2
NGWATO ENGINEERING AND MAINTENANCE THIRD RESPONDENT
(PTY) LTD
(Registration Number: 2016/144615/07)
ANDERSONBROWN CC FOURTH RESPONDENT
(Registration Number: 2011/056965/23)
ASGARD TRADING CC FIFTH RESPONDENT
(Registration Number: 2011/051706/23)
BRAVOPLEX 115 CC (IN LIQUIDATION) SIXTH RESPONDENT
(Registration Number: 2010/109796/23)
FIREBREAK SAFETY APPLIANCES (PTY) LTD SEVENTH RESPONDENT
(Registration Number: 2015/119944/07)
LIFHO CONSTRUCTION CC EIGHTH RESPONDENT
(Registration Number: 2008/209086/23)
MANGLO INDUSTRIAL AND MINING SUPPLIER NINTH RESPONDENT
(PTY) LTD
(Registration Number: 2014/054906/07)
CENTRAL SOURCING GROUP (PTY) LTD TENTH RESPONDENT
(Registration Number: 2015/098396/07)
TRIEAGLE ENERGY (PTY) LTD ELEVENTH RESPONDENT
(Registration Number: 2016/314068/07)
ESOX MANUFACTURING FACTORY (PTY) LTD TWELFTH RESPONDENT
(Registration Number: 2018/111648/07)
ADVANCED PLANT INDUSTRIALISTS THIRTEENTH RESPONDENT
(PTY) LTD
(Registration Number: 2018/566965/07)
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TAHUTI TRADING 59 (PTY) LTD FOURTEENTH RESPONDENT
(Registration Number: 2013/094084/07)
ZZYZX TRADING AND PROJECTS FIFTEENTH RESPONDENT
(PTY) LTD
(Registration Number: 2013/036013/07)
ALJ TECH (PTY) LTD SIXTEENTH RESPONDENT
(Registration Number: 2019/003046/07)
DOUBLE IMPACT PROJECTS (PTY) LTD SEVENTEENTH RESPONDENT
(Registration Number: 2016/178187/07)
IZIMVELO MINING LABOUR AND PLANT EIGHTEENTH RESPONDENT
HIRE CC
(Registration Number: 008/256614/23)
KEEWAVE TRADING 334 (PTY) LTD NINETEENTH RESPONDENT
(Registration Number: 2018/515531/07)
AMIBASE (PTY) LTD TWENTIETH RESPONDENT
(Registration Number: 2016/047545/07)
DIBUSEENG BUSINESS ENTERPRISE TWENTY-FIRST RESPONDENT
(PTY) LTD
(Registration Number: 2014/067732/07)
MPHEGOLLE TRADING ENTERPRISE TWENTY-SECOND RESPONDENT
(PTY) LTD
(Registration Number: 2015/343501/07)
4
_____________________________________________________________
JUDGMENT
______________________________________________________________
FOURIE AJ
INTRODUCTION:
[1] The Commissioner of the South Revenue Service (SARS) sought and
obtained, on 27 March 2026 , a provisional Preservation Order, under the
auspices of Section 163 of the Tax Administration Act 28 of 2011, against 34
respective Respondents. Amongst those Respondents were the Fourteen th
Respondent, Tahuti Trading 59 (Pty) Ltd, who, in the current application, seek
to have the provisional Preservation Order discharged. The Fourteenth
Respondent, as they are entitled to do under Rule 6(8) of the Uniform Rules
of Court, has anticipated the return day of the Preservation Order. The
Applicant moves to have the Preservation Order made final against the
Fourteenth Respondent.
BACKGROUND:
[2] As the matter deals with certain provisions of the Tax Administration Act, it is
relevant for such to be quoted:
“163 (1) A senior SARS Official may, in order to prevent any
realisable assets from being disposed of or removed, which
must frustrate the collection of the full amount of Tax that is
due or payable or the official unreasonable grounds is
satisfied may be due and payable, authorise an ex parte
application to the High Court for an Order for the
preservation of any assets of the Tax payer or other person
prohibiting any person, subject to the conditions and
5
exceptions as may be specified in the Preservation Order,
from dealing in any manner with the assets to which the
Order relates.”
