Revisiting the Tswelopele remedy: A critical analysis of Ngomane v City of Johannesburg Metropolitan Municipality

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

Revisiting the Tswelopele remedy: A critical analysis of Ngomane v City of Johannesburg Metropolitan Municipality

Author Z T Boggenpoel

ISSN: 1996-2177
Affiliations: Professor in Public Law, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 3, p. 424-438

Abstract

This note analyses the judgment in Ngomane v City of Johannesburg Metropolitan  Municipality from the perspective of property law and constitutional property  law. It highlights the tendency of South African property law to compartmentalise  remedies into common-law, legislative and constitutional remedies, especially in the  case of remedies for violations of constitutional rights. It is argued that the interplay  between remedies from different sources of law should not be overlooked, but in fact  renegotiated every time the possibility arises that existing common-law remedies can  be used to give effect to constitutional rights. The note also reconsiders the court’s  conclusion that constitutional damages be awarded for the infringement of the property  clause (s 25 of the Bill of Rights), and argues that a more principled discussion was  necessary in the judgment in order to conclude that there was in fact an infringement  of s 25(1). The note suggests that although the judgment should be welcomed for  vehemently speaking out against the violation of constitutional rights, the case could  certainly have benefited from a more principled and clear discussion of the interplay  between constitutional and common-law remedies on the one hand, and the violation  of the constitutional right to property, on the other hand. 

The South African Constitution and the human-rights obligations of juristic persons

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

The South African Constitution and the human-rights obligations of juristic persons

Author Bonita Meyersfeld

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 137 Issue 3, p. 439-478

Abstract

The South African Bill of Rights binds both state actors and, in certain cases, natural  and juristic persons. Horizontality extends the ambit of the Constitution beyond  the regulation of the state, to include private persons. This article proposes that in  certain circumstances horizontality may include situations where private persons,  in particular, juristic persons, are required to commit financially to the fulfilment of the  socio-economic rights of indigent people. 

Tax and transfer pricing: Determining the meaning of ‘associated enterprises’ in South African domestic law

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

Tax and transfer pricing: Determining the meaning of ‘associated enterprises’ in South African domestic law

Author Reinhard Rudd

ISSN: 1996-2177
Affiliations: Senior Lecturer, School of Accountancy, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 137 Issue 3, p. 479-500

Abstract

Section 31 of the Income Tax Act 58 of 1962 has been amended so that the transferpricing provisions apply not only to ‘connected persons’, but also to ‘associated enterprises’ as defined in art 9 of the Model Tax Convention on Income and Capital of the Organisation for Economic Co-operation and Development (‘OECD MTC’). A question that arises is how ‘associated enterprises’ should be interpreted in the context of South African domestic law. Several difficulties arise regarding the interpretation. First, the purpose of art 9 of the OECD MTC is unclear, making it difficult to determine how it should be interpreted. While some are of the view that it is a charging provision in its own right, others see it as a provision that merely allows for domestic transfer-pricing rules to be applied. Secondly, neither the MTC nor its Commentary provides any detailed guidance about how the definition of associated enterprises in art 9 should be interpreted. In light of art 3(2), another difficulty that arises is whether art 9 should be interpreted in a treaty context, or with reference to domestic law. In light of the uncertainty regarding the interpretation of art 9, it is recommended that the associated enterprises definition not be used as a basis for broadening the scope of s 31.

Evidentiary and procedural issues relating to the Prevention of Organised Crime Act

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

Evidentiary and procedural issues relating to the Prevention of Organised Crime Act

Author D C van der Linde

ISSN: 1996-2177
Affiliations: Senior Lecturer, North-West University
Source: South African Law Journal, Volume 137 Issue 3, p. 501-527

Abstract

This article evaluates the evidentiary and procedural issues brought about by the Prevention of Organised Crime Act 121 of 1998 (‘POCA’). The promulgation of POCA has brought about several deviations from established evidentiary and procedural rules that have been developed to protect the accused from an unfair trial by disregarding specific categories of potentially prejudicial evidence. The rationale for deviating from these established principles is to assist in the fight against organised crime by alleviating the state’s evidentiary burden by allowing for similar-fact evidence, evidence of prior convictions, and hearsay evidence. The reasons underlying these rules will be considered to establish whether POCA invades these protections against prejudicial evidence and, if so, whether this is constitutionally justifiable or, if not, what remedial steps could be taken. In addition to the aforementioned procedural and evidentiary issues, certain textual anomalies regarding POCA will also be considered.

Shape up or ship out! — On establishing that a shape has ‘acquired distinctiveness’ for trade mark purposes

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

Shape up or ship out! — On establishing that a shape has ‘acquired distinctiveness’ for trade mark purposes

Author Michael Tsele

ISSN: 1996-2177
Affiliations: BA LLB (Rhodes)
Source: South African Law Journal, Volume 137 Issue 3, p. 528-564

Abstract

This article concerns a controversial topic in trade mark law: the proper test that must be applied when determining whether a shape mark has acquired distinctiveness. The first part traces the source of the controversy and analyses recent developments in comparative jurisdictions to unpack the nuances in the debate as to the proper approach to establishing acquired distinctiveness. Here I argue that there are, in fact, no less than three different tests. I then consider the position in South Africa, particularly in the light of the Supreme Court of Appeal’s decision in Société des Produits Nestlé SA v International Foodstuffs Co [2015] 1 All SA 492 (SCA). I aim to debunk some misconceptions particularly with respect to claims that South Africa is now out of line with Europe, inter alia because the SCA has abandoned a standard set in Beecham Group Plc v Triomed (Pty) Ltd 2002 (4) SA 193 (SCA). I take a different perspective. First, I contend that Beecham itself is now questionable authority, given recent developments in trade mark law. Secondly, contrary to several commentators’ views, the Beecham test is different from the test currently favoured in the United Kingdom and Europe. Finally, I suggest how the Supreme Court of Appeal could clarify the proper standard to be applied in South Africa when determining whether a shape mark has acquired distinctiveness.