Mercantile Law / LL. M. (Law)

M.Com. / The existence of a person is a prerequisite before any liability for tax can come into being. Some of the most successfultax avoidance schemes of the past few years have relied on this principle, but the legislator has now . apparently closed these loopholes by specifically bringing the trust and the deceased estate within the definition of a person as far as the taxability of these entities is concerned. The courts have, however, set the following general principles relating to the taxation of non-existent persons: (i) The existence of a person is an absolute prerequisite before liability for tax can come into being, nor can there be any representative taxpayer if there is no person to represent. (ii) An aggregate of assets and liabilities, although no legal persona, can to a limited extent take part in day to day economic activities. It is here argued that these principles may be applied to otherareas of the mercantile and private law, resulting in unforseen and beneficial consequences for the taxpayer. Section 35 of the Companies Act creates a possibility for a company to enter into contracts and acquire rights from these, even before being duly incorporated. The company, not being a legal persona before incorporation, would thus not be taxable on income it may receive or which may accrue to it up to the date of incorporation. At present, only two special tax court cases address the issue of pre-incorporation profits. Neither of the decisions handed down, however, reflects the above view, a situation which is highly unsatisfactory and supported by dubious authority. When proper consideration is given to the difference between a person professing to act as agent, and a person professing to act as trustee of a company not yet incorporated, the vesting of income andthe tax effects of retrospective contracts,it becomes clear thata real possibilityfor substantial tax savings does exist. South African writers on this subject are divided, some of them meekly accepting the present unsatisfactory situation, others acknowledging the obvious flaws in it, but declining to make definite suggestions as to how this issue should be approached. A human being becomes a legal persona at time of birth. The nasciturus fiction which stems from Roman law, provides that the rights to an inheritance are kept floating until birth of the nesduuus, to determine whether the nasciturus should share in the bequest. Depending on the interpretation of the legal effects of the nasciturus fiction, and the vesting of the right to income from the inheritance, there is a distinct possibility that liability for tax on income, until time of birth of the nasciturus, may altogether be avoided. Provisions similar to section 35 of the Companies Act and the nasciturus fiction also exist in foreign legal systems. It could, however, not be established how the tax implications resulting from the application of these legal fictions are accommodated within these systems.

The inclusion of the right of access to social security in the Constitution did not meet with wholehearted approval in South Africa. This right, however, is of vital importance for the future upliftment of the country. The present social security system is based upon a clear distinction between social assistance and social insurance. There is a gap in current social security provisions in that the unemployed middle aged individual is not covered. Unemployment itself is one of the greatest challenges obscuring the implementation of a comprehensive social security system. The Constitutional right is to have ‘access’ to social security and the amount of resources at the state’s disposal is directly related to increasing this right, although it is true that a number of available resources are misspent. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to social security. The principles of solidarity and ubuntu must be cultivated so that national social development becomes a concern for all citizens. There are numerous problems facing South Africans in attaining the goal of access to social security – even if national social development does become a priority. Budgetary constraints, poverty, unemployment, HIV/Aids and foreigners are examples of these. By making social security a priority for everyone, existing ideas (almost all of which have merit) may be converted into long-term solutions for poverty and unemployment. Currently, numerous opportunities to salvage the situation are being overlooked as a result of the lack of a comprehensive and structured plan to better the access to social security. The constitutional right of access to social security is enforceable, although the jurisprudence in this field remains underdeveloped. Conditions are currently favourable, within the country and beyond its borders, for an imaginative and concerted attempt to be made to find potential solutions. It is possible for resources to be increased and for tax benefits to be incorporated for businesses which have the capacity to contribute. The issue of defence spending is controversial, but could hold the key to lowering unemployment. Should jobs be created, it is likely that they will initially be of a temporary nature. Consequently, provisions are needed to ensure some guarantee of income in the lacuna between when a job is lost and another found. Ultimately, one thing is certain: the constitutional right of access to social security will only be complete once the people who are recipients of this right make sacrifices and create corresponding duties for themselves to ensure that the next generation of inhabitants of this country are not facing similar problems. The state’s goal should be to ensure that the basic rights which all people enjoy in terms of the Constitution (in particular the other socio-economic rights) are guaranteed for the duration of their existence, even if the level of benefits received by such people is low.