[3] At the hearing of the matter, the respective parties were in agreement that the
jurisdictional requirements needed to be proven in order for the Applicant to
succeed in the application were:
[3.1] A tax amount being due or payable, or the official on reasonable
grounds, is satisfied, may be due and payable.
[3.2] There are realisable assets, directly or indirectly linked to the
Respondents (in this case, the Fourteenth Respondent, from which
the Applicant may collect the tax amounts owed or reasonably
suspected to be owed.
[3.3] The realisable assets may be disposed of or removed, which may
frustrate the collection of the full amount of tax owing by the
Respondent in question, in this case, the Fourteenth Respondent;
and
[3.4] A Preservation Order is required in order to prevent the realisable
assets from being disposed of or removed, which may frustrate the
collection of the full amount of tax, whether proven or reasonably
expected to exist.
[4] The founding papers filed by the Applicant allege a scheme of interconnected
individuals and corporate entities that unlawfully and irregularly extract money
from ESKOM via corrupt procurement activities which lead, as the Applicant’s
papers go, to an esti mated total unpaid tax across the Respondents in the
amount of R 1 166 055 806.32.
6
[5] The Applicant’s founding papers at length deal with the respective
Respondents and the manner in which they are, according to the Applicant,
interlinked and conducting themselves in an unlawful manner.
[6] The Fourteenth Respondent in their answering papers point out that the
Applicant has not averred nor proven any relationship between the Fourteenth
Respondent and the other Respondents so mentioned in the application.
[7] The Fourteenth Respondent argues that the Applicant sketched an incorrect
picture pertaining to the Fourteenth Respondent and that the Court, when
dealing with the ex parte application, was misled into granting the application
under the guise that the Fourteenth Respondent was part and parcel of the
complained of illegal and irregular activities.
[8] It is not contested in the papers that the Fourteenth Respondent indeed had
some business dealings with ESKOM. The Court is similarly satisfied, and it
had not seriously persisted with by the Applicant that the Fourteenth
Respondent was not mentioned as an interlinked party to the complained -of
scheme.
[9] As addressed with the respective legal representatives, when the matter was
called, the Court believes that nothing turns on this point. The Application is
brought by the Commissioner for the South African Revenue Service, not the
South African Police Service. The matter at hand concerns the Tax liability of
the Fourteenth Respondent and not whether the Fourteenth Respondent
contravened any other legislation or conducted themselves in any other illegal
or unlawful manner.
[10] Whilst the Fourteenth Respondent was pulled together in an application by the
Applicant, a standalone application against the Fourteenth Respondent would
have been equally competent. The fact of the matter is simply that the Court
a quo, initially, and this Court on the anticipated return date, needs to establish
whether the Applicant proved the necessary facts to sustain the relief it seeks
7
against the Fourteenth Respondent. The jurisdictional requirements only
need to be proven against the Fourteenth Respondent, as it is only with the
Fourteenth Respondent that this Court is dealing.
[11] The bulk of the Applicant’s application does not speak to, nor does it concern
the Fourteenth Respondent, and it is only the paragraphs dealing expressly
with the Fourteenth Respondent to which the Court will look to establish
whether the Applicant has made out a case for the relief they seek.
[12] Whether the strategy of the Applicant has led to unnecessary costs being
incurred by the Fourteenth Respondent in the manner in which they had to
prepare or present their opposition to the application, is one that does not and
should not lead to the dismissal of the application, but might impact on a cost
order a Court ultimately makes if the Court is with the Applicant ultimately.
[13] The Applicant says that an audit process was followed in respect of the
2018 – 2024 years. It is premised on the aforesaid that the Applicant alleges
discrepancies in respect of Income Tax in the amount of R 57 540 170.17 and
in respect of VAT in the amount of R 54 520 117.17 on the part of the
Fourteenth Respondent. The potential prejudice suffered by the Applicant is
accordingly estimated at an amount of
R 24 289 265.22. It is this amount to which any Preservation Order sought by
the Applicant ought to be capped as the maximum exposure alleged by the
Applicant.
