Tshwane, 14 February 2025 – The Commissioner for the South African Revenue Service (SARS), Mr Edward Kieswetter welcomed the judgement delivered on 12 February 2025 in the matter between Greyvensteyn v Commissioner for SARS and Others.
This judgement was preceded by a provisional preservation order in chambers against Andries Greyvensteyn (“Greyvensteyn”) and The Gold Kid (Pty) Ltd (Gold Kid) under section 163 of the Tax Administration Act, 28 of 2011 (TA Act) on 28 February 2023. The order authorised a repatriation of foreign assets and limiting a taxpayer right to travel outside the Republic in terms of section 186 and 186(3). It also allowed for the preservation of Greyvensteyn’s and Gold Kid’s assets as well as the compulsory repatriation of Mr Greyvensteyn’s foreign assets.
The Applicant, Andries Greyvensteyn (“Greyvensteyn”), challenged the constitutionality of sections 180, 184(2), and 186(3) of the Tax Administration Act 28 of 2011. Section 180 holds a person personally liable for a taxpayer’s tax debt if their negligence or fraud resulted in the failure to pay the tax debt. Section 184(2) requires SARS to provide an opportunity for representations before holding a person liable for a taxpayer’s tax debt. Section 186(3) allows a court to order the repatriation of a taxpayer’s foreign assets and limit their ability to travel or conduct business.
Greyvensteyn argued that these provisions violated his constitutional rights, specifically section 34 (right to access to court) and sections 21 and 22 (rights to freedom of movement and to choose a trade, occupation, or profession freely). He contended that SARS’ actions amounted to self-help, undermining his right to a fair public hearing.
The court found that SARS’ actions under sections 180 and 184(2) constituted administrative action, which is reviewable under the Promotion of Administrative Justice Act (PAJA). The court emphasised that Greyvensteyn has the right to judicial review of SARS’ decisions, ensuring access to court. The court also found that the limitations imposed by section 186(3) on Greyvensteyn’s rights were reasonable and justifiable in an open and democratic society, given the importance of tax collection for public interest. The court upheld the constitutionality of sections 180, 184(2), and 186(3). The application was dismissed with costs, including the costs of four counsel on scale C.
SARS’ powers and duties of recovery of taxes are not absolute and this judgement confirms that though SARS may not carry out its powers and duties in a way that violates constitutional rights, the court confirmed that the current provisions do not infringe taxpayers’ constitutional rights.
Commissioner Kieswetter said that “this precedent setting decision reaffirms SARS’ legal authority to discharge its work of collecting all revenue due to the state in an efficient and effective manner. Importantly, was the court’s reiteration that the provisions that allow SARS to determine third-party liability, repatriation of foreign assets and restrictions of travel are lawful and constitutional. SARS will continue to provide certainty and clarity to taxpayers while making it easy and simple to transact with the organisation. However, SARS will vehemently oppose any action by the taxpayer intended to undermine its mandate”.
For further information please contact SARS at [email protected]
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