Income tax-related search and seizure in South Africa: Lessons from Canada and New Zealand

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

Income tax-related search and seizure in South Africa: Lessons from Canada and New Zealand

Authors Carika Fritz

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 240 – 269

Abstract

The article identifies certain aspects that prevent the current search-and seizure provisions in the Tax Administration Act 28 of 2011 from achieving a balance between effective tax administration, on the one hand, and respect for the fundamental rights of taxpayers, on the other. It is shown that, whilst obtaining a warrant on an ex parte basis achieves this required balance, the same cannot be said for not requiring specific details with regard to what items may be searched for in terms of a warrant and allowing warrantless searches based on the subjective discretion of a South African Revenue Service (SARS) official. The article further considers the income tax-related search-and-seizure provisions in Canada and New Zealand in order to address the identified imbalances. From this comparative analysis, it is apparent that it is unnecessary for the SARS to be permitted to conduct warrantless searches based on its subjective discretion in the current search-and-seizure framework, together with certain provisions found in these two jurisdictions, would provide a more suitable alternative.

Franchise disclosure documents through the lens of the CPA and the Regulations

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

Franchise disclosure documents through the lens of the CPA and the Regulations

Authors Lynn Biggs

ISSN: 1996-2185
Affiliations: Lecturer, Mercantile Law Department, Nelson Mandela University
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 219 – 239

Abstract

The promulgation of the Consumer Protection Act 68 of 2008 and Consumer Protection Regulations has resulted in the introduction of the right to disclosure of information for franchisees and the obligation to disclose information on the part of franchisors in terms of section 7 and regulations 2 and 3. The article examines whether and to what extent regulation 3 provides clarity regarding the information to be disclosed. Regulation 3 requires that every franchisor must provide a prospective franchisee with a disclosure document and lists the type of information the disclosure document must contain. It is submitted that regulation 3 contributes to overcoming lack of pre-disclosure and formal regulation experienced in franchise relationships in the past. However, the wording of regulation 3 requires clarification. This article proposes amendments to some of the provisions of regulation 3, with the aim to further enhance the disclosure requirements. The article furthermore identifies and examines concerns regarding the confidentiality of the information contained in the disclosure document especially during the negotiation stages and the section 7(2) cooling-off period. The signature of a confidentiality agreement is proposed as a solution to overcoming these concerns.

Excessive pricing in South African competition law: Elucidating the nature and implications of the consumer-detriment requirement

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

Excessive pricing in South African competition law: Elucidating the nature and implications of the consumer-detriment requirement

Authors Ryan David McKerrow

ISSN: 1996-2185
Affiliations: None
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 173 – 218

Abstract

Section 8(a) of the Competition Act prohibits dominant firms from charging excessive prices to the detriment of consumers. In Harmony v Mittal the Competition Tribunal took the position that the provision’s reference to consumer detriment was ‘simply a superfluous description of an excessive price rather than a qualifier of its likely effects’. This article challenges the Tribunal’s relatively static approach to consumer detriment. It acknowledges that the incorporation of a consumer-detriment requirement into section 8(a) not only safeguards dominant firms from prejudice, but also gives rise to a contextually appropriate consumer-welfare standard. The article argues that consumer detriment must be evaluated by means of an analysis which adequately accounts for market dynamics. Following a critical analysis of three pertinent arguments in favour of non-intervention—the self-correction, innovation, and error-costs arguments—it concludes that the welfare interests of current and future consumers are not always aligned. As such, net consumer detriment and an interventionist outcome cannot be the invariable fate of an excessive price. The appropriate outcome must therefore be determined on a case-by-case basis.