Comparative and International Law Journal of Southern Africa

Unforeseen Developments, GATT Obligations and South Africa’s Safeguard Investigations

Gustav Brink — Mon, 26 Aug 2024 00:00:00 +0000

South Africa is one of the oldest users of trade remedies in the form of anti-dumping and countervailing, but is a newcomer to the use of safeguards. Since increasing its use of safeguards in 2012, the country has become one of the biggest users of safeguards. To date, South Africa has completed nine safeguard investigations, six of which resulted in the imposition of safeguard measures. In conducting safeguard investigations, attention must be given to various aspects. This article considers the requirements that there must have been a surge in imports as a result of unforeseen developments and General Agreement on Tariffs and Trade 1994 (GATT) obligations. While several of the International Trade Administration Commission of South Africa (the Commission) reports set out the current tariff position, few of them indicate what South Africa’s GATT obligations are, thus falling short of the requirements to impose measures. The article shows that few, if any, of South Africa’s safeguard investigations have evaluated unforeseen developments in line with the requirements of GATT, as interpreted by the World Trade Organization (WTO) Dispute Settlement Body, as many of these alleged developments either did not relate to the subject product or were not, in fact, unforeseen. The article further shows that the Commission has failed, in every investigation, to link the unforeseen developments and GATT obligations to the surge in imports, as often the unforeseen developments occurred years prior to any increased imports. Finally, the article proposes that the Commission amend its method of analysing unforeseen developments and increased efforts be made to establish the link between these developments and GATT obligations and the increased imports.

Factors Militating against the Efficacy of the Mutual Agreement Procedure: A Comparison between South Africa, Kenya, Uganda and Ghana

Nelson Kekana — Wed, 25 Sep 2024 00:00:00 +0000

The effective resolution of transfer pricing disputes has been identified as one of the primary challenges to eliminate double taxation and/or double non-taxation as well as to enhance the free flow of trade and investment. This article investigates the unique challenges faced by selected African countries, including South Africa, Kenya, Uganda and Ghana, which militate against the use of the mutual agreement procedure (MAP) as a preferred Organisation for Economic Co-operation and Development (OECD) transfer pricing dispute resolution mechanism. The research used a qualitative legal review of existing literature in the selected regimes by comparing the domestic tax law framework in these countries. Transfer pricing manipulation is a significant source of illicit financial flows of capital as identified in the research by Global Financial Integrity on Africa, which drew from Ghana, Kenya and Uganda as case studies. South Africa and Kenya are considered as the gateways to Africa with many multinational enterprises (MNEs) taking residence in them before expanding to the rest of Africa. The article focuses specifically on a number of guidelines that should be in place for the effective use of the MAP in the resolution of tax treaty disputes. It also demonstrates how the absence of guidelines, or the lack of clarity thereof, discourages both taxpayers and revenue authorities from effectively using the MAP to resolve transfer pricing disputes. The absence of guidelines has resulted in many aggrieved taxpayers opting to approach the courts as opposed to using the MAP as a mechanism to resolve tax treaty disputes. Furthermore, it highlights the importance of how resolved transfer pricing disputes eliminates double taxation. The article recommends that the same benefits enjoyed under the domestic dispute resolution process be incorporated into the MAP. It also makes recommendations on how jurisdictions with a low tax treaty network can address this challenge to enable them to effectively use the MAP as a tax treaty dispute resolution.

The Right of Establishment for Spouses of East African Community Citizens—a Paper Entitlement?

Priscah Nyotah, Edwin O Abuya, Francis DP Situma — Tue, 10 Sep 2024 00:00:00 +0000

The right of establishment (ROE) entitles nationals of the East African Community (EAC) to leave their home countries and establish, on a self-employed basis, commercial enterprises in other partner states (PSs). The 2009 Protocol on the Establishment of the East African Community Common Market (CMP) extended the ROE to self-employed individuals and their spouses (ROE spouses). Like the ROE holders, their spouses too are entitled to the same benefit. Despite the value of this entitlement to the lives and livelihoods of ROE spouses and their families, not much research has been done on the legal entitlements of these EAC citizens. This article aims to contribute to this field. It draws on theoretical and practical perspectives on the rights due to ROE spouses. The article reports on the results of a survey and comparative analyses of national immigration laws, which the authors conducted on the wider subject of the realisation of the ROE within the EAC. It contends that ROE spouses are discriminated against in the PSs. The domestic legal frameworks have created several barriers, rendering it difficult, if not impossible, for these community nationals to realise what they are entitled to. To address these challenges, the article proposes measures to ensure that PSs comply with their regional obligations. The article concludes that PSs must accord the ROE spouses the widest possible protection and provide assistance that is due to them under the EAC legal framework.

Realising the Right to Primary Education for Refugee and Asylum-Seeking Children in Cameroon: Appraising the Legal Framework, Compliance and Challenges

Doreen N. Agbor, Avitus A. Agbor — Mon, 10 Jun 2024 00:00:00 +0000

In international and regional human rights law, the right to education is arguably one of the most important rights since it is a social, economic, and cultural right and has a direct bearing on the enjoyment of civil, political, social, economic and cultural rights. For vulnerable groups, emphasis has always been placed on the need to respect, protect, fulfil, and promote the right to education, given the crucial role it plays in promoting peace, stability, and socio-economic and personal development. Two critical issues arise when looking at the children of refugees and asylum seekers: firstly, their vulnerability as involuntary migrants who have fled their home countries and settled in another country. Secondly, as children, they remain vulnerable to different forms of exploitation. Against this background, and in view of the huge number of refugees and asylum seekers in Cameroon, this study examines some of the measures taken by Cameroon to give effect to her international obligations as a State Party to numerous human rights instruments (both international and regional) recognising the right to compulsory and free primary education for children. To do this, the study commences with an assessment of the international human rights framework and identifies the various obligations created by those instruments that serve as benchmarks for evaluating whether Cameroon has fulfilled her international and regional obligations. The study analyses the challenges encountered in this regard and offers some insights on what could be done to surmount those challenges.

