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[2022] ZAFSHC 327
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Motloung and Another v Commissioner for the South African Revenue Service and Others (5492/2021) [2022] ZAFSHC 327; 85 SATC 504 (21 November 2022)
FLYNOTES:
TAX AND DOUBLE JEOPARDY
Criminal
– Double jeopardy – Tax evasion – Understatement
penalty imposed by Commissioner – Criminal
charges for tax
evasion –
Tax Administration Act 28 of 2011
,
ss 222
and 235.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 5492/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between: -
KETSISE
MOTLOUNG
1st
Applicant
REATLEHISE
DEVELOPMENT CC
2
nd
Applicant
and
THE
COMMISSIONER FOR THE
SOUTH
AFRICAN REVENUE SERVICES
1
st
Respondent
MINISTER
OF FINANCE
2
nd
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
3
rd
Respondent
MINISTER
OF JUSTICE AND
CONSITITUTIONAL
DEVELOPMENT
4
th
Respondent
CORAM:
N. M.
MBHELE, AJP
HEARD
ON:
28 JULY 202
DELIVERED
ON:
21 NOVEMBER 2022
[1]
The applicants are seeking a declaratory order declaring
Section 235
and
222
(read with section 223) of the Tax Administration Act
28 of 2011 ( TAA) unconstitutional.
[2]
The relief sought by the applicants is on the following terms
and grounds:
2.1
declaring section 235 and 222 of TAA (read with section 223); to the
extent that it allows the first respondent [ hereafter
the
“Commissioner”] to criminally punish the taxpayer twice
for the same criminal offence of
intentional tax evasion:
inconsistent with the constitution and therefore invalid.
[3]
The gravamen of the applicants’ complaint is that the impugned
statutory provisions
in the TAA violate their rights to a fair trial
in that the applicants were already found guilty of intentional tax
invasion by
the Commissioner and a sanction was imposed in the
form of the understatement penalty. They, further, contend that in a
subsequent
criminal trial the taxpayer cannot tender a plea contrary
to the finding of the Commissioner, i.e. guilty of intentional tax
invasion.
[4]
The issue to be decided is whether or not the impugned Statutory
provisions are unconstitutional
and invalid. The application is
opposed by first and second respondents only. The third and fourth
respondents abide by the decision
of the court.
[5]
The facts in this matter are largely common cause. The second
applicant is registered
with the South African Receiver of Revenue
Services (SARS) as a Value Added Tax(VAT) vendor in terms of
the VAT Act 89 of
1991. The second applicant was obliged to submit
returns for remittance of VAT on the prescribed form every second
uneven month
as prescribed by the VAT Act.
[6]
The second applicant is also registered with SARS for Income Tax in
terms of the Income
Tax Act 58 of 1962 (ITA). During January
2019 SARS conducted a full scope audit of the second applicant for
VAT over the
period covering March 2014 to July 2018 and Corporate
Income Tax(CIT) for the 2015, 2016 and 2017 tax years. Over the
relevant
period, the second respondent had submitted all VAT and CIT
returns to SARS as zero returns, each of the returns indicated
that the second applicant had generated no income and incurred no
expenses.
[7]
SARS sent an audit finding letter to the applicants setting out the
findings of the
audit and afforded the applicants 21 days to provide
reasons why they did not agree with the findings. It further afforded
the
applicants 21 days within which to supply reasons why
understatement penalties should not be levied. The applicants did not
dispute
SARS’ calculation of tax liability.
[8]
The applicants admit that as a result of zero returns SARS suffered a
prejudice to
the amount of R819 607.09 on VAT and R493 600
on Income Tax. SARS levied 10 % late payment penalties
and
further imposed 150% understatement penalty on both Income Tax
and VAT. The 150% was imposed for intentional tax invasion.
[9]
On 15 October 2020, first and second applicants were criminally
charged for intentional
tax invasion. At the beginning of the trial
the applicants raised a special plea in terms of section 106 (1) (c)
of the Criminal
Procedure Act 51 OF 1977 ( CPA . The special plea was
dismissed on the grounds that the conduct of the Committee to levy
understatement
penalty does not constitute a conviction in terms of
the CPA.
