CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 104/23

In the matter between:


COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE SERVICE First Applicant

CHAIRPERSON OF THE EXCISE APPEAL COMMITTEE Second Applicant

and

RICHARDS BAY COAL TERMINAL
(PTY) LIMITED Respondent



Neutral citation: Commissioner for the South African Revenue Service and Another
v Richards Bay Coal Terminal (Pty) Ltd [2025] ZACC 3

Coram: Maya CJ, Madlanga ADC J, Kollapen J, Majiedt J, Mathopo J,
Mhlantla J, Rogers J, Tolmay AJ and Tshiqi J


Judgment : Kollapen J (unanimous)

Heard on: 5 August 2024

Decided on: 31 March 2025

Summary: Customs and Excise Act 91 of 1964 — tariff determination —
section 47(9)(e) — wide appeal — review in terms of Promotion
of Administrative Justice Act 3 of 2000, section 33 of the
Constitution, or alternatively, the principle of legality — rule 53
record — rule 30A application —— review juri sdiction —
whether taxpayer confined to a wide appeal .

2

ORDER



On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, KwaZulu -Natal Division, Durban ):
1. Leave to appeal is granted.
2. The appeal is upheld .
3. The orders of the High Court and the Supreme Court of Appeal are set aside
and substituted with the following :
“(a) The application in terms of rule 30A is referred to the High Court for
redetermination and, in doing so, the High Court is required to —
(i) determine whether , regard being had to the existence of a wide
appeal under section 47(9)(e) of the Customs and Excise Act
91 of 1964 , the respondent has made out a case justifying the
exercise of that Court’s review jurisdiction.
(ii) make an order arising from that determination and of the kind
contained in [145] of this judgment. ”
4. The parties are ordered to pay their own costs in this Court, the
Supreme Court of Appeal and the High Court.




JUDGMENT




KOLLAPEN J (Maya CJ, Madlanga ADC J, Majiedt J, Mathopo J, Mhlantla J,
Rogers J, Tolmay AJ and Tshiqi J concurring):


KOLLAPEN J
3 Introduction
[1] This is an application for leave to appeal against the judgment and order of the
Supreme Court of Appeal , which dismissed an appeal by the applicants against a
judgment of the High Court of South Africa, Kwa Zulu-Natal Division, Durban
(High Court).

[2] This appli cation arises in a challenge against a tariff determination in terms of
the Customs and Excise Act1 (CEA). In an interlocutory application under rule 30A2
of the Uniform Rules of Court (Uniform Rules) , the respondent , Richards Bay Coal
Terminal (Pty) Limited (RBCT) , sought to have the applicants , the Commissioner of
the South African Revenue Service (Commissioner) and the Chairperson of the Excise
Appeal Committee, comply with a rule 30A notice to furnish a record in terms of
rule 533 or alternatively documents4 constituting the record pursuant to rule 35(11).5 I
will refer to the applicants collectively as “SARS”. RBCT is a coal export terminal
owned by South Africa’s major coal exporters.


1 91 of 1964.
2 Rule 30A headed “Non -compliance with Rules and Court Orders” states as follows:
“(1) Where a party fails to comply with these rules or with a request made or notice given
pursuant thereto, or with an order or direction made by a court or in a judicial case
management process referred to in rule 37A, any other party may notify the defaulting
party that he or s he intends, after the lapse of 10 days from the date of delivery of such
notification, to apply for an order –
(a) that such rule, notice, request, order or direction be complied with; or
(b) that the claim or defence be struck out.
(2) Where a party fail s to comply within the period of 10 days contemplated in subrule (1),
application may on notice be made to the court and the court may make such order thereon as it
deems fit.”
3 Rule 53 is headed “Reviews” and its main purpose is to regulate and facilitat e review applications. It allows a
party to obtain the record of proceedings underlying the impugned administrative action so as to assist that party
in prosecuting their review application. Rule 53(1) is discussed later in this judgment.
4 RBCT sought, amongst others, correspondence, memoranda, advice, recommendations, evaluations and internal
deliberations as part of the record.
5 Rule 35 is headed “Discovery, Inspection and Production of Documents”. Rule 35(11) empowers the court to
order the producti on of documents upon request of a party and which are in the control of the counterparty. The
documents may relate to any matter in the proceeding, and when produced, the court may deal with the documents
in any way it deems appropriate. Rule 35(11) is d iscussed later in this judgment.
KOLLAPEN J
4 [3] SARS refus ed to comply on the basis that they did not consid er RBCT ’s
challenge to the tariff determination a review , but rather , an appeal under
section 47(9)(e) of the CEA. Section 47(9)(e) states:

“An appeal against any such determination shall lie to the division of the High Court
of South Africa having jurisdiction to hear appeals in the area wherein the
determination was made, or the goods in question were entered for home
consumption.”6

[4] The dispute at the heart of this matter is whether SARS must be compelled to
produce the rule 53 record. To resolve that dispute , this Court must determine whether ,
in a challenge to a tariff determination in terms of the CEA, a taxpayer is limited to a
so called “wide appeal” under section 47(9)(e) of the CEA; and, if not, whether the
taxpayer can , in the alternative or separately , challenge the tariff determination by way
of a judicial review . If a taxpayer can challenge the tariff determination by way of a
judicial review in these circumstances , this Court must determine how a court deal s
with the se different modali ties of relief that a taxpayer may invoke .

Factual background
[5] In a budget speech in 2001 , the then Minister of Finance, Mr Trevor Manuel,
announced the introduction of a diesel fuel concession scheme that applied to sectors of
the economy where diesel fue l was used off -road. It entailed a refund of the fuel levy
and the Road Accident Fund levy. This was to ensure that entities that utilise rail to
haul freight do not subsidise those entities who utilise road haulage to do so.

[6] RBCT’s core business is to receive coal from mines, stockpile it, and then load
the coal onto vessels for export. Coal is hauled by Transnet Freight Rail (TFR) to a
private siding on RBCT’s premises in rail wagons. These wagons are then coupled to

6 The determination referred to in the section is one made regarding the payment of customs and excise duty and
rate of duty payable on goods in terms of the CEA. The determination under section 47(9) is one made by the
Commissioner, in writing, regarding the tariff headings, subheadings or items under which goods will be
classified, the use of such goods in accordance with the Schedules to the CEA, and related matters.
KOLLAPEN J
5 RBCT -owned diesel locomotives and hauled to tandem tipplers, which discharge the
coal from the wagons onto conveyor belts. The wagons are then returned to the siding
by the same diesel locomotives. TFR collects the empty wagons. RBCT took
advantage of the afo rementioned diesel fuel concession scheme and successfully
claim ed refunds on the diesel fuel used by its locomotives within its internal rail
network.

[7] The main application relates to the decisions taken as part of an audit, and later
in an administrative appeal, that SARS was entitled to recover the diesel rebates that
had been claimed and retained by RBCT. SARS informed RBCT of its intention to
conduct an audit in a letter dated 15 August 2017. On 5 October 2017, SARS’ audit
team then informed RBCT of its prima facie view that RBCT had claimed refunds for
a “non -qualifying activity” under Note 6 to Part 3 of Schedule 6 of the CEA. According
to SARS, Note 6(b)(iv) and Note 6(o) allow for diesel refunds to be claimed on
locomotives “used for hauling rail freight”, which must mean, in their view, that there
must be hauling of rail freight by the user or taxpayer. On this basis, SARS found that:

“As per the information noted at our meeting and per the Service Level Agreement
with the TFR, it was ascertained that the taxpayer does not conduct qualifying rail
freight activity, as they do not conduct any ‘real’ hauling of freight, but merely operate
as a materials hauling agent .” (Emphasis added .)

[8] As a consequence, SARS notified RBCT of its intention to disallow the refunds
claimed for the March 2013 to August 2017 audit period. SARS also informed RBCT
that it might demand payment of interest on any amount of fuel levy or Road Accident
Fund levy which SARS was recover ing, as it was in excess of the amount due or had
not been duly refundable to RBCT in terms of section 75(1A)(f) of the CEA and the
provisions of the Va lue-Added Tax Act7 (VAT Act) .


7 89 of 1991.
KOLLAPEN J
6 [9] In a letter dated 15 November 2017, RBCT made representations to SARS’ audit
team on why SARS ’ view that RBCT was a mere “materials hauling agent” , and was
not involved in “real” haulage , was incorrect. RBCT contended that i f the coal was left
at the arrivals yard , its export would not be possible. It was necessary to take the coal
into its facility to complete the supply chain. Hence, RBCT argues, whilst RBCT is
conducting an aspect of materials handling, haulage of the co al is an integral aspect of
RBCT’s activities. Therefore, a freight activity is taking place. RBCT f urther
contended that the route it completed within its internal network d id not result in any
duplication of any part of the route undertaken by TFR and c ould, therefore, not be
considered as non -value adding. Had TFR brought trains directly to the tandem tippler ,
the entire process would be deemed haulage of freight and be elig ible for the diesel fuel
rebate. In this case, there is a freight leg being performed by RBCT and this should not
change the nature of the function.

[10] The determination in dispute here relates to a decision taken by SARS on
4 December 2017 , when it issued a letter of demand stating that RBCT failed to comply
with the diesel refund provisions under section 75 of the CEA , and that RBCT’s use of
diesel did not fa ll within the class set out in Note 6(b)(iv) read with Note 6(o) of Part 3
of Schedule 6 of the CEA . It demanded that RBCT repay an amount of R7 126 934.63,
plus interest. SARS’ decision constituted a tariff determination and was thus subject to
an appeal in terms of section 47(9)(e) of the CEA (the determination) .

[11] RBCT filed a request for reasons to which SARS responded on 23 April 2018.
On 6 June 2018, RBCT lodged an internal appeal against the decision in terms of
section 77 of the CEA . As part of its appeal , RBCT alleged that SARS had informed it
of a “secret” policy directive from the National Treasury (Treasury) which RBCT
claims motivated a change of position from SARS. The internal appeal was rejected by
the Excise Appeal Committee on 7 February 2019 without reasons and a request for
reasons on 14 March 2019 met with no response.

KOLLAPEN J
7 Litigation history
High Court
[12] On 26 November 2019, RBCT brought an application in the High Court seeking
the following relief:
(a) that the following decisions are declared unconstitutional and unlawful:
(i) the decision taken by the Excise Appeal Committee on
7 February 2019, sitting as an Internal Administrative Appeal
Committee of SARS, rejecting RBCT’s appeal and confirming the
determination issued by SARS on 4 December 2017; and
(ii) SARS ’ decision of 4 December 2017 to issue the determination
referred to above;
(b) alternative ly, that the decisions referred to above be reviewed and set
aside.

[13] In its founding affidavit, RBCT relie d on:
(a) its right of appeal in terms of section 47(9)(e) of the CEA , insofar as the
determination constitutes an incorrect determination by SARS of the
relevant rebate item under Schedule 6;
(b) its right of review under section 33 of the Constitution read with the
Promotion of Administrative Justice Act8 (PAJA ); and
(c) its right to review the impugned decision on the grounds of legality, if the
decisions were not administrative action.

[14] RBCT therefore sought to challenge the determination through the pathway of a
statutory appeal ( section 47(9)(e)) and through two alternative pathways of judicial
review (PAJA review and legality review).

[15] The ground s of appeal advanced by RBCT were that: (a) SARS had misdirected
itself on the law insofar as its rail haulage was a qualifying activity under the diesel

8 3 of 2000.
KOLLAPEN J
8 rebate scheme on its interpretation of “rail freight” and “hauling rail freight” ; and
(b) SARS had misdirected it self on the facts by incorrectly interpreting a service level
agreement between RBCT and TFR, and incorrectly characterising RBCT’s freight
hauling operation as an “incidental material handling” operation.

[16] The grounds of review advanced by RBCT include d the following:
(a) section 6(2)(a)(i) of PAJA and/or the principle of legality , in that SARS
was not empowered to depart from its prior decision to permit RBCT to
participate in the diesel rebate scheme by refusing to allow rebates in
respect of the very acti vity for which registration had been permitted;
(b) section 6(2)(d) of PAJA and/or the principle of legality , in that the
decision was materially influenced by an error of law regarding RBCT’s
role in the haulage operation;
(c) section 6(2)(d) of PAJA and/or the p rinciple of legality , in that the
decision was materially influenced by errors of fact regarding the nature
of RBCT’s activities in the haulage operation;
(d) section 6(2)(e)(iii) of PAJA and/or the principle of legality , in that
irrelevant considerations , including an improper interpretation of the
service level agreement , were taken into account in SARS’ determination
that RBCT’s conduct was merely “incidental material handling”;
(e) section 6(2)(e)(iii) of PAJA and/or the principle of legality , in that SARS
failed to consider a purposive and constitutionally compliant
interpretation of the CEA and its Schedule s;
(f) section 6(2)(f)(ii) of PAJA and/or the principle of legality , in that SARS’
interpretation and ultimate decision were irrational and arbitrary; and
(g) section 6(2)(i) of PAJA and/or the principle of legality , in that the
determination was otherwise unconstitutional or unlawful.

[17] The review grounds advanced by RBCT in the alternative , and also in substance ,
challenged the correctness of the determination . RBCT admit ted in its
KOLLAPEN J
9 founding affidavit that “[t]o a large extent, the grounds of review overlap with the
grounds of appeal” .

[18] On 24 January 2020, SARS informed RBCT that it did not consider the matter a
review but instead a “wide” appeal under section 47(9)(e) of the CEA and refused to
deliver the record . This prompted RBCT t o serve a rule 30A notice demanding SARS’
compliance with rule 53, alternatively rule 35(11). SARS persisted in its refusal , and
in response, RBCT launch ed an interlocutory applicati on to obtain the record.

[19] Before the High Court , the issue was whether the appeal remedy provided in
section 47(9)(e) of the CEA oust s the remedy of review . It is common cause that
section 47(9)(e) of the CEA provides for an appeal in the wide sense , name ly a complete
rehearing of the matter, as opposed to a review or appeal in the strict sense. The
High Court held that a review of a tariff determination is competent .9 It relied on BCE10
which , as the High Court understood it, held that litigants are not confined to a
section 47(9)(e) appeal because there is no explicit ouster of other remedies under the
CEA . Therefore , all other usual avenues of relief remain, including review rights . As
in BCE , the High Court relied on Madrassa Anjuman Islamia11 where the principle was
formulated in this way :

“If it be clear from the language of a statute that the Legislature, in creating an
obligation, has confined the party complaining of its non -performance, or suffering
from its breach, to a particular remedy, such party is restricted thereto and has no further
legal remedy; otherwise the remedy provided by the statute will be cumulative.”12


9 Richards Bay Coal Termi nal (Pty) L td v Commissioner for the South African Revenue Service , unreported
judgment of the High Court of South Africa, KwaZulu -Natal Division, Durban, Case No D10030/2019
(12 August 2021) (High Court judgment).
10 BCE Food Service Equipment (Pty) Ltd v Commissioner for the South African Revenue Service unreported
judgment of the High Court of South Africa, Gauteng Division, Johannesburg, Case No 27898/2015
(12 September 2015) .
11 Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718.
12 Id at 727.
KOLLAPEN J
10 [20] The High Court held that the exclusion of its review jurisdiction would have to
be express or at least necessarily implied. This c ould not be lightly inferred.
Section 47(9)(e) of the CEA does not contain any language to this effect , nor could such
a construction be placed on the provision. The High Court relied upon the distinction
drawn in BCE between BCE itself on the one hand, and Pahad Shipping13 and
Levi Strauss14 on the other, holding that the latter matters did not deal with instances
where review proceedings had been instituted and the principles enunciated there were
therefore not directly applicable in this context.

