The importance of economy, commerce, legal certainty and socioeconomic development for promoting the constitutional vision

The importance of economy, commerce, legal certainty and socioeconomic development for promoting the constitutional vision

Authors: Fuaad Alie & Chris Pretorius

ISSN: 1996-2185
Affiliations: LLM Graduate, University of South Africa; Professor, Department of Private Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 1 – 40
https://doi.org/10.47348/SAMLJ/v36/i1a1

 Abstract

The importance of the economy in South African socioeconomic development and for achieving the objectives set by the constitutional vision, can never be underestimated. To understand the relationship that exists between the economy and socioeconomic development, the simple mechanics of how production, income and spending in a basic mixed economy operate are briefly explained. There is a significant relationship between the economy, commerce, socioeconomic development, legal certainty, and substantive equality all of which can conceivably work harmoniously together to create a truly egalitarian society. However, some key threats that are hindering the achievement of the constitutional vision are unemployment, poor economic growth, corruption within the private and public sectors, as well as the Covid-19 pandemic. The economy and commerce have a major role to play on socioeconomic development in South Africa, by contributing to socioeconomic development and reform and the longer-term development of an egalitarian society. To achieve the constitutional vision of creating an equal and prosperous South African society, both business and government have a very important role to play. Therefore, the important role of business and the commercial need for legal certainty in contracts is critical.

Situating liability for patent infringement by Artificial Intelligence Systems in South Africa

Situating liability for patent infringement by Artificial Intelligence Systems in South Africa

Authors: Tshimangadzo Donald Mukwevho & Desmond Osaretin Oriakhogba

ISSN: 1996-2185
Affiliations: Lecturer, University of Kwazulu-Natal; Associate Professor, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 41 – 58
https://doi.org/10.47348/SAMLJ/v36/i1a2

Abstract

South Africa remains the only country that has granted a patent in respect of an application that named an artificial intelligence (AI) system as the inventor. This follows the decision by the Companies and Intellectual Property Commission in 2021, granting Dr Stephen Thaler a patent over inventions created by his AI machine — Device for the Autonomous Bootstrapping of Unified Sentience (DABUS). This decision has subsequently received condemnation, as well as applause, from various scholars. Adding to the criticisms against granting patents with AI named as the inventor/s, it remains a question as to who should be held liable for patent infringement by AI systems, and if anyone is to be held liable, how the liability thereof should be assessed. This flows from the premise that the development, training, and the ‘inventive’ activities of AI inevitably involve access to patent-protected data or information for which authorisation from the patent owner may not have been obtained. Conducted through desktop research, and drawing from the delictual (tort) principle of causation, this article probes into and addresses questions around the liability for patent infringement by AI systems in South Africa.

Exploring South African tax consequences of compensation received by amateur rugby players

Exploring South African tax consequences of compensation received by amateur rugby players

Authors: Danielle van Wyk & Cara Thiart

ISSN: 1996-2185
Affiliations: Senior Lecturer in Accounting at the School of Accountancy, Faculty of Economic and Management Sciences, University of Stellenbosch; Lecturer in Taxation at the School of Accountancy, Faculty of Economic and Management Sciences, University of Stellenbosch
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 59 – 86
https://doi.org/10.47348/SAMLJ/v36/i1a3

Abstract

Both professional and amateur rugby players participate in community rugby. There is currently no guidance in the South African literature that expressly addresses the possible tax consequences of compensation received by amateur rugby players, if any. The objective of this article is therefore to explore the potential tax consequences of such compensation. The research approach entails an exploratory study, adopting a qualitative research approach in the form of an extensive literature review and an international comparative analysis. The study provides contradictory insights on the common perception that compensation received by amateur rugby players has no tax implications in South Africa. The study found that contracted amateur rugby players are considered employees of community rugby clubs and their compensation, depending on the nature, is in most instances taxable. Non-contracted amateur rugby players whose compensation consists of only the reimbursement of bona fide expenses are not considered employees of community rugby clubs, although reimbursements received may be subject to taxation. The findings are compared to current taxation practices of sports players in Australia, New Zealand, Singapore, and the United Kingdom. The research is valuable to amateur rugby players and community rugby clubs to ensure tax compliance and improved compensation practices.

The application of section 8c of the Income Tax Act 58 of 1962 in the context of trust structures

The application of section 8c of the Income Tax Act 58 of 1962 in the context of trust structures

Authors: Lumen Moolman & Riaanj Wessels

ISSN: 1996-2185
Affiliations: Partner, Webber Wentzel; Senior lecturer, Department of Accountancy, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 87 – 111
https://doi.org/10.47348/SAMLJ/v36/i1a4

Abstract

Broadly, section 8C of the Income Tax Act 58 of 1962 seeks to tax directors and employees at revenue rates on certain amounts arising in the context of the ownership of shares or instruments deriving their value from shares (ie, ‘equity instruments’ as defined in section 8C). Paragraph (c) of the ‘equity instrument’ definition was introduced into section 8C(7) with the purpose of ensuring that employees cannot avoid the consequences of section 8C by interposing an intermediary entity between themselves and the shares to which their incentives or remuneration are linked. In terms of paragraph (c) of the ‘equity instrument’ definition, the ambit of section 8C was extended to include ‘any contractual right à the value of which is determined directly or indirectly with reference to a share’. This study considered the application of paragraph (c) of the ‘equity instrument’ definition in the context where an employee receives a contractual right, the value of which is derived from shares as well as non-share-related assets. Based on the wording of section 8C, read in the overall context and purpose of the provision, an interpretation where section 8C applies either fully to a contractual right (where the majority of the assets are shares) or not at all (where the minority of the assets are shares) seems to best marry all the relevant factors.

Case note: Circumventing section 7(8)(a)(i) of the Divorce Act 70 of 1979 and section 37d of the Pension Funds Act 24 of 1956 through strategic resignation: CNN v NN2023 (5) SA 199 (GJ)

Case note: Circumventing section 7(8)(a)(i) of the Divorce Act 70 of 1979 and section 37d of the Pension Funds Act 24 of 1956 through strategic resignation: CNN v NN2023 (5) SA 199 (GJ)

Authors: Tumo Maloka & Koma Ramontja

ISSN: 1996-2185
Affiliations: Professor at University of Pretoria; PhD Candidate—National University of Lesotho
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 112 – 124
https://doi.org/10.47348/SAMLJ/v36/i1a5

Abstract

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