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Dealing With Just Administrative Action

01 July 2007   (0 Comments)
Posted by: TaxFind™
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Dealing With Just Administrative Action

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) came into effect in November 2000. The PAJA is the direct result of sub-section 3 of Section 33 of the Constitution of South Africa dealing with just administrative action. In instances of a dispute arising between a taxpayer and the authorities, the person must also consider his or her position under PAJA,over and above any statutory provisions that are relevant to the dispute.

In determining the position of the taxpayer, the first leg of the inquiry has to be whether the action that is the cause of the dispute falls within the definition of administrative action as defined in section1 of PAJA. In a nutshell, any decision by a public body or a private body clothed with public authority that affects the rights of the person will be administrative action,with the exception of certain actions that are taken by national, provincial,municipal executive organs or actions by officials in the course of judicial disputes.

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) came into effect in November 2000. The PAJA is the direct result of sub-section 3 of Section 33 of the Constitution of South Africa dealing with just administrative action. In instances of a dispute arising between a taxpayer and the authorities, the person must also consider his or her position under PAJA,over and above any statutory provisions that are relevant to the dispute.

In determining the position of the taxpayer, the first leg of the inquiry has to be whether the action that is the cause of the dispute falls within the definition of administrative action as defined in section1 of PAJA.In a nutshell, any decision by a public body or a private body clothed with public authority that affects the rights of the person will be administrative action,with the exception of certain actions that are taken by national, provincial,municipal executive organs or actions by officials in the course of judicial disputes.

Should the action fall within the definition of administrative action, the next leg of the inquiry is to ascertain whether the action was reasonable.The issue of whether any action was or was not reasonable should be looked at in the light of the court decisions in this regard. Whether the action was reasonable should not be based only on its outcome,but the manner in which the action was performed is now also a factor to be taken into account.

The manner of the performance of the administrative action is a very important issue and it goes to the heart of the basic building blocks of the Constitution.As a guide to the reasonable performance of administrative action, regard should be had to section 195 (Basic values and principles governing public administration), the foundational values of the constitution (fairness, equality and dignity) as provided in section 1 and then section 2 which provides that the Constitution is the supreme law of the land.

The PAJA is not a very long act.It basically has codified the common law administrative principles which provide for issues relating to fairness and reasonableness, such as the audi alterem partem principle, amongst others.It gives the court the power to make a variety of orders under section 8 of the Act,amongst which are the powers to make any order the court may deem to be just and equitable and the right to have the administrative action set aside.

The area of constitutional action or review of action by the state organs under the constitutional provisions is still in its infancy.This area of law is laden with opportunities and should be second nature to any taxation specialist and legal practitioner.

Source: By TaxTalk

 


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