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- Volume 37, Issue 3, 2004
Comparative and International Law Journal of Southern Africa - Volume 37, Issue 3, 2004
Volumes & issues
Volume 37, Issue 3, 2004
Source: Comparative and International Law Journal of Southern Africa 37, pp 272 –293 (2004)More Less
Recent scandals in the corporate world have drawn attention to the extent and diversity of corporate malpractice and the need to curb them. Effective corporate governance practices encourage vigilance, transparency, accountability and proper levels of disclosure which, in turn, inspire investor confidence. This paper examines the regulatory mechanisms dealing with some forms of directors' self-serving conduct in the light of recent reform initiatives in Botswana and South Africa. It looks at directors' benefits and emoluments, loans to directors, compensation for loss of office, directors' interests in their companies' securities, insider dealing and directors' indemnity and insurance. Similar statutory provisions regulate most of these matters, but more needs to be done to effectively control those practices most likely to lead to abuse. It seems that successful supervision of directors' conduct is best achieved by a combined effort of legislative and market regulation, active shareholder participation, comprehensive reporting to shareholders and proof from the market that adhering to sound principles of corporate governance leads to long-term corporate health. Such regulation should, however, not stifle the company's ability to attract and retain directors, nor should it discourage robust yet responsible entrepreneurship and risk-taking.
Author Gardiol J. Van NiekerkSource: Comparative and International Law Journal of Southern Africa 37, pp 312 –326 (2004)More Less
The aim of this investigation was to ascertain to what extent the laws of South Africa and Botswana, having been derived from a common source, have diverged over the years. In 1891 the law of the Colony of the Cape of Good Hope was introduced into the Protectorate of Bechuanaland. Roman-Dutch law, as influenced by English law, is the common law of Botswana and operates alongside legislation and judicial decisions as a source of law. Because different national judicial institutions interpreted and applied this law, a natural divergence of the legal systems of the two countries has taken place. However, the development of Botswana's legal system has been shaped by South African legal practice. References not only to South African judicial decisions, but also to academic works on the law of South Africa abound in the Botswana Law Reports. Judicial pronouncements from the 1980's to 1997, in which specific reference was made to the authority of that law, indicate that although the courts follow South African law, and sometimes attach more than persuasive value to South African decisions, the national Botswana identity is not sacrificed in the process. The concepts are still applied within a Botswana context.
The Draft Bill on the Recognition of Muslim Marriages; an unwise, improvident and questionable constitutional exerciseAuthor Ziyad MotalaSource: Comparative and International Law Journal of Southern Africa 37, pp 327 –339 (2004)More Less
This article focuses on the South African Law Reform Commission's proposed legislation on the recognition of Muslim marriages. Whilst applauding the recognition of Muslim and other forms of traditional marriages as an unqualified good, this article asserts that state involvement in religion should never extend to the state telling a community what their religion is or how their religion should be practised. Moreover, the state should not be taking sides by legislating a particular understanding of religion. Where the state prescribes a particular understanding of religion and imposes this view on the group affected under penalties of sanction, this constitutes coercion. Such action constitutes a violation of freedom of religion under international law and also constitutes a violation of the Bill of Rights. This article critiques the South African Law Reform Commission's proposals as an exercise of the state choosing sides in doctrinal disputes and using the power of the state to impose a particular view on the community affected. This is improper religious involvement by the state. This article further asserts that the freedom of religion clauses under the Bill of Rights should be understood as provisions that empower religious groups and further their autonomy to practice their religion as defined by their religious leaders and institutions. Where the state acts in the realm of religion to curtail religions practices, state involvement must be limited to laws of general application to advance important social interests. Where the state seeks to instruct a community on their religion as the proposals do, this denigrates the community and invites unnecessary conflict.
