'Constitution has had most dramatic impact'

In terms of the most significant development over the past 40 years, from a legal perspective it is hard to choose between the containerisation of cargo or the promulgation of the final Constitution of the Republic of South Africa in 1996. Practically, containerisation probably has been the most significant freight development, but the Constitution has dramatically affected our country as a whole. The Bill of Rights, which is enshrined in chapter 2 of the Constitution, enumerates the civil, political, economic, social and cultural human rights of the people of South Africa. It also expressly incorporates the Rule of Law as a fundamental cornerstone of our democracy. The significance of this is that the Rule of Law and Bill of Rights, as we have already seen, has had a dramatic influence on procedural fairness, the right to transparency and reasons for administrative action and acting as a constraint upon behaviour of government officials. It has changed many aspects of the administration of Revenue laws. Apart from rights to access to information in terms of section 32 and just administrative action in terms of section 33 of the Constitution, it has given rise to other legislation which significantly expands on these rights, for instance the Promotion of Administrative Justice Act and the Promotion of Access to Information Act. Other developments include the Consumer Protection Act and the National Credit Act. Portions of legislation, like section 114 and recently section 4 of the Customs and Excise Act, have been struck out as being in conflict with the Constitution. Most disputes are in some way affected by the rights enshrined under the Constitution. Affected parties now have a right to reasons, a right to information, an opportunity of response prior to demands being issued, a right to be informed of the allegations against them, a need for a search warrant save for routine audits and the like. Any government official’s behaviour is now subject to the constraints of the Constitution. The elements of procedural fairness are reflected in appeal procedures that have been dramatically enhanced and the Commissioner even now has the right in appropriate cases to settle matters and waive revenue. ‘Cut the red tape’ Our wish for the future is that government and our Revenue authorities, who after all are constrained by policy, move towards an easier business environment. Successful businesses spend time and effort in finding out what breeds success and then adopting strategies, engaging the right people and developing an ethos or culture that will ensure success. As a country, we need to do the same thing. South Africa needs to guard against overregulation. It has been said that where there are too many laws, people lose respect for the law. It also becomes economically stifling and ultimately counterproductive. Industry must engage with government to work towards a practical proactive approach and a more business-friendly regulatory environment. Ultimately if this can be achieved the state will earn greater revenues. INSERT & CAPTION South Africa needs to guard against over-regulation. It has been said that where there are too many laws, people lose respect for the law. – Quintus van der Merwe