High Court: 2022-2020

The judgments delivered in any of the High Court Divisions on this page are arranged per year and then per date of delivery.
 
High Court judgments delivered in another year, can be accessed through the navigation pane above.
 
2022
Date of DeliveryParties InvolvedApplicable LegislationKeywords/Summary
7 December 2022Glencore International AG v CSARS (34490/2021)

Customs & Excise Act, 1964

Customs: Review application of the Commissioner’s decisions to regard the applicant’s goods diverted in terms of section 18(3) of Act 91 of 1964. As a result, the goods liable for forfeiture in terms of the provisions of section 88(2)(a) and levied an amount in lieu of forfeiture, outstanding VAT and VAT penalty.

21 November 2022Motloung and Another v CSARS and Others (5492/2021)

Tax Administration Act, 2011

Policy and procedure: Whether or not the impugned Statutory provisions contained in sections 235 and 222 (read with section 223) of Act 28 of 2011 are unconstitutional and invalid.

27 October 2022CSARS v Matsepe (40873/20)

Tax Administration Act, 2011

Insolvency Act, 1936

Sequestration of company director’s estate at SARS’s instance – reasons for sequestration order

7 October 2022CSARS v Louis Pasteur Investments (Pty) Ltd and Others (A139/21)

Tax Administration Act, 2011

Procedure and evidence: Appeal – admissibility of further evidence on appeal – proper approach – appeal against an order of costs de bonis propriis – proper approach

25 October 2022CSARS: In re: Cyril and Another v Additional Magistrate, Magistrates Court for the Region of Alexander and Another (28948/2020)

Customs & Excise Act, 1964

Superior Courts Act, 2013

Procedure and evidence: Application for leave to intervene in an appeal concerning the admissibility of evidence gathered by SARS under section 4(4) of Act 91 of 1964 – direct and substantial interest – what constitutes

25 October 2022CSARS v Poulter In re: Poulter v CSARS (A74/2021)

Tax Administration Act, 2011

Procedure and evidence: Application for leave to intervene after respondent’s father, a layperson, was prohibited from representing her – what constitutes a direct and substantial interest entitling a would-be intervening party to intervene – application for late filing of appeal – whether condonation should be granted – irregular proceedings – whether notice of appeal should be set aside – application to strike out – requirements

13 October 2022Structured Mezzanine Investments (Pty) Ltd & another v CSARS (1824/2021)

Tax Administration Act, 2011

Superior Courts Act, 2013

Tax administration – policy and procedure: confidential taxpayer information – whether appellants should be granted leave to appeal judgment in favour of the respondent where the application to have the main application heard “in camera” was denied

12 October 2022 Eskom Pension and Provident Fund v Brian Molefe and others (93895/2019)

Tax Administration Act, 2011

Superior Courts Act, 2013

Tax administration – policy and procedure: application for leave to appeal – alleged incorrect application of rule 41A – allegations of misdirection and lack of judicial deference – no prospect of success on appeal – leave refused

30 September 2022Wingate-Pearse v CSARS (54038/20)

Tax Administration Act, 2011

Contract (Written settlement agreement) – Interpretation: Parol evidence rule – Whether court restricted to recordal of settlement or whether regard may be had to extrinsic evidence adduced by way of affidavit – Procedure and evidence – dispute of fact on the papers – referral for oral evidence – Costs – appropriate order

20 September 2022Puma Energy Procurement South Africa (Pty) Ltd v CSARS (A86/2021)

Income Tax Act, 1962

Income tax: Deduction – losses – under s 11(a) of Act 58 of 1962 – whether claim precluded by law if it is based on a loss resulting from the prescription of a claim for a refund under the Customs and Excise Act 67 of 1964

16 September 2022CSARS v Porrit N O and Others (9260/2013)

Income Tax Act, 1962

Superior Courts Act, 2013

Income tax, Uniform Rules of the Court: Civil procedure – Objection to proposed amendment – Uniform Rules of the Court 28(3), 28(4) – whether SARS could oppose application for amendment   

13 September 2022South African Breweries (Pty) Ltd v CSARS and Another (01740/21 3889/21 and 7772/21)

Customs & Excise Act, 1964

Promotion of Administrative Justice Act, 2000

Customs and excise – Principal-agent relationship: South African Breweries (Pty) Ltd (‘SAB’) imported Corona light beer from Mexico from August 2018 to November 2019, utilising the services of Ocean Light Shipping CC as clearing agent. The goods were cleared in 139 import transactions. SAB later discovered that the goods were fraudulently cleared by Ocean Light as traditional African beer – a product attracting less import duties and as a result of which, import duties and VAT amounting to R139m was not paid over to SARS. SARS had, through third party appointments and VAT refunds due to SAB, already recovered amounts from SAB and issued letters of demand to SAB for a sum R130 590 852.89. SAB contended, inter alia, that Ocean Light was the agent of SARS, that Ocean Light was the importer in terms of section 1(f) of the Customs & Excise Act, and that SARS should hold Ocean Light liable for taxes because SAB had paid all amounts due to SARS, to Ocean Light. Its internal administrative appeal was dismissed and SAB applied for the review and setting aside as against it, of each decision of SARS to reverse the original decisions to accept the declared duties, charges and VAT and clear the consignments of imported beer. It also sought to review and set aside SARS’s decision dismissing the internal administrative appeal.  

