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- Volume 47, Issue 3, 2014
Comparative and International Law Journal of Southern Africa - Volume 47, Issue 3, 2014
Volumes & issues
Volume 47, Issue 3, 2014
Source: Comparative and International Law Journal of Southern Africa 47, pp 316 –349 (2014)More Less
The viability of Value Added Tax (VAT) as an effective source of revenue relies chiefly on the ability to enforce VAT rules and to collect VAT effectively on affected transactions. Existing VAT collection mechanisms are in dire need of modernisation, in that they are inefficient and increasingly burdensome on revenue authorities and suppliers. International trends show that tax collection by third party intermediaries is increasingly being introduced in countries where cross-border trade and employment are on the rise. Cross-border digital trade is a fully fledged electronic trading, and often automated, phenomenon. The execution of these transactions requires no or minimal human intervention. A withholding tax mechanism by financial institutions through the implementation of an automated split-payment system, offers the possibility of the execution of online cross-border transactions with no or minimal human intervention. Part 2 investigates VAT collection by financial institutions as a viable tax collection model for cross-border digital trade.
Is tax coordination a solution of trade distortions in SACU? Possibilities for coordination of Value Added Tax in the Southern African Customs UnionAuthor Puseletso LeteteSource: Comparative and International Law Journal of Southern Africa 47, pp 350 –371 (2014)More Less
With the rise of regional integration and increasing globalisation, member countries to regional organisations and trading blocs, are under pressure to strengthen their economic integration. In view of this move, this paper explores the importance of extending this integration towards areas of Value Added Tax systems within the Southern African Customs Union. The paper argues that coordination of Value Added Tax within SACU will be beneficial for purposes of forging closer economic integration. This will also contribute towards fostering intra-regional trade between member states as well as in addressing issues of trade distortions which are caused by different VAT legal systems.
The technology-neutral approach and electronic money regulation in the EU : identifying the promises and challenges for future regulation in South AfricaAuthor Maphuti D. TubaSource: Comparative and International Law Journal of Southern Africa 47, pp 372 –400 (2014)More Less
The rapid development of technology through the introduction of computer networks in the 1960s has brought with it numerous benefits for business communities. These benefits range from the speed and cost-effectiveness ofonline communication, to the speed of transacting and effecting payments using electronic devices. While this technological development has given rise to beneficial penetration of electronic payment systems into the world of commerce, these benefits are not shared by the regulating communities. Technological developments raise various regulatory questions for lawmakers. One such question is whether or not it is possible to regulate these fast-developing systems. The same question is also raised in relation to the regulation of electronic payment systems, including electronic money. In acknowledging the challenges of regulating the technological development of electronic money devices, the European Union has adopted a technology neutral approach to overcome the challenges of strict regulation of this evolving technology, while attempting to provide them with the much needed legal status and certainty. In South Africa, there are on-going discussions as to whether or not (and how) to regulate electronic money devices. A cautious position has been adopted in order to avoid hindering these rapidly developing innovations through a restrictive regulatory framework. This paper highlights some promises and challenges by drawing on some lessons from a similar approach adopted by the European Union in its Second Electronic Money Institution Directives. The paper suggests some middle ground that may be applied to overcome the challenges posed by the adoption of a technology-neutral approach. The aim of the paper is to establish a clear path for the regulation of electronic money institutions in South Africa, by evaluating the effectiveness of a technology-neutral approach, as adopted by the EU.
Author Fawzia CassimSource: Comparative and International Law Journal of Southern Africa 47, pp 401 –428 (2014)More Less
The Internet has introduced cheap, interactive and instant global communications. However, it has also resulted in new forms of criminal behaviour. The technique whereby scammers trick bank customers into entering their usernames and passwords is called 'phishing'. Therefore, phishing scams are used to coerce unsuspecting users to disclose personal and banking information about them. Scammers obtain private information about consumers by posing as legitimate businesses and they play on the combination of trust and fear of fraud. Phishing attacks exploit vulnerabilities in computer networks, cause financial loss to victims and banking institutions and undermine consumer confidence in e-commercial transactions.
However, attempts are being made by some countries and organisations to tackle phishing on a global scale. In this article, I shall examine the increase in phishing attacks in South Africa and the United States of America and measures taken to address phishing in these countries. The United States has invaluable experience in combating phishing; hence it was chosen for the comparative study. The role of international bodies in addressing phishing and the effectiveness of new developments on phishing attacks will also be discussed. The study reveals that both the United States of America and South Africa have introduced legislation that can be used to address phishing. However, it is submitted that such legislation can be improved upon. It is recommended that more comprehensive legislation to address phishing should be introduced in South Africa. At the end of the day, the need for a multi-faceted approach involving law enforcement agencies, legislators and the private sector is advocated, as phishing scams impact on governments, companies and individuals worldwide.
