Browsing by Department "Centre for Law and Society"

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    A brief excursus through the concept of the trust, dealing with its origins and history and generally traversing taxation of a trust and its implications for the taxpayer
    (1995) De Mink, Jason; Emslie, T S
    A 'trust' is defined in the Income Tax Act [1] at section one as 'any trust fund consisting of cash or other assets which are administered and controlled by a person acting in a fiduciary capacity, where such person is appointed under a deed of trust or by agreement or under the will of a deceased person'. This is a recent introduction to the Act, coming into affect in respect of years of assessment ending on or after 1 January 1993 and sums up reasonably regarding satisfactorily what the various authorities have said to date trusts. In Estate Kemp v McDonald's Trustee [2] judge Solomons referred to the fact that in a trust the 'legal dominium of property is vested in the trustee' but that they have 'no beneficial interest in it but are bound to hold and apply it for the purpose of some persons or for the accomplishment of same purpose' [3] In Thome & Molenaar NNO v Receiver of Revenue, Cape Town [4] a trust was described as being 'created by contract, very often by contract of donation . . . or by way of a will. It is created in respect of defined administer property transferred to a trustee, who is burdened with the obligation to the property for the benefit of a third person’ [5]. In the case of Goodricke and Son (Pty) Ltd v Registrar of Deeds. Natal [6] the court held that the concept of a valid trust revolved around the removal of dominium (ownership) from the beneficiaries and placing it in the hands of the trustees [7]. ' ... [A] trust exists when property is to be held or administered by one person on behalf of another, or for some purpose other than his own benefit' [8]. The court went on to say that the essential elements which made up a trust were 'segregation of the trust assets by the founder' and the 'creation of an obligation to administer otherwise than purely for oneself' [9].
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    A comparative review of German and South African environmental law with special reference to pollution control
    (1991) Schulze, Ekkehard
    In this, dissertation the principles, instruments · and remedies of German and South African environmental law are examined, as far as they are relevant for pollution control. The purpose is to investigate whether the two countries can learn from each other. In the beginning three principles are discussed which have been formative on German environmental law. The principle of prevention which aims at minimising pollution regardless of its actual hazard and the polluter-pays principle are considered important for an effective environmental law. In general the so-called principle of co-operation appears to have no specific effectivity. Administrative law is then examined. While control the two there procedures are similar in are substantial differences as far pollutioncountries, as judicial control of administrative acts is concerned. In Germany permits for emitters can be challenged by anybody living in the vicinity of a polluting installation; German 2 administrative courts may always reconsider the merits of an administrative .decision. In South Africa concerned citizens may not contest the licence to operate an installation, unless their real or personal rights are infringed; even in the latter case the normally not consider the merits a decision. courts may In Germany environmental impact assessments and public participation are obligatory in many cases. While in South Africa their implementation is left to the discretion of the Minister of Environment Affairs and other ministers involved. The main difference between German and South African criminal law is that the penalties, in particular fines, are far lighter in South Africa. Environmental protection by means of private-law remedies differs considerably in the two countries. The injunction is a primary remedy in Germany which requires the infringement of real or personal rights of the plaintiff. The interdict under South African law is a subsidiary remedy only available where an action for damages does not afford adequate protection; yet the interdict can be based upon the infringement of rights of personality. 3 Under the new UmweltHG (Environmental Liability Act) strict liability and a presumption of causality has been introduced in Germany for major installations and activities. In South Africa the burden of proving a causal relationship is always upon the plaintiff; strict liability has only been implemented for nuclear installations. In Germany various emission fees and tax concessions are in force or under consideration. In South Africa no financial incentives have been introduced to date to promote emission control. Lastly environmental protection by a means of a human right or legislative objective is examined. The intention is to insert the objective into the German constitution that the environment is to be protected. A similar idea of including a legal principle of environmental protection into the Environment Conservation Act has been abandoned in South Africa. It is suggested that pollution fees should be introduced on all levels in order to minimise pollution. Such fees have in principle proved to be effective Tax law should be supplemented by an improved civil, administrative and criminal law. 4 In the field of civil law strict liability and a relaxation advisable. of the burden of proving Public participation procedures causality is should become mandatory in licensing procedures. should be increased considerably. Criminal penalties In Germany it is advisable to introduce the possibility for an injunction if rights of personality are infringed since environmental degradation does not cause violation of real or personal rights.
