Browsing by Department "Department of Commercial Law"

Now showing 1 - 20 of 709
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    A Comparative Analysis of Legal Frameworks for Investments in Africa by China and the European Union
    (2020) Hügens, Jonathan; Ordor, Ada; Lefifi,Tebogo
    This thesis presents a comparative analysis of the legal investment frameworks of the European Union and China in African countries. The thesis reviewed financial instruments of foreign direct investments, official development assistance and other official flows. The legal analysis focus on the demand on political conditions to access the financial assistance; under which conditions are the projects tendered; and which labor standards set the parties while the project is implemented. All reflected under the aspect of the fairest condition for African countries. The comparison figured out that the European Union with its demands for the implementation of human rights, democracy and the rule of law facing certain reluctance of most African governments for a full implementation while contrary to that the OneChina principle is broadly acknowledge by African governments to gain investments. When projects are tendered the research presents that the European Union searches for local and regional providers to strengthen African businesses. This with guidelines for core labor laws based on human rights when it comes to the implementation. While China tenders with a strong commercial self-interest and does not set any labor standards relaying on local laws and showing limited interest and understanding when it comes to implementation.
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    A comparative analysis of shareholders' appraisal rights in Nigeria and South Africa
    (2019) Eniola, Abimbola; Yeats, Jacqueline
    First, this study stems from the urge to bring clarity as to whether, in Nigeria, there is a statutory framework based on which shareholders can seek appraisal in relation to their shares at any point in time. This is significant in that the corporate statutes in both South Africa and Nigeria provide for similar mechanisms for the protection of minority shareholders in almost every respect including the prejudicial and oppression remedy, derivative actions, squeeze-outs and so on, excepting the appraisal rights. Whilst there is clarity as to the existence of the appraisal remedy provision in South Africa’s corporate statute, the same cannot be said of Nigeria’s corporate statute. Consequently, the primary goal of this study is to identify if there is a framework for the exercise of appraisal remedy in Nigeria’s corporate statute. In carrying out this study, this dissertation examines the various components of the appraisal right provision in South Africa in detail. This helps to provide an understanding around the structure and the rationale behind a standard appraisal right provision. It is based on this understanding that certain pre-identified provisions in Nigeria’s corporate statutes will be investigated with a view to identifying potential statutory framework bearing semblance to South Africa’s appraisal right provision.
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    A comparative analysis of the regulations governing mobile money services in South Africa and Zimbabwe and their impact on sustainable financial inclusion of the poor and vulnerable people
    (2022) Mavhuru, Luck; Hutchison, Andrew
    Mobile money services refer to service where a mobile phone is used to provide banking services with little or no involvement of traditional banks. This service has become a powerful tool for bringing unbanked and underbanked people into the formal financial sector. The roll out and success of the service in question has not been smooth in some countries due to stringent financial regulations. The purpose of this study was to conduct a comparative legal analysis of how financial regulations have enhanced or hindered mobile money services adoption in South Africa and Zimbabwe and the extent to which this has helped to increase financial inclusion. Through a comparative analysis of primary and secondary sources of law, this study observed that South Africa and Zimbabwe have contrasting mobile money services fortunes which can be attributed to the regulatory approaches adopted by the two countries towards the mobile money services. South African adopted a no regulation approach requiring any entity that engages in mobile money services to do so within the confines of existing financial regulations. As a result of this, mobile money services have made little to no contribution to the fight against financial exclusion in South Africa. On the other hand, this research found that Zimbabwe has a thriving mobile money service sector. This can be attributed to the test and learn regulatory approach adopted by the country's regulators. At the time of writing this thesis, MTN and Vodacom in South Africa are relaunching their mobile money services after discontinuing the services 5 years ago. Rigid financial regulations were fingered as one of the causes of failure of the first attempt. The author hopes in highlighting the regulatory shortfalls of the approach adopted by South Africa in regulating mobile money services, this thesis will help policy makers, regulators and industry players to develop robust and inclusive mobile money regulatory eco-systems which promote financial inclusion as is the case with Zimbabwe.
