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

2.2 THE RELEVANT CONSTITUTIONAL PROVISIONS
2.2.2 Bill of Rights
In addition, 7(2) of the Constitution states that:

The State must respect, protect, promote and fulfill the rights in the Bill of Rights.

This positive obligation placed upon the State, with the obligation to fulfill its other constitutional obligations, places those same obligations on state officials, in the scope of their employment, to fulfill. In considering a well-entrenched principle in American Constitutional jurisprudence,36 when a state official acts outside the ambit of the Constitution, that individual is stripped of her official character. This would arguably also be the case in South Africa.37 In terms of s 172 of the Constitution the courts are given a wide discretion to order what is just and equitable under the circumstances where conduct is found to be ‘invalid’ under s 2 of the Constitution.

Section 8(1) of the Constitution binds all organs of state. SARS is an organ of state38 and accordingly it is bound by the obligations and duties imposed upon it by the Constitution. This is also confirmed and repeated in s 4(2) of the South African Revenue Service Act,39 where specific reference is made to SARS performing its functions in the most cost efficient and effective manner in accordance with the values and principles mentioned in s 195(1)40 (read with ss 1(c) and 41(1)) of the Constitution). This also places a constitutional obligation on SARS. In the same way, SARS officials carry out the functions of the Commissioner and are bound by those constitutional  obligations.41 The authors of Fundamental Rights in the Constitution: Commentary and Cases42 conclude that the Bill of Rights applies to all law in all its applications, including governmental action and acts of private individuals.

Section 33 of the Constitution deals with ‘just administrative action’ and states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. This section also entitles anyone whose rights have been adversely affected by administrative action to written reasons43 for such administrative action.

National legislation that was to be enacted to give effect to these rights in s 33 of the Constitution was effected in the form of PAJA, which came into force on 30 November 2000.

Next: Chapter 2 – 2.2.3 Other Constitutional provisions

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Footnotes

36Ex Parte Young 209 US 123 (1908).
37 The courts are encouraged to consider foreign law in terms of s 39(1)(c) of the Constitution; See also Fose v Minister of Safety and Security 1997(3) SA 786 (CC) at paras [60]-[61], [67] and [74].
38Ibid. sections 195 and 239 read with s 4(2) of the SARS Act.
39 Act 34 of 1997, hereafter referred to as ‘the SARS Act’ throughout this thesis.
40See Chapter 4 infra for an analysis of the provisions of s 195(1).
41Supra footnote 32; There is nothing that prohibits officials acting outside the scope of their duties to be sued in their personal capacities in South Africa in terms of the Constitution; See also Fose v Minister of Safety and Security 1997(3) SA 786 (CC) at para’s [60]-[61], [67] and [74].
42 Davis et al Fundamental Rights in the Constitution (1997) Wits: Juta at page 44.
43 See section 2.5: Adequate reasons infra; CSARS v Sprigg Investments 117CC t/a Global Investment 73 SATC 114 (SCA) at para’s [12] and [13].

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