Editorial: Special Issue on Business, Law, and Economics in the African Continental Free Trade Area and National Economies
Author/s: Nortje, Windell
This special issue brings together a collection of 15 peer-reviewed articles originating from a conference organised by the African Society for Business Law and Economics (ASBLE), a collaborative initiative involving the University of the Western Cape, the University of the Witwatersrand, and the University of the Free State. The conference was held in Bloemfontein on 7–8 September 2023 and provided a platform for scholarly engagement on contemporary issues at the intersection of business, law, and economics in Africa. Following presentation and discussion at the conference, the selected papers underwent a rigorous double-blind peer review process, one supplemented by further internal review in accordance with the journal’s quality assurance procedures. The final set of articles was accepted for publication in Law, Democracy & Development. The contributors represent a diverse range of scholars and practitioners from across the continent, including deans, professors, lecturers, postdoctoral researchers, doctoral candidates, and legal and economic practitioners, reflecting the depth and breadth of expertise engaged in this special issue.
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Anti-dumping and trade policy in South Africa: 30 years of the WTO, pp 1-33
Author/s: Brink, Gustav
Anti-dumping is one of three tools that a government may use to protect its domestic industry from injurious imports. It is a key component of a country’s trade policy. Its use, abuse, or lack of use can play a major role in establishing and protecting domestic industries but can also impact the downstream industry and consumers. The quicker, more efficient and transparent an anti-dumping investigation is, the less unnecessary impact it will have on interested parties. South Africa’s trade remedies legislation has not been revised in more than 20 years, notwithstanding numerous World Trade Organization decisions that have interpreted specific provisions related to anti-dumping investigations. This article considers the role that anti-dumping has played in two key South African industries – poultry and glass – and considers the current protectionist bias built into the system. It proposes a complete overhaul of the legislation, internal processes and the documents used in investigations.
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A critical review of the role of human resources management in employee relations under Namibian labour law, pp 34-52
Author/s: Awarab R, Marvin
With Namibia’s repo rate increasing three to four times a year, financial constraints lead people into depression due to inability to cope with inflation. Often, employees who are dealing with personal issues and life challenges are also faced with unpleasant working conditions. It is the role of the human resources (HR) department, in particular the employee relations (ER) section, to ensure that the well-being of employees remains a priority within the workplace. If employees are not taken care of well at their workplaces, the employer is likely to face high staff turnover. Employees tend to resign because of poor working conditions, ill-treatment, excessive workloads and low salaries and wages. Labour legislation, read together with Namibia’s Employment Equity Act, mandates employers to protect and promote the well-being of their employees. This article investigates the role that HR and ER officers play in protecting employee rights and promoting employee well-being. It explores the extent to which employee relations officers know and understand laws affecting employee relations and the extent to which this affects their role. The article also looks at the effect that poor management of labour relations has on the affairs of the employer. Lastly, it make recommendations on how to enhance employee relations so as to retain skilled workers and further the employer’s business success.
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Review of the efficacy of the Companies Act 71 of 2008 in regulating employee share-ownership schemes to achieve socio-economic development, pp 53-67
Author/s: Awarab R, Marvin
The black majority in South Africa endured social and economic hardship under apartheid. Millions still lack everyday access to essential resources as a result of apartheid policies, even though the government has introduced legislative and institutional frameworks to alleviate poverty and inequality. This article considers the prospect of using employee share-ownership plans (ESOPs) to address issues of inequality in South Africa. These are procedures that makes it relatively easier for employees to hold shares of a company for their personal benefit. ESOPs are a type of investment in which businesses and employees set money aside in the hopes of generating returns in the future. The article explores the Companies Act 71 of 2008, which governs the administration of ESOPs, and argues that without capital growth, ESOPs cannot combat poverty effectively; however, government engagement through legislative reform and financial assistance could make it more feasible to adopt ESOPs. While many theories have been advanced in regard to economic growth, the article supports Kelso’s binary economics theory, which holds that workers depend on capitalism and capital ownership.
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The state of corporate governance regulation and performance in state-owned enterprises in South Africa and Zimbabwe, pp 68-97
Author/s: Gudo, Julieth
This article analyses the state of corporate governance regulation and performance in state-owned enterprises (SOEs) in South Africa and Zimbabwe by outlining SOE corporate governance regulation and examining SOE performance in both countries. SOEs are critical to African economies as they are a significant tool for service delivery and economic development, and as a result, must be managed appropriately. However, the problem is that corporate governance in SOEs in these countries is weak, often being characterised by chronic underperformance with poor returns, continual reliance on government support, and incompetence. Major SOEs in both countries have experienced severe failures due to disregard for governance regulations manifested in corruption, poor decision-making and the squandering of resources. This article assesses the regulation of corporate governance of SOEs in South Africa and Zimbabwe and makes recommendations. The results of the study suggest that excessive political interference in SOEs is the main problem, one from which many other challenges arise.
