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[2026] ZAGPJHC 967
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Devland Cash and Carry (Pty) Ltd v Commissioner for South African Revenue Service (5837/2020) [2026] ZAGPJHC 967 (28 August 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
JOHANNESBURG
Case
No:
5837/2020
In
the matter between:
DEVLAND
CASH AND CARRY(Pty) Ltd
Applicant
and
THE COMMISSIONER FOR
THE
SOUTH
AFRICAN REVENUE SERVICE
Respondent
JUDGMENT
MAKUME, J:
Introduction
[1]
This is an application to compel the
respondent, being the Commissioner of the South African Revenue
Services (SARS) to deliver
the record of the impugned decisions in
terms of Rule 53 of the Uniform Rules of Court.
Background facts
[2]
The applicant, Devland Cash and Carry Pty
Limited, is a private for profit company registered and incorporated
in terms of the company
laws of the Republic of South Africa, with
its registered address at corner Klipkas and Piston Roads, Devland,
Johannesburg. Devland
carries on business as a wholesaler of
fast-moving consumables, goods, to customers in South Africa and its
neighbouring countries.
[3]
The respondent is the Commissioner for the
South African Revenue Services (SARS) with its registered address at
299 Bronkhorst
Street, New Muckleneuck, Pretoria. The respondent
is a statutory body with powers to collect tax from individuals as
well as companies
doing business in the Republic of South Africa.
The revenue collected is used to run various institutions of the
government
of South Africa.
[4]
Taxpayers are by law compelled on a yearly
basis to submit their tax returns to their local SARS office, which
tax returns are then
assessed by officials in the employment of SARS
who then issue what is called final returns to a taxpayer.
[5]
In the event SARS officials find any
irregularities whilst auditing the tax returns, SARS issues
reassessments to such a taxpayer
and also levy penalties either for
late submission or incorrect returns, and in most instances,
penalties and interest are levied
with such reassessment by SARS.
[6]
On or about the 15
th
of November 2018, SARS finalised the audit and reassessment of VAT
returns in respect of the applicant and demanded payment by
31
December 2018. SARS had also reassessed the applicant's corporate
income tax by 28 September 2018.
[7]
The total amount due by the applicant was
reassessed and determined at R1.9 billion, which amount included
penalties and interest.
On receipt of the assessment, the applicant
submitted a letter to SARS requesting suspension of the payment of
the tax debt for
corporate income tax and VAT in terms of Section 164
of the Tax Administration Act 28 of 2011 (TAA).
[8]
During or about February 2020, SARS
informed the applicant of its decision declining the applicant's
request for suspension of payment
of the additional assessment in
respect of both VAT and corporate income tax.
[9]
On 21 February 2020, the applicant launched
an urgent application in terms of Rule 6(12) of the Uniform Rules of
Court and sought
the following relief:
a.
that pending the final resolution of the
relief in Part B, that the decision of the respondent of 7 and
11 February 2020
to decline the applicant's request for
suspension of payment of the applicant's tax debt and in respect of
corporate income tax
for the period 2012 to 2015 and value-added tax
for the period January 2012 to November 2016 are suspended.
[10]
The relief sought at that stage by the
applicant in Part B of that application is as follows:
a.
That the decision of the respondent of the
7th and 11th February 2020 to decline the applicant's request for the
suspension of payment
of the assessed tax are reviewed and set aside.
b.
Secondly, that the said decision be
referred back to SARS for reconsideration, alternatively, that the
decisions are substituted
by the following:
i.
that payment of the disputed tax is
suspended pending finalisation of the objection and appeal process,
ii.
that the applicant is directed to conclude
a session in security in favour of the respondent of his debtors book
to the value of
R145 748 114.04 in respect of his alleged
liability for corporate income tax and R108 000 000 in
respect of
the VAT assessment.
[11]
The urgent application served before Tsoka
J on the 25
th
of February 2020 and the following was made as order of court:
a.
That Part A of the application is postponed
sine die
.
b.
The respondent, SARS, shall deliver its
notice to oppose by 17h00 on Wednesday, 26 February 2020.
c.
That SARS delivers its answering affidavit
by 2 March 2020.
d.
Pending the arguing of the application and
delivery of judgement, (i), that SARS shall suspend all recovery
proceedings of whatsoever
nature, including the taking of any
judgement or the equivalent thereof in respect of the disputed tax
debt as defined in Paragraph
3.1 of the Notice of Motion.
e.
