Commissioner for Inland Revenue v Burger

• Jurisdiction: South Africa
• Judge: Centlivres CJ,Hoexter JA, Steyn JA, De Villiers JA and Brink JA
• Judgment Date: 10 September 1956
• Citation: 1956 (4) SA 446 (A)
• Hearing Date: 05 September 1956
• Court: Appellate Division

F Centlivres, C.J.:

The Commissioner for Inland Revenue applied for an order condoning his failure to lodge, within the time prescribed by Rule 6 (5), the record in an appeal which he had noted. The judgment appealed against was delivered in the Witwatersrand Local Division on 9 December 1955 and the appeal record should have been lodged with the Registrar on G 9 March 1956. The Deputy State Attorney at Johannesburg wrote to the respondent's attorneys on 3 April 1956 informing them that he had then been instructed by the Commissioner to prosecute the appeal and enquiring whether they were prepared in terms of Rule 6 (5) to agree to an extension of time for the lodging of the record until 20 April. On 11 April the respondent's attorneys wrote to the Deputy State Attorney H declining to agree to an extension of time. On 25 May the Commissioner lodged with the Registrar a petition asking for condonation together with the record on appeal. On 5 June notice was given by the Registrar to the parties that the application and the appeal were set down for hearing on 5 September.

The Commissioner in his petition, which was signed by the Chief Revenue Officer (Legal), alleged that the reason for the delay in lodging

Centlivres CJ

the record was a misunderstanding which arose between himself and his attorney, the Deputy State Attorney. The main causes of the misunderstanding were stated to be as follows:

(1)

On 24 December 1955 the Commissioner instructed his attorney to note an appeal so as to preserve his rights pending a decision A whether to prosecute the appeal or not which could only be made when certain of the Commissioner's officials returned to duty in the following January. The official initially concerned only returned from leave on 23 January 1956, and he completed his report on 8 February 1956. The papers had then to be referred to other officials, viz.: in turn the Chief Revenue Officer (Legal), the Chief Revenue Officer, the Deputy Commissioner for Inland Revenue and the Commissioner who was at the time in Cape Town on parliamentary duties. The Commissioner was only in a B position on 27 March 1956 to notify his attorney that the appeal should be prosecuted. The matter had to be dealt with by all the officials along with many other important and urgent matters.

(2)

The Commissioner and his officials assumed that all steps had been taken by his attorney to protect his rights and were not aware of any urgency.

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