Is Cryptocurrency ‘Property’ for Tax Administration Purposes?
Author: Fareed Moosa
Affiliations: Associate Professor, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 33 Issue 3, 2021, p. 364 – 383
Section 1(a) of the Constitution of the Republic of South Africa, 1996 stipulates that human dignity, the achievement of equality and the advancement of human rights and freedoms are foundational values of South Africa’s sovereign, democratic state. Aligned herewith is s 39(1) of the Constitution, which directs that every interpretation of the Bill of Rights must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. Therefore, the Constitution’s human rights ethos, culture and spirit is a dominant theme serving as a guide when the term ‘property’ is interpreted in the context of the privacy clause (s 14(b)) and the property clause (s 25). This article argues that by applying a purposive cum contextual cum grammatical cum teleological interpretive methodology, the concept ‘property’ in ss 14(b) and 25(1) of the Constitution goes beyond the conventional ambit of common-law property. It is argued that, for constitutional purposes during tax administration, property also encompasses intangible property in the form of Bitcoin and possibly other cryptocurrencies owned by taxpayers, which represent legal interests worthy of constitutional protection during tax administration by the South African Revenue Service.