Reportable
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case no. A88/2023
Before: The Hon. Mr Justice Binns-Ward
The Hon. Mr Justice Nuku
The Hon. Ms Justice Slingers
Hearing:19 June 2024
Judgment: 28 June 2024
In the matter between:
CANDICE-JEAN POULTER Appellant
and
THE COMMISSIONER FOR THE
SOUTH AFRICAN REVENUE SERVICE Respondent
JUDGMENT
in Respondent’s application for leave to appeal
Delivered by email and listing on SAFLII
BINNS-WARD J (NUKU and SLINGERS JJ concurring):
[1] This judgment concerns an application by the Commissioner for the South
African Revenue Service for leave to appeal to the Supreme Court of Appeal (‘SCA’)
from the judgment of this c ourt upholding an appeal by Ms Poulter (neé Van der
Merwe) against the judgment granted against her by a tax court. Ms Poulter’s appeal
to this court was brought in terms of s 133 of the Tax Administration Act 28 of 2011
2
(‘the TAA’). For convenience, I shall henceforth in this judgment refer to the parties
by their respective roles in that appeal.
[2] The tax court was seized of an appeal by the appellant in terms of s 107 of
the TAA. I t proceeded in terms of Tax Court sub rule 44(7) when it made the order
that was the subject of the appellant’s further appeal to this court . The subrule
applies when a party to an appeal to a tax court is in default of appearance at the
hearing.1 The appellant had sought audience at the hearing before the tax court
through her appointed representative, who was not an admitted legal practitioner.
The tax court declined to recognise the appearance by the appellant’s lay
representative. It invoked the line of authority confirming that, save very
exceptionally, only legal practitioners may represent natural persons in proceedings
before a court of law in support of its approach.
[3] In upholding the appeal from the tax court , this c ourt held that tax courts are
courts of revision, not courts of law. It held that the bar against lay representation in
courts of law consequently did not apply in proceedings in a tax c ourt. The effect of
this court’s judgment is that the appellant may proceed with her appeal in a tax c ourt
represented by her chosen and duly authorised lay representative on a date to be
advised by the registrar of the Tax Court.
2
[4] A preliminary, and for present purposes, potentially decisive , question that
needs to be addressed is whether this c ourt has jurisdiction to adjudicate the
respondent’s application for leave to appeal. The appellant contended that if the
respondent sought to appeal this c ourt’s judgment in the principal proceedings , he
required special leave from the SCA in terms of s 16(1)(b) of the Superior Courts Act
10 of 2013 to be able to do so.
[5] Section 16 of the Superior Courts Act resorts under the subheading ‘Appeals
Generally’. Section 16(1)(b) provides:
‘Subject to section 15 (1), the Constitution and any other law-
1 The text of the subrule is set out in para 4 of the judgment in the principal case.
2 The judgment in the principal proceedings is reported sub nom. Poulter v CSARS [2024] ZAWCHC
97 (2 April 2024); [2024] 2 All SA 876 (WCC).
3
(b) an appeal against any decision of a Division on appeal to it , lies to
the Supreme Court of Appeal upon special leave having been granted by the
Supreme Court of Appeal;’. (Emphasis supplied.)
Section 15(1) is not applicable in the circumstances of the case . The only
‘other law’ of relevance is the TAA, the pertinent provisions of which will be
considered presently.
[6] The appellant gave notice, in terms of Uniform Rule 30 , that she objected to
the respondent’ s application to this c ourt for leave to appeal as an irregular step.
Mindful that our judgment in the principal proceedings had been given in a matter
brought on appeal to this c ourt, we would have raised the jurisdictional issue of our
own accord even if the appellant had not done so.
[7] The jurisdictional issue turns on whether the judgment of this c ourt in the
principal proceedings was ‘a decision … on appeal to it’ within the meaning of those
words in s 16(1)(b) of the Superior Courts Act. If it was , the respondent has sought
leave to appeal in the wrong forum and we lack the jurisdiction to decide his
application.
