MBHILIBHI WINS E4.3M CASE AGAINST SRA

MBABANE – Mbhilibhi Earthmoving Specialists has won its case against the Swaziland Revenue Authority (SRA).

SRA was demanding over E4.3million from the company for alleged unpaid taxes. The management of company decided to seek legal recourse after SRA locked its premises. In his judgment, Justice Stanley Maphalala said it could not be gainsaid that a wrong property was closed for the transgressions of another entity and justice called that the company be protected. “Further, in my assessment of all affidavits of the parties and the arguments of the attorneys in this matter it appears to me that there was only one property that was closed by the respondent (SRA) and that is the one belonging to the applicant (Mbhilibhi Earthmoving Specialists),” said Judge Maphalala.  He noted that SRA itself also consented that it locked the premises of the applicant. “In my assessment of the papers and the arguments advanced that the dispute before this court is whether or not SRA has a right to close the business premises of the applicant for taxes that are allegedly owed by another legal entity A.J Van Wyk (PTY) Limited. It would appear to me that it would be wrong to close the premises for the wrongs of another business entity, “emphasised the judge.

Judge Maphalala also noted that SRA also acknowledged that Mbhilibhi Earthmoving Specialists and A.J Van Wyk (PTY) Limited were separate entities and the corporate veil was not uplifted. “However, the veil will be uplifted when tax liabilities of a company are being avoided illegally where fraudulent use is made of a fiction of legal personality for the purposes of improper conduct.” The company was represented by Derrick Jele from Robinson Bertram. The exact amount which SRA was demanding from the applicant is E4 342 691.26.  The Managing Director of the company (Mbhilibhi Earthmoving Specialists) Adrian Van Wyk informed the court that the respondent (SRA) had locked up the offices and business at the company’s premises for allegedly owing taxes. He contended that the taxes that were allegedly owed were for an independent and separate company known as A J Van Wyk (Pty) Limited.

Van Wyk alleged that even the letters which the officers of SRA had submitted to the management of the company bear the name A J Van Wyk.  He alleged that that company’s (A J Van Wyk) offices were about 100 metres away from his business premises. He alleged that he showed the officers of SRA but they proceeded to lock the applicant’s (Mbhilibhi Earthmoving Specialists) premises. “The end result of the lock up is that employees of the applicant which are 10 in number have been locked inside the business premises and cannot get out. They cannot even have access to running water and food. The lock up was therefore malicious and has no legal basis except to spite the company and embarrass it to its customers. In fact it exposes the company to serious suits for damages,” contended the company’s managing director. He disputed that the company owed any taxes which he was aware of. Giving a brief background of the matter, Van Wyk said on the morning of August 31, 2016 whilst in the office of the company, he was visited by officers of SRA who presented to him a letter from SRA Commissioner General Dumisani Masilela.

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