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The winds of change : an analysis and appraisal of selected constitutional issues affecting the rights of taxpayersGoldswain, George Kenneth 09 May 2013 (has links)
Prior to 1994, South African taxpayers had little protection from fiscal legislation or the
decisions, actions or conduct of the South African Revenue Service (“SARS”) that violated
their common law rights. Parliament reigned supreme and in tax matters, the strict and literal
approach to the interpretation of statutes was employed, with the judiciary often quoting the
mantra that there is “no equity about tax”. The Income Tax Act (Act No 58 of 1962) was
littered with discriminatory and unfair provisions based on age, religion, sex and marital
status. Even unreasonable decisions taken by SARS could not be reviewed by the judiciary as
“unreasonableness” was not a ground for review of the exercise of a discretion by SARS. On
27 April 1994, the constitutional order changed. Parliamentary supremacy was replaced with
constitutional supremacy and the rights to privacy, equality, human dignity, property and just
administrative action were codified in a Bill of Rights. The codification of these fundamental
rights has materially changed the nature and extent of the rights of South African taxpayers.
The objective of this thesis, therefore, is to identify, analyse and discuss South African
taxpayers’ rights from a constitutional perspective.
The following major conclusions can be drawn from the research done:
- the judiciary have been forced to reappraise their approach to the interpretation of statutes
from a “strict and literal” to a “purposive” approach that is in accordance with the values
underpinning the new constitutional order;
- new legislation has amended some of the so-called “reverse” onus of proof provisions that
were constitutionally unsound – this should result in greater fairness and consistency for
affected taxpayers especially in the area of when penalties may be imposed;
- the concept of clean hands and good facts can influence the judiciary when arguing that a
taxpayer’s right to just administrative action has been violated; and
- discriminatory and unfair legislation and conduct on the part of SARS may and should be
attacked on a substantive law basis, especially where human dignity is at stake.
The overall conclusion is that taxpayers’ rights are more far-reaching than prior to 1994 but
still have some way to go before they are fully interpreted and developed. / Accounting Science / D.Compt.
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Developing an appropriate adjudicative and institutional framework for effective social security provisioning in South AfricaNyenti, Mathias Ashu Tako 28 June 2013 (has links)
Developing an adjudicative institutional framework for effective social security provisioning in South Africa entails the establishment of a system that gives effect to the rights (of access) to social security and to justice. These rights are protected in the Constitution and in various international law instruments. In the Constitution, the Bill of Rights guarantees everyone the right to have access to social security, including appropriate social assistance for persons who are unable to support themselves and their dependants. It further requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to social security. Since a dispute resolution (adjudication) framework is an integral part of any comprehensive social security system, it is included in the constitutional obligation of the State. The establishment of a social security adjudication system is an intersection of the right of access to social security and the right of access to justice. The Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
In addition, other rights protected in the Constitution have a bearing on the realisation of the rights of access to social security and to justice. There is a close correlation between all the rights in the Bill of Rights, as they are interrelated, interdependent and mutually supporting. They must all be read together in the setting of the Constitution as a whole and their interconnectedness must be taken into account in interpreting rights; and in determining whether the State has met its obligations in terms of any one of them. These rights, which include the right to equality (section 9), the right to human dignity (section 10) and the right to just administrative action (section 33) must thus be considered in establishing a social security adjudication system. Also to be considered are other constitutional prerequisites for the establishment of a social security adjudication system, such as the limitation and enforcement of rights (sections 36 and 38 respectively); principles relating to courts and the administration of justice (Chapter 8) and basic values and principles governing public administration (Chapter 10).
In establishing a social security adjudication system in South Africa, international law standards and developments in comparative systems must also be taken into account. The Constitution adopts an international law- and comparative law-friendly approach. It states that when interpreting fundamental rights, international law must be considered while foreign law may be considered (section 39).
This thesis aims to develop an adjudicative and institutional framework for effective social security provisioning in South Africa that realises the rights of access to social security and to justice in the South African social security system. This is achieved by exploring the concept of access to justice, and its application in the social security adjudication system. The current social security adjudication system is evaluated against the concept of access to justice applicable in international and regional law instruments, comparable South African (non-social security) systems and comparative international jurisdictions. Principles and standards on the establishment of a social security adjudication system are distilled; and a reformed system for South Africa is proposed. / Mercantile Law / LL.D.