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The African Continental Free Trade Area Agreement and the missed opportunity to advance the right to development in Africa, pp 98-122
Author/s: Kamga, Serges Djoyou
This article explores the extent to which the African Continental Free Trade Area Agreement (AfCFTA) advances the right to development (RTD). To this end, it examines the integration of human rights standards and the RTD jurisprudence in the AfCFTA. It demonstrates that the Agreement is essentially economic, with little or no attention to human rights. It argues that although the Agreement emphasises socio-economic development, gender equality and numerous aspects of the SDGs, as well as core elements of African Union’s Agenda 2063, the lack of a human rights-based approach and reference to the RTD constitutes a missed opportunity to foster the RTD. The article also argues that the blatant exclusion of the beneficiaries from the AfCFTA processes is another missed opportunity to foster the RTD, which is binding in the African Charter. Ultimately, the article concludes that the AfCFTA missed the opportunity to promote and protect the RTD.
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The role of competition law in protecting, promoting and stimulating the growth of small to medium enterprises: A South African perspective, pp 123-152
Author/s: Kondo, Tinashe
This article aims to evaluate whether competition law has a role in promoting and stimulating the growth of small to medium enterprises (SMEs) in South Africa. To achieve this, it first assesses whether the social goals are compatible with the Competition Act 89 of 1998. It is also shown that this approach accords with South Africa’s history of segregation and apartheid. The article argues that the approach is in line with South Africa’s constitutional values and principles, as well as its national interest. An assessment of the Competition Act demonstrates that the protection and promotion of SMEs is one of its important goals, as contained in section 2. This goal is closely linked to other goals in the Act, such as the protection of the interests of historically disadvantaged persons – although sometimes there can seemingly be tension between these goals. It is shown that the Act, before its amendment in 2018, did not indicate clear ways in which this protection could be enforced. This was exemplified in the case of Sasol Oil (Pty) Ltd v Nationwide Poles CC, where it was exposed that the Act, in its form at the time, was difficult to enforce owing to issues such as a high burden of proof. However, the Competition Amendment Act, to a greater degree, resolves these issues. Changes to the Act bolster several provisions with respect to how the interests of SMEs are protected and promoted. These include provisions on price discrimination, exemptions, public interest in mergers, and mitigating and aggravating factors in administrative penalties. Therefore, it is made clear from these discussions that competition law has a key role in the protection of SMEs. Accordingly, in the future, it will be easier for competition authorities to stimulate the growth of SMEs.
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The scope of application of the AfCFTA Protocol on Investment to existing investment disputes: Lessons from the Baba Ahmadou Danpullo saga, pp 153-178
Author/s: Kouamo, Juliette Armelle
This article critically analyses the scope of application of the African Continental Free Trade Area (AfCFTA) Protocol on Investment in the light of the Baba Ahmadou Danpullo saga and highlights the need for better protection of investors' rights under the AfCFTA. It asserts that the AfCFTA must provide adequate mechanisms to address contentious issues between host states and investors. Baba Ahmadou Danpullo is a Cameroonian citizen who had invested in the real estate business in South Africa. In 2017, he contracted a debt from the First National Bank (FNB), originally repayable over 10 years. However, the repayment period was abruptly shortened due to allegations that he failed in monthly repayments. FNB consequently demanded full repayment of the remaining balance in 2020 and proceeded to liquidate Danpullo’s properties to settle the outstanding amount. Danpullo alleges that FNB liquidated properties worth about R4 billion to repay a loan that was only about R507 million. Unsuccessful in his various claims in South Africa, he turned to the Government of Cameroon for assistance. Initially seeking a diplomatic resolution, he later initiated a case against South African companies based in Cameroon (which he believed were affiliated with FNB). The actions undertaken in Cameroon have resulted in significant disruption, and the companies concerned have experienced serious negative repercussions. The AfCFTA brings about significant changes in trade integration in Africa. Adopted in February 2023, its Protocol on Investment is expected to provide efficient and effective solutions to dispute settlement between investors and states.
