The Insolvency Act’s deviation from the common law: Juristic ghost or aggregate approach?

by | Feb 25, 2021 | SALJ, SALJ V138 I1 2021

The Insolvency Act’s deviation from the common law: Juristic ghost or aggregate approach?

Author: Liesl Hager

ISSN: 1996-2177
Affiliations: Research Assistant, Faculty of Law, University of Pretoria
Source: South African Law Journal, Volume 138 Issue 1, p. 152-170
https://doi.org/10.47348/SALJ/v138/i1a7

Abstract

In this article I engage with the provisions of the Insolvency Act 24 of 1936 regulating the dissolution of the universal partnership upon insolvency. Our common law prefers an aggregate approach to partnerships, meaning that a partnership enjoys no separate legal personality distinct from its composing partners. The lack of separate legal personality of a partnership is described by some academics as a ‘remarkable defect’. The Insolvency Act however creates an exception to this general rule by deeming a partnership to be a separate legal entity. The Insolvency Act’s deviation from the common-law rule and creation of a ‘juristic ghost’ is explored in this article. The ‘dual priorities’ rule, the aggregate theory and the entity theory are explained in this article. Furthermore, the judicial debates about the Act’s deviation are discussed. In conclusion, it is suggested that the presumption that legislation does not intend to change existing law should not apply when dealing with the Insolvency Act, as the legislature has expressly deviated from the common-law aggregate approach.

Section 45 of the Tax Administration Act: An unconstitutional limitation on taxpayer privacy?

by | Feb 25, 2021 | SALJ, SALJ V138 I1 2021

Section 45 of the Tax Administration Act: An unconstitutional limitation on taxpayer privacy?

Author: Fareed Moosa

ISSN: 1996-2177
Affiliations: Associate Professor, Faculty of Law, University of the Western Cape
Source: South African Law Journal, Volume 138 Issue 1, p. 171-196
https://doi.org/10.47348/SALJ/v138/i1a8

Abstract

The Tax Administration Act 28 of 2011 is a law of general application. Section 45 of the Act empowers a SARS official to enter, without a warrant, premises where a trade or enterprise is reasonably believed to be carried on in order to conduct an inspection aimed at gathering information that will aide SARS in determining whether the business operator is compliant with tax obligations. In a constitutional democracy, the enjoyment of fundamental rights has a high premium. Accordingly, every lawful exercise of the power conferred by s 45 must take place in an orderly fashion, with decency and respect for taxpayers and their privacy. The state may not unduly interfere with this right, whether by withdrawing it altogether, abridging it, or diminishing its scope and ambit. This article hypothesises that inspections undertaken in terms of s 45 limit taxpayers’ privacy in a manner that may not pass muster under s 36(1) of the Constitution of the Republic of South Africa, 1996. On this basis, it is argued that, to cure its deficiencies, s 45 ought to be amended by the introduction of the provisions proposed in this article.

Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

by | Feb 16, 2021 | SLR, SLR V31 I3

Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA LLB LLM (Stell) PhD (Cantab), Professor of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 377 – 397

Abstract

Although the reciprocal duty of support between spouses is an invariable common-law consequence of marriage, spouses may extend the duty of support beyond the marriage by way of contract. Courts have also recognised contractual rights to support between unmarried intimate partners and spouses in Muslim marriages. All contracts, including those between family members, must be legal and public policy plays a role in determining the legality of contracts for spousal and partner support. This article evaluates changes in public policy about spousal maintenance, comparing agreements which establish a duty of support outside of the common law, agreements which extend the duty of support after the end of the spousal relationship through death or separation, and agreements which waive, vary or otherwise limit duties of spousal support. The article identifies certain shifts in public policy governing spousal maintenance but argues that the jurisprudence is characterised by inconsistency and contradictions, particularly in the extent to which it embodies the protection of fundamental rights and the advancement of gender equality. By way of contrast with the cases extending contractual duties of support to Muslim marriages and unmarried intimate relationships which strongly emphasise equality and non-discrimination, cases dealing with contracts regulating post-divorce maintenance restate pre-constitutional precedents based on formalistic and positivist reasoning. Another discrepancy arises between cases extending the duty of support after the death of the maintenance debtor and cases extending the duty of support after divorce or separation. The article proposes a clear evaluation of public policy in relation to these contracts, which balances the interests of contractual autonomy with the interests of fairness and equality.