[14] In respect of the under -declaration and the possible shortfall, the Fourteenth
Respondent alleges that they are Tax -compliant, and that as such the relief
sought by the Applicant is non-suited. The Fourteenth Respondent indicates
that a current payment ar rangement with the Applicant in respect of Value
Added Tax is in place, which was concluded on 15 December 2025, and that
the Fourteenth Respondent has not been the subject of any audit,
investigation or enquiry, other than a routine notification of audit issued on
investigation or enquiry, other than a routine notification of audit issued on
5 January 2026, which audit is currently pending.
8
[15] Tax compliance is not a status to be claimed by a party at their mere say -so.
The Tax liability of a party is calculated based on the evidence presented to
SARS by that party. If it later turns out that a party has not declared all relevant
and appropriate information to SARS, then it is evident that a party is indeed
not Tax-compliant and that a shortfall in the Tax obligations of a party may
exist.
[16] This Court need not decide whether such an under declaration was made with
any amount of intent, or by mistake. This Court is not even tasked to finally
pronounce on whether such an under declaration exists. The only concern of
this Court is whether a reasonable expectation exists that justifies the
expectation that a possible under declaration and an underdeclared Tax
obligation exists. If the Court is satisfied with this jurisdictional requirement,
the remaining requirements may be evaluated.
[17] In the current matter, the SARS investigation and the preliminary findings
satisfy a reasonable apprehension of a Tax amount that might be due and
payable.
[18] The existence of realisable assets directly or indirectly linked to the Fourteenth
Respondent is dispensed with by the curator’s affidavit filed in respect of the
Fourteenth Respondent. Although the curator indicated that his investigation
is not yet complete, if the report is read together with the Answering Affidavit
and the submissions made during the hearing of the matter, several movable
assets of significant value are common cause to exist.
[19] SARS has further preserved funds in the Fourteenth Respondent’s bank
accounts at First National Bank and Standard Bank , in the amount of
approximately R 800 000.00.
9
[20] The Court is accordingly satisfied that the jurisdictional requirement in respect
of the existence of assets has been satisfied.
[21] In respect of the safeguarding of the assets pending the finalisation of the
recovery of any potential Tax liability, the parties are in agreement that
SARS v TRADEX [1] may be regarded as the leading authority to the point.
“SARS is required to show, I think, that there is a material risk that assets
that would otherwise be available as satisfaction of Tax will, in the
absence of a preservation order, no longer be available. The fact that
the taxpayer bona fide considers that he does not owe the tax would not
stand in the way of a preservation order if there is a material risk that
realisable assets will not be available when it comes to ordinary
execution. In an obvious case is that a company which, believing it owes
no tax, proposes to make a distribution to its shareholders.”
[22] The question is simply, as stated by the Court in COMMISSIONER FOR THE
SOUTH AFRICAN REVENUE SERVICE v HAMILTONN HOLDINGS [2]:
“The critical question is whether reasonable grounds exist to believe that
there is a real risk of assets being dissipated and thereby frustrate the
fiscus’s attempt to collect what is due. Given the picture that emerges,
would a reasonable observer suspect that the behaviour of the
Respondents presented a threat to revenue collection.”
[23] The question of whether reliance on a scheme failing should lead to the
ultimate and immediate dismissal of the application was addressed and
resolved in the matter of BUTHELEZI [3]. Irrespective of the Fourteenth
Respondent’s involvement in a scheme, if the case is made by the Applicant
and proven to the Court’s satisfaction at this stage that a reasonable
apprehension of breaches in respect of Tax obligations by the Fourteenth
10
Respondent exists and the Court is satisfied that a reasonable apprehension
that the Preservation Order is necessary, the Order ought to be confirmed.
