Thesis (Ph.D.)--University of Wollongong, 2005. / Typescript. Includes bibliographical references: leaf 264-292.

Originally presented as the author's Thesis (doctoral)--Universität Trier, 2004. / Includes bibliographical references (p. 327-344).

Zugl.: Göttingen, Universiẗat, Diss., 2002. / Literaturverz. S. 329 - 354.

Thesis (doctoral)--FernUniversität in Hagen, 2008. / Description based on print version record. Includes bibliographical references (p. [404]-423).

Thesis (doctoral)--FernUniversität in Hagen, 2008. / Description based on print version record. Includes bibliographical references (p. 314-339).

Zugl.: Halle (Saale), Univ., Diss., 2008

This thesis examines the concept of EU corporate tax abuse in light of the tensions between the protection of EU Fundamental rights and the susceptibility of those rights to abuse. Consideration is given to the major tax abuse practices and arrangements, accompanied by analyses of the responses of a selection of EU member states, and the role and impacts of judicial, state and commercial stakeholder interests. Consequent upon an examination of why past proposals have failed to attain either policy adoption or policy success, it is suggested that the legal concepts of abuse of rights, substance over form and proportionality may be of value in assessing and validating a corporate tax abuse proposal. It will be argued that Member State tax rules and policy initiatives to date have been unsuccessful in eradicating the effects of corporate tax abuse deriving from the exploitation of Fundamental Freedoms and that this failure is attributable to reasons of poor transactional data lineage and disclosure, unresolved political and judicial conflicts between balancing Member State rights with the Internal Market ideal and from a corporate culture that is incentivised to circumvent tax rules with limited recourse. Following an assessment of whether reform should focus on transactional based tax rules or on a broader legal framework to induce taxpayer behavioural changes, it is contended that EU corporate tax abuse can be addressed by rejecting the traditional ideals of tax harmonisation, formulary apportionment, and principles or rule-based tax law approaches as a complete solution. An effective scheme of reform should instead be based on Enhanced Disclosures and Attestation incorporating country-by-country reporting, additional reporting metrics and legal attestations, underpinned by civil and criminal penalties.

LL.D. / The Constitution of the Republic of South Africa 108 of 1996 provides in Section 34 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 court, or where appropriate, another independent and impartial tribunal or forum. A fair civil trial that includes a fair judgment can only be achieved if the parties to the action receive fair treatment throughout all the stages of the proceedings. Obviously the concept "trial" cannot be given a narrow interpretation. There can hardly be mention of a "fair trial" if the processes that precede the trial since commencement of the litigation cannot also be construed as fair. In providing the procedures whereby a fair civil trial is facilitated, apart from providing effective mechanisms for the enforcement of substantive rights and obligations, the interrelated concepts of time, effectiveness and costs are pivotal. In an attempt to secure a fair civil trial, the preparation for trial stage plays a very important role. It is, however, a reality of the South African litigation milieu that hundreds of cases are postponed on a daily basis as a result of problems that are related to specific pretrial procedures. The indications that the pre-trial procedures per se need to be revised and where necessary, be reformed, are consequently rife. There is also no comprehensive procedural structure in place in South African law in terms of which the parties can co-operate in order to effectively facilitate pre-trial preparation. An aspect of the pre-trial procedure that often leads to delay and unnecessary escalation of costs is the excessive amount of party control (or lack thereof) during the preparation for trial stage. Pivotal to reform of the pre-trial procedures is thus the question whether it serves any purpose to leave this stage to the "mercy of the parties". It can hardly be argued that retaining the element of surprise as part of a strict adversary litigation character yields any real advantage. Legal reform is not a process that can be undertaken in vacuo and any attempts at reform in the preparation for trial stage must consequently bear the following considerations in mind: costs, delay, the degree of complexity of procedures, formulation, time limits and sanctions, the impact of the principle of fairness, the impact of party control and circumstances peculiar to a particular legal system. It is furthermore important that such reform should be undertaken in accordance with an expressly declared ethos. Where there is no clear congruence between the reform ethos and the needs of a specific legal system it will inevitably lead to reform which, although it may be new, might not necessarily address and improve existing problems. Legal reform, even if it is of limited scope, should always be a logical, purposive process. In this respect comparative study of Anglo- American systems are invaluable. It is of great importance that individual pre-rial procedures should be reformed in order to facilitate cost and time effective preparation for trial. Various problems exist in respect of discovery and attention should urgently be given to the lack of uniformity between the High Courts and the Magistrates Court, the non-compulsory nature of the procedure, the effectiveness of time limits and sanctions, the wording of the rule and the question whether the concept "document" should be elaborated upon. Provision should also be made in the South African Law of Civil Procedure for exchange of witness statements prior to trial. Exchange of expert evidence ought also to be reformed in order to address the problematic time aspect, the obligation to give notice, the contents of the summary, the discussion between experts and the lack of sanctions prior to the trial date. Reform of the pretrial conference should also be undertaken in order to emphasize its legitimate place as a stocktaking procedure prior to trial. It is furthermore necessary to address the problems regarding the pre-trial conference that relate to the lack of uniformity in the High Court and Magistrate's Court, the attitude of the legal profession, the stage at which the conference must be held, the question regarding who should preside at the conference and the lack of effective sanctions. Reform of the individual pre-trial procedures, whether piecemeal or as a comprehensive once-off reform, is, however, per se not sufficient to ensure a level of trial preparation that will eventually lead to a fair civil trial. The individual pre-trial procedures are separate though interrelated links that can only fulfill their purpose if the greater more holistic approach to civil procedure gives structured recognition to orderly, time and cost effective litigation. It is, therefore, essential that the individual pre-trial procedures should function within the framework of a case management system that can play a significant role in achieving the ideal of a constitutionally fair civil trial in that it establishes a coordinated and procedurally fair preparation for trial stage. The eventual success of such reform will, apart form the provision of effective individual pre-trial procedures and an effective case management model, also depend on the materialization of a sufficient budget to create an infrastructure of computers and trained personnel as well as a mentality shift on the part of lawyers in order to discard their old adversary cloak in exchange for more effective transparant litigation and eventually, a fair civil trial.

Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.

This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.