Browsing by Faculty "Faculty of Commerce"
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- ItemOpen Access3-month bond option strategies: an analysis of performance from 1998 to 2010 in the South African market(2011) Ndebele, Ndumiso; Jones, Samantha; Touna-Mama, AlbertDue to the 2008 financial crisis, investors have become more risk averse in investing in equities and have increased their holdings in bonds as they are believed to be less risky. However, South African interest rates have been volatile over the past decade due to changes in the inflation rate. This has caused the returns of bond portfolios to be uncertain since bond prices are inversely related to interest rates. It is thus imperative to manage the interest rate risk inherent in bond portfolios so that institutional investors can achieve their mandates and targeted returns.
- ItemOpen Access‘A beggar has no choice' A Mixed Approach Exploring Blended Finance for Africa's Infrastructure(2020) Wildschutt-Prins, Alvino; Alhassan, Abdul LatifThe United Nations estimated that to achieve the Sustainable Development Goals globally, they require approximately USD6 trillion per annum, totalling between USD90 to a USD100 trillion of investments needed over the 15 years. African countries are struggling to finance their infrastructure development needs and require innovative solutions to finance their infrastructure gaps. The African Development Bank noted that Africa's infrastructure needs can be estimated between USD130 and USD170 billion per annum with an estimated financing gap of USD68 billion to USD108 billion. Blended finance received international attention during the Third International Conference on Finance for Development in 2015 when it was mentioned in the adopted resolution report dubbed the Addis Ababa Action Agenda (here forth the Addis Agenda). The overall objective of this study is to explore the private sector participation investing in economic infrastructure in Africa and the public sector's understanding of blended finance. The research also focuses on the role of multi-and bilateral development banks in mobilising the private sector and the government support required to attract private sector participation investing in infrastructure projects For this study, the Convergent Parallel Design mixed research method is employed where both the quantitative and qualitative data are collected concurrently or in the same phase. The World Bank PPI database is used as the primary quantitative data source, while nine qualitative indepth interviews were conducted. The results from the multiple linear regression model indicate that projects with multi-lateral development bank' support are characterised by lower private sector participation in infrastructure investments in Africa. Furthermore, countries receiving concessional support from the International Development Association (IDA) are receiving lower private sector participation in their projects. In-depth interviews with public sector officials indicated that most of the officials had an overall understanding of blended finance in line with current market definitions. Officials, however, were not convinced with the use of concessional funding and loans in the blended finance structure due to the conditions precedents which came with it but felt like they had no choice but to accept these conditions due to the needs of the countries and the project involved. Informed by the findings of the study, the study recommends that blended finance should be localised for the African context and makes key policy recommendations linked to the OECD principles for blended finance.
- ItemOpen AccessA Blockchain-enabled System to enhance Food Traceability in Local Food Supply Chains (FSCs) suitable for Small Co-operatives in South Africa(2021) Kanjere, Julian; Georg, Co-PierreFood is vital to human life. Therefore, ensuring its safety as it moves from producer to consumer in food supply chains (FSCs) is essential. This can be achieved through the use of food traceability technology which enables track and trace of produce within a FSC. Recently, blockchain technology (BCT) has shown great potential to enhance traceability in FSCs, owing to its ability to securely store data in a decentralised and tamper-evident manner. However, it appears that research on blockchain-enabled food traceability exists primarily within the context of large FSCs, whilst scarce for local FSCs in which traceability is often an inefficient and manual process. Given this background, this exploratory research is carried out, to investigate whether a blockchain-enabled system can be used to improve traceability in local FSCs. To do this, we (i) collaborate with Oranjezicht City Farm Market (OZCFM) - a farmers market in Cape Town, the smallholder farmers that supply OZCFM with fresh local produce and the OZCFM patrons that purchase the produce; (ii) map out the local FSC by conducting observations and running surveys with the aforementioned actors; (iii) design, develop and pilot FoodPrint - a web based and blockchain-enabled food traceability application. During the pilot within the OZCFM-related local FSC, FoodPrint is used to capture data on the harvest, transportation and storage of produce; and reveal produce provenance at destination by scanning of supplier-produce specific quick response (QR) codes. We find that FoodPrint provides tamper-evident traceability and authentic transparency of produce related data to the local FSC actors. Further, we note that scanning a FoodPrint QR code for produce provenance does not enhance the consumers trust of the local FSC, as it pre-exists. This implies that local FSCs with existing and functional trust mechanisms do not benefit from trust-enhancing mechanisms such as blockchain-enabled traceability. Future work may consider data privacy in FSCs and automating FSC data entry to reduce the risk of fraud.
