scholarly journals The Application and Interpretation by South African Courts of General Renvoi Clauses in South African Double Taxation Agreements

2019 ◽  
Vol 22 ◽  
pp. 1-32
Author(s):  
Enelia Jansen van Rensburg
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Double Taxation ◽  
Domestic Legislation ◽  
Inland Revenue ◽  
Domestic Law

General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context otherwise requires. All South African DTAs include such a clause. Many interpretational issues remain with regard to the application and interpretation of general renvoi clauses. This article considers four of these issues in the light of South African cases in which general renvoi clauses were referred to. The following cases are considered: ITC 789 (1954) 19 SATC 434, Baldwins (South Africa) Ltd v Commissioner for Inland Revenue (1961) 24 SATC 270 and Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA). The first of the issues considered in the article is relevant in those cases where a DTA includes a general renvoi clause based on the pre-1995 version of article 3(2) and where amendments were made to a relevant domestic meaning after the conclusion of the particular DTA. These clauses do not expressly state whether the relevant domestic meaning is the domestic meaning existing at the time of the conclusion of the DTA, or at the time of the application of the DTA. The second issue arises if the expression used in the domestic law is not identical to the undefined treaty term. The question is whether the expression in the domestic law can be used to give meaning to the treaty term under the general renvoi clause. Another interpretational issue considered in the article concerns deeming provisions in the domestic law. The issue is whether a meaning that a term is deemed to have under a provision in domestic legislation can be used under the general renvoi clause to give meaning to the undefined term in the DTA. The last issue deals with the meaning of the phrase "unless the context otherwise requires". The question raised is whether this phrase means that the domestic meaning should be given only as a "last resort", or whether it should apply unless "reasonably strong" arguments to the contrary are made

The Interaction between Section 233 of the South African Constitution and the Commentaries to the OECD Model Tax Convention on Income and on Capital

2020 ◽  
Vol 53 (1) ◽  
Author(s):  
Enelia Jansen van Rensburg
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
The South ◽  
Double Taxation ◽  
The Republic ◽  
South African Constitution

The Commentaries to the OECD’s Model Tax Convention on Income and on Capital are at times consulted by South African courts when double taxation agreements are interpreted. The question considered in this article is the nature of the interaction, if any, between these Commentaries and section 233 of the Constitution of the Republic of South Africa, 1996. Section 233 requires a court to prefer a reasonable interpretation of legislation that is consistent with international law over other interpretations that are not consistent with international law. The contribution analyses various aspects of the wording of section 233, including the meaning of the phrase ‘international law’. It points out the various roles that transnational sources may play with regard to section 233, for example these sources may either constitute the ‘international law’ to which section 233 refers, or they may be aids to the interpretation of those sources that constitute ‘international law’. The contribution considers which of these roles the Commentaries are most likely to play for purposes of section 233.

scholarly journals Dispute Settlement in Investment-Related Matters: South Africa and the BRICS

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 212-216
Author(s):  
Engela C. Schlemmer
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Dispute Settlement ◽  
Foreign Investors ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
Investment Treaties ◽  
South African Constitution ◽  
Domestic Law

Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?

scholarly journals Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd: A practical problem of source

2019 ◽  
Vol 19 ◽  
pp. 161-182
Author(s):  
E M Stack ◽  
D Grenville ◽  
R Poole ◽  
H Harnett ◽  
E Horn
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Analysis ◽  
Practical Problem ◽  
Legal Theory ◽  
The South ◽  
Interest Income ◽  
History Of ◽  
Inland Revenue

Lever Brothers, the South African tax case that formed the basis of this research, was concerned with determining the source of interest income. In its time, this was one of the landmark cases and established tax principles that were valid for 54 years, until superseded by changes to legislation20The research presented a critical analysis of the three judgments in the case, exposing weaknesses in each. It also provided a condensed account of the history of the company, the historical era in which the transactions giving rise to the case took place, a glimpse into the lives of the judges, as well as a discussion of the development in South Africa of the rules for determining source. The most important focus of the research was the discussion of the use and validity of the practical man principle, and it was concluded that this principle should be applied, not in lieu of legal theory, but to restrain its unbridled use when unjust results would ensue.

scholarly journals Double Taxation Treaty Interpretation: Lessons from a Case Down Under

2020 ◽  
Vol 23 ◽  
pp. 1-22
Author(s):  
Izelle Du Plessis
Keyword(s):  
South African ◽  
Vienna Convention ◽  
The South ◽  
Double Taxation ◽  
High Court ◽  
Management Concept ◽  
Australian Case ◽  
Treaty Interpretation ◽  
The Law ◽  
Domestic Law

In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties. It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