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    A comparative study of China's foreign direct investment in Africa: regulation, policy, and legal cooperation
    (2023) Lefifi, Tebogo; Ordor, Ada; Kalula Evance
    A new era of Africa-China legal cooperation in Foreign Direct Investments (FDI) was inaugurated following the successful founding of The Forum on China Africa Cooperation (FOCAC) in 2000. In 2015, China became a capital exporter and adopted a new global strategy to reverse the hegemony comprising norm-making and advising law reforms in developing countries. However, a comprehensive approach is still lacking to determining and understanding the potential impact and influence of China's outbound FDI (OFDI) policy, laws and regulations on Africa's economic development agenda and legal environment. Previous research has interpreted China's increasing outward foreign direct investment OFDI as a byproduct of China's market- or resource-seeking agenda and failed to consider the legal aspects of the relationship. Contrarily, this study argues that China's OFDI influence introduces a novel type of south-south legal transplant that will shape prospective African legislative initiatives, ideologies, and norms. By examining China' legal transplant experience and FDI governance model ideology, this research aims to provide a comprehensive understanding of China's influence on Africa's future legal reforms. The analysis explicitly explores Africa's transplant of China's cyber sovereignty governance model. The study utilises a desktop research study methods using a combination of primary and secondary sources. The data is gathered from research from various sources in official government websites, action plans documents, academic literature, and case studies. A comparative analysis of the benefits and drawbacks of China's and Africa's experiences with FDI regulation and legal transplant are key considerations to the study. The findings of the study reveal and highlight the benefits and challenges of legal cooperation through OFDI and present recommendations for the development of laws with Africa-China characteristics. The research will guide Africa's policy response to regulating Chinese investments in the Continent and guide lawmakers in transplanting laws from China.
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    A comparison between the manner in which court will second-guess the exercise of a private contractual power, on the basis of public policy, and the manner in which court will second-guess the exercise of public power, on the basis of rationality
    (2021) Du Plessis, James; Hutchison, Andrew
    This thesis considers and compares the standards against which Courts in South Africa review the exercise of private contractual power, on the basis of public policy, and the standards against which Courts in South Africa review the exercise of public power on the basis on rationality. This thesis undertakes this task in four main parts. Firstly, this thesis outlines important theoretical distinctions between legal and nonlegal powers, and private and public legal powers. In this regard, it is argued that what distinguishes a legal power from a non-legal power is the ability of the exercise of a legal power to in and of itself change another person's legal situation. This differs from the exercise of a non-legal, or a "power of influence" which has natural, and no automatically legal consequences, and will only change another legal situation if other (natural) consequences come to bear first. In relation to the distinction between private and public powers, this thesis outlines the traditional justifications for the distinction drawn between private and public power. Drawing on Austin, this thesis proposes that a useful demarcation between public and private powers is that the latter, more peculiarly, regards persons determined specifically, while the former, more peculiarly, regards the public considered indeterminately. Secondly, this thesis unpacks and details the standard of rationality that a Court will hold the exercise of a public power to, and highlights how rationality in this respect is an objective standard that relates essentially to a power's objective and whether or not the exercise of that power is related to that objective. Thirdly, and drawing on the latest pronouncements of the Constitutional Court, this thesis details what public policy requires of the exercise of private contractual power and highlights how what it requires is a value laden and facts dependent inquiry. Fourthly, this thesis goes on to argue that the standard of public policy, to which exercises of private contractual power are held to, is a higher standard than the standard of rationality that the exercises of public power is held to. Furthermore, this thesis argues that while such a situation is justifiable, it may become unjustifiable should Courts begin to misconstrue the fundamental differences between a legal and non-legal, and private and public power. Finally, this thesis submits that another iv cornerstone of South Africa's contract law, namely, that of privity of contract, may be a useful tool that Courts can use to keep balanced, on what this thesis outlines is a tightrope, that Courts have to walk in both having to imbue South Africa's contract law with Constitutional values, while at the same time ensuring that the higher standard that private contractual power wielders are held to, does not become unjustifiable.
