South Africa’s Exchange Control Regulations and ‘Loop Structures’: The Income Tax Implications of the Removal of the Restrictions with Effect from 1 January 2021

by | Oct 23, 2022 | SAMLJ, SAMLJ V34 I1

South Africa’s Exchange Control Regulations and ‘Loop Structures’: The Income Tax Implications of the Removal of the Restrictions with Effect from 1 January 2021

Author: Annet Wanyana Oguttu

ISSN: 1996-2185
Affiliations: Professor, Department of Taxation and the African Tax Institute in the Faculty of Economic and Management Sciences, University of Pretoria
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 88 – 117
https://doi.org/10.47348/SAMLJ/v34/i1a4

Abstract

This article analyses the implications of the income tax provisions introduced to address the potential tax avoidance that could arise from the lifting of the exchange control restrictions on ‘loop structures’ which were effected from 1 January 2021. Most South Africans and foreign investors do not quite understand the operation and implications of exchange controls due to the complexity of these regulations, and the perception that it is difficult to move money in and out of South Africa. Since the removal of exchange control restrictions on loop structures does not apply to existing unauthorised loop structures, this paper also provides a broader understanding of the operation of exchange controls regarding loop structures. The article first explains the administration of exchange controls and how the restrictions of exchange controls on loop structures have been relaxed over the years, and then it explains the 2021 removal of the restriction on loop structures as well as the amendments to the Income Tax Act to curtail tax avoidance risks.

Case Notes: An Exploratory Analysis of Central Bank Digital Currencies – Some Considerations

by | Oct 23, 2022 | SAMLJ, SAMLJ V34 I1

Case Notes: An Exploratory Analysis of Central Bank Digital Currencies – Some Considerations

Author: Vivienne Lawack

ISSN: 1996-2185
Affiliations: University of the Western Cape
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 118 – 134
https://doi.org/10.47348/SAMLJ/v34/i1a5

Abstract

The history of central banking began with payment services. Ever since then, payment-related innovation has always been an integral part of central banking (BIS Committee on Payments and Market Infrastructures and Markets Committee Report, ‘Central Bank Digital Currencies’ (2018) iii). Payments have evolved extensively over the years with the emergence of various technologies, from the development of real-time gross settlement (‘RTGS’) systems, to electronic money and mobile money, to name a few. The arrival of financial technologies or ‘fintech’ has led to cryptocurrencies and now central bank digital currency (‘CBDC’) (on cryptocurrencies, see Reddy & Lawack, ‘An overview of the regulatory developments in South Africa regarding the use of cryptocurrencies’ (2019) 31 SA Merc LJ 1–28; see also Deloitte, ‘Are Central Bank Digital Currencies (CBDCs) the money of tomorrow?’, available at https://www2.deloitte.com/ie/en/pages/financial-services/ articles/central-bank-digital-currencies-money-tomorrow.html, accessed on 3 May 2021). A CBDC represents another potential innovation in the area of an evolving branch of the law called ‘fintech law’. This exploratory analysis provides an overview of the meaning of CBDC and the legal nature of money and CBDC. In addition, it provides a broad overview of some legal implications, policy considerations and regulatory issues. Challenges and risks are also highlighted.

Case Notes: Jurisdictional Quandaries Triggered by a New Variant for Dismissal

by | Oct 23, 2022 | SAMLJ, SAMLJ V34 I1

Case Notes: Jurisdictional Quandaries Triggered by a New Variant for Dismissal

Author: Tumo Charles Maloka

ISSN: 1996-2185
Affiliations: University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 135 – 151
https://doi.org/10.47348/SAMLJ/v34/i1a6

