High Court: 2022-2020

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.

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.

Tax Administration Act, 2011

Insolvency Act, 1936

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

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

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

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

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

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

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

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

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   

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.  

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

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. 

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

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

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.

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

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

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

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

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

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”

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

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.’

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

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

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

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

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

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

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

Tax Administration Act, 2011

Superior Courts Act, 2013

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

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

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

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

Customs & Excise Act, 1964

Close Corporation Act, 1984

Customs and Excise: Whether applicant is liable to furnish
security

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

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) 

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

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 8^th and 9^th 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 

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

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

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

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

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

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

Customs and Excise Act, 1964

Superior Courts Act, 2013

Promotion of Administrative Justice, 2000

Customs and Excise Act, 1964

Superior Courts Act, 2013

Promotion of Administrative Justice Act, 2000