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.

The Taxation of Trusts in SADC Member States

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

The Taxation of Trusts in SADC Member States

Authors Izelle du Plessis

ISSN: 1996-2193
Affiliations: Senior Lecturer: Department of Mercantile Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 270 – 294

Abstract

Many Southern African Development Community ("SADC") member states use trusts and they have proved to be very popular in some of these states. This article examines the way in which income acquired by a trust is taxed in a number of SADC member states. It determines whether the systems used by the SADC member states can be placed in the classification systems identified by academics in respect of certain common-law states. It also notes a number of trends in the taxation of trusts in the relevant states.

Employment Discrimination Law into the Future

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

Employment Discrimination Law into the Future

Authors Christoph Garbers, Peter le Roux

ISSN: 1996-2193
Affiliations: Associate Professor, Faculty of Law, Stellenbosch University; Executive consultant, ENSafrica
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 237 – 269

Abstract

Important amendments to the Employment Equity Act 55 of 1998 ("EEA") were introduced in 2014, notably conferring jurisdiction on the Commission for Conciliation, Mediation and Arbitration in employment discrimination cases, inserting the phrase ‘arbitrary ground’ in section 6(1) of the EEA, explicitly providing for (and proscribing) unfair discrimination in terms and conditions of employment and also including a brand new onus provision in section 11. In this contribution, the impact of these amendments on our conceptual understanding of employment discrimination law is considered in the context of: First, world-wide trends in the development of employment discrimination law and the South African adoption of employment discrimination law in line with those trends; secondly, the correct approach to interpretation of the EEA in light of ILO Convention 111 and the Constitution,1996; thirdly, the judicial development of principles applicable to employment discrimination over the past 25 years, which precedent provides a lot of certainty about the conceptual foundations of our employment discrimination law; and, fourthly, the initial academic views, experiences and judicial approaches after the amendments came into effect. Ultimately, the authors argue that these amendments do not signify, nor do they require, any significant departure from the pre-amendment conceptual approach to employment discrimination established through precedent over the past 25 years.

Registrability of Rights in the Deeds Registry: The Twofold Test Revisited

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

Registrability of Rights in the Deeds Registry: The Twofold Test Revisited

Authors PJ Badenhorst

ISSN: 1996-2193
Affiliations: Associate Professor, Deakin University; Visiting Professor, Nelson Mandela University
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 220 – 236

Abstract

In practice the courts use a so-called twofold test to determine whether rights are real, and therefore, registrable in the deeds registry. Personal rights are not registrable. In terms of the twofold test, in order for a right to be registrable, the following requirements must be satisfied: (a) the intention of the person who creates the purported real right must be to bind not only the present owner of the land, but also successors in title; and (b) the nature of the right or condition must be such that registration thereof results in a subtraction from the dominium of the land against which it is registered. The article provides an overview of the application of the twofold test by the Supreme Court of Appeal ("SCA"). The overview of case law shows the successful application of the test by the SCA and its applicability has become settled law. A more basic formulation of the twofold test with a different sequence and more emphasis on the acquisition of an entitlement test is proposed. It is shown that rights established in respect of land which restrict the landowner’s entitlements to use or dispose of land are usually recognised as real rights by the courts. It is suggested that other possible restrictions on the entitlement of disposition in the case of problematic rights, which are registrable in accordance with deeds office practice, such as restraints against alienation, rights of pre-emption or reversionary rights, should be revisited. The dominance of the twofold test does not mean that other theoretical tests to distinguish between real and personal rights should not be used.