The Engagement of Beneficiaries in Farm Governance of Restituted Land through the Communal Property Association Model: The Ideal Versus the Reality of Beneficiary Farms in South Africa

2019 ◽  
Vol 16 (2) ◽  
Author(s):  
Mokoko Piet Sebola ◽  
Malemela Angelinah Mamabolo
Keyword(s):  
South Africa ◽  
South African ◽  
Land Reform ◽  
Farm Management ◽  
The South ◽  
African Government ◽  
Communal Property ◽  
Farm Ownership ◽  
Land Restitution ◽  
Communal Property Associations

The purpose of this article is to evaluate the engagement of farm beneficiaries in South Africa in the governance of restituted farms through communal property associations. The South African government has already spent millions of rands on land restitution to correct the imbalance of the past with regard to farm ownership by the African communities. Various methods of farm management to benefit the African society have been proposed, however, with little recorded success. This article argues that the South African post-apartheid government was so overwhelmed by political victory in 1994 that they introduced ambitious land reform policies that were based on ideal thinking rather than on a pragmatic approach to the South African situation. We used qualitative research methods to argue that the engagement of farm beneficiaries in farm management and governance through communal property associations is failing dismally. We conclude that a revisit of the communal property associations model is required in order to strengthen the position of beneficiaries and promote access to land by African communities for future benefit.

Exploring the South African Government Communication on Land Expropriation without Compensation

2020 ◽  
Vol 72 (1-3) ◽  
Author(s):  
Lungisani Moyo
Keyword(s):  
South Africa ◽  
Food Security ◽  
South African ◽  
Small Scale ◽  
South African Government ◽  
Eastern Cape ◽  
The South ◽  
Land Expropriation ◽  
African Government ◽  
Government Communication

ABSTRACT This paper used qualitative methodology to explore the South African government communication and land expropriation without compensation and its effects on food security using Alice town located in the Eastern Cape Province South Africa as its case study. This was done to allow the participants to give their perceptions on the role of government communication on land expropriation without compensation and its effects on South African food security. In this paper, a total population of 30 comprising of 26 small scale farmers in rural Alice and 4 employees from the Department of Agriculture (Alice), Eastern Cape, South Africa were interviewed to get their perception and views on government communications and land expropriation without compensation and its effects on South African food security. The findings of this paper revealed that the agricultural sector plays a vital role in the South African economy hence there is a great need to speed up transformation in the sector.

Book review: Jansen, J. 2017. As by Fire: The End of the South African University. Cape Town: Tafelberg.

2017 ◽  
Vol 1 (1) ◽  
pp. 117
Author(s):  
Jared McDonald
Keyword(s):  
South Africa ◽  
South African ◽  
Teaching And Learning ◽  
Cape Town ◽  
The South ◽  
Scholarship Of Teaching ◽  
Creative Commons ◽  
Vice Chancellor ◽  
The University

Dr Jared McDonald, of the Department of History at the University of the Free State (UFS) in South Africa, reviews As by fire: the end of the South African university, written by former UFS vice-chancellor Jonathan Jansen.    How to cite this book review: MCDONALD, Jared. Book review: Jansen, J. 2017. As by Fire: The End of the South African University. Cape Town: Tafelberg.. Scholarship of Teaching and Learning in the South, [S.l.], v. 1, n. 1, p. 117-119, Sep. 2017. Available at: <http://sotl-south-journal.net/?journal=sotls&page=article&op=view&path%5B%5D=18>. Date accessed: 12 Sep. 2017.   This work is licensed under the Creative Commons Attribution 4.0 International License.To view a copy of this license, visit http://creativecommons.org/licenses/by/4.0/

Dilution studies on three marine outfalls in South Africa

1995 ◽  
Vol 32 (2) ◽  
pp. 297-304
Author(s):  
Willem A. M. Botes ◽  
J. F. Kapp
Keyword(s):  
South Africa ◽  
South African ◽  
Field Data ◽  
Prediction Models ◽  
Feasibility Studies ◽  
The South ◽  
Average Current ◽  
Predicted Values ◽  
Prediction Techniques ◽  
Domestic Effluent

Field dilution studies were conducted on three “deep” water marine outfalls located along the South African coast to establish the comparibility of actual achievable initial dilutions against the theoretical predicted values and, where appropriate, to make recommendations regarding the applicability of the different prediction techniques in the design of future outfalls. The physical processes along the 3000 km long coastline of South Africa are diverse, ranging from dynamic sub-tropical waters on the east coast to cold, stratified stagnant conditions on the west coast. Fourteen existing offshore marine outfalls serve medium to large industries and various local authorities (domestic effluent). For this investigation three outfalls were selected to represent the range of outfall types as well as the diversity of the physical conditions of the South African coastline. The predicted dilutions, using various approaches, compared well with the measured dilutions. It was found that the application of more “simple” prediction techniques (using average current velocities and ambient densities) may be more practical, ensuring a conservative approach, in pre-feasibility studies, compared to the more detailed prediction models, which uses accurate field data (stratification and current profiles), when extensive field data is not readily available.

