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 5 – JUDICIAL REVIEW WITH REFERENCE TO SS 74A AND 74B –

5.5.3 Rule 53 of the Uniform Rules of Court

Section 172(1) of the Constitution opens the way for taxpayers to review any conduct by SARS that is inconsistent with s 2 of the Constitution, and invalid, either in respect of a transgression of PAJA, or the constitutional principle of legality. The appropriate review application would be brought in terms of Rule 53(1) of the Uniform Rules of Court that provides:

(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected –

(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and

(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to despatch, within fourteen days of the receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside together with such reasons as he is by law required or desires to give or make, and to notify the applicant that he has done so.

(2) The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be supported by affidavit setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings set aside or corrected.56 (Emphasis supplied)

In the Jockey Club of South Africa v Forbes,57 the Appellate Division held that the primary purpose of Rule 53 of the Uniform Rules of Court was to facilitate and regulate application for review, and on the face thereof was designed to ‘aid and not shackle the applicant’. This is equally applicable to taxpayers who have the constitutional complaints against SARS where SARS have allegedly transgressed one or more of its constitutional obligations when invoking its powers in terms of ss 74A and 74B. Any founding affidavit prepared by the aggrieved taxpayer would commence with identifying the invalid conduct performed by SARS as envisaged in s 2 of the Constitution, and supported by the appropriate codified grounds of review in s 6(2) of PAJA, or the applicable aspects of the principle of legality that have been transgressed.

Next:  5.5.4 Save where any law otherwise provides and 5.5.5 Show Cause

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Footnotes:

55 Hoexter (2012) at pages 121-5. 169
56 Kennasystems South Africa CC v Chairman, Board on Tariffs and Trade and Others, 58 SATC 150 at page 151.
57 1993 (1) SA 649 (A).