International Journal of Public Law and Policy

Staniland, Hilton

2013 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2013.056824

In this paper, it is argued that seafarers held hostage by pirates do not have a right to the continued payment of their wages under international conventions. Under English law it is contended that the entitlement to wages exists in some limited circumstances, but in many other circumstances is uncertain, inadequate or non-existent. The need to protect the wages of seafarers and to reform the law is therefore argued. Taking into account the spread of piracy and the fast evolving ‘business models’ of piracy, draft legislation that is already being considered in one state is proposed as a possible legislative guide for other states.

Classen, Liezel Gaynor

2013 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2013.056797

The emergence of global markets, e-commerce and cross-border corporate structures in recent times caused many government departments and tax authorities to rethink their strategies to protect the national tax base. Internationally the trend has emerged to condone the migration to and abuse of tax havens or low tax jurisdictions by large corporations that are involved in international trade. Exit tax serves as an anti-avoidance measure to protect the national tax base of the country from which the taxpayer emigrates. Recent court decisions in South Africa, the European Union and Canada found exit tax not to be payable in circumstances where a company shifted its ‘place of effective management’ and resultant tax residency offshore. This article will examine the exit tax provisions applicable to companies in terms of South African, Canadian and selected EU member states’ tax legislation and suggest manners in which the taxpayer’s right to freedom of establishment can be balanced with the right of the state to protect its national tax base against erosion.

Tatiya, Siddharth ; Sharma, Saurabh

2013 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2013.056672

The Right to Dance has been recently recognised by the Hon’ble Bombay High Court in its revolutionary judgment of AHAR vs. The State of Maharashtra (2006 (3) Bom CR 705) . In the instant case, the State of Maharashtra banned women from dancing in beer bars because the performances were vulgar, led to sexual exploitation of women, and were likely to corrupt public morals. The ban, however, exempted three starred and above establishments, drama theatres, cinema theatres, auditoriums, gymkhanas and clubs in order to promote tourism and culture. The ban was challenged as being violative of Right to Livelihood, Right to Profession, Right to Freedom of Expression and Right to Equality as guaranteed by the Constitution of India. The court struck down the ban on the ground that it was unconstitutional and violative of the fundamental rights of the bar dancers and bar owners to practise an occupation. The court further held that dance per se is a form of expression and is protected as ‘freedom of speech and expression’.

de la Harpe, Stephen

2013 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2013.056798

Corruption increases the cost of public procurement between 10% and 25%. In South Africa corruption, also in public procurement, is rife. One of the causes is that perpetrators are not held accountable. To ensure accountability, political and other undue influence in both the procurement process and the process of holding people accountable must be curbed. In the matter of Glenister v President of the Republic of South Africa and others, the Constitutional Court of South Africa held that the Bill of Rights creates a duty to establish an anti-corruption unit with appropriate independence. It can be argued, on the basis of this judgment, that on a purposive interpretation of section 7(2), section 195(1) and section 217(1) of the Constitution there is a positive duty on the state to ensure accountability in public procurement. This will include that political and undue influence in the procurement process and the process of holding people accountable be actively curbed.

Thanvi, Ameyavikrama

2013 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2013.056799

Exercise of jurisdiction in the high seas has always been a point of contention in the international laws. When Italian marines shot at Indian fishermen in the Indian Ocean, the debate sparked again as both the countries asserted jurisdiction over the marines. The customary international law under its various principles provides for the affected state to exercise jurisdiction. The Italian authorities cited provisions of the UNCLOS to establish their exclusive jurisdiction. However, the international covenant does not in any way prohibit India from exercising her jurisdiction. Another question that arises as a hindrance in exercising such jurisdiction is that the marines were under the direct orders of the Italian Government and being a part of the defence forces of the state enjoyed state immunity. It was thus, contested that India could not exercise her jurisdiction over them. However, protection of state immunity can be availed of only for so long as the state agency or instrumentality is performing its sovereign function as ordered by the government. Since Italian marines killed civilians rather than pirates they could not avail such protection. Thus, India had the jurisdiction to try the marines under her municipal laws.

Telford, Mark ; Santatzoglou, Sotirios

2013 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2013.056825

In 1997, the UK Government signalled a sea-change in youth justice policy and practice with the publication of its tellingly titled White Paper No More Excuses . It laid the ground work for much of the current youth justice landscape in England and Wales. The White Paper provided not only a vision for the future of youth justice institutions, powers, and practices but also set out a disparaging narrative on the state of youth justice as it had developed, in particular, during the 1980s. The present paper, through an exploration of documentary materials and qualitative interviews with practitioners, challenges the historical account presented by the Government and offers a new narrative which explores a practice transition to a new youth justice specialism and the development of community interventions during the 1980s. It offers an insight into the practice logic of the period and thereby questions the ‘legibility craft’ of New Labour and the youth justice legacy it has left behind.

Letete, Puseletso

2013 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2013.056800

In his 2012 budget speech, the Minister of Finance announced the creation of a tax ombudsman in South Africa. The creation of the tax ombudsman should result in an effective means whereby taxpayers can resolve administrative difficulties encountered in dealing with SARS, or where SARS has abused taxpayers’ rights. Section 14 of the Tax Administration Act provides that the Minister has the power to appoint a person as tax ombudsman for a term of three years. Section 16 of the Act sets out the mandate of the tax ombudsman as to review and address any complaint by a taxpayer regarding a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by SARS. This article deals with a reflective analysis of the legal framework which creates the tax ombudsman in South Africa. The article will examine whether taxpayers in South Africa will benefit from the office of the tax ombudsman.