Procedural fairness in executive decision-making: A different take

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

ARTICLE

Procedural fairness in executive decision-making: A different take

Author: Michael Tsele

ISSN: 1996-2177
Affiliations: Advocate, Cape and Johannesburg Bars; Honorary Research Associate, Rhodes University
Source: South African Law Journal, Volume 142 Issue 1, p. 69-98
https://doi.org/10.47348/SALJ/v142/i1a6

Abstract

This article considers two issues. The first continues to cause controversy nearly two decades after the decision which gave rise to it was handed down. It relates to whether executive decisions are (or should be) constrained by procedural-fairness requirements and, if so, when and how. At the centre of this debate is the Constitutional Court’s decision in Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC), in which the apex court held that it was ‘inappropriate to constrain the exercise of executive power to the requirements of procedural fairness’. I consider the common criticisms of Masetlha and argue, contrary to other commentators, that the decision was neither ‘unprecedented’ nor so untenable as to justify statements to the effect that it is ‘obviously wrong’ and ‘at odds with the Constitution’. I further argue that there are sound reasons to justify the reasoning in Masetlha. The second issue I consider has not been squarely decided by the Constitutional Court: whether the effect of Masetlha is that an executive decision made by an executive functionary is not constrained by the rule against bias. Surprisingly, this has received limited academic interrogation in the wake of Masetlha. I argue that a High Court decision that addressed the issue did so without proffering a jurisprudentially clear and sound basis for its conclusions.

The trade requirement is obsolete for tax purposes

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

ARTICLE

The trade requirement is obsolete for tax purposes

Author: Thabo Legwaila

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 142 Issue 1, p. 99-128
https://doi.org/10.47348/SALJ/v142/i1a7

Abstract

The Income Tax Act 59 of 1962 requires that a taxpayer should be carrying on a trade to be able to deduct expenses in terms of the general deductions formula, to deduct interest in terms of the specific provisions applicable to interest, or to set off assessed losses. The meaning of ‘trade’ has been the subject of many court cases. These cases have assigned varied and divergent meanings to the term ‘trade’. The result has been that it has become a complex term that complicates the deductibility rules without adding much value to the rules. This article considers this trade requirement’s continued relevance and importance and concludes that it is obsolete and ineffective, and adds no value to the deductibility provisions. The essence of the trade requirement is a duplication of the ‘production of the income’ requirement in the general deduction formula. It is also too broad for interest deductibility provisions, meaning that it lacks effect and is too restrictive in the assessed losses provisions. This disadvantages struggling businesses. The article recommends removing the trade requirement from the Income Tax Act.

Tax judgments and company law: Evidence of corporate governance concerns

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

ARTICLE

Tax judgments and company law: Evidence of corporate governance concerns

Author: Tracy Gutuza

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 142 Issue 1, p. 129-150
https://doi.org/10.47348/SALJ/v142/i1a8

Abstract

The article considers the role of tax disputes as a signal of a company’s approach to corporate governance by considering two tax disputes between the South African Revenue Service and the Steinhoff group. It seeks to illustrate the role of tax disputes as a signal of corporate governance concerns through an analysis of the two cases, namely CSARS v Capstone 556 (Pty) Ltd and CSARS v Kluh Investments (Pty) Ltd. The tests used in determining tax liability can be difficult to navigate where the respective roles of the board of directors, the directors and the shareholders are not clear, with de facto and de jure ownership and control shifting between the various parties. This may create uncertainty about who is actually in control of the company and who is legally in control of the company. An in-depth analysis of these two cases shows that tax disputes can alert stakeholders and serve as a warning that something is amiss in the governance of the company.

Aiding and abetting, and bringing about a pattern of criminal gang activity under the Prevention of Organised Crime Act

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

ARTICLE

Aiding and abetting, and bringing about a pattern of criminal gang activity under the Prevention of Organised Crime Act

Author: D C van der Linde

ISSN: 1996-2177
Affiliations: Associate Professor, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 1, p. 151-174
https://doi.org/10.47348/SALJ/v142/i1a9

Abstract

The Prevention of Organised Crime Act 121 of 1998 (‘POCA’) introduced six new offences aimed at combating criminal gang activities around the country, and especially in the Cape Flats area in Cape Town. Despite the state’s ambitious efforts to criminalise certain conduct associated with criminal gang activities, only two offences under POCA have been commonly employed against those who have committed gang-related offences, namely aiding and abetting a criminal gang under s 9(1)(a) and bringing about a pattern of criminal gang activity under s 9(2)(a), respectively. The legal framework has also raised several interpretative complexities that have led to legal uncertainty. This article examines and deconstructs the offences contained in POCA, in light of established common-law principles and significant judgments dealing with the provisions, in an attempt to clarify some of the ambiguity. Finally, the article makes suggestions for legislative intervention.

Ownership of personal information?

Ownership of personal information?

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

ARTICLE

Ownership of personal information?