- ItemOpen AccessA case study exploring an occupational perspective of social inclusion among young adults dually afflicted with substance use disorder and HIV/AIDS in Zimbabwe(2021) Nhunzvi, Clement; Galvaan, Roshan; Langhaug, Lisa; Harding, RichardBackground: Curtailing adverse social determinants of health is pivotal to achieving the 2030 Agenda for Sustainable Development`s vision for a healthy and inclusive society. In Zimbabwe, fulfilling Vision 2030 may involve adopting socially inclusive approaches, particularly for young people dually afflicted with HIV and substance use disorders. However, social inclusion remains conceptually unclear and underutilized in relation to marginalized groups in low resource settings. This study sought to explore and understand how dually afflicted young adults with substance use disorders and HIV in Zimbabwe experienced and negotiated their social inclusion. Methods: This study utilised a qualitative instrumental case study design. Primary qualitative and quantitative data were collected to develop a thorough understanding of the case of an occupational perspective of social inclusion among dually afflicted young adults in Zimbabwe. The multiple methods used in this study included: i) narrative inquiry with five dually afflicted young adults; ii) in-depth interviews with five key informants; iii) document analysis of seven policies; and, iv) exploratory cross-sectional survey of social inclusion and associated factors (n=105). These multiple methods and sources contributed to the study`s trustworthiness. Multi-level case study analysis was applied as follows; 1st level: narrative analysis of each of the five young adults` stories, descriptive analysis of key informant interviews, document analysis and descriptive statistical analysis of the cross-sectional survey data. 2nd level: thematic case analysis drawing from all four data sources. 3rd level: theorised conceptual occupational constructs. Findings: Five narratives illustrated how using agency and having occupational choices were central to the young adults` experience and negotiation of social inclusion. The overarching Case theme was “Navigating an already troubled life: Striving for belonging and well-being”. This consists of three categories: 1) Dealing with a context of mixed realities, 2) Trying to adjust to new challenges and, 3) Life on the margins. These findings show how dually afflicted young adults in Zimbabwe respond and resist the influences of dominant discourses through dynamic and interconnected actions that shape their realities. Conclusion: The study describes and explains how dually afflicted young adults experienced and negotiated their social inclusion. The data affirms the role of agency and proposes a more critical view of occupational choice, activist occupational choice, in understanding social inclusion. As an emergent concept it is categorized by occupational choices, largely defying standard norms of engagement, and aims to break away from oppressive systems and problematic situations. Recognising the diverse manifestation of agency yields an appreciation for how occupations that are indigenous, collective, and resist oppression contributes to experiences of social inclusion.
- ItemMetadata onlyA case study of water sources and water quality of the Chalumna/Hamburg area of Ciskei(Southern Africa Labour and Development Research Unit, 2015-05-28) Stone, A.
- ItemMetadata onlyA community health project for the aged in Grassy Park/Lotus River: An assessment and guidelines for the future(Southern Africa Labour and Development Research Unit, 2015-05-28) Isaacs, S.
- ItemOpen AccessA comparative analysis of housing policies of Namibia and South Africa(2018) Mathe, Audrin; Hirsch, AlanBoth Namibia and South Africa have had mixed success in their housing policies since the advent of democracy in both countries in the 1990s. This paper proceeds from the hypothesis that each country can learn useful lessons from each other in respect of housing policy. The primary purpose of this research was to describe and systematically compare the housing policies of Namibia and South Africa. The historical backgrounds of the countries, existing policies and the manner in which the policies are implemented were investigated. The research examined the housing policies of Namibia and South Africa in terms of their similarities and differences and to consider the impact and implications. Namibia and South Africa vary in their expenditure commitments to provide affordable homes. Their housing policy strategies also differ. Differences reflect different levels of prosperity and differences in governance and institutional arrangements. The study concluded that the policies of Namibia and South Africa are, in the main, similar in that both Namibia and South Africa have enacted legislation that govern matters related to housing – either as housing relates to financing and affordability or as a function of ownership. South Africa stands out, however, in that the right to adequate housing is a prescript of the constitution. In both the investigated countries, there is evidence that their policies are committed to a housing process built on the foundations of people’s participation and partnerships. But there are also differences with regard to implementation. In this study, it is brought to bear on both countries that the provision of housing was not all that successful. But good policies are a good start to a successful outcome of a process.
