The Star Early Edition

Shuttlewor­th’s exit levy a topic of contention

Reserve Bank challenges court ruling which found the 10% charge to be constituti­onally invalid

- OMPHITLHET­SE MOOKI omphitlhet­se.mooki@inl.co.za

THE R250 million exit levy imposed on IT tycoon Mark Shuttlewor­th when he shipped his billions out of the country was a topic of contention in the Constituti­onal Court yesterday.

Central to arguments were issues on whether the levy was an unlawful way of raising revenue for the fiscus as contended by Shuttlewor­th, or just a way of discouragi­ng South Africans from exporting capital out of the country as argued by the SA Reserve Bank.

The Reserve Bank, along with the minister of finance and the president, was challengin­g last year’s ruling by the Supreme Court of Appeal (SCA), which found the imposition of a 10 percent exit levy on Shuttlewor­th to be constituti­onally invalid.

But Shuttlewor­th brought his own cross appeal on aspects of the SCA ruling, saying the court erred and should have also found exchange control regulation­s to be inconsiste­nt with the rule of law.

First, Constituti­onal Court judges heard arguments from the Reserve Bank counsel, advocate Jeremy Gauntlett SC, who argued that “the dominant purpose (of the levy)” was to “discourage people from taking money out of the country without a second thought… to control conduct”.

He said: “The question was how do we protect the country from certain outlaws? The objective was not to raise revenue for the State (but to) limit adverse consequenc­es of the outflow of funds on the external balance of payments necessary to maintain South Africa’s macroecono­mic health and the promotion of financial growth and stability.”

Arguing for the minister, Advocate Patrick Mtshaulana SC echoed the sentiment.

“The SCA erred in finding that the 10 percent exit charge was a revenue-raising mechanism. A distinctio­n must be drawn between exit charge, which is regulatory, and a tax or levy within the meaning of fiscal legislatio­n such as the Customs and Excise Act which is intended to raise revenue.”

From his arguments, rose questions on who was responsibl­e for paying back Shuttlewor­th’s R250m as per directions of the SCA.

Justice Sisi Khampepe asked: “Is the minister responsibl­e for conditions imposed when capital is exported?”

Mtshaulana’s response was “yes”.

Justice Khampepe asked again: “So, shouldn’t it follow that he should be the one paying back the money?”

Mtshaulana, who had earlier argued that “the decision to impose the condition on Mr Shuttlewor­th was taken by the Reserve Bank acting under delegated authority of the minister”, answered “yes”.

Shuttlewor­th’s counsel, advocate Matthew Chaskalson SC, agreed. “Mr Shuttlewor­th paid the money to the minister, so the minister must pay.”

He argued that the levy imposed on Shuttlewor­th was invalid and “violated Shuttlewor­th’s fundamenta­l right to property protected by Section 25 of the constituti­on”.

In his cross appeal arguments, Shuttlewor­th challenged provisions of the Currency Exchanges Act and the exchange control regulation­s as constituti­onally invalid.

His second counsel, Gilbert Marcus SC, said Shuttlewor­th was a “victim of these regulation­s” that violated his constituti­onal right to leave the country. He wants the Consti- tutional Court to dismiss the SCA ruling and uphold one by the High Court in Pretoria that found that the Currency Exchanges Act was unlawful as it gave the president overly broad powers, allowing him to suspend an act of Parliament.

Judgment was reserved.

 ??  ?? TYCOON: Mark Shuttlewor­th had to pay a R250m exit levy.
TYCOON: Mark Shuttlewor­th had to pay a R250m exit levy.

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