Abstract

While the imperative tone of the Constitutional Court (CC) in Steenkamp v Edcon Ltd (2016) 37 ILJ 564 (CC) (Steenkamp I) leaves no doubt that the Labour Relations Act 66 of 1995 (LRA) does not contemplate invalid dismissals or an order declaring a dismissal invalid, or of no force or effect, the extent of the Labour Court’s (LC) jurisdiction to grant appropriate relief declaring dismissals unlawful and invalid because they constitute encroachment of the applicants’ fundamental rights is a vexed question. In Steenkamp I it was decided that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA. What this means is that the LC lacks jurisdiction to make any determination of unlawfulness. A multi-layered and complex jurisdictional problem arose in Chubisi v SABC (SOC) Ltd (2021) 42 ILJ 395 (LC) (Chubisi) where the question was whether Ms Chubisi could obtain a declaratory order that the termination of her contract of employment was unconstitutional, unlawful, invalid and of no force and effect. At issue was the termination of employment pursuant to non-recognition of the employee’s contract by the public broadcaster ostensibly to give effect to the Public Protector’s remedial actions. There is no doubt that the remedial actions of the Public Protector have a binding effect, unless, of course, they are reviewed and set aside (EFF v Speaker of the National Assembly 2016 (3) SA 580 (CC); see also Mhango & Dyani-Mhango, ‘The powers of the South African Public Protector: A note on Economic Freedom Fighters v Speaker of the National Assembly’ 2020 African Journal of Legal Studies 1). The court held in Chubisi that the termination of the applicant’s contract of employment by the South African Broadcasting Corporation (SABC) was unlawful, invalid and of no force and effect. The question that arises, therefore, is whether the LC in granting a declaratory order to the effect that the termination of employment was unlawful and invalid misinterpreted and misconstrued the ratio of Steenkamp I. To answer this question, the reasoning of Tlhotlhalemaje J in addressing jurisdictional difficulties requires close scrutiny and analysis. In effect, the resolution of the issues emerging from Chubisi allows for a detailed examination of the import of Steenkamp I. This also provides a platform for examining the fundamental but somewhat tenuous distinction between the jurisdiction and the powers of the LC. In legal parlance, the critical task for the court in any given case is to decide whether the statutory provision on which an applicant relies to found jurisdiction is indeed one that confers jurisdiction. At a more general level, Chubisi implicates corporate governance malaise at the SABC with the unfortunate reality of retrenchments. Therefore, a concise discussion of the corporate governance challenges is merited.

Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Arica

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Arica

Author: Theophilus Edwin Coleman

ISSN: 1996-2185
Affiliations: Postdoctoral Research Fellow, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 319 – 363

Abstract

The idea that contracting parties should be afforded the freedom to determine the content of their contract and regulate their private legal arrangements not only advances efficient international trade and commerce, but also, to a very large extent, affords the parties the opportunity to mitigate their risks in their transnational commercial relations. Parties’ risks are mitigated when the basis upon which they can conclude and enforce their contract is not concealed by uncertainty. Within the global legal order on transnational commercial and contract law, parties enter into contracts with the expectation that the contracts will be enforced by the courts of law. This article seeks to critically appraise the global stance on contractual freedom and party autonomy. It ascertains the extent to which the global approach could serve as legislative and judicial guidance for Commonwealth African countries. The article suggests that Commonwealth African countries should accede to or ratify key instruments on international commercial and contract law. It further highlights the economic significance of such accession for businesspeople in Commonwealth Africa.

Is Cryptocurrency ‘Property’ for Tax Administration Purposes?

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

Is Cryptocurrency ‘Property’ for Tax Administration Purposes?

Author: Fareed Moosa

ISSN: 1996-2185
Affiliations: Associate Professor, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 364 – 383

Abstract

Section 1(a) of the Constitution of the Republic of South Africa, 1996 stipulates that human dignity, the achievement of equality and the advancement of human rights and freedoms are foundational values of South Africa’s sovereign, democratic state. Aligned herewith is s 39(1) of the Constitution, which directs that every interpretation of the Bill of Rights must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. Therefore, the Constitution’s human rights ethos, culture and spirit is a dominant theme serving as a guide when the term ‘property’ is interpreted in the context of the privacy clause (s 14(b)) and the property clause (s 25). This article argues that by applying a purposive cum contextual cum grammatical cum teleological interpretive methodology, the concept ‘property’ in ss 14(b) and 25(1) of the Constitution goes beyond the conventional ambit of common-law property. It is argued that, for constitutional purposes during tax administration, property also encompasses intangible property in the form of Bitcoin and possibly other cryptocurrencies owned by taxpayers, which represent legal interests worthy of constitutional protection during tax administration by the South African Revenue Service.

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

by | May 28, 2022 | SAMLJ, SAMLJ V33 I3

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

Author: Reinhard Rudd

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Accountancy, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 384 – 418

Abstract

The domestic laws of many countries contain statutory general anti-avoidance rules, or ‘GAAR’. As tax avoidance schemes have proliferated, especially in a cross-border context, the relative importance of a country’s GAAR has increased. A question that arises is whether a country’s GAAR can be invoked to deny the benefits granted by a tax treaty. The question is complicated by the fact that, as international agreements, tax treaties are subject to public international law, while at the same time forming part of the domestic laws of the states party to the treaty. While the Organisation for Economic Co-operation and Development has attempted to provide clarity in this regard, the answer remains dependent on the manner in which tax treaties interact with the domestic laws of the specific jurisdictions in question. In terms of South African law, the provisions of a tax treaty rank equally with those of domestic law. As a result, any conflict must be resolved by the application of the principles of statutory interpretation and superseding of legislation. Despite this fact, the South African courts tend to favour an approach whereby the provisions of domestic law and those of a treaty are reconciled, rather than having one prevail over the other. The author argues that the GAAR may be applied in a treaty context, provided that the purpose of a treaty and the GAAR can be reconciled. Ultimately, the author is of the view that certainty in this regard can only be achieved through some form of legislative intervention.