Taxpayer insolvent estates: Constitutional juristic persons?

by | Jan 3, 2020 | SALJ, SALJ V136 I2 2019

Taxpayer insolvent estates: Constitutional juristic persons?

Author Fareed Moosa

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 136 Issue2, p. 361-383

Abstract

Section 8(4) of the Bill of Rights confers on juristic persons an entitlement to constitutional rights. In this context, ‘juristic person’ has an imprecise meaning. No hard and fast rules can be laid down in advance as to which entities will qualify for the benefits of s 8(4). Each claim to an entitlement must be adjudicated on its merits. This article argues that, for purposes of s 8(4), recognition as a person in the eyes of either the common law, customary law, legislation or the Bill of Rights ought to lie at the heart of our constitutional conception of ‘person’. Having regard to the transformative potential of s 8(4), and applying grammatical, contextualist, purposive and teleological techniques of interpretation, this article advocates that the notion of ‘person’ under s 8(4) is not confined to the traditional common-law notion applied in private law. Rather, constitutional persons include entities recognised in legislation as persons with legal personality. Accordingly, this article concludes that taxpayer insolvent estates, designated as persons under the fiscal laws of South Africa, qualify in this capacity as beneficiaries of s 8(4) so that, during tax administration by the South African Revenue Service and its officials, they may seek refuge in relevant entrenched rights.

‘Deemed’ to be an employee: Adopting the teleological interpretation of statutes

by | Oct 22, 2019 | SALJ, SAMLJ, SAMLJ V30 I3

‘Deemed’ to be an employee: Adopting the teleological interpretation of statutes

Authors Marius van Staden, Stefan van Eck

ISSN: 1996-2185
Affiliations: Doctoral Candidate, University of Pretoria; Professor, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 416 – 433

Abstract

Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘deemed’ provisions of employment to assist in the identification of the parties to triangular employment relationships. This article explores the significance of statutory interpretation in identifying the parties to the employment relationship and the approach of the judiciary in interpreting the term ‘deemed’. The ‘teleological model’ of statutory interpretation is described and the interpretive approach of the Labour Appeal Court is assessed against this model. Teleological interpretation requires that legislative provisions be interpreted to advance their purpose in light of constitutional values. The interpretation that best advances constitutional values must be preferred. In determining such a constitutionally appropriate meaning of the provision, the courts must also have regard to the textual, contextual, teleological, historical, and comparative elements in which the provision occurs. In a recent decision, the Labour Appeal Court failed to consider key constitutional values, the history of the legislative provision, and the comparative law dimension in which the relevant legislative provision is found. The court made little attempt to understand the historical circumstances that led to the adoption of the statutory provision and considered no comparative experience.