Thesis (PhD (Accountancy))--University of Stellenbosch, 2002. / AFRIKAANSE OPSOMMING: Die vraagstuk wat in die studie ondersoek word, is of daar groter regsekerheid ten opsigte van die toepassing van die onderskeie inkomste-kapitaal riglyne by ontvangste in die Suid-Afrikaanse inkomstebelastingreg verkry kan word deur: i) die onderliggende gedagterigtings wat die formulering van die betrokke riglyne ten grondslag lê, te ondersoek en toe te pas; ii) die geformuleerde riglyne meer noukeurig te omskryf; iii) die toepassingsveld van die onderskeie riglyne te oorweeg: en iv) 'n psigologiese onderskeid te tref tussen die verskillende tipes subjektiewe ingesteldhede wat 'n individu kan openbaar en die tipe wat vir die inkomste-kapitaalriglyne relevant is, te identifiseer. In die oplossing van bogemelde vraagstuk word aan die volgende aspekte aandag geskenk: i) Die ontwikkeling en toepassing van die riglyne wat die howe in Australie, Nieu-Seeland en Suid-Afrika geformuleer het om 'n onderskeid te tref tussen ontvangste van 'n inkomste- en kapitale aard. Die ontwikkeling van die relevante riglyne in die Australiese en Nieu-Seelandse inkomstebelastingreg word oorweeg omdat: (a) die grondslag van inkomstebelasting in die lande wesenlik ooreenstem met Suid-Afrika; (b) die howe daar na dieselfde brongesag verwys as uitgangspunt vir die ontwikkeling van die riglyne om 'n onderskeid te tref tussen ontvangste van 'n inkomste- en kapitale aard; (c) die howe in Nieu-Seeland na gesag in Suid-Afrika verwys het by die toepassing van sekere riglyne om tussen ontvangste van 'n inkomste- en kapitale aard te onderskei; (d) die howe daar nuwe toepassings vir die bestaande riglyne ontwikkel het en die moontlikheid bestaan dat hierdie toepassings ook in Suid-Afrika aangewend kan word; en (e) die howe in die Suid-Afrikaanse inkomstebelastingregspraak al hoe meer na Australiese regspraak verwys as gesag vir hulle uitsprake. ii) Die standpunt dat die premis wat die riglynformulering deur die howe ten opsigte van die onderskeid tussen ontvangste van inkomste- of kapitale aard ten grandslag lê, inderdaad gebaseer is op 'n klassifikasie van die onderliggende transaksies wat die ontvangste genereer. iii) Die grondslag van voorgemelde riglyne, dit wil sê pas die howe die riglyne toe deur die subjektiewe ingesteldheid van die belastingpligtige in ag te neem, of word die riglyne bloot op objektief waarneembare feite gebaseer wat 'n aanduiding gee van die aard van die ontvangste, of is dit subjektief sowel as objektief. iv) Die relevante tipe subjektiewe ingesteldheid wat deurslaggewend is indien die subjektiewe ingesteldheid van die belastingpligtige 'n belangrike rol speel by die toepassing van die riglyne. 'n Samehangende metodologie word formuleer wat die howe en belastingpraktisyns kan aanwend om op 'n logiese en konsekwente wyse die relevante riglyn te identifiseer en toe te pas om die inkomste- of kapitale aard van die betrokke ontvangste te bepaal. Die aanwending van hierdie metodologie sal tot groter regsekerheid in die inkomstebelastingreg bydra omdat die identifisering en toepassing van die relevante riglyn op die feitestel in oorweging op 'n gestruktureerde en gefundeerde grondslag sal plaasvind. / ENGLISH ABSTRACT: The problem that will be investigated in this thesis is whether greater legal certainty may be ascertained regarding the application of the various income-capital guidelines to receipts in the South African income tax law by: i) investigating and applying the underlying thought processes that form the basis of the formulation of the guidelines concerned; i) defining the formulated guidelines in more detail; iii) considering the field of application of the various guidelines; and iv) making a psychological distinction between the different types of state of mind of an individual and identifying the type that is relevant for the application of the incomecapital guidelines. In finding a solution for the above problem the following aspects are considered: i) The development and application of the guidelines that the courts have formulated in New Zealand, Australia and South Africa to make a distinction between receipts of an income and capital nature. The development of the guidelines in New Zealand and Australia is relevant because: (a) the basis of income tax in these countries concords primarily with South Africa; (b) the courts there referred to the same authority as a starting-point for the development of the guidelines in order to make a distinction between receipts of an income and capital nature; (c) the courts in New Zealand referred to South African authority to substantiate the application specific guidelines in order to make a distinction between receipts of an income and capital nature; (d) the courts there developed new applications for existing guidelines and the possibility exists that it may also be applied in South Africa; and (e) the courts in South Africa of late refer more and more to Australian case law as authority to support their judgements. il) The proposition that the premise that forms the basis of the guideline formulation by the courts to distinguish between receipts of an income and capital nature is indeed the classification of the underlying transactions that generate receipts. iii) The underlying principle of the various guidelines, that is to say do the courts apply the guidelines by taking cognisance of the subjective state of mind of the taxpayer, or are they merely based on objective surrounding circumstances that give an indication of the nature of the receipt, or is it both subjective and objective. IV) The specific state of mind of a taxpayer that is determinative if subjectivity is a crucial element in the application of particular guidelines. A coherent methodology is formulated that could be applied by courts and tax practitioners in order to identify and apply the relevant guidelines logically and consistently in the determination of the income or capital nature of the receipt under consideration. The application of this methodology will contribute towards greater legal certainty in the income tax law because the identification and application of the relevant guidelines will occur in a structured and systematic manner.

