African Law eJournal最新文献

{"title":"The Nexus between Mobile Money Regulation, Innovative Technology and the Promotion of Financial Inclusion in Zimbabwe","authors":"Howard Chitimira, Elfas Torerai","doi":"10.17159/1727-3781/2021/V24I0A10739","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/V24I0A10739","url":null,"abstract":"The advent of mobile money innovations has given people in rural areas, informal settlements and other poor communities an opportunity to participate in Zimbabwe's mainstream financial economy. However, the technology-driven money services have presented some challenges to the traditional banking sector in general and the regulation of financial services in particular. Firstly, most mobile money services are products of telecommunication corporations, which are not banks. Telecommunication companies use their network reach to provide mobile money services via mobile devices at a cheaper cost than banks across the country in Zimbabwe. As such, banks face unprecedented competition from telecommunications companies that are venturing into financial services. It also appears that prudential regulation of banks cannot keep up with the fast pace at which technological innovations are developing and this has created a disjuncture between the regulation and the use of technological innovations to promote financial inclusion in Zimbabwe. The Banking Act [Chapter 24:20] 9 of 1999, the Reserve Bank of Zimbabwe Act [Chapter 22:15] 5 of 1999 and the National Payment Systems Act [Chapter 24:23] 21 of 2001 have a limited scope in terms of the regulation of mobile money services in Zimbabwe. The Ministry of Finance and Economic Development launched the National Financial Inclusion Strategy (NFIS) 2016-2020 to provide impetus to the financial inclusion of the poor, unbanked and low-income earners in Zimbabwe. However, the NFIS appears to push more for bank-led financial inclusion than it does for innovation-driven initiatives such as mobile money services. This article highlights the positive influence of mobile money services in improving financial inclusion for the poor, unbanked and low-income earners in Zimbabwe. The article also seeks to point out gaps and flaws in the financial services regulatory framework that may limit the potential of mobile money services to reach more people so that they actively participate in the Zimbabwean economy. It is submitted that the Zimbabwean mobile money services regulations and the financial regulatory framework should be carefully amended in line with the recent innovations in mobile money to adequately regulate the use of mobile money services and innovative technology to address the financial exclusion of the poor, unbanked and low-income earners in Zimbabwe.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114166471","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":"Fraus Legis in Constitutional Law: The Case of Expropriation 'Without' or for 'Nil' Compensation","authors":"M. V. van Staden","doi":"10.17159/1727-3781/2021/v24i0a10406","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/v24i0a10406","url":null,"abstract":"Fraus legis – defrauding or evading the application of law – is a phenomenon well-known to students of private law, but its application in public law, including constitutional law, remains largely unconsidered. To consider whether a transaction, or, it is submitted, an enactment, is an instance of fraus legis, an interpreter must have regard to the substance and not merely the form of an enactment. In 2018 Parliament resolved to amend section 25 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to allow government to expropriate property without being required to pay compensation. While the public and legal debate has since before that time been concerned with \"expropriation without compensation\", the draft Constitution Eighteenth Amendment Bill, 2019 provides instead for expropriation where \"the amount of compensation is nil\". By the admission of Parliament's legal services unit, this is a distinction without a difference. But compensation and expropriation are legally and conceptually married, and as a result, it would be impermissible to expropriate without compensation – instead, nil compensation will be \"paid\". How does this current legal affair comport with the substance over form principle, and is fraus legis at play? This article considers the application of the fraus legis phenomenon to public law, utilising the contemporary case study of the Constitution Eighteenth Amendment Bill.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115117515","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":"Differences between Members and Shareholders of a Friendly Society and the Payment of Dividends: A South African–Australian Perspective.","authors":"N. Kilian","doi":"10.17159/1727-3781/2021/v24i0a10733","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/v24i0a10733","url":null,"abstract":"This article focusses on a very specific problem statement, namely how shareholder society relationships are viewed in Australia and South Africa. Friendly societies are special \"legal creatures\" enjoying legal personality from the date and time of their registration (not as companies). In South Africa friendly societies have been in existence for more than 160 years, with the latest legislation being promulgated in 1956. As an unregistered company, the friendly society forms part of the South African business enterprise landscape and has both members and shareholders. The legal relationships between members and shareholders and the payment of a dividend are unclear in the Friendly Society Act, 1956, and are generally regulated by the constitution or memorandum of incorporation of the friendly society. In Australia friendly societies developed approximately 200 years ago. In 1999 friendly society legislation was repealed by the Financial Sector Reform Act,1999, in terms of which friendly societies had to convert to companies either as companies limited by guarantee or public companies as regulated by the Corporations Act,2001. Prior to 1999, friendly societies were largely regulated by the Queensland Friendly Society Act,1997 as unregistered companies. The Code regulated the relationships between members and shareholders and the payment of dividends. In this article we also focus on Australian friendly societies after 1999 and how they compare with South African friendly societies with regard to the member/shareholder relationships and the payment of dividends.