Journal of Law, Society and Development

An In-Depth Analysis of Choice of Law Rules in Consumer Contracts: A Focus on the African Continental Free Trade Area

2023-11-17T07:43:55+00:00

Choice of law is a perplexing concept due to the importance of party autonomy, the diversity of connecting factors, and the variety of different contractual issues. The problem of choosing a governing law is complicated in consumer contracts by industrialised mechanisms depriving consumers of negotiation rights. The core mandate of the African Continental Free Trade Area (AfCFTA) is to establish a single market for goods and services associated with the free movement of legal persons for economic integration. This objective requires a harmonised consumer protection policy to resolve the diverse consumer protection regimes applicable in state parties within AfCFTA member states. This policy should provide suitable consumer protection mechanisms generally and in the context of choice of law specifically. Implementing a draft competition policy bestows a legitimate mandate on the AfCFTA to negotiate a continental framework on consumer protection as both fields of law complement each other to safeguard consumer rights in cross-border trade. This article argues the dynamics of providing adequate choice of law rules on consumer contracts to inform suitable mechanisms on consumer interest within the AfCFTA. The article discusses the abuse of choice of law clauses in consumer contracts, affecting consumers’ rights in cross-border contracts within the AfCFTA. It suggests a harmonised consumer protection policy to regulate and mitigate these clauses. The article also examines trends in Global North jurisdictions like the European Union to inform a context-specific institutional framework for the AfCFTA’s choice of law rules.

The Politics of the Right to Strike in Zimbabwe since the Advent of the New Constitution in 2013

2023-07-04T11:22:05+00:00

The year 2013 was important in the history of labour relations in Zimbabwe as it ushered in the country’s Constitution which introduced labour rights under its Declaration of Rights. The article discusses constitutional protection of the right to strike under section 65 of the Constitution of Zimbabwe. It further explores this constitutional right to strike and its effect on both private-sector and public-sector employees. Further, it discusses the scope of the right to strike in terms of the Labour Act, which largely applies to private-sector employees. This is because Zimbabwe has a two-tier labour relations system consisting of private-sector and public-sector employees. Public-sector employees derive their right to strike directly from the Constitution. To put the right to strike into its proper context, international standards on this right are briefly discussed. Important lessons are also drawn from South African labour law and practice since South African constitutional provisions on the right to strike are almost similar to those of Zimbabwe. The article then proceeds to highlight how the right to strike has been linked or can be used in some instances to fulfil political objectives. It also highlights how the State may view the right to strike with suspicion. Finally, recommendations are made on how the right to strike can be improved in both law and practice so that it fulfils its intended objectives of achieving better working conditions for employees at the workplace.

Customary Law and Gender Dynamics of Political Participation in Nigeria

2023-07-21T08:14:05+00:00

Traditionally, gender and sex are closely linked; however, sex or sexuality differs from gender. Gender has become the preferred form in the 21st century, as it is an important factor to consider when hiring employees and in elections for political positions. Sex and gender constructs are bases for inequality and discrimination against women. Historically, the law as an instrument of social control followed the sex and gender constructs. And since men determined and dominated the law and political institutions, enactments and statutes tolerated and perpetuated women’s subjugation. Enactment, in this sense, refers to the process of passing a law, while a statute is an actual law that has been enacted. Enactment is the procedure by which a statute is created, while a statute is the outcome of that process—a written legal provision that has the force of law. Right from the family home, the female is considered a weaker sex whose voice is not to be heard, talk less about representing the clan in a patriarchal setting. This stereotypic position is prevalent in every facet of life, and it subjects womenfolk to hardship and gender-based discrimination. Although women constitute a large portion of voters, it is difficult for them to be elected to positions. It should be noted that gender is not the sole factor considered during an election. For some voters, a woman’s gender can affect their decision in an election, but generally, people vote for their parties. The dominance of a powerful class of male political elite that has historically run the political system has undermined women’s political participation and reduced their chances of nomination for positions at the party level. This article critically reviews gender issues affecting the stake of women’s political participation and examines the indicators of gender and politics in the traditional African setting within the ambit of women’s rights. Using extant international human rights laws and treaties as a guide, the article resolves that equality in political participation is a right. It is, therefore, imperative to grant women unfettered access to political participation to achieve Goal 5 of the Sustainable Development Goals, which is gender equality. Gender is woven throughout the SDGs as it sits at the intersection of economic, social, and environmental issues. SDG aim to achieve gender equality and empower all women and girls.