[10]
The first and second respondent contend that the
issue of whether it is permissible to impose both the understatement
penalties and criminal penalties arising from the same conduct was
unsuccessfully argued in the criminal proceedings before the
Regional
Court. They submitted that instituting fresh proceedings
raising from the same issue is precluded by the doctrine
of issue
estoppel. They argued that the correct step to take after the
dismissal of the special plea is for the applicants to appeal
the
decision of the Regional Magistrate.
[11]
The primary purpose of
res judicata
is to
inculcate finality into litigation by precluding re-litigation of the
same issues twice between the same parties.
[12]
The requirements of res judicata are well
established: (1) the same parties; (2) the same cause of action;
and
(3) the same relief. In
Ascendis
Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and
Others
[1]
Khampepe,
J remarked as follows:
“
[69]
Res judicata
strictly means that a matter has already been
decided by a competent court on the same cause of action and for the
same relief between
the same parties. In
Evins
, Corbett JA
stated that:
“
Closely
allied to the ‘once and for all’ rule is the principle of
res judicata
which establishes that, where a final judgment
has been given in a matter by a competent court, then subsequent
litigation between
same parties, or their privies, in
regard to the same subject-matter and based upon the same cause of
action is not
permissible and, if attempted by one of them, can be
met by the
exceptio rei judicatae vel litis finitae
. The
object of this principle is to prevent the repetition of lawsuits,
the harassment of a defendant by a multiplicity
of actions and the possibility of conflicting decisions
[70]
In essence, the crux of
res judicata
is that where a cause of
action has been litigated to finality between the same parties on a
previous occasion, a subsequent attempt
to litigate the same cause of
action by one party against the other party should not be allowed.
The underlying rationale for this
principle is to ensure certainty on
matters that have already been decided, promote finality and prevent
the abuse of court processes.
[71]
The requirements of
res judicata
, although trite, can be
summed up as follows: (i) there must be a previous judgment by a
competent court (ii) between the same
parties (iii) based on the same
cause of action, and (iv) with respect to the same subject-matter, or
thing.
In a Lesotho case,
Masara
, the Court of
Appeal stated that the defence of
res judicata
requires that a
party must establish that the present case and the previous case are
based on the same set of facts that have been
finalised by a
competent court or tribunal by the same parties on the merits of the
same cause of action.”
[13]
In
Prinsloo
NO and Others v Goldex 15 (Pty) Ltd and Another
[2]
Brand
JA said the following:
‘
[10]
The expression 'res iudicata' literally means that the matter has
already been decided. The gist of the plea is that the matter
or
question raised by the other side had been finally adjudicated upon
in proceedings between the parties and that it therefore
cannot
be raised again. According to Voet 42.1.1, the exceptio was available
at common law if it were shown that the judgment in
the earlier case
was given in a dispute between the same parties, for the same relief
on the same ground or on the same cause (
idem actor
,
idem
res et eadem causa petendi
) (see eg National
Sorghum
Breweries Ltd (t/a Vivo African Breweries) v International Liquor
Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
SCA (
[2001] 1 All SA 417)
at 239F – H and the cases there cited).
[14]
In
Democratic
Alliance v Brummer
[3]
the court dealt with issue
estoppel and remarked as follows:
‘
[13]
The first question is to determine whether, as a matter of fact, the
same issue of fact or law which was determined by the
judgment of the
previous court is before another court for determination. This is so
because if the same issue (
eadem quaestio
) was not determined
by the earlier court, an essential requirement for a plea of
res
judicata
in the form of issue estoppel is not met. There is then
no scope for upholding the plea. It does not, however, necessarily
follow,
that once the inquiry establishes that the same issue was
determined, the plea must be upheld. That is so because the court
considering
the plea of issue estoppel is, in every case, concerned
with a relaxation of the requirements of
res judicata
. It must
therefore, with reference to the facts of the case and considerations
of fairness and equity, decide whether in that case,
the defence
should be upheld’
[15]
In the current matter the applicants are challenging the
constitutionality of specific
sections of the TAA. In the
Regional Court they raised a plea that in addition to the charges
levelled against them in that court,
SARS has already punished them
for the same offence by levying understatement penalties for
intentional tax evasion at 150%.
They were not challenging the
constitutionality of sections 222 and 235 of TAA.
