Thesis Chapters by Dr Fareed Moosa
REVENUE LAW JOURNAL, 2018
Grammatical, purposive, contextual, teleological and comparative interpretations are the most com... more Grammatical, purposive, contextual, teleological and comparative interpretations are the most commonly used modalities for construing statutory texts. In Australia, interpretation of tax laws involves a combination of taking account of the law-text, its context, and its underlying purpose or policy. Ultimately, the meaning ascribed must be that which best reflects and gives effect to the legislature’s intention as emerging from the statute. A value-based (teleological) interpretive approach does not, as yet, have a strong foothold in Australian jurisprudence, except to a limited extent under, for example, s 30 of the Human Rights Act 2004 (ACT) and s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In South Africa, on the other hand, the basic approach to interpreting tax legislation is that its words are to be construed by reading and understanding the whole text in the light of its broader context. A meaning assigned must be appropriate and consistent within the limits of (i) the language of the text, (ii) the context and purpose of the text, (iii) the overall objectives of the legislation, and (iv) the relevant values and/or fundamental rights arising from the Constitution, 1996. As a result of the Constitution’s supremacy and the provisions of s 39(2) therein, the meaning ascribed to a law-text must be that which, all legally relevant things considered, best promotes the spirit, purport and objects of the Bill of Rights.
Section 39(2) of the Constitution of the Republic of South Africa, 1996 directs that when any leg... more Section 39(2) of the Constitution of the Republic of South Africa, 1996 directs that when any legislation is interpreted, the result must be a construction that promotes ‘the spirit, purport and objects of the Bill of Rights’. The Constitution omits defining the contours of this phrase. Its precise meaning has also not been the subject of a comprehensive exposition by South African courts. Thus, uncertainty exists as to the exact import of this imprecise, somewhat vague phrase. What is clear is that the Constitution differentiates between the ‘spirit’, the ‘purport’ and the ‘objects’ of the Bill of Rights. Therefore, they must bear different meanings for its purposes. The absence of a definition that demarcates the scope and ambit of these constitutional imperatives increases the difficulty in applying them, particularly also because they may mean different things to different people. To ensure legal certainty, a tenet of the rule of law, it is important to develop a common understanding of the ‘spirit’, purport and objects of the Bill of Rights’ and of that which must be fostered or advanced (‘promoted’). However, as this article will demonstrate with reference to judicial precedent and relevant legal cum constitutional principles, they do not lend themselves to easy interpretation. This probably also explains the absence of a fixed definition thereof in SA’s constitutional architecture and jurisprudence. Hence, this article does not seek to, nor will it, carve out a finite definition of the constituent elements at the epicentre of the interpretive directive in section 39(2) of the Constitution.
DE JURE LAW JOURNAL, 2018
Public finance is vital for enabling effective governance, maintaining law and order, promoting p... more Public finance is vital for enabling effective governance, maintaining law and order, promoting peace and prosperity, facilitating the reconstruction and redevelopment of national infrastructure, and providing access to social goods (such as, education and social security). Efficient and effective tax administration is an essential pillar of a modern, democratic state. This article aims to show that the Tax Administration Act 28 of 2011 (TAA) is unmistakably aimed at advancing the public interest. The kernel of its aims is ensuring the proper collection of tax. This purpose is reconcilable with the principle in South Africa's Constitution (s 195(1)) requiring efficiency in public administration, of which tax administration forms an integral part. Furthermore, the aims of the TAA are consistent with the South African Revenue Service Act (s 3) stating that SARS’s objective is the “efficient and effective collection of revenue”. In so doing, the TAA serve to enhance fulfilment of the Constitution’s underlying goals. This is so because the TAA is geared towards ensuring the availability of adequate public resources for public benefit or use in the public interest.
