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[2021] ZAGPPHC 467
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Public Protector South Africa v Commissioner for the South African Revenue Service (84074/19) [2021] ZAGPPHC 467 (15 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 84074/19
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:
15 July 2021
PUBLIC
PROTECTOR SOUTH
AFRICA
Applicant
V
THE
COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE
First Respondent
JACOB
GEDLEYIHLEKISA
ZUMA
Second Respondent
MMUSI
MAIMANE
Third Respondent
ROYAL
SECURITY
CC
Fourth Respondent
JUDGMENT
MABUSE
J
[1]
Before me are two applications brought by
the Applicant (“the Public Protector”). The first
application is for condonation
for the late filing of the application
for leave to appeal. The second one is for leave to appeal against
the judgment and order
that this Court handed down on 23 March 2020
(“the High Court judgment”). The order of the High Court
judgment reads
as follows:
“
1.
It is hereby declared that a South African Revenue Service Official
is permitted and
is required under the provision of “just
cause” contained in
section 11(3)
of the
Public Protector Act
23 of 1994
read with
section 69(1)
of the
Tax Administration Act 28
of 2011
to withhold taxpayer information as defined in
section
67(1)(a)
of the
Tax Administration Act 28 of 2011
;
2.
It is furthermore hereby declared
that the Public Protector’s subpoena powers do not extend to
the taxpayer information;
3.
The First Respondent’s counter
application is hereby dismissed, with costs;
4.
The First Respondent is hereby
ordered to pay the costs of this application, which costs shall
include costs consequent upon the
employment of two counsel;
5.
The First Respondent is hereby
ordered to pay de bonis propiis 15% of the Applicant’s taxed
costs.”
The
above order was granted against the Public Protector, in favour of
the Commissioner for the South African Revenue Service.
[2]
In this judgment I will from time to time
refer to the two judgments, one by the Constitutional Court (the
ConCourt judgment) and
the other by the Gauteng Division handed down
on 23 March 2020, to which I shall refer to for purposes of
convenience as the High
Court judgment. I propose in this judgment to
deal with both applications.
THE
APPLICATION FOR CONDONATION
[3]
In terms of Rule 49(1) of the Uniform Rules
of Court:
“
(b)
When leave to appeal is required and it has not been requested at the
time of the judgment, or
order, application for such leave shall be
made and the grounds therefor shall be furnished within 15 days after
the date of the
order appealed against: Provided that when the
reasons or the full reasons for the Court order are given on a later
date than the
date of the order such application may be made within
15 days after such later date: Provided further that the Court may,
upon
good cause shown, extend the aforementioned periods of 15 days.”
The
judgment and order were made in the High Court matter on 23 March
2020. The Public Protector should therefore have filed her
application for leave to appeal within 15 days of the High Court
judgment. She did not do so hence this application for condonation
brought in terms of Rule 49(1)(b) of the Uniform Rules of Court.
[4]
The applications for condonation and for
leave to appeal are predicated on the founding affidavit of the
Public Protector. It is
common course, as demonstrated by the heads
of argument of both counsel, that to succeed with her application for
condonation,
the Public Protector must satisfy the following
requirements:
4.1
prospects of success on appeal.
She
must satisfy the Court that she has prospects of success on appeal if
granted leave to appeal;
4.2
an explanation for the delay.
She
must furnish a reasonable and acceptable explanation for failing to
launch the application for leave to appeal within the period
of 15
days set out above in Rule 49 (1)(b);
4.3
the duration of the delay.
She
must explain why it took her so long, after the judgment and order,
to approach the Court with an application for condonation
and for
leave to appeal.
4.4
prejudice.
She
must satisfy the Court that no prejudice, that cannot be compensated
by an order of costs, will be suffered by the Commissioner.
The
Public Protector must satisfy all the four requirements. It is not
enough to satisfy 2 or 3 of such requirements. An application
for
condonation may be refused on failure to satisfy any one of the said
requirements. The grounds I have set out above are at
the same time
the grounds upon which the Commissioner opposed the application for
leave to appeal. Since the failure of an application
for condonation
and for leave to appeal may be determined based on one requirement, I
intend, in these applications, to confine
this judgment to only one
requirement and that is the prospects of success. I do not think that
I am called to discuss all the
points raised.
