THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 894/2024
In the matter between:
THE COMMISSIONER FOR THE
SOUTH AFRICAN REVENUE SERVICE APPELLANT
and
BULLION STAR (PTY) LTD RESPONDENT
Neutral citation: CSARS v Bullion Star (Pty) Ltd (894/2024) [2026] ZASCA 76 (22
May 2026)
Coram: HUGHES, MOLEFE and KOEN JJA and NUKU and OPPERMAN
AJJA
Heard: 17 November 2025
Delivered: 22 May 2026
Summary: Income tax law – Tax Administration Act 28 of 2011 – overbroad warrant
granted ex parte to the Commissioner for the South African Revenue Service (SARS)
– reconsideration in the high court setting warrant aside as unlawful – whether
discretion exercised at all and factors considered – whether interference with discretion
of the high court required.
2
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court , Pretoria (Janse van
Niewenhuizen J sitting as the court of reconsideration):
The appeal is dismissed with costs, including the costs of two counsel where so
employed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Hughes JA (Molefe and Koen JJA concurring)
Introduction
[1] The genesis of this appeal lies in the issuance of a search and seizure warrant
in terms of s 60 of the Tax Administration Act 28 of 2011 (the Tax Administration Act).
Following an ex parte application, such a warrant (the warrant) was issued by the
Gauteng Division of the High Court , Pretoria (the high court) on 28 March 2022, by
Maumela J, in favour of the appellant, the Commissioner for the South African Revenue
Service (SARS), against the respondent, Bullion Star (Pty) Ltd (Bullion Star).
[2] In terms of rule 6(12)(c) of the Uniform Rules of Court, 1 Bullion Star launched
an urgent application for the reconsideration of the warrant granted (the
reconsideration application). The reconsideration application came before Janse van
Niewenhuizen J. On 2 February 2024, the warrant granted by Maumela J was set
aside, and ancillary relief was granted. The appeal against this order is with the leave
of this Court.
1 Rule 6(12)(c) states:
‘A person against whom an order was granted in such person’s absence in an urgent application may
by notice, set down the matter for reconsideration of the order.’
3
Brief background
[3] Bullion Star is a limited liability company and a licensed gold refinery with
beneficiation facilities. The beneficiation process involves transforming minerals, or a
combination of minerals, into a higher -value product. The business of Bullion Star is
the purchase of second-hand gold and the smelting and refining of the gold into either
coins or bars. Additionally, since January 2022, Bullion Star has been registered as an
exporter of such goods. The coins or bars are sold both locally and internationally. The
sole director of Bullion Star is Ms Musarrat Khan Niyazi (Ms Niyazi).
[4] SARS conducted investigations into the suppliers of Bullion Star, as it believed
that Bullion Star was involved in the purchase and sale of Kruger rand gold coins and
was not, as Bullion Star had claimed, engaged in the business of buying and selling
second-hand gold. The purchase of second-hand gold is taxable and subject to value-
added tax (VAT). The investigation of Bullion Star focused on the VAT period from
November 2020 to February 2022. As part of the investigation, and through an ex parte
application, SARS was granted the warrant against Bullion Star. The warrant was
executed at the premises of Bullion Star and at the residence s of Ms Niyazi, and an
employee, Ms Colleen Bhagoo (Ms Bhagoo).
[5] Bullion Star filed an urgent application on 4 April 2022 seeking an order to seal
the seized documents and information to institute the reconsideration application. The
application resulted in an agreement between SARS and Bullion Star, which was made
an order of court by consent on 7 April 2022. The consent order, among other things,
compelled Bullion Star to seek a reconsideration of the order resulting in the warrant.
It further provided that all documentation and information, including that contained on
electronic devices already seized by SARS, arising from the execution of the warrant,
could be used by SARS in the VAT audit for the period November 2020 to February
could be used by SARS in the VAT audit for the period November 2020 to February
2022.
The reconsideration application in the high court
[6] In the reconsideration application, Bullion Star sought an order that included:
the reconsideration and setting aside of the warrant granted; ordering the return of the
documents and items seized; and destroying all recordings, copies, mirror images,
4
computer files, notes, scans, emails, or recordings made . It also sought an order
restraining and prohibiting the use of the information obtained.
[7] The basis of Bullion Star's request for reconsideration was that the terms of the
warrant were too broad, rendering it unlawful. Further, the founding affidavit did not
support the relief sought. Additionally, it argued that SARS had failed to disclose all
relevant facts and had made misrepresentations concerning other material facts
related to the issuance of the warrant. It contended that SARS was unable to establish
reasonable grounds to believe that Bullion Star had committed a tax offence, and had
not demonstrate d that there were not less intrusive means of obtaining the
documentation or information sought.
[8] During the reconsideration proceedings, SARS conceded that the warrant was
overbroad, time-specific authorising execution only between 07h00 and 19h00 during
the week at the premises listed and limited to a specific assessment period , namely,
‘only for the period of assessment ending on or after 1 November 2020’. The overly
broad warrant, so the concession went, was limited to that set out in paragraph 160 of
the founding affidavit. 2 Accordingly, a suggested draft order varying the terms of the
warrant was handed up to Janse van Nie uwenhuizen J. The high court however
granted Bullion Star the order it sought.
Before this Court
[9] SARS sought leave to appeal against ‘the order …and paragraphs 66 to 74’ of
Janse van Niewenhuizen J's reconsideration judgment particularly: the high court’s
finding that there was non -compliance with s 60(1) of the Tax Administration Act; the
finding that the warrant was ‘unduly or overly overbroad’; the failure of the high court
to exercise its discretion to narrow the ambit of the warrant; the high court's finding that
SARS had dismally failed to explain why the warrant was obtained despite Bullion Star
SARS had dismally failed to explain why the warrant was obtained despite Bullion Star
not having been afforded an opportunity to be heard on this aspect; and, lastly, th at
2 Paragraph 160 reads thus: ‘ In order for SARS to ascertain the veracity of these photos and other
electronic messages, SARS would require the original raw data relating to these messages, WhatsApps,
emails and photos. It is for this limited purpose only that SARS is requesting this Honourable Court to
issue the warrant for search and seizure.’
5
the terms of the consent order conflicted with the high court’s order regarding SARS’s
utilisation of the information it had secured as a result of the warrant.
[10] During argument , the issues for determination have crystallised as follows :
whether the overbreadth portions of the warrant should be severed; and the
interpretation, effect, and scope of the parties' consent order.
Discussion
[11] Section 60(1) of the Tax Administration Act states:
‘Issuance of warrant
(1) A judge or magistrate may issue the warrant referred to in section 59(1) if satisfied that
there are reasonable grounds to believe that–
(a) a person failed to comply with an obligation imposed under a tax Act, or committed a tax
offence; and
(b) relevant material likely to be found on the premises specified in the application may provide
evidence of the failure to comply or commission of the offence.’