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    A comparison of the substantive aspects of impermissible tax arrangements under South Africa's General Anti-Avoidance Rule and the Principal Purpose Test with specific reference to the examples found within the 2017 OECD Model Tax Convention
    (2021) Zebert, Bradley Arthur; Hattingh, Johann
    The Organisation for Economic Cooperation and Development released the 2017 Model Tax Convention on Income and on Capital (hereafter "Convention") which contains a Principal Purpose Test under article 29(9). The practical application of this test is explained with the use of various examples within the accompanying commentary to the Convention. However, various ambiguities both in the Convention and the accompanying commentary exist. The author raises these ambiguities and contrasts them with the general anti-avoidance rule (hereafter "GAAR") found within S80A of the Income Tax Act 8 of 1962. In doing so, the author asked which areas of the Principal Purpose Test are vague and can be interpreted in light of the South African GAAR to assist with attributing a meaning to it. The key findings from this paper identified various areas of the Principal Purpose Test where the GAAR could be used to assist in the interpretation and application of the Principal Purpose Test being the phrases "the principal purpose", "benefit" and "arrangement". Other areas of ambiguity which were also interpreted with the assistance of the GAAR related to whether the Principal Purpose Test contained a business reality test as well as the further aspects of the test relating to its interpretative aspect, subjective enquiry and burden of proof. It was argued that these areas may indicate how the South African courts may apply the Principal Purpose Test in the South African context.
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    A configuration of trade regimes in Eastern and Southern Africa region: Implication for deeper integration and WTO compatibility
    (2003) Busieka, Wycliffe M; Kalula, Evance
    This work has examined the implication the proliferation of identical econOITllC groupings portends for the east and southern Africa region. The thrust of the study here has been to interface and interrogate the incidence of the configuration of integration regimes in the east and southern Africa region. The work has investigated the question as to whether the proliferation of trade regimes has prepared a fertile ground for greater and deeper integration in the region. The thesis has also interrogated the proposition that such proliferation is the very antithesis of the desired goal to promote trade harmonization and reach out for deeper integration in the region. Importantly this work has ventured to query the confluence of identical trade regimes in view of the compatibility imperative as enshrined in the wro legal framework. We have examined the implication this configuration of integration regimes portends for the wro disciplines. This work conunenced with an extensive examination of current works on regional integration regimes in general and integration initiatives within the east and southern Africa region in particular. The interrogation exercise was premised on works, both economic surveys and legal treatises undertaken on the recently concluded EU-SA free trade agreement, the SADC Trade Protocol, the COMESA Treaty and the Cotonou Agreement. The actual texts of these instruments form the bulk of the sources. We note that without exceptlon, significant and to that extent costly restructuring programs will have to be undertaken by States in the east and southern Africa region in response to the disruptive EU-SA trade partnership. We have established that these integration regime scores well on the imperative of wro compatibility. We gather that the present wro structures are not malleable enough for the cash strapped sub-Saharan Africa trade regimes to reconfigure themselves in such a way as to deepen the integration agenda. We have urged for more flexibility in the wro framework on this score to augment integration processes currently crowding the regional landscape. Mataywa W Busieka - 10th July, 2003
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    A critical analysis of section 6(4) of the Employment Equity ACT: is it likely to achieve its stated objectives?
    (2019) Maharaj, Pranisha; Rycroft, Alan
    This dissertation presents a critical analysis of section 6(4) of the Employment Equity Act 55 of 1998 (“EEA”) and seeks to address the question of whether it is likely to achieve its stated objective of giving effect to the constitutional right to equality. In conducting my analysis, I consider the concept of managerial prerogative and discuss what underlies the drive for substantive equality in order to determine why the issue of protection from discriminatory income disparities has been removed from the realm of an employer’s traditional prerogative. Next, I highlight the requirements for establishing a claim of discrimination in terms section 6(4) and the remedies available to a successful complainant. I then turn to highlight the limitations introduced by the statutorily prescribed comparator in section 6(4) before demonstrating that the regulated methodology for assessing the value of work and the factors for justifying a differentiation in terms and conditions of employment give significant deference to employer prerogative. My analysis proceeds to consider whether, following the introduction of section 6(4), an administrative body whose primary function is the conduct of formal investigation into discriminatory pay practices and the resolution of equal pay disputes ought to have been created. I ultimately conclude that section 6(4) of the EEA provides only a partial solution to the issue of discriminatory pay disparities in South Africa and is likely to have a limited effect in contributing to the achievement of the State’s objective of achieving substantive equality. In analysing section 6(4), I draw on the experience of the United Kingdom, the United States of America and Canada. While the socio-economic and political landscapes of these jurisdictions may not be apposite to the South African experience, these jurisdictions have a long legislative history in pay equality issues which assist in establishing a benchmark for South Africa.
