The fundamental legal principles in South African law relating to simulated transactions are based on a long line of cases that have been decided in our courts over the past one and a half centuries. The main principle underlying the rule that simulated transactions are void, or that substance prevails over form, is that there can be no contract where there is no true legal intention by the parties. This is simply a necessary consequence of the application of the will theory.
As opposed to the legal intentions of the parties, the purpose of the parties, as another subjective factor, is generally not relevant in determining whether a genuine agreement has been entered into. Purpose may however be taken into account as a factor in determining the true legal intentions of the parties. The existence of an unlawful purpose will also render an agreement unenforceable.
In the case of Commissioner for the South African Revenue Service v NWK Limited 73 SATC 55, Lewis JA has seemingly introduced new considerations into South African law (particularly relevant to tax law), focusing on the presence of an avoidance purpose coupled with the lack of a commercial purpose to determine simulation. This stands somewhat apart from the importance of the true legal intentions of the parties as decisive factor.
This work focuses on the interpretation of these new considerations and the impact of the said judgment on the established principles relating to simulated transactions. In this regard the views of certain critics are discussed. The judgment is also critically analysed in order to draw a conclusion as to what the current legal position is regarding simulation in the context of tax law.