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

2.3 A CONSTITUTIONAL BALANCE OF SARS’ POWERS AND THE ‘ADMINISTRATIVE ACTION’ DEBATE

2.3.3 Conclusion

In conclusion, despite it being preliminary and investigative in nature, it is submitted that a decision of SARS in terms of ss 74A and 74B is ‘administrative action’ as contemplated in s 33 of the Constitution, and as defined in PAJA. The safeguards incorporated in PAJA should be applied to SARS. Taxpayers should be entitled to the full suite of rights in s 3(2) of PAJA at the commencement of an inquiry and audit.

Adequate reasons in terms of s 5(2) of PAJA will also be required by SARS. Any defective administrative action by SARS will be subject to the grounds of review in s 6(2) of PAJA, and subject to the provisions of ss 7 and 8 of PAJA. If not, SARS is still bound by the constitutional principle of legality, which entails exercising public power that must be carried out lawfully, reasonably, in a procedurally fair manner, and with adequate reasons, as discussed in the next section:1.4 The Relevance of PAJA and the Principle of Legality.

Next:  Chapter 2 – 2.4 THE RELEVANCE OF PAJA AND THE PRINCIPLE OF LEGALITY
2.4.1 Introduction

In accordance with Circular 230 Disclosure