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Both billionaire IT entrepreneur Mark Shuttleworth and the Reserve Bank were granted leave by the Pretoria High Court to turn to the Supreme Court of Appeal in Bloemfontein to appeal against a recent judgment regarding the validity of certain exchange control regulations.
Shuttleworth will, among others, appeal against the fact that Judge Francis Legodi turned down an application by him to set aside the R250 million levy he had to pay to move some of his assets out of the country.
In July, he also lost his bid to declare unconstitutional, the exchange control regulations as a whole, and was also granted leave to appeal against this.
The Reserve Bank was, in turn, granted leave to appeal against the fact that Judge Legodi ruled in favour of Shuttleworth on certain issues, which included declaring section 9(3) of the Currency and Exchange Act unconstitutional and invalid.
This section pertains to the powers given to the president to suspend in whole or in part, acts which are inconsistent with the provisions of the Currency and Exchange Act, relating to banking and exchange regulations.
Shuttleworth earlier this year turned to court in a bid to force the Reserve Bank to pay back the 10 percent levy (R250m) imposed on him when he moved R2.5 billion out of the country five years ago.
He also objected to certain of the exchange control regulations which he said were inconsistent with the constitution.
Judge Legodi delivered a 118-page judgment in July in which he slammed Shuttleworth on his bid to have the Reserve Bank’s so-called closed door policy (not dealing with the public directly, but through a bank when they want to transfer money out of the country) declared unconstitutional.
The judge, in his comprehensive judgment, set out the entire history of the country’s exchange control regulations. He found that the Reserve Bank had no choice but to impose the 10 percent levy, as it simply did as it was told by the finance minister.
Both Shuttleworth and the Reserve Bank asked the judge for leave to appeal against this judgment, which was granted this week. The finance minister, who was a party to the main application, decided to abide by the decision of the court regarding the leave to appeal.
An application to the Constitutional Court to confirm certain of the orders regarding the unconstitutionality of some of the provisions, was also put on hold pending the outcome of the findings of the appeal court.
Judge Legodi said the issues raised in the main application were many and complex. “This resulted in one of the longest judgments ever handed down by this court.”
He said several legal and constitutional issues had been raised which were complex, and added that it may be necessary for the Supreme Court of Appeal to have another look at these issues.