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• South African courts' differing approaches to determining children's views in family law matters*

  The United Nations (UN) Convention on the Rights of the Child, 1989 (CRC), the African Charter on the Rights and Welfare of the Child, 1990 (ACRWC) and sections 6(5), 10, and 31(1)(a) of the Children's Act 38 of 2005 (Children's Act) place an obligation on South African courts to determine children's views in their parents' family law matters. This article analyses thirteen judgments stretching from 2003 - 2020 and one 2018 psychological study in relation to parenting plans to ascertain how South African courts determine children's views and wishes in practice. The judgments selected relate to divorces and disputes regarding children's primary residence and care and contact (custody and access disputes), disputes where a parent intends emigrating with children, and matters were a parent abducted a child. The judgments indicate courts have diverging approaches to determining children's views and wishes in family law matters. The 2018 psychological study found legal practitioners unfortunately fail to take into account children's inputs for purposes of drafting their parents' parenting plans. In light of courts' diverging approaches to determining a child's voice in their parents' litigious matters, as well as the current complete lack of guidelines in this regard, there is a need to amend the Children's Act to assist courts with particular regulations or guidelines in this regard. If courts are equipped with guidelines to direct their determination of children's views and wishes in family law matters, this will result in a more certain, and more congruent approach and most importantly, it will assist courts to pay heed to their duty to properly hear the voice of the child.

• Considering the ownership of house property in customary law

  The Recognition of Customary Marriages Amendment Act 1 of 2021 was enacted to address the proprietary consequences of customary marriages. This note examines the implications of the Amendment Act in light of the Mshengu v Estate Mshengu 9223/2016P judgment, which was decided shortly after the Amendment Act came into effect. Three key issues are analysed: first the potential conflict between the Amendment Act and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 in relation to the ownership of house property; second the challenges in classifying property as house or family property; and third the impact of the devolution of property on the rights of other family members. The analysis emphasises the importance of soliciting input from communities who live according to customary law and highlights the need for legislation that is flexibly drafted to accommodate nuanced customary law practices and provide avenues for redress in cases where statutory provisions yield unfair outcomes.

• Policy implications and mobile money regulatory approaches to promote financial inclusion of the poor in Zimbabwe after the COVID-19 pandemic*

  The increased usage of digital financial products and financial services such as mobile money brought various challenges and opportunities in Zimbabwe during the coronavirus (COVID-19) pandemic. This has also increased the responsibilities of the regulatory authorities in the Zimbabwean financial sector. The financial regulators were inadequately prepared for the regulatory demands of financial technology (fintech) products in Zimbabwe. For instance, they struggled to cope with the increased responsibilities of overseeing mobile money operators and have adequate resources to efficiently monitor and manage such operators to ensure compliance with the relevant laws. Most Zimbabwean financial regulators did not have sufficient resources to employ persons with the relevant skills and expertise to fulfil their responsibilities. Despite this, the widespread use of mobile money has considerably improved the financial inclusion of the poor and previously unbanked persons, particularly during the COVID-19 pandemic in Zimbabwe. Consequently, various policy implications and mobile money regulatory approaches that were considered by policymakers during and after the COVID-19 pandemic in Zimbabwe in a bid to provide adequate supervision of mobile money operators and related digital financial services to curb the financial exclusion of the poor and unbanked persons are investigated. It is against this background that this article discusses the challenges, policy implications, and flaws affecting the adoption of viable mobile money regulatory approaches to promote financial inclusion of the poor in Zimbabwe after the COVID-19 pandemic.