M.B.A. / The new Firearms Control Act, 60 of 2000, will affect the law-abiding firearm owner, through the costs involved for possessing firearms, as well as the legal quantity allowed. The aim of this research is to determine how multiple firearm owners and firearm dealers will be affected by the new Firearms Act, 60 of 2000. 1.3. OBJECTIVES The objectives of this study would be the following: - To evaluate the effect on a hunter/sportsman/collector with more than two firearms,' To evaluate the effect on the number of firearms an owner may legally possess, To evaluate cost involved for the owner, What the Firearms Act implies for all, and what effect legal organisations will have on the firearm industry. To establish how the firearm business environment is affected according to the Political-, Economical-, Social-, Technological and Ecological influences on the business strategies

LL.M. (International Law) / Please refer to full text to view abstract

As the number of non-resident sports persons competing in South Africa increases so does the need to tax them more effectively. It was for this reason that the South African legislature decided to insert Part IlIA into the Income Tax Act which regulates the taxation of non-resident sports persons in South Africa. The new tax on foreign sports persons, which came into effect during August 2006, is a withholding tax placing the onus upon the organizer of the event to withhold the tax portion of the payment to the non-resident sportsperson and pay it over to the revenue services. The rate of taxation has been set at 15 percent on all amounts received by or accruing to a foreign sportsperson. The question which the research addressed is whether this new tax will prove to be an effective tax, both from the point of view of its equity and the administration of the tax. In order to determine the impact of the new tax, it was compared to similar taxes implemented in the United Kingdom and Australia and also to other withholding taxes levied in South Africa. The new tax was also measured against a theoretical model for effectiveness, compared to the pre-August 2006 situation and to the taxation of resident sportsmen and women, using hypothetical examples. The major shortcomings of the new withholding tax are the uncertainty with regard to the intention of the legislature on matters such as the taxation of capital income versus revenue income, the question whether payments to support staff are included in the ambit of the new tax, the taxation of the award of assets in lieu of cash payments and the definition of a resident. A further area of concern is that the rate of taxation of 15 percent appears to be too low and creates horizontal inequity between the taxation of resident and non-resident sports persons. The new tax on non-resident sports persons may have its shortcomings but, depending upon the administrative and support structures put in place to deal with it, will be an effective tax. The rate at which the tax is levied could result in a less tax being collected than before but, with the reduced administrative cost of tax collection, the effective/statutory ratio of the tax could well be much higher than it was. This is a new tax in South Africa and certain initial problems are inevitable and will undoubtedly be solved as the administrators gain experience and as the case law governing this tax develops. / KMBT_363

The thesis covers the field of the contract law known as the consumer credit law. It deals with the legal protection afforded to the consumer under current South African law with emphasis on the legal position in specific credit agreements contained in standard-form contracts. The thesis focuses on those credit contracts in which the legal relationship between the consumer and the dominant party is contained in the standard-form contracts, specifically credit agreements relating to money lending transactions in which the credit grantor’s rights are secured either by means of mortgage agreement, a suretyship contract, or a deed of cession. In South Africa the right to equality and human dignity, as opposed to the classical theories of contract: pacta sunt servanda and the principle of freedom of contract, are supported by the Constitution of the Republic of South Africa Act 108 of 1996 which entrenched democratic values permeating all areas of the law including contract law. In this thesis the harmonisation of these classical theories of contract law and the constitutional values of human dignity and equality have been considered. As has been shown in a number of cases, notably those relating to the contracts of suretyship, cession in securitatem debiti, and mortgage, the current law regulating the relationship between the credit grantors and the credit receivers is in need of law reform to fall in line with the constitutional values of equality and human dignity. The greatest difficulty inherent in this area of the law is the reluctance of the courts to intervene at the instance of consumers. The courts would only intervene in the clearest of the cases, and would only do so in the public interest. In this thesis the current South African Law is considered in the light of the developments elsewhere. The tendency of credit providers to alter the terms of the contracts unilaterally and the growing number of conflicting decisions of the Provincial Divisions of High Court has also been considered. The writer also considers the role of the newly created Consumer Affairs Court.

