The application of the “reasonable suspicion of bias” test in relation to the appointment of a tax Ombud in South Africa

• Main Author: Tendayi, Tatenda Lovemore
• Format: Others
• Language: English
• Published: Rhodes University 2016
• Online Access: http://hdl.handle.net/10962/4190

The South African Parliament established a tax Ombud to act as an oversight body which reviews administrative complaints against SARS. Concerns have, however, been raised by academics and experts that the tax Ombud is not adequately independent of SARS so as to be able to investigate the complaints effectively and without bias. The manner in which the appointment, funding and staffing of the tax Ombud have been provided for, have been cited as the major sources of the perception of impartiality. According to decisions of the highest courts in South Africa, the “reasonable suspicion of bias” test must be applied in cases where institutional bias is alleged. The test investigates whether or not the reasonable person would suspect that the particular decision maker will be biased, due to institutional factors. After applying the “reasonable suspicion of bias” test to the model of the South African tax Ombud, the conclusion reached is that the model of the tax Ombud gives rise to a reasonable suspicion of bias. Notwithstanding the fact that the model gives rise to a suspicion of bias, it is concluded that the model, in its current form, remains fair as safeguards have been put in place by the legislature to ensure that fairness prevails. There is, however, international precedent which suggests that the sources of institutional bias can be eliminated completely from the model of the tax Ombud. Specifically, if the funding and staffing of the tax Ombud’s office is removed from SARS, the model of the tax Ombud would move closer to the ideal standards of fairness.