THE
APPLICATION FOR LEAVE TO APPEAL
[5]
The test regarding the application for leave to appeal is as set out
in s 17 of the
Superior Courts Act No. 10 of 2013 (Superior Courts
Act). That section governs the applications for leave to appeal. It
provides
as follows:
“
17(1)
Leave to appeal may only be given where the judge or judges concerned
are of 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 on appeal does not fall within the ambit of
section 16(2)(a); and
(c)
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.”
As
I understand s 17, for purposes of this judgment, the inquiry as to
whether leave should be granted is twofold. The first step
that a
Court seized with such an application should do is to investigate
whether there are any reasonable prospects that another
Court seized
with the same set of facts would reach a different conclusion. If the
answer is in the positive, the Court should
grant leave to appeal.
But if the answer is in the negative, the next step of the inquiry is
to determine the existence of any
compelling reason why the appeal
should be heard.
[6]
Section 17(1) sets out an inflexible threshold to grant leave to
appeal. Therefore,
the Public Protector must, meet this stringent
threshold set out in
s 17
of the
Superior Courts Act to
succeed with
her respective application for leave to appeal. This threshold set
out in
s 17(1)
of the
Superior Courts Act is
now even more stringent
than when the now repealed Supreme Court Act 59 of 1959 was still
applicable. This is aptly demonstrated
by the
S
v Notshokovu & Another
[2016] ZA SCA 112
par 2 [7 September 2016]
where Shongwe J, as he then was, writing for the Court, had the
following to say:
“
The
applicant, on the other hand, faces a higher and stringent threshold
in terms of the Act compared to the provisions of the repealed
Supreme Court Act 59 of 1959.”
Section
17(1) uses the word “
only
”.
It provides that:
“
17(1)
Leave to appeal may “only” be given…”
and
then proceeds to set out the circumstances under which leave to
appeal may be given. For instance, in
South
African Breweries (Pty) Ltd v The Commissioner of the South African
Revenue Services (SARS) [2017] 2 AGPPHC 340 (28 March
2017) para [5],
the Court cited with approval the following passage from
Mont
Chevaux Trust v Tim Goosen & 18 Others, 2014 JDR 2325 [LCC] para
[6]
:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of the High Court has been raised in the new Act.
The former
test whether leave to appeal should be granted was reasonable
prospect that another court might come to a different
conclusion. See
Van Heerden v Cronwright &
Others
1985 (2) SA 343(T)
at 34H
.
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.”
Accordingly, the Public Protector must be certain
that another tribunal would decide the same issues that the High
Court grappled
with differently. Quite clearly the Legislature
intended to limit the number of cases which might be taken on appeal.
It would
have defeated the purpose of
s 17
of the
Superior Courts Act
in
that direction if in all but hopeless cases leave to appeal is
granted. Concerning this requirement, Mr Gauntlett referred this
Court in his heads of argument to the judgment of
Acting
National Director of Public Prosecutions v Democratic Alliances In
Re; Democratic Alliance v Acting National Director of
Public
Prosecutions [2016] ZAPPHC 489 at para 25
,
which was cited with approval in
Fair-Trade
Independent Tobacco Association v President of the Republic of South
Africa 2020 JDR 1435 (GP).
This was in
support of his argument that a reasonable prospect of success calls
for a measure of certainty that the appellate division
would reach a
different outcome.
Finally,
on the rigidity of the threshold, Plaskett AJA, as he then was, wrote
the following in the judgment in which Cloete JA
and Maya JA, as they
then were, concurred in
S v Smith
2012(1) SACR 567, 570 par [7]
:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. See S v Mabena & Another 2007(1)
SACR 482
(SCA) para [22]. 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 mere possibility of success, that the case is
arguable on appeal or that the case cannot be
categorised as
hopeless. There must, in other words, be a sound, rational basis for
the conclusion that there are prospects of
success on appeal.”
[7]
The requirement of prospect of success is a common requirement in
respect of both
applications. Briefly the Public Protector states
that the reason why she launched this application for leave in this
matter after
the date on which the judgment was handed down by the
High Court was that on or about 14 April 2020 and acting in terms of
Rule
19 of the Constitutional Court Rules, she launched an
application for direct appeal to the ConCourt in respect of both the
merits
of the application as well as costs.
