ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 28 Issue 2, 2025, p. 26-31
None
ISSN: 1996-2185
Affiliations: International Law Researcher and Postdoctoral Fellow,
Walter Sisulu University
Source: South African Mercantile Law Journal, Volume 37 Issue 2, 2025, p. 127 – 146
https://doi.org/10.47348/SAMLJ/v37/i2a1
The issue of expropriation of property especially land without compensation and the amendment of s 25 of the Constitution has been topical, notably under the Government of National Unity (GNU). Many leaders, both local and international, have challenged the newly signed Expropriation Act into law. Accordingly, both local and foreign investors are protected mainly by the Constitution of the Republic, the Protection of Investment Act, and the Expropriation Act. Despite the debate on the issue of expropriation of property without compensation, laws in the country, particularly the Expropriation Act, ensure that properties are expropriated with just and equitable compensation, and this position is consistent with both s 25 of the Constitution and international law rules. However, there may be instances where property may be expropriated without compensation under the Expropriation Act, especially where the property has been abandoned. This article examines whether the international law rules governing foreign investment are consistent with the Protection of Investment Act, the Expropriation Act, and s 25 of the Constitution and relevant case law. It argues that the Expropriation Act and the international law rules for foreign investment are consistent with s 25 of the Constitution of the Republic of South Africa despite the disputes.
ISSN: 1996-2185
Affiliations: Lecturer at The Independent Institute of Education, Varsity College, Cape Town, South Africa
Source: South African Mercantile Law Journal, Volume 37 Issue 2, 2025, p. 147 – 181
https://doi.org/10.47348/SAMLJ/v37/i2a2
Burial societies are types of mutual rotating schemes (stokvels) that are integral in indigenous communities in South Africa, providing funeral assistance to members and operating on the periphery of society. They are a necessity given the financial needs to upkeep burial rites in these communities. Burial societies are founded on sui generis contracts that are characterised by flexibility, cultural norms, ubuntu-based dispute resolution and innovative risk mitigation mechanisms. The existing regulatory framework perceives burial societies as entities offering funeral insurance products. Accordingly, this article examines the regulatory frameworks within which burial societies could operate and assesses their suitability. It interrogates their legal personality and contracts which is necessary because the framework applies to entities offering funeral insurance.
ISSN: 1996-2185
Affiliations: Senior Researcher: Department of Public and Constitutional Law, Faculty of Law, University of Fort Hare
Source: South African Mercantile Law Journal, Volume 37 Issue 2, 2025, p. 182 – 197
https://doi.org/10.47348/SAMLJ/v37/i2a3
The Covid-19 pandemic significantly disrupted businesses across all sectors, including public transportation. In response, the Taxi Association Management Service (TAMS) has been working to revitalise the South African taxi industry through technology. The goal is to reduce transportation costs and increase accessibility by automating the back-office operations of taxi associations, streamlining taxi levy collection, managing demand, and creating databases for stakeholders such as owners, drivers, marshals, and taxis. This technological shift aims to change perceptions of the South African taxi industry. However, the transformation of the sector is hindered by a lack of political will and conflicts of interest, particularly with political leaders allegedly being taxi owners. While the African National Congress (ANC) government has adopted developmental state principles and targeted economic interventions, its efforts to formalise the taxi industry have often been ineffective, marked by frequent policy shifts and dead-ends. A significant policy shift occurred in 1999 when the government moved from an ambitious Taxi Recapitalisation Programme (TRP) to a focus on restructuring the industry. Moreover, the government’s efforts to transform public transport, such as the Bus Rapid Transit (BRT) system, have been reactive rather than proactive, often failing to integrate urban planning with transportation. Cities like Johannesburg, Cape Town, and Tshwane introduced BRT systems in response to congestion and taxi inefficiencies, without a long-term vision for a cohesive transport network. Similarly, interventions like TRP have not tackled the industry’s structural issues, such as informality and lack of regulation. The frequent changes in transport policies, often driven by public outcry, highlight the government’s reactive approach. This has resulted in a transport system that leaves the working poor vulnerable to poor service, high fares, and unsafe conditions. Despite these challenges, technological advances in the sector may offer renewed hope for the future.
ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, Stellenbosch University
Source: South African Mercantile Law Journal, Volume 37 Issue 2, 2025, p. 198 – 227
https://doi.org/10.47348/SAMLJ/v37/i2a4
One of the distinctive characteristics of South Africa’s merger control regime is the public interest test applied in every merger. The Walmart/Massmart merger of 2012 was the first high-profile test of the public interest standard, and the Competition Appeal Court set out certain parameters for the application of the public interest standard that largely influenced the assessment of the public interest standard in the 2010s. With the Competition Amendment Act of 2019, the public interest test has entered a second phase of development, as competition authorities have been more assertive in their application of the public interest standard. This has led to certain decisions, such as the Burger King merger being the first case in which the Competition Commission has prohibited a merger solely because of the public interest grounds, and the Mediclinic merger, which incorporated the Competition Act’s objectives and the Constitution in interpreting the public interest test. This has culminated in the Competition Commission’s Revised Public Interest Guidelines of 2024 confirming the prominence of the public interest test, the broadening of considerations and the positive obligation for mergers to promote one of the public interest grounds. The implications of this second phase for market participants are investigated in this article.
ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 228 – 242
https://doi.org/10.47348/SAMLJ/v37/i2a5
None
ISSN: 1996-2185
Affiliations: Professor, School of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 242 – 255
https://doi.org/10.47348/SAMLJ/v37/i2a6
None
ISSN: 2521-2605
Affiliations: LLB (UFH), LLM (UKZN), PhD Commercial Law (UCT). Former Programme Coordinator: LLM in Corporate Law programme and Associate Professor of Corporate and Finance Law, Faculty of Law, University of the Western Cape. Now Associate Professor of Commercial Law, Faculty of Law, University of Cape Town.
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 1-33
https://doi.org/10.47348/JCLA/v12/2025-SEa1
Directors owe many duties to the company. To discharge these obligations effectively and to contribute to making quality decisions, the law requires directors to exercise independent judgement and unfettered discretion, especially in the collective functioning of the board and during decision-making processes. Situations such as outside board influences (in the case of nominee directors) and the influence of domineering figures are rampant in the collective functioning of the board. The law considers it a breach of duty for a director to allow themselves to be dominated, bamboozled, or manipulated by a dominant fellow director in a manner which disables independent judgement. South Africa recently experienced several corporate crises and collapses in many sectors, blamed on poor decision making caused by domineering persons in decision-making processes. This article considers relevant English law experiences before the Companies Act 2006, the codification of the duty to exercise independent judgement in s 173 of the Companies Act 2006, and the relevant case law principles that have evolved to date. From the analysis of English law, the article draws lessons and makes a solid case for expressing the duty to exercise independent judgement in statute in South Africa.
ISSN: 2521-2605
Affiliations: BA LLB, PGDip, LLM (Wits), Teaching Assistant, Wits School of Law, University of the Witwatersrand
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 34–77
https://doi.org/10.47348/JCLA/v12/2025-SEa2
Unethical conduct, poor corporate governance, and financial crime pose significant risks to the stability and credibility of financial institutions and markets, particularly in developing economies within African jurisdictions. These challenges undermine efforts to promote financial inclusion, market integrity, and economic growth. To effectively combat these challenges, embracing innovative financial technologies (FinTech) and artificial intelligence (AI) is essential. FinTech and AI enhance financial crime detection and prevention through real-time monitoring, data analytics, and anomaly detection, surpassing traditional methods. However, while AI and FinTech can improve detection, monitoring, and compliance, they fall short in assessing human intent and moral reasoning, which are crucial for prosecuting fraud and maintaining ethical governance. This article critically examines the role of AI and FinTech in enhancing corporate governance and financial crime prevention in African developing economies, while acknowledging their limitations in assessing moral intent and legal culpability. The article further explores the Fifth Industrial Revolution (5IR) discourse, a paradigm that reorients AI innovation toward human-centred, ethically informed governance models. Moreover, it highlights the importance of promoting financial education and integrating ethics into corporate governance frameworks to protect stakeholders’ interests and secure companies’ solvency and profitability. Companies can effectively mitigate financial crime, corruption, and institutional failures by adopting these measures, particularly within African jurisdictions, promoting sustainable, resilient, and trustworthy financial systems. The successful implementation of these frameworks is key, not only to maintaining the viability of financial institutions but to long-term growth and market integrity across the continent.
ISSN: 2521-2605
Affiliations: BCom Accounting (UFS), BCom Accounting Honours (UFS), BAcc Honours (UFS), MPhil Accounting (CUT). Senior Lecturer of Financial Accounting, Commerce, Law and Management Faculty
Source: Journal of Comparative Law in Africa, Volume 12 Special Edition, p. 78 – 100
https://doi.org/10.47348/JCLA/v12/2025-SEa3
Dividend distribution laws, which encompass the funds a company is legally required to maintain after shareholder distribution to protect creditors and ensure solvency, play a pivotal role in corporate governance and financial sustainability. With recent corporate failures in South Africa, such as Steinhoff and Tongaat Hulett, the adequacy of dividend distribution laws and integration with financial reporting practices has come under increased scrutiny. This has signalled some limitations in the dividend distribution laws in interpreting and applying some of the financial principles to balance and protect the interests of all claimants in a business. Addressing these limitations could contribute to improved conduct of corporate and governance practices. This article examines the concept of dividend distribution laws within South African corporate law, exploring its connection with the Companies Act of South Africa 71 of 2008 and relevant accounting and finance principles. Dividend distribution laws influence South African companies’ financial decision making and risk management. The objective is to evaluate how corporate law requirements and accountancy principles intersect to support entity growth while ensuring sustainable and reputable institutions.