University of Botswana Law Journal

The Recognition And Enforcement Of Foreign Arbitration Agreements And Awards Under The New York Convention In Botswana: A Reappraisal

Tecle Hagos Bahta — Fri, 14 Jun 2024 00:00:00 +0000

Alternative Dispute Resolution (ADR) methods play a significant role in the settlement of commercial and investment disputes. Arbitration, in particular, has been the most effective and efficient method for resolving disputes in international commercial and investment transactions. The ease and simplicity in the enforcement of arbitral awards across borders is notable in this respect. The New York Convention has significantly been lubricating the wheels of the system for cross-border mobility of arbitral awards in international business transactions. The New York Convention sets out uniform standards for the recognition and enforcement of international commercial and investment arbitral awards. Botswana is a party to the New York Convention as of 1977. In acceding to the Convention, Botswana has entered three reservations, namely, reciprocity, commercial and non-retroactivity. The non-retroactivity reservation may no longer have an adverse effect. The reciprocity and commercial reservation, however, have given rise to multiple enforcement regimes. Apart from the reservations, some of the provisions of the New York Convention have also been omitted and others inadequately captured in the implementing Act. In this respect, the impact of the afore-cited reservations in the application of the New York Convention in Botswana has been examined. In addition to the reciprocity requirement, section 3(3) of the implementing Act requires that an arbitral award from a convention state can be recognized and enforced in Botswana only if that state recognizes and enforces arbitral awards made in Botswana. It is submitted that this additional requirement may complicate the enforcement of arbitral awards in Botswana. The far-reaching ramifications thereof are dealt with in terms of the existing arbitral jurisprudence and practice. The new developments and its trajectories apropos Article VII of the New York Convention, which is not made applicable in Botswana, have been brought to the spotlight. Article VII has, in what seems a watershed departure, made possible the recognition and enforcement of foreign arbitral awards which are set aside (vacated) in their country of origin.

The Law Of Emergencies And Disasters: Reflecting On The High Court Of South Africa’s Freedom Front Plus Decision

Basutu S Makwaiba, Valantine Mutatu — Fri, 14 Jun 2024 00:00:00 +0000

Spoliation Of The Matrimonial Bedroom In Botswana: Paledi V Paledi

Tebogo Jobeta — Fri, 14 Jun 2024 00:00:00 +0000

Spoliation as a swift remedy has been commonly used in the sphere of property law. This remedy seeks to restore possession of an item of property without hearing the merits of the case. It is easy to apply and enforce in respect of tangible assets. Never before has this remedy been sought in respect of access of a portion of immovable property particularly in matrimonial proceedings. This paper seeks to present a novel sphere where spoliation was sought in matrimonial proceedings in respect of access to the matrimonial bedroom. The paper seeks to argue that in the past, spoliation dealt with actual or perceived possession of property. Possession should be given a broad and liberal meaning to include access to a part of a building.

Protection Of The Rights Of Employees In Insolvency Law: A Zimbabwean Perspective

Caleb Mucheche — Fri, 14 Jun 2024 00:00:00 +0000

Insolvency law in Zimbabwe has undergone a legal metamorphosis from the colonial period to post independence. The evolution of insolvency law in Zimbabwe has been largely driven by socio-economic and political forces. Suffice to underscore that before the enactment of the comprehensive Insolvency Act by the Parliament of Zimbabwe in 2018, legislation dealing with insolvency was scanty if not piecemeal. One ubiquitous gap that was characteristic of the old insolvency law was the absence of clear-cut legal provisions for the protection of employees as there was a deafening silence in the law. The lacuna that existed in the law is what prompted the legislature to come with a comprehensive Insolvency Act which plugs yawning gaps that were axiomatically evident in the old law. The cardinal importance of the legal protection of employees during crisis times like insolvency cannot be overemphasised because any raw deal for employees militates against the dictates of labour rights deeply rooted in social justice and equity in society. Thus the new insolvency legislation ring-fences employees by giving them some special priority consideration during times of insolvency, making this legislative intervention highly commendable.

Jurisdictional Challenges Of Transnational Cybercrimes In The African Region

Flora Alohan Onomrerhinor — Fri, 14 Jun 2024 00:00:00 +0000

Transnational cybercrimes are cybercrimes occurring across several jurisdictions. The advancement of technology has brought about an increase in the sophistication, severity and comprehensiveness of incidents of cybercrimes such that cybercrimes can now be effortlessly transnational. Existing literature reveals that inadequacy of cybercrime specific legislation in some states, inadequacy of procedural powers and inadequacy of enforceable mutual legal assistance provisions constitute jurisdictional challenges to transnational cybercrimes (TNCCs). This paper appraises the adequacy of legal responses to jurisdictional challenges of TNCCs in the African region and finds that in spite of the emphasis on the need for the enactment and harmonisation of cybercrime legislations, the problem of safe haven persist. It also finds that the various legal responses by states that have enacted cybercrime legislation in the region, have shown states consistently applying traditional territorially based rules to online activities by enacting laws that do not adequately address the borderless nature of the Internet. It concludes that purely domestic legal responses to cybercrimes, no matter how advanced, are inadequate as fragmented approach cannot effectively eradicate the problem created by the presence of safe havens. It proposes a holistic approach by way of a regional instrument patterned after the Council of Europe’s Convention on Cybercrime with provisions for effective and adequate international cooperation

Difficulties Beleaguering Labour Law In Regulating Domestic Work In Zimbabwe

Aulline H Mabika — Fri, 14 Jun 2024 00:00:00 +0000

This article examines the regulatory challenges presented by using labour law to regulate domestic work. The article presents analyse the Zimbabwe domestic worker regulations and the challenges in enforcing them. The article points to the ILO Convention 189 as an inspiration for regulating domestic work. It calls for innovation in domestic work regulation in order to match the unique nature of the sector. The discrepancy between the realities of the world of work and the socio-economic assumption that constitute the fundamentals of labour laws are highlighted. The article concludes by calling for a rethinking of the application of labour law in domestic work in order to make labour rights a reality for domestic workers.

An Analysis Of The Constitutional Protection Of The Right To Collective Bargaining In Zimbabwe

Pride P Dzapasi, Noah Maringe — Fri, 14 Jun 2024 00:00:00 +0000

From a historical perspective, the right to collective bargaining has often been rendered impotent by an interplay of factors. Before the major reforms introduced by the Labour Amendment Act, the right to collective bargaining was nominally proclaimed but denied in substance. The Constitution marks a pinnacle of the process that stated with the Labour Relations Amendment Act. Section 65 of the Zimbabwean Constitution now unambiguously provides for the right to collective bargaining. This constitutional provision is the fulcrum of collective bargaining laws in Zimbabwe. This is because the constitution lies at the top of the hierarchy of legislation in Zimbabwe. Any legislation that is in conflict with it is invalid. The Constitution is a transformative legal document that is both a backward looking and forward looking document. However, it must be mentioned that the Constitution extends the right to collective bargaining to all but security services employees are excluded from the enjoyment of the right. These are members of state security. They are different from private security employees like security guards. This effectively endorses the view that military personnel, members of the prison service, members of the police force and members of the central intelligence do not enjoy the right to collective bargaining. At the end of the day, they are exposed to the dictates of their employer whose conditions of employment are unquestionable. Apart from the members of security service, the rest of public service employees now enjoy the right to collective bargaining under section 65 of the Constitution.