9 September 2022CSARS v Wiese and Others (15065/17)

Tax Administration Act, 2011

Tax administration – policy and procedure – ‘Tax debt’ – Evidence at tax enquiry: Whether the evidence in the transcript of the inquiry admissible in the proceedings and, if so, for what purpose is the evidence admissible – whether the secondary tax on companies and capital gains tax as referred to in the Particulars of Claim are each a “tax debt” for purposes of section 183 of the Tax Administration Act

6 September 2022Dankie Oupa Delwery CC v CSARS (39598/20)

Customs and Excise Act, 1964

Customs: Whether the respondent was correct in determining that –

  1. the physical address is a requirement for a valid tax invoice in terms of Schedule 6, Part 3, Note 6 (d) read with section 75(1C) and (iii) of the Customs and Excise Act No.91 of 1964 (the Act);
  2. the applicant’s record keeping was insufficient;
  3. it did not act irregularly in failing to allow the applicant the opportunity to prove that the fuel was appropriately used within 30 days of demand;
  4. the applicant’s logbooks were legally not compliant, or they contained insufficient details regarding the usage of fuel for eligible purchase; and
  5. there were no exceptional circumstances for the Court to depart from the general rule in section 8(1)(c) of the Promotion of Administrative Justice Act, 2000 (PAJA). 

The relief sought by the applicant was to set aside the Commissioner’s decisions as stated above.

In respect of the physical address requirement, the court found that the meaning of address in the relevant Notes to the Act refers to the physical or postal address of the purchaser, or both thereof. 

6 September 2022Attieh and Others v CSARS (33784/2019)

Customs & Excise Act, 1964

Customs and excise: Seizure decision under section 88(1) of Act 91 of 1964 of a motor vehicle irregularly dealt with in terms of the Act and subsequent decision to mitigate the seizure by imposing conditions under section 93(1)(c) for release – whether there was a factual or legal basis for the seizure decision, considering the circumstances, if objectively viewed in the context of SARS’s constitutional obligations and the Promotion of Administrative Justice Act and whether the conditions imposed in mitigation of seizure were justified, reasonable, rational and proportionate and in conformity with those obligations and whether amounts paid under those conditions fell to be refunded – applicant claiming that it had been the victim of a scam that caused the irregular dealing with the vehicle

5 September 2022Regiments Fund Managers (PTY) Ltd and Others v CSARS and Another (33815/2021)

Tax Administration Act, 2011

Procedure and evidence: Whether leave to appeal an interim interdict should be granted – what relief should be granted in the circumstances where a litigating party is alleged to have mislead the court

26 August 2022Forge Packaging (Pty) Ltd v CSARS (21634/2021)

Tax Administration Act, 2011

Procedure and evidence: Refusal of appropriate direction under section 105 of Act 28 of 2011 enabling taxpayer to pursue a review of an assessment in the High Court – whether leave to appeal should be granted on judgment of 13 June 2022.

29 July 2022CSARS v Esibonga Investment (Pty) Ltd and Others (16177/21)

Tax Administration Act, 2011

Tax Administration – Provisional preservation order: Whether SARS entitled to claim that a person against whom such an order has been made, should seek relief under section 163(9) – whether preservation order competent where respondents put up a guarantee for payment of the tax owing – proper scope of order in the circumstances

28 July 2022Premier Plastics (Pty) Ltd v CSARS (9726/2021)

Customs and Excise Act; 1964

Customs & excise: Whether the Commissioner was correct to raise debt against the applicant, for environmental levies, penalty and interest in respect of plastic bags that were less than 24 microns manufactured by the applicant, sold to local entities and subsequently, exported to BLNS countries by such local entities without due entry in contravention of section 20(4) read with Rule 54F.12 of Act 91 of 1964 – whether the applicant was the exporter of the disputed plastic bags for purposes of the Act

20 July 2022BP South Africa (Pty) Ltd v CSARS (A24/2021)

Tax Administration Act, 2011

Superior Courts Act, 2013

Procedure and evidence: Appeal – when appellate court will interfere with the exercise of a trial court’s discretion; Irregular proceeding – failure to comply with Uniform Rule 53(4) –Interdict – whether SARS could be interdicted when it refused to suspend the “pay now, argue later” principle

18 July 2022CRRC E Loco Supply Pty Ltd v CSARS (37766/2021)

Tax Administration Act, 2011

Tax administration: Third party notice under section 179(5) and 179(6) of Act 28 of 2011 given before final demand and without notice – whether reviewable

18 July 2022Peter v CSARS (A162/20 and IT 13720)

Tax Administration Act, 2011

Tax administration – Appeal: Whether SARS arrived at an estimated assessment on reasonable grounds – whether SARS fulfilled the statutory grounds for the imposition of an understatement penalty – Tax Court’s finding as to gross negligence – grounds on which a court of appeal may interfere with such a finding – whether appellant’s conduct in refusing and failing to hand over documents was unreasonable where appellant provided no explanation other than criticism of requests for documents by SARS – whether the levying of interest could be appealed if not raised in the grounds of appeal – whether the Tax Court’s costs order should be varied

14 July 2022SACS (Louis Trichardt) (Pty) Ltd v CSARS (40420/2020; 17064/2021)

Tax Administration Act, 2011

Income Tax Act, 1962

Income tax: Whether SARS should be precluded from auditing, assessing or “performing tax computations” in respect of its tax liabilities for the 2013 to 2016 tax years – whether  SARS is precluded from raising additional assessments in respect of applicant’s tax liabilities for the 2013 to 2016 years, “because the period of limitation for the issuance of additional assessments, as contemplated in section 99 of Act 28 of 2011, has expired”

4 July 2022Eskom Pension and Provident Fund v Brian Molefe and Others (93895/2019)Tax Administration Act, 2011

Court order – compliance with – repayment of benefits received as a result of unlawful membership of pension scheme – quantification

13 June 2022Forge Packaging Pty Ltd v CSARS (21634/2021)Tax Administration Act, 2011

Procedure and evidence: The applicant company, which is a registered taxpayer, applied in its notice of motion for the following relief:
‘… an order:

1. Reviewing and setting aside the additional assessments raised by the [Commissioner of the South African Revenue Service (‘the respondent’)] on
28 August 2018 in respect of the applicant’s 2014, 2015 and 2016 years of assessment on the grounds that the respondent failed to comply with the peremptory provisions of inter alia sections 42 and 106(5) of the Tax Administration Act 28 of 2011 (“the TAA”).

