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2024
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[2024] ZAGPPHC 463
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Inhlakanipho Consultants (Proprietary) Limited v Commissioner for the South African Revenue Service (66076/2020) [2024] ZAGPPHC 463 (23 May 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 66076/2020
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/ NO
(3)
REVISED: YES /
NO
DATE:
23/05/2024
SIGNATURE
In
the matter between:
INHLAKANIPHO
CONSULTANTS (PROPRIETARY)
LIMITED
Applicant
and
THE COMMISSIONER FOR
THE SOUTH AFRICAN
REVENUE
SERVICE
Respondent
JUDGMENT
DELIVERED
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by e mail and publication
on Case Lines. The date for hand-down is deemed to be 23
May 2024.
G
S Myburgh AJ
[1]
This is an application for leave to appeal against the judgment which
I handed down on 19
February of this year.
[2]
In terms of
section 17 (1) of the Superior Courts Act
[1]
a
judge may only grant such an application if either:
[a]
He or she is satisfied that the appeal would have a reasonable
prospect of success;
or
[b]
There is some other compelling reason why the appeal should be heard.
[3]
In casu
the argument advanced by the applicant was that it enjoys a
reasonable prospect of success. It was not suggested that leave
should
be granted even if I am not satisfied that the applicant would
enjoy reasonable prospects of success, and I do not consider that
that would be appropriate in casu. This is so notwithstanding that
the underlying dispute concerns the application of an important
statute, viz the Tax Administration Act.
[2]
[4]
A thesis
which was central to the applicant’s argument was that I erred
in granting the respondent’s application for
condonation in
respect of the late delivery of its answering papers. The difficulty
that I have with this argument is that the
grant or refusal of such
an application is matter for the discretion of the judge of first
instance , and it is well settled that
a decision in respect of such
an application will not be overturned on appeal unless the appeal
court is satisfied that the discretion
was not exercised in a proper
manner – i.e. that an incorrect legal principle was applied or
that the judge of first instance
acted on the basis on an incorrect
factual premiss.
[3]
Added to
this, while there are numerous precedents for finding, on appeal,
that such an application was wrongly refused, thereby
excluding
evidence which ought properly to have been received into evidence,
there is (in my view understandably) a dearth
of authority
going the other way. In the course of argument Mr Swanepoel SC, who
appeared for the applicant, sought to rely on
the decision in Valor
IT
[4]
as support for the
proposition that a court on appeal would, or at least might,
reasonably find that I erred in granting condonation.
That decision
does not however assist the applicant as the court in that matter
endorsed the decision of the court of first instance
to grant
condonation and so receive the contents of the late affidavit into
evidence – essentially on the same basis as I
did in granting
the respondent’s application for condonation
in
casu
.
In my view there is no realistic prospect that the applicant’s
argument on this issue would be upheld on appeal.
[5]
As to the remainder of the applicant’s argument, it essentially
comprised a rehashing
of the arguments which were advanced in the
main application, and which I dealt with in my judgment.
[6]
On balance, I am not satisfied that the applicant would enjoy
reasonable prospects of success
on appeal .
[7]
The application is accordingly dismissed with costs. As far as
counsel’s charges are concerned,
my view is that the matter as
a whole was relatively complex, and I see no reason why a different
scale should apply to the application
for leave to appeal
per se
.
Scale B will therefore apply.
G
S Myburgh AJ
Acting Judge of the High
Court
Pretoria
Date
of Hearing:
21 May 2024
Date
of judgment:
23 May 2024
Appearances
For
Applicant:
P
Swanepoel SC assisted by C Boonzaaier
Instructed
by:
L
Mbangi attorneys.
For
Respondent:
L
Haskins
Instructed
by:
Mothle
Jooma Sabdia Inc
[1]
Act 10 of 2013
[2]
Act 28 of 2011
[3]
Valor IT v Premier North West Province and Others [2020] ZASCA 62
[4]
Ibid