[12] SARS's case is that the high court, when reconsidering the issuance of the
warrant, was incorrect in concluding that the warrant did not comply with the
requirements of s 60(1) of the Tax Administration Act. SARS relies on the fact that the
court’s reasoning for non -compliance with s 60(1) of the Tax Administration Act is
inconsistent with the section’s requirements, that the requirements do not apply to the
section governing an ex parte application under s 59(1) of the Tax Administration Act,
but instead relate to the overbreadth of the warrant. SARS further asserts that, based
on the facts of the case, Bullion Star failed to comply with the Tax Administration Act,
and that the search and seizure were necessary to verify this failure.
[13] It is important to remember that SARS conducted its investigation into Bullion
Star's customers and requested their electronic information, photographs, and
WhatsApp messages relating to business transactions, indicating that Bullion Star was
providing gold bars to its customers. SARS argued that issuing the warrant would
providing gold bars to its customers. SARS argued that issuing the warrant would
enable it to seize electronic information from Bullion Star's phones and other devices,
as the requested assistance had not been forthcoming.
6
[14] It alleged the purpose of the warrant sought to be as follows:
‘In order for SARS to ascertain the veracity of these photos and other electronic messages,
SARS would require the original raw data relating to these messages, WhatsApp[s], emails
and photos. It is for this limited purpose only that SARS is requesting this Honourable Court to
issue the warrant for search and seizure.’ (Emphasis added.)
[15] On the other hand, B ullion Star contends that the overbroad warrant did not
comply with s 60(1) of the Tax Administration Act . Its issuance, they argue, does not
align with the purpose outlined by SARS in its affidavits and argument. The core of
Bullion Star's application was that the warrant granted was not fit for the purpose
outlined in SARS’s founding papers. Therefore, when the overbroad warrant was
authorised, Maumela J exercised his discretion incorrectly. In response to this
contention, SARS argued that the warrant's breadth has no bearing on the requisites
of s 60(1) of the Tax Administ ration Act and could not have rendered the warrant
invalid; thus, Janse van Niewenhuizen J was wrong to conclude that the warrant did
not comply.
[16] Reference was made above to Bullion Star having filed the urgent application
to seal the seized documents and information which culminated in the parties'
agreement, which was made an order of court and pursuant to which Bullion Star
proceeded with the reconsideration application. During the reconsideration application,
SARS conceded that the warrant was excessive and overbroad. The warrant did not
authorise a search and seizure at the director's and employee's residences.
[17] What constitutes an overbroad warrant? Simply put, a search warrant is
overbroad if its terms authorise acts beyond those permitted by the governing statute,
or if, having regard to the facts, it fails to define the scope of the search with adequate
particularity. An o verbroad warrant occur s when clearly stated terms encompass
particularity. An o verbroad warrant occur s when clearly stated terms encompass
activities or items that the law does not allow.3
3 Powell N O and Others v Van der Merwe N O and Others [2004] ZASCA 25; [2005] 1 All SA 149 (SCA);
2005 (5) SA 62 (SCA); 2005 (1) SACR 317 (SCA); 2005 (7) BCLR 675 (SCA) (Powell) paras 4, 18, 21,
28, 48 and 59.
7
[18] In Minister of Safety and Security v Van der Merwe and O thers (Van der
Merwe),4 Mogoeng J, delivering the unanimous judgment of the Constitutional Court,
said:
‘What emerges from this analysis is that a valid warrant is one that, in a reasonably intelligible
manner:
(a) states the statutory provision in terms of which it is issued;
(b) identifies the searcher;
(c) clearly mentions the authority it confers upon the searcher;
(d) identifies the person, container or premises to be searched;
(e) describes the article to be searched for and seized, with sufficient particularity; and
(f) specifies the offence which triggered the criminal investigation and names the suspected
offender.
In addition, the guidelines to be observed by a court considering the validity of the warrants
include the following:
(a) the person issuing the warrant must have authority and jurisdiction;
(b) the person authorising the warrant must satisfy herself that the affidavit contains sufficient
information on the existence of the jurisdictional facts;
(c) the terms of the warrant must be neither vague nor overbroad;
(d) a warrant must be reasonably intelligible to both the searcher and the searched person;
(e) the court must always consider the validity of the warrants with a jealous regard for the
searched person’s constitutional rights; and
(f) the terms of the warrant must be construed with reasonable strictness.’ (Footnotes omitted
and emphasis added.)
[19] A balance must be struck between the State's need to obtain the issuance of a
warrant and the rights and dignity of individuals subjected to a search pursuant to a
warrant. It bears emphasis that the terms of the overbroad warrant w ere drafted by
SARS. Not only do judicial requirements apply when issuing a warrant, given its
invasive nature, but protecting the right to privacy of the persons subjected to its terms,
is also a crucial consideration. Therefore, it is appropriate to restate s 14 of our
is also a crucial consideration. Therefore, it is appropriate to restate s 14 of our
Constitution, which guarantees that serious violations of personal privacy are not
tolerated. It provides:
‘Everyone has the right to privacy, which includes the right not to have –
4 Minister of Safety and Security v Van der Merwe and Others [2011] ZACC 19; 2011 (5) SA 61 (CC);
2011 (9) BCLR 961 (CC); 2011 (2) SACR 301 (CC) (Van der Merwe) paras 55 and 56.
8
(a) their person or their home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.’
The Constitutional Court in Investigating Directorate: Serious Economic Offences and
Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor
Distributors (Pty) Ltd and Others v Smit N O and Others (Hyundai) stated that the
aforesaid rights were in fact ‘right[s] to privacy in the social capacities in which we act’.5
[20] In Thint (Pty) Ltd v National Director of Public Prosecutions and Others (Thint),6
the Constitutional Court emphasised the importance of an individual's personal rights
concerning human dignity, which are zealously protected. It stated:
‘The privacy of the individual is no less important. Section 14 of the Constitution entrenches
everyone’s right to privacy, including the right not to have one’s person, home, or property
searched, possessions seized or the privacy of his or her communicati ons infringed. These
rights flow from the value placed on human dignity by the Constitution. 7 The courts therefore
jealously guard them by scrutinising search warrants “with rigour and exactitude”.’
[21] The decision whether to grant a warrant falls within the judicial officer's
discretion. It is a judicial function that considers the factors outlined in the founding
papers and in the text of the warrant sought. As was highlighted in Thint:
‘… a judicial officer [is] to be satisfied, first, that there is a reasonable suspicion that an offence,
which might be a specified offence in terms of the Act, has been committed; and secondly, that
there are reasonable grounds to believe that an item that has a bearing or might have a bearing
on the investigation is on or is suspected to be on the premises to be searched. Finally, the
judicial officer must consider whether it is appropriate to issue the search warrant. The decision
to issue the search war rant clearly involves the exercise of a discretion, as the reasoning
in Hyundai makes plain. Factors relevant to the exercise of that discretion will include the
material set out in the affidavit seeking the search warrant and the text of the warrant itself.’8
5 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty)
Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others and Others v Smit N O and Others
2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC); 2000 (2) SACR 349 (CC) (Hyundai) para 16.
