ISSN: 1996-2185
Affiliations: Department of Private Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 499 – 510
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ISSN: 1996-2185
Affiliations: Senior Lecturer, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 477 – 498
It is trite that, in accordance with section 14 of the Bill of Rights, taxpayers enjoy fundamental privacy in respect of, inter alia, their homes, property, possessions and communications. The integrity and privacy of a taxpayer’s home and business environment are important rights and values to be respected and protected during tax administration conducted by the South African Revenue Service. Their promotion is part of the spirit, purport and objects of the Bill of Rights to be fulfilled by reason of the interpretive imprimatur in section 39(2) of the Constitution. A taxpayer’s privacy may, in accordance with section 36 of the Constitution, be limited by way of a ‘law of general application’. This article examines critically whether section 45 of the Tax Administration Act 28 of 2011 (TAA) imposes a limitation on taxpayers’ privacy as envisaged by the Constitution’s limitation clause. Section 45 empowers tax officials to enter upon a taxpayer’s premises without a warrant for purposes of conducting an inspection. This article argues that to qualify as lawful, every exercise of power to conduct warrantless, non-consensual, tax inspections under section 45 must occur in an orderly fashion, with respect and due regard for taxpayers and their fundamental rights, including privacy. This is so because, in a democracy, the substantive enjoyment of rights has a high premium. This article concludes that the power of inspection under section 45 is a limitation of a taxpayer’s privacy in a law of general application, namely, the TAA.
ISSN: 1996-2185
Affiliations: Honorary Professor, Centre for IP Law, Department of Private Law, University of Pretoria and Senior Consultant, Adams & Adams
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 456 – 476
South Africa enjoys explicit legal protection against trade mark dilution provided by sections 10(17) and 34(1)(c) of the Trade Marks Act 194 of 1993, as is the case in the United States of America (USA) and the European Union (EU). This is available in all three jurisdictions for a registered, well-known or famous trade mark, which is either identical or similar to a later mark of another person notwithstanding there being no likelihood of deception or confusion between the marks in use. The Supreme Court of Appeal has interpreted ‘similar’ as setting a threshold of ‘having a marked resemblance’ and has applied this elevated test questionably and as a stand-alone requirement for entry to these anti-dilution sections without the need to consider their other substantial provisions. In the USA and the EU, ‘similar’ is given its ordinary meaning, setting a lower entry threshold than in South Africa. Similarity is also only one of several criteria considered and applied globally. It is suggested that the Supreme Court of Appeal has strayed from the correct approach and that self- or legislative- correction is needed.
ISSN: 1996-2185
Affiliations: Lecturer, Mercantile Law Department, University of Stellenbosch
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 434 – 455
As a mechanism to address contraventions of the Companies Act 71 of 2008 (Companies Act), compliance notices play an important role in the decriminalisation of company law. Being issued with a compliance notice, and especially failure to comply with it, can have serious and far-reaching consequences. It is therefore vital that compliance notices are issued in a manner which is fair and just, and that appropriate remedies are in place for an aggrieved person to object to or dispute the notice. As the issuing of a compliance notice is classified as administrative action, it must meet the requirements of lawfulness, reasonableness, and procedural fairness as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996 (the Constitution), [fn1]read with the Promotion of Administrative Justice Act 3 of 2000 (the PAJA). This article considers some administrative justice aspects relating to the limitations or constraints on the issuing of compliance notices. It further addresses possible remedies or avenues of redress available to aggrieved persons once a compliance notice has been issued. In this regard, observations are made relating to the rights of an aggrieved person to object to a compliance notice in terms of section 172 of the Companies Act while also considering the PAJA. footnote 1: Constitution of the Republic of South Africa, 1996.
ISSN: 1996-2185
Affiliations: Doctoral Candidate, University of Pretoria; Professor, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 416 – 433
Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘deemed’ provisions of employment to assist in the identification of the parties to triangular employment relationships. This article explores the significance of statutory interpretation in identifying the parties to the employment relationship and the approach of the judiciary in interpreting the term ‘deemed’. The ‘teleological model’ of statutory interpretation is described and the interpretive approach of the Labour Appeal Court is assessed against this model. Teleological interpretation requires that legislative provisions be interpreted to advance their purpose in light of constitutional values. The interpretation that best advances constitutional values must be preferred. In determining such a constitutionally appropriate meaning of the provision, the courts must also have regard to the textual, contextual, teleological, historical, and comparative elements in which the provision occurs. In a recent decision, the Labour Appeal Court failed to consider key constitutional values, the history of the legislative provision, and the comparative law dimension in which the relevant legislative provision is found. The court made little attempt to understand the historical circumstances that led to the adoption of the statutory provision and considered no comparative experience.
ISSN: 1996-2185
Affiliations: Associate Professor, Department of Mercantile Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 395 – 415
One of the burning issues in South African insolvency law is the regulation of insolvency practitioners. Practitioners are involved in almost every aspect of the insolvency process and occupy a significant position of trust over the affairs of insolvent companies and individuals. In South African insolvency law, there is currently no statutory framework requiring persons acting as insolvency practitioners to be licensed or otherwise authorised to carry out such work. The article unpacks the concept of conflict of interest in South African insolvency law and continues to make recommendations for the development of an efficient and effective regulatory model. An analysis of the concept of conflict of interest within the context of international norms and standards is included together with a discussion of the legal developments in South African insolvency law. The purpose of this article is to argue that the reform of any area of South African insolvency law and more specifically the regulation of insolvency law, should be done against the background of a well-managed policy development process and generally accepted social and economic goals.