[16]
Although the same issues that are raised in this application were
considered by the Regional
Court and arise from the same facts, the
type of relief the applicants are seeking in the current matter
differs from the one they
sought before the Regional Court. The
nature of the two matters are not the same. The fact that the
facts in both matters
overlap does not mean that the defence of issue
estoppel can be sustained. Even if the applicants were to appeal the
decision of
the Regional court, the issue of the constitutionality of
the impugned sections of TAA would remain unresolved. Therefore the
issue
estoppel does not arise in the current matter.
[17]
Double jeopardy is a universally recognised principle in many legal
systems across the world.
This principle stems from the rule that no
one may be punished for the same offence twice. The rule prevents
repeated prosecutions
for the same offence. It was introduced into
our legal system through common law and gained statutory recognition
in Section 106(1)
(c) of the CPA. The rule was endorsed in section
35(3) (m) of the 1996 Constitution of South Africa, 1996
[4]
as a fundamental right of the accused to a fair trial. The
subsection provides as follows:
“
Every
accused person has a right to a fair trial, which includes the right‒
… not to be tried for an offence in respect
of an act or
omission for which that person has previously been either acquitted
or convicted.”
[18]
Section 222 of the TAA provides:
1.
Understatement penalty
(1)
In the event of an ‘understatement’ by a taxpayer, the
taxpayer must pay, in addition to the ‘tax’ payable
for
the relevant tax period, the understatement penalty determined under
subsection (2) unless the ‘understatement’
results from
a
bona fide
inadvertent error.
(2)
The understatement penalty is the amount resulting from applying the
highest applicable understatement penalty percentage in
accordance
with the table in section 223 to each shortfall determined
under subsections (3) and (4) in relation to each
“understatement”.
(3)
The shortfall is the sum of—
(a)
the difference between the amount of ‘tax’ properly
chargeable for the tax period and the amount of ‘tax’
that would have been chargeable for the tax period if the
‘understatement’ were accepted;
(b)
the difference between the amount properly refundable for the tax
period and the amount that would have been refundable if the
‘understatement’ were accepted; and
(c)
the difference between the amount of an assessed loss or any other
benefit to the taxpayer properly carried forward from the
tax period
to a succeeding tax period and the amount that would have been
carried forward if the ‘understatement’ were
accepted,
multiplied by the tax rate determined under subsection (5).
(4)
(a) If there is a difference under both paragraphs (a) and (b)
of subsection (3), the shortfall must be reduced by the
amount of any
duplication between the paragraphs.
(b)
Where the ‘understatement’ is the failure to submit a
return, the ‘tax’ that
resulted from the
‘understatement’, had the ‘understatement’
been accepted, for purposes of subsection
(3), must be regarded as
nil.
(5)
The tax rate applicable to the shortfall determined under subsections
(3) and (4) is the maximum tax rate applicable to the
taxpayer,
ignoring an assessed loss or any other benefit brought forward from a
preceding tax period to the tax period.
[19]
An understatement is defined in Section 221 of the
TAA as follows:
“‘
understatement’
means any prejudice to SARS or the fiscus as a result of—
(
a
)
a default in rendering a return;
b
)
an omission from a return;
(
c
)
an incorrect statement in a return;
(
d
)
if no return is required, the failure to pay the correct amount of
‘tax’;or
(
e
)
an ‘impermissible avoidance arrangement.”
[20]
The applicants contended that the understatement penalty is a
criminal punishment hence TAA distinguishes
it from the other
administrative penalties defined in section 208 of TAA. They,
further, submitted that the administrative
penalties are automated
and mechanical in nature unlike the understatement penalties which
require that an enquiry be held before
they are levied. In their view
the process followed in levying understatement penalties is the same
as the process in the criminal
court.
[21]
The applicants are relying on Canadian
cases ,
Wigglesworth
v R
[5]
and
R
v
Shubley
[6]
to support their assertion that an understatement penalty levied by
SARS is a criminal punishment in that the applicants
have been called
twice by the state to answer to society on the same offence. The
applicants, relying on
United
States v Halper
[7]
, submitted that under the
double jeopardy defence, a person who has already been punished
in a criminal prosecution may
not be subjected to an additional civil
remedy based upon the same conduct where the civil remedy constitutes
punishment.