2. To the extent necessary:

2.1 Extending the period in which the application may be launched in terms of section 9(1)(b) of PAJA [the Promotion of Administrative Justice Act 3 of 2000], alternatively, condoning and/or overlooking the late filing of this application in terms of the principle of legality; and
2.2 Condoning any failure to comply with the provisions of section 11(4) of the TAA.

3. Directing the respondent to pay the costs of this application.
4. Granting the applicant further and/or alternative relief.’

23 May 2022CSARS v Louis Pasteur Investments (Pty) Ltd and Others (Mia Intervening) (12194/2017)Superior Courts Act, 2013

Winding-up: Whether leave to appeal against an order placing first respondent under final winding-up should be granted

19 May 2022 Lueven Metals (Pty) Ltd v CSARS (31356/2021)Value-Added Tax Act, 1991

Value-added tax (VAT): Act 89 of 1991, section 11(1)(f) – Jurisdictional requirements for a supply of gold to be zero-rated for VAT purposes – applicable principles of statutory interpretation – certain VAT rulings referred to but not analysed

6 May 2022Sasima Investment Holdings (Pty) Ltd v CSARS (59288/2021)Customs & Excise Act, 1964

Customs and Excise: Applicant seeking interim relief that a truck registered in and on its way to Botswana be released from SARS’s custody pending review of decision to detain it – whether relief of interim nature, given that there is no guarantee that the truck and the fuel it transported will return to South Africa if relief granted

3 May 2022Sookoo and Others v CSARS and Another (49048/21)Tax Administration Act, 2011

Tax administration – policy and procedure: Whether application is urgent and avers and thus inappropriate to saddle the urgent court with disputes relating to a complex investigation in circumstances where the audit investigation into an elaborate scheme of tax invasion is not yet complete

2 May 2022CSARS v Morgan Beef Pty Ltd (66096/2020)

Tax Administration Act, 2011

Superior Courts Act, 2013

Procedure and evidence: Uniform Rule 33(4) – whether application for separation of the issue of prescription from other issues at trial should be granted – whether the issue of prescription can conveniently be decided separately – factors to be considered

28 April 2022Bechan and Another v SARS Customs Investigations Unit and Others (19626/2022)Tax Administration Act, 2011

Tax administration – Search warrant: How it should be interpreted; mandament van spolie not an appropriate remedy if section 66 of Act 28 of 2011 applicable

21 April 2022Tunica Trading 59 (Proprietary) Limited v CSARS (A145/2021)Customs and Excise Act 91 of 1964

Customs and excise – review: Whether respondent acted lawfully in refusing refund application.

12 April 2022Structured Mezzanine Investments (Pty) Ltd and Another v CSARS (1824/2021)

Tax Administration Act, 2011

Superior Courts Act, 2013

Tax administration – procedure: Whether matter qualifies to be heard “in camera” 

11 April 2022CSARS v Louis Pasteur Investments (Pty) Ltd and Others (12194/2017)Companies Act, 2008

Business rescue and liquidation: Whether SARS or any other creditor can apply for a company to be liquidated after the business rescue plan was already adopted or whether only the business rescue practitioner can do so

11 March 2022Cell C Pty (Ltd) v CSARS (30959/2019)Customs & Excise Act, 1964

Customs and excise – Appeal and review: Whether section 47(9)(e), permitting as it does a wide appeal, precludes a court from jurisdiction to order SARS to produce a record of decision for review under Uniform Rule 53

11 March 2022L’Avenir Wine Estate (Pty) Ltd v CSARS (16112/2021)Tax Administration Act, 2011

Tax administration: Whether or not SARS must take into account the applicant’s alleged loss for the disputed period

8 March 2022Mohau and Another v CSARS (10743/2020)

Customs & Excise Act, 1964

Close Corporation Act, 1984

Customs and Excise: Whether applicant is liable to furnish
security

28 February 2022Square Root Logistics (Pty) Ltd v CSARS and Others (D2068/2022)Customs & Excise Act, 1964

Customs and excise: Whether applicant is the owner of the motor vehicles, and not the tax-debtors

31 January 2022Silverback Technologies CC v CSARS (74019/2016), Omnico (Pty) Ltd v CSARS (13891/2017) and Cytek Cycle Distribution CC v CSARS (15052/2017)Customs & Excise Act, 1964

Customs and excise: Whether the products, as presented upon importation, are bicycles as such or parts and accessories of bicycles; proper interpretation and application of General Interpretive Rule 2(a

27 January 2022CSARS v Van Zyl and Others (37351/2020)Tax Administration Act, 2011

Tax Administration: Act 28 of 2011, section 163 – Preservation orders – whether provisional preservation order to be confirmed – proper approach

2021
Date of DeliveryParties InvolvedApplicable LegislationKeywords/Summary
2 December 2021

CSARS v Esibonga Investment (Pty) Ltd and Others (16177/21)

Tax Administration Act, 2011

Tax Administration – Provisional preservation order to prevent dissipation of assets: Section 163(4)(c) of Act 28 of 2011 – whether anti-dissipation order extended to another person (as contemplated in section 163(1)) in the position of the 8th and 9th respondents and whether their claim that they do not intend to dispose of the property is a sufficient basis for the discharge of the provisional order 

