reveals that the courts moreover deduce the ethos of tolerance of diversity from the Bill of Rights, which entrenches rights and protects freedoms that could be classified as the building blocks of tolerance and diversity. Four major themes emerge from the analysis of the judiciary’s conceptualisation of the ethos of tolerance of diversity. These are the principles of reasonable accommodation; the right to be different; racial sensitivity; and transformation. Dube F and Moyo CG "The Right to Electricity in South Africa" PER /PELJ 2022(25)
In this note, we examine access to electricity as a right in South African law. We also consider whether deprivations, interferences and disruptions of electricity supply are justifiable limitations of the right. While recent court decisions view access to electricity as a supplement to the Bill of Rights, judicial treatment of electricity as a right precedes the Constitution of the Republic of South Africa, 1996. Prior to the adoption of the Constitution, the courts treated access to electricity as a common law right in the context of servitudes and personal and contractual rights. Under the Constitution, the right to access to electricity flows from the constitutional and statutory obligations of Eskom, South Africa's power utility, to provide reliable electricity supply and to ensure just administrative action when taking actions that result in the deprivation of electricity. From a Bill of Rights perspective, the cases show that the right to electricity, albeit not expressed in the text of the Constitution, is a condition for the exercise of other rights, including the rights to human dignity and access to adequate housing, water and health care. We conclude that the deprivation of electricity through loadshedding and other interruptions by Eskom, landlords and body corporates are violations of the right to access to electricity. These violations could be remedied through spoliation and constitutional remedy. FUO O, ZENGERLING C and SOTTO D “A Comparative Legal
This article aims to contribute to the growing body of urban climate-governance research from a comparative legal perspective. It analyses the climate-related mitigation and adaptation efforts in the building sector of three cities: Cape Town (South Africa), Hamburg (Germany), and Sao Paulo (Brazil). We examine national, state, and local laws and policies with a focus on building-related energy, water, and green infrastructure. The comparative analysis reveals similarities and differences in multilevel building-related laws and policies that partly enhance and partly limit cities’ climate-mitigation and adaptation efforts. The study also carves out synergies, conflicts, and key challenges in building-related climate mitigation and adaptation at the city level and suggests how identified shortcomings could be overcome. doi:10.1163/18786561-12010002 HAMADZIRIPI F and OSODE P “A Critical Assessment of Pertinent Locus Standi Features of the Derivative Remedy under Zimbabwe’s New Companies and Other Business Entities Act” Journal of African Law, 2022: pp. 1 – 24 The importance and contribution of derivative litigation to the effectiveness and credibility of a jurisdiction’s corporate governance system is indisputable. There is a positive correlation between good corporate governance practices, which include shareholders’ rights, and investors’ return on their investments. On the one hand, an overly pro-shareholder derivative scheme is vulnerable to abuse and results in unnecessary interference with company management. This may, in turn, discourage directors from entrepreneurial risk-taking and undermine enterprise efficiency. On the other hand, a complex and ineffective system of derivative litigation protects errant directors and decreases investor confidence. This article is a critical assessment of Zimbabwe’s recently adopted statutory derivative remedy. The analysis focuses on five locus standi-related aspects of the new statutory derivative regime. The article highlights some major weaknesses within Zimbabwe’s statutory remedy and proposes pertinent legislative amendments. DOI: KARRAN T, BEITER KD, Using comparable legal information, and empirical data from over 2000 members of the UK's University and College Union and 2000 staff in universities of the European states, gathered by means of similar surveys, this paper is a comparative assessment of the de jure protection for, and the de facto levels of, academic freedom enjoyed by academic staff in the UK, when compared to their EU counterparts. The paper examines the legal and constitutional protection for academic freedom and the current levels of, and changes to, the two substantive elements (freedom to teach and freedom to research) and three supportive components (autonomy, governance and tenure) of academic freedom. The study reveals that UK academic staff believe that there is a low level of protection for academic freedom and that it has declined, both in general, and with respect to the two substantive elements and three supportive components of academic