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Advocate Bryan Cecil Hack

Capacity: Advocate
First admitted as advocate: 1995
Gender: Male
Ethnicity: White
Date of Birth: 3 November 1956

Key judgments:

Candidate Bio:

During his student days at the University of Cape Town (UCT), Advocate Brian Hack was charged with two others, under the Terrorism Act, of the attempted shooting of Progressive Federal Party leader Colin Eglin.

He was eventually acquitted, but it would be interesting to see how one of the leaders of the Conservative Students Alliance, which was formed to wrest control of UCT’s Student Representative’s Council (SRC) from progressive elements in 1977, fares with a Judicial Service Commission (JSC) which often has little time for apartheid’s reactionary types.

Hack is another acting judge referred to, without being named, in Western Cape High Court Deputy Judge President Patricia Goliath’s complaint against the division’s judge president, John Hlophe.

One of the main thrusts of Goliath’s complaint against Hlophe is that there is a lack of transparency and consultation in the appointment of acting judges with neither her, nor fellow senior judges, consulted. According to Goliath, Hlophe’s wife, Gayaat Salie-Hlophe, who is also a judge in the division — and confirmed to be a friend of Hack, who attended the Hlophes’ wedding — holds great “power” in this regard.

According to Goliath’s complaint, Salie-Hlophe not only recommends lawyers for acting appointment, but also on their reappointment: “If Salie-Hlophe has some issue with him or her that person will not be reappointed.”

Goliath also claimed that Salie-Hlophe had ensured an advocate she shared “school mum duties” with was given an acting post and that some judges at the Western Cape High Court are “afraid of her” and the power and influence she wields.

The division has long descended into tawdry farce with allegations that sexual misconduct, physical violence, the isolating of senior judges, and a refusal by ten judges in the division to share full Bench panels with one of their colleagues, Mushtak Parker, pushing it to the brink of collapse. The ten judges have refused to work with Parker on the grounds that he changed his testimony, under oath, about an alleged physical altercation with Hlophe.

Hack has enjoyed “long” acting stints according to Goliath and “his presence underlines the power which Salie-Hlophe wields” according to the DJP.

Hack has acted for three terms each in the last two years.

During that time he delivered judgment in the 2019 matter ABC Proprietary Ltd v Commissioner of the South African Revenue Service which dealt with the application of double taxation agreements.

ABC resided and was a registered taxpayer in South Africa but the owner of its shares was a company that was resident and a taxpayer in the Netherlands.

ABC declared dividends and the shareholder made a declaration that it owed 5% tax, which was paid to the South African Revenue Service (SARS).

The shareholder subsequently took the view that this was incorrect, and that the tax rate was 0%. SARS refused to refund the payment.

ABC argued that it was not liable to pay tax to South Africa on dividends paid to its Netherlands shareholder, in terms of the double taxation agreement (DTA) between the two countries, specifically because of a “most favoured nation” clause in the treaty.

Hack identified the core argument of the respondent as being that:

“South Africa made a decision to change its tax system in regard to the payment of tax on dividends. This was properly and legitimately motivated to bring it in line with other countries including in particular its principle trading partners. It studiously, timeously and with considerable effort renegotiated the terms of existing DTA agreements. The various amending protocols or new agreements contained terms which are virtually identical but some countries sought minor variations.

“When negotiations on all such amendments had been finally concluded South Africa amended its law. It anticipated that the countries, and in particular Kuwait, who had concluded agreements with South Africa would imminently ratify the agreements despite the fact that this had not yet happened.

“The oral evidence was that South African has vigorously used all possible avenues to remedy the situation. Respondent … argued that the appellant is now exploiting what is an entirely unanticipated, unforeseen and unfortunate occurrence to refuse to pay tax in South Africa despite the fact that the contracting parties (South Africa and the Netherlands) never meant this to happen. The consequences are potentially financially disastrous for South Africa. Respondent … relies on persuading the court that it needs to emphasize the true intentions of South Africa in entering into the agreements and act to prevent the consequences of what has or will occur as a result of the failure of Kuwait to ratify the protocol [sic].”

Hack upheld the appellant’s argument, based on Supreme Court of Appeal authority, that the court should not take into account evidence led by the respondent regarding the intention of South Africa, the Netherlands, Sweden and Kuwait in considering whether the appellant was liable to pay tax in South Africa. Hack accepted that the provisions of the Netherlands agreement were clear, and provided that if another state receiving preferential treatment from South Africa in the future, the Netherlands resident had to be given the same preference.

“[T]here are therefore no grounds upon which this court can find that certain words were missing from the Netherlands’ agreement unless the court jettisons the parol evidence rule. This court cannot do so. It is bound by the rule and prevailing decision of the Supreme Court of appeal. …”

SARS was ordered to refund the overpaid dividends tax

April 2021 Interview: