Johnson v Rapoo

• Jurisdiction: South Africa
• Judge: Kirk-Cohen J, Van Dijkhorst R
• Court: Transvaal Income Tax Special Court
• Citation: 1999 JDR 0460 (TSpCrt)
• Docket Number: 10411

Kirk-Cohen J:

At the commencement of this appeal this morning, a problem arose as to the ambit of the appeal itself. Section 83(1) of the Income Tax Act, No 58 of 1962 (the Act), provides:

"Any person entitled to make an objection who is dissatisfied with any decision of the Commissioner ... may ... appeal therefrom to a special court for hearing income tax appeals ..."

1999 JDR 0460 p2

Kirk-Cohen J

Subsections 7(a) and (c) read as follows:

"7(a) Every notice of appeal shall be in writing and shall be lodged with the Commissioner within a period of 30 days after the date of the notice mentioned in section 81 (4) or, if the Commissioner has in terms of the provisions of section 106 (4) withdrawn the last-mentioned notice and sent it anew, the date of the notice so sent anew.

(c)

At any such appeal the person who made the objection shall be limited to the grounds stated in his notice of objection, unless the Commissioner agrees to the amendment of such grounds: Provided that the special court may, on good cause shown at the hearing of the appeal, permit such person to amend his notice of objection within a reasonable period, subject to such conditions with regard to postponement and costs as the court may deem fit."

1999 JDR 0460 p3

Kirk-Cohen J

During this sitting of this special court, it has come to my notice that many such notices of appeal read as follows: "The grounds are-set out in letters dated ...., .... and .... and all the correspondence thereafter" between the Commissioner and the taxpayer's attorney or accountant. That leads to the problem that the issues are not clearly defined. It is not the duty of this Court to read all the correspondence and then deduce from those letters what the grounds of appeal are. I may add that in the cases referred to there are many letters stretching over a period of years.

One must of course, remember that the notice of appeal is not a notice from one court to a higher court. In the case of Matla Coal Ltd v CIR 1987 1 SA 108 A Corbett JA said the following in regard to notices of appeal at 125 H-I :

"It is naturally important that the provision of s 83 (7)(b) be adhered to, for otherwise the Commissioner may be prejudiced by an appellant shifting the grounds of his objection to the assessment in issue. At the same time I do not think that in interpreting and applying s 83 (7)(b) the Court should be unduly technical or rigid in its approach. It should look at

1999 JDR 0460 p4

Kirk-Cohen J

the substance of the objection and the issue as to whether it covers the point which the appellant wishes to advance on appeal must be adjudged on the particular facts of the case."

Bearing in mind the ruling of the Appellate Division - there must be something more than a reference to a whole series of letters scattered throughout the record.

This type of notice of appeal is insufficient. The whole object of a notice of appeal is that the issues be defined once and for all at that stage. There must be clarity in the notice of appeal so that effect may be given to section 83(7)(c). A guideline, but not the only one, would be a notice of appeal such as is filed in a civil matter in the Magistrate's Court noting an appeal to the High Court. This remark should be read subject to what Corbett J A said to which I have referred. It does not follow that one can simply rely on a series of letters which make various allegations and contain various statements; often contradictory or at variance with another. Basically the act postulates that the notice of appeal be set out in one document.

1999 JDR 0460 p5

Kirk-Cohen J

Returning to the matter...