Inaug.-diss.--Bern. / "Literatur": p. [ix]-xii.

Thesis--Uppsala universitet, 1773. / At head of title: I.J.N. Reproduction of original from Kress Library of Business and Economics, Harvard University. Goldsmiths'-Kress no. 10872.0.

This document has been prepared in two parts. The first part deals with some basic aspects of valuations and the major aspects of taxation which should be borne in mind by a valuer. The second part, which commences on page 102, is a compendium of brief comment on tax matters and tax cases which may be of interest to a valuer. The document is based on research carried out in relation to: The Income Tax Act No. 58 of 1962, as amended, inclusive of the 1989 Amending Act; The Sales Tax Act No. 103 of 1978, as amended; and The Estate Duty Act No. 45 of 1955, as amended. Due to subsequent amendments to the legislation certain aspects of taxation dealt with in this document may no longer apply, but there has been comment and expectations in many instances that some of the changes are likely to be reintroduced. I have accordingly included my findings from the research carried out as this could be helpful in the event of a reintroduction of the affected legislation. Since preparing this document, The Sales Tax Act is no longer of force or effect and has been replaced with The Value Added Tax Act of 1991. There are many aspects of this new legislation which also require the consideration and attention of a valuer. I have not dealt with these aspects in detail in this document.

The Consumer Protection Act 68 ('the CPA') came into effect on 31 March 2011. In broad terms, the purpose of the CPA is to promote the social and economic welfare of consumers. Specific reference is made to reducing disadvantages suffered by vulnerable consumers. The question posed in this thesis is whether the scope of the application of the CPA in relation to transactions for goods is consistent with the purpose of the Act, but also how it compares to the approaches taken in the European Union, United Kingdom and Australia. It is argued that the application provisions are not always fair, rational, clear, efficient and consistent with reasonable expectations. The following issues relating to the application of the Act are addressed: the approach to the protection of small juristic persons, the omission of a exclusion based on the purposes for which the transaction is concluded, the onus of proof, the exclusion of transactions outside the ordinary course of business, the definition of 'supplier', whether transactions should be 'for consideration' in order for the consumer to qualify for protection, whether the whole supply chain should be liable and whether all goods should fall within the scope of the Act. Recommendations on these issues are made in light of rationales for consumer protection legislation, proposed criteria for evaluating such legislation (namely whether the legislation is fair, rational, clear, efficient and consistent with reasonable expectations) and comparative research. Suggested amendments to the wording of relevant sections in the Act are made in the final chapter.

Includes bibliographical references / Corporate law developments concerning the empowerment of non-shareholder constituencies in Anglo-American jurisdictions of the United States of America and the United Kingdom since the 1980s have been of very limited utility. Available literature and legal authorities in both those jurisdictions clearly illustrate the obsession of policy makers and the judiciary with normative statements of directorial responsibilities to non-shareholder constituencies without introducing the necessary and complimentary right of action for those constituencies. The reluctance to introduce such right of action appears to be motivated by the exaggerated fear of the potential for 'floodgates' of litigation. This reluctance to extend corporate law remedies to non-shareholder constituencies, particularly in public companies, clearly overlooks the importance of the supervision of the use of corporate power to minimize or eradicate directorial self-serving misconduct, rather than the exclusive protection of shareholders, as the primary purpose of corporate law remedies. The introduction of an extended corporate legal enforcement framework under the South African Companies Act of 2008 may be indicative of the feasibility of the right of action for non-shareholder constituencies. Since the applicable enforcement regime in corporate law is a function of the applicable normative theory, a broadly inclusive corporate legal enforcement framework cannot be based on the conventional shareholder-oriented theories of 'Shareholder Primacy Norm and 'the Enlightened Shareholder Value Approach.' It is, therefore, argued that the South African Companies Act, 2008, introduces the Actionable Enlightened Shareholder Value Approach which invariably necessitates, among other things, the extended meaning of 'the best interests of the company' as provided for under s 76(3)(b) of the Act. The Actionable Enlightened Shareholder Value Approach recognises that the primary purpose of corporate law remedies is not the exclusive protection of shareholders, but the supervision of the use of corporate power to minimize or prohibit directorial self-serving misconduct, which purpose benefits a broad range of corporate constituencies. That is why the legal enforcement framework under the South African Companies Act facilitates the empowerment of corporate constituencies beyond just shareholders; ensures the availability of broad range of remedies; gives the opportunity for corporate constituencies to apply for remedies in the public interest, with leave of the court; recognises that the protection of the company's legal interests can be undertaken by a broad range of corporate constituencies and, also generally, with leave of the court; and facilitates the ability to hold any person liable for loss or damage suffered as a result of the contravention of any provision of the Act by that person.

