ch2 taxation in south africa
Tuesday, 20 February 2024 20:31
outcomes of this chapter:
- explain the legislative process in south africa
- identify national taxes levied in south africa
- describe how tax acts are administered
- explain how tax law is interpreted
- illustrate how tax legislation is interpreted - normal tax calc
read through 2.2.1-2.4.1 in SILKE p.12-19
interpretation of tax law [SILKE p.18]
○ interpretation: every person has different views on the tax act therefore we need some sort of guidance
○ burden of proof: the taxpayer needs to have enough source documents or records to prove that he has paid his taxes for when they
want to deduct his tax
2.4.2. judicial(court) decisions [SILKE p.20]
1) when will a tax case be heard in a court of law?
where a taxpayer is aggrieved with his assessment, he may appeal if his objection has been disallowed. the tax
administration act provides for the following appeal route:
tax board tax court provincial divisions of the high court supreme court of appeal
2) the legal precedence principle
stare decisis rule is accepted in south africa - this rule entails the principle of legal precedence :. rule of law
established in a prior judgement is binding upon a lower court & that courts of equal rankings must follow their own
prior decisions.
3) what part of the decision creates legal precedence?
ratio decidendi: is the reason or ground for the decision of a court. this becomes a principle of law that may have
to be applied in future cases where the facts are similar.
4) can income tax decisions of foreign countries create legal precedence?
courts have frequently pointed out that the income tax decisions of other countries must be cautiously
approached, owing to differences in the basis of taxation applicable in foreign countries.
2.4.3. rules of interpretation [SILKE p.20]
i. the strict literal approach [aka the golden rule of interpretation]
the textual approach is also known as the golden rule of interpretation. the interpreter primarily concentrates on the
literal meaning of the words of the provision that must be interpreted to determine the purpose of the legislator.
when the statute is clearly, precisely and unambiguously expressed, the court is not entitled to do otherwise that
interpret those words in their ordinary & natural sense.
Partington v The Attorney General (1869 House of Lords)
Cape Brandy Syndicate v IRC (1921 King's Bench)
ii. the purposive approach
the contextual approach determines the purpose of the legislation by taking into account all surrounding circumstances
& resources. this approach considers the history of the provision, its broad objectives, the constitutional values
underlying it & its interrelationship with other provisions.
Glen Anil Development Corporation Ltd v SIR (1975 A)
CSARS v Airworld and Another (70 SATC 48)
iii. the objective approach
when interpreting legislation, the emphasis should be on considering both the context & the words of the provision, with
neither dominating the other. one should furthermore not impose one's own views as to what would have been sensible
for others to intend :. the process of interpretation should be an objective process
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
iv. the contra fiscum rule
in agreement with the spirit & purport of the bill of rights. this rule means that where a provision of the act is open to
more than one interpretation, the court must follow the interpretation that favours the taxpayer. the practical application
of this rule is illustrated with regard to s6A(3A) in par 7.2.2.
ch2 Page 1
Tuesday, 20 February 2024 20:31
outcomes of this chapter:
- explain the legislative process in south africa
- identify national taxes levied in south africa
- describe how tax acts are administered
- explain how tax law is interpreted
- illustrate how tax legislation is interpreted - normal tax calc
read through 2.2.1-2.4.1 in SILKE p.12-19
interpretation of tax law [SILKE p.18]
○ interpretation: every person has different views on the tax act therefore we need some sort of guidance
○ burden of proof: the taxpayer needs to have enough source documents or records to prove that he has paid his taxes for when they
want to deduct his tax
2.4.2. judicial(court) decisions [SILKE p.20]
1) when will a tax case be heard in a court of law?
where a taxpayer is aggrieved with his assessment, he may appeal if his objection has been disallowed. the tax
administration act provides for the following appeal route:
tax board tax court provincial divisions of the high court supreme court of appeal
2) the legal precedence principle
stare decisis rule is accepted in south africa - this rule entails the principle of legal precedence :. rule of law
established in a prior judgement is binding upon a lower court & that courts of equal rankings must follow their own
prior decisions.
3) what part of the decision creates legal precedence?
ratio decidendi: is the reason or ground for the decision of a court. this becomes a principle of law that may have
to be applied in future cases where the facts are similar.
4) can income tax decisions of foreign countries create legal precedence?
courts have frequently pointed out that the income tax decisions of other countries must be cautiously
approached, owing to differences in the basis of taxation applicable in foreign countries.
2.4.3. rules of interpretation [SILKE p.20]
i. the strict literal approach [aka the golden rule of interpretation]
the textual approach is also known as the golden rule of interpretation. the interpreter primarily concentrates on the
literal meaning of the words of the provision that must be interpreted to determine the purpose of the legislator.
when the statute is clearly, precisely and unambiguously expressed, the court is not entitled to do otherwise that
interpret those words in their ordinary & natural sense.
Partington v The Attorney General (1869 House of Lords)
Cape Brandy Syndicate v IRC (1921 King's Bench)
ii. the purposive approach
the contextual approach determines the purpose of the legislation by taking into account all surrounding circumstances
& resources. this approach considers the history of the provision, its broad objectives, the constitutional values
underlying it & its interrelationship with other provisions.
Glen Anil Development Corporation Ltd v SIR (1975 A)
CSARS v Airworld and Another (70 SATC 48)
iii. the objective approach
when interpreting legislation, the emphasis should be on considering both the context & the words of the provision, with
neither dominating the other. one should furthermore not impose one's own views as to what would have been sensible
for others to intend :. the process of interpretation should be an objective process
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
iv. the contra fiscum rule
in agreement with the spirit & purport of the bill of rights. this rule means that where a provision of the act is open to
more than one interpretation, the court must follow the interpretation that favours the taxpayer. the practical application
of this rule is illustrated with regard to s6A(3A) in par 7.2.2.
ch2 Page 1