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    A critical analysis of statutory deeming in the context of the interaction between South Africa's controlled foreign company regime and model-based bilateral tax treaties
    (2020) Daniels, Imran; Hattingh, Johann; Roeleveld, Jennifer
    Fiction in domestic tax law is a peculiar legal construct. Set in contradiction, the result is plainly counter-factual. The question arises as to what the fiction means when constructed in the context of tax treaties? This minor dissertation draws a comparative analysis between the statutory construction of two opposing international tax treaty cases, one more recent than the other, in regard to the effect of one particular fiction in domestic tax law – the ‘as if'. In 1997, the United Kingdom court of appeal ruled on Bricom Holdings Limited v IRC. The finding from that decision surrounded the interpretation of the ‘as if' fiction in British Controlled Foreign Company (CFC) rules. In that case, the court found that the reference to ‘as if' was a purely notional definition based on fictional assumptions. These assumptions resulted in a product of artificial calculation, such that when constructed in CFC rules, resulted in a tax charge that was not a charge on the CFC's actual income, but a notional amount based on a notional definition of that income. The notional amount could, therefore, not be provided relief by way of tax treaties. In 2000, South Africa followed the British court's reasoning by updating its domestic Controlled Foreign Company rules with the same ‘as if' terminology. In 2018, the principle which formulated that longstanding argument appeared to be rejected by the same British court in the decision of Fowler v HMRC. The court of appeal reached the opposite result by finding that the fiction arising from the ‘as if' terminology did not represent a notional tax charge. Instead, the ‘as if' assumption created a new and exclusive taxable subject matter on the same income source, alike to statutory deeming. The fictional income arising from that fictional treatment was the substitution of one (notional) source of taxable income for another (actual, but disregarded) source. The deemed character in the computation was, therefore, retained in tax treaties, allowing tax treaty relief. This minor dissertation analyses both cases in order to posit whether or not the net income imputed from South Africa's CFC rules, using the same ‘as if' terminology, may be construed as a deeming rule on the same CFC's income. The finding in this minor dissertation is that an ‘as if' fiction may not represent a purely notional definition. The computation of CFC net income in tax treaties may, therefore, be afforded tax treaty relief akin to statutory deeming.
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    A critical analysis of the implications of the fourth industrial revolution on tax regulation: relevance of the robot tax debate in South Africa from a developing country perspective
    (2020) James, Evidence; Titus, Afton
    The world is experiencing a paradigm shift exhibited by the unprecedented convergence of the biological, physical, and technological environments. This paradigm shift, occasioned by the Fourth Industrial Revolution (4IR), is transforming the way of life, work, business, the law, and government policy across the world. The introduction of 4IR technologies such as robotization and Artificial Intelligence is threatening massive labour displacements and resultant significant erosion of the tax base. With the full extent of the 4IR yet to obtain scholars, international organisations such as the Organisation for Economic Cooperation and Development (OECD), World Economic Forum (WEF) and governments have initiated policy inquiries and debates to respond to the looming threats and to maximise on opportunities presented by the 4IR. This research falls within the broader context and out of similar concerns to the OECD Base Erosion and Profit Shifting project (BEPs) and as expressed under Action 1 which deals with the taxation of the digital economy. Amongst the proposals to respond to robotization threats to the tax base is the imposition of a robot tax. Therefore, the robot tax debate is the foci of this research. So far, the robot tax debate has been restricted to developed countries and now slowly gaining momentum in developing countries. The South African president, Cyril Ramaphosa constituted the Commission on the Fourth Industrial Revolution in 2019 in response to the dawning realities of the 4IR. The commission is tasked with the mammoth task of deciphering the 4IR and diagnosing its impact across various sectors in South Africa and to report its findings and recommendations. The establishment of the commission on 4IR underscores the imperativeness of this study whose crux is to explore the relevance of the robot tax debate in the South African context representative of developing countries. This is in cognisance of the struggle against inequality, rising unemployment, a broadening budget deficit, stagnant economic growth, and declining revenue collections against a growing demand for free education and social security. Using a doctrinal approach, this research finds that the robot tax debate is not only relevant but imperative in developing countries and that the socioeconomic circumstances present in these countries aggravate the negative impact of 4IR.
