Taxpayer insolvent estates: Constitutional juristic persons?

Author Fareed Moosa

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 136 Issue2, p. 361-383


Section 8(4) of the Bill of Rights confers on juristic persons an entitlement to constitutional rights. In this context, ‘juristic person’ has an imprecise meaning. No hard and fast rules can be laid down in advance as to which entities will qualify for the benefits of s 8(4). Each claim to an entitlement must be adjudicated on its merits. This article argues that, for purposes of s 8(4), recognition as a person in the eyes of either the common law, customary law, legislation or the Bill of Rights ought to lie at the heart of our constitutional conception of ‘person’. Having regard to the transformative potential of s 8(4), and applying grammatical, contextualist, purposive and teleological techniques of interpretation, this article advocates that the notion of ‘person’ under s 8(4) is not confined to the traditional common-law notion applied in private law. Rather, constitutional persons include entities recognised in legislation as persons with legal personality. Accordingly, this article concludes that taxpayer insolvent estates, designated as persons under the fiscal laws of South Africa, qualify in this capacity as beneficiaries of s 8(4) so that, during tax administration by the South African Revenue Service and its officials, they may seek refuge in relevant entrenched rights.