The winds of change – an analysis and appraisal of selected constitutional issues affecting the rights of taxpayers

Paper by: George Kenneth Goldswain

Prior to 1994, South African taxpayers had little protection from fiscal legislation or the decisions, actions or conduct of the South African Revenue Service (“SARS”) that violated their common law rights. Parliament reigned supreme and in tax matters, the strict and literal approach to the interpretation of statutes was employed, with the judiciary often quoting the mantra that there is “no equity about tax”. The Income Tax Act (Act No 58 of 1962) was littered with discriminatory and unfair provisions based on age, religion, sex and marital status. Even unreasonable decisions taken by SARS could not be reviewed by the judiciary as “unreasonableness” was not a ground for review of the exercise of a discretion by SARS. On 27 April 1994, the constitutional order changed. Parliamentary supremacy was replaced with constitutional supremacy and the rights to privacy, equality, human dignity, property and just administrative action were codified in a Bill of Rights. The codification of these fundamental rights has materially changed the nature and extent of the rights of South African taxpayers. The objective of this thesis, therefore, is to identify, analyse and discuss South African taxpayers’ rights from a constitutional perspective.

The following major conclusions can be drawn from the research done:

  • the judiciary have been forced to reappraise their approach to the interpretation of statutes from a “strict and literal” to a “purposive” approach that is in accordance with the values underpinning the new constitutional order;
  • new legislation has amended some of the so-called “reverse” onus of proof provisions that were constitutionally unsound – this should result in greater fairness and consistency for affected taxpayers especially in the area of when penalties may be imposed;
  • the concept of clean hands and good facts can influence the judiciary when arguing that a taxpayer’s right to just administrative action has been violated; and
  • discriminatory and unfair legislation and conduct on the part of SARS may and should be attacked on a substantive law basis, especially where human dignity is at stake.

The overall conclusion is that taxpayers’ rights are more far-reaching than prior to 1994 but still have some way to go before they are fully interpreted and developed.

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