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[2021] ZAGPPHC 197
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Dragon Freight (Pty) Ltd and Others v Commissioner for the South African Revenue Service and Others (13584/2020) [2021] ZAGPPHC 197 (17 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
13584/2020
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:NO
REVISED
DATE:17/03/21
In
the matter between:
DRAGON
FREIGHT (PTY)
LTD FIRST
APPLICANT
TIAN
LE TRADING ENTERPRISE
CC SECOND
APPLICANT
NEW
FEELING FASHION DESIGN (PTY) LTD THIRD
APPLICANT
TINGTING
SECRET BEAUTY (PTY)
LTD FOURTH
APPLICANT
HIQ
PACIFIC TRADING
CC FIFTH
APPLICANT
FFB
IMPORT-EXPORT
CC SIXTH
APPLICANT
CALLA
TRADING (PTY)
LTD SEVENTH
APPLICANT
And
THE
COMMISSIONER OF THE SOUTH AFRICAN
REVENUE
SERVICE
FIRST RESPONDENT
THE
MINISTER OF TRADE, INDUSTRY
AND
COMPETITION
SECOND RESPONDENT
THE
SOUTH AFRICAN APPAREL ASSOCIATION
THIRD RESPONDENT
THE
APPAREL AND TEXTILE ASSOCIATION OF
SOUTHERN
AFRICA
FOURTH RESPONDENT
SOUTHERN
AFRICAN CLOTHING AND TEXTILE
WORKERS
UNION
FIFTH RESPONDENT
JUDGMENT
(Handed
down electronically to the parties’ legal representatives by
email, uploading on Caselines and release to SAFLII.
The date and
time for delivery of judgment is deemed to be 10h00 on 17 March
2021).
BAQWA
J
[1]
The respondents herein apply for leave to appeal to The Supreme Court
of Appeal against
the judgment of this court handed down on 11
December 2020.
[2]
For ease of reference the parties are referred to as in the main
application and even
though they have filed separate applications, I
deal with them together due to the overlapping nature of the grounds
for the various
applications.
[3]
Full reasons were provided in the judgment and I do not propose to
furnish further
reasons save to state that judgment is in line with
and consistent with the judgment in the first Dragon Freight
application under
case no: 82686/19 (GP) handed down by Tuchten J on
27 November 2019. In that judgment SARS applied for leave to appeal
which was
refused for having no prospects of success. SARS did not
pursue its right to seek leave to appeal to the Supreme Court of
Appeal.
[4]
It is common cause that the two Dragon Freight applications are
substantially similar
and that similar evidence was presented in both
by a large measure. The present judgment confirmed the findings in
the Tuchten
judgment.
[5]
In the circumstances, there exists two consistent judgments on
similar facts, involving
the same parties. On this fact alone, the
prospects of success on appeal appear to be dim.
[6]
Whilst it is trite that an application for leave to appeal does not
provide the parties
with an opportunity to re-argue the matter, it is
quite apparent from the heads submitted by some of the respondents
that portions
of the judgment they seek to appeal against have either
been misinterpreted or misunderstood.
[7]
The respondents still contend that the jurisdictional conditions
contained in section
96(1)(a) of The Act were not fulfilled and that
this Court lacked jurisdiction to order the relief granted. They
further contend
that there are conflicting judgments on the issue and
rely in this regard on
Commissioner for the South African
Revenue Service v Prudence Forwarding (Pty) Ltd and Another
2015
JDR 245 (GP) (“the Prudence case”).
[8]
At the risk of being repetitive, Prudence is distinguishable from the
present case
in that the Applicants’ Notice of Motion provides
for the review and setting aside of the decision to detain the
containers
as well as the decision to seize the containers.
[9]
Similarly, the Applicants’ Section 96 Notice provides for the
review and contemplates
the prospect of setting aside the decision to
seize the containers. The applicants, for these reasons, did not have
to amend their
notice of motion to introduce a new cause of action
which was not provided for in either the Notice of Motion or the
Section 96
Notice.
[10]
In the Prudence matter, it was the belated amendment of The Notice of
Motion which led to the
Court’s finding that “
jurisdictional
conditions precedent were not fulfilled and the Court accordingly
lacked jurisdiction to grant the final relief it
granted, in the form
of an order setting aside the seizure of the goods
”. (at
paras 28 and 30). The factual matrix and the legal conclusion which
the Court in Prudence arrived at are clearly distinguishable
from the
present case.
[11]
A further misapprehension by the respondents is with regard to the
Applicants’ ‘Responses
to the Trader Questionaire and The
Request for Further Particulars’ where the respondents contend
that the court found that
the applicants were entitled to ignore
SARS’ requests for information. This is not what the judgment
says. What the court
found was that the applicants had provided
answers to SARS’ request for information, but that SARS had
ignored these responses.
[12]
In so far as the reverse onus arising out of Section 102(4) is
concerned, the Export Declarations
were part of the documents relied
upon by SARS in making its decision. SARS was duty bound to establish
the probative value thereof
prior to making its seizure decision. In
the judgment the Export Declarations were found to be irrelevant in
that they did not
relate to the containers or goods in question. The
Declarations were also found to be illegible because they were in
Chinese and
most of the contents thereof could not be deciphered. In
a nutshell, the Export Declarations do not fall within the ambit of
the
documents referred to in Section 102(4) and they do not therefore
trigger a reverse onus.
[13]
Section 17(1) of the Superior Courts Act No 10 of 2013 (The Act)
provides:
“
Leave to appeal
may only be given where the judges concerned are of the opinion
that:-
(i)
The appeal would have
a reasonable prospect of success; or
(ii)
There is some
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration”.
[14]
It is now a well-established legal fact that Section 17(1)(a) of The
Act provides for a stringent
test than its predecessor for leave to
be granted. The current requirement is that the Court must be
satisfied that the appeal
“would” (previously “may”)
have a reasonable prospect of success. (See
Mont Chevaux Trust
(IT 2012/28) v Tine Goosen,
Unreported, LCC Case No. LCC
14R/2014, dated 3 November 2014;
Notshokovu v S,
unreported,
SCA Case No: 157/15 dated 7 September 2016 and Erasmus Superior Court
Practice, DE Van Loggenberg, Vol Part A, R512,
2020 A2-55. The
respondents have not met this threshold.
[15]
There are no conflicting judgments which would have to be considered
by The Supreme Court of
Appeal in terms of Section 17(1)(a)(ii) of
The Act and public interest will not be served by an appeal in
respect of which there
is no legal uncertainty.
[16]
In the circumstances, I am not persuaded that another court would
come to a different conclusion.
The respondents’ grounds of
appeal and the reasons therefore do not justify leave to appeal being
granted and there is no
compelling reasons to grant leave in terms of
Section 17(1)(a) of The Act.
[17]
ORDER
In the result, I make the
following order:
The
application for leave by the respondents is dismissed with costs,
which shall include the costs consequent upon the employment
of two
counsel, the one being senior counsel.
SELBY
BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA