Wenzeni uZuma: A jurisprudential study of the unlawfulness of corruption in Africa

by | Jul 15, 2023 | SACJ, SACJ V35 I3 2022

Wenzeni uZuma: A jurisprudential study of the unlawfulness of corruption in Africa

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2118
Affiliations: LLB (Wits) LLM (Cape Town) PhD (Nottingham), Lecturer in Public Law, Faculty of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 35 Issue 3, p. 285 – 306
https://doi.org/10.47348/SACJ/v35/i3a1

Abstract

In response to the multitude of corruption allegations levelled against him, former president Zuma and his supporters typically sing a song called ‘Wenzeni uZuma’ (‘What has Zuma done wrong?’). This paper takes up this question from a jurisprudential (theoretical) point of view; that is, by probing the various senses in which prima facie corrupt conduct can be said to be unlawful in Africa. This question is explored through the application of the conceptual machinery of argumentation theory and criminal law theory. This paper discusses the Feinbergian, positivistic, contractual, legal moralism and the argumentum ad ignorantiam senses in which prima facie corrupt conduct can be said to be unlawful. It is then argued that prima facie corrupt conduct should most appropriately be conceived of as being unlawful in the contractual sense that a designated official diverts a particular benefit away from a de jure beneficiary and towards a de faco beneficiary.

Mixing old and new wisdom for the protection of image-based sexual abuse victims

by | Jul 15, 2023 | SACJ, SACJ V35 I3 2022

Mixing old and new wisdom for the protection of image-based sexual abuse victims

Author: BN Martin

ISSN: 1996-2118
Affiliations: LLB (UFS) LLM, Lecturer in Law, School of Law, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 35 Issue 3, p. 307 – 330
https://doi.org/10.47348/SACJ/v35/i3a2

Abstract

Image-based sexual abuse, more popularly but inadequately referred to as ‘revenge porn’, has emerged as a prolific modern-day plague. This author asserts that, in light of its impact and severity, the criminal law, as opposed to private law remedies, is the preferable legal response to image-based sexual abuse (IBSA). Thus, it is commendable that South African lawmakers have responded to IBSA with criminal sanctions, specifically targeting this phenomenon through s 18F of the Films and Publications Amendment Act 11 of 2019 and s 16 of the Cybercrimes Act 19 of 2020. Despite having two acts responding to one problem, these new legislative additions mix admirably with the existing offence of crimen injuria in providing adequate protection for victims of IBSA in South Africa. Where the broadly defined offence of crimen injuria lacks detail, s 18F and s 16 provide more precision. Section 18F and s 16, although not without internal issues, clarify the extent of unlawful conduct, provide clear penalty guidelines, highlight the intolerable nature of IBSA and offer additional support measures to victims of IBSA through protective orders. However, while advantageous, these legislative additions may not respond effectively to all cases of IBSA, especially when s 18F and s 16 are overly restrictive in application. Where the perpetration of IBSA warrants a harsher penalty than what is stipulated in both Acts or where IBSA subtly evades the protection of both Acts, the offence of crimen injuria provides a flexible alternative. It is this mutually supportive interplay that validates the assertion that South African law does provide adequately for victims of IBSA.

Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (3)

by | Jul 15, 2023 | SACJ, SACJ V35 I3 2022

Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (3)

Author: Chuks Okpaluba

ISSN: 1996-2118
Affiliations: LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 35 Issue 3, p. 331 – 355
https://doi.org/10.47348/SACJ/v35/i3a3

Abstract

The discussion of the South African cases involving wrongful police shootings and the damages awarded in that regard formed the subject of the discussion in the first part of this series. That discussion continued in the earlier section of part (2) whereas the discussion of the experiences of Lesotho and Malawi concludes that part of the article. The current part (3) concentrates on the developments in Namibia and Swaziland/Eswatini. A perusal of the Namibian case law reveals a Namibian Supreme Court judgment in Crown Security CC v Gabrielsen 2015 (4) NR 907 (SC) where damages were awarded for the bodily injuries and deprivation of personal liberties caused by a security officer. Also discussed here are those cases of police and military officers’ shootings and assaults in Eswatini where the claimants, in many instances, failed to prove such assaults and shootings. The series ends in this last part with a conclusion.

