The right of children born to undocumented migrants to have their best interests given paramount importance: Reimagining the South African birth registration process

by | Oct 14, 2023 | ACTA, ACTA 2023

The right of children born to undocumented migrants to have their best interests given paramount importance: Reimagining the South African birth registration process

Authors Rowan Fortuin & Salona Lutchman

ISSN: 1996-2088
Affiliations: LLB (UCT) LLM (UCT); LLB (UKZN) LLM (New York); Senior Lecturer, University of Cape Town
Source: Acta Juridica, 2023, p. 214 – 239
https://doi.org/10.47348/ACTA/2023/a9

Abstract

This article analyses the birth registration process of children born in South Africa to undocumented migrants. Birth registration is an important stepping-stone to acquiring nationality in terms of South African law. Children born to undocumented migrants face a greater risk of statelessness. Given the detrimental consequences of statelessness, the article explores the relationship between the best interests of the child principle (found in international law and the South African Constitution) and the domestic birth registration process for children born to undocumented migrants. In terms of international law, all children have a right to be registered at birth. The findings show that despite this obligation, the birth registration process imposes an onerous set of requirements on undocumented migrants. By using the best interests of the child principle as a substantive right, a procedural right and an interpretative principle, the article shows that the current birth registration process places an inordinate reliance on documentary evidence, which can frustrate the registration of the child’s birth. The article concludes with recommendations which reimagine a birth registration process for children born to undocumented migrants. siSwati: Le-athikili ihlatiya inchubo yekubhaliswa kwekutalwa kwebantfwana labatalelwe eNingizimu Afrika batalwa bantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa. Kubhaliswa kwekutalwa kusinyatselo lesibalulekile sekutfola buve ngekwemtsetfo waseNingizimu Afrika. Bantfwana labatalwa bantfu labachamuka kulamanye emave babhekene nengoti lenkhulu yekungayindzawo nemphilo. Uma kubukwa imiphumela lelimatako yekungayindzawo nemphilo, le-athikili ihlola kuhlobana lokukhona phakatsi kwenzuzo lencono kakhulu yemgomosisekelo wemntfwana (lotfolakala kumtsetfo wemave kanye nakuMtsetfosisekelo waseNingizimu Afrika) kanye nenchubo yekubhaliswa kwekutalwa kwasekhaya kwebantfwana labatalwa bantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa. Ngekwemtsetfo wemave, bonkhe bantfwana banelilungelo lekubhaliswa mhla batalwa. Lokutfolakele kukhombisa kutsi nangetulu kwalesibopho, inchubo yekubhaliswa kwekutalwa ibeka luhla lolumatima lwetidzingo kubantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa. Ngekusebentisa kuzuza lokuhle kwemgomosisekelo njengelilungelo lemuntfu ngekwemtsetfo, lilungelo lenchubo kanye nemgosisekelo wekuhumusha, le-athikili ikhombisa kutsi inchubo lekhona yekubhalisa kutalwa incike kakhulu tikwebufakazi lobubhaliwe, lokungaphazamisa kubhaliswa kwekutalwa kwemntfwana. Le-athikili iphetsa ngetincomo leticabanga kabusha ngenchubo yekubhaliswa kwebantfwana labatalwa bantfu labachamuka kulamanye emave labangenato tincwadzi tekutalwa.

The decision-making power of adolescents to refuse medical treatment in South Africa: Lessons from other jurisdictions

by | Oct 14, 2023 | ACTA, ACTA 2023

The decision-making power of adolescents to refuse medical treatment in South Africa: Lessons from other jurisdictions

Author Ebenezer Durojaye

ISSN: 1996-2088
Affiliations: LLB (Lagos), (LLM, LLD, Free State) Head, Socio-Economic Rights Project, Dullah Omar Institute, University of the Western Cape
Source: Acta Juridica, 2023, p. 240 – 269
https://doi.org/10.47348/ACTA/2023/a10

Abstract

This paper discusses a controversial issue in relation to the capability of adolescents to refuse life-saving medical treatment. First, it examines the concept of autonomy and the normative framework for the recognition of the right of the child to consent to and refuse medical treatment under international law. Second, it discusses the provisions of South African law on this issue. The paper then draws on the experiences of the courts in the United States of America (US) and the United Kingdom (UK) to highlight good practices and to identify the gaps in the approaches adopted. Using Nedelsky’s relational autonomy as a guide, it concludes by arguing that, in all cases, the need for a dialogue between the child and their parents or guardians is important in helping the child to make an informed decision. Such a dialogue should not be viewed as an unnecessary intrusion into the autonomy of the child, but rather as a way to support the decision-making abilities of the child. isiZulu: Leli phepha lidingida udaba okuphikisanwa ngalo maqondana namandla abantu abasha abangaphansi kweminyaka eyishumi nesishiyagalolunye okwenqaba ukwelashwa ngezindlela ezisindisa impilo. Okokuqala, lihlola isihloko sokuzimela kanye nohlaka lwenqubo lokwazisa amalungelo engane okuvuma kanye nokwenqaba ukwelashwa ngokwezempilo ngaphansi komthetho wamazwe ngamazwe. Okwesibili, lidingida izinhlinzeko zomthetho waseNingizimu Afrika ngalolu daba. Leli phepha libe selisusela imininingo kulokho okwenzeke ezinkantolo zase- United States of America (e-US) kanye nase-United Kingdom (e- UK) kugqanyiswa izinqubo ezilungile futhi kuhlonzwe amagebe ezindleleni ezisetshenzisiwe. Ngokusebenzisa i-Nedelsky’s relational autonomy njengomhlahlandlela, liphetha ngokuveza ukuthi, kuzo zonke izigameko, kubalulekile ukuba kube nengxoxo phakathi kwengane nabazali noma abanakekeli bayo ukuze kusizwe ingane ithathe isinqumo esicatshangisisiwe. Leyo ngxoxo akumele ithathwe njengokuphazamisa okungenasidingo ekuzimeleni kwengane, kodwa kunalokho kumele ithathwe njengendlela yokusekela ukuthatha isinqumo sengane.

