The role of administrative justice in the realm of the commissioner's discretionary decisions as provided for by the Tax Administration Act 28 of 2011

Abstract

The South African Revenue Service (“SARS”) is an organ of state in terms of the South African Revenue Service Act. SARS is mandated to administer the collection of tax The Commissioner for the South African Revenue Service (“CSARS”) is granted certain discretionary powers. This study focuses on two of these discretions as contained in the Tax Administration Act 28 of 2011, as amended (“the TAA”) - the granting of a suspension of payment of outstanding tax (“suspension”), and the waiver of interest and penalties imposed on a taxpayer (“waivers”). In the exercise of these discretions, the CSARS must also uphold the Constitution of the Republic of South Africa (“the Constitution”). The Constitution is the supreme law of the Republic of South Africa (‘the Republic”) and contains the Bill of Rights. As the cornerstone of the Republic’s democracy, the Bill of Rights affirms the values of human dignity, equality and freedom of all the people living in the Republic’s, and expressly sets out that it binds all organs of state. One important right contained in the Bill of Rights is the right to lawful, reasonable and procedurally fair administrative action. This right is given effect to in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). This study evaluates firstly, the CSARS’ discretionary powers to grant suspension and waivers; secondly, the provisions of administrative justice with specific focus on PAJA and thirdly, the role administrative justice plays in the CSARS’ exercise of his discretions.