Municipalities in South Africa are increasingly outsourcing municipal services, including basic municipal services such as water and sanitation services and refuse collection and disposal. The Constitution places onerous duties on municipalities to respect and promote human rights in the exercise of the powers and the performance of their functions. These duties are particularly prevalent when a municipality is deciding on the optimal service delivery mechanism for basic municipal services. It is thus crucial for the policy and legislative environment regarding municipal outsourcing to be firm and clear and for the municipality to ensure satisfactory implementation of outsourcing projects, including contract management. This thesis examined the policy and legislative framework governing municipal outsourcing and described the general features of a range of current South African outsourcing contracts. It also questioned whether the policy and legislative framework are consistent in their objectives and assessed how these objectives are carried through and translated into the contract drafting and implementation phases of outsourcing.

This thesis deals with a very important issue in government, i.e. the process of procuring goods and services. The state is the biggest consumer of goods and services in South Africa and with the increasing privatisation of government services, the ambit of procurement is expanding.<br /> <br /> Government procurement is afforded constitutional status in South Africa. Section 217 of the Constitution provides that the state must contract for goods or services in a manner which is fair, equitable, transparent, competitive and cost-effective. This does not prevent the state from using procurement as a policy instrument, i.e. to, for example, address past discriminatory policies and practices. Legislation must furthermore be enacted to make provision for the use of procurement as a policy tool.<br /> <br /> A number of statutes have been enacted to reflect the constitutional status of government procurement in South Africa. In addition to these statutes, government procurement decisions and procedures are regulated by the common law, in particular, the law of contract and the law of delict. The general rules of constitutional and administrative law also apply to government procurement.<br /> This thesis evaluates the way in which the legal regime in South Africa collectively gives effect to section 217 of the Constitution. First, the constitutional standard against which the elements of the legal regime can be measured is set out. In doing so, meaning is given to the different principles in section 217 (fairness, equity, transparency, competitiveness and cost-effectiveness) and attention is given to the legal nature of the principles and the relationship that exists between the different principles. The focus then shifts to how the principles are given effect to in legislation / how the courts give meaning to the different principles / whether there is compliance with the principles throughout the procurement process, i.e. from the time that the decision is made to procure goods or services until the conclusion of a contract and completion of contractual performances / and whether adequate provision is made for the effective enforcement of the principles in practice.<br /> <br /> It is argued that aside from a few shortcomings, the legal regime in South Africa generally gives adequate effect to section 217 of the Constitution. Not only has the procurement procedures and decisions of the state been constitutionalised, section 217 can be said to capture the most essential elements of a good procurement system. The principles of fairness, transparency and value for money, in particular, are generally regarded as the cornerstone of good procurement practices. The principles in section 217 will furthermore form part of South Africa&rsquo / s government procurement system for a very long period of time. The state will therefore always have to take serious account of the principles in section 217 and ensure compliance therewith.

