Value-conscious interpretation of taxing provisions using ubuntu: An appropriate decolonised interpretive approach?

• Jurisdiction: South Africa
• Date: 16 August 2019
• Author: Fareed Moosa
• Published date: 16 August 2019
• Pages: 71-90
• Citation: (2018) 30 SA Merc LJ 71

VALUE-CONSCIOUS INTERPRETATION OF

TAXING PROVISIONS USING UBUNTU: AN

APPROPRIATE DECOLONISED

INTERPRETIVE APPROACH?

FAREED MOOSA*

Head of the Department of Mercantile and Labour Law,University of the

Western Cape

Abstract

By virtue of section 39(2) of the Constitution of the Republic of South

Africa, 1996, interpretation of tax legislation must occur on a principled

basis through the prism of the Bill of Rights. Ubuntu is a constitutional

value that informs the Bill of Rights’ spirit. Thus, ubuntu is a value that,

where appropriate, may be used in the interpretation of f‌iscal legislation.

Applying ubuntu when an ambiguous taxing provision is interpreted

favours a f‌inding that the provision is not to be interpreted contra

f‌iscum, but rather against the taxpayer who must then pay the greater

amount of tax permissible under the taxing provision, unless the

taxpayer can show compelling reasons why a construction contra f‌iscum

ought to be favoured.

I INTRODUCTION

Under the Constitution of the Republic of South Africa, 1996 (the

Constitution), the state’s duty progressively to realise socio-economic

rights, such as the rights to housing,

1

health care, food, water, and social

security,

2

is not absolute. The fulf‌ilment of this duty is subject to the

availability of adequate f‌inancial resources.

3

In this regard, taxation

4

and

*BProc LLB (UWC) LLM (UCT) LLD (UWC).

1

Section 26(2) of the Constitution reads: ‘The state must take reasonable legislative and

other measures, within its available resources, to achieve the progressive realisation of this

right.’

2

Section 27(2) of the Constitution reads: ‘The state must take reasonable legislative and

other measures, within its available resources, to achieve the progressive realisation of each of

these rights.’

3

See, for example, Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765

(CC) para 11; Government of the Republic of South Africa and Others v Grootboom and others

2001 (1) SA 46 (CC) para 46.

4

Fabricius J, in CSARS v Sunflower Distributors CC 2015 JDR 2546 (GP) para 4, held that

‘the State is obliged to and entitled to collect taxes, as its very existence is dependent on it’.

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(2018) 30 SA Merc LJ 71

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effective tax collection play pivotal roles.

5

Although section 77(1)(b) of

the Constitution provides for the imposition of national taxes, levies,

duties, and surcharges by way of a money Bill,

6

the Constitution does

not, unlike other similar instruments,

7

expressly impose a duty to pay

tax.

8

This duty is imposed by legislation enacting a specif‌ic tax such as

income tax, VAT, transfer duty, and estate duty.

The rule of law, a founding value entrenched in the Constitution,

9

entails, inter alia, that taxpayers must respect and comply with tax

laws.

10

Based on the principle of legality within the rule of law, no tax is

Taxation is a justif‌iable limitation on a person’s unfettered, undisturbed use, enjoyment, or

exploitation of private property. See Eisenstein, Ideologies of Taxation (Ronald Press 1961) 3;

Croome, Taxpayers’ Rights in South Africa (Juta 2010) 23. The court, in First National Bank of

South Africa Ltd t/a Wesbank v Commissioner, South African Revenue Service and another 2002

(4) SA 768 (CC) para 27, held: ‘Taxation could not amount to deprivation or expropriation.’

In South African Reserve Bank v Shuttleworth 2015 (5) SA 146 (CC) para 42, Moseneke DCJ,

aff‌irmed that ‘the power to tax residents is an incident of, and subservient to, representative

democracy’.

5

The Constitution’s Preamble honours ‘those who suffered for justice and freedom in our

land’. This is the human cost of freedom and democracy in South Africa (SA). Taxation is its

attendant f‌inancial cost. Wendell Holmes J, in Compania de Tabacos v Collector of Inland

Revenue (1927) 275 US 87 at 100, referred to tax as the price ‘we pay for civilized society’.

Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Penn State Electronic

Classics 2005) 704 described tax as a ‘badge, not of slavery, but of liberty’.

6

For a discussion of ‘money bills’ generally, see South African Reserve Bank v Shuttleworth

2015 (5) SA 146 (CC) paras 40–46.

7

For example, the Constitutions of Italy, 1947, (art 53); Japan, 1947, (art 30); Spain, 1978,

(art 31); and Uganda, 1995, (art 17(g)) each expressly imposes a duty to pay tax. See

Kasimbazi, Taxpayers’ Rights and Obligations: Analysis of Implementation and Enforcement

Mechanisms in Uganda (Danish Institute for International Studies, Working Paper 2004) 15

available at http://hdl.handle.net/10419/84505, accessed on 27 January 2017. See also art

XXXVI of the American Declaration of the Rights and Duties of Man, 1948, which reads: ‘It is

the duty of every person to pay the taxes established by law for the support of public services.’

8

A citizen’s duty to pay tax may be impliedly included in s 3(2)(b) of the Constitution.

Section 3(2) reads: ‘All citizens are– (a) equally entitled to the rights, privileges and benef‌its of

citizenship; and (b) equally subject to the duties and responsibilities of citizenship.’ Article

29(6) of the African Charter on Human and Peoples’ Rights obliges individuals ‘to pay taxes

imposed by law in the interest of the society’. The Charter was ratif‌ied by SA in 1996 and art

29(6) may serve as the basis for a general duty to pay taxes lawfully imposed for public benef‌it.

9

Section 1(c) of the Constitution. For a discussion of the rule of law in taxation, see

Pienaar Brothers (Pty) Ltd v Commissioner, South African Revenue Service and another 2017 (6)

SA 435 (GP) paras 40–100. For a discussion of the rule of law generally, see Botha, ‘The

legitimacy of legal orders (3): Rethinking the rule of law’ (2001) 64 THRHR 523. Also, see

Economic Freedom Fighters v Speaker, National Assembly and others 2016 (3) SA 580 (CC)

paras 74–75.

10

In South Africa’s pre-constitution era, the def‌iance campaign against apartheid included

the clarion call to the oppressed black masses to withhold the payment of taxes imposed by a

repressive white minority regime. Taxation f‌inanced the apartheid state machinery which

enforced draconian laws and policies which, in turn, suppressed the legitimate struggle for

democracy and freedom. Taxation was, therefore, an essential tool of protest; another frontier

where the battle lines against apartheid was drawn. This citizen activism was political — ‘no

taxation without representation’.

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