Metlika Trading Limited; Hawker Air Services (Pty) Limited; Hawker Aviation Services Partnership; Carmel Trading Company Limited v Commissioner for the South African Revenue Service

SARS investigated Ben Nevis Holdings Ltd for failure to declare taxable income arising from the sale of shares, resulting in tax assessments exceeding R1.4 billion. Ben Nevis allegedly transferred all its South African assets, including an interest in a Falcon aircraft, to Metlika Trading Ltd, a related foreign company. The aircraft was owned through a complex partnership structure involving Hawker Air Services (Pty) Ltd and later Carmel Trading Company Ltd. After SARS obtained preservation and attachment orders to secure assets pending an action, the partnership defaulted on a loan, leading to the sale of FirstRand Bank’s partnership interest to Carmel. The aircraft was then flown out of South Africa to Switzerland. SARS applied for interim relief compelling the partnership to procure the return of the aircraft and for attachment of Carmel’s assets to found or confirm jurisdiction.

The appeal against appealability failed: the orders were held to be appealable. The court upheld the jurisdiction of the court a quo and the validity of the attachment orders, and confirmed the power of the court to order the partnership to take steps to procure the return of the aircraft to South Africa.

The case is significant for clarifying South African law on the appealability of interim interdicts, holding that orders with immediate and irreversible effect are appealable despite being labelled interim. It also affirms the wide jurisdiction of South African courts to grant mandatory interdicts with extraterritorial consequences where respondents are incolae, and confirms the use of attachment ad fundandam or ad confirmandam jurisdictionem against foreign entities in complex commercial and tax enforcement matters.