The Insolvency Act 24 of 1936 regulates the debtor’s estate when sequestrated for the benefit of creditors. The debtor must prove that sequestration will be to the advantage creditors and as such creates a stumbling block in the way of the debtor when applying for the voluntary surrender of his estate. Sequestration is viewed as a drastic measure due to the consequences attached to it. The sequestration procedure is often used by debtors as a form of debt relief as, subsequent to the sequestration procedure, the debtor may become rehabilitated. The effect of rehabilitation is that it discharges the debtor of all pre-existing debts and disabilities resulting from sequestration. Compulsory sequestration is often used as a debt relief measure by the debtor in the form of the so-called ‘friendly sequestration’. One of the reasons for this is that the onus of proof is much less burdensome as compared to the onus required in voluntary surrender by the debtor of his estate. South African law provides for alternative debt relief measures falling outside the scope of the Insolvency Act, including debt rearrangement in terms of section 86(7)(b) or debt restructuring in terms of section 86(7)(c) as a result of debt review in terms of the National Credit Act 34 of 2005 (NCA). However this procedure does not offer the debtor the opportunity of any discharge from his debts as the order expires only after the administration costs and all of the listed creditors have been paid in full. Further the NCA does not mention the Insolvency Act and this has led to problems in the application of both Acts and inconsistencies between them. An application for debt review by the debtor has been held to constitute an act of insolvency. Thus the creditor can use this very act of the debtor to have the debtor’s estate sequestrated. This is possible as an application for the sequestration of the debtor’s estate is not considered to be an enforcement of a debt by legal proceedings for the purposes of section 88(3) of the NCA and such actions by the creditor are not prohibited by the NCA. This was stated in Investec Bank Ltd v Mutemeri 2010 (1) SA 265 (GSJ) and was subsequently confirmed by Naidoo v ABSA Bank 2010 (4) SA 597. The consequence of this is that a debtor’s estate may be sequestrated even where he has applied for debt review. Currently, as stated by Van Heerden and Boraine, there is no explicit regulation by the legislature of the interaction between the provisions of theInsolvency Act and the NCA. In terms of FirstRand Bank v Evans 2011 (4) SA 597 (KZD) a debtor’s estate may be sequestrated even after a debt rearrangement order has been confirmed by a court in terms of the NCA. This clearly operates to the disadvantage of a debtor. Comparing the position with that in foreign jurisdictions such as the United States of America and England and Wales shows a lack of balance between the interests of the creditor and the debtor. South African insolvency law is not aligned with internationally acceptable standards because it is too creditor orientated and debtors are not provided with effective remedies to deal with their financial difficulties. This research paper will focus on reform in South African law to assist debtors in need of debt relief. There is a need for a system to be put into place to regulate application for debt review by a debtor and the application for the sequestration of the debtor’s estate by the creditor. In addition there is a need for the introduction of new legislation or amendment to the NCA which could be effective in redressing the current situation. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2008.

M.B.A. / The South African Minister of Health has, in terms of Section 2 of the South African Tobacco Products Control Act, 1993 (Act No. 83 of 1993), as amended, declared the public places specified in the Regulations as permissible smoking areas, subject to the conditions also specified in the Regulations. "Swanepoel et al., (2000:597) argues that it is common knowledge today that smoking causes health problems. These problems can basically be categorised into two groups: The health implications for the employee who smokes; and The health and other implications for non-smoking employees who become passive smokers as a result of their colleagues' smoking habits. Apart from the implications for the smoker, there are also major implications for the non-smoking employees and for the organisation as a whole. It follows that, if cigarette smoke is a health risk for the smoker, it must also be so for the non-smoker. The breathed-out smoke contains the same harmful ingredients (such as carbon monoxide and recognised carcinogens — in other words, chemicals that cause cancer) to which the smoker is exposed. In addition, smoking often bothers non-smokers, causing conflict, hostility, negative feelings, deteriorating interpersonal relations — all of which may impact negatively on workforce morale and productivity. There is no single approach and policy for all organisations. The general principles, however, are that a working party should be established, the issue should be raised, the workforce should be consulted and the policy must then be formulated and implemented. It is in the interest of good industrial relations to work out an agreed policy between the company, employees and their representative trade unions (if any), taking into account the interest of smokers and non-smokers, rather than merely imposing an immediate and total ban. The control of smoking in the workplace through a professional process of formulating and implementing an appropriate non-smoking policy will enhance the healthiness or wellness of both smoking and non-smoking employees". The aim of this research is to assess the perceptions of smoking as well as nonsmoking employees of the said regulations of the Act and to assess if the targeted companies adhered to the new Regulations. Employees of three different companies in the Johannesburg in the Gauteng area in South Africa will be ask to complete questionnaires regarding the New Smoking Regulations in South Africa.

LL.M. / Please refer to full text to view abstract

LL.D. / Please refer to full text to view abstract

M.Com. (Industrial Psychology) / In line with recent media reports, it is apparent that homosexual individuals are treated unfairly in a variety of contexts. Yet, little is known regarding the discrimination of homosexual employees in the South African workplace. The objective of this study was to examine the nature of discriminatory experiences of South African homosexual employees. In this study a qualitative approach was used with hermeneutic phenomenology as the method of data analysis. Data were collected through the means of semi-structured interviews with ten homosexual employees from various industries within the Gauteng province. The findings suggest that homosexual individuals do experience discrimination at work and that the experiences of discrimination at work are slightly different for gay employees than for lesbian employees. Three themes generated for gay employees (workplace bullying, the use of prejudice and stereotypes, and problems with people management practices, policies and procedures), while four themes were generated for lesbian employees (workplace bullying, the use of prejudice and stereotypes, problems with people management practices, policies and procedures, and sexual harassment). The contributions of the study will be to provide much needed awareness and understanding of workplace discrimination against homosexual employees. It is hoped that the findings of this research will lead to a re-examination of human resource practices and policies regarding diversity training and anti-discrimination.

LL.D. / Please refer to full text to view abstract