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

1.4 RESEARCH OBJECTIVES, METHODOLOGIES AND POTENTIAL FINDINGS

1.4.1 Research Objectives

The primary objective of the research done in this dissertation is to critically analyse the provisions of ss 74A and 74B and the application by SARS of these powers to determine where the conduct of SARS infringes on the constitutional rights of taxpayers, and the constitutional obligations taxpayers can expect SARS to fulfil.

1.4.2 Methodologies

The research upon which this dissertation is based, analyses and interprets the Constitution, the relevant tax legislation, relevant case law and scholarly writings in this regard. The research thus falls within the domain of legal research.

The Council of Australian Law Deans,1 in their Statement on the Nature of Legal Research, summarises the nature of legal research as follows:

Legal research is multi-faceted. It is distinctive in some respects, and part of the mainstream of the humanities and social sciences in others.

It would equally be mistaken to think of legal research as wholly different from or wholly same as other research in the humanities and social sciences.

The Statement refers to the Pearce Report,2 which categorized legal research as either “doctrinal”, “theoretical” or “reform-oriented” research. It also refers to the Canadian Arthurs Report,3 which identified “fundamental” legal research as a fourth category.

The two reports described these four categories as follows:

• doctrinal – the systematic exposition, analysis and critical evaluation of legal rules and their inter-relationships;

1Council of Australian Law Deans, Statement on the Nature of Legal Research

http://www.cald.asn.au/docs/cald%20statement%20on%20the%20nature%20of%20legal%20research%20-

%202005.pdf (last accessed 21 November 2013).

2Dennis Pearce, Enid Campbell, & Don Harding, Australian Law Schools: A Discipline Assessment for the

Commonwealth Tertiary Education Commission, AGPS, 1987, paras 9.10 – 9.15

3Harry Arthurs, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by

the Consultative Group on Research and Education in Law (1983).

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• theoretical – the conceptual bases of legal rules and principles;

• reform-oriented – recommendations for change, based on critical examination;

and

• Fundamental – law as a social phenomenon, exploring social, political, economic,

philosophical and cultural implications and associations.

The Council of Australian Law Deans emphasize that the categories are overlapping, rather than mutually exclusive – convenient, rather than precise ways of thinking about legal research.

The review of literature for this dissertation consisted of an analysis of the Constitution, the relevant provisions of the Income Tax Act, the draft Tax Administration Act and other related fiscal legislation. The case law and common law principles together with the relevant reference textbooks and journal articles were also be researched. Foreign reported decisions were referred to where appropriate. Section 38(1) of the Constitution requires the judiciary to consider international law and permits the judiciary to refer to foreign law when interpreting the Bill of Rights. This is a proviso that the judiciary “must promote the values that underlie an open and democratic society based on human dignity, equality and freedom”.

As far as the local court decisions are concerned, a comprehensive search has been done on the LexisNexis Electronic Library and through various offshore online library databases. Appropriate cases relating to the this dissertation were selected. An internet search was also done for various published articles on the subject under consideration, both locally and internationally.

1.4.3 Potential Findings

The legislature introduced measures enabling SARS to obtain information, documents and things to assist in assessing and collecting taxes in terms of their powers under ss 74A and 74B. These measures may be regarded as being in line with the founding principles of the Constitution, but the manner in which SARS uses these powers may be constitutionally questionable, unless SARS pays careful attention to its constitutional obligations and taxpayers fundamental rights. The conduct of SARS in enforcing such powers must measure up to the standards required by the founding principles of the Constitution. In the event that SARS conduct does not respect taxpayers constitutional rights or meet the constitutional standards, taxpayers are entitled to address the misconduct of SARS through a judicial review process, either in terms of PAJA, or in terms of the constitutional principle of legality.

Next:  Chapter 1 – 1.5 THEORETICAL FRAMEWORK AND HOW THE METHODOLOGIES EMPLOYED WILL ADDRESS THE RESEARCH QUESTION

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