Research Articles (Mercantile and Labour Law)

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Tax Administration Act: Fulfilling human rights through efficient and effective tax administration
(Pretoria University Law Press, 2018) Moosa, Fareed
The Constitution, 1996 embodies the ideals bonding South Africans who must cohere and transcend their divisions to change the condition of peoples’ lives by reconstructing a South African society dogged by corruption and maladministration in the public sector, as well as various social ills (such as, poverty and inequality). Section 7(2) of the Constitution obliges the State to “respect, protect, promote and fulfil” the rights entrenched in the Bill of Rights. To do so necessitates that the government has sustained access to adequate finance. Financial constraints in the public treasury will hinder the State’s ability to achieve social justice through the fulfilment of, inter alia, socio-economic rights. Unless the problem of strained governmental resources is overcome, the aspiration of a fully transformed society with human dignity, freedom and equality for all will have a hollow ring.
The right to an adequate standard of living in the protocol to the African charter on human and peoples' rights on the rights of persons with disabilities in Africa
(Pretoria University Law Press, 2019) Basson, Yvette
The Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol)was adopted by the African Union (AU) on 29 January 2018.1 The primary purpose of this instrument is to ‘promote, protect and ensure the full and equal enjoyment of all human and people’s rights by all persons with disabilities’ on the African continent.2 The Protocol is thus potentially an important step forward in the achievement of equal rights by persons with disabilities in Africa.
An exploratory analysis of central bank digital currencies — some considerations
(SA mercantile law journal, 2022) Lawack, Vivienne
The history of central banking began with payment services. Ever since then, payment-related innovation has always been an integral part of central banking (BIS Committee on Payments and Market Infrastruc- tures and Markets Committee Report, ‘Central Bank Digital Currencies’ (2018) iii). Payments have evolved extensively over the years with the emergence of various technologies, from the development of real-time gross settlement (‘RTGS’) systems, to electronic money and mobile money, to name a few. The arrival of financial technologies or ‘fintech’ has led to cryptocurrencies and now central bank digital currency (‘CBDC’) (on cryptocurrencies, see Reddy & Lawack, ‘An overview of the regulatory developments in South Africa regarding the use of cryptocurrencies’ (2019) 31 SA Merc LJ 1–28; see also Deloitte, ‘Are Central Bank Digital Currencies (CBDCs) the money of tomorrow?’, available at https://www2.deloitte.com/ie/en/pages/financial-services/ articles/central-bank-digital-currencies-money-tomorrow.html, accessed on 3 May 2021). A CBDC represents another potential innovation in the area of an evolving branch of the law called ‘fintech law’. This exploratory analysis provides an overview of the meaning of CBDC and the legal nature of money and CBDC. In addition, it provides a broad overview of some legal implications, policy considerations and regulatory issues. Challenges and risks are also highlighted.
Consequences for non-payment of PAYE and VAT compared
(2020) Moosa, Fareed
This article shows that, whereas a bilateral legal relationship exists between the South African Revenue Service (SARS) and a vendor in relation to value-added tax (VAT), a tri-partite legal relationship exists among the SARS, employees and employers in relation to Pay As You Earn (PAYE). This article shows further that employers are, as withholding agents of PAYE, in the same legal position as vendors as regards VAT, namely, they are not in a trust or agency relationship with the SARS. Rather, this article argues that PAYE is in the nature of trust funds held by employers on behalf of employees from whose remuneration it is deducted. Since the employees retain ownership of the PAYE deducted, this article argues that employees have locus standi to lay a charge of theft against employers who misappropriate PAYE. Such a charge of theft is not grounded in tax administration. This article shows further that, as the law presently stands, a charge of theft falls outside the ambit of the remedies available to the SARS against employers and vendors who default in remitting PAYE or VAT. The Tax Administration Act, 2011 read with the Income Tax Act, 1962 and Value-Added Tax Act, 1991 codified only a limited range of criminal sanctions and administrative penalties that may be imposed against a defaulting employer or vendor. If theft is to be included, then a legislative amendment is required.
