THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 801/2022
In the matter between:
BP SOUTHERN AFRICA (PTY) LTD APPLICANT
and
COMMISSIONER FOR THE SOUTH
AFRICAN REVENUE SERVICE RESPONDENT
Neutral citation: BP Southern Africa (Pty) Ltd v Commissioner for the
South African Revenue Service (Case no 801/2022) [2024]
ZASCA 2 (12 January 2024)
Coram: MOLEMELA P, NICHOLLS, MATOJANE and GOOSEN JJA
and MUSI AJA
Heard: 07 November 2023
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, published on the Supreme Court of
Appeal website, and released to SAFLII. The date and time for hand-down is
deemed to be 11h00 on 12 January 2024.
2
Summary: Tax law – Customs and Excise – interim interdict – requirements
restated – demand by Commissioner for the South African Revenue Service –
amount due not suspended by a request for reasons or an appeal.
Interlocutory ruling – appealability – ruling not to admit a su pplementary
founding affidavit before the filing of a record in rule 53 proceedings not
appealable.
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ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Baqwa,
Tolmay and Sardiwalla JJ sitting as court of appeal):
The application for special leave to appeal is dismissed with costs.
JUDGMENT
Musi AJA (Molemela P , Nicholls, Goosen and Matojane JJA
concurring):
Introduction
[1] This is an application for leave to appeal , in terms of s 17(2)(d) of the
Superior Courts Act 10 of 2013 against an order of the full court of the
Gauteng Division of the High Court, Pretoria (the full court). The applicant,
BP Southern Africa (Pty) Ltd (BP), launched two separate urgent applications
for interim interdicts (Part A in both applications), seeking substa ntially
similar relief, in th e high court (per Mothle J), against the respondent, the
Commissioner for the South African Revenue Service (SARS) , pending
review applications (Part B in both applications) . Mothle J dismissed both
applications. Leave to appeal to the full court was granted by this Court. In
separate proceedings , BP unsuccessfully applied to file a supplementary
founding affidavit in the high court (per Munzhelele AJ) . Munzhelele AJ
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granted BP leave to appeal to the full court against her ruling. The full court
dismissed all three appeals.
Background
[2] In Part A, BP sought the following orders:
(a) an order truncating the time period in s 96 of the Customs and Excise Act
91 of 1964 (the Act); and
(b) an order interdicting and restraining SARS from attaching and disposing
of its property, and from proceeding with any execution proceedings against
it, pursuant to the issuing of a certified statement filed in terms of s
114(1)(a)(ii) of the Act by SARS on 16 March 2020, pending the outcome of
review applications brought under Part B.
[3] In Part B, it sought to review and set aside SARS’ decisions to:
(a) issue final demands and notices of the institution of legal proceedings;
(b) to issue the debt management certificate on 16 March 2020;
(c) proceed with the execution in respect of BP’s property; and
(d) SARS’s failure to allow BP to submit an appeal in accordance with the
Act.
In Part B of the second application , it sought an order reviewing and setting
aside SARS’ decision to dismiss its application for suspension of payment.
[4] After Mothle J dismissed Part A of BP’s applications and its application
for leave to appeal, it filed a supplementary founding affidavit in support of
its review applications. SARS brought an application in terms of Uniform
Rule 30(1) to declare the filing of the supplementary founding affidavit as an
5
irregular step and to set it aside. BP opposed the application and brought a
counter application to be allowed to file the supplementary founding affidavit.
Munzhelele AJ granted SARS’ application an d dismissed BP’s application.
She further ordered BP to pay the costs, including the costs of two counsel,
on the attorney and client scale.
[5] The a ppeals against Mothle J’s and Munzhelele AJ ’s orders were
consolidated. The full court dismissed the appeals with costs, including costs
of two counsel on an attorney and own client scale. BP applied to this Court
for special leave to appeal against the order of the full court. The application
for special leave to appeal was referred to this Court for oral argument with
leave to argue the merits, if necessary.
