Browsing by Subject "Law and legislation"

Now showing 1 - 9 of 9
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    A critical examination of South African law on civil liability for oil pollution damage from ships
    (1992) Hiscox, Stuart
    Throughout the development of the International Law of the Sea there has been a conflict between the notion of the freedom of the seas and their rights that a coastal state may exercise over the seas adjacent to its territory. This conflict stems from the · coastal state wanting to exploit the resources in the seas as opposed to non-coastal states and other states wanting to exercise the traditional rights, such as the freedom of navigation and fishing, that they enjoyed under the freedom of the seas doctrine. It thus developed that coastal states have certain rights within specified areas of their coasts. These rights extend from complete sovereignty within the internal waters of the state (with the exception that a coastal state cannot refuse entry to a ship in distress) to the exclusive right to exploit minerals found on the continental shelf of the coastal state1 and to exploit the resources in their exclusive economic zone. However, except in regard to internal waters, the other users of the seas still retain some of the rights available to them under the freedom of the seas doctrine, the most important of which is the freedom of navigation. This freedom is not absolute, but it is limited to (innocent passage in the territorial waters, nd it allows vessels not registered in the coastal state to sail within areas that the coastal state and its citizens have rights in. - The question that arises is what is the position if a vessel, not registered in the coastal state, infringes on the rights of the state. In traditional International Law of the Sea the right of recourse lay in the flag state of the vessel and if the flag state did not take any action then the coastal state could not e any punitive measures against the vessel as it did not have jurisdiction over the vessel or her master. It thus developed, alongside the development of the coastal state's rights in regard to the different maritime zones, that specific enforcement jurisdiction was given to the states to preserve the rights that they exercised over those zones.
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    AIDS and insurance law: possible social policy solutions for life insurance applicants excluded due to HIV seropositivity
    (1994) Theys, Evan Edward
    The broad aim of this study is to investigate and recommend a model which would contribute to finding a solution to the AIDS pandemic facing the insurance industry. At present HIV positive persons are excluded from obtaining life insurance, and as a result of this they are excluded from obtaining access to finance as a life insurance policy is a vital financial instrument when attempting to access finance. The insurance industry has decided to protect itself and its response to the pandemic smacks of crisis intervention rather an attempt to find a solution acceptable to all parties. The intention is to investigate the role that all stakeholders, the public sector, the state and the industry can play in contributing to an imaginative response posed by this challenge. This study explores the causes and prognosis of AIDS, how the life insurance industry operates, how necessary life insurance is, strategies adopted by the industry in the face of this challenge, the experience of international insurers, as well as suggesting possible solutions and examining their mechanics. The study also investigates the impact of the Constitution and the Fundamental Rights on the suggested solutions. It recommends a particular solution as a workable model within a social policy perspective. It concludes with a request that all stakeholders participate in this solution for and to the benefit of everyone, as AIDS is not the problem of medical practitioners, or attorneys, or the insurance industry, but a societal problem.
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    An analysis of the anti-avoidance provision S.103 of the South African Income Tax act
    (1993) Saggau, Andreas; Blackman, M S
    The South African Income Tax Act contains a number of specific anti-avoidance sections, as well as a general anti-avoidance section. This dissertation will focus on the general anti-avoidance section 103 of the Income Tax Act No. 58 of 1962 and highlight the individual requirements and their interpretation by the courts. Special consideration will be given to the difficulties of the normality requirement. The amendments made to the section and a brief consideration· of similar general anti-avoidance provisions in other countries shall also be evaluated. Where tax cases are analysed, it must be kept in mind that the burden of tax is imposed by Parliament in the form of the Income Tax Act or other laws while it is the Courts that apply these laws. The 'task' of the Courts has accordingly been described by Lord Templeman in the recent case of Ensign Tankers (Leasing) Ltd v Stokes: 1 'The task of the courts is to construe documents and analyse facts and to ensure the taxpayer does not pay too little tax or too, much tax but the amount of tax which is consistent with the true effect in law of the taxpayer's activities. Neither the taxpayer nor the Crown should be deprived of the fiscal consequences of the taxpayer's activities properly analysed. ' Having this '_task' in mind we will see how the general anti-avoidance provision has been enforced by the Courts. We will see if section 103 is the powerful sword in the hands of the Commissioner of Revenue or just another 'paper tiger'. Lastly I will deal with the general provision against the utilization o( assessed losses s 103(2) and dividend and interest swaps sl03 (5).