[21] The High Court concluded that its review jurisdiction was not excluded and
ordered SARS to comply with rule 53(1)(b) within ten days. Since SARS conceded
that if the High Court were to conclude that it had jurisdiction to hear the review it
would be obliged to produce the record , the High Court did not consider whether
production of the record and the documents sought by RBCT could be compelled
pursuant to the provisions of rule 35(11).

[22] The High Court granted SARS leave to appeal against its judgment and order to
the Supreme Court of Appeal.

Supreme Court of Appeal
[23] The Supreme Court of Appeal observed that this Court’s judgment in Standard
Bank15 assist ed it in two respects. First, an order compelling a respondent in a review
to deliver the record o f its decision in terms of rule 53 was appealable. Second, the
court could only order the production of the record of a decision under rule 53 after it
had determined that it ha d jurisdiction in the review.16

13 Pahad Shipping CC v Commissioner for the South African Revenue Service [2009] ZASCA 172; [2010] 2 All
SA 246 (SCA).
14 Levi Strauss SA (Pty) Ltd v Commissioner for the South African Revenue Service , unreported judgment of the
High Court of South Africa , Gauteng Division, Pretoria, Case No 20923/2015 (2 May 2017).
15 Competition Commission of South Africa v Standard Bank of South Africa [2020] ZACC 2; 2020 (4) BCLR 429
(CC).
16 Id at paras 118-19.
KOLLAPEN J
11
[24] The Supreme Court of Appeal said that the notice of motion did not necessarily
conduce to clarity insofar as the review was advanced in the alternative to the appeal.
Thus, if the appeal were to succeed , the High Court might notionally simply not get to
the review. RBCT thus opened the door to a fractional disposal of issues and the
piecemeal hearing of appeals. The Court , however , proceeded to express a view on the
availability of a review given the discordant High Court judgments on the issue , the
interest s of the litigants before it and future litigants, and the public interest in the Court
expressing a view on the point raised .

[25] It said that the appeal before it turned on the issue of whether an aggrieved
taxpayer seeking to challenge a tariff determination in terms of the CEA was confined
to the remedy of a n appeal under section 47(9)(e) of the CEA. Considering Tikly ,17 the
Supreme Court of Appeal held that SARS’ contention (that RBCT is confined to the
remedy of a wide appeal ) was essentially a question of statutory construction. It framed
the issue before it as: “ does the fact that the CEA creates a tailor -made remedy,
necessarily exclude a taxpayer’s right of review?”18

[26] It considered SARS’ reliance on Distell HC.19 There, the High Court held that
since “an appeal in terms of sectio n 47(9)(e) is an appeal ‘in the wide sense ’, i.e. a
complete rehearing of the whole issue, there is simply no need to resort to the
corresponding provisions of PAJA” .20 It held that SARS’ reliance on this holding was
misplaced because th e holding was made in a context where neither party sought
judicial review relief. It held further that w hen Distell HC was taken on appeal in
Distell SCA,21 the dispute was about the correctness of the tariff classification on the

17 Tikly v Johannes N.O. 1963 (2) SA 588 (T) at 590G -591A.
18 Commissioner for the South African Revenue Service v Richards Bay Coal Terminal (Pty) Ltd [2023]
ZASCA 39 at para 11 (Supreme Court of Appeal judgment).
19 Distell Ltd v Commissioner for the South African Revenue Service , unreported judgment of the High Co urt of
South Africa, Gauteng Division, Pretoria, Case No A.1274/06.
20 Id at para 35.
21 Distell Ltd v Commissioner for the South African Revenue Service [2010] ZASCA 103; [2011] 1 All SA 225
(SCA).
KOLLAPEN J
12 merits. Therefore, it found that the High Court and the Supreme Court of Appeal in
Distell did not give, nor w ere they required to give, any consideration to whether a
review was ousted by the appeal provisions in the CEA.

[27] The Supreme Court of Appeal considered the dictum in BCE , where the
High Court held that there was no indication in the CEA that the provisions of PAJA
had been ousted and that an aggrieved taxpayer is limited to the appeal procedure
provided for in the CEA.22 It noted that in BCE , the applicant elected not to pursue any
rights of appeal that it may have had under section 47(9)(e) of the CEA, preferring
instead to confine itself to a review of SARS’ decision. It further made reference to
what this Court said in Metcash23 in relation to sections 33 and 33A of the VAT Act,
namely that “[t]he Act creates a tailor -made mechanism for redressing complaints about
the Commissioner’s decisions, but leaves intact all other avenues of relief” .24

[28] It also considered the decision of the High Court in Cell C,25 where the
High Court concluded tha t while it had jurisdiction to hear a review of a tariff
determination , there was no need for a review when a wide appeal was available. The
High Court in Cell C dismissed Cell C’s rule 30A application to compel the production
of the rule 53 record , holding :

“It is clear from the above that the court’s general review jurisdiction is not ousted, but
in the light of the ambit of a wide appeal the need for a review falls away when such
an appeal is available. The court can, as was illustrated above, e xercise its own
discretion and substitute its decision on all grounds with that of the Commissioner. To
allow a wide appeal and a review in these circumstances will also result in the remedies
to be cumulative and will lead to confusion . . . The fact of the matter is that the CEA
does not require the Commissioner to keep a record or give reasons , as was said in

22 BCE above n 10 at para 7.
23 Metcash Trading Ltd v Commiss ioner for the South African Revenue Service [2000] ZACC 21; 2001 (1) SA
1109 (CC); 2001 (1) BCLR 1 (CC).
24 Id at para 33.
25 Cell C (Pty) Ltd v Commissioner for the South African Revenue Service 2022 (4) SA 183 (GP).
KOLLAPEN J
13 Pahad . Accordingly it would not be appropriate for a court to compel the
Commissioner to provide a record where he is not legally required to kee p one.”26

[29] The Supreme Court of Appeal held that the conclusion reached by the
High Court in Cell C cannot be supported. Citing Zondi ,27 it held28 that PAJA was not
ordinary legislation and that consideration must first be given to whether the provisions
of an Act that authorise administrative action can be read in a manner that is consistent
with the Constitution.29

[30] It relied on this Court’s judgment in Metcash , which held that the mere fact that
a taxpayer has a statutory appeal against a decision of SARS does not preclude such
taxpayer from instituting a review against that decision. It further underscored the
importance of discovery as a means of uncovering the truth, and emphasised that
disclosure of rec ords is important to ensure openness and accountability.30

[31] The Supreme Court of Appeal held that SARS’ stance was misconceived. A
review sought to vindicate the right to administrative action . SARS’ view undermined
the principle that administrative bodies should be held accountable for their actions. It
held that disclosure of the record is essential to give effect to the right afforded to
litigants by section 34 of the Constitution . It further held that the reasoning and
information on which the determination was made , of which only SARS is aware , and
SARS’ refusal to provide such reasons, were core issue s which arose in this matter . It
asked how RBCT c ould meaningfully raise grounds resemb ling grounds of review
without the benefit of the record.


26 Id at para 36.
27 Zondi v MEC for Traditional and Local Government Affairs [2004] ZACC 19; 2005 (3) SA 589 (CC); 2005 (4)
BCLR 347 (CC).
28 Supreme Court of Appeal judgment above n 18 at para 19.
29 Zondi above n 27 at paras 101-2.
30 Helen Suzman Foundation v Judicial Service Comm ission [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR
763 (CC) at paras 64-8 and 77.
KOLLAPEN J
14 [32] The Supreme Court of Appe al held that i t was unclear why SARS refused to
disclose the record and that the prejudice to RBCT was self-evident . It concluded that
the appeal must fail and dismissed it with costs.

Submissions in this Court
SARS’ submissions
Jurisdiction and leave to appeal
[33] SARS submits that the matter engages this Court’s constitutional and general
jurisdiction . It submits that the three constitutional issues at play are : (a) the
interpretation of section 47(9)(e) of the CEA in a manner that takes into account the
spirit, purport and objects of the Bill of Rights, as required by section 39(2) of the
Constitution ; (b) RBCT’s right to just administrative action under section 33 of the
Constitution and how that right is affected by the application of section 47(9)(e) ; and
(c) the exercise of public power by SARS which implicates the rule of law under
section 1 of the Constitution.

[34] On this Court’s general jurisdiction , SARS submits that a pure question of law
is before us : whether a taxpayer seeking to challenge a tariff determination under the
CEA is confined to the remedy of an appeal under section 47(9)(e) , or whether such
taxpayer may also challenge the tariff determination by way of judicial review.
Moreover, this matter is of general public importance because it will impact the rights
of all taxpayers who want to challenge a tariff determination and also has vast
implications for the administration of justice, the efficie ncy of trade, revenue for the
fiscus and judicial resources.

[35] SARS submits that it is in the interests of justice for this Court to grant leave to
appeal for three main reasons. First, there is a need for clarity and finality on this issue
as courts in fo ur other matters31 have considered it and have arrived at conflicting

31 Distell HC above n 19; BCE above n 10; Cell C above n 25; High Court judgment above n 9; and
Supreme Court of Appeal judgment above n 18.
KOLLAPEN J
15 decisions. Second, the issue extends beyond the interest s of the parties in this case
because it will determin e the manner in which all future tariff determinations may be
challenged . Third, the appeal has good prospects of success because of the divergent
views expressed by the lower courts on this issue .

Merits
[36] Citing Standard Bank , SARS argues that the first issue to determine is whether
the High Court had jurisdiction to entertain R BCT’s review application. It contends
that a party cannot be compelled to produce a rule 53 record when the review
jurisdiction of the court is in dispute , as it argues i t is in this matter. SARS concedes
that it must provide the record if the review proceedings are competent , but maintains
that they are not.

[37] SARS submits that this matter is primarily one of statutory interpretation. It
contends that the institutional context and practical purpose of the CEA indicate that
decisions subject to statutory appeal cannot also be subject to judicial review . Tariff
determinations are made by SARS officials with constrained resources and limited
capacity. The CEA caters for this by requiring self -reporting and self -assessment,
deeming any amount due in terms of a tariff determination to be correct pending appeal
and allowing for the later correction of a determination . Additionally, SARS submits
that the provisions of Chapter XA dealing with internal administrative appeals are not
obligatory, indicating that taxpayers are entitled to appeal directly to the High Court.
SARS is not required to hear evidence, give reasons for its determination or keep any
record of the proceedings. The circumstance s surrounding the decision -making process
therefore make the fresh determination in a wide appeal granted by section 47(9)(e)
necessary to ensure that the determination is correct.

[38] SARS argues that section 47(9)(e), in allowing a de novo wide appeal, precludes
a review for four reasons. First, as it was held in Levi Strauss ,32 it is a necessary

32 Levi Strauss above n 14 at para 29.
KOLLAPEN J
16 consequence of the scheme of the CEA, due to the fact that tariff determinations are
made on a quick, preliminary basis, subject to a de novo wide appeal with new evidence,
where no deference to the decision -maker is required . It is a remedy “more potent” than
a review , one in which any irregularities in the decision -making process can be
corrected and where a court’s wide appeal remedial powers in clude those available
under a judicial review . A review would subvert this purpose of treating tariff
determinations as provisional, allowing for the first instance decision to be set aside
irrespective of its correctness. Recognising a cumulative right of review and right of
statutory appeal may lead to absurdities in the litigation process, through parallel and
lengthy litigation. In addition, SARS submits that Parliament chose to amend some
sections of the CEA in 2003 to include reference to PAJA, but omitted to mention
review in relation to section 47(9)(e).

[39] Second, following Pahad Shipping , SARS is not required to keep a record of its
decision s, provide a hearing or pr ovide reasons. This applies equally to a
section 47(9)(e) appeal. A record cannot be produced if it need not be kept. Third, due
to the ambit of the appeal, section 47(9)(e) cannot be interpreted as an “oust er” of the
High Court’s review jurisdiction in the sense of excluding a taxpayer from accessing
administrative justice or an effective remedy. Section 47(9)(e) does not leave a
taxpayer without an effective remedy. Instead, parties are given greater entitlements
than they would have in an ordinary r eview. Fourth, it has been a principle of our law
for over a century that where legislation grants an aggrieved party a particular remedy,
that party is required to make use of that remedy before it turns to an alternative remedy
that may be available .

[40] SARS also argues that the Supreme Court of Appeal incorrectly applied this
Court’s judgment in Metcash , where this Court said that no warrant appears to exist for
the conclusion that a taxpayer, who is dissatisfied with a determination by SARS, does
not enjoy the right to review the determination in terms of PAJA. SARS argues that
this was a misapplication of Metcash because the lat ter case dealt with a much narrower
form of appeal under another piece of legislation (the VAT Act). The appeal in Metcash
KOLLAPEN J
17 was an internal (administrative) appeal and not an appeal “in the forensic sense”, which
is very different to the “wide appeal ” in this case.

[41] Finally, SARS submits that RBCT’s reliance on rule 35(11) is without merit.
The record is not relevant to enable RBCT to advance its case and it may not be used
as a means of obtaining discovery prior to each party filing their respective affidavits.

RBCT’s submissions
Jurisdiction and leave to appeal
[42] RBCT does not directly make submission s on jurisdiction. However, it submits
that this Cou rt should refuse SARS’ application for leave to appeal because it is not in
the interests of justice to hear the appeal , and that SARS has no prospects of success.

[43] RBCT argues that SARS’ case does not deal with the narrow question of
entitlement to the rule 53 record , but is an attempt at bringing a “test case” to this Court
in order to settle the law on this issue . But , so contends RBCT, the issue is much broader
than the question that is necessary to resolve the dispute between the parties , and this
Court need not decide the test case (availability of a review) in order to resolve the
narrow question (production of the record) , because the production of the rule 53 record
does not depend on whether RBCT has a right of review or not. It is, so they sugg est,
simply a question of whether the High Court had review jurisdiction, and if it did , the
record must be made available. In RBCT’s view, this is where the matter should begin
and end.

[44] RBCT also submits that , if SARS accepts that grounds of review can be
advanced as grounds of appeal, RBCT must be entitled to a record to advance those
grounds. A record is necessary to protect RBCT’s right to a fair hearing . It suggests
that SARS ought to deliver the record . If, at the end of the High Court hearing on the
merits , there is still a dispute on review jurisdiction, SARS can then run its test case.
Thus, it is not in the interests of justice to grant leave to appeal.
KOLLAPEN J
18
Merits
[45] RBCT submits that SARS’ application is unmeritorious for five main reasons.
RBCT bases its submission s on what was held by this Court in Metcash in relation to
the rights of internal appeal and review under the VAT Act:

“Were it not for this special ‘appeal ’ procedure, the avenues for substantive redress
available to vendors aggrieved by the rejection of their objections to assessments and
decisions by the Commissioner would probably have been common -law judicial review
as now buttressed by the right to just administrative action under s ection 33 of the
Constitution, and as fleshed out in the Promotion of Administrative Justice Act. Here,
however, the Act provides its own special procedure for review of the Commissioner’s
challenged decisions by specialist tr ibunals. But, and this is crucial to an
understanding of this part of the case, the Act nowhere excludes judicial review in the
ordinary course . The Act creates a tailor -made mechanism for redressing complaints
about the Commissioner’s decisions, but it leaves intact all other avenues of relief .”33
(Emphasis added .)