30 November 2021

Naushaad Hamid v CSARS (3280/2017)

Customs & Excise Act, 1964

Customs and Excise – Procedure:  Customs and Excise Act 91 of 1964, section 114; whether a debt management certified statement issued under this provision is a civil judgment which can be rescinded or whether it can be withdrawn by the Commissioner by notice in writing addressed to the clerk or the registrar

16 November 2021

Arena Holdings(Pty) Ltd t/a Financial Mail and Others v CSARS and Others (88359/2019)

see Judgment Summary 

Tax Administration Act, 2011

Promotion of Access to Information Act, 2000

Procedure: Whether the blanket prohibition on the disclosure and dissemination of the taxpayer information also protected by the taxpayer’s constitutional right to privacy and dignity could be limited by the applicants’ constitutional right to access to information and freedom of speech

2 November 2021

Chien Hui Kao v Commissioner of Customs and Excise (5580/19)

Customs & Excise Act, 1964

Customs and Excise: Whether a refund of duty paid in respect of imported goods destined for a neighbouring country may be reclaimed by way of the rei vindicatio; requirements in terms of onus

12 October 2021

CSARS v Samsung Electronics South African (Pty) Ltd (35255/2018)Customs & Excise Act, 1964

Procedure and evidence: Discovery under Uniform Rule 35 – will be ordered in exceptional circumstances only, especially when sought by a respondent before delivery of answering papers – relevant factors to be considered; relevance requirement in Rule 35(1); nature of tariff classification appeal process; nature of expert witnesses

21 September 2021CSARS v G W van der Merwe and Others (7255/2019)Tax Administration Act, 2011

Procedure and evidence: Applications to strike out under Uniform Rule 6(15); vexatious proceedings: Whether the respondents had been shown to have “persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons” in a manner which warranted an order to be made against them under section 2(1)(b) of Act 3 of 1956

23 August 2021Peri Formwork Scaffolding Engineering (Pty) Ltd v CSARS (A67/2020)Tax Administration Act, 2011Penalty for late payment of PAYE: Whether imposition of the penalty prescribed under section 213 of Act 28 of 2011 should be remitted to SARS under section 229(3)(c) or set aside by virtue of section 217(3) of that Act where paid after the weekend rather than before it and taxpayer’s past record did not disclose previous non-compliance – SARS arguing that under paragraph 2(1) of the Fourth Schedule to Act 58 of 1962 an employer who collects PAYE owes a duty akin to a fiduciary duty to SARS not to spend it but to ring-fence it; Time – computation – Whether section 244 of Act 28 of 2011 demonstrates clear intention of the legislature that a method other than the ordinary statutory method applies when reckoning the period allowed for payment of PAYE
15 July 2021Public Protector South Africa v CSARS (84074/19)Tax Administration Act, 2011
Public Protector Act, 1994
Procedure and evidence: Whether leave to appeal should be granted; whether condonation for late filing of the application seeking leave should be granted – requirements
12 July 2021Reddy v CSARS and Another (EQ 19443/21)Promotion of Equality and Prevention of Unfair Discrimination Act, 2000Whether, on the papers, the complainant made out a prima facie case before the equality court that his dismissal resulted from a policy that differentiated between people at all, for it to be potentially unfairly discriminatory
17 June 2021PFC Properties (Pty) Ltd and Another v CSARS (81483/2019)Tax Administration Act, 2011
Companies Act, 2008
Companies Act, 1973
Procedure and evidence: Whether firm of attorneys duly authorised to represent SARS
10 June 2021Umbhaba Estates (Pty) Ltd v CSARS (66454/2017)Customs
and Excise Act, 1964
Customs: Whether the Defendant, the Commissioner of the South African Revenue Service was correct in refusing an
application by the Plaintiff, one of the major banana farmers in the country, for a refund
of the fuel levy paid by it in terms as contemplated in section 75(1A) of the Customs and Excise Act, 1964
31 May 2021Airports Company South Africa SOC Ltd v CSARS (0092/2019)Tax Administration Act, 2011Procedure: Whether rule 42 of the Tax Court Rules read with rule 28 of the Uniform Rules permit the amendment of grounds of objection; whether the applicant should be permitted to amend
31 May 2021Africa Cash and Carry (Crown Mines) (Pty) Ltd v CSARS (15467/2021)Tax Administration Act, 2011Tax administration: Whether the court should interfere with SARS’s decision not to suspend the “pay now, argue later” principle; considerations militating against the court’s interference with the exercise of a statutory power
30 April 2021JMN v CSARS (A3096/2019 & 14001)Tax Administration Act, 2011Procedure: Appeal – whether leave should be granted to the appellant to amend its notice of appeal; factors to be considered; whether the tax court had misdirected itself in an evaluation of certain evidence. Share valuation: net asset value method and future discounted cash flow method; when which method is appropriate.
29 March 2021CSARS v Raphela and Others (2091/2021)Tax Administration Act, 2011Procedure and evidence: Preservation order under section 163 of Act 28 of 2011 – Whether the interim order was overbroad inasmuch as the value of property subject to the order exceeded the alleged tax debt due; the meaning of “other person” in section 163; differing scopes of section 163 (preservation provision) and section 183 (recovery provision)
18 March 2021Samsung Electronics SA (Pty) Ltd v CSARS (2018/68900)Customs & Excise Act, 1964Customs & excise; Whether the product should be classified under tariff heading (TH) 8517.62.90 as contended for by the applicant or under TH 8517.12.90
17 March 2021De Beer Consolidated Mines Proprietary Limited v CSARS (60161/2017)Customs & Excise Act, 1964