[8] The word ‘appeal’ is specially defined in s 1 of the Superior Courts Act. The
only effect of the definition, however, is to exclude from the ambit of the Act appeals
in criminal cases that are ‘ regulated in terms of the Criminal Procedure Act, 1977
(Act 51 of 1977), or in terms of any other criminal procedural law ’.
3 For current
purposes, the term therefore bears its ordinary meaning, determined with regard to
the context in which it has been employed.
[9] It is well established that in the context of legal proceedings the word ‘appeal’
can have different connotations. Trollip J famously identified three of those possible
meanings in Tikly and Others v Johannes NO and Others 1963 (2) SA 588 (T)
([1963] 3 All SA 91) at pp. 590G-591A:
‘The word “appeal” can have different connotations. In so far as is relevant to
these proceedings it may mean:
3 Cf. August v S [2023] ZASCA 170 (4 December 2023), para 40-42.
4
(i) an appeal in the wide sense, that is, a complete re- hearing of, and
fresh determination on the merits of the matter with or without additional
evidence or information ( Golden Arrow Bus Services v Central Road
Transportation Board , 1948 (3) SA 918 (AD) at p. 924; S.A. Broadcasting
Corporation v Transvaal Townships Board and Others, 1953 (4) SA 169 (T) at
pp. 175- 6; Goldfields Investment Ltd v Johannesburg City Council, 1938
T.P.D. 551 at p. 554);
(ii) an appeal in the ordinary strict sense, that is, a re-hearing on the merits
but limited to the evidence or information on which the decision under appeal
was given, and in which the only determination is whether that de cision was
right or wrong (e.g. Commercial Staffs (Cape) v Minister of Labour and
Another, 1946 CPD 632 at pp. 638 - 641);
(iii) a review, that is, a limited re-hearing with or without additional evidence
or information to determine, not whether the decision under appeal was
correct or not, but whether the arbiters had exercised their powers and
discretion honestly and properly (e.g. R v Keeves , 1926 AD 410 at pp. 416 -
7; Shenker v The Master, 1936 AD 136 at pp. 146 - 7).’
[10] The application for declaratory relief in Tikly ’s case came before the late
Supreme Court because of some uncertainty concerning the character of
proceedings in an appeal then pending before a revision court constituted in terms of
s 19(5) of the Group Areas Development Act 69 of 1955 (as amended). Trollip J held
that, as the pertinent statutory provisions required the revision court to determine
afresh the property valuations that were in contestation on the basis of the evidence
to be presented to that court, the appeal was one in the wide sense described in the
first example in his classifications.
[11] As d escribed with reference to pertinent authority in our judgment in the
principal proceedings, an appeal to a tax court in terms of s 107 of the TAA is
another example of an appeal in the wide sense. It is not an appeal of the sort that
Trollip J, in the second example in his taxonomy , called ‘an appeal in the ordinary
strict sense’. Appeals from lower courts to courts higher up in the forensic hierarchy
are, by contrast, invariably appeals in the ordinary strict sense ; cf. e.g. National
Credit Regulator v Lewis Stores (Pty) Ltd and Another [2019] ZASCA 190
5
(13 December 2019); 2020 (2) SA 390 (SCA); [2020] 2 All SA 31 (SCA) , para 51.
