This dissertation considers the conceptual interaction between section 23M and section 31 of the Income Tax Act, 1962. Both sections limit tax deductible interest expenditure paid to non-resident related persons based on specific requirements. The dissertation establishes the ambit of each section by relying on an interpretive guide, which takes into account three aspects of interpretation. These three aspects are: the ordinary grammatical meaning of the words comprising each section; the contextual understanding of each section; and the purpose of each section. The dissertation determines that there is an overlap in the ambit of section 23M and section 31 in respect of the taxpayer to which each section applies, interest as determined for purposes of the common law and the purpose of each section, being to prevent tax base erosion through excessive interest rate deductions. Despite the presence of an overlap, a taxpayer falling within the ambit of both sections is always limited to a deduction equal to the smaller answer yielded by section 23M or section 31. However, in respect of the carry-forward in section 23M(4) there is uncertainty as to the calculation of the carry-forward. The dissertation recommends an amendment to section 23M(4) to clarify the calculation of the carry-forward amount. In the absence of a carry-forward, the dissertation determines that a possible interpretational solution may be to calculate the carry-forward with reference to actual interest expenditure and to subject any deduction in respect of an amount carried forward to section 31 in the year of assessment during which a deduction is claimed. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

In the topic of tax avoidance, there are two types of tax avoidance namely permissible and impermissible tax avoidance. Permissible tax avoidance is recognised throughout the world and more so it is recognised as a right. That is, a taxpayer has the right to choose to pay the least tax where the Income Tax Act permits. There other type of tax avoidance impermissible tax avoidance is completely prohibited. In fact, the South African General Anti-Avoidance (GAAR) primarily aims to combat impermissible tax avoidance although it has not been judicially considered. The application of the GAAR face a clash of interests of two parties namely the taxpayer s right to legally pay the least amount of tax and the government s need to protect the revenue base from impermissible tax avoidance. The question thereof is does the GAAR strike a balance between these two competing interests by drawing a line between permissible and impermissible tax avoidance. The GAAR attempts to limit the right of taxpayers to avoid tax but the complexity of the tainted elements hinders it to effectively inform taxpayers on what is permissible and what is not permissible. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

Mini Dissertation (LLM)--University of Pretoria, 2015. / Procedural Law / LLM / Unrestricted

The salient issues concerning the powers of the United Nations Security Council culminate in questions of legitimacy. In terms of the United Nations Charter, the Council has a wide margin of discretion, and while its powers of appreciation are generally accepted as non-justiciable, its members are not independent. The Council has often been criticised for its selective performance, its composition and privileges of tenure, and the lack of transparency in its procedures. The objective of this study is to establish an analytical framework of legitimacy for the Council. As a point of departure, the study examines the limitations to the powers of the Council under the auspices of international law. These are expressed in two categories: the UN Charter, and jus cogens. Thereafter, the study develops a model of the content of legitimacy for the Council, based on a notion of legitimacy which encompasses legal, moral and sociological aspects. Three traditions are at the heart of this model. These are the instrumentalist, procedural and constitutional traditions respectively. The established framework proposes a minimal threshold for the Council to legitimately exercise its discretion, as an extension of the Charter based legal threshold, from which the Council derives its authority. The study is inspired by efforts in literature, to develop the new value-based approach to international law, whilst maintaining the coherence of the international legal order. The established framework provides a feasible means to assess the legitimacy of the Security Council, and in tandem provides space for further research. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Jurisprudence / LLM / Unrestricted

In South Africa the government relies greatly on the tender process as regulated by various legislation and legal principles in order to obtain contracts for the procurement of goods and services needed to maintain, upgrade and advance the public assets. Since the Constitution1 came effect in 1997, various rules and principles regarding the public procurement process in South Africa was changed and expanded to recover and improve the new democratic South Africa. Chapter 1 consists of the introduction, objectives and the scope of this study. In chapter 2, I will discuss the public sector tender process, what it consists of and the applicable legislation and legal opinions in regards to the public procurement process. Chapter 3 will be a discussion about the drafting of the various tender documentation with a detailed focus on the drafting of an invitation to tender, the submitted tender, the awarding letter of a tender and the final contract. In chapter 4, I will discuss how the interpretation of contracts influences the public procurement process. I will discuss the applicable presumptions in detail and at the hand of recent case law. Chapter 5 of this study will consist of a conclusion and I will attempt to answer the research statement and questions above. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

This study aims to establish the validity of the automatic termination of an employment contract. The automatic termination of an employment contract means that the contract is terminated ex lege and not by an act of the employer. Such termination will therefore not qualify as a dismissal for purposes of section 186 of the LRA. The result is that these employees will not be able to challenge the fairness of such termination based on the unfair dismissal provisions in the LRA. It may be argued that such automatic terminations offer employers the opportunity to effectively circumvent their obligations under the LRA with regards to the fairness of dismissals. Automatic termination provisions are often used by employers as a mechanism to this. The Constitution of the RSA provides that everyone has the right to fair labour practices .1 This constitutionally guaranteed right is given effect to in the LRA2 which provides employees with the right not to be unfairly dismissed.3 By depriving employees of their protection against unfair dismissal, it may be argued that their fundamental rights to fair labour practices are infringed. This study aims to investigate the topic of automatic termination of employment contracts by analysing the provisions of, inter alia, the LRA and the Constitution of the RSA in order to determine the extent of protection afforded to employees against exploitation in circumstances such as these and will consider various findings of courts that may shed light on the matter. The effect of the recent amendments to the LRA in this regard will also be considered. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Jurisprudence / LLM / Unrestricted

