Freedom to express fundamental rights versus administrative action by the South African Revenue Service exposes a fundamental link to communal interests and justice in a constitutional democracy. (Oupa Nkosi)
The recent court case involving a gold syndicate, a freezing order, a travel ban and a repatriation order presents us with some thoughts on the clash between fundamental rights and communal interest. The South African Revenue Service (Sars) shows us that we are all communal taxpayers, and that justice and public communal interests are deepened when there is responsible and accountable use of current legislative mandates.
Sars appears to be one of few favoured by Finance Minister Enoch Gondongwana, in his proposed 2025-26 budget. The minister sees fit to boost Sars’ medium-term budget by R4 billion for more efficient tax collection.
Compare this amount to the tax debt of about R3 billion owed by Andre Greyvensteyn’s company, Gold Kid Trading (Goldkid), that Sars is seeking to win for the public purse, and the sum pales in comparison. A pot of gold indeed.
How far can the reliance on protection of fundamental rights take you? Fundamental rights represent power and freedom. In South Africa, the freedom to exercise this power is cautionary because it involves (rightly so) a delicate balancing act between individual choice and public communal interest.
The North Gauteng High Court judgment of Greyvensteyn v Commissioner of Sars and Others (2025) is comforting. Handed down on 12 February, it dealt with this confluence — rights, responsibilities, accountability and democracy, albeit couched slightly differently.
Sars’ enabling powers under sections 180, 184 and 186 of the Tax Administration Act (TAA) are shown to be far-reaching in this case — and Greyvensteyn’s tax debt, for which Sars is seeking to hold him liable for as a representative taxpayer for Goldkid, represents a sizeable amount for the developmental public interest purse.
Does this mean that we can see similar cases involving fraud, illicit financial flows and corruption solved using the Al Capone method?
The case of the corrupt gangster in the US is notoriously famous. Not just because he boasted that “they can’t collect legal taxes from illegal money” — in terms of S1 of the definition of gross income, illegal money is received (legally) by a taxpayer and is taxable as a receipt — but because his ultimate downfall (and imprisonment) took place under cover of an income tax case. Al Capone successfully evaded prosecution for his raft of illegal activities, spanning gangsterism, extortion, murder and fraud because other law enforcement agencies had failed to secure the legal chain of evidence necessary for his successful prosecution. This did not deter the taxing authorities who were able to pin him in 1931 for unpaid taxes of $215 000 plus back taxes, legal costs, fines and commit him to 11 years in federal prison.
What does it mean to live communally?
It is common knowledge that communal ethics finds its roots in traditional African thought.
Professor Thaddeus Metz compares notable African thinkers on Afro-relational morality in his article Relational Economics: An African Approach to Distributive Justice and finds that prizing communal relationships — of identifying with and of standing in solidarity with — is the goal of living a human life. Metz says this social harmony is different from individualism because it does not attribute moral significance to oneself, but rather seeks to respect communal or harmonious relationships, “of sharing a way of life and caring for others’ quality of life”.
It is this public interest that Judge Waheeda Amien refers to in her judgment in seeking to strike a balance between the powers of Sars against the likely infringement of fundamental rights when she said that “recovery of taxes is crucial to ensure that the public benefit and public interest are served”.
Greyvensteyn’s case is not as macabre as Al Capone’s, but it does involve allegations of tax evasion, the gold mafia (exposed in an Al Jazeera documentary), creative use of corporate entities, money laundering and fraud.
Greyvensteyn, as applicant, brought this case against Sars in response to the freezing, seizing, repatriation and travel ban orders. He raised the argument that Sars’ powers of seizure infringed his constitutional rights; S21, the right to earn an income; S22, the right to move freely; S25, the right to property and S34, the right to appear before a court in a legal dispute. He also challenged the constitutionality of the three empowering provisions of the TAA, which he claimed infringed these fundamental rights.
While Greyvensteyn argued unconstitutional infringement of his fundamental rights, Sars argued their raft of enabling provisions were reasonable and justifiable in this constitutional democracy. One of Sars’ notably convincing claims was that the purpose of the freezing order was to prevent movement of the assets offshore because it did not have the power to recover most of Greyvensteyn’s assets believed to be in countries such as the United Arab Emirates and the US.
Amien found that the enabling TAA provisions did not unreasonably restrict Greyvensteyn’s rights since Sars, through the appointment of a curator, had put necessary steps in place to mitigate against any absolute and unreasonable restrictions. She further balanced Greyvensteyn’s rights with the need to collect taxes, “especially necessary, given the decline over the years of taxpayers to adhere to their tax obligations as well as increasing fraudulent conduct and tax evasion by vendors”.
Amien dismissed the application with costs against Greyvensteyn, including the costs of four senior counsel.
Sars’ powers in responsible and efficient tax collection, freezing of assets, and restriction of travel to evade taxes is not only far-reaching but heartening to see upheld in our courts of law.
Empowering provisions such as these represent an elegant solution to a vexed problem of unaccountable financial flows and jurisdictional difficulties in repatriation of monies owed to the public purse. It may be said that many of our governing legislative provisions and regulations are already elegant and far-reaching in their mandate to responsibly protect public communal interest.
What is problematic is how flexible the lived interpretation of fundamental rights has become in promoting irresponsible practices and sacrificing public communal interest in the process. Greyvensteyn’s case is one of many such examples.
Ethical values appear to be as loose as the elastic accounting entries in a Steinhoff report under Markus Jooste. Corrupt and creatively couched wrong conduct has tainted the clear lines of rights and communal responsibilities amid the dismal lack of accountability for wrong conduct. This has happened slowly and in spaces of public and private power. Insidiously public interest has borne witness to trust-wreaking conduct by those in power: wrong conduct is reframed under various guises, couched in legalese, with offending parties never responsibly held accountable.
Sorely lacking is responsibility and accountability for individual action keeping in mind the end goal of communitarian moral theory. It is most fittingly said by the Ghanaian philosopher, Kwame Gyekye: “ [It] advocates a life lived in harmony and cooperation with others, a life of mutual consideration and aid, of interdependence, a life in which one shares in the fate of the other.”
Luthfia Kalla is an anti-corruption compliance lawyer with a special interest in ethics and following the (illicit) money.