They are, in the words of Trollip J, ‘a re-hearing on the merits but limited to the
evidence or information on which the decision under appeal was given, [4] and in
which the only determination is whether that decision was right or wrong’. That
appeals to a tax court fall under the first, rather than the second , of the
aforementioned categories no doubt explains the repeatedly made observation that
the tax courts are courts of revision rather than courts of appeal in the ordinary
sense.5
[12] Appeals from a tax court in terms of s 133 of the TAA, whether to a full court
of a division of the High Court , as in the appeal to this court, or directly to the SCA,
are, by contrast , appeals in the ordinary strict sense of the word in the second
category of appeal described in Tikly . They are decided on the basis of the record of
the proceedings in the tax court, applying the same principles as those applied by
any court of law sitting on appeal from a lower court; cf. Hicklin v Secretary for Inland
Revenue 1980 (1) SA 481 (A) at 485F. In Metcash Trading Limited v Commissioner
for the South African Revenue Service and Another [2000] ZACC 21 (24 November
2000); 2001 (1) SA 1109 (CC); 2001 (1) BCLR 1 (CC) , t he Constitutional Court
observed of appeals in the tax courts that ‘[a]lthough the procedure [in the tax courts]
is referred to in the legislation as an appeal, it is a full hearing more akin to a trial ’.6
An appeal from a tax court , whether to a full court of the High Court or directly to the
SCA, is dealt with in both of those fora indistinguishably from the manner in which
those courts would deal with an appeal from the judgment in a trial before a single
judge in the High Court. Moreover, such an appeal falls, in terms of the TAA,
7 to be
dealt with procedurally in terms of the rules of those courts pertaining to appeals.
The rules pertain to appeals within the meaning that word in ss 16 and 17 of the
Superior Courts Act.
4 Subject to the power, acknowledged in s 19(b) of the Superior Courts Act, to hear further evidence:
a power that is exercised only in exceptional circumstances.
5 Cf. e.g. Bailey v CIR 1933 AD 204 at 220; Rand Ropes (Pty) Ltd v CIR 1944 AD 142 at 150, Africa
Cash & Carry (Pty) Ltd v CSARS [2019] ZASCA 148; [2020] 1 All SA 1 (SCA); 2020 (2) SA 19 (SCA),
para 52 and CSARS v Rappa Resources (Pty) Ltd [2023] ZASCA 28; 2023 (4) SA 488 (SCA); 85
SATC 517, para 13.
6 In para 36. As noted in our judgment in the principal proceedings, the Constitutional Court’s
judgment traversed provisions in the Value-Added Tax Act 88 of 1991 concerning appeals to the
special tax courts. Those provisions have since been repealed and essentially reproduced in Chapter
9 of the TAA.
7 In terms of s 138 (3) and (4).
6
[13] Save in respect of cases in which three judges have sat in the appeal to the
tax court (as provided for in s 118(5) of the TAA) in which event there is an automatic
right of appeal directly to the SCA, a n appeal in terms of s 133 lies directly to the
SCA only upon leave granted by the president of the tax court concerned. 8 The
president may grant leave to appeal from a judgment of a tax court directly to the
SCA rather than to a full court of a division of the High Court if he or she considers
the matter sufficiently important to warrant the attention of that court. The
considerations to be taken into account equate with those that a single judge sitting
at first instance in the High Court will take into account when deciding whether an
appeal from his or her judgment should lie to a full court or directly to the SCA.
[14] An appellant from the judgment of a tax court dissatisfied with a decision of
the president of the court not to allow an appeal directly to the SCA can apply to
SCA to have the decision varied, and a party who considers a decision by a
president to allow an appeal directly to the SCA to be inappropriate can apply to the
SCA to have it set aside. In this regard, s 17 of the Superior Courts Act is made
applicable, in terms of s 135(3) of the TAA, to appeals from a tax court and the
provisions of the section apply mutatis mutandis in the same manner as they do in
respect of civil appeals from a single judge of the High Court.
[15] An appeal in terms of s 133 of the TAA has to be noted to the court to which it
is to be directed, whether that be the SCA or a division of the High Court.
9 The TAA
provides, in s 138(4), that such an appeal has to be noted ‘ in accordance with the
requirements in the rules of the relevant higher court’.
[16] Section 171 of the Constitution provides that ‘[a]ll courts [viz. those provided
for in s 166 of the Constitution] function in terms of national legislation and their rules
and procedure must be provided for in terms of national legislation’. The functioning
of the Constitutional Court, the SCA and the High Court and the rules of those courts
8 See s 135 of the TAA.
9 See s 138 of the TAA.
7
are provided for in terms of the Superior Courts Act. 10 Those are the rules of court
referred to in s 138(4) of the TAA.11
[17] The relevant rules – the Uniform Rules of Court and the Rules Regulating the
Conduct of the Proceedings of the Supreme Court of Appeal of South Africa –
pertain to appeals in the strict or ordinary sense of the term, for they are the only
type of appeal for which the rules of the respective higher courts make provision
using the term. (The third type of ‘appeal’ described in Tikly is referred to in the
Uniform Rules – and in the Superior Courts Act – as a ‘review’. 12). The r ules in
question were framed to procedurally regulate appeals from lower courts of law to
higher courts of law or from decisions of a single judge of the High Court sitting at
first instance to a full court. The TAA makes that order of procedural regulation
applicable in respect of appeals from a tax court.