Relative poverty in female disability grant recipients in South Africa
(St Cyril and St Methodius University Publishing House, 2021) Basson, Yvette
It is a well-established fact that adequate social security measures are used as a tool to allow persons a measure of financial security and support in the event of certain contingencies. Historically, disability has been one of the “core” contingencies, which is covered by social security schemes. The purpose of social security in providing for this contingency is to compensate for income lost or reduced as a result of disability. The fact that more women in South Africa have disabilities than men leads to the conclusion that women with disabilities are more negatively affected by poverty than men with disabilities. This in turn makes a woman with a disability more likely to be dependent on the disability grant than a man with a disability. The link between gender, disability and poverty will be discussed to illustrate the socio-economic position of female disability grant recipients in comparison to male disability grant recipients. This article will address the relative poverty of female disability grant recipients and make recommendations to address this relative poverty.
Evolving statutory derivative action principles in South Africa: The good faith criterion and other legal grounds
(Cambridge University Press, 2021) Mupangavanhu, Brighton M.
The recent Supreme Court of Appeal (SCA) judgment in Lazarus Mbethe v United Manganese of Kalahari raises jurisprudential questions regarding statutory derivative actions in South Africa. For example, the SCA did not agree with the court a quo’s ruling that the discretion to be exercised by the court is limited by provisions of section 165(5). The SCA also questioned whether it is necessary for South African courts to follow the good faith criterion in the Australian case of Swansson v Pratt as adopted into South African law through Mouritzen v Greystones Enterprises (Pty) Ltd & Another. This article contributes to these questions, and proposes possible criteria for other requirements in section 165(5)(b) of the Companies Act 71 of 2008. These other requirements are that the statutory derivative action proceedings must involve “a trial of a serious question of material consequence to a company” and that proceedings be “in the best interests of the company”.
Constitutionalising socio-economic rights in SADC: An impact assessment on judicial enforcement in South Africa, Zimbabwe, Botswana, Lesotho and Zambia
(Nelson R Mandela School of Law, 2020) Kondo, Tinashe
This paper assesses the manner in which socio-economic rights have been incorporated into the constitutions of selected countries in the Southern African Development Community. This debate is particularly important because, in the last decade, there have been changes or attempted changes to constitutions in some member states of this subregional community. However, much of the comparative work on socio-economic rights in the region predates these changes and is therefore, largely, no longer relevant. Accordingly, the constitutions of South Africa, Zimbabwe, Zambia, Botswana and Lesotho are surveyed. It was found that the state of socio-economic rights in these countries could be divided into three categories: those that have constitutionalised socio-economic rights, those without socio-economic rights in their constitutions, and those that have socioeconomic rights as directive principles of state policy. To understand the implications of these categories, an investigation was undertaken into whether a specific category undermines the enforcement, and subsequently, the realisation of these rights.
Discussing the fundamental principles inherent to effective systems of caregiving leave
(Scielo, 2020) Huysamen, Elsabe
Achieving a healthy work-family life balance is becoming increasingly difficult and is generally dependent on a combination of factors. Such factors include the nature and intensity of work engaged in, available legislative or employer provided leave and time-off for caregiving (family) responsibilities, and organisational and home support towards carrying out caregiving duties. A largely female focussed approach towards available caregiving leave must also be addressed. A truly effective system of caregiving leave should be sensitive towards a number of issues, most notably: job security and availability, and sufficiency and practicality of available caregiving leave. With the aforesaid as background, the aim of this contribution is to highlight those fundamental or core principles arguably inherent to any effective system of caregiving leave.
