Cell C (Pty) Ltd v Commissioner, South African Revenue Service

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Citation: 2022 (4) SA 183 (GP)

Cell C (Pty) Ltd v Commissioner, South African Revenue Service
2022 (4) SA 183 (GP)

2022 (4) SA p183

Citation	2022 (4) SA 183 (GP)
Case No	30959/2019
Court	Gauteng Division, Pretoria
Judge	Tolmay J
Heard	March 11, 2022
Judgment	March 11, 2022
Counsel	CE Puckrin SC (with JP Vorster SC) for the applicant.; G Marcus SC (with M Mbikikwa) for the respondent.

Flynote : Sleutelwoorde

Revenue — Customs and excise — Tariff determination — Statutory appeal to High Court — Effect on court's review jurisdiction — Wide ambit of appeal rendering review of tariff determination unnecessary — Court's review jurisdiction ousted by wide appeal — Customs and Excise Act 91 of 1964, s 47(9)(e).

Headnote : Kopnota

Section 47(9)(e) the Customs and Excise Act 91 of 1964 (the CEA) provides that '(a)n appeal against any [tariff] determination shall lie to the division of the High Court of South Africa having jurisdiction'.

In its main application Cell C sought to appeal a tariff determination as provided for in s 47(9)(e) of the CEA, and also its review, setting-aside and variation retrospectively. In this application Cell C sought an order in terms of rule 30A to compel the respondent (Sars/the Commissioner) to dispatch a record iro the tariff determination sought to be reviewed under Uniform Rule 53.

At issue was whether s 47(9)(e) confined a taxpayer challenging a tariff determination to the wide appeal remedy it provided, thereby precluding the taxpayer from instituting review proceedings. If so, then rule 53 would not apply and there would no basis upon which to compel Sars to produce a record.

Held

A wide appeal by its very nature provided an applicant with proper access to justice as the wide appeal would also encompass grounds of review and would call for a total rehearing which was not confined in any sense. (See [27].)

On a proper interpretation of the CEA the court retained review jurisdiction in certain circumstances, but due to the ambit of a wide appeal, the need for a review fell away when such an appeal was available; availing oneself thereof excluded the possibility of a review. (See [33] and [36].)

It would accordingly be declared that the court did not have review jurisdiction to review the respondent's tariff determination in the light of the wide appeal afforded to the applicant in s 47(9)(e) of the CEA; and application in terms of rule 30A to compel would accordingly be dismissed. (See [40].)

Cases cited

Southern Africa

Acti-Chem SA (Pty) Ltd v Commissioner for the South African Revenue Service KZP 8540/2017: dictum in para [2] applied

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in para [46] applied

BCE Food Services Equipment (Pty) Ltd v Commissioner of the South African Revenue Service GJ 27898/2015: criticised

Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance)1915 AD 599: dictum at 603 applied

2022 (4) SA p184

Commissioner for Inland Revenue v Da Costa1985 (3) SA 768 (A) ([1985] 2 All SA 335; [1985] ZASCA 32): referred to

Commissioner for the South African Revenue Service v Afri-Guard (Pty) Ltd [2017] JOL 3922 (GJ): referred to

Commissioner, South African Revenue Service v Capstone 556 (Pty) Ltd2016 (4) SA 341 (SCA): referred to

Competition Commission of South Africa v Standard Bank of South Africa Ltd 2020 (4) BCLR 429 (CC) ([2020] ZACC 2): applied

Democratic Alliance v President of the Republic of South Africa2017 (4) SA 253 (GP): applied

Distell Ltd v Commissioner, South African Revenue Service2012 (5) SA 450 (SCA): applied

Distell Ltd and Another v Commissioner for the South African Revenue Service and Another [2009] ZAGPPHC 23: distinguished

Distell Ltd and Another v Commissioner for the South African Revenue Service and Another [2011] 1 All SA 225 (SCA) ([2010] ZASCA 103): distinguished

Distell Ltd and Others v Commissioner for the South African Revenue Service and Another GNP 18682/2006: distinguished

International Business Machines SA (Pty) Ltd v Commissioner for Customs and Excise1985 (4) SA 852 (A) ([1985] ZASCA 87): dictum at 863G applied

Kham and Others v Electoral Commission and Another2016 (2) SA 338 (CC) (2016 (2) BCLR 157; [2015] ZACC 37): dictum in para [41] applied

Kubheka and Another v Imextra (Pty) Ltd1975 (4) SA 484 (W): dictum at 489A – B applied

Lenz Township Co (Pty) Ltd v Lorentz NO en Andere1961 (2) SA 450 (A): referred to

Levi Strauss SA (Pty) Ltd v Commissioner for the South African Revenue Service GP 20923/2015: applied

Liberty Life Association of Africa v Kachelhoffer NO and Others2001 (3) SA 1094 (C): applied

Madrassa Anjuman Islamia v Johannesburg Municipality1917 AD 718: dictum at 723 applied

