Posted in sections, this is my Doctoral Thesis on taxpayers rights when audited by the tax authorities in South Africa – equally applicable to many English-based law systems in Africa and abroad (eg. India). This will be of particular use to any tax practitioners doing work in Africa and in other English-based legal systems around the world.

Analysis of Challenging The Commissioner’s Discretionary Powers In Auditing Taxpayers under The Constitution of The Republic of South Africa

CHAPTER 5 – JUDICIAL REVIEW WITH REFERENCE TO SS 74A AND 74B –

5.5 REVIEWING UNCONSTITUTIONAL CONDUCT
5.5.1 Introduction
To recap, the major premise of this thesis: An inquiry and audit by SARS in terms of ss 74A and 74B must be constitutional: lawful, reasonable, procedurally fair and done with adequate reasons – where SARS must comply with the relevant provisions of the Constitution, PAJA, including the jurisdictional facts in ss 74A and 74B as analysed in this thesis. In the words of D Walton author of Informal Logic: A Pragmatic Approach49:

In…(the)…dialogue called inquiry, premises can only be propositions that are known to be true, that have been established as reliable knowledge to the satisfaction of all parties to the inquiry.
…
The basic goal of the inquiry is increment of knowledge…This inquiry seeks out proof, or the establishment of as much certainty as can be obtained by the given evidence. Evidential priority is the key feature of the inquiry…This contrasts with persuasion dialogue…opinion based on reasoned (not conclusive) evidence.

This quotation holds accord with the provisions of ss 1(c), 33, 41(1), 195(1) and 237 of the Constitution. Failure by SARS to adhere to these standards, principles and norms, will entitle the taxpayer to bring a review application through s 172(1) of the Constitution.

Reviewing the exercise of a decision by SARS in terms of ss 74A and 74B is divided into two alternate categories through a Rule 53 application to the High Court:

a. first and foremost, either in terms of ss 6, 7 and 8 of PAJA if the definition of ‘administrative action’ is satisfied: the grounds of review in s 6(2)(a) to (i) of PAJA as set out in 5.5.6 below; or, in the absence of s 6(2) of PAJA applying,

b. in terms of the principle of legality creating an opportunity to review the public power of SARS.

Next:  5.5.2 Sections 6, 7 and 8 of PAJA

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Footnotes:

49 2ed (2008) Cambridge pages 5 and 6.