Architecture of the Act
[6] The Act contains a myriad of regulatory provisions and rules made in
terms thereof. The architecture of the Act is extensively discussed in Gaertner
v Minister of Finance.1 The sections of particular relevance to this matter are
set out below . The Commissioner is charged with the administration of the
Act.2 The Commissioner may make rules relating to the storage and
manufacture of goods in a customs and excise warehouse, including the
removal of such goods from the warehouse.3 In terms of s 19A( a)(iii), the
Commissioner may, by rule, in respect of any specified exci sable goods or
fuel levy goods or any class or kind of such goods manufactured in the
Republic, prescribe any procedures or requirements or documents relating to
1 Geartner v Minister of Finance [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC) paras
17-49.
2 Section 2(1) of the Customs and Excise Act 91 of 1964 (the Act).
3 Section 120 of the Act.
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the entry and removal of goods from and to any such warehouse or for export
or for the use under rebate of duty.4
[7] Only a licensee of a fuel warehouse, commonly known as a refinery, or
licensed distributor,5 may export distillate fuel (fuel).6 Fuel may be stored at
a warehouse for home consumption, re-warehousing, or for export purposes.
When fuel is removed from a warehouse for any of the three purposes stated
above, duty is payable. The licensee’s obligation to pay duty is triggered by
the removal of the fuel from the warehouse. This is called duty at source
(DAS).7 No duty is levied for fuel levy goods exported from South Africa.8
When fuel levy goods are exported, and the exporter has complied with all the
s 19A and rule 19A requirements, the DAS paid is refunded by way of set-off
against any duty the exporter is permitted to pay monthly or quarterly.9
[8] When any fuel is transported by road for export purposes, the removal
must be done by a licensed remover of goods in bond,10 unless the licensee or
a licensed distributor carries the goods.11 After the exportation of the fuel, the
exporter claims a refund based on all the documents relating to the movement
of the fuel from South Africa to the foreign country. The final documents, the
customs notification documents (CN1 and CN2), are referred to as acquittals.
In terms of rule 19A.05, a licensee must keep books, accounts documents and
4 Section 19A(1)(a)(iii)(dd) of the Act.
5 A licensed distributor is licensed in accordance with s 60 and s 64F.
6 Rule 19A4.04(a)(iii).
7 Section 20(4) of the Act.
8 Section 18A (1) and (2) of the Act
9 Section 77(a) of the Act.
10 Goods in bond or bonded goods are goods for which customs and excise duties are not yet paid. See
Cambridge Business English Dictionary © Cambridge University Press.
11 Rule 19A4.04(a)(iv). The licensing of a remover of goods in bond is regulated by s 64D.
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data relating to goods received, stored, used or removed as well as the contract
of carriage entered into between the licensee and the licensed remover of
goods in bond and the delivery instructions issued to such remover in respect
of each consignment. When goods are declared for exportation to a particular
destination, they may not be diverted to any other destination without the
permission of the Commissioner.12
[9] If the Commissioner, purporting to act under the provisions of the Act,
pays to any person by way of refund any amount which was not duly payable
to that person, such amount shall be repaid by that person to the Commissioner
upon demand, failing which it shall be recoverable as if it were the duty or
charge concerned.13 This applies to any amount set off in terms of s 77 of the
Act.
The investigation
[10] BP is a licensee of a warehouse and an exporter of fuel. BP represented
to SARS that it had exported fuel to Zimbabwe. It claimed refunds of the DAS
it had paid when the fuel left a Transnet storage facility at Tarlton, which is
not a licensed warehouse . SARS investigated various consignments of fuel
that BP alleged it had exported. SARS was of the view that the fuel had never
been exported but consumed locally. SARS made the determination, inter alia,
based on the following: none of the goods were exported from a licensed
warehouse; the Zimbabwean consignees did not exist or were not impor ters
of fuel; the vehicles purportedly used to transport the diesel never crossed the
border since SARS’ electronic records indicated that the vehicles did not reach
12 Sections 18A(9) and 18A(13)(a)(i) of the Act.
13 Section 76A of the Act.
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the port of exit; BP could not provide the necessary documents to prove
exportation; most of the documentation purportedly proving exportation to
Zimbabwe were falsified ; the transporters were not licensed removers of
goods in bond.
[11] BP’s version is that it sold diesel to different intermediaries who , in
turn, sold it to importers in Zimbabwe . It acted as an ‘exporter of record’ of
the diesel because the inter mediaries are not licensees of warehouses or
licensed distributors of fuel, and would therefore not be entitled to refunds of
excise duty, fuel levy and road accident fund levy paid by BP in terms of the
DAS policy. BP sold the fuel to the intermediaries , excluding DAS , and
claimed refunds of the DAS that it had paid, after the fuel was exported by the
intermediaries. It denied that it committed fraud, or that it was a party to any
fraudulent scheme.