[24] There are three further defences attempted by the Fourteenth Respondent
that are deserving of evaluation, being:
[24.1] The absence of facts that would justify the preservation of the
Fourteenth Respondent’s assets;
[24.2] A defective reliance on the alleged personal liability of a non-joined
director; and
[24.3] An unlawful disclosure of confidential information relating to the
Fourteenth Respondent and its directors.
NON-DISCLOSURE OF MATERIAL FACTS:
[25] An ex parte application by its nature requires the utmost good faith on the part
of an Applicant. The Court, on the return date or on the anticipated date, has
discretion to set aside the Order with costs on any grounds of non-disclosure.
It should, however, be noted that the Court has discretion, and is not
compelled, even if the non-disclosure was material, to dismiss the application
or to set aside the proceedings.[4]
[26] Only material facts, and facts which are within the Applicant’s knowledge,
should be disclosed. [5]
[27] The Court is satisfied that the Applicant presented to the Court all the relevant
facts necessary for the Court to come to a just conclusion. The Fourteenth
Respondent has not proven any material facts to exist which were in the
knowledge of the Applicant and which ought to have been advanced to the
Court which would have materially impacted the decision the Court initially
took. Insofar as the Tax compliance is an element the Fourteenth Respondent
11
wishes the Court to consider, the existence of a further audit revealing facts
after any alleged Tax compliance is sufficient to overcome the averments as
made by the Fourteenth Respondent.
SARS RELIANCE ON ALLEGED PERSONAL LIABILITIES OF NON -JOINED
DIRECTOR:
[28] In reliance o n the point , the Director for the Fourteenth Respondent,
Mr Williams seems to rely on the fact that the items seized by the curators are
items of a personal nature that belong to him, and which have no bearing on
the alleged Tax liability of the Fourteenth Respondent.
[29] The current application is not one suited for the aforesaid argument. Nothing
precludes Mr Williams from filing an affidavit with the curator, proving his
ownership of the goods in question, after which such goods ought to be
immediately released to him. The papers filed by SARS speak solely to a Tax
consideration owed by the Fourteenth Respondent, and not its Directors. As
such, the Order made, which the Applicant seeks to confirm, is only against
the Fourteenth Respondent and not its Directors, and as such, the reliance on
this purported defence by the Fourteenth Respondent must fail.
ALLEGED UNLAWFUL DISCLOSURE OF CONFIDENTIAL INFORMATION:
[30] The Fourteenth Respondent states that the Applicant has, by grouping the
Fourteenth Respondent together with the other Respondents, publicly
associated the Fourteenth Respondent with the other Respondents and the
allegations of corruption and irregular procurement when SARS has not made
or proven any of the aforesaid averments against the Fourteenth Respondent
[31] The Respondents state that the disclosure caused unwarranted reputational
harm and is a ground for the discharge of the Provisional Order.
12
[32] The Court is satisfied that any inference that the Fourteenth Respondent forms
part of the alleged scheme would be unwarranted as no allegations against
the Fourteenth Respondent are made in this regard. In respect of the pooling
together of the Fourteenth Respondent with the other Respondents insofar as
it relates to Tax non -compliance, the Fourteenth Respondent cannot escape
the prima facie position in that the association with the other Respondents on
this ground cannot be regarded as unwarranted.
[33] No disclosures were made in respect of the Fourteenth Respondent’s Director;
the disclosures made, other than Mr Williams being a Director of the
Fourteenth Respondent, all relate to the alleged Tax non -compliance of the
Fourteenth Respondent.
[34] The application being brought ex parte , the Applicant was necessitated to
provide sufficient information under which relief could be granted. If the
Applicant was scarce in the information provided, it can be assumed that the
Fourteenth Respondent would have taken issue with the fact that not a ll and
sufficient information was provided to the Court in respect of the Fourteenth
Respondent. Section 69(2) of the Tax Administration Act , supra, allows the
Applicant to disclose confidential information in the course of performance of
duties. The com plained-of actions are not necessarily a direct disclosure of
confidential information or sensitive information , but rather an inference the
Fourteenth Respondent wishes to avoid being formed in respect of the
involvement of the Fourteenth Respondent with the other Respondents.