[46] Regarding its first reason why the application lacks merit , RBCT argues that
SARS ’ interpretation is constitutionally offensive and systemically problematic . It
submits that without a right of review, taxpayers will lose the right to challenge SARS
if it acts unfairly or irregularly when making tariff determinations. Not only will this
be unjust, it will also create a system where SARS officials will be able to act with
impunity.

[47] Second, it argues that SARS’ submission that section 47(9)(e) extinguishes a
taxpayer ’s right of judicial review does not accord with the rules of statutory
interpretation and constitutional jurisprudence . SARS’ position, RBCT argues, is in
conflict with —

33 Metcash above n 23 at para 33.
KOLLAPEN J
19 (a) a person’ s right to institute proceedings in a court for the judicial review
of administrative action ;34
(b) the duty on courts to interpret legislation to give effect to the spirit,
purport and objects of the Bill of Rights;35
(c) the duty on courts to declare invalid all administrative acts that are
inconsistent with the right to just administrative action ;36
(d) a taxpayer ’s right to appropriate relief for the violation of their right to
just administrative action;37
(e) a taxpayer’s right to have any dispute resolved by the application of law
before a court;38
(f) the High Court ’s power to decide any matter not assigned to another court
by an Act of Parliament;39 and
(g) the presumption against the ousting of the High Court’s jurisdiction.

[48] Third, and in response to SARS ’ argument that there is no need for review relief
if a correct determination is made under section 47(9)(e), RBCT argues that a “correct
answer on appeal” and a “just and equitable remedy on review” are different types of
remed ies. RBCT contends that a High Court on review has broad er powers when
vindicating the right to just administrative action. Fourth, RBCT argues that SARS’
interpretation assumes that there can only be one correct answer on appeal and also fails
to take i nto account the onus that operates in an appeal.

[49] Finally, RBCT deals with SARS’ reliance on the three cases which it claims
support its submission that section 47(9)(e) extinguishes the right of judicial review.
RBCT submits that those cases were wrong f or the same reasons that SARS’ arguments

34 In terms of s ection 6(1) of PAJA .
35 In terms of section 39 of the Constitution .
36 In terms of section 172(1)(a) of the Constitution.
37 In terms of section 38 of the Constitution.
38 In terms of section 34 of the Constitution .
39 In terms of section 169 of the Constitution .
KOLLAPEN J
20 in this matter are wrong : they fail properly to consider the right to just administrative
action and they are in conflict with the relevant constitutional and statutory principles.
RBCT submits that Distell HC is unhelpful , because the Court made obiter statements
on the availability of a right of judicial review in this context.

[50] It also contends that Cell C was wrong , because, while it appreciates that a
High Court acting as a court of appeal may entertain any gr ound of review, it fails to
recognise that the right to a record and reasons are fundamental to the right of review.40
According to RBCT, i t is therefore unsustainable to recognise the right of review while
refusing the reviewing party’s right to the recor d.

[51] Moreover, RBCT argues that Glencore41 simply adopt ed the reasoning of Cell C
and was therefore incorrect for the same reason. It argues further that since the
Supreme Court of Appeal judgment in the present matter was handed down before
Glencore , the High Court in Glencore was obliged to follow the Supreme Court
of Appeal j udgment, which it failed to do.

[52] At the hearing, counsel for RBCT argued that SARS’ letter of demand dated
4 December 2017 contained three separate decisions, all of which ought to h ave been
subjected to judicial review proceedings . These decisions were —
(a) SARS’ determination that refunds on diesel were not properly claimed
because RBCT’s activities did not fall within the scope of the diesel rebate
scheme (the first decision);
(b) SARS’ d etermination that the effective date for repayment of diesel
rebates should be March 2013 (the second decision); and
(c) SARS’ decision to impose interest on the refunds reclaimed (the third
decision).

40 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113
(CC) at para 185.
41 Glencore Operations SA (Pty) Ltd v Commissioner for the South African Revenue Service , unreported judgment
of the High Court of South Africa, Gauteng Division, Pretoria, Case No 15988/2020 (17 July 2023) at paras 24-
6.
KOLLAPEN J
21
[53] Given the order we intend to make, there is no need for t his Court to make a
determination on the nature and character of these three decisions. I also do not consider
it necessary to determine whether our law distinguishes between discretionary and
non-discretionary decisions. I also leave open the question a s to whether this distinction
would be of any practical assistance to the High Court when conducting an
appropriateness assessment mentioned hereunder . We did not have the benefit of
submissions by RBCT on this issue with reference to domestic authorities or foreign
authorities beyond the two cases decided by the Supreme Court of Canada on
28 June 2024: Dow Chemical42 and Iris Technologies ,43 which I refer to later .

Directions
[54] The Court issued directions on 17 July 2024, drawing the parties’ attention to
Dow Chemical and Iris Technologies . The parties were required to deal with the
possible relevance of the cases at the hearing. SARS submitted a note in response to
the directions issued.

Legal framework
The Constitution
[55] Section 33 of the Constitution provides in relevant part :

“(1) Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.
. . .
(3) National legislation must be enacted to give effect to these rights, and must —
(a) Provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal .”

[56] Section 34 of the Constitution provides:

42 Dow Chemical Canada ULC v Canada 2024 SCC 23.
43 Iris Technologies Inc v Canada 2024 SCC 24.
KOLLAPEN J
22
“Everyone has the right to have any dispute that can be resolved by t he application of
law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum. ”

Customs and Excise Act
[57] A taxpayer who seeks to challenge a tariff determination made under the CEA is
entitl ed to challenge that decision by way of an appeal in terms of section 47(9)(e) . As
noted earlier in this judgment, i t provides that an appeal against a tariff determination
shall lie to the relevant division of the High Court having jurisdiction to hear a ppeals
within the area in which the determination was made or the goods in question were
entered for home consumption .

[58] Chapter XA of the CEA contains provisions on the resolution of disputes arising
out of decisions made in terms of the Act. It contains three parts. Part A provides for
an internal administrative appeal , Part B provides for alternative dispute resolution and
Part C makes provision for the settlement of disputes. Section 77B(1), which is
contained in Part A, provides as follows:

“Any person who may institute judicial proceedings in respect of any decision by an
officer may, before or as an alternative to instituting such proceedings, lodge an
appeal —
(a) to the Commissioner against a decision of an officer; or
(b) to the appeal committ ee contemplated in this Part in respect of those matters
and decisions of officers that the appeal committee is authorised by rule to
consider and decide upon or make recommendations to the Commissioner. ”

PAJA
[59] PAJA is t he national legislation enacted to give effect to the rights under
section 33 of the Constitution. Section 6(1) states that “[a]ny person may institute
proceedings in a court or a tribunal for the judicial review of an administrative action ”.
Section 6(2) lists the circumstances that will activate the court’s power to judicially
KOLLAPEN J
23 review administrative action.44 These circumstances are commonly referred to as the
“grounds ” of review, being the grounds upon which a party may approach a court to
challenge an administrative action. As discussed later in this judgment, the grounds of
review set out in PAJA flow from the requirements of just administrative action set out

44 Section 6(2) of PAJA states:
“A court or tribunal has the power to judicially review an administrative action if —
(a) the administrator who took it —
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which w as not authorised by the
empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an empowering
provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken —
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or rele vant
considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another person or
body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself —
(i) contravenes a law or is not authorised by the emp owering provision; or
(ii) is not rationally connected to —
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function authorised by the
empowering provision, in pursuance of which the administrative action was
purportedly taken, is so unreasonable th at no reasonable person could have so
exercised the power or performed the function; or
(i) the action is otherwise unconstitutional or unlawful.”
KOLLAPEN J
24 in section 33(1) of the Constitution: that administrative action must be “lawful,
reasonable and procedurally fair ”.

Production of documents in civil proceedings
[60] There are two rules of the Uniform Rules which are commonly relied on for
obtaining the production of documents in civil legal proceedings from another litigant .
The first is rule 35 which provides for the discovery, inspection and production of
documents. Its core purpose is to ensure that the parties involved in legal proceedings
are apprised of all the documentary evidence necessary for resolving the dispute and
thus to ensure t he trial is conducted as efficiently as possible.45 Our courts have held
that discovery is unusual in application proceedings, and a court in motion proceedings
should only grant an order under rule 35 in exceptional circumstances.46

[61] The second is rule 53. Its core purpose is to facilitate and regulate applications
for review.47 Rule 53(1) states:

“Save where any law otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior court and of any tribunal, board or of ficer
performing judicial, quasi -judicial or administrative functions shall be by way of notice
of motion directed and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer or chairperson of the court, t ribunal or
board or to the officer, as the case may be, and to all other parties affected —
(a) calling upon such persons to show cause why such decision or proceedings
should not be reviewed and corrected or set aside, and

45 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the
Republic of South Africa [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) at paras 41 -2; Bridon
International GmbH v International Trade Administration Commission [2012] ZASCA 82 ; 2013 (3) SA 197
(SCA) at paras 32 -4; and Owners of MV Banglar Mookh v Transnet Ltd [2012] ZASCA 57; 2012 (4) SA 300
(SCA) at paras 56 -8.
46 Liebman v David N.O. , unreported judgment of the High Court of South Africa, Gauteng Division, Pretoria,
Case No 62628/2021 (21 February 2023) at paras 10-14.
47 Mamadi v Premier of Limp opo Province [2022] ZACC 26; 2023 (6) BCLR 733 (CC); 2024 (1) SA 1 (CC) at
para 28; Cape Town City v South African National Roads Authority [2015] ZASCA 58; 2015 (3) SA 386 (SCA)
at paras 35-6; and Helen Suzman Foundation v Judicial Service Commission [2016] ZASCA 161; 2017 (1) SA
367 (SCA) at para 13, overruled, but not on this point, in Helen Suzman above n 30 at paras 13 -14.
KOLLAPEN J
25 (b) calling upon the magistrate, presiding officer, chairperson or officer, as the
case may be, to despatch, within 15 days after receipt of the notice of motion,
to the registrar the record of such proceedings sought to be corrected or set
aside, together with such reasons as the magistr ate, presiding officer,
chairperson or officer, as the case may be is by law required or desires to give
or make, and to notify the applicant that such magistrate, presiding officer,
chairperson or officer, as the case may be has done so. ”

[62] Rule 53(1)(b) i s the basis upon which a party may request a record underlying
the decision which is being challenged. Since rule 53 is concerned with review
proceedings, it does not apply in appeal proceedings.

Issues for determination
[63] There are four issues to be determined in this appeal. First, whether this Court
has jurisdiction to hear the appeal and whether leave to appeal should be grant ed.
Second, i f leave is granted, whether the review jurisdiction of the High Court under
PAJA or the principle of lega lity is excluded as a matter of law due to the availability
of a wide appeal under section 47(9)(e) of the CEA. In other words, whether
section 47(9)(e) ousts the review jurisdiction of the High Court . Third, and if the review
jurisdiction is not exclude d, how the remedial scheme of the CEA relate s to and interact s
with that of PAJA and whether the wide appeal is a remedy of first resort. Fourth, if
review jurisdiction is established, whether a High Court must still compel production
of the record on the strength of Standard Bank in instances where the wide appeal ought
to be relied on as a remedy of first resort , or when a court refuses to exercise its review
jurisdiction. Put simply, does the principle in Standard Bank still hold if a court refuses
to exercise its review jurisdiction ?

Jurisdiction and leave to appeal
[64] Our constitutional jurisdiction is engaged in terms of section 167(3)(b) (i) of the
Constitution. The basis of the order s in the High Court and Supreme Court of Appeal
involve s a consideration of a review under section 6 of PAJA, which gives effect to the
right to just administrative action in section 33 of the Constitution . As this Court held
KOLLAPEN J
26 in Walele ,48 “the interpretation and application of the provisions of PAJA raise a
constitutional issue”.49 In Bato Star50 this Court stated :

“The provisions of s ection 6 divulge a clear purpose to codify the grounds of judicial
review of administrative action as defi ned in PAJA. The cause of action for the judicial
review of administrative action now ordinarily arises from PAJA, not from the common
law as in the past. And the authority of PAJA to ground such causes of action rests
squarely on the Constitution. It i s not necessary to consider here causes of action for
judicial review of administrative action that do not fall within the scope of PAJA. As
PAJA gives effect to s ection 33 of the Constitution, matters relating to the
interpretation and application of PAJ A will of course be constitutional matters.”51
(Footnote omitted.)

[65] This matter also involves a consideration of legality review, which derives from
the principle of legality, a principle inherent in the Constitution52 and related to the rule
of law in terms of section 1(c) of the Constitution.53

[66] Our general jurisdiction is engaged because an arguable point of law of general
public importance is raised:54 whether section 47(9)(e) of the CEA excludes the review
power of t he High Court. It is an issue that “transcend[s] the narrow interests of the
litigants and implicate[s] the interest [s] of a significant part of the general public”
because it will determine how aggrieved taxpayers who seek to challenge tariff
determinations under the CEA must do so in the future .55

48 Walele v City of Cape Town [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) .
49 Id at para 15.
50 Bato Star Fish ing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC).
51 Id at para 25.
52 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1998
(12) BCL R 1458 (CC); 1999 (1) SA 374 (CC) at paras 56-8.
53 Id at para 57; Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2005 (6) BCLR 529 (CC); 2006
(3) SA 247 (CC) at para 49.
54 Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509
(CC) at paras 13-14.
55 Id at paras 25-6.
KOLLAPEN J
27
[67] It is also in the interests of justice that we entertain the appeal, firstly, because
the four discordant High Court judgments ( BCE, Distell HC, Cell C and Glencore ), as
well as that of the S upreme Court of Appeal in this matter , require final resolution by
this Court. Secondly, this matter plainly is of interest not only to SARS, but also to
taxpayers and the public generally , involving as it does the adjudication of disputes
entailing tariff determ inations. The conflicting decisions of lower courts further
indicate that there may be some prospects of success on appeal .56 Leave to appeal
should therefore be granted.

Ouster of the High Court’s review jurisdiction
[68] The effect of section 6(2) of PAJA , insofar as it relates to the power of a
High Court, is t hat it clothe s a court with jurisdiction to undertake the judicial review
of administrative action. This is a jurisdiction -assigning provision that is granted in
wide and unrestricted terms. There i s nothing in the language of section 47(9)(e) or any
other provision of the CEA that supports the argument by SARS that the appeal in the
CEA ousts the review jurisdiction of the High Court . The contention that the
availability of the section 47(9)(e) appeal constitutes an ouster is simply not sustainable.

