Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Arica

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Arica

Author: Theophilus Edwin Coleman

ISSN: 1996-2185
Affiliations: Postdoctoral Research Fellow, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 319 – 363

Abstract

The idea that contracting parties should be afforded the freedom to determine the content of their contract and regulate their private legal arrangements not only advances efficient international trade and commerce, but also, to a very large extent, affords the parties the opportunity to mitigate their risks in their transnational commercial relations. Parties’ risks are mitigated when the basis upon which they can conclude and enforce their contract is not concealed by uncertainty. Within the global legal order on transnational commercial and contract law, parties enter into contracts with the expectation that the contracts will be enforced by the courts of law. This article seeks to critically appraise the global stance on contractual freedom and party autonomy. It ascertains the extent to which the global approach could serve as legislative and judicial guidance for Commonwealth African countries. The article suggests that Commonwealth African countries should accede to or ratify key instruments on international commercial and contract law. It further highlights the economic significance of such accession for businesspeople in Commonwealth Africa.

Is Cryptocurrency ‘Property’ for Tax Administration Purposes?

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Is Cryptocurrency ‘Property’ for Tax Administration Purposes?

Author: Fareed Moosa

ISSN: 1996-2185
Affiliations: Associate Professor, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 364 – 383

Abstract

Section 1(a) of the Constitution of the Republic of South Africa, 1996 stipulates that human dignity, the achievement of equality and the advancement of human rights and freedoms are foundational values of South Africa’s sovereign, democratic state. Aligned herewith is s 39(1) of the Constitution, which directs that every interpretation of the Bill of Rights must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. Therefore, the Constitution’s human rights ethos, culture and spirit is a dominant theme serving as a guide when the term ‘property’ is interpreted in the context of the privacy clause (s 14(b)) and the property clause (s 25). This article argues that by applying a purposive cum contextual cum grammatical cum teleological interpretive methodology, the concept ‘property’ in ss 14(b) and 25(1) of the Constitution goes beyond the conventional ambit of common-law property. It is argued that, for constitutional purposes during tax administration, property also encompasses intangible property in the form of Bitcoin and possibly other cryptocurrencies owned by taxpayers, which represent legal interests worthy of constitutional protection during tax administration by the South African Revenue Service.

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

Author: Reinhard Rudd

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Accountancy, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 384 – 418

Abstract

The domestic laws of many countries contain statutory general anti-avoidance rules, or ‘GAAR’. As tax avoidance schemes have proliferated, especially in a cross-border context, the relative importance of a country’s GAAR has increased. A question that arises is whether a country’s GAAR can be invoked to deny the benefits granted by a tax treaty. The question is complicated by the fact that, as international agreements, tax treaties are subject to public international law, while at the same time forming part of the domestic laws of the states party to the treaty. While the Organisation for Economic Co-operation and Development has attempted to provide clarity in this regard, the answer remains dependent on the manner in which tax treaties interact with the domestic laws of the specific jurisdictions in question. In terms of South African law, the provisions of a tax treaty rank equally with those of domestic law. As a result, any conflict must be resolved by the application of the principles of statutory interpretation and superseding of legislation. Despite this fact, the South African courts tend to favour an approach whereby the provisions of domestic law and those of a treaty are reconciled, rather than having one prevail over the other. The author argues that the GAAR may be applied in a treaty context, provided that the purpose of a treaty and the GAAR can be reconciled. Ultimately, the author is of the view that certainty in this regard can only be achieved through some form of legislative intervention. 

The Case for Further Reform of the Banks’ Advisory Duty in South Africa Post the Financial Advisory and Intermediary Services Act 37 of 2002

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

The Case for Further Reform of the Banks’ Advisory Duty in South Africa Post the Financial Advisory and Intermediary Services Act 37 of 2002

Authors: WG Schulze and SLW Mokobi

ISSN: 1996-2185
Affiliations: Professor in Banking Law, University of South Africa; Attorney, High Court of Botswana
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 419 – 446

Abstract

The nature and extent of a financial service provider’s (‘FSP’s’) liability for the advice or information that it provides is a core issue globally and is frequently cited in complaints and lawsuits.  Commercial banks are particularly vulnerable to advice liability and cannot afford to downplay the risk as they continue with fast-paced innovation. In this context the Financial Advisory and Investment Services Act (‘FAIS Act’) has attempted to intervene in the FSP– customer relationship by regulating conduct and elevating advisory standards. Unfortunately, the Act is constrained by antiquated distinctions and has failed to improve on the common-law advisory duty. It is hoped that the proposed Conduct of Financial Institutions Bill will improve on this. The current statutory exclusions from the definition of ‘advice’ lead to a dichotomy that is unhelpful in modern banking. Furthermore, the lack of recourse to a statutory mechanism in respect of what are currently deemed ‘non-FAIS’ activities is confusing.  The consequences of the current legislative framework are a lack of legal clarity (which is not good for business), inadequate regulation, and an increase in abusive practices. A reform of the legislation is needed, failing which the courts should develop the common law to impose liability even absent a regulated advisory relationship. 

Appraisal of Financial Inclusion in South Africa: Proposing the Agent Banking Model Implemented in Malaysia

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Appraisal of Financial Inclusion in South Africa: Proposing the Agent Banking Model Implemented in Malaysia

Author: MG Van Niekerk

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of Limpopo
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 447 – 469

Abstract

Financial inclusion is a burning issue around the world, especially in emerging markets such as South Africa. Its importance lies in the fact that it will effectively reduce inequality in this country in the long term. This contribution traces formal financial inclusion measures in South Africa. The transformation to financial inclusion after 1994 increased inclusion from 61 per cent in 2004 to 93 per cent in 2018.  The article highlights the fact that when people use bank accounts as mailboxes (where all money is withdrawn as soon as it comes into the account), some issues need to be addressed to ensure that they are properly banked. Indications are that only 48 per cent of all adults in South Africa can be considered to be properly banked. In South Africa, financial inclusion was explicitly legislated for the first time by the Financial Sector Regulation Act 9 of 2017. This article assesses the role of agent banking — the provision of financial services through agents or third-party intermediaries on behalf of financial institutions — in increasing financial inclusion in Malaysia. The Malaysian agent banking model could be beneficial to South Africa’s efforts to ensure that more people have access to a bank account that they can use regularly. 

Case Notes: ‘Semantic Gyrations’ – When are Naartjies Oranges? Beneath the Surface of Absa Bank Limited v CSars

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Case Notes: ‘Semantic Gyrations’ – When are Naartjies Oranges? Beneath the Surface of Absa Bank Limited v CSars

Authors: Teresa Pidduck and Sumarie Swanepoel

ISSN: 1996-2185
Affiliations: University of Pretoria, Department of Taxation; University of Pretoria, Department of Taxation
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 470 – 495

Abstract

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