Such suspension shall operate as an interim
interdict.
[12]
During or about August or September 2020,
the applicant brought an application seeking an order to amend its
Notice of Motion
by amending Paragraph 2 of Part B of the Notice of
Motion by deleting the prayer for remittal of the decision to SARS
for reconsideration
and, in effect, only pursuing its erstwhile
alternative relief which is for substitution of the decision by the
Court hearing the
review application by suspending payment of the tax
debt pending finalisation of the objection and appeal proceedings.
[13]
That application served before Van Oosten
J, who confirmed in an order that the applicant had abandoned
reliance on the remittal
portion of the relief sought and, as for the
application for amendment itself, same was removed from the roll as
being moot. It
must be noted that whilst all this was happening, the
parties at the instance of SARS engaged in settlement discussions.
The settlement
discussions faltered when the applicant declined to
agree to an order to the effect that the impugned decision be
remitted for
reconsideration and insisted on an alternative order of
substitution. It is then that the applicants launched an application
seeking
to amend its prayers, which I have dealt with above.
[14]
On 20 October 2020, the applicant then
launched this application now seeking an order in the following
terms:
a.
Compelling the respondent to produce the
record pertaining to the impugned decision in the review application
in terms of Rule 53.
b.
That the record be dispatched to the
registrar of the court and to the applicant within five days of
service of the order.
c.
That the respondent pays costs.
[15]
In the affidavit supporting the application
to compel, the deponent, Mr Yusuf Gathoo, says the following at
Paragraph 20:
“
What
is evident is that in either event, the record is long overdue.
SARS delay in furnishing the record has prejudiced the
taxpayer, both
in its review application and in its pending amendment application.
The taxpayer is unable to supplement its founding
papers in the
review application as it is entitled to do so in terms of Uniform
Rule 53(4) until such time as it receives the record
from SARS.”
[16]
On the 9
th
of December 2020, SARS addressed a
letter to the applicant which reads in part as follows:
“
We
refer to your application to compel the record of decisions dated 29
October 2020. We submit that no formal response was made
to the
writer for provision of the record and as such, the application to
compel same was not necessary, as our client would have
provided same
to you on request. In any event, same is attached. You will note that
part of the minutes are redacted. This is as
a result of confidential
information contained therein pertaining to other taxpayers being
considered by the same committee on
the same day in question. As a
result, it is our client's provision of the record and the completely
unnecessary issuing of the
application to compel you are directed to
withdraw your application to compel.”
[17]
The applicant was not satisfied with what
had been sent by SARS. As a result, on 16 December 2020, the
applicant sent to SARS a
long list of what it requires and why it
regards the record furnished as incomplete. The applicant says that
everything it requested
in the correspondence of 16 December 2020
pertains to information and or documents and or evidence that served
before the relevant
SARS committees in deciding the taxpayer's
application for suspension of payment and therefore form part of the
record pertaining
to the impugned decisions and by failing to
respond, SARS has failed to provide the taxpayer with the full and
complete record
related to documents which the taxpayer is entitled
to.
[18]
On 15 June 2021, the applicant amended its
Notice of Motion in keeping with their letter dated 16 December 2020
and requested further
documents to be disclosed as part of the
record.
[19]
Notwithstanding, SARS and its Counsels
having formed the view that the further documents requested by the
applicant do not form
part of the record of the decision, a same
constituted interrogatories, and a fishing expedition, SARS filed a
supplementary record
on 9 April 2021. At that stage, SARS
hoped that the applicant would then file their supplementary
affidavit so as to
enable the review application to be proceeded
with. This was not to be, because on 26 May 2021, the applicant filed
an application
to amend his Notice of Motion by adding a list of
additional documents which it contends ought to be included in the
record. It
must also be noted and recorded that whilst all this was
happening, the applicant on 24 November 2020, filed an application in
terms of Section 18(1) of the Promotion of Access to Information Act
2 of 2000 (PAIA), in which it requested the same documents
which it
had already demanded in the application to compel.
[20]
There are in fact three proceedings taking
place between the applicant and the respondent. Firstly, it is this
review application.
Secondly, it is the pending appeal and lastly, it
is the application for information in terms of the PAJA Act. In the
meantime,
SARS is interdicted by the order granted in February 2020
from proceeding to do anything to recover what is due to the State.
[21]
It is trite law that the primary purpose of
Rule 53 is to facilitate and regulate applications for review.
