IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
CASE NO : 20306/2022
In the matter between :-
ASTRON ENERGY (PTY) LTD PLAINTIFF / RESPONDENT
and
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE SERVICE DEFENDANT / EXCIPIENT
Coram : MOOSA AJ
Heard : 26 MAY 2025
Delivered : 09 JUNE 2025 (delivered electronically to the parties )
Summary : Civil procedure – Customs and Excise Act 91 of 1964 – refund
of R2,7 billion disallowed - taxpayer appeals by way of
summons – as alternative remedy, action includes review of a
decision by the Internal Appeal Committee – summons with
particulars of claim incorporating tariff determination appeal and
PAJA review is sui generis – proper approach to adjudicating
exception that summons lack s necessary averments to sustain
appeal and review - impact of CSARS v Richard Bay Coal
Terminal (Pt y) Ltd [2025] ZACC 3 on customs’ tariff appeals and
PAJA reviews
___________________________________________________________________
ORDER
___________________________________________________________________
Defendant’ s exceptions are dismissed with costs, such costs to include the cost of
two counsel on Scale C (where two counsel s have been employed ).
___________________________________________________________________
JUDGMENT
____________________________ _______________________________________
Moosa AJ
Introduction
[1] This judgment relates to three exceptions raised by the defendant, being the
Commissioner for the South African Revenue Service (the CSARS), against the
particulars of claim filed by the plaintiff , being Astron Energy ( Pty) Ltd ( Astron ).
[2] At first, only two exceptions were raised . However, o n 9 May 2025, the
CSARS gave notice of its intention to amend the grounds of its exception by
introducing a third one. It did so pursuant to the judgment in CSARS and Another v
Richards Bay Coal Terminal (Pty) Ltd (CCT 104/23) [2025] 3 (31 March 2025).
Following Astron ’s consent to the amendment , same was effected in accordance with
rule 28(7) .
[3] Each exception raised is premised on an averment that certain of Astron ’s
grounds of appeal and review did not include factual allegations necessary to sustain
those cause s of action. Counsel for CSARS , Mr Peter SC, requested that I strike out
paragraphs 137 to 209 of Astron ’s particulars of claim, along with prayer s 5 and 6.1
He emphasised that the CSARS has no objections to any of the other pleaded
paragraphs and prayers. He submitted further , that Astron should be afforded an
opportunity to amend its impugned paragraphs and prayers .
1 Prayer 5 reads: ‘The Appeal decision dated 2 December 2021 is reviewed and set aside.’
Prayer 6 reads: ‘The Appeal decision is substituted wi th the following order: “The appeal is upheld.”
[4] Astron ’s counsel, Mr Janisch SC, was critical of the CSARS’s exceptions . He
submitted that they reflect the adoption of what he called a ‘holus -bolus’ approach .
[5] Mr Janisch u rged me to dismiss the exceptions with costs , which should
includ e costs f or two counsels . He added that even if I w ere inclined to find merit in
any exception , I should dismiss same since the CSARS is not prejudiced by
paragraphs 137 to 209, nor d oes the CSARS allege any prejudice , nor did its
counsel argue that the CSARS is prejudiced by the particulars in question . I will
revisit these submissions later.
[6] In order t o evaluate the merits of the exceptions , (or lack thereof), it is
necess ary that I, first provide context regarding Astron ’s summons , and outline the
salient averments in its particulars of claim for the relief it seeks in pursuit of its twin
causes of action, namely, a customs ’ tariff appeal and a review under the PAJA .
Astron 's summons with particulars of claim and relevant prayers
[7] The dispute between Astron and the CSARS has its genesis in a customs and
excise audit conducted by SARS , which spanned from May 2015 to March 2017 .
The audit was conducted in terms of the Customs and Excise Act 91 of 1964 ( the
C&E Act).
[8] The audit revealed five significant findings . SARS alleges that Astron is liable
for unpaid excise duties and levies pursuant to s 47 of the C&E Act . On this basis ,
SARS issued a notice dated 10 October 2019 , indicating its intention to assess
Astron , previously known as Chevron South Africa (Pty) Ltd , for R2 714 001 723,73
(including interest and penalties) . Astron made representations in a letter dated 6
December 2019.
[9] Astron ’s representations that it was entitled to refunds on excisable or fuel
levy goods in an amount at least equal to this sum failed . SARS issu ed a letter of
demand (the LOD), a copy of which is annexed to Astron ’s summons as POC1. It
includes SARS’s determination that Astron is liable for a tax debt slightly exceeding
R2,7 1 billion .
[10] On 21 February 2020, SARS issued a demand for payment in the LOD.
Astron, in response, requested written reasons in terms of section 77D read with
section 77H of the C&E Act, along with Rule 77H.02 related thereto. A copy of
Astron ’s reque st, which includes its detailed grounds challenging SARS’s
determinations is annexed to the summons marked POC6.
[11] On 18 September 2020, Astron lodged its internal administrative appeal under
s 77C read with s 77H a gainst the bulk of SARS’ s determination in the LOD which
disallow ed the refund claims and the set off thereof against the tax debt .2 A summary
of the disputed refunds is annexed to the summons marked POC3. This internal
appeal is regulated by Chapter XA of the C&E Act.3 Astron ’s appeal , (comprising
both factual and legal grounds) , is annexed to the summons marked POC7. The
appeal failed.
[12] On 2 December 2021, the Internal Appeal Committee (the I AC) handed down
its final decision , which detailed the reasons for the dismissal of Astron ’s internal
appeal (the Appeal Decision). A copy thereof is annexed to the summons marked
POC2.
[13] In accordance with s 47(9)( e) of the C&E Act , Astron filed an appeal with this
Division against the determination contained in both the LOD and the Appeal
Decision, but only to the extent that the latter is considered to encompass a
‘determination’ within the contemplation of either s 47(9)( a) or (d).
2 In accordance with s 77B(1) of the C&E Act, a taxpayer is not obliged to exhaust the internal
administrative appeal remedy before launching a wide appeal to a competent high court under s
47(9)(e). It may elect to launch the internal appeal remedy or proce ed directly to the dedicated
alternative (external) wide appeal remedy . In Richard’s Bay Coal Terminal supra para 91, it was held:
‘After all, the CEA provides the legislative choice in addressing tariff determination disputes. In
addition, when one has re gard to the nature of a wide appeal, then it may achieve much more than an
internal remedy. Its ability to correct and redetermine 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.’
3 Chapter XA makes provision for the resolution of disputes arising out of decisions made in
terms of the C&E Act. It is divided into three parts: Part A provides for an internal administrative
appeal; Part B provides for alternative dispute resolution; and Part C m akes provision for the
settlement of disputes.