[12] On 13 February 2020, SARS issued BP with four letters of demand. BP
did not pay the amounts demanded by SARS. The payments became due and
payable upon demand.14
[13] On 24 February 2020, SARS issued a final demand and notice of the
institution of legal proceedings against BP. It informed BP that the amounts
in the letters of demand were due and payable and that those amounts
constituted a debt which was due and payable to the State. It further advised
14 Section 44(10) of the Act reads:
‘Any duty for which any person is liable in terms of this section shall be payable on demand by the
Commissioner.’
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BP that any objection to the demand lodged by it in terms of the Act would
not suspend payment.
[14] On 16 March 2020, SARS filed a certified statement with the registrar
of the Gauteng Division of the High Court, Pretoria, in terms of s 114(1)(a)(ii)
of the Act for an amount of R49 978 544.06. This section reads as follows:
‘If any person fails to pay any amount of any duty, interest, fine, penalty or forfeiture
incurred under this Act, when it becomes due or is payable by such person, the
Commissioner may file with the clerk or registrar of any competent court a statement
certified by him as correct and setting forth the amount thereof so due or payable by that
person, and such statement shall thereupon have all the effects of, and any proceedings may
be taken thereon as if it were a civil judgment lawfully given in that court in favour of the
Commissioner for a liquid debt of the amount specified in the statement.’
[15] On the same day , SARS attempted to execute t he judgment. On 17
March 2020, BP requested SARS to give it an undertaking that it would stay
execution of the judgment pending the outcome of a review application to be
launched by BP. On 18 March 2020, BP served a notice in terms of s 96(1) on
SARS. Section 96(1)(a)(i) provides:
‘No process by which any le gal proceedings are instituted against the State, the Minister,
the Commissioner or an officer for anything done in pursuance of this Act may be served
before the expiry of a period of one month after delivery of a notice in writing setting forth
clearly and explicitly the cause of action, the name and place of abode of the person who
is to institute such proceedings … and the name and address of his or her attorney or agent,
if any.’
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SARS may, on good cause shown, reduce or extend the period in s 96(1)(a)(i)
by agreement with a litigant.15 A high court may, upon application made to it,
reduce or extend the aforementioned period.16
[16] On 19 March 2020, SARS gave an undertaking that it would not
continue with any collection steps until BP’s application for suspension of
payment had been considered. On 23 March 2020, BP launched the first
urgent application, which it subsequently removed from the roll. On 26 March
2020, BP applied for suspension of payment, which was rejected on 19 May
2020. On 24 March 2020, BP launched the second urgent application.
Litigation history
[17] Mothle J found that neither application was urgent, but he nevertheless
considered it expedient to deal with the merits of the applications. He further
found that BP failed to prove that it would suffer any prejudice because it
could afford to pay the amount claimed and that it would be able to recover
the money after submitting the necessary documents to SARS.
[18] The full court found that the high court exercised its discretion against
BP in terms of s 96. It further found that BP failed to prove any of the
requirements for an interim interdict. Regarding the supplementary founding
affidavit, the full court found that there is no procedural basis, in rule 53
proceedings, for the filing of such affidavit before the record had been filed.
15 Section 96(1)(c)(i) of the Act.
16 Section 96(1)(c)(ii) of the Act.
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Mootness
[19] SARS argued that the appeal would have no practical effect since the
debt had already been collected in terms of s 114AA, which entitles SARS to
declare any person to be the agent of a debtor and require such person to make
payment on behal f of such debtor. SARS further argued that because the
interim interdict sought to interdict and restrain the recovery of the money in
terms of s 114(1)(a)(ii), a recovery in terms of s 114AA was therefore beyond
the ambit of the relief sought.