A reflection on my academic career

by | Oct 14, 2023 | ACTA, ACTA 2023

A reflection on my academic career

Author Chuma Himonga

ISSN: 1996-2088
Affiliations: LLB (University of Zambia) LLM and PhD (University of London); Professor Emeritus, University of Cape Town
Source: Acta Juridica, 2023, p. 270 – 294
https://doi.org/10.47348/ACTA/2023/a11

Abstract

This paper is a story of my academic journey. It is a reflection on my career, highlighting the barriers and opportunities in the development of my institutional leadership, research and teaching career. It also provides glimpses, first, of how my research interests were developed and the factors that influenced my development as an academic and, secondly, of strategies adopted for the development of human capital to ensure the continuation of scholarship in the field of my work in future generations. Finally, the paper outlines the challenges I identified and engaged with in my research in the broad field of family law, including the law governing the institution of marriage and its dissolution, and their respective consequences, as well as the law governing inheritance under both common law or received law and customary law, and the legalised pluralism that this entails.

Purpose Requirement of the GAAR: Rethinking the ‘Subjective’ vs ‘Objective’ Debate

by | Oct 4, 2023 | BTCLQ, BTCLQ V14 I3

Purpose Requirement of the GAAR: Rethinking the ‘Subjective’ vs ‘Objective’ Debate

Author: Ed Liptak

ISSN: 2219-1585
Affiliations: Independent Tax Person Extraordinaire
Source: Business Tax & Company Law Quarterly, Volume 14 Issue 3, 2023, p. 1 – 14

Abstract

The current general anti-avoidance rule (GAAR) was enacted in 2006. Its overriding goal was to provide a more consistent and effective determent to what the legislation termed ‘impermissible tax avoidance arrangements’. As the SARS Discussion Paper on Tax Avoidance and Section 103 made clear, a major problem facing the fiscus was the growth of a tax avoidance industry in which extremely complex tax shelter products were designed and marketed to taxpayers. This development reflected a shift from prior practice in which taxpayers approached advisors to obtain advice on specific problems to one in which promoters marketed carefully prearranged products to clients. These products were typically sold on a ‘black box’ basis, which hid the specific inner workings of those tax shelter products. Amongst other things, this approach enabled promoters the ability to protect their so-called intellectual property, while giving clients the opportunity to use ignorance or ‘plausible deniability’ as a defence against the GAAR. To counter this problem and to resolve inconsistent applications of former section 103, in which two taxpayers could enter into identical tax shelter products but obtain different results depending upon their subjective state of mind, Parliament introduced a hybrid test in which the subjective purpose of a taxpayer must be tested against all of the relevant facts and circumstances of the case, including the purpose of the avoidance arrangement in question. It is a hybrid approach, in which the relative weight of the objective and subjective components will depend upon the circumstances of the case. Tax shelter products are meticulously designed by their promoters for one purpose — to generate a tax benefit without having a significant impact upon a taxpayer’s business operations and to be as risk-free as humanly possible. It is in these situations that the objective purpose of an avoidance arrangement is of paramount importance, particularly where these tax shelter products have been added to otherwise straightforward commercial transactions. As a result, taxpayers should no longer be able to hide behind either their ignorance or the purpose of a larger arrangement into which a tax shelter product has been inserted, to defeat the GAAR.

South Africa’s Ambiguous Exchange Control Climate

by | Oct 4, 2023 | BTCLQ, BTCLQ V14 I3

South Africa’s Ambiguous Exchange Control Climate

Author: Robyn Berger & Esther Geldenhuys

ISSN: 2219-1585
Affiliations: Tax Executive, Bowmans Attorneys; Senior Associate, Bowmans Attorneys
Source: Business Tax & Company Law Quarterly, Volume 14 Issue 3, 2023, p. 15 – 22

Abstract

Although the South African Minister of Finance announced in the 2020 Budget speech that sweeping reforms would be enacted to relax the South African exchange control system, it is now three years later, and no meaningful relaxation of exchange control has occurred. Rather, investment into South Africa remains plagued by exchange control laws, which result in costly and time-consuming processes for foreign investors. In January 2021, a long-awaited change to the exchange control rules was enacted, with the relaxation of the so-called ‘loop structure’ rules. Many investors jumped at the opportunity to take advantage of this relaxation and restructured their existing South African assets so that they would be owned by approved foreign structures. The relevant parties then, in line with the prescribed rules, reported the transactions to the Financial Surveillance Department of the South African Reserve Bank (FinSurv), via their Authorised Dealers. The FinSurv did not simply acknowledge receipt of the reported information as expected under the law. Rather, the FinSurv elected to reject applications submitted under the respective circular, without withdrawing the circular, leading to much uncertainty in the market, especially for those investors who have already restructured their assets, triggered taxes on the restructure and paid the taxes. Further, it appears that South Africa’s negative rating and greylisting, by the Financial Action Task Force (FATF), has triggered a stricter application of the existing exchange control regime, with more frequent application of the penalty regime by the FinSurv to identified contraventions. In the past, South African corporates were able to regularise an exchange control contravention with the FinSurv without difficulty. The process was relatively straight forward. However, lately, the responses received from the FinSurv to requests for regularisation (including to standard commercial transactions) are vague with the result that the matter does not seem to reach finalisation. The responses provided suggest that the applicant may still be subject to further investigation and ultimately may be subject to financial penalties. This is only one of the challenges such applicants face.