Taxpayer TAT: What the Test Case Interlocutory Judgment Means for Employment Tax Incentive Disputes

by | Mar 15, 2026 | BTCLQ, BTCLQ V17 I1

Taxpayer TAT: What the Test Case Interlocutory Judgment Means for Employment Tax Incentive Disputes

Author: Joon Chong

ISSN: 2219-1585
Affiliations: Partner, Webber Wentzel
Source: Business Tax & Company Law Quarterly, Volume 17 Issue 1, 2025, p. 1 – 12

Abstract

This article examines the evolution of Employment Tax Incentive (ETI) disputes in South Africa focusing on legislative amendments, test case litigation, and the systemic challenges facing over 400 employers with disputed assessments. The ETI, introduced in 2014 to reduce youth unemployment, has become a significant source of tax litigation following SARS’ disallowance of claims under training-based arrangements. Key legislative amendments in 2018 and 2022 responded first to the Assign Services judgment on labour broking, then to perceived abusive schemes involving training arrangements. The designated test case, Taxpayer TAT (IT 46233) has not been heard on the merits. A recent judgment from the Tax Court disallowed the SARS’ application to amend its pleadings by introducing new legal grounds based on the Occupational Health and Safety Act. The Tax Court held that this was a novation prohibited under rule 31(3). The interlocutory application judgement highlights fundamental issues of procedural fairness, the impermissible importation of definitions from unrelated statutes, and the impact of systemic delays on employers facing accumulating interest and penalties. With the merits still unresolved and potential appeals looming, affected employers remain in legal and financial limbo, bearing mounting tax debt exposures while the substantive questions of what constitutes ‘work’ and ‘remuneration’ under the ETI Act await determination.

The Paradox(es) of General Anti- Avoidance Rules — Part I

by | Mar 15, 2026 | BTCLQ, BTCLQ V17 I1

The Paradox(es) of General Anti- Avoidance Rules — Part I

Author: Ed Liptak

ISSN: 2219-1585
Affiliations: Independent Consultant
Source: Business Tax & Company Law Quarterly, Volume 17 Issue 1, 2025, p. 13 – 21

Abstract

This article considers the role that a so-called General Anti-avoidance Rule (GAAR) can or should play in changing the odds in a continuous battle between taxpayers and SARS as regards the parameter of permissible tax avoidance. Put another way, the question posed by the article is whether, or to what extent, the principles underlying the economic tax base can help to inform the application of the GAAR so as to guarantee fairness.
It is argued that any answer to this question is subject to one fundamental caveat. It is widely recognised that adopting a pure academic tax base is simply unfeasible and that the task for policy makers, therefore, is to devise a ‘second best’ solution, one that tracks that tax base as closely as possible but can work in practice. Amongst other things, this requires that the law identifies the correct taxable person; that it provides clear rules when realised income or gains should be recognised for tax purposes; that items and transactions are treated consistently; and that any deviations from the economic tax base are supported by clear policy considerations. Unfortunately, the article suggests, all too often the Income Tax Act (Act) falls short in these areas.
The ‘business purpose tests’ as used in several countries to identify impermissible tax avoidance are discussed. It is noted that the tests may look solely to the subjective purpose of the taxpayer, as was the case under section 103 of the South African Act, the objective purpose of the arrangement at issue, as in the case of New Zealand, or a combination of the two, as is currently the case under the South African GAAR.
The article notes that the degree of ‘business purpose’ required also varies. It ranges from the relatively high threshold required under the South African GAAR to the stringent New Zealand GAAR, which applies if an arrangement directly or indirectly has tax avoidance as its purpose and effect, but only if that purpose or effect is ‘not merely incidental’ to ordinary business or family dealings.

The GAAR’s Objectively Subjective Purpose Requirement

by | Mar 15, 2026 | BTCLQ, BTCLQ V17 I1

The GAAR’s Objectively Subjective Purpose Requirement

Authors: Albertus Marais and Dewald Pieterse

ISSN: 2219-1585
Affiliations: Attorney of the High Court, CA(SA), Certified Tax Advisor (SAIT); LLM (Tax Law) (UCT)
Source: Business Tax & Company Law Quarterly, Volume 17 Issue 1, 2025, p. 22 – 40

Abstract

This article examines whether the ‘sole or main purpose’ requirement of the so-called general anti-avoidance rule (‘the GAAR’) in sections 80A–80L of the Income Tax Act1 is tested subjectively, objectively, or, as some commentators and the recent Tax Court judgment in Mr Taxpayer G2 have suggested, involves a ‘hybrid’ of the two.
The article begins by explaining the distinction between a subjective and an objective approach to the sole or main purpose requirement, before outlining the approach as it previously existed in section 103(1) of the Income Tax Act. It then critically examines the principal arguments advanced in favour of a ‘more objective’ or hybrid test under the new GAAR, after which the arguments in favour of a subjective test are expounded on.
The authors conclude that the sole or main purpose test in the GAAR today must necessarily be binary, meaning it can be either objective or subjective, but cannot be a hybrid of the two. In light of the compelling arguments in favour of such a position, it is ultimately concluded that the test for the sole or main purpose requirement in the new GAAR remains decidedly subjective, and, ironically, that the test applied in Mr Taxpayer G, notwithstanding the Court’s doctrinal endorsement of a ‘more objective’ hybrid test, is in fact the very same subjective purpose test that has applied to the GAAR since its inception.

