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[2017] ZAGPPHC 340
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South African Breweries (Pty) Ltd ("SAB") v Commissioner of the South African Revenue Services ("SARS") (3234/15) [2017] ZAGPPHC 340 (28 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 3234/15
Date:
28/3/2017
Reportable:
No
Of
interest to other Judges: No
SOUTH
AFRICAN BREWERIES (PTY) LTD
("SAB")
APPLICANT
(Respondent in the application for
leave to appeal)
and
THE
COMMISSIONER OF THE SOUTH AFRICAN
RESPONDENT
REVENUE
SERVICES
("SARS")
(Applicant in the application for leave to appeal)
Coram:
HUGHES J
JUDGMENT
HUGHESJ
[1]
This is an application made by SARS for leave to appeal against my
judgment of 15 December 2016. The application is duly opposed
by SAB.
[2]
What resonates from the grounds for leave to appeal both legal and
factual is to a large extent that this court's reasoning
was
erroneous and that I failed to take into consideration or give
sufficient weight to other factors. What I do not propose to
do is to
set out the exhaustive grounds of appeal again or repeat that which
was set out in the judgment, in as much as that which
was relevant
was dealt with in the judgment.
[3]
From the outset I must point out that it would be noted from the
record of the application for leave to appeal sought by SARS
that the
argument of Adv. Meyer SC sought to, in my mind, rehash the entire
case of SARS. There was even an attempt to re-introduce
the abandoned
alternative argument made out in their main papers. Be that as it
may, Adv. Meyer SC pointed out that the nub of
the appeal lies in
paragraph 1.3 of their notice of application for leave to appeal.
[4]
The section which deals with circumstances in which leave to
appeal may be granted is section 17 (1) of the Superior Courts Act 10
of 2013 (the
Superior Courts Act). What
specifically relevant in this
case, is
section 17
(1) (a). For easy reference I set out
section 17
(1) in its entirety below:
"(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 on 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."
[My
emphasis]
[5]
The test which was
applied previously in applications of this nature was whether there
were reasonable prospects that another court
may come to a different
conclusion. See
Commissioner
of Inland Revenue v Tuck
1989 (4)
SA
888
(T) at 8908.
What emerges
from
section 17
(1) is that the threshold to grant a party leave to
appeal has been raised. It is now only granted in the circumstances
set out
and is deduced from the words
'only'
used in the said
section. See
The Mont
Chevaux Trust v Tina Goosen
&
18 Others 2014 JDR
2325 (LCC) at para [6],
Bertelsmann
J held as
follow:
"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
iudgment is sought to be appealed against."
[My
emphasis]
[6]
The entire
argument of SARS is centred upon the first ground which leave could
be granted as set out above, section 17(1) (a) (i),
that the appeal
would
have
a reasonable prospect of success. They relied upon the fact that the
matter was one
of
interpretation and the court's interpretation was wrong, thus another
court would interpret in
the
manner contended by SARS.
[7]
SARS contends that
a novel point has been raised in this case in that the case involves
an 'irreconcilable conflict' between the
headings and the explanatory
notes and a 'peremptive injunction' as was contemplated in
Custom
Excise v Thomas Barlow and
Sons
Limited
1970
(2) SA 660
AD. They contend that the court did not have due regard to
the judgment of Miller AJA in
Thomas
Barlow
which judgment
their entire case was premised
upon.
[8]
Adv. Puckrin SC
for SAB argued that there was no 'irreconcilable conflict' and in any
event, even if there was a situation of 'irreconcilable
conflict' the
approach in dealing with same by SARS was incorrect, in that SARS
adopted the approach of firstly going to the Explanatory
Note,
without first seeking to reconcile the products with the Tariff
Heading. Adv. Puckrin SC argues further that the judgment
of Miller
AJA relied upon by SARS has not been followed by the SCA, rather the
judgment
of
Trollip JA has been endorsed by the SCA in both the
Heritage
Collection,
as cited in the judgment, and the recent judgment of
CSARS v Coltrade International
CC (54/2015)
[2016] ZASCA 53
(1April 2016).
[9]
From the argument advanced by both counsel I find that one of
the requirements, that being section 17 (1) (a) (ii), has application
in the circumstances of this particular case. If it is established
that there are compelling reasons to do so this court has discretion
to grant leave to appeal on the merits, even if this court is of the
view that there are no prospects of success.
[10]
The compelling reason, in my view, is the interpretation
adopted by the court being the adaptation of Trollip JA dictum
instead
of Miller AJA as contended by SARS. The long and short of His
that there has been various judgments that have followed Trollip JA
instead of Miller AJA, the question that I pose is that in the
circumstances of this particular case was the correct interpretation
adopted? In my view this would suffice to fall under conflicting
judgments on the adoption of the method adopted of interpretation.
This to my mind allows me to exercise my discretion and I do so to
grant leave to appeal even though I am of the view that there
are no
prospects of success.
[11]
Consequently the following order is made:
[a]
The application for leave to appeal to the Supreme Court of Appeal
thus succeeds and costs are to be costs in the appeal.
_______________________
W.
Hughes
Judge
of the H Court Gauteng, Pretoria