Socio-economic rights in Zimbabwe: Trends and emerging jurisprudence
(Pretoria University Law Press, 2017) Kondo, Tinashe
In a country such as Zimbabwe where many are deprived of opportunities and resources owing, in part, to injustices of the past, socio-economic rights are of the outmost importance. As a result, the new Constitution of Zimbabwe, adopted in 2013, expressly provides for socio-economic rights. While these are yet to be extensively tested, two cases discussed in the article illustrate the willingness of the courts to enforce these rights. In the Mushoriwa case, it is shown that state as well as non-state actors have to refrain from negatively interfering with constitutionally-protected and enforceable socio-economic rights. The Hopcik case shows that there is a positive obligation on the state, which may involve the allocation of resources, to ensure that socio-economic rights are realised. These two cases serve as a good platform from which the courts can continue to develop the jurisprudence on socio-economic rights in Zimbabwe. It is suggested that guidance in dealing with more complex socio-economic rights cases can also be obtained from South African jurisprudence, particularly from the Grootboom case.
Ethical and legal implications of whole genome and whole exome sequencing in African populations
(BioMed Central, 2013) Wright, Galen E.B.; Koornhof, Pieter G.J.; Adeyemo, Adebowale A.; Tiffin, Nicki
BACKGROUND: Rapid advances in high throughput genomic technologies and next generation sequencing are making medical genomic research more readily accessible and affordable, including the sequencing of patient and control whole genomes and exomes in order to elucidate genetic factors underlying disease. Over the next five years, the Human Heredity and Health in Africa (H3Africa) Initiative, funded by the Wellcome Trust (United Kingdom) and the National Institutes of Health (United States of America), will contribute greatly towards sequencing of numerous African samples for biomedical research. DISCUSSION: Funding agencies and journals often require submission of genomic data from research participants to databases that allow open or controlled data access for all investigators. Access to such genotype-phenotype and pedigree data, however, needs careful control in order to prevent identification of individuals or families. This is particularly the case in Africa, where many researchers and their patients are inexperienced in the ethical issues accompanying whole genome and exome research; and where an historical unidirectional flow of samples and data out of Africa has created a sense of exploitation and distrust. In the current study, we analysed the implications of the anticipated surge of next generation sequencing data in Africa and the subsequent data sharing concepts on the protection of privacy of research subjects. We performed a retrospective analysis of the informed consent process for the continent and the rest-of-the-world and examined relevant legislation, both current and proposed. We investigated the following issues: (i) informed consent, including guidelines for performing culturally-sensitive next generation sequencing research in Africa and availability of suitable informed consent documents; (ii) data security and subject privacy whilst practicing data sharing; (iii) conveying the implications of such concepts to research participants in resource limited settings. SUMMARY: We conclude that, in order to meet the unique requirements of performing next generation sequencing-related research in African populations, novel approaches to the informed consent process are required. This will help to avoid infringement of privacy of individual subjects as well as to ensure that informed consent adheres to acceptable data protection levels with regard to use and transfer of such information.
An overview of recent changes to corporate governance frameworks as it pertains to executive remuneration
(University of Fort Hare, 2012) Koornhof, Pieter G.J.
The enforceability of incorporated term in electronic agreements
(University of Fort Hare, 2013) Koornhof, Pieter G.J.
This article seeks to evaluate the validity of different methods of incorporating terms into electronic agreements, and to what extent the use of these different methods may influence the enforceability of the incorporated terms. The two most common methods of electronic incorporation, namely click-wrap and web-wrap, are set out, and the status of their incorporation is analysed by studying positions in the United States of America (US) and the United Kingdom (UK), before referring to South Africa. The common law position regarding incorporated terms for both signed as well as unsigned documents is discussed. It is argued that, irrespective of the method of incorporation adopted, incorporated terms would most likely be valid in light of the provisions of the Electronic Communications and Transactions Act. This notwithstanding, due care must be taken in how the different methods in themselves are used, as this might still affect whether particular incorporated terms will be enforced. This is especially pertinent in the light of contracts which may fall under the ambit of the new Consumer Protection Act. However, neither the Electronic Communications and Transactions Act nor the Consumer Protection Act seeks to replace the common law, but rather adapt it and create a general framework for such types of agreements and transactions to operate in. It is submitted that the law applying to incorporation by reference in signed documents should apply to those instances where click-wrap is used, whereas the law applying to that of unsigned documents should apply when web-wrap is used.

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