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    A consideration of certain aspects of standard form contracts and exemption clauses [Microfiche] : standard form contracts, the credit receiver's title to sue ex delicto in instalment sale transactions, the nature of a contract and exemption clauses, the burden proof and exemption clauses
    (1981) Van Dorsten, Johan Lourens; De Wet, Johannes Christiaan; Gibson, John
    This dissertation, which is divided into four independent parts, deals with two aspects of standard form contracts: the general nature of standard form contracts and the credit receiver's title to sue ex delicto; and two aspects of exemption clauses: the nature of a contract and exemption clauses and the rules of incidence applicable to exemption clauses. In the first part standard form contracts in general are discussed. A brief historical background shows that standard terms and standard form contracts have a long history, but it is only in the last century that they have become predominant. Under the nature and categories of standard form contracts only the general characteristics are discussed; no definition is formulated because the widespread usage would necessitate too cumbersome a definition. Standard form contracts are generally documents in common form containing comprehensive pre-determined provisions designed to regulate all transactions of a particular type. Two classes of standard form contracts are distinguished: model contract forms (or agreed documents), which are specimen forms, incorporating settled practices, used at the discretion of the parties; and adhesion contracts which contain unilaterally fixed terms and are presented on a take-it-or-leave-it basis. Adhesion contracts arise from statutory intervention, regulations of associations or where individuals or business concerns have sufficiently strong bargaining powers. A further classification based on the situation in which standard form contracts operate distinguishes between horizontal or commercial standard contracts; vertical or commercial consumer standard contracts; end-consumer standard contracts; and personal service standard contracts. This classification is useful in that it provides a framework within which to deal with standard form contracts and to determine whether intervention is justified. The advantages of standardisation include uniformity; a saving in time and expense; costing and planning is facilitated; the promotion of economic stability; and legal certainty. The disadvantages include the shifting of the legal and economic equilibrium to the economically stronger party's advantage, the one-sided control of the contractual terms, the imposition of oppressive contracts, the limitation of the profaners' liability and the curtailment of the adhering party's rights and remedies. In the last section, the proposals for reform, various forms of administrative control and judicial control are briefly examined. The drawbacks of administrative control include the cumbersomeness of the administrative machinery which limits the effectiveness of the control, and the fact that general administrative powers are not always u'sed. to deal with a specific problem. The advantages of administrative control are that general measures can be imposed by administrative bodies acting mero motu, if necessary, and, if efficiently run, the process may be speedier because the procedures are generally more flexible. It is submitted that the Israeli and Swedish methods of providing for the submission of standard form contracts for approval prior to general use should be adopted. The disadvantages of judicial control are that until a body of case law develops uncertainty may arise, and many judges are reluctant to become involved in the morality of contracts. The advantage of judicial control is that general powers provide flexible remedies applicable to a wide range of problems. It is submitted that the English requirement that contractual provisions be reasonable to be enforceable be adopted. In conclusion it is recommended that administrative and judicial control be combined: a representative administrative body to provide prior approval and the courts to be given general powers to refuse to enforce unreasonable provisions. The second part examines the credit receiver's title to sue ex delicto in instalment sale transactions. This important academic and practical problem, which was not clarified in the new Credit Agreements Act, is concerned with whether a non-owner who buys on credit has sufficient interest to sue for patrimonial damage to the goods. The approach adopted here is to ascertain who has title to sue under the Lex Aguila; the legal status of the credit receiver/purchaser; and the various solutions adopted by the courts. Title to sue ex delicto is granted to owners and to a limited number of non-owners; of these only the bona fide possessor is ----,=---- entitled to a claim for the full measure of the damage, the others are limited to their id quod interest. Parties without the title to sue must obtain cession of action from the owner. The credit receiver/purchaser possesses the - goods with the intention of becoming owner; he enjoys all the essential rights and duties of ownership; he bears the risk of damage or destruction whilst remaining liable for the full purchase price; and is obliged to compensate the owner for damage to the goods. The case law is divided as to the credit receiver/purchaser's title to sue and where he has been allowed an action in his own right the juridical basis has varied. Actions have been allowed on the following grounds: (a) the contract itself which binds the purchaser to pay the full price after the risk has passed; (b) the contractual assumption of liability