Does the bill of rights apply extraterritorially for tax administration purposes

Author Fareed Moosa

ISSN: 1996-2193
Affiliations: University of the Western Cape
Source: Stellenbosch Law Review, Volume 31 Issue 1, 2020, p. 37 – 54


South Africa’s (“SA”) tax laws have extraterritorial effect, particularly considering Parliament’s ratification of the Convention on Mutual Administrative Assistance in Tax Matters dated June 2011, as amended, which was gazetted into law with effect from 1 March 2014. As such, SARS is empowered to enforce its tax collection powers under the Tax Administration Act 28 of 2011 on foreign soil in relation to SA taxpayers located there. This raises the question of whether taxpayers outside SA’s geographical limits are entitled to the protection of the Bill of Rights (“BOR”) as far as this charter applies to taxpayers. The majority of the Constitutional Court, in Kaunda v President of the Republic of South Africa (“Kaunda”), held that the BOR is territorially bound and has no application beyond SA’s borders. This decision, if applied rigidly, has the undesirable effect that taxpayers on foreign soil cannot assert fundamental rights against SARS or its foreign agents during tax administration processes occurring outside SA, even though such rights would be available to those taxpayers if the tax administration occurred in SA. This article argues that, despite the majority judgment in Kaunda, a sound legal basis exists to hold that all foreign-based South African taxpayers are entitled to BOR protection.