- ItemOpen AccessA comparative analysis of market and minimum wages in South Africa volume 2(1986) Hipkin, I B
- ItemOpen AccessA comparative analysis of the foreign tax credit system of South Africa, with specific reference to corporate taxpayers and technical service fees(2021) Allanson, Douglas; Roeleveld, JenniferThe growth in the worldwide services economy combined with an expansion by South African multinational enterprises into the African market has often resulted in increased instances of double taxation for South African corporate taxpayers, as a result of the fact that the majority of the jurisdictions in Africa apply a withholding tax on technical service income paid to nonresidents. The ability to claim relief for the juridical double taxation suffered as a result of the withholding tax applied is governed in South African tax legislation by section 6quat of the Act. This paper analyses section 6quat of the Act with particular reference to the relief available and unavailable to taxpayers for foreign taxes paid in relation to withholding taxes on technical service fee income, in treaty and non-treaty scenarios. The issue of continued double taxation, despite the relief mechanisms of section 6quat, resulting from source issues and the provision of services remotely from South Africa or differing interpretation on the application of Double Taxation Agreements by South Africa and the foreign jurisdictions for example, are also reviewed. South Africa's relief mechanisms are then compared to the relief mechanisms of 5 other jurisdictions (peer nations who export services) to determine if any of these jurisdictions have more advanced ideas for the reduction of juridical double taxation in the context of technical service fees. It is determined in the final analysis that South African taxpayers are not alone with regard to the problem of unrelieved double taxation despite the best efforts of local legislation to provide some form of relief. None of the jurisdictions reviewed have mechanisms in place that provide full relief whilst also protecting the tax base. A number of recommendations are given for ways that South Africa could possibly improve the situation and reduce instances of juridical double taxation. The most obvious being a wide treaty network, with up-to-date treaties, with as many jurisdictions as possible, with a technical services article.
- ItemOpen AccessA Comparison Between Break-Even Volatility and Deep Hedging For Option Pricing(2022) Claassen, Quintin; Mahomed, ObeidThe Black-Scholes (1973) closed-form option pricing approach is underpinned by numerous well-known assumptions (see (Taleb, 1997, pg.110-111) or (Wilmott, 1998, ch.19)), where much attention has been paid in particular to the assumption of constant volatility, which does not hold in practice (Yalincak, 2012). The standard in industry is to use various volatility estimation and parameterisation techniques when pricing to more closely recover the market-implied volatility skew. One such technique is to use Break-Even Volatility (BEV), the method of retrospectively solving for the volatility which sets the hedging profit and loss at option maturity to zero (conditional on a single, or set of, stock price paths). However, using BEV still means pricing using existing model frameworks (and using the assumptions which come with them). The new paradigm of Deep Hedging (DH) (as explored by Buehler et al. (2019)), ie. using deep neural networks to solve for optimal option prices (and the respective parameters needed to hedge these options at discrete time steps), has allowed the market-maker to go ‘modelfree', in the sense of being able to price without any prior assumptions about stock price dynamics (which are needed in the traditional closed-form pricing approach). Using simulated stock price data of various model dynamics, we first investigate whether DH is more successful than BEV in recovering the model implied volatility surface. We find both to perform reasonably well for time-homogeneous models, but DH struggles to recover correct results for time in-homogeneous models. Thereafter, we analyse the impact of incorporating risk-aversion for both approaches only for time-homogeneous models. We find both methods to produce pricing results inline with varying risk aversion levels. We note the simple architecture of our DHNN as a potential point of departure for more complex neural networks.
- ItemMetadata onlyA comparison of domestic water use between black and white communities in the Eastern Cape(Southern Africa Labour and Development Research Unit, 2015-05-28) Stone, A.
