The capital maintenance doctrine presupposes that a company’s capital must not be returned to its shareholders. The doctrine was anchored on three rules, one of which was that a company cannot acquire its own shares as this amounted to a diversion of capital to the shareholders whose shares were acquired. This rule was partly rationalized as protecting the interests of shareholders. In South Africa the rule was embodied in s 85 of the Companies Act 61 of 1973. However, it was amended by s 9 of the subsequent Companies Amendment Act 37 of 1999 to provide that a company can acquire its own shares if certain substantive and procedural requirements were satisfied. Upon the enactment of Companies Act 71 of 2008, the requirements have not been substantially altered. They are partly geared towards protecting shareholders by ensuring that shareholders are treated equally and fairly. Moreover, the Johannesburg Securities Exchange Limited (hence the JSE Limited) was empowered by the Companies Act 61 of 1973 to promulgate requirements to be met when a company wishes to acquire its own shares. The Companies Act 71 of 2008 does not in express terms empower the JSE Limited to develop requirements to be met when a company wishes to acquire its own shares. However, the Act expressly requires that a listed company wishing to acquire its own shares must also comply with the requirements of the relevant exchange. Such requirements can therefore be deemed to subsist even amidst the new Act as an internal regulation of the JSE Limited. The said requirements are also partly aimed at protecting shareholders, largely by ensuring that adequate information is availed to shareholders to empower them to make informed decisions. / Private Law / LL. M. (Company Law)

Thesis (LLM. (Development and Management Law)) -- University of Limpopo, 2019 / This mini-dissertation articulates the socio-economic challenges faced by South Africans, such as poverty, unemployment and lack of infrastructural development. The mini- dissertation establishes that tourism is an engine that drives socioeconomic transformation thus elimination poverty, creating employment and bringing about infrastructural development. It highlights tourism law, policies and international instruments that ensure that factors such as environmental protection, travelling, skills development, and so on ensure that tourism is promoted and thrives to transform the lives of historically disadvantaged South Africans. It identifies tourism impediments that stand as obstacles hindering tourism to provide socio-economic transformation and makes a moderate attempt to offer sustainable solutions. It recommends that the Department of Tourism through co-operative governance with other organs of state should strengthen implementation of legislation, institutions and policies vested within its power to ensure that tourism is developed to create employment and alleviate poverty. As a comparative analysis the approaches of Australia and Canada were utilised and useful lessons were drawn from them.

A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation) Johannesburg, 2015 / The Katz Commission recognised that South Africa could benefit from multinational enterprise (MNE) groups headquartering in South Africa. MNE headquarter companies create jobs and attract highly skilled individuals who impact on the economies in which they reside. These highly skilled individuals are also high taxpayers in the countries where they provide their services. South Africa has a number of attributes which would encourage MNE groups to headquarter in South Africa but the cost of doing business with the rest of Africa is high due to withholding taxes levied by African countries on technical and management fees. Countries with low tax rates attract MNE groups to headquarter in those countries as this effectively reduces the cost of doing business with the rest of Africa. The National Treasury introduced section 6quin of the Income Tax Act to provide effective relief to the South African taxpayer from double taxation on South African-sourced service fees charged to other countries and, in particular, other African countries. An examination is conducted on the impact of double taxation and whether section 6quin provides more effective relief from double taxation compared to other double tax relief mechanisms available to the South African taxpayer which will incentivise MNE groups to headquarter in South Africa. An analysis is performed on the income tax forfeited by the South African Receiver of Revenue (SARS) in the National Treasury providing this incentive to South African headquarter companies compared to if the headquarter is relocated out of South Africa. The results indicate that section 6quin provides a feasible solution to reducing double taxation on South African-sourced services provided to other African countries which incentivises MNE groups to headquarter in South Africa. If section 6quin is withdrawn from the South African Income Tax Act, MNE groups potentially will not headquarter in South Africa and seek low tax jurisdictions to reduce costs of providing headquarter services into Africa. This study indicates that the fiscus stands to lose more income tax if the MNE group headquarters outside of South Africa compared to the relief provided to the MNE group headquarter company in accordance with section 6quin by reducing income tax payable. This study informs MNE groups seeking to headquarter in South Africa and the National Treasury of the effects of double taxation on South African-sourced services provided to other African countries and the requirement for relief against double taxation. This study highlights the need for the National Treasury to retain section 6quin in the Income Tax Act or provide an alternate suitable solution to reducing double taxation on South African-sourced services provided by South African headquarter companies to other African countries. / MT2017