6 Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National
Director of Public Prosecutions and Others [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1
(CC); 2008 (12) BCLR 1197 (CC) (Thint) para 76.
7 Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 para
77; Hyundai fn 4 above para 18.
8 Thint fn 6 above para 86; Hyundai fn 5 above paras 50-52 and 56.
9
Such a discretion ought to be exercised judicially; consequently, any exercise of that
discretion predicated upon a material misapprehension of the facts or the law is invalid
and liable to be set aside.
[22] The warrant was granted by Maumela J, and SARS has conceded it was
overbroad. T here would be no purpose served in further examining the discretion
exercised by Maumela J when he granted the warrant . In any event, th e warrant has
already been executed.
[23] Although the warrant was overbroad, SARS argues that Janse van
Nieuwenhuizen J ought to have amended its overbroad terms. It contends that she
failed to do so and should, upon reconsideration, not have set the warrant aside but
rather amended its terms to the limited extent sought by SARS.
[24] What remains for this Court's consideration is whether the existing overbroad
warrant, already executed, should be varied. A further issue concerns the effect of the
consent order on the status of the warrant. I address this below.
[25] I begin by stating that Powell holds that a warrant's terms should not exceed
what the authorising statute permits; should they do so, the warrant may be declared
invalid.9 Furthermore, an overbroad warrant cannot be remedied simply by stating that
‘the subject of the search knew or ought to have known what was being looked for…’.10
Notably, the circumstances under which SARS sought the severance of the warrant to
a limited extent are relevant.
[26] In the reconsideration, SARS’s answering affidavit contended that the warrant
complied with the jurisdictional requirements in terms of s 60(2) of the Tax
Administration Act and was not overbroad . However, during the argument in the
reconsideration, it conceded that the warrant was overbroad. SARS only sought a
limited severance of the terms of the warrant when it submitted a draft order, after
Bullion Star had presented its case. SARS failed to clearly outline a solid basis to justify
Bullion Star had presented its case. SARS failed to clearly outline a solid basis to justify
why the high court should exercise its discretion to limit the reach of the warrant ,
9 Powell fn 3 above.
10 Ibid para 59.
10
especially since it did not challenge Maumela J’s discretion at all. These failures by
SARS weaken its case for the severance of the warrant sought before this Court.
[27] The concession by SARS was rightly made. Courts will not tolerate an
overbroad warrant. 11 Given the circumstances, SARS's argument that the warrant
complied with s 60(1), despite being overbroad, must fail. It does not align with the
case presented by SARS or the purpose for which the warrant was sought. Further,
the warrant clearly failed to balance the individual's right to privacy against the public
interest.
[28] It is undisputed between the parties that the reconsideration application was
brought in terms of rule 6(12) (c) of the Uniform Rules of Court. SARS argue s that, in
such a case, the judicial officer seized with the reconsideration has the authority to
exercise his/her discretion to amend the warrant. Both Bullion Star and SARS agree
that in such situations, the court's discretion is broad. It is well established that a
warrant may be set aside or modified, in whole or in part. It was held in Van der Merwe
that ‘the terms of the warrant must be neither vague nor overbroad ’.12 An overbroad
warrant is considered unlawful.
[29] That said, SARS's reliance on s 66(4) of the Tax Administration Act 13 is
misplaced. During the reconsideration, SARS’s aim was to defend the warrant in its
entirety. The order by Janse van Nieuwenhuizen J set aside the warrant in accordance
with the discretion granted to her under rule 6(12) (c), for all the reasons previously
discussed. Importantly, the warrant had already been executed, and SARS already
possessed the items sought through the overbroad warrant. In those circumstances,
and absent a proper case, formal amendment, and appropriate notice, SARS could not
seek to vary the overbroad warrant to the prejudice of Bullion Star.
11 Van der Merwe fn 4 above.
12 Ibid para 56.
13 Section 66(4) states:
11 Van der Merwe fn 4 above.
12 Ibid para 56.
13 Section 66(4) states:
‘If the court sets aside the warrant issued in terms of section 60(1) or orders the return of the seized
material, the court may nevertheless authorise SARS to retain the original or a copy of any relevant
material in the interests of justice.’
11
[30] In my view, SARS relied too heavily on the terms of the consent order. For this
reason, I include the relevant paragraphs of the consent order of 7 April 2022, granted
pending the reconsideration application, to provide context. These formed part of the
application before Janse van Nieuwenhuizen J. The relevant paragraphs of the
consent order state as follows:
‘1. That the applicant, (“Bullion Star”), is ordered to institute its application for reconsideration
of the search and seizure warrant issued by this Honourable Court on 28 March 2022, in terms
of section 60 of the Tax Administration Act, Act 28 of 2011(“the warrant”), within ten days from
date of this order;
…
3. That the parties are directed to approach the Honourable Deputy Judge President of this
Court for enrolment of the reconsideration application, once all affidavits have been filed;
4. That pending the finalisation of the reconsideration application in this Court, and subject to
paragraph 6 & 7 below, no documents or information derived from the search and seizure
pursuant to the warrant be used by SARS in the execution of its duties and obligations in terms
of the tax Acts as defined in section 1 of the Tax Administration Act;
…
6. Nothing in this order will prevent SARS from considering the documents or information
(which includes the documents or information contained on any electronic storage device)
obtained by SARS as a result of the search and seizure effected pursuant to the warrant, solely
in order to establish whether such document or information, may be returned to the person or
persons from whom the documents or information or electronic storage device containing such
documents or information were taken during the execution of the warrant;
7. SARS is authorised to use the documents and information seized pursuant to the warrant in
the course and scope of the VAT audit for the periods 11/2020 to 02/2022.’
[31] A court order, whether or not it is a consent order, generally remains in effect
[31] A court order, whether or not it is a consent order, generally remains in effect
until it is rescinded or set aside. 14 SARS acknowledged that the order was interim,
pending the determination of the reconsideration application. SARS contends that the
order is subject to paragraphs 6 and 7 thereof, which they contend are not confined to
14 In Standard Bank of South Africa Limited v Pygon Trading Close Corporation 2024 JDR 1232 (SCA);
[2024] ZASCA 28 para 21, this Court stated that:
‘An order once made may not generally be altered. The only bases of which I am aware to prevent the
enforcement of a court order are if it is set aside or abandoned. A party in whose favour an order has
been granted has the power to abandon it. The procedures available to set aside an order are stringent
and few. The power to do so arises on appeal and by way of rescission or amendment … .’
12
the interim period pending the determination of the reconsideration application, but are
self-standing. In my view, this argument is misconceived.
[32] The status of such orders was addressed in Pretoria Portland Cement Co Ltd
and Another v Competition Commission and Others (Pretoria Portland),15 namely, that
an application for the issue of a warrant is an ex parte application that can lead, in the
first instance, only to provisional orders that are subject to reconsideration after all the
parties who have a direct and substantial interest in the order have been heard.16
[33] This is decisive in respect of SARS's argument. An examination of the intention
behind the reconsideration application clarifies the position. The notice of motion
confirms that the consent order was interim. The prohibition on using the obtained
material was contingent on the outcome of the reconsideration application.
