WiseUp Newsletter Edition 85

Who should submit an income tax return?

  • As the youth of South Africa start their careers with their first jobs, they are also faced with having to pay income tax.

  • There are quite a lot of requirements that must be complied with, however, the general rule is that everyone earning an income must pay tax.

  • The following principles are quite important to keep in mind when establishing whether income tax must be paid or not:

    • All income of an individual is considered, including but not limited to, salaries and interest earned on investment.
    • Under South African law, the worldwide income of an individual is considered. This means that in today's time and age where it is possible to earn an income in a foreign currency while staying in South Africa, it will still be considered as an income for South African income tax purposes.
  • There are also certain exemptions that may apply depending on the annual income of an individual. For example, during the 1 March 2022 to 28 February 2023 assessment period, a person younger than 65 years of age and who earned less than R91,250 for the assessment period does not have to pay income tax.

  • Not all taxpayers need to submit an income tax return, even though s/he does have to pay income tax. For example, a taxpayer's employer can deduct income tax (Pay As You Earn – PAYE) from his/her salary on a monthly basis to pay over to South African Revenue Service (“SARS”). If this is the case and the taxpayer's annual income is less than R500,000 from a single employer, it might not be necessary to submit a tax return.

  • A tax return is a form that must be completed and submitted to SARS in order to calculate the amount of income tax that must be paid or refunded.

  • Be careful and get advice! The consequences of not complying with tax related laws and procedures can have severe consequences. Be very careful not to just assume that you do not have to submit a tax return or that you are exempt from paying income tax. No matter what your circumstances and annual income, always get advice and clarity.

  • Visit the SARS Website at www.sars.gov.za for more information.

Are there any initiatives available to assist the youth with obtaining work experience?

  • In 2018, the Government launched the Youth Employment Service (“YES”) programme to assist with reducing youth unemployment rates in practical ways.
  • The YES programme allows for unemployed youth to obtain up to 12 months work experience opportunities with companies registered with this programme.
  • On 3 April 2023, President Ramaphosa praised the success of the YES programme that already placed more than 100 000 of the South African youth between the ages of 18 and 29 with companies.
  • The YES programme also allows for youth to earn an income to help support their families with an estimated 61% of the placements coming from households who rely on social grants.
  • For more information on the YES programme and how to either get involved or make use of the initiative, the following contact details can be used:
    • Website: www.yes4youth.co.za
    • Telephone: 087 330 0084
    • E-mail: youth@yes4youth.co.za or corporatesupport@yes4youth.co.za.

Workplace bullying

Do judgments of constitutional invalidity take effect immediately?

  • One might think that as soon as a court declares something to be against the Constitution and invalid, that it immediately will come into effect. This is not always the case and the judgment must be carefully read to get clarity.
  • The High Court and Supreme Court of Appeal can declare something to be against the Constitution. However, the Constitutional Court must first confirm such a declaration before it comes into effect.
  • This means that although the High Court can declare something as unconstitutional today, it will only come into effect if the Constitutional Court confirms it.
  • Even if the Constitutional Court confirms the invalidity or makes an order itself, there can still be limitations to when it will come into effect. For example, the judgment can be suspended for a certain period to allow legislation to be amended accordingly.

When is Wills Week and what does it mean?

  • Every year, the Law Society of South Africa runs an initiative known as National Wills Week.
  • During National Wills Week, attorneys and law firms who registered to take part of the initiative will assist with providing basic Wills free of charge as a once-off service.
  • This free service during National Wills Week does not include any complicated Wills or follow-up consultations.

Do the provisions for workplace harassment only apply to employees?

  • No, the Code provides that it does not just apply to employers and employees.
  • It can also apply to managers, supervisors, volunteers, job applicants, contractors, interns and so on. It can even sometimes reach as far to also apply to customers and clients.
  • This means that if you are a job applicant and you feel that you have been bullied during an interview, you can lodge a complaint of harassment with the  employer.

What does the law say about workplace bullying?

In March 2022, the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“Code”) came into effect.

  • This Code forms part of the Employment Equity Act 55 of 1998 and deals specifically with what is considered to be harassment in the workplace and how to deal with it.
  • The Code states that verbal bullying is a type of harassment that can be present in the workplace and it may include threats, shaming and insults, constant negative judgment and criticism, language that is racial, sexist or against the LGBTQ+ community.
  • The Code also deals with other aspects of harassment, such as physical abuse, sexual harassment and racial harassment.
  • If you feel that you are being bullied in the workplace, you must report it with your employer and they must take the necessary steps under the Code to address the complaint of harassment.
  • If you are not satisfied with the internal procedures, a complaint can be lodged with the Commission for Conciliation, Mediation and Arbitration  (“CCMA”).

