Objective intention and subjective motive: Clarifying gross income judgments in the Supreme Court of Appeal

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

NOTE

Objective intention and subjective motive: Clarifying gross income judgments in the Supreme Court of Appeal

Author: Afton Titus

ISSN: 1996-2177
Affiliations: Associate Professor, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 3, p. 427-441
https://doi.org/10.47348/SALJ/v143/i3a1

Abstract

This case note reconstructs a consistent method for the Supreme Court of Appeal’s use of the taxpayer’s objective intention and subjective motive when classifying profits on the disposal of an asset as income or capital. It argues that the court has largely been consistent in applying the two-step test set out in CIR v Stott. Step 1 identifies whether the taxpayer is trading, in which case the taxpayer’s objective intention is used. Step 2 applies in the absence of a trade or where the transactions fall outside the identified trade. Here, the taxpayer’s subjective motive is used. Furthermore, this note identifies a narrow, fact-bound virtual certainty exception. A revenue intention is imputed in circumstances of foreknown virtual inevitability of profits, akin to indirect intention in criminal law. Read in this way, the SCA cases reveal a consistent methodology in the use of the taxpayer’s objective intention and subjective motive.

Excessive speeding and the limits of traffic law enforcement: A note on Zilwa v MEC for Transport and Public Works

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

NOTE

Excessive speeding and the limits of traffic law enforcement: A note on Zilwa v MEC for Transport and Public Works

Author: Boyane Tshehla

ISSN: 1996-2177
Affiliations: Senior Lecturer, North-West University
Source: South African Law Journal, Volume 143 Issue 3, p. 442-452
https://doi.org/10.47348/SALJ/v143/i3a2

Abstract

This note examines Zilwa v MEC for Transport and Public Works, a Western Cape High Court judgment that declared unlawful a warrantless arrest and detention for excessive speeding. While the judgment reaffirms and emphasises the constitutional sanctity of the right to liberty, it seems to depart from the wording of s 40(1)(b) of the Criminal Procedure Act 51 of 1977, read with Schedule 1 and s 89 of the National Road Traffic Act 93 of 1996. Assessing the Zilwa judgment against the Supreme Court of Appeal decision in Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) suggests that the court may have taken a route that sits uncomfortably with precedent. The court may also have created a form of operational paralysis or, at least, added another administrative layer in traffic law enforcement.

The limits of liability waivers: Insights from Tourvest Holdings (Pty) Ltd v Murti

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

NOTE

The limits of liability waivers: Insights from Tourvest Holdings (Pty) Ltd v Murti

Author: Abraham Klaasen

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, North-West University
Source: South African Law Journal, Volume 143 Issue 3, p. 453-472
https://doi.org/10.47348/SALJ/v143/i3a3

Abstract

This note highlights the limits to liability waivers issues arising from the court’s reasoning in Tourvest Holdings (Pty) Ltd v Murti 2026 (3) SA 539 (SCA). The note addresses several issues arising from the judgment, including the role of consensus, the Consumer Protection Act 68 of 2008, constitutional values and public policy considerations in the validity of liability waivers.

Omissions and pure economic loss revisited: Wrongfulness and the conceptual basis for delictual liability

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

ARTICLE

Omissions and pure economic loss revisited: Wrongfulness and the conceptual basis for delictual liability

Author: Liso Zenani

ISSN: 1996-2177
Affiliations: DPhil candidate, Faculty of Law, University of Oxford
Source: South African Law Journal, Volume 143 Issue 3, p. 473-512
https://doi.org/10.47348/SALJ/v143/i3a4

Abstract

This article examines the role of wrong fulness as a conceptual basis for liability in delict, focusing largely on cases of omissions and pure economic loss. I argue that the wrong fulness enquiry is best understood not as a single undifferentiated policy judgment, but as a structured three-step enquiry. First, the court asks whether the defendant owed the plaintiff a recognised legal duty and whether that duty was breached. If no such duty exists, the enquiry turns to whether the legal convictions of the community justify recognising a new general duty of that kind. Thirdly, and crucially, where such a duty exists and was breached, the court must determine whether those legal convictions warrant the imposition of delictual liability in the circumstances. On this account, breach of duty does not automatically entail wrong fulness: the first and third steps perform distinct tasks and should never be collapsed. I further argue that the content of the duty at step 1 should not be framed as a duty not to cause harm negligently, but rather as a strict duty to refrain from particular harm-causing conduct, leaving questions of fault to be addressed primarily at the stage of imposing liability.

Central Bank Digital Currency in South Africa: A bridge on the road to financial inclusion and a cashless society

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

ARTICLE

Central Bank Digital Currency in South Africa: A bridge on the road to financial inclusion and a cashless society

Authors: Thomas Ross Mitchell & Michelle Kelly-Louw

ISSN: 1996-2177
Affiliations: Research student, Faculty of Law, University of Cape Town; Professor, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 3, p. 513-538
https://doi.org/10.47348/SALJ/v143/i3a5

Abstract

South Africa is moving toward digital payments, and a retail central bank digital currency (‘CBDC’) could reduce cash reliance and promote financial inclusion. Using the International Monetary Fund’s REDI framework (an acronym for Regulation, Education, Design & Deployment and Incentives), a retail CBDC could encourage broader access to digital payments and support a more inclusive financial sector in South Africa. A retail CBDC could tackle mistrust of financial institutions, low financial (and digital) literacy, inadequate infrastructure, and high transaction costs. Regulation would update laws for safe use; education would build trust and literacy, especially in low-income areas; design and deployment would ensure secure, user-friendly, interoperable and offline-accessible systems with phased rollouts and low fees; and incentives such as cashback, discounts or tax breaks could encourage adoption amongst consumers and merchants. While the South African Reserve Bank considers a retail CBDC feasible, it currently prioritises modernising the payments system, supporting fintech and exploring wholesale applications. We conclude that modernisation is the essential first step, creating a secure, adaptable foundation, while a REDI-aligned retail CBDC could later complement cash, reduce reliance on physical currency and expand access to digital financial services, fostering a more inclusive financial sector for South African consumers.

Safeguarding collective bargaining in South Africa in the absence of a duty to bargain

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

ARTICLE

Safeguarding collective bargaining in South Africa in the absence of a duty to bargain

Author: M E Manamela

ISSN: 1996-2177
Affiliations: Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 143 Issue 3, p. 539-571
https://doi.org/10.47348/SALJ/v143/i3a6

Abstract

The Constitution provides for the right to engage in collective bargaining, and the Labour Relations Act 66 of 1995 (‘LRA’) regulates and gives effect to this right. However, neither source imposes a duty upon the parties to bargain with each other. The article examines the right to engage in collective bargaining and the nature of collective bargaining in South Africa. It explores various mechanisms under the LRA that encourage and advance collective bargaining, in the absence of a duty to bargain. These mechanisms include provisions relating to the protection of the right to freedom of association; organisational rights; industrial action; centralised bargaining; and the extension of collective agreements in terms of ss 23(1)(d) and 32 of the LRA. The article then considers the position in the US, the UK, Canada and Tanzania, where a duty to bargain in good faith is enacted in legislation. It argues that the voluntary system of collective bargaining in South Africa faces some challenges. The article suggests that there might be a need to recognise the duty to bargain in good faith, and perhaps to reintroduce bad-faith bargaining as a form of unfair labour practice. It argues that the duty to bargain in good faith is necessary to safeguard the collective bargaining system.