Factors that limit the efficacy of general anti-avoidance rules in income tax legislation : lessons from South Africa, Australia, and CanadaSource: Comparative and International Law Journal of Southern Africa 47, pp 429 –459 (2014)More Less
General anti-avoidance rules (GAARs) are rules in income tax legislation intended to curtail impermissible tax avoidance. GAARs have another critical function, namely informing taxpayers of the limits of permissible tax avoidance. A GAAR is therefore an important provision which must be effective. A study of the historical and current experience with GAARs in South Africa, Canada, and Australia, however, shows that the efficacy of GAARs is limited. The GAARs of the countries studied show some similarities but also some fundamental differences. In spite of these differences, certain common factors working against the efficacy of these GAARs can be identified. It is argued that these factors entail the inherent weakness of GAARs, controversial indicators of impermissible tax avoidance, uncertainty, the role of the judiciary, taxpayer aggression, and the limitations of the law as a weapon against impermissible tax avoidance. Admittedly, some of these limiting factors are difficult to overcome. For instance, a precise definition of impermissible tax avoidance has proved elusive and this status quo is likely to persist. Nevertheless, it is argued that these factors need to be acknowledged and addressed in order to create more effective GAARs in future.
Author S. ViljoenSource: Comparative and International Law Journal of Southern Africa 47, pp 460 –489 (2014)More Less
The purpose of this article is to explore the constitutional recognition of tenants' interests in South Africa, the United States, and Germany and critically analyse why these interests are in some instances accepted as constitutional property and protected as such. Flowing from an analysis of the judicial acceptance of tenants' interests as constitutional property in German law on the basis that the purpose of property is to promote self-development, and similar theoretical arguments that have been voiced in US law that promote the protection of property rights in light of their function to promote human advancement and self-realisation, it is argued that arguments of this kind have no place in a constitutional framework where the right to housing is recognised. The South African housing provision, its enabling legislation, and the judicial interpretation thereof provide sufficient protection for tenants' interests within the constitutional framework. It shows that in the case of an incomplete Bill of Rights the concept of constitutional property might have to be interpreted widely to make way for the protection of these and similar interests.
Forging institutional cooperation to protect core labour standards in trade : are a world trade organisation and an international labour organisation joint dispute settlement system practical?Source: Comparative and International Law Journal of Southern Africa 47, pp 490 –508 (2014)More Less
This paper analyses the successful attempts that have been made to link environmental protection and related regulatory practices to trade with a view to showing that it is possible to achieve similar outcomes in relation to core labour standards. It argues that such outcomes can be achieved through the cooperation of the World Trade Organisation (WTO) and International Labour Organisation (ILO) and advances proposals on how such cooperation can be established and put into operation. In the short-term, the paper proposes that a joint WTO and ILO Standing Committee be established to address the violation of core labour standards in trade. And for the long-term, it is proposed that the WTO be reformed through the incorporation of a social clause into its multilateral trade regulatory framework. The paper further suggests that the social clause in the new WTO framework place emphasis on the peaceful and non-disruptive resolution of disputes regarding the violation of labour standards in trade with monetary penalties and trade sanctions being used only as a last resort in instances where reasonable and adequate measures earlier taken to resolve the disputes in question have been unsuccessful. This paper concludes that an effective and sustainable means of resolving such disputes is through the establishment of a proposed joint WTO and ILO dispute settlement system.
The Responsibility of International Organisations towards other International Organisations : Law and Practice of the United Nations, the World Bank, the European Union and the International Atomic Energy Agency, Bimal N. Patel : book reviewAuthor Dire TladiSource: Comparative and International Law Journal of Southern Africa 47, pp 509 –511 (2014)More Less
In this book Bimal N Patel confronts an important and topical issue of international law, namely the secondary rules of international law relating to responsibility of international organisations towards other international organisations. The adoption by the International Law Commission (hereafter the ILC or the Commission) of Draft Articles on State Responsibility in 2001 and the Draft Articles on the Responsibility of International Organisations ten years later is a reflection of the importance of the secondary rules on responsibility in international law. International lawyers often focus on the primary rules (substantive rules such as the law on the use of force or international human rights law) but the secondary rules of international law (rules relating to, for example, responsibility and remedies) are essential to the proper functioning of any legal system, including international law. Patel's book, therefore, provides a welcome focus on the secondary rules.