scholarly journals Revoking a Decision to Suspend Payment of Disputed Tax "on Further Consideration": An Administrative Law Perspective

2021 ◽  
Vol 24 ◽  
pp. 1-26
Author(s):  
Silke De Lange
Keyword(s):  
South Africa ◽  
South African ◽  
Administrative Law ◽  
Point Of View ◽  
Know How ◽  
Administrative Action ◽  
The Republic ◽  
The Right ◽  
To Receive ◽  
Relevant Factors

The "pay now, argue later" rule entails that the obligation to pay tax and the right of the South African Revenue Service (SARS) to receive and recover tax are not suspended by objection or appeal. However, in terms of section 164(2) of the Tax Administration Act 28 of 2011 (hereafter TAA), a taxpayer may request a senior SARS official to suspend the payment of disputed tax and a senior SARS official may, in terms of section 164(3) of the TAA, grant such a suspension having regard to certain relevant factors. Section 164(5) of the TAA further provides that the decision to suspend may be revoked on a number of grounds. One of the grounds is when a senior SARS official is satisfied, on further consideration of the factors which had to be taken into account when the suspension was granted, that the suspension should not have been granted. There is no indication in the TAA that this ground for revoking the suspension requires that there should be a material change in the factors, as this is provided for in a separate ground to revoke the decision to suspend the payment of disputed tax. It is also not required, for example, that the taxpayer should have failed to disclose information when making the request to suspend the payment. It is argued in this article that the ground for revoking a decision to suspend payment "on further consideration of the factors" raises concerns from an administrative law point of view. This is based on the revocation being an "administrative action" as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996 read together with the Promotion of Administrative Justice Act 3 of 2000, which requires that the revocation should be lawful, reasonable and procedurally fair. The concerns raised in this article relate not only to the rights of taxpayers, but also to the duties of the SARS officials revoking a decision to suspend payment as it is equally important that administrators should be able to know how and when to act in a manner which is lawful, reasonable and procedurally fair.

scholarly journals The Right to Just Administrative Action in the Context of Suspending the Payment of Disputed Tax

2017 ◽  
Vol 20 ◽  
pp. 1-26
Author(s):  
Silke De Lange ◽  
Danielle Van Wyk
Keyword(s):  
South Africa ◽  
Literature Review ◽  
South African ◽  
Tax Administration ◽  
Research Approach ◽  
Administrative Action ◽  
The Republic ◽  
The Right ◽  
Relevant Factors ◽  
Discretionary Powers

Section 164(3) of the Tax Administration Act 28 of 2011 (hereafter TAA) provides a senior South African Revenue Service official (hereafter, respectively, SARS and senior SARS official) with discretionary powers to suspend the payment of disputed tax or a portion thereof, having regard to relevant factors, if the taxpayer intends to dispute the liability to pay such tax. Exercising a discretion in terms of section 164(3) of the TAA constitutes administrative action. Section 33(1) of the Constitution of the Republic of South Africa, 1996 (hereafter Constitution) grants everyone the right to just administrative action that is lawful, reasonable and procedurally fair and the Promotion of Administrative Action Act 3 of 2000 (hereafter PAJA) was promulgated to give effect to this right. The objective of this article is to apply the right to just administrative action to the manner in which the discretion in terms of section 164(3) of the TAA is exercised. This is achieved by adopting an explanatory research approach and performing a literature review of the discretion process in terms of section 164(3) of the TAA and the constitutional obligations in terms of section 33 of the Constitution as given effect to in PAJA. As the discretion exercised by the senior SARS official is influenced directly by the right to just administrative action, it should be exercised in a lawful, reasonable and procedurally fair manner to ensure compliance with the Constitution and the PAJA. For the discretion to be exercised in a lawful manner, the senior SARS official must at least be authorised to exercise the discretion in terms of the TAA and comply with the procedures and conditions stated in section 164(3) of the TAA. For the decision to be considered reasonable, the decision must be, at the minimum, rational and proportional, and to ensure that the discretion is exercised in a procedurally fair manner, SARS should comply with at least the relevant compulsory elements in terms of section 3(2)(b) of PAJA. A decision in terms of section 164(3) of the TAA which fails to meet the requirements of lawfulness, reasonableness and/or procedural fairness will be subject to review on several grounds listed in section 6(2) of PAJA.     