Customs and excise: Section 47(9)(e) appeal against determination under section 47(9) (a)(i) constitutes a so-called wide appeal – procedural implications – whether certain activities constituted own primary production activities in mining – Graspan Collery SA (Pty) Ltd v CSARS applied, Glencore Operations SA (Pty) Ltd v CSARS not followed

17 March 2021Dragon Freight (Pty) Ltd and Others v CSARS and others (13584/2020)

Customs and Excise Act, 1964

Superior Courts Act, 2013

Promotion of Administrative Justice, 2000

Procedure and evidence: Whether the seizure of goods under Act 91 of 1964 should be set aside under section 6(2) of Act 3 of 2000 – whether the evidence on which the seizure was based and inferences drawn from the evidence was rationally connected to the seizure decisions – whether attorney-client costs to be awarded against SARS
11 March 2021ABSA Bank Limited and Another v CSARS (2019/21825 [P])Tax Administration Act, 2011Tax administration: Whether a taxpayer can approach the high court under section 105 of Act 28 of 2011 to review decisions of SARS, thereby by passing the dispute resolution provisions in the Tax Administration Act
1 March 2021CSARS v Hamiltonn Holdings (Pty) and Others (2020/35696)Tax Administration Act, 2011Procedure and evidence: Preservation order – Section 163 of Act 28 of 2011 – Whether the interim order was overbroad inasmuch as the value of property subject to the order exceeded the alleged tax debt due; the meaning of “other person” in section 163 – differing scopes of section 163 (preservation provision) and section 183 (recovery provision)
4 March 2021CSARS v Louis Pasteur Investments (Pty) Ltd and Others (12194/17)Companies Act, 2008Business Rescue Proceedings: Whether, under section 132(2)(ii) of Act 71 of 2008, to be converted to liquidation proceedings – whether SARS had locus standi – and related matters
15 February 2021Medtronic International Trading SARL v CSARS (33400/2019)Value-Added Tax Act, 1991Value-added tax: Whether the provisions of the voluntary disclosure agreement prohibit a request for remission of interest under section 39(7) of Act 89 of 1991
2 February 2021PriceWaterhouseCoopers Inc and Another v Minister of Finance and Another (25705/2019)Value-Added Tax Act, 1991

Value-added tax: This matter involved a constitutional law challenge brought by PricewaterhouseCoopers (PwC) Inc. and PwC Partnership in respect of section 39(7) of Act 89 of 1991, on the basis of the following two grounds:

  1. It is contended that
    section 39(7) of the VAT Act is irrational and offends the principle of legality
  2. It is further contended that section 39(7) of the VAT Act violates the right not to be arbitrarily deprived of property under section 25(1) of the Constitution
21 January 2021Nyhonyha and Others v Venter N.O and Others (35508/20)

Companies Act, 1973

Income Tax Act, 1962

Tax Administration Act, 2011

Value-Added Tax Act, 1991

Income tax; value-added tax: Whether Regiments Capital was solvent and should be taken out of final winding up – SARS as a potential Creditor opposed the relief sought in the basis that it was still auditing the company and it had as yet an undetermined liability – the court gave SARS time to raise its assessments and to preserve assets to pay SARS and other listed Creditors
19 January 2021Wenco International Mining Systems Ltd and Another v CSARS (59922/2019)Value-Added Tax Act, 1991Value-added tax – sections 1(1), and section 11(2)(k) and (o): Whether VAT ruling issued by Commissioner for the South African Revenue Service to first applicant should be declared unlawful and set aside – whether respondent should be directed to issue a VAT Ruling allowing second applicant to register for VAT as envisaged in the definition of “enterprise” in section 1(1), and whether second applicant should be directed to, upon registration, account for VAT at the zero rate on services supplied to the first applicant under section 11(2)(o) and (k)
12 January 2021Mobile Telephone Networks (Pty) Limited v CSARS (79960/2019)

Tax Administration Act, 2011

Income Tax Value-Added Tax Act, 1991

Tax administration – value-added tax: Whether section 10(18) of Act 89 of 1991 applied to the supply of multi-purpose/airtime vouchers  Mobile Telephone Networks (MTN) brought a declaratory order requesting the high court to determine the correct application of section 10 of the VAT Act on the supply of multi-purpose/airtime vouchers – MTN was of the view that section 10(18) applied, meaning that they only had to account for value-added tax (VAT) at the time the voucher was redeemed – SARS’s view is that section 10(19) applies to the supply of these vouchers, meaning VAT must be accounted for at the time of supply of the voucher. The court confirmed SARS’s application of section 10(19); the supply by MTN of airtime vouchers fell with the provisions of section 7(1)(a) of the VAT Act and attracted VAT at time of supply – the judgment is important as it confirms the VAT treatment of vouchers, which have become a popular means of transacting.
2020
Date of DeliveryParties InvolvedApplicable LegislationKeywords/Summary
11 December 2020Dragon Freight (Pty) Ltd and Others v CSARS and Others (13584/20)

