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[2021] ZAGPJHC 354
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Airports Company South Africa SOC Ltd v The Commissioner for the South African Revenue Services (0092/2019) [2021] ZAGPJHC 354 (31 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 0092/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
31 May 2021
In
the matter between:
AIRPORTS
COMPANY SOUTH AFRICA SOC LIMITED
Applicant
And
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICES
Respondent
JUDGEMENT
ALLY
AJ
INTRODUCTION
AND FACTUAL BACKGROUND
[1]
This is an opposed application for leave to amend in terms of Uniform
Rule 28(1) read
with Tax Court Rule 42(1), Part A of the Notice of
Motion and for further relief in terms of Part B of the Notice of
Motion.
[2]
The Applicant gave the Respondent notice that it intended amending
its grounds of
objection by including an amendment that they attached
to the notice.
[3]
The Respondent delayed in filing their answering affidavit and on
filing same, also
requested condonation for the late filing of the
answering affidavit which request is contained in the answering
affidavit. The
Applicant in its replying affidavit did not formally
oppose the condonation request and chose to abide by the decision of
the Court.
Counsel for the Applicant re-iterated this stance in
respect of condonation when addressing the Court.
[4]
Having considered the facts relating to condonation, I am of the view
that the Respondent
has made out a case for condonation to be granted
and this was made known to the parties during the hearing of the
application.
[5]
The Respondent outlined three grounds for objecting to the
Applicant’s proposed
amendment of their grounds of objection to
the assessment of 2011, in the answering affidavit
[1]
.
“
7.1
The amendment seeks to introduce new grounds of objection after the
relevant time periods prescribed in the Rules
have expired;
7.2
The amendment seeks to introduce new grounds of objection after the
additional assessment in relation to the
said grounds became final;
and
7.3
The statutory provisions relied upon by the Applicant for the
amendment sought do not apply in relation to
the amendment of an
objection.”
[6]
Essentially, the Applicant wants to re-introduce an objection
relating to a dispute
in the 2011 assessment after obtaining advice
from a new set of Attorneys. The crux of the advice to the Applicant
is that the
advice given by their former Attorneys is wrong, namely
that they should concede to 2011 assessment as finalised.
[7]
The Applicant argues that Respondent’s grounds of objection are
bad in law and
incorrect and enjoined the Court to approach this
matter as one that is encompasses applications for amendment.
ANALYSIS
AND EVALUATION
[9]
It is common cause between the parties that the Rules do not make
specific provision
for an amendment in circumstances such as present
in this case, namely, the amendment of a notice of objection.
[10]
In this regard Counsel for the Applicant enjoined the Court to
consider Tax Court Rule 42 wherein
it provides:
(1) If these rules do
not provide for a procedure in the tax court, then the most
appropriate rule under the Rules for the High
Court made in
accordance with the Rules Board for Courts of Law Act and to the
extent consistent with the Act and these rules,
may be utilised by a
party or the tax court.
(2)
A dispute that arises during an appeal or application under Part F
concerning the use of a rule of the high court must be dealt
with by
the president of the tax court as a matter of law under section
118(3) of the Act.
[11]
The Applicant then submits that the circumstances of this case fall
within the realm of Rule
42 of the Tax Court Rules and as such this
application is brought in terms of Rule 42 of the Tax Court Rules
read with Rule 28
of the Uniform Rules of Court. Applicant’s
Counsel developed the argument further to indicate that clearly, if
the Tax Court
Rules do not make provision for amendment of pleadings
and documents, then as permitted in terms of Rule 42 of the Tax Court
Rules,
the Applicant is permitted to make use of Rule 28 of the
Uniform Rules of Court.
[12]
I must indicate that such a matter has not come before our Courts and
Counsel for the Applicant
was only able to site cases relating to
repealed provisions of the Income Tax Act, namely, section 83(7)
thereof. It should be
pointed out that section 83 (7) (c) of the
Income Tax Act, made provision for the amendment by a special court
on where such amendment
was made within a reasonable time and subject
to conditions relating to a postponement and the appropriate costs
where necessary.
[13]
I am of the view that Rule 42 of the Tax Court Rules permits an
applicant to approach a Court
for an amendment in terms of Rule 28 of
the Uniform Rules of Court. This, however, is not the end of the
matter. An Applicant in
circumstances such as the present must
convince a Court and fulfil the requirements for an amendment as
espoused in numerous judgments.
[14]
In
Affordable
Medicines Trust
&
Others v Minister of Health & Others
[2]
the
following was stated and with which I align myself:
“
The
principles governing the granting or refusal of an amendment have
been set out in a number of cases. There is a useful collection
of
these cases and the governing principles in Commercial Union
Assurance Co Ltd v Waymark NO. The practical rule that emerges
from
these cases is that amendments will always be allowed unless the
amendment is mala fide (made in bad faith) or unless the
amendment
will cause an injustice to the other side which cannot be cured by an
appropriate order for costs, or “unless the
parties cannot be
put back for the purposes of justice in the same position as they
were when the pleading which it is sought to
amend was filed.”
These principles apply equally to a Notice of Motion. The question in
each case, therefore, is what do
the interests of justice demand.”
[15]
In the
Commercial
Union case
[3]
mentioned
above, the Court outlined certain principles:
“
The principles
enunciated in the abovementioned cases can be summarised as follows:
1. The Court has
a discretion whether to grant or refuse an amendment.
2. An amendment
cannot be granted for the mere asking; some explanation must be
offered therefore.
3. The applicant
must show that prima facie the amendment 'has something deserving of
consideration, a triable issue'.
4. The modern
tendency lies in favour of an amendment if such 'facilitates the
proper ventilation of the dispute between the
parties'.
5. The party
seeking the amendment must not be mala fide.
6. It must not
'cause an injustice to the other side which cannot be compensated by
costs'.
7. The amendment
should not be refused simply to punish the applicant for neglect.
8. A mere loss
of time is no reason, in itself, to refuse the application.
9. If the
amendment is not sought timeously, some reason must be given for the
delay.”
[16]
Has the Applicant satisfied the requirements for requesting leave to
amend its objection?
[17]
One of the considerations mentioned by the Respondent is that the
Income Act and the Rules do
not make provision for such an amendment.
I have dealt with this ground of objection above and indicated that I
am satisfied that
Rule 42 of the Tax Court Rules caters for the
situation the Applicant finds itself in.
[18]
The Respondent submits further that the Applicant is out of time in
bringing the application
and an appropriate order as to costs will
not alleviate the prejudice it would suffer in having to deal with an
objection raised
then abandoned some time ago. The reason for raising
the objection at this time is stated to be that the Applicant changed
Attorneys
and were advised to raise the impugned objection which has
been objected to by the Respondent.
[19]
Counsel for the Applicant referred the Court to another principle in
the adjudication of applications
for amendment, namely that the Court
should allow for the proper ventilation of the issues so that justice
may done to all the
parties. I am in agreement with this principle
but the question is whether it finds favour with this Court in the
circumstances
of this case? I am of the view that the question must
be answered in the affirmative.
[20]
Accordingly it is my view that the Applicant has satisfied this Court
that a proper case is made
out for relief in terms of Part A and Part
B of the Notice of Motion.
COSTS
[21]
The norm and what has become trite in relation to costs is that a
Court has a discretion which
discretion must be exercised judiciously
taking into account the circumstances of the case.
[22]
In my view whilst the Applicant has been successful and the norm is
that costs follow the result,
I am of the view that each party should
pay their own costs in respect of both Part A and Part B of the
Notice of Motion.
[23]
In the result, the following Order shall issue:
1)
An Order is granted in terms of paragraphs 1, 4 and 5 of the Notice
of Motion;
2)
Each party to pay their costs of the application.
G
ALLY
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 31 May 2021.
Date of hearing: 18
August 2020
Date
of judgment: 31 May 2021
Appearances:
Applicant
:
Adv. P Swanepoel SC
[with him Adv. M. Molea]
Edward
Nathan Sonnebergs Inc
amyburgh@ensafrica.com
jmabena@ensafrica.com
Respondent
:
Adv. G. D. Goldman
Vezi &
De Beer Inc
alta@vezidebeer.co.za
eduan@vezidebeer.co.za
[1]
Caselines: 0006 – 579
[2]
[2005] ZACC 3
;
2006
(3) SA 247
CC @ para 9
[3]
1995
(2) SA Tk 73