[22]
In Wigglesworth the court held as follows:
“
..
a true penal consequence which would attract the application of
section 11 is imprisonment or a fine which by its magnitude would
appear to be imposed for purpose of redressing the wrong done to
society at large rather to the maintenance of internal discipline
within a limited sphere of activity
[23]
The court further held that a disciplinary action brought against a
policeman for assault in
terms of the police code, a so-called
‘service offence’, did not bar subsequent criminal
proceedings for the same assault
because the fine imposed was
designed to achieve a particular private purpose namely, discipline
in the police force, and not to
redress harm done to society as a
whole.
[8]
[24]
In
Halper
it
was held that the double jeopardy defence is also applicable to civil
penalties.
Halper
was overturned by
Hudson
v United States
[9]
where
the Court held that the double jeopardy clause was not a bar to
criminal prosecution because the administrative
proceedings were not
criminal in nature. The court made the following remarks:
“
14
How. 13
, 19 (1852)). The Clause protects only against the imposition
of multiple
criminal
punishments for the same offense,
Helvering
v.
Mitchell,
303 U. S. 391
, 399 (1938); see
also
Hess, supra,
at 548–549 (“Only”
“criminal punishment” “subject[s] the defendant to
‘jeopardy’
within the constitutional meaning”);
Breed
v.
Jones,
421 U. S. 519
, 528 (1975) (“In
the constitutional sense, jeopardy describes the risk that is
traditionally associated with a criminal prosecution”),
and
then only when such occurs in successive proceedings, see
Missouri
v.
Hunter,
459 U. S. 359
, 366 (1983). Whether a particular
punishment is criminal or civil is, at least initially, a matter of
statutory construction.
Helvering, supra,
at 399. A court must
first ask whether the legislature, “in establishing the
penalizing mechanism, indicated either expressly
or impliedly a
preference for one label or the other.”
Ward,
448 U. S.,
at 248.” ….
……
We
believe that
Halper
’s
deviation from longstanding double jeopardy principles was ill
considered. As subsequent cases have demonstrated,
Halper
’s
test for determining whether a particular sanction is “punitive,”
and thus subject to the strictures of the
Double Jeopardy Clause, has
proved unworkable.”
[25]
In
Federal
Mogul Aftermarket Southern Africa (Pty) Ltd v Competition Comission
and Another
[10]
the
court dealt with the constitutionality of section 59 of the
Competition Act 89 of 1998 (Competition Act), to the extent that
it
permitted the Competition Tribunal to impose a discretionary penalty
for contraventions of the
Competition Act. The
court said the
following when dealing with double jeopardy:
“
Both
the first respondent and the amici relied on several decisions in
North American jurisprudence involving pleas of double jeopardy.
In
most jurisdictions this plea is typically raised when a person
alleges that he or she is being tried twice for the same crime.
The
court in dealing with this plea has to develop an approach to
classification, which helps it decide whether both proceedings
are
criminal in nature, in which case the plea succeeds or whether there
is some distinction that renders the one proceeding non-criminal,
and
hence the plea fails.”
[26]
In Pather And Another v Financial Services Board And Others
[11]
.
“
[22]
The first issue raised by the appellants cannot be answered without
examining the nature and purpose of criminal proceedings.
In the
words of Lord Steyn, '(t)he aim of criminal law is not punishment for
its own sake but to allow everyone to go about their
daily lives
without fear of harm to person or property'. 'Criminal law', observed
Lord Atkin, 'connotes only the quality
of such acts or
omissions as are prohibited under appropriate penal provisions by
authority of the state. The criminal quality
of an act cannot be
discerned by intuition; nor can it be discovered by reference to
any standard but one: is the act prohibited
with penal consequences?'
And, criminal proceedings, according to Lord Bingham of Cornhill CJ,
'involve a formal accusation made
on behalf of the state or by a
private prosecutor that a defendant has committed a breach of the
criminal law, and the state or
the private prosecutor has instituted
proceedings which may culminate in the conviction and condemnation of
the defendant'.
[23]
In the proceedings before the EC, neither the police nor the
prosecutorial authority is involved at all. That the facts
underpinning the complaint can as well give rise to a criminal
offence does not alter the nature of the complaint before the EC.
The
EC is primarily concerned with the exercise of a disciplinary power
in respect of a limited group of persons possessing a special
status.
There is no formal accusation of a breach of the criminal law.
The proceedings are initiated by way of a complaint
by the DMA to the
EC, not a criminal charge. In
Martineau
the court observed:
'This
process thus has little in common with penal proceedings. No one is
charged in the context of an ascertained forfeiture. No
information
is laid against anyone. No one is arrested. No one is summoned
to appear before a court of criminal jurisdiction.