freedom. Similar trends are evident in the EU states, but statistical tests reveal that for every measure utilised, the decline in academic freedom is significantly greater in the UK than in the EU states. GOVINDJEE, U. (2022). As relics of the legacy of apartheid, the boundaries of cities have expanded exponentially. The notion of the urban edge has therefore been introduced as a planning tool to prevent further sprawl and has become an integral part of spatial planning. Court judgments provide guidelines for the interpretation of the notion, but they do not give direction regarding how it should be implemented. Various factors, both planning and environmental, impact on the success or failure of the implementation of the urban edge. It is also a Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) requirement that the drafting of the Spatial Development Framework (SDF) (which may incorporate an urban edge) must consider environmental management instruments. The demarcation and periodic review of an urban edge is an important and complex exercise. The writer submits that an acceptable definition of it is necessary to help resolve the difficulties involved in this process. Section 24 of the Constitution (which is indicative of a compact and sustainable urban environment) requires consideration, as do the interdependence of urban and rural areas. Having a uniform definition of the urban edge would be useful as a guideline to municipalities when demarcating and managing it. As the urban edge may be depicted in a municipal SDF in terms of SPLUMA, and as it is a planning tool, it is recommended that the definition be established by and included in SPLUMA. The definition proposed below incorporates various elements found in existing definitions KILLIAN N “The Legal Aspects of Investment Treaties between States and Foreign Investment Companies- A South African Perspective” Interdisciplinary Journal of Economics and Business Law, 2022, Vol. 11, Issue 2, pp. 73-87 It is often argued that international law is not really law. One of the reasons for such an argument is that treaty parties can regulate their treaty relationship without any reference to domestic legislation or municipal law. The parties may, however, in the event that a foreign investment company is selling shares to a state, incorporate the relevant municipal law into their treaty to regulate their relationship, for example by incorporating municipal prospectus provisions in a treaty. Should there be a dispute between the parties, an ioternational tribunal will have authority or jurisdiction to hear or settle the dispute - not a local municipal court - by following the terms of the treaty. For this reason, this article investigates the relevance of international law and customary international law when states and foreign investment companies enter into treaties, with specific reference to interpreting a treaty between the parties. The article also refers briefly to the Vienna Convention on the Law of Treaties, 1969, to illuminate this matter. In addition, the article explores whether, to make it valid, the South African National Assembly should ratify a treaty between South Africa and foreign investment companies. The discussion examines the possible content of treaties between states and foreign investment companies, since the United Nations Conference on Trade and Development (UNCTAD) and the Organisation for Economic Co-operation and Development (OECD) offer little guidance in this regard. Some treaties require their own dispute resolution processes - processes that are not regulated by either the OECD, UNCTAD or municipal law. The article also refers briefly to the characteristics of an ioternational tribunal. KOTZÉ LJ, KIM R, BLANCHARD C, GELLERS J, HOLLEY C,
The Anthropocene requires of us to rethink global governance challenges and effective responses with a more holistic understanding of the earth system as a single intertwined social-ecological system. Law, in particular, will have to embrace such a holistic earth system perspective in order to deal more effectively with the Anthropocene’s predicaments. While a growing number of scholars have tried to reimagine law and legal scholarship in a more holistic way, these attempts remain siloed. What is required is a shared epistemic framework to enable and enhance collaborative intradisciplinary and interdisciplinary research and co-learning that go hand in hand with thorough transdisciplinary stakeholder engagement. We argue that the nascent concept of earth system law offers such an overarching epistemic framework. This article serves as an invitation to fellow explorers from various legal fields, other disciplines, and from a wide range of stakeholders to explore new frontiers in earth system law. Our aim is to further stimulate the study of earth system law, and to encourage collaboration and co-learning in a fertile epistemic space that we share. Alberts R, Retief F, Roos C, Cilliers D, LUBBE W (2022) Identifying key risks to the achievement of protected area system objectives. Nature Conservation 49: 53–75.
