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COERTZEN AJ:
[1] I delivered the main judgment in this matter on 7 November 2024. In terms of
the order made, the first to third applicants’ application (a statutory appeal in
terms of s 47(9)(e) of the Customs and Excise Act 91 of 1964 – ‘the Customs
Act’) was dismissed.
[2] The applicants apply for leave to appeal the decis ion.
[3] The main judgment deals sufficiently with the issues between the parties and
the questions of law which were determined . There is no need to add to the
reasons already given .
[4] I have considered the notice of application for leave to appeal and the grounds
raised therein in support of a proposed appeal.
[5] During argument it became apparent that the focus of the application for leave
to appeal concerns the first and second issue s identified in paragraph 24 of
the judgment i.e. (a) whether the Appeal Committee had the power to make a
new determination or finding on the adequacy of the logbooks/record
keeping ,1 and (b) whether the first applicant, GMV, was the holder of the
necessary mining authorisation granted in terms of the MPRDA, as
contemplated in Note 6(f)(ii)(cc) of Part 3 of Schedule No. 6 of the Customs
Act.2
[6] I am inclined to agree with counsel for the applicant s that it follows as a matter
of logic that the third issue, namely the discretion of the Commissioner under
Note 5,3 does not arise if the applicants are successful on the first and second
issues on appeal.
1 Judgment, paras 70 – 99.
2 Judgment, paras 100 – 125.
3 Judgment , paras 126 – 135.
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[7] In respect of the first issue, t he applicants urged me to again consider , inter
alia, the Rules under the Customs Act , in support of a contention that the
Appeal Committee must decide an appeal , having regard to the “grounds for
appeal”,4 and with reference to Groenewald NO v M5 Developments (Cape)
(Pty) Ltd 2010 (5) SA 82 (SCA). It was again pointed out by the applicants that
the Appeal Committee is a creature of statute. I accept, as pointed out by
SARS, that Groenewald may be distinguishable from the matter before me .
However, the argument of the applicants in the main application (and in the
application for leave to appeal), has always been that a rehearing by an
internal Appeal Committee should be limited to whether the party appealing
should be successful , having regard to the grounds of appeal. In that sense,
the applicant s contend that, although it is a “wide appeal”, the Appeal
Committee should have decided the matter on the limited issues appealed
against ( and not have made a new determination or finding on logbooks and
recordkeeping , where this was not an issue appealed against ).
[8] In respect of the second issue it was brought to my attention that the judgment
of this Court delivered by Collis J in Glencore Operations SA (Pty) Ltd and
Others v Commissioner for the South African Revenue Service and Another
(15988/2020) [2023] ZAGPPHC 565 (17 July 2023) – (the Goedgevonden
judgment ), has been argued on appeal to the Supreme Court of Appeal, and
that judgment is awaited . The crux of the applicants’ argument why leave to
appeal should be granted in respect of the second issue revolves around the
correct interpretation of the relevant legislation and Rules . The applicants
contend that the purpose of Note 6(f)(ii)(cc) is to ensure that the mining
activities are undertaken by someone who is authorised to do so under the
MPRDA. Thus, according to the applicants, the Note should be interpreted to
require that t he “user” claiming the refunds (GMV in this case) be authorised
to con duct the mining activities in terms of the provisions of the MPRDA. The
4 Rule 77H.04(5)(d) and (6)(c)(i).
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applicants submit that a court of appeal could reasonably arrive at a different
conclusion, when interpreting the applicable legislation .5
[9] Having considered the grounds of appeal and the arguments advanced, I am
ultimately of the view :
a. That the proposed appeal would have a reasonable prospect of success
on th e first issue , regarding the nature and scope of the “wide appeal”
before the Appeal Committee , and regarding the power s of the Appeal
Committee ;6
b. That the question of the correct interpretation, scope, and application of
the relevant legislation, and of Note 6 (and of Note 5 for that matter),
present sufficient grounds to hold that there is “some other compelling
reason why the appeal should be heard ”.7
[10] It follows that leave to appeal should be granted.
[11] The applicants seek leave to appeal to the Supreme Court of Appeal. SARS
does not contend that an appeal to the Full Court is more appropriate, should
leave to appeal be granted.
[12] In my respectful view, the decision to be appealed involves questions of law
of importance, which require a decision of the Supreme Court of Appeal.8
[13] In the result I make the following order:
1. Leave to appeal is granted to the Supreme Court of Appeal.
2. The costs of the application for leave to appea l shall be costs in the appeal.
5 The interpretation of Note 5 is apparent ly also an issue in the Goedgevonden appe al.
6 As contemplated in s 17(1)(a)( i) of the Superior Courts Act 10 of 2013.
7 As contemplated in s 17(1)(a)(ii) of the Superior Courts Act 10 of 2013.
8 As contemplated in s 17(6)(a)(i) of the Superior Courts Act 10 of 2013 .