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

by | Dec 8, 2024 | SAMLJ, SAMLJ V36 I1

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

by | Dec 8, 2024 | SAMLJ, SAMLJ V36 I1

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

Authors: Lumen Moolman & Riaan 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)

by | Dec 8, 2024 | SAMLJ, SAMLJ V36 I1

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

None

Case note: The value of characterisation: Competition Commission v Irwin & Johnson & another (2022) 2 CPLR 26 (CAC)

by | Dec 8, 2024 | SAMLJ, SAMLJ V36 I1

Case note: The value of characterisation: Competition Commission v Irwin & Johnson & another (2022) 2 CPLR 26 (CAC)

Author: Damian Schmidt

ISSN: 1996-2185
Affiliations: Attorney at law in Stuttgart (Germany)
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 125 – 134
https://doi.org/10.47348/SAMLJ/v36/i1a6

Abstract

None

The 2007 Work in Fishing Convention as an instrument to combat coercive recruitment practices: A South African perspective

by | Dec 8, 2024 | JOGA 2022, JOLGA

The 2007 Work in Fishing Convention as an instrument to combat coercive recruitment practices: A South African perspective

Authors: N Hlazo and H Hamukuaya

ISSN: 2521-5442
Affiliations: LLB, LLM, LLD; Honorary research fellow, School of Law, University of KwaZulu-Natal, and Researcher, South African International Maritime Institute
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 1 – 21
https://doi.org/10.47348/JOGA/2022/a1

Abstract

The 2007 Work in Fishing Convention(C188) aims to ensure decent work conditions for fishers by establishing minimum work standards on board a fishing vessel. Despite the comprehensive nature of the C188, forced labour remains a pervasive challenge in the fisheries sector, exacerbated by the recruitment of vulnerable workers through deceptive practices. This article determines the extent to which South Africa’s current legal and regulatory measures comply with the C188 provisions relating to the recruitment and placement of fishers. The article concludes that there is a lacuna in South Africa’s legal framework in its obligation to regulate the recruitment and placement agencies of fishers, leaving them vulnerable to exploitation by unscrupulous recruitment agencies. The article suggests two possible solutions to effectively implement the provisions of the C188 relating to the recruitment and placement of fishers. One option is to amend the existing Seafarer Recruitment and Placement Regulations of 2017 to include fishers. Alternatively, new Merchant Shipping (Fisher Recruitment and Placement) Regulations could be drafted. These new regulations would align with the existing Seafarer Recruitment and Placement Regulations and could be promulgated under the Merchant Shipping Act of 1951 or its successor, thereby giving effect to the convention.

Integrated coastal management and marine spatial planning in South African law

by | Dec 8, 2024 | JOGA 2022, JOLGA

Integrated coastal management and marine spatial planning in South African law

Author: D Metuge

ISSN: 2521-5442
Affiliations: Senior Lecturer, University of Cape Town
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 22 – 44
https://doi.org/10.47348/JOGA/2022/a2

Abstract

South Africa’s national environmental management instruments, including the Integrated Coastal Management Act, 2008 (‘the NEM: ICMA’), provide statutory mechanisms for achieving cooperative governance in implementing environmental norms. Indeed, the NEM: ICMA provides for establishing integrated coastal management plans within the coastal zone, including South Africa’s coastal waters. In terms thereof, its provisions will prevail in the event of any conflict relating to coastal management. Moreover, the NEM: ICMA only requires that its provisions ‘be read, interpreted and applied in conjunction with the National Environmental Management Act, 1998 [NEMA]’. However, the recently adopted Marine Spatial Planning Act 2018 (MSPA) contains provisions that purport to override the provisions of any other instrument that conflicts with its requirements regarding plans that impact the marine environment. Certainly, it provides that ‘[a]ny right, permit, permission, licence or any other authorisation issued in terms of any other law must be consistent with the approved marine area plans’. This article explores the regulatory overlaps between the NEM: ICMA and the MSPA. It has identified potential areas of conflict with regard to the application of the NEM: ICMA, requirements for the approval of coastal management programmes and the contents thereof, coastal authorisations, coastal use permits, and coastal discharge permits. It confirms that the burden of regulatory consistency with marine spatial planning instruments and approved marine area plans is on other environmental instruments. It concludes with recommendations to prevent regulatory conflicts between the NEM: ICMA and the MSPA.

