Value-conscious tax administration by SARS

• Date: 01 March 2019
• Author: Fareed Moosa
• Published date: 01 March 2019
• DOI: 10.10520/EJC-14ce8efd6e
• Record Number: btclq_v10_n1_a2
• Pages: 1-10

1

© Siber ink

Value-conscious Tax

Administration by SARS

FAREED MOOSA*

AbstrAct

This article discusses the ethos and values espoused by section 195 of South

Africa’s Constitution, which must animate tax administration by the South

African Revenue Service, an organ of state engaged in public administration

and which is bound by the Bill of Rights in Chapter 2 of the Constitution

by virtue of section 8(1) thereof. This article argues that Constitutional

supremacy obliges SARS to respect taxpayers’ constitutional rights and its

administrative processes must, so far as it may affect taxpayers, conform

to democratic norms, values and standards. Failure by SARS and its off‌i-

cials to comply with their legal duties violates the rule of law and under-

mines the protection afforded to taxpayers by the Constitution and the law

in general. This article concludes that in the execution of their duties SARS

off‌icials must promote and maintain a high standard of professional ethics;

promote eff‌icient, economic and effective use of resources; be development

orientated; provide services impartially, fairly, equitably and without bias; put

people’s needs f‌irst (so-called batho pele) by responding to taxpayers’ needs;

encourage them to participate in policy-making; be accountable; and foster

transparency by providing timely, accessible, accurate information. These are

core values and principles for the maintenance of a functioning and eff‌icient

democracy in which service excellence is a key facet of public administration

and, by extension, tax administration too.

1 Introduction

The South African Revenue Service (‘SARS’) is the sole national tax admin-

istration institution. It administers South Africa’s tax system and f‌iscal

laws enacted by Parliament.1 Its conduct, and that of its off‌icials, is mainly

‘administrative action’ as def‌ined in s1 of the Promotion of Administrative

Justice Act 3 of 2000 (PAJA).2 This is so because SARS’s conduct ‘adversely

1

* Attorney and Head of the Department of Mercantile & Labour Law, Faculty of Law,

University of the Western Cape.

ITC 963 24 SATC 705 709; Amor van Zyl Trust v Kommissaris van Binnelandse

Inkomste 1995 (4) SA 1007 (T) 1013G.

2

The relevant part of the term ‘administrative action’ is def‌ined in s1 to mean

‘any decision taken, or failure to take a decision, by — (a) an organ of State, when

… (ii) exercising a public power or performing a public function in terms of any

legislation … which adversely affects the rights of any person and which has a

direct, external legal effect. …’. The Court, in ARMSA v President of the Republic of

South Africa 2013 (7) BCLR 762 (CC) para 41 (‘ARMSA’), held that the determina-

tion of whether conduct is ‘administrative’ is not ‘a mechanical exercise in which

the court merely asks itself whether a public power is being exercised or a public