The ruling’s broader implications could reshape how everyday taxpayers engage with Sars.
Image: Timothy Bernard / Independent Newspapers
IN A landmark ruling with far-reaching implications for access to justice, the Supreme Court of Appeal (SCA) has affirmed that lay persons may represent taxpayers in the tax court, rejecting the attempt by SA Revenue Service (Sars) to restrict representation to legal practitioners alone.
The unanimous decision, which dismissed Sars’s appeal with costs, centres on Gary van der Merwe, father and steadfast representative of former model Candice Poulter, who has waged a years-long battle against a nearly R143 million tax assessment stemming from a 2013 gift.
For van der Merwe, the journey to represent his daughter was born of necessity and conviction. When conventional legal routes proved financially devastating, with Candice initially spending an estimated R30m on lawyers and advocates to no avail, he stepped forward as he felt he was the person best suited to argue the matter without incurring tens of millions of rand more in costs.
“This battle has just started as Sars has not repaid Candice her tax that was fraudulently extorted from her and they are running away from the merits being argued,” he said.
Van der Merwe described Sars’s approach as a deliberate strategy of attrition. “The way Sars works is they draw down on their more than R2 billion per annum budget using only the best and most expensive private attorneys and counsel to argue no matter what the cost.
“They then play the Starlingrad Game and hope they bankrupt you or you die before the merits are argued. At a cost of some R200 000 per day it’s not sustainable for the average or any person.”
At the heart of the legal dispute was Sars’s contention that the Tax Court constituted a “court of law” under section 166 of the Constitution, where only admitted legal practitioners may represent taxpayers.
The revenue authority argued that the deletion of section 125(2) of the Tax Administration Act, (TAA) which previously allowed an appellant or their representative to appear at appeal hearings, supported its restrictive interpretation.
However, the SCA relied on the Explanatory Memorandum describing the deletion as merely a “technical correction” and held that neither the TAA nor the Tax Court Rules required a taxpayer’s representative to be a legal practitioner.
Central to the court’s reasoning was the characterisation of the tax court as an administrative decision-maker rather than a constitutional court of law, a distinction that aligns with van der Merwe’s frontline experience. “It’s always been the case and their own website said this,” he said. “How Sars is permitted to raise these spurious arguments without oversight from the commissioner himself who is also the CFO is beyond me.”
Reflecting on when Sars blocked him from representing his daughter in 2022, van der Merwe described it as part of a pattern of obstruction. “It’s just another of their dirty tactics by using any trick in the book that they can. And now we going for all courts of law in terms of section 33 of the Legal Practice Act which allows me to appear but they are avoiding the merits being decided by a full court by using legal gymnastics and opposing the declarator we seek by any means.”
The ruling delivers more than procedural relief. Punitive costs orders previously leveled against Poulter have been overturned, with van der Merwe confirming: “The cost orders have been set aside and we now have the cost orders in our favour, we will collect on this as soon as possible.”
With the appeal now returning to the tax court, the focus shifts to substantive resolution. “Get back to the tax court and recover Candice’s funds for 2018. But the big one is the 2014 tax period… that we need decided by a court of law. We have a pending Paia application but you can imagine how they running away from that,” he said.
Despite the outcome, Sars maintains its position that tax court proceedings warrant representation by admitted legal practitioners, citing the specialised and technical nature of tax disputes.
The revenue authority continues to litigate aggressively, frequently appointing senior counsel and taking increasingly technical points in disputes. In an enforcement environment where Sars intensifies collections, audits, verifications, and litigation activity, the authority maintains that rigorous representation standards protect both taxpayers and the integrity of the dispute resolution process.
Taxpayers are reminded that modern tax disputes are no longer merely accounting exercises but increasingly complex legal proceedings involving procedural law, constitutional interpretation, litigation strategy, and statutory interpretation.
For van der Merwe, however, expertise in tax matters need not be confined to the legal profession. “All we need is honesty and integrity from Sars as an organ of state. We don’t need the legal fraternity to deal with tax as they do not have the expertise and it's too costly for most people.”
The ruling’s broader implications could reshape how everyday taxpayers engage with Sars. Asked whether this would force the revenue service to stop objecting to lay representatives, thereby opening doors for others, van der Merwe framed it as a test of institutional integrity: “Let’s hear from the CFO on this question, the question is will… they act honestly and fairly to the general public and build some trust back.”
On the vindication of seeing his right to represent Candice affirmed by eight judges, van der Merwe noted: “It’s now eight Judges that have found for us and if you look back at their opposition and their argument you can see how poor it was, it is sweet vindication… it’s easy, Sars must do the right thing, perhaps the new commissioner will help to put things right.”
For families facing the daunting prospect of a Sars dispute, van der Merwe’s hard-won victory offers both caution and hope. “Don't be intimidated by Sars, know your rights and remember Sars have shown a great deal of dishonesty in all dealings with me so they are not honest actors… we hope the new CFO changes this and put things right.”
As the matter returns to the tax court for merits-based consideration, the ruling stands as a significant check on administrative overreach and a potential catalyst for more equitable dispute resolution in South Africa’s tax system. For van der Merwe and Poulter, the fight continues, but now, with the law firmly on their side.