In their applications for the stay of the review application, Ndlovu, his wife and their entities argued that as a result of the Sars preservation order, they do not have access to all their funds.
“The applicants complain the amount the curator is willing to make available to them is woefully inadequate, that the curator thumbed sucked the cap on their legal fees, and that his decision is irrational and in breach of his duty to act in their best interests,” read court papers.
In the application, Ndlovu said they needed access to additional funds preserved under the Sars preservation order to fully and properly prepare and present their opposition to the review application.
They contended that given that the amount the curator was willing to release to them was inadequate to cover the costs of preparing and filing the applicants’ answering affidavit, it was appropriate they brought the stay application.
The respondents oppose the stay application on the basis that:
- the applicants have failed to make full disclosure of their financial means to the tribunal, and as such have not shown they need to procure funds held under the Sars preservation order to properly and fully oppose the review application;
- the applicants do not have a right under the Tax Administration Act to procure funds from assets that have been frozen to satisfy tax debts to fund their opposition to the review application;
- the stay application is brought with the ulterior purpose of delaying the review application; and
- the SIU will be prejudiced by a delay in the finalisation of the review application as it will allow the first applicant to further dissipate funds that have not been preserved.
The Special Tribunal said in the absence of Ndlovu, his wife, and their entities’ full disclosure of their financial means, it was not satisfied they have prospects of success in establishing that they will suffer undue hardship.
“In the event the allegations against the applicants are established in the review application, it is not in the public interest that they continue to conduct business with the state.
“The setting aside of the impugned contracts may justify the placement of the applicants on the register of tender defaulters, prohibiting them from conducting business with the state,” the tribunal contended.
It said granting a stay of the review application would be a great disservice to the public interest.
“It will also undermine the principle on which the tribunal is founded to expeditiously dispose of tribunal proceedings.”
The tribunal noted that Ndlovu, his wife and their companies had not specified the period for which they sought a stay of the review application.
“It appears they intend bringing the variation application in the ordinary course. In that case, given that they only intend issuing the variation application within 15 days of the delivery of this judgment, it is highly probable the application will only be enrolled for hearing in the third term of 2022.”