Accessibility, Independence and Impartiality of the Traditional Court System

2023-09-12T08:04:25+00:00

A few metrics of procedural indigeneity such as accessibility, expeditiousness, informality, affordability, and lack of “cumbersomeness” account for the traditional court system’s suitability as a system for resolving conflicts among black, poor, marginalised and disadvantaged African communities. As a system that regulates the legal affairs of groups that constitute the majority of the South African population, traditional courts are a perfect instrument for catering for the needs of the mostly unsophisticated black citizens. These qualities by far outweigh the system’s relative weakness when it comes to the attributes of independence and impartiality of its courts, both of which—commendable as they are—are less necessary in a system that is based on communal participation and collective negotiation. Judicial independence and impartiality interpreted and understood in relation to the Western concept of the separation of powers is alien to the customary legal system. Traditional courts are community-based, characterised by open justice, and designed to settle disputes in their defined areas of jurisdiction. They were established from time immemorial for such purpose and, to further its colonial objectives, the colonial government recognised them through the enactment of the Black Administration Act, 38 of 1927. There was a complete disregard for the views of the adherents to customary legal systems when legislating on the system and people's lives. The promulgation of such an Act brought about legal dualism in South Africa: common law and customary law. The Black Administration Act was enacted to administer the affairs of blacks and control the administration of traditional institutions and courts. The Black Administration Act discriminated between litigants based on race and dispensed inferior justice to blacks. During the apartheid system, various discriminatory laws were promulgated, resulting in the establishment of homelands and independent states within South Africa. This gave rise to disparate laws governing black people and their court system. The Constitution and the legislation specifically dealing with the customary legal system have ended discriminatory laws and social order that characterised colonialism and apartheid. Traditional courts are well-placed to create, enhance, and facilitate access to courts for all people, regardless of race, colour, gender, or any socio-economic diversity. This article intends to outline the effectiveness of the traditional system and to also address criticisms levelled at the traditional legal system, based on variations in practice and alleged exclusion of women from traditional justice mechanisms. These criticisms can be addressed effectively by traditional court systems aligned and dedicated to equality, democracy, and human rights protection. They can also be addressed through harmonising, integrating, and unifying customary law, common law, and constitutional values.

Healthcare Policies and Access: A Behavioural-Ecological Model Analysis

2023-08-22T06:44:22+00:00

The legacy of apartheid systems continues to be felt, especially in the country’s healthcare systems. Existing policies contribute to the inequality and challenges confronted when navigating healthcare services. This study uses the behavioural-ecological approach to analyse healthcare policy challenges hindering patients from accessing healthcare services in peri-urban communities in Johannesburg, South Africa. In addition, the study examines how poverty, poor infrastructure, and geographic location contribute to challenges facing communities in accessing healthcare services. A mixed-methods research was adopted; semi-structured interviews and field notes were used for data collection. Data were collected from outpatients, administration, and medical personnel. 173 respondents participated in the surveys, 14 participants were interviewed, and 12 respondents for focus groups. Statistical Package for the Social Sciences (SPSS) was used for quantitative data analysis and Nudist Vivo (NVivo) for thematic analysis. The study established that poverty, costly medical services, inability to communicate with healthcare providers, and low literacy were significant hindrances. It was revealed that unemployment contributed significantly to poverty levels, thus impeding access to healthcare services. The study concluded that South Africa needs a comprehensive social security system that provides adequate and sustainable social protection for peri-urban communities. The above remedial actions were recommended, but the public sector health reforms were negatively perceived. Thus, a conceptual model was developed to catalyse behavioural change in the public and private healthcare systems to achieve affordable and sustainable improvement in access and usage of healthcare services.