[20] It is now well established that an appeal may be entertained even when
there are no live issues to settle, if it is in the interests of justice to do so.17 In
my view, the issues between the parties have not yet been finally settled. In
the review, BP seeks to declare SARS’ decisions , from the issuance of the
final demands to the rejection of its suspension application invalid and to have
it set aside. If it succeeds, the recovery in terms of s 114AA would also be
affected. This Court held in Seale v Van Rooyen NO and Others; Provincia l
Government, North-West Province v Van Rooyen NO and Others that:
‘. . . acts performed subsequent to a decision which is set aside and which can no longer
depend upon the mere existence of that decision for their own validity, are invalid once the
decision is set aside, irrespective of whether those acts were performed before or after the
court order invalidating the decision.’18
[21] There are still ongoing disputes between the parties based on similar
issues. A determination of the issues in this matter will have a practical effect
17 Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exploration SOC
Limited and Others [2020] ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4) SA 409 (CC) paras 46 -50.
18 Seale v Van Rooyen NO and Others [2008] ZASCA 28; [2008] 3 All SA 245 (SCA); 2008 (4) SA 43 (SCA)
para 14.
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in limiting the disputes in the subsequent matters between these parties. The
appeal is therefore not moot, and, even if it were, it is in the interests of justice
to entertain it.
Issues
[22] The first issue to be determined is whether the high court refused the s
96 application. Secondly, whether the applicant made out a proper case for an
interim interdict. Lastly , whether the refusal to admit the supplementary
founding affidavit is appealable and, if it is, whether the refusa l to admit it
was proper. Before discussing these issues, I propose to deal with a
preliminary issue.
Adducing evidence
[23] Before us, BP moved an application to adduce evidence, in the form of
two affidavits, on appeal. It sought to find justification for the request in a
decision of this Court in Community of Grootkraal v Kobot Business Trust
(Grootkraal).19 SARS objected and pointed out that it disputed the contents of
the affidavits in question as they are the subject of a dispute in another matter
between the same parties. Reliance on Grootkraal is misconceive d. In
Grootkraal, this Court took judicial notice of historical material that is readily
available and reliable. BP did not seek to present documents that contained
material of the kind admitted in Grootkraal.
[24] Further evidence on appeal should only be admitted in exceptional
circumstances: it must be weighty material; there must be a reasonable
19 Community of Grootkraal v Botha NO and Others [2018] ZASCA 158; 2019 (2) SA 128 (SCA) para 21.
13
explanation for its lateness; and there should not be substantial disputes of fact
militating against its admission.20 BP did n ot satisfy any of the three
requirements. Consequently, we decided not to admit the evidence.
Section 96
[26] As mentioned before, Mothle J found that the applications were not
urgent but decided to deal with the merits. SARS contended that he refused
the s 96 application by implication. BP contended that Mothle J did not deal
with its s 96 application , at all, and therefore failed to properly exercise his
discretion. The fact that Mothle J neither referred to , nor discussed s 96 is of
no moment. This is because he dealt with the merits of the matter. If he had
refused the s 96 application, that would have spelt the end of the matter. The
ineluctable inference is that he granted the truncated times in terms of s 96 as
a pathway to considering the merits.
Interim interdicts
[27] The requirements for interim relief have been succinctly restated in SA
Informal Traders Forum v City of Johannesburg as follows:
‘Foremost is whether the applicant has shown a prima facie right that is likely to lead to
the relief sought in the main dispute. This requirement is weighed up along with the
irreparable and imminent harm to the right if an interdict is not granted and whether the
balance of convenience favours the granting of the interdict. Lastly, the applicant must
have no other effective remedy.’ 21
20 P A F v S C F [2022] ZASCA 101; 2022 (6) SA 162 (SCA) para 9; see also Rail Commuters Action Group
v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) para 41-43.
21 South African Informal Traders Forum and Others v City of Johannesburg and Others; South African
National Traders Retail Association v City of Johannesburg and Others [2014] ZACC 8; 2014 (6) BCLR
726 (CC); 2014 (4) SA 371 (CC) 2014 (4) SA 371 (CC) para 24.
14
[28] A prima facie right may be established by showing prospects of success
in the review. 22 BP must therefore show that there is a probability that the
court hearing its review application would find that it is entitled to the relief
sought. BP contended that the prima facie right that it asserts in its claim for
an interim interdict is sourced from the Constitution, which is its right to fair
administrative action that is lawful, reasonable, and procedurally fair as
guaranteed by s 33(1) of the Constitution and embodied in ss 3 and 6 of the
Promotion of Administrative Justice Act (PAJA).23 It is therefore, superfluous
to enquire whether the right exists.24
[29] It is common cause that the Commissioner’s decisions to file a certified
statement and the refusal of the application to suspend payment constitute
administrative action. The applicant ’s two main contentions with regard to
SARS’ action were, first, that it unlawfully filed the certified statement and,
second, that the decision to reject the suspension application was influenced
by an error of law and that relevant considerations were ignored.