- ItemOpen AccessA comparison of native and non-native English-speaking groups' understanding of the vocabulary contained within the 16PF (SA92)(SAGE, 2003) Wallis, Taryn; Birt, MartinPart of the qualitative phase of Abrahams and Mauer’s (1999b) study was replicated at the University of Cape Town with both native English-speaking and non-native English-speaking students. Participants were required to provide synonyms for 135 words contained within the 16PF (SA92) in order to ascertain the extent of problems with the language in the test. When following Abrahams and Mauer’s original methodology strictly, results seemed to indicate that both groups struggled with the language contained in the 16PF (SA92). However, less rigid marking, taking into account everyday usage of the words, showed that both groups did understand the words, although they were prevented from displaying this by the original restrictive method. It is suggested that more research be conducted with instruments such as the 16PF in order to obtain a fuller understanding of the extent to which language can affect scores obtained.
- ItemOpen AccessA Conceptualisation of the self-perceptions of black professionals in relation to business leadership in South Africa(2021) Myeza, Angel; April, KurtThe research aimed to gain an understanding of the self-perceptions of black South African professionals (and leaders) in relation to business leadership and how these self-perceptions influenced their behaviours, aspirations and self-perceived abilities in leadership positions. The leadership behaviour of black leaders was found to be influenced by their upbringing, educational background, workplace experiences and the country's historical context. Leadership behaviours exhibited by black leaders included Ubuntu, difficulty with owning authority, deliberate bias in management behaviour across colour and a profound sense of shared responsibility toward other black professionals and black communities. Black professionals demonstrated signs of deep-rooted pain, fear, anger, isolation, pride, empathy and general emotional fatigue stemming from workplace, socio-economic and political triggers that evoked generational trauma and an overall negative black lived experience. The negative lived experience could have led to racial identity dissonance and in extreme cases, complete racial identity disassociation. On occasion, black professionals leveraged white relationships to propel their careers forward, however, this practice reportedly resulted in feelings of self-doubt. Self-doubt was shown to eventually lead to self-deselection, negatively impacting the aspirations and career advancement prospects of black professionals in organisational leadership. Career progression of black professionals was additionally impacted by 'multiple shades of black', which determined if the black professional could be 'authorised' as a leader. These 'shades' included aspects such as the 'twang', complexion, and for black women, even hair. Black professionals that were perceived to better resemble 'whiteness', achieved faster career progression. The research found that black leaders perceived that their blackness, specifically, its unique texture of experiences and history in South Africa, provided them with superior empathetic leadership capability towards black employees, although it severely diminished empathy towards white employees. Furthermore, black professionals considered their blackness to detract from their leadership capability, by reducing the odds of being authorised as a natural leader, enforcing a skewed self-perception of their leadership capabilities.
- ItemOpen AccessA critical analysis as to whether a company is entitled to carry forward assessed losses if such company has traded but has derived no income therefrom(2021) Coetzee, Izak Jacobus; Johnson, TracyThe Income Tax Act No 58 of 1962 provides for tax to be levied on an annual basis (i.e. income and expenditure are generally calculated and determined in respect of a single year of assessment). Section 20(1) makes provision for the possibility that the allowable deductions may exceed a taxpayer's income by allowing for the carrying forward of any balance of assessed loss to subsequent years of assessment. It therefore provides for taxpayers to utilise assessed losses determined in previous tax periods against the income derived in future tax periods. Our courts have decided that a company which does not trade during a specific year of assessment forfeits its right to carry forward its balance of assessed loss from the preceding year of assessment. What has been left undecided in our superior courts however (although has been considered in our Tax Courts), is whether a company would also forfeit its right to carry forward its balance of assessed loss in the event where such a company carried on a trade during the current year of assessment, but derived no income therefrom. The primary research question in this study is whether a company would be allowed to carry forward its balance of assessed loss determined at the end of its previous year of assessment to its current year of assessment, in circumstances where it derived no ‘income' from its trading activities during the current year of assessment. This study also considers, as a secondary research question, whether the recent proposals made by Treasury in terms of the Budget Speech held on 26 February 2020, would have an impact on the primary research question. In order to address the primary and secondary research questions, this study considers the wording of section 20 in the light of the guidance on interpreting fiscal statutes as provided by our courts. The study also considers the views expressed in our courts in relation to section 20(1) as well as the relevant commentary on these views. Furthermore, the study considers SARS' view on section 20 as well as whether the recent proposals made by Treasury have an impact on the carrying forward of a company's balance of assessed loss. It is concluded that in terms of the recent proposal made by Treasury, a company whose trading activities result in a loss should be unaffected by the proposed amendments, although this can only be confirmed once the proposed legislation in this regard has been made available. It is further concluded that a superior court has not yet interpreted section 20(1) in terms of the current approach to the interpretation of statutes, and it is submitted that a superior court may come to the conclusion that a company would be allowed to carry forward its balance of assessed loss determined at the end of its previous year of assessment to its current year of assessment, even though it had derived no income from its trading activities during its current year of assessment.