The impact of climate temperature on counts, recovery, and death rates due to SARS-CoV-2 in South Africa. (Preprint)

2020 ◽  
Author(s):  
Neven Chetty ◽  
Bamise Adeleye ◽  
Abiola Olawale Ilori
Keyword(s):  
South Africa ◽  
South African ◽  
Death Rate ◽  
Western Cape ◽  
Warm Climate ◽  
The South ◽  
Recovery Rates ◽  
Death Rates ◽  
Online Resource ◽  
The Impact

BACKGROUND The impact of climate temperature on the counts (number of positive COVID-19 cases reported), recovery, and death rates of COVID-19 cases in South Africa's nine provinces was investigated. The data for confirmed cases of COVID-19 were collected for March 25 and June 30, 2020 (14 weeks) from South Africa's Government COVID-19 online resource, while the daily provincial climate temperatures were collected from the website of the South African Weather Service. Our result indicates that a higher or lower climate temperature does not prevent or delay the spread and death rates but shows significant positive impacts on the recovery rates of COVID-19 patients. Thus, it indicates that the climate temperature is unlikely to impose a strict limit on the spread of COVID-19. There is no correlation between the cases and death rates, an indicator that no particular temperature range is closely associated with a faster or slower death rate of COVID-19 patients. As evidence from our study, a warm climate temperature can only increase the recovery rate of COVID-19 patients, ultimately impacting the death and active case rates and freeing up resources quicker to enable health facilities to deal with those patients' climbing rates who need treatment. OBJECTIVE This study aims to investigate the impact of climate temperature variation on the counts, recovery, and death rates of COVID-19 cases in all South Africa's provinces. The findings were compared with those of countries with comparable climate temperature values. METHODS The data for confirmed cases of COVID-19 were collected for March 25 and June 30 (14 weeks) for South African provinces, including daily counts, death, and recovery rates. The dates were grouped into two, wherein weeks 1-5 represent the periods of total lockdown to contain the spread of COVID-19 in South Africa. Weeks 6-14 are periods where the lockdown was eased to various levels 4 and 3. The daily information of COVID-19 count, death, and recovery was obtained from South Africa's Government COVID-19 online resource (https://sacoronavirus.co.za). Daily provincial climate temperatures were collected from the website of the South African Weather Service (https://www.weathersa.co.za). The provinces of South Africa are Eastern Cape, Western Cape, Northern Cape, Limpopo, Northwest, Mpumalanga, Free State, KwaZulu-Natal, Western Cape, and Gauteng. Weekly consideration was given to the daily climate temperature (average minimum and maximum). The recorded values were considered, respectively, to be in the ratio of death-to-count (D/C) and recovery-to-count (R/C). Descriptive statistics were performed for all the data collected for this study. The analyses were performed using the Person’s bivariate correlation to analyze the association between climate temperature, death-to-count, and recovery-to-count ratios of COVID-19. RESULTS The results showed that higher climate temperatures aren't essential to avoid the COVID-19 from being spread. The present results conform to the reports that suggested that COVID-19 is unlike the seasonal flu, which does dissipate as the climate temperature rises [17]. Accordingly, the ratio of counts and death-to-count cannot be concluded to be influenced by variations in the climate temperatures within the study areas. CONCLUSIONS The study investigates the impact of climate temperature on the counts, recovery, and death rates of COVID-19 cases in all South Africa's provinces. The findings were compared with those of countries with comparable climate temperatures as South Africa. Our result indicates that a higher or lower climate temperature does not prevent or delay the spread and death rates but shows significant positive impacts on the recovery rates of COVID-19 patients. Warm climate temperatures seem not to restrict the spread of the COVID-19 as the count rate was substantial at every climate temperatures. Thus, it indicates that the climate temperature is unlikely to impose a strict limit on the spread of COVID-19. There is no correlation between the cases and death rates, an indicator that there is no particular temperature range of the climatic conditions closely associated with a faster or slower death rate of COVID-19 patients. However, other shortcomings in this study's process should not be ignored. Some other factors may have contributed to recovery rates, such as the South African government's timely intervention to announce a national lockout at the early stage of the outbreak, the availability of intensive medical care, and social distancing effects. Nevertheless, this study shows that a warm climate temperature can only help COVID-19 patients recover more quickly, thereby having huge impacts on the death and active case rates.

Sign in / Sign up

Export Citation Format

Share Document