No criminal record
will result from the proceedings. At worst, once the administrative
proceeding is complete and all appeals are
exhausted, if the notice
of ascertained forfeiture is upheld and the person liable to pay
still refuses to do so, he or she risks
being forced to pay by way of
civil action'.
Those
considerations find equal application here.
[24]
Moreover, sight cannot be lost of the fact that criminal prosecutions
come with many challenges. First, the responsibility
for the
prosecution lies with the National Directorate of Public
Prosecutions, not the regulatory authorities, such as the FSB.
Given
an already overburdened H prosecutorial staff, such contraventions
generally do not enjoy priority and the regulator, as
complainant,
has to stand in line with many other complainants. Second, a
criminal prosecution can be both time consuming
and fraught with
difficulty and the prosecuting authority may not always possess the
necessary expertise. Third, the stigma attached
to a criminal
conviction will often mean that industry professionals are likely to
vigorously contest even relatively minor
contraventions.
Fourth, a criminal prosecution may not be a suitable enforcement
option in respect of some less serious contraventions,
especially
those where an industry player simply failed to adhere to the rules,
as opposed to committing an offence which is truly
deserving of a
criminal sanction.
[25]
Accordingly, for all of the reasons given, I take the view that
proceedings before the EC do not lie within the criminal
sphere and
cannot be classified as being criminal in nature. The court below was
accordingly correct in holding that the EC, when
imposing
administrative penalties 'decidedly remains administrative'. Its
conclusion in this regard is consistent with decisions
in this
country by the Competition Appeal Court, Tax Court and Labour Court.”
[27]
Section 235
of the TAA criminalises tax evasion. The section provides
as follows:
235.
“
Evasion
of tax and obtaining undue refunds by fraud or theft
(1)
A person who with intent to evade or to assist another person to
evade tax or to obtain an undue refund under a tax Act—
(a)
makes or causes or allows to be made any false statement or entry in
a return or other document, or signs a statement, return
or other
document so submitted without reasonable grounds for believing the
same to be true;
(b)
gives a false answer, whether orally or in writing, to a request for
information made under this Act;
(c)
prepares, maintains or authorises the preparation or maintenance of
false books of account or other records or falsifies or
authorises
the falsification of books of account or other records;
(d)
makes use of, or authorises the use of, fraud or contrivance; or
(e)
makes any false statement for the purposes of obtaining any refund of
or exemption from tax, is guilty of an offence and, upon
conviction,
is subject to a fine or to imprisonment for a period not exceeding
five years.
(2)
Any person who makes a statement in the manner referred to in
subsection (1) may, unless the person proves that there is a
reasonable possibility that he or she was ignorant of the falsity of
the statement and that the ignorance was not due to negligence
on his
or her part, be regarded as being aware of the falsity of the
statement.
(3)
Only a senior SARS official may lay a complaint with the South
African Police Service or the National Prosecuting Authority
regarding an offence under this section.”
[28]
The above authorities demonstrate that nothing
precludes civil administrative proceedings and criminal proceedings
from the single act. Administrative penalties and criminal
proceedings do not serve the same purpose. The other is aimed at
strengthening
internal controls of the administrative authority and
to promote compliance while the other is aimed at correcting a
behaviour
that caused harm to the society.
[29]
Section 222 of TAA prescribes taxpayers are liable not only for the
shortfall or unpaid tax for
the relevant period, but, in addition to
the tax payable, for an understatement penalty. Section 222 addresses
the damage and shortfall
flowing from an understatement. It further
deters non-compliance with tax administration laws. Section
235 criminalises
an intentional evasion of tax and obtaining undue
refunds by fraud or theft which does not arise in section 222.
Section
235 deals with the criminal state of mind of the
taxpayer at the time of an understatement.
[30]
An understatement is described as prejudice
suffered by SARS or the fiscusas a result of impermissible conduct
by
a taxpayer. Prejudice is defined as harm or injury resulting from
some action. The main purpose of penalty is to deter impermissible
conduct that results in violation of TAA and to enforce compliance
with the provisions thereof. There is a duty on every taxpayer
to
honour their obligations to SARS. It follows that the understatement
penalty regime like many penalties imposed by other administrative
bodies is not aimed at punishing criminal conduct but serves as a
regulatory function aimed at assisting SARS to meet its obligations
as prescribed by the enabling legislation.
