ISSN: 1996-2118
Affiliations: University of Limpopo
Source: South African Journal of Criminal Justice, Volume 39 Issue 1, p. 160-178
https://doi.org/10.47348/SACJ/v39/i1a9
None
ISSN: 1996-2177
Affiliations: Associate Professor, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 3, p. 427-441
https://doi.org/10.47348/SALJ/v143/i3a1
This case note reconstructs a consistent method for the Supreme Court of Appeal’s use of the taxpayer’s objective intention and subjective motive when classifying profits on the disposal of an asset as income or capital. It argues that the court has largely been consistent in applying the two-step test set out in CIR v Stott. Step 1 identifies whether the taxpayer is trading, in which case the taxpayer’s objective intention is used. Step 2 applies in the absence of a trade or where the transactions fall outside the identified trade. Here, the taxpayer’s subjective motive is used. Furthermore, this note identifies a narrow, fact-bound virtual certainty exception. A revenue intention is imputed in circumstances of foreknown virtual inevitability of profits, akin to indirect intention in criminal law. Read in this way, the SCA cases reveal a consistent methodology in the use of the taxpayer’s objective intention and subjective motive.
ISSN: 1996-2177
Affiliations: Senior Lecturer, North-West University
Source: South African Law Journal, Volume 143 Issue 3, p. 442-452
https://doi.org/10.47348/SALJ/v143/i3a2
This note examines Zilwa v MEC for Transport and Public Works, a Western Cape High Court judgment that declared unlawful a warrantless arrest and detention for excessive speeding. While the judgment reaffirms and emphasises the constitutional sanctity of the right to liberty, it seems to depart from the wording of s 40(1)(b) of the Criminal Procedure Act 51 of 1977, read with Schedule 1 and s 89 of the National Road Traffic Act 93 of 1996. Assessing the Zilwa judgment against the Supreme Court of Appeal decision in Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) suggests that the court may have taken a route that sits uncomfortably with precedent. The court may also have created a form of operational paralysis or, at least, added another administrative layer in traffic law enforcement.
ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, North-West University
Source: South African Law Journal, Volume 143 Issue 3, p. 453-472
https://doi.org/10.47348/SALJ/v143/i3a3
This note highlights the limits to liability waivers issues arising from the court’s reasoning in Tourvest Holdings (Pty) Ltd v Murti 2026 (3) SA 539 (SCA). The note addresses several issues arising from the judgment, including the role of consensus, the Consumer Protection Act 68 of 2008, constitutional values and public policy considerations in the validity of liability waivers.
ISSN: 1996-2177
Affiliations: DPhil candidate, Faculty of Law, University of Oxford
Source: South African Law Journal, Volume 143 Issue 3, p. 473-512
https://doi.org/10.47348/SALJ/v143/i3a4
This article examines the role of wrong fulness as a conceptual basis for liability in delict, focusing largely on cases of omissions and pure economic loss. I argue that the wrong fulness enquiry is best understood not as a single undifferentiated policy judgment, but as a structured three-step enquiry. First, the court asks whether the defendant owed the plaintiff a recognised legal duty and whether that duty was breached. If no such duty exists, the enquiry turns to whether the legal convictions of the community justify recognising a new general duty of that kind. Thirdly, and crucially, where such a duty exists and was breached, the court must determine whether those legal convictions warrant the imposition of delictual liability in the circumstances. On this account, breach of duty does not automatically entail wrong fulness: the first and third steps perform distinct tasks and should never be collapsed. I further argue that the content of the duty at step 1 should not be framed as a duty not to cause harm negligently, but rather as a strict duty to refrain from particular harm-causing conduct, leaving questions of fault to be addressed primarily at the stage of imposing liability.