Legal scenarios clarified

Should a woman always take her husband's last name upon marriage?

  • It is not a legal requirement for a woman to change her last name to her husband's once they get married.
  •  Although it is generally required to apply at the Department of Home Affairs to change a surname, no application is necessary in the following circumstances:
    • where a woman assumes the surname of her husband;
    • where a divorced woman or a widow, resumes any surname she had previously, such as her maiden name;
    • where a woman adds another surname to her current surname after marriage, such as a double-barrelled surname.
  •  If a woman decides to assume a different surname in one of the abovementioned circumstances, she must still notify the Department of Home Affairs in writing of same to update the population register.

Is surrogacy legal in South Africa?

  • In the event a couple is unable to conceive and/or give birth to a child due to a medical condition that is permanent and irreversible, they may consider surrogacy.
  • Surrogacy is where a woman (“surrogate”) voluntarily undertakes to be artificially inseminated in order to bear and give birth to a child on behalf of another person or couple, also known as the commissioning parent/s.
  • Surrogacy is strictly regulated by the Children's Act, which sets out the procedure and requirements for surrogacy to ensure that it is legal.
  • In order for surrogacy to be legal, all parties concerned must enter into a written surrogate motherhood agreement that must be confirmed by the High Court within whose area of jurisdiction the commissioning parent/s are domiciled or habitually resident. 
  • A surrogate has no parental rights and responsibilities over the child and cannot keep the child or take him/her back in the future.
  • A surrogate may terminate her pregnancy in terms of the Choice of Termination of Pregnancy Act. However, the surrogate must inform and consult the commissioning parent/s of her decision to terminate the pregnancy before the termination is carried out.
  • Surrogacy is voluntary and a surrogate is not allowed to receive payment or gifts with the intention of coercing her to become a surrogate. The commissioning parent/s may pay for expenses during the pregnancy.

What is meant with a right to make decisions concerning reproduction?

  • Section 12 of the Constitution grants everyone the right to freedom and security of the person. It further states that everyone has the right to bodily and physical integrity, which includes the right to make decisions concerning reproduction.
  • The right to make decisions concerning reproduction is afforded to persons of all genders, but has the following unique consequences that may only be applicable to women:
  • A woman is free to decide whether she wants to have children or not and should not be discriminated against based on her decision;
  • A pregnant woman can voluntarily terminate her pregnancy for any reason up to the twelfth week of pregnancy, in terms of the Choice on Termination of Pregnancy Act; and
  • A pregnant woman is entitled to maternity leave and employers are not permitted to unreasonably refuse to grant such leave.

Discrimination

Are the human rights of undocumented children in South Africa impacted?

  • Although undocumented children in South Africa are protected by the Constitution, they are unfortunately faced with many challenges. Undocumented children can be described as children who are abandoned or not born from South African citizen parents, and who are faced that their birth not begin registered.
  • Section 28 of the Constitution is very clear that the best interests of a child are of utmost important in any matter concerning a child. Section 29 of the Constitutions further provides that everyone has the right to a basic education (which includes children).
  • It is from these human rights where two of the most concerning infringements of undocumented children's human rights arise:
  • The right to a name and nationality from birth (section 28).
  • The right to a basic education and not to be refused reasonable access to education.
  • A High Court ruling has declared certain clauses of the of the Admission Policy for Ordinary Public Schools of 1998 unconstitutional. These clauses infringed on children's right to a basic education as it did not allow children to be admitted into a school if they do not have birth certificates or because of them begin non-citizens. This judgment opened the doors to ensure greater protection of undocumented children's human rights.

Can discrimination be fair?

  • Although section 9 of the Constitution guarantees equality before the law and freedom from discrimination, this right to be treated equally does not mean that everyone should be treated exactly the same. South African courts have held that this right requires people in the same position to be treated in the same manner.
  • For example, tax law that stipulates the various tax brackets apply depending on a person's income. There is no “one size fits all” approach providing that everyone must pay the same amount of tax regardless of their income. This differentiation can be seen as fair.

What is discrimination?

  • Discrimination refers to where people or classes of people are treated differently in such a way that it is against the Constitutional right of equality.
  • Section 9 of the Constitution provides everyone with the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.