Ubuntu: An Underutilised Foundational Constitutional Principle of South African Environmental Law

2023-08-22T06:44:25+00:00

This article uses the doctrinal legal research method to examine how ubuntu, the indigenous value of humaneness, can serve as a foundational constitutional principle of South Africa’s environmental law and governance framework. It argues that ubuntu has a role to play in the re-imagination of humanity’s relationship with the environment, particularly when its building blocks are embedded in law to address the deep socio-ecological crisis of the Anthropocene and when applied alongside conventional and customary principles of environmental law, such as the no-harm rule, the precautionary principle, the principle of prevention, intergenerational equity and sustainable development. In South Africa, ubuntu already enjoys judicial recognition as a foundational constitutional principle. Its moral and normative force offers an alternative foundation to build a stronger environmental law framework that can protect the vulnerable living order. In this article, the basic proposal is that ubuntu is an underutilised constitutional principle that could be applied by South African courts to environmental disputes. Its potential in the adjudication of environmental cases emanates from its origins as an indigenous value and from the benefits that foundational constitutional principles generally bring in constitutional and human rights litigation.

Gender Inequality and Financial Inclusion in South Africa: Lessons from India

2023-11-17T07:43:57+00:00

This article examines the intersection of gender inequality and financial inclusion in South Africa, focusing on drawing lessons from India’s experience. Despite progress in financial inclusion initiatives in South Africa, women face systemic barriers to accessing financial services, including discriminatory policies and cultural attitudes. Through a comparative analysis of India’s efforts to promote financial inclusion and gender equality, this article identifies key strategies South Africa can adopt to address gender-based disparities in financial access. These strategies include promoting financial literacy among women, expanding access to formal financial institutions, and implementing policies that address the unique challenges women entrepreneurs face. By applying lessons from India, South Africa can take meaningful steps towards building a more inclusive financial system that empowers women and promotes gender equality.

Traditional Dispute Resolution through Lekgotla: The Approach of the Bakgatla Ba Mosetlha in the North West Province of South Africa

2023-07-21T08:14:09+00:00

South Africa has a mixed legal system and owns state and customary dispute resolution systems where formal and informal laws co-exist. The article addresses the traditional dispute resolution in South Africa, particularly how lekgotla (traditional court) mediates and resolves disputes in the North West Province at the village of Makapanstad which has over 32 villages under its traditional authority. The article applies Community-Engaged Participatory Research (CEPR) that includes narratives (storytelling), observations of traditional court proceedings, one-on-one interviews, focus group discussions, home visits, and community dialogues through an ongoing engaged research project called Lekgotla La Batho. The article argues that there should be a collaborative working relationship between traditional leaders, elected local representatives and the court system to effect benefits for rural communities through adequately defined legislative frameworks and processes. It advocates for a model of cooperative conflict resolution in rural areas that is at the grassroots level, is understood, and conforms to the Constitution of the Republic of South Africa. However, the powers and functions in traditional dispute resolution are not adequately spelt out in the Constitution and there is a lack of constructive interaction, coordination, and collaboration between the traditional institution of conflict resolution and the formal court system. There are debates on the guidelines to implement the coordination or collaboration between these two institutions. However, these debates occur amid significant challenges such as human rights issues, lack of documentation of traditional dispute cases, and checks and balances in the powers to be transferred to traditional leaders within the democratic Constitutional prescriptions.

Submission of Victim Impact Statement to a Sentencing Judge: The Significance of Introducing the Scheme to Sentencing Hearing in Nigeria

2023-07-04T11:22:08+00:00

The current Nigerian criminal justice system prevents rime victims from having the benefit of telling the sentencing judge what harm they have suffered and how their need for effective recovery may be attended to. Whereas different victim-oriented policies and programmes have emerged in the English criminal justice system and those of some common law countries, the voice of the crime victim is still opaque to the sentencing judge in Nigeria. The Administration of Criminal Justice Act, 2015, which requires a sentencing judge to consider— among others—the interest of the victim in his sentence, leaves the judge with wide discretion that has occasioned some inconsistencies in sentencing outcomes. Accordingly, the article aims to do a comparative study of the English criminal justice system and a few other common law jurisdictions to find out how this lapse in the law can be corrected. The study adopts the doctrinal methodology to discover how the English sentencing judge is assisted to understand and attend to the effects of crime on the victim. The research discovers that the use of the Victim Personal Statement—referred to as Victim Impact Statement (VIS) in other jurisdictions—has tremendously helped both the sentencing judge and the victim in this regard. Accordingly, the article recommends the use of the VIS in the sentencing hearing in Nigeria in order to cover the gap in the law and promote the recognition of the harm suffered by crime victims.