The rule plays
a vital role in enabling a Court to perform its
constitutionally entrenched review function.
[22]
Notwithstanding the fact that the
applicants failed to strictly comply with the requirements of Rule
53(1)(b), SARS ignored that
and on 9 December 2020, delivered the
record which was followed by another record on 31 March 2021, after
Devland had on 16 December
2020 complained that the first record was
incomplete.
[23]
SARS raised additional assessment against
Devland after having scrutinised the returns and found that Devland
was intentionally
evading payment of tax by:
a.
Making false statements in its returns,
preparing false books of account, and claiming undue refunds.
b.
Deliberately issuing or passing credit
notes and credit journals to reduce income and output tax without
sufficient supporting documentation.
c.
Repeatedly invoicing goods as zero-rated
foodstuffs with no details for related parties only, showing that it
wilfully circumvented
the inventory system and did not charge VAT on
these goods.
d.
Wilfully neglecting to record income by not
dealing with long-standing credit balances in debtors' accounts and
unallocated receipts
in the accounts receivable and accounts payable.
e.
Recording sales as being exported in order
to avoid declaring and paying output tax.
[24]
It was as a result of the above findings
that SARS declined any request to suspend payment by Devland.
Devland now demands
that SARS must furnish to it further information
in the form of documents and recordals that took place in the
committees that
deliberated on the request for suspension.
[25]
On 26 May 2021, Devland delivered its
second supplementary affidavit, which included a demand for further
documents which became
listed as the complete record in its Notice of
Amendment dated 15 June 2021. It must be recalled that on 16
December 2020,
Devland forwarded a letter to SARS' attorneys
contending that the record that SARS had sent on 9 December 2020 was
incomplete.
Over and above that, on 26 October 2020, Devland
had issued a notice in terms of Rule 35, (12) and (14) calling on
SARS to deliver
within five days the following documents:
a.
Minutes of the SARS committee meeting in
terms of which that committee declined the applicant's suspension of
payment request on
7 February 2020.
b.
All documents and deliberations that served
before the SARS committee in relation to its decisions of 7 February
to decline
the applicant's suspension of payment request.
[26]
On 19 April 2021, in a letter by SARS'
attorneys, SARS told Devland that:
“
We
enclose the following documentation which serves to supplement the
record provided to you on 9 December 2020. We are
instructed to advise that your client is not entitled to sight any
documentation requested by you on behalf of your client referred
to
above.”
[27]
SARS was constrained to express itself in
the manner referred to above because it had become apparent that,
regardless of documents
having been provided to the applicant, the
applicant now and then supplements its founding affidavit by calling
for production
of further documents. Parallel with the issuing
of the supplementary affidavit to compel, the applicant has also
issued requests
for information in terms of the
Promotion of Access
to Information Act, in
which the applicant seeks the same documents
which it has already demanded in the
Rule 53
application.
Is this an application
to compel in terms of Rule 30A of the Uniform Rules of Court, or is
it a notice to discover in terms of Rule
35, or is it an application
to comply with the provisions of Rule 53(1)(b)?
[28]
It is common cause that the main
application seeks an order reviewing and or setting aside the
decision by the respondent in refusing
to suspend payment of
reassessed taxation due by the applicant to SARS in the sum of
R1.9 billion.
[29]
The applicant maintains that what SARS
provided to it on 9 December 2020, as well as on 21 April 2021, is
not sufficient and, in
fact, is an incomplete record of the
proceedings sought to be reviewed.
[30]
The record of proceedings that the
applicant seeks are detailed in the founding affidavit and relate to,
amongst others, the following:
a.
Detailed description of the risks
identified by the CRU during audit.
b.
Link chart analysis of all companies and
assets belonging to the taxpayer and its directors referred to.
c.
The committee member sign-off sheet in
respect of the meeting held on 15 October 2019.
d.
Documents and or evidence that served
before the relevant SARS committee detailing the basis on which the
committee decided not
to approve the recommendation presented at the
meeting of 5 March 2019, that the SOP application be declined and the
committee
decisions that the suspension application be reworked.
e.
Minutes of the meeting of 5 March 2019 at
which the recommendation that the suspension of payment applications
be declined was not
approved by the SARS committee.
f.
Documents and or evidence of SARS
contention that the taxpayer deals primarily in cash which makes it
difficult to prove hardship
referred to in Paragraph 5.2 under Point
4.2 of the minute of the meeting held on 15 October 2019. (the
minutes).
g.
