Do taxpayers have to pay tax when SARS has not complied with sections 92, 95 and 96 of the Tax Administration Act? Nondabula v Commissioner: SARS & another explained

by | Jan 28, 2024 | SAMLJ, SAMLJ V35 I1

Do taxpayers have to pay tax when SARS has not complied with sections 92, 95 and 96 of the Tax Administration Act? Nondabula v Commissioner: SARS & another explained

Author: Moseki Maleka

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 35 Issue 1, 2023, p. 94 – 109
https://doi.org/10.47348/SAMLJ/v35/i1a5

Abstract

Section 3 of the South African Revenue Service Act 34 of 1997 (‘SARS Act’) provides that the South African Revenue Service (‘SARS’) is empowered to administer and collect taxes in South Africa. The Commissioner for SARS (‘the Commissioner’) is empowered to invoke the collection methods in terms of ss 164 and 179 of the Tax Administration Act 28 of 2011 (‘the TAA’).

Retraction of a ‘hot-headed resignation’ caused by depression: Lessons from Cairncross/Legal and Tax (Pty) Ltd 2019 (2) BALR 137 (CCMA)

by | Jan 28, 2024 | SAMLJ, SAMLJ V35 I1

Retraction of a ‘hot-headed resignation’ caused by depression: Lessons from Cairncross/Legal and Tax (Pty) Ltd 2019 (2) BALR 137 (CCMA)

Author: Mafanywa Jeffrey Mangammbi

ISSN: 1996-2185
Affiliations: Department of Mercantile & Labour Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 35 Issue 1, 2023, p. 110 – 122
https://doi.org/10.47348/SAMLJ/v35/i1a6

Abstract

Unlike its celebrated siblings, Metropolitan Health Risk Management v Majatladi 2015 (36) ILJ 958 (LAC) (‘Majatladi’), National Health Laboratory Service v Yona (2015) 36 ILJ 2259 (LAC) (‘Yona’) and HC Heat Exchangers (Pty) Ltd v Araujo 2020 (3) BLLR 280 (LC) (‘HC Heat Exchangers’), Cairncross/Legal and Tax (Pty) Ltd 2019 (2) BALR 137 (CCMA) (‘Cairncross’) is the black sheep of the constructive dismissal family. The arbitration award in Cairncross brings into sharp focus emotional distress in the context of constructive dismissal. Cairncross provides a platform to isolate some of the critical issues that have arisen in recent times concerning constructive dismissal. First, there is a troublesome jurisdictional puzzle: Has the employee resigned or was he or she dismissed? Secondly, the case deals with the vexed question of what would constitute intolerable circumstances to continue the employment relationship, and in particular, whether work-related stress could form the basis of a constructive dismissal claim. In the case under scrutiny, the employee had claimed that her depression was attributable to the unbearable working environment. The basis of her claim of intolerability of continued employment was that an employer has a common-law and statutory duty to provide a safe working environment, which it had failed to deliver. Lastly, Cairncross also brings to the fore a consideration of the effect of tendering a resignation and the aggrieved employee’s subsequent attempt to withdraw it. The question that is answered is whether an employer’s failure to accept the withdrawal of resignation by an employee suffering from work-related stress constitutes a type of constructive dismissal.

On making, reporting, and repeating defamatory statements

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

On making, reporting, and repeating defamatory statements

Author: Anton Fagan

ISSN: 1996-2177
Affiliations: WP Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 1-14
https://doi.org/10.47348/SALJ/v141/i1a1

Abstract

This note starts by distinguishing the making from the reporting of a defamatory statement, and both of these from the repetition of one. Thereafter, having introduced the general rule that a defendant who made or reported a defamatory statement about a plaintiff to a third party cannot avoid liability on the ground that she was merely repeating a statement made by a fourth party, the note goes on to discuss certain already-existing exceptions, and possible exceptions, to this rule. Finally, the note looks at whether our law should acknowledge a further exception, namely where a defendant repeated a defamatory statement by reporting it, while knowing it to be false, but did so only in order to refute it.

A consideration of the Registrar’s powers in matters relating to the National Credit Act: An analysis of Gcasamba v Mercedes-Benz Financial Services (Pty) Ltd and Ngandela v Absa Bank Ltd

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

A consideration of the Registrar’s powers in matters relating to the National Credit Act: An analysis of Gcasamba v Mercedes-Benz Financial Services (Pty) Ltd and Ngandela v Absa Bank Ltd

Author: Ciresh Singh

ISSN: 1996-2177
Affiliations: Associate Professor, University of South Africa
Source: South African Law Journal, Volume 141 Issue 1, p. 15-23
https://doi.org/10.47348/SALJ/v141/i1a2

Abstract

Section 23 of the Superior Courts Act 10 of 2013, read with rule 31(5) of the Uniform Rules of Court, empowers the Registrar of the High Court, save in exceptional circumstances involving residential property, to grant default judgments. The purpose of this rule is to prevent the overburdening of the court roll and judicial workload by allowing Registrars the discretion to grant default judgments in uncomplicated, undefended matters. In recent judgments in Gcashamba v Mercedes-Benz Financial Services SA (Pty) Ltd & another 2023 (1) SA 141 (FB) and Ngandela v Absa Bank Ltd & another [2023] ZAECELLC 6, the courts both found that a Registrar is not empowered to grant default judgments in matters relating to the National Credit Act 34 of 2005. The question thus arises whether the National Credit Act has changed and effectively reduced the Registrar’s powers. The implications of these judgments are far-reaching. Not only do they appear to have lessened the powers of the Registrar, but they also have the effect of increasing the administrative workload of judges and potentially delaying the enforcement process of credit agreements subject to the National Credit Act.

Opposing cynical evictions: The possessory action

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Opposing cynical evictions: The possessory action

Authors: Jeremy Phillips & Arthur van Coller

ISSN: 1996-2177
Affiliations: Senior Associate, Cheadle Thompson & Haysom Inc; Associate Professor, Faculty of Law, University of Fort Hare
Source: South African Law Journal, Volume 141 Issue 1, p. 24-44
https://doi.org/10.47348/SALJ/v141/i1a3

Abstract

The possessory action is a relatively unknown common-law remedy. It has not featured in the law reports for the best part of the last one hundred years and is generally relegated to a cursory discussion in most property-law textbooks. Its basic formulation is that where one has been dispossessed of an item, one is to be restored in possession, paid compensation and/or paid damages if one has a stronger right to possess the item than the dispossessor. Although it has fallen out of fashion, there is growing interest in how the possessory action may be used to address contemporary issues. One such issue is persistent and recurring cynical evictions — unlawful evictions during which the home structure is demolished and destroyed. Whether the possessory action is at all available as a remedy for cynical evictions is unclear. This article explores the history, nature, and scope of the possessory action and asks whether it can be appropriately applied to oppose cynical evictions.