[8]
Judgment by the ConCourt was delivered on 15 December 2020. The
applications to this
Court for condonation and leave to appeal were
only launched after the ConCourt had concluded the hearing of the
application for
leave to appeal directly to it and had handed down
its judgment. It is the Public Protector’s case therefore that
the ConCourt
ruled only on the issue of a personal costs order that
the High Court had granted against her in the High Court judgment and
that
the Concourt refused to deal with the other aspects of the
application to appeal because such issues did not engage the
jurisdiction
of the ConCourt. According to the Public Protector the
ConCourt refused to deal with the other issues raised in the Public
Protector’s
application for leave to appeal directly as it saw
no reason why the Public Protector overlooked the procedure of
appealing first
to the Full Court of this Division or Supreme Court
of Appeal instead of going directly to it. It is for that reason that
the ConCourt
refused to deal with issues in the application for to
appeal that should have been referred to either the Full Court of
this Division
or the Supreme Court of Appeal. The Public Protector
approached the Concourt seeking leave to appeal directly to it
against the
High Court judgment on the questions of her subpoena
powers and costs, and the dismissal of her conditional counterclaim.
[9]
The fact that the Public Protector first approached the
Constitutional Court for leave
to appeal before approaching this
Court is the only reason that the Public Protector gave for the delay
in bringing the application
for condonation before the High Court.
Procedurally, is the application for the delay the only reason a
Court should consider in
deciding the issue of condonation? It is
clearly not the only factor that a Court dealing with an application
for condonation should
consider. I understand it and I am of the view
that the explanation given by the Public Protector is reasonable and
acceptable.
The Public Protector should not be penalised for an error
of judgment.
[10]
NO PROSPECT OF SUCCESS
10.1
The Commissioner stated in his answering affidavit, and it was also
so argued by Adv. J J Gauntlett SC QC,
counsel for the Commissioner,
that the Public Protector has no prospect of success on appeal and
that her prospects of such success
are so remote as to be
unappreciable. The argument by the Commissioner’s counsel is
that the Public Protector’s application
for condonation may be
refused on this ground alone. This argument was not disputed. Mr
Gauntlett argued furthermore that there
will be no point, in the
circumstances, to grant the application for condonation.
10.2
Reference in this regard was made to the unanimous judgment of the
ConCourt, written for the Court by Madlanga
J. I was referred to
paragraph [27] of the ConCourt judgment where it was conclusively
held that the Public Protector has no prospects
of success. I do not
think that it is necessary for me to re-write in this judgment the
judgment of the ConCourt.
[11]
It will be recalled that the issue that the High Court had to decide
in the High Court application
was whether a South African Revenue
Service official was permitted and required under the provision of
“
just cause
”
contained in s 11(3) of the Public Protector Act 23 of 1994 (“the
PPA”) read with section 69(1) of the Tax Administration
Act 28
of 2011 (“the TAA”) to withhold taxpayer information (as
defined in s 67(1)(a) of the TAA) and that the Public
Protector’s
subpoena powers did not extend to the taxpayer’s information.
[12]
The question that the Court had to decide was also set out clearly in
par. 3.1 of the judgment
of the High Court. That was also the view of
counsel for the Commissioner, Adv. JJ Gauntlet SC QC. The Public
Protector persisted
with her claim that she was entitled to access
taxpayer information in the possession of the Commissioner for SARS.
She seemed
to argue that because the Public Protector derived her
powers to investigate any conduct in state affairs from the
Constitution,
her power to subpoena witnesses to provide documents in
terms of s 7(4) of the PPA trumped the provisions of the TAA. The
core
of the Public Protector’s contention was that the Public
Protector’s powers trumped all laws. In the judgment, the High
Court dismissed her arguments and ruled against her.
CONCOURT
JUDGMENT
[13]
The Public Protector sought leave to appeal directly to the
Constitutional Court against the
judgment of the High Court on the
questions of her power to subpoena witnesses as envisaged by s 7(4)
of the PPA; costs and the
dismissal of her conditional counterclaim.
The ConCourt heard the matter on 3 September 2020 and handed down its
judgment on 15
December 2020. It made the following order:
“
1.
Leave to appeal against the declarator by the High Court of South
Africa, Gauteng Division,
Pretoria, that a South African Revenue
Service official is entitled to withhold taxpayer information in
terms of
s 11(3)
of the
Public Protector Act 23 of 1994
read with
s
69(1)
of the
Tax Administration Act of 2011
is refused.