[69] There is a strong presumption in our law against the ouster of a court’s
jurisdiction.57 An ouster clause, while not impermissible, will need to pass a formidable
hurdle in order to pass constitution al muster , as its effect will invariabl y be a limitation
of a number of rights , including the right to have access to courts , enshrined in
section 34 of the Constitution. In disposing of the ouster argument the
Supreme Court of Appeal said:


56 Id at para 23.
57 Crompton Street Motors CC t/a Wallers Garage Service Station v Bright Idea Projects 66 (Pty) Ltd t/a All Fuels
[2021] ZACC 24; 2021 (11) BCLR 1203 (CC); 2022 (1) SA 317 (CC) at para 24.
KOLLAPEN J
28 “Even in our pre-constitutional era, there was a strong presumption against the ouster
or curtailment of a court’s jurisdiction. It has been stated that the curtailment of the
powers of a court of law is, in the absence of an express or clear implication to the
contra ry, not to be presumed. These principles continue to apply, now buttressed by
the Constitution. Nothing in the CEA expressly ousts the jurisdiction of the H igh Court
to review a tariff determination decision. ”58

[70] In Metcash , this Court dealt with a tailor -made appeal created in terms of the
VAT Act to the Special Tax Court to enable aggrieved vendors to challenge the
rejection by the Commissioner of objections to assessments and associated decisions.59
It observed that even though the VAT Act created a tai lor-made mechanism for
addressing complaints, nowhere did it exclude the right of judicial review , and this
remedy , as well as other avenues of relief , remained intact.60 The underlying rationale
in Metcash applies equally in the present case. While we ar e dealing here with the CEA,
there is nothing in the CEA that excludes judicial review and it must remain a form of
relief ordinarily open to an aggrieved taxpayer.

[71] SARS argues, on the strength of BCE and Cell C, the fact that a wide appeal may
provide the taxpayer with a correct decision and is curative of procedural irregularities
means that the re is no need for the right of judicial review to be asserted as it would
serve no purpose. This argument is only correct in part. That a wide appeal provides a
correct decision or outcome will not always result in the vindication of a taxpayer’s
right to just administrative action.

[72] The distinction to be drawn between a fair process and the correct outcome is
what this Court in AllPay I considered in the context of public procurement .61 This
Court held:

58 Supreme Court of Appeal judgment above n 18 at para 24.
59 Metcash above n 23 at para 32-3.
60 Id at para 33.
61 AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social
Security Agency [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 ( 1) BCLR 1 (CC) at para 24.
KOLLAPEN J
29
“On the approach of the Supreme Court of Appeal, procedural requirements are not
considered on their own merits, but instead through the lens of the final outcome. This
conflates the different and sep arate questions of unlawfulness and remedy. If the
process leading to the bid’s success was compromised, it cannot be known with
certainty what course the process might have taken had procedural requirements been
properly observed. ”62

[73] The lesson to be dra wn from AllPay I is that the lawfulness of the
decision -making process itself holds inherent value , regardless of whether the decision
arrived at was right or wrong on its merits. Indeed, this is the precise basis for the right
to judicial review and why the nature of the enquiry is generally focused on the
lawfulness of the decision rather than its correctness. It does not seem to be correct to
say that, in all cases, a correct decision vindicates an unlawful decision -making process.

[74] A further reason why a correct decision does not necessarily negate the need of
the right to judicial review, as the Supreme Court of Appeal correctly observed, is that
the right of review gives effect to the value s of accountability and openness in the
decision -making pro cess. These values are what the Constitution aspires to in its
commitment to open and accountable government , and one should proceed with great
caution in reading in limitations to the right to just administrative action (which is what
judicial review giv es effect to) in the absence of clear and unequivocal language by the
lawmaker in support of a limitation or exclusion of the right.

[75] A court assumes jurisdiction when , as a matter of law , it has the power to decide
or adjudicate a matter that comes before it.63 And so , through section 6(2) of PAJA,
Parliament assigned jurisdiction to the High Court to consider and adjudicate reviews
brought under PAJA. This is a matter of law . A court must determine whether it has
jurisdiction with reference to the law . However, a court has no discretion to say whether

62 Id.
63 S v Mhlungu [1995] ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR 7 93 (CC) at para 71.
KOLLAPEN J
30 it does or does not have jurisdiction . It either has jurisdiction or it does not .64 The effect
of this conclusion is that , as a matter of law , both a n appeal and a review are available
to a taxpayer. The y exist side by side, often with the same objective of reaching a proper
outcome, although they embark on different paths to reach that result.

[76] But that is not the end of the matter. Having considered the two mechanisms as
means to challenge a tariff det ermination under the CEA, I address the c entral question
that arises : whether an aggrieved taxpayer enjoys unrestricted access to challenge a
decision by choosing either or both remedies at its instance . This may seem a redundant
question in view of the c onclusion reached that the CEA does not oust the review
jurisdiction of the High Court. The answer is more nuanced than simply a “yes” or a
“no”. The question requires a consideration of two issues . First, the distinction between
a court’s assumption of jurisdiction and its exercis e of that jurisdiction. Second, a
consideration of how our law deals with instances where a party has two distinct
remedies available to it, where a court has jurisdiction over both remedies , and where a
party se eks to invoke all the remedies available to it .

Interaction between the wide appeal and judicial review
[77] Returning to how the two remedies relate to each other , I conclude as follows.
Our law requires litigants to rely , at least primarily and at first ins tance , on the remedy
provided by Parliament more closely located within the regulatory scheme that has been
designed to deal with the impugned determination s. This means that a court, in
exercising its inherent powers, is entitled to refuse to exercise it s jurisdiction to entertain
the more general remedy on the basis that a specific remedy is available to the litigant ,
unless a court is convinced that the specific remedy will not avail the litigant in the
particular circumstances. In the present context , this means that a court may refuse to
exercise its review jurisdiction on the basis that the taxpayer ought to rely on the

64 Mhlongo v Mokoena N.O. [2022] ZASCA 78; 2022 (6) SA 129 ( SCA) at paras 19-20. Although there may be
some uncertainty when answering the legal question whether a court has jurisdiction or not in cases when the law,
or the jurisdiction -assigning provision itself, is not so clear. The distinction between when a court assumes
jurisdiction and whether it will exercise its jurisdiction is discussed later in this judgment.
KOLLAPEN J
31 section 47(9)(e) appeal as the remedy , unless a case is made to justify the court’s
exercise of its review jurisdiction .

[78] I substantiate this by invoking principles which are underlined by the same
golden thread : the separation of powers . It is defined in South African Constitutional
Law as—

“the division of constitutional powers, functions, and responsibilities between the
legislative, executive, and judicial branches of government, and all other organs of state
established by the Constitution. This division is subject to limitations on each branch
of government to prevent the concentration of power in one branch or body o f persons,
so that each holds the other accountable, while maintaining comity between the
branches. ”65

[79] In giving effect to this principle, section 173 of the Constitution provides that the
superior courts have the inherent power to regulate their own proce sses taking into
account the interests of justice .66 Courts exercise this power through the prism of the
Superior Courts Act,67 but the power vests in the se court s directly from the Constitution
and the law.68 A court may invoke section 173 directly in circumstances not regulated
by the Superior Courts Act when it is in the interests of justice to do so .69 This inherent
power includes the power to refuse the exercise of its jurisdiction (assigned to it by the
Legislature) in certain circu mstances.


65 Brickhill et al “Constitutionalism” in Brickhill et al South African Constitutional Law (Juta, Cape Town 2024)
at 19.
66 Section 173 of the Constitution provid es:
“The Constitutional Court, the Supreme Court of Appeal and High Courts have the inherent
power to protect and regulate their own processes, and to develop the common law, taking into
account the interests of justice.”
67 10 of 2013.
68 Phillips v Nationa l Director of Public Prosecutions [2005] ZACC 15; 2006 (1) SA 505 (CC) ; 2006 (2) BCLR
274 (CC) at paras 47-52.
69 Id at para 48.
KOLLAPEN J
32 [80] Courts are subject only to the Constitution and the law, which safeguard their
independence. A tension arises when the Legislature has created a law that enables a
party to litigate in a manner that is disrupt ive to the court’s process , or in a manner that
allows the party to pursue a particular remedy even though the Legislature has created
a more appropriate one to deal with that party’s grievance . A careful balance must be
struck between these co -existing , and sometimes competing, consequences of the
separation of powers.

[81] The following are two principles that resolve this tension and give guidance to
how a court should deal with such matters . The first is the distinction between the
assumption and exercise of jurisdiction . The second is the principle of subsidiarity. I
rely on the se principles as self -standing bases to justify the conclusion I reach . I also
rely on them cumulatively to illustrate the golden thread on which I rely to justify my
conclusion .

Assuming and exercising jurisdiction
[82] In SAHRC70 this Court , in dealing with the jurisdiction of the High Court in
foreclosure matters , referred to Goldberg71 in restating the mandatory jurisdiction
principle.72 In Goldberg it was said:

“On principle it seems to me that in general a Court is bound to entertain proceedings
that fall within its jurisdiction . . . But apart from such cases and apart from the exercise
of the Court’s inherent jurisdiction to refuse to entertain proceedings which amount to
an abuse of its process . . . I think that there is no power to refuse to hear a matter which
is within the Court’s jurisdiction. ”73


70 South African Human Rights Commission v Standard Bank of South Africa Ltd [2022] ZACC 43; 2023 (3) SA
36 (CC); 2023 (3) BCLR 2 96 (CC).
71 Goldberg v Goldberg 1938 WLD 83 .
72 SAHRC above n 70 at para 27.
73 Goldberg above n 71 at 85.
KOLLAPEN J
33 [83] It also referred to Agri Wire , where the Supreme Court of Appeal held that “ our
courts are not entitled to decline to hear cases properly brought before them in the
exercise of their jurisdiction”.74 This Court in SAHRC went further in distinguishing
between the assumption of jurisdiction and its exercise , and in doing so said:

“The assumption of jurisdiction should not be confused with the manner in which a
court decides to exercise its jurisdiction. There is no discretionary power to decline the
assumption of jurisdiction over a matter within the jurisdiction of a court. But how a
court decides to exercise the jurisdiction it enjoys is a separate issue. That issue
includes considerations as to whether in exceptional circumstances jurisdiction is not
exercised by reason of, for example, abuse of process or the stay of proceedi ngs
pending some other form of dispute resolution, or on grounds of comity. In certain
special circumstances, a South African court may take the view that considerations of
comity dictate that a matter is best left for adjudication by a foreign court, whi ch has a
closer connection to the matter ”.75

[84] In support of the view that the mandatory principle referred to in Goldberg is not
absolute, this Court referred to the following excerpt from Goldberg : “in general a court
is bound to entertain proceedings that fall within its jurisdiction”.76 This Court reasoned
that the words “in general ” are an indication that there are exceptions to the general rule ,
pointing out that the right of the High Court not to hear a matter that constitute s an abuse
of its processes is one such exception. In SAHRC , the discussion of the mandatory
jurisdiction principle occurred against the backdrop of the right of access to court and
how insistence on the mandatory jurisdiction principle could stand in the way of
meaningful access to courts. This Court observed tha t in appropriate circumstances a
High Court could refuse to entertain such a matter, even one falling within its
jurisdiction . This power could be exercised where to do so will enable a litigant to
meaningfully exercise their right of access to court, whi ch would otherwise be difficult,
if the matter was litigated in the High Court (as opposed to the Magistrates ’ Court) .

74 Agri Wire (Pty) Ltd v Commissioner of the Competition Commission [2012] ZASCA 134; 2013 (5) SA 484
(SCA) at para 19.
75 SAHRC above n 70 at para 29.
76 Goldberg above n 71 at 85 (emphasis added).
KOLLAPEN J
34
[85] It thus becomes important to recognise at a conceptual level why a court that is
assigned jurisdiction is entitled to decline to exercis e it in certain circumstances . Those
reasons lie in a mixture of policy considerations that seek to protect the integri ty of the
administration of justice , such as abuse of process , and practical matters relating to the
proper , efficient and economical use of judicial resources and the right of access to
courts. If the mandatory jurisdiction principle was regarded as absolute , courts would
be obliged to consider and adjudicate all matters , even those whose consideration would
stand in conflict with the interests of justice. Abuse of process and vexatious litigation
are some examples that come to mind. It cannot be argued that in such instances the
right of access to court must prevail , and co urts have no discretion to regulate their own
process es. Such a proposition would offend section 173 of the Constit ution which
empowers superior courts to regulate th eir own process , and also stands as a threat to
the integrity and the p roper functioning of the a dministration of just ice.

[86] That said , a question remains whether the distinction between the assumption of
jurisdiction and its exercise is relevant in th ese proceedings , and, if it is, to what extent
and effect. The starting point in the discussion would be an acceptance that the
mandatory jurisdiction principle would generally require a court to hear a review
application that falls within its jurisdiction. That would be the effect of the
jurisdiction -assigning provis ion that is section 6(2) of PAJA . However, t here are
circumstances where the exercise of the court’s review jurisdiction can be deferred until
certain procedural or substantive conditions are overcome . The court’s power to defer
the exercise of its jurisdiction in certain matters due to t he non -fulfilment of the
condition s in the common law aro se from the courts’ inherent jurisdiction recognised
in our law since 1903 .77


77 Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111 at 115. The Court
stated that the Court’s review power did not call on any “ special machi nery created by the Legislature” but was
“a right inhe rent in the Court” .
KOLLAPEN J
35 [87] Unlike in the situation of an express ouster, there were instances under the
common law where , despite its powers of judi cial review , a court could suspend or defer
the litigant’s right to pursue their right of review until a remedy provided for in a statute
was exhausted.78 One such condition was the duty to exhaust internal remedies,79 which
was (and still is) recognised as a condition that a party should meet to convince th e court
that it ought to exercise its review jurisdiction.80 The court ’s inherent power was so
wide that it could exempt the party from pursuing either internal or domestic remedies

78 Baxter Administrative Law (Juta, Cape Town 1984) at 720-1. This is, provided that certain criteria were met,
including whether the remedy provided effective redress.
79 In Lenz Township Co (Pty) Ltd v Lorentz N.O. 1961 ( 2) SA 450 (A) at 466G, the Appellate Division accepted
that the party had a right to bring a review despite the party not exhausting the internal remedy. See also Shames
v South African Railways and Harbours 1922 AD 228 at 235-6:
“But the question still remains at what stage of the proceedings is it competent for an aggrieved
servant to have recourse to a court of law. Is he entitled to do so at the initial stage, so soon as
a penalty has been inflicted upon him, or only at the final stage when he has ex hausted all the
remedies which under the Act are open to him? This is a question which has not been dealt with
in any of the decided cases, so far as I am aware, but I am clearly of opinion that it is only if the
irregularity or illegality has been persis ted in up to the final stage that it is competent to the
servant to take legal proceedings.”
80 Ross v Dramat 1877 Buch 132; Zweibock v Herbst 1905 ORC 63. See Jockey Club of S outh Africa v Feldman
1942 AD 340 and Crisp v SA Council of Amalgamated Engineer ing Union 1930 AD 225 regarding the use of
domestic statutory remedies prior to the court’s exercise of its review jurisdiction. See also Welkom Village
Management Board v Leteno 1958 (1) S A 490 (A ) at 502D and 503B. In Lawson v Cape Town Municipality 1982
(4) SA 1 (C) at 6H-7A, the Court provided a number of factors to consider when considering whether, on the
proper construction of a statute, judicial review is excluded or deferred :
“Among these are: the subject matter of the statute (transport, trading licences, town planning
and so on); the body or person who makes the initial decision and the bases on which it is to be
made; the body or person who exercises appellate jurisdiction; the manner in which that
jurisdiction is to be exercised, including the ambit of any ‘ re-hearing ’ on appeal; the powers of
the appellate tribunal, inc luding its power to redress or ‘ cure’ wrongs of a reviewable character;
and whether the tribunal, its procedures and powers are suited to redress the particular wrong
of which an applicant complains .”
KOLLAPEN J
36 on variou s grounds.81 Other condition s included mootness82 and delay in bringing the
review.83

