A common law view of "carrying on a trade"
- Authors: Mkonza, Qhinga Aidan
- Date: 2018
- Subjects: Business , Common law -- South Africa , Income tax -- South Africa , Agriculture -- Taxation -- South Africa , Property tax -- South Africa , Moneylenders -- Taxation -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/60888 , vital:27883
- Description: The term “trade” is defined in very wide terms in the Income Tax Act and includes a “business” and a “venture”. For a taxpayer to claim certain deductions in arriving at taxable income, the taxpayer must be carrying on a trade. The expression “carrying on a trade” is not defined in the Income Tax Act. Whether or not a taxpayer is carrying on a trade is a matter of fact. Case law has established certain principles and tests to be applied in determining whether a taxpayer is carrying on a trade. The goal of the thesis was to determine to what extent an activity can be considered as carrying on a trade. This research focused on the letting of property, money-lending, or farming operations in relation to carrying on a trade or business or engaging in a venture. The thesis also discussed at what stage a taxpayer ceases to carry on a trade and what the tax consequences are of ceasing to trade. An interpretative research approach was used in the research as it sought to understand and describe. No interviews conducted for this research and the data used for the research are publicly available. It was established that “carrying on a trade”, including a business, requires an active step taken by the taxpayer to trade. It involves regularity of buying and selling or rendering of services. The intention to trade is important but it is a subjective matter and cannot be persuasive in determining whether a taxpayer is carrying on a trade; objective factors are also considered. If the stated intention to trade matches the actions of the taxpayer, the taxpayer will be considered to be carrying on a trade. In determining whether a taxpayer is carrying on a trade each case must be considered with its own merits.
- Full Text:
- Date Issued: 2018
- Authors: Mkonza, Qhinga Aidan
- Date: 2018
- Subjects: Business , Common law -- South Africa , Income tax -- South Africa , Agriculture -- Taxation -- South Africa , Property tax -- South Africa , Moneylenders -- Taxation -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/60888 , vital:27883
- Description: The term “trade” is defined in very wide terms in the Income Tax Act and includes a “business” and a “venture”. For a taxpayer to claim certain deductions in arriving at taxable income, the taxpayer must be carrying on a trade. The expression “carrying on a trade” is not defined in the Income Tax Act. Whether or not a taxpayer is carrying on a trade is a matter of fact. Case law has established certain principles and tests to be applied in determining whether a taxpayer is carrying on a trade. The goal of the thesis was to determine to what extent an activity can be considered as carrying on a trade. This research focused on the letting of property, money-lending, or farming operations in relation to carrying on a trade or business or engaging in a venture. The thesis also discussed at what stage a taxpayer ceases to carry on a trade and what the tax consequences are of ceasing to trade. An interpretative research approach was used in the research as it sought to understand and describe. No interviews conducted for this research and the data used for the research are publicly available. It was established that “carrying on a trade”, including a business, requires an active step taken by the taxpayer to trade. It involves regularity of buying and selling or rendering of services. The intention to trade is important but it is a subjective matter and cannot be persuasive in determining whether a taxpayer is carrying on a trade; objective factors are also considered. If the stated intention to trade matches the actions of the taxpayer, the taxpayer will be considered to be carrying on a trade. In determining whether a taxpayer is carrying on a trade each case must be considered with its own merits.
- Full Text:
- Date Issued: 2018
Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right
- Authors: Batchelor, Bronwyn Le Ann
- Date: 2011
- Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
- Full Text:
- Date Issued: 2011
- Authors: Batchelor, Bronwyn Le Ann
- Date: 2011
- Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
- Full Text:
- Date Issued: 2011
Regulating franchise operations in South Africa : a study of the existing legal framework with suggestions for reform.
- Authors: Woker, Tanya Ann
- Date: 2009
- Subjects: Franchise Association of Southern Africa , Franchises (Retail trade) -- Law and legislation -- South Africa , South Africa. Dept. of Trade and Industry , Common law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3721 , http://hdl.handle.net/10962/d1015719
- Description: This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
- Full Text:
- Date Issued: 2009
- Authors: Woker, Tanya Ann
- Date: 2009
- Subjects: Franchise Association of Southern Africa , Franchises (Retail trade) -- Law and legislation -- South Africa , South Africa. Dept. of Trade and Industry , Common law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3721 , http://hdl.handle.net/10962/d1015719
- Description: This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
- Full Text:
- Date Issued: 2009
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