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Section 195 Of The Constitution Revisited

01 June 2007   (0 Comments)
Posted by: Author: Daniel Erasmus
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Section 195 Of The Constitution Revisited

S195 is cited as giving taxpayers justiciable rights that they can enforce against SARS.However, a recent SCA judgment seems to suggest something different.After analysing other cases on the issue, which are more to the point in dealing with SARS, it appears that the trick is to attach a tacit agreement or legitimate expectation created by SARS to s195 to ensure that taxpayers can envoke these justiciable rights.

In the case of Minister of Home Affairs vs National Institute for Crime Prevention and the Reintegration of Of fenders (NICRO) and others, 2005(3) SA 280(CC) Chaskalson CJ said the following with reference to section 1 of the Constitution:"The values enunciated in section 1 of the Constitution are of fundamental importance.They inform and give substance to all the provisions of the Constitution.They do not, however, give rise to discreet and enforceable rights in themselves.This is clear not only from the language of section 1 itself, but also from the way the Constitution is structured and in particular the provisions of chapter 2 which contains the Bill of Rights.”

In the case of Institute of Democracy in SA and Others vs African National Congress and Others 2005 (10) BCLR 995(C) the court held that the same considerations apply to other sections of the Constitution such as section 195(1) where this section has reference to the Government and the duties of the Government, inter alia, to be accountable and transparent.These duties are created and imposed on Government and the Public Service but do not confer upon the applicants in the matter in question any justiciable rights that they can exercise.The language and syntax of these provisions are not couched in the form of rights.Reliance on section 195 for the purposes of demonstrating a right is therefore inapposite.

In the matter Transnet Limited and Others vs Chirwa 2007 (1) ALL SA 184 (SCA) the Supreme Court of Appeal held that section 195 does not create rights but sets out the basic values and principles that govern Public Administration.In this regard the Supreme Court of Appeal held that section 195 of the Constitution does not afford the respondent in question discrete relief, in line with the quote from the NICRO case quoted above.

In an earlier case of Trend Finance (Pty) Ltd and Another vs CSARS and Another 2006 (2) BCLR 304 (c) Van Reenen J came to a different conclusion.The court held that Public Administration is governed by values and principles set out in section 195 of the Constitution which includes a high standard of professional ethics that must be promoted and maintained.In this particular matter an agreement had been concluded between the Revenue Authorities and importers whereby seized consignments were released in return for provisional importers by the importers while the Revenue Authorities were investigating a suspected underpayment.It was a tacit term of the agreement that the Revenue Service Authorities would investigate and make it a determination within a reasonable period and their failure to do so was a breach of that tacit term.In this particular instance the Revenue Authorities were ordered to refund the provisional payments as the investigation had not been concluded and no determination had been made within a reasonable period.The court held that the existence of a tacit term to be inferred came from a duty resting on organs of state to act ethically in accordance with the principles as set out in section 195 of the Constitution.

All of the above quotes must be considered in the light of section 4(2) of the SARS Act which imposes a specific duty on SARS to comply with the provisions of section 195.In addition to this one should also take into account the fact that the SARS has published a code of conduct and ethics on its website made available to the public. In this regard it makes specific reference to section 4(2) and to section 195 of the Constitution.This clearly creates a legitimate expectation in favour of taxpayers who interact with SARS. In this regard the factual circumstances surrounding interactions with SARS will most probably fall in line with what has been set out in the Trend Finance case which can be distinguished from the Supreme Court of Appeal findings in the Transnet case set out above.

In conclusion, it is relatively clear that section 195, through section 4(2) of the SARS Act imposes duties upon SARS, which have now been detailed on the SARS website creating a legitimate expectation in favour of taxpayers.If SARS does not adhere to these legitimate expectations it would be tantamount to SARS breaching a tacit agreement as was the case in the Trend Finance case

Source: By Daniel Erasmus (TaxTALK)


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