Director of Public Prosecutions, Western Cape v Parker (103/2014) [2014] ZASCA 223; 2015 (4) SA 28 (SCA); [2015] 1 All SA 525 (SCA); 2015 (2) SACR 109 (SCA); 77 SATC 224 (12 December 2014)

Director of Public Prosecutions, Western Cape v Parker (103/2014) [2014] ZASCA 223; 2015 (4) SA 28 (SCA); [2015] 1 All SA 525 (SCA); 2015 (2) SACR 109 (SCA); 77 SATC 224 (12 December 2014)

The Supreme Court of Appeal held that the Value-Added Tax Act creates a debtor-creditor relationship between the vendor and SARS, not a trust or agency relationship. The Act provides its own scheme for recovery and penalties, and does not incorporate common law theft as an offence for failure to pay VAT. The court rejected the State's argument that misappropriation of VAT by a vendor constitutes theft, finding that statutory offences under the Act are exhaustive and that extending theft to such conduct would contravene the principle of legality. The appeal was dismissed, and the convictions for theft set aside.

Citation
[2014] ZASCA 223
Parties
Appellant: Director of Public Prosecutions, Western Cape; Respondent: Mohamed Shakiel Parker
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 December 2014
Case Number
103/2014
Procedural Posture
Criminal Appeal / Appeal From Western Cape High Court, Cape Town
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Brand, Shongwe, Leach, Pillay, Willis
Legal Topics
Value Added Tax Act, Common Law Theft, Debtor Creditor Relationship, Statutory Offences, Nullum Crimen Nulla Poena
Criminal Law Tax Law Value Added Tax Act Common Law Theft Debtor Creditor Relationship Statutory Offences Nullum Crimen Nulla Poena

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Parties

Director of Public Prosecutions, Western Cape

Appellant

Mohamed Shakiel Parker

Respondent

Procedural Posture

Criminal Appeal / Appeal From Western Cape High Court, Cape Town

Legal Issues

  1. 1 Whether a VAT vendor who misappropriates VAT collected on behalf of SARS can be charged with the common law crime of theft.
  2. 2 Whether the relationship between a VAT vendor and SARS is one of trust or debtor-creditor under the Value-Added Tax Act.

Ratio Decidendi

The Supreme Court of Appeal held that the Value-Added Tax Act creates a debtor-creditor relationship between the vendor and SARS, not a trust or agency relationship. The Act provides its own scheme for recovery and penalties, and does not incorporate common law theft as an offence for failure to pay VAT. The court rejected the State's argument that misappropriation of VAT by a vendor constitutes theft, finding that statutory offences under the Act are exhaustive and that extending theft to such conduct would contravene the principle of legality. The appeal was dismissed, and the convictions for theft set aside.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.