scholarly journals Dignity, religion and freedom of expression in South Africa

2011 ◽  
Vol 67 (1) ◽  
Author(s):  
Jacobus C.W. Van Rooyen
Keyword(s):  
South Africa ◽  
South African ◽  
Freedom Of Expression ◽  
Sense Of Self ◽  
Point Of View ◽  
National Pride ◽  
Form Part ◽  
Self Worth ◽  
Constitutional Right ◽  
The Republic

The issue that this article dealt with is whether, in South African law, speech that infringes upon the religious feelings of an individual is protected by the dignity clause in the Constitution of the Republic of South Africa. The Constitution, as well as the Broadcasting Code, prohibits language that advocates hatred, inter alia, based on religion and that constitutes incitement to cause harm. Dignity, which is a central Constitutional right, relates to the sense of self worth which a person has. A Court has held that religious feelings, national pride and language do not form part of dignity, for purposes of protection in law. The Broadcasting Complaints Commission has, similarly, decided that a point of view seriously derogatory of ‘Calvinistic people’ blaming (some of) them as being hypocritical and even acting criminally is not protected by dignity. It would have to be accompanied by the advocacy of hatred as defined previously. The author, however, pointed out that on occasion different facts might found a finding in law that religion is so closely connected to dignity, that it will indeed be regarded as part thereof.

scholarly journals What has the Constitutional Court Given Us? Afriforum v University of the Free State 2018 (4) BCLR 387 (CC)

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Mokgadi Margaret Mokgokong ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
Higher Education ◽  
South Africa ◽  
South African ◽  
Further Education ◽  
The State ◽  
Constitutional Court ◽  
Official Language ◽  
National Party ◽  
The Right ◽  
To Receive

The history of South Africa is an unpleasant one. It was a society based on racial segregation with the promotion of Afrikaner culture and the Afrikaans language above all other languages. This can be traced to the architect of apartheid, the Afrikaner National Party, which introduced apartheid. Afrikaans-speaking people, through the Afrikaner National Party, dominated South Africa politically. Their language too, was promoted above all other languages. For example, Afrikaans enjoyed more privileges than other languages in that it was used for drafting laws, as the language of record in the courts and was also the only compulsory subject for learning. The apartheid government, through its racial policies, used the Afrikaans language as a tool to control Black South Africans in almost all spheres of life, including education, which had to be undertaken in Afrikaans. It is therefore no surprise that there were five universities that offered education mainly in Afrikaans. These are Stellenbosch University, University of the Free State, University of Pretoria, Potchefstroom University for Christian Higher Education (now North-West University) and Randse Afrikaanse Universiteit (now University of Johannesburg). The use of the Afrikaans language as an instrument for social control was not sustainable. The new constitutional dispensation ushered in an era wherein respect for fundamental human rights and freedoms is at the top of the South African agenda. The right to further education is constitutionally recognised in section 29(1)(b) of the Constitution of the Republic of South Africa, 1996. Section 29(2) of the Constitution further recognises and embraces the diversity of South African society and provides that “everyone has the right to receive education in the official language or languages of their choice in public education institutions where that education is reasonably practicable” (s 29(b) of the Constitution). The State has an obligation to take reasonable measures on a progressive basis to ensure that further education is available and accessible (s 29(1)(b) of the Constitution). In ensuring “effective access to and implementation” of the right to further education, It is notable that, in its endeavour to make further education available and accessible, the State is required to consider several factors such as language policies. In an effort to facilitate the realisation of the right to further education, the Higher Education Act (101 of 1997) was enacted in order inter alia to “redress past discrimination and ensure representivity and equal access to higher education institutions” (preamble to the Act).In the UFS case (CC), the Constitutional Court applied section 29(1)(b) of the Constitution, which provides for the right to further education and the “right to receive education in the official language or languages of [one’s] choice”. This note centres on this decision and seeks to critically discuss and analyse both the majority and minority decisions of the Constitutional Court. The question presented is whether the Constitutional Court has given the public a solution to the issue surrounding the use of either Afrikaans or English as a language medium of instruction in the higher education sector and what the effect of this has been on the development of other languages. The case note is divided into five sections. The facts of the case, the issues put before the court for consideration and the finding of the court are discussed in part 2. Part 3 contains an analysis of the minority and majority judgments. Part 4 considers whether the court has given us any solutions. Part 5 sets out the authors’ recommendations and their conclusions.