Documents and or evidence relied on by SARS
for its contention that the incorporation of new companies in 2017
and 2018 and the
decreased VAT refunds claimed are indicative of a
possible transfer of the business to other entities referred to in
the minute.
h.
Documents and or evidence relied on by SARS
relating to the outcome of the investigations conducted by FIC
referred to in Paragraph
5.1 under Point 5 of the minutes.
i.
Documents and or evidence relied on by SARS
for its contention that there are no assets in the name of the
taxpayer except the stock
sitting in wholesale referred to in
Paragraph 5.1 under Point 6 of the minute.
j.
All underlying documents and or evidence
relied on by SARS to support its change in position at its meeting of
5 March 2019 that
there is no risk of the dissipation of assets
(referred to in Paragraph A on Page 5 of the recommendation of 5
March 2019) to the
meeting of the 15 October 2019 that the risk
of dissipation of assets is high referred to in Paragraph A on Page
10 of the
recommendation of 15 October 2019.
k.
Annexure L, which provides for a discussion
on the risk areas identified referred to in Paragraph D on Page 2 of
the large assessment
pack in respect of CIT that formed part of the B
team pack which relates to the decision taken on 15 October 2019
(large assessment
pack).
l.
The memorandum prepared by SARS forensic
audit which details the risks included in the risk profile and
referred to in Paragraph
F on Page 2 of the large assessment pack for
CIT.
m.
Evidence that the taxpayer has moved some
of its export business to other businesses within the company group
from about mid-2016
referred to in Paragraph 5(A) on Page 18 of the
large assessment pack for CIT.
n.
Debt collection plan (excel spreadsheet)
referred to in Part C on Page 19 of the large assessment pack for
CIT.
o.
Annexure L, which provides a detailed
description of the risks identified in the risk profile or report
referred to in Paragraph
1.6 on Page 1 of the large assessment pack
in respect of VAT that formed part of the meeting pack which relates
to the decision
taken on 15 October 2019.
p.
The template detailing an alleged serious
tax offence in respect of ghost exports and other alleged under
declaration of income
and output tax that was delivered to SARS
criminal investigations referred to in Paragraph 2.16(B) on Page 17
of the large assessment
pack for VAT.
q.
The applicant's management account as at
February 2019 that were provided to SARS on 11 September 2019
in support of the
suspension of the payment application.
r.
Confirmation of payment received by SARS
from the applicants of the amount of R300 000 per month.
s.
Vehicle schedule provided by the applicant
to SARS on 1 February 2019.
t.
Schedule of assets as of 28 February 2019
provided by the applicant to SARS on 1 February 2019.
u.
Audio recording or transcription of the
meeting held on 15 October 2019.
Issues for
determination
[31]
The crisp issue before me is whether
Section 68 of the TAA is in principle capable of being invoked by
SARS to justify withholding
documents that would otherwise fall
within the Rule 53 record.
[32]
It must be remembered that this application
to compel the furnishing of further documents is to enable the
taxpayer to test the
basis on which SARS declined to the suspension
of payment request whether such decision was undertaken in an
impartial and objective
manner. It is not an application aimed at
setting aside the assessment. That is left for the tax court to
decide on.
[33]
The taxpayer admits that amongst the list
of documents it requires are documents that they themselves provided
to SARS. In
resisting to produce the further documents, SARS
relies principally on the provisions of Section 68(1) of the TAA as
well as
Section 35
of the
Promotion of Access to Information Act 22
of year
2000 (PAIA) which act deals with the mandatory protection of
certain records of SARS.
[34]
It is so that in placing reliance on the
two acts SARS contains that the risk reports debt collection plans
and link chart analysis
are opinions, advice, reports as well as
recommendations as contemplated in
Section 68(1)(a)(i)
and (ii) of
the TAA including
Section 35
of PAIA.
[35]
The opinions, advice, debt collection plans
all contain information relating to the verification audit selection
procedures and
methods used by SARS in conducting audits and to
disclose such information is likely to jeopardise the effectiveness
of SARS audits
as contemplated in
Section 68(1)(k)
of the TAA.
