n South African Law Journal - The balance between certainty and flexibility in horizontal and vertical stare decisis : Bosch v Commissioner for the South African Revenue Service : notes
|Article Title||The balance between certainty and flexibility in horizontal and vertical stare decisis : Bosch v Commissioner for the South African Revenue Service : notes|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 Max Planck Institute for Comparative and International Private Law, Germany|
|Publication Date||Jan 2015|
|Pages||230 - 245|
The case of Bosch & another v Commissioner for the South African Revenue Service 2013 (5) SA130 (WCC) ('Bosch') is interesting, not only from the perspective of the law relating to simulated transactions, but also from the perspective of stare decisis. The Western Cape High Court's treatment of the decision of the Supreme Court of Appeal ('SCA') in Commissioner for the South African Revenue Service v NWK Ltd 2011 (2) SA 67 (SCA) ('NWK') raises important questions about the use of precedent in South Africa. These questions are all the more relevant in light of the very recent clarification of NWK by the SCA in Roshcon (Pty) Ltd v Anchor Auto Body Builders CC  2 All SA 654 (SCA) ('Roshcon'). In analysing the Bosch decision, it will be contended that the manner in which both judges approached the binding precedent of NWK was inappropriate, notwithstanding the decision in Roshcon, because it was in conflict with the doctrine of stare decisis.
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