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    A Critical and Comparative Analysis on the Effect of Business Rescue on Creditors’ Rights against Sureties
    (2018) Tsangarakis, Andreas; Hutchison, Andrew
    Business rescue proceedings have been introduced into South African company law under chapter 6 of the Companies Act 71 of 2008. The United States Chapter 11 bankruptcy model was closely consulted by the legislature when drafting chapter 6. Further to this and although business rescue has been generally well received, there have been legal issues which have arisen in the interpretation of chapter 6. In particular, the issue of creditors' rights against third party sureties of financially distressed companies continues to fall under the spotlight which, in tum, has caused a ripple of commercial uncertainty to filter through to creditors. This issue will be investigated with comparative reference to the position in the United States. In doing so, a critical analysis will be undertaken of the procedures and processes in both of these jurisdictions, whereafter a comparative analysis will be presented. It will be advocated that although the essential difference between the two jurisdictions is the United States' legislative regulation on this issue, South African courts have correctly decided on creditors' rights against third party sureties. Unlike in the United States where conflicting decisions have been delivered, commercial certainty on this issue does in fact exist in South Africa notwithstanding the lack of statutory regulation under the Companies Act. It will be further advocated that although there is potential for this issue to be development under the South African common law when having regard to the decisions in the United States, caution is to be exercised as such development may generate commercial uncertainty.
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    A critical assessment of the conciliation hearing in Germany and South Africa from a comparative point of view
    (2022) Ilies, Ines; Rycroft, Alan
    This work gives an overview of the resolution of individual labour disputes through conciliation in Germany and South Africa. In a rapidly evolving labour environment, parties have an increased interest in obtaining legal clarity on the outcome of a dispute. Neither employers nor employees can afford delays. Access to justice is essential. An amicable settlement serves this aim and is likely to bring the dispute to a swift end in a speedy and inexpensive proceeding. Thus Germany and South Africa both developed a mechanism of mandatory conciliation as the starting point of every individual rights dispute, which aims to grant easy and fast access to justice at a low cost. In South Africa the Commission for Conciliation, Mediation and Arbitration (CCMA) has been established to resolve individual labour disputes through conciliation. In Germany a preliminary conciliation hearing takes place before the chairperson in the Labour Court of first instance. This work aims to critically assess the conciliation procedure in both countries, illustrate similarities and differences and suggest improvements. The question that arises is: what are the significant elements in the conciliation procedure of both countries and how do these elements impact the process and success rate? This research attempts to answer this question.
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    A critical tax theory approach to income tax relief for black-middle class taxpayers contributing to the support of family
    (2022) Ndebele, Zandile; Gutuza, Tracy; Moore Elena
    The purpose of this thesis is to examine income tax relief measures for taxpayers with dependants in South Africa. This research has found that taxpayers who are black and middle-class are likely to make contributions to the support of household member and non-household member dependants. This is also supported by literature from the United States, where black middle-class individuals are found to make significant contributions towards the support of their kin when compared to other races. This support which a black middle-class taxpayer gives to their dependants entwines with their ability-to-pay in tax law. A taxpayer's ability-to-pay is reduced by the contributions made to their dependants. For this reason, it is relevant to examine the intersectionality of race, class, and family circumstances with tax law. The black middle-class are an interesting demographic in South Africa and are referred to as a “precariat class” because of the uncertainty and insecurity linked to this class. In 2021, the black middle-class carry a burden to contribute towards the support of dependants. This burden was imposed on them first by apartheid policies which excluded black South Africans from receiving social welfare assistance and then by racial and economic inequalities in post-apartheid South Africa. Through discussions on social justice and tax equity, the thesis finds a basis for income tax relief measures for taxpayers with dependants in South Africa. The introduction of such a tax system would allow the black middleclass taxpayers to take advantage of the income tax benefits. The definition of family and the definition of a dependant in allowing for the income tax benefits will be important. These definitions should reflect the meaning of family as understood by South African taxpayers. That way, the disparate impact, and unintended consequences of the income tax benefits on those that use these benefits are avoided to an extent.
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    A critique of the insider trading provisions of the 2004 Securities Services Act
    (2006) Jooste, Richard
    Various attempts have been made over the years by the legislature to combat insider trading and related activities. The Securities Services Act of 2004, which repeals the Insider Trading Act of 1998 and now regulates insider trading, has made significant changes to the law in this regard. However, this contribution argues that the law remains flawed in a number of respects and that certain innovations, such as the extension of the ambit of liability to cover body corporates, partnerships and trusts have been introduced without sufficient elaboration. The article seeks to analyse the new provisions and to highlight their failings.
