About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 371
|
|
Southern Ambition 1942 CC and Another v Commissioner for the South African Revenue Service (5808/2021) [2024] ZAFSHC 371 (15 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable / Not
reportable
Case no: 5808/2021
In
the matter between
SOUTHERN
AMBITION 1942 CC
FIRST
APPLICANT
MAHLOENYENG
TRADING (PTY) LTD
SECOND
APPLICANT
and
THE
COMMISSIONER FOR THE SOUTH
AFRICAN
REVENUE SERVICE
FIRST
RESPONDENT
Neutral citation:
Southern Ambition 1942 CC and Another v The Commissioner for the
South African Revenue Service
Coram: Chesiwe J
Heard:
On the papers as per the directive with heads of argument
filed on 11 October 2024 and 18 October 2024 respectively.
Delivered:
This judgment was handed down in open court and
electronically by circulation to the parties’ representatives
by email and
released to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 15 November 2024
Summary:
Application
for leave to appeal –
Non-compliance with
the provisions of s 89 and s 96(1) (a) and (c) of the Customs and
Excise Act 91 of 1964
-
Test to be applied, reasonable prospects of success – Leave to
appeal sought and to be heard by the Full Bench of the Free
State
Division of the High Court.
ORDER
1.
The application for leave to appeal to the Full Bench of this
Division is dismissed with costs.
LEAVE TO APPEAL
JUDGMENT
Chesiwe J
[1]
The Applicant seeks leave appeal to the full bench of
this Division
against the whole judgment and order issued on 27 June 2024. The
application is opposed by the Respondent.
[2]
The grounds of this application for leave to appeal are
listed in the
application and will therefore no be repeated herein.
[3]
The
Applicant contends that there are reasonable prospects that another
court would find that the court
aquo
erred in dismissing its application for condonation and upholding the
special plea of the Respondent. The Respondent contends
that
the Applicant has not shown that another court would come to a
different conclusion and has thus failed to meet the high threshold
set in the leave to appeal application and did not make out
a case in terms of s 17 of the
Superior
Courts Act
[1]
.
[4]
In terms of the provisions of s 17(1) of the Superior
Court’s
Act, leave to appeal may only be granted if the judge concerned is of
the opinion that:
1.
The appeal would have a reasonable prospects of success or if there
are some compelling reasons why leave
should be granted;
2.
The decision sought on appeal does not fall within the ambit of s
16(2)(a) of the Act;
3.
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.
[5]
This court
in the unreported case of
Matoto
v Free State Gambling and Liqour Authority and Others
[2]
said
the following:
“
There can be no
doubt that the bar for granting leave to appeal has been raised.
Previously, the test was whether there was a reasonable
prospect that
another court might come to a different conclusion. Now, the use of
the word ‘would’ indicates a measure
of certainty that
another court will differ from the court whose judgment is sought to
be appealed against.”
[6]
In
Smith
v S
[3]
,
the court dealt with the question of what constitutes reasonable
prospects of success as follows:
“
What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial Court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.”
[7]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[4]
,
the court held as follows:
“
[16] Once again it
is necessary to say that leave to appeal, especially to this court,
must not be granted unless there truly is
a reasonable prospect of
success.
Section 17(1)(a)
of the
Superior Courts Act 10 of 2013
makes
it clear that leave to appeal may only be given where the judge
concerned is of the opinion that the appeal
would
have a
reasonable prospect of success; or there is some other compelling
reason why it should be heard.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There
must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[8]
From the application it appears that the Applicant relies
on
s 17
(1)(a)(i) of the
Superior Courts Act.
[9
]
The Applicant relies on several grounds as mentioned
in the
leave to appeal application and its assertion that
the appeal would have a reasonable prospect of success.
Most of
the grounds sought to be relied upon are essentially a rehash of the
case as set out in the pleadings and fully argued
and dealt with in
my judgment.
[10]
In the main application, this court was called upon to adjudicate
upon the
following issues:
1.
The
application for condonation in terms of
s 89
(2)(a) and (3) read with
section 96 (1) of the
Customs
and Excise Act
[5]
;and
2.
Whether there was a notice in terms of s 96
(1)(c)(i) of the Customs
and Excise Act as well as the special plea raised by the Respondent.
[11]
The issues raised in these grounds, entail a revisit to the seriously
contended
issues in which the Applicant contends that there are
prospects of success. In an application for leave to appeal, the
Applicant
is not precluded to revisit the issues provided that the
court is satisfied that there are reasonable prospects that the
factual
matrix would receive a different interpretation by another
court.
[12]
The Applicant’s non-compliance with the provisions of s 89 and
s 96(1)
(a) and (c) of the Customs and Excise Act cannot be ignored
nor disregarded, for the mere fact that the special plea was served
as early as 28 March 2022. The Applicant delayed for a period
of two years. Furthermore, the Applicant has failed to
show
that the Commissioner refused to extend the expiry period and not
show the required notice in terms of s 96 of the Customs
and Excise
Act.
[13]
Based on the submissions of the Applicant and those of the
Respondent, indeed,
the bar has been raised for granting leave to
appeal against the judgment of a High Court. In my view I am inclined
to agree with
the submissions of the Respondent.
[14]
I am therefore of the considered view that the application is without
merit
and that the Applicant has not shown that there are reasonable
prospects that another court would come to a different conclusion.
[15]
I accordingly make the following order:
1.
The application for leave to appeal to the
Full Bench of this
Division is dismissed with costs.
S. CHESIWE, J
Appearances
On
behalf of the Plaintiff:
Adv.
M D J Steenkamp
Instructed
by:
Jacobs
Fourie Inc.
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
W N Mothibe
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
[1]
Act 10 of 2013
[2]
(
4629/2015)
[2017] [ZAFSHC] 80 (8 June 2017)
[3]
2012(1) SACR 567 (SCA) at para [7]
[4]
(1221/2015)
[2016] ZASCA 176
(25 November 2016)
[5]
Act
91 of 1964