[18] It is a canon of statutory interpretation that a noun or verb used in a statute is
presumed to have the same meaning wherever it appears unless the contrary is
evident from the context: ‘In our law, the legislature is presumed to use language
consistently, and one would deviate from the presumption with great hesitation and
only if driven to do so, for example, because to do otherwise would lead to manifest
absurdity, or would clearly frustrate the manifest intention of the lawgiver.’
13 Thus,
the word ‘appeal’ is presumed, wherever it appears in s 17 of the Superior Courts
Act, to bear the same meaning as it has in s 16 of the Act. It follows plainly from the
incorporating cross -references in Part E of Chapter 9 of the TAA to the Superior
Courts Act and the rules of court made under the latter Act to procedurally regulate
the appeals with which ss 16 and 17 of Superior Courts Act are concerned that an
appeal in terms of s 133 of the TAA is not a horse of a different colour from any other
appeal within the meaning of s 16 of the Superior Courts Act.
10 In Chapter 7 (ss.29-30).
11 See s 8(1) of the Interpretation Act 33 of 1957.
12 See rule 53 of the Uniform Rules and ss 21, 22 and 43(4) of the Superior Courts Act.
13 S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat [1999] ZACC 8 (3 June 1999); 1999
(4) SA 623; 1999 (7) BCLR 771 para 47 (footnotes omitted).
8
[19] To sum up, the express engagement of s 17 of the Superior Courts Act 14 and
the appeal rules of the SCA and the High Court in Part E of Chapter 9 of the TAA, as
well as the character of an appeal to either of those courts in terms of s 133 of the
TAA, provide strong contextual confirmation that the principal proceedings in this
court were an ‘appeal’ within the meaning of that word as employed in the Superior
Courts Act.
[20] The conclusion I have reached in this respect finds support in the
jurisprudence. In CSARS v Capstone 556 (Pty) Ltd [2016] ZASCA 2 (9 February
2016); [2016] 2 All SA 21 (SCA); 2016 (4) SA 341 (SCA) , the SCA undertook an
analysis of the two types of appeal in terms of the TAA of essentially the same
nature that I did earlier in this judgment , and concluded that ‘… there is indeed no
reason to differentiate between an appeal from a Special Court and an appeal from a
Local or Provincial Division. Unlike the position obtaining in a Special Court where a
decision is given on facts which may not have been considered by the
Commissioner, this Court hears an appeal from a Special Court on the record of the
proceedings in that Court.’
15 The clear import of that statement is that an appeal from
a tax court presided over by a single judge to the SCA is of the same type of appeal
as an appeal from the judgment of a single judge of the High Court to the SCA.
There is obviously no difference in the character of an appeal from a tax court to a
full court and an appeal from the tax court directly to the SCA. They are both of the
same sort of appeal with which ss 16 and 17 of the Superior Courts Act are
concerned.
[21] That much was expressly confirmed in para 21 of Capstone, where Van der
Merwe AJA, having observed that there was no material difference between the
appeal provisions in s 86A of the Income Tax Act and Part E of Chapter 9 of the TAA
which replaced them, said ‘ … appeals from a tax court [to a full court or the SCA] in
terms of the Tax Administration Act … [are] on the same footing as an appeal from a
division of the High Court.’
14 In s 135(3). The effect of s 135(3) is that a direction by a president of a tax court that an appeal
from that court should be heard by the SCA is susceptible to being set aside on application in terms of
s 17(6) of the Superior Courts Act.
