Expropriation Without Compensation constitutionality debacle and Foreign Investment Protection in South Africa

by | Nov 9, 2025 | SAMLJ, SAMLJ V37 I2

Expropriation Without Compensation constitutionality debacle and Foreign Investment Protection in South Africa

Author: Aghem Hanson Ekori

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

Abstract

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.

The regulation of burial societies: Is the regulatory framework fit for purpose?

by | Nov 9, 2025 | SAMLJ, SAMLJ V37 I2

The regulation of burial societies: Is the regulatory framework fit for purpose?

Author: Sinikiwe Mzezewa

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

Abstract

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.

The road ahead? Transforming South Africa’s Minibus Taxi Industry through digital technology

by | Nov 9, 2025 | SAMLJ, SAMLJ V37 I2

The road ahead? Transforming South Africa’s Minibus Taxi Industry through digital technology

Author: Siyabulela Christopher Fobosi

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

Abstract

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.

From Massmart to Mediclinic (with a drive-thru Burger King): The development of the public interest standard in merger regulation

by | Nov 9, 2025 | SAMLJ, SAMLJ V37 I2

From Massmart to Mediclinic (with a drive-thru Burger King): The development of the public interest standard in merger regulation

Author: Thalalolwazi Msutu

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

Abstract

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.

The abuse of sick leave and the Employer’s right to establish the veracity of medical certificates in South Africa: Woolworths (Pty) Ltd v CCMA and others (JA90/2022) [2024] ZALAC 29 (13 June 2024)

by | Nov 9, 2025 | SAMLJ, SAMLJ V37 I2

The abuse of sick leave and the Employer’s right to establish the veracity of medical certificates in South Africa: Woolworths (Pty) Ltd v CCMA and others (JA90/2022) [2024] ZALAC 29 (13 June 2024)

Author: Bongani Khumalo

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

Abstract

None

The Constitutional Court restores the integrity of the Controlled Foreign Company Legislation: Coronation Investment Management SA (Pty) Limited v Commissioner For The South African Revenue Service [2024] ZACC 11

by | Nov 9, 2025 | SAMLJ, SAMLJ V37 I2

The Constitutional Court restores the integrity of the Controlled Foreign Company Legislation: Coronation Investment Management SA (Pty) Limited v Commissioner For The South African Revenue Service [2024] ZACC 11

Author: Thabo Legwaila

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

Abstract

None