[14] Astron, in paragraph 28.2 of its particulars of claim, refuted the notion that the
Appeal Decision constitutes an appealable ‘determination’. Its view that it lacks this
status is predicated on the interpretation of the relevant statutory provisions
accorded by this Division in Tunica Trading 59 (Pty) Ltd v CSARS 85 SATC 185
(WCC) . The Full Court’s judgement in CSARS v Tunica Trading 59 (Pty) Ltd [2024]
All SA 1 (SCA) on this aspect was not overturned on appeal. SARS ’s view on this
interpretive question is that a decision by the IAC has the status of a ‘determination’
under s 47(9). Owing to this interpretive dispute , paragraph 28.2 is articulated in the
way it is. In his heads and at the hearing, Mr Peter emphasised that this disputed
point on a matter of law is not before me for adjudication . Mr Janisch agreed.
Consequently, I refrain from addressing that interpretive issue in this judgment .
[15] In the light of the denial pleaded in paragraph 28.2, Astron ’s particulars of
claim includes an alternative remedy , namely, a review of the Appeal Decision under
the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) . This is contingent
on a court of law determining that the Appeal Decision does not constitute an
appealable ‘determination’ , but rather a decision in volving the exercise of public
power pursuant to s 77E of the C&E Act and, as such, is reviewable ‘administrative
action’ . The trial court will be called upon to resolve this interpretive dispute .
[16] The alternative remedy is pleaded as follows :
‘30. In the alternative to paragraph 28.2 above, and in any event, the
appeal decision falls to be reviewed and set aside in terms of PAJA.’
[17] Subsequently, at paragraph 31 of its particulars of claim, Astron identifie d
three ‘ further decisions on the part of the Commissioner, as detailed in the letter of
demand and maintained in the appeal decision’ which ‘fall to be reviewed and set
aside in terms of PAJA’. As noted above in paragraph 3, the CSARS does not take
issue with thes e paragraphs for purposes of its exception s. The exceptions outlined
in terms of rule 23 do not impact Astron’s appeal or the alternative review of the
determinations specified in the LOD itself .
--
[18] The extracts referenced above ex paragraphs 30 and 31 of Astron ’s
particulars of claim align with the relief sought in prayer 5 . As referenced above in
footnote 1, it reads: ‘The Appeal decision dated 2 December 2021 is reviewed and
set aside.’
[19] The phrasing of prayer 5 should be understood within its appropriate context ,
considering both this prayer and the rest of the prayer s viewed as a cohesive whole ,
taking into account also the pleadings preceding the prayers .4 This leads to my
finding that prayer 5 is, contrary to Mr Janisch’s submissions, not couched
sufficiently broad ly to include within its remit Astron ’s tariff appeal. Prayer 1
addresses the tariff appeal concerning the LOD and the Appeal Decision , as may be
applicable.5 However, given that the exceptions do not extend to Astron’ s review
concerning the LOD, it is not permissible for the CSARS to pursue, as it currently
does, the striking out of prayer 5. On this basis alone , the striking out of prayer 5 is
unjustified and is refused .
[20] Under these circumstances, it follows that prayer 6 can also not be struck out
either (see quote above in footnote 1). Prayer 6 seeks a substitution of the Appeal
Decision so that ‘[t]he appeal is upheld’. When interpreted correctly within its context,
the order sough t in prayer 6 applies to the tariff appeal referred to in prayer 1 which
is noted against the LOD and the Appeal Decision . This is contingent upon the
Court's finding that the latter , in law, includes a ‘determination’ under s 47(9)( a) or ( d)
of the C&E Act, as contemplated in Tunica Trading 59 (Pty) Ltd v CSARS supra para
85.
[21] The following dicta in Richard’s Bay Coal Terminal supra fortifies my view that
prayer 6 relates to Astron ’s wide tariff appeal and not to its review:
‘[116] … 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
4 See Kevin John Eke v Charles Henry Parsons 2016 (3) SA 37 (CC) paras 29 -30.
5 Prayer 1 reads: ‘The Plaintiff’s tariff appeal is upheld.’
there may be nothing left to review, as the Court observed in BP Southern
Africa , where it asked, in the context of 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?”
[117] On the other hand, if a review court finds a reviewable irregularity 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. ’ (Emphasis
added) (Authorities omitted)
Astron has not pleaded ‘exceptional circumstances’ for subs titution as a remedy in its
review. Therefore, having regard to the structure and formulation of its pleaded case,
the substitution sought in prayer 6 must logically pertain only to the statutory tariff
appeal concerning the LOD and the Appeal Decision (to the extent applicable).
[22] According to my findings in paragraphs [19] to [21], striking out of prayer s 5
and 6 would infringe upon Astron ’s constitutional right of access to the court for an
effective remedy concerning its appeal or, at the very least, the LOD review .6 In the
context of this case, prayers 5 and 6 provide Astron with a remedy i f it were to prevail
in the case pleaded , to which the CSARS has not raise d an exception under rule 23 .
[23] The CSARS fails to recognise that Astron may elect to pursue its appeal
against, or its review of, the LOD. The grounds pleaded in paragraph 31 of Astron ’s
particulars of claim (see quote above in paragraph [17]) indicate that its review of the
LOD is founded on grounds that extend beyond those in its appeal against the LOD.
If Astron pursue s its appeal first, the review against the LOD cannot proceed. This
accords with the following dictum in Richard’s Bay Coal Terminal supra para 143(c):
‘The taxpayer may simply pursue an appeal, in which case, the appeal will
proceed as usual and the right to review at a later time is lost, since a review
6 Section 34 of the Constitution, 1996 (the Constitution) reads: ‘Everyone has the right to have
any dispute that can be resolved by the application of law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial tribunal or forum.’
must logically precede an appeal. This is so, because an appeal
presupposes the existence of a lawful decision.’
[24] Under the heading ‘APPEAL AGAINST THE DETERMINATION (LETTER OF
DEMAND)’, paragraphs 33 to 134 of the particulars of claim enumerates various
factual and legal grounds for the appeal against the LOD. None of the exceptions
relate to th at appeal or to these paragraphs , nor to paragraphs 135 to 136 under the
heading ‘SECTION 75(11A) OF THE CUSTOMS ACT’. They are all unchallenged.
The exceptions raised by the CSARS to Astron ’s particulars of claim
[25] The grounds of the CSARS’s exceptions relate to Astron ’s tariff appeal and its
review of the Appeal Decision. This is clear from the Notice of Exception quoted
below . The grounds of exception challenge paragraphs 137 to 209 of the particulars
of claim, all of which appear under the heading ‘APPEAL AGAINST AND REVIEW
OF THE APPEAL DECISION’.