15 In para 19.
9
[22] In Capstone, the appeal from the decision of the tax court first proceeded
before a full court of the Western Cape Division of the High Court. The further appeal
from the High Court’s decision was heard by the SCA upon leave having been
obtained from the latter court; see Capstone, para 1.
[23] All of the forementioned considerations impel the conclusion that any appeal
from this c ourt’s judgment in the principal proceedings may only be prosecuted
subject to s 16(1)(b) of the Superior Courts Act.
[24] The respondent, relying on his counsel’s interpretation of the second
judgment in National Credit Regulator v Lewis Stores (Pty) Ltd and Another supra,
contended, however, that s 16(1)(b) of the Superior Courts Act did not apply by
reason of this court’s finding that the tax courts ’ functions were predominantly
administrative in character. The application for leave to appeal was properly directed
to this court, so the argument went, because we, as the first court of law seized of
the case, had heard the matter ‘ at first instance ’. The argument was somewhat
paradoxical and placed the respondent on the horns of a dilemma because it flew in
the face of the principal contention that the respondent wants to pursue on further
appeal, viz. that the tax court was the first court of law seized of the taxpayer’s
appeal. If the respondent were to be held true to his principal contention, he would
self-evidently be in the wrong forum for his application for leave to appeal.
[25] Overlooking the intrinsic incongruity in the respondent’s approach, I in any
event, for the reasons that follow, consider that there was no merit in the contentions
advanced by counsel on his behalf.
[26] The argument proceeded from an understanding by the respondent’s counsel,
said to be predicated on paragraph 52 of this court’s judgment, that we had held that
a tax court was an ‘administrative tribunal’. Counsel have misconstrued the import of
our judgment. The question before us was not whether a tax court is an
administrative tribunal; it was whether a tax court is a ‘ court of law ’. This court ,
relying on the eminent local and international authority that was canvased
extensively in the judgment, drew heavily, but not entirely, on the predominantly
administrative character of the tax courts’ functions to categorise those courts as
10
falling outside the judicial system established in terms of s 166 of the Constitution,
and, consequently, not to be ‘courts of law’. We did not hold that tax courts were not
courts in any sense of the word . On the contrary, having found that the tax courts
established in terms of the TAA were indistinguishable in form and function from their
statutory predecessors, the so- called special tax courts established in terms of Part
III of Chapter 3 of the Income Tax Act 58 of 1962, we followed a hallowed line of
higher court authority in holding that the tax courts are courts of revision, not ordinary
courts of appeal.16
[27] More pertinently, I am not persuaded that the second judgment in Lewis
Stores is in point in respect of further appeals from decisions of full courts of
divisions of the High Court given on appeal to them in terms of s 133 of the TAA.
Unlike any of the examples of so- called ‘statutory appeals’ referred to in Lewis
Stores, the TAA gives an appeal not to the High Court simpliciter, but to a full court
of the High Court.17
[28] The question that the SCA was called upon to answer in Lewis Stores was a
narrow one. It was whether an appeal to the High Court from a decision of a full
panel of the National Credit Tribunal in terms of s 148(2) of the National Credit Act
34 of 2005 was an appeal within the meaning of s 16(1)(b) of the Superior Courts
Act. It was concluded that it was not.18
[29] The essential basis for that decision was that the appeal there in issue was a
‘statutory appeal’ of the sort that
_ like any number of other statutory appeals, some
examples of which were mentioned in the judgment _ comes to the High Court as a
16 See the judgment in the principal proceedings at para 47-53.
17 Section 133(2)(a) of the TAA. The TAA uses the term ‘full bench’, which is not specially defined;
see s 133(2)(a). The term is not used in the Superior Courts Act, nor was it in that Act’s predecessor,
the Supreme Court Act, 1959. In legal parlance it is often used interchangeably with the term ‘full
court’, which is defined in the Superior Courts Act and the statutory predecessor thereto as a bench
constituted of three judges. For examples of a three-judge bench being referred to judicially as a ‘full
bench’, see Pharmaceutical Manufacturers Association of SA: In re Ex parte President of RSA and
Others [2000] ZACC 1 (25 February 2000): 2000 (2) SA 674 (CC) inter alia at para 10-12 and
Tshabalala v S, Ntuli v S [2019] ZACC 48 (1 December 2019); 2020 (5) SA 1 (CC), para 23. Appeals
from a tax court to the High Court are invariably heard by a three-judge bench.