[88] Since its introduction, PAJA too recognises that a court may defer the exercise
of its jurisdiction until certain condition s are met, such as that the review is brought
within a particular time,84 or that internal remedies have not been exhausted.85 Should
the parties fail to comply with these condition s, they will not be ordinarily entitled to
pursue their review – this is subject to certain exceptions . The point is that P AJA itself

81 In Leteno id at 502D -E and 503B -D the Court held:
“Whenever domestic remedies are provided by the terms of a Statute, regulation, or
conventional association, it is necessary to examine the relevant provisions in order to ascertain
in how far, if at all, the ordinary jurisdiction of the Courts is thereby excluded or deferred.
. . .
It is, I think, clear from the context in which this statement appears that what the learned Judge
intended to convey was that the mere existence of a domestic remedy did not conclude the
question, since it is in each case necessary to consider all the circumstance s in order to determine
whether a necessary implication arises that the Courts’ jurisdiction is either wholly excluded or,
at least, deferred until the domestic remedies have been exhausted.”
82 In Director -General Department of Home Affairs v Mukhamadiva [2013] ZACC 47; 2014 (3) BCLR 306 (CC)
at para 40, this Court identified several relevant factors that could be considered when exercising its discretion to
entertain a moot matter:
“The fact that a matter may be moot in relation to the parties before the C ourt is not an absolute
bar to the Court considering it. The Court retains discretion, and in exercising that discretion it
must act according to what is required by the interests of justice. And what is required for the
exercise of this discretion is th at any order made by the Court has practical effect either on the
parties or others. Other relevant factors that could be considered include: the nature and extent
of the practical effect the order may have; the importance of the issue; and the fullness o f the
argument advanced. Another compelling factor could be the public importance of an otherwise
moot issue.”
83 Mhini v Coulter N.O. 1936 EDL 85.
84 Department of Transport v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017 (2) SA 622 (CC)
at para 160.
85 Section 7(2) of PAJA states:
“(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in
terms of this Act unless any internal remedy provided for in any other law has first
been exhausted.
(b) Subject to paragra ph (c), a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph (a) has been exhausted, direct that the person
concerned must first exhaust such remedy before instituting proceedings in a court or
tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person
concerned, exempt such person from the obligation to exhaust any internal remedy if
the court or tribunal deems it in the interest of justice.”
KOLLAPEN J
37 regulates a party’s right to judicial review, and a court can defer or refuse to exercise its
jurisdiction if these requirements are not met. And so, even within the architecture of
PAJA, there is recognition that the right of review may itself be subject to internal
condition s before it can be considered by a court. Our law has accepted, as a viable
outcome, t hat there are circumstances where a review complaint might never be
adjudicated due to the resolution of the underlying dispute in another forum .86 To the
extent that a party is deprive d of the right to just administrative action (as described by
the Supreme Court of Appeal in this matter in relation to SARS’ interpretation of
section 47(9)(e) ),87 this takes place in the context of domestic, internal or extra -judicial
remedies that may provide substantial redress .88

[89] The result would be that if an internal remedy addressed the merits of a dis pute,
the review complaint and the grounds on which it is advanced will be left largely
unaddressed. In that event , one of the unintended consequences of such a legislative
arrangement is that review grounds, even those carrying with them strong prospects and
evidencing shortcomings in the decision -making process, will n ot be ventilated.89 This

86 Our law encourages such an outcome. The introduction of section 7(2) of PAJA has changed the p osition on
internal remedies. The initial position in terms of the common law was that where internal remedies are provided
for, the choice was that of the aggrieved party either to pursue those remedies first or to proceed straight to seek
a review in co urt. The position under section 7(2) is that it is compulsory for an aggrieved party to exhaust internal
remedies before approaching a court for review, unless such party is exempted from doing so. See Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining a nd Development Company Ltd and Others [2013] ZACC 48; 2014
(3) BCLR 265 (CC); 2014 (5) SA 138 (CC) at para 115.
87 Supreme Court of Appeal judgment above n 18 at para 23. This Court has said in Koyabe v Minister for Home
Affairs (Lawyers fo r Human Rights as Amicus Curiae) [2009] ZACC 23; 2009 (12) BCLR 1192 (CC); 2010 (4)
SA 327 (CC) at para 36 that:
“[A]pproaching a court before the higher administrative body is given the opportunity to exhaust
its own existing mechanisms undermines the aut onomy of the administrative process. It renders
the judicial process premature, effectively usurping the executive role and function. The scope
of administrative action extends over a wide range of circumstances, and the crafting of
specialist administra tive procedures suited to the particular administrative action in question
enhances procedural fairness as enshrined in our Constitution. Courts have often emphasised
that what constitutes a ‘fair’ procedure will depend on the nature of the administrative action
and circumstances of the particular case. Thus, the need to allow executive agencies to utilise
their own fair procedures is crucial in administrative action. ”
88 Hoexter and Penfold Administrative Law in South Africa 3 ed (Juta & Co Ltd, Cape Town 2021) at 744.
89 Koyabe above n 87 at para 35 suggests that this avoidance of further litigation may be a benefit of the
requirement of exhausting internal remedies:
“Internal remedies are designed to provide immediate and cost -effective relief, giving the
executive the opportunity to utilise its own mechanisms, rectifying irregularities first, before
KOLLAPEN J
38 may well be a necessary and unavoidable consequence of putting in place a remedy
such as an internal appeal , which is designed to remedy an unlawful decision in a cost -
efficient and timely manner.

[90] While the remedy of a n appeal in section 47(9)(e) is not an internal appeal of the
kind described in Reed ,90 there are parallels between an internal remedy and an
alternative remedy. An internal remedy is an alterna tive remedy and if Parliament has
determined that , generally speaking , an internal remedy must be exhausted before a
court exercises its review jurisdiction, what then of a dedicated alternative remedy?

[91] While both PAJA and the CEA are silent on the relati onship between an
alternat ive remedy and remedies available under PAJA , I take the view that the
existence of such a remedy provided by Parliament must feature significantly in how a
court exercises its review jurisdiction. After all, the CEA provides the legislative choice
in addressing tariff determination disputes. In addition , when one has regard to the
nature of a wide appeal , then it may achieve much more than an internal remedy . Its
ability to correct and re determine through a rehearing may be significantly more potent
than what an internal remedy can achieve – by and large an appeal on the merits of a
determination. It also can, as Tantoush91 tells us, correct minor irregularities in process.
There , the Court said:

aggrieved parties resort to litigation. Although courts play a vital role in providing litigants
with access to justice, the importance of more readily avail able and cost -effective internal
remedies cannot be gainsaid.”
90 In Reed v The Master of the High Court of South Africa [2005] 2 All SA 429 (E) at paras 20 -6 and 29, the Court
weighs in on the characteristics of an “internal remedy” , specifying that it “must be capable . . . of providing what
the Constitution terms appropriate relief: it must be an effective remedy” and describing it thus:
“[W]hen the term is used in administrative law, it is used to connote an administrative appeal –
an appeal, usually on the merits, to an official or tribunal within the same administrative
hierarchy as the initial decision -maker – or, less common, an internal review.”
It also defines a distinctive feature of internal remedies as being extra -curial. The Court specifical ly provides
section 35(10) of the Administration of Estates Act 66 of 1965 as an example of what is not an internal remedy
because it “regulates recourse to a court for the purpose of reviewing decisions of the Master” and is thus “by
definition external t o the administration, is not domestic to the administrative hierarchy created by the
Administration of Estates Act, and is curial in character” .
91 Tantoush v Refugee Appeal Board 2008 (1) SA 232 (T).
KOLLAPEN J
39
“A wide appeal is one in wh ich the appellate body may make its own enquiries and
even gather its own evidence if necessary – Tikly v Johannes N .O. 1963 (2) SA 588 (T)
at 592A -E. In both kinds of appeal the primary function is one of reconsideration of
the merits of the decision in order to determine whether it was right or wrong, or
perhaps vitiated by an irregularity to the extent that there has been a failure of justice.
Where the appellate body is placed in exactly the same position as the original decision -
maker it will be able to correct lesser irregularities and will enjoy a power of rehearing
de novo .”92

[92] That is further reason why the existence of a wide appeal must be a significant
feature in influencing a court in how it exercises its review jurisdiction.

[93] In PAJA , Parliament has provided a basis for how a cou rt is to exercise its
jurisdiction in the defined circumstances of an internal remedy.93 But that may not be
the only circumstance. Even outside of PAJA , a review court will be entitled not to
exercise its rev iew jurisdiction when there is an abuse of process or where a litigant is
vexatious.94 This power is consistent with a court’s inherent power .95

[94] Both a resort to a wide appeal as well as a right of review seek to assert the right
of access to courts , which is embodied in section 34 of the Bill of Rights.96 In either
case it s source would be a dissatisfaction with a tariff determination that will prompt
the taxpayer to seek relief to challenge the determination , even though the reasons for
that dissatisfaction may differ . The right of access to court must then facilitate the

92 Id at para 90.
93 Similarly, in terms of section 78 of the Promotion of Access to Information Act 2 of 2000 ( PAIA ), a party can
apply to a court for appropriate relief in terms of section 82 only after exhausting the internal appeal procedure in
section 74 and complaints procedure in section 77A of PAIA.
94 SAHRC above n 70 at para s 27 and 29.
95 Under section 173 of the Constitution.
96 Section 34 of the Constitution, quoted above at [56].

KOLLAPEN J
40 resolution of that dispute. This Court has consistently emphasi sed the importance of
that right in our constitutional democracy . In Barkhuizen97 it said :

“Our democratic o rder requires an orderly and fair resolution of disputes by courts or
other independent and impartial tribunals. This is fundamental to the stability of an
orderly society. It is indeed vital to a society that, like ours, is founded on the rule of
law. Section 34 gives expression to this foundational value by guaranteeing to
everyone the right to seek the assistance of a court.”98

[95] In Chief Lesapo99 this Court said:

“The right of access to court is indeed foundational to the stability of an orderly societ y.
It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes,
without resorting to self -help. The right of access to court is a bulwark against
vigilantism, and the chaos and anarchy which it causes. Construed in this conte xt of
the rule of law and the principle against self -help in particular, access to court is indeed
of cardinal importance. As a result, very powerful considerations would be required
for its limitation to be reasonable and justifiable.”100

[96] At the same time , our courts have recognised that the right of access to court
exists within a context where broad policy considerations as well as rules and
procedures are necessary to properly regulate and give effect to the right. Some of those
considerations may relate to the proper use of limited judicial resources, the need for
efficiency in the administration of justice and in its dispute resolution mechanisms , and
the recognition that the same conduct may at times give rise to multiple causes of action
which a re all capable of achieving the same end. The exercise of the right of access to
court must then be considered and given effect to within this context . The right of
access to courts does not contemplate that a litigant will at all times have access to al l

97 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC ).
98 Id at para 31.
99 Chief Lesapo v North West Agricultural Bank [1999] ZACC 16; 1999 (12) BCLR 1420 (CC); 2000 (1) SA 409
(CC) .
100 Id at para 22.
KOLLAPEN J
41 available remedies and procedures . Rather it becomes incumbent on the respective arms
of government, including the Judiciary , to properly manage and regulate those process es
without, in the course of doing so, undermining or unjustifiably limiting the r ight of
access to courts.

[97] In Muka ddam101 this Court said:

“Our Constitution guarantees everyone the right of access to courts which are
independent of other arms of government. But the guarantee in section 34 of the
Constitution does not include the choic e of procedure or forum in which access to
courts is to be exercised. This omission is in line with the recognition that courts have
an inherent power to protect and regulate their own process in terms of section 173 of
the Constitution .”102

[98] On the same th eme, in Take and Save103 the Supreme Court of Appeal observed
that:

“a Judge is not simply a ‘silent umpire’.104 A Judge ‘is not a mere umpire to answer
the question “How’s that?”’ Lord Denning once said.105 Fairness of court proceedings
requires of the trier to be actively involved in the management of the trial, to control

101 Mukaddam v Pioneer Foods (Pty) Ltd [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013 (10) BCLR 1135 (CC).
102 Id at para 28. Section 34, quoted above at [56], must be read with section 165 of the Constitution. Section 165
provides:
“(1) Judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution a nd the law, which
they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality, dignity, accessibility and effectiveness
of the courts.
(5) An order or decision issued by a court binds all persons whom and organs of state to
which it applies.”
103 Take and Save Trading CC v Standard Bank of SA Ltd [2004] ZASCA 1; 2004 (4) SA 1 (SCA).
104 Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A)
at 570E -F.
105 Jones v National Coal Board [1957] 2 All ER 155 (CA) at 159B.
KOLLAPEN J
42 the proceedings, to ensure that public and private resources are not wasted, to point out
when evidence is irrelevant, and to refuse to l isten to irrelevant evidence. A supine
approach towards litigation by judicial officers is not justifiable either in terms of the
fair trial requirement or in the context of resources. ”106

[99] Thus , the proper exercise by a court of its jurisdiction is far fro m a gatekeeping
exercise. It is an exercise that has considerable impli cations for the ad ministration of
justice and its integrity as well as the inte rests of all those who seek to access our courts.
How a court ultimately exercises its jurisdictional di scretion may be influenced by a
number of important considerations which I have referred to . In doing so , a court does
not limit the exercise of the right to access to court , but has regard to these
considerations to ensure that the right to access to court is fulfilled , mindful of the
context of the case , the relief (or different forms of relief) that is sought and the effective
use of judicial resources .

[100] It simply cannot be that a party has unlimited access to the judicial system , its
resources , and at its own election.107 If that were the case , courts would be expected to
be supine and at the beck and call of litigating parties, whereas the approach adopted in
Mukaddam and Take and Save brings together and balances the interest of the litig ating
parties and those of the broader administration of justice. It is a commendable approach
with which I agree .