- ItemOpen AccessA critical analysis of fiscal stability agreements as offered in the tenth schedule of the income tax act for energy companies in South Africa in light of recent oil and gas finds in South Africa(2021) Melapi, Babalwa Melapi; West, Craig; Futter, AlisonSouth Africa remains reliant on a number of countries to sustain its energy requirements. The acute shortage and unreliable supply of electricity, requires that South Africa consider other energy sources, more specifically, that it considers the use of oil and gas as an alternative or complementary energy source to the main energy sources currently used in the country. The recent announcement of oil and gas discoveries in South Africa could see less reliance on other countries for the importation of crude oil and petroleum products. Despite newly discovered oil and gas resources in South Africa, the country will continue to remain reliant on the industry's international investors since South Africa does not have the requisite expertise, skill and capital to operate efficiently in this industry. The shortage of capital to further develop the industry means that the country will need to continue to compete with other emerging markets to secure international investment. One such way of being an attractive investment destination has been touted through the offering of a tax regime with incentives which, more importantly, provides certainty and stability (Mausling, 2017: iv). South Africa introduced the Tenth Schedule to the Income Tax Act No.58 of 1962 (“Income Tax Act”) which aims to provide incentives that stimulate industrial and economic growth in the oil and gas industry. Against the backdrop of recent oil and gas finds, the Minister of Finance announced in the 2019 Budget Speech that changes to the Tenth Schedule would be considered. This has brought about the need to consider the role of fiscal stability agreements (“FSA”). Under the Tenth Schedule, South Africa offers FSAs which allows for the “freezing” of the Income tax provisions when the FSA was signed i.e. even if there is a new tax regime, the investor may elect to continue to use the old tax regime. Firstly, this dissertation considers whether there is a need for FSAs. To achieve this aim, the dissertation considers the reasons for fiscal instability and considers these within the South African context. These reasons are used to substantiate whether there is a need for FSA's as a remedy for fiscal instability. The current incentives offered by the Tenth Schedules are examined in order to determine the reasons as to why oil and gas companies would find FSAs advantageous. Secondly, the dissertation examines the types of FSAs typically offered, including freezing clauses (currently used in the FSA offered by South Africa), economic balancing clauses and, finally, hybrid clauses. In critically reviewing these different clauses, the most preferred clause is suggested. A further review of this preferred clause is enhanced through the consideration of the types of FSAs offered by comparable countries. Ghana and Mozambique have been identified and selected for comparison for the purposes of this study. The paper further considers aspects of the FSA such as the legality and legal effectiveness of FSAs. Such issues are critical in light of the challenges that have been identified in the use of FSAs, particularly that such instruments limit the State's sovereignty. Furthermore, the costs associated with FSAs are considered. Lastly, the remedies available should the state elect not to adhere to a FSA once in force are considered. The findings of the study suggest that there remains a need for FSAs in South Africa. However, the findings indicate a need to change the current fiscal stability clause into an economic balancing clause, in particular a negotiated economic balancing clause.