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Die rol van diskresie by die toelaatbaarheid van getuienis wat in stryd met die grondwet verkry isNel, F. (Francisca) 11 1900 (has links)
Text in Afrikaans / Artikel 35(5) van die Grondwet 108 van 1996 handel oor die uitsluiting van
ongrondwetlike getuienis en bepaal dat sodanige getuienis uitgesluit moet word
indien toelating daarvan sal lei tot 'n onbillike verhoor of tot nadeel sal strek vir
die regspleging. Uit die bewoording van die artikel blyk dit dat die howe geen
diskresie het ten opsigte van die toelaatbaarheidsvraag nie en 'n streng
uitsluitingbenadering moet volg. Die doel van hierdie verha• ndeling is om
ondersoek in te stel na die mate van diskresie .en die wyse ·waarop diskresie
toepas word in hierdie besluitnemingsproses. Twee benaderings is deur die
howe gevolg, naamlik 'n benadering waar 'n wye diskresie uitgeoefen word en 'n
benadering waar 'n beperkte diskresie uitgeoefen word, dus 'n gekwalifiseerde uitsluitingsbenadering. Die skrywer doen aan die hand dat beide gronde vir
uitsluiting van belang is en dat die howe verkeie faktore moet oorweeg ten einde
'n beslissing te vel oor die insluiting of uitsluiting van ongrondwetlike getuienis. 'n
Balans moet dus gehandhaaf word tussen die belang van die beskuldigde op 'n
billike verhoor en die belang van die gemeenskap daarin dat regspleging nie
benadeel moet word nie en dat reg en geregtigheid moet geskied / Section 35(3) of the Constitution Act 108 of 1996 deals with the exclusion of
unconstitutionally obtained evidence and stipulates that such evidence must be
excluded if the admission would render the trial unfair or be detrimental to the
administration of justice. From the wording of the section it seems that the
courts have no jurisdiction in regard to the admissibility question and that a strict
exclusionary approach must be followed. The purpose of this dissertation is to
investigate the amount of discretion that the Courts have, and the manner in
which this discretion is applied in the process of decision making. Two
approaches were followed by the courts namely a wide discretionary approach
and an approach where a strict discretion was applied. It is submitted that botR
grounds for exclusion are of importance and that the courts must consider a
variety of factors in deciding the question on the inclusion or exclusion of
unconstitutionally obtained evidence. A balance must be struck between the
interest of the accused in a fair trial and the interest of the community that the
administration of justice must not be prejudiced and that justice must prevail. / Criminal and Procedural Law / LL.M. (Law)
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The effect of the 1996 Constitution on section 5 of the Regulation of Gatherings Act 205 of 1993Van der Walt, Johannes Albertus 11 1900 (has links)
The Regulation of Gatherings Act 205 of 1993 is a old order piece of legislation,
but gives full recognition to the right to freedom of assembly and expression.
These rights are entrenched in sections 16 and 17 of the Bill of Rights and enjoy
a generous interpretation. Section 5 of the Act creates limitations on these rights,
as the responsible officer of a local authority is allowed to prohibit a gathering
when he has reasonable grounds to believe that the police will not be able to
prevent traffic disruption, injury or substantial damage to property. Given the fact
that this limitation serves to protect a compelling state interest, it constitutes a
reasonable and justifiable limitation in terms of section section 36 of the Bill of
Rights. / Law / LL.M.
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Affirmative action, equality and Section 8 of the constitutionVan Wyk, M. W. 11 1900 (has links)
The constitutionality of affirmative action in terms of section 8 of Act 200 of 1993 is investigated.
The study contends that in constitutional interpretation it is permissible to have recourse to
ethical precepts as long as these are anchored within the four corners of the Constitution. It is
contended that the •equality clause• does not prescribe equality of outcome in favour of
substantive equality of opportunity. It is asserted that group-based affirmative action may
justifiably be attacked as being unconstitutional; either on the basis that it infringes the nonbeneficiary's
equality rights in terms of sections 8(1) and 8(2) or that it falls beyond the
constitutional protection afforded to affirmative action in terms of section 8(3). Furthermore,
group-based modalities of affirmative action may also not constitute a permissible limitation on
the fundamental right to equality, if compared to an individual-based socio-economic affirmative
action model. / Jurisprudence / LL. M.
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Cross-cultural adoption in constitutional perspectiveChurch, Jacqueline 11 1900 (has links)
Although a child's right to parental care and family life is constitutionally entrenched,
many South African children are deprived of this right. Transcultural adoption could
serve their need but historically this has been prohibited or discouraged by racist
policies. Whether this is in keeping with the now non-racial South African society is
questionable. In adoption the best interests of the child is paramount and in
determining this, courts should balance children's constitutional rights to their culture
of origin against their constitutional rights to non-discrimination.