18 See also National Credit Regulator v Dacqup Finances CC trading as ABC Financial Services -
Pinetown and Another [2022] ZASCA 104 (24 June 2022) and Barnard NO and Another v National
Consumer Tribunal and Another [2023] ZASCA 121 (18 September 2023); [2023] 4 All SA 277 (SCA);
2024 (2) SA 329 (SCA)
11
court of first instance. Such appeals are of the sort of proceeding that _ unlike
appeals to the High Court within the meaning of s 16 of the Superior Courts Act _ can
be heard by a single judge or by two or three judges, as decided by the judge
president. In contrast to Part E of Chapter 9 of the TAA, t he statutory provisions in
terms of which such statutory appeals are created generally do not provide for them
to be regulated by the Superior Courts Act or the rules of court pertaining to appeals
made under the auspices of the Superior Courts.19
[30] The judgment in Lewis Stores acknowledged that whether a so- called
statutory appeal might be an appeal within the meaning of the Superior Courts Act
was dependent upon the statutory provisions in terms of which the appeal remedy in
question was established. Thus, in para 47, Wallis JA referred to the regimes in
respect of appeals from the Commissioner in terms of the Patents Act 57 of 1978
and from the Copyright Tribunal in terms of the Copyright Act 98 of 1978. He pointed
out that those statutes provided for the statutory appeals in question to be noted and
prosecuted ‘ in the manner prescribed by law for appeals against a civil order or
decision of a single judge’ and observed that the effect was that an appeal to the
High Court under either of those statutory provisions therefore started ‘on the footing
that it is dealt with from a procedural perspective as if the Commissioner were a
court’. Section 16(1)(b) of the Superior Courts Act is an integral part of the
framework for the procedural regulation of such appeals.
[31] It bears mention that the appeal provisions under the Patents Act and the
Copyright Act also provide that ‘sections 20 and 21 of the Supreme Court Act (Act 59
of 1959) shall apply mutatis mutandis’ to the statutory appeals in question.
20 Those
provisions were the statutory predecessors of ss 16 and 17 of the Superior Courts
Act and essentially to the same effect as the currently applicable provisions of the
latter statute. By virtue of s 12(1) of the Interpretation Act 33 of 1957, the references
19 Compare, for example, the position in respect of appeals in terms of s 57 of the Community
Schemes Ombud Service Act, 9 of 2011, in respect of which the different divisions of the High Court
have adopted disparate procedures. See in this regard, Trustees for the Time Being of the Avenues
Body Corporate v Shmaryahu and Another [2018] ZAWCHC 54 (10 May 2018); 2018 (4) SA 566
(WCC) and Durdoc Centre Body Corporate v Singh [2019] ZAKZPHC 29 (13 May 2019); 2019 (6) SA
45 (KZP) and contrast Stenersen and Tulleken Administration CC v Linton Park Body Corporate and
Another [2019] ZAGPJHC 387 (24 October 2019); 2020 (1) SA 651 (GJ).
20 In s 76(2)(a) of the Patents Act and s 36(2) of the Copyright Act.
12
in those statutes to the provisions of the Supreme Court Act fall to be construed,
subsequent to the repeal of the Supreme Court Act, as references to the currently
applicable equivalent provisions in the Superior Courts Act.
[32] The effect is that an appeal from the Commissioner or the Copyright Tribunal
may, just as in the case of an appeal from a tax court, proceed either before a full
court of a division of the High Court or directly before the SCA. They cannot proceed
before a single judge or a two- judge bench of the High Court. The direction as to in
which of the appellate fora the appeal should be heard is made by the Commissioner
or the Copyright Tribunal, subject to the SCA’s power , in terms of s 17(6) of the
Superior Courts Act (which is the equivalent of the previously applicable s 20(2)(b) of
the Supreme Court Act ), to set aside the direction. As evident from the discussion
above about the pertinent provisions of the TAA, exactly the same position obtains in
respect of appeals in terms of s 133 of the TAA.