Customs and Excise Act, 1964

Superior Courts Act, 2013

Promotion of Administrative Justice Act, 2000

Evidence and procedure: Whether the seizure of goods under Act 91 of  1964 should be set aside under section 6(2) of Act 3 of 2000 – whether the evidence on which the seizure was based and inferences drawn from the evidence was rationally connected to the seizure decisions – whether attorney-client costs to be awarded against SARS
4 December 2020CSARS v Zikhulise Cleaning Maintenance and Transport CC (14886/2016), Mpisane v Zikhulise Cleaning Maintenance and Transport CC and Another (181010/2016)Tax Administration Act, 2011Whether leave to appeal the judgment of Colllis J (14 October 2020) should be granted – Collis’s judgment confirmed the final liquidation order in Zikhulise Cleaning Maintenance and Transport CC – Leave to appeal was dismissed with costs – the reasoning for the dismissal of the application was that there was no reasonable prospect that another court would come to a different conclusion
20 November 2020Mat Chem CC v CSARS (7139/2019)Customs and Excise Act,  1964Customs & excise:
sections 47(9)(a)(i)(bb) and 75(5); applicant sought the court to change the determination made by SARS by remitting the amount imposed under section 88(2) – court noted that the applicant did not have an issue with the determination itself but its complaint was that the internal administrative appeal committee failed to remit the forfeiture amount imposed under section 88(2) even though the transfer of the goods as part of the business sale was done in good faith and despite its offer to pay the duty and VAT on the goods – applicant’s appeal brought under section 47(9) dismissed with costs
5 November 2020Rappa Resources (Pty) Ltd v CSARS (20/18875)Tax Administration Act, 2011Tax administration – value-added tax (VAT): sections 11(4) and 190 – applicant seeking order instructing SARS to pay VAT refunds in full or, in the alternative, 50% thereof pending review of SARS’s decision to withhold said refunds – applicant also applying for order instructing SARS to complete its audit within 15 days and to cease withholding further refunds; SARS applying to have its replying affidavit kept confidential and to have matter heard in camera – court dismissing the latter application – given urgency of matter, applicant’s application to have its failure to comply with section 11(4) condoned – SARS ordered to make payment of refunds to extent that security can be provided and to complete its audit by 11 December 2020 – costs awarded against SARS
30 October 2020CV v CSARS (A322/2019)Tax Administration Act, 2011Procedure – Appeal: When interlocutory orders of tax court appealable – whether condonation for late filing by SARS should have been granted – whether application for striking-out should have been granted – agreed assessment and later objection – SARS condoning late filing of objection and then withdrawing condonation – Tax court rule 52(2)(b) – punative costs
30 October 2020

Van der Merwe v CSARS (A322/2019)

Minority judgment included
Tax Administration Act, 2011Tax administration – sections 117(3), 129 and 133(1): Whether the rulings or orders made by the tax court in respect of the application for condonation and the striking out are appealable – whether the granting of the condonation to SARS was, on the facts, justified – whether the failure to have the striking out application properly ventilated vitiated the proceedings – matter concerns two interlocutory applications made in the tax court which were taken on appeal by the taxpayer to the high court – additional assessment for 2014 issued on 17.02.2016 – if exceptional circumstances existed, taxpayer had until 16.02.2019 to lodge objection – SARS condoning late objection – SARS failing to respond to objection and taxpayer appealing to the tax court for default judgment – SARS failing to file statement of grounds of assessment – SARS withdrawing condonation of late objection – SARS contending that assessment was not appealable because it emanated from an agreed assessment – SARS filing its answering affidavit a week late with tax court and failing to lodge application for condonation of late filing – tax court summarily condoning late filing without being shown reasonable grounds with good cause – appellant arguing that SARS’s answering affidavit contained hearsay evidence that should be struck out – tax court not considering striking out application – high court finding by a majority that tax court had erred – appeal upheld with costs
14 October 2020CSARS v Zikhulise Cleaning and Maintenance and Transport Service (14886/16) [2020]; Mpisane v Zikhulise Cleaning and Maintenance and Transport CC and Another (18101/16) [2017]

Tax Administration Act, 2011

Companies Act, 1973

Tax administration – liquidation: Whether a final winding up order should be granted, taking into account the provisions of section 177(3) of Act 28 of 2011, and section 346 of  Act 61 of 1973 – judgment confirmed the process in respect of section 177(3) of the Tax Administration Act, confirming what is required by SARS when bringing an application to place a company into liquidation, where the assessment is under objection and/or appeal – provided SARS includes a prayer for leave of the court to bring the application in its notice of motion it has complied with the provisions of section 177(3) – judgment dealt extensively with the requirements for granting a final liquidation order in terms of section 346 of the Companies Act, 1973 – on the just and equitable issue, the court noted that respondent had ceded its contracts to the detriment of its creditors; responded solely reliant on State tenders, yet failed to comply with its legislative and constitutional obligations to pay the fiscus its dues – applicant granted leave in terms of section 177(3) to institute these proceedings; the point in limine raised by the respondent in terms of section 347(5) dismissed with costs, including the costs consequent upon the employment of three counsel – rule nisi issued by Ranchod J on 22 August 2019 confirmed and respondent placed under final winding-up – respondent ordered to pay the costs of the application, including the costs of three counsel
12 October 2020CSARS v The Executor of the Estate of Late Ndlovu (A395/2016)

Tax Administration Act, 2011

Income Tax Act, 1962

Tax administration – income tax: Appeal from the tax court – taxpayer, a director, exercising option to acquire shares and disposing of shares – taxpayer failing to declare resulting gain in tax return and SARS imposing 10% penalty under section 76(1)(b) of  Act 58 of 1962, plus interest under section 89quat(2) of the Income Tax Act – tax court reducing penalty to nil and permitting taxpayer to appeal against imposition of section 89quat interest despite taxpayer raising this as a ground for the first time on appeal – on appeal to the high court – Court reinstating 10% penalty and refusing to admit appeal against section 89quat interest and in any event, taxpayer not having shown reasonable grounds for the interest to be waived – appeal upheld with costs
12 October 2020Bennett and Another v The State (SARS funding prosecution) (SS 40/2006)Tax Administration Act, 2011Whether Judge Spilg should recuse himself from presiding over the criminal trial of Gary Porritt and Sue Bennett – SARS is funding the prosecution of the trial as it involves inter alia tax fraud amongst the charges – accused brought a recusal application, after an article appeared in Noseweek disclosing a “SARS Naughty List” which included Judge Spilg’s name and reflected he owed SARS a substantial amount in tax, in 2002 – SARS was unable to verify the authenticity of the list but was able to confirm that in 2002 Judge Spilg’s tax affairs were up to date and never owed SARS the amount alleged – The judgment deals with the requirements that need to be met for a recusal to be considered and held that the application failed to make out a case for recusal – the application was dismissed
11 September 2020CSARS and Joint Liquidators of Greenbridge Group (Pty) Ltd (in Provisional Liquidation) v Van Zyl (16604/2019)

