Sarb responsible for Shuttleworth payment - minister | Fin24
 
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Sarb responsible for Shuttleworth payment - minister

Mar 03 2015 18:00

Johannesburg - The South African Reserve Bank (Sarb) was responsible for repaying the exit levy imposed on billionaire entrepreneur Mark Shuttleworth when he took his capital out of South Africa, the Constitutional Court in Johannesburg heard on Tuesday.

"It would have saved Mr Shuttleworth a lot of problems if he had impugned the decision of the minister and not the [SA] Reserve Bank," Patrick Mtshaulana SC, for the finance minister, told the court.

Justice Sisi Khampepe asked Mtshaulana: "Should it not follow that were there a successful review of the decision, the responsibility to pay back the money rests with the minister?"

READ: Attorney outlines impact of Shuttleworth case

Mtshaulana said the minister granted the permission and attached conditions to the decision.

The Sarb is arguing that it should not repay Shuttleworth the R250m exit levy it charged him when he transferred his assets out of South Africa to the Isle of Man in 2009.

He paid the levy under protest and took the matter to court. The Supreme Court of Appeal (SCA) ruled last year that the bank should not have imposed the levy and ordered it to repay Shuttleworth.

Constitutionality

Following further questions from Khampepe, Mtshaulana said the minister would only be able to get money were it allocated via an appropriation from Parliament.

Mtshaulana said while the minister had some powers, he could not access funding, as he was governed by the Public Finance Management Act.

Tshepo Sibeko SC, for President Jacob Zuma, told the court the constitutionality of the exchange control regime underpinning the dispute did not have to be dealt with.

Deputy Chief Justice Dikgang Moseneke suggested to Sibeko that the case touched on the constitutionality of the Currency and Exchanges Act, and Exchange Control Regulations.

Sibeko said Shuttleworth had not set out which provisions of the legislation he wanted struck down.

"As it stands there are no facts that have been brought forward by Mr Shuttleworth to challenge each and every provision," he said.

Jeremy Gauntlett, SC, for the Sarb earlier argued that responsibility for the decision not to reconsider charging Shuttleworth for the capital transfer lay with the minister.

The Sarb merely enforced policy the minister had announced in the 2003 budget speech.

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