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Artificial intelligence and the Just Transition to a fully digitalised AI-based global economy and society: Regulatory imperatives, pp 179-209
Author/s: Mavedzenge, Justice Alfred
As the world transitions into a fully digitalised society powered by artificial intelligence (AI), there is no doubt that the development and use of AI needs to be regulated. This is precisely because, while AI can bring benefits, it also poses severe challenges to society, including worsening unemployment, inequalities and poverty, challenges which in turn could lead to socio-political supheaval. Discussion of the regulation of AI, both at the international and national level, must be based on a clear conceptual framework, one which helps in identifying norms, values, and principles that the proposed regulatory frameworks should embody. This article proposes that the theory of a just transition should be adapted to help identify these norms, values and principles. The transition to a fully digital world economy needs to be a socially just transformation. This is why the theory of a just transition is an ideal conceptual framework for developing an AI regulatory framework. If applied, the theory would make it justifiable to place the social justice values of job security, equality, meaningful engagement with stakeholders, transparency, accountability, and the protection of human rights at the centre of AI regulatory frameworks.
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An overview of corruption challenges and the African Continental Free Trade Area, pp 210-246
Author/s: Munyai, Anzanilufuno
For decades, African leaders have committed themselves to fighting corruption, but due to a lack of transparency and accountability in governance, it continues to thrive and infiltrate the social, economic and political spheres. Corruption undermines the fundamental values of African unity grounded in socio-economic development. Notwithstanding the prospects of the African Continental Free Trade Area (AfCFTA), economic integration will be in vain in the presence of corruption. In recognising that corruption hinders Africa’s economic, political and social development, the African Union enacted the Convention on Preventing and Combating Corruption. Regrettably, the Convention falls short of establishing a continental independent anti-corruption institution. In its stead, article 22 of the Convention provides for an Advisory Board on Corruption established within the African Union. This article argues that the Convention necessitates an independent investigative anti-corruption institution aimed at promoting justice by holding perpetrators accountable, promoting the rule of law, and minimising corrupt opportunities and perpetration. The article begins with an overview of the corruption conundrum and its effect on Africa amidst economic integration efforts. This discussion is followed by a synopsis of the AfCFTA. The article probes existing anti-corruption mechanisms in Africa and argues that the absence of an independent African anti-corruption investigative institution to implement the Convention is a deficiency that could hinder the effectiveness of the AfCFTA.
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Refunds for defective goods: Examining the actio redhibitoria versus the section 56(3)(b) remedy, pp 247-271
Author/s: Okika, Emmanuel Brian and Booley, Ashraf
Every consumer has the right to receive goods that are safe, of high quality, in proper working condition, and without any defects. This entitlement becomes relevant when a consumer receives a faulty or flawed product. Consequently, a remedy is activated once a faulty product is received. This article explores the refund remedies available to consumers in terms of the aedilitian remedy of actio redhibitoria and section 56(3)(b) of the Consumer Protection Act 68 of 2008 in South Africa, in the course of which it clarifies the causes of action that are required in order to rely on any of them. The article compares and contrasts the two refund remedies, and identifies which one is likely to result in a full refund of the purchase consideration.
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The power of the Minister of Finance to amend Schedules to the Customs and Excise Act to impose tariffs and trade remedies: A discussion of recent developments in case law, pp 272-299
Author/s: Vinti, Clive
The Constitutional Court of South Africa in Nu Africa Duty Free Shops v Minister of Finance decided on whether the Minister of Finance has the power to amend the Schedules to the Customs and Excise Act 91 of 1964 (CEA). The High Court had ruled that this amendment power was a violation of the principle of legality, since it unlawfully allowed the delegation of a plenary legislative power. In the confirmation proceedings, the Constitutional Court declined to confirm the High Court order on the grounds that South African law does not prevent the delegation of the power to amend schedules of a statute. The apex court based this finding on the view that this amendment was subject to parliamentary oversight, that it must be in the public interest, and that the duty would lapse after a year if Parliament did not approve it. This article discusses the implications of the decision for the imposition of tariffs and trade remedies. The discussion reviews relevant case law, legislation, literature, and domestic law.