Author: Donrich Thaldar

ISSN: 1996-2177
Affiliations: Professor of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 142 Issue 1, p. 175-198
https://doi.org/10.47348/SALJ/v142/i1a10

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Donrich Thaldar
Ownership of personal information?
South African Law Journal, Volume 142 Issue 1, p. 175-142 https://doi.org/10.47348/SALJ/v142/i1a10

Abstract

This article explores whether personal information can be owned and, if so, by whom. It begins with an overview of fluctuating judicial attitudes toward personal information ownership, highlighting the need for a thorough analysis of how the foundational tenets of ownership apply to personal information, particularly in digital form. The analysis clarifies that ownership is a concept rooted in property law, necessitating that questions of personal information ownership be answered within the ambit of property law, rather than informational privacy law. Building on this theoretical base, it becomes clear that while personal information in general does not meet the criteria for ownership, a specific digital instance of such information — that is, a computer file containing personal information — indeed meets the criteria and is therefore susceptible of ownership. When a new instance of information is generated, property law dictates that the first person to exercise control over it with the intent of ownership thereby becomes its owner. However, the data subject’s informational privacy rights impose limitations on the owner’s property rights. This interplay between informational privacy law and property law lays a crucial foundation for the legal governance of personal information in the digital age.

Realising socio-economic rights in an unequal society

by | Feb 1, 2025 | SLR, SLR V35 I1

Realising socio-economic rights in an unequal society

Author: J Kollapen

ISSN: 1996-2193
Affiliations: Justice of the Constitutional Court of South Africa
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 1 – 20
https://doi.org/10.47348/SLR/2024/i1a1

Abstract

The colonial and apartheid systems created widespread poverty and inequality which, in tandem with each other, shaped the lives of millions of our people. The Constitution of the Republic of South Africa, 1996, beyond recognising this legacy, contains a clear and unconditional commitment to fundamentally changing it. This contribution explores the achievements and challenges in redressing poverty and inequality, two key elements of the legacy of apartheid, which continues to plague South African society 30 years after the first democratic elections. It focuses on the relationship between equality and socio-economic rights, and the evolving constitutional jurisprudence on these rights. It proceeds to examine the implications of the chasm between the public and private spheres of our society in redressing the inequalities in our society, raising the question of redistributive justice. Thereafter this contribution examines the role of the courts in addressing poverty and inequality. It identifies the important role that context-sensitive adjudication can play, while also highlighting the institutional constraints of the judiciary. The contribution concludes by exploring the reasonableness model of review for adjudicating socio-economic rights claims. It identifies the features of reasonableness review that enable courts to promote government accountability for socio-economic rights realisation while respecting the separation of powers doctrine. The paper concludes that while courts have a vital role to play, addressing poverty and inequality is ultimately a joint responsibility shared by the people of this country.

Alternative assessment in undergraduate legal education in South Africa: A positive side effect of the pandemic?

by | Feb 1, 2025 | SLR, SLR V35 I1

Alternative assessment in undergraduate legal education in South Africa: A positive side effect of the pandemic?

Authors: JG Horn and L van Niekerk

ISSN: 1996-2193
Affiliations:BProc LLB LLM MA (HES) LLD, Senior lecturer, University of the Free State; LLB PG DIP (FINANCIAL PLANNING LAW) LLM MA (HES), Lecturer, University of the Free State
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 21 – 39
https://doi.org/10.47348/SLR/2024/i1a2

Abstract

The global Covid-19 pandemic resulted in a transition to online teaching and learning, which prompted higher education institutions to reconsider their assessment methods. Soon, implementing the most appropriate assessment approach to encourage students to engage with the study material on an ongoing basis and which would lead to a deeper understanding of module content became an exciting challenge in the completely remote learning scenario. Grappling with this challenge, lecturers in the Faculty of Law at the University of the Free State implemented alternative assessment methods in a Legal Skills first-year module and a Law of Property third-year module. By using the action research method to implement change, observe the change and critically reflect on the outcome, the authors report on the valuable lessons that they have learned from this exercise. This contribution provides an account of the benefits and drawbacks of traditional versus alternative assessment methods and a critical perspective on the practicality of using alternative assessment tools in undergraduate programmes.

The meaning of “financial assistance” in terms of section 45 of the Companies Act 71 of 2008

by | Feb 1, 2025 | SLR, SLR V35 I1

The meaning of “financial assistance” in terms of section 45 of the Companies Act 71 of 2008

Author: Etienne Olivier

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Lecturer, University of the Western Cape
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 40 – 60
https://doi.org/10.47348/SLR/2024/i1a3

Abstract

In South African law, a company that wishes to provide financial assistance to one of its directors, a related juristic person, or to a person related to a director or related juristic person, must comply with the requirements contained in section 45 of the Companies Act 71 of 2008 to validly execute such a transaction. The Act contains no precise definition of the term “financial assistance”, causing commentators to speculate that the reach of section 45 may be extremely wide. However, in Constantia Insurance Co Ltd v Master, Johannesburg High Court 2023 5 SA 88 (SCA), the Supreme Court of Appeal interpreted “financial assistance” narrowly. In this contribution, the Court’s restrictive interpretation of the term is critically analysed. I argue that the Court’s decision was correct and that its interpretation of “financial assistance” is consistent with the objectives of South African company law because it is likely to improve business efficiency without unduly prejudicing a company’s stakeholders. I also propose that the necessity for related-party financial assistance provisions should be reconsidered.