TAX AND DOUBLE JEOPARDY
Criminal – Double jeopardy – Tax evasion – Understatement penalty imposed by Commissioner – Criminal charges for tax evasion – Tax Administration Act 28 of 2011, ss 222 and 235.
Motloung v CSARS [2022] ZAFSHC 327 at [17]-[35]
Facts: SARS conducted an audit of Reatlehise Development CC and due to their zero returns SARS suffered a prejudice of over R800,00 on VAT and close to R500,000 on Income Tax. SARS levied 10 % late payment penalties and further imposed 150% understatement penalties on both Income Tax and VAT. Mr Motloung and the CC were criminally charged for intentional tax invasion.
Application: Seeking a declaratory order declaring Section 235 (criminalising tax evasion) and 222 (understatement penalty) of the Tax Administration Act 28 of 2011 (TAA) unconstitutional to the extent that it allows the Commissioner to criminally punish the taxpayer twice for the same criminal offence of intentional tax evasion.
Discussion: The applicants’ contention that they were already found guilty of intentional tax invasion by the Commissioner and a sanction was imposed in the form of the understatement penalty and that in a subsequent criminal trial the taxpayer cannot tender a plea contrary to the finding of the Commissioner of guilt of intentional tax invasion; and double jeopardy and the contention that the understatement penalty is a criminal punishment.
Findings: Nothing precludes civil administrative proceedings and criminal proceedings from the single act. Administrative penalties and criminal proceedings do not serve the same purpose. The one is aimed at strengthening internal controls of the administrative authority and to promote compliance while the other is aimed at correcting a behaviour that caused harm to society. Double jeopardy does not arise in the circumstances.
Order: The application is dismissed.
MBHELE AJP
* See the discussion of case law from paras [21]-[26] on double jeopardy and civil and criminal penalties.
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ATTACK ON CHARACTER OF PERSON NOT PARTY TO LITIGATION
Civil procedure – Leave to intervene – By attorney who was witness in proceedings – Adverse credibility findings – Direct and substantial interest pertains to the order – Not sufficient if interest is in the findings or reasons for order – Magistrates’ Court Rule 28(1).
Lebea v Menye [2022] ZACC 40 at [29]-[45]
Facts: Mr Lebea is an attorney and was appointed by the Department of Public Works for a disciplinary inquiry in which Mr Menye was facing charges of misconduct. Mr Menye was represented by an attorney and counsel. It was the version of Mr Menye’s lawyers that, when the matter was postponed, Mr Lebea and a director from the department told them that they had authority to tender Mr Menye’s costs or to give an undertaking that the postponement costs would be paid. Mr Menye later succeeded in the magistrate’s court in an action for payment of the costs. The magistrate accepted the version of Mr Menye’s lawyers and made a finding that Mr Lebea had made a misrepresentation about the costs, despite his denials that he had told the lawyers that he was authorised to tender the wasted costs. Mr Lebea was aggrieved by the adverse credibility finding made against him, an attorney, that he had not been an honest witness.
Appeal: Mr Lebea instituted an application in the magistrates’ court for leave to intervene in the proceedings so that he could appeal against the adverse credibility finding. The application was made in terms of Rule 28(1) of the Magistrates’ Court Rules. This was dismissed and he was unsuccessful in his attempts to appeal to the High Court and the Supreme Court of Appeal.
Discussion: That the magistrate found that Mr Lebea had failed to show that he had a direct and substantial interest in the matter in which he sought leave to intervene; the contention that the adverse credibility finding against him that could have far reaching implications for him personally and professionally; and whether a witness who is not a party to court proceedings in which he testifies is entitled to intervene in those proceedings for purposes of pursuing an appeal against an adverse credibility finding.
Findings: Mr Lebea’s interest is in the adverse credibility finding made against him and not in the order that the magistrates’ court made. Furthermore, there is no lis between the parties anymore. Direct and substantial interest pertains to the order and it is not enough if a person has an interest in a finding or the reasons for an order. It would not be in the interests of justice to develop the common law in this case to accommodate the Mr Lebea’s type of interest. (See para [42].)
Order: Leave to appeal is refused with costs.
ZONDO CJ (unanimous)
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COVID LOCKDOWN SALARY REDUCTION
Labour – Constructive dismissal – Salary reduction – Covid lockdown – Whether 25% salary cut intolerable – Employee facing financial hardship – Could not reasonably be expected to accept the reduction.
Westcor SA v Mey [2022] ZALCCT 61 at [47]-[58]
Facts: Westcor sells fashion accessories and Ms Mey worked there as jewellery product specialist. With the covid lockdown Westcor employees worked reduced hours and earned reduced wages, supplemented by TERS. From July 2020 staff were required to return to working their full working hours, but would only be paid 75% of their salaries. Ms Mey did not accept the reduction and after interactions with the company she resigned and referred a constructive dismissal dispute to the CCMA.
Application: Westcor seeks to review the finding of the commissioner that Westcor had made continued employment intolerable for Ms Mey and the award of six months’ salary.
Discussion: Ms May’s contentions on the financial hardships of her family and that she could not accept the reduction; the company offer of a loan and that the company expected employees to stand together as a team to support the business and to save jobs; the testimony of the finance manager that Westcor faced a R30 million loss because of the lockdown; whether the salary cut was “intolerable”; breach of contract; and proving the existence of constructive dismissal.
Findings: Westcor chose, from amongst a range of possible responses to the pandemic and the lockdown, to cut salaries by 25%. Westcor’s action made her continued employment intolerable. The arbitrator’s conclusion that Ms Mey was constructively dismissed was correct. Ms Mey cannot reasonably have been expected to tolerate Westcor’s decision to cut her salary by 25%. The six months’ compensation was a reasonable outcome on the evidence before the arbitrator.
Order: The review application is dismissed. There is no order as to costs.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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