n Business Tax and Company Law Quarterly - Democratic principles underpinning tax administration in SA - research

Volume 10 Number 4
  • ISSN : 2219-1585


South Africa is a constitutional State (Rechtsstaat) that is governed by a supreme, humanitarian orientated Constitution with an entrenched Bill of Rights whose spirit, purport and objects are infused with, and informed by, the values and principles of an open and democratic society based on human dignity, equality and freedom. Taxpayers are included among the beneficiaries of the fundamental rights incorporated in the Bill. This includes the right to just administrative action by the South African Revenue Service and its officials when executing their functions under the Tax Administration Act, 2011 and any other legislation in the myriad of tax laws enacted in South Africa. This fundamental right entitles taxpayers to tax administration that is lawful, reasonable and procedurally fair. In addition, taxpayers are entitled to written reasons for administrative decisions taken during tax administration that adversely affect taxpayers or their interests. Supremacy of the Constitution dictates that all fiscal legislation and conduct in the administration thereof is subject to constitutional control. Thus, taxation and tax administration must conform to the rule of law and the other values and principles enshrined in, for example, section 195(1) of the Constitution and the Promotion of Administrative Justice Act. The rule of law is a foundational value that forms part of the Constitution’s spirit. When applied through the prism of the Constitution, the rule of law advances fiscal transformation because it ensures that tax laws and tax administration occur in a manner unlike that which marred public administration during South Africa’s pre-constitutional, apartheid era. The rule of law establishes a legal landscape in the tax arena that is underpinned by legality, equality, uniformity, clarity, consistency, equity, non-retrospectivity, and the advancement of human rights and freedoms for taxpayers. Law or conduct is invalid if it is inconsistent with the prescripts of the rule of law.

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