The nature and potential application of the common-law fiduciary doctrine, and of the distinctive nature of the duties to which it gives rise, is seldom appreciated or analysed in South African law. This is particularly evident in the law of employment, where the courts’ references to the ‘fiduciary’ nature of employment and the ‘fiduciary duties’ of employees have often been ambiguous, confused and unprincipled. In addition, there is almost no reference to employee fiduciary duties in the general literature on South African labour and employment law and, even where these duties are (briefly) mentioned, they are not acknowledged as being in any way separate or distinct from the employee’s other duties to the employer. This contrasts noticeably with other Commonwealth jurisdictions, where fiduciary duties form the basis of increasing numbers of cases, and are well-established and extensively debated aspects of the general jurisprudence, both generally and in relation to employees. This thesis critically explores and advances certain propositions about the general theoretical nature of the South African common- law fiduciary concept and the principles that govern the incidence, nature, purpose, scope and operation of fiduciary duties, with comparative reference to the positions in English and Canadian law. The first six chapters provide a critical analysis of those general propositions and principles. They also locate them and the debates that surround them within their broader legal and theoretical context. Chapter 7 considers their application to relationships of employment in order to determine the basis and boundaries of the fiduciary duties of employees (as ‘ordinary’ employee and in certain other established ‘fiduciary’ capacities commonly associated with employment) in terms of South African common law. In particular, the chapter considers when those duties will arise, their scope of application, what they require of the employee, and how they differ from other employee duties. Chapter 8 considers the broader issues of whether all relationships of employment are inherently and necessarily ‘fiduciary’ ones and whether they ought generally to be classified as a class of ‘fiduciary relationship’. The final chapter critiques the current position in South African law on these matters. It also suggests a set of fiduciary principles and propositions for the future application and development of fiduciary duties, both generally and in relation to employment, that are theoretically sound, clear, coherent and, where appropriate, consistent with contemporary jurisprudence in other comparable jurisdictions.

Many developing countries have been adversely affected by incidents of economic shocks caused by financial instability which has retarded economic growth. The impact of financial instability explains why the financial sector is regarded as significant tool in the economic development of any country. In an effort to ensure that the stability of the financial system is sustained, many countries have strengthened regulatory and supervisory frameworks to ensure that banks operate within a stable economic environment. In addition, many countries have set up deposit insurance systems in order to complement the prudential supervision and regulation by the Central Banks as well as the lender-of last-resort function of the central bank. Nonetheless, the introduction of deposit insurance has not only contributed positively in the maintenance of the financial system, but has presented challenges as well. This could be discerned from the negative consequences which deposit insurance systems suffer such as moral hazard and adverse selection. The aforementioned problems have been addressed by making proper considerations in the process of choosing the proper deposit insurance model. However, it is pertinent to indicate that there is no model which could be recommended as the best since each model is suitable for the particular circumstances of a given country. However, an explicit deposit insurance system has been proposed as the model for the best practice deposit insurance systems and has since been endorsed by the International Monetary Fund (IMF) for countries which are in the process of setting up such a system. Explicit deposit insurance system is preferred over other forms since it creates certainty that bank depositors are guaranteed reimbursement in the event of bank failure, has clearly defined iii guidelines on the extent to which they are covered against loss occasioned by bank failure as well as saving the government from diverting the national budget to bail out distressed banks for purposes of facilitating reimbursement of depositors and thereby sustaining stability within the financial system and economic system. It is against this background that the position of Lesotho, in so far as the role played by deposit insurance within the banking system was explored

In this thesis, I evaluate whether the exercise of the audit and information-gathering powers granted to the South African Revenue Service under sections 42 and 46 of the Tax Administration Act 28 of 2011 has the capacity to undermine taxpayers' rights to finality, and if so, what can be done to improve this aspect of South African tax administration. To address the first part of this hypothesis, I analyse the content of the right to finality conferred on taxpayers by the "limitation period" prescribed in section 99 of the TAA, in respect of tax assessments. I evaluate the role which the right to finality plays in South African tax administration, with reference to domestic and foreign case law, and international research into selected aspects of tax administration and behavioural economics (concepts such as tax morale and voluntary tax compliance), concluding that finality is a crucial component of an optimally functioning modern tax administration. I also analyse the content of the audit and information-gathering powers granted to SARS under the TAA, and SARS' current administrative policy and practice regarding the exercise of these powers, with reference to the legislation, various SARS manuals and publications, the findings of various commissions of inquiry, examples drawn from legal practice, relevant judgments, and the data compiled and published by the Office of the Tax Ombud. I conclude that the exercise of SARS' audit and information-gathering powers has the capacity to negatively affect the right to finality, and often does so in practice. I also conclude that currently, no satisfactory remedies exist for taxpayers where their right to finality is compromised by the exercise of SARS' audit and information-gathering powers. Having answered the first part of the hypothesis in the affirmative, I investigate potential policy-based solutions to achieve a sustainable and economically viable balance between 7 7 the exercise of SARS' audit and information-gathering powers, and taxpayers' right to finality. I analyse the policy and practice of various comparative international jurisdictions in order to formulate a series of recommendations to improve this area of South African tax administration, in line with current global standards of good practice. My recommendations include the adoption of a more streamlined and nuanced approach to audit and information-gathering by SARS, the urgent adoption and implementation of a comprehensive taxpayers' bill of rights, an operational and cultural shift within SARS towards more collaborative and co-operative practices where possible, and the creation of an independent oversight body to monitor and evaluate the success of policy implementation within and by SARS