- ItemOpen AccessA critical analysis of South Africa’s domestic nexus requirements for the taxation of cross-border services(2019) Dunjane, Kate; Roeleveld, JenniferThe taxation of cross-border services has for a long time been a contentious topic of discussion across the international tax arena. The controversy of this debate stems predominantly as a result of the long held notion of the permanent establishment as a nexus requirement for source taxation; in a world where global trade, especially in services, can be significantly conducted without the need to establish a prolonged physical presence in the state of source. This is aided by digital technologies and advancements in telecommunications that enable business activities to be carried on remotely. Thus, significant economic activity can take place in a state without meeting the minimum taxable presence required to justify source-based taxation. The problem is that with cross-border transactions between developed and developing countries, where the developing country is typically a capital-importer of services, that developing country will never have the jurisdiction to tax active service-based business income, since the threshold relied on is high, relative to how global trade is conducted today, as it is predominantly dependent on satisfying a physical presence requirement. This study examines the nexus requirements contained in South Africa’s domestic legislation for the taxation of service fee income earned by non-residents. The analysis highlights how the threshold relied on to justify source-based taxation in South Africa is high, since it requires the physical presence of the service provider within the Republic. The study further highlights how South Africa’s policy choice in this regard is akin to a residence-based taxation system, by drawing parallels with the OECD model, which is renowned for its suitability to net capitalexporting and developed economies. Alternative proxies used to tax cross-border services, as noted in the United Nation’s Article 12A, the SADC Model Treaty and the domestic legislation of some BRICS member states, are introduced to the study as comparatives. The general finding hereon is that these alternative nexus requirements are predominantly akin to a policy choice slanted towards source-based taxation, contrasted by the residence-based approach evident in South Arica’s policy choice. Furthermore, the study conducts an analysis of the development of the taxation system in South Africa. The analysis reveals that South Africa’s policy choice to tax active income was largely influenced by the desire to ensure that South African tax laws were internationally compatible at the time when the South African economy was reintegrated with the global economy, postdemocratisation of the Republic. This led to the introduction of the permanent establishment 6 concept into South African domestic law, notwithstanding the knowledge of a not too distant future, where global trade would be conducted via digital technologies and telecommunications, which would render the requirement for physical presence to conduct trade obsolete. The objective of the study is to provide policy recommendations that support a gravitational pull towards more of a territorial-based taxation system. The impact thereof is envisaged to contribute to the strengthening of South Africa’s domestic source rules; the broadening of South Africa’s tax base and the enhancement of the competitiveness of South Africa’s economy.
- ItemMetadata onlyA critical analysis of the issues of Reinstatement, specific performance and victimisation in the field of labour law(Southern Africa Labour and Development Research Unit, 2015-05-28) Turner, G.
- ItemOpen AccessA critical analysis of the legality of retroactive fiscal legislation and the remedies available to taxpayers(2021) De Villiers, Christoff De Wet; Johnson, Tracy‘Uncertain law also penalizes those anxious to obey it and eventually creates contempt for the law. Uncertain law will thus erode the confidence of taxpayers in the system and their willingness to support and comply with the system.' Retroactive fiscal legislation leaves taxpayers with little to no tax certainty, with only about two months of transactional certainty each tax year not subject to any potential retroactive draft fiscal legislation - from when the amendment act from the prior legislative amendment cycle is promulgated until the Budget Speech which sets in motion the new legislative amendment cycle. Arguably, economic activity and tax morality could increase should more certainty exist as to what types of retroactive fiscal legislation are permissible, in which circumstances it is permitted and the remedies available to taxpayers in cases where such legislation adversely affects their vested rights. This research aims to consider the legality of retroactive fiscal legislation to provide much-needed tax certainty. This will be done by analysing the rules under the common law, statute law (being the Interpretation Act) and the Constitution. The conclusion reached under the common law is that regarding fully completed transactions, the presumption against retroactivity will provide an effective remedy to taxpayers should the retroactive legislation not explicitly provide that it will apply to completed transactions. Under statute law, the treatment of statues which are subject to commencement provision are dealt with similarly under the Interpretation Act and the proposed Interpretation of Legislation Bill, in that neither contains an outright prohibition on retroactive legislation. Under the Constitution, a challenge based on either the rule of law or the doctrine of separation of powers will most likely not be successful. A challenge in terms of section 25 of the Constitution would be the constitutional remedy most likely to succeed. A challenge under section 25 of the Constitution requires a two-stage test: Firstly, it needs to be determined if the deprivation of property was arbitrary for purposes of section 25 of the Constitution. Secondly, it needs to be determined if section 25 of the Constitution's limitation is justifiable under section 36 of the Constitution. The deprivation of property will be arbitrary if sufficient reasons are not provided. If found to be arbitrary, then the judiciary must declare such legislation unconstitutional without the need to consider section 36 of the Constitution. Should an assessment under section 36 of the Constitution be required, the competing values need to be measured against each other and an assessment made based on proportionality. Section 36(1)(e) of the Constitution suggests that prospective legislation is preferred to retroactive legislation, and that means less restrictive than retroactive fiscal legislation should be relied on if they exist. Based on the analysis in this paper, it is respectfully submitted that the taxpayers in Pienaar Brothers should have had an effective remedy in terms of section 25 of the Constitution, read with section 36(1)(e) of the Constitution, as less restrictive means were available to the Commissioner in the form of the general anti-avoidance rules. The retroactive amendments were also not of general application and the taxpayers did not receive adequate warning. Irrespective of a successful constitutional challenge, the taxpayers in Pienaar Brothers also had a remedy available to them under the common law presumption against retroactivity (as applied to the completed transaction). The retroactive amendments negatively impacted their vested rights without specifically stating that it would apply to completed transactions. It is unfortunate that the matter was not taken on appeal, as judicial precedent is much needed on the topic of retroactive fiscal legislation and completed transactions.
