The Western Cape High Court recently delivered its judgement in the application lodged by the first applicant being GW van der Merwe and others, for an order that a temporary interdict be issued preventing the second respondent, Piet JJ Marais, from commencing an inquiry authorised by Davis J, in terms of a court order made by virtue of the provisions of Part C of Chapter 5 of the Tax Administration Act, No 28 of 2011, pending the final outcome of an application to declare the relevant provisions of the Tax Administration Act which authorises such enquiry unconstitutional and invalid. Further, the applicants requested an order to have the third applicant, Elle-Sarah Rossato, to allow them access to the court file in order to enable the aforesaid review application to be made.
On 11 December 2013 first respondent, being the Commissioner of SARS, brought an ex parte application for the purpose of an inquiry in terms of Part C of Chapter 5 of the Tax Administration Act 28 of 2011. On the same day, Davis J granted an order that Adv, PJJ Marais SC, be designated to act as a presiding officer for the purpose of the inquiry. The first applicant, appeared before Le Grange J on eleven counts of fraud. Several of the charges alleged that the first applicant contravened the provisions of the Income Tax Act, No 58, of 1962 or the Value Added Tax Act, No 89, of 1991.
The applicant argued that on a proper interpretation of the Act, Davis J did not have authority to order an inquiry in circumstances where civil and criminal proceedings relating to the subject matter of the inquiry were underway, and if that is not on the proper construction of the TAA, it means, it is unconstitutional to the extent that it permits the inquiries in such circumstances. It was further argued that the word ‘pending’ used in s58 should be interpreted to mean ‘about to happen’ and does not include proceedings which have in fact commenced.
Also, the applicants complained that they were not allowed access to the court files which frustrated their application to have the provisions of the TAA declared unconstitutional.
The applicant’s attack on the constitutionality of the provision turns on the interpretation of the section and not the contents of the court file and the interpretation contended for has no prospect of being upheld. Consequently, their application for access to the court file did not succeed.
In the result, the applicant’s application was dismissed with costs.