The certified statement
[30] It is common ground that BP became aware of the letters of demand on
13 February 2020. The certified statement was filed on 16 March 2020. BP’s
contention is that it had 30 days after it became aware of the letters of demand
to request reasons , and a right to be notified of the reasons within 45 days
from the date on which SARS acknowledged receipt of the request.25 BP filed
22 Ibid para 25.
23 Promotion of Administrative Justice Act 3 of 2000. Regrettably the applicant did not delineate which
subsection of the two sections it relied on, however, it crystallised during argument.
24 National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012
(6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) (6) SA 223 para 46.
25 Subrules 77H.02(4) and (5) read as follows:
15
a request which it styled as a request for information on 26 March 2020, which
was exactly 30 days after it became aware of the demand. According to BP,
SARS had no right to file the certified statement before the 30 days had lapsed.
I will accept for present purposes that it was a proper request for reasons.
[31] The separate letters of demand each constitute a determination in terms
of s 47(9)(a)(i)(bb).26 Section 47(9)(b)(i) provides that:
‘Whenever any determination is made under paragraph (a) . . . any amount due in terms
thereof shall, notwithstanding that such determination is being dealt with in terms of any
procedure contemplated in Chapter XA of the Act, remain payabl e as long as the
determination remains in force: provided that the Commissioner may suspend the payment,
on good cause shown, until the date of any final judgment by the High Court or a judgment
by the Supreme Court of Appeal.’
Chapter XA regulates interna l administrative appeals, alternative dispute
resolution and dispute settlement procedures.
[32] Section 77G provides that notwithstanding anything to the contrary in
the Act, the obligation to pay to Commissioner and the right of the
Commissioner to receive and recover any amount demanded in terms of any
provision of the Act shall not, unless the Commissioner so directs, be
suspended pending finalisation of any procedure contemplated in Chapter XA
or pending a decision by a court.
‘(4) A person that requested reasons must be notified of such reasons in writing within 45 days from the date
of acknowledgement of receipt referred to in subrule (3)(a).
(5) If an aggrieved person intends to submit an appeal against a decision in terms of rule 77H.04 and wishes
to request reasons for such decision, a request referred to in subrule (1) must be submitted within 30 days
from the date the aggrieved person became aware of the decision.’
26 Section 47(9)(a)(i)(bb) reads:
26 Section 47(9)(a)(i)(bb) reads:
‘The Commissioner may in writing determine whether goods so classified under such tariff headings, tariff
sub-headings, tariff items or other items of Schedule No. 2, 4, 5 or 6 may be used, manufactured, exported
or otherwise disposed of as provided in such tariff items or other items specified in any such Schedule’
16
[33] Section 77G engages two powers of the Commissioner. First, the right
to receive and recover any amount due and payable and, second, the power to
suspend payment of an amount. The amount is not automatically suspended
by a request for reasons, an internal a dministrative appeal, or a court
application. It remains due and payable until the Commissioner decides to
suspend it. Absent a suspension by the Commissioner and regardless of a
Chapter XA procedure or court proceedings , SARS may file a certified
statement. SARS is not obliged to wait until the lapsing of the 30 days within
which reasons may be requested, or the filing of an internal administrative
appeal. SARS’ filing of the certified statement before 26 March 2020 was
lawful. It had the right to do so fr om 13 February 2020 – when BP became
aware of the demand.
[34] BP argued that the certified statement is unlawful because the amount
set forth as due and payable is wrong. It contends that SARS acted unlawfully
by claiming an amount of R14 866 726.00, which was not due to it. S ection
114(1)(a)(iii)(cc) of the Act provides that:
‘Pending the conclusion of any proceedings, whether internally or in any court, regarding
a dispute as to the amount of any duty, interest, fine, penalty or forfeiture payable, the
statement filed in terms of subparagraph (ii) shall, for purposes of recovery proceedings
contemplated in subparagraph (ii), be deemed to be correct.’
