Abstract

The abuse of the trust form has become prevalent in recent times. As a consequence our courts have relied on other branches of law to find remedies to assist third parties who contract with trusts. This article analyses some of these remedies, as well as amendments to the Trust Property Control Act which could provide assistance in combating the abuse of the trust form. There are, however, certain remedies which should continue being developed by our courts.

Abstract

When waste disposal services are regionalised, the result is that waste disposal services are not the principal responsibility of local municipalities. Instead, they are shared between local and district municipalities. The regionalisation and regulation of solid waste disposal is a contentious issue and raises numerous questions. These include the issue of whether a district municipality may adopt by-laws to regulate regional waste disposal services, and also whether a local municipality benefiting from the service is bound thereby. A significant challenge for the regionalisation process is the lack of constitutional and legislative guidance on the implementation procedures needed and the overarching nature of the functions and powers of the impacted local and district municipalities. This article claims that district municipal by-laws may standardise the regional waste disposal function and that these by-laws, although not without limitations, should be enforceable on local municipalities, provided that the principles of cooperative governance and public participation are promoted.

Abstract

The Constitution of Zimbabwe, 2013 (“Constitution”) does not expressly guarantee every person the right of access to adequate housing, yet the country is bedevilled with an acute national housing crisis. However, the Constitution guarantees the right to life for every person and requires that the rights enshrined in the Bill of Rights be interpreted in a manner which best protects and promotes the constitutional value of human dignity. It also requires courts to interpret constitutional rights in a manner which promotes the fulfilment of international obligations arising from treaties and conventions which Zimbabwe has signed and ratified. The Constitution also requires courts to interpret constitutional rights in a way that incorporates state policy objectives enshrined in Chapter 2 of the Constitution. In this article, I engage with these constitutional rules of interpretation and demonstrate that they allow the right to life to be interpreted in a way that incorporates the right of access to adequate housing in Zimbabwe. Given that Zimbabwean courts are yet to develop their own jurisprudence on the interpretation of the right to life, I make considerable reference to foreign case law from comparative jurisdictions, namely South Africa and India, although I also critically engage with counter-arguments from other jurisdictions.

Abstract

South Africa’s (“SA”) tax laws have extraterritorial effect, particularly considering Parliament’s ratification of the Convention on Mutual Administrative Assistance in Tax Matters dated June 2011, as amended, which was gazetted into law with effect from 1 March 2014. As such, SARS is empowered to enforce its tax collection powers under the Tax Administration Act 28 of 2011 on foreign soil in relation to SA taxpayers located there. This raises the question of whether taxpayers outside SA’s geographical limits are entitled to the protection of the Bill of Rights (“BOR”) as far as this charter applies to taxpayers. The majority of the Constitutional Court, in Kaunda v President of the Republic of South Africa (“Kaunda”), held that the BOR is territorially bound and has no application beyond SA’s borders. This decision, if applied rigidly, has the undesirable effect that taxpayers on foreign soil cannot assert fundamental rights against SARS or its foreign agents during tax administration processes occurring outside SA, even though such rights would be available to those taxpayers if the tax administration occurred in SA. This article argues that, despite the majority judgment in Kaunda, a sound legal basis exists to hold that all foreign-based South African taxpayers are entitled to BOR protection.

Abstract

The concept of well-being in the environmental right in section 24(a) of the Constitution of the Republic of South Africa, 1996 (“Constitution”) has great potential for enhancing the quality of life for people in South Africa, particularly the poor who bear the brunt of environmental pollution and degradation. The meaning of well-being is potentially very extensive and requires more delineation if it is to be useful and effective for claimants. It is suggested that the potential of the environmental right to promote social justice and improve the quality of life of South Africans is best unlocked through a teleological and interdependent interpretation of section 24 in the context of the Bill of Rights. This article explores the (under)development of well-being and the environmental right before the courts. It then investigates the interpretation of the term in the textual setting of section 24 as well as in the context of the Bill of Rights and the values and goals underpinning the Constitution. The Bill of Rights is indicative of what the Constitution deems essential for a life of equality, dignity, and freedom, and it is consequently indicative of the entitlements and interests which underpin human well-being. This article proposes an interpretation of well-being that encompasses, at a minimum, the interests already recognised in the Bill of Rights so that where an aspect of the environment negatively impacts an aspect of a fundamental human right, there is an impact on well-being in terms of section 24(a). This interpretation highlights the potential of well-being to promote constitutional goals and values and to address circumstances of intersecting disadvantage or harm. The proposed approach to well-being would provide much-needed clarity to potential claimants by providing a framework for the scope of well-being. This could assist in unlocking the full potential of the environmental right.