[26] The Notice of Exception formulates the three exceptions in the following
terms:
‘FIRST EXCEPTION
4 In parag raph 138 the plaintiff pleads that to the extent that the letter of
demand is set aside, as the plaintiff has pleaded in its cause of action
for an appeal against the determination in the letter of demand, the
appeal decision of the Committee, being a subs equent act which
depends for its validity on the validity of the letter of demand, is of no
force or effect.
5 Paragraph 139 pleads that both the appeal against the Committee’s
decision and the review are conditional on the Court not finding that the
appe al decision is of no force and effect on the above basis.
6 By reason of wha t the plaintiff has pleaded, the only circumstances in
which the Court will not find that the appeal decision is of no force and
effect on the above basis, will be where the Court does not set aside
the said letter of demand and dismisses the plaintiff’s a ppeal against
the tariff determination, refusing the relief sought in prayers 1 – 3,
thereby confirming and validating the determination in the letter of
demand.
7 That being so, irrespective of the merits of the plaintiff’s criticisms [of
the] Committee ’s decision, the summons and particulars of claim lack
averments necessary to sustain the action for the relief in prayers 5
and 6, given the premise on which the causes of action [are] based.
SECOND EXCEPTION
8 In paragraph 140 the plaintiff pleads a leg al contention that, in an
appeal envisaged in section 77E, the Committee was not empowered
to extend beyond the ambit of the Commissioner’s findings and
grounds for his determination set out in the letter of demand.
9 In paragraphs 141 – 143, the plaintif f pleads that the basis of both the
cause of action for the appeal and the alternative cause of action for
review are premised on factual allegations that the Committee based
its decision on findings and/or factors which had not formed the basis
of the det ermination in the letter of demand; such additional findings
and/or fact being enumerated in the succeeding paragraphs.
10 The plaintiff’s cause of action are premised on the legal contention
pleaded in paragraph 140 together with the factual allegations of
additional findings and factors.
11 The plaintiff’s legal premise is incorrect. As a matter of law, the
Committee was permitted to base its decisions on findings or factors
which had not formed the basis of the determination in the letter of
demand , the nature of the appeal being a wide appeal encompassing a
hearing de novo with additional evidence and consideration being
permitted.
12 That being so, the summons and particulars of claim lack averments
necessary to sustain an action for the relief in prayers 5 and 6.
THIRD EXCEPTION
13 The effect of appeal decision by the High Court, on the plaintiff’s
anterior cause of action, would be to either affirm the correctness of
both the determination and the decision on the internal administrative
appeal or overturn and replace both the determination and the decision
on the internal administrative appeal.
14 In pursuing the relief of a review in prayers 5 and 6, the plaintiff
purports to exercise unlimited and unhindered choice of remedy, of
both an appe al to the High Court against the tariff determination and
subsequently thereafter a review.
15 In seeking to pursue review relief the plaintiff does not:
15.1 make any allegation that the Court has made an order directing
that a review may be pursued;
15.2 make averments or allege facts that advance a proper basis, or
any basis at all, why it is in the interests of justice that review
relief be pursued in circumstances where not only is the remedy
of a statutory wide appeal available, but such statutory wide
appeal has been pursued as an anterior cause of action.’
[27] Since there is a measure of overlapping between the exceptions, I summarise
their essence collectively. Shorn of all frills, the exceptions are to the following effect:
they request that paragraphs 137 to 209 of the particulars of claim be struck out en
masse , as it is alleged to lack factual averments necessary to sustain a cause of
action in relation to Astron ’s appeal against , or alternatively review of , the Appeal
Decision (excluding the appeal , alternatively review , of the LOD). The se exceptions
remain alive for resolution , notwithstanding my decision not to strike out prayers 5
and 6 for the reasons explained previously in this judgment (see above in
paragraphs [19] to [2 3]).
Proper approach to resolving the exception s to Astron ’s appeal cum review
[28] Rule 23 permits a defendant to challenge a pleading through exception if a
plaintiff pleads it s cause of action deficiently. In relevant part , rule 23(1) reads:
‘Where any pleading is vague and embarrassing, or lacks averments which
are necessary to sustain an action or defence, as the case may be, the
opposing party may, within the period allowed for filing an y subsequent
pleading, deliver an exception thereto …’ (Emphasis added)
[29] In law, context is of paramount importance . See Aktiebolaget Hässle and
Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) para 1. To understand how rule
23 is to be applied to Astron’s tariff appeal , or alternatively review of the Appeal
Decision , which involve s statutory cause s of action , it is necessary to start with a
discussion of the relevant legal framework . This aspect has not yet received
thorough judicial scrutiny.
[30] Applications for reviews under the PAJA are typically brought on application
by notice of motion pursuant to rule 6 . See Distell Ltd and Another v CSARS and
Another [2007] 69 SATC 15 (T); Tunica Trading 59 (P ty) Ltd v CSARS supra . Rule 53
also provides for review s on notice of motion concerning decisions or proceedings of
individuals or entities engaged in judicial, quasi -judicial, or administrative function s.
In review s brought by petition on motion , rule 23 does not provide a respondent with
a remedy to weed out a bad application. At best, a respondent may use rule 6(15) to
apply for a striking out from a n affidavit of ‘scandalous, vexatious or irrelevant’
material .
[31] Appeal s usually follow judgment s. Generally, appeal s commence with the
filing of a notice outli ning the appellant’s factual and legal grounds f or the intended
appeal. Civil appeals in the high court s are regulated by rule 49 (civil appeals from
the high court) and rule 50 (civil appeals from magistrate’s court). In a post-judgment
appeal proceeding under rule 49 or 50, a respondent is unable to use rule 23 to
challeng e a defectively pleaded appeal.
[32] A statutory appeal envisaged by s 47(9)( e)7 of the C&E Act and a review
under the PAJA regarding a decision made under s 77E of the C&E Act , both
relevant to this case , are processes affected by s 96(1)8 of the C&E Act. Under the
Uniform Rules, t hese processes follow a distinct procedural regime when instituted
by summons under rule 17 , in contrast to when they are commenced as applications
under rule 6 .
[33] A taxpayer ’s entitle ment to launch a tariff appeal through either a notice of
motion or summons is consistent with s 96(1) (a)(i) of the C&E Act which provides
considerable flexibility. Within its context , and to give effect to its underlying
purpose s, the concept of an ‘action’ encompasses both motion and summons
proceedings . The extensive scope of s 96(1) corresponds with the breadth of the
following phrase in it: ‘[n]o process by which any legal proceedings are instituted
against the State, the Minister, the Commissioner or an officer for anythin g done in
pursuance of this Act may be served …’.
