Plan to raise South Africa’s taxes will backfire: analysis

xrapidx

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Feb 16, 2007
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More people will just say **** it - and leave. We're borderline already, one foot out the door.
 

konfab

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“The ethical and legal arguments against taxes that do indeed serve a utilitarian goal is beyond the scope of this article. However, it is evident that even on pragmatic grounds, increasing tax rates or introducing new taxes is arbitrary and likely to be unconstitutional.”

How do you prove a tax is unconstitutional?
You look at the constitution. Specifically section 1.

To simplify, the Rule of Law means that society is governed by proper law, and not by the whims of man. The whims of man often take the form of law, but lack the legitimate character of law. (Indeed, do not confuse rule by law with the Rule of Law.) Proper law are rules informed by reason, evidence, and the time-tested principles of law, like rigidity, predictability, certainty, and proportionality. Libertarians would add to this and say that proper law are those rules which have a basis in the social contract: That government exists only to protect people and their property, and that in return people have sacrificed their natural ability to be violent in pursuit of their goals.

The Rule of Law is formally entrenched in South African law per section 1(c) of the Constitution, which states that South Africa is founded on the supremacy of the Constitution and the Rule of Law. But while the supremacy of the Constitution has seen relatively broad recognition, the co-equal supremacy of the Rule of Law has been afforded lip-service. From Herman Mashaba dropping “the rule of law must be upheld!” in every new Facebook post to Jacob Zuma ostensibly calling for the Rule of Law to be respected (but thinking it can somehow be ‘changed’ in Parliament), everyone knows about the Rule of Law, but very few people think of it as something consequential.

Research done by the Free Market Foundation appears to indicate that virtually all legislation passed by Parliament violates at least one tenet of the Rule of Law. For instance, essentially all laws which empower executive officials to make decisions, like create regulations or ‘determinations’, does so without any guiding criteria (save perhaps for the cop-out “public interest” criterion), meaning that it is the whim of man rather than the Rule of Law which governs in that particular respect. From mining licenses, to private school licenses, to healthcare regulations, officials have all the discretion in the world, and, in effect, create law which we must abide by. This latter function is supposed to be the domain of Parliament, not officials.

This, obviously, enables corruption.

If a regulator has the power to revoke or not renew a license without having to adhere to any strict criteria, it follows that companies will not want to sour their relationship with the regulator. It follows that bribes become a very likely occurrence. Arbitrariness and corruption are two sides of the same coin.

The courts, too, have tended to ignore the Rule of Law under the guise of ‘deference’. They endorse a minimalist notion of the Rule of Law whereby Parliament or the executive must simply act in accordance with the provisions of existing legislation, regardless of whether the legislation itself violates the Rule of Law. Where the courts have admitted that legislation violates the Rule of Law, like the Currency and Exchanges Act, they have refused to declare them unconstitutional, because, for some reason or another, the courts are unwilling to put two and two together, and understand that the Constitution provides for the co-equal supremacy of both the Constitution and the Rule of Law. It must, thus, follow that anything inconsistent with the Rule of Law is unlawful.
https://rationalstandard.com/nature-government-flaw-south-africa-constitution/

To give you a TL;DR, section 1 of the constitution implies that laws have to be written in a certain way to satisfy the criteria of the rule of law. In particular the laws are not allowed to be arbitrary or written in such a way that they will never be able to be fulfilled. Raising new taxes to fund the NHI, a project that the government's own trials say will completely fail, is simply arbitrary.

The evaluation was conducted from November 2017 to 2018 by private consultancy Genesis Analytics with support from PwC, the Centre for Health Policy at Wits University and Insight Actuaries and Consultants. But due to problems with data quality, it cannot be concluded that the NHI pilot projects, which cost more than R4bn over five years, improved each district’s overall health.
https://www.businesslive.co.za/bd/national/2019-07-28-nhi-pilot-projects-reveal-deep-problems/
 

Scooby_Doo

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Sep 4, 2005
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6,552
You look at the constitution. Specifically section 1.


https://rationalstandard.com/nature-government-flaw-south-africa-constitution/

To give you a TL;DR, section 1 of the constitution implies that laws have to be written in a certain way to satisfy the criteria of the rule of law. In particular the laws are not allowed to be arbitrary or written in such a way that they will never be able to be fulfilled. Raising new taxes to fund the NHI, a project that the government's own trials say will completely fail, is simply arbitrary.


https://www.businesslive.co.za/bd/national/2019-07-28-nhi-pilot-projects-reveal-deep-problems/
But based on what you quoted, our courts will never strike anything down based on Rule of Law vs Rule by Law. So what difference does it make, ANC will just tax more.
 

konfab

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Jun 23, 2008
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But based on what you quoted, our courts will never strike anything down based on Rule of Law vs Rule by Law. So what difference does it make, ANC will just tax more.
That is because it hasn't really been challenged yet.

One of the things that has been happening recently is that because the ANC is starting to loose grip, civil society has been taking off. Outa for example was highly effective in shooting nails into the coffin of E-tolls. The scope of NHI and EWC are rallying a lot of these civil society organisations together.
 
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