Business Law (Books and Journals)
- Transactions of the Centre for Business Law From No. 2000-32, January 2000 to No. 2012-48, January 2012 Sabinet African Journals, 2021
- Business Tax and Company Law Quarterly From No. 1-1, March 2010 to No. 14-2, June 2023 Sabinet African Journals, 2021
- Journal of Corporate Commercial Law & Practice From No. , August 2019 to No. , November 2022 Juta Journals, 2021
- South Africa Mercantile Law Journal From No. , May 2019 to No. , February 2023 Juta Journals, 2021
- South African Intellectual Property Law Journal From No. , May 2019 to No. , February 2023 Juta Journals, 2021
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Unlocking the Beneficial Interest and Beneficial Ownership Quagmire
The General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act 22 of 2022 (GLAA) was introduced in 2022 and amends the Companies Act 71 of 2008 (Companies Act) by (i) providing for a comprehensive mechanism through which the Companies and Intellectual Property Commission can keep accurate and up-to-date beneficial ownership information; (ii) requiring a company, which is
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How Foreign is Your Business Establishment?
The introduction of full residence-based taxation in 2001 brought with it the concept of a ‘Controlled Foreign Company’ (CFC), whose profits (calculated on SA income tax principles) would be attributed to qualifying South African shareholders (‘participants’) as taxable income. Exempted from attribution were those profits of a CFC which arose from a ‘business establishment’, a term which was...
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Editorial
The authors of the journal welcome the move to the Juta stable of tax literature and look forward to many years of expanding the readership of the journal to those interested in the commercial features of tax and corporate law.
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The Misuse and Abuse of Section 80J of the Income Tax Act
Section 80J of the Income Tax Act was introduced in 2006 as part of the then new General Anti-Avoidance Rule (GAAR). This section requires the Commissioner to notify a taxpayer at the point in an audit when he/she first comes to believe that the GAAR may be applicable to an arrangement entered into or carried out by the taxpayer. It was enacted in response to concerns that the new GAAR might be...
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Editorial
There can be little argument that our tax laws are complex. Added to the complexity of our tax laws is a large measure of uncertainty in the application of these complex laws. Should anyone have any doubt regarding these two statements, this will be quickly dispelled after reading these three erudite articles.
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The Modified Section 23M
Section 23M of the Income Tax Act 58 of 1962 seeks to limit the deduction of interest on debt arising between parties related to one another and in respect of which the interest is not subject to tax in the hands of the recipient of the interest.Section 23M was amended in 2021 by the Tax Laws Amendment Act 20 of 2021 and is effective from years of assessment ending on or after 31 March 2023. The...
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The quest to use CRISPR technology in tackling the South African tuberculosis epidemic: Examining how the CRISPR patent and licensing regime may impact access to CRISPR-related tuberculosis therapies
Tuberculosis (TB) continues to be the top killer disease in South Africa; there is little hope of a very efficient treatment in the near future. It is therefore becoming increasingly clear that the long-term solution to TB requires more than simply adding to the current arsenal of TB drugs. A treatment that provides quicker and long-lasting results is needed. Public health innovations such as...
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Deficiencies in the tests for distinctiveness and reputation: A discussion of passing off in light of Koni Multinational Brands (Pty) Ltd v Beiersdorf Ag
The delict of passing off has evolved and expanded incrementally over time and remains a powerful means of protecting unique aspects of one's products. While passing off seeks to prevent unlawful competition, courts are tasked with balancing which interests ought to be protected by passing off claims against the need to allow market forces and not to unduly constrain competition. The test for...
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Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals
Although the COVID-19 pandemic has receded from daily news coverage, it still continues. Despite states committing to a human rights approach to ending the pandemic, and bearing human rights obligations to that effect, they have under-realised these obligations during this crisis. This article identifies the institutional design of the international trade regime as one of the key reasons for this
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Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction
This article surveys the patent opposition legal landscape in the SADC region and justifies the importance of patent opposition for access to essential medicines by SADC citizens. The article uses Thailand as a comparative jurisdiction and, after taking a closer look at the patent opposition provisions of the laws of Botswana, Malawi, Zambia and Zimbabwe, the article advances the view that the...
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Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy
Nigerian fashion entrepreneurs are finding the market increasingly appealing due to the growing viability of small and medium-size enterprises (SMEs) in the fashion industry, particularly online retail fashion stores, and the easy accessibility of the Internet and digital media. However, with intellectual capital being the hallmark of the fashion industry, the nearly constant violation of...
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Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33
Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights...
- The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration
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Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute
With a growth in cross-border employment, the territorial limitations placed on the adjudication of cross-border employment disputes is incongruent to the development of employment and the subsequent employment relationship. The question of adjudication in the Labour Court rests predominantly on the territorial scope of South Africa's employment statutes. Accordingly, this article exposes the...
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Assessing the Legal and Regulatory Framework for Special Economic Zones in South Africa
The previous industrial development zones (IDZs) programme did not generate the anticipated economic growth in South Africa. Thus, the recent special economic zones (SEZs) programme is aimed at addressing the deficiencies in the disappointing record of the IDZs. So, would the new SEZ programme succeed if the IDZs failed? Since the IDZ is considered to have failed to generate the expected levels...
