Value-conscious interpretation of taxing provisions using ubuntu: An appropriate decolonised interpretive approach?

by | Oct 23, 2019 | SAMLJ, SAMLJ V30 I1

Value-conscious interpretation of taxing provisions using ubuntu: An appropriate decolonised interpretive approach?

Authors Fareed Moosa

ISSN: 1996-2185
Affiliations: Head of the Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 30 Issue 1, 2018, p. 71 – 90

Abstract

By virtue of section 39(2) of the Constitution of the Republic of South Africa, 1996, interpretation of tax legislation must occur on a principled basis through the prism of the Bill of Rights. Ubuntu is a constitutional value that informs the Bill of Rights’ spirit. Thus, ubuntu is a value that, where appropriate, may be used in the interpretation of fiscal legislation. Applying ubuntu when an ambiguous taxing provision is interpreted favours a finding that the provision is not to be interpreted contra fiscum, but rather against the taxpayer who must then pay the greater amount of tax permissible under the taxing provision, unless the taxpayer can show compelling reasons why a construction contra fiscum ought to be favoured.

The safeguards and protective measures for property owners during business rescue

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I1

The safeguards and protective measures for property owners during business rescue

Authors Maleka Femida Cassim

ISSN: 1996-2185
Affiliations: Associate Professor, Mercantile Law Department, University of Pretoria; Attorney and Notary Public of the High Court of South Africa.
Source: South African Mercantile Law Journal, Volume 30 Issue 1, 2018, p. 40 – 70

Abstract

It is an undeniable dilemma for a landlord or property owner to find its property in the possession of a company under business rescue. Not only does the tenant often remain in occupation of the leased premises during business rescue, but additionally fails to make ongoing payment of rent. The goals of business rescue must be carefully balanced with the prejudice caused to property owners by virtue of the moratorium during business rescue. The moratorium encroaches on the proprietary rights of third parties, who are unable to recover their property from a company during business rescue. My earlier article — MF Cassim (2017) 29/3 SA Merc LJ 419—focused on the effect of the moratorium on the property owner. The present article focuses on the protective measures available, and which ought to be available, for property owners whose property is in the possession of a company under business rescue. The safeguards built into the Companies Act 71 of 2008 for property owners are discussed. Guiding principles are proposed for the lifting of the moratorium in business rescue by both the courts and business rescue practitioners, first, for the repossession of property by the property owner, and second, for the recovery of current rent and other compensation by the property owner during business rescue. Whether post-commencement claims for rent have, and should have, a superpriority status as post-commencement finance or as an expense of the administration is also considered.

‘The truth is rarely pure and never simple’-what lessons can be learnt from the United States’ Employee Polygraph Protection Act of 1988?

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I1

‘The truth is rarely pure and never simple’-what lessons can be learnt from the United States’ Employee Polygraph Protection Act of 1988?

Authors Karmini Pillay, Muriel Mushariwa

ISSN: 1996-2185
Affiliations: Senior lecturer, University of Witwatersrand; Senior lecturer, University of Witwatersrand
Source: South African Mercantile Law Journal, Volume 30 Issue 1, 2018, p. 1 – 39

Abstract

The human desire to find the truth is ever present, particularly in the employment relationship where honesty and trust lie are crucial. Polygraph testing has become a common tool used by employers to identify deception by employees. Like the truth it seeks to elicit, polygraph testing is, however, not without complexity — controversy continues to surround the accuracy and admissibility of polygraph evidence. In South Africa, there is no legislation or Code of Practice to regulate the polygraph industry, save for certain statutory provisions that apply to the public sector. The Commission for Conciliation, Mediation and Arbitration (the CCMA) and the courts have largely had to feel their way around a limited legal framework to develop a set of principles — an ad hoc approach which has proved far from perfect. South Africa has reached a juncture where it is necessary to consider a legal framework with strict regulations aimed at establishing clear, acceptable, and recognisable standards which promote fairness and consistency. The Employee Polygraph Protection Act of 1988 (the EPPA) in the United States of America (the US) has proven a creditable statutory framework with fairly strong safeguards to protect certain employees. In this paper, we assert that the promulgation of legislation is the appropriate measure for South Africa. We adopt a comparative approach in which we analyse the US legal position with a view to outlining the legislative lessons that South Africa can adopt in developing a more consistent legal approach, one which takes account of the rights and interests of both the employee and the employer in the polygraph industry.

Case Notes: When the letter cannot speak: Determining the duration of the contract and whether dismissal has taken place: Mamelodi Sundowns Football Club (Pty) Ltd v Ngomane & Council for Conciliation, Mediation and Arbitration (unreported case no JR 2710/10) [2015] ZALCJHB 53

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

Case Notes: When the letter cannot speak: Determining the duration of the contract and whether dismissal has taken place: Mamelodi Sundowns Football Club (Pty) Ltd v Ngomane & Council for Conciliation, Mediation and Arbitration (unreported case no JR 2710/10) [2015] ZALCJHB 53

Authors Lux Kubjana

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 368 – 376

Abstract

None

Case Notes: Executing a judgment debt against immovable property occupied as a family home in customary law: Nedbank Limited v Molebaloa

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

Case Notes: Executing a judgment debt against immovable property occupied as a family home in customary law: Nedbank Limited v Molebaloa

Authors Reghard Brits

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 348 – 367

Abstract

None

Access to redress for consumers: A tale of the effect of a notice of non-referral by the National Consumer Commission

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

Access to redress for consumers: A tale of the effect of a notice of non-referral by the National Consumer Commission

Authors M A (Riette) du Plessis

ISSN: 1996-2185
Affiliations: Associate Professor, School of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 330 – 347

Abstract

The National Consumer Commission issued a notice of non-referral, whereafter the National Consumer Tribunal, in its judgment, misdirected itself on the applicability and interpretation of the CPA. This was corrected during a second hearing by a different panel of the Tribunal. The Tribunal’s arguments at the first hearing are discussed, with reference to both the CPA and common law. Referrals for assistance under sections 69, 70, 72 and 73, the inability of certain ombuds to enforce their decisions and the restrictions placed on provincial consumer protection authorities and consumer courts by section 84 are discussed. The consequences of the Commission’s decision no longer to investigate individual consumer complaints and its issuing of notices of non-referral may have the effect of matters not being escalated to the Tribunal. Consumers may as a result not be able to proceed with a civil action for damages because they will lack the necessary locus standi to bring such actions, as they may be denied access to the courts if they have not exhausted all other remedies as required by section 69(d) of the CPA.