The implications of unconstitutional changes of government for democracy and the rule of law in Africa: A human rights perspective, pp 1-37
Author/s: Mubangizi C, John
This article explores the implications of unconstitutional changes of government (UCGs) for democracy and the rule of law in Africa from a human rights perspective. It critically examines how UCGs erode democratic institutions, undermine the rule of law, and facilitate human rights violations by weakening accountability mechanisms and suppressing political dissent. Drawing on case studies of Mali, Guinea, Sudan, and Chad, the article highlights the socio-political dynamics and institutional fragilities that enabled military takeovers or extra-constitutional successions, as well as the domestic and regional responses to these crises. The analysis reveals that UCGs often result in transitional regimes that lack legitimacy, perpetuate repression, and deepen civic disenfranchisement. The article argues that safeguarding democracy and the rule of law in Africa requires sustained commitment to constitutional order, proactive regional intervention, and the protection of human rights as foundational pillars of governance. It concludes with recommendations aimed at preventing UCGs and mitigating their impact, including strengthening constitutional safeguards, bolstering regional normative frameworks such as the African Charter on Democracy, Elections and Governance, and enhancing the role of regional bodies such as the African Union in enforcing anti-coup norms.
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From monopoly to justice: The (non) evolution of public interest objectives in South African competition law, pp 38-68
Author/s: Ndamase, Yolani
This article examines the historical development and contemporary influence of selected public interest objectives in South Africa's competition law. It traces the trajectory from colonial and apartheid-era statutes that entrenched monopoly power and excluded black entrepreneurs to the transformative ambitions of the Competition Act 89 of 1998 and its 2018 amendments. The article argues that while public interest provisions were introduced to promote economic inclusion, their implementation has been inconsistent and susceptible to excessive ministerial discretion and conceptual vagueness. A review of case law reveals doctrinal tensions between traditional competition adjudicative frameworks and the Act's transformative objectives. The article contends that the transformative potential of competition law will remain unrealised unless these tensions are resolved through more explicit interpretive guidance and a principled balancing of public interest factors. It concludes that South Africa's competition regime must strengthen the adjudicative framework and ensure institutional independence in order to transform competition law from a symbolic policy commitment to a substantive mechanism for advancing inclusive and equitable economic justice.
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The right to housing and its application in sequestration: Body Corporate of Old Trafford v Muronzi (016676/2023) [2024] ZAGPPHC 623 (21 June 2024), pp 69-101
Author/s: Mabe, Zingapi and Boraine, André
Insolvency law in South Africa limits the insolvent's fundamental rights, such as the right of access to adequate housing under section 26 of the Constitution of South Africa, 1996. This limitation arises because the Insolvency Act 24 of 1936 does not exempt the insolvent's primary residence from vesting in the insolvent estate, vesting that may therefore render the insolvent and his or her family homeless. Before an application for compulsory sequestration can succeed, the applicant must prove a reason to believe that the sequestration will benefit the estate's creditors. The courts exercise their discretion to grant or refuse a sequestration order, depending on whether this requirement is satisfied. In special circumstances, the court may exercise its discretion to refuse a sequestration order. Special circumstances in Body Corporate of Old Trafford v Muronzi (016676/2023) [2024] ZAGPPHC 623 (21 June 2024) were held to infringe an insolvent's right to adequate housing without judicial oversight. Rule 31 and rule 46A of the Uniform Rules of Court require the court to consider alternatives to execution before declaring a property executable in an application for default judgments involving a debtor's home. This case note explores whether rule 46A should also be considered in sequestration applications, where a debtor may be rendered homeless. It also discusses how the right to access adequate housing is enforced in sequestration proceedings. The case note shows that the courts exercise their discretion and creatively apply the advantage requirement to enforce section 26 of the Constitution in the absence of special rules governing judicial oversight of sequestration proceedings.
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Indirect expropriation and the “police powers” problem of international investment arbitration: Considering the merits of a “mitigated” approach, pp 102-137
Author/s: Rammila, Davy
A host state has the sovereign right to expropriate property, including that belonging to aliens, granted that such expropriation is subject to the complementary customary international law duty to pay the expropriated alien compensation. Through the mechanism of investment treaties, capital-exporting states have sought to regulate this process of expropriation and codify the duty to compensate in respect of their citizens' investments in foreign lands. When expropriation occurs, compensation is therefore required. However, where regulation is pursued in the public interest, host states are said to possess the right under their so-called “police powers” to regulate without the need to tender compensation even if such regulation has an expropriatory effect. The police powers doctrine, which has come to be accepted by various international investment tribunals, has proven controversial, as it has been used to exempt states from their international law duty to compensate investors for such regulatory expropriations. In its current formulation, the doctrine places the burden of the public interest wholly upon the investor without the state's needing to shoulder the same. Several authors have proposed frameworks that attempt to balance the application of the doctrine. This article examines one such framework – the so-called mitigated police powers – and explores its ability to address the problems created by strict applications of the police powers doctrine. The article concludes that the mitigated police powers framework provides a reasonable, fair and arguably defensible basis for adjudicating the competing interests involved.