Protected area systems are designed in law and policy towards achieving certain policy objectives. These systems rely on legal frameworks that determine how countries designate, declare and manage their protected areas. To date, little research has been conducted on the risks faced by protected area systems. To this end, this paper aims to identify the key risks for protected area systems achieving their objectives. This is achieved through the application of Theory of Change (ToC), which is internationally recognised as the preferred method to identify underlying assumptions and risks within policy and legal frameworks. We achieve this aim through a case study analysis of the South African protected area system as embedded in law and policy. The application of the ToC method identified 25 underlying assumptions and risks which are central to the protected area system achieving its objectives. Understanding these risks allows for a better understanding of the potential failure of the system and how to avoid it. The paper then explores and discusses the identified risks in terms of existing literature and concludes by making recommendations related to further research for the identified risks. MATLALA R “Introducing feminist legal theory as a basis for South African In S v Tshabalala, the Constitutional Court considered an appeal about whether accused persons who were present at a rape scene, but who did not participate in the crime and who neither aided nor abetted the perpetrators, could be found guilty of rape. The court decided this question in the affirmative by developing the common law doctrine of common purpose and extending its application to rape cases. The court said that it did so to remove obstacles caused by patriarchal elements of the common law found in criminal law. The most interesting aspect of the judgment is that the court used feminism as a starting point for understanding the plight of women in rape cases. It affirmed its solidarity with women facing sexual violence and introduced feminist legal theory as a viable jurisprudential consideration in the adjudication of sexual crimes. This note considers the judgment and its implications for South Africa. MOYO C “Strained Relations in the Provision of Electricity Services: This note considers the judgment in City of Cape Town v National Energy Regulator of South Africa (NERSA) and Minister of Energy (unreported case number 51765/17 of 11 August 2020), which attracted much attention for its challenge of the constitutionality of section 34 of the Electricity Regulation Act, 4 of 2006. Although the question of constitutionality was not discussed in the judgment, it is argued that this was an oversight and a missed opportunity to unpack the role of municipalities in the provision of sustainable electricity services. Further, the note considers the challenges of intergovernmental relations in co-operative government (from a conceptual and practical perspective) and concludes that this case highlights the importance of good relations between organs of State, especially where contentious but important issues have arisen. MATLALA R and AGBOR A “The power of South African courts to order scientific tests to determine the paternity of a child: Highlighting the existing gaps” African Legislative reticence on the issue of compelling an unwilling or uncooperative parent and child to submit themselves for scientific test to determine the paternity of a child has sparked plenty of controversial approaches by the judiciary of South Africa: the designated authority as upper guardian of all children in the Republic. While the notion of ‘best interest of the child’ is factored in when making this determination, some courts have held that they lack such a power to make an order of that nature. Others have entertained the view that it might not be in the best interest of the child, especially when it is likely that the results of the test may prove that the alleged father is not the biological father and financial obligations may cease in this regard. In the view of another high court, discovery of the truth is also in the best interest of the child and as such the court may order such scientific tests as may be necessary. This article explores the legislative silence on the issue of ordering scientific tests. It examines the different cases in which various high courts took a different reasoning, at the end of which inconsistencies, controversies and uncertainties became the unfortunate outcome. In order to resolve this legal puzzle, especially at a time when the integrity of mothers seems to be questionable, and considering the huge financial implication it may have on those who have to pay financial support for children, the high courts may need to provide more consistency in their approach to the issue of ordering parents and children to undertake scientific tests to establish paternity. In addition, legislative reform may be needed to lay this dilemma to eternal rest. JEGEDE AO, STOFFELS MC “Climate Change Protests and a Liberal Rights The need for states and civil society to contribute to the global response to climate change is an important feature of international climate change instruments and literature. While states are duty-bearers of rights for all, protests are a historic strategy of civil society to demand accountability and foster societal change. The protection of protests is not specifically guaranteed under human rights law, but its inferred legal basis and scope reflects the liberal tradition, where Dworkin’s right-based theory on the tension