2.
Leave to appeal against the High
Court’s dismissal of the Public Protector’s
counterapplication is refused.
3.
Leave to appeal against the High
Court order that the Public Protector must pay de bonis propiis 15%
of the taxed costs of the Commissioner
of the South African Revenue
Service is granted.
4.
The appeal is upheld, and the High
Court order referred to in paragraph 3 is set aside.
5.
Each party must pay his or her costs
in this Court.”
[14]
The Public Protector, in applying for leave to appeal against the
judgment of the High Court,
had contended that she had strong
prospects of success in that regard. The ConCourt analysed the Public
Protector’s arguments
and interpretation of
s 7(4)
of the PPA;
her understanding and interpretation of s 182 of the Constitution;
the Public Protector’s interpretation of s
69(1) of the TAA and
found that the Public Protector’s argument and interpretation
of the said section 69(1) was not viable.
It emphasized that SARS’
officials are thus enjoined to withhold taxpayer information even in
the face of such subpoena
.
This statement by the ConCourt is
the reason why leave to appeal against the declarator of the High
Court, that a South Africa
Revenue Service official is entitled to
withhold taxpayer information in terms of s 11(3) of the PPA read
with section 69(1) of
the TAA, was refused. It went further and
stated sooner thereafter that:
“
Any
other interpretation is at odds with the clear wording of section
69(1).”
By
this statement, the ConCourt implied that no other Court seized with
the interpretation of s 69(1) of the TAA will interpret
it in any way
than the way in which the Con Court has interpreted it. The ConCourt
made it truly clear that:
“
The
interpretation of section 69(1) of the TAA advocated by the Public
Protector is not viable.”
See par
[28] of the judgment.
[15]
The ConCourt furthermore analysed the Public Protector’s
argument that s 69(1) of the TAA
was Constitutionally invalid. It
stated that even though the Public Protector did not expressly argue
that s 69(1) of the TAA was
constitutionally invalid, the effect of
her argument was however the same. The ConCourt found that “
her
case that she was entitled as of right to taxpayer information upon
the issue of a subpoena, her case was fundamentally flawed.”
It
continued and stated that: “
Section
69(1) can only not have its force-which is to deny the Public
Protector access to the taxpayer information- if it is invalid.
[16]
By its analysis of s 69(1) of the TAA, as it currently stands and as
it stood at the time the
Commissioner brought his application before
the High Court, the Concourt made it truly clear that there can be no
penumbral zone
of uncertainty regarding the interpretation of the
said section. It confirmed the literal message conveyed by s 69(1)
that a person
who was a current or former SARS official
mus
t
preserve the secrecy of taxpayer information and may not disclose
taxpayer information to a person who is not a SARS official.
We know
that the Public Protector is not a SARS official. The words of the
said section 69(1) of the TAA do not, in my view, suffer
from any
ambiguity, vagueness, over-precision or unintended generality. As the
provisions of s 69(1) of the TAA now stand, there
are no ambiguities
of a semantic type that can be encountered in them. Therefore, where
the wording of a section is clear, its
interpretation requires no
more than the application, in my view, of the ordinary grammatical
rules. The section uses the word
“
must
”,
which imposes a legal obligation on current or former official of
SARS never to disclose any taxpayer information, not
even to the
Public Protector. The Rues of Interpretation of Statutes, which are
what the Concourt presumably employed regarding
its interpretation of
s 69(1) of the TAA, essay to us the true intention of the
Legislature. It was never the intention of the
Legislature that the
Public Protector should be given access to the taxpayer information
by a current or former official of SARS.
In Venter v R
1907 TS 910
at
913, the Court, as per Innes CJ, had the following to say:
“
By
far most important rule to guide court in arriving at that intention
[
of the Legislature
]
is to take the instrument
[in
other words s 69(1) of the TAA
],
as a whole; and, when words are clear and unambiguous, to place upon
them their grammatical construction and give them their
ordinary
effect.” [
My own underlining].
The Public Protector was however not prevented by the TAA from
getting that taxpayer information somehow. I
do not intend traversing
those other avenues available to the Public Protector.