INSURANCE AND TAX JOURNAL, 2017
Proper tax administration ensures the availability of adequate funds that will enable a governmen... more Proper tax administration ensures the availability of adequate funds that will enable a government to fulfill its obligations to its citizenry. Efficient management of public finances is crucial to building and maintaining public confidence in any government. In South Africa, the Auditor General’s Report of 2016 highlighted recurring instances of financial mismanagement, fraud, corruption, nepotism, tender irregularities, incompetence and poor service delivery by public officials that leads to a lack of faith in the elected government and feeds the perception that tax revenues are wasted. This fosters reluctance by taxpayers to pay their fair share of tax. This undermines the cultivation of a voluntary tax compliance culture. This article aims to demonstrate the importance of protecting a democracy, such as in South Africa, with sound tax policies and good tax administration strategies.
SOUTH AFRICAN MERCANTILE LAW JOURNAL , 2013
This article interprets the scope of the expression "necessarily incurred" as it is used in secti... more This article interprets the scope of the expression "necessarily incurred" as it is used in section 18 of the Income Tax Act 58 of 1962 in South Africa.
Insurance and Tax Journal, 2017
This article argues that a modicum of trust between the State and its citizenry with go a long wa... more This article argues that a modicum of trust between the State and its citizenry with go a long way to averting a tax revolt. Patriotism and responsibility are key values of South African society traceable to, inter alia, section 3(2) of its Constitution. This provision recognises that whilst citizens are, on the one hand, equally entitled to the rights, benefits and privileges of citizenship they are, on the other hand, equally obliged to fulfil the responsibilities of citizenship. This article argues that this constitutional provision, at a minimum, embraces the notion that political freedom and democracy is accompanied by certain responsibilities (such as contributing to the cost of governance through taxation).
Journal of Forensic, Legal and Investigative Science, 2017
Under the Tax Administration Act, complaints by taxpayers are
subject to investigation by the Tax... more Under the Tax Administration Act, complaints by taxpayers are
subject to investigation by the Tax Ombud. It is an ‘organ of state’
that must respect, protect and promote the rights to which taxpayers
are entitled by any law. In the execution of its functions, the Tax
Ombud must adhere to the values and principles enumerated in s
195(1) of the Constitution, 1996. As creations of statute, the Tax
Ombud is imbued with only those powers and functions conferred
by legislation. Under the prevailing tax laws, the Tax Ombud suffers
from short-comings which, ultimately, may hinder its ability to be
an effective protector of taxpayer rights. These include that the Tax
Ombud can only make non-binding recommendations and it is not
governed by its own Tax Ombud Act which confers a defined legal
status, including the power to litigate. The Tax Ombud is presently in
its infancy so that its efficacy as a protector of rights remains unclear
and will only be revealed in the fullness of time. However, to give the
Tax Ombud more bite as a custodian of rights will require additional
powers to be conferred on it of the kind proposed in this article.
Tax Planning, 2017
Effective and efficient tax collection is vital for the financial well-being of South Africa. Und... more Effective and efficient tax collection is vital for the financial well-being of South Africa. Under section 3 of the South African Revenue Service Act 34 of 1997, this is the sole objective of SARS. By virtue of section 8(1) of the Constitution, 1996, SARS is an organ of state that is bound by the South African Bill of Rights. This article analyses SARS's organisational structure and operational autonomy with a view to considering whether it sufficiently enables SARS to fulfil its statutory mandate.
The Office of the Tax Ombud is a recent creation of the Tax Administration Act 2011. The provisio... more The Office of the Tax Ombud is a recent creation of the Tax Administration Act 2011. The provisions of this Act reflects an unacceptably high level of executive control over the affairs of the Tax Ombud. This article explores the degree to which the Tax Ombud remains independent under the law prevailing at the relevant time.
Insurance & Tax Journal, 2017
The Constitution of South Africa, 1996 seeks to strike a fair balance, on the one hand, between r... more The Constitution of South Africa, 1996 seeks to strike a fair balance, on the one hand, between restorative and corrective social justice, enhancing human dignity and equality through the fulfilment of human rights and, on the other hand, the financial means required for attaining these goals. Therefore, this article shows that taxation is a precondition for the maintenance of democracy and for the advancement of human rights and freedoms. But for revenue derived from taxation, achieving substantive (or real) equality in South Africa will remain no more than a communal aspiration penned on paper.
