Questions are being asked about how the confidentiality provisions of the Tax Administration Act are aligned with legislation providing for whistle-blowers and freedom of expression.
The questions arise in relation to the legal action launched by South African Revenue Service (Sars) commissioner Tom Moyane against author Jacques Pauw on the grounds that he unlawfully divulged information about the tax affairs of individuals including President Jacob Zuma.
A tax law academic - who did not want to be named - was emphatic that the act not only prohibited the disclosure of information about taxpayers by the tax authority, but also prohibited individuals from doing so when they came into possession of information about the tax affairs of others.
The secrecy provisions of the act were stringent and applied to Sars officials and all other individuals, he said.
If Sars wanted to report a crime to another authority, it would have to go through prescribed processes.
However, what makes the current situation tricky is that the whistle has been blown about lack of action by Sars over the tax obligations of the president.
Cannot answer questions
It might be that this information would have to be channelled through the tax ombud.
However, the office of the ombud says it cannot answer questions on the matter as it is before the court.
South African Federation of Trade Unions (Saftu) general secretary Zwelinzima Vavi said the law should not be used to hide a crime. If Pauw had contravened a clause of the act by revealing that crimes had been committed, then, said Vavi, the act must be urgently amended to bring it in line with the Constitution, which provided for freedom of expression.
"We are sure that this legal action is not just an attack on Pauw, but an attempt to intimidate the media and whistleblowers and is an assault on the constitutional right to freedom of speech," he said.
Clear and compelling public interest
"This action is a clear attempt to punish Pauw for publishing damning evidence including that president Zuma was paid a R1m a month salary by one of his cronies for at least four months after he became president in 2009," he said.
By bringing the legal action, Moyane had conceded that what Pauw had written in his book The President's Keeper was true, Vavi said. This meant that Zuma had broken the law.
Saftu agreed with the author's publishers that there was clear and compelling public interest in his book that revealed that Zuma had perverted SA's law enforcement agencies to hide the fact that he was not tax compliant and that he had received a salary from a business of his backer Roy Moodley while in office, Vavi said.
DA deputy finance spokesman Alf Lees said that in taking court action against Pauw, Moyane was trying to execute the messenger, instead of dealing with the substance of the disclosures in Pauw's book.
Intended to intimidate
"The Sars court application, under the hand of Tom Moyane, is clearly intended to intimidate any other South Africans from exposing matters of public interest," Lees said.
"There is nothing confidential about the massive R145.2m estimate of taxable fringe benefit that accrued to President Zuma when the state rebuilt his Nkandla residence," he said.
"Unless SARS deals with this revelation as well as the many other revelations publicly and transparently, the reputation of senior Sars executives and consequently SARS itself will not be restored.
"This reputational damage will continue to have a negative impact on taxpayer morality and the consequent resistance of taxpayers to pay taxes due," Lees said.
Wife-killer Christopher Panayiotou could go to prison for the rest of his life – a fact that quickly sank in yesterday as Judge Dayalin Chetty found him guilty of masterminding the murder of his wife, Jayde.
“Guilty, guilty, guilty” – the words Jayde’s family had waited so long to hear echoed across the packed courtroom, eliciting clapping and cheers from the gallery.
Panayiotou’s face reddened and his family seated directly behind him in the Port Elizabeth High Court began to cry.
In a mammoth judgment that lasted much of the day – which was also Panayiotou’s 31st birthday – Chetty convicted him of murder, while hitman Sinethemba Nemembe, 28, was found guilty of murder and robbery with aggravated circumstances, and Zolani Sibeko, 35, was found guilty of conspiracy to commit murder.
After the judgment, Jayde’s younger sister, Toni Inggs, said her family was elated with the outcome.
“My sister can finally rest and we truly hope that they get the time they deserve with sentencing.”
Inggs said she was overwhelmed and forever grateful to the strangers who had now become their heroes.
“Nothing will bring Jayde back or take away the hurt but right now, in this moment, we feel overwhelming joy and appreciation.”
The men will be sentenced on November 17.
Defence Advocate Terry Price SC has already indicated that he intends bringing an application for leave to appeal against the conviction.
Uitenhage teacher Jayde, 29, went missing from outside her home in Kabega Park, Port Elizabeth, on April 21 2015. Her body was found in Kwa- Nobuhle the next day.
Chetty said an inference could properly be made from the gun residue found on her hand that, in her final moments, she had begged for mercy.
“That act of supplication, however, elicited a bullet to her head. The medical and ballistic findings compel the conclusion that this was an execution-style murder.”
Chetty made some key findings during his mammoth judgment yesterday, including that:
Turning to the sting video in which Panayiotou and Siyoni candidly discussed Jayde’s murder, Chetty said the police’s conduct had not gone beyond providing an opportunity for Panayiotou to commit an offence.
Panayiotou’s pre-meeting utterances to Siyoni indicated quite clearly that he recognised the cat was almost out of the bag and the decision to meet was to ensure that it remained inside.
Furthermore, Chetty said, investigating officer Captain Kanna Swanepoel had not needed prior authorisation from the Director of Public Prosecutions.