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125386704","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":"Governance Practices That Undermine Deliberative Democracy’s Potential to Address Nigeria’s Democratic Governance Problems","authors":"O. Ajaja","doi":"10.2139/ssrn.3864608","DOIUrl":"https://doi.org/10.2139/ssrn.3864608","url":null,"abstract":"Sustainable development goals (SDGs), however, conceptualized would remain a fleeting notion in the absence of good governance and said good governance does not need to have liberal or democratic undertones. Irrespective of how good governance might be conceived, it ought to be structured in a way that aids those marginalized to actualize their socio-economic and political aspirations. It is the continued successes of illiberal constitutional orders like Kuwait, UAE, Macau, Qatar, Singapore, and China to realize this aspiration for their marginalized citizens that distinguish them from the liberal constitutional orders of the United States and other western democracies, who continue to fail their marginalized citizens. This realization is one of the factors that energize the rise of populism in western liberal democracies. Against this backdrop, there has been an increasing focus on what sought of good governance is necessary to actualize SDGs. One solution that has emerged is the incorporation of deliberative democracy ideals into the governance framework of countries. This article's focus is not to further elaborate on their findings. Instead, and relying on Nigeria as a case study, this article identifies governance practices that could constrain the potential of deliberative democracy, and by extension, the actualization of Nigeria's SDGs aspirations. This inquiry is essential because inserting deliberative democracy's precepts into Nigeria's existing governance framework would enable the Nigerian constitutional order to inter alia be more attuned to producing fair and just outcomes for all Nigerians, rather than Nigerian elites as presently obtainable.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115455010","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":"Unmasking the Legal Connotations of a Coastal State under the International Maritime Law Regime – Nigeria in Perspective","authors":"E. Briggs","doi":"10.2139/ssrn.3860294","DOIUrl":"https://doi.org/10.2139/ssrn.3860294","url":null,"abstract":"Nigeria, a coastal state with a land area of 923,768.64 square kilometers, has a coastline of over 853 kilometers and navigable inland waterways of about 4,000 kilometers. The sea mass affords a veritable medium of transportation and communication. It conversely serves as an object of intense rivalry among maritime nations at different levels. In asserting their sovereign powers, coastal states are accorded certain rights and duties which are recognized by the Third United Nations Convention on the Law of the Sea 1982 (UNCLOS III) which is not only a comprehensive legal instrument that embodies one of the latest codifications and progressive development of international law, but is also a legal base for the ocean policies of nation states. This paper examines the legal implications of the international maritime law regime on Nigeria’s territorial waters and other maritime zones and appraises the gamut of rights and duties which are available to and incumbent on Nigeria in ensuring the suitable protection, preservation and tamed exploitation of her marine resources.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134258869","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":"Towards Ingenious Technology and the Robust Enforcement of Financial Markets Laws to Curb Money Laundering in Zimbabwe","authors":"Howard Chitimira, M. Ncube","doi":"10.17159/1727-3781/2021/V24I0A10729","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/V24I0A10729","url":null,"abstract":"Technology has positively contributed to the creation of financial markets and the facilitation of payments globally. The effective use of robust technology could enhance the consistent enforcement of financial market laws by curbing financial crimes in any country. This in turn would enhance the integrity of financial markets and promote the viability of financial markets. In relation to this, it appears that Zimbabwe has struggled to comply with international measures to combat money laundering and the financing of terrorism (AML/CFT) since it has poor financial market laws which are inconsistently enforced due inter alia to its poor money laundering detection mechanisms and inadequate resources. For instance, Zimbabwe has to date failed to make satisfactory progress to adopt and enforce adequate risk mitigation measures against money laundering practices in accordance with the Financial Action Task Force (FATF) recommendations. This is evidenced by the increased incidence of money laundering in Zimbabwean financial markets. Furthermore, the inconsistent enforcement of financial market laws has resulted in poor liquidity and the recent suspension of the Zimbabwe Stock Exchange (ZSE). The viability and integrity of the Zimbabwean financial market has thus been compromised. This article discusses the integration and use of robust technology in the Zimbabwean financial market to curb financial crimes such as money laundering and bank fraud. The adequacy of financial market laws and/or regulations will also be discussed vis-a-vis their consistent enforcement by relevant bodies such as the Financial Intelligence Inspectorate Evaluation Unit (FIU) in Zimbabwe. This is done to evaluate the use of technology to curb money laundering and promote a viable economy and financial market in Zimbabwe. It is submitted that the relevant authorities should promote the effective use of technological inventions like artificial intelligence (AI) and machine learning to curb money laundering, bank fraud and other related financial crimes in Zimbabwe.