ONE of the businessmen implicated in gold smuggling and money laundering in an Al Jazeera investigation is going head-to-head with the SA Revenue Service (Sars) and Finance Minister Enoch Godongwana over the country’s tax laws.
Andries Greyvenstein, named as a key figure in moving gold and illicit funds in Al Jazeera's Gold Mafia four-part documentary aired earlier this year, has hauled Sars, its commissioner Edward Kieswetter and Finance Minister Enoch Godongwana to the North Gauteng High Court to challenge parts of the Tax Administration Act (TAA).
In papers filed in court last week, Greyvenstein, whose Springs, Ekurhuleni-based company Gold Kid Trading is described by the Hawks as a major role player in the gold refining industry in Gauteng, wants some sections of the TAA to be declared unconstitutional.
Greyvenstein and Gold Kid Trading are subjects of a Sars tax inquiry.
Gold Kid Trading has been embroiled in a dispute with Sars since 2016, and two years later, the taxman was forced by the South Gauteng High Court to pay the company about R70 million in value-added tax (VAT) refunds plus interest.
Sars then refused to release R78m to Gold Kid Trading, stating that the company was indebted to the revenue collector by R721 324 823.54, according to a July 2018 ruling by South Gauteng High Court Judge Edwin Molahlehi.
At the time, Gold Kid Trading had sought to have Sars’ decision to reverse its VAT refunds reviewed and set aside but was unsuccessful, and its appeal of the judgment was dismissed with costs in October 2018.
Gold Kid Trading has since 2014 been refining, trading and assaying gold and other precious metals to the wholesale industry and selling gold it refined to offshore entities, mostly in Dubai.
Greyvenstein has now told the Gauteng High Court, Pretoria, that the TAA infringes on the right to access to courts guaranteed and entrenched in the Constitution.
The Constitution states that ‘’everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’’.
In addition, Greyvenstein also complains that the “act confers on or affords Sars the power to unilaterally determine a person’s liability without such dispute being determined in a fair public hearing before a court or another independent and impartial tribunal or forum”.
In terms of the provisions of the TAA, a person is personally liable for any taxpayer’s debt to the extent that the person’s negligence or fraud resulted in the failure to pay the tax debt if the person controls or is regularly involved in the management of the overall financial affairs of a taxpayer and a senior Sars official is satisfied that the person is or was negligent or fraudulent in respect of the payment of the taxpayer’s debts.
According to Greyvenstein, the act’s provision that Sars can recover tax debts from responsible third parties infringes on the right of a person to have their dispute with the taxman adjudicated in a fair public hearing before a court of law and is a power conferred and afforded to Sars to unilaterally determine a taxpayer’s disputed liability.
The TAA allows taxpayers to provide a responsible third party with an opportunity to make representations prior to being held liable for the tax debt if this will not place the collection of tax in jeopardy or as soon as practical after the responsible third party is held liable for the taxpayer’s debt.
Greyvenstein argued that the act infringes on his guaranteed and entrenched constitutional right to freedom of trade, occupation and profession, as every citizen has the right to choose to do so freely.
The TAA provides for compulsory repatriation of a taxpayer’s foreign assets, limits the taxpayer’s right to travel outside the country and requires the surrender of his or her passport to Sars after successfully applying to the high court for an order to that effect.
Sars can also withdraw a taxpayer’s authorisation to conduct business in South Africa, if applicable, and requires that a taxpayer to cease trading or issue any other order it deems fit, according to the act.
Greyvenstein is no stranger to controversy.
In 2021, the Hawks announced that Greyvenstein and three others were sentenced after being linked to several incidents of illegal procurement of unwrought gold.
He was sentenced to a fine of R150 000 or five years imprisonment, half of which was suspended for five years.
Greyvenstein, who has previously denied knowingly participating in any money laundering scheme, could not be reached for comment.