Taxpayers’ Rights In South Africa
09 October 2010
Posted by: Author: Dr Beric Croome
Taxpayers’ Rights In South Africa
South Africa is now a constitutional state, that is,a state where the Constitution of the Republic of South Africa, Act 108 of 1996 (the Constitution), is the supreme law of the country and no laws which are in conflict therewith may continue to exist.In the tax arena,this means that the fiscal laws of the country must adhere to the provisions of the Constitution and particularly the Bill of Rights which confers various rights on taxpayers in the country.The limitation of rights is lawful where that limitation complies with the provisions of section 36 of the Constitution.Thus, specific by South African Revenue Service (SARS) may,at first blush,appear draconian and unfair.However, on a proper analysis,SARS conduct may not breach the Bill of Rights and is lawful as a result of section 36 of the Constitution.
Prior to the move to a constitutional democracy,South African taxpayers could not legally challenge the tax laws of the country. In addition, before 1994,taxpayers could challenge the conduct of SARS’ officials on very narrow common law grounds.Fortunately,the Constitution has conferred rights on taxpayers in their dealings with SARS,which rights must be upheld by the Receiver as an organ of State.
As a result of the Bill of Rights,taxpayers have inter alia obtained the right to property(section 25 of the Constitution);the right to equality (section 9);the right to privacy(section 14);the right of access to information (section 32); the right to just administrative action (section 33); and the right of access to courts (section 25).There is no doubt that the rights referred to have a direct bearing on the powers conferred on SARS by the various fiscal statutes in South Africa.
The text comprises eight chapters, commencing with an introductory chapter.The second chapter sets out the movement of South Africa from a parliamentary state to a constitutional democracy.It also deals with the recommendations made by the Katz Commission as to how the tax system needed to be changed to take account of the Bill of Rights.The subsequent four chapters analyse the effect of the right to property, equality,privacy and the trilogy of procedural rights (that is, the right of access to information, the right to just administrative action and right of access to courts) on the powers conferred on SARS by the fiscal statutes in South Africa.
The second last chapter contains a comparative study of how taxpayers’ rights are protected in a number of foreign countries,including,Australia,Canada,India,Tanzania,the United Kingdom and the United States of America.This chapter seeks to establish what lessons South Africa can learn from other countries in the enforcement and protection of taxpayers’ rights.
The final chapter of the book considers the future of taxpayers’ rights in South Africa and reviews the remedies currently available to taxpayers when SARS abuses its powers in dealing with taxpayers.The book concludes that currently taxpayers in this country lack a cost-effective remedy in enforcing their rights when interacting with SARS.
Taxpayers’ Rights in South Africa draws on the author’s practical experience in attending to requests from clients for assistance in dealing with SARS and is underpinned by extensive research of the law and legal precedents in this country and overseas.
This book is the first work to discuss the important topic of taxpayers’ rights in South Africa,and in particular, how and to what extent our tax law complies with the Bill of Rights.The topics addressed are not unique to South Africa.Other countries have wrestled recently with the problems associated with seeking to make draconian tax systems comply with the rights of citizens and others which are entrenched in a bill of rights or human rights convention.This work contains extensive discussions of how other countries have dealt, or attempted to deal with, problems of this kind.
Source: By Dr Beric Croome (TaxTALK)