Text in Afrikaans / Prospektering is een van die eerste en belangrikste stappe in die mineraalontginningsproses en dit word ondersoek teen die agtergrond van die Mineraalwet 50 van 1991, wat die belangrikste "mynwette" herroep en die Suid-Afrikaanse mineraal- en mynreg in vele opsigte op 'n heel nuwe grondslag geplaas het. Die hoofdoel met hierdie proefskrif is om prospekteerregte te sistematiseer en te bepaal of dit beperkte saaklike regte daarstel. Ten aanvang word bepaal welke aktiwiteite prospektering daarstel en welke stowwe regtens as minerale kwalifiseer. Daar word gekyk na die regte waarvan prospekteerregte dee! vorm of waaruit dit afgelei word, naamlik eiendomsreg en mineraalregte. Die afskeiding van minerale van grond, die afskeiding van mineraalregte van grondeiendomsreg en die afskeiding van prospekteerregte van mineraalregte en grondeiendomsreg, asook die inhoud van en beperkings op die uitoefening van prospekteer- en mineraalregte, word ook ondersoek. Daar word veral aangetoon dat mineraalregte nie so wyd is as wat algemeen aanvaar word nie en dat dit 6f by die af skeiding van die roerende minerale tot niet gaan of uitgeput raak 6f in eiendomsreg daarop oorgaan. Prospekteerregte word meestal verleen by wyse van prospekteerkontrakte, waarvan daar verskillende verskyningsvorme bestaan en waarvan die een wat in die Registrasie van Aktes Wet 47 van 1937 omskryf word, as uitgangspunt geneem word. Aangesien die reg om te myn ook die reg om te prospekteer insluit, word die verlening van mynregte en antler verkrygings van prospekteerregte ook behandel. Alvorens gemeneregtelike prospekteerregte egter uitgeoefen mag word, meet magtiging daarvoor by die staat verkry word. Die verlening van statutere prospekteer- en mynmagtigings het by die inwerkingtreding van die Mineraalwet 50 van 1991 grondige veranderings ondergaan wat tesame met die relevante oorgangsbepalings ondersoek word ten einde die uitwerking van die wet op prospekteerregte te bepaal. Die vereistes vir en die regsaard van die verskillende regte word ondersoek ten einde 'n oorsig van prospekteerregte daar te stel en dit vlugtig met veral Australiese reg te vergelyk. Daar word tot die gevolgtrekking geraak dat blote prospekteerregte nie beperkte saaklike regte daarstel nie. / Prospecting is one of the first and most important steps in the minerals exploitation process and is examined against the background of the Minerals Act so of 1991, which repealed the most important "mining" legislation and in many ways placed the South African mining and minerals law on a completely new basis. The main purpose of this thesis is to systematise prospecting rights and to establish whether they constitute limited real rights. It is at the outset determined which activities constitute prospecting and which materials qualify in law as minerals. The rights from which prospecting rights are derived or of which they form part, namely ownership and mineral rights, are considered. The severing of minerals from land, the severing of mineral rights from landownership and the severing of prospecting rights from mineral rights and landownership, as well as the contents of and limitations on the exercising of prospecting and mineral rights, are also examined. It is in particular shown that mineral rights are not as comprehensive as is generally accepted and that they either terminate or are exhausted upon severance of the movable minerals from the land or are converted into ownership thereof. Prospecting rights are mostly granted by way of prospecting contracts, of which different varieties exist and of which the one defined in the Deeds Registries Act 47 of 1937 is taken as the starting point. Since the right to mine includes the right to prospect, mining rights and other acquisitions of prospecting rights are also considered. Before common law prospecting rights may be exercised, however, authority to do so must be obtained from the state. Upon the commencement of the Minerals Act 50 of 1991, the granting of statutory prospecting and mining authorisations underwent fundamental changes, which are examined with the relevant transitional provisions to determine the effect of the act. The requirements for and the juridical nature of the various rights are considered in order to establish an overview of prospecting rights and briefly to compare them mainly with Australian law. The conclusion is reached that mere prospecting rights do not constitute limited real rights. / Jurisprudence / LL. D.

The recognition in law of pension benefits and expectancies, as a matrimonial asset which may be subject to certain claims (and counterclaims), occured in South Africa in 1989. The starting point of this development was an investigation in 1984, on: "the possibility of making provisions for a divorced woman to share in the pension benefits of her former husband ". This investigation came about, in South Africa, after the matter had already been accepted, in many foreign legals systems, as a well-established, and most important concept of family law. The obvious question for the South African legislature was which of the pension-sharing schemes throughout the world would best serve as a model. Since the South African accrual system was largely based on the German Zugewinngemeinschaft, it seemed only natural that a close comparative study should be made of Germany's Versorgungsausgleich scheme. It is one of the aims of this thesis to point out whether and to what extent South Africa followed the German example. To do so, it will be necessary to examine first the different legal situations which were prevalent before and after the legal changes in the two countries and to elaborate on the reasons which led to these changes. The discussion in chapter three of how the German system of equalisation of pension expectancies, the so-called Versorgungsausgleich, is applied, will facilitate a comprehensive comparison with the South African scheme. The questions to be answered in the fifth chapter are whether it is appropriate to examine the equalisation of pension expectancies under South African law, which was only recently introduced, in a comparison with the German system and whether it is possible to speak of a Versorgungsausgleich when referring to the South African situation. Whenever possible, I have attempted to suggest solutions that may appear acceptable. To conclude the thesis, certain pension sharing problems arising under South African private international law will be briefly commented upon. / Private Law / LLM

