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[1] The applicant applies for an order to stay the main application and the
interlocutory application in terms of rule 35(13) pending a decision of the
Constitutional Court in the respondent’s appeal in Commissioner for the South
African Revenue Service and Another v Richards Bay Coal Terminal (Pty) Ltd
with case number 1299/2021 (“the Richards Bay matter”) .
[2] The application is opposed by the respondent .
Background
[3] On 11 April 2018 the respondent withdrew a tariff determination and re -
determined the product ( Apple iPhone 6) under tariff heading TH 8517.20.10.
The applicant launched the main application to set aside the re -determination
and to replace it with a tariff determination under tariff heading TH 8571.62.90.
The application is brought as both a review and a statutory appeal.
[4] In terms of the notice of motion the respondent had to deliver the record of the
decision within 15 days of the notice of motion. The respondent failed to deliver
the record and o n 2 March 2020, the applicant brought an application in terms
of rule 30A to compel delivery of the record. The applicant would only be entitled
to the record of the decision if the court had review jurisdiction in respect of tariff
determinations made by the respondent.
[5] The respondent contended that the court does not have review jurisdiction and
opposed the application to compel the filing of the record . The application was
heard by Tolmay J on 21 October 2021. Judgment was delivered on 10 March
2022 and Tolmay J declared, inter alia , and in view of the wide appeal afforded
to the applicant in terms of section 47(9)(e) of the Customs and Excise Act, 91
of 1964 (“the Act”), that the court does not have jurisdiction to review the
respondent’s tariff determination
[6] The applicant did not appeal the final judgment of Tolmay J.
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Stay of proceedings
[7] On 1 August 2 023, the applicant launched the present stay of proceedings
application.
[8] The reason for the stay of the proceedings is the pending appeal in the
Constitutional Court in the Richards Bay matter. The applicant explains that the
same question of law which was decided by Tolmay J was considered by the
Supreme Court of Appeal in the Richards Bay matter. On 23 March 2023 the
Supreme Court of Appe al handed down judgment and reached a different
conclusion than Tolma y J, namely that section 47(9)(e) of the Act does not
exclude a taxpayer’s right to review under section 33 of the Constitu tion.
[9] The respondent lodged an appeal against the decision of the Supreme Court
of Appeal to the Constitutional Court, which is the appeal that is still pending.
[10] According to Petrus Erasmus (“Erasmus”) , the deponent to the founding
affidavit filed herein, the pending appeal in the Richards Bay matter has the
following impact on the main application:
“21.2 If the Respondent’s appeal to the Constitutional Court is successful, the
Applicant cannot request the production of the record from the
Respondent. However, if the appeal is not granted or is unsuccessful,
the Respondent would be obliged to provide the Applicant with the
record.”
[11] In its answering affidavit the respondent alerted the applicant to the fact that
Tolmay J’s judgement is not subject to an appeal and remains a final judgment
in these proceedings until set aside on appeal .
[12] In response Erasmus stated the following:
“3.5 The Applicant elected not to appeal Tolmay J’s judgment as the
Commissioner’s appeal against the order by the court of first instance in
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the Richards Bay matter compelling him to provide the record in terms
of Rule 53, was pending at the time when Tolmay J’s judgment was
handed down. The Applicant was advised to rather await the decision of
the SCA in the Richards Bay matter than to incur the costs of pursuing
an appeal on the identical question which was pending before the SCA.
I am aware that the Supreme Court of Appeal has confirmed that courts
may exercise their inherent j urisdiction to stay proceedings where a
similar matter is pending in another forum until proceedings have been
completed and judgment is given.”
Submissions and discussion
[13] The applicant is correct that a court will exercise its inherent jurisdiction in terms
of section 173 of the Constitution to stay proceedings where a similar action is
pending in another forum until proceedings have been completed and judgment
delivered .
[14] In Caeserstone SDOT -Yam Ltd v World of Marble and Granite 2000 CC and
Others 2013 (6) SA 499 (SCA), the court granted a stay of proceedings in the
Western Cape High Court pending the determination of the same issues before
a court in Israel. It is important to note that the issues in dispute were between
the same parties and were still alive in the Western Cape High Court . No final
determination had been m ade in respect of any of the issues in the Western
Cape High Court. [Also see: Mokone v Tassos Properties CC and Another 2017
(5) SA 456 (CC).]
[15] In the present matter, the question whether this court has review jurisdiction is
not pending between the parties. The issue had been finally determined by
Tolmay J.
[18] The principle that a judgment is final until reviewed or set aside is trite. Mr
Marcus SC, counsel for the respondent, referred to the recent Constitutional
Court judgment in Municipal Manager, OR Tambo Municipality v Ndabeni 2023
(4) SA 421 (CC) in which the court confirmed the principle:
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‘[23] Trite, but necessary, it is to emphasise this court's repeated exhortation
that constitutional rights and court orders must be respected. An appeal or
review — the latter being an option in the case of an order from the magistrates'
court — would be the proper process to contest an order. A court would not
compel compliance with an order if that would be 'patently at odds with the rule
of law'. Notwithstanding, no one should be left with the impression that court
orders — including flawed court orders — are not binding, or that they can be
flouted with impun ity.
[24] This court in State Capture reaffirmed that irrespective of their validity,
under s ection 165(5) of the Constitution, court orders are binding until set
aside. Similarly, Tasima held that wrongly issued judicial orders are not
nullities. They are not void or nothingness, but exist in fact with possible legal
consequences . If the judges had the authority to make the decisions at the time
that they made them, then those orders would be enforceable. ” (footnotes
omitted).
[19] It follows that whatever the Constitutional Court’s finding in the Richards Bay
matter may be, the finding will have no legal consequence in the present matter.
[20] In the result, the applicant has failed to satisfy the court that a stay of
proceedings will be in the interests of the parties, the court or justice and the
application stands to be dismissed with costs .
ORDER
The following order is granted:
1. The application is dismissed with costs , including the costs of two counsel on
scale C.