106 Take and Save above n 103 at para 3. In doing so, the Supreme Court of Appeal adopted what the
Appellate Division held in R v Hepworth 1928 AD 265 at 277:
“A judge is an administrator of justice, he is not merely a figure head, he has not only to direct
and control the proceedings according to recognised rules of procedure but to see that justice is
done. ”
107 The right to have a dispute decided in a fair public hearing before a court has little meaning without structural
mechanisms allowing all to e njoy this right within the limits of public resources. Judicial case management
ensures routine and structured control by a court over all or most of the cases in its registry through control of
time limits for various interlocutory steps preparatory to t rial, issues determined at trial, and time to be taken by a
trial. Similarly, rules about the abuse of court process ensure that judicial resources are only allocated to good
faith and deserving litigants. Without these measures, the efficient administra tion of justice would be hindered
for all, at the expense of an individual matter flouting such measures.
KOLLAPEN J
43 [101] This distinction between the assumption and the exercise of jurisdiction is also
recognised and applied in England , where the Court in Glencore Energy108 captured it
as follows:

“In this case the High Court (and hence this court) has full jurisdiction to review the
lawfulness of action by the Designated Officer and by HMRC. The question is whether
the court should exercise its discretion to refuse to proceed to judicial review (as the
judge did at the permission stage) or to grant relief under judicial review at a substantive
hearing according to the established principle governing the exercise of its discretion
where there is a suitable a lternative remedy .”109

[102] With that background , I proceed to deal with how the jurisdictional question in
relation to the exercise by the Court of its jurisdiction should be considered in these
proceedings.

[103] Both parties have accepted that the appeal contempla ted in section 47(9)(e) is an
appeal in the wide sense. In Tikly , the Court distinguished between various kinds of
statutory “appeal s” as follows :

“(i) an appeal in a 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 . . .
(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 decision was right
or wrong . . .
(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 ar biters had exercised their powers and discretion
honestly and properly.”110


108 R (Glencore Energy) v HMRC [2017] EWCA Civ 1716; [2017] 4 WLR 213 (CA).
109 Id at para 54.
110 Tikly above n 17 at 590G -H.
KOLLAPEN J
44 [104] This formulation led to a development of the concept of a “wide appeal”. A wide
appeal is described as a remedy afforded to an aggrieved party who seeks to challenge
the correctnes s of a decision without being confined to the facts relied on by the first
instance decision -maker and the reasons underlying the decision. In a wide appeal, the
empowering statute grants a court, tr ibunal or forum the power to re hear the matter
entirely.111 This means that the dispute is heard “afresh ” or “from the beginning ” or
“anew ” in the sense that the appellate body is not bound by the evidence, information
or reasons which arose at the time the first instance decision was made.112 In doing so,
it may receive fresh evidence but can also decide the matter without fresh evidence.
The appellate body is, in effect, in the same position as the first instance
decision -maker.113 A record of the preceding decision is accordingly not required.
Baxter explains that the power to preside over a wide appeal will likely be granted to
judges that are qualified and in as good a position as that of the original decision -maker
to adjudicate the ma tter.114 This understanding of a wide appeal has been confirmed
and applied in numerous matters and in various legal contexts.115

[105] Judicial review is described as a remedy afforded to an aggrieved party who
seeks to challenge the lawfulness of a decision. A review is concerned with the
decision -making process and how the decision -maker came to the impugned
decision .116 The record and reasons are usually central to the determination of a

111 Baxter above n 78 at 256.
112 Acti–Chem SA (Pty) Ltd v Commissioner for the South African Revenue Service [2019] ZAKZPHC 58; 81
SATC 363 at para 2.
113 Kham v Electoral Commission [2015] ZACC 37; 2016 (2) SA 338 (CC) ; 2016 (2) BCLR 157 (CC) at para 41;
Refugee Appeal Board v Mukungubila [2018] ZASCA 191; 2019 (3) SA 141 (SCA) at para 34; and Road Accident
Fund v Duma and Three Similar Cases [2012] ZASCA 169; 2013(6) SA 9 (SC A) at para 26.
114 Baxter above n 78 at 258.
115 Wings Park Port Elizabeth (Pty) Ltd v MEC Environmental Affairs Eastern Cape 2019 (2) SA 606 (ECG) at
paras 30 and 46 and Somali Association of South Africa v Refugee Appeal Board [2021] ZASCA 124; 2022 (3)
SA 166 (SCA ) at para 25.
116 Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Medi ation and
Arbitration [2006] ZASCA 175; 2007 (1) SA 576 (SCA) at para 31. The Supreme Court of Appeal judgment in
Rustenburg was overturned on appeal to this Court, but not on this point.
KOLLAPEN J
45 review.117 However, proceedings may be brought under review despite the fact that no
record of the proceedings sought to be corrected or set aside were kept.118

[106] When consideration is given to b oth remedies, i t follows that a taxpayer
aggrieved with a tariff determination and who follows the route of a n appeal in terms
of section 47(9)( e) has the fullest opportunity to present its case on the merits . In so
doing , the taxpayer can advance its claim with the object of obtain ing a proper and
correct tariff determination. The aim of section 47(9)(e) is to ensur e that the hearing
results in a correct tariff determination.

[107] If there were procedural shortcomings in the decision leading to the impugned
tariff determination, the wide appeal is only “curative ” to the extent that it can at least
ensure that those deficiencies do not repeat themselves in the wide appeal , but it is not
designed to look back at the decision -making process with a view to correcting such
deficiencies as may have arisen.119 In essence, the wide appeal freshly determines the
applicable tariff which has a retrospective effect and the taxpayer no longer has to abide
by the impugned decision. But a wide appeal is not curative to the extent that it always
extinguishes the need for judicial review.

[108] If a taxpayer ’s complaint, in nature and in substance, is both about the
correctness of the decision on the merits and th e lawfulness of the decision -making
process, the court will be called upon to decide whether to exercise its review
jurisdiction . If it refuse s to exercise its review jurisdiction , the court can deal with the
matter as a wide appeal, notwithstanding the allegation of review grounds . If it decides
to exercise its review jurisdiction, it will deal with the matter as a review. Below I deal
with the consequences of this latter route.


117 Democratic Alliance v President of the Republic of South Africa 2017 (4) SA 253 (GP) at paras 23-6.
118 Secretary for the Interior v Scholtz 1971 (1) SA 633 (C) at 637A -D.
119 Minister of Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd [2005] ZASCA 11; 2005 (6)
SA 182 (SCA) a t paras 34-5.
KOLLAPEN J
46 [109] There may also be instances where a taxpayer may purport to advance a ground
of review , but in substance be seeking to obtain a correct decision, and simply be
clothing its challenge in PAJA language in order to obtain access to the record. It is in
these instances where a court must refuse to exercise its review jurisdicti on and require
a party instead to pursue the section 47(9)(e) appeal as the remedy properly suited for
the challenge. The manner in which a party pleads their case is important , just as the
availability of the two remedies is in assisting a court to deter mine whether the exercise
of its review jurisdiction is warranted.

[110] This difficult exercise requires a court to appreciate certain first principles. The
right to challenge an administrative decision is enshrined in section 33 of
the Constitution which is embodie d in section 6 of PAJA. A review in the context of
the CEA will invariably be triggered by dissatisfaction with a tariff determination and
the aggrieved taxpayer may well , as in these proceedings , have to consider whether to
bring a n appeal or a review. This brings me to the question of the overlap in the grounds
of review and appeal which RBCT claims may exist. It is important to consider briefly
what it mean s for review and appeal grounds to “overlap ” to the extent that a court may
deal with multiple grounds advanced in the same case.

[111] A “ground ” is a legal basis used to validate a claim.120 This will have to be
supported by factual material in support of the ground . For instance, whe re an error of
law is pleaded , a litigant must not only plead facts which indicate that the decision was
materially influenced by an error of law , but also indicate how those facts satisfy the
requirements for “error of law ” as a ground of review to activate the legal claim for
judicial review.121


120 The Merriam -Webster dictionary describes a ground as “the foundation or basis on which knowledge, belief,
or conviction rests: a premise, reason, or collection of data upon which something (as a legal action or argument)
relies for validity”.
121 As stated by th is Court in Bato Star above n 50 at para 27, “[i]t must be emphasised that it is desirable for
litigants who seek to review administrative action to identify clearly both the facts upon which they base their
cause of action, and the legal basis for their c ause of action.”
KOLLAPEN J
47 [112] What grounds a re necessary to activate a n appeal? According to
section 47(9)(e) , it is where a taxpayer believes a decision is incorrect in law and seeks
to appeal it. The taxpayer may conceivably use the same facts to support a ground of
appeal as a ground of review . While there may then be an overlap in the factual material
used to formulate the respective grounds of appeal and review , there is no overlap as a
matter of law in the respective grounds of review and appeal.122

[113] What follows is that a ppeal and review are conceptually different remedies and ,
while they ultimately seek a “correc t” result in a general sense, in subst ance they may
focus on the same material to conduct distinct enquiries in reaching a determination.
The nature of a wide appeal does not ch ange the essential nature of a review and its
focus, even though the wide appeal may cure a grievance which would form the subject
matter of a review.123

[114] Some cases present material that may be so egregious and far -reaching that they
impact on the very unde rpinnings and values of a just administrative action regime.
These are the kind of cases where a court may find it appropriate to use its discretion to
exercise its review jurisdiction. It may be important and necessary to address the issues
in review proceedings as a failure to do so will undermine the integrity and effectiveness
of the just administrative action framework. It may not be possible to draw bright lines
in this regard , but conduct that evidences corruption or a deliberate disr egard for the
rule of law are some examples that come to mind. I provide some guiding
considerations later in this judgment .

[115] What emerges is that not every reviewable irregularity would necessitate a resort
to review relief , especially when there is a ta ilor-made remedy that can address the
complaint of a wrong decision which may negate the need to persist with a challenge to

122 As Hoexter and Penfold (above n 88 at 389) point out:
“[T]he distinction between legality and merits, or process and substance, means that it is not the
function of a court of review to ask whether the administrator was ‘right’ or ‘wrong ’ in its
conclusions, but only whether the conclusion was arrived at in an acceptable manner.”
123 Niemiec v Constantia Insurance Co Ltd (PA1/2021) [2021] ZAFST 30 at para 40.
KOLLAPEN J
48 an irregular process . But a review of the decision -making process in the face of a wide
appeal may be warranted to ensur e that ser ious shortcomings affect ing its very
functioning and underpinnings are addressed.

[116] Leaving aside for a moment the policy considerations that may influence the
suitability of a wide appeal as opposed to a review, there are significant practical
differences in what each remedy can likely achieve. A wide appeal as a de novo hearing
is structured to determine the correctness of the determination. If the determination is
found to be incorrect , a wide appeal court will substitute it with the correct
determination which will, subject to possible further appeals, bring finality to the
dispute. In that event there may be nothing left to review , as the Court observed in
BP Southern Africa ,124 where it asked , in the context o f a review and a wide appeal
brought simultaneously against the same decision , “[o] nce that appeal has been
determined, the question was what, if anything, was left of the review ?”125

[117] On the other hand , if a review court finds a reviewable irregularit y before
considering an appeal , it must declare the decision unlawful and then generally set it
aside and remit the matter to the decision -maker , as substitution is a power utilised only
in exceptional circumstances.126 In that event , the decision -maker will likely address
the procedural shortcomings in the decision -making process but may arrive at the same
determination. Unless there are strong reasons indicating serious departures from the
standard s of administrative justice of the kind I have discussed , a resort to a review may
well constitute an unwise and uneconomical use of judicial resources . Of course , the
“new” decision arrived at by SARS may then be the subject of a fresh review on
different grounds or an appeal by way of section 47(9) (e).


124 BP Southern Africa (Pty) Ltd v Commissioner for the South African Revenue Service , unreported judgment of
the High Court of South Africa, Gauteng Division, Pretoria, Case No 2021/49805 (12 January 2024).
125 Id at para 10.
126 National Energy Regulator of South Africa v PG Group (Pty) Ltd [2019] ZACC 28; 2019 (10) BCLR 1185
(CC); 2020 (1) SA 450 (CC) at paras 89-90.
KOLLAPEN J
49 [118] Here the spectre of ongoing and circuitous litigation with its attendant drain on
resources for all involved may loom large. Courts are not expected to be supine in the
face of such undesirable outcomes where avoidance is possible. They are entitled to
protect their processes. In the context of section 7 of PAIA, this Court in
PFE International127 endorsed the approach by the Supreme Court of Appeal where it
held that allowing dual systems of accessing information would potentially be
extremely disruptive to court proceedings and, as section 7 clear ly states, a party cannot
obtain information under PAIA where there are rules of civil procedure governing the
production of that information.128 In explaining its approach, the Supreme Court
of Appeal stated:

“This anomaly, that [a litigant] may be entitled to information the day before the
commencement of proceedings but not the day thereafter, must be seen as a necessary
consequence of the intention, on the part of the Legislature, to protect the process of
the court. Once proceedings are instituted then the parties should be governed by the
applicable rules of court .”129

[119] While the present matter concerns two pathways to challenging a decision, and
not two pathways to accessing information, and while section 7 of PAIA is much more
express about the non -availability of the alternative pathway than section 47(9)(e) is
about the availability of judicial review, the underlying principle still remains. A court
must be entitled to protect its own processes when a dupl ication of pathways is available
and the prosecution of both will become disruptive or undesirable.

[120] And so , back to the critical question: if absent an ouster, both remedies are in
principle available to the taxpayer, would a taxpayer, unreservedly as a matter of right,
be entitled to use both remedies? The response from the purists may be a resounding
“yes” , notwithstanding that the effect of the perceived overlap may be cumulative or

127 PFE International v Industrial Development Corporation of South Africa Ltd [2012] ZACC 21; 2013 (1) SA
1 (CC); 2013 (1) BCLR 55 (CC) .
128 Industrial Development Corporation of South Africa Ltd v PFE International Inc (B VI) [2011] ZASCA 245;
2012 (2) SA 269 (SCA) at para 10.
129 Id at para 10.
KOLLAPEN J
50 duplicative court actions and the untenable consequence of setti ng aside a determination
that is correct but arrived at through means that are reviewable. These are real
consequences that may arise if the two remedies are allowed to be pursued alongside
each other unchecked .

[121] The Supreme Court of Appeal properly empha sised in its judgment in this matter
the role of a system of just administrati ve action in our constit utional democracy , but it
did so in isolation , failing to consider in the context of these proceedings the interplay
between the right of a wide appeal and the right of review. It did not consider the
practical consequences of its judgment . It also did not consider the fact that a wide
appeal may well be capable of addressing some process irregularities by reaching a
correct conclusion on the merits following a fair hearing , which may , in part , address
the taxpayer ’s grievance . It thus may be curative to that extent and may negate the need
to pursue a review .

[122] Equally , the stance adopted in Cell C and similar cases – that the existence of a
wide appeal does not oust the right of review , but that the need for the review to be
asserted simply does not arise – may have the de facto effect of an ouster. That
reasoning suggests that , irrespective of the ser iousness of the defects in the
decision -making proce ss and i ts effect on a just administrative system, a review will
never be warranted and a wide appeal , to the extent that it can resu lt in a correct tariff
determination , is the only remedial option for an aggrieved taxpayer. This approach
ignores the cases, regarded as unusual or grave, where the interests of justice call for
more than a correct determination , but require , as a matter of good govern ance and in
fidelity to the values of the Constit ution , that the defects in the decision -making process
be identified, addressed and corrected .

