Notes: The intersection between insolvency and tax avoidance

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Notes: The intersection between insolvency and tax avoidance

Authors: Thabo Legwaila & Carika Fritz

ISSN: 1996-2177
Affiliations: Professor of Law, University of Johannesburg; Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 139 Issue 4, p. 757-767
https://doi.org/10.47348/SALJ/v139/i4a2

Abstract

In the realm of taxation, the South African Revenue Service has the power to set aside (or alter) certain transactions to curb impermissible tax avoidance or to give effect to the substance of a transaction over its form. Equally, in the insolvency realm, the Insolvency Act 24 of 1936 provides for certain instances where a transaction can be set aside if it falls within the ambit of impeachable dispositions. In this note, we consider the intersection between insolvency and tax avoidance with specific reference to the overlap between voidable preferences and impermissible tax avoidance arrangements, on the one hand, and substance over form and dispositions not made for value, on the other hand. This analysis highlights the significance of the timeline of events. We argue that SARS would only be able to benefit from both the avoidance mechanism and the setting side of the impeachable disposition when the tax avoidance remedy precedes the sequestration or liquidation order and the subsequent setting aside of the impeachable disposition.

Notes: Who is a ‘parent’ for the purposes of the Intestate Succession Act? Wilsnach NO v TM

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Notes: Who is a ‘parent’ for the purposes of the Intestate Succession Act? Wilsnach NO v TM

Author: Michael Cameron Wood-Bodley

ISSN: 1996-2177
Affiliations: Senior Research Associate, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 4, p. 768-790
https://doi.org/10.47348/SALJ/v139/i4a3

Abstract

In Wilsnach NO v TM 2021 (3) SA 568 (GP) the court radically reinterpreted the meaning of the term ‘parent’ for the purposes of intestate succession, thereby excluding an unmarried father from inheriting from his deceased child as a ‘parent’, and permitting the child’s grandmother to inherit as if she were the child’s ‘parent’. The court achieved this outcome by finding that the provisions of the Children’s Act 38 of 2005 must inform our understanding of who a ‘parent’ is for the purposes of the Intestate Succession Act 81 of 1987. The note critically evaluates this judgment in the light of the historical development of the rules of intestate succession and the history of the legislation, identifies problematic issues arising from the judgment, and suggests an alternative way in which the father’s perceived unsuitability as an heir may have been achieved.

‘Miserable, laborious, and short’: The lives of animals

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

‘Miserable, laborious, and short’: The lives of animals

Author: D M Pretorius

ISSN: 1996-2177
Affiliations: Partner, Bowmans
Source: South African Law Journal, Volume 139 Issue 4, p. 791-836
https://doi.org/10.47348/SALJ/v139/i4a4

Abstract

Animal welfare legislation in South Africa is deficient, especially in relation to farm animals reared for ingestion by human beings. That being so, this article analyses aspects of public international law, administrative law, constitutional law and interpretation of statutes that may contribute towards affording more legal protection to such animals. An overview of recent case law highlights that the Constitutional Court has mandated a shift away from the traditional laissez-faire legal attitude to human use of animals towards one that requires enhanced protection of their interests. To that end, extensive legislative reform is necessary to rectify the deficiencies of the present system.

An introduction to proof in South Africa

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

An introduction to proof in South Africa

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 139 Issue 4, p. 837-861
https://doi.org/10.47348/SALJ/v139/i4a5

Abstract

The evaluation of evidence is a process about which not much is written, nor is it regulated as much as the comparable processes of admissibility and forms of presenting evidence are in South African evidence scholarship. This article follows the example set by Paizes by arguing for the introduction of a general theory of ‘proof’, which is used interchangeably with ‘evaluation’ in the article. After briefly introducing the existing doctrine, which consists mainly of a handful of the rules and guidelines that South African courts typically use to evaluate evidence, the article offers six justifications for the introduction of a general theory of proof in South African evidence scholarship. The third part of the article gives a methodological account of what is meant by a general theory of evidential proof in South African evidence scholarship. Part IV of the article comprises a discussion of the two foundational conditions required for a South African theory of proof.

Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs

Author: Jenny Hall

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of South Africa
Source: South African Law Journal, Volume 139 Issue 4, p. 862-886
https://doi.org/10.47348/SALJ/v139/i4a6

Abstract

The need for public participation in environmental decisions is accepted in both international and South African law. In the run up to, and just after, the transition to democracy, South Africa was exemplary in many instances in ensuring that participation occurred in a meaningful and broad-based way. In recent years, however, some may question whether the underlying rationale for public participation is still as valued by government, or whether it is being diluted to a mechanistic procedural requirement reminiscent of the past. Disputes about the way in which requirements to give effect to public participation are being implemented have recently surfaced in the courts in respect of several environmental issues. There has been strong public opposition to municipal service delivery regarding waste and water, seismic testing off the South African coast, and law-making activities regarding trout. This article considers the court’s oversight of public participation processes in respect of one of those issues — recent decisions on the introduction of executive regulations. It does so by tracing the particular dynamics regarding the need for public participation in South Africa and assessing the way in which the court has adjudicated public participation disputes in the law-making context. It finds that the court appears to be willing to play its oversight role in a way which is true to the underlying ethos of democratic decision-making in the environmental context, albeit that further opportunities for the court to consider the full range of matters involving participation should be welcomed.

Reimagining the right to engage in commercial activity on another’s land as a positive trading servitude

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Reimagining the right to engage in commercial activity on another’s land as a positive trading servitude

Author: Leigh-Ann Kiewitz

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of South Africa
Source: South African Law Journal, Volume 139 Issue 4, p. 887-912
https://doi.org/10.47348/SALJ/v139/i4a7

Abstract

This article shows that it could be theoretically possible to create a positive praedial trading servitude in the context of the right to trade on another’s land if certain established requirements are complied with when the doctrinal framework of South African law and s 63(1) of the Deeds Registries Act 47 of 1937 are applied. In light of s 63(1) of the Deeds Registries Act and the intention and subtraction from the dominium tests, it is conceivable that a positive trading right has the ability to burden land and to subtract from the servient owner’s entitlement of use and enjoyment of the land even in a physical sense. Therefore, such a right may be real and registrable. Furthermore, it is possible that a positive trading right could comply with the commonlaw criteria for the establishment of a praedial trading servitude. The article also examines the possible nature and content of positive personal trading servitudes. If parties do not negotiate for a positive praedial trading servitude, a personal servitude can be negotiated in favour of the beneficiary in his or personal capacity.