[36]
The
Court in
Comair
Limited v Minister of Public Enterprises and Others
[1]
was confronted with a similar defence of confidentiality. The
question was framed in the following words by Jordaan J:
“
Whether
the first respondent's claim to confidentiality should be allowed to
act as an absolute bar to the disclosure of relevant
documentation
thus frustrating not only the applicant's ability to properly
prosecute his review application but also this Court's
ability to
determine the review on the basis of all relevant documents,
notwithstanding the proposal for a confidential regime
that would
protect the claimed confidentiality while ensuring limited yet
necessary access to the relevant documents.”
[37]
SARS maintains that it has fully complied
with the requirements of
Rules 53(1)(b)
in that it delivered what it
said was the full record of the proceedings sought to be corrected or
reviewed. It says it did so
on 9 December 2020. Then again,
a second batch of the record was dispatched on 31 March 2021. In
the result, SARS
argues that whether or not in Devland's view the
record was complete falls outside the scope of the application to
compel under
Rule 53(1)(b).
[38]
Compliance with
Rule 53
regarding time
frames and providing a complete record is not just a procedural
process but is a substantive requirement which serves
to ensure that
the substance of the decision is properly put to the fore at an early
stage and any attempt to frustrate this would
be met with displeasure
by the Court.
[39]
The
Constitutional Court in
Helen
Suzman Foundation v Judicial Service Commission
[2]
held as follows:
“
The
unfairness suffered by a review applicant denied access to
deliberations lies in the fact that she or he may have been prevented
from making the best possible case. The fact that a number of other
relevant documents and reasons distilled from the deliberations
have
been provided does not detract from the unfairness of withholding
other relevant information. The information that has been
withheld
may provide evidence of reviewable irregularities that are not
revealed by the other documentation. That is why the rule
requires
that all relevant documentation must be provided unless there is some
legally cognisable basis for withholding it.”
[40]
Rule
53
was intended to operate to the benefit of the applicant. In
certain cases, a decision maker may be required to produce the
full
record of proceedings which include its deliberations. This is
exactly what Devland requires. It is the deliberations by the
SARS
committees that it requires to enable a Court to scrutinise the
exercise of public power for compliance with constitutional
prescripts. The Court in
Badi
and Another v East Cape Cycling and Others
[3]
held that:
“…
an
incomplete record is not a record as contemplated in
Rule 53.
”
[41]
Former
Deputy Chief Justice Moseneke in
Masetlha
v President of the Republic of South Africa and Another
[4]
stated
as follows.
"Ordinarily courts
would look favourably on a claim of a litigant to gain access to
documents or other information reasonably
required to assess or
protect a threatened right or to advance a course of action. This is
so because courts take seriously the
valid interest of a litigant to
be placed in a position to present its case fully during the course
of litigation, whilst weighing
meticulously where the interest of
justice lie, courts strive to afford a party a reason opportunity to
achieve its purpose in
advancing its case. After all an adequate
opportunity to prepare and present one’s case is a
time-honoured part of litigating
parties right to a fair trial.”
[42]
It
is against the above background that this court is now required to
determine whether
Section 68
of the TAA is in principle capable of
being invoked by SARS to justify withholding documents that would
otherwise fall within the
rule 53
Record. The court in
Helen
Suzman
held that non-disclosure can only be allowed if there is a legally
cognisable basis for it and further that public interest privilege
may constitute such basis subject to the caveat that confidentiality
does not
per
se
in on law confer any privilege against disclosure.
[5]
[43]
The Constitutional Court has confirmed that
the content of the record is to be determined by relevance to the
impugned decision
not on the case as pleaded in the founding
affidavit, precisely because the applicant case is only fully
particularised once it
has had sight of the record and has had an
opportunity to supplement its grounds of review.
[44]
In my view, SARS's reliance on
Section 68
of the TAA is without lawful merit. This is so because
Section
68(3)
expressly allows for the disclosure of taxpayer information if
authorised by any other act which expressly provides for the
disclosure
of information despite the provisions of this chapter.
[45]
SARS's reliance on privilege and
confidentiality conflates two analytically distinct concepts. Legal
professional privilege, whether
legal advice, privilege, or
litigation is a substantive evidentiary privilege recognised at
common law and expressly preserved
in
Section 68(1)(b)
of the TAA.
SARS's confidential information means information relevant to the
administration of a tax act that is information subject
to legal
professional privilege vested in SARS. On the other hand,
statutory confidentiality is a creature of the TAA itself
and its
applicability, scope and any statutory exception, must be established
with reference to the actual weighting of
Section 67
to
74
and not
simply asserted as a synonym to privilege.
