Chakala and Others v Commissioner for the South African Revenue Services and Another (72539/2016) [2017] ZAGPPHC 711 (10 November 2017)

Chakala and Others v Commissioner for the South African Revenue Services and Another (72539/2016) [2017] ZAGPPHC 711 (10 November 2017)

The court found that s 69(2)(c) of the Tax Administration Act entitles the applicants to approach the High Court for relief. The urgency of the application was justified only in respect of documents referred to by Mr Mkhabela during evidence in aggravation of sentence on 9, 11, and 12 October 2017, as these documents are necessary for cross-examination and to ensure a fair sentencing process. The court held that denying access to these documents would be a gross injustice. The application for other documents not referred to during those dates was not urgent and was struck from the roll. Costs were not awarded due to the applicants' partial success and their failure to request disclosure...

Citation
[2017] ZAGPPHC 711
Parties
Applicant: Harry Tremorio Chakala; Applicant: Siyabonga Abiud Nqubuka; Applicant: HR Computek (Pty) Ltd; Respondent: Commissioner for the South African Revenue Services; Respondent: The National Prosecuting Authority
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 November 2017
Case Number
72539/2016
Procedural Posture
Urgent Application / Application to Compel Discovery of Documents Under S 69 of the Tax Administration Act During Criminal Sentencing Proceedings
Outcome
Application granted in part; urgent relief granted only for documents referred to by Mr Mkhabela during sentencing evidence; application for other documents struck from the roll; each party to pay own costs.
Judges
E.M. Kubushi
Legal Topics
Taxpayer Information Secrecy, Discovery of Documents, Tax Administration Act, Criminal Sentencing Evidence
Civil Procedure Tax Law Taxpayer Information Secrecy Discovery of Documents Tax Administration Act Criminal Sentencing Evidence

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Parties

Harry Tremorio Chakala

Applicant

Siyabonga Abiud Nqubuka

Applicant

HR Computek (Pty) Ltd

Applicant

Commissioner for the South African Revenue Services

Respondent

The National Prosecuting Authority

Respondent

Procedural Posture

Urgent Application / Application to Compel Discovery of Documents Under S 69 of the Tax Administration Act During Criminal Sentencing Proceedings

Legal Issues

  1. 1 Whether the applicants are entitled to an order compelling SARS to disclose documents referred to by its official during evidence in aggravation of sentence.
  2. 2 Whether the application is urgent in respect of the documents sought.
  3. 3 Whether the applicants approached the correct forum for relief under s 69(2)(c) of the Tax Administration Act.

Ratio Decidendi

The court found that s 69(2)(c) of the Tax Administration Act entitles the applicants to approach the High Court for relief. The urgency of the application was justified only in respect of documents referred to by Mr Mkhabela during evidence in aggravation of sentence on 9, 11, and 12 October 2017, as these documents are necessary for cross-examination and to ensure a fair sentencing process. The court held that denying access to these documents would be a gross injustice. The application for other documents not referred to during those dates was not urgent and was struck from the roll. Costs were not awarded due to the applicants' partial success and their failure to request disclosure...

Court Disposition

Application granted in part; urgent relief granted only for documents referred to by Mr Mkhabela during sentencing evidence; application for other documents struck from the roll; each party to pay own costs.

Orders

  • The application is urgent only in respect of the documents used and/or referred to by Mr Mkhabela in his evidence tendered in the criminal proceedings (case number 41/1224/11) on 9, 11 and 12 October 2017.
  • The 1st respondent is ordered to disclose to the applicants the documents used and/or referred to by Mr Mkhabela in his evidence tendered in the criminal proceedings (case number 41/1224/11) on 9, 11 and 12 October 2017.