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    A current assessment of the Hamburg rules
    (1997) Huber, Max; Hare, John
    Trade has been booming. The WTO ( World Trade Organisation) estimated that world trade in goods grew 8 % in volume terms last year, this being four times the growth of world GDP (Gross Domestic Products). During the 1990s international trade has grown far faster than world output, showing that national economies are becoming more closely linked. Foreign direct investment, another gauge of international economies integration, is also soaring: last year, estimated the United Nations Conference on Trade and Development, cross border investment increased by 40%, to $315 billion.
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    A Discussion On The African Continental Free Trade Area And Competition
    (2019) Nkomo, Charity; Ismail, Faziel
    According to Olasupo Owoeye, as the world is becoming increasingly globalized, it is difficult for some regions, for example, the African continent, to become competitive in the global market because of their overly protectionist measures1 . Former WTO Director, Pascal Lamy, also noted that Africa should no longer rely on external demand for its goods and services to support its growth but must take steps to accelerate regional integration, as it remains the least developed continent with the highest number of least developed countries in the world2 . This explains the formation of the African Continental Free Trade Area by the African Union members; whose main objective is to boost intra African trade and create a single continental market for goods and services. The African Continental Free Trade Area is expected to enhance competitiveness at both the industry and enterprise level through exploitation of opportunities for scale production, continental market access and better allocation of resources. 3 The AfCFTA is also expected to facilitate a better integration of the African economy into the global market, thus contributing to sustainable economic growth, poverty reduction, enhanced foreign direct investment and employment creation in Africa. It is also considered to be a steppingstone towards two of the deeper integration stages envisaged in the Abuja Treaty of 1991, namely the creation of a continental customs union by 2019 and an African Economic Community (AEC) by 20284 . The AfCFTA can however pose some challenges to the signatory countries as through trade liberalization, domestic markets will become open to foreign competition and susceptible to anti-competitive practices originating outside their national borders. These include crossborder competition concerns, international cartels, mergers and acquisitions that risk monopolizing or creating abuse of dominance in the internal market5 . Some firms may gain market power and abuse their dominance through taking advantage of the economies of scale. Hence the need for the member countries, not only to dismantle trade barriers but also to adopt complementary competition policy to ensure a smooth transition and to benefit from gaining access to new markets. As was stated by Ernst-Ulrich Petersmann, competition laws are important to the preservation of economic freedom and the free trade system as is with the Bill of Rights to the protection of fundamental freedoms6 . The competition and trade policies are both based on the conviction that free trade is a means of maximizing the economic welfare of trading nations through the efficient allocation of resources. The two policies therefore complement each other as without competition, the African Continental Free Trade Area lacks legitimacy because private restraints to trade will undermine its achievement. Hence the negotiations on competition which are supposed to take place beginning of 2019 by the African Union countries who have signed the African Continental Free Trade Area. The research will therefore discuss the formation of the African Continental Free Trade Area, discuss the relationship between trade and competition and will also scrutinize the likely positive and negative impacts of the African Continental Free Trade Area vis a vis competition. Reference will also be made to other regional agreements on competition linked with regional efforts to set up free trade zones, particularly, the European Union where regional integration has been used to enhance economic growth and the useful lessons that can be learnt from those.
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    A dissection of the Protection, Promotion, Development and Management of indigenous Knowledge Systems Act 6 of 2019: substantive issues and foreseeable consequences for creative industries in South Africa
    (2021) Zondi, Nokwanda Bathabile; Ncube, Caroline; Okorie, Chijioke
    Indigenous knowledge is a broad term that is used to describe various knowledge systems that are intimately linked with traditional communities.1 It is communicated orally and stored in the memories of people belonging to traditional communities; it is also expressed through the art of traditional communities, their practices, community laws, cultural values, folklore, proverbs and activities. 2 The World Intellectual Property Organization (WIPO), defines ‘indigenous knowledge' as a living body of knowledge - know-how, skills and practices that are formed, sustained and passed on through generations of a traditional community, often forming part of its cultural or spiritual identity.3 There is no internationally accepted definition of indigenous knowledge as the protection of indigenous knowledge is a recent discourse amongst relevant global institutions and countries protecting intellectual property. The term ‘traditional knowledge' is sometimes used in place of ‘indigenous knowledge' and this may create confusion. Therefore, for the purposes of this dissertation, it must be noted that these terms are used interchangeably. Furthermore, it must be expressly established that indigenous knowledge is the property of indigenous communities. Indigenous communities, in their interaction with the environments in which they have resided, have developed a body of knowledge, skills and creative expressions over the centuries and this knowledge has formed an integral part of their cultural heritage.4 Such knowledge is now termed indigenous or traditional knowledge and as the true and original creators of such knowledge, indigenous communities are the rightful owners of it. Such ownership is recognized in Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples which states that indigenous peoples have the right to maintain, protect and develop their own cultural heritage, traditional knowledge, and cultural expressions. 5 All claims on the infringement of the ownership right on indigenous knowledge, which shall follow, are based on this recognition of ownership rights held by indigenous communities in their indigenous knowledge.