Metcash Trading Ltd v Commissioner, South African Revenue Service and Another2001 (1) SA 1109 (CC) (2001 (2) JTLR 37; 2001 (1) BCLR 1; [2000] ZACC 21): applied

Minister of Law and Order and Others v Hurley and Another1986 (3) SA 568 (A) ([1986] ZASCA 53): referred to

Natal Joint Municipal Pension Fund v Edumeni Municipality2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): applied

National Lottery Board and Others v South African Education and Environment Project2012 (4) SA 504 (SCA) ([2011] ZASCA 154): applied

National Union of Metal Workers of South Africa v Jumbo Products CC1996 (4) SA 735 (A) ([1996] 4 All SA 177): dictum at 742J applied

Pahad Shipping CC v Commissioner, South African Revenue Service [2010] 2 All SA 246 (SCA) ([2009] ZASCA 172): dictum in para [14] applied

Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others2003 (2) SA 385 (SCA): dictum in para [35] applied

Refugee Appeal Board and Others v Mukungubila2019 (3) SA 141 (SCA) ([2013] 1 All SA 543; [2012] ZASCA 169): referred to

Richards Bay Bulk Storage (Pty) Ltd v Minister of Public Enterprises1996 (4) SA 490 (A): dictum at 494F – I applied

Richards Bay Coal Terminal (Pty) Ltd v Commissioner of the South African Revenue Service D10030/2019 LZNLO: considered

2022 (4) SA p185

Road Accident Fund v Duma and Three Similar Cases2013 (6) SA 9 (SCA) ([2013] 1 All SA 543; [2012] ZASCA 169): referred to

Steenkamp and Others v Edcon Ltd2016 (3) SA 251 (CC) (2016 (3) BCLR 311; [2016] ZACC 1): dictum in para [146] applied

Tikly and Others v Johannes NO and Others1963 (2) SA 588 (T): dictum at 590 – 591 applied

Trade Fairs and Promotions (Pty) Ltd v Thomson and Another1984 (4) SA 177 (W): referred to

Van Zyl and Others v Government of the Republic of South Africa and Others2008 (3) SA 294 (SCA) ([2008] 1 All SA 102; [2007] ZASCA 109): dictum at 311D – F applied.

England

Lloyd v McMahan[1987] AC 625 (HL) ([1987] 1 All ER 1118 (CA & HL): referred to

Passmore v Oswaldtwistle Urban Council1898 AC 387: referred to.

Legislation cited

The Customs and Excise Act 91 of 1964, s 47(9)(e): See Juta's Statutes of South Africa 2020/21 vol 3 at 1-57.

Case Information

CE Puckrin SC (with JP Vorster SC) for the applicant.

G Marcus SC (with M Mbikikwa) for the respondent.

An application in terms of Uniform Rule 30A to compel respondent to dispatch a record of tariff determination pending review.

Order

1.

It is declared that the court does not have review jurisdiction to review the respondent's tariff determination in the light of the wide appeal afforded to the applicant in s 47(9)(e) of the CEA.

2.

The application in terms of rule 30A to compel is dismissed.

3.

The applicant is ordered to pay the costs of the application, including the costs of two counsel, one of whom is senior counsel.

Judgment

Tolmay J:

[1] This is an application in terms of rule 30A to compel the respondent, Sars/the Commissioner, to dispatch a record in relation to a decision regarding a tariff determination (the impugned decision), which the applicant (Cell C) seeks to review and set aside in the main application.

[2] In the main application Cell C seeks to appeal a tariff determination and asks that such determination be withdrawn and redetermined. It also seeks that the impugned decision be reviewed, set aside and varied retrospectively.

[3] The central dispute before this court is whether, in the light of the wide appeal afforded to a party in s 47(9)(e) of the Customs and Excise Act 91 of 1964 (the CEA), the High Court has jurisdiction to review Sars tariff determination in terms of rule 53 of the Uniform Rules of Court. If the institution of review proceedings is competent, then it is common cause that Sars is obliged to produce a record and reasons under rule 53. However, if it does not have review jurisdiction, then rule 53 does not apply and there is no basis upon which to compel Sars to produce a

2022 (4) SA p186

Tolmay J

record. It has been confirmed by the Constitutional Court in Competition Commission v Standard Bank[1] that a court must first decide the question of review jurisdiction, and the production of the record can only be ordered if such jurisdiction is established.

[4] This application turns therefore primarily on a question of statutory interpretation, which is an objective inquiry. [2] This court is required to interpret s 47(9)(e) of the CEA in light of its context and purpose and to determine whether, properly interpreted, a taxpayer challenging a tariff determination is confined to the wide appeal remedy provided for in s 47(9)(e).

[5] Section 47 of the CEA is concerned with the determination of the customs and excise duty payable on goods. In terms of s 47(1) customs and excise duty is payable on all imported and excisable goods, at the time of entry, for home consumption, in terms of sch 1.

[6] Section 47(9)(e) provides that an appeal against any such determination lies to the division of the High Court in the area wherein the determination was made, or the goods were...