• Revisiting the no reflective loss principle under the South African company law regulation: A reflective assessment through the lens of Hlumisa Investment Holdings (RF) Ltd v Kirkinis 2020 3 All SA 650 (SCA)

  One of the central concepts in company law is that a company is a juristic person with a separate legal personality. Several consequences flow from the doctrine of separate legal personality, among other things, that a company owns its property and assets and may sue or be sued in its name. Therefore, shareholders do not have a direct right of action for a company's loss. The company itself should institute such a claim save for certain exceptional circumstances like derivative actions. Both the High Court (court a quo) and the Supreme Court of Appeal in Hlumisa Investment Holdings (RF) Ltd v Kirkinis (the Hlumisa case) confirmed that shareholders cannot claim diminution of share value that is linked to the misconduct of company directors and auditors. This article concurs with the court a quo and the Supreme Court of Appeal's interpretations that as a general rule, directors owe fiduciary duty only to the company and that shareholders cannot rely on a claim for reflective loss in company law. This article assesses the proper plaintiff and reflective loss rules against the backdrop of the Hlumisa case.

• LH v ZH 2022 (1) SA 384 (SCA) Should section 18(a) of Matrimonial Property Act 88 of 1984 apply to all spouses in a marriage in community of property, irrespective of when the non-patrimonial damages were received?

  Should section 18(a) of Matrimonial Property Act 88 of 1984 apply to all spouses in a marriage in community of property, irrespective of when the non-patrimonial damages were received? South Africa has three statutes that regulate marriages, namely the Marriage Act 25 of 1961 which regulates monogamous civil marriages that are entered into by spouses of the opposite sex, irrespective of their race; the Recognition of Customary Marriages Act 120 of 1998 which regulates monogamous and polygynous customary marriages entered into by South African black spouses, and lastly the Civil Union Act 17 of 2006 which regulates monogamous unions between spouses of the same sex or opposite sex, irrespective of their race, and the unions are registered either as a marriage or a civil partnership.

• Online deceptive advertising and consumer protection in South Africa - The law and its shortcomings?

  E-commerce and e-marketing has grown significantly over the past few years. More businesses are moving away from original forms of marketing tools such as newspapers, magazines, billboards and televisions and instead prefer online platforms such as social media. The article focuses on false, misleading and deceptive online marketing representations. It examines the legislative framework that seeks to protect online consumers in South Africa in terms of the Electronic Communications and Transactions Act 25 of 2002 (ECTA), the Consumer Protection Act 68 of 2008 (CPA) as well as the Social Media Code1 of the Advertising Regulatory Board (ARB). It is recommended that although a consolidated statute that makes provision for both offline and online consumers would be ideal, the current provisions in ECTA could also be reviewed to ensure that they are in line with the new developments in marketing trends such as influencer marketing. The Social Code of the ARB is also important to complement ECTA and the CPA, as well as to promote the overall protection of consumers in South Africa.

• A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

  International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.

• An analysis s 5A of the Divorce Act 70 of 1979 and its application to marriages concluded in terms of Islamic law

  There has (to date) been no legislation enacted by the South African government that fully recognises marriages concluded in terms of Islamic law (Islamic marriages) as well as the Islamic law consequences that flow from these marriages. Some South African Muslims have opted to conclude marriages in terms of South African law (civil marriages) in addition to their Islamic marriages. This could be referred to as dual marriages. The civil marriages as well as its consequences (not the Islamic law consequences) would then be fully protected in terms of South African law. It is quite interesting to note that s 5A of the Divorce 70 of 1979 authorises a court to refuse the granting of a civil divorce if either of the parties would not be free to remarry subsequent to the granting of the civil divorce. This article analyses how s 5A of the Divorce Act 70 of 1979 applies to dual marriages. It looks at the impact of s 5 A of the Divorce Act on dissolution of dual marriages concluded by Muslims within the South African legal context. The dissolution of Islamic marriages within the South African legal context is looked at by way of introduction. The dissolution of a civil marriage within the context of a dual marriage (couple married in terms of Islamic law and civil law) is then looked at. The article concludes with an overall analysis of the findings and makes recommendations.

