Journal for Juridical Science

Whistleblowing, Incentives, and Design Considerations for a Tax Whistleblowing Programme in South Africa

Carika Keulder — Fri, 08 Nov 2024 00:00:00 +0200

The significance of whistleblowing extends beyond its role in promoting public sector accountability; whistleblowers also play a crucial role in safeguarding tax compliance. Evidence suggests that a tax whistleblowing program with a financial incentive leads to less aggressive tax filing and improves the quantity and/or quality of information compared to a program without an incentive. This article explores arguments for and against whistleblowers, as well as incentivising disclosure. Additionally, it discusses design considerations for a tax whistleblowing, aiming to initiate a discussion on the ideal structure for such an incentive programme in South Africa.

Pre-legislative scrutiny during the drafting process:

Terrence R Carney — Fri, 08 Nov 2024 00:00:00 +0200

Several pre-legislative quality-control measures exist to ensure the drafting process delivers necessary and well-written laws. Despite these measures, some bills and acts still contain mistakes that could hinder subsequent statutory interpretation and construction. A few of these mistakes are language based. A case in point is South Africa’s Cannabis for Private Purposes Bill and the way it describes the offence of smoking/consuming cannabis in a vehicle on a public road (sec. 5(5)), in relation to the definitions of the words place and vehicle (sec. 1). The word vehicle can be interpreted as both a place and a transportation device, which obscures the offence in sec. 5(5). A means to try and prevent such semantic anomalies before a bill is published for comment is to apply a linguistic audit as part of the pre-legislative scrutiny stage in the drafting process. A linguistic audit entails the use of various linguistic tools and theories informed by the language challenges in the draft. As an illustration, this article employs the cognitive linguistic “container schema” to better understand the polysemous interpretation of the word vehicle as both a place and a transportation device. In addition, the article proposes four potential linguistic instruments as tools for a linguistic audit, namely componential analysis, functional hyponymy, prototype theory, and limited syntactic analysis. The article starts by reviewing the drafting process, followed by an explanation of the purpose of definitions in legislation. The focus then shifts to a discussion about the potential meaning of vehicle in the Bill, followed by a description of the lexicological approach to drafting. The article concludes that a language audit could assist courts in their continuation of the drafting process through interpretation and construction.

Corruption through bribery: A norm in South Africa’s public sector?

Anzanilufuno Munyai — Fri, 08 Nov 2024 00:00:00 +0200

Corruption continues to be a pandemic. Over centuries, it has managed to evolve in its perpetration, spread worldwide and immerse itself within the daily lives of society. Its ability to evolve and take different forms, has made it impossible to encapsulate into one watertight definition. Despite some sentiments that corruption may be acceptable for economic growth, corruption undermines the rule of law, the equal distribution of resources and services, and weakens the state institutions. No country is immune to corruption. In South Africa, corruption perpetrated through bribery has become a way of life. Bribery in the public sector involves members of a society offering valuable and/or monetary gifts to public officials. The continued prevalence of corruption in South Africa is worsened by both members of society and public officials. Through socio-legal perspective, the paper will examine selected sectors wherein bribery is prevalent. These sectors are selected due to exploitation by public officials or the need for service delivery from public officials. The paper will further delineate the overall effects and available anti-corruption mechanisms in South Africa. Lastly, the paper examines whether corruption, perpetrated through bribery, is a national norm. In its concluding remarks, the paper argues that society and public officials are equal duty bearers in the fight against corruption.

A Taxpayer's Right to Fair Alternative Dispute Resolution

Fareed Moosa — Thu, 07 Nov 2024 00:00:00 +0200

By GG 48188, dated 10 March 2023, the Minister of Finance (hereafter, the Minister) repealed the rules published in GG 37819, dated 11 July 2014 (hereafter, the old rules). In accordance with sec. 103 of the Tax Administration Act 28 of 2011 (hereafter, the TAA), the Minister published 68 new rules (hereafter, the new rules) which came into immediate effect. They delineate procedures for the efficient resolution of disputes occurring within the framework of secs. 101 to 150 of the TAA. Rules 13 to 25 deal with alternative dispute resolution (hereafter, ADR), a voluntary process undertaken on a without prejudice basis outside the formal litigation mechanisms prescribed by sec. 107(1) of the TAA. The new rules, like the old rules, provide for a forum where ADR can occur through private engagement between taxpayers and the South African Revenue Service (hereafter, SARS), with or without the aid of a facilitator, concerning a dispute subject to a pending appeal lodged under the TAA with the specialist Tax Board or Tax Court. In accordance with the rule of law, taxpayers are entitled to procedurally and substantively fair resolution of tax disputes by way of ADR. However, while the new rules serves as the source of a taxpayer’s entitlement to procedurally fair ADR, it is unclear as to the true source of a taxpayer’s substantive right to a fair ADR process. Is the source the new rules, the TAA, or sec. 34 of the Constitution of the Republic of South Africa, 1996 (hereafter, the Constitution)? This article argues that sec. 34 cannot be the substantive law source of this right because its provisions, properly construed, apply to dispute resolution in courts, tribunals, and forums performing an adjudicative function after a fair public or private hearing. When ADR occurs through direct engagement between taxpayers and SARS without the aid of facilitators, then disputes are resolved by consensus through discussion and persuasion. Similarly, ADR through facilitated conciliation does not involve adjudication – facilitators make nonbinding recommendations and do not make final decisions on disputed issues of fact and/or law. This article argues that the new rules are not the source of a substantive law right to fair ADR for tax administration purposes. This article shows that a right of this nature is implied into the TAA when its relevant provisions in Chapter 9 are properly interpreted. It is argued that the scope of this right is to be determined by interpreting the new rule 17 and sec. 107(5) of the TAA through the normative spirit of fairness contained in sec. 34 of the Constitution.

