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 4 – SECTION 195(1) OF THE CONSTITUTION AND PUBLIC ADMINISTRATION DUTIES WITH REFERENCE TO SECTIONS 74A AND 74B

4.2 THE DUTIES OF SARS EMANATING FROM SECTION 195(1) OF THE CONSTITUTION4.2.1 Introduction

If SARS fails to exercise its discretion under ss 74A and 74B in accordance with the duties and responsibilities imposed upon it in the Constitution, it will fall foul of the following Constitutional Court dictum:18

The exercise of all public power (which) must comply with the Constitution which is the supreme law and the doctrine of legality which is part of that law.

It is clear from the Pharmaceutical case19 that all public power must comply with the Constitution, which includes the provisions of s 195(1).20
The duties and constitutional obligations21 emanating from ss 41(1), 195(1)  and 237 of the Constitution, quoted in their proper context, are as follows:

Principles of co-operative government and intergovernmental relations

41.(1) All spheres of government and all organs of state within each sphere must –
…
provide effective, transparent, accountable and coherent government for the Republic as a whole;
(d) be loyal to the Constitution, the Republic and its people;
…
(a) not assume any power or function except those conferred on them in terms of the Constitution;
…

Basic values and principles governing public administration

195 (1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and maintained.
…
(d) Services must be provided impartially, fairly, equitably and without bias.
…
(f) Public administration must be accountable.
(g) Transparency must be fostered …
…
(2) The above principles apply to –
…

(b) organs of State …22

Diligent performance of obligations

237. All constitutional obligations must be performed diligently and without delay.
…

Definitions

239 …
‘organ of state’ means –
…
(b) any other functionary or institution –
…
(ii) exercising a public power or performing a public function in terms of any legislation…23. (Emphasis supplied)

These principles of collegiality and professionalism, impartiality, fairness, an absence of bias, and accountability and transparency underpin these duties (constitutional obligations) are repeated in s 4(2) of the SARS Act, emphasising their direct applicability to SARS.

What follows is an analysis of the administrative law principles that inform the relevant provisions and principles set out in s 195(1) of the Constitution.

Next:  4.2.2 What are the democratic values and principles referred to in s 195(1)?

In accordance with Circular 230 Disclosure

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Footnotes:

18Pharmaceutical Society of SA and Others v Minister of Health and Another [2005] 1 All SA 196 (C) at para [20].
19Ibid.
20This is and supported by what the Constitutional Court and Supreme Court of Appeal have held in the Bato Star
Fishing 2004 (4) SA 490 (CC) and in Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others2005 (6) SA 313 (SCA).
21Premier, Western Cape v President of the Republic of South Africa 1999 (3) SA 657 (CC) at para [44]; The
Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and Ano v Ngxuza and Others
2001 (4) SA 1154 (SCA) at para [15] footnote 23; Reuters Group Plc and Others v Viljoen NO and Others 2001 (2)
SACR 519 (C) at para [46]; Carephone (Pty) Ltd v Marcus NO and Others 1999 (3) SA 504 (LAC).
22 Such as SARS.
23 Section 4(2) of the SARS Act.