The constitutionality of retroactive tax legislation

Abstract

In the constitutional dispensation in South Africa, the powers of the legislature flow from the constitution. Such powers must be exercised in a manner that aligns with the constitution. Consequently, retroactive taxation legislation must conform to the constitution. This mini-dissertation discusses the question whether retroactive taxation legislation is constitutionally valid. The constitutional validity of retroactive taxation legislation is tested through a discussion of the rule of law, the right to property and foreign law. The rule of law is a foundational value of the constitution and as such, it must be reflected in legislative measures. Whether the legislature is upholding the rule of law when enacting retroactive tax legislation is an issue that is discussed in the mini-dissertation. In addition, the rulings of the judiciary must also be informed by the rule of law, the role of the judiciary is also discussed. This study also discusses whether retroactive tax legislation constitutes a deprivation of property of the taxpayers. Furthermore, this study discusses whether retroactive tax legislation amounts to an arbitrary deprivation of property. The limitations clause is also discussed. This research also details the approach of foreign jurisdictions to retroactive tax legislation; this is done because the Constitution directs that the courts may consider foreign law when interpreting the Bill of Rights. Retroactive tax legislation is not prohibited in any of the considered foreign jurisdictions. Furthermore, this study finds that South Africa is distinguishable from the foreign jurisdictions based on the limitations clause of the constitution. Lastly, the writer provides a short summary and conclusion of this research.