Sunday Times

Shuttlewor­th in court showdown

- ASHA SPECKMAN

TECH wunderkind and space tourist Mark Shuttlewor­th will face off against the South African Reserve Bank in the Constituti­onal Court on Tuesday as the central bank argues why it must not repay R250millio­n to Shuttlewor­th.

The bank first hit Shuttlewor­th with a R250-million “exit levy” when he tried to repatriate about R4.3-billion in 2009. Shuttlewor­th paid this under protest and then challenged the exchange control system in the high court in 2010. A few months later, former finance minister Pravin Gordhan repealed that levy — but it was too late for Shuttlewor­th.

Last year, the Supreme Court said the bank shouldn’t have imposed the levy and ordered it to repay Shuttlewor­th.

Ben Cronin, a tax associate at Webber Wentzel, said the case illustrate­d why government needed to address the outdated exchange control regulation­s.

“It is not the Reserve Bank’s fault … the Currency and Exchanges Act, upon which the exchange control regime relies, is outdated and dates back to the Great Depression in the 1930s,” Cronin said.

He said it was important that “we comply in a constituti­onal democracy with constituti­onal norms”.

If it did not update the laws, the government risked further applicatio­ns similar to the one launched by Shuttlewor­th.

“The fact that the Constituti­onal Court will [rule] on this won’t necessaril­y finalise the matter. The act and regulation­s remain potentiall­y susceptibl­e to challenge in their current form and it is only really parliament that can resolve this,” Cronin said.

The bank will argue that it was simply performing an administra­tive function, and that the levy was not a form of tax. Given the size of Shuttlewor­th’s claim, the bank says it is in the public interest to clarify the Supreme Court’s decision. GROUND CONTROL: Mark Shuttlewor­th is challengin­g exchange rules

“If the charge was lawfully imposed, then it is clearly in the public interest for [the Supreme Court] order to be overturned,” said Alexander Ellis, the bank’s specialist legal counsel, in court papers.

It is unclear whether Shuttlewor­th will attend the hearing. He lives on the Isle of Man.

Robert January, an associate at Glyn Marais Incorporat­ed, acting for Shuttlewor­th, said if the Constituti­onal Court agrees to hear the matter, the case will “proceed to consider the merits of the appeal”.

Shuttlewor­th’s argument will be that this “exit levy” was rigidly and inflexibly imposed, without procedural fairness.

But the key issue that will be watched by many South Africans will be Shuttlewor­th’s argument that the exchange control rules are “unconstitu­tional and invalid”.

Should he win, the Free State-born Shuttlewor­th has pledged to put the R250-million into a trust to fund legal cases for people without means and in which the state is a counterpar­ty.

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