This provision creates a prima facie right in SARS’ favour.
Rejection of the suspension application
[35] BP argued that SARS’ reasons for rejecting its suspension application
were influenced by errors of law and that the relevant considerations were not
17
considered. SARS gave three reasons for rejecting the application: first, that
there were no pending internal procedures as required by s 77G as the 30 days,
within which reasons may be requested or an appeal filed, had lapsed; second,
that fraudulent acquittal documents for the entries in question were supplied
to SARS; and thirdly, that BP would not suffer financial hardship if it paid the
amount.
[36] BP’s submissions are without merit. It did not file a request for reasons,
but a request for information stating that its representatives wish ed to visit
Beit Bridge and familiarise themselves with the processe s followed there. It
also requested all the documents and information that SARS had relied on, in
order to issue the letters of demand. It stat ed that it required the information
in order to prepare its appeal. SARS cannot be faulted for not accepting the
request for information as a request for reasons. It is therefore not surprising
that SARS did not respond to the request for information.
[37] SARS did not suggest that BP committed fraud. It stated that fraudulent
documents relating to the consignments were presented to it. BP could not
dispute that, because it did not possess all the documents required in terms of
the Act and the rules . For that reason , it sent countless requests to it s
intermediaries for the necessary information. So desperate was BP for the
information that it litigated against at least one such intermediary.
[38] The difficulty for BP is that i n terms of s 101 of the Act , any person
carrying on business in the Republic shall keep such books, accoun ts and
documents relating to the relevant transactions. Furthermore, s 102(4)
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provides that in any dispute in which the Commissioner is a party and the
question arises whether any books, accounts, d ocuments, forms, or invoices
required to be completed and kept, exist or have been duly completed and kept
or have been furnished to an officer, it shall be presumed that such books,
accounts documents, forms or invoices do not exist or have not been duly
completed and kept, until the contrary is proved. BP has failed to show, in
these proceedings, that it has completed and kept all the required books,
accounts, documents, forms or invoices. BP will have to surmount this hurdle
in the review application.
[39] SARS had regard to BP’s relevant financial statement s, which BP
submitted as part of its application for suspension. SARS relied on such
statements when it concluded that BP would not suffer financial hardship if it
paid the due amount.
[40] It is not our task to usurp SARS’ functions. We must determine whether
SARS’ decision falls within the bounds of reasonableness. I am of the view
that SARS did not commit an error of law and that it considered all the relevant
information before it. Having considered th at information, it reached a
reasonable and fair conclusion not to grant the application for suspension.27
The determination
[41] BP submitted that SARS’ determination that the fuel was not exported
was wrong and asserted that the fuel was exported. In terms of s 102(5) of the
27 Bato Star Fishing (Pty) Ltd v Minister of Environmental affairs and Tourism and Others [2004] ZACC 15;
2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) paras 42 - 49.
19
Act, if in any dispute in which the Commissioner is a party, it is alleged that
goods have not been exported, it shall be presumed that such goods have not
been exported unless the contrary is proved. SARS, in any event, put up two
reasons for its determination that the goods were not exported. The first reason
was that, on SARS’ electronic system , the consignments were reflected as
‘ready to mark for arrival’ because they had not yet arrived at the border post.
The s econd reason was that there was no indication on the Department of
Home Affairs’ electronic system that the vehicles mentioned in the demand
crossed the border. BP could not dispute SARS’ assertions. The presumption
creates a prima facie case in SARS’ favour.
Irreparable harm and balance of convenience
[42] BP contended that because it would not be entitled to any pre-judgment
interest and that it suffered an imm ediate loss of R69 836 907.04 in liquid
funds, the balance of convenience favoured it and not SARS. It must be
remembered that SARS claimed back money unduly paid to BP. That being
the case, the amount became due on demand, in terms of s 76A.28 The Act is
part of fiscal legislation that assists the State in collecting money in order to
fulfil its socio -economic mandate towards the citizenry. The balance of
convenience therefore favours SARS. Furthermore, I agree with the full court
that BP’s audited financial statement belies its assertion that it would suffer
irreparable harm. Its annual turnover was R4 7 billion and it had access to
credit facilities in excess of R4 776 billion. BP argued that it will suffer
irreparable harm because it now has a civil judgment against it and that SARS
misused the wide powers that the Act gives it. It is true that SARS ha s wide
28 Op cit fn 12.
20
powers, however, the constitutionality of those powers were neither
challenged before the high court nor in this Court.