[123] The answer lies somewhere in between those two propositions. It lies in
recognising that , even though the right of review is not ousted by section 47(9)(e), a
court may , as part of its discretion decide whether to e xercise its review jurisdiction. In
doing so , it will have regard to the availability of a tailor -made alternative remedy that
KOLLAPEN J
51 Parliament has created. The existence of a wide appeal alongside a right of review is
precisely the scenario that would justify a court in using its powers to decide whether
to exercise its review jurisdiction. It should do so in respect of instances where a
taxpayer , armed with a right of wide appeal, seeks to challenge a tariff determination
by way of a review .

Principle of subsidiarity
[124] The principle of subsidiarity has been recognised by this Court in My Vote
Counts .130 The majority of the Court concurred with the minority’s exposition of the
principle of subsidiarity.131 This principle , put simply , speaks to —

“a hierarchical ordering of institutions, of norms, of principles, or of remedies, and
signifies that the central institution, or higher norm, should be invoked only where the
more local institution, or concrete norm, or detailed principle or remedy, does not avail.
The word has been given a range of meanings in our constitutional law. It is useful in
considering the scope of subsidiarity, and Parliament’s reliance on it – to have them all
in mind.”132 (Emphasis added .)

[125] Applying th is principle, the applicant in My Vote Counts was not entitled to
circumvent PAIA and rely directly on section 32 of the Constitution.133 This Court held
that the applicant must first rely on or attack the constitutionality of the legislation
enacted to give effect to its rights since:

“Once le gislation to fulfil a constitutional right exists, the Constitution’s embodiment
of that right is no longer the prime mechanism for its enforcement. The legislation is
primary. The right in the Constitution plays only a subsidiary or supporting role.”134

130 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2015 (12) BCLR 1407 (CC); 2016
(1) SA 132 (CC).
131 Id at para 121.
132 Id at para 46.
133 Id at paras 44-6.
134 Id at para 53.
KOLLAPEN J
52
[126] This approach was also affirmed by this Court in SANDU ,135 though in the
context of labour relations , where the Court disallowed reliance on provisions of
section 23(5) of the Constitution to found a more encompassing duty to bargain. This
Court held that “ a litigant may not bypass that legislation and rely directly on the
Constitution without challenging that legislation as falling short of the constitutional
standard”.136

[127] In Motau ,137 this Court recogni sed the more specific norms in the Companies
Act 71 of 20 08 to assess standards of procedural fairness.138 Although this Court did
not consider it necessary to decide whether the principle of legality or some other
principle required the Minister of Defence and Military Veterans to act in a procedurally
fair mann er, it implicitly applied the principle of subsidiarity by preferring more specific
norms in legislation over the more general principle of legality.139

[128] In New Clicks ,140 this Court held that “ [l]egislation enacted by Parliament to give
effect to a constitution al right ought not to be ignored”.141 This recognised Parliament’s
indispensable role in fulfilling constitutional rights and how “the courts and the
legislature act in partnership to give life to const itutional rights”.142 The majority in
My Vote Counts also concurred with this sentiment when this Court held that “comity

135 South African National Defence Union v Minister of Defence [2007] ZACC 10; 2007 (5) SA 400 (CC); 2007
(8) BCLR 863 (CC).
136 Id at para 51.
137 Minister of Defence and Military Veterans v Motau [2014] ZACC 18, 2014 (5) SA 69 (CC); 2014 (8) BCLR
930 (CC) .
138 Id at para 80.
139 Id at para 83.
140 Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign and Another as Amici
Curiae) [2005] ZACC 14; 2006 (1) BCLR 1 (CC); 2006 (2) SA 311 (CC).
141 Id at para 437.
142 National Education Health and Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (2)
BCLR 154 (CC); 2003 (3) SA 1 (CC) at para 14.
KOLLAPEN J
53 between the arms of government enjoins courts to respect the efforts of other arms of
government in fulfilling constitutional rights”.143

[129] The principle of subsidiarity plays a valuable role in our administrative law
where several sources of law compete for application. At the apex of the continuum of
available remedies lies the most general legal norm ; in the context of judicial review
this would be the principle of legality, that lies at the heart of our rule of law in
section 1(c) of the Constitution . This is followed by the Bill of Rights, including the
right to just administrative action in section 33 of the Constitution. The codific ation of
the right to just administrative action in PAJA is a more specific embodiment of
constitutional norms which applies only to administrative action and generally not to
executive or legislative action. Finally, more specific provisions in legislati on or
subordinate legislation are the “most specific norms that set out standards of
accountability demanded of a functionary in a particular situation, and that are
appropriate to that specific exercise of power”.144

[130] The principle requires that the more specific norm be preferred over the general
norm when adjudicating a substantive dispute. So , in that sense, a litigant must rely on
the more specific remedy when seeking relief from a court, and should then climb up
the hierarchy of available remedies to wards the general remedy only where the specific
remedies are inappropriate or will not provide effective relief. This proviso illustrates
that the subsidiarity principle is not absolute insofar as there may be circumstances
where the more specific norm i s inapplicable or inappropriate , and hence the more
general norm must be applied.

[131] In this context, the appeal in section 47(9)(e) of the CEA should be preferred for
two reasons. First, it is the specific remedy created by Parliament to ensure that a
taxpayer aggrieved by a tariff determination obtains effective relief. It , therefore , must

143 My Vote Counts above n 130 at para 160.
144 See Murcott and Westhuizen “The Ebb and Flow of the Application of the Principle of Subsidiarity – Critical
Reflections on Motau and My Vote Counts ” (2015) Constitutional Court Review 43 at 44.
KOLLAPEN J
54 be considered the preferred mechanism of challenge , since provisions under the CEA
constitute the law which is designed specifically to deal with the subject matter of tariff
determinations. Only if a party can show that the more specific norm is not appropriate
should it resort to a challenge under PAJA , which constitutes a more general norm in
the continuum of available remedies.

[132] Second, the principle of comity between branches of government requires this
Court to pay due regard to the remedy crafted by Parliament under the CEA. That is
not to say that the mere presence of a statutory remedy created by Parliament always
gives rise to a presumption that it takes preference over PAJA simply by virtue of the
fact that it is a more specific norm or under the principle of comity. A court or tribunal
must look at substance over form. It must be satisfied that the more specific norm or
remedy is an effective one that adequately preserves a party’s rights to bring a challenge
against an administrative action.

[133] While section 47(9)(e) does not constitute an ouster clause in respect of other
remedies , its existence as a tailor -made remedy de signed specifically to address tariff
determinations, as well as its ability to do so, must be a factor this Court considers when
other remedies are asserted. It is not a consideration that is dispositive of the issue but
one that must be given proper wei ght. As noted above, it recognises Parliament ’s role
in crafting appropriate remedies in the context of a particular legislative scheme . One
must respect the remedy chosen by Parliament to deal with disputes arising within a
particular legislative contex t. Section 47(9)(e) was designed specifically as a remedy
in response to disputes arising from customs and excise tariff determinations. Unless
there are good reasons for departing from this remedy, a taxpayer must be required to
rely on that remedy unless they show that specific circumstances exist which require
them to invoke their right to judicial review.

The position in England
[134] English courts have also had to grapple with how the two remedies of an appeal
and a review relate to an d interact with eac h other in the context of ta xation disputes.
KOLLAPEN J
55 The Court in Glencore Energy145 also accepted and applied the distinction between the
assumption of jurisdiction and its exercise. Moving beyond that , the Court , after
describing review as a remedy of last resort , noted the circumstances when it would be
willing to exercise its review jurisdiction.146 It said:

“In my view, the principle is based on the fact that judicial review in the High Court is
ordinarily a re medy of last resort, to ensure that the rule of law is respected where no
other procedure is suitable to achieve that objective. However, since it is a matter of
discretion for the court, where it is clear that a public authority is acting in defiance of
the rule of law the High Court will be prepared to exercise its jurisdiction then and there
without waiting for some other remedial process to take its course. ”147

[135] The Court went further in describing what its stance was in how its review
jurisdiction fell to be exercised in the face of an alternative remedy. It said:

“Also, in considering what should be taken to qualify as a suitable alternative remedy,
the court should have regard to the provision which Parliament has made to cater for
the usual sort of case in terms of the procedures and remedies which have been
established to deal with it. If Parliament has made it clear by its legislation that a
particular sort of procedure or remedy is in its view appropriate to deal with a standard
case, the court s hould be slow to conclude in its discretion that the public interest is so
pressing that it ought to intervene to exercise its judicial review function along with or
instead of that statutory procedure .”148

[136] And, finally, that Court also addressed the questi on of the possible duplication
in procedures and the proper use of judicial resources when it said:

“Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a
number of objectives. It ensures the courts give priority to stat utory procedures as laid
down by Parliament, respecting Parliament’s judgment about what procedures are

145 Glencore Energy above n 108.
146 Id at para 55.
147 Id.
148 Id.
KOLLAPEN J
56 appropriate for particular contexts. It avoids expensive duplication of the effort which
may be required if two sets of procedures are followed in rela tion to the same
underlying subject matter. It minimises the potential for judicial review to be used to
disrupt the smooth operation of statutory procedures which may be adequate to meet
the justice of the case. It promotes proportionate allocation of j udicial resources for
dispute resolution and saves the High Court from undue pressure of work so that it
remains available to provide speedy relief in other judicial review cases in fulfilment
of its role as protector of the rule of law, where its interven tion really is required. ”149

[137] This approach was recently confirmed by the United Kingdom’s Supreme Court
in its unanimous judgment in McAleenon :150

“The forms of relief available in a claim for judicial review are discretionary (albeit the
ambit of the discretion may in the event be very small or non -existent in the
circumstances of a particular case). The availability of the judicial review procedure
is likewise discretionary. A court may refuse to grant leave to apply for judicial review
or refuse a remedy at the substantive hearing if a suitable alternative remedy exists but
the claimant has failed to use it. As stated in R (Glencore Energy UK Ltd ) v Revenue
and Customs Comrs [2017] EWCA Civ 1716 ; [2017] 4 WLR 213 , para 55, ‘judicial
review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of
law is respected where no other procedure is suitable to achieve that object ive’. If other
means of redress are conveniently and effectively available, they ought ordinarily to be
used before resort to judicial review: Kay v Lambeth London Borough Council [2006]
UKHL 10 ; [2006] 2 AC 465 , para 30; R (Watch Tower Bible & Tract Soci ety of Britain)
v Charity Commission [2016] EWCA Civ 154 ; [2016] 1 WLR 2625 , para 19.
Where Parliament has enacted a statutory scheme for appeals in respect of certain
decisions, an appeal will in ordinary circumstances be regarded as a suitable alternativ e
remedy in relation to such decisions which ought to be pursued rather than having resort
to judicial review: Glencore Energy , above, paras 55 -58; Watch Tower Bible & Tract
Society , above, para 19. Otherwise, use of judicial review would undermine the re gime
for challenging decisions which Parliament considers to be appropriate in that class of
case. Therefore the Court of Appeal in Alpha Resource Management was correct to

149 Id at para 56.
150 McAleenon, Re Application for Judicial Review (Northern Ireland) [2024] UKSC 31 ; [2024] 3 WLR 803 .
KOLLAPEN J
57 hold that Alpha was precluded by the suitable alternative remedy principle from
seeking judicial review of the abatement notice issued against it: Parliament had
provided for a right of appeal in section 65(8) of the 2011 Act in respect of such a
notice. ”151

[138] These remarks were made in the context of judicial review being a remedy of
last resort, which is not exactly the position in our law. Here it may be said that judicial
review is a remedy that a party can have resort to provided it has exhausted internal
remedies where such remedies exist. It is certainly not a remedy of first resor t when
other remedies are available. Despite this distinction, the observations of the Court s in
Glencore and McAleenon do not derive their force purely on account of judicial review
being a remedy of last resort. They s pan a wide range of considerations , including the
relationship between courts and Parliament, the proper use of ju dicial resources and the
need to advance efficiency and avoid the duplication of procedures. These are themes
that this judgment has also grappled with and that are relevant i n our justice system .

Conclusion on the two principles
[139] It is for all these reasons that I am of the view that an aggrieved taxpayer does
not have an unlimited and unhindered choice of remedy to challenge a tariff
determination. I say so because to allow that would —
(a) run the risk of parallel or cumulative processes , through a wide appeal
and a review, traversing the same factual and legal material ;
(b) ignore the limited judicial resources that are available to be deployed in
the administration of justice ;
(c) disregard that a review is unlikely to result in a final determination and
would usually require remission to SARS, unless a case is made out for
exceptional circumstances to justify a substitution by the court ; and
(d) ignore the principle of subsidiarity by not considering the hierarchical
ordering of remedies where the general norm (PAJA) is to be invoked
only when the local or specific norm (CEA) does not avail.

151 Id at paras 50-1.
KOLLAPEN J
58
[140] The existence of a wide appeal alongside a right of review is precisely the
scenario that would jus tify a court in using its powers to decide whether to exercise its
review jurisdiction. It should do so in respect of instances where a litigant, armed with
a right of wide appeal, seeks to challenge a tariff determination by way of review either
in the s ame proceedings or in separate proceedings.

[141] In those instances, a taxpayer who seeks to invoke the review powers of the
High Court , in a tariff determination dispute arising out of the CEA, would be required
to advance a proper basis for doing so . This i s not a restriction of a right but a practical
common -sense approach that (a) the dispute is capable of resolution more effectively
using another specifically created mechanism and (b) one does not claim to assert a
review right simply beca use it is there. This is in fact what PAJA contemplates in its
invocation to first have resort to internal remedies. A successful recourse to an internal
remedy will mean that review grounds raised , irrespective of how serious they may be,
will never be ventilated .

[142] It would be in the egregious cases where , even though a wide appeal will likely
produce a correct tariff determination , it will leave unaddressed the serious nature of
the matter being raised in the review. It is in t hese types of limited cases that a court is
likely to exercise its discretion to entertain the review . The consequence of the review ,
if successful, would be to set aside the determination and remit it to SARS, or in some
instances, substitute the determination. However, if unsuccessful i n review, the
taxpayer may still have a case on the correctness of the decision. Since this was not the
subject of the review proceedings, and the decision that was challenged remains intact
due to the taxpayer’s failure to set it aside in the review, tha t case must still be available
to the taxpayer to ma ke in wide appeal proceedings.

