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[2012] ZAGPPHC 91
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Zikhulise Cleaning Maintenace and Transport CC v Commissioner for South African Revenue Services and Another (28084/2012) [2012] ZAGPPHC 91 (29 May 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 28084/2012
DATE:2012-05-29
In
the matter between:
ZIKHULISE
CLEANING MAINTENACE AND TRANSPORT
CC
..................................
Applicant
and
THE
COMMISSIONER FOR SOUTH AFRICAN
REVENUE
SERVICES
..................................................................................................
1st
Respondent
MINISTER
OF
FINANCE
................................................................................................
2nd
Respondent
JUDGMENT
WRIGHT
AJ: The applicant Closed Corporation, is in the business of
constructing affordable housing through Government tenders, it
relies
on a clearance certificate issued by SARS to be able to conduct its
business. SARS issued such a certificate on 17 January
2012. The
certificate was issued for the ensuing year.
On
16 March 2012, SARS wrote to the applicant which writing was received
by the applicant on 18 April 2012. In the letter SARS stated
that the
certificate has been rendered inactive as from the date of the
fetter. The reasons were furnished in the Setter.
On
receipt of SARS' letter the applicant queried SARS. On 26 April SARS
replied, setting out various legislative provisions. In
this letter
SARS states that it was in the process of considering whether to
withdraw the certificate and state that, 'the facts
as to why you are
not compliant appear from our letter of 26 March 2012.
The
applicant is invited to make representations by 11 May if the
applicant disputes the fact. In my view the words, 'rendered
inactive, withdraw and cancel' are different labels for the same
thing. By 16 March, SARS had clearly taken a decision on reasons
it
deemed valid. To afford the applicant a belated opportunity to change
the stance of SARS is not competent in law. SARS exercises
a public
function and its decision, taken on 16 March, impacts the applicant.
Whether
the decision is reviewable, via the promotion of Administrative
Justice Act 3 of 2000 or through the principle of legality,
is not
something I need decide. The applicant was entitled to reasonable
notice of SARS' intention to call the certificate into
question and
an opportunity to put its case to SARS. These opportunities should
have occurred before 16 March. 2010.
in
my view the applicant is entitled to an order in terms of prayers 2.1
of the Notice of Motion, to effect that pending the outcome
of an
application to be launched by the applicant for the review of SARS'
decision.
I
grant an order that the decision is of no force and effect.
On
the question of costs, I take the view that both sides reasonably
employed two counsel and that the applicant has achieved sufficient
success on its fresh Notice of Motion, to entitle it to party on
party costs.
I
was requested to grant a punitive costs order, relating to about 1500
pages of documentation filed by SARS. I considered that
this
documentation was relevant to and admissible evidence on the relief
sought by the applicant, in its original Notice of Motion,
in prayers
2.2 and 2.3. Those prayers, relating to the current tax status of the
applicant, have been put on the shelf by the new
Notice of Motion
prepared today.
ORDER
I
grant the following orders.
1.
Prayers 2, 3 and 4.1 read with 4.2 of the amended Notice of Motion
are granted.
2.
The second order I grant is that prayer 4.3 of the amended Notice of
Motion is dismissed.
MR
ROWAN: M'Lord, just for clarity, Your Lordship indicated, if I heard
correctly an order in terms of paragraph 2, and probably
meant 2.1.
COURT: Your amended Notice of Motion ... (intervenes) MR ROWAN:
Paragraph, I think it is 2.1.
COURT:
Yes, but 2.2 says you are given leave to approach this Court.
MR
ROWAN: Oh, yes, Your Lordship is absolutely correct. Thank you
M'Lord.
COURT:
Is your review of my judgment over?
MR
ROWAN: It is.
MB.
COETZEE: As the Court pleases,
CASE
NO: 28084/2012
IN
THE NORTH GAUTENG IGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
PRETORIA
29 MAY 2012
BEFORE
THE HONOURABLE MR JUSTICE WRIGHT, AJ
In
the matter between:
ZIKHULISE
CLEANING, MAINTENANCE AND
TRANSPORT
CC
....................................................................................................
APPLICANT
AND
THE
COMMISSIONER FOR TH SOUTH
AFRICAN
REVENUE
SERVICES
...............................................................
1ST
RESPONDENT
MINISTER
OF
FINANCE
.............................................................................
2nd
RESPONDENT
HAVING
HEARD counsel(s) for the party(ies)-Bnd having read the documents
filed of record
IT
IS ORDERED
1.
THAT, pending the determination of the Applicant's review
application, set out in Part
B of this Notice of Motion:-
1.1
The decision of the first respondent to invalidate/cancel/withdraw
the Tax Clearance Certificate, Number 0020/1/2012/0002509263
)"the
Tax Certificate" for the period from 17 January 2012 to 16
January 2013 or for any portion of that period and which
decision was
first communicated to the applicant by letter dated 16 March 2012 and
received on 18 April 2012, shall be of no force
and effect;
1.2
The Applicant is given leave to approach this court on an urgent
basis, should the circumstances so warrant, on these papers
duly
supplemented for an order:
1.2.1
Declaring that the Tax Certificate shall be deemed to be valid and
current pending the outcome of the relief sought in Part
B;
1.2.2
Permitting the applicant to rely on the Tax Certificate pending the
outcome of the relief sought in Part B.
2.
THAT the applicant is entitled to apply for the relief sought in Part
B hereto the same
papers, duly supplemented.
3.
THAT the Applicant's costs of suit be paid by the first Respondent.
4.
THAT the costs associated with the perusal and copying of the
annexures to the answering affidavit relating to the pending criminal
proceedings (pages 349 - 1850) are to be paid on a scale as between
attorney and own client.
BY
THE COURT
REGISTRAR