Journal for Juridical Science最新文献

{"title":"Secrecy of Taxpayer Information and the Disclosure thereof by an Order of Court in Terms of the Tax Administration Act 28 of 2011 and the Promotion of Access to Information Act 2 of 2000","authors":"S. De Lange","doi":"10.38140/jjs.v48i2.7909","DOIUrl":"https://doi.org/10.38140/jjs.v48i2.7909","url":null,"abstract":"The secrecy provisions of the Tax Administration Act 28 of 2011 (hereinafter, the TA Act) provide that taxpayer information may generally not be disclosed by the South African Revenue Service (hereinafter, SARS). One of the exceptions to the preservation of secrecy is when a court orders disclosure following an application regulated by secs. 69(2)(c), 69(3), 69(4), and 69(5) of the TA Act. This article considers this exception to taxpayer secrecy in terms of the TA Act, with a focus on the circumstances provided in sec. 69(5) of the TA Act, which must be met before the court may order disclosure. This is done by first considering the previous provisions relating to secrecy and the exception thereof by an order of court found in, for example, the Income Tax Act 58 of 1962, which applied before the commencement of the TA Act. The case law on the previous provisions and the more recent cases on the TA Act secrecy provisions are analysed. This article also considers the disclosure of taxpayer information by a court in terms of the Promotion of Access to Information Act 2 of 2000 (hereinafter,the PAI Act), in light of the recent finding by the Constitutional Court in Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others.1 In this case, the majority of the court declared certain provisions of the PAI Act and the TA Act constitutionally invalid, which results in the mandatory disclosure of taxpayer information when it is in the public interest, as contemplated in sec. 46 of the PAI Act. The PAI Act, in addition to the TA Act, now allows for a court order to disclose information in terms of the public interest procedure if access was refused by SARS. This begs the question: What is the interaction between a TA Act court order to disclose taxpayer information and a PAI Act court order to disclose taxpayer information if the requirements ofsec. 46 of the PAI Act are applicable and if access was refused by SARS?","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"348 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140472192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An An Ideological Land Reform Policy Shift of State Custodianship and ‘Transforming the Rural Land Economy’","authors":"Anthea-lee September-Van Huffel","doi":"10.38140/jjs.v48i1.7406","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7406","url":null,"abstract":"In customary landholding practices land is regarded as more than an asset of economic value to be owned. African people’s rights in land and other natural resources exceed the idea of mere possession. To African rural land holders, land is not only a material resource for agricultural production, nor is the commercialisation and commoditisation of land the primary driving force for most customary landholding communities’ even though the land is productively used. This broader conceptualisation of the social function of land beyond the economic, aligns with modern property law on the proprietary function of property. However, excessive state limitations imposed on customary land tenure can hinder economically valuable property rights, but also other rights to social, cultural, and ontological resources embodied in the spirituality of African communities. \u0000Security of tenure for land reform beneficiaries cannot be secondary to commercialisation and commoditisation of the rural land economy in the national interest. Commercialisation and commoditisation are the by-products of recognised, protected, and enforceable property rights and not the “pre-requisites” or “qualifiers” for secure land tenure. Thus, the state custodial approach reflected in land reform law and policy that places an overemphasis on private property capitalism, above the constitutional mandate of security of land tenure is critically discussed. It is argued that if not carefully formulated transformative land reform law and policy can be conduits for a state custodianship approach that inadvertently reproduces apartheid-like ideology and preoccupations. \u0000Key words: Secure tenure, state custodianship, National Development Plan 2030, transformative land reform law and policy.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"43 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140509851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The role of expert evidence in civil litigation: a critical analysis (Part 1)","authors":"Thino Bekker","doi":"10.38140/jjs.v48i1.7123","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7123","url":null,"abstract":"Section 34 of the Constitution of the Republic of South Africa provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. A number of foundational principles that underlie the South African law of civil procedure had been afforded express recognition by this section. One of these principles entail that the duration and costs of civil litigation should be reasonable. In the past decade, or so, there have been several initiatives to give effect to this ideal of civil justice for all. Despite this, there are still several impediments in the South African law that causes civil trials too be exorbitant and time-consuming. One of these impediments relate to the presentation of expert evidence testimony. Part one of this article will critically discuss the historical development of Uniform Court Rule 36(9), its recent amendments and the critique raised against the procedure. In part two the position in relation to the presentation of expert witness evidence in England and Wales, and Australia, as well as its possible contribution to the South African law will be discussed. It will be argued that the current procedure relating to the presentation of expert evidence in South Africa still has certain shortcomings and that the Rules Board will have to intervene to ensure that the procedure enhances access to justice in civil matters.    ","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"41 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140509555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An overview of an ombud office to enhance co-operation between school governing bodies and the department of education","authors":"","doi":"10.38140/jjs.v48i1.7099","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7099","url":null,"abstract":"","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117144013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE IMPACT OF THE DURATION OF THE MARRIAGE IN FORFEITURE OF PATRIMONIAL BENEFITS: PPV JP [2020] ZAGPJHC 281 (2NOVEMBER 2020)","authors":"Siyabonga Sibisi","doi":"10.38140/jjs.v48i2.7106","DOIUrl":"https://doi.org/10.38140/jjs.v48i2.7106","url":null,"abstract":"SUMMARY When deliberating whether to issue a forfeiture order for patrimonial benefits, section 9 of the Divorce Act 70 of 1979 mandates the court to take into account the marriage’s duration, the reasons behind the marriage’s breakdown, and any significant misconduct. These factors aid the court in determining if any financial benefits granted to a party are unwarranted. The presence of any of these factors might provide grounds for justifying a forfeiture order. This analysis examines how the duration of a marriage impacts a court’s decision regarding forfeiture, as well as how the duration of the marriage affects the extent of the forfeiture, as explored in the case of PP v JP [2020] ZAGPJHC 281 (2 November 2020). It illustrates that while forfeiture provisions retain a residual influence from the fault-based divorce system, the duration of the marriage remains distinctively impartial to fault.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114636088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"DOES THE STATE HAVE TO PROVIDE SUBSTANTIATING EVIDENCE WHEN AN ACCUSED PLEADS GUILTY TO DRUG-RELATED CHARGES? A DISCUSSION OF S V PAULSE 2022 (2) SACR 451 (WCC)","authors":"","doi":"10.38140/jjs.v48i1.7300","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7300","url":null,"abstract":"","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115463276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PROFESSIONALISING THE FIGHT AGAINST POLICE CORRUPTION IN SOUTH AFRICA: TOWARDS A PROACTIVE ANTICORRUPTION REGIME","authors":"W. Nortje","doi":"10.38140/jjs.v48i1.7149","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7149","url":null,"abstract":"professionalisation of SAPS. Finally, the paper concludes by recommending various initiatives aimed at sustaining the fight against police corruption in the long term.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122208309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Born from bad memories: considering the best interests of children conceived through rape and incest","authors":"","doi":"10.38140/jjs.v48i1.7059","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7059","url":null,"abstract":"","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128340999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Issuance of independent guarantees by insurance companies","authors":"C. Lupton, S. Huneberg","doi":"10.38140/jjs.v48i1.7112","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7112","url":null,"abstract":"use of insurance companies in independent-guarantee transactions. The analysis reveals the following factors as the main contributors to this growing practice: the favourable security requirements of insurance companies, the significance of the premium attached to guarantee policies, and the increasing flexibility of insurance companies in the formulation of guarantees.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132914690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evaluating the Role of Judicial Oversight in the Context of the Post-2018 Emolument Attachment Order Legal Frame","authors":"S. van der Merwe","doi":"10.38140/jjs.v48i1.7344","DOIUrl":"https://doi.org/10.38140/jjs.v48i1.7344","url":null,"abstract":"Historically, mechanisms facilitating civil debt collection and its broader discipline of civil procedure have been an unpopular legal research area, not only in South Africa, but also abroad.[1] In recent years, one civil debt collection mechanism has, however, attracted some academic attention.[2] This attention has resulted from relatively rapid legal developments to counteract widespread debtor exploitation resulting from systemic abuses.[3] The emolument attachment order (hereafter, “EAO”) mechanism, sometimes also referred to as garnishee orders,[4] functions as a civil debt collection instrument, usually following the granting of a default judgment,[5] where the debtors are judged to be legally liable to their creditor.[6] Through the application of EAOs, debtors’ property, specifically their wages, are exposed to execution, in order to satisfy the creditors’ expectations of performance. In this manner, a portion of workers’ wages are withheld from them by the debtors’ employers (the garnishees) after being legally requested or reserved by creditors. The EAO mechanism is a popular debt-collection instrument affecting the lives of potentially millions of people.[7] Creditors favour debt collection through the EAO mechanism, as it offers a relatively convenient and secure form of debt enforcement.[8]   [1] De Vos 2002:236-237. [2] See, for example, Coetzee & Van Sittert 2018; Van der Merwe 2019. [3] Van der Merwe 2019:87-90. [4] There is a slight, but important difference between garnishee orders, a term used to describe an order that empowers the creditor to attach any debt owed to the debtor by any third party, and EAOs, which are specific forms of garnishee orders applicable to the employer-employee relationship. See Van der Merwe 2019:78. [5] Van der Merwe 2008:78. [6] The definition of EAOs is apparent from their function, which is explained in sec. 65J(1)(b) of the Magistrates’ Courts Act 32/1944. [7] As far as the author can ascertain, there are no statistics available on the exact number of EAOs currently in circulation. Haupt et al. 2008:85-104 experienced a similar challenge and relied on estimates to provide some indication of the extent of EAO use at the time. The author’s estimation of the number of lives affected by EAOs, including extended family members, is aligned with available data regarding the extreme scale of South African indebtedness (see, for example, Coetzee & Van Sittert 2018:110) and earlier indications of the prevalence of EAOs in circulation. See, for example, Van der Merwe 2019:80 at fn. 26, referring to an audit of a portion of the 1,75 million EAOs in existence in 2007. [8] South African labour laws are relatively protective of employees and EAO debtors are specifically safeguarded from employer retaliation as a result of EAO deductions. See Smit & Van Eck 2010:47, 65-66. In terms of sec. 185 of the Labour Relations Act 66/1995, every employee has the right not to be unfairly dismissed.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129741340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}