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[2018] ZAGPJHC 679
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Gold Kid Trading CC v Commissioner for the South African Revenue Services (31842/2016; 40732/2017) [2018] ZAGPJHC 679 (21 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 31842/2016 & 40732/2017
In
the matter between:
GOLD
KID TRADING
CC Applicant
and
THE
COMMISSIONER FOR THE SOUTH
AFRICAN
REVENUE
SERVICES Respondent
JUDGMENT: LEAVE TO APPEAL
MOLAHLEHI
J
:
[1]
The applicant seeks
leave to appeal against the judgment of this court made on 19 July
2018 in which its application to review the
decision of the South
African Revenue Service (SARS) was stuck of the roll.
[2]
In that case, the
court whilst accepting that it had jurisdiction to entertain the
review it refused to do so on the ground that
the applicant was still
to exhaust the remedies provided for under the Tax Administration Act
(the TAA). In this respect the court
found that there was an appeal
pending before the Tax Court.
[3]
The other issue which
was raised by the applicant concerned
res
judicata.
This issue was raised in the context where Mokose AJ had granted the
order that SARS should pay the VAT rebate to the applicant
for the
VAT returns it had already assessed. This arose from the reassessment
which SARS had conducted for the same year. In interpreting
that
judgment the court found that it did not interdict SARS from excising
its power of reassessment.
[4]
The key aspect of the
judgment was that whilst the court accepted that it had power to
entertain the review application, it was
of the view that in the
context where the same matter was still pending before the Tax Court
it was not appropriate to exercise
its review powers. The court
relied in this respect on the provisions of section 7 (2) of
Promotion of Administration of Justice
Act 3 of 2000.
[5]
In the application
for leave to appeal the applicant deals in details with the merits of
the case. It, in this respect, talks about
the details of each of the
claims it had raised against SARS. It contends that the court erred
in relying on the provisions of
sub-section 190(2) of the Tax
Administration Act because that sub-section applies in a situation
where SARS is conducting verification,
inspection or audit or the
refund in issue and not of another VAT period.
[6]
Counsel for the
applicant submitted that the approach adopted by the court is in
conflict with the decision in Top Watch (Pty) ltd
v SARS
2017 (4) SA
557
(GSJ).
[7]
In my view, the
issues dealt with by the court in that case are different to those
dealt with in the present matter. The court in
that case dealt with
the merits of the claim and made a final determination of the
dispute. In the present matter the merits of
the dispute were not
dealt with as the court simply refused to entertain the dispute
pending the finalisation of the appeal. The
essence of the judgment
is that it held the parties to their internal legislative dispute
resolution mechanism. This a mechanism
which the legislature in its
wisdom found quite clearly to be the appropriate manner of dealing
with disputes related to tax disputes.
[8]
The test to apply in
an application for leave to appeal is governed by the provisions of
s
ection 17 of the Superior Courts
Act, 10 of 2013, (“the
Superior Courts Act&rdquo
;) which
provides:
“
(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;”
[9]
Counsel for the applicant contended that
the legislature in setting out the test for leave to appeal in
section 17
of the
Superior Courts Act did
not intend to introduce a
standard higher than the traditional test. He in this respect
contended that the interpretation of the
test by Bertelsman J The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 Others
LCC14R/2014, (an unreported judgment of
this Court delivered on 3
November 2014) was wrong.
[10]
In that
case Bertelsman J in dealing with the test for leave to appeal set
out in
section 17
of the
Superior
Courts Act said
:
"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."
[11]
The proposition that the
Mont Chevaux is
incorrect in its interpretation of the test for leave to appeal bears
no merit when regard is had to the body of
authorities that have
followed that judgment
. See Acting National Director of Public
Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National
Director of Public Prosecutions and Others
(19577/09) [2016] ZAGPPHC 489 ) There is no basis to find that
that judgment was
so wrong such that this court would regard its as
not bound by it.
[12]
In my view, the applicant has clearly
misconceived the essence of the judgment of this court. The attack is
based on the merits
of the review application and not the real
reasons for the court arriving at the decision as it did. The court
in exercising its
discretion not to entertain the dispute did not
make any determination as whether or not there are good grounds for
the applicant’s
review application.
[13]
In light of the above discussion I am of
the view that the applicant has failed to make out a case for leave
to appeal. Accordingly
the application stands to fail.
Order
[14]
In the premises the applicant’s
application for leave to appeal is dismissed with costs.
E
MOLAHLEHI
Judge
of the High Court
Gauteng
Local Division,
Johannesburg
RESPONDENTS:
FOR
THE APPLICANT: Adv. PF Louw SC with Adv. CJ Dreyer
INSTRUCTED
BY: Pierre Retief Inc.
FOR
THE RESPONDENT:
Adv.
AT Ncongwane SC with Adv. IP Ngobese
INSTRUCTED
BY: The State Attorney
HEARD
ON: 18 October 2018
DELIVERED
ON: 21 November 2018