[143] There are, therefore, at least three conceivable scenarios which may play out
depending on how a taxpayer chooses to challenge a tariff determination by way of a
review whi le armed with a right to pursue a wide appeal under section 47(9)(e) :
KOLLAPEN J
59 (a) The taxpayer may institute a review and appeal in the same process,152 in
which case the court will first need to be persuaded to exercise its review
jurisdiction. If it decides to do so, the record must be made available.
The court may in such a case hear argument and give judgment on the
review before dealing with the appeal. If the review is successful, the
decision is set aside and the need for the appeal falls away. If the revi ew
is unsuccessful, the court may consider the appeal .
(b) The taxpayer may institute a review only, reserving its right to pursue an
appeal at a later time . Similarly, the taxpayer will need to persuade the
Court to exercise its review jurisdiction in the face of a possible appeal
under section 47(9)(e) . However, the failure to expressly reserve the right
to pursue the appeal may not justify the inference that the taxpayer has
waiv ed its right to pursue the appeal .
(c) The taxpayer may simply pursue a n appeal, in which case , the appeal will
proceed as usual and the right to review at a later time is lost, since a
review must logically precede an appeal. This is so, because an appea l
presupposes the existence of a lawful decision.153

[144] It may be unwise to attempt to provide a closed list of circumstances when a
court is likely to so exercise its review jurisdiction , but I am attracted to the formulation
in section 7(2)(c) of PAJA that a court may exempt compliance with an internal remedy
if it is in the interests of justice to do so. I do not think that it is necessary to require a
case for exceptional circumstances to be made. The interests of justice appear to b e
broad enough to house a range of circumstances in ultimately answering the question
whether it should exercise its review jurisdiction. The following factors, none of them
dispositive , either individually or cumulative ly, will be useful for the court in the
determination of what would be in the interests of justice:

152 As was done by RBCT in this case.
153 Liberty Life Association of Africa v Kachelhoffer N .O. 2001 (3) SA 1094 (C) at 1108F -G and 1110H -1111D;
Earthlife Africa (Cape Town) v Director General Department of Environmental Affairs and Tourism 2005 (3) SA
156 (C) at paras 38-9; and Visagie v Health Professions Council of South Africa , unreported judgment of the
High Court of South Africa, Gauteng Division, Pretoria, Case No 22547/2020 (26 July 2022) at para 16.
KOLLAPEN J
60 (a) On the pleadings and as a matter of substance , what is the true nature of
the taxpayer ’s grievance – the incorrect tariff determination or the
procedural o r other defects in the decision -maki ng process ?
(b) Do the taxpayer ’s appeal and review cases overlap , what is the true nature
of the overlap, and is a duplication of enquiries and resources likely if
both remedies were to be ventilated ?
(c) If there is overlap , will a wide appeal address the substa nce of the review
grounds in addressing the complaint of an incorrect tariff determination ?
(d) Are the factual and legal circumstances underlying the review grounds so
egregious that they warrant, in the interest s of justice, the exercise of the
court ’s review jurisdiction (instead of its wide appeal jurisdiction) to
address and correct the shortcomings in the decision -making process ?

[145] These are but some of the factors a court will consider in deciding whether to
exercise its review jurisdiction , and a party seeking to have the court do so will in its
founding papers have to set out a proper basis for the court to do so, supported by the
necessary evidence. A court in that situation , and after considering the case made out
for the exercise of its jurisd iction , may either —
(a) make an order directing that the dispute will be adjudicated via a wide
appeal only and refuse to exercise its review jurisdiction ; or
(b) make an order directing that the dispute will be adjudicated via a review ,
and that the adjudication of the wide appeal will be deferred pending the
determination of the review.

Submissions on the Canadian cases
[146] This judgment does not rely on Dow Chemicals and Iris Technologies in its
conclusion as it is not necessary to do so, and since these cases were decided in a unique
statutory context that is different from the CEA and PAJA. RBCT’s reliance on the
purported distinction between discretionary and non -discretionary determinations in our
law only by reference to these two authorities without more cann ot be sustained for
present purposes .
KOLLAPEN J
61
[147] In Iris Technologies , the taxpayer claimed tax refunds under the Canadian Excise
Tax Act154 (ETA). The Minister undertook an audit and issued an assessment
disallowing the input tax credits and assessed penalties. Section 302 of the ETA
provide s that an aggrieved taxpayer who is dissatisfied with an assessment may, after
the exhaustion of an objection procedure, appeal to the Tax Court. In Canada, the
Federal Court has exclusive jurisdiction to hear any application fo r judicial review
under section 18(1) of the Federal Courts Act155 (FCA). Section 18.5 of the FCA
provides that if an Act of Parliament expressly provides for an appeal to, amongst
others , the Tax Court, from a decision or order of a federal board, commissi on or other
tribunal, that decision or order is not, to the extent that it can be so appealed, subject to
judicial review, except in accordance with the Act, which in Iris Technologies is a
reference to the ETA.

[148] The Supreme Court of Canada had to consider the relationship between
section 302 of the ETA and section 18.5 of the FCA and consider whether the latter
confine d an aggrieved Canadian taxpayer to an appeal to the Tax Court. It was in this
specific unique statutory context that the Supreme Court of Canada drew the distinction
between discretionary and non -discretionary decisions to conclude that section 18.5 of
the FCA did not in effect operate as a complete ouster of the Federal Court’s jurisdiction
to hear a review. The Supreme Court of Canada in Dow Chemicals also had to consider
the impact of section 18.5 of the FCA in the context of a request for a downward transfer
pricing adjustment under section 247(10) of Canada’ s Income Tax Act,156 which it held
was of a discretionary nature that was distinct from an assessment.157

[149] In the context of this dispute, there is no equivalent of section 18.5 of the FCA
in PAJA. Therefore, RBCT’s reliance on these two authorities to support the distinction

154 RSC 1985 c E-15.
155 RSC 1985 c F-7.
156 RSC 1985 c 1 (5th Supp ).
157 Dow Chemicals above n 42 at paras 7 and 97 -101.
KOLLAPEN J
62 between discretionary and non -discretionary decisions is not c entral to the core dispute
in this case , and it is thus not necessary to deal with that in this judgment . There may
well be something to be said about the discretionary nature of the decisions taken by
SARS and how they will interact in the context where both a wide appeal and review
are available. This is not an issue that is necessary to delve into in this judgment and I
leave it open for adjudication in a more appropriate matter.

Must a court compel production of the record if it refuses , or is still to determine
whether , to exercise its review jurisd iction?
[150] Havi ng concluded that both remedies co -exist, but that a court can refuse to
exercise its review jurisdiction if the wide appeal is the more appropriate mechanism in
the circumstances, what is left is the question of the rule 53 record. I am guided by this
Court’s decision in Standard Bank .158 There, this Court was asked to decide whether
the Competition Appeal Court, as a first instance court, could order the production of
the rul e 53 record when its jurisdiction to adjudicate the review was in dispute.159 This
Court held that the Competition Appeal Court could not do so , because to order
production of the record without determining its jurisdiction would lead to an order that
would become a nullity if the Competition Appeal Court found that it had no review
jurisdiction.160

[151] This Court then proceeded to state the now trite principle, that on ce a party
successfully establishes the jurisdiction of a court on the basis of its founding papers,161
a party is entitled to a rule 53 record.162 The importance of the rule 53 record to review

158 Standard Bank above n 15.
159 Id at para 112.
160 Id at para 118.
161 Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at
para 75.
162 Standard Bank above n 15 at paras 120 and 202 -3.
KOLLAPEN J
63 proceedings cannot be gainsaid. It not only benefits the party requesting the record, but
also assists both the court and the respondent.163 As this Court said in Helen Suzman :

“The purpose of rule 53 is to ‘facilitate and regulate applications for review’. The
requirement in rule 53(1)(b) that the decision -maker file the record of decision is
primarily intended to operate in favour of an applicant in review proceedings. It helps
ensure that review proceedings are not launched in the dark. The record enables the
applicant and the court fully and properly to assess the lawfulness of the
decision -making process. It allows an applicant to interrogate the decision and, if
necess ary, to amend its notice of motion and supplement its grounds for review.
Our courts have recognised that rule 53 plays a vital role in enabling a court to perform
its constitutionally entrenched review function:
‘Without the record a court cannot perform its constitutionally
entrenched review function, with the result that a litigant’s right in
terms of section 34 of the Constitution to have a justiciable dispute
decided in a fair public hearing befo re a court with all the issues being
ventilated, would be infringed .’”164

[152] I set out what occurred in Standard Bank to illustrate how it differs from the
present matter. This brings me to the question, does the same principle apply if the
court refuses to exercise its review jurisdiction? In the present matter, and given my
conclusion regarding ouster, I have found that the High Court retains its review
jurisdiction. It may then appear that , since judicial review is available to a taxpayer, the
Court’s review jurisdiction is not in dispute and that the taxpayer should be entitled to
production of the record, on the authority of Standard Bank and Helen Suzman .
However, my conclusion that a court may refuse to exercise its jurisdiction changes the
answer to whether the taxpayer is still entitled to the record once a court’s jurisdiction
is established.


163 Helen Suzman above n 30 at paras 13-15.
164 Id at paras 13-14.
KOLLAPEN J
64 [153] The reasoning in Standard Bank is apposite in this regard. There, this Court held
that the production of the record where the jurisdiction of the court was in dispute c ould
result in an order that is a nullity. Th ere are two policy bas es behind preventing an
order that results in a nullity . The first is that a court seeks to avoid making ineffective
orders. The second is that it would be a waste of judicial resources for a court to engage
in fruitless exercises s uch as ordering the production of a record when it is unclear that
a review will ever proceed .165 Here, if the court refuses to exercise its review
jurisdiction, the production of the record will result in ordering the production of the
record in a matter that will not be considered. So , the same policy bases apply here,
because even if a court has the jurisdiction to make the order, it should not do so because
the order will be ineffective if it ultimately decides not to exercise its jurisdiction to hear
the review .

[154] Therefore, in my view, if a court has decided not to entertain a review, then the
review will not be considered. Where review jurisdiction is not exercised, the right to
a rule 53 record falls away.166 This negates the need for the rule 53 record, since the
purpose of the record is to assist a party in advancing its prosecution of the review and
to assist a court in performing its constitutionally entrenched review function .
Therefor e, a party is not entitled to the production of a rule 53 record if a court has
refuse d to exercise its review jurisdiction.

[155] A question necessarily arises from this conclusion: what if the court is asked to
compel the production of the record at a time wh en it has not yet refused the review ?
The conclusion above indicates that the court will have to make a threshold
determination on whether it will exercise its review jurisdiction before it compels the
decision -maker to produce the record. If this narrow aspect becomes the subject of a
dispute, this may have negative implications for the timelines set out in rule 53 itself.


165 Standard Bank above n 15 at para 201.
166 Id at para 203.
KOLLAPEN J
65 [156] Rule 53(1)(b) states that the applicant bringing a review shall call upon the
decision -maker to dispatch the record within 15 days o f receipt of the notice of motion.
Rule 53(4) states that the applicant may amend, add to or vary their application within
ten days after the record has been made available. In terms of r ule 53(5)(a) , the
decision -maker must deliver their notice to oppose the review application within
15 days of receipt of the original or amended notice of motion. The decision -maker
must then in terms of rule 53(5)(b) , deliver its affidavits within 30 days after the ten -
day period within which the applicant may amen d, add or vary their application.

[157] The effect of the conclusion above is that , in the specific context where a
taxpayer seeks to prosecute a review when a section 47(9)(e) appeal is available, a court
must first determine the threshold question whether it will exercise its jurisdiction to
entertain the review . The threshold enquiry obviously only applies if a litigant in this
context seeks to prosecute a review or seeks to prosecute both a wide appeal and review
concurrently or in the alternative . If a party seeks only to prosecute a n appeal under
section 47(9)(e) , none of what I say here applies , since rule 53 would not be implicated
in that scenario . This is a natural consequence of the distinction between wide appeal
proceedings and review proceedings discussed extensively earlier in this judgment.

[158] When a party brings an application for proceedings which are subject to the
threshold determination , the timelines contained in rule 53 will only apply once the
court decides to exercise its review jurisdiction and the taxpayer has been granted leave
to pursue the review application . This also means that , upon delivery of the rule 53
notice , the respondent would be placed on terms to produce the record, but those terms
will only become effective once the court has made the threshold determination.
Therefore, the timelines in r ule 53 will become operative only once the threshold
determination is made.

The reliance on rule 35(11)
[159] In its rule 30A application RBCT also relied on rule 35(11) as an alternative
means by which to obtain production of the record , contending that , even if the
KOLLAPEN J
66 documents are found not be discoverable under rule 53(1)(b), they nevertheless fall to
be discovered under rule 35(11) . The documents to which ref erence is made are the
record and not any separate or identifiable documents.

[160] SARS , in opposing the reliance by RBCT on rule 35(11), takes the view that
under rule 35(11) a court could order the production of specific documents , and that a
party seeking the same was required to specify the documents it sought , and to indicate
how they related to an issue in the proceedings. It dispute s that RBCT could simply
make a blanket request as it did without addressing the question of rel evance.

[161] The High Court , having made an order under rule 53(1)(b) for the production of
the record , did not address the relief sought under rule 35(11). I do so , briefly , given
the order we intend to make. The basis for the reli ef under rule 53(1)(b) and rule 35(11)
is indeed different and it is not open to RBCT to seek the record under the guise of
rule 35(11). If it takes the stance that rule 35(11) is an avenue of relief open to it then
it must comply with the rule, bring the application at the opportune time, specify the
document s it seeks and indicate why they are relevant. The High Court will then be in
a position to make a proper determination under rule 35(11).

Conclusion
[162] Both the High Court and the Supreme Court of Appeal disposed of the matter on
the basis that the High Court’s review jurisdiction was not ousted , and that nothing
stood in the way of RBCT seeking review relief together with the wide appeal. It was
on this basis that those Courts found that RBC T was entitled to a record under rule 53.

[163] Given the contrary conclusion reached by this Court, it w ould have been
incumbent upon the High Court t o determine whether to exercise its review jurisdiction ,
and, in doing so , satisf y itself that RBCT had advanced sufficient reasons why they
would have been entitled to proceed by way of review. The High Court would also
have had an opportunity to determine which rule RBCT ought to rely on to obtain
KOLLAPEN J
67 documents from SARS flowing from its conclusion relating to the exercise of its review
jurisdiction.

[164] The High Court did not undertake such an enquiry , largely because it laboured
under the belief that it did not have discretion on how it could exercise its review
jurisdiction.

[165] Under those circumstances , that determination must first be made by the
High Court. T his Court would not be in a position do so , largely because it has not had
the benefit of argument or submissions on that issue . Under these circumstances it
would be appropriate to set aside the orders of th e High Court and the
Supreme Court of Appeal and , in their place , make an order remitting the matter to the
High Court to deal with in accordance with the principles set out in this judgment.

Costs
[166] Given that the parties have all achieved some measure of success in what is a
nove l issue, the appropriate order as to costs would be that the parties should be
responsible for their own costs in this Court, the Supreme Court of Appeal and the
High Court.

Order
[167] The following order is made:
1. Leave to a ppeal is granted .
2. The appeal is upheld.
3. The order s of the High Court and the Supreme Court of Appeal are set aside
and substituted with the following :
“(a) The application in terms of rule 30A is referred to the High Court for
redetermination and, in doing so, the High Court is required to —
(i) determine whether, regard being had to the existence of a wide
appeal under section 47(9)(e) of the Customs and Excise Act
KOLLAPEN J
68 91 of 1964, the respondent has made out a case justifying the
exercise of that Court’s review jurisdiction.
(ii) make an order arising from that determination and of the kind
contained in [145] of this judgment. ”
4. The parties are ordered to pay their own costs in this Court, the
Supreme Court of Appeal and the High Court.


For the Applicants :



For the Respondent: J Pamment er SC, G Marcus SC and
M Mbikiwa instructed by Linda
Mazibuko and Associates

M Chaskalson SC instructed by
Shepstone and Wylie