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South African Governance Legal Framework for Corporate disclosures and reporting: Part 1 – Voluntary sustainability reporting
The general dissatisfaction of shareholders and other users of financial statements with both voluntary sustainability and mandatory financial disclosure and reporting, prompt an appeal for increased government-commanded reporting requirements. State-based standard-setting and voluntary sustainability reporting within the corporate jurisprudence must therefore evolve, which includes, among others,
- Case Note: The income tax position of a creditor on the insolvency and/or business rescue of a debtor
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The characterisation principle in South African competition law from a German law perspective
The characterisation principle — or the concept of characterisation — is a modern achievement of the South African competition law, with its roots in United States jurisdiction from which it was originally transferred into the South African legal system. Several far-reaching South African court decisions refer to the characterisation principle and make it an essential part. However, the...
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Personal liability of non-executive directors in South Africa: A global comparative analysis
The South African Companies Act 71 of 2008 (SA Companies Act) contains extensive provisions detailing the circumstances under which directors may be held personally liable for their actions completed while carrying out their duties. These statutory provisions are a partial codification and modernisation of the existing common-law provisions that had previously regulated this area of company law....
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Is directors’ liability under the Companies Act of 2008 a potentially dangerous trap in comparison to other jurisdictions?
Company law jurisprudence is still emerging in South Africa, especially with the birth of the comprehensive Companies Act 71 of 2008. Academics have focused on directorial duties, with harsh criticism on the shoulders of the legislature. This piece examines the role of non-executive directors specifically but directors holistically under South African law to potentially illustrate how red tape...
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The myth of a central role by institutional shareholders in corporate governance
The need for transparent and high standards of corporate governance is expressly highlighted in s 7 of the Companies Act 71 of 2008. There has been a wide call by those concerned with corporate governance for institutional investors to take a central role in ensuring corporate governance reform is successfully achieved. A number of concerns are highlighted that stand in contrast with this...
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Co-existence of statutory provisions and common-law rules make the smooth application of the Companies Act of 2008 to be untenable in certain respects
The Companies Act 71 of 2008 does not provide a complete codification of company law in South Africa, with the common law still having application. While the Act has done away with certain common-law rules, for instance, the common-law derivative action, it has, in other instances, maintained a co-existence of common-law rules and statutory provisions. This article discusses how the co-existence...
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A case for excluding foreign companies from the application of the Companies Act of 2008 is unconvincing
The approach adopted in the Companies Act 71 of 2008 (2008 Companies Act) is to significantly limit the regulation of foreign companies conducting business (or non-profit activities) in South Africa that meet the registration requirements of the Act.[fn1] The rationale behind this approach is understood as being s 7(c) of the Act – to promote innovation and investment in South African markets.[fn2
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Unveiling the contemporary arbitration regime in Tanzania: Anecdotes worth sharing, prospects and challenges
This article critically discusses the new changes brought about by Tanzania's new Arbitration Act 2 of 2020 of Tanzania and its regulations and their implications for domestic and international arbitration and other related laws. The article finds that the establishment of the Tanzania Arbitration Centre; the requirement for accreditation of arbitrators; the introduction of a code of conduct for...
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Evaluation of the cause-and-effect relationship of internal controls on financial reporting in the Ministry of Health and Social Services, Namibia
This article evaluates the effect of the internal control environment on the quality of financial reporting in the Ministry of Health and Social Services (MOHSS) in Namibia. The Internal Control-Integrated Conceptual Framework of the Committee of Sponsoring Organizations (COSO) of the Treadway Commission was applied as the standard of measurement against the variable internal control, and the...
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The challenges of anti-competitive practices and consumer protection in Nigeria
This article critically examines the concepts and the challenges of price mechanisms, anti-competitive practices and consumer protection in Nigeria, and considers ways of promoting and protecting the interests of consumers in respect of products and services. The article evaluates and defines the concept of price mechanisms, and the concept of the consumer who needs to be protected. It discusses...
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The African Continental Free Trade Area Agreement: Aiding Intra-African trade towards deeper continental integration
The signing of the African Continental Free Trade Area Agreement (AfCFTA) reflected many years of hard work by the continent's forefathers who include Kwame Nkrumah of Ghana, Julius Nyerere of Tanzania, Jomo Kenyatta of Kenya, Kenneth Kaunda of Zambia, Patrice Lumumba of Congo, Robert Mugabe of Zimbabwe and Frantz Fanon of Algeria, but to mention a few. The AfCFTA also depicts the novel work of...
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An assessment of the success of the Convention on Choice of Court Agreements 2005 as an instrument of transnational commercial dispute resolution
The Convention on Choice of Court Agreements (Convention), which was developed by the Hague Convention on Private International Law (HCCH) is a transnational litigation instrument adopted in 2005 and brought into force in 2015. By providing the required methods and tools to disputants in a commercial relationship, the objective of the Convention is to create an internationally uniform legal...
- Case Note: Barnard Labuschagne Incorporated v South African Revenue Service [2022] ZACC 8 (11 March 2022) – The rescindability of a certified statement filed in terms of section 172 of the Tax Administration Act
- Case Note: Complaint initiations and prescription provisions in the Competition Act – The Constitutional Court provides clarity in Competition Commission v Pickfords Removals