between individual rights and the collective or societal goal is significant. This tension is expressed in South Africa, a developing country, where the liberal rights tradition has played a major influence on the formulation and application of rights and their legal limitations. The challenges which may result from this tension for climate-related protests are rarely clarified and the way in which these challenges may be addressed has not been carefully articulated. Employing Dworkin’s liberal rights as a basis of analysis, this contribution demonstrates how the tension between collective goals and individual rights may generate challenges in climate change protests. It then highlights key constitutional concepts associated with rights that may be helpful in addressing the drawbacks in South Africa. https://doi.org/10.47348/SLR/2022/i2a7 MWONZORA G (2022) “Local Governance and Wetlands Management: A Tale of Harare City in For years, urban scholars have underscored the value of pristine and functioning ecosystems, including urban wetlands, to human life. However, less well-understood is the role of local government (mainly urban municipalities) in preserving these wetlands, especially in African cities. Drawing on a Zimbabwean case study and utilising the Urban Sustainability Framework (USF), this article examines how and why the Harare municipality has failed to protect wetlands in and around Harare City by allowing for the expansion of infrastructural development in wetland areas despite the existence of city by-laws and planning policies regulating the built environment. The article further adopts a critical view of what the law prescribes for wetland preservation vis-à-vis the local government’s practical actions in preserving urban ecosystems. Such an enquiry lies at the heart of understanding the sustainability of cities in the Global South in the wake of various anthropogenic and other human activities wrought by the growing pressures of urbanisation. The analysis is pertinent in deepening our empirical understanding of the role of local government and cities in shaping local, national and global sustainability. MWONZORA G “Demolitions of Informal Business Structures in Recent research on the informal sector has devoted considerable attention in examining how informal traders have been affected by the coronavirus in different temporal and spatial settings. However, less well understood is the extent to which central and local governments can cunningly use the veil of COVID-19 pandemic to regulate and re-shape the informal sector. Seeking to remedy this shortcoming in the prevailing accounts and utilising a qualitative research methodology including observations, discourse analysis, critical review of policy pronouncements, by-laws, legislation, video evidence from city officials, government, health authorities, vendors associations, newspapers articles and through a case study analysis of Harare City in Zimbabwe. The article contributes to the academic and policy discussions on how law, disease outbreak, policy and governmentality of African urban spaces intersect. STEYN NR "Legislative Responses to the Challenge of Insufficient Data on Water Service Delivery in South African Cities" Urban Forum Jan 2022 pp 1-18 This article investigates the existing legal responses to the challenge of insufficient data on water service delivery in cities. The article finds that no explicit duty exists for cities to collect the data or information that they are regularly required to provide. While such a duty may be implied from Sect. 69 of the Water Services Act 108 of 1997, there is no clear indication of what information cities would need to provide. Furthermore, an extensive analysis of the current national systems of information operated by the Department of Water and Sanitation reveals that there are numerous and significant issues on these databases, especially concerning the quality, integrity, and timeliness of the data. Finally, the article proposes that due to the unique position of cities concerning the provision of water services, and the need for complete and reliable data, the law should emphasise cities’ role in the collection of data. STEYN NR “Exploring the Adequacy of South African Water Law in Managing South African cities face significant levels of water wastage and inefficient use, which hamper the supply of water services to communities. A primary reason for this is high levels of non-revenue water, also known as water losses. Non-revenue water includes all water lost through physical leakages, commercial losses and unbilled authorised use before it reaches the consumer. Non-revenue water is estimated at more than thirty-seven per cent on average in South African cities, and up to sixty per cent in many irrigation and municipal supply schemes. For cities to increase their water supply and to provide sufficient water to communities, they must drastically decrease non-revenue water to reconcile water withdrawals with supply. This article critically examines the country’s water laws and policies to determine the specific duties that cities have with regard to the challenge of non-revenue water. The article also seeks to determine the adequacy of the law in managing non-revenue water in cities. While it finds that the law provides adequately for the regulation of non-revenue water in cities, many duties overlap and the legal framework is fragmented. The author offers several recommendations, including the development of improved oversight measures to ensure that cities fulfil the duties expected of them.