Author Divya SinghSource: Comparative and International Law Journal of Southern Africa 37, pp 340 –363 (2004)More Less
Human trafficking is like a hydra reaching into all facets of political, economic, criminal, health, migration, and most importantly human rights. The global nature of the crime leaves almost no country untouched by the movement and bondage of human beings. This paper makes a comparative evaluation of the problem in Africa, Eastern Europe and former USSR, USA, Asia and Australia considering the nature and scope of the problem, the pre-disposing factors and the current national legislation on the subject within the various jurisdictions. There is also a specific focus on South Africa. In addressing the problem of human trafficking, the UN and various human rights organisations have proposed standards that countries should consider introducing into national legislation which would criminalise trafficking, and concomitantly recognise that trafficked persons are victims of serious human rights abuses requiring access to (sometimes exceptional) victims' services. It is often the latter that causes the greatest dilemma because of the serious financial implications. The challenge for most countries will be whether in claiming to address the inequality in status and opportunity that makes women vulnerable to trafficking, the countries will commit to the challenges confronting them in dealing with the problems of human trafficking.
Author Gerhard LauleSource: Comparative and International Law Journal of Southern Africa 37, pp 364 –376 (2004)More Less
The following contribution examines the limits of international tax structuring. Using the court rulings of the European Court of Justice as an example, it can be shown that deficiencies exist within national tax systems when it comes to international trade. A look at these double taxation treaties reveals that international transactions are subject to double taxation treaties as set forth by various court rulings. The rule set forth in section 42 of the German Tax Code is examined, and its applicability is called into question, because it can only be applied based on case law which does not provide consistency and is therefore not helpful in establishing tax planning and legal certainty.
Author Chris-James PretoriusSource: Comparative and International Law Journal of Southern Africa 37, pp 377 –403 (2004)More Less
Dutch law seems to favour a primarily consensual approach to contractual liability as corrected by reliance in appropriate instances. However, the principle of good faith (reasonableness and fairness) plays a telling role in the creation and construction of contracts. The implication is that objective and normative considerations could influence the creation or interpretation of consensual contracts which have little to do with actual party intention. Similarly, the application of the Dutch version of the reliance theory is heavily tinged with notions of good faith. However, the primarily consensual approach to contract formation in Dutch law is largely grounded on the premise that in the majority of cases actual and declared intention coincide and, consequently, that reliance only serves a supplementary function in the exceptional cases where there is a divergence between actual and declared intention. This article examines the principles of contractual liability in the Dutch law and suggests that the treatment of specifically the principle of good faith in the Dutch law points the way forward for the development of this principle in the South African law of contract.
Author Shannon BoschSource: Comparative and International Law Journal of Southern Africa 37, pp 394 –313 (2004)More Less
In this article I examine the justifications offered by legal advisors to the military in two controversial incidents that arose in recent conflicts: targeting television stations which are used to broadcast war propaganda; and broadcasting the images of prisoners of war (POWs) on television. In doing so, I draw on the uncontroversial principles that form the foundations of international humanitarian law: distinction, military necessity and proportionality. These principles, enshrined in the 'Martens clause', have achieved customary status and are binding upon all belligerents. The discussion begins with a brief overview of these three foundational principles. I then turn to the incidents and explore what existing treaty law may have to say on the subject (whether or not it is binding qua treaty law on the belligerent parties involved). I conclude by probing the foundational principles and the existing body of customary humanitarian law (as reflected in public opinion and opinio juris) and exploring the insights they might offer.
British, Portuguese, and American judges in Adderley Street: the international legal background to and some judicial aspects of the Cape Town Mixed Commissions for the suppression of the transatlantic slave trade in the nineteenth century (Part 3)Author J.P. Van NiekerkSource: Comparative and International Law Journal of Southern Africa 37, pp 404 –435 (2004)More Less
The suppression of the transatlantic slave trade in the nineteenth century involved a reliance on and the development of particular aspects of international law, namely those relating to the law of maritime warfare. In the process, Mixed Commissions were the judicial arm of suppression policies. Part 3 of this series of articles recounts the establishment, personnel, procedures and activities of the Anglo-Portuguese Mixed Commission in Cape Town, analyses three cases decided by it, and evaluates its contribution to the suppression of the slave trade. It concludes with a brief overview of the Anglo-American Mixed Commission in Cape Town.
Author David TaylorSource: Comparative and International Law Journal of Southern Africa 37, pp 442 –444 (2004)More Less