Book Review: The Development of the Law of the Sea Convention: The Role of International Courts And Tribunals

by | Dec 8, 2024 | JOGA 2022, JOLGA

Book Review: The Development of the Law of the Sea Convention: The Role of International Courts And Tribunals

Author: A Honniball

ISSN: 2521-5442
Affiliations: Research Fellow, Centre for International Law (CIL), National University of Singapore
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 45 – 55
https://doi.org/10.47348/JOGA/2022/a3

Abstract

None

Sentencing, human rights and the courts in Namibia: A consideration of S v Gaingob 2018 (1) NR 211 (SC)

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

Sentencing, human rights and the courts in Namibia: A consideration of S v Gaingob 2018 (1) NR 211 (SC)

Author: Nicole Januarie & Kennedy Kariseb

ISSN: 1996-2118
Affiliations: B Juris LLB LLM (Namibia); Legal Practitioner of High and Supreme Court of Namibia, Chief Legal Officer: High Court of Namibia; BJuris LLB (Namibia) LLM LLD (Pretoria); Senior Lecturer, Department of Public Law, School of Law, University of Namibia
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 171 – 190
https://doi.org/10.47348/SACJ/v37/i2a1

Abstract

With the attainment of independence in 1990, Namibia’s criminal justice system underwent several reforms, notably the abolition of the death penalty and corporal punishment. Sentencing thus took a different direction with fines, direct imprisonment and/or suspended sentences in part or whole, periodical imprisonment, declaration as a habitual criminal and committal to an institution, as the main sentencing formulae. Accordingly, the length of imprisonment for offenders may be determined as a result of legislative directives or as an exercise of judicial discretion. In its simplistic form, and as this article shows, the old case of S v Zinn 1969 (2) SA 537 (A), which the Namibian courts have adopted, proposes that the court has to look at the offender, the crime and the interest of society when proposing a balanced sentence for an offender. However, the influence of human rights, which was ushered in by a new constitutional framework, now also strongly affects the courts’ sentencing approach anchored in the Zinn triad. To this end, in S v Gaingob 2018 (1) NR 211 (SC) and Gariseb v S (P8/2015) [2024] NASC 8 (28 March 2024), the Namibian Supreme Court supplemented the principles of sentencing by introducing new reforms. Using a qualitative approach based on an anecdote of prevailing case law, this article found that despite concerted efforts towards a unified holistic sentencing approach by the courts, there exists several implications brought about primarily by the Gaingob decision and that there may be a need to address these gaps. Consequently, this article proposes several reforms that can possibly be considered in Namibia’s criminal justice system to rectify and clarify the challenges Gaingob and Gariseb pose for our courts and legal practice on a day-to-day basis.

A customary right to promote snuff? The implications of Gongqose v Minister of Agriculture, Forestry and Fisheries on tobacco regulations

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

A customary right to promote snuff? The implications of Gongqose v Minister of Agriculture, Forestry and Fisheries on tobacco regulations

Author: Mendy Khumalo

ISSN: 1996-2118
Affiliations: LLB LLM (UKZN); Lecturer, IIE Varsity College
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 191 – 208
https://doi.org/10.47348/SACJ/v37/i2a2

Abstract

The Tobacco Products Control Amendment Act 63 of 2008 introduced fundamental changes to the Tobacco Products Control Act 83 of 1993. This Amendment Act inserted ‘promotion’ in its definition section and prohibits such promotion in s 3(1)(a). The legislature defines ‘promotion’ as the practice of bringing awareness and inspiring a positive attitude towards a tobacco product for the purpose of encouraging tobacco use. The proposed Tobacco Products and Electronic Delivery Systems Control Bill provides for an even broader definition by including any form of communication, recommendation or action with the aim or effect of increasing the awareness of a tobacco product. The legislature’s definition of ‘promotion’ in the Tobacco Products Control Act, and the even more encompassing definition in the Tobacco Bill, effectively results in the criminalisation of customary practices which fall within the ambit of the aforementioned definitions. It is argued in this paper that the Gongqose judgment gives rise to a possible defence for persons charged with promoting snuff through customary practices.‘(Neuroscience) is one of those things that holds both promise and terror for the legal system.’

Criminal law in the wake of science – Can neuroscience inform criminal law? Medico-legal perspectives from South Africa

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

Criminal law in the wake of science – Can neuroscience inform criminal law? Medico-legal perspectives from South Africa

Author: Philip Stevens

ISSN: 1996-2118
Affiliations: LLB LLM LLD (Pretoria); Professor in Criminal Law, Department of Public Law, University of Pretoria
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 209 – 234
https://doi.org/10.47348/SACJ/v37/i2a3

Abstract

The role of science and, more specifically, medical science in explaining criminal behaviour has been acknowledged since time immemorial. With reference to the defence of pathological criminal incapacity within the context of substantive criminal law, the role of mental health sciences is well established. The defence of pathological criminal incapacity has historically been rooted within the fields of forensic psychiatry and psychology. Recently the role of neuroscience in assessing criminal responsibility has become an issue of academic and practical debate. A question that falls to be assessed is whether the time has arrived to open the door to other sciences, such as neuroscience, to supplement the traditional mental health science model to assess criminal responsibility properly. In this article, the defence of pathological criminal incapacity will be used as an example of an area within substantive criminal law where the role of science becomes crucial in assessing criminal responsibility. The historical context of this area of criminal law will be canvassed against the backdrop of advances made in neuroscience to provide an alternative perspective to the traditional model of mental health science. From a procedural perspective, issues relating to the admissibility of neuroscientific evidence will be addressed in order to illustrate both the substantive criminal law pertaining to the theme of discussion as well as the procedural aspects relating to the theme.
‘(Neuroscience) is one of those things that holds both promise and terror for the legal system.’