This is the 2nd Annual Grand Seminar that took place at the School of Pharmacy, Makerere University. General Knowledge, presentation by Mr. Xavier

This is the 2nd Annual Grand Seminar at the School of Pharmacy, Makerere University. Presentation by Mr. Ramsey Rubahamya

Section 10(1)(cN) of the Income Tax Act 58 of 1962 (the Act) in South Africa makes provision for approved Public Benefit Organisations (PBOs) in South Africa to enjoy preferential tax treatment. An organisation is approved as a PBO according to the requisites in section 30 of the Act. Accordingly, approved PBOs enjoy partial exemption from Capital Gains Tax (CGT). Income generated from trading activities must meet specific criteria to enjoy preferential tax treatment. One of the restrictions of this section is that an approved PBO may never have as its sole or primary object the operation of a commercial business to fund their public benefit activity. The South African non-profit sector continues to struggle financially, despite the progressive development of the tax legislation since 2000. The South African Revenue Service (SARS) believes that changes made at the commencement of 2000 to the Act that applies to approved PBO’s, are sufficient to strengthen the financial resources of the non-profit sector. However, the Legal Resources Centre believes that the changes made to the Act imbed a dependence on sporadic donor funding. After 1994, several nonprofit organisations that offered much needed socio-economic services to various South African communities, announced that they were struggling financially. Rape Crisis Cape Town was established in Cape Town in 1976 to help survivors of rape and sexual violence. In 1987, the Institute for Democracy in South Africa (IDASA) was set up to monitor the quality of democracy and hold the decision-makers accountable in Southern Africa. Both organisations made public announcements that they were struggling financially, and since then, IDASA has closed its operations in South Africa, and Rape Crisis Cape Town continues to struggle financially. South Africa’s non-profit sector finds its origin in the UK. The UK has implemented and changed its income tax legislation over a more extended period than South Africa. This research undertakes a comparative study between South Africa’s PBOs and registered Charities in the United Kingdom, emphasising England and Wales. It critically analyses the similarities and differences between PBOs and Charities with a specific focus on business undertakings and trading activities to increase the finances of the non-profit sector. One of the shortfalls of the study is that South Africa has a limited number of decided cases and research articles assessing this topic. This study highlights the complementary link between profit share accrual of PBOs and the basic requirements, conditions, and nature of these entities to address the social and economic challenges highlighted in the National Plan. There is not enough existing case law in which the courts adequately define concepts like “income”, “expenditure”, “surplus”, “profit” and “accrual” for PBOs. The study concludes by discussing the lessons learned from Charities in England and Wales, and it makes recommendations to the South African government for future implementation.

This dissertation involved a discussion and analysis of the international and domestic legal framework, and case law governing the immunity, arrest and surrender of heads of State wherein international crimes are addressed. This is in light of the visit by Omar Al Bashir, as then President of Sudan (Al Bashir), to South Africa when he attended an AU summit in the country. Before engaging discussions and analysis on the international and domestic legal framework, the dissertation starts by providing a background on immunity, arrest and surrender within the context of the Al Bashir matter. This was undertaken because the dissertation makes reference to the Al Bashir matter throughout, in order to demonstrate the conflicting obligations that arise for South Africa under the current legal framework, that is, the Rome Statute, Implementation Act and the DIPA. On this note, the dissertation discusses the international position on immunity, arrest and surrender of heads of State, emphasizing the conflicting obligations that arise from the Rome Statute, being the international legal instument governing it. This part of the discussion involves the clash between customary international law immunity and Rome Statute provisions, as well as international case law thereon. As a result, the basis to measure the extent of South Africa’s compliance with the international law position on immunity, arrest and surrender, was provided. The dissertation then proceeds with a discussion on whether South Africa’s law complies with the international position on immunity, arrest and surrender of head of State to the ICC for trial. The discussion highlights the domestic laws of South Africa and case law on South Africa’s failure to cooperate with ICC requests for the arrest and surrender of Al Bashir when he arrived in South Africa with two pending arrest warrants. Following this, the dissertation proceeds to discuss the effect of ICC cases on the international law position on immunity, arrest and surrender of heads of State such as Al Bashir. Finally, the dissertation provides an overall analysis to establish whether South Africa’s law complies with the international legal position and provides a recommendation based on the findings of the dissertation. Generally, South Africa has successfully incorporated the Rome Statute into its domestic laws under the Implementation Act. However, the pressing issue is the conflicting obligations that arise under the Rome Statute given that it recognises customary international law immunity, and in other provisions it denies immunity. This results in conflicting obligations for South Africa, as such, South Africa failed to arrest and surrender Al Bashir on the basis of customary international law immunity, recognised in the Rome Statute. Moreover, South Africa has incorporated as part of their law, both the Implementation Act which precludes immunity, as well as the DIPA, which grants immunity to heads of State. As such, this dissertation recommends an amendment to the Implementation Act in order to ensure South Africa’s compliance with provisions of the Rome Statute, to cooperate with ICC requests which is supported by international and domestic case law.