[34] The words ‘no process … may be served’ significantly broadens the scope of
s 96(1) regarding the types of processes included. This interpretation promotes the
realisation of the aims underpin ning s 96(1) . Its objects are described as follows:9
‘[33] The purpose of s 96(1) is self -evident: to allow SARS, the organ of state
charged with the administ ration of the Act, to investigate or review the merits
of the intended legal proceedings and decide what position to adopt in relation
thereto. It may, for example, in an appropriate case decide to resolve the
7 Section 47(9)( e) reads: ‘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.’
8 The relevant portion of s 96 reads: ‘ Notice of action and period for bringing action. —
(1) (a) (i) No process by which any legal proceedings are instituted against the State, the Minister,
the Commissioner or an officer for anything done in pursuance of this Act may be served before the
expiry of a period of one month after delivery of a notice in writing setting forth clearly and explicitly
the cause of action, the name and place of abode of the person who is to institute such proceedings
(in this section referred to as the “litigant”) and the name and address of his or her attorney or agent, if
any.’ Section 96(1) applies to tariff appeals by virtue that s 47(9)( f) stipulates that every appeal
prosecuted pursuant to s 47(9)( e) is ‘subject to section 96(1)’.
9 CSARS and Others v Dragon Freight (Pty) Ltd and Others 85 SATC 289. For the purpose of
the C&E Act generally, see Nu Africa Duty Free Shops (Pty) Ltd v Minister of Finance and Other s
2024 (1) SA 567 (CC) para s 109 - 110.
dispute before the institution of legal procee dings, so as to avoid unnecessary
and costly litigation at public expense.
[34] SARS is a large and complex institution with extensive administrative
responsibilities and high workloads. Its functions are not confined to the
levying of customs and excise duties under the Act, but include the recovery
of taxes under the Income Tax Act 58 of 1962 and the administration of the
Value -Added Tax Act 89 of 1991. The s 96(1) notice enables SARS to ensure
that a matter is brought timeously to the attention of the appropriate official for
investigation or review. In my opinion, s 96(1) (a) of the Act promotes the
efficient and economic use of resources, in accordance with the basic values
and principles governing public administration set out in s 195 of the
Constitu tion.’
[35] A review of a decision by the IAC , brought under the PAJA on notice of motion
qualifies as an ‘action’ as defined by s 96(1) of the C&E Act. See CSARS v Tunica
Trading 59 (Pty) Ltd supra paras 40 - 49. For a review to be initiated, the factual
event that led to its cause must have taken place. In other words, there must be a
completed ‘administrative action’ as defined in the PAJA which can be subject to
review . If not, then the review lacks a proper foundational basis ( ie, cause ) for the
‘action’ brought .10
[36] The use of a summons to institut e a tariff appeal is consistent with s 96(1)
applying to action proceeding s. An ‘action ’ is typically launched by summons.
Although the SCA, in Distell Ltd v CSARS 2012 (5) SA 450 (SCA), stated (at footnote
5) that, i n terms of s 47(9) (e), ‘an appeal against a determination … is heard as a de
novo application ’ (emphasis added) , the appeal may occur as a trial . This happens
routinely in tax court appeals under the Tax Administration Act 28 of 2011 (the TAA) .
10 This principle is stated in CSARS v Dragon Freight supra para 36 as follows : ‘What is more,
when the February notice was delivered, no ‘administrative action’ as defined in the Promotion of
Administrative Justice Act … had been taken. That definition includes a decision taken by an organ of
state when exercising a public power or performing a public function in terms of any legislation “which
adversely affects the rights of any person and which has a direct, external legal effect ”. This merely
reinforces the absence of any cause of action when the February notice was delivered.’ Also, see
CSARS v Prudence Forwarding (Pty) Ltd 2015 JDR 2545 (GP) para 28.
See CSARS v Massmart Holdings Ltd (IT14294) [2018] ZATC 2 (11 July 2018) para
4.
[37] Tax appeal s, whether in a tax court (see Poulter v CSARS (A88/2023) [2024]
ZAWCHC 178 (28 June 2024) para s 11, 20) or in a high court under s 47(9)( e) (see
Richard’s Bay Coal Terminal supra paras 91 - 94, 116 ), involve an appeal in the wide
sense . It involv es conducting a hearing from the beginning . A fresh evaluation is
conducted on the merits of the impugned decision or determination . New evidence or
information that was not included in the record of SARS’s internal process es may be
adduced on appeal .
[38] The reasons for this salutary practice in the context of a wide tariff appeal are
usefully explained in Pahad Shipping CC v CSARS [2010] 2 All SA 246 (SCA) para s
13 - 14. The rationale is grounded in fairness . This represents a core component of a
taxpayer’s fundamental right entrenched in s 34 of the Constitution (see quote in
footnote 6) .
[39] Section 47(9)( e) of the C&E Act guarantee s a substantive right of appeal to
every taxpayer aggrieved by a final determination . The appeal is directed to a High
Court simpliciter . It hears the appeal as a court of first instance. The taxpayer bears
the onus of proof. O ral evidence may be presented. This is one of the distin guish ing
features of appeals within this genre . Compare appeals governed by rules 49 and
50.11 Within this context , rule 23 serves as an effective procedural instrument. It may
be used to weed out bad ta riff appeals instituted against legally sound tariff
determinations . See Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006
(1) SA 461 (SCA) para 3 . Rule 23 applies to appeals held in tax courts as well . See
Massmart Holdings Ltd supra para s 6 - 7.
[40] A key benefit of the remedy in rule 23 is that it can facilitat e the expeditious
disposition of a tariff appeal through the avoidance of unnecessary evidence being
11 Ordinarily, oral evidence is not heard on appeal . Appellate courts decide appeals with
reference only to the record of evidence a quo, save when leave is granted for new evidence to be
adduced in exceptional circumstances. See Gumbo NO v Spruyt 2020 JDR 1761 (GP) para 12.
led at the trial. This not only reduces costs for the protagonists in the appeal but also
safeguard limited judicial resources from being wasted .
[41] Astron combined its review under the PAJA with the summons that included
particulars of claim contain ing its tariff appeal under s 47(9)( e). This unusual
amalgam is procedurally acceptable . See Richard’ s Bay Coal Terminal supra para
143(a).12
[42] A particulars of claim embodying a tariff appeal and PAJA review is a sui
gene ris pleading . It does not conform to the conventional mould of a particulars of
claim , as rule 17(2)( a) and 18(4) only permit ‘material facts ’ to be pleaded . These are
facts that establish a specific cause of action (ie, the facta probanda which a plaintiff
must allege and prove at trial to sustain a cause and , consequently, prove a right to
judgment) .
