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An analysis of the South African Revenue Services' recognition of unmarried partners as spouses.Galt, Harold H. January 2002 (has links)
The focus of this study is on the criteria and processes used by the South African
Revenue Services (SARS) in recognising spouses in permanent, unmarried
unions. In theoretically positioning this focus, four possible areas of tax benefits
were reviewed . These include: (i) donations tax, (ii) capital gains tax, (iii) estate
duty tax and (iv) transfer duty. Also , the focus of this study was positioned
relative to South African taxation acts. Specifically, three Acts were selected for
review, viz.: (i) the Income Tax Act, No. 58 of 1962, the Estate Duty Act, No. 45
of 1955, and the Transfer Duty Act, No. 40 of 1949. These Acts may be
understood relative to the South African Constitution's framing of notions like
equality - given that these Acts signal the legislation's intention to honour the
constitutional rights of its tax-paying citizenry. Furthermore, a theoretical
framework that highlights official and espoused perspectives of practice is
reviewed as it provides a theoretical frame for this study. Given this legislative
and theoretical background the following aims were focussed: (1) To identify the
official and espoused criteria used by the South African Revenue Services to
recognise unmarried partners as spouses, and (2) To identify the official and
espoused processes used b~ the South African Revenue Services to recognise
unmarried partners as spouses. The chosen methodology is an explorative descriptive
methodology, as situated within a qualitative framework. Data
sources are described as constituting the three tax Acts, a senior SARS official,
and SARS helpdesk personnel. Data selection criteria are described , and
convenience and purposive sampling are the stated data selection techniques.
Document analysis and interview schedules were used to collect data. Data was
managed and analysed via the use of several data analysis techniques. Results
are presented and discussed. Significantly, SARS has non-specific criteria that
are nebulous, and open to interpretation. Furthermore, processes are poorly
stated and provide insufficient guidance to the taxpayer. Given these outcomes,
this study also offers two South African legal cases that cogently illustrate criteria
and processes for recognising a spouse. Each of these cases are analysed
regarding the criteria and processes used to determine the definition of 'spouse'.
These cases, while dealing with issues of same-sex adoption and same-sex
partner's rights to remuneration benefits serve to highlight factors that may be of
use to SARS. Furthermore, international case exemplars are also discussed.
Specifically, Canada's taxation laws were focussed. Canada's criteria and
processes used to define common-law partners (read as spouse for purposes of
this study) serves as an informative case exemplar, relative to other countries
also investigated in this study, viz .: the United States of America , Belgium and
other European countries. Finally, several recommendations are stated , and an
evaluation of the study is provided. / Thesis (M.A.)-- University of Durban-Westville, 2002
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The "official" version of customary law vis-a-vis the "living" Hananwa family lawRammutla, Chuene William Thabisha January 2013 (has links)
The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal.
Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him.
However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes.
The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law. / Public, Constitutional, & International Law / LLD (International and Constitutional Law)
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The "official" version of customary law vis-a-vis the "living" Hananwa family lawRammutla, Chuene William Thabisha January 2013 (has links)
The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal.
Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him.
However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes.
The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law. / Public, Constitutional, and International Law / LLD (International and Constitutional Law)
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