Alternative remedy
[43] SARS contended that BP will be repaid if it proves that SARS’
determination that it did not export the diesel is incorrect. BP would be able
to do this, if it submits all the documents to SARS or if it can satisfy the review
court that it has an acceptable explanation for why it could not produce the
required documents in a timely manner. It is correct that BP would not be paid
interest if the review application succeeds. That is unfortunately part of the
unchallenged legislative scheme.
[44] I agree with Mothle J and the full court that BP failed to prove any of
the requirements for an interim interdict. An interim interdict pending an
action or a review is an extraordinary remedy within the discretion of the
Court.29 Courts grant interim interdicts against the exercise of statutory power
only in the clearest of cases.30 Mothle J exercised his discretion properly when
he dismissed both applications.
The supplementary founding affidavit
[45] BP brought Part B in terms of rule 53. Rule 53(1)( b) triggered a duty
on SARS to despa tch the record and its reasons to the registrar of the high
court. It is only after the record is made available to BP in terms of rule 53(4)
that it may file, as of right, a supplementary founding affidavit. BP contended
29 Eriksen Motors Ltd. v Protea Motors and another 1973 (3) SA 685 (AD) at 691B-C.
30 National Treasury and Others v Opposition to Urban Tolling Alliance [2012] ZACC 18; 2012 (11) BCLR
1148 (CC); 2012 (6) SA 223 (CC) para 47.
21
that it filed the supplementary founding affidavit because SARS failed to file
the record timeously.
[46] The antecedent question to consider is whether Munz helele’s AJ’s
ruling is appealable. In Zweni v Minister of Law and Order ,31it was pointed
out that there was a difference between a judgment or order and a ruling.
Harms AJA, as he then was, held:
‘In the light of these tests and in view of the fact that a ruling is the antithesis of a judgment
or order, it appears to me that, generally speaking, a non -appealable decision (ruling) is a
decision which is not final (because the Court of first instance is entitled to alter it), nor
definitive of the rights of the parties nor has the effect of disposing of at least a substantial
portion of the relief claimed in the main proceedings.’32
[47] In United Democratic Movement and Another v L ebashe,33it was held
that in deciding whether an order is appealable, not only the form of the order
must be considered but also, and predominantly, i ts effect and that the
appealability test is the interests of justice. Munzhelele AJ’s decision is a
ruling that has no final effect, it is not definitive of the rights of the parties and
it does not dispose of any part of the main proceedings. In fact, BP will in due
course, in terms of rule 53(4), after the record has been filed, as of right, have
an opportunity to file a supplementary founding affidavit. SARS’ dilatoriness
in filing the record can hardly be justification for BP’s irregular step. It could
have approached the high court with an application to compel SARS to file
31 Zweni v Minister of Law and Order of the Republic of South Africa [1992] ZASCA 197; [1993] 1 All SA
365 (A); 1993 (1) SA 523 (A).
32 Ibid at 536A-B.
33 United Democratic Movement v L ebashe Investment Group (Pty) Ltd and Others [2022] ZACC 34; 2022
(12) BCLR 1521 (CC); 2023 (1) SA 353 (CC) paras 41 and 43.
22
the record and its reasons. In my view , it is not in the interest of justice that
an interlocutory ruling of the kind made by Munzhelele AJ be appealable.
[48] This matter presents no special circumstances why special leave to
appeal should be granted. The application ought to be dismissed.
Costs
[49] SARS requested us to make a punitive costs order. BP has neither
abused the court process nor committed misconduct. Costs should how ever
follow the result.
Order
[50] In the result the following order is made:
The application for special leave to appeal is dismissed with costs.
_________________________
C J MUSI
ACTING JUDGE OF APPEAL
23
Appearances
For the appellant: AP Joubert SC with LJ du Bruyn
Instructed by: Edward Nathan Sonnenbergs, Sandton
Webbers Inc., Bloemfontein
For the respondent: J Peter SC
Instructed by: MacRobert Inc, Pretoria
Lovius Block attorneys, Bloemfontein.
.