The aim of this technical report is to serve as a handy expose of the relevant provisions of various statutes for attorneys, accountants and other advisors who have to deal with the relevant tax laws affecting the establishment, utilisation and dissolution of trusts. The South African Acts which are the subject of this technical report were promulgated on or before 31 December 1998. They are as follows: • The Income Tax Act, No. 58 of 1962. • The Transfer Duty Act, No. 40 of 1949. • The Value Added Tax Act, No. 89 of 1991. • The Estate Duty Act, No. 45 of 1955. The principal South African taxes dealt with in this report are as follows: • Normal Tax. • Donations Tax. • Transfer Duty. • Value Added Tax. • Estate Duty. / Thesis (LL.M.)-University of Natal, Durban, 1999.

This research examined the concept of base erosion and profit shifting in the context of tax schemes employed by multinational corporations. The objective of this thesis was to identify weaknesses within South Africa’s income tax legislation, based on these schemes, and further to propose recommendations to counter the occurrence of base erosion and profit shifting by multinational companies. The research also comprised of a limited review of current global and South African initiatives to address the problem of base erosion and profit shifting. It was concluded that there are a number of weaknesses in the definitions and provisions of the South African income tax legislation that need to be addressed in order to reduce base erosion and profit shifting. Brief recommendations were proposed in relation to each of the weaknesses, in order to address them.

The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.

BBBEE is currently on everyone’s minds and the uncertainty surrounding the changes to the Codes of Good Practice as well as the Sector Codes leaves business owner’s with a feeling of uncomfortable anticipation. The changes to the Codes of Good Practice has set the tone and most of the Sector Codes are being modelled around the Codes. Business owners will have to adapt to the changes and plan in advance in order to avoid being without a compliant BEE certificate. This will entail a strategic analysis of the company’s financial position as well as a strategic BEE plan for the 12 months they will be rated on.

The term affirmative action originated in the United States some 30 years ago to describe a process of liberating minority groups. The objective of affirmative action within an organisational context, is to democratise the workplace by enabling members of previously disadvantaged groups to progress higher up the ranks of the corporate world. The affirmative action drive only took off in South Africa when it became part of the democratisation process and the focus was directed towards liberating the historically disadvantaged black majority. Prior to 1994, the reasons for implementing affirmative action programmes were largely political because of the race-based discrimination. Historically disadvantaged people were a minority in senior positions, the reason being that although the blacks were given a chance to compete with their white counterparts, due to their poor education standards and lack of experience only a few was appointed. The Employment Equity Act 55 of 1998 aims to correct the demographic imbalances in the nation’s workforce by compelling employers to remove barriers to advancement of blacks, coloureds, Indians, women and disabled, and actively to advance them in all categories of employment by affirmative action. The Employment Equity Act consists of two main sections. The first replaces and refines the prohibition on unfair discrimination in item 2(1)(a) of Schedule 7 of the Labour Relations Act. The second aspect deals with imposing a duty to the employers to adopt affirmative action programmes. The Employment Equity Act places a positive obligation on all employers “to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”. Where unfair discrimination is alleged, the onus of proving that discrimination is fair, or practice is not discriminatory at all, rests upon the employer. Disputes about unfair discrimination must be referred to the CCMA, and if not settled by conciliation, to the Labour Court, which has the power to order compensation or the payment iv of damages, or to direct the employer to take steps to prevent the same unfair discrimination or similar practice occurring in the future in respect of other employees. The second section of the Employment Equity Act deals with the imposition of the duty to designated employers to adopt affirmative action programmes. All employers with more than 50 employees, or which have annual turnovers equal to or above the annual turnovers for small businesses of their class, municipalities, organs of state, and those designated as such by collective agreement, must implement affirmative action measures for people from designated groups. This entails consulting with employers, conducting an analysis of employment policies, practices, procedures and the working environment to identify barriers, drawing up employment equity plans and reporting thereafter to the Director-General of the Department of Labour on progress made in implementing the plan. Any employee may bring alleged contraventions of the Act to the attention of the employer, another employee, or any trade union, workplace forum, labour inspector or the Director- General of the Employment Equity Commission. Labour inspectors appointed under the Basic Conditions of Employment Act may enter and inspect employer’s properties and documents, and are responsible for ensuring that the employer has consulted with employees as required, conducted the pre-equity plan analysis prepared its plan and is implementing it, submitted and published its reports, set up the necessary managerial infrastructure, and informed its employees of progress. Should employers be found not to have complied with these requirements, labour inspectors must request a written undertaking that they will do so. If an employer fails to give such an undertaking, the labour inspector can issue a compliance order setting out inter alia what steps the employer must take and when, and the maximum fine, if any, that can be imposed if the employer fails to comply. If the employer does not pay attention to the compliance order within the prescribed period, the Director-General may apply to have it made an order of the Labour Court. The Director-General may also conduct independent ad hoc reviews of selected designated employers. Failure by an employer to comply with the provision of the Act lead to the employer being liable for the contravention of the Act.

Retrenchment, as a form of dismissal, is regulated by section 189 and 189A of the Labour Relations Act 1995. In order for a retrenchment to be fair, it must comply with both the substantive and procedural requirements stipulated in the Act. After an employee has proved the dismissal, the onus rests on the employer to comply with these two requirements by providing proof thereof. One of the most important procedural requirements that must be complied with by the employer is that the employer cannot merely make a decision to retrench. This decision may only be made once the employer, when contemplating a retrenchment, followed the lengthy consultation process as required in section 189. Recent amendments to section 189 introduced a distinction between a small and big employer and further between a large-scale and small-scale dismissal. If the employee is of the opinion that the employer did not comply with either the procedural or substantive requirements or both, he/she may refer such a dispute for conciliation and thereafter for arbitration or adjudication, according to a dispute resolution process contained in the Act, during which process certain remedies are available to the dismissed employee. The Labour Relations Act 1995 also introduced important amendments which have the effect that employees are allowed to, in certain circumstances, to strike over collective retrenchment disputes.

Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.

Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.

Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.

Part II of the International Labour Organisation Convention 158 recognises operational requirements of an organisation as a ground for dismissal. Section 213 of the Labour Relations Act describes operational requirements reasons as requirements based on the economic, technological, structural or related needs of an employer. The employer‟s needs in case of operational requirement dismissal must be separated from the other reasons for dismissal, such as misconduct and incapacity. Operational requirements dismissals are governed by section 189 of the LRA. The LRA draws a distinction between small and large scale dismissals and regulates them separately. Section 189 control small scale dismissals, while section 189A pertains to large scale dismissals For substantive fairness of a dismissal for operational requirements, the employer must prove that the said reason is one based on operational requirements of the business. The employer must be able to prove that the reason for the dismissal falls within the statutory definition of operational requirements. Employers are not allowed to use retrenchment to dismiss employees who they believe to have performed unsatisfactorily. This means that employers are not entitled to retrench for ulterior reasons, than those of operational requirements.The Labour Court has held that an employer may not under any situation retrench an employee on a fixed-term contract if the termination takes place before the contract of the employee ends, unless the contract of employment makes provision for termination at an earlier date. Retrenchment in this situation will amount to a breach of contract. Another point of interest in dismissals for operational requirements is that the Labour Relations Act states that it is not unlawful to dismiss a striking employee for reasons based on the employer‟s operational requirements. In relation to the selection criteria to be used during these dismissals, the Labour Relations Act again states that if an agreement cannot be reached between the consulting parties, then the employer must use criteria that are fair and objective.