Insurance & Tax Journal, 2017
In South Africa, taxpayers' rights are not classified under any special category of rights (such ... more In South Africa, taxpayers' rights are not classified under any special category of rights (such as human rights). Unlike various western democracies, South Africa does not have a unitary code, bill or other thematic charter of taxpayers' rights. For tax administration purposes, taxpayers are conferred an array of rights from a variety of legal sources. This includes the Bill of Rights in the Constitution, 1996. To the extent that natural persons who are taxpayers enjoy fundamental rights vis a vis SARS during tax administration, it may be said that taxpayers' rights are human rights. However, as a general class of rights, this paper contends that taxpayers' rights are not human rights.
Taxation is fundamental for development in South Africa (SA), a developing country with an emergi... more Taxation is fundamental for development in South Africa (SA), a developing country with an emerging economy in which taxation is essential to capacitate the government so that it can fulfil its mandate under the Constitution of the Republic of South Africa, 1996 (Constitution). This mandate includes bringing about socio-economic transformation, part of transformative constitutionalism, through progressively realising socio-economic rights. This dissertation examines the way in which tax administration may take place efficiently and effectively with due respect for taxpayers’ rights. A clear link is shown between taxation, human rights and the South African government’s responsibilities to attain its transformation targets. To facilitate this process, the Constitution creates a legal framework for the imposition of tax and for the equitable distribution of tax revenue among the three spheres of government. For historical, political and other reasons, South Africans generally, as happens elsewhere in the world, lack a strong culture of voluntary tax compliance. Wilful non-payment of tax is antithetical to the values of democracy, ubuntu and the rule of law. Tax non-compliance minimises revenue collected from taxation. This, in turn, hinders the attainment of transformation in all its facets. A pressing need exists for laws that, on the one hand, promote tax morality and, on the other, strengthen the South African Revenue Service (SARS) so that it can effectively administer SA’s national tax system (or grid). To this end, the Tax Administration Act 28 of 2011 (TAA) is pivotal. It regulates tax administration, a part of public administration. Under the Constitution, SARS is obliged to execute its functions in a manner respectful of taxpayers’ rights and that upholds the Constitution’s values and democratic principles. Consequently, the TAA must strike a fair balance between, on the one hand, protecting taxpayers’ rights and, on the other, arming SARS with adequate powers with which it can effectively combat the mischief of tax non-compliance. This dissertation shows that, when viewed through the prism of s 36 of the Bill of Rights (BOR), the powers conferred on SARS by ss 45(1), (2), 63(1) and (4) of the TAA to conduct warrantless inspections and searches, as the case may be, limit taxpayers’ rights to, inter alia, privacy. It concludes that, whilst ss 63(1) and (4) ought to pass muster, ss 45(1) and (2) are susceptible to a declaration of invalidity under s 172(1) of the Constitution.
Papers by Dr Fareed Moosa
Insurance and Tax Journal, 2018
This article shows, on the one hand, that the Bill of Rights protects taxpayers' dignity (section... more This article shows, on the one hand, that the Bill of Rights protects taxpayers' dignity (section 10) and bodily integrity (section 12); on the other hand, it demonstrates that human dignity is a foundational value which must inform the interpretation of any fiscal provision that permits SARS to encroach on taxpayers' rights. This is particularly important when the rights to dignity and bodily integrity are restricted. In such circumstances, under section 36(1)(a) (e) of the Constitution, the limitation is valid if it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom having regard to, inter alia, the nature and extent of the limitation, the importance of its purpose, the relation between the encroachment and its purpose, and the availability of less restrictive means to achieve the purpose.
INSURANCE AND TAX JOURNAL, 2018
Tax administration is a service rendered for public benefit in which a taxpayer is a client of SA... more Tax administration is a service rendered for public benefit in which a taxpayer is a client of SARS entitled to a quality service that is accurate, courteous, efficient, honest, helpful, polite, punctual, prompt and professional. This article demonstrates that, by virtue of taxpayers' rights entrenched in the Bill of Rights, tax administration generally, and the search of taxpayers' premises and seizure of their property in particular, must occur in a manner that is considerate, decent, dignified, ethical, fair, humane, lawful, respectful and unbiased.
