Rudolph and Another v Commissioner for Inland Revenue and Others

• Jurisdiction: South Africa
• Citation: 1996 (2) SA 886 (A)

Rudolph and Another v Commissioner for Inland Revenue and Others
1996 (2) SA 886 (A)

1996 (2) SA p886

Citation	1996 (2) SA 886 (A)
Case No	503/94
Court	Appellate Division
Judge	Corbett CJ, Smalberger JA, Vivier JA, Nienaber JA and Plewman AJA
Heard	March 12, 1996
Judgment	March 25, 1996
Counsel	G J Marcus for the appellants.; H Shakenovsky SC (with him J J le Roux) for the respondents.

Flynote : Sleutelwoorde D

Revenue — Income Tax — Search and seizure in terms of s 74(3) of Income Tax Act E 58 of 1962 — Applicants bringing urgent application to interdict search and seizure — Application dismissed — On appeal appellants asking Court to adjudicate validity of power to search given to respondents on certain common-law grounds and, if failing in that regard, to refer issue of constitutionality of s 74(3) to Constitutional Court under s 102(6) of Constitution F of the Republic of South Africa Act 200 of 1993 — Appellants contending that Appellate Division having some form of parallel jurisdiction entitling it to adjudicate such appeal — Doubtful whether AD having such parallel jurisdiction — In any event, in order to decide whether it has jurisdiction it will be obliged to interpret Constitution which it is not entitled to do — Court ordering that matter G be referred to Constitutional Court in terms of s 102(6) of Constitution.

Constitutional practice — Courts — Constitutional Court — Referral to Constitutional Court by Appellate Division in terms of s 102(6) of Constitution of the Republic of South Africa Act 200 of 1993 — Validity of authorisations issued H in terms of s 74(3) of Income Tax Act 58 of 1962 in issue — Appellants' argument in AD directed to attack on validity of written authorisations on certain 'common-law grounds' — Appellants also contending that s 74(3) of Act unconstitutional and invalid but recognising that Court not able to pronounce on issue — Accordingly requesting Court to adjudicate in terms of s 102(5) of I Constitution on common-law grounds of invalidity and, if failing on those issues, that Court refer issue of constitutionality of s 74(3) of Act to Constitutional Court under s 102(6) of Constitution — Appellants contending AD having some form of parallel jurisdiction entitling it to adjudicate such appeal — Doubtful J whether AD having parallel jurisdiction — In any event, in order to decide whether it has jurisdiction, it will be obliged

1996 (2) SA p887

A to interpret Constitution which it is not entitled to do — Court ordering that matter be referred to Constitutional Court in terms of s 102(6) of Constitution.

Headnote : Kopnota

The appellants had brought an urgent application in a Local Division for interdicts restraining the respondents from exercising the powers of search for documents B given to the Commissioner by s 74(3) of the Income Tax Act 58 of 1962. It was dismissed with costs. In an appeal, the appellants' argument was directed to an attack on the validity of written authorisations for the search and seizure given to the respondents in terms of s 74(3) of the Act on certain 'common-law grounds'. Counsel for the appellants contended that s 74(3) of the Act was unconstitutional and invalid but recognised that the Court could not pronounce on that issue; they accordingly requested that the Court adjudicate on the common-law grounds of C invalidity and, if the appellants were to fail on those issues, that the Court refer the issue of the constitutionality of s 74(3) of the Act to the Constitutional Court under s 102(6) of the Constitution of the Republic of South Africa Act 200 of 1993. The 'common-law grounds' of invalidity on which the appellants relied were (1) that an authorisation once issued and executed may not be used in perpetuity, and thus the use of the original authorisations for a later search and seizure was an D invalid procedure; (2) that the power to issue such authorisations was vested in the Commissioner and that the delegation of such power to someone else was invalid, thus invalidating the authorisations; and (3) that the authorisations were invalid on the ground that they were vaguely and imprecisely worded.

Counsel for the appellants conceded that these common-law grounds of attack upon E the validity of the authorisations and any actions in terms thereof could constitute a breach of the appellants' constitutional rights to administrative justice under s 24 of the Constitution. He contended, however, that the Appellate Division enjoyed some form of parallel jurisdiction which entitled it to entertain the appeal.

Held, that the Court was not satisfied that it had a parallel common-law jurisdiction in the circumstances, but that in any event, in order to decide whether this Court would have a jurisdiction such as was contended, the Court would be obliged to interpret the Constitution, which it was not entitled to do (by reason of the F provisions of s 98(2) of the Constitution which provides that the Constitutional Court shall have jurisdiction in the Republic as the Court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of the Constitution, and s 101(5) of the Constitution which provided that the Appellate Division would have no jurisdiction to adjudicate any matter within the G jurisdiction of the Constitutional Court.) (At 891C, read with 890I-891A/B.)

Held, further, that it was necessary for the purpose of the disposal of the appeal that the constitutional...