[43] In each case, t he character of the facta probanda is determined by
considering the particular type of action involved, the issue(s) presented, and any
overarching legal principles of law that emerge from the facts that have been
pleaded. See Du Toit NO and Others v Steinhoff International Holdings (Pty) Ltd and
Others [2020] 1 All SA 142 (WCC) paras 33.2 - 33.3.
[44] Tariff appeals operate in a distinct manner. A tariff appeal may be based on
factual matters that necessitate evidence , or it may be based on matters of law
which depend on legal rules or principles , rather than witness testimony. Additionally,
it can also involve a blend of both factual and legal considerations. The same is true
under tax court rule 32(2)( c). It provides that an appellant’ s statement of the grounds
of appeal must set out ‘the material facts and the legal grounds upon which the
appellant relies for the appeal and opposing the facts or legal grounds in the
statement under rule 31’ .
12 Para graph 143(a) reads: ‘The taxpayer may institute a review and appeal in the same
process , 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 rev iew is successful, the
decision is set aside and the need for the appeal falls away. If the review is unsuccessful, the court
may consider the appeal.’ (Emphasis added)
[45] Therefore, the general rule of procedure that particulars of claim encompass
facts and not law cannot be rigidly applied to tariff appeal s (or to statements of
appeal for use in a tax court) . Similar to notices of appeal in general, a tariff appeal
may be grounded on the application of rules or principle s derived from a legal source
in tax administration (such as, legislation ; a SARS interpretation note or explanatory
note; a practice generally prevailing ; and/or judicial precedent ). An appellant
taxpayer may even challenge a provision in a law or advance a novel principle that a
court is then called upon to endorse to support the outcome which the taxpayer
seeks. Any l aw-based ground of appeal must be pleaded as a taxpayer is restricted
to the grounds pleaded , whether in original form or as amended . See CSARS v Free
State Development Corporation 2024 (2) SA 282 (SCA) para 39.
[46] Deviatin g from the strict observance of rule 17(2)( a) and 18(4) is in th e
interests of justice (Eke v Parsons supra paras 39 - 40), considering the unique
context in which a taxpayer’s summons functions . It is utilised to initiate an appeal .
By accommodating the factual and legal grounds of appeal, greater expression is
given to the fact that high courts regulate their own proceedings and that rules exist
for the court s (not courts for the rules ).13 Also, relaxation of the rules will bring a n
appeal under s 47(9)( e) of the C&E Act on par with an appeal to the tax court heard
in terms of the TAA.
[47] As a result , a taxpayer's constitutional right to access a high court for the fair
resolution of a contested tariff appeal under s 47(9)( e) will not be undermined nor
eroded through rigid adherence to the dictates of rule 17(2)( a) and 18(4) .
[48] The discussion in paragraphs [10] to [15] above indicates that Astron’s tariff
appeal against the Appeal Decision is grounded partly upon fact s leading to certain
conclusions of law, and partly on fundamental legal principles. In this context, what
must the CSARS prove to succeed with its exceptions o n the basis that Astron’s
particulars of claim lack the necessary averments to support its appeal against the
Appeal Decision ? In other words, what is required for me to uphold the CSARS’s
13 In Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654D, it was held: ‘ The court does not
encourage formalism in the application of the Rules. The rules are not an end in themselves to be
observed for their own sake. They are provided to secure the inexpensive and expeditious completion
of litigation before the courts.’ Also, see Eke v Parsons supra para 40.
exceptions against Astron’s stated grounds of appeal based on factual and legal
matters concerning the Appeal Decision?
[49] The dilemma highlighted by these question s were foreshadowed by Selikowitz
J in Ideal Fasteners Corporation CC v Minister of Finance [1996] 1 All SA 373 (C) at
375 where , in relation to an appeal under s 47(9)( e) of the C&E Act , he held as
follows :
‘A “cause of action” , as it is commonly known, is, to quote the words of Lord
Esher, a Master of the Rolls in Read v Brown 22 QBD 131, “Every fact which
it would be necessary for the plaintiff to prove if traversed in order to support
his right to the judgment of the Court, i t does not comprise every piece of
evidence which is necessary to prove each fact, but every fact which is
necessary to be proved.”
The idea of legal proceedings based on a cause of action focuses upon what
can be described as first instance jurisdiction r ather than appellate jurisdiction.
In an appeal the appellant no longer relies upon a “cause of action” properly
so-called. In particular in this Act the appeal is granted as a substantive right
in terms of subsection 47(9)(e) and needs to be prosecuted no t instituted. '
(Emphasis added)
[50] The context of this decision requires elucidation . The crisp issue which arose
for adjudication in Ideal Fasteners Corporation CC supra was whether the taxpayer’s
appeal under s 47(9)( e) constituted an ‘action’ as defined by s 96(1) . In accordance
with the provisions of s 47(9) of the C&E Act as it read at the time , Selikowitz J
responded to this question in the negative. In the succeeding year, s 47(9) was
amended by the Customs and Excise Amendment Act 44 of 19 96. Section 47(9)( f)
was amended to reflect that an appeal under s 47(9)(e) is subject to s 96(1), a
position that continues to hold true today.
[51] Accordingly, by the proverbial stroke of a pen, the legislature established that
appeal s under s 47(9)( e) are action s whose cause must be ‘clearly and explicitly’
articulated in the pre -litigation notice as envisaged by s 96(1)( a)(i). See Distell Ltd v
CSARS supra para 10.2; Baking Tin (Pty) Ltd v Minister of Finance NO and Another
69 SATC 171 at 174. The legislature enacted this as law even though, as pointed out
by Selikowitz J, appeals under s 47(9)( e) are not truly based ‘upon a “cause of
action” in the proper sense. This creates practical problem s when rule 23 is applied
there to.
[52] Nevertheless, our rule s-based constitutional order obliges high courts to
adjudicate every tariff appeal as an ‘action’ which, to be sustainable, must be
founded on properly formulated grounds of appeal (i.e., cause s). I reiterate , such
grounds may be entirely fact laden , or entirely founded on law. or a combination of
both (as is the position in casu ). This brings me back to the questions posed above
in paragraph [48].
[53] When pleading fact laden ground s of appeal , the facta probanda for every fact
intensive ground must be pleaded completely and ‘framed in a form that is lucid,
logical and intelligible, with the cause of action clearly evident from the factual
allegations made’ ( Steinhoff International Holdings supra para 27) . At exception
stage , a de cision is to be made regarding whether , upon considering every
conceivable reading of the particulars of claim as a whole , the facts pleaded are
sufficient to sustain an appeal based on a particular factual narrative . If a taxpayer
lacks the right to judgment on appeal owing to essential factual averments being
absent from any pleaded fact-based ground of appeal, then a rule 23 challenge
based on an allegation that the particulars of claim lack necess ary averments to
sustain the appeal , may be upheld . See Theunissen v Transvaalse Lewende Hawe
Koöp Bpk 1988 (2) SA 493 (A) at 500 .
