Marinus and Others v S (CC 27/06) [2009] ZAWCHC 170; 2010 (2) SACR 92 (WCC) (26 October 2009)

Marinus and Others v S (CC 27/06) [2009] ZAWCHC 170; 2010 (2) SACR 92 (WCC) (26 October 2009)

The court held that while section 71 of POCA empowers the NDPP to request information from SARS, this power does not render the secrecy provisions of the Income Tax Act entirely inoperative. The person in control of the information must exercise judgment and is not obliged to comply with vague or overbroad requests. The requests in question lacked sufficient detail regarding the nature of the investigation and included overly broad terms such as 'any other documents you may have gathered.' Furthermore, POCA does not apply retrospectively, so documents relating to periods before its commencement are inadmissible. Only tax returns and documents forming part of such returns for tax years...

Citation
[2009] ZAWCHC 170
Parties
Applicant: The State; Respondent: Quinton Melvin Marinus; Respondent: Calvin Marinus; Respondent: Davidene Chantal Marinus; Respondent: Brian Daniels; Respondent: Fareed Mohammed; Respondent: Fabian Abrahams; Respondent: Glestin Ricardo Petersen; Respondent: Desiree Blankenberg; Respondent: Jeffrey James Blankenberg; Respondent: Winston Anthony Blaauw; Respondent: Johan Classen; Respondent: Mario Voigt; Respondent: Vincent Koen; Respondent: Emmalene Marinus; Respondent: Andrew van der Walt
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 October 2009
Case Number
CC 27/06
Procedural Posture
Criminal Law Application / Admission of Documentary Evidence
Outcome
Copies of the accused's tax returns and documents forming part of such returns covering tax years after POCA's commencement may be admitted in evidence upon proper proof.
Judges
Veldhuizen
Legal Topics
Admissibility of Evidence, Secrecy Provisions, Prevention of Organised Crime Act, Income Tax Act, Retrospective Application
Criminal Law Tax Law Admissibility of Evidence Secrecy Provisions Prevention of Organised Crime Act Income Tax Act Retrospective Application

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Parties

The State

Applicant

Quinton Melvin Marinus

Respondent

Calvin Marinus

Respondent

Davidene Chantal Marinus

Respondent

Brian Daniels

Respondent

Fareed Mohammed

Respondent

Fabian Abrahams

Respondent

Glestin Ricardo Petersen

Respondent

Desiree Blankenberg

Respondent

Jeffrey James Blankenberg

Respondent

Winston Anthony Blaauw

Respondent

Johan Classen

Respondent

Mario Voigt

Respondent

Vincent Koen

Respondent

Emmalene Marinus

Respondent

Andrew van der Walt

Respondent

Procedural Posture

Criminal Law Application / Admission of Documentary Evidence

Legal Issues

  1. 1 Whether documents handed over by SARS to the NDPP may be admitted in evidence despite the secrecy provisions of the Income Tax Act.
  2. 2 Whether requests for information under section 71 of POCA must be specific and sufficiently detailed.
  3. 3 Whether documents relating to periods before POCA's commencement are admissible.

Ratio Decidendi

The court held that while section 71 of POCA empowers the NDPP to request information from SARS, this power does not render the secrecy provisions of the Income Tax Act entirely inoperative. The person in control of the information must exercise judgment and is not obliged to comply with vague or overbroad requests. The requests in question lacked sufficient detail regarding the nature of the investigation and included overly broad terms such as 'any other documents you may have gathered.' Furthermore, POCA does not apply retrospectively, so documents relating to periods before its commencement are inadmissible. Only tax returns and documents forming part of such returns for tax years...

Court Disposition

Copies of the accused's tax returns and documents forming part of such returns covering tax years after POCA's commencement may be admitted in evidence upon proper proof.

Orders

  • Only tax returns and related documents for tax years after 21 January 1999 are admissible upon proper proof.
  • Documents relating to periods before POCA's commencement are inadmissible.