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    International tax planning considerations for South African emigrants
    (1990) Fernandes, Orlando Jose
    The purpose of this paper is to outline the international income tax implications facing a South African emigrant. The discussion that follows is based on an individual or family emigrating from South Africa to Australia. The reason why I have chosen Australia is because I have a detailed knowledge of the domestic tax laws in Australia. The thought process that I have followed applies equally to most other western countries. The reason for this is because Australia's income tax system is based on residence principles which are similar to most other western countries. On the other hand, South Africa's tax laws are based primarily on source principles, a feature which is applicable mainly to tax havens (but for the high rate in South Africa). I will commence firstly by giving a brief overview of the income tax system in Australia. I will then proceed to discuss the income tax consequences of a flow of dividends and interest out of South Africa, and into Australia. I will then attempt to raise alternative structures which will provide a more effective after-tax return to the individual or family who settles in Australia.
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    Overpayment of tax: when does a taxpayer have a right to repayment
    (1993) Silke, Jonathan M
    A recent decision of the House of Lords in England, Woolwich Building Society v Inland Revenue Commissioners (No 2) (1), is of great importance for taxpayers and has impact in the fields of constitutional, public and tax law. Although a decision of the courts of England, it has great significance for our law as well, especially in the light of two important recent decisions of our Appellate Division, CIR v First National Industrial Bank Ltd (2) and Willis Faber Enthoven (Pty)Ltd v Receiver of Revenue and Another (3). In the Woolwich Building Society case the Revenue had issued a demand under the Income Tax (Building Societies) Regulations 1986 to the plaintiff building society for payment of composite rate tax amounting to £56 998 221 on interest and dividends paid to investors between 30 September 1985 and 1 March 1986 and it had paid the tax claimed under protest. Plaintiff disputed the validity of the 1986 regulations but paid the amount assessed in three instalments commencing on 16 June 1986.The next day it applied for judicial review of the regulations to challenge the lawfulness of certain provisions and also issued a writ on 15 July to recover the amount paid as money had and received, together with interest thereon. In October 1990 the House of Lords confirmed that the sections of the regulations complained of were indeed ultra vires the enabling legislation(4).Plaintiff then continued its action for repayment and sought payment of interest on the capital from the dates of payment of the three instalments until judgment was given at first instance in the High Court on 31 July 1987. Inland Revenue accepted only a moral obligation to repay the principal amount of £57 million, together with interest from the date of first judgment in Plaintiff's favour. However, the Revenue claimed that any such repayment would be a matter of administrative grace only and not of legal entitlement, with the result that no interest was due for the period between the original payment and the date of that High Court judgment. Plaintiff would only have been entitled to recover the interest in issue if it would be able to show that it had been entitled in law to repayment of the principal sums as from the dates of their first payment. The main issue before the House of Lords was whether, and in what circumstances, a taxpayer is entitled, as a matter of right, to recover sums paid to the Revenue pursuant to unlawful
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    Shareholders' agreements in private companies: the regulation of the relationship between the shareholders of the company inter se
    (1993) Liebenberg, Graham Barend
    A company and all its members for the time being can, within the limitations imposed by its memorandum, by agreement depart from its articles and such agreement would bind the company and those members 1• Such agreements are frequently entered into between proposed shareholders of a company to be formed or shareholders of an existing company. When these agreements relate to companies to be formed they are known as formation agreements but commercially the agreements are generally known as shareholders' agreements. They usually govern the rights and obligations of the respective shareholders as well as other matters· relating to the affairs of the company. Members of private companies, particular small domestic companies usually enter into shareholders' agreements for various reasons, e.g. where they wish to secure special safeguards for their prospective interests in the company. Thus, a majority shareholder may want to ensure that control of the company will remain with his family, or a minority shareholder may seek special protection. Whilst such special safeguards could be contained in the memorandum or articles of association, which will bind the company and its members, the memorandum and articles I by themselves will not always afford the protection because they are capable of being amended by special resolution. Legislation may override the articles, e.g. section 220 of the Companies Act provides that, notwithstanding anything in the articles, a director may be removed from his office by ordinary resolution. A shareholder, unless he commands at least twenty-six per centum of the voting rights in general meeting, may be unable to prevent an alteration of the articles of which he does not approve. An agreement could prevent the variation of the rights attaching to any class of share in terms of section 102 where a company has more than one class of shares.