[35] The Fourteenth Respondent in their answering papers states that a damages
claim in this regard may be forthcoming. The Court is satisfied that no
irregularity occurred that ought to lead to the setting aside of the Preservation
Order on this ground.
13
UNDUE HARDSHIP:
[36] The final string to the Fourteenth Respondent’s bow is that the Fourteenth
Respondent alleges that less intrusive mechanisms were available to the
Applicant than the preservation of the Fourteenth Respondent’s assets by way
of Section 163.
[37] The very nature of a Preservation Order is accepted to be inconvenient and
intrusive. A Preservation Order is intended to secure an asset or assets and
to take away a Respondent’s right to deal with that asset as it ordinarily might
have wanted to do. Th e existence of this inconvenience towards a
Respondent is not draconian, nor can a Respondent be stated to be deprived
of his property arbitrarily. He is simply restrained from dissipating the property
until the conclusion of the investigation and the establishment of the final Tax
liability.[6] Any inconvenience or harsh realities in respect of the existence of
a Preservation Order is accordingly to be justified by the ultimate goal such
preservation seems to achieve.
[38] It would only be under circumstances where the preservation was being
utilised for an improper motive, or where an Applicant is overreaching, that the
hardship encountered by a Respondent would be regarded as undue or
draconian.
[39] The Respondents contend that the application overextended what was
necessary to achieve the ultimate purpose. The Fourteenth Respondent
avers that the preservation of assets was not necessary as there is no
reasonable apprehension that any of the assets of the Fourteenth Respondent
were to be dissipated.
[40] All the facts before the Court indicate that the Fourteenth Respondent is of the
intention of proceeding with their normal business operations pending the
finalisation of the investigation, and in the normal business-as-usual approach,
it can reasonably be expected that the Fourteenth Respondent would deal
14
with its assets as it ordinarily would have. A structured approach to dealing
with the Fourteenth Respondent’s assets pending the finalisation of the issues
at hand is neither disproportionate nor unfair. The relationship between the
Fourteenth Respondent and the curator is one that is flexible enough to ensure
that the Fourteenth Respondent can proceed with their business operations,
and that the Fourteenth Respondent will need to allow the utilisation of certain
assets in order to perform the necessary functions to ensure the business
operations of the Fourteenth Respondent can proceed.
[41] The Applicant alleges that a presumption can be drawn that a party who has
underdeclared their income and has either knowingly or negligently
circumvented their Tax obligations could, at least prima facie, be expected to
dissipate assets pending investigations to secure some sort of benefit for
themselves. The court accepts this proposition at the very least as a prima
facie position in respect of preservation orders
[42] Preservation Orders, such as the current one, are not intended to dispose of
the ultimate issues between the parties finally.
[43] This Court is satisfied that, given the large tax implications as reasonably
alleged by the Applicant and the facts presented to this Court, the Preservation
of the Fourteenth Respondent’s assets is justified.
[44] The defences as raised by the Fourteenth Respondent do not rebut the
evidence presented by the Applicant in support of the current application.
16
Judgment reserved on: 19 May 2026
Date of delivery: 2 June 2026
____________________________________________________________
[1] SARS v TRADEX (Pty) Ltd and Others 2015 (3) SA 596 (WCC)
[2] Commissioner for the South African Revenue Services v Hamiltonn Holdings
(Pty) Ltd 20211 JDR 0460 (GP)
[3] Commissioner for the South African Revenue Services v Buthelezi and Others
87 SAT C571 (10 May 2024)
[4] Schlesinger v Schlesinger 1979 (4) SA 342 (W)
[5] Commissioner for the South African Revenue Services v Bachir and Others
(87306/2014) [2016] ZAGPPHC 251 (22 April 2016)
[6] Commissioner for the South African Revenue Service v Van der Merwe and
Others (13048/13) [2014] SAWCHC 59