Considering that the overbroad warrant had already been issued and executed, Bullion
Star’s intended application for reconsideration served as the only remaining safeguard
against the use of unlawfully obtained data. If the warrant was found to be unlawful,
then the documents could not be used, otherwise there would be no purpose to have
the issuance of the warrant reconsidered.
Riposte
[34] I have read the dissenting judgment (the second judgment) of Opperman AJA
and comment thereon as follows . Before this Court, the issues had crystallised ,
namely, whether the overbreadth portions of the warrant should be severed, and the
interpretation, effect, and scope of the parties' consent order.
[35] The warrant's purpose was for SARS to verify the authenticity of the photos and
other electronic messages. SARS would need the original raw data for these
messages, including WhatsApp messages, emails, and photos. The request for the
warrant was solely for this limited purpose. However, an overbroad warrant was
warrant was solely for this limited purpose. However, an overbroad warrant was
granted, which was not in line with the case made out by SARS in its founding affidavit
15 Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA
385 (SCA) para 44-45.
16 Thint fn 6 above para 95; Pretoria Portland above paras 45 and 47.
13
and with the warrant's purpose. That being said, the overbroad warrant having been
granted is now water under the bridge; in addition, there is even a concession by SARS
that the warrant was overbroad . Added to these factors was the fact that the warrant
had been executed. The result was that Janse van Nieuwenhuizen J set aside the
warrant in its entirety during the reconsideration.
[36] Having set aside the warrant, the second judgment concluded that Janse van
Nieuwenhuizen J did not exercise a discretion , as the enquiry did not end with the
setting aside of the warrant. The second judgment states that the high court ought to
have determined: ‘(a) whether it was empowered to limit the ambit of the warrant – this
is a question of law – (the first issue); and (b) if so, how, and having regard to which
factors, it ought to have exercised its discretion in doing so – this is a question of both
fact and law – (the second issue).’
[37] The warrant, in its form, and the fact that it had already been executed by the
time the reconsideration took place , did not permit Janse van Nieuwenhu izen J to
proceed to the second enquiry, as suggested by the second judgment. Why so? First,
the overbroad warrant, as it stood, was unlawful, and, as such, SARS has to stand or
fall by the warrant it sought to defend. The case involved an overbroad, non-compliant
warrant, and SARS sought a dismissal of the reconsideration application. Second,
Janse van Nie uwenhuizen J concluded that the warrant presented by SARS to
Maumela J for authorisation did not conform to the facts advanced by SARS in the ex
parte application. SARS failed to explain why such a warrant was sought in the first
place. Third, the severance of the warrant was sought after the argument presented
by Bullion Star at the reconsideration, merely by handing up a draft order, for which no
proper case was made out. Thus, the conclusion in the reconsideration application,
proper case was made out. Thus, the conclusion in the reconsideration application,
that ‘the issuing of the warrant does not in law and fact comply with the provisions of
section 60(1) …’.
[38] The discretion exercised by Janse van Nieuwenhuizen J in the reconsideration
in terms of rule 6(12)(c) is a wide discretion . As the order of issuance of the warrant
stems from an ex parte application, the reconsideration thereof gives a party like
Bullion Star an opportunity to rebut the case put forth for the grant of the warrant. It
may seek an order that the order for issuance of the warrant was un justified or seek
14
that the order be set aside. As has been observed, ‘[t]he scheme of the rule takes as
its point of departure that the applicant has got its order and the reconsideration is
about whether it can keep its order’ .17 In reconsidering the issuance , Janse van
Nieuwenhuizen J considered it de novo and, in her discretion, could either uphold the
order, sever or amend the warrant, or, as in this case , set the warrant aside as
overbroad and thus unjustified. It has not been shown that she erred in exercising her
discretion in the manner she did.
[39] Addressing the inversion of the parties upon which the second judgment relies,
which it states resulted in a conceptual flaw, there is, with respect, no conceptual flaw.
Neither party has addressed this Court regarding this inversion. The context where
Bullion Star is the applicant, is where Bullion Star sought to amend its notice of motion,
which was dismissed by the high court. This is eviden t from the heading of the
introduction to paragraphs 3 to 8, namely ‘Amendment’. Further, on a reading of the
judgment in its totality with the order granted in the reconsideration application, there
is no inversion of the parties and no conceptual flaw.
[40] Finally, on the discretion question. Nowhere in SARS's papers does SARS
make out a case or give any reason why the discretion ought to be exercised in its
favour. If SARS requires a search and seizure to be carried out, then it may properly
apply for a lawful warrant.
[41] Lastly, the consent order. The second judgment holds that paragraph 7 of the
consent order reflects an agreement between SARS and Bullion Star to utilise, for the
agreed purpose, the seized items. Regard must however be had to the context in which
the consent order was concluded. The reconsideration application was pending, and
to prevent it from being moot and academic, Bullion Star sought to prevent SARS from
utilising the unlawfully seized items if the reconsideration application was to succeed.
utilising the unlawfully seized items if the reconsideration application was to succeed.
The documents could only be used in the interim for a limited purpose. This much is
set out in Bullion Star’s sealing application.
17 Mazetti Management Services (Pty) Ltd and Another v AmaBhungane Centre for Investigative
Journalism NPC 2023 (6) SA 578 (GJ) para 14.
15
[42] Contrary to what is stated in the second judgment, the addition of paragraph 7
of the consent order was clearly intended to limit the effect of the unlawful warrant, as
borne out by clause 4 of the order. Clause 7 cannot, as argued by SARS, be a stand -
alone clause. Further, according to SARS’s own version, clause 4 of the agreement
treated the entire consent order as an interim agreement ‘subject to paragraphs 6 & 7’;
hence, these clauses could not stand alone.
[43] In conclusion, the fact that SARS was already in possession of , and had sight
of, the seized documents is neither here nor there as SARS will not, in any event, be
able to use these documents.
Order
[44] In the result, I would grant the following order:
The appeal is dismissed with costs , including the costs of two counsel where so
employed.
___________________
W HUGHES
JUDGE OF APPEAL
Opperman AJA (Nuku AJA dissenting)
Introduction
[45] I have read the judgment of my sister Hughes JA (first judgment). I am indebted
to her for the overview of the facts of the matter and the summation of the litigation
history. I am unable to agree on certain features of the matter and these are set out
below under what I consider to be appropriate sub-headings.
How is a judicial officer required to approach the task of issuing a warrant in
terms of the Tax Administration Act?
