Evaluating the TAA's provisions on the protection of personal information

Abstract

An individual's right to privacy is specifically recognised in Section 14 of the Constitution of South Africa (1996) (the Constitution). South Africa is one of a few countries that explicitly recognise the right to privacy in their constitution. The need for privacy and safeguarding to protect the right to privacy is important for every individual, especially in an era where data is being processed automatically and entities hold substantial amounts of information. The South African Revenue Service (SARS), the only receiver of revenue for the South-African government, holds substantial information about all taxpayers. The Protection of Personal Information Act 4 of 2013 (POPI Act) was introduced to determine safeguards and limitations to the processing of personal information, and if an entity is permitted to process personal information, what safeguards have to be implemented to ensure the information is processed lawfully and also kept secret. This literature review aimed to answer the research question, which analysed the provisions of the Tax Administration Act 28 of 2011 (TAA) to the requirements of the POPI Act and to determine if these provisions are satisfactory to honour the constitutional right to privacy. This study aims to consider the TAA provisions that address taxpayers' right to protect their private information in terms of the POPI Act and The Bill of Rights and identify possible amendments to the TAA to address these rights. The analysis consisted of comparing the provisions set out in the TAA to the provisions set out in the POPI Act. Based on the analysis of the provisions set out in the TAA and comparing these provisions to the POPI Act, recommendations were proposed through comparison with the Australian legislation. This study found that the TAA aligns with most of the provisions in the POPI Act to balance the constitutional right to privacy. However, disclosing taxpayer information to other third parties could infringe on two of the taxpayer's constitutional rights depending on the information obtained. Areas for improvement have also been identified pertaining to protecting taxpayers' right to privacy, possible amendments to the TAA, and suggestions for further studies on this topic. The value this study created was to assist the taxpayer in having peace of mind regarding their sensitive information and that the TAA does adhere to the provisions of the POPI Act, which sole purpose is to give effect to the constitutional right to privacy.