[46]
In addition,
Section 68(3)
has a general
override regarding SARS's confidential information. It reads as
follows:
“
A
person who is a SARS official or former SARS official may disclose
SARS' confidential information if it is required by order of
the High
Court.”
[47]
Even when documents are properly privileged
or confidential, our Courts have consistently preferred calibrated
solutions over blanket
exclusion. This was held in
Comair
Ltd v Minister for Public Enterprises and Others
,
that privileged documents are not automatically excluded from the
record in their entirety. If relevant, they should be included
subject to appropriately limited disclosure agreement between the
parties or by order of Court.
[48]
Where
access to information legislation intersects with
Rule 53
, the
Constitutional Court in
PFE
International Inc (BVI) v Industrial Development Corporation of South
Africa Ltd
[6]
held that the uniform rules of court constitute another law within
the meaning of
Section 7
of the PAIA to regulating access to records
once litigation has commenced.
[49]
Section 73
of the TAA entitles a taxpayer
or its duly authorised representative to obtain a certified copy of
the recorded particulars of
an assessment or decision, access to
information the taxpayer itself submitted to SARS, and other
information relating to its own
tax affairs. This provision is
significant in the present matter. The taxpayer, Devland is not
a stranger seeking access
to a third party's confidential
information. It is the taxpayer whose own reassessment and
whose own suspension request generated
the committee's
deliberations. The Court has repeatedly emphasised that this
regime exists principally to protect taxpayers
generally, that is,
the taxpayer's affairs as against disclosure to third parties or the
public, rather than to shield SARS decision
makers on a given
taxpayer's own affairs from that very taxpayer.
[50]
The relevance of the committee
deliberations to the review is informed by the structure of the
Section 164(3)
itself, which requires a senior SARS official
exercising the discretion to have regard to eight enumerated factors,
being the following:
a.
The taxpayer's compliance history.
b.
The amount of tax involved.
c.
The risk of dissipation of assets, whether
adequate security can be provided.
d.
Whether payment would cause irreparable
financial hardship.
e.
Whether sequestration or liquidation is
imminent.
f.
Whether fraud is involved.
g.
whether the taxpayer failed to furnish the
requested information.
[51]
Records showing how, if at all, the
committee or committees considered and weight all the above factors
go to the heart of whether
the refusal was lawful, reasonable, and
rational, and are accordingly part of the record on ordinary
Rule 53
relevance principles.
[52]
On the facts presented, SARS reliance on
Section 68
requires closer interrogation, stripped to its core, SARS
claims that the documents ought to be withheld is a claim based on
the
benefit of confidentiality. SARS does not identify any
self-standing right outside of this as a basis for its assertion of
privilege. This is fatal to SARS opposition as confidentiality
is not a ground on which privilege can be established.
Conclusion
[53]
In conclusion,
Section 68
of TAA is in
principle capable of application in
Rule 53
proceedings. It
expressly preserves legal professional privilege vested in SARS under
Section 68(1)(b)
and a defined conjunctively tested category of
deliberative materials under
Section 68(1)(e).
It is not,
however, a general secrecy provision permitting SARS to withhold from
a taxpayer the record of that taxpayer's
own affairs.
Section
69(6)(a)
says so, and
Section 73
gives Devland a positive entitlement
to its own record.
[54]
The
SCA in
Cape
Town City v South African National Road Authority
[7]
held as follows:
“
And
as
Rule 53
will only ever apply to the disclosure of documents by
public bodies, I entertain some doubts as to whether such body can
invoke
the right to privacy to protect from disclosure documents
relied upon by it to make decisions.”
[55]
It is clear that SARS interpretation of
Section 68
inhibits rights rather than advance them and is in the
result an unconstitutional interpretation. Therefore, this
application is
granted with costs.
Order
[56]
In
the result, I make the following order:
1.
The respondent is compelled to produce a
complete record pertaining to the impugned decisions in the review
application under the
above case number in terms of
Rule 53
,
(the complete record), including but not limited to the following.
1.1 Annexure
1, which provides a detailed description of the risks identified by
CRU and during the audit referred to
on Page 5 of the recommendation
dated 15 October 2019.
1.2 The link
chart analysis of all the companies and assets belonging to the
taxpayer and its directors referred to
on Page 23 of the
recommendation dated 15 October 2019.
1.3 The
committee member sign off sheet in respect of the meeting held on 15
October 2019, at which the recommendation
dated 15 October 2019 was
presented, detailing the outcome of the suspension of payment
request.