[54] When pleading law-based ground s of appeal , cognisance must be taken that
grounds falling into this category are rooted in legal rules or principle s derived from
source s (such as , the C onstitution, statute, court rules, case law , interpretation
notes, and the like ). A law laden ground of appeal does n ot involve a so-called ‘jury
question ’. Thus, no evidence is led thereon. The issue involves a court decid ing what
the law is in relation to a specific legal question(s) raised by an appellant taxpayer .
See CSARS v Tunica Trading 59 (Pty) Ltd supra para 50 ; Potters Mill Investments 14
(Pty) Ltd v Abe Swersky & Associates and Others 2016 (5) SA 202 (WCC) para 11 .
[55] Accordingly, a law-based ground of appeal , whether pleaded by a taxpayer
expressly or by implication (see Coronation Brick (Pty) Ltd v Stracha n Construction
Co (Pty) Ltd 1982 (4) SA 371 (D) at 377 - 378), is not excipiable on the basis that it
lacks factual averments necessary to sustain the appeal . The question of w hether a
law intensive ground of appeal is excipiable on another basis recognised under rule
23(1) i s not an issue before me based on the specific exception grounds relied on by
the CSARS.
[56] For all these reasons, if an appellant taxpayer , as is the case with Astron,
pleads a combination of fact-based and law -based grounds of appeal , the n an
exception thereto under rule 23 must be examined with a view to determin ing
whether it challenges an identifiable deficiently pleaded fact -based and/or a law -
based ground of appeal . Challenge s to the latter category of grounds should not lead
to an exception being upheld under the rubric that the particulars pleaded in relation
thereto lack factual averments necessary to sustain the intended tax appeal .
Ground s of appeal based purely on a matter of law lack facta probanda . Therefore,
they do not require witness’ evidence for t hem to be sustained at an appeal trial.
[57] On the other hand, c hallenges under rule 23 to a fact-based ground of appeal
may lead to an exception being upheld, but only in relation to such a ground that, by
itself, could potentially be dispositive of the appeal as a whole, or a self-contained
part there of. See Shoprite Checkers (Pty) Ltd v Premier of Western Cape Province
and Another (17531/2022) [2023] ZAWCHC 185 (1 December 2023) para 8.5.
[58] The foregoing discussion indicates that the approach adopted to adjudicat e
an excep tion to a pleading delivered in a statutory tariff appeal (or statutory appeal in
a tax court under the TAA ) ought to be appropriately adapted to address the
somewhat un usual demand of an appeal noted and prosecuted in a court of first
instance. This is a sensible approach to an exception . See Telematrix (Pty) Ltd supra
para 3. Without any adaptation , rule 23 may be a blunt instrument used to knock out
legally sound tax appeals , rather than being used as an effective procedural tool to
weed out those tax appeals that lack merit .
[59] Concerning reviews launched under the PAJA, such ‘action ’ under s 96(1) of
the C&E Act is largely fact-based . A review is sought with reference to impugned
conduct qualifying as ‘administrative action’. However, t he possibility cannot be
excluded that instance s may arise where a ground of review is entirely law-based
(i.e., it does not originate from any fact which requir es evidence ). If that occurs , and
an exception is raised thereto on lines similar to th ose advanced by the CSARS in
this case, then the adjudicative process ought to be in a similar vein to that
discussed above in paragraphs [5 4] to [57] , subject to any necessary contextual
change (s).
[60] Having laid the edifice for my adjudication of the CSARS’s three exceptions
which go to the heart of Astron’s causes of action in relation to the Appeal Decision , I
now proceed to apply the relevant pr inciples to the impugned particulars of claim .
Application of legal principles on exception to Astron ’s pleaded case
[61] As excipient, the CSARS bears the onus o f establishing that, based on the
grounds averred in its notice of exception, the pleaded cause s of action ‘ is (not may
be) bad in law’. (my emphasis) See Ocean Echo Properties 327 CC and Another v
Old Mutual Life Assurance Company (South Africa) Ltd 2018 (3) SA 405 (SCA) para
9.
[62] Astron’s summons and particulars of claim comprise 74 pages. When
adjudicating the exceptions, they were considered in their entirety. The pleadings
provide a detailed exposition of the decisions taken , as well as the factual and legal
grounds for Astron’s appeal against, or alternatively , the review of the Appeal
Decision . In addition, the annexures to the summons , spanning some 255 pages,
were consid ered. They are relevant documents upon which Astron’s two causes of
action under s 96(1) of the C&E Act (ie, an appeal and a review) are based . The
annexures shed light on Astron’s pleaded case and are relevant to the analysis at
hand . See Jugwanth v Mobile Telephone Networks (Pty) Ltd [2021] 4 All SA 346
(SCA) para 3 ; Telematrix (Pty) Ltd supra para 2 ; First National Bank of Southern
Africa Ltd supra para 6 .
[63] Astron’s annexure POC6 outlines its multiple fact-based and law -based
grounds on which it claims entitlement to the disallowed refunds in respect of
excisable or fuel levy goods. Likewise, annexure POC7 details Astron’s fact -based
and law -based grounds for its appeal which served before the IAC. The various
grounds were contained in correspondence by Astron’s attorneys forming part of
SARS’s internal processes . Their contents are repeated in the particulars of claim on
appeal under s 47(9)( e), albeit in a refined form to comply, as far as possible, with
rules 17(2) and 18(4).
[64] Astron's representations regarding the points of fact and matters of law
enumerated in POC6 and POC7 mirror , for the most part, that pleaded in its
particulars of claim on appeal to this Court. I t is difficult to comprehend how the
CSARS can seriously contend that it should not be required to plea to those same
grounds which now underpin Astron’s appeal against, or alternatively review of, the
Appeal Decision. CSAR S is simply being called on to defend its decisions and/or
determinations made internally in the light of the same facts and law presented to it
on behalf of Astron .
[65] It is in this context that I viewed Mr Janisch ’s submissions (see above in
paragraph [5]) regarding the absence of prejudice to the CSARS. His argument on
this matter bolster ed a crucial thesis advanced on behalf of Astron , namely, that the
exceptions are designed purely as a delaying tactic. To this e nd, Mr Janisch pointed
to the objective fact that the CSARS raised its first two exceptions as far back as
March 2023 , and yet failed to take the necessary steps to set them down for hearing
as a conscientious litigant ought to do . In 2025, Astron’s attorn eys took steps to
enroll the exceptions. At the hearing, Mr Peter offered no response to this matter
whatsoever. That deafening silence speak s volumes.