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    Some aspects of estate duty on deceased estates in the Republic of South Africa: with special reference to the problems and effects of double taxation occuring in relation to the German Erbschaftsteuergesetz (Inheritance Tax Act)
    (1993) Beckmann, Nicolai Friedrich; Emslie, T S
    'In this world nothing can be said to be certain, except death and taxes'. If one agreed with this statement, made by Benjamin Franklin one year prior to his death, one could come to the ultimate conclusion that there has to be a special certainty about capital transfer taxes, estate duties, inheritance taxes or other death duties levied on deceased estates. There seems to be no reason whatsoever to doubt the final truth of the first part of Franklin's statement. But is it also right to assume that there is a certainty about taxes or, what is more, to draw the conclusion that there could be a special certainty about the different types of taxes connected with the death of an individual? On the one hand it seems to be true. There are only a few countries throughout the world levying very limited or no taxes at all, and if one forgets about a few tax havens, like the Caymen Islands for example, one is also inclined to agree with the latter part of Franklin's statement - there seems to be certainty about the levying of taxes. But, on the other hand, is the amount of taxes, especially the amount of capital transfer taxes, estate duties, inheritance taxes or other death duties levied on a persons death, always that certain? The avoidance of double taxation has been an objective of most of the world's nations since the negotiation of the first Income Tax Convention in the middle of the nineteenth century. The development of most of the world's countries into modern industrial nations, with trade links all over the world, gradually demonstrated the problems which can arise if one country levies taxes without considering the levying of an equal or similar tax in another country. Today the negative consequences of double taxation on the movement of goods, services and capital are widely understood by modern states enacting tax systems for their citizens.
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    The tax treatment of losses arising in loans advanced
    (1991) Cochrane, Graham David
    Our law recognises two types of loans, namely a loan for use (commodatum) and a loan for consumption (mutuum)'. In a loan for use something is delivered for use by a borrower without reward, and the borrower is obliged to return the same thing he received on loan. For example, a person may lend another person an asset of his, and when the recipient has finished using that asset the identical asset in the same condition as received, is to be returned to the lender. In a loan for consumption one or more units of some fungible thing are delivered to the borrower. The borrower may consume what has been received but is bound to return the same number of units of the type of the thing borrowed. In constrasting a commodatum with a mutuum, it can be seen that a lender ·in the first instance retains ownership of the asset loaned, whereas in the second, ownership is passed to the borrower, who undertakes to repay the loan by delivering things of an identical quality and quantity as those borrowed. Thus, an essential characteristic of a loan of money is that the lender is either the owner of the funds advanced, or is authorised to make the loan by the owner. Once delivery has taken place to the borrower a contract can probably be said to be binding. 2 Thus, a contract of loan cannot be said to be binding by part performance as, in mutuum the only person bound is the person who received a service by the handing over of the money in question.