for loss; (c) the bona fide possessor analogy; and (d) as possessor being allowed to sue for the id quod interest which amounts to the risk borne, i.e. for the full amount of the damage. It is now clearly established in our law that the credit receiver/purchaser has title to sue because the second and the last ground has received the sanction of the Appellate Division. A brief comparative study shows that it is a widely accepted principle of law that possession gives title to sue. It is recommended that possible comprehensive statutory remedies dealing with remaining problems be examined. The third part examines the nature of a contract and exemption clauses: the relevance of this is that a clear understanding of each will assist in determining the effect of exemption clauses on contractual rights and duties: the exact content of the contractual obligation can then be established. A contract is an obligation-creating agreement which gives rise to various rights and duties: these may be classified into primary and secondary rights and duties to facilitate an examination of the nature and effect of individual provisions. The primary duty is the duty to perform in the agreed manner. The corresponding primary right entitles the creditor to demand performance and may be enforced by the primary remedy, a claim for performance - specific performance or damages as surrogate for performance. The primary rights and duties are binding and effective ab initio. The secondary rights entitle the creditor or injured party to the remedies of rescission or consequential damages: the corresponding secondary duty binds the debtor to make reparation for foreseeable damage caused by the breach. The secondary rights and duties arise ab initio but may be enforced only after a breach occurs. Both primary and secondary rights and duties may arise expressly or by operation of law. Exemption clauses restrict or exclude rights, liabilities, and remedies which, but for the exemption clauses, would form part of the relevant contracts. They have both a procedural and a substantive effect. A brief historical survey shows that in the Roman Law exemption clauses were either formal substantive stipulations or informal pacta adiecta which provided procedural defences. This substantive/procedural distinction was blurred in the Roman-Dutch law where added agreements have a substantive effect. Exemption clauses have a procedural effect if they limit or exclude adjectival or procedural rights of enforcement. The view that they operate as shields to damages by qualifying or excluding existing liabilities under a contract cannot be supported. Exemption clauses have a substantive effect because they are merely provisions which reflect the actual or presumed intentions of the parties and the rights and duties to which they pertain do not and are not intended to come into existence. Exemption clauses may be classified according to how they operate, and a distinction is here drawn between their excluding and limiting effects on primary, secondary, and procedural rights, as well as on special defences. Primary exemption clauses may be divided into primary exclusion clauses, which prevent naturalia or primary remedies from arising and primary limiting clauses, which merely qualify without excluding the naturalia or primary remedies. Secondary exemption clauses may, similarly, be divided into secondary exclusion clauses, which exclude secondary remedies: and secondary limiting clauses, which limit the creditor's secondary rights. Procedural exemption clauses exclude or qualify procedural rights of enforcement. Special defence examption clauses affect the right to rely on certain special defences based on factors such as defects in the formation of the contract or supervening impossibility. The latter two classes of exemption clauses have a procedurql effect whereas the former their effect.This analysis may assist understanding of the nature and effect thereby facilitating the drafting contracts. two are substantive in in gaining a clearer of exemption clauses and and interpretation of the final part deals with the burden of proof and exemption clauses: it examines the meaning of the expression onus or burden of proof and the rules of incidence applicable to the law of contract and exemption clauses. This is clearly relevant because in all disputes concerning the contents of contracts some party must ultimately prove the presence or absence of provisions. The meaning of the term onus, which must be distinguished from the evidential burden, is the duty borne by a litigant to ultimately satisfy the court that he is entitled to succeed in his claim or defence. Some of the more important rules of incidence are the onus rests upon the person who makes an assertion: or who affirms a fact: or against whom a rebuttable presumption of law operates. In the law of contract, the general rule is that the existence and contents of a contract must be proved by the person relying on the contract. This may be done by tendering a signed contractual document. If the terms of the latter are then disputed the defendant must prove one of the following: that it does not represent the true or complete agreement: that it was not signed animo contrahendi: or iustus error. Where exemption clauses are incorporated by implication or by reference the court's approach is as follows: the person is bound if he knows that the document contains writing relevant to the agreement: if he is unaware of the relevance of the writing but the other party did what was reasonably sufficient to bring the terms to his notice, he is also bound. The requirements of reasonable sufficiency and contemporaneousness of notice applies in all cases of incorporation by implication or by reference