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

2.4 THE RELEVANCE OF PAJA AND THE PRINCIPLE OF LEGALITY

2.4.3 Recent developments in the principle of legality

The courts are also beginning to accept in the recent development of the constitutional principle of legality, that failure to give reasons is a further transgression of that principle.134

The following recent decisions are significant in this regard: In Albutt v Centre for the Study of Violence and Reconciliation135 the Constitutional Court made it clear that rationality may demand procedural fairness in appropriate cases. The High Court also recently supported the proposition that ‘the principle of legality, which includes rationality and accountability, imposes a duty upon the functionary exercising a public power to provide reasons for its act or decision’ in the full bench decision of Van Der Merwe J in Wessels v Minister for Justice and Constitutional Development.136 In a recent decision of Koyabe v Minister for Home Affairs137 the Constitutional Court also seems ‘willing to source the obligation to give reasons elsewhere than in s 5 of PAJA’.138

Consequently, it can be argued that the constitutional principle of legality has now come full circle, to encapsulate all the duties of SARS in terms of PAJA: the duty to act lawfully, reasonably, procedurally fairly, and to give reasons, where appropriate. If the provisions of ss 3 and 5 of PAJA, through the definition of administrative action, does not apply to SARS when invoking their powers in terms of ss 74A and 74B, then the constitutional principle, as described above, will apply, opening the taxpayer’s door to taking any conduct by SARS that is inconsistent with these constitutional principles and obligations on review.
Chapters 2 and 3 below analyse the substantive limitations to SARS’ powers in ss 74A and 74B, and the significance of SARS’ constitutional obligations in s 195(1) of the Constitution.

Next:  2.5 ADEQUATE REASONS – 2.5.1 Introduction

In accordance with Circular 230 Disclosure

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Footnotes:

134 Hoexter (2012) at pages 121-5 and 359.
135 2010 (3) SA 293 (CC) at para [49] et seq.
136 2010 (1) SA 128 (GNP) at para’s 141I-J.
137 2010 (4) SA 327 (CC).
138Ibid. at page 359.