Section 45 of the Tax Administration Act: An unconstitutional limitation on taxpayer privacy?

by | Feb 25, 2021 | SALJ, SALJ V138 I1 2021

Section 45 of the Tax Administration Act: An unconstitutional limitation on taxpayer privacy?

Author: Fareed Moosa

ISSN: 1996-2177
Affiliations: Associate Professor, Faculty of Law, University of the Western Cape
Source: South African Law Journal, Volume 138 Issue 1, p. 171-196
https://doi.org/10.47348/SALJ/v138/i1a8

Abstract

The Tax Administration Act 28 of 2011 is a law of general application. Section 45 of the Act empowers a SARS official to enter, without a warrant, premises where a trade or enterprise is reasonably believed to be carried on in order to conduct an inspection aimed at gathering information that will aide SARS in determining whether the business operator is compliant with tax obligations. In a constitutional democracy, the enjoyment of fundamental rights has a high premium. Accordingly, every lawful exercise of the power conferred by s 45 must take place in an orderly fashion, with decency and respect for taxpayers and their privacy. The state may not unduly interfere with this right, whether by withdrawing it altogether, abridging it, or diminishing its scope and ambit. This article hypothesises that inspections undertaken in terms of s 45 limit taxpayers’ privacy in a manner that may not pass muster under s 36(1) of the Constitution of the Republic of South Africa, 1996. On this basis, it is argued that, to cure its deficiencies, s 45 ought to be amended by the introduction of the provisions proposed in this article.

Befriending the bogeyman: Direct horizontal application in AB v Pridwin

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Befriending the bogeyman: Direct horizontal application in AB v Pridwin

Author Meghan Finn

ISSN: 1996-2177
Affiliations: Lecturer in Public Law, University of Johannesburg
Source: South African Law Journal, Volume 137 Issue 4, p. 591-607

Abstract

In AB v Pridwin Preparatory School 2020 (5) SA 327 (CC), the Constitutional  Court held (in four judgments) that independent schools are subject to constitutional  scrutiny and bear duties to the learners enrolled in them. For this reason, the court  declared invalid a school’s decision to terminate a contract without affording any  opportunity to make representations. By rejecting the idea that the independent  schooling sector is insulated from constitutional duties, the Constitutional Court’s  judgment achieves a vital outcome. However, while the court’s outcome is welcome,  its reasoning rests on shaky foundations. The court’s majority, which favoured direct  horizontal application, inadvertently perpetuates the idea that there are parallel  systems of law. Further, the court has a great appetite for making sweeping legal  pronouncements, and then purportedly limiting their precedential effects by claiming  that judgments turn on context-specific inquiries. This cuts against the court’s stated  commitment that horizontal application must progressively transform the law. 

‘When legality and certainty collide’: Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

‘When legality and certainty collide’: Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others

Author D M Pretorius

ISSN: 1996-2177
Affiliations: Bowmans, Johannesburg
Source: South African Law Journal, Volume 137 Issue 4, p. 608-624

Abstract

Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others 2020 (4)  SA 375 (CC) is the latest in a line of cases in which the Constitutional Court has  had to consider the effect of the decision in Oudekraal Estates (Pty) Ltd v City of  Cape Town 2004 (6) SA 222 (SCA). The Oudekraal case has been construed,  and is frequently invoked, as authority for a broad proposition that defective and  apparently unlawful administrative acts remain effective unless and until set aside on  judicial review. In several matters, the Constitutional Court bench has been split on  the impact of Oudekraal, and has expressed itself in abstruse terms. The resultant  confusion has created uncertainty. The Magnificent Mile decision provides a degree  of clarification. However, aspects of Oudekraal and its implications remain shrouded  in uncertainty. Cases decided in the Oudekraal context would benefit from closer  scrutiny of the enabling legislation of the administrative actors concerned. 

Caveat subscriptor, the consumer-friendly approach: An analysis of Van Wyk v UPS SCS South Africa (Pty) Ltd

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Caveat subscriptor, the consumer-friendly approach: An analysis of Van Wyk v UPS SCS South Africa (Pty) Ltd

Author Tshepiso Scott

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 137 Issue 4, p. 625-640

Abstract

Prior to the Consumer Protection Act 68 of 2008 (‘CPA’), the consumer in South  Africa was without substantive protection when concluding contracts with suppliers.  This case note explores how the CPA has changed this position by the introduction  of information-disclosure requirements in terms of s 49 of the Act (‘notice required  for certain terms and conditions’) and the important link to s 22 of the Act, which  affords the consumer the right to information in plain and understandable language.  The recent judgment in Van Wyk v UPS SCS (Pty) Ltd [2020] 1 All SA 857  (WCC) is a long-awaited decision that provides clarity on aspects of the disclosure  requirements that have been prescribed by the Act.