Talking Point November 2018


A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

I take great pleasure in submitting the November 2018 edition of Talking Point to you.  This edition is also on our website at http://walkers.co.za/.

This is a “bumper” edition, and may well be the last edition for 2018.

Please note the two tax cases in this edition.  “Accounting law” often differs from the law adjudicated upon in Courts.  We often have to deal with such misunderstanding of tax law.

Expressing appreciation for anything written by Roger Scruton (1944 –), an English philosopher and author, is risky, and can get one thrown out of certain societies; and the following is not an endorsement of Scruton.  But:

his ruthless analysis of New Marxism in Fools, Frauds and Firebrands: Thinkers of the New Left (2015) is entertaining; and
he is eminently quotable.

From Fools, Frauds and Firebrands: Thinkers of the New Left:

It is not the truth of Marxism that explains the willingness of intellectuals to believe it, but the power that it confers on intellectuals, in their attempts to control the world.”

[I]t is futile to reason someone out of a thing that he was not reasoned into, [so] we can conclude that Marxism owes its remarkable power to survive every criticism to the fact that it is not a truth-directed but a power-directed system of thought.”

Scruton has written more than 50 books on philosophy, art, music, politics, culture, and the like; and, as a “classical conservative”, has led a colourful life.  Just one example: he edited the publication The Salisbury Review, and an article published in 1984 questioning the benefits of multicultural education caused a furore.  In 2002, he reflected:

It cost me many thousand hours of unpaid labour, a hideous character assassination in Private Eye, three lawsuits, two interrogations, one expulsion, the loss of a university career in Britain, unendingly contemptuous reviews, Tory suspicion, and the hatred of decent liberals everywhere.  And it was worth it.

It seems obvious why he has many detractors and supporters:

A writer who says that there are no truths, or that all truth is ‘merely relative’, is asking you not to believe him.  So don’t.”

Liberty is not the same thing as equality, and that those who call themselves liberals are far more interested in equalizing than in liberating their fellows.”

When gifts are replaced by rights, so is gratitude replaced by claims.  And claims breed resentment.”

The best evidence of a mind is when you change it.”

More quotes from Roger Scruton

In this issue:

What to deduct?

International Financial Reporting Standards (IFRS) have become the ‘gospel’ in business.  As an example, we have recently experienced international companies being willing to budge on commercially substantial matters, merely for more favourable (but artificial) income recognition under IFRS.  We discuss a recent case illustrating that IFRS is subservient to legislation.

Bad blood and money

Money being transferred from one generation to another can cause intra-family disputes.  We discuss a recent case dealing with the position of adopted children in such a situation.

To deduct or not to deduct?

The late Mr Graham Beck, who died in 2010, was one of the richest men in South Africa, and an entrepreneur of note, with various business interests, including in mining, the wine industry, retail stores, and thoroughbred breeding.  He was also dubbed “a bit of a rough diamond“, and we discuss a recent tax case about a “robust business decision” he took in respect of contractual obligations.  An aspect of the decision is novel, and this article is essential reading for business decision-makers.

When friends part way and the NCA

We discuss a recent case that illustrates how non-compliance with the National Credit Act can make a bad situation worse.

Cake wars

The UK apex Court has now finally decided the dispute between the owners of a bakery and the gay customer for whom the owners would not supply a cake with the caption “Support Gay Marriage“.  The logic (as opposed to emotion) in the decision is interesting.

Parliamentary privilege and peeping toms

We discuss a recent Canadian case in which the facts disclose that one must be careful not to use the expression “only in South Africa” too hastily.

The Pentagon Papers

The famous case in this issue was a landmark USA judgment of press freedom.  And to some extent it has parallels with the Gupta leaks.  The 2017 film The Post, directed and produced by Steven Spielberg, and starring Meryl Streep and Tom Hanks, is based on The Pentagon Papers saga.

As always, I would greatly appreciate your feedback on Talking Point. Please email me at charlt@walkers.law.

Regards

Charl Theron

Chairman