When an allegation is made against a firm that it has engaged in conduct that is detrimental to consumers and competition as a whole within the particular market, it will first need to be established whether or not that firm can be said to be dominant in the market. Only a firm that is dominant within the market can act to an appreciable extent independently of its competitors and consumers. However, how is dominance established, especially within the American, European and South African markets? In order to answer this question, this dissertation will first seek to define the terms of dominance and market power in the context of the above markets. This enquiry will also focus on how the concepts of dominance and market power are related to each other. After these concepts have been defined and expanded, the process of establishing dominance in the United States, European Union and South Africa will be explored. The means of establishing market laid down in each market will then be critically compared with one another and the specific advantages and disadvantages of each will be expanded upon. South Africa is unique due to the fact that the establishment of dominance has been codified in the Competition Act and is dependent on the possession of certain prescribed market shares. The aim of this paper will be to determine whether the establishment of dominance can simply be linked to the possession and maintenance of large market shares or, does an accurate inquiry into dominance require taking into account a variety of factors, such as the barriers to entry or expansion the countervailing power of consumers. Once the deficiencies of the approach laid down by the Act have been established, and the specific goals which the Act seeks to achieve have been highlighted, a new alternative approach for the establishment of dominance will be proposed. This will be a less structured approach taking into account a variety of factors relevant to the case at hand. In this way the process of establishing dominance will be done on a case by case basis which will hopefully lead to more accurate determinations of dominance. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

The purpose of this study is to explore the current status in relation to the concept of curatorship as a measure to rescue failing banks. The world as we came to know it has changed the way banking is done. This dissertation therefore investigates the concept of curatorship of banks in South Africa in terms of the Banks Act and to determine what influences, if any, does the proposed Twin Peaks model of Regulation will have on it. A closer examination of section 69 and 69A of the South African Banks Act is conducted in order to understand the impact of bank curatorship within the South African context. Not only is an examination conducted on the Banks Act, but also on the proposed Financial Sector Regulation Bill. Comparatively this dissertation explores and examines curatorship under Botswana banking law, this is done on the premise that Botswana like any other global financial players has it fair share of financial markets challenges. It examines the measures that Botswana may have put in place in order to assist failing banks through the instrumentality of curatorship, or temporary management as it is known in Botswana. There are several pertinent features that are identified to be contributing factors for banks to be placed under curatorship. These factors include amongst others lack of robust supervision by regulators, lack of risk and management disclosure by banks, poor management of banks, excessive lending and failure of a bank s management to conduct the business of banks in a prudent, safe and sustainable manner. Internationally this dissertation explores international best practices and measures that are in place to deal with the concept of curatorship as a measure of rescuing failing banks. This is done on the understanding that international financial sector is globally integrated but regulated nationally. It is this concept of interconnectedness of banks that perhaps gave birth to the Basel Core Principles on responsible banking and its dedicated Basel Committee of Banking Supervisors to ensure the prudential and liquidity compliance of banks globally. This dissertation explores and examines some of the elements that are likely to lead to banks being placed under curatorship and identify them as lack of global regulation and cooperation amongst others. This lack of global regulation and cooperation are also seen as drivers that poses a risk to global financial markets. Finally this study acknowledged that bank curatorship does not necessarily translate to prevention of banks failures but rather as a tool used to ensure that when failure occurs, it is addressed in an orderly manner so as to cause the least risk to the financial system. This dissertation concludes by making recommendations which incorporates measures that may be put in place for management and effective supervision of banks. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

The regulatory structure created by the Law of Armed Conflict ( LOAC ) incorporates terms and concepts that, on initial scrutiny, appear uncomplicated but their meaning and practical application has proven to be highly contested and ambiguous. The notion of Civilian Direct Participation in Hostilities ( C-DPH ), found, arguably, in Common Article 3 of the Geneva Conventions of 1949 ( GC s ) and explicitly in Additional Protocol I of 1977 ( API ), Article 51(3) and Additional Protocol II ( APII ), Article 13(3), is one such concept. C-DPH is a cornerstone concept in LOAC on the conduct of hostilities and has attained the status of customary international law. This is based on the assumption that, on a conceptual level, civilians should be protected from intentional attack unless, and for such time , as they directly participate in hostilities . However, despite the serious practical and legal consequences resulting from C-DPH, neither the GC s nor the AP s define the concept, nor do they outline the actions that amount to C-DPH. C-DPH in asymmetrical hostilities, as a result, currently elicits more disagreement than assent and its novelty creates confusion due to analytical limitations. A universal, comprehensive and practical definition of C-DPH will be useful as LOAC rights can only be comprehensively understood when the meaning and content thereof is defined and clear. The ICRC has produced an Interpretative Guidance on C-DPH but could not publish the document by consent with LOAC experts. There is thus scope for the development of LOAC relevant to C-DPH based on a holistic interpretation thereof, which should include reference to the relevant LOAC instruments, customary LOAC, State practice, judicial reasoning, expert analysis and reference to human rights on the interpretation of C-DPH. / Thesis (LLD)--University of Pretoria, 2015. / Public Law / LLD / Unrestricted