The taxpayer relied on the Case of the City of Tshwane Metropolitan Municipality v. Blair Atholl Homeowners Association  1 All SA 291 (SCA) in which it was found that, since Endumeni, there had been a number of cases in which evidence could be brought before the courts as to the importance of attributing words in written statutes and conventions. The Supreme Court of Appeal (SCA) has always found that, in interpretation, the starting point is the language of the document. Without the written text, there would be no interpretive exercise. The courts have decided to keep the trial within reasonable limits. The SCA had seen too many cases of significant, inconclusive and inadmissible evidence. At the time of the oral proceedings, the DBA SA/Netherlands and the DBA/Sweden had already been amended and minutes had been concluded, providing for a 5% withholding tax in the category concerned. Although the renegotiations with Kuwait had been concluded, Kuwait had not yet ratified the agreement, so the protocol with Kuwait was not yet in force. The current DBA SA/Kuwait, which came into force on 25 April 2006, provided for a dividend tax rate of 0%. Although the protocol with Kuwait has not yet been in force, the SA government continued the dividend tax regime effective April 1, 2012. “The applicant relied heavily on decisions already taken in the Dutch courts. This court has made its decision on South African domestic law, which seems to me to be the right way forward, and there is no point in referring to international law or the previous decisions of a foreign court or the principles of convenience.
The parties believe that the principles that govern the interpretation of international tax conventions in South African and international law are the same as those applied by our courts in the interpretation of statues and conventions. As the Court said, SARS asked for it. The Tribunal not only examines the terms used, it must also, inevitably, pay attention to the intention of the parties who apply the various criteria that include “the circumstances in which the document was created”.