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    A proposed interpretation of the phrase "subject to tax" in section 23M(2)(i)(aa) of the Income Tax Act, No 58 of 1962, when read in context of South African Tax Treaties
    (2021) Leshomo, Otladisa Patrick; Hattingh, Johann
    Following the tax policy recommendation of the Organisation for Economic Co-operation and Development (‘OECD')/Group of Twenty (‘G20') member countries, under the OECD/G20 Base Erosion and Profit Shifting Project: Action 4 (‘BEPS Action 4'), the South African legislature recently enacted an internationally focused anti-avoidance provision, in section 23M of the Income Tax Act No.58 of 1962 (‘the Act'). The provision aims to limit interest expenditure incurred by the debtor, provided that the corresponding interest income accrued to non-resident creditor is, among other things, (which is most important,) not ‘subject to tax' in terms of section 23M(2)(i)(aa) of the Act. However, despite its importance, the phrase ‘subject to tax' is not defined in section 23M or in the general definition of the Act nor has the matter came before the South African courts for consideration. This has lead to confusion among taxpayers, and fragmented views among South African tax scholars, tax practitioners and the South African Revenue Services (‘SARS'). On the other hand, the phrase ‘subject to tax' has a long history in international tax law and it appears inter alia, in the South Africa-France, South Africa-Sweden and South Africa-Germany interest distributive rules tax treaties. The objective of this study is, based on the canons of interpretation of fiscal legislation, to propose an interpretation of phrase ‘subject to tax,' particularly when read in context of South African tax treaties, and thereafter apply it in the context of foreign corporate tax, normal tax and withholding tax on interest. The author concludes that the phrase ‘subject to tax' means that non-resident creditors must ‘actually' be liable to pay tax on interest, subject to deductions, set-offs and foreign tax reliefs. It is the authors view that if foreign corporate tax falls within the ambit of the word ‘tax' as defined in the applicable tax treaty and/or ‘covered tax' therein, the word ‘tax' encompass foreign corporate tax ‘actually' imposed on a non-resident creditor in its country, as a result of accrued interest from the South African source.
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    A question on whether competition authorities are the appropriate place to consider public interest considerations in the assessment of mergers in competition law?
    (2021) Dlukulu, Babalwa Lumka; Davis, Dennis
    This Dissertation examines the question of whether competition authorities are the appropriate place to consider public interest considerations in the assessment of mergers in competition law. The Dissertation does this by looking at the South African merger review process in the Competition Act, 1998 in comparison to other more developed economic jurisdiction such as the United Kingdom and the United States of America in examining the tension and criticism around the incorporation and balancing of public interest considerations and core economic consideration under the same competition law merger review process and competition authority. The South African merger review provisions as well as watershed cases such as the Wal-Mart Stores Inc and Massmart Holdings Ltd case, are considered. The Dissertation establishes that the concerns are legitimate around the potential muddying of the competition analysis with public interest considerations. Some of the concerns which arise include that: a) public interest considerations can be broad thereby creating sense of uncertainty for both parties to a merger, as well as prospective investors; b) public interest traverses areas concerning other stakeholders such as government or organised groups such as labour or business, thereby creating opportunity for interference, whether political or otherwise in the work of competition authorities; c) can increase the time spent in merger review because of the challenges in the types of evidence required to prove public interest impact; d) and/ or that competition authority officials may lack capacity and expertise to consider the public interest consideration. The Dissertation concludes that notwithstanding, the South African approach in incorporating public interest into the merger review process is legitimated by the unique socio-economic history of South Africa, and that the concerns raised are sufficiently mitigated and a delicate balance struck between core economic considerations and public interest in merger review. Competition Authorities are capable of balancing core competition concerns and public interest considerations, provided that Competition Authorities are independent; steps are taken to clarify the scope of the public interest concerns; public interest considerations are looked at within a limited scope of merger specificity; and further clarity and transparency is provided through open and transparent hearings and guidelines, amongst other features.