Protecting taxpayer information from the public protector – A ‘just cause’?

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Protecting taxpayer information from the public protector – A ‘just cause’?

Author: Fareed Moosa

ISSN: 2521-2575
Affiliations: Associate Professor at the Department of Mercantile & Labour Law, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 190 – 211
https://doi.org/10.47348/JCCL/V6/i2a7

Abstract

Under the Tax Administration Act, 2011 (TAA), taxpayers enjoy a right to privacy of information disclosed to the South African Revenue Service (SARS). This note shows that tax officials are obliged to protect the secrecy thereof. It is argued that the Commissioner for the SARS correctly resisted compliance with a subpoena issued by the Public Protector for access to the records of former President Jacob Zuma. If it acquiesced without objection, shock waves would have reverberated through South Africa’s tax community. It is contended that the Commissioner’s decision to maintain taxpayer secrecy under pain of a potential criminal sanction contributed to restoring some of the lost confidence and respect for the SARS which has, in recent times, endured reputational damage owing to internal squabbles which morphed into public scandals. This note hypothesises that CSARS v Public Protector is good authority for the proposition that governmental departments and state institutions not expressly mentioned in s 70 of the TAA do not have statutory rights of access to taxpayer information and must, to gain access, follow due process. This note argues that the judgment in casu is not only a victory for taxpayer rights but also for the rule of law.

Section 165(5)(b) of the Companies Act 71 of 2008: A discussion of the requirement of good faith

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Section 165(5)(b) of the Companies Act 71 of 2008: A discussion of the requirement of good faith

Author: Darren Subramanien

ISSN: 2521-2575
Affiliations: Senior Lecturer School of Law (PMB) University of Kwa-Zulu Natal
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 212 – 232
https://doi.org/10.47348/JCCL/V6/i2a8

Abstract

In terms of s 165(5)(b) of the Companies Act 71 of 2008, ‘the court must be satisfied that the applicant is acting in good faith’; that ‘the proceedings involve the trial of a serious question of material consequence to the company’; and that it is ‘in the best interests of the company’ that the applicant(s) be granted leave. The legislature has chosen to provide guiding criteria that are vague and general rather than detailed legal steps for the exercising of judicial discretion. It would therefore be open to the courts to provide an interpretation of the words found in s 165(5)(b) especially regarding the good faith requirement. This article discusses the requirement of good faith. The interpretation and application of the good faith requirement found in s 165(5)(b) will ultimately determine the success or failure of the new statutory derivative action as an adequate remedy for aggrieved applicants who may seek redress on the company’s behalf, if the company or those in control of it improperly fail or refuse to do so. The comparable sections in the law of the United Kingdom will be evaluated in order to determine whether it is feasible to transplant selected rules and principles into South African law.

Mitigation of political risks in infrastructural project finance in African countries

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Mitigation of political risks in infrastructural project finance in African countries

Authors: Olusegun Gbede and Peter Kayode Oniemola

ISSN: 2521-2575
Affiliations: Lecturer, School of Business & Law, University of East London, United Kingdom; Legal practitioner and Lecturer in the Department of Commercial and Industrial Law, University of Ibadan, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 233 – 250
https://doi.org/10.47348/JCCL/V6/i2a9

Abstract

Political risks have adversely affected project financing in African countries. There are instances of risks in the state hosting project that may negatively affect the bankability of the project. They include nationalisation of assets, spontaneous changes in laws and regulations by the government, wars, and terrorism etc. Investors require assurance to participate in project finance. Guarantee by the government on the stability of the polity is required. The government may also give assurances through legal measures, stabilisation clauses and guarantees to the effect that the regulatory environment of the project will be stable. This article examines infrastructural project finance in relation to political risks, with specific emphasis on African countries. Therefore, beyond assurance from the government, political risk mitigation instruments developed internationally can be employed. This article also elaborates the emergence of instruments/ mechanisms that have been developed internationally to mitigate political risks. These instruments include partial risk guarantees offered by international financial institutions, political insurance guarantees and export credit guarantees. It calls for the utilisation of these instruments and recommends that countries should tailor their regulatory regime to accommodate them. It contends that with the existence of these guarantees; the government has a role to play in creating a favourable legal regime and framework that will admit their utilisation within the legal system.

Musings on the legal framework for resolution of foreign investment disputes in Nigeria

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Musings on the legal framework for resolution of foreign investment disputes in Nigeria

Author: Princess Pat Ada Ajudua

ISSN: 2521-2575
Affiliations: Legislator, Delta State House of Assembly, Asaba, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 251 – 259
https://doi.org/10.47348/JCCL/V6/i2a10

Abstract

Resolution of dispute arising from foreign investments in Nigeria is achieved through non-judicial and judicial mechanisms, otherwise known as arbitration and litigation in courts. Foreign investors are expected to seek redress using one of the aforementioned mechanisms. Although the principles of public international law seem to be in contention with the business interests of an investor and the host country, there has been a rapid growth and development in investment arbitration as a trade dispute resolution mechanism in the past years, and the courts in Nigeria, through her decisions, have made pronouncements regarding the disputes from foreign investments. Consequent to this, it has become critically important for investors, solicitors, professional service providers and trainers, to understand the intricate legal elements involved in the resolution of disputes involving foreign investment. This study examines the legal framework for resolution of foreign investment disputes in Nigeria. Concepts such as nationalisation and expropriation of foreign investments, stability clauses and foreign investment disputes, renegotiating and the stability of contractual agreement as well as legal infrastructure were discussed and fully analysed.