Restitution and “Altered Priorities”: How the Judiciary Balances the Varying Demands of Transformation in the Mineral Resources Context: A Discussion of Macassar Land Claims Committee v Maccsand CC 2017 4 SA 1 (SCA)

by | Oct 28, 2019 | SLR, SLR V29 I3

Restitution and “Altered Priorities”: How the Judiciary Balances the Varying Demands of Transformation in the Mineral Resources Context: A Discussion of Macassar Land Claims Committee v Maccsand CC 2017 4 SA 1 (SCA)

Authors Hanri Mostert

ISSN: 1996-2193
Affiliations: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 420 – 429

Abstract

This discussion of Macassar Land Claims Committee v Maccsand CC scrutinises the SCA’s attempt at achieving transformation in respect of surface and subsurface rights by weighing up rights conferred and/or protected in terms of the MPRDA and the Restitution Act. The note considers the SCA’s ruling in respect of three questions: (i) the LCC’s power to order acquisition/expropriation; (ii) the LCC’s power to adjust a right of commonage to an alternative form of title when making a restitution order; and (iii) the interplay between a claim for the restitution of landownership and an existing mining right. The assessment in the case note focuses on a consideration of the theoretical and practical relevance of weighing up rights under a new, transformed system of law. The SCA emphasised that both the MPRDA and the Restitution Act are products of a democratic legislature that aim to redress past discrimination; and that resolving potential clashing of rights protected by or conferred in terms of these statutes must take into account the current legislative context. The SCA’s preferred interpretation does not acknowledge the link between past discrimination and current, ongoing disadvantage. Moreover, the SCA confirmed that the right to mine is independent of surface ownership, and that it can be created only in terms of the MPRDA. In doing so, it clarified some important theoretical issues in a measured and careful manner. However, the practical effect of the judgment on the community affected also needs to be acknowledged. The invasiveness of sand-mining enterprises may mean that the redress available to a community such as the one in this matter could be nothing but a nominal acknowledgement of the right to be redressed. There may be practically no financial value attached to such a right.

Giving Practical Effect to Good Faith in the Law of Contract

by | Oct 28, 2019 | SLR, SLR V29 I3

Giving Practical Effect to Good Faith in the Law of Contract

Authors Jacques du Plessis

ISSN: 1996-2193
Affiliations: Distinguished Professor of Private law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 379 – 419

Abstract

South African courts generally support the notion that good faith is an underlying value of the law of contract, as opposed to a rule or standard that could be relied on directly to promote fairness. However, some commentators have criticised this approach and pointed out that the private law codes of modern civil-law systems contain general clauses or rules to the effect that parties must act according to good faith. The contribution focuses on arguably the most prominent of these codified systems, namely German law, and seeks to determine whether its experiences with the practical application of a good faith clause do indeed suggest that South African law will benefit from according a more prominent status to good faith. After examining how German law narrowly defines good faith, and how the good faith clause fits in the broader context of the Constitution and the German Civil Code, it is shown how the clause fulfils three main functions. These are to "supplement" contractual duties, to "limit" parties in the way they exercise contractual rights, and to "correct" or modify contractual terms. This threefold division of basic functions is adopted as a structure within which a broad range of rules of South African law can be located. This comparative analysis enables a clearer understanding of how these rules of South African law currently give practical effect to good faith as value, or have the potential to do so in future. The conclusion is reached that it is not self-evident that our courts must elevate good faith to a general standard or rule in order to promote greater contractual fairness.

An Introduction to the African Principles of Commercial Private International Law

by | Oct 28, 2019 | SLR, SLR V29 I2

An Introduction to the African Principles of Commercial Private International Law

Authors Jan L Neels, Eesa A Fredericks

ISSN: 1996-2193
Affiliations: Professor of Private International Law, University of Johannesburg; Senior Lecturer, Department of Mercantile Law, University of Johannesburg
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 347 – 356

Abstract

This article introduces the principal project of the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg, namely the drafting of the envisaged African Principles of Commercial Private International Law. The various sets of Principles could be utilised by national legislators on the continent and by African economic integration organisations, particularly the African Union ("AU"), in, respectively, domestic legislation and regional or supranational laws of a soft or binding nature. Particular attention is paid to the infusion of conflicts law with references to international substantive law, partially inspired by the Mexico City Convention and the views of the German-American academic Prof FK Juenger and the Indonesian author Dr B Hardjowahono. The CISG and the UPICC will play an important role in the context of the substantive-law references in the African private international law instruments.

