A Deceased Taxpayer: ‘Juristic Person’ for Constitutional Purposes?

Author Fareed Moosa

ISSN: 1996-2185
Affiliations: Associate Professor and Head of the Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 51 – 74


The central hypothesis of this article is that a grammatical, purposive, contextual cum teleological interpretation of ‘person’ and, by extension, ‘juristic person’ in section 8(4) of the Constitution of the Republic of South Africa, 1996 leads to the conclusion that these terms are not derived from their common-law lineage. Accordingly, it is argued that a deceased estate is, as a statutory person for tax purposes, imbued with constitutional personality, a species of legal personality, separate from that of its executor. Consequently, a deceased estate ought, as a taxpayer, to be a holder of rights entrenched in the Bill of Rights. This interpretation underscores the Bill of Rights as a cornerstone of democracy and enables it to live up to its transformative pedigree. This article argues further that a contrary interpretation, particularly for tax administration purposes, is undesirable for various reasons: first, it would exclude constitutional protection for interests that are deserving of protection; secondly, the common-law concept of person would be excluded from constitutional scrutiny which is necessary to ensure that it accords with constitutional norms and standards; and thirdly, extending the concept of person for constitutional purposes beyond its common-law realm will ensure that section 8(4) is not an obstacle to transformation and equality, but central to its achievement regarding the content of ‘juristic person’ in its constitutional setting.