21
[33] Wallis JA ventured that the reason for the difference between the statutory
regime in respect of appeals under the Patents Act and the Copyright Act and those
pertaining in respect of the other statutory appeals referred to in his excursus was
that the Commissioner (who also personifies ‘ the Tribunal’ under the Copyright Act)
is a judge or acting judge of the High Court. Exactly same basis for legislative
differentiation, would apply, of course, in respect of appeals from a tax court.
[34] Whilst the pertinent part of the TAA does not say in terms that an appeal from
a tax court in terms of s 133 must be noted and prosecuted ‘ in the manner
prescribed by law for appeals against a civil order or decision of a single judge’, the
statutory regime created in terms of Part E of Chapter 9 of the Act nevertheless has
precisely th e same import . In the circumstances, far from supporting the
respondent’s contention, the dicta in para 47 of Lewis Stores actually go against it.
[35] Enough has been said to explain our conclusion that s 16(1)(b) of the
Superior Courts Act does apply in the current matter and that this court consequently
does not have jurisdiction to determine an application for leave to appeal from its
21 See the reference to s 17 of the Superior Courts Act in s 135(3) of the TAA.
13
judgment in the principal proceedings. The current application is a novel and
unprecedented one that has confessedly been addressed to this court rather than
the SCA only because of the apprehended effect of the second judgment in Lewis
Stores.22 For completeness, and even though it will entail some repetition, it might
therefore be useful also to point out very briefly that in any event the considerations
in respect of so- called ‘statutory appeals’ identified in paras 50-56 of that judgment
as ‘reasons’ or ‘points of principle’ in support of the court’s determination that an
appeal from the National Credit Tribunal to the High Court should be characterised
as coming before that court as a court of first instance, and not on appeal within the
meaning of s 16(1)(b), do not apply in respect of appeals from a tax court.
[36] In that regard it bears reiteration that the nature of an appeal from a tax court
is indistinguishable from that of an appeal from a matter heard in the High Court by a
single judge. It is an appeal in the ordinary strict sense described in Tikly , the tax
court is a court of record, and the appeal is not a review . Unlike the case in some of
the statutory appeals referred to in Lewis Stores, characterising an appeal from a tax
court as one within the meaning of the Superior Courts Act does not bring about any
conflict or tension between that Act and the TAA . On the contrary, as already
discussed, the TAA expressly makes relevant provisions of the Superior Courts Act
and the rules of court pertaining to forensic appeals applicable. I consider that for
reasons analogous to those given by Trollip JA in Gentiruco AG v Firestone SA (Pty)
Ltd 1972 (1) SA 589 (A)
23 in respect of the court of the Commissioner of Patents
under the (since repealed) Patents Act 37 of 1952, proceedings before a tax court
are not susceptible to review and any vitiating grounds of objection to a decision of
22 In a post-hearing note from the respondent’s counsel we were referred to a judgment in which a full
court of the Gauteng Division assumed jurisdiction to hear an application for leave to appeal to the
SCA from its decision, apparently in a tax appeal, on the assumption that the second judgment in
Lewis Stores was applicable; see Siyandisa Trading (Pty) Ltd v Commissioner for the South African
Revenue Services [2023] ZAGPPHC 126 (26 July 2023). The correctness of the assumption does not
appear to have been argued, however, and the judgment refusing leave to appeal in that case, which
is all of four paragraphs long, did not investigate the point. The judgment in Siyandisa in any event
proceeded from the premise that a tax court was an ‘administrative tribunal’ (see para 1), which, if
correct, would be adversely dispositive of the respondent’s contention in the current case that it is a
court of law and consequently weigh against the granting of leave to appeal. None of the issues
argued before us appear to have been ventilated before the court in Siyandisa, with the effect that
counsel’s reference to that case has not been of any substantive assistance. We are not aware of, nor
were we referred to, any other case in which a full court has purported to have jurisdiction to entertain
an application for leave to appeal to the SCA against the full court’s judgment in an appeal in terms of
s 133 of the TAA.
