Comparative and International Law Journal of Southern Africa-CILSA最新文献_第3页

Harmful Practices: An Obstacle in the Realisation of Women’s Rights in Tanzania 有害做法:坦桑尼亚实现妇女权利的障碍

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-05-23 DOI: 10.25159/2522-3062/7284

N. Msuya

{"title":"Harmful Practices: An Obstacle in the Realisation of Women’s Rights in Tanzania","authors":"N. Msuya","doi":"10.25159/2522-3062/7284","DOIUrl":"https://doi.org/10.25159/2522-3062/7284","url":null,"abstract":"This article considers harmful practices in Tanzania that violate women’s rights. Most provisions of international human rights treaties that focus primarily on women in Tanzania have not been adequately incorporated into national legislation. Efforts to implement such international treaties are often met with suspicion or hostility from the communities owing to a prevalent patriarchal system and its accompanying customs. Women are systematically being denied their rights to autonomy, health and education with the excuse of ‘harmful practices.’ Although the universality of human rights norms and the right to enjoy one’s own culture and respect for cultural diversity have been challenged, it is undeniable that, whenever a state enters into an agreement with the intention of being governed by international law, that state has a legal obligation to comply with such international law or treaty. This article seeks to explore aspects of existing cultural practices and traditions that need to be abolished to conform to the provisions of international law. It is argued that traditional and cultural practices should adhere to the values of equality and women’s rights and that a strong legal framework is essential for addressing harmful practices.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46057426","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}

引用次数: 0

A Comparative Juridical Analysis of the Constitutional Advancement of Women’s Matrimonial Property Rights in Swaziland and Kenya 斯威士兰和肯尼亚宪法保障妇女婚姻财产权的比较法律分析

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-05-18 DOI: 10.25159/2522-3062/8182

I. Moodley

{"title":"A Comparative Juridical Analysis of the Constitutional Advancement of Women’s Matrimonial Property Rights in Swaziland and Kenya","authors":"I. Moodley","doi":"10.25159/2522-3062/8182","DOIUrl":"https://doi.org/10.25159/2522-3062/8182","url":null,"abstract":"The equalisation of women’s and men’s marital rights is still a challenge for certain countries on the African continent. Although most African countries have adopted supreme constitutions guaranteeing a host of justiciable human rights, the marginalisation and subjugation of women persists. In this article, we engage in a critical review and assessment of two divergent court decisions (one from Swaziland and the other from Kenya) which concern the matrimonial property rights of women. Those cases will be used as the foundation for investigating and evaluating the degree to which Swaziland and Kenya are either enhancing or constraining women’s matrimonial rights. In this article, we also assess the extent to which national constitutional law is being harmonised with existing and recently promulgated legislation and whether the purported synthesis of enacted marriage laws has affected constitutional equality in those specific countries. Additionally, we contend that the promulgation of new legislation and/or the amendment or repeal of unconstitutional legislation is insufficient to advance true equality. The courts or the judiciary, must also perform their remedial and pre-emptive role in the protection, enforcement and promotion of constitutional rights and the facilitation of equality reform. In our opinion, the matrimonial property rights of women in Africa can be equalised and enhanced even in systems of law that remain rooted in traditionalism and which habitually treat women as inferior to men. Such a mammoth undertaking requires a dual commitment and concerted action from both the legislature and the judiciary.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45234823","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}

引用次数: 0

Retraction Notice: ‘Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting’ 撤销通知:《资助核心犯罪:协助和教唆》的个人刑事责任

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-05-13 DOI: 10.25159/2522-3062/11291