[17]
The ConCourt commented that s 69(1) stood in her way. She could not
wish it away. She should
have brought a direct frontal challenge to
the constitutionality of the section for including her office within
its sweep, or the
TAA for failing to include the office in the
exceptions it has created. The Court found that the Public
Protector’s reliance
on EFF v Speaker, a case that, according
to the Constitutional Court, never suggested that there should not be
a Constitutional
challenge where necessary, was misplaced.
[18]
The ConCourt did not only refuse leave to appeal. It made it clear
that no leave to appeal against
the declarator of the High Court
would be granted. It specifically refused to grant the Public
Protector leave to appeal against
the declarator by the High Court of
South Africa, Gauteng Division, Pretoria that a South African Revenue
Service official is entitled
to withhold taxpayer information in
terms of the PPA read with s 69(1) of the TAA is refused. By this
order the Constitutional
Court confirmed the High Court’s
interpretation of s 69(1) of the TAA. This order was issued by the
Concourt after it had
analysed the Public Protector’s
interpretation of s 69(1) of the TAA. It disagreed with the Public
Protector’s interpretation
of this s 69(1) of the TAA and
agreed with the High Court’s interpretation of the same
section. In the circumstances it is
highly unlikely that another
Court can deviate from the Concourt’s interpretation of s 69(1)
of the TAA. All the other Courts
are bound by the Concourt’s
interpretation of s 69(1) of the TAA. It is accordingly based on the
Concourt’s interpretation
of s 69(1) of the TAA that, in my
view, the Public Protector does not have any reasonable prospects of
success, if leave to appeal
is granted.
[19]
The Court then ruled in paragraph [27] of its judgment that “
as
a result, absent a direct frontal challenge to the validity of
section 69(1), there was no reasonable prospects of success.”
I
accept this finding by the ConCourt that in the absence of a direct
frontal challenge to the validity of the s 69(1) there are
no
reasonable prospects of success.
[20]
Adv Mpofu SC seemed to argue that when the ConCourt found that in the
absence of a challenge
to the validity of s 69(1) there were no
reasonable prospects of success, the ConCourt was merely expressing
its displeasure at
being directly approached by the Public Protector
for leave to appeal and that it did not deal with the merits of the
issues before
it. That may be so. But the fact of the matter is that
it did so after analysing the provisions of s 69(1) of the TAA. I
disagree
with Adv Mpofu SC’s interpretation of the ConCourt’s
judgment. I find that after analysing s 69(1) of the TAA it made
dispositive findings and remarks.
RES
JUDICATA
[21]
One of the arguments raised by the Public Protector’s counsel
in his heads of argument
is that the Respondent’s approach is
based on the false premise that the merits of the issues in dispute
between the parties
are somehow
res
judicata
because they have supposedly
been finally decided by the ConCourt. The contention by counsel for
the Public Protector is that the
ConCourt only refused leave to
appeal; that the merits of the appeal were only considered in
relation to the main appeal even there,
so it is contended, the
merits were only conceded obiter and in the context of the prospects
of success. I have pointed out somewhere
supra
that in respect of bringing the application for condonation that the
Public Protector must prove that she has prospects of success,
and
furthermore that in respect of the application for leave to appeal
the Public Protector must still satisfy the requirements
of s
17(1)(a)(i) “
that the appeal would
have a reasonable prospect of success”
or “
there is some compelling
reason why the appeal should be heard, including conflicting judgment
on the matter under consideration.”
It
is of paramount importance to point out that, irrespective of the
purpose for which the comments were made by the ConCourt, the
finding
has been made that the Public Protector had no prospects of success.
[22]
It is not correct that what the Constitutional Court stated in its
judgment was an
obiter dictum
.
In my view, it was a ruling on a question of law, which is then
applied to the facts as found to determine the outcome of the
issue.
[22]
The Public Protector did not concede the interpretation of s 69(1) of
the TAA by the ConCourt.
The ConCourt gave a considered opinion on
the point of law involved, in other words, on s 69(1) of the TAA. The
decision of the
ConCourt was supported by the full court’s
considered opinion on the law. The ConCourt considered the provisions
of s 69(1)
of the TAA and pronounced that “
such
officials are thus enjoined to withhold taxpayer information even in
the face of such subpoena. (Referring to the Public Protector’s
subpoena in terms of section 7(4)(a) of the PPA). Any other
interpretation is at odds with the clear wording of section 69(1).”