23 At p. 600E-602H.
14
the court must be advanced exclusively by way of an appeal in terms of s 133 of the
TAA. The anomalous situation posited in para 54 of Lewis Stores therefore, unlike
the position in respect of appeals in terms of s 148 of the National Credit Act, cannot
arise in the context of appeals in terms of s 133 of the TAA.
[37] As the second judgment in Lewis Stores points out, ‘special leave’ to appeal
‘imposes a more stringent test for the grant of leave to appeal. There must be both
reasonable prospects of success and compelling circumstances justifying the grant
of special leave’ . The judgment also explains that the object served by the
requirement of special leave is the promotion of the public interest in finality in
litigation. The requirement applies when a matter has already been considered on
appeal by a full court of the High Court and a party wishes to take it on further appeal
to the SCA. The public interest in the finality of tax -related litigation is self-evident. It
would therefore be an anomaly, bordering on absurdity, if the object of the relevant
provisions of the TAA which, as highlighted earlier, have been framed in a manner to
treat an appeal from a tax court to a full court for procedural purposes in the same
manner as an appeal from the judgment of a single judge of the High Court were not
interpreted and understood in the same way in respect of any further appeal to the
SCA.
[38] For all of the foregoing reasons, Lewis Stores does not assist the respondent.
[39] In the circumstances , we have no reason to address the merits of the
application for leave to appeal. Suffice it to say , however, that it should be evident
from our judgment in the principal proceedings that the respondent’s contention that
the tax courts are courts of law goes against the weight of authority and we consider
that it would be difficult for a further court of appeal to uphold the contention in the
face of the finding by the Constitutional Court in Metcash that appeals to the special
tax courts involve a first level of adjudication that takes place ‘outside the normal
forensic hierarchy’.
24 It is clear that by ‘the normal forensic hierarchy’ the Court
meant the hierarchy of the courts identified in s 166 of the Constitution, viz. the
courts of law in the judicial system. Those considerations would have weighed
24 In para 43 and 47.
15
heavily with us had this court been vested with the jurisdiction to decide the
application for leave to appeal. The respondent’s counsel stressed that the
characterisation of the tax courts was a matter of public interest sufficiently
compelling to warrant the attention of a higher court. Whilst it may indeed be a
matter of public interest, the prospects of success ‘ remain vitally important and are
often decisive’ when evaluating whether there is a compelling reason why an appeal
should be heard; see Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd [2020]
ZASCA 17 (25 March 2020); [2020] 1 All SA 1 (SCA); 2020 (2) SA 19, para 2.
[40] The appellant is entitled to her costs in the abortive proceedings. In the post-
hearing written submissions we invited after having been alerted by counsel to the
effect of the recently introduced rule 67A(3) read with rule 69 of the Uniform Rules,
the appellant’s attorney submitted that the appellant’s costs entitlement should be
determined on Scale C, whereas the respondent’s counsel submitted that it would be
appropriate to determine them on Scale B. It seems to us , having regard to the
nature of the questions involved and the seniority of counsel appropriately engaged
by the respondent, that the costs should be awarded on Scale B.
[41] An order is made in the following terms:
The respondent’s application for leave to appeal is struck from the roll with
costs on Scale B, such costs to include the costs incurred by the appellant in
raising an objection to this Court’s jurisdiction to decide the application.
A.G. BINNS-WARD
Judge of the High Court
L. NUKU
Judge of the High Court
H. SLINGERS
Judge of the High Court
APPEARANCES
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Appellant’s counsel: P. Tredoux
Instructed by: Deon Perold & Associates Inc
Kenilworth
Cape Town
Respondent’s counsel: F. Southwood SC
C.A.A. Louw
Instructed by: DM5 Incorporated
Cape Town