The Editor

{"title":"Retraction Notice: ‘Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting’","authors":"The Editor","doi":"10.25159/2522-3062/11291","DOIUrl":"https://doi.org/10.25159/2522-3062/11291","url":null,"abstract":"We, the Editors and Publishers of The Comparative and International Law Journal of Southern Africa, have retracted the following article: \u0000Laura Ausserladscheider Jonas and Dire Tladi, ‘Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting’ 54(1) 2021Comparative and International Law Journal of Southern Africa \u0000Following its publication, it was brought to our attention that this article contains significant overlap, in the form of continuous paragraphs and their accompanying footnotes, with the following chapter: \u0000Manuel J. Venturas, ‘Aiding and Abetting’ in Jérôme de Hemptinne, Robert Roth, Elies van Sliedregt, Marjolein Cupido, Manuel J. Ventura and Lachezar Yanev (eds), Modes of Liability in International Criminal Law (Cambridge University Press, 2019) The journal article ‘Individual Criminal Responsibility’ reproduced significant parts of the chapter in Modes of Liability without appropriate attributions or citations. \u0000The second author, Dire Tladi, has requested to be dissociated from the publication. \u0000We have been informed in our decision-making by our policy on publishing ethics and integrity and the COPE guidelines on retractions. The cover page only of the retracted article will remain online to maintain the scholarly record, but it will be digitally watermarked as “Retracted.”","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42748715","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}

引用次数: 0

Misappropriated Development: Exploring Accountability as the Rate-determining Step to the Realisation of the Right to Development in Select African Countries 被挪用的发展:探索问责制作为特定非洲国家实现发展权的决定性步骤

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-04-12 DOI: 10.25159/2522-3062/9254

Rita Ozoemena

{"title":"Misappropriated Development: Exploring Accountability as the Rate-determining Step to the Realisation of the Right to Development in Select African Countries","authors":"Rita Ozoemena","doi":"10.25159/2522-3062/9254","DOIUrl":"https://doi.org/10.25159/2522-3062/9254","url":null,"abstract":"The right to development seeks to provide the enabling environment for the participation, contribution and well-being of persons in their freedom to enjoy their socio-economic development. The realisation of the right to development, therefore, imposes a duty on the state to ensure that the basic needs of the people are met without any impairment. The challenge in promoting the quality of life of the people as envisaged in the right to development often falls on a strong public service where accountability is a core component. Misappropriation of allocated funds, especially in the public sector, results in misgovernance of the institutions of state. Africa also struggles with the misappropriation of public funds, which hinders the provision of basic goods and quality services for the well-being of the population. Accountability, therefore, is the rate-determining step to the social, economic, political and cultural development of the people. In this article, the concept of the rate-determining step seeks to eliminate the challenges to the process of development to engender social transformation, with specific reference to Nigeria and South Africa. Rampant corruption and misgovernance in many provinces, especially the Free State, undermine South Africa’s strength in fulfilling its development plans. Nigeria is an oil-rich country, yet the region where the oil is produced remains impoverished. This article focuses on accountability as the essential element in curbing misgovernance and misappropriation and examines the development agenda of these regions and the rate-determining step to the realisation of these development objectives, with a view to advancing a development model that puts the individual at the core of its development programmes and processes.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45507422","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}

引用次数: 0

South African Creditors May Wield the Gibbs Rule to Confront an Italian Pre-Insolvency Statutory Restructuring Composition 南非债权人可以运用吉布斯规则来对抗意大利破产前的法定重组组成

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-04-05 DOI: 10.25159/2522-3062/9617