Comment: Loyiso Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (8 October 2021): Oblique subscription to rape myths as an indication of the urgent need to reform the mens rea test in acquaintance rape cases in South Africa

by | Jul 15, 2023 | SACJ, SACJ V35 I3 2022

Comment: Loyiso Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (8 October 2021): Oblique subscription to rape myths as an indication of the urgent need to reform the mens rea test in acquaintance rape cases in South Africa

Author: Mispa Roux

ISSN: 1996-2118
Affiliations: University of Pretoria
Source: South African Journal of Criminal Justice, Volume 35 Issue 3, p. 356 – 372
https://doi.org/10.47348/SACJ/v35/i3a4

Abstract

None

How Foreign is Your Business Establishment?

by | Jul 2, 2023 | BTCLQ, BTCLQ V14 I2

How Foreign is Your Business Establishment?

Author: David Clegg

ISSN: 2219-1585
Affiliations: Tax Consultant, Cape Town
Source: Business Tax & Company Law Quarterly, Volume 14 Issue 2, 2023, p. 1 – 7

Abstract

The introduction of full residence-based taxation in 2001 brought with it the concept of a ‘Controlled Foreign Company’ (CFC), whose profits (calculated on SA income tax principles) would be attributed to qualifying South African shareholders (‘participants’) as taxable income. Exempted from attribution were those profits of a CFC which arose from a ‘business establishment’, a term which was tightly defined and relied in part upon the establishment displaying the hallmarks of a real operating business in the foreign country and not having been set up for the purpose of tax avoidance. Since those early days, the definition of what is now a ‘foreign business establishment’ (FBE) has undergone detail change. Today, and central to the definition, is the requirement that in order to qualify there must be a ‘fixed place of business’ located in the foreign country and ‘used for the carrying on of the business of the CFC , … where that fixed place of business is (inter alia) … suitably staffed with on-site managerial and operational employees … who conduct the primary operations of that business …’. Over the years there has been much comment in the tax specialist press dealing with the extent to which the operations of an FBE can be outsourced, before it is no longer ‘suitably staffed’ for conducting its primary operations. Silke and Income Tax South Africa took slightly different positions on this issue and now the SCA has handed down judgement in Commissioner for the South African Revenue Service v Coronation Investment Management SA (Pty) Ltd 2023 JDR 0295 (SCA), which sets out that court’s view on the point. In Volume 14, Issue 1 of this journal Wally Horak criticised elements of this judgment and in this edition David Clegg raises some additional concerns. These are whether the court was correct in its identification of the ‘primary operations’, and in finding that a ‘primary operation’ cannot, in principle, be outsourced. Clegg also addresses what he sees as a fundamental mistake made by the taxpayer, in setting up his foreign business.

Can Directors in a Private Company have Weighted Voting Rights at Board Meetings?

by | Jul 2, 2023 | BTCLQ, BTCLQ V14 I2

Can Directors in a Private Company have Weighted Voting Rights at Board Meetings?

Author: Matthew Blumberg SC

ISSN: 2219-1585
Affiliations: N/A
Source: Business Tax & Company Law Quarterly, Volume 14 Issue 2, 2023, p. 8 – 12

Abstract

The Companies Act implicitly permits the memorandum of incorporation of a company to depart from the default or general position of ‘one director, one vote’. But, as I have endeavoured to set out, the freedom to do so is not unlimited. A regime for directors’ voting rights that weights votes in proportion to the shareholding of the shareholder that appointed the director in question should in my view withstand court scrutiny. It is simply another means by which to confer majority control over the board (in the sense explained below) — which is in line with the company law principle of majoritarianism, and in my view unobjectionable. That the weighting of directors’ voting rights results in a situation in which individual directors have equal responsibilities, but unequal ‘rights’, is in my view not in itself problematic. Duties are imposed on individual directors in order to ensure the effective governance of companies (not because those duties are commensurate with the director’s ‘rights’). Thus, the diminution of a director’s ‘rights’ need not bring about a commensurate reduction in his or her responsibilities.