VILJOEN G “The Transformed Water Regulatory Regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to “all water” in South Africa and that acknowledges that “water belongs to all people”. To facilitate the notion that water belongs to all people, the legislature formally introduced the concept of public trusteeship into the country’s water law. Since the promulgation of the Act, there has been no attempt in reported case law to provide a thorough exposition of the impact of the concept of public trusteeship in the water law context. This case note explores how the High Court for the first time deliberated on the impact on the nature, form, extent and limits of use rights that can be acquired in water as a natural resource in the new regulatory regime. WRIGHT J, DUBE F and DU PLESSIS A “Judicial Enforcement of Mandatory This article evaluates the judicial enforcement of provincial interventions in municipalities as a viable response to the collapse of local government in South Africa. We argue that when relations between municipalities and their communities have deteriorated to a level of deep mistrust and collapse, and when there is dismal service delivery, there is a case for the courts to order unresponsive provincial authorities to intervene in municipalities as provided for in law. Such interventions are necessary in the name of intergovernmental support and co-responsibility. They protect the rights of communities. However, reality shows that judicially ordered interventions are simplistic solutions that do not do justice to the legal and political complexities around such interventions. Party politics and the need for sustained good local governance often clash when the judiciary orders provincial executives to intervene in failing municipalities. Consideration of the aftermath of judicially ordered interventions in selected cases in this article confirms that whereas litigation may enforce the law around provincial interventions and municipal duties, it is a short-term fix that does not bring sustainable solutions to the collapse of local government. Instead, it often exacerbates the situation.
This book reflects the outcome of research undertaken by the author over a number of years. The intended readership, also confirmed by the publisher, is scholars in the field of constitutional comparison in jurisdictions around the world. The manuscript has undergone a thorough pre-publication double-blind peer review. The book appeared both in the UK and the USA in an acclaimed specialized series of monographs of the publisher and as an eBook. The methodology used for the writing of the book was itself thoroughly comparative and historical, including the investigation of the foundational theory underpinning the terminology concerned. The originality and challenging nature of the research is reflected in the critical acclaim that the book received at the time of its publication. Accredited and Non-Accredited Publications
Articles
Financial Crime - 25 April 2022, Vol.
BHUIYAN HJ “The Contested Concept of Secularism and Bangladesh” The American Journal of Comparative Law, Vol 7 No 52, 2022 pp,1 – 50
CHITIMIRA H, HAMADZIRIPI F A Reflective Discussion of the Directors’ Fiduciary Duties to Creditors under the South African Company Law” Acta
Universitatis Danubius, AUDJ, Vol. 18, No. 1/2022, pp. 80-98
http://www.adjuris.ro/revista/an11nr2.html
Affecting the Promotion of Good Corporate Governance Measures
in Mahikeng Local Municipality” AUDJ, Vol. 18, No. 1/2022,pp. 7-22
https://dj.univ-danubius.ro/index.php/AUDJ/article/view/1342
https://perjournal.co.za/article/view/11343
DOI: https://doi.org/10.1017/S1744552321000689
https://doi.org/10.1016/j.esg.2022.100132
onregmatige visentering verkry is S v Tiry 2021 1 SASV 349 (HHA)” LitNet Regte Jaargang 19, Nommer 1, 2022 pp 586-595
Southern African Public Law 1-22
DOI: https://doi.org/10.25159/2522-6800/10125
Analysis of Urban Climate Mitigation and Adaptation in the Building Sector in Brazil, Germany, and South Africa” Climate Law 12 (2022) pp 32 – 97
MALLINSON L “Academic
Freedom in Contemporary Britain: A Cause for Concern?” Higher Education Quarterly,
2021 (00), 2021: pp. 1 – 17
“Defining the Urban Edge - A Guide to its Implementation for Sustainable Development”. Potchefstroom Electronic Law Journal, 25, (Published 7 June 2022) pp 1 – 31.