Equal Treatment of Post-Commencement Creditors in Business Rescue Proceedings: Commentary on Mashwayi Projects v Wescoal and Others

by | Mar 15, 2026 | BTCLQ, BTCLQ V17 I1

Equal Treatment of Post-Commencement Creditors in Business Rescue Proceedings: Commentary on Mashwayi Projects v Wescoal and Others

Author: Siyabonga Nyezi

ISSN: 2219-1585
Affiliations: Legal Advisor, Nedbank
Source: Business Tax & Company Law Quarterly, Volume 17 Issue 1, 2025, p. 41 – 46

Abstract

This case note examines the treatment of post-commencement creditors in business rescue proceedings in South Africa, following the Supreme Court of Appeal ruling in Mashwayi Projects v Wescoal and Others [2025] 2 All SA 57 (SCA). Business rescue, regulated by Chapter 6 of the Companies Act 71 of 2008, aims to rehabilitate financially distressed companies. Attempts at rescuing the company must, in terms of section 7(k) of the Companies Act, also consider the interests of other stakeholders such as creditors. The main issue in Mashwayi was whether post-commencement creditors have voting rights in relation to a proposed business rescue plan in terms of section 152(2) of the Companies Act. Pre-commencement creditors argued for their exclusion, citing the absence of explicit legislative reference to post-commencement creditors. The Supreme Court of Appeal rejected this interpretation, holding that the term ‘creditor’ bears its ordinary meaning — any person to whom a debt is owed — and that the Companies Act does not distinguish between pre- and post-commencement creditors. This article aligns with the court’s view and asserts that equal recognition of creditors not only fosters confidence in the post-commencement credit market but also reinforces the principle of equitable stakeholder treatment.

Reckless indifference or legal intention? A doctrinal and jurisprudential analysis of S v Siyaya and the evolution of dolus eventualis in South African criminal law

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Reckless indifference or legal intention? A doctrinal and jurisprudential analysis of S v Siyaya and the evolution of dolus eventualis in South African criminal law

Author: Suhayfa Bhamjee

ISSN: 1996-2118
Affiliations: LLB LLM PhD (UKZN); Senior Lecturer, School of Law, UKZN (Pietermaritzburg)
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 341-360
https://doi.org/10.47348/SACJ/v38/i3a1

Abstract

The 2024 high court judgment in S v Siyaya presents a significant precedent in the realm of road traffic fatalities in South African criminal law. This article provides a comprehensive analysis of the judgment, focusing on the evidentiary findings, the application of dolus eventualis, and the implications for criminal liability in transport-related deaths. Dolus eventualis was central to the court’s reasoning, and represents a departure from the long-standing SCA decision in S v Humphreys. The court had to determine whether Siyaya foresaw the possibility of a fatal outcome and reconciled himself to that risk. The judgment delves into the nuances of dolus eventualis, distinguishing it from mere negligence or recklessness. Underscoring the need for a thorough examination of the accused’s state of mind and the foreseeability of harm, the case sets a precedent for holding individuals criminally liable for transport-related deaths when their actions exhibit a clear intent to disregard the safety of others. This article undertakes a doctrinal and jurisprudential analysis of the judgment, with a focus on the court’s application of dolus eventualis and its departure from the reasoning in S v Humphreys. The article also explores the theoretical and practical implications of the judgment, engaging with case law and scholarly commentary, and argues that the court in Siyaya correctly applied inferential reasoning to establish legal intention. The analysis is situated within the broader discourse on the distinction between dolus eventualis and luxuria, and the evolving standards of criminal liability in cases of extreme recklessness on South African roads. Siyaya reinforces the principle that individuals who consciously disregard the safety of others can be held criminally liable for their actions. This article provides an analysis of the legal reasoning, evidentiary findings, and implications of the judgment, contributing to the ongoing discourse on criminal liability and transport safety.