16
[46] Section 60(1) 18 of the Tax Administration Act requires the judicial officer to
ascertain whether there are reasonable grounds to believe that the taxpayer failed to
comply with an obligation imposed under a tax Act or committed a tax offence (the
misconduct), and to cons ider whether there are reasonable grounds to believe that
relevant material is likely to be found on the premises specified in the application, which
material may provide evidence of the taxpayer’s failure to comply with, or commission
of, an offence under a tax Act (evidence of the misconduct). Finally, the judicial officer
must consider whether it is appropriate to issue the warrant. This involves the exercise
of discretion. Thint (Pty) Ltd v National Director of Public Prosecutions and Others,
Zuma and A nother v National Director of Public Prosecutions and Others (Thint)
provides guidance:
‘Factors relevant to the exercise of that discretion will include the material set out in the affidavit
seeking the search warrant and the text of the warrant itself.’19
[47] These were the three tasks Maumela J was seized with on 28 March 2022 when
he authorised the warrant. It is to the averments in the founding affidavit in the ex parte
application that one must look to answer the first two questions, whether there are
reasonable grounds to believe that the misconduct has taken place and that evidence
of the misconduct is likely to be found at the premises.
[48] The founding affidavit centres around the accusation that the main commodity
in which Bullion Star trades is not gold bars or second-hand gold, but Krugerrand gold
coins (Krugers). SARS contends that it investigated Bullion Star’s suppliers. It says
that i f this is correct, Bullion Star would not be entitled to the input tax of
R13 942 127.24 (R14 million), as Krugers are zero -rated in terms of the VAT Act. It
concludes:
‘The fact that the supply chain mainly consists of Krugers, which is a zero rated commodity,
‘The fact that the supply chain mainly consists of Krugers, which is a zero rated commodity,
gives reason to SARS to believe that there may be serious non -compliance with the tax Acts
and that it may be possible that Bullion Star is or has been committing tax offences.’
[49] The SARS deponent to the founding affidavit expressly states that there are
reasonable grounds to believe that Bullion Star failed to accurately calculate the
18 Quoted in paragraph 11 of the first judgment.
19 Thint fn 6 above para 86.
17
amount of VAT payable, failed to pay the correct amount of VAT over to SARS and
failed to accurately charge and declare the correct tax fraction on the supplies made
by it. In brief, the deponent attempted to demonstrate that the test for believing that the
misconduct had taken place was satisfied.
[50] In relation to the second leg of the s 60(1) of the Tax Administration Act
requirements, the affidavit sets out in great detail why SARS contends that the invoices
and photos pertaining to the delivery of second -hand gold are incorrect, and why it is
necessary to inspect and analyse the digital information from the originals of such
photos, WhatsApp messages, emails, and other electronic information. In brief, the
deponent to the affidavit attempted to demonstrate that the test for believing that
evidence of the misconduct would be found at the premises was satisfied.
[51] One must assume, because the warrant was authorised, that Maumela J was
satisfied that the first two tests were indeed satisfied, as was the third, since he
exercised his discretion in favour of SARS and thus, must have concluded that the
requirements of the Tax Administration Act were satisfied.
What did the high court do in the reconsideration application?
The high court inverted the parties
[52] The high court in the reconsideration application erroneously dealt with the
reconsideration as though Bullion Star was the applicant in the ex parte proceedings
and SARS the respondent. In Pretoria Portland,20 Schutz JA cautioned against this
pothole:
‘[The] case was started by the Commission [SARS], not by the appellants [Bullion Star] .
Although they [Bullion Star] were ordered at the second stage by Bertelsmann J to file a notice
of motion and founding affidavit, that affidavit when filed was largely in the nature of an
answering affidavit, to which was added information as to the manner in which the search had
been conducted. With the possible exception of the post -warrant events, if the matter is
been conducted. With the possible exception of the post -warrant events, if the matter is
approached in the manner I have suggested it may be that the onus and the operation of
the Plascon Evans rule is reversed. The fact that the appellant’s [Bullion Star’s] first affidavit
20 Pretoria Portland Cement Company Ltd. and Another v Competition Commission and Others 2003
(2) SA 385 (SCA) fn 14 above para 48.
18
was called a founding and not an answering affidavit is a matter of form, not substance, and
the law is concerned with substance.’ (Emphasis provided.)
[53] The high court’s incorrect approach to the assessment of the roles of the parties,
and hence the evidence, is evident from the way it dealt with an objection raised by
counsel for SARS regarding the non -disclosures raised by counsel for Bullion Star,
which had not been mentioned in the founding affidavit in the reconsideration
application. In paragraph 43 of its judgment, the high court found:
‘It would be most unfair to deprive SARS of an opportunity to deal with the further alleged non-
disclosures and will be in conflict with the trite principle that an applicant [here Bullion Star]
must make out a case for the relief it claims in its founding affidavit.’
[54] Paragraph 43 is located far away from the amendment dealt with in paragraphs
3 to 8 of the high court’s judgment and which paragraphs the first judgment resorts to
in an attempt to explain away the inversion. It is correct that the inversion was not
argued by the parties but it was raised with both counsel during argument and both
counsel conceded the correctness of the principle distilled by Schutz JA. Th e context
where Bullion Star is incorrectly treated as an applicant, is where Bullion Star seeks to
rely on new non -disclosure grounds not raised in its ‘founding affidavit’. That is
precisely the pothole Schutz JA cautions against : Bullion Star ought to h ave, for
purposes of that argument, been considered the respondent.
[55] It is thus clear that the high court dealt with Bullion Star as though it were the
applicant and SARS the respondent in the reconsideration application. This is at odds
with the jurisprudence of this Court as recorded in Pretoria Portland . The ruling to
disallow the belated raising of new non -disclosures might have been correct, but not
for the reason advanced by the high court being that an applicant must make out its
for the reason advanced by the high court being that an applicant must make out its
case in its founding affidavit. Bullion Star was not strictly speaking an applicant. Bullion
Star was the respondent and if anything, the Plascon Evans rule ought to have
operated in its favour. The law is concerned with substance, not form.
[56] I raise this because it strikes me that this conceptual flaw in the high court’s
approach permeated the judgment. It appears that the high court dealt with the
reconsideration as a self -standing opposed motion, and this might well explain its
19
failure to consider what I regard as important features of the matter, such as the
consent order, which recorded an important agreement between the parties, a topic to
which I return later in this judgment, amongst other oversights.
The failure to consider all the factual material
[57] More recently, in Afgri Grain Marketing (Pty) Ltd v Trustees for the time being
of Copenship Bulkers A/S (in liquidation) and Others (Afgri Grain Marketing), 21 Wallis
JA writing for the majority, summarised the correct approach in reconsideration
applications as follows:
‘Rule 6(12)(c) does not prescribe how an application for reconsideration is to be pursued. The
absence of prescription was intentional and the procedure will vary depending upon the basis
on which the party applying for reconsideration seeks relief against the order granted
ex parte and in its absence. A party wishing to have the order set aside, on the ground that the
papers did not make a case for that relief, may deliver a notice to this effect and set the matter
down, for argument and reconsideration, on those papers. It may do th e same if it merely
wishes certain provisions in the order to be amended, or qualified, or supplemented. The
matter is then argued on the original papers. It is not open to the original applicant, save
possibly in the most exceptional circumstances, or whe re the need to do this has been
foreshadowed in the original founding affidavit, to bolster its original application by filing a
supplementary founding affidavit.