Eviction orders from private land: A case for convenient deference

Lindani Mhlanga — Fri, 08 Nov 2024 00:00:00 +0200

Before the Constitution of the Republic of South Africa, 1996, imposed a new and equally important right not to be arbitrarily deprived, the relationship between those who have and those who do not have title to land was founded on a tradition that gave a private owner the unrestricted right to exclude all others through the rei vindicatio. The Constitutional era favours an approach that promotes balance between ownership and non-ownership interests at points where these interests intersect. Evidence of this shift in approach is most prominent in eviction cases. In addition to
the pre-constitutional requirement that evictions be authorised by a court of law, the implementation of the “just and equitable” measure increased the court’s involvement in evictions in South Africa. Key to this article are the three different forms of eviction orders that can be linked to the exercise of the “just and equitable” measure. First, instances in which the courts grant an eviction application and then suspend the order, enabling unlawful occupiers to continue living on the land/property, while the State seeks alternative land to resettle the occupiers. Secondly, instances in which a court grants
an eviction order but, for whatever reason, enforcement becomes impracticable, resulting in unlawful occupants remaining on private property that belongs to someone else. Thirdly, instances where a court denies an eviction application, enabling unlawful occupiers to indefinitely remain on land that belongs to someone else. This article explores the court’s approach to the modalities of remaining on land as a consequence of the third type of order. In particular, it investigates the court’s failure to address the legitimacy of this identified fact of remaining on land belonging to another against the plausible counterargument of the need for adherence to the separation-of-powers doctrine.

The effects of modern-day paid digital advertising on the escalating sales of counterfeit goods in South Africa

Bella Morufa Ngobeni — Wed, 13 Nov 2024 00:00:00 +0200

This article focuses on the effects of modern-day paid digital marketing, commonly known as digital content creation, on the escalating sales of counterfeit goods in South Africa. The marketing and promotion of South African businesses has always been facilitated by established media and marketing houses, which are formal businesses and statutorily bound. This arrangement caused these establishments to shy away from advertising counterfeit goods, to avoid liability from third parties. However, with the move towards digitisation, businesses have swayed from using traditional marketing companies for advertisements and promotion to using the services of individual content creators, popularly known as social media influencers. These influencers/digital content creators are best described as independent personalities who can affect the buying behaviour of their social media audience, as a result of their persuasiveness and engagement with their audience. This is done through advertising on various online platforms such as social media networks, video channels, websites, and blogs. Formerly, celebrities were considered for digital marketing under the guise of “company endorsements and ambassadorships”. Nonetheless, this has since changed as ordinary people, irrespective of their age, financial backgrounds, and with a substantial social media audience, are eligible. Nowadays, social media marketing has become a suitable platform for advertising almost every product or service, despite the legality or illegality thereof. This article aims to investigate the effects of South Africa’s modern-day digital advertising on the increasing sales of counterfeit goods in South Africa and to show a need for explicit legal rules aimed at prohibiting the marketing of fake goods.

The abuse of a Contingency Fees Agreement – An analysis of Legal Practice Council V Bulelani Rubushe (Case no 1004/2022) [2023] ZASCA 167 (1 December 2023)

Arthur van Coller — Thu, 07 Nov 2024 00:00:00 +0200

This article explores the reasoning of the Grahamstown High Court and the Supreme Court of Appeal concerning the misconduct of a legal practitioner due to his non-compliance with the formalities for a valid contingency fees agreement. The Courts expressed concern at the “embedded” and “endemic” nature of misconduct by legal practitioners. Therefore, the Legal Practice Council and the Courts must deal with misconduct by legal practitioners consistently, predictably, and efficiently. The reasoning of the High Court and Supreme Court of Appeal reveals some similarities, but there are also apparent differences in tone and the sanctions imposed. The High Court found that an appropriate sanction was to suspend the legal practitioner. However, the Supreme Court of Appeal reasoned that the suspension from practice in isolation would almost certainly not transform a legal practitioner into a fit and proper person to practice in the future. The SCA thus determined that the name of the offending practitioner must be struck from the Roll of legal practitioners.