1.4 Documents
and or evidence that served before the relevant SARS committee
detailing the basis on which the committee
decided not to approve the
recommendation presented at the meeting of 5 March 2019, that the
suspension of payment application
be declined, and the committee's
decision that the suspension application had to be reworked.
1.5 Minutes
of the meeting of 5 March 2019, at which the recommendation that the
suspension of payment application be
declined was not approved by
SARS committee.
1.6 Documents
and or evidence of SARS contention that the taxpayer deals primarily
in cash, which makes it difficult
to prove hardship referred to in
Paragraph 5.2 under Point 4.2 of the minutes of the meeting held on
15 October 2019.
1.7 Documents
and or evidence relied on by SARS for its contention that the
incorporation of new companies in 2017 and
2018 and the decreased VAT
refunds claimed are indicative of a possible transfer of the business
to other entities referred to
in the minute.
1.8 Documents
and or evidence relied on by SARS relating to the outcome of the
investigation conducted by FIC referred
to in Paragraph 5.1 under
Point 5 of the minute.
1.9 Documents
and or evidence relied on by SARS for its contention that there are
no assets in the name of the taxpayer
except the stock sitting in
wholesale referred to in Paragraph 5.1 under Point 6 of the minute.
1.10 All underlying
documents and or evidence relied on by SARS to support its changes in
position at its meeting of 5 March
2019 that there is no risk of
the dissipation of assets referred to in Paragraph A on Page 5 of the
recommendation of 5 March 2019
to the meeting of 15 October 2019
that the risk of dissipation of assets is high referred to in
Paragraph A on Page 10 of
the recommendation of 15 October 2019.
1.11 Annexure 1, which
provides for a discussion on the risk areas identified referred to in
Paragraph D on Page 2 of the large
assessment pack in respect of CIT
that form part of the meeting pack which relates to the decision
taken 15 October 2019 in
practise large assessment pack CIT.
1.12 The memorandum
prepared by SARS forensic audit which details the risk included in
the risk profile and referred to in Paragraph
F on Page 2 of the
large assessment pack for CIT.
1.13 Evidence that the
taxpayer has moved some of its export business to other businesses
within the company group from about mid-2016
referred to in Paragraph
5(A) on Page 18 of the large assessment pack.
1.14 Debt collection plan
in (Excel spreadsheet) referred to in
Part C
on Page 19 of the large
assessment pack for CIT.
1.15 Annexure 1, which
provides a detailed description of risk identified in the risk
profile report referred to in Paragraph 1.6
on Page 1 of the large
assessment pack in respect of VAT that form part of the meeting pack
which relates to the decision taken
15 October 2019 large assessment
pack.
1.16 The template
detailing an alleged serious tax offence in respect of ghost exports
and other alleged declarations of income
and output tax that was
delivered to SARS criminal investigations referred to in Paragraph
2.16(B) on Page 19 of the large assessment
pack.
1.17 The applicant's
management accounts as at February 2019 that were provided to
SARS on 11 September 2019 in support
of the suspension of
payment of payments applications.
1.18 Confirmation of
payments received by SARS from the applicant of R300 000 per
month.
1.19 The vehicle schedule
provided by the applicant to SARS on February 2019.
1.20 Schedule of assets
as at 28 February 2017 provided by the applicant to SARS on 1
February 2019.
2.
Audio recording or transcription of the
meeting held on 15 October.
3.
The record shall be dispatched to the
registrar of this Honourable Court and the applicant within ten days
of the service of this
order.
4.
The respondent is to pay the cost of this
application on a party and party scale.
M MAKUME
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
Appearances
For
the Applicant:
Adv A Rafik Bhana SC & Adv Suhail
Mohammed
Instructed
by:
Abba Parak Incorporated.
For the
Respondent:
P.L Mokoena
SC & L.S Sigogo SC
Instructed
by:
Mothapo Moshimane Mulangaphuma Incorporated
Date of
Hearing:
Date of
Judgment:
[1]
2014
(5) SA 608
(GP) at para 3
[2]
2018
(4) SA 1
(CC) at para 77
[3]
[2019]
ZAECPEHC 82 at para 9 (5 November 2019)
[4]
2008
(5) SA 31
(CC) at para 25
[5]
Helen
Suzman Footnote 2 above at para 70.
[6]
2013
(1) SA 1
(CC) at para 32
[7]
2015
(3) SA 386
at para 37