Alastair Smith, A. Boraine

{"title":"South African Creditors May Wield the Gibbs Rule to Confront an Italian Pre-Insolvency Statutory Restructuring Composition","authors":"Alastair Smith, A. Boraine","doi":"10.25159/2522-3062/9617","DOIUrl":"https://doi.org/10.25159/2522-3062/9617","url":null,"abstract":"This article summarises the judgment in Cooperativa Muratori & Cementisti & others v Companies and Intellectual Property Commission & others, in which the Supreme Court of Appeal confirmed the statutory denial of business rescue to external companies and refused to recognise and apply the Italian restructuring process in South Africa. The article then discusses the private international law (conflict of laws) on the discharge of a contract by a foreign sequestration or liquidation, and the statutory novation of the contract by a foreign pre-insolvency composition or restructuring. Central to the debate over characterisation and choice of law (between contract or insolvency) is the effect of the Gibbs rule, a long-standing feature of the law of the United Kingdom, South Africa, and several other countries, but increasingly controversial because of contemporary ideas of cross-border insolvency law. The article argues for an approach based on contract and company law rather than insolvency law, because pre-insolvency proceedings, by definition, do not involve a winding-up order or a liquidation process, and, if timely and successful, prevent both. The South African private international law on the recognition of a foreign pre-insolvency statutory composition or restructuring as a foreign judgment may thus need to be reconsidered.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42134175","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}

引用次数: 0

Considering Mental Health Courts for South Africa: Lessons from Canada and the United States of America 考虑为南非设立精神卫生法庭:来自加拿大和美利坚合众国的经验教训

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-02-24 DOI: 10.25159/2522-3062/9428

Letitia Pienaar

{"title":"Considering Mental Health Courts for South Africa: Lessons from Canada and the United States of America","authors":"Letitia Pienaar","doi":"10.25159/2522-3062/9428","DOIUrl":"https://doi.org/10.25159/2522-3062/9428","url":null,"abstract":"Under the South African criminal justice system, mentally ill persons in conflict with the law spend long periods awaiting forensic assessment, owing to resource shortages (staff and available beds). Accused persons awaiting forensic assessment are often kept in correctional facilities where mental health care services are lacking. This leaves many accused individuals who are mentally ill at risk of falling between the proverbial cracks of the system. The diversion of the accused with mental illness from the criminal justice system into a treatment programme could address this problem. Currently no such formal diversion option exists in South Africa. Mental health courts as a formal diversion option are gaining popularity in jurisdictions such as Canada and the United States of America, where delays with forensic assessments and, in particular, pre-trial fitness assessments are rife. These courts employ therapeutic jurisprudence to deliver justice. This contribution explores the nature of a mental health court and looks at such courts in Canada and the United States of America and considers whether South Africa could benefit from such a court and whether it would be viable within the South African legislative framework.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42165215","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}

引用次数: 1

Challenges and Prospects of Litigating Sexual and Reproductive Health and Rights of Women in Nigeria: Lessons from Comparative Foreign Jurisprudence 尼日利亚妇女性健康和生殖健康及权利诉讼的挑战和前景:来自比较外国法理学的教训

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-02-24 DOI: 10.25159/2522-3062/7662

A. Akintayo

{"title":"Challenges and Prospects of Litigating Sexual and Reproductive Health and Rights of Women in Nigeria: Lessons from Comparative Foreign Jurisprudence","authors":"A. Akintayo","doi":"10.25159/2522-3062/7662","DOIUrl":"https://doi.org/10.25159/2522-3062/7662","url":null,"abstract":"Available statistics revealed vulnerable and fragile conditions for women in Africa, including Nigeria. This is due to the persistent violation of their sexual and reproductive health and rights (SRHR), maternal heath rights, choice of spouse and right to determine whether or not to have children and the numbers of children to have, access to contraceptives, etc. These rights are violated due to cultural norms, medical negligence, lack of access to social and economic resources, etc. If this condition is left to fester, Nigerian women may never attain their full potential and capabilities to develop because of the links that exist between sexual and reproductive health and rights and equality, empowerment, economic growth and development. There is, therefore, a need to strengthen this fragile condition through the effective implementation and enforcement of international, regional and national laws relating to SRHR. Rights litigation strategy is an acknowledged tool of empowerment and transformation in this regard. Consequently, this article examines SRHR of women in Nigeria, highlighting the challenges with litigating cases involving SRHR. Also, the article considers the prospects for litigation through a comparative study of selected jurisdictions in order to explore how they have engaged with similar situations and challenges of litigating SRHR and to identify lessons for Nigerian courts.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43301318","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}