[31]
The amounts recoverable for violating provisions
of a specified statute are not to be categorised as criminal
punishment. The process of arriving at a punishment in a criminal
case and a penalty imposed by an administrative body are not
the
same. The burden of proof differs. In
Pather
the
court held that the fact that the penalty is intended to have a
deterrent effect does not mean that it is not administrative
in
nature. The court found that to hold that the mere presence of a
deterrent purpose renders such sanctions ‘criminal’
for
double jeopardy purposes would severely undermine the government’s
ability to effectively regulate institutions.
[12]
[32]
Section 35(3) (m) of the Constitution protects an accused’s
right to a fair trial. In the
Oxford dictionary
the word
accused is defined as a person or gang of people charged with a crime
or on trial in a court of law. The section is available
to people who
have been charged with crime. It is aimed at protecting the rights of
the arrested, detained and accused persons
as stipulated in its
heading. It is clear that the purpose of section 35(3) (m) is
to protect the accused persons’
rights to freedom.
It mitigates against the risk of loss of liberty emanating from
repeated charges for the same act. That
a single act may give rise to
more than one consequence is not tantamount to double jeopardy.
[33]
The TAA distinguishes between the criminal
offences in section 235 and understatement penalties in section
223.
I have already mentioned that the understatement penalties
levied under sections 2222 and 223 are aimed at addressing
the
shortfall. The percentage of the penalty imposed under Section 223 is
determined according to the severity of the blameworthiness
attributed to the conduct of the taxpayer. Section 235 deals
with a conduct that falls squarely within the terrain of the
police
which is not the case with section 222. An understatement is
determined through audit and assessment by SARS while conviction
in a
criminal court follows after the involvement of the Police and the
National Prosecuting Authority.
[34]
Taxation is one of the mechanisms through which
the government seeks to meet some of its objectives.
The
ability of the government to budget and live up to its responsibility
of providing basic services to the people is dependent
on the ability
of SARS to enforce applicable tax laws. It would be wrong to force
SARS to stick to only one legal process to enforce
tax laws. SARS has
a duty to maintain effective tax administration as a means to
strengthen the relationship between citizens and
the government.
[35]
Having found that calling the taxpayer to account
for the wrongdoing before an administrative body as well
as the
criminal are two distinct processes, I am of the view that double
jeopardy does not arise in the circumstances of this matter.
I am
unable to find that sections 222 and 235 of TAA offend the provisions
of section 35 (3) (m) of the Constitution. The application
must fail.
As regards to costs, there is no reason to depart from the
general rule that costs must follow the result.
[36]
I make the following order:
1.The application to
declare sections 222 and 235 of
Tax Administration Act
unconstitutional
is dismissed with costs.
2.
Costs to include that of counsel.
N.M.
MBHELE, AJP
Appearances:
For
the 1
st
& 2
nd
Applicants:
Adv.MB Mojaki & Adv J Nkhahle
Instructed
by
Modisenyane Attorneys
Bloemfontein
For
the 1
st
Respondent:
Adv.G Marcus SC, & Adv
E.Mkhawane
Instructed
by
Claude Reid Attorneys
For
the 2
nd
Respondent
Adv K Tsatsawane
SC
Instructed
by
State Attorney
Pretoria
[1]
Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme
Corporation and Others
[2019] ZACC 41
delivered on 24 October 2019
[2]
Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another
2014
(5) SA 297
SCA para 23
[3]
Democratic Alliance v Brummer (793/2021)
[2022] ZASCA 151
3 November
2022 at par. 13
[4]
The Constitution of the Republic of South Africa,1996
[5]
Wigglesworth
v R (1987) 32 CRR 219 (SCC)
[6]
R v Shubley [1990] 1 SCR 3 (SCC)
[7]
490 US 1989
par 11 at 441 -2
[8]
Wigglesworth
[9]
Hudson v United States 522 US 93 (1997)
[10]
Federal Mogul Aftermarket Southern Africa (Pty) Ltd v Competition
Comission and Another 2005 (6) BCLR 613 (CAC)
[11]
Pather And Another v Finacial Services Board And Others 2018 (1) SA
161 (SCA)
[12]
Pather page 179 par. 34