This paper focuses on the common practice in commercial agreements of including exclusivity clauses in shopping centre lease agreements between a supermarket anchor tenant and the landlord of a shopping centre. It is the contention of this paper that such clause s are anticompetitive when considered specifically in light of section 5(1) of the South African Competition Act. In reaching this conclusion, relevant sect ions of the Act will be interpreted and analysed in the pertinent context, as will relevant case law and comparable foreign jurisprudence. The findings of South Africa's Competition Commission in 2013 with regard to the competitive nature of exclusivity clauses in the context of section 5(1), and the basis for their findings will be scrutinised. A conclusion , warranted and supported by the inferences drawn from an analysis of the aforementioned sources (legislation, case law and foreign jurisprudence), will be reached accordingly in support of a stance of resistance against exclusivity clauses in shopping centre leases between landlord and supermarkets . An argument in favour of a blanket prohibition of exclusivity clauses in shopping centre leases due to their anticompetitive nature that outweighs their efficiencies and justifications according to section 5(1) of the Act, is the predominant direction of this paper.

Includes bibliographical references / A principal goal of competition law is to promote fair distribution of wealth. Fair distribution of wealth is entrusted to competitive markets since they reward efficiency, innovation, spread wealth and decentralise economic power. While competition reflects the business conduct of enterprises, it cannot disassociate from the legal and regulatory framework, barriers to entry and prevailing conditions in markets for labour, infrastructure services and other production inputs. Redistribution of wealth acknowledges competition law as a tool that can be utilised to protect those at the lower end of income distribution by reducing prices allowing a larger basket of goods and services to be purchased. Competition law is a tool that preserves market competition to provide an environment that encourages responsive business, efficiency and serves the interests of consumers. In developing countries, competition law and policy receive particular emphasis as being crucial and key in the economic and structural reform and addressing concerns of distribution and power. Competition law in Kenya cannot ignore the wider industrial policy or socio-economic considerations in Kenya. These social and political goals of competition law are important in developing countries with poverty, great income inequality. There is need to choose a means of addressing the equitable allocation of resources that will produce the least amount of inefficiency and competition law is the right tool to achieve this. Kenya is a factor-driven economy where the level of productivity is determined by labour, institutions, infrastructure and the macro-economic environment. Enacting the Competition Act in Kenya was a response to economic and political reform to improve the welfare, well-being and economy in Kenya. Merger analysis in Kenya would require weighing gains and losses in efficiency in order to establish whether the merger will benefit other recipients other than market participants such as consumers and producers. South Africa has well established interpretation and implementation addressing the trade-off between public interest provisions and efficiency. Interpretation of the merger laws in South Africa illustrate engaging an exercise of proportionality required to determine how to balance the competing arguments between efficiency, welfare standards and public interest.

In almost all countries worldwide the telecommunication sector was characterized by state owned monopolies, and supplying telecommunication services was understood as a public duty. In the eighties of the last century, most countries began to liberalize their telecommunication market and try to open it up for competition. The establishment of competition in a former monopolized sector can be only successful by taking specific network related features into account. This thesis deals with the establishment of competition in the telecommunication market taking into account the so-called "essential facilities doctrine". This doctrine was developed from the U.S.American anti-trust law and is a helpful instrument to ensure access, under specific circumstances, by new competitors to facilities which are controlled by a market dominating operator.

