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

2.2.3 Other Constitutional provisions
In addition to this, ss 41(1) and 195(1) of the Constitution (apart from public administrators having to comply with the rule of law) public administrators can only assume power given to them in terms of the Constitution, and public administration must be governed by the democratic values and principles enshrined in the Constitution and, in particular, that services must, inter alia, be provided in accordance with high standards of professional ethics, impartially, fairly, equitably and without bias. It also states that public administration must be transparent and accountable.44

The duties set out in s 195(1) of the Constitution should also be read with the principles of s 1(c) stating the rule of law is supreme, and co-operative government and intergovernmental relations, as set out in s 41(1) of the Constitution: ‘…All…state organs…must…provide effective, transparent, accountable and coherent government for the Republic as a whole…be loyal to the Constitution … not assume any power or function, except those conferred on them in terms of the Constitution … (Emphasis supplied). Then there is the obligation placed on SARS (an organ of State) to perform its duties diligently and without delay.45 Section 237 of the Constitution states that organs of
state must diligently and without delay performs its constitutional obligations. In s 4(2) of the SARS Act it states:

(2) SARS must perform its functions in the most cost-efficient way and in accordance with the values and principles mentioned in s 195 of the Constitution. (Emphasis supplied)

These constitutional obligations of SARS in the context of ss 74A and 74B, give rise to a right of judicial review to taxpayers where the decision is ‘administrative action’, and if not, judicial review in terms of a transgression of the principle of legality.

Next:  Chapter 2 – 2.2.4 Conduct, decisions and public power

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