Tax Administration Act, 2011

Insolvency Act 24, 1936

Supreme Court Act, 1959

Tax administration – insolvency: Uniform Rules of the Court – section 172 of Act 28 of 2011 – section 12 of Act 24 of 1936 – rule 35 of the Uniform Rules of Court – respondent placed in provisional sequestration on 2 July 2020 – about a month before the return date respondent bringing application for discovery of documents held by SARS under rule 35(13) and requesting postponement of sequestration – Court finding that exceptional circumstances did not exist and that respondent’s interlocutory application was a delaying mechanism and dismissing application – court finding that respondent guilty of various acts of insolvency and placing respondent’s estate in final sequestration
11 September 2020Graspan Colliery SA (Pty) Ltd v CSARS (8420/18)

Customs & Excise Act, 1964

Value-Added Tax Act, 1991

Customs & excise; value-added tax – Interpretation and application of Note 3(f)(iii) of Schedule 6 to Act 91 of 1964 and whether the rehabilitation conducted by the applicant was primary production activities in mining which qualify for a diesel refund – applicant claimed a diesel refund in its Value-Added Tax  201 Forms (VAT Returns) for diesel purchased and used by Sandton on the Steel Coal Mine owned by Wakefield Investments (Pty) Ltd –  whether such claim constituted a misrepresentation as contemplated in section 44(11)(a) of the Customs & Excise Act, and therefore whether SARS was entitled to reclaim the diesel refund for a period earlier than the two years prior to the date which the investigation commenced – whether Note 5 in Part 3 of Schedule 6 to the Customs & Excise Act was applicable and if so, whether the Commissioner correctly disallowed the applicant to claim the diesel refund in its own name for the period 15 August 2013 to 31 August 2013 while the mining activities were, during that period, conducted by Shanduka – the sufficiency of the records furnished by the applicant in support of its claim for a diesel refund
31 August 2020Cart Blanche Marketing CC and Others v CSARS (26244/2015)

Tax Administration Act, 2011

Customs & Excise Act, 1964

Tax administration – customs and excise: Interpretation of section 40 of Act 28 of 2011 considered and discussed – whether the decision to select taxpayers for audits, in the context of the facts of this case, should be reviewed on the basis of the principle of legality – held that ripeness and the principle of subsidiarity posing obstacles in reviewing the decision – selection of the taxpayers taken on a ‘risk assessment’ basis and court concluding decision not unlawful
even assuming legality review competent
25 August 2020Absa Bank Limited and Another v CSARS (21825/19)

Tax Administration Act, 2011

Supreme Court Act, 1959

Tax administration – Rules of the Court: Whether it was appropriate to grant leave to the applicant to amend its notice of motion
25 August 2020Purveyors South Africa Mine Services (Pty) Ltd v CSARS (61689/2019)

Tax Administration Act, 2011

Value-Added Tax Act, 1991

Tax administration – value-added tax: Sections 226 and 227 of 28 of 2011 – applicant importing aircraft into South Africa and becoming liable for import VAT – applicant subsequently having reservations about its VAT liability and approaching SARS on the matter –  SARS advising applicant that it was liable for VAT and penalties – applicant subsequently applying to SARS for voluntary disclosure relief under section 226 – SARS advising that applicant had not met the requirements of section 227 – Court finding that disclosure was not voluntary as SARS was already aware of the information – application dismissed with costs
19 August 2020WPD Fleetmas CC v CSARS and Another (31339/20)Tax Administration Act, 2011Tax administration – section 179:
Applicant supplying Impala Platinum Ltd (Impala) with underground winch signalling device systems and remunerated monthly – SARS serving third party notice on Impala under section 179 – Impala acting on such notice and paying approximately R6 million to SARS – applicant contending that final demand served on it after issue of third party notice and thus section 179(5) not complied with – SARS contending that final demand sent before third party notice via efiling system but court not persuaded – court finding that section 179(5) not complied with and ordering SARS to refund applicant with interest – Court refusing to interdict SARS from continuing with recovery steps against applicant
13 August 2020Pearlstock (Pty) Ltd v CSARS (83481/18)Customs & Excise Act, 1964Customs and excise – section 47(9): Customs duty – tariff appeal – applicant importing PVC panels consisting of polymers of vinyl chloride – whether such panels to be classified under TH 3916.20.90 (other plastics of PVC) attracting customs duty at 18% (as contended by SARS) or under TH 3921.12 (plastics of cellular PVC), attracting customs duty at 10% (as contended by applicant) – Court finding in favour of applicant
27 July 2020CSARS and Another v Alves (A194/2019)