scholarly journals Raamwerkwetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel

2017 ◽  
Vol 15 (5) ◽  
pp. 228
Author(s):  
Anél Terblanche ◽  
Gerrit Pienaar
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Food Security ◽  
South African ◽  
The South ◽  
The Republic ◽  
The Right ◽  
Human Rights Based Approach ◽  
Right Of Access ◽  
Sufficient Food

Various South African government reports list food security as a development priority. Despite this prioritisation and despite the fact that South Africa is currently food self-sufficient, ongoing food shortages remain a daily reality for approximately 35 percent of the South African population. The government's commitment to food security to date of writing this contribution manifests in related policies, strategies, programmes and sectoral legislation with the focus on food production, distribution, safety and assistance. A paradigm shift in the international food security debate was encouraged during 2009, namely to base food security initiatives on the right to sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the Right to Food of the United Nations, accordingly confirmed that a human rights-based approach to food security is necessary in the South African legal and policy framework in order to address the huge disparities in terms of food security (especially concerning geography, gender and race). A human rights-based approach to food security will add dimensions of dignity, transparency, accountability, participation and empowerment to food security initiatives. The achievement of food security is further seen as the realisation of existing rights, notably the right of access to sufficient food. The right of access to sufficient food, as entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996 qualifies section 27(1)(b) by requiring the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the section 27(1) rights. The South African government's commitment to food security, as already mentioned, currently manifests in related policies, strategies and programmes, which initiatives will qualify as other measures as referred to in section 27(2) mentioned above. This contribution, however, aims to elucidate the constitutional duty to take reasonable legislative measures as required by section 27(2) within the wider context of food security. This contribution is more specifically confined to the ways in which a human rights-based approach to food security can be accommodated in a proposed framework law as a national legislative measures. Several underlying and foundational themes are addressed in this contribution, amongst others: (a) the relationship between food security and the right of access to sufficient food; (b) food security as a developmental goal; and (c) the increasing trend to apply a human rights-based approach to development initiatives in general, but also to food security.

scholarly journals The Regulations relating to Foodstuffs for Infants and Young Children (R 991): A Formula for the Promotion of Breastfeeding or Censorship of Commercial Speech?

2017 ◽  
Vol 17 (1) ◽  
pp. 295
Author(s):  
Lize Mills
Keyword(s):  
Public Health ◽  
South Africa ◽  
Young Children ◽  
South African ◽  
Commercial Speech ◽  
Department Of Health ◽  
Infant Formulae ◽  
The Republic ◽  
The Right ◽  
Advertising And Promotion

The regulation of commercial speech in the interests of public health is an issue which recently has become the topic of numerous debates. Two examples of such governmental regulation are the subjects of discussion in this article, namely the prohibition on the advertising and promotion of tobacco products, as well as the proposed prohibition on the advertising and promotion of infant formulae and other foods and products marketed as being suitable for infants or young children. The article seek to evaluate the recently proposed regulations published in terms of the Foodstuffs, Cosmetics and Disinfectants Act in the light of the reasoning by the Supreme Court of Appeal in the British American Tobacco South Africa (Pty) Limited v Minister of Health 463/2011) [2012] ZASCA 107 (20 June 2012) decision, and in particular in terms of the section 36 test of reasonableness and proportionality found in the Constitution of the Republic of South Africa, 1996. It argues that, although the South African Department of Health must be applauded for its attempt at improving public health in the country, some of the provisions of the proposed regulations are not constitutionally sound. It will be contended that, despite the fact that the promotion of breastfeeding is a laudable goal, the introduction only of measures which restrict the right to advertise these types of products will not necessarily achieve this objective.

