Can a trust be regarded as a person for purposes of a double-taxation agreement to which South Africa is a party?

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Can a trust be regarded as a person for purposes of a double-taxation agreement to which South Africa is a party?

Authors Izelle du Plessis

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of Stellenbosch
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 907 – 927

Abstract

Like so many other entities, trusts often do not function only in one jurisdiction. They may be employed in international transactions, and therefore the trust runs the risk of international double taxation, as do the parties to the trust. South Africa has developed a law of trusts that is unique to this country. It therefore has to be determined how a court would interpret and apply the provisions of a double-taxation agreement, patterned on the OECD Model Tax Convention and to which South Africa is a party, to such a trust. This article explores whether a trust may be regarded as a person for purposes of such a double-taxation agreement. If a trust cannot show that it is a person in terms of the relevant double-taxation agreement, it will not be able to claim the benefits of the agreement. Although it is concluded that a trust will be regarded as a person from a South African perspective, recommendations are made which will put the matter beyond doubt.

The abandonment of landownership in South African and Swiss law

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

The abandonment of landownership in South African and Swiss law

Authors Richard Cramer

ISSN: 1996-2177
Affiliations: Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 870 – 906

Abstract

The possibility of the abandonment of land in South African law has received relatively little attention from academics. This article seeks to engage with the arguments proposed by academics who have written on this question in order to attempt to bring some clarity to the issue. Whether abandonment of ownership in land is possible needs to be determined from an evaluation of the relevant common-law principles as well the relevant provisions of the Deeds Registries Act 47 of 1937, in light of the principle of publicity. It is not, however, sufficient to determine whether abandonment of land is possible. It also needs to be asked whether such abandonment should be permitted in the first place and, if so, in what circumstances. In order to answer these questions, it is useful to engage in comparative research. Switzerland provides an example of a jurisdiction with a permissive regime in respect of the abandonment of land (Dereliktion). While there are a number of lessons that can be learnt from the Swiss approach, its permissive model is not necessarily an ideal one for South Africa to adopt.

Whose knowledge is it anyway? Traditional healers, benefit-sharing agreements and the communalism of traditional knowledge of the medicinal uses of plants in South Africa

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Whose knowledge is it anyway? Traditional healers, benefit-sharing agreements and the communalism of traditional knowledge of the medicinal uses of plants in South Africa

Authors Emeka Polycrap Amechi

ISSN: 1996-2177
Affiliations: Senior Lecturer, Bowen University, Iwo, Osun State; Former Postdoctoral Fellow, Department of Jurisprudence, College of Law, University of South Africa
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 847 – 869

Abstract

Traditional knowledge on the medicinal uses of plants (‘TKMUP’) is regarded mostly as a form of communal property in South Africa. This is despite the fact that the use and nurturing of such mostly confidential or specialist knowledge within the traditional knowledge (‘TK’) system is usually the preserve of traditional healers. Understandably, there are socio-cultural reasons for the communality of TKMUP in South Africa. However, the communal nature of TK raises two particular issues that may not augur well for the economic interests of traditional healers in the commercialisation of this knowledge. These are that a traditional healer cannot patent the knowledge, except perhaps with the consent of his or her community; and that the benefits arising from the commercial exploitation or commercialisation of the knowledge will go to the community or, at the very best, that the interests of the traditional healers in profiting from such endeavour will be tied to that of their community. The latter implies that traditional healers would only benefit from such commercialisation when their indigenous communities decide to pass on the externally generated incentives to them. This scenario seems improbable, considering the various complaints about the current state of traditional-leadership structures in South Africa. This article examines this concept of communality of TKMUP, particularly as it relates to the sharing of benefits arising from the commercialisation of indigenous knowledge in South Africa.

Individual issues and the class-action mechanism: Determining damages in single-accident mass personal injury class actions

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Individual issues and the class-action mechanism: Determining damages in single-accident mass personal injury class actions

Authors Theo Broodryk

ISSN: 1996-2177
Affiliations: Senior Lecturer and Manager: Legal Aid Clinic, Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 824 – 846

Abstract

In a personal injury class action, the extent of the injuries and the quantum of damages suffered by each member are individual issues. The problem is that in a personal injury class action, if the class consists of a large number of victims and each victim is required to present oral evidence to prove his or her damages individually, the trial may take years to conclude, and some claimants could possibly pass away by the time the court delivers judgment. It would overburden proceedings and cause undue delay. Accordingly, it is necessary, in such circumstances, to utilise alternative innovative, practical and time-efficient procedures that would enable the determination of each individual’s damages. Our courts have not properly considered the approach to be followed when determining damages in mass personal injury class actions. This article evaluates certain alternative methods to determine damages in mass personal injury class actions in view of the existing procedural framework developed by our courts, with specific regard to the approaches followed by certain foreign jurisdictions.

Towards a South African free-speech model

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Towards a South African free-speech model

Authors Joanna Botha

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, Nelson Mandela University
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 778 – 820

Abstract

The scope of the right to freedom of expression, including the regulation of hate speech and an appropriate threshold test for a legislated hate-speech offence, are contentious issues. In this article the legitimacy of hate-speech regulation in South Africa is explored from a jurisprudential perspective by examining the rationales justifying the constitutional entrenchment of freedom of expression. The aim is to establish a clear and meaningful standard to guide the discussion around the reform of South Africa’s hate-speech laws and to create a conceptual framework for the development of an appropriate threshold test for a criminal hate-speech regulator. The article demonstrates that the correct approach to South African free-speech theory is to emphasise the social dimension of freedom of expression and the impact its exercise has on the rights of others, including the dignity of target groups, and the advancement of social connection, cohesion and diversity. A communitarian model of free speech is recommended; one that is reflective of the transformative constitutional mandate and which provides an enabling framework to facilitate the enactment of constitutionally sound legislation for the regulation of hate speech in South Africa.

Exploring the relationship between the environmental right in the South African Constitution and protection for the interests of animals

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Exploring the relationship between the environmental right in the South African Constitution and protection for the interests of animals

Authors David Bilchitz

ISSN: 1996-2177
Affiliations: Professor, Fundamental Rights and Constitutional Law, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 740 – 777

Abstract

This article considers the relationship between the environmental right in the South African Constitution, 1996 and the protection of the interests of animals. The question is addressed through articulating two interpretive approaches to the terms ‘conservation’ and ‘sustainable use’. The ‘aggregative approach’ — which has been the dominant policy approach adopted by the legislature and executive — focuses on broad collective environmental goals such as the long-term survival of a species, the health of ecosystems, or conserving biodiversity. The ‘integrative’ approach, by contrast — which has recently been referenced with approval by the Constitutional Court — requires the adoption of an attitude of respect to the individuals that make up a species, an ecosystem or the components of biodiversity. The article makes several arguments as to why the integrative approach is preferable, and attempts to demonstrate that the aggregative approach is self-defeating in its own terms. The practical implications of the differences between these abstract approaches are illustrated by considering two recent controversies in interpreting environmental legislation. This article thus sets itself the ambitious purpose of connecting two sets of discourses that often talk past each other in developing the interpretation of the environmental right in the South African Constitution.