The Commissioner for the South African Revenue Service v Candice-Jean van der Merwe

SARS obtained final tax assessments and a tax judgment against Mr Gary van der Merwe for substantial unpaid taxes. Believing that he concealed assets through related persons and entities, including his daughter Candice-Jean van der Merwe, SARS sought a preservation order and the appointment of a curator bonis under s 163 of the Tax Administration Act 28 of 2011. A provisional preservation order was granted against Ms van der Merwe, restraining her from dealing with assets including luxury vehicles and funds amounting to US$15.3 million allegedly received on behalf of her father. The High Court (Savage AJ) confirmed the provisional preservation order but failed to appoint a curator bonis. Leave to appeal and cross-appeal was granted by consent. Ms van der Merwe failed to prosecute her appeal timeously, causing it to lapse. She later applied for condonation. SARS pursued its appeal against the High Court’s failure to appoint a curator bonis.

The application for condonation by Ms van der Merwe was dismissed with attorney-and-client costs. SARS’ appeal was upheld with costs. The order of the High Court was set aside and replaced with an order confirming the preservation order (with a minor exclusion) and appointing a curator bonis with extensive powers over Ms van der Merwe’s assets.

The case reinforces strict compliance with the Supreme Court of Appeal rules and affirms that serious procedural breaches will not be condoned even where prospects of success may exist. It also clarifies the operation of s 163 of the Tax Administration Act, confirming SARS’ ability to obtain both preservation orders and the appointment of a curator bonis to secure assets potentially available for tax recovery.