Text in Afrikaans / Die Wet op Misbruik van Afhankl ikheidsvormende Stowwe beheer tans die regsposisie betreffende die misbruik van dwelmmiddels. Orie klasse afhankl ikheidsvormende medisyne word geskep waarvan slegs die handeldryf in verbode afhankl ikheidsvormende medisyne bespreek word. Benewens die gewone betekenis van handeldryf, het die Wetgewer 'n uitgebreide betekenis daaraan gegee om begrippe soos "oorlaai", "toediening", "versending" en "voorskryf" in te sluit. Die vermoedens, wat die Wetgewer in die Wet ingebou het om die taak van die vervolging te vergemakl ik, sowel as die voorverelstes vir die inwerkingstel I ing daarvan, word bespreek. Verbode Afhankl ikheidsvormende medisyne word gelys in Deel I in die Bylae tot die Wet en die strekking van die bewyslas op die vervolging word bespreek. Geen statut~re regverdigingsgronde word geskep nie, maar die gemeenregtel ike regverdigingsgronde behoort hier aanwending te vind. Opset blyk die vereiste skuldvorm te wees. Wet 101 van 1965 en Wet 41 van 1971 oorvleuel tot 'n sekere mate en by botsende bepal ings sal die 1971-wet voorkeur geniet. / The law with regard to the dependance-producing drugs is governed by the Act on the Misuse of Dependence-producing drugs. The Act distinguishes between three types of dependence-producing drugs and the work focuses only on prohibited dependence-producing drugs. The lawmaker gave extended interpretation to the term" dealing in" to include aspects Iike the transfer from one vehicle to another, administering, dispatching and prescription. Certain presumptions which Iighten the burden of proof on the prosecution were introduced in the act and the prerequisites for their operation are discussed. No statutory defences are created but it is submitted that common law defences should apply. Intention is set down to constitute the required mens areas. Act 101 of 1965 and Act 41 of 1971 overlap on certain aspects where sections are in conflict with each other, the latter Act should receive preference. / Criminology and Security Science / LL.M.

In section 3(3)(d) of the Estate Duty Act 45 of 1955 (the Act) the legislature introduced the concept "competent to dispose", described in section 3(5) of The Act as a "power". If the deceased was "competent to dispose" property for his own benefit or that of his estate, section 3(3)(d) deems that property to be property of the estate. In order to determine when property may be deemed property of the deceased estate it is necessary to analyse the meaning of section 3(3)(d) as read with section 3(5) of the Act. An analysis of section 3(3)(d) of the Act indicates that it may be applied to those with a legal right to dispose of property for their own benefit or for the benefit of their estates. This interpretation is based on the meaning of "competent to dispose", and "power" as derived form the analysis. / Private Law / LL.M.

Law / LL.M.

Law / LL.M.

Submitted in fulfillment of the requirement for the Degree of Master of Technology: Taxation, Durban University of Technology, 2013. / South Africa has seen tremendous changes since 1994, from the introduction of a new government to structural changes in tax administration; one of the challenges the government faced in the new democracy, was the restructuring of the tax system. Multiple tax amnesty programs were thus introduced between 1995 and 2010 to provide immunity for limited periods to citizens and small businesses for past non-compliance without being subjected to additional tax, interest, penalties or prosecution. Although extensive research conducted abroad has illustrated the potential problems and complexities that could arise from multiple amnesties, very little research has been conducted in South Africa to evaluate the viability of offering repeated amnesties. The emphasis in this study was therefore on the Small Business Tax Amnesty of 2006, and its primary purpose was to explore the effects that multiple tax amnesties have on compliance and whether it is possible for tax compliance to improve if further tax amnesties are introduced. This study used a quantitative research approach to gather data from 146 respondents from an Audit firm database containing information about taxpayers qualifying as small business who applied for amnesty and taxpayers that did not apply for amnesty between 1 August and 30 June 2007. Analysis of the data revealed that tax amnesties in South Africa should not be offered on a frequent basis to non-compliant taxpayers as it causes non-compliant taxpayers to anticipate further amnesties which could impact negatively on tax compliance as a whole. The findings also indicated that educating taxpayers about tax issues could result in better tax compliance thus contributing to the development of a fair and equitable society. Based on the findings, this study makes recommendations to government, the tax authority and policy makers regarding the effects of multiple tax amnesties.