Budgeting for Women’s Rights in a COVID-19 Context: 2020–2021 Experiences from South Africa and Zimbabwe

Priccilar Vengesai — Wed, 14 Aug 2024 00:00:00 +0000

Restrictions on social and economic activities marred the COVID-19 pandemic period. Interesting to note is that these restrictions had varied effects on different societal groups. Vulnerable groups such as women, people living with disabilities and children were the most affected. This article presents an appreciation of the gendered nature of the COVID-19 pandemic restrictions in South Africa and Zimbabwe. South Africa and Zimbabwe share the same history of women’s exclusion from economic, political and social participation. The effects of these exclusions are still apparent in society, and they leave women more vulnerable to human rights violations during pandemics. This article argues that women were the hardest hit by government restrictions imposed during the COVID-19 pandemic. While there has been so much research on the effects of COVID-19 on women, a comparative analysis thereof has not been done, particularly on the selected countries. A comparative analysis helps improve existing affirmative action strategies because juxtaposing two cases can help each country learn best practices from another. The article offers a comparative analysis of women’s rights violations in South Africa and Zimbabwe during COVID-19 and provides a perspective of how the incidence of women’s rights violations can be minimised. It is recommended that a gendered budget may provide a solution not only in the process of recovery from the effects of the COVID-19 pandemic but also in managing future pandemics. Gendered budgets help women to address their practical and strategic gender needs and they have women’s empowerment in mind.

Another Arrow in the Quiver? The Prospects and Challenges of Combating Corruption through a Specialised Court in Malawi

Mwiza Nkhata, Martin Chipofya — Tue, 01 Oct 2024 00:00:00 +0000

In 2022, an amendment to Malawi’s Courts Act created the Financial Crimes Division (FCD) of the High Court. This is a ‘specialised court’ meant to deal with any ‘financial crime matter.’ While the FCD has jurisdiction to deal with ‘financial crimes,’ it seems that one of the key motivations for its establishment was the creation of an avenue for expedited disposal of corruption-related cases. Through a doctrinal analysis with a comparative approach, this article examines the prospects of the FCD, particularly in the fight against corruption while advancing some recommendations for dealing with some of the possible challenges.

The Concept of Constructive Dismissal Under Nigerian Labour Law: Perspectives from South Africa

Esther Hatsiwa Emmanuel, Oluwakemi Omojola — Tue, 01 Oct 2024 00:00:00 +0000

In general, an employment contract is deemed wrongfully terminated when the termination is done in breach of its terms and conditions. Constructive dismissal occurs when an employee does not resign voluntarily but because the employer has created a hostile or intolerable environment, or deliberately made the workplace unfavourable. It is considered a termination because of the involuntariness of the employee’s resignation. Recent decisions of the National Industrial Court have reawakened the concept of constructive dismissal by protecting the dignity of persons and enforcing the duty of mutual respect in employment relationships in Nigeria. The paper examines the concept of constructive dismissal in an employment relationship. It discusses the grounds or instances where an employee will be constructively dismissed and the remedies available for such wrongful termination. The major problem identified by the paper is the absence of clear statutory intervention through the enactment of legislation on constructive dismissal in Nigeria. The paper adopts the doctrinal research method, using primary and secondary sources such as case law, books, journal articles, and internet materials to interrogate the concept and distinguish it from other forms of wrongful termination of employment. The paper drew lessons from South Africa intending to broaden knowledge on the concept of constructive dismissal and how important it is for safeguarding the interests and rights of workers in both jurisdictions. It concludes by making some recommendations, including the need for clear statutory interventions through enacting legislation on unfair dismissal as obtainable in other jurisdictions and extending the remedies beyond monetary compensation.

Analysing the International Legal Framework on Nationality: An African and Asian Perspective

Angelo Dube, Yeukai Mahleza — Mon, 10 Jun 2024 00:00:00 +0000

This article examines the prevention of and protection against statelessness through analysis of case law and laws that have dealt with this matter both internationally and at a regional level, with specific reference to two continents (Africa and Asia). The analysis also includes the remedies that are available to individuals who are stateless as well as the enforcement thereof. Cognisance is given to statelessness being the state of not belonging to any country, or not being recognised as a national of any country. The article also analyses how colonialism contributed to people being stateless and how laws have changed beyond the colonial era. Emphasis is placed on the need for consensus between states on what measures should be considered when determining citizenship. The desktop, library research approach will be used in this research. Primary and secondary sources will be consulted. Case law, conventions, and statutes will be the main sources of law. The research will evaluate the differences between the selected jurisdictions’ nationality laws. The way that nationality rules have been applied in those jurisdictions will also be determined by consulting case law. Additionally, journal articles, opinion pieces, and other internet-based resources will be used as secondary sources for the research. These sources offer valuable insights into the concerns expressed by interested parties about nationality and the elements that each jurisdiction has considered and needs to incorporate into their legal framework.