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132972818","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":"An Analysis of the 'National Security Interest' Provision in Terms of Section 18A of the Competition Act 89 of 1998","authors":"Simbarashe Tavuyanago","doi":"10.17159/1727-3781/2021/V24I0A6031","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/V24I0A6031","url":null,"abstract":"This contribution examines the implications of the \"national security provision\" in terms of section 18A of the Competition Act 89 of 1998 as inserted by section 14 of the Competition Amendment Act 18 of 2018. The effect of section 18A is that it confers upon the President of the Republic of South Africa power to appoint a national security committee whose mandate is to investigate mergers involving a foreign acquiring firm and determine whether such a merger would pose a threat to the \"national security interests\". The contribution highlights the possible challenges that the insertion of section 18A may precipitate. It argues that while the protection of national security interests is imperative, it is however not the goal of competition policy to regulate broader national security policy. In making the argument, cognisance is taken of the fact that where a gap exists in policy, legislative amendments may be used as stopgap mechanisms. The paper investigates the treatment of national security interests in foreign jurisdictions in a bid to establish whether the provision is in line with international best practice and whether any lessons may be drawn therefrom.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129171325","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":"Reviewing the Speaker's Decision: A Brief Synopsis of UDM v Speaker of the National Assembly 2017 5 SA 300 (CC)","authors":"B. Slade","doi":"10.17159/1727-3781/2021/V24I0A8111","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/V24I0A8111","url":null,"abstract":"In United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC), the Constitutional Court set out certain factors that the Speaker of the National Assembly must consider when deciding the manner in which voting in a motion of no confidence proceeding must be conducted. These factors would ostensibly also be relevant when the Speaker's decision as to the proper voting procedure is reviewed in future. This note considers the law governing the review of the Speaker's decisions and finds that although the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA. Furthermore, the Court's exposition of certain factors against which the Speaker's decision can now be reviewed creates uncertainty as to whether the review in terms of legality is a basic rationality review as is generally the case or a stricter form of review closer to review that is possible under PAJA. The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it now appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated. Although the Court, or courts in general, has the power to review the exercise of public power in a system of constitutional supremacy, it should consider the impact that its judgments may have on co-equal branches of government, as a failure to do so may negatively impact on the relationship between the different branches of government and dilute the already frayed separation of powers doctrine.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128049004","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":"The Legal Operation of Liens: Theory and Practice","authors":"Mitzi Wiese","doi":"10.17159/1727-3781/2021/V24I0A8721","DOIUrl":"https://doi.org/10.17159/1727-3781/2021/V24I0A8721","url":null,"abstract":"The legal operation of liens has been the source of academic debates for many years. Liens are traditionally classified as enrichment liens and debtor-and-creditor liens (contractual liens). In the instance of an enrichment lien the creditor (lienholder) has a contract with a non-owner and not with the owner (debtor) himself. Consequently, the creditor can vest a lien against the owner of the thing only on the grounds of unjustified enrichment. Enrichment liens are classified as real rights. In the instance of a debtor-and-creditor lien (contractual lien) the creditor (lienholder) has a contract with the owner of the thing and the contract is the basis for the liability of the owner (debtor) towards the creditor. Debtor-and-creditor liens are generally classified as personal rights. This classification causes confusion regarding the legal operation on the one hand of an enrichment lien as a real right and on the other hand of a debtor-and-creditor lien (contractual lien) as a personal right. This paper proposes that the origin of the legal claim for which the lien serves as security (unjustified enrichment or contractual) merely determines the debt (expenses) for which a lienholder can vest his lien and does not determine the classification of a lien as either a real right or a personal right. A lien can be described as a defence against the owner's rei vindicatio and is, in principle, enforceable only against the owner of the thing (security object). A lien can, however, also be enforced against parties other than the owner, including the creditors (who, for example, want to attach the thing subject to the lien) of the owner (debtor) and other real claimants. The enforcement of a lien against these parties is referred to as the real operation (third-party action) of a lien. This paper analyses the legal operation of a lien with specific reference to the debt (expenses incurred) secured by the lien, the vesting (existence) of a lien, the real operation (third-party action) of a lien and the preferential position of a lienholder in the case of the debtor' insolvency.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125399420","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":"B.P.E v Dangote Cement PLC (2020) 5 NWLR (Pt. 1717) 322: The Enforceability of Unincorporated Collective Agreements in Nigeria","authors":"V. Chukwuma","doi":"10.2139/ssrn.3785442","DOIUrl":"https://doi.org/10.2139/ssrn.3785442","url":null,"abstract":"This paper briefly reviews part of the recent decision of the Supreme Court in B.P.E v Dangote Cement Plc wherein the apex court reiterated the old common law position to wit that a collective agreement is not enforceable except where it has been incorporated into the contract of employment by the parties. The aim of this paper therefore is to discuss the applicability or otherwise of this recapitulation by the supreme court on the lower courts especially in the light of the doctrine of judicial precedent vis-à-vis the current labour dispensation in Nigeria. Adopting a doctrinal and analogical approach, the researcher finally submits that the supreme court’s decision particularly as it relates to collective agreements, is not binding on the lower courts and that, under the new labour dispensation, a collective agreement need not be incorporated into an employee’s contract of employment before it can be enforced by the court.","PeriodicalId":120850,"journal":{"name":"African Law eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114490282","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}