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.

Tax avoidance through interest deductions has been highlighted internationally as a concern with the effect of eroding tax revenues of countries, including South Africa (SA). The evident cause of this concern is what is termed base erosion and profit shifting (BEPS) mainly orchestrated by multinational companies using aggressive tax planning schemes. Although the concern continues to exist, comprehensive measures are in place in SA such as the anti-avoidance rules and exchange control regulations to mitigate the concern. The study was undertaken to analyse the legislation on interest deductions in terms of the Income Tax Act No 58 of 1962 (‘the Act’) with particular focus on anti-avoidance. A number of issues pertaining to the operation of the provisions in the Act; administrative challenges as well the possible exploitation of loopholes within the provisions were identified. Furthermore, a comparative analysis conducted against Australia and the United Kingdom indicated that the measures adopted in SA are relatively similar, if not ahead. The effect the anti-avoidance measures have on the economic growth was considered. The results were positive in that the measures do not counteract the pursuit of economic growth. Lastly, the study assessed the position of SA against the internationally recommended best practice on the subject matter and it became evident that opportunities exist to improve the current measures applied in SA to mitigate the BEPS risks through interest deductions.

Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.

Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.

Economies worldwide have become more integrated and competitive due to the phenomenon of globalisation and its antecedents, which are improved technological communication, the use of technology in production, ever improving management of skills as well as standards of education. Amongst the consequences have been changing demands and rising expectations in terms of employee remuneration, job security and conditions of work. This has at the same time been accompanied by employers expecting greater profit. Against this backdrop, this treatise seeks to interrogate and to explain the processes that should constitute fair, rational and justifiable employee dismissal for operational purposes. This is done bearing in mind the global economic crisis and its impact on employees. The treatise constitutes an attempt to carve a cushioning mechanism for employees in the midst of the global economic storm. We consider the inadequacies of common law principles. We also submit that section 189 in its present form and its application by courts do not provide for substantive fairness interrogation when dealing with dismissal for operational reasons. We explore the legislative framework, interpretation by leading academics as well as applications by courts of section 189A, which prescribes that if dismissal is based on operational reasons, consideration must not only be based on substantive and procedural fairness but also that proper consideration of alternatives must have been explored before dismissal is effected.

The aim of this treatise is to provide an analysis of the tax implications of making use of limited real rights in tax planning. In order to understand the tax implications of making use of limited real rights it is necessary to understand the nature and legal form of these rights. The importance of this understanding lies in the determination of the tax legislation applicable to the right in question, and the subsequent tax implications. The next step in working through an analysis of the tax implications of making use of limited real rights is therefore to define the scope of applicable legislation. This required an analysis of the scoping provisions of our tax legislation. Once the scope of applicable legislation had been defined, it was then possible to move onto an analysis of the application of the legislation identified to the various “stages” of limited real rights. The conclusion from this analysis is that the tax implications of making use of limited real rights are spread fairly broadly across several different pieces of legislation, and need to be carefully and fully considered when making a decision to make use of limited real rights in a tax planning strategy. The conclusion on the analysis of certain selected tax planning strategies that make use of limited real rights is that it is possible to make fairly substantial cash flow savings when deciding to implement a particular strategy which makes use of limited real rights. But, that use of these strategies is not without risk. For example, SARS may examine a particular strategy in terms of the “new” GAAR. The financial implications of the successful application of the GAAR may be disastrous to the taxpayer, and the tax planner will need to have considered and advised on the possibility of such a challenge from SARS. In addition, in some of the strategies, there are risks associated with the anticipated life expectancy of parties to the tax plan being shorter than anticipated. The conclusion is that the use of limited real rights in tax planning can be effective and provide savings, but that the use of such a strategy requires, inter alia, a very careful consideration of the interaction and application of our tax legislation to the strategy.