and the strictness of the requirements vary according to the circumstances of each case. A proper understanding of the incorporated provisions is not generally required; this it is submitted should be varied to require such understanding in circumstances that warrant it, to prevent disavadvantaged parties from being unfairly surprised by the provisions. Moreover, exemption clauses should be printed or suitably reproduced instead of merely referring to them. Only terms which originate in the contractual concensus need to be proved; the naturalia, being normal incidents of a contract do not have to be proved. Persons disputing naturalia must establish special agreements to that effect. Persons relying on exemption clauses must prove their existence and that they cover the acts that caused the loss in question. If liability for negligence is excluded the party covered by the clause need not disprove such liability: if further grounds for liability are alleged, they must be established. To avoid strict or absolute liability the defendant must prove that one of the acknowledged exceptions is applicable or that such liability was modified by special agreements. The application of the general rules to purchase and sale, letting/and hiring, special defences, unreasonable terms, and third parties is also briefly examined. A party who relies on a lawful contract need not prove that its terms are reasonable or conscionable. In the absence of fraudulent or criminal acts contractual terms are gene~ally· enforceable whether they , are harsh or onerous. However, if gross injustice will result the courts will in some cases uphold the defence of exceptio doli. This tendency and the statutory power given in terms of the Conventional Penalties Act does· not provide a general remedy. It is, therefore, recommended that a statutory remedy along the lines of the English Unfair Contract Terms Act be adopted. This would require that persons relying on exemption clauses must prove that they are reasonable to be enforced; this requirement should only be applicable where a marked inequality of bargaining power exists. Third parties are protected by exemption clauses only is intended by the parties; the onus of establishing obviously borne by the third party. if this this is This examination of the rules of incidence shows that the courts are aware of the injustices that could result if exemption clauses are imposed without restriction. Attempts to intervene are limited by powerful precedents and it is recommended that the legislature should provide a remedy which requires that exemption clauses be incorporated in a clear and conspicuous manner; that they be reasonable; and that the burden of proving this be borne by the party imposing the exemption clause.
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    A critical analysis of Swaziland's Companies Bill of 2004
    (2006) Vilakazi, Thabsile L R; Larkin, M P
    'Company Law provides the legal basis for one of the most important institutions organizing and galvanizing the economy, corporate business entities'. Professor Kahn Freund wrote; 'Business organization is in a constant state of flux, and the law cannot hope to keep abreast of developments if it ascribes to its own provisions the quality of immutability' '... Company law is in need of constant revision and can never reach a stage of 'finality' It is as a result imperative that the company laws of a country undergo reform consistent with its changing economic, social and technological trends and is in line with international standards.
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    A feminist critique of the prostitution/sex work debate: recommendations for legislative change in South Africa
    (1996) Levick, Margaret Susan; Innes, Laurie Rose
    The fact that the exchange of sexual acts for money no longer solely goes by the name 'prostitution', but is now also being referred to as 'sex work', suggests there is a new body of thought tackling the old perceptions and levels of acceptability that the industry has experienced in the past. The movement towards the acceptance of prostitution as just another legitimate commercial activity is not however without controversy. There remains a complex array of opinion, not least within the Feminist Movement, continually raising sensitive questions about particular core values lying at the heart of the debate. Yet the ideological battlefield which characterizes prostitution does not end with the intellectual sparring of interest groups. It is both a practical and a public interest issue which affects health, welfare and labour policies, municipal zoning and critically, the lifestyles of sex workers themselves. In the past, Cape and Durban city councillors have called for the legalisation of prostitution in South Africa (Argus 2/4/93; 3/4/93; 5/4/93, Cape Times 31/3/93). These calls however came at a time when there was a fairly long history of prohibitive legislative precedent supported by the Christian National Government and coupled with a lack of recourse to a Bill of Rights. Subsequently there has been a call for decriminalisation by the National Women's Coalition - which represents more than eighty women's groups - but the current Minister of Justice, Dullah Omar, has said that the issue would be addressed at "a later stage" (Cape Times 21/5/94). Suggestions for change, such as 'those called for by the Cape Town and Durban city councillors, have almost exclusively focused upon public interest issues without responding to the dangers and abuse that those involved in the profession experience. As an illegal and 'outsider' group to the rest of society, sex workers have not had adequate recourse to the law and this has added to their vulnerability.