[23]
The following paragraph shows what a ratio decidendi is:
“
We
would describe the principle of the case as the necessary connection
between the facts of the case treated by the Judge as material
and
his decision thereon. The Judge’s decision, in turn, justifies
the ultimate order the Court makes to determine the case.
In other
words, the reason for the ratio decidendi suggests an analysis of the
material facts of the case, the reasons for the
decision and the way
the issue was actually decided.”
About
the reasons for the decision Schreiner JA held in
Pretoria
City Council v Levinson 1949(3) SA 305 (A) at page 317
that:
“
The
reasons given in the judgment … do constitute a ratio
decidendi, originating or following a legal rule provided.
(a)
That they do not appear from the
judgment itself to have been merely subsidiary reasons for following
the main principle or principles;
(b)
That they were not merely a cause
for reasoning on the facts (cf. Tidy v Battman
(1934, L.J.K.B. 158
at
p. 162)) and (c) (which may cover (a) that they were necessary for
the decision, not in the sense that it could not have been
reached
along other lines but, in the sense that along the lines actually
followed in the judgment the result would have been different
but for
the reasons.”
[25]
In my view, statements made by the ConCourt regarding s 69(1) of the
TAA are not
orbiter dictum. Obiter
dictum is said to be a “statement not necessary for the
decision of the case
” See
R
v Nkwali
1925, A.D. 578
;
or is “
an
excrescence on the reasoning”, see
R
v Crause 1959
(1)
S.A.272 (A.D.) at 281, per Schreiner A.C.J.
They are
ratio decidendi
.
I am bound by such statements. As I pointed out
supra
whether such statements were made by the ConCourt to determine
whether it was a matter falling under its jurisdiction or whether
it
was considering the issue relating to prospects of success, the
analysis of the sections by the ConCourt would not have been
any
different. It would have been the same. It is therefore highly
unlikely that the ConCourt, having found that the Public Protector
does not have any reasonable prospects of success, this Court would,
on the same set of facts, find that the Public Protector has
any
reasonable prospects of success, if the application for condonation
is granted or if the application for leave to appeal is
granted.
[27]
The Public Protector contended before the Constitutional Court that
she had strong prospects
of success in her application for leave to
appeal. The Constitutional Court then went about to investigate the
strong prospects
of success which the Public Protector claimed she
had. The Constitutional Court then assessed her argument in terms of:
27.1
section 7(4) of the PPA;
27.2
s 69(1) of the TAA.
27.3
In my view, the findings of the ConCourt on the interpretation of s
69(1) of the TAA sounded a death knell
to the Public Protector’s
prospects of success in an application for condonation and an
application for leave to appeal.
These findings were made by the
ConCourt in an application for leave to appeal, the same as this is
an application for leave to
appeal where the Public Protector’s
view that she was entitled to issue the subpoena regardless of the
prohibition in s 69(1),
is misguided. Based on the analysis of s
69(1) of the TAA by the ConCourt I am satisfied that the Public
Protector has failed to
satisfy this Court that she has any prospects
of success both in respect of her application for condonation and her
application
for leave to appeal. There is no realistic chance of the
appeal succeeding. I have carefully considered all the contentions
this
Court has been urged to consider in support of the contention
that another Court might take a different view or in support of the
contention that the Public Protector has reasonable prospects on
appeal if leave to appeal is granted. Suffice it to state that
there
is not sufficient prospect of success on appeal on the legal issues
relative to the grounds of appeal under consideration.
The
applications must, on this point alone, fail.
[28]
I do not deem it necessary to traverse the
other requirements to the granting of an application for condonation
or leave to appeal.
I pointed earlier that failure to satisfy any one
requirement meant that the whole application will not succeed.
[29]
I now turn to the grounds of appeal raised
by the Public Protector in her application for leave to appeal:
THE
SUBPOENA POWERS OF THE PUBLIC PROTECTOR
[29.1]
The learned Judge erred in entertaining and deciding the
irrelevant sections 11(3) and 11(4) of the PPA when the matter simply
involved
the scope and ambit of the specific powers contained in s
7(4) of the PPA
vis-a-vis
the renewed
prohibition in s 69(1) of the TAA
.