• An analysis of the possibility to implement a CSI tax levy in South Africa: Lessons from Mauritius

  “The voluntary approach to corporate social responsibility has failed in many cases.”1 The Mauritius corporate social responsibility (CSR) landscape changed profoundly in 2009 with the addition of sections 50K and 50L to the Income Tax Act 16 of 1995 (Mauritius), making contributions to a CSR fund mandatory. Before 2009, the Mauritius government repeatedly called on the private sector for assistance to overcome unemployment, poverty, and other challenges in their country. Due to an unsatisfactory response to their request and factors such as poverty, and high unemployment levels, the government made the drastic decision to implement mandatory CSR legislation. The main objective of this study was to investigate the factors contributing to the enactment of mandatory corporate social responsibility (CSR) legislation in Mauritius and the possibility to implement similar legislation in South Africa. An analysis of the Mauritius tax legislation and relevant government publications scrutinised, by way of a literature review, revealed that what is referred to as mandatory CSR, is in fact mandatory corporate social investment (CSI). The study further indicated that the same socioeconomic factors as those present in Mauritius prior to 2009 and worse apply to South Africa. An analysis of South African CSI practices and contributions indicated that an additional R3.111 billion could have been raised if a 2 per cent CSI levy was applied to after-tax profits of certain categories of companies, as in Mauritius. This represents 1.2 per cent of the South African Department of Social Development's 2022/2023 budget. It is recommended that similar legislation should be considered for South Africa. It will ensure that all profitable companies in South Africa contribute to CSI and that more funds will be available to address some of the socio-economic needs. The study addressed the gap in empirical research done in Mauritius after 2018 and 2020 and is also the first comparative study conducted on this topic regarding South African law.

• Special Edition on Rethinking Global Economies, Financial Markets, Corporate Practices & Business Activities Post-COVID-19 Pandemic

  The 2nd Annual International Corporate and Financial Markets Law Conference (CFML) was held hybrid (physical attendance & virtually), at the Faculty of Law, North-West University, from 27 to 28 October 2022. This conference provides a platform for students, legal practitioners, regulatory authorities, emerging researchers, established researchers, policymakers, and other relevant persons to examine and discuss topical issues of corporate and financial markets law and related fields. The CFML conference was held under the theme: Rethinking Global Economies, Financial Markets, Corporate Practices & Business Activities Post-COVID-19 Pandemic.1 It focused on the need for companies, policy makers, international financial institutions, governments, business persons, market participants and all relevant persons to re-think their corporate practices, global economies and ethical standards in the global financial markets and financial institutions Post-COVID-19 Pandemic.2 This follows the fact that most companies, international financial Alexandre and Eisenhart “Mobile Money as an Engine of Financial Inclusion and Lynchpin of Financial Integrity” 2013 Washington Journal of Law, Technology and Arts 288-289; Chitimira and Ncube “Legislative and Other Selected Challenges Affecting Financial Inclusion for the Poor and Low Income Earners in South Africa” 2020 Journal of African Law 337-338; Ngwenya, Pelser and Chivaura “Perceptions of Post-multicurrency Regime Financial Inclusion Confidence Challenges in Zimbabwe” 2018 South African Journal of Economic and Management Sciences 1-15; Chitimira and Torerai “The Nexus Between Mobile Money Regulation, Innovative Technology and the Promotion of Financial Inclusion in Zimbabwe” 2021 Potchefstroom Electronic Law Journal 1-4. Lumsden “The Future is Mobile: Financial Inclusion and Technological Innovation in the Emerging World” 2018 Stanford Journal of Law, Business and Finance 7-8; Kantor Immerman Legal Practitioners “Corporate Rescue A Consideration for Companies Affected by COVID-19?” 15 March 2021 http://www.kantorimmerman.co.zw/corporate-rescue-a-consideration-forcompanies-affected-by-covid-19/ (last accessed 2023-07-02); Ngwenya, Pelser and Chivaura 2018 South African Journal of Economic and Management Sciences 1-15; Chitimira and Torerai 2021 Potchefstroom Electronic Law Journal 4; Chitimira and Ncube 2020 Journal of African Law 338.

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