Customs & Excise Act, 1964

Superior Courts Act, 2013

Customs & excise – section 16(2) of  Act 10 of 2013: Appeal against decision of court a quo which had authorised return of a vehicle detained by SARS under section 88(1)(a) of 91 of 1964 – sole issue whether the court a quo correctly declared that SARS failed to finalise the investigations under section 88 in reasonable time – vehicle in the meanwhile lawfully seized and forfeited to the state – court finding that matter had become moot – appeal dismissed
21 July 2020BP Southern Africa (Pty) Ltd v CSARS (19955/2020; 22772/2020)Customs & Excise Act, 1964Customs and excise –
section 114(1)(a)(ii): Applicant importing distillate fuel which was stored at a warehouse at the refinery – applicant paying  import duty when fuel left the warehouse – some of the fuel was destined for export  and applicant sought a refund through set-off against import duties once exportation completed – applicant, however, failing to produce documentation proving export of fuel and SARS refusing set-off – SARS obtaining civil judgment against applicant – applicant bringing urgent applications for refund of import duties – Court finding that applications not urgent and that applicant had failed to produce the required documentation justifying a refund – Case dismissed with costs
15 May 2020Barnard Labuschagne Inc v SARS and Another (23141/2017)Tax Administration Act, 2011Tax administration – rescission of judgment under section 172: SARS statement under section 172, effect of civil judgment – finality of section 172 statement – constitutionality of sections 172 and 174
6 May 2020Joseph Nyalunga v CSARS (90307/2018)

Tax Administration Act, 2011

Promotion of Administrative Justice Act, 2000

Tax administration – reviewing and setting aside of assessments: Sections 95(1), 100(1)(a) and (b),
104(5), 105(a) Act 28 of 2011
30 April 2020Toneleria Nacional RSA (Pty) Ltd v CSARS (1042/2018)Customs & Excise Act, 1964Customs and excise – section 47(9)(e): Customs duty – tariff classification – wooden planks suspended in steel containers for purpose of maturing wine – such planks used as alternative to more expensive oak barrels – Commissioner contending that such planks should be classified under TH 4409.29.90 (Wood, including strips and friezes for parquet flooring and so on) and attract duty at 10%, while applicant contending that they should be classified under TH 4416.00 (Casks, barrels, vats, tubs and other coopers), which are duty free – Court finding in applicant’s favour after applying the ‘always speaking’ doctrine of interpretation
29 April 2020SIP Project Managers (Pty) Ltd v CSARS (11521/2020)Tax Administration Act, 2011Tax administration – section 179: Rule 3(2)(b)(ii) of the Rules for Electronic Communications –
SARS withdrawing funds from applicant’s bank account after appointing bank as agent in order to settle tax debt – Court finding that SARS had not delivered a final demand to the applicant prior to appointing bank as agent by uploading same to applicant’s eFiling profile – In addition, court noting that the final demand was issued before the tax debt was due and payable and thus invalid – Court accordingly finding in applicant’s favour
14 April 2020HMT Projects (Pty) Ltd v CSARS (7215/2018)Customs and Excise Act, 1964Customs and Excise – section 47 and Schedule 1: Customs duty – tariff classification of imported seamless carbon steel pipes – general rule that goods are characterised by their objective characteristics and not by intention with which made or use to which put – despite importer putting line pipes of carbon steel to high temperature use, such use still conveyance of petroleum product by way of a pipeline- tariff heading 7304.19 applicable – tariff appeal refused
23 March 2020CSARS v Public Protector and Others (84074/19)

Public Protector Act, 1994

Tax Administration Act, 2011

Public Protector Act 23 of 1994 – section 11(3) read with section 7(4)(a) – Tax Administration Act, 2011 – section 69(1): Public Protector, relying on the Public Protector Act, served subpoena on Commissioner for SARS to provide taxpayer information relating to former President Zuma – whether on a proper interpretation of the relevant and Constitutional and or legislative provisions, SARS’s refusal to provide the relevant information is unlawful – Court finding that Public Protector’s subpoena powers do not extend to taxpayer information – Costs awarded against Public Protector – Public Protector ordered to personally pay 15% of SARS’s costs
17 February 2020Medtronic International v CSARS (33400/19)

Tax Administration Act, 2011

Promotion of Administrative Justice Act, 2000Supreme Court Act, 1959

Tax administration – Rule 30A(1) of the High Court rules: Record of review proceedings is still to be determined by relevance – relevance is not dependant upon the pleaded issues in the initial review
application – relevance remains to be determined by the decision sought to be reviewed – whether Commissioner for SARS should have included internal e-mail correspondence between staff as part of the record in a Rule 53 review application
12 February 2020Glencore Operations (Pty) Ltd v CSARS (11696/2018)Tax Administration Act, 2011Whether leave to appeal should be granted
12 February 2020Peresoft Software and Support (Pty) Ltd v Minister of Science and Innovation (NO) and Another (11372/19)

Income Tax Act, 1962

Promotion of
Administrative Justice Act, 2000

Income tax – section 11D income tax incentive: Applicant carrying on business as developer of specialised computer software – Committee operating under Minister of Science and Innovation refusing to approve project involving development of web-enabled cashbook integrated with accounting software for purposes of the 150% R&D deduction under section 11D – Court emphasising importance of providing adequate reasons for administrative decisions – Court finding that committee’s decision based on incorrect interpretation of section 11D and referring taxpayer’s application back for adjudication – applicant to be supplied with guidelines followed by committee in making its decision
11 February 2020Alfdav Construction CC v SARS (399/2017)

Value-Added Tax Act, 1991

Supreme Court Act, 1959

Value-added tax: Application brought under rule 42 of the Uniform Rules of Court to have earlier judgment amended to the effect that the VAT returns must be resubmitted within 60 days without incurring any penalties and interest – applicant earlier having admitted liability for such penalties and interest and having entered into deferred payment arrangement with SARS in respect thereof, thus rendering issue moot – application dismissed with costs

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