This research analyses the current policy and regulatory framework in South Africa to establish whether or not it is effective and responsive in promoting financial inclusion and facilitating access to basic bank accounts for the poor and the low-income households. The research takes a “back to basics” approach and focuses on access to basic bank accounts as the simplist form of financial service provided by banks and a gateway to other financial services. The main objective of the study is to determine whether the regulatory framework in South Africa that applies to commercial banks as deposit-taking institutions imposes obligations on them to provide access to basic bank accounts for consumers. The study applies Ayres and Braithwaite’s theory of responsive regulation and the pyramid of regulatory strategies to determine the type of regulatory instruments that may be applied to promote financial inclusion and access to basic bank accounts, and whether the current regulatory framework in South Africa should be redeveloped and improved to make it more effective and responsive to achieving this objective. The study uses existing regulatory frameworks for financial inclusion and access to basic bank accounts adopted by global standard-setting bodies, continental bodies, national legislatures, and associations of banks to benchmark the forms of regulatory responses and to determine whether these responses are responsive and effective in promoting financial inclusion generally, and access to basic bank accounts in particular. It further discusses the role that various regulatory bodies play through mutual collaboration and coordination to enforce and promote compliance with measures that promote financial inclusion and access to basic bank accounts. This research makes a number of findings and identifies gaps in the current policy and regulatory framework in South Africa. It, therefore, makes specific recommendations for improving and developing policy and regulatory measures to promote financial inclusion with a specific focus on access to basic bank accounts.

In 2014 in the case of Telecel Zimbabwe(Private) Limited v Attorney-General of Zimbabwe the Prosecutor-General of Zimbabwe challenged the issuing of private prosecution certificates to private parties on the basis that they were unlawful and grossly irrational. The Prosecutor-General argued that private prosecutions would interfere with the authority and independence of the Prosecutor-General to prosecute criminal matters on behalf of the state. However, the establishment of an independent prosecuting authority is an important or special feature of the Zimbabwean Constitution.

This research examines the principle of belonging as a fundamental basis of existence as a human being. It seeks to show that non-recognition as a national of any country has led to many people being stateless and living with no form of identity or legal status. Being stateless means being invisible and is defined as not being considered as a national by any state under the operation of its law. In light of the above, this thesis critically analyses two jurisdictions, Kenya and Myanmar, with the aim of seeking better practices that South Africa can emulate. It contends that, while South Africa has an obligation to protect the rights of everyone, including those of stateless people, it fails to protect stateless persons as it does not legally recognise them. As a result, reliance is placed on different sources to argue that there is a need for the formation of a statelessness determination procedure to identify and recognise stateless people. If the identity of stateless and undocumented people is not legally recognised, it means that they will not have access to fundamental human rights. Most countries have laws that promote equality and non-discrimination, however, they lack laws that protect the stateless community. It is suggested that the lack of laws regulating statelessness and a statelessness determination procedure means that South Africa is non-compliant with international law that protects stateless people. In addition, this research suggests that South African law should be aligned with international instruments that call for protection of individuals from becoming stateless and also prevent the crisis from becoming worse.This flows from the understanding that with no law in South Africa that recognises and identifies stateless people, it means that it is impossible for a country to protect a community it does not recognise. Finally, the thesis recommends that South Africa enacts laws that recognise stateless people and make provision for the procedures to be followed in order for them to have a legal status. Furthermore, South Africa can amend and make changes in the policies, laws and the administration dealing with statelessness in order to prevent it.