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[2021] ZAGPPHC 98
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Graspan Colliery SA (Pty) Ltd v Commissioner for the South African Revenue Service (8420/2018) [2021] ZAGPPHC 98 (15 February 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 8420/2018
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED YES
15
FEBRUARY 2021
In
the matter between:
GRASPAN
COLLIERY SA (PTY) LTD
APPLICANT
And
THE COMMISSIONER FOR
THE SOUTH
AFRICAN REVENUE
SERVICE
RESPONDENT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the Parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of
this matter on CaseLines by the Judge or his/her Secretary.
The
date of this judgment is deemed to be 15 February 2021.
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
COLLIS
J
INTRODUCTION
[1]
This is an application for leave to appeal against the judgment and
order I made on 11 September 2020. The full order of the
court reads
as follows:
1.1
“The application is dismissed with costs, including costs
consequent upon the employment of two counsel.”
[2]
The application is premised on the grounds as listed in the
Application for Leave to Appeal dated 5 October 2020.
LEGAL
PRINCIPLES
[3]
Section 17 of the Superior Court’s Act provides as follows:
[1]
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is
some other compelling reason why the appeal should be heard,
including
conflicting judgments on the matter under consideration;
(b)
the decision sought to appeal does not fall within the ambit of
section 16(2)(a);
and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
[4]
As to the test to be applied by a court in considering an application
for leave to appeal, Bertelsmann J in The Mont Chevaux
Trust v Tina
Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the
following:
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H.
The use of the word “would” in the new statute indicates
a measure of certainty that another court will
differ from the court
whose judgment is sought to be appealed against.’
[5]
‘In order to succeed, therefore, the appellant must convince
this Court on proper grounds that he has prospects of success
on
appeal and that those prospects are not remote, but have a realistic
chance of succeeding. More is required to be established
than that
there is a mere possibility of success, that the case is arguable on
appeal or that the case cannot be categorised as
hopeless. There
must, in other word, be a sound, rational basis for the conclusion
that there are prospects of success on appeal.’
[2]
[6]
The applicant and the respondent on request by this court had filed
written Heads of Argument in order to facilitate the virtual
hearing
of the matter.
[7]
Having read the papers and having carefully heard counsel I come to
the conclusion that there is no reasonable prospect that
another
court would come to a different conclusion on the order of the court.
ORDER
[8]
Consequently I make the following order:
8.1
The application for leave to appeal is dismissed with costs, such
costs to
include the costs of two counsel.
C.
J. COLLIS
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION PRETORIA
APPEARANCES:
FOR
APPLICANT:
ADV. J.P. Vorster SC
INSTRUCTED
BY:
MACROBERT
ATTORNEYS
FOR
RESPONDENT:
ADV. M. Chohan SC &
ADV.
L. Haskins
INSTRUCTED
BY: THE
STATE ATTORNEYS
DATE
OF HEARING:
08 FEBRUARY 2021
DATE
OF JUDGMENT:
15 FEBRUARY 2021
Judgment
electronically transmitted.
[1]
Act 10 of 2013
[2]
S v Smith
2012 (1) SACR 567
(SCA) at para 7