Please read the abstract in the section 00front of this document / Thesis (PhD (Education Management))--University of Pretoria, 2006. / Education Management and Policy Studies / unrestricted

The South African fiscal legislators have found it necessary to introduce anti-avoidance legislation which governs controlled foreign companies in order to counteract schemes devised by taxpayers where companies are established outside South Africa for the purpose of diverting income from the South African fiscal net. Whilst the enforcement of such legislation does have merit in that the intention behind the introduction of such domestic legislation is to prevent the erosion of the South African tax base, it is submitted that this does pose a problem from an international perspective. The objective of this treatise is to conduct a critical analysis of how compatible the South African fiscal legislation which governs controlled foreign companies is with the provisions of the double taxation agreement as prescribed in terms of the OECD Model Tax Convention (which was published in July 2010). In addition, the aim of this study is to deduce whether the purpose of the double taxation agreement is not only the avoidance of juridical double taxation but also that it addresses the avoidance of economic double taxation. This will assist in determining whether domestic controlled foreign company legislation (as embodied in section 9D of the Income Tax Act 58 of 1962) conflicts with the purpose of the double taxation agreement. By conducting an extensive research study and by depicting a certain scenario which addresses the issue at hand, the following is concluded: The tax treatment of the business profits generated by a controlled foreign company resident in a State outside South Africa and which have been generated from active business operating activities, is held to be in agreement with the provisions of the double taxation agreement. By contrast, the tax treatment of the controlled foreign company’s passive income in the form of interest income, is found not to correlate with the aforesaid agreement. As will be demonstrated in the chapters that follow, the controlled foreign company’s interest income is subjected to economic double taxation in terms of the scenario depicted in this treatise. This means that such income is taxed twice in the hands of two different taxpayers in two different States. As a result of this it is submitted that the following problem arises: Because section 9D of the Income Tax Act causes economic double taxation to occur (as illustrated in the previous paragraphs) and owing to the fact that the purpose of the double taxation agreement is the avoidance of economic double taxation, it can be shown that the section 9D domestic legislation conflicts with the terms of the double taxation agreement. This conflict is considered to be an area of concern because a contravention of the purpose of the double taxation agreement is regarded as a breach of the Contracting States’ international obligations in terms of the aforesaid agreement. It is further submitted that paragraph 23 of the OECD Commentary on article 1 and paragraph 14 of the OECD Commentary on article 7 are incorrect when they express the sentiment that domestic controlled foreign company legislation does not conflict with the provisions of the double taxation agreement. It is proposed that this be corrected to state the contrary.

The legal position of asylum seekers in South African social security system is more nuanced as a result of their transitional stay or status in the country. Asylum seekers may often be present in South Africa for a quite a long time but their social security entitlement is more restricted, and similar to that of temporary residents. For example, asylum seekers’ social security position is completely different from that of refugees. Refugees enjoy the same social security treatment similarly to South African citizens and permanent residents. Refugees qualify for the constitutionally entrenched right to have access to social security, including appropriate social assistance. Refugees also qualify for other socio-economic rights contained in the Constitution of the Republic of South Africa, 1996. The exclusion of asylum seekers occurs despite the fact they are one of the vulnerable groups of noncitizens. Such exclusion forces asylum seekers to live under precarious conditions. It is fundamentally accepted that the drafters of the Constitution included the right to have access to social security, in order to ensure that everyone, irrespective of nationality and citizenship enjoys an acceptable standard of living. It is also fundamentally accepted that the right to have access to social security contained in section 27(1)(c) is limited by section 27(2) of the Constitution. Section 27(2) requires the State to take reasonable legislative measures, within its available resources, to achieve the progressive realisation of the right to have access to social security. The South African courts had on several occasions confirmed that the content of section 27(1)(c) is limited by section 27(2) of the Constitution and that the state cannot implement the right to have access to social security on demand. It had also been confirmed that the right to have access to social security is enforceable. This means the beneficiaries of this right may seek recourse from the courts of law when they are not satisfied about the progress relating to the implementation of the programmes relevant to the right to have access to social security. The right to have access to social security is also limited by section 36(1) of the Constitution. In the international arena, the right to have access to social security is recognised as the entitlement of everyone, but in some instances differential treatment can be made by the states. Such differential treatment should serve the legitimate state objective and all noncitizens should be treated equally.