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
2.2.1 Foundational values

Section 1 of the Constitution, dealing with the foundational values of the Constitution, reads:

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law… (Emphasis supplied)

Section 2 of the Constitution of the Republic of South Africa, dealing with the supremacy of the Constitution, states that:

This constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’ (Emphasis supplied)

The discretion exercised by SARS in the form of a decision invoking its powers in terms of ss 74A and 74B is conduct: ‘the act, manner, or process of carrying on or managing…mode or standard of personal behaviour.’32 The constitutional obligations imposed on SARS ‘must be fulfilled’.

In the work Constitutional Law of South Africa33 it is suggested that the word ‘law’
means that all forms of law, from legislature to delegated legislation and from common law to customary law and indigenous law, fall within the ambit of the ‘law’ referred to in s 2 of the Constitution.

Any law that is in inconsistent with the Constitution34 is subject to judicial review read with s 172(1)(a) of the Constitution.35

Next:  Chapter 2 – 2.2.2 Bill of Rights

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Footnotes

32 Merriam-Webster’s Dictionary of Law 1st ed (1996) Springfield, MA: Merriam-Webster.
33 Chaskalson et al Constitutional Law of South Africa (1996) Wits: Juta at pages 10-4.
34 Section 2 of the Constitution.
35 Chaskalson et al Constitutional Law of South Africa (1996) Wits: Juta at page 32.

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