A Critique of International Tax Measures and the OECD BEPS Project in Addressing Fair Treaty Allocation of Taxing Rights Between Residence and Source Countries: The Case of Tax Base Eroding Interest, Royalties and Service Fees from an African Perspective

by | Oct 28, 2019 | SLR, SLR V29 I2

A Critique of International Tax Measures and the OECD BEPS Project in Addressing Fair Treaty Allocation of Taxing Rights Between Residence and Source Countries: The Case of Tax Base Eroding Interest, Royalties and Service Fees from an African Perspective

Authors Annet Wanyana Oguttu

ISSN: 1996-2193
Affiliations: Professor, Department of Taxation, Faculty of Economic and Management Sciences, University of Pretoria
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 314 – 346

Abstract

This article analyses the international tax principles in double tax treaties regarding the allocation of taxing rights between residence states and source states. The article explains that from the early twentieth century when international tax principles to prevent double taxation were developed, due to the differing interest of developed/residence (largely capital exporters) and developing/source (largely capital importers), there has been a struggle between countries for treaty taxing rights in their favour. History seems to indicate that international tax developments for allocating treaty taxing rights; initially by the League of Nations and then by the Organisation for Economic Cooperation and Development, favoured developed countries and that efforts of the United Nations to champion the case of developing countries have over the years been hampered by under-funding and lack of strong support from developed countries. Even the OECD’s 2013-2015 Base Erosion and Profit Shifting ("BEPS") Project that purported to reform the international tax arena, neglected to deal effectively with matters pertaining to the allocation of taxing rights between residence and source countries. This article places particular attention on the treaty allocation rules that apply to the three types of income pertinent to developing countries (interest, royalties, and service fees) and how these are skewed in favour of developed/residence countries; thus affecting the tax bases of developing/source countries. In response, developing countries have devised measures to preserve their tax bases, which, in certain respects, diverge from current tax treaty principles. This article asserts that this state of affair is not conducive for international trade. The article highlights the dangers of an international tax system that promotes the interests of developed countries and argues for the reform of tax treaty principles, especially the allocation of taxing rights, to ensure a more equitable and effective international tax system.

Clinical Legal Education and Social Justice – A Perspective from the Wits Law Clinic

by | Oct 28, 2019 | SLR, SLR V29 I2

Clinical Legal Education and Social Justice – A Perspective from the Wits Law Clinic

Authors Dakalo Singo, Alicia Raymond

ISSN: 1996-2193
Affiliations: Supervising Attorney and Lecturer, Wits Law Clinic, University of the Witwatersrand; Supervising Attorney and Lecturer, Wits Law Clinic, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 295 – 313

Abstract

Against the backdrop of a post-Apartheid South Africa operating under a constitutional democracy, this article considers the contemporary relationship between clinical legal education ("CLE") and social justice. To provide context, the article: presents an overview of university law clinics; addresses their role within the Bachelor of Laws ("LLB") degree; and gives brief insight into their historical relationship to social justice. In outlining the conceptual nature of social justice, the article identifies common themes which the authors use to formulate a contemporary definition of social justice, that is contextually specific to South Africa, and which is rooted in justice and Ubuntu. Having analysed social justice as a concept, it is argued that CLE as a teaching methodology is the most appropriate component of the LLB degree for the effective teaching of lessons in social justice. Using the authors’ own experiences as clinicians at the Wits Law Clinic, the article provides two practical examples highlighting how social justice lessons may be learnt by law students participating in a CLE programme. The article concludes with a brief discussion of challenges that hinder the optimal realisation of social justice teaching and the lessons attainable from such teaching.