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Towards regulatory integration in Africa: An analysis of the regulation of technical barriers to trade under the African Continental Free Trade Area, pp 300-336
Author/s: Chimeri, Vongai
The African Continental Free Trade Area (AfCFTA) is the largest free trade area after the World Trade Organization. Among other aims, the AfCFTA seeks to achieve deeper economic integration by creating a single market among African states through trade liberalisation via the elimination of tariff and non-tariff barriers to trade. Non-tariff barriers, particularly technical barriers to trade, have long been considered the biggest obstacles to intra-African trade. To this end, multilateral and regional legal instruments that seek to regulate technical barriers to trade in Africa have been concluded. The recently adopted AfCFTA adds an important normative layer to the regulation of technical barriers to trade in Africa. This article, through the examination of the regulatory framework of technical barriers to trade in Africa, argues that it is not the conclusion of harmonised frameworks per se which is important, but the implementation of these frameworks in the domestic legal systems of African states, as this can help boost intra-African trade and achieve the objectives of the AfCFTA. The article thus provides recommendations for the successful implementation of rules governing technical barriers to trade under the AfCFTA. It posits that the elimination of technical barriers to trade should remain a priority for the successful implementation of the AfCFTA.
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Comparing Fourth Industrial Revolution innovations for future e-commerce security: A brief comparative study of South Africa and the United Kingdom, pp 337-368
Author/s: Booley, Ashraf; Potberg, Conrad; Hull, Shane; Okika, Emmanuel Brian; and Nhika, Blessing Tendai
E-commerce has witnessed remarkable growth since the COVID-19 pandemic, catalysing newfound interest among global corporations in the South African market. The influx of international companies into the South African landscape foreshadows a wave of technological transformation in the realm of e-commerce. Notably, as these companies predominantly originate from nations at the vanguard of technological innovation, the concomitant changes are anticipated to reverberate globally. However, the impending revolution is poised to usher in a constellation of changes within the sphere of electronic contracting. This article seeks to dissect the regulatory facets of electronic contracts in both South Africa and United Kingdom. Since the United Kingdom is positioned as pace-setter in technological advancement, an exploration of its regulatory dimensions stands to furnish invaluable insight into mitigating the prospective predicaments engendered by the surge in e-commerce activities in South Africa. This article explores the dynamic interplay between global-e commerce trends and regulatory frameworks, shedding light on the importance of a “wet” signature in ensuring the harmonious coexistence of technological advancement and legal safeguards in South Africa’s burgeoning landscape of electronic contracting.
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A legal analysis of the efficiency of the AfCFTA dispute settlement system, pp 369-392
Author/s: Lunani, Sadat Mulongo
Article 20 of the African Continental Free Trade Agreement (AfCFTA) establishes a dispute settlement mechanism (DSM) for resolving trade disputes between member states. Its design reflects a move towards transparency, accountability, fairness, predictability and consistency in dispute resolution in Africa’s regional trade regime. Like the dispute settlement system at the multilateral level, AfCTA’s Dispute Settlement Protocol is formally structured with defined stages and timelines. However, it faces challenges akin to those confronting the World Trade Organization’s dispute settlement system. Notably, the DSM’s state-to-state nature, state membership of overlapping trade agreements, and lack of capacity are key barriers to ensuring dispute resolution under the AfCFTA. African countries’ low levels of participation in trade disputes at the multilateral level and in regional economic communities indicates that, of these challenges, lack of capacity is the main barrier to the use of the dispute settlement system. Effectiveness can be conceptualised as success in attaining the objectives of the dispute settlement in three areas: the inclusiveness of the process, especially in regard to non-state actors; the finality of the process; and the availability of alternative fora of dispute resolution. This article examines the DSM under the AfCFTA Dispute Settlement Protocol to assess its implementation and effectiveness. The enquiry begins by discussing the background to the DSM and its benefits to members before delving into the host of challenges it faces. The article concludes by recommending, among other things, that member states amend the DSM protocol to allow for the inclusive participation of all actors in trade disputes.
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Toiling by the light of the moon: Side-hustling and the duty of good faith – Bakenrug Meat v CCMA and Others, pp 393-409
Author/s: Kolobe, Lebogang Fortunate and Tavuyanago, Simbarashe
This article discusses the pertinent issue of employer-employee relations in respect of the employee’s duty of good faith. In terms of the common law, an employee owes a general duty of good faith to the employer, which includes the obligation not to engage in activity which is in conflict with the employer’s interests. This duty brings to the fore the question of the status of an employee who engages in a side business in order to supplement his or her income. Looking through the lens of Bakenrug Meat v CCMA and Others, the article examines the scope of “conflict of interest” and finds that it is an expansive concept that has failed to keep up with the evolving nature of employer-employee relations as well as the socio-economic pressures that have necessitated side businesses as a means to make ends meet. The argument here is that the court's interpretation of the duty of good faith was too wide, owing to the lack of a definition for “good faith”. In that light, the article suggests a reconceptualisation of the duty of good faith and calls for its codification to ensure certainty and consistency in its interpretation and application.
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