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The concept of public trusteeship: A missed opportunity to navigate the tension between mining interests and water resource protection in Kangra Coal (Pty) Ltd v The Trustees of the Time Being of the Corneels Greyling Trust and Others (1052/2023) [2025] Z, pp 138-167
Author/s: Viljoen, Germarie
This case note critically analyses Kangra Coal (Pty) Ltd v The Trustees of the Time Being of the Corneels Greyling Trust and Others (1052/2023) [2025] ZASCA 09 (6 February 2025), a matter that foregrounded the tension between mining activities and the protection of water resources as it progressed through the Water Tribunal, the High Court, and, ultimately, the Supreme Court of Appeal (SCA). The analysis contrasts the High Court’s emphasis on the concept of public trusteeship and its precautionary approach to water resource protection with the SCA’s more procedurally driven and formalistic stance, particularly in its treatment of locus standi for affected parties, the interpretation of timelines for lodging water-use license appeals, and the requirements for obtaining an interdict to halt activities potentially harmful to the country’s water resources. The case note argues that a more purposive and constitutionally grounded approach would better equip South African courts and decision-makers to respond to the complex and urgent challenges of water governance in a mining-dependent and water-scarce country. It seeks to influence future jurisprudence by calling for the rigorous interpretation and consistent application of the concept of public trusteeship, greater clarity regarding the Water Tribunal’s jurisdiction, and the continuance of a broad understanding of locus standi.
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Is skills training through skills transfer, experiential learning and simulations the solution to the legal education crisis, and what curricular changes are required to deliver it?, pp 168-190
Author/s: Rippenaar, Shéan Jamie
Numerous authors and commentators have observed that there is a legal education crisis in South Africa and that it is rooted in the fact that many law graduates, upon entering the legal profession, do not possess the practice-related skills required by the legal profession. This skills gap stems from the belief that, in law studies, theory and legal practice should be kept apart from each other and the fact that university law faculties are reluctant to shift their teaching method away from one based solely on doctrine to one incorporating skills training. Legal education is currently focused on a doctrine-based method, as law faculties believe that by teaching students how to analyse legislation and case law their preparatory obligation is fulfilled. As a result, law graduates are entering the legal profession without the skill-set required to practice law and represent clients proficiently. This journal article investigates how skills training could be incorporated into the existing LLB curriculum and how, through the use of skills transfer, experiential learning and simulation exercises, this could be achieved and subsequently the skill levels of law graduates can be improved. This journal article goes on to examine conceptual frameworks which can be developed and the adjustments that could be made to the existing LLB curriculum to close the skills gap by ensuring that students gain both knowledge of the law and the skills required to practise it and promote the achievement of socio-economic equality in South Africa.
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Unpacking progressive realisation and its application to the right to higher education in South Africa, pp 191-222
Author/s: Potberg, Conrad
The relevance of the constitutional principle of progressive realisation in the context of access to higher education by disadvantaged groups in South Africa cannot be overemphasised, and this has prompted the question of how extensively the South African government has taken deliberate steps to expand such access. Access to higher education is one of the key drivers of social mobility and economic equality. Using a two-fold approach – a doctrinal analysis and assessing government’s initiatives and budgetary allocations – this study interrogated whether South Africa’s legislative and policy frameworks have converted the constitutional obligations into tangible outcomes for access to higher education. The analysis and assessment incorporates a review of case law, technical reports and international conventions to evaluate compliance with the principle of progressive realisation as enshrined in section 29(1)(b) of the South African Constitution. With a focus on disadvantaged groups, the study emphasises systemic barriers and assesses whether efforts align with constitutional obligations. A key finding is a persistent disconnect between policy and implementation, with a lacuna in data, funding sustainability and support for students from disadvantaged groups. The findings further contribute to ongoing debates on socioeconomic rights and inform policy recommendations focused on improved data collection, inclusive and sustainable funding models, and strengthened accountability mechanisms to enhance access to higher education in South Africa.
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The use of artificial intelligence in legal research: A brief review of South African case law and proposals for regulation, pp 223-251
Author/s: Singh, Ciresh
Artificial intelligence (AI) is infiltrating nearly every aspect of human life. From a legal perspective, technology has been an essential tool to assist legal practitioners in performing legal research. Advancements in AI, and in particular the use of AI models such as ChatGPT to conduct legal research, have, however, created various challenges in the legal profession. The unchecked use of AI applications for research by legal practitioners in some foreign jurisdictions has been heavily sanctioned by the relevant judiciaries. In South Africa, courts have not yet taken such a strict approach but have raised great concern about the use of AI for legal research. Currently, South Africa has no rules that explicitly govern the use of AI in legal research and drafting, yet as the impact of AI increases and its use in the legal sector grows, clear rules and laws need to be formulated to regulate its proper use in legal research and drafting.
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