Law, Democracy & Development

The implications of unconstitutional changes of government for democracy and the rule of law in Africa: A human rights perspective

John C Mubangizi — Wed, 29 Apr 2026 00:00:00 +0000

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 extraconstitutional 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.

From monopoly to justice: The (non) evolution of public interest objectives in South African competition law

Yolani Ndamase — Wed, 29 Apr 2026 00:00:00 +0000

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.

The right to housing and its application in sequestration: Body Corporate of Old Trafford v Muronzi (016676/2023) [2024] ZAGPPHC 623 (21 June 2024)

Zingapi Mabe, Andre Boraine — Wed, 29 Apr 2026 00:00:00 +0000

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.

Indirect expropriation and the “police powers” problem of international investment arbitration: Considering the merits of a “mitigated” approach

Davy Rammila — Wed, 29 Apr 2026 00:00:00 +0000

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.