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.

Abstract

The Sengadi v Tsambo (“Sengadi”) judgment was a high-profile case that highlighted the difficulties experienced by courts adjudicating the existence of a customary marriage. The note argues that living customary law should be instructive in the enquiry and courts should ascertain and give effect to the living customary law on the matter. Previous court judgments may be a source of law but should not be used as precedent as it risks distorting and ossifying the law. Furthermore, courts should be cognisant of – and give effect to – the nuanced manners in which people experience customary law, such as the waiver of some requirements of a customary marriage. The note further explores whether ubuntu may be useful in determining whether to recognise a customary-law marriage.

Abstract

In this article, the focus falls on exclusive use rights in sectional title ownership. It investigates the nature of the changes brought about to rights of exclusive use after the commencement of the Sectional Title Schemes Management Act 8 of 2011 (“STSM Act”) and the Community Schemes Ombud Service Act 9 of 2011 (“CSOS Act”). It is submitted that the aforementioned legislation streamlined the position for the creation of rule-based exclusive use rights and also relieved uncertainty about the existence of these rights. The fact that rules need to be submitted to the Community Schemes Ombud Service (“the CSOS”) for examination, approval and custodianship, will in future, when the ombud service becomes fully operational, facilitate the tracing of and provide confirmation of the existence of rule-based exclusive use rights within sectional title schemes. The article furthermore explores the nature of the rules of a sectional title scheme. The current position held by courts, albeit referred to in connection with homeowner’s associations, is that these rules are contractual in nature, which is dogmatically unsound. It is submitted that Willow Waters Homeowners Association (Pty) Ltd v Koka could be used as authority for the argument that these rules are the objective law of an autonomous statutory association. Furthermore, the interpretation of the agreement between the parties is not an accurate measure to determine the nature of the right, but that the subtraction from the dominium test should be applied cautiously to prevent the creation of real rights in a haphazard fashion that will exacerbate legal uncertainty.

This article also investigates the distinction between rule-based exclusive use rights created in terms of section 10(7) and (8) of the STSM Act and exclusive use rights created in terms of section 27 of the Sectional Titles Act 95 of 1986 (“Sectional Titles Act”). The difficulty that this distinction leads to in practice is illustrated by a critical discussion of case law and common-law principles of property law. It is proposed that rule-based exclusive use rights should be clearly described as such in contracts of sale to alleviate uncertainty regarding their existence. This article proposes to paint a clearer picture of the different types of exclusive use rights found in practice and how new legislation influences these rights.

Abstract

The indigenous knowledge movement argues in favour of the recognition of the plurality of knowledge manifested in indigenous communities. However, this assumption presupposes a universal indigenous knowledge which asserts a manifestation of indigenous knowledge in counterpoint to that of “the West” as if all expressions of traditional knowledge form part of a single system of anti-European knowledge resources. The arguments in favour of the sui generis protection of indigenous knowledge base their demands on the assumption that ethnic group entities have lasting and comprehensive rights on cultural products and ideas, that the relationship of such group entities to their cultural assets are describable as forms of ownership to cultural identity, and that indigenous knowledge gathered by missionaries, anthropologists and film makers prior to the promulgation of laws protecting indigenous knowledge does not meet the required standards of informed consent. In this article, the authors argue that these assumptions undergirding the proposed South African legislation on the protection of indigenous knowledge are flawed. The authors voice their concerns about the continued expansion of intellectual property rights and the progressive invasion of knowledge in the public domain. In addition, the absence of an internationally acceptable definition of the indigenous entities qualifying for sui generis protection, harbours the potential of abuse by majority cultures appropriating the rights of indigenous minorities to their economic advantage. In the proposed South African legislative project such appropriation causes further marginalisation of the true indigenous peoples of the region. Regarding the envisaged protection of cultural expressions of indigenous peoples, the authors advocate the treatment of such expressions as part of the public domain, so that anyone may have access to them and contribute to their development and evolvement. The authors support the adoption of an approach that will help to protect the public domain without contributing to the progressive expansion of the scope of intellectual property rights on the one hand and provide indigenous people with the opportunity to reap economic benefit from their traditional cultural products on the other.