Mediation Legislation around the World—A Variety of Options for South Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Mediation Legislation around the World—A Variety of Options for South Africa

Author Madelene de Jong

ISSN: 2522-3062
Affiliations: BLC (University of Pretoria); LLB (University of Pretoria); LLD (University of South Africa). Professor of Law, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 279 – 318

Abstract

Mediation has gained traction across the globe on account of its strengths. At present, it has widespread application in a range of civil disputes in areas that include the family, children, labour, medical malpractice, bioethics, environmental issues, the community and education, and even criminal matters. As a result, various jurisdictions have opted to regulate mediation, at first mostly through softer forms of regulation, but more recently increasingly through extensive legislation. However, the question is whether an informal process like mediation needs to be formally regulated, and if so, how it could be regulated. Although regulation is often associated with legislation, there are in fact four different regulatory approaches, namely market-contract regulation, self-regulation, the formal-regulatory approach, and the formal legislative approach. There are also different aspects of mediation that require regulation. In this regard, reference is made to triggering laws, procedural laws, standard-setting laws and beneficial laws. With regard to the scope of mediation legislation, a further distinction is made between general mediation legislation, sector-specific mediation legislation and context-integrated mediation legislation. Against this background, the regulation of mediation in general and family mediation in particular in four foreign jurisdictions—namely Ghana as an African jurisdiction, Singapore as an Asian jurisdiction, Austria as a European-Continental jurisdiction and Australia as an Anglo-American jurisdiction—is discussed. The experiences of these jurisdictions offer useful examples for the further development of mediation regulation in South Africa. The article therefore also provides a brief overview of the current state of mediation regulation in South Africa and concludes by highlighting the valuable lessons that can be learnt from the foreign jurisdictions examined. It is abundantly clear that South Africa needs extensive mediation legislation to give mediation the formal recognition it deserves, while simultaneously maximising the benefits of mediation, minimising its potential harms and protecting the mediator, the parties and outside parties.

Natural Person Debt Relief Reforms in Nigeria—A Comparison with South Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Natural Person Debt Relief Reforms in Nigeria—A Comparison with South Africa

Authors Tobi Osunlaja, Hermie Coetzee & Melanie Roestoff

ISSN: 2522-3062
Affiliations: LLB (Olabisi Onabanjo University), LLM (University of Pretoria), LLD candidate, Department of Mercantile Law, University of Pretoria; BCom Law (University of Pretoria), LLB (University of Pretoria), LLM (University of Pretoria), LLD (University of Pretoria), Associate Professor, Department of Mercantile Law, University of Pretoria; BLC (University of Pretoria), LLB (University of Pretoria), LLM (University of Pretoria), LLD (University of Pretoria), Professor and Acting HoD, Department of Mercantile Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 319 – 351

Abstract

The purpose of this article is to compare the proposed natural person debt relief procedures in Nigeria with South Africa’s existing and proposed measures. It is the first time that the proposed Nigerian system is analysed. The comparison is made in order to determine whether Nigeria can learn from South Africa’s experience regarding natural person insolvency law. South Africa is chosen as a comparative jurisdiction because it has a wealth of documented experience relating to insolvency law. Furthermore, Nigeria and South Africa boast the two largest economies on the African continent and consequently share economic and developmental challenges. These challenges are intrinsically linked to natural person insolvency law, since they determine the context in which an insolvency law system must be developed and within which it must function. As a subtext, the research considers whether Nigeria complies with some of the more pertinent international principles and guidelines regarding natural person debt relief. To achieve this objective, the Nigerian system is measured against the yardstick of the World Bank Report on the Treatment of the Insolvency of Natural Persons. Two key foundations of effective and efficient natural person insolvency systems highlighted by the World Bank’s report relate to (a) access to insolvency systems and (b) the eventual discharge of debts that such systems should result in. The research concludes that the Nigerian natural person insolvency law reforms do not meet the required international standards in these respects and that the jurisdiction may learn from South Africa’s successes and failures within the field, particularly from the circumstances leading up to and its recent proposals for reform.

The Realisation of Children’s Survival Rights in South Africa, Kenya and the Democratic Republic of the Congo: A Comparative

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

The Realisation of Children’s Survival Rights in South Africa, Kenya and the Democratic Republic of the Congo: A Comparative

Authors Mafuku Tholaine Matadi & Desan Iyer

ISSN: 2522-3062
Affiliations: LLB (Honours) (Université William Booth/Kinshasa), LLM (University of KwaZulu-Natal), LLD (University of Zululand), Lecturer in the Department of Public Law, University of Zululand; BROC (Natal University, Durban), LLM (University of South Africa), LLD (University of Zululand), Attorney of the High Court of South Africa, Associate Professor of Law, University of Zululand.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 352 – 388