The Tax Administration Act 28 of 2011 confers on the South African Revenue Service wide powers of... more The Tax Administration Act 28 of 2011 confers on the South African Revenue Service wide powers of investigation, including to search and seize taxpayers' property without a warrant. This article discusses the relevant provisions and their implications.
When submitting information to the South African Revenue Service, taxpayers are obliged to ensure... more When submitting information to the South African Revenue Service, taxpayers are obliged to ensure that they are not guilty of non-disclosure of material facts. This article discusses this obligation and its import within the context of the Income Tax Act.
The rule that taxpayers have freedom to plan their financial affairs in tax efficient ways is wel... more The rule that taxpayers have freedom to plan their financial affairs in tax efficient ways is well-established in South Africa. This article discusses the impact of two cases dealing with taxpayers seeking to claim tax deductions for expenses incurred in the carrying on of a trade.
In civil litigation conducted in South Africa, a litigant may under certain circumstances withdra... more In civil litigation conducted in South Africa, a litigant may under certain circumstances withdraw an admission contained in a pleading. This article discusses the requirements which are to be complied with for such a withdrawal to be effected.
Teaching Documents by Dr Fareed Moosa
Criminal Court practice in South Africa requires practitioners to be familiar with basic rules an... more Criminal Court practice in South Africa requires practitioners to be familiar with basic rules and principles. The notes herein are presented to candidates to assist in their preparation for the Attorneys' admission exams in criminal practice.
On 28 September 2018, Dr FAREED MOOSA presented a lecture on practical legal training in the fiel... more On 28 September 2018, Dr FAREED MOOSA presented a lecture on practical legal training in the field of criminal law in South Africa. These notes were prepared by Dr Moosa and presented to attendees at the course.
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Thesis Chapters by Dr Fareed Moosa
subject to investigation by the Tax Ombud. It is an ‘organ of state’
that must respect, protect and promote the rights to which taxpayers
are entitled by any law. In the execution of its functions, the Tax
Ombud must adhere to the values and principles enumerated in s
195(1) of the Constitution, 1996. As creations of statute, the Tax
Ombud is imbued with only those powers and functions conferred
by legislation. Under the prevailing tax laws, the Tax Ombud suffers
from short-comings which, ultimately, may hinder its ability to be
an effective protector of taxpayer rights. These include that the Tax
Ombud can only make non-binding recommendations and it is not
governed by its own Tax Ombud Act which confers a defined legal
status, including the power to litigate. The Tax Ombud is presently in
its infancy so that its efficacy as a protector of rights remains unclear
and will only be revealed in the fullness of time. However, to give the
Tax Ombud more bite as a custodian of rights will require additional
powers to be conferred on it of the kind proposed in this article.
Papers by Dr Fareed Moosa
Teaching Documents by Dr Fareed Moosa
subject to investigation by the Tax Ombud. It is an ‘organ of state’
that must respect, protect and promote the rights to which taxpayers
are entitled by any law. In the execution of its functions, the Tax
Ombud must adhere to the values and principles enumerated in s
195(1) of the Constitution, 1996. As creations of statute, the Tax
Ombud is imbued with only those powers and functions conferred
by legislation. Under the prevailing tax laws, the Tax Ombud suffers
from short-comings which, ultimately, may hinder its ability to be
an effective protector of taxpayer rights. These include that the Tax
Ombud can only make non-binding recommendations and it is not
governed by its own Tax Ombud Act which confers a defined legal
status, including the power to litigate. The Tax Ombud is presently in
its infancy so that its efficacy as a protector of rights remains unclear
and will only be revealed in the fullness of time. However, to give the
Tax Ombud more bite as a custodian of rights will require additional
powers to be conferred on it of the kind proposed in this article.