[29.2]
I disagree with the Public Protector’s view that ss 11(3) and
11(4) of the PPA were irrelevant. Firstly, it must
be recalled that
the Commissioner approached the Court that SARS’ officials are
permitted under the proviso of “just
cause” in s 11(3) of
the PPA read with s 69(1) of the TAA to withhold information and that
the Public Protector’s subpoena
powers did not extend to the
taxpayer information. For that reason, the Court had to analyse the
provisions of s 11(3) of the PPA
read with the provisions of s 69(1)
of the TAA to establish the powers of the PPA and their limits. The
provisions of s 11(3) of
the PPA and s 69(1) of the TAA are central
to the relief that the Commission sought. The Court’s analysis
and finding on
s 11(3) of the PPA and s 69(1) of the TAA were
therefore relevant and crucial to the determination of the issues
before the Court
could determine the declarator that the Commissioner
sought. The Public Protector must have seen the issues in dispute
differently
but that did not relieve the Court from dealing with s
11(3) of the PPA and s 69(1) of the TAA.
[29.3]
Secondly, I pointed out in paragraph 3.1 of the Judgment that I
agreed with Adv JJ Gauntlett SC that the real dispute
between the
Commissioner and the Public Protector in the original application was
whether SARS, or its officials are by law prohibited
and required
under the provision of “just cause” as envisaged by the
provisions of the PPA read with s 69(1) of the
TAA to withhold
taxpayer information as ordained in s 69(1) of the TAA or whether the
Public Protector’s subpoena power claim
such priority on the
detailed information under the TAA.
[29.4]
In paragraph 3.3 I pointed out that the real issues of dispute
between the parties in the application could be established
from the
relief that the Commission sought. That relief did not include the
scope and ambit of the basic powers contained in s
7(4) of the PPA
vis-a-vis
the general prohibition contained in s 69(1) of the
TAA as claimed by the Public Protector.
[29.5]
This Court sees no reason why it should be said that the learned
Judge erred. It was the duty of the Court to decide
the issues
brought before Court. The Public Protector’s point is that the
reasoning of what precisely the point of dispute
was, was reasoned
wrongly. No appeal lies against reasons in a judgment. See
Pretoria
Gladyson Institute v Danish Variety Products (Pty) Ltd 1948(1) SA 839
(A)
. I am therefore not persuaded that when the correct
principles are applied to the present facts the relief sought by the
Commissioner
ought not to have been granted.
[29.6]
The High Court’s analysis of s 69(1) of the TAA is the same as
the analysis by the Concourt. The High Court dealt
with the issue
regarding the Public Protector’s powers in paragraph [36] of
its judgment. In my view, no other Court will
decide this issue any
differently.
[29.7]
The learned Judge erred in holding that
the powers of the Public Protector emanate from the PPA and not from
the Constitution
. This issue was
comprehensively dealt with in paragraphs [35] and [37] of the
judgment of the High Court. I am not satisfied that
there could be
another interpretation of the Public Protector’s powers as
contained in those paragraphs. In the circumstances
I have not been
persuaded that there is any reasonable prospects of success on appeal
if leave to appeal is granted.
UNDUE
ELEVATION OF THE RIGHT TO PRIVACY
[29.8]
No other Court seized with the same issue will decide it differently.
This issue was fully dealt with in paragraphs
[3.4.3], [22] and [29]
of the judgment. I pointed out in the High Court judgment that the
Public Protector did not challenge the
statement made in paragraph
[3.4.3] of that judgment. In fact, I pointed out in the same
paragraph that instead of disputing the
statement contained in the
said paragraph [3.4.3] of the High Court judgment, the Public
Protector admitted it. The Public Protector
has not withdrawn that
admission about the right to privacy.
A3
CONSTITUTIONAL SUPREMACY
VIS-A-VIS
PARLIAMENTARY SUPREMACY
[29.9]
This statement by Adv Gauntlett SC constitutes an argument and not a
court order. No litigant may appeal against an
argument (see in this
regard
paragraph [59] of Mass Stores v
Pick-a-Pay Retailers 2017(1) SA 613 CC
).
A4
JUST CAUSE
[29.10]
The Public Protector in this regard wants to note an appeal
against
an argument raised by Adv. Gauntlett SC. The Public Protector admits
that she offered no argument in connection with “
just
cause
” which was at the heart of
s 11(3) of the PPA.
A5
THE MAENETJE OPINION
[29.11]
Again the Public Protector is grappling with an argument
in this
paragraph. “
She desires leave to
appeal against an argument instead of an order.”