引用次数: 0

The South African Constitutional Court Judgment Concerning the Suspension of SADC Tribunal: Critiquing the Critics of the Constitutional Court 南非宪法法院关于暂停南部非洲发展共同体法庭的判决:批评宪法法院的批评者

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-02-01 DOI: 10.25159/2522-3062/9506

Mkhululi Nyathi, Moses Retselisitsoe Phooko

引用次数: 0

Investigating the Possibility of Suspending or Terminating a Strike on Account of Violent Conduct: Transplanting Lessons from Australia 调查因暴力行为而中止或终止罢工的可能性:移植澳大利亚的经验教训

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-02-01 DOI: 10.25159/2522-3062/8529

M. Tenza

{"title":"Investigating the Possibility of Suspending or Terminating a Strike on Account of Violent Conduct: Transplanting Lessons from Australia","authors":"M. Tenza","doi":"10.25159/2522-3062/8529","DOIUrl":"https://doi.org/10.25159/2522-3062/8529","url":null,"abstract":"South Africa has a history of violent industrial strikes, with authorities seemingly unable to exert control. The existing remedies in the form of an interdict and advisory arbitration awards do not appear to address violence during strikes. Violent and lengthy strikes affect members of the public and have long-term effects on the economy, resulting in loss of employment and poverty. Since South Africa does not have the legal mechanisms to deal with or curb violent strikes, this article submits that lessons could be drawn from foreign law on how to deal with these strikes. In this article, Australia is the foreign jurisdiction from which lessons are drawn. This article commences with a comparative analysis of industrial action between Australia and South Africa to answer the question of whether violent strike action is unique to South Africa. The article establishes that the Fair Works Commission (FWC): Australia’s National Workplace Relations Tribunal can suspend or terminate industrial action that is characterised by violence. It then suggests that part of Australian labour law could be transplanted into South African labour law to combat strike-related violence. The article suggests that the Labour Relations Act 66 of 1995 (LRA) should be amended to include a provision that will empower the Labour Court to suspend or terminate industrial action once it turns violent, thus benefitting the economy and preventing job losses.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43624340","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}

引用次数: 0

The Changing World of Work and Further Marginalisation of Workers in South Africa: An Evaluation of the Relevance of Trade Unions and Collective Bargaining 不断变化的工作世界和南非工人的进一步边缘化：对工会和集体谈判相关性的评估

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Comparative and International Law Journal of Southern Africa-CILSA Pub Date : 2022-01-21 DOI: 10.25159/2522-3062/8188

William Manga Mokofe

{"title":"The Changing World of Work and Further Marginalisation of Workers in South Africa: An Evaluation of the Relevance of Trade Unions and Collective Bargaining","authors":"William Manga Mokofe","doi":"10.25159/2522-3062/8188","DOIUrl":"https://doi.org/10.25159/2522-3062/8188","url":null,"abstract":"The world is changing rapidly. The globalisation of economies and rapid technological change severely impact all nations. Trade unions, collective bargaining, and labour legislation in all states have struggled to keep pace with change, yet they must do so. Many workers will join the unemployment ‘congregation’ as some of the skills we need now and for the future do not yet exist. This poses serious challenges for the provision of employment and training. Several new research studies released by the ILO have examined the ramifications of globalisation and the effects of a fast-changing world of work on unemployment and the protection of vulnerable workers. A key finding is that policies to protect vulnerable workers more effectively will be fundamental if countries are to respond to the challenges raised by globalisation and, more recently the Covid-19 pandemic, to develop the new skills required to maximise economic potential. This article also interrogates the current role played by trade unions and collective bargaining in protecting marginalised and vulnerable workers in South Africa. It also finds that the role played by trade unions and collective bargaining in protecting marginalised workers is declining.","PeriodicalId":29899,"journal":{"name":"Comparative and International Law Journal of Southern Africa-CILSA","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2022-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47884948","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}

引用次数: 0