A critical analysis of third-party personal liability for tax debts in ss 183 and 184 of the Tax Administration Act 28 of 2011

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

A critical analysis of third-party personal liability for tax debts in ss 183 and 184 of the Tax Administration Act 28 of 2011

Authors: Jean-Roux Van Huyssteen & Rudie Nel

ISSN: 1996-2185
Affiliations: Director, TRM Tax Attorneys, Cape Town; Associate professor, School of Accountancy, Stellenbosch University
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 1 – 20
https://doi.org/10.47348/SAMLJ/v37/i1a1

 Abstract

Third-party personal liability provisions are contained in ss 183 and 184 of the Tax Administration Act 28 of 2011. Based on jurisdictional requirements, specific areas of uncertainty were identified and motivated the purpose of the article to investigate such uncertainties to offer guidance for taxpayers, policymakers, and tax authorities. The objectives of the article were to investigate the meaning of certain terms (‘tax debt’ and when such a tax debt would arise, ‘dissipation of assets’, ‘knowingly’, and ‘same rights against the powers of recovery’) and to investigate the alignment of the third-party personal liability provisions with the fundamental principles of equity and certainty as advocated by Adam Smith. Based on the findings, the article proposes refinements to ss 183 and 184, including guidance on the necessity of assessments, the clarification of procedural steps, and the establishment of comprehensive frameworks for imposing personal liability. These recommendations aim to enhance clarity, efficacy, and fairness, contributing valuable insights to ongoing discussions on taxpayer rights and the equitable functioning of the tax system.

Examining the role of the African Continental Free Trade Agreement in advancing labour standards

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

Examining the role of the African Continental Free Trade Agreement in advancing labour standards

Author: Shelton T Mota Makore

ISSN: 1996-2185
Affiliations: Senior Law Lecturer, Department of Mercantile Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 21 – 47
https://doi.org/10.47348/SAMLJ/v37/i1a2

 Abstract

The extension of labour standards in contemporary free trade agreements has become an indispensable instrument that can potentially contribute towards the protection of labour standards, the promotion of safe and secure working environments, and the ending of modern slavery, child labour, and human trafficking. Notwithstanding their importance, labour standards are conspicuously absent from the explicit objectives and scope of the African Continental Free Trade Area Agreement (AfCFTA). This is despite that the Protocol on Investment to the AfCFTA includes an abstract state-centric obligation concerning labour standards and prohibits weakening such standards to attract investment. These obligations require investors to comply with certain labour standards and exempt regulatory action to protect labour rights from the ambit of provisions regarding indirect expropriation. This article argues that to further consolidate labour standards and protect workers’ rights in the AfCFTA regime, there is a need to adopt accompanying specific labour standards-related provisions, including a specialised trade-labour protocol and other measures, which should be implemented alongside the continental free trade agreement.

Contracting out of a Promoter’s Personal Liability under s 21(2) of the Companies Act 71 of 2008: A purposive and comparative analysis

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

Contracting out of a Promoter’s Personal Liability under s 21(2) of the Companies Act 71 of 2008: A purposive and comparative analysis

Authors: Etienne Olivier, Shane Hull & Amy Williams

ISSN: 1996-2185
Affiliations: University of the Western Cape Senior Lecturer; Lecturer University of the Western Cape; ENSafrica, Candidate Legal Practitioner
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 48 – 66
https://doi.org/10.47348/SAMLJ/v37/i1a3

 Abstract

Section 21 of the Companies Act 71 of 2008 (the Act) allows a person (a promoter) to conclude a contract on behalf of a company that does not exist. Section 21(2) of the Act imposes personal liability on the promoter through a statutory warranty. The promoter is liable for the obligations arising from the pre-incorporation contract in the event that the company is never incorporated, or if it rejects the contract upon incorporation. However, it is unclear whether the Act allows for a promoter to contract out of his liability imposed by s 21(2) of the Act, as the section does not expressly address the issue. In this article, a purposive interpretation of the relevant section is conducted and the enforceability of exemption clauses are discussed to determine the correct interpretation of s 21(2) in respect of exemption clauses. It is submitted that the validity of a contractual clause excluding statutory liability will depend on the wording of the relevant statute and on the unique content and circumstances of the particular exemption clause. The article points out that the flexible nature of the public policy standard creates further uncertainty as to whether a contractual exemption clause will be valid or not. In respect of exemptions to a promoter’s liability under s 21(2) of the Act, it is argued that the anti-avoidance provision in s 6(1) of the Act, is not applicable to such clauses. Finally, the article argues that s 21(2) should be interpreted to allow for an exemption to the promoter’s liability. The article concludes by recommending some legislative amendment to promote legal certainty.

The regulation of cryptocurrencies to combat money laundering: A South African perspective

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

The regulation of cryptocurrencies to combat money laundering: A South African perspective

Authors: Darren Subramanien, Rabia Hussain & Legodi Thutse

ISSN: 1996-2185
Affiliations: University of KwaZulu Natal; University of KwaZulu Natal; University of Pretoria
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 67 – 104
https://doi.org/10.47348/SAMLJ/v37/i1a4

 Abstract

Cryptocurrencies are not wholly regulated or recognised as legal tender in South Africa. This makes South Africa a prime breeding ground for criminals to launder money using cryptocurrencies. In February 2023, South Africa was grey listed by the Financial Action Task Force for not fully complying with their anti-money laundering standards. It is likely that the unregulated use of cryptocurrencies, which carry significant money laundering risks, could have contributed to the grey listing of South Africa. South Africa recently took steps towards regulating cryptocurrencies to combat money laundering as crypto assets were declared financial products for the purposes of the Financial Advisory and Intermediary Services Act 37 of 2002, and Crypto Asset Service Providers (CASPs) were included as accountable institutions for the purposes of the Financial Intelligence Centre Act 38 of 2001.

That resignation is not retractable or is irreversible: What is the prejudice? Monareng v Dr J S Moroka Municipality [2022] 43 IJL 1855 (LC)

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

That resignation is not retractable or is irreversible: What is the prejudice? Monareng v Dr J S Moroka Municipality [2022] 43 IJL 1855 (LC)

Authors: Ndifelani Arthur Munarini & Lux Kwena Kubjana

ISSN: 1996-2185
Affiliations: LLM graduate, University of South Africa; Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 105 – 114
https://doi.org/10.47348/SAMLJ/v37/i1a5

 Abstract

None

A commentary on overturning the MAFR Rule in East Rand Member District of Chartered Accountants v Independent Regulatory Board For Auditors (2023): A missed opportunity for the transformation of the Audit Industry in South Africa?

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

A commentary on overturning the MAFR Rule in East Rand Member District of Chartered Accountants v Independent Regulatory Board For Auditors (2023): A missed opportunity for the transformation of the Audit Industry in South Africa?

Authors: Bokang M ‘Nyane & Hoolo ‘Nyane

ISSN: 1996-2185
Affiliations: Graduate of Turfloop Graduate School of Leadership (TGSL), University of Limpopo; Associate Professor, School of Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 115 – 125
https://doi.org/10.47348/SAMLJ/v37/i1a6

 Abstract

None