scholarly journals The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Stefan Van Eck ◽  
Tungamirai Kujinga
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Relations ◽  
Essential Services ◽  
The Republic ◽  
Labour Legislation ◽  
The Right

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.    

scholarly journals Defending the Absurd: The Iconoclast's Guide to Section 47(1) of the Superior Courts Act 10 of 2013

2017 ◽  
Vol 17 (5) ◽  
pp. 1827
Author(s):  
Haneen McCreath ◽  
Raymond Koen
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
Conventional Wisdom ◽  
Civil Litigation ◽  
The Supreme Court ◽  
Core Value ◽  
The Republic ◽  
The Right ◽  
Right Of Access

This contribution was intended as a defence of section 25(1) of the Supreme Court Act 59 of 1959. However, the Supreme Court Act was repealed in August 2013 and replaced by the Superior Courts Act 10 of 2013, and in the process section 25(1) of the former gave way to section 47(1) of the latter. Both sections concern the doctrine of leave to sue judges in South Africa. Both prescribe that any civil litigation against a judge requires the consent of the court out of which such litigation is to be launched. Both apply to civil suits against judges for damage caused by either their judicial or their non-judicial conduct.Although section 25(1) had been one of the more inconspicuous sections of the Supreme Court Act, it was contested on occasion. Both curial and extra-curial challenges to section 25(1) assailed its constitutionality, alleging essentially that its provisions violated the right of access to courts enshrined in section 34 of the Constitution of the Republic of South Africa, 1996 and that such violation did not meet the limitation criteria contained in section 36. It may be anticipated with considerable confidence, given its legal continuity with section 25(1), that any serious assault upon section 47(1) of the Superior Courts Act also will focus upon its relationship to section 34 of the Constitution.This contribution is a pre-emptive defence of section 47(1) of the Superior Courts Act and, by extrapolation, a belated justification of section 25(1) of the Supreme Court Act. An attempt will be made to demonstrate, contrary to conventional wisdom, that section 47(1) does not limit section 34 and passes constitutionalmuster at the first level of enquiry, thereby obviating the need for advancing to the second level of enquiry contained in section 36 of the Constitution.The jurisprudential crux of section 47(1) of the Superior Courts Act is embedded in the nature of the judicial office and its core value of judicial impartiality. The procedural immunity which the section affords South African judges is a mechanism for sparing them the nuisance of having to deal with frivolous litigation, either as defendant or as adjudicator. Every specious suit against a judge, per definitionem, represents an incursion into judicial impartiality by urging that the court give credence to a claim which does not qualify for curial adjudication. In this regard, the doctrine of leave to sue seeks to ensure that judges do not have to adjudicate claims which resort beyond the compass of their judicial capacity. It is a doctrine which operates to protect and advance the unimpeachable principle of judicial impartiality.

scholarly journals A CALL FOR A DIFFERENCE IN TREATMENT BETWEEN CHILD AND ADULT OFFENDERS IN THE SOUTH AFRICAN PAROLE SYSTEM: AN INTERNATIONAL LAW PERSPECTIVE

2010 ◽  
Author(s):  
I Gueorguieva
Keyword(s):  
South Africa ◽  
South African ◽  
Best Interests ◽  
Conditional Release ◽  
Correctional Services ◽  
The Republic ◽  
Parole System ◽  
The Right ◽  
And Control ◽  
Good Behaviour

