Cut your losses!

On 18 March 2021, the Supreme Court of Appeal delivered judgment in the case of Massmart Holdings Limited v The Commissioner for the South African Revenue Service. The case dealt with losses which were incurred within the broader Massmart group in respect of the investing of equity instruments as part of an employee share incentive scheme. The mechanism of the scheme was that shares allocated to the designated employees would be purchased from a share Trust with funding from Massmart Holdings.

Upon distribution of those shares to the designated employees, the share Trust could either have losses in respect of the distribution, or taxable gains. Over several years of assessment, the Trust realised losses on the distributions on the vesting of those shares in the designated employees for a cumulative amount of R954 million.

Rather than claiming these capital losses in the Trust from where they arose, the group proceeded to claim those losses in Massmart Holdings. In other words, the group attempted to claim losses on the disposal of assets which never belonged to the claiming party in the first instance.

Massmart’s original objection to SARS’ disallowance of the losses of the Trust was that Massmart Holdings was essentially an extension of the Trust and that it maintained control over the Trust’s activities and should therefore be allowed to claim the losses. After disallowance of the objection, Massmart added a further ground on appeal being that it [Massmart] acquired a right to call on the Trust for delivery of the shares to the identified employees. It argued that its base cost for that asset was the loss incurred by the Trust on that realisation event (i.e. when the shares vested) and that it obtained no proceeds on that disposal, resulting in a capital loss.

Without entertaining that argument in too much detail, the Supreme Court of Appeal (“SCA”) found that it was not possible for Massmart to claim those losses and that there exists no mechanism in terms of which losses can be distributed out of a Trust into the hands of a beneficiary. While a distribution of gains is well recognised in our common law and law of taxation, it is a firm principle which has now been confirmed by the SCA that Trust losses cannot be distributed from trusts to beneficiaries.

Ironically, Massmart was adequately advised by their respective advisors prior to claiming the losses, but proceeded nevertheless. It appears the battle was lost before it even proceeded to court.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When to make use of the small claims court

This article discusses claims making use of the Small Claims Court. It specifies what the benefits are of approaching the Small Claims Court and who would have locus standi to do so. The article then establishes what Small Claims Court proceedings entail and briefly provides relevant information regarding judgments by this Court.


The Small Claims Court provides a prompt and inexpensive way to resolve minor disputes. It is meant for the ordinary man and woman on the street who cannot afford civil litigation. In particular, the Small Claims Court can benefit the destitute and indigent in South Africa to be able to access justice in a very informal, cost-effective, and user-friendly manner.


The Small Claims Court is governed in terms of the Small Claims Court Act 61 of 1984 (‘the Act’) which is established for a time and cost-effective mechanism for those who have a claim against another party. The Small Claims Court is for anyone who wants to institute a minor civil claim against someone else. You can also institute claims against companies and associations.


However, the claims are limited to amounts that are less than R15 000. This excludes the State, meaning a person cannot, for example, make a claim against a local municipality. Claims brought to the Small Claims Court are dealt with quickly and cheaply without claimants having to appoint an attorney, and anyone, except juristic persons, are allowed to make use of this forum.


What does the process entail?


The procedure of lodging a claim in the Small Claims Court is fairly easy and straightforward. As in the case of most litigious claims in other courts, claims should initially be instituted by way of a letter of demand, which must be sent by registered post or be hand-delivered. In the letter of demand, one should set out all the relevant facts which give rise to one’s claim, and specify the amount being claimed. The party instituting the action should give the opposing party 14 working days in order to settle the claim, which is calculated from the date of receipt of demand by the defendant.


The Act provides that upon proof submitted to the clerk of the court that the requirements regarding the letter of demand have been complied with; and if the clerk of the court is satisfied that the plaintiff is a natural person; and that the summons comply with the prescribed requirements, the clerk of the court shall set a date and time for the hearing of the action and issue the summons. The summons will then be served on the defendant personally or by the sheriff of the court.


The hearing:


The claimant and the defendant must appear in court in person and the hearing will be chaired by the commissioner. Commissioners in the Small Claims Court are usually experienced legal practitioners. Remember that all the documents on which one’s claim is based should be brought to the hearing, as there is no point in showing up empty-handed. The Small Claims Court proceedings are basic and straight-forward. No legal representatives such as attorneys or advocates are involved in the proceedings, which contributes to the cost-effective nature of this mechanism. As the proceedings begin, answer any questions that the commissioner of the court may ask.


The judgment:


After the hearing of the action, the judgment will be given by the commissioner, which becomes final and enforceable. If the commissioner grants judgment in your favour, he or she will usually ask the defendant how the debt will be settled.  The commissioner can make an order for payment by instalments.  If no such order is made and the defendant does not pay or settle the judgment within two weeks, one can enforce this judgment by execution in the Magistrate’s Court. It must be noted that a judgment in the Small Claims Court is not appealable but may be taken on review.




  • Small Claims Court Act 61 of 1984
  • Small Claims Courts: Guidelines for Commissioners


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)