A6
THE COUNTER APPLICATION
[29.12]
The counter applications were extensively dealt with in
paragraphs
[40] to [46] of the judgment. No other Court would have granted it
based on the reasons set out in the judgment.
[30]
B GROUNDS OF APPEAL BASED ON S 17(1)(a) OR (k)(ii) OF THE ACT
B1
INSTITUTIONAL BIAS
[30.1]
I agree with Mr Gautlett SC that the point that the learned judge
advertently or inadvertently allowed himself to be
unduly influenced
by previous decisions and/or alleged conduct of the Public Protector
in respect of irrelevant past decisions
in respect of not only the
question of costs but the entire approach to the matter is an
afterthought. In fact, it amounts to guesswork.
Furthermore, I agree
with counsel for the Commissioner that the contention of
institutional bias is simply confused.
[30.2]
According to Mr Gauntlett SC, “institutional bias” means
that the adjudicator is influenced by the bias
derived from or
related to, the institution to which they belong. He referred the
Court to
Council of Review, SADF and
Others v Mönnig & Others
1992 (3) SA 482
as
a classic example of a military court marshall. The Public Protector
has, in the afore going allegation, failed to prove institutional
bias. This point of institutional bias, which is raised for the first
time in this application for leave to appeal, is not supported
by any
objective facts. It is not alleged that the High Court supported its
findings with royal judgments. The ConCourt did not
observe the
institutional bias. It was never raised in the ConCourt. In the
circumstances, I have not been satisfied that leave
to appeal on this
institutional bias point should be granted.
[31]
B2 INTENDED CONSTITUTIONAL CHALLENGE TO
S 69(1)
OF THE
TAX
ADMINISTRATION ACT 28 OF 2011
AS AMENDED
31.1
The Public Protector states that it was proposed or suggested by the
ConCourt to challenge the constitutional
validity of
s 69(1)
of the
TAA. This is not true. The Constitutional Court only pointed out that
the provisions of
s 69(1)
of the TAA stood in her way and furthermore
that the application for leave would not succeed if she would not
bring a frontal challenge
to
s 69(1)
of the TAA. In fact, the fact
that the Public Protector had not challenged the validity of
s 69(1)
of the TAA was the main reason why her application for leave to
appeal directly to the ConCourt was refused.
[31.2]
This forum that is seized with two applications,
one for condonation
and the other for leave to appeal, is not a proper forum where leave
is sought to challenge the constitutionality
of
s 69(1)
of the TAA.
The Constitutionality of
s 69(1)
of the TAA was never an issue at the
hearing of the application by the High Court. The Constitutionality
of
s 69(1)
of the TAA was never addressed by the parties. Quite
correctly so, as argued by Mr Gauntlett SC, this new constitutional
challenge
of
s 69(1)
of the TAA has not been articulated. It is
highly unlikely that this Court may grant leave to appeal in respect
of the cause of
action that was not articulated at the hearing of the
application before the High Court or the cause of action whose
elements have
not been clearly set out.
[31.3]
The Public Protector actually made it clear that
she “intends
to launch a constitutional challenge to
s 69(1)
of the TAA”.
This Court should therefore not regard the application for leave to
appeal containing the Public Protector’s
intention to challenge
the constitutionality of the
section 69(1)
of the TAA as any
challenge. The Court cannot grant leave to appeal in this respect.
[32]
I am not satisfied that the Public Protector has passed the test set
out in
s 17(1)
of the
Superior Courts Act. I
am not satisfied that
another tribunal seized with the same set of facts will arrive at a
different conclusion.
I
make the following order:
Both
applications for condonation and for leave to appeal are refused,
with costs which costs shall include the costs consequent
upon the
employment of two counsel.
PM
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Applicant
:
Adv
DC Mpofu (SC)
Adv T
Motloenya
Instructed
by:
Seanego
Attorneys
Inc
c/o SV
Nagkabgy Attirbets
Counsel
for the
First Respondent:
Adv
J
J
Gauntlett
(
SC
) QC
Adv
FB
Pelser
Instructed
by:
Da Silva
Attorneys
c/o
Gildenhuys
Malatji Inc
Date
heard
before Mabuse
J:
17 June
202
1
Date
of Judgment:
15 July
2021