The party seeking reconsideration is not confined to this route. It may file an answering
affidavit, either traversing the entire case against it, or restricted to certain issues relevant to
the reconsideration. In many instances such an affidavit will be desirable. Even if an affidavit
is filed, however, it does not preclude the party seeking reconsideration arguing at the outset,
on the basis of the application papers alone, that the applicant has not made out a case for
on the basis of the application papers alone, that the applicant has not made out a case for
relief. That is a well-established entitlement in application proceedings and there is no reason
why it should not be adopted in reconsideration applications.
If an affidavit is filed in support of the application for reconsideration then the party that obtained
the order is entitled to deliver a reply thereto, subject to the usual limitations applicable to
replying affidavits. When that is done, and the party seeking reconsideration does not argue a
preliminary point at the outset that the founding affidavit did not make out a case for relief, the
case must be argued on all the factual material before the judge dealing with the
reconsideration proceedings. That material may be significantly more extensive and the nature
21 Afgri Grain Marketing (Pty) Ltd v Trustees for the time being of Copenship Bulkers A/S (in liquidation)
and Others [2019] ZASCA 67; [2019] 3 All SA 321 (SCA); 2024 (1) SA 373 (SCA) paras 12-14.
20
of the issues may have changed as a result of the execution of the original ex parte order.’
(Emphasis provided.)
[58] The high court did not consider all the factual material placed before it. This was
contrary to the decision in Afgri Grain Marketing. For example, the high court did not
consider the evidence relating to the execution of the warrant. It concluded in
paragraph 74 of its judgment that it was not necessary to do so, a conclusion it
erroneously reached by virtue of its misstatement of the law.
The flawed premise and failure to exercise a discretion
[59] The high court approached the matter on the basis that the warrant could only
be set aside on two grounds: (a) defects in the ex parte application and the warrant
issued in terms thereof, and (b) the manner in which the warrant was executed. This
flawed premise led the high court to conclude that it was not necessary to consider the
facts relating to the execution of the warrant at all.
[60] The high court embarked on an analysis of what the warrant authorised and,
because it was overbroad concluded that: ‘In the result, the issuing of the warrant does
not in law or fact comply with the provisions of section 60(1) of the Act and stands to
be set aside’. However, the conclusion that the warrant was overbroad was not the end
of the enquiry. The high court did not deal with whether it had a discretion, nor did it
exercise that discretion. This approach constituted a fundamental misdirection. It wa s
obliged to determine: (a) whether it was empowered to limit the ambit of the warrant –
this is a question of law – (the first issue); and (b) if so, how, and having regard to
which factors, it ought to have exercised its discretion in doing so – this is a question
of both fact and law – (the second issue).
[61] The first issue required the high court to engage with the legal question whether
severance is ever appropriate where the impugned part of the warrant is executed to
severance is ever appropriate where the impugned part of the warrant is executed to
any degree. This is a question that was left open in Thint22 and SARS submits that
there are no reported authorities on the question.
22 Thint fn 6 above paras 210-211.
21
[62] The high court did not engage with this issue at all, nor did it consider the
application of s 66 of the Tax Administration Act. Section 66 of the Tax Administration
Act regulates an application for the return of seized relevant material. The lawmaker
appears to have carved out a safety net for SARS. Section 66(3) vests the court with
the power to make the order it deems fit, on good cause shown. Section 66(4) vests a
court with a further discretion, one which the high court did not consider at all:
‘If the court sets aside the warrant issued in terms of section 60(1) or orders the return of the
seized material, the court may nevertheless authorise SARS to retain the original or a copy of
any relevant material in the interest of justice.’
[63] During argument before the high court, SARS conceded that the warrant was
overbroad.23 It conceded that its ambit was wider than the limited purpose for its
request, as recorded in paragraph 160 of the founding affidavit in the ex parte
application and it did not record the conditions in respect of two of the premises
identified in paragraph 161 of the founding affidavit in the ex parte application.
[64] SARS argued that the high court was empowered to amend or vary the order
granted in the ex parte application, had furnished the high court with a draft order that
caters for a variation of the order granted ex parte and had reminded the high court of
paragraph 7 of the consent order. The high court was urged to consider this.
Paragraph 7 of the consent order
[65] The high court judgment did not deal with paragraph 7 of the consent order at
all. Paragraph 1 of the high court order set aside the warrant in its entirety and
paragraph 4 interdicted SARS ‘from utilising any information secured as a result of the
search and seizure carried out on the strength of the warrant’. All of this was done
without interpreting paragraph 7 of the consent order or considering its potential impact
without interpreting paragraph 7 of the consent order or considering its potential impact
upon any order to be granted. In my view paragraph 7 of the consent order reflected
an agreement between the parties that relevant information secured as a result of the
search and seizure carried out on the strength of the warrant could be utilised for the
agreed purpose. I quote the full consent order below.
23 This concession in the high court is denied by Bullion Star in the answering affidavit in the application
for leave to appeal. Bullion Star asserts that the high court independently concluded that the warrant
was overbroad. This denial can safely be rejected as it would seem that Bullion Star overlooked the draft
order which was furnished to the high court and which caters for a limited warrant.
22
[66] In performing the interpretational exercise of the consent order, I will start with
the contextual setting. As the first judgment correctly records, Bullion Star launched
the urgent sealing application (the sealing application) on or about 4 April 2022 24 and
this resulted in the consent order which was endorsed by Collis J on 7 April 2022. The
urgent application sought the following relief:
‘2. Directing [Bullion Star] to institute an application for the reconsideration of the search and
seizure warrant issued by this Court on 28 March 2022, as envisaged in section 60 of the Tax
Administration Act 2011 (“TAA”), within 10 days of the grant of this order (“the reconsideration
application”);
3. Pending final resolution of the reconsideration application directing that:
3.1 all the material, documents and information seized, at [Bullion Star’s] premises under the
search and seizure warrant executed on 29 March 2022, and any copies or mirror images
made, be sealed and retained in the custody of [SARS];
3.2 no material, document or information derived from the search and seizure under the
warrant, or any copies or mirror images be employed in any investigation, audit or process by
[SARS] against [Bullion Star];
3.3 directing that [SARS] may not use any of the material, documents or information obtained
by it or any copies or mirror images thereof, pursuant to the search and seizure operation,
pending the outcome of the reconsideration application;’
[67] The founding affidavit of the sealing application correctly records that Bullion
Star, as a party affected by an order granted ex parte (without notice), could, as of
right, apply for the reconsideration thereof. Bullion Star nonetheless sought an order
in terms of which it would be compelled to exercise such right within 10 days of the
granting of an order in its favour in the sealing application.
[68] The purpose of the sealing application was succinctly summarized in the sealing
[68] The purpose of the sealing application was succinctly summarized in the sealing
application by Bullion Star in the following terms:
‘This right will ring hollow if the relief sought is not granted. I say so because the imminent
reconsideration application will be academic and pointless if the articles and any copies or
mirror images thereof are not sealed, and SARS not prevented from u tilising same as
explained above.’
24 The sealing application appears to have been served on SARS on 5 April 2022.
23
[69] In its founding affidavit in the sealing application, Bullion Star set out chapter
and verse regarding SARS’s failure to capture and assess the VAT return for the
11/2022 to 02/2022 VAT period. It claimed that a substantial refund was due to it. The
SARS Form VAT 201 corroborates that demand for the sum of R13 942 127.24. In
Bullion Star’s attorney’s letter of 22 March 2022, Ms Faber communicated that if the
demand were refused or not attended to by SARS within 10 business days of receipt
of the letter, Bul lion Star would institute legal proceedings against SARS. The letter
further communicated that SARS was intentionally frustrating Bullion Star and
procrastinating in finalising the assessment, considering the substantial refund due to
Bullion Star.
[70] SARS responded to this as follows:
‘As detailed above, the prejudice, if SARS is not allowed to consider the seized documentation,
is more that of [Bullion Star] than of SARS, as SARS will not be able to complete the pending
audit.
I point out that SARS would in any event have been able to have had access to this information,
as the taxpayer would have been obliged to provide SARS with the relevant information as a
result of the audit and if SARS requested same in terms of section 46 of the Tax Administration
Act.’
[71] It thus came as no surprise when the parties – Bullion Star, anxious to be
refunded its R14 million, and SARS, being threatened with legal action should it not
finalise the audit – recorded in their consent order an agreement that:
‘SARS is authorised to use the documents and information seized pursuant to the warrant in
the course and scope of the VAT audit for the periods 11/2020 to 02/2022.’
[72] The only question which remains is whether this authorisation was limited in
time. Bullion Star contends it was intended to regulate the interim period only until the
hearing of the reconsideration application, and hence that the high court’s order was
hearing of the reconsideration application, and hence that the high court’s order was
sound. SARS contends that it was entitled to use the relevant seized documentation
for purposes of an audit in respect of the period concerned. It argues that it is not
possible to use the relevant documents and information seized pursuant to the warrant
in the course and scope of a VAT audit on an interim basis.
24
[73] Interpretation must start somewhere, and it falls to this Court to search for the
meaning of the consent order, considering the text to be interpreted, the broader
context in which it appears, and the purpose thereof, 25 which is, of course, a unitary
exercise.
[74] I have above started with the context of the order and then worked through the
express wording contained in paragraph 7 of the consent order. In my view, the only
meaning that can be attributed to paragraph 7 is that it is a self -standing agreement
between Bullion Star and SARS to utilise the documents necessary to perform and
finalise the audit, in the context of Bullion Star wanting to be refunded R14 million, and
SARS wanting to avoid further litigation in respect of such refund. This is its purpose.
[75] The first judgment finds that the dicta in Pretoria Portland is dispositive of the
entire issue because it held that an application for the issuing of a warrant can only
ever lead to a provisional order that is subject to reconsideration. I agree with the legal
position as summarised in paragraphs 44 to 49 of Pretoria Portland by Schutz JA in
the unanimous judgement . However, those general principles are, in my view, not
conclusive to the interpretational exercise this Court is called upon to perform in thi s
case. First, the judgment deals with ex parte orders granted for search and seizure
warrants in terms of the Competition Act 89 of 1998. This matter involves the Tax
Administration Act; second, the consent order was granted as part of the sealing
application which distinguishes this matter from Pretoria Portland; third and perhaps
most importantly, Pretoria Portland was not concerned with a consent order which dealt
with the defined use of a certain category of documents seized.
[76] The first judgment in paragraph 33 deals with the purpose of the consent order
in the following terms:
‘This is decisive of SARS's argument. An examination of the intention behind the
‘This is decisive of SARS's argument. An examination of the intention behind the
reconsideration application clarifies the position. The notice of motion confirms that the consent
order was interim. The prohibition on using the obtained material was contingent on the
25 As encapsulated in this Court’s path -finding judgment in Natal Joint Municipal Pension Fund v
Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) para 18
and reaffirmed in many Constitutional Court judgments including Independent Community Pharmacy
Association v Clicks Group Ltd and Others [2023] ZACC 10; 2023 (6) BCLR 617 (CC) paras 238 and
239.
25
outcome of the reconsideration application. Considering that the overbroad warrant had
already been issued and executed, Bullion Star’s intended application for reconsideration
served as the only remaining safeguard against the unlawfully obtained data. If the warrant
was found to be unlawful, then the documents could not be used, otherwise there would be no
purpose to have the issuance of the warrant reconsidered’
[77] I assume that the notice of motion being referred to is the one in the sealing
application. The notice of motion can only inform what was intended to be achieved by
Bullion Star in the sealing application. It cannot ‘confirm’ that paragraph 7 of the
consent order was intended to be interim. It is relevant to context, but that is as far as
it can assist in the interpretation of paragraph 7 of the consent order.
[78] The first judgment does not employ ‘the triad’ being of text, context, and purpose
in interpreting the consent order as a whole, or paragraph 7 in particular, in order to
arrive at the conclusion it does. I am thus unable to engage with the reasoning
underpinning the conclusion reached.
[79] The consent order provides:
‘1. That the applicant, (“Bullion Star”), is ordered to institute its application for reconsideration
of the search and seizure warrant issued by this Honourable Court on 28 March 2022, in terms
of section 60 of the Tax Administration Act, Act 28 of 2011(“the warrant”), within ten days from
date of this order;
…
3. That the parties are directed to approach the Honourable Deputy Judge President of this
Court for enrolment of the reconsideration application, once all affidavits have been filed;
4. That pending the finalisation of the reconsideration application in this Court, and subject to
paragraph 6 & 7 below , no documents or information derived from the search and seizure
pursuant to the warrant be used by SARS in the execution of its duties and obligations in terms
of the tax Acts as defined in section 1 of the Tax Administration Act;
5. Nothing in paragraph 4 of this order shall be interpreted to mean that any document or
information obtained by SARS from a source other than the search and seizure effected
pursuant to the warrant may not be used by SARS in the execution of its duties and obligations
in terms of the tax Acts as defined in section 1 of the Tax Administration Act.
26
6. Nothing in this order will prevent SARS from considering the documents or information
(which includes the documents or information contained on any electronic storage device)
obtained by SARS as a result of the search and seizure effected pursuant to the warrant, solely
in order to establish whether such document or information, may be returned to the person or
persons from whom the documents or information or electronic storage device containing such
documents or information were taken during the execution of the warrant;
7. SARS is authorised to use the documents and information seized pursuant to the warrant in
the course and scope of the VAT audit for the periods 11/2020 to 02/2022; 8. SARS is directed
to immediately commence with the compilation of a detailed inventory of all documents and
information seized pursuant to the warrant and to keep Bullion Star informed on a weekly basis
of the progress of the aforesaid inventory… .’ (Emphasis provided.)
