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ISSN : 2753-3115 (Print) ISSN 2753-3123 (Online)
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The editorial board is pleased to announce the debut of the African Journal of Law and Justice System (AJLJS), a journal that provides a much-desired additional avenue to the budding and renowned African scholars, academics, and public policy commentators in the global community to express their innovative ideas on law related policy issues and ventilate legal arguments on contemporary developments in law and justice systems in the continent and beyond. In this inaugural issue, the journal publishes four articles and a book review which were carefully selected to keep within the remits of the journal. The paper on Balancing Employer-Employee Expectations in Employment Contracts: Law and Practise in Kenya explore an African social perennial malady, i.e., youth unemployment. The author argues that the unemployment rate in Kenya has been on an incremental trajectory in the past two decades, dimming the hopes and aspirations of many qualified job seekers. Part of the challenges surrounding the employment situation in the country was attributed by the author to the extant labour law, which the author critically analysed with copious references to precedents specifically laying emphasis on the contents of an employment contract that defines the employment relationship between the employer and the employee. The author argues that the legal framework that regulates the employment contract does not sufficiently protect the employee. As such deserves an amendment to seal loopholes in the existing legal framework to secure employer-employee expectations. The second paper on the list, The Piercing of the Corporate Veil and Creditor Protection is a piece on a contemporary issue in company law. The author examined the common law concept as presently enacted in section 20(9) of the South African Companies Act 71 of 2008 from a creditor protective mechanism. The interpretation of the phrase “unconscionable abuse” as used in that provision and its implications on creditor protection in a company’s operations form the crux of the article. The author investigates the instances under which the corporate veil will be pierced and defines what constitutes "unconscionable abuse" in a bid to outline the guidelines that a court will rely on when faced with an application for the piercing of a corporate veil from aggrieved creditors. The High Court decision in Ex parte Gore NO and others NNO [2013] 2 All SA 437 (WCC) was extensively and critically analysed and found as a useful tool in giving meaning to that phrase which the legislature has inexplicably failed to define. The paper concludes that piercing the corporate veil remains a discretionary matter for the courts, thus necessitating caution on creditors who seek to employ that mechanism as the courts would not lightly disregard a company's separate legal personality. The paper titled Remuneration of Executive Directors of State-Owned Company: Mhlwana and Another V Denel Soc Ltd [2021] Zagpphc 199 (19 March 2021)- In Perspective is case study that critiqued a South African High Court decision on the determination of the remuneration of executive directors in a state-owned company. The paper acknowledges the importance of directors in a company’s operations which ordinarily entitles them to remuneration which must be determined and paid in accordance with the extant law and company’s regulations. Such a stance accords with the common law, which, though expressly treats the office of a director as gratuitous, does not prohibit the payment of reasonable compensation by a company to persons that occupy such office where such payment is provided for in a director’s contract of service. The concern, however, has always been the tendency for the directors, in the exercise of their managerial powers, to apportion to themselves remuneration in excess of what the company can reasonably afford and which is grossly at variance with the pay received by an average employee in the corporate establishment. It is on the above premises that the authors critically analysed the decision in Mhlwana and Another v Denel Soc Ltd and argued that the court’s decision, in that case, is unfair to the executive directors whose application for redress was not only dismissed but were ordered to refund the remuneration they received in accordance with the two resolutions of the board. The paper further proffers alternative relief for directors in similar circumstances, which could be sought by way of unfair prejudice action. In the paper on A Credit Provider’s Right to Set-Off under Credit Agreement Regulated by the National Credit Act 34 of 2005, we found a desire expressed by the authors that a fair balance is maintained in the protection of the interests of credit providers and the consumers in the application of the law. The paper, which adopted the South African court decision in National Credit Regulator v Standard Bank of South Africa Limited [2019] 3 All SA 846 (GJ); 2019 (5) SA 512 (GJ) as the focal point of discussion, sought an acceptable interpretation and application of sections 90(2)(n) and 124 of the National Credit Act 34 of 2005. The court’s decision defines the primary purpose of the Act as the protection of the interests of consumers and, in that light, ousts the right of set-off which the credit providers enjoyed at common law. On the other hand, the court emphasises the need to maintain a balance between the interests of the credit providers and the consumers in the application of the relevant provisions of the Act. The paper argues that ensuring that such balance is maintained would require the blending of the legal instrument with the factual situations in each case so that justice is attained based on the peculiarities of each case. Lastly is a book review written on a new book, Scholarship and Politics in South Africa’s Higher Education System (2021) authored by Professor Kgothatso Shai. This fascinating work captures the intrinsic politics of learning and the challenges in the South African higher education system. You are invited to take an intellectual excursion into this new journal. Comments, rejoinders, and contributions are welcomed for the subsequent edition. Prof Anthony O. Nwafor Editor in Chief