Case No 11038

• Jurisdiction: South Africa
• Judge: Boruchowitz J
• Judgment Date: 08 March 2006
• Docket Number: 11038
• Court: Transvaal Income Tax Special Court
• Hearing Date: 27 February 2007
• Citation: 2007 JDR 0944 (TSpCrt)

Boruchowitz J:

The Appellant seeks a postponement of its appeal against tax assessments by the Commissioner for the 1998, 1999 and 2000 years of assessment.

In the notice of motion a postponement is sought pending.

1.1

The finalization of the criminal trial against Mr A; - alternatively

1.2

The finalization of a review to be instituted in the High Court for the setting aside of the Commissioner's, alternatively the Registrar of the Tax Court's, decision in procuring the set down of the tax appeal and insisting that it proceed prior to the finalization of the criminal trial against Mr A.

I propose to summarize the factual and legal issues raised which are wide ranging and complex, but will refer to them only to the extent necessary for an appreciation of the conclusions that I have reached.

The principles governing the grant or refusal of postponements have been summarized by the Constitutional Court in National Police Service Union and Others v Minister of Safety and Security and Others 2000 (4) SA 1110 cc at 1112 C - F) as follows:

"The postponement of a matter set down for hearing on a particular date cannot be claimed as a right. An applicant for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. In this respect the Applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted is therefore in the discretion of the Court and cannot be secured by mere agreement between the parties. In exercising that discretion, this Court will take into account a number of factors, including (but not limited, to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed"

The central issue in the tax appeal is whether profits earned from the sale of shares in a number of companies, and more particularly a company known as B amounted to a capital gain or income. This involves an investigation into the Appellant's intention or that of its controlling mind in acquiring and disposing of the shares.

2007 JDR 0944 p2

Boruchowitz J

In seeking the postponement several grounds are advanced. The principal contention is that Mr A whose evidence is material cannot be called as a witness for the Appellant because he is facing criminal charges relating to similar subject matter to that of the tax appeal. A cannot be compelled to give evidence which will incriminate him in the criminal proceedings. It is said that without his evidence the Appellant's prospects of having a fair civil hearing are severely, if not completely, jeopardized.

Further it is alleged that an agreement was struck between Senior Counsel for the Appellant and the Commissioner that the tax appeal would not proceed until after the finalisation of the criminal proceedings against A. Related to this point is a contention that the repudiation by the...