Devland and Access to the Record Behind a Refusal to Suspend Payment

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Devland and Access to the Record Behind a Refusal to Suspend Payment

• 30 September 2026
• Tax Administration
• The Tax Faculty

Access to the Rule 53 record, statutory confidentiality and review of a refusal to suspend payment.

At a glance

A taxpayer seeking review of a refusal to suspend payment needs the record that explains how the refusal was reached. In Devland Cash and Carry (Pty) Ltd v CSARS, SARS's broad reliance on statutory secrecy did not justify withholding the materials required to test the lawfulness and rationality of its decision (Devland Cash and Carry (Pty) Ltd v CSARS (5837/2020) [2026] ZAGPJHC 967 (28 August 2026), paras 42–52).

The significance of the case lies in the connection between the statutory discretion and the record. Section 164(3) of the Tax Administration Act identifies factors for the decision-maker to consider. A taxpayer challenging the exercise of that discretion must be able to examine the relevant deliberations and supporting material. That procedural entitlement was central to the disclosure application.

The proceedings had distinct stages

Following value-added tax (VAT) and corporate income tax audits, the South African Revenue Service (SARS) issued additional assessments totalling approximately R1.9 billion, including penalties and interest. Devland applied for suspension under section 164. SARS refused the application in February 2020.

Devland then brought urgent proceedings in two parts. Under Part A, it obtained an interim interdict suspending tax recovery and collection proceedings. Under Part B, it sought review of the refusal to suspend payment. When SARS supplied an incomplete, heavily redacted record, Devland brought the application to compel disclosure under Rule 53 of the Uniform Rules of Court.

Those stages must remain distinct. Interim restraint of collection, access to a review record, and final determination of the review involve different questions. An order compelling disclosure does not, by itself, substitute or set aside the suspension decision under review.

Practice point: In advising a client, identify which relief is being pursued at each stage and what has actually been obtained. A successful application for the record should not be reported as success on the merits of the review.

The confidentiality argument and its limits

SARS characterised the disputed documents as internal opinions, advice, reports or recommendations protected by section 68(1) of the Tax Administration Act and section 35 of the Promotion of Access to Information Act. It also contended that disclosure would expose selection procedures and risk-modelling systems, prejudicing future audits. Section 68(1)(k) was relevant to that argument (Tax Administration Act, s 68(1), including s 68(1)(k); Promotion of Access to Information Act, s 35).

The court distinguished legal professional privilege from statutory confidentiality. The former is a common-law evidentiary privilege preserved by section 68(1)(b). The latter must be established on its statutory basis; it does not automatically produce an absolute privilege against disclosure. Treating the two as interchangeable would obscure the enquiry into why a particular document may lawfully be withheld.

The court rejected an interpretation of section 68 that would permit SARS to prevent the taxpayer from scrutinising its own files and the relevant decision-making process. The significance lies in the interpretation of confidentiality in the disclosure dispute. The decision should not be read as invalidating section 68 or making every item of information held by SARS disclosable on request.

Practice point: Where a record is withheld, distinguish the asserted basis for confidentiality from a claim of legal professional privilege. Address the relevance and protection of particular materials rather than treating a general secrecy assertion as conclusive.

The role of sections 68 and 73

Paragraphs 42–52 of the judgment place the secrecy provisions alongside the taxpayer's access rights. Section 73 entitles a taxpayer to recorded particulars of its tax affairs, previous assessments and information submitted to SARS. Access to the residual category of other information is pursued through the Promotion of Access to Information Act (Devland Cash and Carry (Pty) Ltd v CSARS (5837/2020) [2026] ZAGPJHC 967 (28 August 2026), paras 42–52; Tax Administration Act, ss 68(3) and 73).

Section 68(3) also provides for disclosure pursuant to an order of the High Court. The presence of confidential material therefore does not end the enquiry. Where genuine third-party sensitivity arises, targeted redaction of other taxpayers' names and limited confidentiality arrangements can accommodate protection and effective judicial scrutiny.

The practical distinction is between protecting sensitive information and removing so much material that the record no longer explains the administrative decision. In Devland, the redactions and omissions were held to have gone too far. The taxpayer required an adequate record to exercise its right of review.

Practice point: For a taxpayer whose record includes third-party information, assess whether focused redaction or a confidentiality arrangement can address the concern while preserving the substance needed for the review.

The documents ordered to be disclosed

The disclosure order concerned a substantial body of material extending beyond the final communication of the refusal. These records mattered because they could disclose what the committees considered and how the statutory factors were evaluated.

These categories illustrate the breadth of the relevant decision-making record. Their practical significance does not depend on assuming what each individual document contains. The order concerned access to the record of this decision; it is not a universal disclosure order applicable to every SARS file.

Practice point: Compare the record received with the documents and deliberations identified as relevant to the actual decision. A final refusal letter may not disclose the reasoning process that Rule 53 scrutiny requires.

The limited comparison with Ferreira

Ferreira v CSARS illustrates the different result that a completed review can produce. In a review under section 6(2) of the Promotion of Administrative Justice Act (PAJA), the court substituted SARS's decision. The taxpayer had tendered shares as security with a value substantially exceeding the tax debt, and the court accepted suspension rather than referring the decision back to SARS.

The comparison is limited. Adequate security is relevant to suspension, but its provision should not be treated as invariably decisive. Nor should substitution be assumed to be the usual remedy. The relief sought and the facts supporting it require separate attention.

Practitioner action checklist

Effective scrutiny depends on a record that reveals how the administrative discretion was exercised. Devland secured that record. The court rejected an overbroad secrecy claim while recognising means of protecting legitimately sensitive information.

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