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    Affirmative action and the interim constitution
    (1995) Sauerman, Anthony Edward
    The stately inauguration of President Nelson Mandela on 1 O May 1994 sounded the death knell of the longest and most stubborn era of institutionalised racism and inequality known to mankind. The generals who escorted him safely onto the podium will never again receive their orders from a chain of command borne in an exclusively white caucus under the guise of parliamentary sovereignty. The new presidential authority is contained in an Interim Constitution which declares itself to be the supreme law of the Republic (1 ), embodying the concept of constitutional sovereignty for the first time in South Africa. The decisions of Parliament can no longer receive the majoritarian rubber stamp of approval from within its own ranks, but will be tested against the provisions of the Interim Constitution by an independent Constitutional Court. Those which are found to be inconsistent with the provisions of the Interim Constitution will be of no force or effect
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    An analysis of the anti-avoidance provision section 103 of the South African Income Tax Act 58 of 1962
    (1996) Mponco, Nelisa Phiwokazi; Emslie, T S
    "It is trite law that His Majesty's subjects are free if they can, to make their own arrangements so that their cases may fall outside the scope of the Taxing Acts. They incur no legal penalties and strictly speaking, no moral censure if, having considered the lines drawn by the legislature for the imposition of taxes, they make it their business to walk outside them."1 However, the South African Income Tax Act 58 of 1962 contains a general anti avoidance section, as well as specific anti avoidance sections. The legislature, having observed the growing industry of avoidance, enacted the law to counter tax avoidance. Therefore, the purpose of this dissertation is to analyse the law in guestion and see how the courts interpret the law in order to enforce anti tax avoidance provisions. To motivate this objective, this dissertation will be divided into three parts. Firstly, dealing with general anti-tax avoidance section 103, secondly, sections and finally, interpretation will be looked at. specific anti-avoidance of fiscal legislation will be looked at.
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    Basic Human Rights Documents for South Africans
    (1998) Amien, Waheeda; Farlam, Paul
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    Beyond the Traditional Courts Bill: regulating customary courts in line with living customary law and the Constitution
    (Academy of Science of South Africa, 2011) Weeks, Sindiso Mnisi
    This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. Customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. The article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. The framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the Constitution.
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    Communal Land Tenure Policy (CLTP)
    (2013-09) Rural Women's Action Research Programme
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    Community consultation meeting in preparation for Traditional Courts Bill Workshop, Eastern Cape, 13 – 14 November 2008
    (2008-11) Centre for Law and Society
    Translated and transcribed by Sandile Dolweni.
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    Community consultation meeting in preparation for Traditional Courts Bill Workshop, KwaZulu-Natal, 28 – 30 October 2008
    (2008-10) Centre for Law and Society
    Translated and transcribed by Mbali Cele.
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    Community consultation meeting in preparation for Traditional Courts Bill Workshop, Mpumalanga, 3 – 4 June 2009
    (2009-06) Centre for Law and Society
    Translated and transcribed by Tanya Charles, with additional translation by Sindiso Mnisi, and edited by Aninka Claassens.
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    Community consultation meeting in preparation for Traditional Courts Bill Workshop, North West, 25 – 26 February 2009
    (2009-02) Centre for Law and Society
    Translated and transcribed by Naledi Seripe and edited by Advice Lolwana.
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    Die EG-Produkthaftpflicht-Richtlinie vom 25. Juli 1985
    (1985) Hoffman, Frank
    Nach mehr als 10-jahriger Beratung verabschiedete der EG-Ministerrat am 25. Juli 1985 die EG Produkthaftpflicht-Richtlinie. Die Richtlinie gibt den Mitgliedsstaaten der Europaischen Gemeinschaft 3 Jahre Zeit, d.h. bis Juli 1988, die neuen Regelungen in nationales Recht zu transformieren. Da die Richtlinie erst in nationales Recht .der Mitgliedsstaaten transformiert werden muB, kann es nicht als einheitllches europaisches Produkthaftpflichtrecht charakterisiert werden. Aus der Voraussetzung der Transformation folgt, daB die nationalen Gerichte die Zustandigkeit haben, das neue Produkthaftpflichtrecht zu interpretieren. Selbst wenn der Wortlaut der Richtlinie unverandert in die verschiedenen einzelstaatlichen Rechte Ubernommen wlirde, besteht die Gefahr, daB die neuen Regelungen unterschiedlich interpretiert werden. Darliber hinaus enthalt die Richtlinie mehrere Verweisungen auf nationales Recht, d.h., das neue Produkthaftpflichtrecht ersetzt nicht in vollem Umfang das alte, sondern garantiert bestimmte Minimalrechte flir den geschadigten Verbraucher. Wenn das traditionelle einzelstaatliche Produkthaftpflichtrecht weitergehende Rechte gibt als die neuen Regelungen, so kann die varletzte Partei diese Ansprliche geltend machen.
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