- ItemOpen AccessA critical analysis of the recent change to the unilateral foreign employment income tax exemption in South Africa and its cross-border interaction(2021) Africa, Lee-Ann; Roeleveld, JenniferSouth Africa is at the forefront of implementing the Multilateral Convention to Implement Tax Treaty Related Measures of the OECD to prevent base erosion and profit shifting (MLI), the Base Erosion and Profit Shifting Project (BEPS) recommendations and the tackling of double non-taxation. In 2017, the National Treasury announced that the tax exemption for South African expatriates would be changing. The section would be amended so that foreign employment income would no longer be fully exempt in the hands of a resident. The section 10(1)(o)(ii) exemption in its original form was the relief mechanism for residents to prevent the possibility of double taxation on the employment income derived from working outside the republic. This being when South Africa converted from a source based to a residence-based tax system on 1 March 2001, and all South African residents became subject to tax on their world-wide income. Residents working abroad were at the risk of being subject to taxation on their employment income derived in two or more jurisdictions. Residents making use of the full tax exemption in terms of Section 10(1)(o)(ii) of the Income Tax Act and rendering services in countries where no employment tax was imposed or imposed at significantly low rates has therefore resulted in double non taxation. In 2017, South Africa's National Treasury published the Draft Taxation Laws Amendment Bill, initially repealing the foreign employment income exemption entirely. However, as a result of strong criticism in the form of public commentary, National Treasury proposed and later enacted an alternative amendment by reverting to the partial repeal of the foreign employment income exemption in the form of an ‘exemption threshold'. As per the enactment of the Taxation Laws Amendment, Act, No.17 of 2017 which has revised the Income Tax Act No.58 of 1962 (IT Act), specifically with reference to the wording of section 10(1)(o)(ii) to allow for R1 million of foreign remuneration to be exempt from tax in South Africa if the individual is outside of the Republic for a stipulated number of days. The legislative amendment came into effect on 1 March 2020 and states that South African tax residents abroad will be required to pay tax up to 45% on their foreign employment income, where it exceeds the R1million threshold. With the recent budget speech in 2020, the specific tax exemption has been increased to R1.25 million. This ‘exemption threshold' primarily aims to target high net worth individuals and thus still provide the relief to middle and lower income earners. The effect of the amendment would be that all residents working outside of the Republic and who derive foreign employment income in excess of R1.25million and who have previously enjoyed the benefit of the section 10(1)(o)(ii) exemption will now be subject to taxation and possibly double taxation and would need to seek relief elsewhere if necessary. In this minor dissertation we have considered the effect of the Section 10(1)(o)(ii) amendment and what this will mean for the individual working abroad in relation to domestic tax legislation and any double tax treaties (DTC's) in place. A key finding arising from the research in the minor dissertation is that many South African's have hastily made a decision to formally emigrate through the South African Reserve Bank (SARB) procedures in an effort not to pay income tax in South Africa on foreign remuneration earned overseas. However, in considering alternate mechanisms, such as applying the rebate afforded in section 6quat of the IT Act or applying a DTC if in place, may be a simpler and more cost-effective solution instead of taking a more drastic decision to emigrate. Further, the fact that an individual potentially could be subject to tax on the full remuneration if they make the decision to formally emigrate as opposed to maintaining South African residency and only paying tax on the excess remuneration above the threshold should be considered in any future tax planning.