Price had on more than one occasion changed tack in trying to have the video disallowed.
“It is clear the evidence procured [in the car] established Panayiotou’s complicity in Jayde’s murder beyond a reasonable doubt.”
Cape Town – Henri van Breda's murder trial is expected to resume in the Western Cape High Court on Monday with the testimony of a blood spatter analyst who had been booked off sick.
Last month, the State had asked for another postponement as its police expert witness Captain Marius Joubert was ill.
Van Breda's defence lawyer, Pieter Botha, had said that his client was running out of funds and could not afford another postponement.
Van Breda, 22, pleaded not guilty to axing his parents and brother to death, seriously injuring his sister Marli, and defeating the ends of justice.
He alleged that an intruder wearing a balaclava, gloves and dark clothes was behind the attack, and that he had heard other voices of people speaking Afrikaans in their De Zalze Estate home in January 2015.
Van Breda claimed that, after a fight with the axe-wielding intruder who was also armed with a knife, the man had escaped.
But the investigating officer, Sergeant Marlon Appollis, had told the court that no one matching the accused's description of the axe man had ever been found.
He used police informants and media houses without success to try and find the attacker.
Marli van Breda will not testify for the State in her brother's trial.
Just 16 at the time of the attack, she sustained severe head wounds and a severed jugular. She was hospitalised for six weeks and then treated at a rehabilitation centre.
Read more on: henri van breda | cape town | van breda trial
South Africa’s law on smoking is very clear. Its law on vaping and e-cigarettes? Less so. South Africa has become progressively more restrictive on when and where its citizens can light up, and its penalties for non-compliance are appropriately punitive. But when it comes to e-cigarettes, does any legislation currently exist on what we can and can’t do? This blog will break down what is currently known regarding the legal implications of vaping.
The popularity of e-cigarettes is growing… and growing
According to How Stuff Works, e-cigarettes were first developed in China and were introduced to the American market in 2007. Known as electronic nicotine delivery systems (ENDS) the device emits doses of vaporised nicotine that are inhaled. It's battery-operated and can also emit non-nicotine vaporised solutions. According to Medical News Today the manufacturers of the e-cigarette say they are an alternative for tobacco smokers who want to avoid inhaling smoke; indeed, it’s since been used as an alternative to smoking real cigarettes.
What do health professionals have to say about it?
The important thing to remember is this is a nascent product, meaning that it is in the early stages of its existence, and therefore the full scope of how it can affect users is still being investigated and assessed. As Dr Yussuf Saloojee, Executive Director of the National Council Against Smoking (NCAS) says, ‘The NCAS isn't against e-cigarettes, but we need more evidence on the health effects before we can endorse them. They're still so new – they've only been around for a decade. Revisions are being made in this field almost on a daily basis.’
So where can you vape?
Here’s where the line becomes hazy, because it is not a cigarette and it does not contain tobacco. Mark van der Heever, spokesperson for the Western Cape Department of Health, says that as ENDS don't contain tobacco, they can't be read into the definition of ‘tobacco products’ in terms of the Tobacco Control Act, which provides SA with one of the world's tightest set of smoking laws. ‘But ENDS products resemble cigarettes, so they can be seen as challenging the denormalisation of tobacco use. For this reason, the Department is considering amendments to the legislation, to ensure e-cigarettes are regulated,’ says Van der Heever.
Speaking of which, here’s what SA’s government has planned…
Minister of Health, Dr Aaron Motsoaledi, is keen to increase smoking legislation to incorporate e-cigarettes. According to an interview he gave on World No Tobacco Day last year, he believes that electronic cigs should be treated the say way as normal tobacco cigarettes:
‘We are looking at it very carefully. In the last framework [at the] Convention on Tobacco Control of the World Health Organization held in South Korea, the decision was that we need to package e-cigarettes as just any other type of cigarette. There is a trick here. Some e-cigarettes have nicotine, which means they are just as bad as cigarettes – other don’t have nicotine,’ he said. ‘Now that is a trick by the industry, saying that governments must only deal with those that have nicotine, which means I as a minister must now spend money to find out which ones do not have nicotine.’
In the US, the Food and Drug Administration (FDA) recently set out Deeming Rights (guidelines) that e-cigarettes should be classified as ‘tobacco products’.
The FDA also added that e-cigarettes stores that produce their own liquid for use in e-cigarettes are considered tobacco manufacturers, so anybody making their own juice is now a tobacco product manufacturer.
Among the other regulations set out by the FDA, this will have an impact on where people can use their e-cigarettes if they fall into the same strict tobacco laws.
South Africa has historically been a leader in introducing tobacco laws, and if Minister Motsoaledi turns to the FDA regulations, South Africa could follow suit in classifying e-cigarettes as tobacco products.
Until new laws are released and enforced, vaping in public spaces, such as malls and restaurants, is left to the discretion of the owners of such establishments. The same applies to companies, and how they choose to police their staff.
Topics: HSE, Smoking, Vaping, Legislation, HSE legislation
Timothy van Rooyen Port Elizabeth Attorney, He has extensive knowledge in the industry, being a former prosecutor, he has experience in Criminal Defence.