Prosecuting human trafficking at the international level: A case for Rome Statute reform

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Prosecuting human trafficking at the international level: A case for Rome Statute reform

Author: Meg James

ISSN: 1996-2118
Affiliations: LLB LLM (cum laude) (Stell); Assistant to the Ambassador, Royal Danish Embassy, The Netherlands
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 361-379
https://doi.org/10.47348/SACJ/v38/i3a2

Abstract

Human trafficking remains one of the most pervasive forms of modern exploitation, affecting millions globally, yet it lacks explicit recognition as a distinct international crime under the Rome Statute. Current legal frameworks, including the Rome Statute of the International Criminal Court, partially address trafficking through proximate categories such as enslavement or sexual slavery. However, these classifications often require proof of ownership-like control, fail to capture the full spectrum of trafficking practices, and leave significant groups of victims without recourse to justice. This article examines the definitional, historical, and jurisprudential distinctions between trafficking and slavery, evaluates the Rome Statute’s existing categories of crimes against humanity, and highlights the limitations of relying on legal proxies. Drawing on the Palermo Protocol and international case law, the article argues for the inclusion of trafficking as a standalone crime under the Rome Statute. It proposes specific amendments to article 7 and discusses the procedural and political challenges inherent in such reform. Recognising trafficking explicitly would enhance the International Criminal Court’s capacity to prosecute human trafficking, provide coherent legal protections for victims, and reinforce the international community’s commitment to combating modern slavery in all its forms.

Comparative view on the use of facial recognition technology by law enforcement in South Africa

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Comparative view on the use of facial recognition technology by law enforcement in South Africa

Author: Jacqui Meyer

ISSN: 1996-2118
Affiliations: LLB (UP) LLM (Unisa); Head of Law, Varsity College, Independent Institute of Education, Pretoria
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 380-424
https://doi.org/10.47348/SACJ/v38/i3a3

Abstract

The growing use of facial recognition technology (FRT) by law enforcement in South Africa presents urgent legal, ethical, and governance challenges. While FRT is often promoted as a tool to enhance safety and crime prevention, its deployment reveals deep tensions between technological efficiency and constitutional rights to privacy, dignity, and equality. This article examines the operation of contemporary FRT systems – rooted in machine learning and high-dimensional data analysis – highlighting their opacity and potential error and bias. It further explores the phenomenon of function creep, where surveillance technologies expand beyond their original intent, often without public awareness or regulatory oversight. Drawing on South African case examples, including Vumacam’s CCTV network and biometric data collection under the Independent Communications Authority of South Africa’s (ICASA) proposals, the article situates these developments within comparative frameworks such as the European Union’s Artificial Intelligence Act. It argues that South Africa urgently requires a comprehensive, human rights-based regulatory framework to prescribe the specific circumstances and safeguards for the law enforcement use of FRT. Such a framework would ensure proportionality, transparency, and accountability, thereby preventing technological advancements from outpacing legal protections.

Fitness-to-stand trial and disability discrimination: An international criminal justice appraisal in the Félicien Kabuga case

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Fitness-to-stand trial and disability discrimination: An international criminal justice appraisal in the Félicien Kabuga case

Author: Simeon P Sungi

ISSN: 1996-2118
Affiliations: LLB(Hons) LLM MA PhD; Associate Professor of Criminal Justice, Department of Sociology and Criminal Justice, United States International University-Africa, Kenya
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 425-449
https://doi.org/10.47348/SACJ/v38/i3a4

Abstract

The right to a fair trial is a fundamental element of international criminal justice, guaranteeing that every accused person has the mental and physical ability to effectively participate in their defence. When an accused’s fitness to stand trial is affected by age or disability, complex legal and ethical issues emerge between the pursuit of justice and protecting individual rights. This article critically explores these issues through the case of Félicien Kabuga, the alleged financier of the 1994 Rwandan genocide, whose advanced age and cognitive decline have sparked debates about his fitness to stand trial before the International Residual Mechanism for Criminal Tribunals. The analysis questions whether continuing proceedings against Kabuga aligns with the right to a fair trial under international law and the principles of non-discrimination outlined in the Convention on the Rights of Persons with Disabilities. Using jurisprudence from international and regional human rights bodies, the article assesses how international criminal tribunals have interpreted fitness to stand trial and how disability considerations have been incorporated into procedural safeguards. It argues that current international criminal law frameworks are insufficiently addressing the link between disability rights and criminal accountability, potentially leading to indirect discrimination against accused persons with disabilities. The article contributes to the debate by proposing a normative and policy-based framework for integrating disability-sensitive standards into international criminal procedures. It advances the debate on procedural fairness by connecting the equality obligations of the Convention on the Rights of Persons with Disabilities’s with the operational practices of international tribunals. In doing so, it offers new insights into how global justice institutions can balance accountability for atrocity crimes with human rights norms on disability, inclusion, and dignity in the justice process.