Includes bibliographical references / South Africa has seen many developments in both the areas of corporate law and tax legislation. The legislation in question has developed from an apartheid or pre-democratic era to that of the current democratic South Africa, in which individuals have the freedom to become entrepreneurs, and have the opportunity to start up small to medium and larger enterprises, in order to firstly make a profit but also to ensure that they enjoy the benefits which the separate legal personality of Corporate Structures are entitled to. The focus of the research was to carefully study Corporate Structures created by directors and other entities and to show how these personalities make use of various arrangements to reduce tax liability, both by lawful and unlawful methods. In addition to this, the research involved a close analysis a of how a Corporate Structure is formed, from the date of incorporation of the entity, to the rights, and duties of the entity, the rights and duties of the role-players such as directors and shareholders, who control the entity and make the necessary decisions relating to the entity. The thesis focuses on the tests used by the courts to examine the true commercial substance of Corporate Structures and the arrangements put in place by these entities or individuals mentioned above. The above approach was applied by analysing the principle of Piercing the Corporate Veil both at common law and statutory level, the principles of Substance over Form, General Anti-Avoidance provisions and the Tax Administration Act 28 of 2011 provisions, in light of the Anti-Avoidance provisions. It is trite law that taxpayers are allowed to arrange their affairs or commercial activities in a manner in which they may gain a tax advantage provided they do so, within the ambit of the law. The effect of the taxpayer having such freedoms is that many of the contracting parties or taxpayers abuse the legislative provisions and enter into transactions and commercial activities which circumvent the legal provisions. The framework of the analysis was to look at the Companies Act 71 of 2008, Income Tax 58 of 1962 and the Tax Administration Act 28 of 2011 Acts respectively. The result of the research has shown that the tests put forward by the courts assist in ensuring that the principle of separate legal personality is upheld, taxpayers such as entities are free to arrange their affairs in a manner that allows a certain tax advantage provided it is within the ambit of the law. The study has shown that the doctrine of separate legal personality is upheld within our current legal system. There are many tax and legal benefits to natural persons establishing an entity; however these benefits should not lead to abuse by entities. Lastly, the courts will carefully scrutinise the commercial substance of a transaction and test whether the parties to the transaction have acted in accordance with the true principles of the transactions, the conclusion herein is therefore that the law should not interpret the modern commercial world with a closed minded approach and legislate strictly, without considering all the circumstances of a matter in light of the necessary law and policy considerations and in so doing, rather adopt a modern commercial minded approach. As a growing South African economy, entities should be permitted to arrange their commercial transactions and affairs in the best possible way to obtain a legal tax benefit and make profits which will ultimately ensure that we have a sustainable economy and strong Corporate Structures in place, in order to be placed in a stronger position in terms of an African perspective and compete more competitively at an International level.

Arbitration as a process of dispute resolution has been pivotal in addressing a lot of business needs to have the dispute resolved within a short period and with less inconveniences to their business. The principle of confidentiality gives impetus to the process. The skill of the arbitrators and the general party autonomy has made the process and awards to be fully complied. Despite the monumental progress made in the field of arbitration as a means of dispute settlement, the process has been beset by reversal which is inherent in the Arbitration Act itself thereby whittling down the advantages ascribed to the process. To this end, the study therefore highlights the historical development of arbitration in Zambia. The process of arbitration and its role in enhancing access to justice will also be examined. The advantages and how the same have been weakened by the Arbitration Act, other legislations and indeed the interpretive impositions by the court will be investigated. Among other provisions which fly in the teeth of the entire process is its usually unqualified attachment to the court system without cognisance of the aspiration of the entire process of arbitration. To redress these weaknesses in the Act and the rules which guide the arbitration process, this study will spur reforms so as to bring the law into conformity with the expectations of the end users.