After considering arguments for and against transcultural adoption and the position in
the United States and the United Kingdom, the writer suggests that further
interdisciplinary research into the question is necessary in South Africa; inter-country
adoption should be considered and law reform and governmental policy should facilitate these. / Private Law / LL. M. (Law)
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The admissibility and evaluation of scientific evidence in courtFaurie, Annari 11 1900 (has links)
Increasing use is being made of various types of scientific evidence in court. The
general requirement for the admissibility of such evidence is relevance. Although
expert evidence is considered to be opinion evidence, it is admissible if it can assist the
court to decide a fact in issue; provided that it is also reliable. In South Africa, the
initial wide judicial discretion to either admit or exclude unconstitutionally obtained
evidence, has developed into a more narrowly defined discretion under the final
Constitution. Examples of scientific evidence, namely, DNA evidence, fingerprints,
psychiatric evidence, bite-mark evidence and polygraph evidence are considered and
problems inherent in the presentation of such evidence in courts in various jurisdictions
are highlighted. An investigation of the presentation and evaluation of evidence in
both the accusatorial and inquisitorial systems seems to indicate that the adversarial
procedure has a marked influence on the evaluation of evidence / Criminal and Procedural Law / LL.M. (Law)
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Stumbling on the essential content of a right : an insurmountable hurdle for the state?Bernstein, David Martin 01 1900 (has links)
Section 33(1)(b) is fraught with borrowed provisions. The end-product marries
German and Canadian features. The failure of the German Constitutional
Courts to interpret the "essential content of a right" precipitated the adopted
infant's bumpy landing in South Africa. That the sibling still lacks identity is
evidenced by our Constitutional Court's evasive and superficial treatment of the
clause. Section 33(1)(a) - proportionality prong enables judges to justify their
neglect of Section 33(1)(b). The opinion is expressed that Section 33(1){b)
demands interpretation but to date it has been shrouded in vagueness. After
all without demarcating boundaries with sufficient precision and highlighting
where the State may not tread the State may trespass. Alternatively the
limitable nature of human rights could become a myth as Section 33(1)(b) could
be transformed into an insurmountable hurdle for the State, rendering every
right absolute in practice. A workable conceptual framework proposes an
inverted, porous and value imbibing solution. / Law / LL.M.
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The impact and influence of the constitutional court in the formative years of democracy in South AfricaMaduna, Penuell Mpapa 06 1900 (has links)
The objective of this thesis is to assess the impact and influence of South Africa's
Constitutional Court in the first two years of our democracy. To achieve this objective,
some of the definitive and controversial cases already decided by the Court have been
selected and analysed in an attempt to glean some jurisprudential perspectives of the
Court.
It focuses on the work of the Court over the past two years. It deals with the evolution
of South Africa into a democracy, and analyzes the South African legal system prior to
the beginning of the process of transformation. It briefly surveys the evolution of our
constitutional system, dating back from the pre-1910 colonial period and provides a
broad outline of the legal system in the post-April 1994 period of transformation.
It analyzes the Court from the point of view of, inter alia, its composition, jurisdiction and
powers. The Court is also contrasted with courts in other jurisdictions which exercise
full judicial review.
The Court's emerging jurisprudence is examined. A review is made, inter alia, of the
Court's understanding of, and approach to, the questions of the values underpinning
the post-apartheid society and its constitutional system, and constitutional
interpretation.
The right against self-incrimination and South African company law and the two relevant
Constitutional Court cases are discussed.
The collection of evidence by the State and the constitutionality of provisions relating
to search and seizure and the taking of fingerprints are looked into.
The Court's approach to statutory presumptions and criminal prosecutions; some aspects of our appeals procedures; an accused's right to be assisted by a lawyer at
state expense; the question of a fair trial and access to information; capital punishment;
corporal punishment; committal to prison for debt; and the certification of constitutions
is analyzed.
Two of the cases in which the provinces clashed with the national government on the
distribution of posers between provinces and the national government are discussed.
The conclusion is that the Court has, overall, hitherto acquitted itself well in the handling
of particularly the controversial quasi-political questions that arose in the cases it has decided. / Constitutional, International and Indigenous Law / L.L. D. (Law)
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Minority rights and majority politics : a critical appraisalDent, Kate Jean 22 August 2016 (has links)
In the interplay between protection of rights and majoritarianism, the court is the arena. This research focuses on the conflicting role of the court within a constitutional democracy and a contestation of the counter-majoritarian dilemma that emerges from such a role. The counter-majoritarian dilemma centres on the idea that judges overturning decisions of the legislature through judicial review undermines democracy by thwarting the will of the majority through a subjective reading of abstract constitutional principles.
As a point of departure, the counter-majoritarian dilemma is contested by revealing that the court can be seen as a democratically consistent institution if democracy can be reconceptualised.
The examination of the South African jurisprudential climate and the adjudicative guidelines followed by the court suggests a rejection of such anti-democratic contention. The court upholds the commitments consented to at the time of the Constitution’s adoption and adjudication is reflective of the values undertaken by the country in reaction to its past. Within these values, minority rights can find a lifeline. Thus minority rights can exist through the implications of majoritarian consent. This research further identifies, in response to the counter-majoritarian dilemma, a constraining self-consciousness on the part of the court and an acute awareness of the court’s precarious role within a democratic infancy. The core of the counter-majoritarian dilemma is the view that interpretative indeterminacy of the Constitution means that the will of the people could be substituted for judicial preference. Through the examination of the court’s interpretative strategies and judicial subjectivity, this research suggests that within judicial subjectivity, adjudication continues to be reflective of the will of the people. Far from a constraining and mechanistic interpretation to avoid judicial subjectivity, the research reveals that open and non-formalist interpretative strategies are necessary to effectuate democratic conciliation within the judicial mandate. The results of this research suggest that, far from being a democratically deviant institution, the court in the current South African jurisprudential context, is the most suited to uphold the concept of democracy. / Jurisprudence / LL. M.
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