Abstract

Child rights are particularly sensitive due to the power relations within societies. As early as 1924, a number of countries collaborated to produce the Declaration of the Rights of the Child. In 1945, the Charter of the United Nations appeared, followed three years later by the Universal Declaration of Human Rights (UDHR). Although the latter is concerned primarily with everyone’s rights, Article 25(2) refers to children as well and provides that all children must receive special care and assistance. The article focuses on the most important children’s rights instruments both at regional and international level; respectively the African Charter on the Rights and Welfare of the Child of 1990 (ACRWC) and the United Nations Convention on the Rights of the Child of 1989 (CRC). Particularly, these conventions are binding on all the states which sign and ratify them. Although the CRC classifies children’s rights into four main categories, this article focuses on life and survival rights in selected African countries that have committed themselves to implement and enforce basic rights for children, namely South Africa, Kenya and the Democratic Republic of the Congo. The article is an evaluative and comparative analysis of the selected countries, based on international law and domestic legislation, as standards of actual delivery of child rights. The authors aim to produce a model guideline for effective realisation and observance of the specified children’s rights in the countries under investigation.

The Removal of Directors by a Company’s Board of Directors under the Companies Act 71 of 2008: Should it be a Mandatory or an Alterable Provision?

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

The Removal of Directors by a Company’s Board of Directors under the Companies Act 71 of 2008: Should it be a Mandatory or an Alterable Provision?

Author Rehana Cassim

ISSN: 2522-3062
Affiliations: BA (cum laude), LLB (cum laude), LLM (cum laude) (University of the Witwatersrand); LLD (University of South Africa). Associate Professor, Department of Mercantile Law, School of Law, University of South Africa; Attorney and Notary Public of the High Court of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 389 – 409

Abstract

The Companies Act 71 of 2008 introduced into South African law a provision which for the first time permits a company’s board of directors to remove a director from office in certain circumstances. This provision is contained in section 71(3). Compared to the equivalent provisions in some leading foreign jurisdictions, section 71(3) of the Companies Act is unique in two important respects. First, a board’s power to remove board members is an unalterable and a mandatory power. Second, a board’s removal rights do not follow appointment rights. Consequently, a board is empowered to remove from office any director, regardless of whether shareholders or any other person had appointed that director to office. This article questions whether a board’s power to remove directors from office under the Companies Act ought, instead, to be an alterable provision. With a view to protecting the minority shareholder representatives on the board of directors, it questions whether section 71(3) should distinguish between directors appointed by a board and directors elected by shareholders. The comparable provisions on the removal of directors by a board of directors in corporate legislation in Australia, the United Kingdom, and the United States of America are examined. Some recommendations are made to modify section 71(3) of the Companies Act to improve the new power conferred on boards of directors to remove fellow board members.

Human Dignity and other Relevant Concepts in International and South African Human Rights Law: A Search for Content

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Human Dignity and other Relevant Concepts in International and South African Human Rights Law: A Search for Content

Authors Gerrit Ferreira & Anél Ferreira-Snyman

ISSN: 2522-3062
Affiliations: B Iuris (PUCHO), LLB (PUCHO), LLM (RAU), LLD (UNISA), LLD (PUCHO), Professor of Law Extraordinary, NWU, Potchefstroom Campus; B Iuris (PUCHO), LLB (PUCHO), LLM (PUCHO), LLD (UJ), Professor of Law, UNISA.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 410 – 442

Abstract

As a result of the human rights atrocities committed during the Second World War, the human dignity of individuals has become the central concern in many international and regional instruments and domestic constitutions. The Constitution of the Republic of South Africa, 1996 is no exception and places a particular emphasis on the concept of human dignity. In view of the continuing popularisation of the concept, this contribution discusses the current application of human dignity and related concepts within international, regional and South African human rights law in an attempt to get a clearer grasp of its contents. Although human dignity is not explicitly protected in all international and regional instruments and domestic constitutions, its protection is either implicit in the protection of other specific human rights, or explicitly forms part of the protection of such rights. It therefore seems that every individual human right protects some aspect of human dignity. Furthermore, the application of the concept of human dignity seems to relate to other existing concepts in both international and South African law. First, the question as to whether the protection of human dignity in international law may be equated with concepts such as jus cogens and non-derogable rights is analysed. Second, the issues regarding the relation between human dignity and the concepts of ubuntu, boni mores and the public interest are discussed. It is concluded that human dignity is a fluid, vague and ever-changing concept and that as a result of cultural and religious differences it would be virtually impossible to formulate a generic (one-size-fits-all) definition of human dignity that would be acceptable to all cultural and religious groups. It is therefore suggested that the application of human dignity by the courts should be limited to that of a constitutional value that underpins all fundamental rights, rather than elevating it to an all-encompassing right that functions, in practice, independent from all other fundamental rights. The latter would result in an attenuation of the human rights regime in international, regional and domestic law.

Case Note: Litigating about where to Litigate: Vedanta Resources Plc v Lungowe [2019] UKSC 20

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Case Note: Litigating about where to Litigate: Vedanta Resources Plc v Lungowe [2019] UKSC 20

Author Elsabe Schoeman

ISSN: 2522-3062
Affiliations: BLC (University of Pretoria); LLB LLD (University of South Africa). Dean: Faculty of Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 445 – 457

Abstract

None.