Internationally, parole is recognised and accepted as a means of the conditional release of a sentenced offender from a correctional centre into the community, before the expiration of the judicially imposed sentence of such offender. The functions of the placement on parole of the offender, which associate with the offender, include the rehabilitation of the offender and his reintegration into the community, as well as his restitution (e.g. in the form of symbolic restitution or community service). In Correctional Services authorities, parole acts occur to relieve prison overcrowding, encourage good behaviour within correctional facilities and to save costs related to imprisonment without negating the benefits of continued supervision and control.5 In South Africa, parole is predominantly governed by the Correctional Services Act 111 of 1998 (as amended) or, more particularly chapter IV (dealing with sentenced offenders), chapter VI (community corrections) and chapter VII (release from correctional centre and placement under correctional supervision and on day parole and parole). The provisions of chapter IV came into operation on 31 July 2004, whilst those of chapters V and VI came into operation on 1 October 2004.6 In addition, the provisions of the Correctional Services B-Order, Sub-Order 1, Incarceration Administration (hereinafter referred to as the Parole Manual) go a long way in clarifying and expanding on provisions in the Correctional Services Act, as well as indicating the practice and policy of the various functionaries involved in the parole system. Section 28(1)(g) of the Constitution of the Republic of South Africa, 1996 (Constitution), on the other hand, provides that a child has the right not to be detained except as a measure of last resort and then only for the shortest appropriate period. Section 28(2) further provides that a child’s best interests are of paramount importance in every matter concerning the child. The question can then be raised: what effect do the above provisions have on the parole consideration of child offenders? Additionally, one can ask whether there is sufficient justification for a difference in parole treatment between child and adult offenders.

scholarly journals THE RULE OF LAW IN INDIAN ADMINISTRATIVE LAW VERSUS THE PRINCIPLE OF LEGALITY IN SOUTH AFRICAN ADMINISTRATIVE LAW: SOME OBSERVATIONS

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Radley Henrico
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Administrative Law ◽  
Indian Constitution ◽  
The Rule Of Law ◽  
Life Assurance ◽  
Equivalent Expression ◽  
The Republic ◽  
Principle Of Legality

The rule of law is expressly mentioned in the Constitution of the Republic of South Africa, 1996. The principle of legality has flourished in South African administrative law since its recognition and reception into our law in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). The Indian Constitution does not contain an equivalent expression of the rule of law. Notably, how persons and societies in India govern themselves is premised upon beliefs akin to the rule of law. Moreover, Indian administrative law has been strongly influenced by the theory of the rule of law as advocated by Dicey. Whilst Indian administrative law relies heavily upon the rule of law to judicially review conduct that is capricious, South African administrative law has come to rely on the incident of the rule of law, namely the principle of legality. This contribution inspects some of the reasons why the rule of law is heavily relied on in Indian administrative law – where it essentially mirrors the South African administrative law principle of legality. This contribution also suggests reasons as to why the principle of legality is so prevalent in South African administrative law as opposed to merely the rule of law as employed by the Indian courts in Indian administrative law.

scholarly journals THE RIGHT TO PRIVACY AND DRUG-TESTING IN SPORT IN SOUTH AFRICA: COULD THE NEW ZEALAND CASE OF CROPP V JUDICIAL COMMITTEE PROVIDE SOME GUIDANCE?

Obiter ◽  
2021 ◽  
Vol 34 (1) ◽  
Author(s):  
Jean Wilké
Keyword(s):  
South Africa ◽  
New Zealand ◽  
South African ◽  
Drug Testing ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
The Republic ◽  
The Right

This article examines the right to privacy of athletes who are required to submit to drug tests. In South Africa, the right to privacy of an athlete with regard to drugtesting has not been challenged in the courts. However, the courts in New Zealand have had an opportunity to examine the right to privacy of an athlete in terms of drugtesting in sport. Therefore, the article discusses whether the decision in the NewZealand case of Cropp v Judicial Committee may provide some guidance to South African courts in the adjudication of whether the infringement and the limitation on the right to privacy in the context of drug-testing in sport can be reasonable and justified and concludes that such infringement may be reasonable and justified if a court is to consider a limitation of the right to privacy in terms of section 36 of the Constitution of the Republic of South Africa, 1996 as well as consent and safety.

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