Documentary credits, also called letters of credit or banker's commercial credits, are the most common system of payment in international trade and have been described as 'the life blood of international commerce'.

Many businesses rely on borrowed money to acquire assets or finance their trading activities. High gearing of this nature can be highly tax effective, provided the interest on the loan is tax-deductible. However, the deductibility of interest payments has given rise to much litigation. This is indicative of the many complexities which arise in the practical application of the legal principles. The purpose of this paper is to critically discuss these legal principles applicable to the deduction of interest expense, contained in the four components of the general deduction formulae in s11 (a) read together s 23(g) of the Income Tax Act 58 of 1962 (from hereon referred to as 'The Act'). Following this discussion of the relevant legal principles, the practical application thereof by the courts will be considered in four commercial contexts. It will become evident from this discussion, that most cases are decided on the basis of the 'in the production of income' requirement; which it is submitted, is partly attributable to the courts avoidance of the capital/revenue question which is particularly difficult to apply to interest expense. The essential difficulty encountered in the application of the 'in the production of income' requirement is an evidentiary one. The test requires that the true purpose of the borrowing must be ascertained through the use of objective criteria; and accordingly the onus of adducing such evidence becomes a crucial factor in determining the deductibility of the interest expense. In this regard, section 82 of The Act burdens the taxpayer who disagrees with SARS' refusal to allow an interest deduction with the onus of proving that he is entitled to such a deduction by virtue of the provisions of s11 (a). It follows thus that where uncertainty prevails such that the probabilities are equal, then the burden will not have been discharged. Given the often awkward application of the of the established legal tests to interest expenditure, together with the 'murky evidentiary waters' in which many taxpayers wade when seeking to secure an interest deduction; the incidence of the onus will in many cases be the determinative factor.

It is proposed in this thesis to analyse the law relating to inherent vice in South Africa and in so doing to develop a range of tests for application in instances where the defence of inherent vice is pleaded as an exclusion.

As the title to this thesis indicates, selected issues arising in corporate finance/treasury will be discussed. Corporate finance or treasury management is a new and developing field of law. It is a field which requires one to take into consideration economic, commercial and legal phenomena; and as a consequence, requires imagination and innovation on the part of a corporate treasurer. At the end of the day, this provides the recipe for the development of a very exciting and interesting branch of law.

Real rates of income tax in South Africa are extremely high, to such an extent that taxpayers are continuously spending a lot of effort, time and money on taxplanning in an attempt to minimise their tax liabilities.

It is widely accepted that an employee should be paid severance pay in the event of him losing his job through no fault of his own. In 1963 the International Labour Organisation ("ILO") reflected upon the predicament of such employees and passed a recommendation that "Some form of income protection should be provided for workers whose employment has been terminated; such protection may include unemployment insurance or other forms of social security, or severance allowance or other types of separation benefits paid for by the employer, or a combination of benefits, depending upon national laws or regulations, collective agreements and the personnel policy of employer."

It is a vexed question internationally whether, in personal injury actions, damages are awarded for lost earnings or lost earning capacity. As will be more fully discussed in due course, both the case law and the general practice of the courts are inconsistent, with wholesale acceptance of either "concept", and both judges and academic writers are guilty of indiscriminate use of both terms whilst espousing support for one or other concept. It will be submitted that the South African authorities favour the concept of loss of earning capacity, in line with the international trend. Whether or not this distinction should or does have practical implications will be considered and debated. Given, however, the inconsistency mentioned above, the writer will be unable to make reference to only one or other of the generally accepted terms and the reader is accordingly requested to bear this in mind.