[66] I am satisfied that the CSARS will not be prejudiced if Astron’ s particulars of
claim were allowed to stand in its current form . In the premises, I agree with Mr
Janisch that the CSARS must make out a ‘very clear, strong case before the
exception can succeed’ ( Jugwanth supra para 10). For the ensuing reasons, I find
that the CSARS failed to overcome this hurdle.
[67] Astron’s primary pleaded position is that the legal status of the IAC’s decision
is that it is not a ‘determination’ within the contemplation of either s 47(9)( a) or ( d) of
the C&E Act . Instead, it should be regarded as reviewable administrative action
under the PAJA. This is an important distinction within the overall scheme under the
C&E Act . As a matter of substantive law, t he appeal remedy in s 47(9)( e) only applies
to a decision which is a final tariff ‘determination’ made by the CSARS under s 47 of
the C&E Act.
[68] Consequently, Astron’s remedy of first resort is a statutory tariff appeal in the
wide sense ., This appeal extends to the Appeal Decision if, as a matter of
substantive l aw, the IAC’s decision is declared to have binding force and effect , even
after the setting aside of the LOD if so ordered by the trial court, but then also only if
that court holds, as SARS asserts (and as argued by Mr Peter), that the IAC’s
decision cons titutes an appealable ‘determination’, a legal position that Astron has
contested.
[69] In these circumstances, unless the CSARS concedes th e legal position
pleaded by Astron , it’s appeal , or alternatively review , of the Appeal Decision raises
two distinct law -based issues that will require adjudication in due course , namely: (i)
whether the Oudekraal principle established in Oudekraal Estates (Pty) Ltd v City of
Cape Town 2004 (6) SA 222 (SCA) para 36 applies in relation to the LOD;14 and (ii)
whether , based on a Full Court decision of this Division in Tunica Trading 59 (Pty) Ltd
v CSARS supra para 85, the IAC’s decision carries the legal status of an appealable
‘determination’ under s 47(9) of the C&E Act. The grounds of appeal referred to here
are not fact -based – no facta probanda is involved. Thus, no evidence need s to be
led thereon.
14 In Seale v Van Rooyen N.O and Others; Provincial Government, North -West Province v Van
Rooyen N.O and Others 2008 (4) SA 43 (SCA) para 13, the court applied the Oudekraal principle
which is to the effect that if a prior legal act is set aside, then any subsequent act which depends for
its validity on the substantive validity of the prior, invalid act, must itself be invalid. In the taxpayer’s
particulars of claim, Astron c aters for the possibility that the Oudekraal principle may be found to
apply. If so, then the Appeal Decision would be invalidated as a matter of course if the LOD is itself set
aside. Astron’s particulars of claim also caters for the possibility that a co urt may find that the
Oudekraal principle does not apply in casu, in which event the Appeal Decision would operate as a
matter of law, even if the LOD is set aside.
[70] I find that Astron’s stand -alone challenge to the Appeal Decision, regardless of
the LOD’s fate, cannot be faulted. This approach aligns with that suggested in Wings
Park Port Eliz abeth (Pty) Ltd v MEC, Environmental Affairs, Eastern Cape and
Others 2019 (2) SA 606 (ECG) paras 33 - 34, which was approved in South Durban
Community Environmental Alliance v MEC for Economic Development, Tourism and
Environmental Affairs: KwaZulu -Natal Provincial Government 2020 (4) SA 453 (SCA)
paras 5 - 9.
[71] In South Durban Community Environmental Alliance supra para 6, the
following dictum by Plasket J in Wings Park Port Elizabeth supra para 34 was
embraced:
‘When an applicant has suffered an un favourable decision at first instance
and it is confirmed on appeal, the situation is somewhat different. Both
decisions must be taken on review and, for the applicant to achieve success,
usually both decisions will have to be set aside . . . In these circ umstances,
had only one decision been attacked, whether at first instance or on appeal,
the other would have remained in place.’
[72] In these circumstances, Astron correctly pleaded its review of the Appeal
Decision as an alternative to the appeal thereo f. Astron’s intended review of the
IAC’s decision is formulated as a remedy of last resort , to be invoked only if the
Appeal Decision is determined, as a matter of law, to be reviewable administrative
action, and the Oudekraal principle is, in law, found n ot to be applicable in the
context of Astron’s tariff appeal , alternatively review , so that the IAC’s decision
retains the force of law , even if the LOD is set aside as sought in Astron’s appeal
against, or alternatively review of, the LOD.
[73] In the light hereof , I find that the CSARS’s first exception must fail. There are
no factual averments lacking from Astron’s particulars of claim concerning the
entirely law-based ground s of appeal and review concerned . In other words, I
conclude that ther e are no factual averments lacking which are of the kind submitted
by Mr Peter, namely, a factual basis ‘that could possibly support a result of the Court ---
not finding that the IAA decision is of no force or effect’ .15 This is a pure matter of law
which the trial court is tasked to determine . It must decide what the law is on the
issue at hand. See paragraphs [54] to [57] above. The grounds of appeal and review
concerned are pleaded with sufficient particularity that CSARS can plead thereto . It
has consistently refuse d to do so for more than 24 months now.
[74] For similar reasons, the CSAR’s second exception lacks merit. Th at exception
acknowledges that Astron pleaded a ground of appeal , or alternatively review , in
paragraph 140 of its particulars of claim , which is an entirely ‘legal contention’
pertaining to s 77E of the C&E Act. See the contents of paragraph 8 of the CSARS’ s
Notice of Exception quoted above in paragraph [26].
[75] At paragraph 11 of its Notice of Exception, the CSARS then states that
Astron’s ‘legal premise recorded in paragraph 140 is incorrect’. It proceeds to aver :
‘As a matter of law , the Committee was permitted to base its decisions on
findings or factors which had not formed the basis of the determination in the
letter of demand, the nature of the appeal being a wide appeal encompassing
a hearing de novo with additional evidence and consi deration being
permitted.’ (Emphasis added)
[76] The trial court will determine what the true legal position is . This too is a law
laden issue. It is not a so -called ‘jury question’ for witnesses. Therefore, no evidence
will be led thereon. In these circumstances, the averment at paragraph 12 of the
Notice of Exception that Astron’s particulars of claim are excipiable due to a lack of
factual averments necessary to sustain the appeal and/or review on the pleaded
ground in paragraph 140 is unfounded . Therefore, I dismiss the second exception as
well.
[77] Before addressing the third exception, it bears stating that nowhere in its
Notice of Exception (see quote in paragraph [26]) does the CSARS deal with the
individual fact -based grounds of appeal against, or alternatively review of, the Appeal
15 The CSARS’ s heads of argument: pg 10 (para 21).
Decision which are outlined in Astron’s particulars of claim at paragraphs 146 to 209.