[80] Paragraph 4 of the consent order records the parties’ interim agreement
pending the finalisation of the reconsideration application. It expressly records that its
provisions are subject to paragraphs 6 and 7. (Emphasis added.) In my view, the
answer to the question of why such paragraphs were excluded from the reach of
paragraph 4 is clear: the provisions of paragraphs 6 and 7 are final in effect, and those
contained in paragraph 4, are int erim. The content of paragraph 6 bears this out: it
permits SARS to look at a document to establish whether it should be returned to that
individual. How such an act can be undone once executed is difficult to fathom. Once
a SARS official has looked at a document and made a decision about it, it cannot be
undone. Such an act is final. Similarly, the content of paragraph 7 supports this view:
once a document or piece of information has been used for the relevant VAT -period
audit, it cannot be ‘unused’. It has been ‘consumed’ into the process of an audit, or,
audit, it cannot be ‘unused’. It has been ‘consumed’ into the process of an audit, or,
put differently, once it has been looked at and processed, that cannot be undone. It is
for this reason, that paragraphs 6 and 7 were excised from the reach of paragraph 4.
[81] The first judgment proffers no explanation of how SARS is to ‘unsee’ the
documents and information it had regard to in preforming the VAT audit for the periods
11/2020 to 02/2022 as contemplated in paragraph 7 of the consent order.
[82] This construction all ties up with the obligation in paragraph 8 of the consent
order: SARS was obliged to compile a detailed inventory of all documents and
information seized. This exercise would enable the parties and the court to determine:
27
(a) the documents and information that were relevant to the VAT audit for the periods
11/2020 to 02/2022 and which SARS could use (paragraph 7 of the consent order); (b)
the documents and information SARS examined and returned to the person or persons
from whom they were taken (paragraph 6 of the consent order); and, (c) that use of a
document and any information in terms of paragraph 5 of the consent order could be
verified and cross-checked if the source were disputed at any stage.
[83] I therefore conclude, having regard to the text, context and purpose of
paragraph 7 of the consent order, that the objective and sensible meaning is that it is
final.
[84] SARS argues that such a finding ‘renders paragraph 4 of the order of [Judge]
Janse van Nieuwenhuizen incompetent’. Paragraph 4 of the reconsideration order
reads:
‘The respondent [SARS], its employees and/or agents are interdicted from utilising any
information secured as a result of the search and seizure carried out on the strength of the
warrant.’
[85] What needed to be culled from paragraph 4 of the reconsideration order were
those documents which were relevant to the VAT audit for the periods 11/2020 to
02/2022, as those documents the parties agreed could be used. (Emphasis added)
SARS states that it seized almost 28 000 documents. The detailed inventory compiled
by SARS in terms of paragraph 8 of the consent order should have been used to
identify those documents used for the VAT audit and those doc uments not used. The
documents not used ought to have been returned or destroyed (paragraphs 2 and 3 of
the reconsideration order) and ought to have formed the subject matter of the interdict
contemplated in paragraph 4 of the reconsideration order. I will refer to such identified
documents and information, t hose not used in the VAT audit, as ‘the tainted
documents’.
[86] The submissions by Bullion Star that there would be no benefit or purpose to it
[86] The submissions by Bullion Star that there would be no benefit or purpose to it
in pursuing an expensive and time-consuming reconsideration application if, no matter
the outcome of the reconsideration application, SARS would have the benefit of using
28
the seized documents, are without substance. The fate of the tainted documents would
still need to be determined. Crucially, the court would have had to decide whether the
warrant ought to have been authorised and issued and, if so, for what purpose, and i t
would then have decided whether it was empowered to limit the ambit of the warrant.
What to do?
[87] This Court has repeatedly said that it is desirable, where possible, for a lower
court to decide all issues raised in a matter before it. 26 This impacts on the fairness of
an appeal hearing. The reasons for this are that litigants are entitled to a decision on
all issues raised, especially where they have an option of appealing a matter further;
and that the court to which an appeal lies benefits from the reasoning on all issues. 27
In Spilhaus Property Holdings (Pty) Ltd and Others v Mobile Telephone Networks (Pty)
Ltd,28 the Constitutional Court found that the same applies equally to the Supreme
Court of Appeal.
[88] If I had commanded the majority of this Court, I would have remitted the matter
to the high court to decide the first and second issues defined previously. It was obliged
to determine: the first issue – whether it was empowered to limit the ambit of the
warrant; and the second issue – if it was so empowered, how, and having regard to
which factors, it ought to have exercised its discretion in doing so. That w ould have
entailed deciding to what extent its discretion was fettered by the agreement recorded
in paragraph 7 of the consent order.
[89] The high court did not address these issues at all. It cannot be in the interests
of justice for this Court to sit as a court of first instance on an important interpretational
issue, nor as a court of first instance on the exercise of a discretion that would include
fact-intensive questions. These issues also include novel issues of law.
26 Levco Investments (Pty) Ltd v Standard Bank of SA Ltd 1983 (4) SA 921 (A) at 928A; Democratic
Alliance v Acting National Director of Public Prosecutions [2012] ZASCA 15; 2012 (3) SA 486 (SCA);
2012 (6) BCLR 613 (SCA) para 49; and Theron N O v Loubser N O [2013] ZASCA 195; [2014] 1 All SA
460 (SCA); 2014 (3) SA 323 (SCA) para 26. See also Heyman v Yorkshire Insurance Co Ltd 1964 (1)
SA 487 (A) at 491.
27 Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC); 1999 (2) SA 667 (CC); 1999 (3)
BCLR 253 (CC) para 12.
28 Spilhaus Property Holdings (Pty) Ltd and Others v Mobile Telephone Networks (Pty) Ltd [2019] ZACC
16; 2019 (4) SA 406 (CC); 2019 (6) BCLR 772 (CC) para 44.
29
[90] The high court would be better placed to receive further evidence, without
prejudice to either party . It could conceivably also have regard to the inventory
compiled in terms of paragraph 8 of the consent order and, due to the passage of time,
permit the filing of further affidavits relating to the stage of the VAT audit. This Court
was told from the bar that the audit has been completed. This paragraph is not intended
to be prescriptive, and the high court would not be bound to follow any of these
suggestions.
[91] I would accordingly have upheld the appeal and remitted the matter to the high
court (not necessarily the same judge, although there is no reason why it should not
be) for the determination of the issues summarised in paragraph 88 hereof.
________________________
I OPPERMAN
ACTING JUSTICE OF APPEAL
30
Appearances:
For Appellant: B H Swart SC with S Maritz
Instructed by: VZLR Inc, Pretoria
Webbers Attorneys, Bloemfontein
For Respondent: A R Bhana SC with A B Omar and S Mohammed
Instructed by: Zehir Omar Attorneys, Springs
Hendre Conradie Inc, Bloemfontein.