Editorial

• Author: Milton Seligson SC
• Published date: 01 December 2019
• Record Number: btclq_v10_n4_a1
• DOI: 10.10520/EJC-1ac40ac22c
• Pages: v-viii
• Date: 01 December 2019

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© SIBER INK

Editorial

MILTON SELIGSON SC*

This issue of the BTCLQ features an important contribution to tax jurispru-

dence by Professor Fareed Moosa, Head of the Department of Mercantile

and Labour Law at the University of the Western Cape, entitled ‘Demo-

cratic Principles Underpinning Tax Administration in South Africa’. The

article deals with the impact of constitutionalism under the South African

Constitution on tax law and administration, and seeks to demonstrate that

taxpayers are included among the benef‌iciaries of the fundamental rights

incorporated in the Bill of Rights of the Constitution.

The author highlights that this constitutional protection includes the

right to just administrative action by the South African Revenue Service

and its off‌icials when executing their duties and functions under the Tax

Administration Act 28 of 2011, as well as under the plethora of tax legisla-

tion enacted in this country. This right entitles taxpayers to tax admin-

istration that is lawful, reasonable and procedurally fair. Additionally,

taxpayers are entitled to written reasons for administrative decisions taken

that adversely affect their interests.

Furthermore, the Constitution subjects all f‌iscal legislation and conduct

in the administration thereof to constitutional control. The effect of this

is that taxation and tax administration must conform to the rule of law

and the values, principles and spirit that infuse the Constitution. The

author points out, with ample reference to ground-breaking decisions of

the Constitutional Court and other authorities, that the rule of law seeks

to establish a legal regime that is underpinned by the principles of legality,

equality, clarity, consistency and fairness and the advancement of human

rights and freedoms for all citizens, including taxpayers. He contrasts this

with the public administration that characterised the pre-constitutional,

apartheid era.

Tax advisors and practitioners should f‌ind the comprehensive analysis

of the operation of the rule of law in tax law and administration and the

application of the principle of legality in those spheres, as well as the

copious source references, helpful in dealing with the thorny problems

that often arise at the intersection of constitutional and tax issues. For,

in an era when taxpayers are often confronted by an increasingly aggres-

sive tax administration seeking to exercise the broadly intrusive powers

conferred on SARS, the protections afforded by the Constitution afford a

signif‌icant and effective counterpoise. It should never be forgotten, either

by taxpayers or by SARS and it’s functionaries that, as the author reminds

* Senior Counsel and Honorary Member of the Cape Bar.