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THE PRESUMPTION OF GUILT CREATED BY SECTION 235(2) OF THE TAX ADMINISTRATION ACT: A CONSTITUTIONAL AND COMPARATIVE PERSPECTIVE

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This research examined the legal nature of the presumption of guilt created by section 235(2) of the South African Tax Admiration Act and considered whether or not its practical application violates the taxpayer’s fundamental right contained in section 35(3) of the Constitution, which gives every accused taxpayer the right to a fair trial, including the right to be presumed innocent. The research also provided clarity on the constitutionality of this presumption because it has been widely been criticised for unjustifiably violating the taxpayer's constitutional right to a fair trial. The conclusion reached is that the presumption created by section 235(2) of the Tax Administration Act constitutes an evidentiary burden rather than a reverse onus. It does not create the possibility of conviction, unlike a reverse onus where conviction is possible, despite the existence of a reasonable doubt. Therefore, it does not violate the accused taxpayer’s the right to a fair trial and the right to be presumed innocent and hence it is constitutional. Accordingly, the chances that the accused taxpayer will succeed in challenging the constitutionality of section 235(2) of the Act are slim.
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  1 THE PRESUMPTION OF GUILT CREATED BY SECTION 235(2) OF THE TAX ADMINISTRATION ACT: A CONSTITUTIONAL AND COMPARATIVE PERSPECTIVE  A mini thesis submitted in partial fulfilment of the requirements for the degree of MASTER OF COMMERCE (TAXATION) of RHODES UNIVERSITY  by FARAI FAIFI January 2014  2 DECLARATION I, Farai Faifi , declare that the work presented in this dissertation is srcinal. It has never  been presented to any other University or Institution. Where other people’s works have  been used, references have been provided. It is in this regard that I declare this work as srcinally mine. It is hereby presented in partial fulfilment of the requirements for the award of the Master of Commerce (Taxation). Signed………………………………. Date………………………………….  3 ABSTRACT This research examined the legal nature of the presumption of guilt created by section 235(2) of the South African Tax Admiration Act and considered whether or not its practical application violates the taxpayer’s fundamental right contained in section 35(3) of the Constitution, which gives every accused taxpayer the right to a fair trial, including the right to be presumed innocent. The research also provided clarity on the constitutionality of this presumption because it has been widely been criticised for unjustifiably violating the taxpayer's constitutional right to a fair trial. The conclusion reached is that the presumption created by section 235(2) of the Tax Administration   Act constitutes an evidentiary burden rather than a reverse onus. It does not create the possibility of conviction, unlike a reverse onus where conviction is possible, despite the existence of a reasonable doubt. Therefore, it does not violate the accused taxpayer’s the right to a fair trial and the right to be presumed innocent and hence it is constitutional. Accordingly, the chances that the accused taxpayer will succeed in challenging the constitutionality of section 235(2)   of the Act are slim. Key words    Onus of proof     Reverse burden of proof     Evidentiary burden    Presumption of innocence    Presumption of guilt    Constitutionality  4 ACKNOWLEDGEMENTS First and foremost I would like to thank the Almighty God, for giving me strength and the determination to undertake this project. Without His blessings, this work would never have  been possible. To my friends Paidashe, Chengete, Rumbidzai, Abigail, Shema, Fredy and Filda thank you guys for good time and the never ending laughing sessions. Your support and encouragements made my life richer. Another special thanks to Desmond Jaricha, Martin Mutandwa and Godknows Mudimu for those Fifa games and friendly chats after a stressful moment with my thesis. I owe a special gratitude to the greatest supervisor ever, Professor E. Stack for her unwavering support, guidance and assistance throughout the year. My experience with you has been positive since day one. May God bless you abundantly. Another special thanks to Lucky and Sindi in the Law Library for assisting me in conducting my research. May God  bless you. Lastly I would like to thank every member of my family for the financial, social and spiritual support towards advancement of my education. Takudzwa Bervely Machinda (Mai Ruvimbo) words only cannot express how much grateful I am for the encouragement and support.
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