PETERSMANN M, VAN ASSELT H, BIERMANN F, AND HURLBERT M “Earth System Law: Exploring New Frontiers in
Legal Science” 2022(11) Earth System Governance 100126, 1-9
https://doi.org/10.3897/natureconservation.49.83759
judicial jurisprudence: Insights from S v
Tshabalala” South African Law Journal 139(2) (2022): 274-285
https://hdl.handle.net/10520/ejc-jlc_salj_v139_n2_a2
City of Cape Town v National Energy Regulator of South Africa and Minister of Energy” Southern African Public Law 2022 vol 36 (2) pp 1 - 9
DOI: https://doi.org/10.25159/2522-6800/9562
Journal of International and Comparative Law 30(2) (2022): 270–289
Approach in South Africa: Pitfalls and Potentials” Stellenbosch Law Review
/ Regstydskrif, Vol 33, no 2, 2022:
pp 125 - 147
Zimbabwe” Urban Forum 2021: pp. 1 - 20
Harare, Zimbabwe Under the Guise of COVID-19 City Clean Up” Journal of Asian and African Studies, 00 (0),
2021: pp. 1 – 15
https://doi.org/10.1177/00219096211058878
https://doi.org/10.1007/s12132-021-09456-2
Non-Revenue Water: A Focus on South African Cities” Southern African Public Law 2022 1-28
and Sanitation [2020] Zagpphc 252 (19 June 2020)].Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 148 – 160
https://doi.org/10.47348/SLR/2022/i2a8
Provincial Interventions in
Municipalities in South Africa” 2022 55(1) Verfassung und Recht in Übersee / World Comparative Law 102-125
Articles list
Chapters in Books
Books
The field of constitutional comparison is heavily dependent on clear terminology. The book contains an in-depth analysis of the shortcomings of the constitutional vocabulary, which endangers successful comparison if it is not accounted for by comparatists.
It speaks for itself that meticulous care was taken to cite the sources of all quoted authorities (see the Bibliography). In the few instances where reliance was placed on previously published work, it is clearly indicated. For more information regarding Prof Francois Venter follow this link:
https://law.nwu.ac.za/safe-and-sustainable-cities/francois-venter
Publications not accredited
LIM TUNG, O. J. (2022). “Genetically Modified Mosquitoes to Fight Malaria in Nigeria, Burkina Faso, Mali and Uganda: What Legal Response?” Potchefstroom Electronic Law Journal, 25, (Published 7 June 2022) pp 1 – 42.
Advanced applied research on genetically modified (hereafter GM) insects is being undertaken to control insect vectors of human diseases such as mosquitoes. GM insect technologies are being developed in countries where there is a legal framework for genetically modified mosquitoes (hereafter GMM), but the beneficiaries of such insect technologies to control insect-borne diseases are most likely to be in malaria-endemic countries where the regulation of GM insect technologies is inadequate. Although no commercial release of GMM has been conducted in Africa yet, there may be prospects for the use of GMM to control malaria in malaria-endemic countries such as Nigeria, Burkina Faso, Mali and Uganda. Nigeria has the highest rate of deaths related to malaria in Africa and will potentially be targeted by companies seeking to introduce GMM as a public health tool in African countries. Research is being carried out on GMM in Burkina Faso, Mali and Uganda in collaboration with foreign companies. Whereas the control of diseases is certainly needed and there are potential public health benefits for GM insect technologies to address mosquito control, there are environmental and health concerns, and there is also the potential of the misuse of such technologies. Consequently, the use of GMM requires prior robust domestic, regional and international regulation. While the Cartagena Protocol on Transboundary Movements of Living Modified Organisms (LMOs) to the Convention on Biological Diversity (hereafter the Cartagena Protocol) and voluntary guidelines on the testing of GM mosquitoes are applicable with respect to GM insect technologies, there is a lack of international and regional guidance on the regulation of such technologies. Domestic legislation tends to focus on GM crops and is inadequate for regulating GMM. This paper discusses the legal response for the above African countries which may perhaps use GMM as a public health tool and makes recommendations for the necessary regulatory response