Despite this omission, and the CSARS’s concomitant failure to aver in what respects
the various fact -based grounds of appeal or review of the Appeal Decision lack facta
probanda, Mr Peter argued that these paragraphs ought to be struck out (in the
words of Mr Janisch ) ‘holus bolus’ . No proper foundation for such relief has been
established.
[78] In paragraphs 146 to 209 of its particulars of claim , Astron pleads the minutiae
of its factual and legal grounds for challenging the correctness of several key
findings of fact made by SARS during its customs audit . These findings informed the
CSARS’s decision to, inter alia, disallow Astron’s various refund claims particulari sed
in POC3 , which in turn, formed the basis of the final determination in the LOD and
demand for payment exceeding R2,71 billion.
[79] In the Appeal Decision, the IAC confirms the CSARS’ s disallowance of
Astron’s refund cl aims and upholds the factual determination that Astron owe s a debt
to SARS . In paragraphs 146 to 209, Astron challenges the correctness of the factual
findings. There is nothing in the CSARS’s Notice of Exception contai ning an iota of a
basis to sustain a finding that Astron’s grounds for its challenges, both on appeal and
review, lack essential averments to sustain either one or both of its disclosed causes
of action.
[80] Concerning Astron ’s fact-based grounds of appeal against, and review of , the
Appeal Decision enumerated in paragraph 146 to 209 , for the CSARS to prevail, I
must be satisfied that it demonstrated that any conclusions of law for which Astron
contends in its particulars of claim cannot be supported on every reasonable
interpretation that may be put on the facts pleaded when considered in its entirety.16
16 In Venator Africa (Pty) Ltd v Watts and Another 2024 (4) SA 539 (SCA) para 20, it was held:
‘It is trite that it is for an excipient to show that on every reasonable interpretation of the facts, the
pleading is excipiable. On interpretation, “the question is not whether the meaning contended for by
the [plaintiff] is necessarily the correct one, but whether it is a reasonably possible one”. The excipient
must satisfy the court that the conclusion of law set out in the particulars of claim is unsustainable on
every interpretation that can be put on thos e facts. It is important to note that “the facts are what must
be accepted as correct; not the conclusions of law ”. What is before us is a question of law. Either s
218(2), read with s 22(1), permits what is contended for by the plaintiff, or it does not. ’
See H v Fetal Assessment Centre 2015 (2) SA 193 (CC) para 10. I am not satisfied
that this has been shown.
[81] I am fortified in my conclusion that the striking out of paragraphs 146 to 209
must fail by reason that it is trite that, at an exception, the correctness of facts
alleged by a plaintiff in its particulars of claim is assumed (not the conclusions of
law). See Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA) para 4 ;
Venator Africa (Pty) Ltd supra para 20 . Conseq uently, the CSARS’s prayer that
paragraphs 146 to 209 be struck out can succeed only if the factual averments made
by Astron, which are in this exception assumed to be correct, cannot result in a
favourable ruling on its fact -based grounds of appeal agains t, or review of, the
Appeal Decision on any basis permitted in law. See First National Bank of Southern
Africa Ltd v Perry NO and Others [2001] 3 All SA 331 para 6. I conclude that no such
finding is justifiable in the matter before me.
[82] In the third exception , the CSARS attacks Astron’s particulars of claim on the
basis that it does not allege facts necessary to sustain a finding that exceptional
circumstances exist . Facts of such a nature would warrant the court, in accordance
with s 7(2)( c) of the PAJA , to approv e the invocation of its review jurisdiction in the
interests of justice without first requiring Astron to exhaust its appeal remed y catered
for in s 49(7)( e) of the C&E Act . It is procedurally permissible to enroll an application
envisaged by s 7(2)( c) of the PAJA into the same ‘action’ used for suing a tariff
appeal. This flows logically from Richard’s Bay Coal Terminal supra para 143(a) (see
quote above in footnote 12) .
[83] Applications under s 7(2)( c) of the PAJA for an exemption are grounded in
factual circumstances. See N.R and Others v Director General: Home Affairs and
Another (21762/2024) [2025] ZAWCHC 189 (5 May 2025) paras 33 - 35. It is
common cause that Astron has not made factual averments of the kind en visaged by
s 7(2)( c). The absence thereof is understandable , as the decision of the apex court
in Richard’s Bay Coal supra had not yet been handed down when Astron’s summons
was drafted.
[84] However, I agree with Mr Janisch that the third exception raised lacks merit .
Astron does not have, what he aptly termed, a ‘ Richard’s Bay Coal problem’ ( i.e., an
intention to pursue a review remedy under the PAJA as a primary option instead of
first exploring an available appeal remedy under s 47(9) of the C&E Act ).
[85] The CSARS misconstrues Astron’s pleaded position. As pointed out above in
paragraphs [67] to [68], Astron pleads its appeal as an anterior cause of action to its
review cause of action . It expressly pleads that it seeks a review of the Appeal
Decision only if the trial court holds that, as a matter of substantive law, the Appeal
Decision is not an appealable ‘determination’ for purposes of s 47(9) of the C&E Act.
[86] If the eventuality foreshadowed in Astron’s particula rs of claim materialises,
the legal consequence would be that Astron lacks access to the statutory appeal
remedy . The review of the Appeal Decision would be the only remedy then available
to Astron for purposes of having it set aside. In that context , Astr on would not be
seeking to invoke this Court’s review jurisdiction while not exhausting its appeal
remedy. The latter remedy would simply not exist in the circumstances described
here.
Costs
[87] Both counsel s argue d that costs ought to follow success and that costs should
include costs for two counsel s where so employed, and that counsel’s fees ought to
be on scale C of the tariff catered for in rule 69(7) . I agree and will order same .
[88] In exercising my d iscretion regarding costs , I took into consideration the
factors listed in Uniform Rule 67A(2) and (3)(b). Importantly, both sides appointed
silks to argue the exception. This is an indication of their acknowledgement that the
issues involve d had complexity that required advanced levels of knowledge and
technical expertise of senior practitioners with specialist skill sets in the field of
customs and excise law .
Order
[89] In the result, the Defendant’ s exceptions are dismissed with costs, such costs
to include the cost of two counsel on Scale C (where two counsels were employed).
_____________________
FAREED MOOSA
ACTING JUDGE OF THE HIGH COURT
Appearances
For Plaintiff : M Janisch SC and E Mul ler
(the heads of argument prepared by K Pillay SC, M Janisch SC, E Muller, and L
Harilal)
Instructed by : Webber Wentzel
For Defendant : J Peter SC
Instructed by: Macrobert Attorneys