The application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements

Jansen van Rensburg, Enelia (2019-11-15)

CITATION: Jansen van Rensburg, E. 2019. The application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements. Potchefstroom Electronic Law Journal, 22:1-32, doi:10.17159/1727-3781/2019/v22i0a4402.

The original publication is available at https://journals.assaf.org.za/index.php/per

Publication of this article was funded by the Stellenbosch University Open Access Fund.

Article

General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context otherwise requires. All South African DTAs include such a clause. Many interpretational issues remain with regard to the application and interpretation of general renvoi clauses. This article considers four of these issues in the light of South African cases in which general renvoi clauses were referred to. The following cases are considered: ITC 789 (1954) 19 SATC 434, Baldwins (South Africa) Ltd v Commissioner for Inland Revenue (1961) 24 SATC 270 and Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA). The first of the issues considered in the article is relevant in those cases where a DTA includes a general renvoi clause based on the pre-1995 version of article 3(2) and where amendments were made to a relevant domestic meaning after the conclusion of the particular DTA. These clauses do not expressly state whether the relevant domestic meaning is the domestic meaning existing at the time of the conclusion of the DTA, or at the time of the application of the DTA. The second issue arises if the expression used in the domestic law is not identical to the undefined treaty term. The question is whether the expression in the domestic law can be used to give meaning to the treaty term under the general renvoi clause. Another interpretational issue considered in the article concerns deeming provisions in the domestic law. The issue is whether a meaning that a term is deemed to have under a provision in domestic legislation can be used under the general renvoi clause to give meaning to the undefined term in the DTA. The last issue deals with the meaning of the phrase "unless the context requires otherwise". The question raised is whether this phrase means that the domestic meaning should be given only as a "last resort", or whether it should apply unless "reasonably strong" arguments to the contrary are made.

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