ISSN: 1996-2177
Affiliations: Former Judge President of the Cape High Court
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 937 – 940
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ISSN: 1996-2177
Affiliations: Legal Resources Centre, Grahamstown; Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 928 – 936
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ISSN: 1996-2177
Affiliations: Senior Lecturer, University of Stellenbosch
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 907 – 927
Like so many other entities, trusts often do not function only in one jurisdiction. They may be employed in international transactions, and therefore the trust runs the risk of international double taxation, as do the parties to the trust. South Africa has developed a law of trusts that is unique to this country. It therefore has to be determined how a court would interpret and apply the provisions of a double-taxation agreement, patterned on the OECD Model Tax Convention and to which South Africa is a party, to such a trust. This article explores whether a trust may be regarded as a person for purposes of such a double-taxation agreement. If a trust cannot show that it is a person in terms of the relevant double-taxation agreement, it will not be able to claim the benefits of the agreement. Although it is concluded that a trust will be regarded as a person from a South African perspective, recommendations are made which will put the matter beyond doubt.
ISSN: 1996-2177
Affiliations: Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 870 – 906
The possibility of the abandonment of land in South African law has received relatively little attention from academics. This article seeks to engage with the arguments proposed by academics who have written on this question in order to attempt to bring some clarity to the issue. Whether abandonment of ownership in land is possible needs to be determined from an evaluation of the relevant common-law principles as well the relevant provisions of the Deeds Registries Act 47 of 1937, in light of the principle of publicity. It is not, however, sufficient to determine whether abandonment of land is possible. It also needs to be asked whether such abandonment should be permitted in the first place and, if so, in what circumstances. In order to answer these questions, it is useful to engage in comparative research. Switzerland provides an example of a jurisdiction with a permissive regime in respect of the abandonment of land (Dereliktion). While there are a number of lessons that can be learnt from the Swiss approach, its permissive model is not necessarily an ideal one for South Africa to adopt.
ISSN: 1996-2177
Affiliations: Senior Lecturer, Bowen University, Iwo, Osun State; Former Postdoctoral Fellow, Department of Jurisprudence, College of Law, University of South Africa
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 847 – 869
Traditional knowledge on the medicinal uses of plants (‘TKMUP’) is regarded mostly as a form of communal property in South Africa. This is despite the fact that the use and nurturing of such mostly confidential or specialist knowledge within the traditional knowledge (‘TK’) system is usually the preserve of traditional healers. Understandably, there are socio-cultural reasons for the communality of TKMUP in South Africa. However, the communal nature of TK raises two particular issues that may not augur well for the economic interests of traditional healers in the commercialisation of this knowledge. These are that a traditional healer cannot patent the knowledge, except perhaps with the consent of his or her community; and that the benefits arising from the commercial exploitation or commercialisation of the knowledge will go to the community or, at the very best, that the interests of the traditional healers in profiting from such endeavour will be tied to that of their community. The latter implies that traditional healers would only benefit from such commercialisation when their indigenous communities decide to pass on the externally generated incentives to them. This scenario seems improbable, considering the various complaints about the current state of traditional-leadership structures in South Africa. This article examines this concept of communality of TKMUP, particularly as it relates to the sharing of benefits arising from the commercialisation of indigenous knowledge in South Africa.
ISSN: 1996-2177
Affiliations: Senior Lecturer and Manager: Legal Aid Clinic, Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 824 – 846
In a personal injury class action, the extent of the injuries and the quantum of damages suffered by each member are individual issues. The problem is that in a personal injury class action, if the class consists of a large number of victims and each victim is required to present oral evidence to prove his or her damages individually, the trial may take years to conclude, and some claimants could possibly pass away by the time the court delivers judgment. It would overburden proceedings and cause undue delay. Accordingly, it is necessary, in such circumstances, to utilise alternative innovative, practical and time-efficient procedures that would enable the determination of each individual’s damages. Our courts have not properly considered the approach to be followed when determining damages in mass personal injury class actions. This article evaluates certain alternative methods to determine damages in mass personal injury class actions in view of the existing procedural framework developed by our courts, with specific regard to the approaches followed by certain foreign jurisdictions.