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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: B2495/2023
In the matter between:
ANDRIES GREYVENSTEYN APPLICANT
and
THE COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE SERVICE FIRST RESPONDENT
THE MINISTER OF FINANCE SECOND RESPONDENT
THE SOUTH AFRICAN REVENUE SERIVE THIRD RESPONDENT
GOLD KID TRADING (PTY) LTD FOURTH RESPONDENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHERS JUDGES: YES
(3) REVISED: NO
1 July 2025
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DATE SIGNATURE
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____________________________________________________________________
JUDGMENT : APPLICATION FOR LEAVE TO APPEAL
AMIEN AJ
Introduction
[1] This is an application for leave to appeal to the Supreme Court of Appeal
against the findings that I made on 12 February 2025 pertaining to sections 180
and 184(2) of the Tax Administration Act 28 of 2011 (TAA) and costs .
[2] The test for leave to appeal is set out in section 17(1)(a) of the Superior Courts
Act 10 of 2013 as follows:
“Leave to appeal may only be granted where the judge or judges
concerned are of the opinion that -
(a)
(i) the appeal would have a reasonable prospect of
success; or
(ii) there is some other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration.”
[3] The applicant is of the view that both grounds exist, in that the appeal would
have a reasonable prospect of success and there is a compelling reason for the appeal to be heard.
[4] The issue for determination was whether sections 180, 184(2) and 186(3) of
the TAA are constitutionally valid.
[5] I made the following orders:
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[75.1] Sections 180, 184(2), and 186(3) of the Tax Administration Act 28
of 2011 are constitutionally valid.
[75.2] The application is dismissed with costs, including the costs of four
counsel on scale C .
[6] The applicant accepts the order of constitutionality in respect of section 186(3)
of the TAA but seeks leave to appeal the orders of constitutionality regarding
sections 180 and 184(2) of the TAA , and the costs order against him.
[7] Appeal against the order of constitutionality regarding sections 180 and
184(2) of the TAA
[8] The applicant argued that sections 180 and 184(2) of the TAA are
unconstitutional because they violate his section 34 right of the Constitution .
[9] Section 34 of the Constitution provides:
“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. ”
[10] The applicant contends that SARS’ determination of liability under the
impugned provisions involves an adjudicative function, but that SARS is not an
independent and impartial tribunal or forum to determine liability against the taxpayer. Furthermore, disputes arising from the impugned provisions cannot
be adjudicated in the Tax Court. Consequently, the applicant claims that his
section 34 constitutional right to access to court or to have his dispute resolved by another independent and impartial tribunal or forum is violated.
[11] I found that SARS’ actions under the impugned provisions are administrative in
nature and reviewable in a court of law under the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). As such, I concluded that the applicant’s right to
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access to court under section 34 of the Constitution was not breached. The
reasons for my findings and orders are set out in my judgment. I therefore do
not see a need to repeat them here.
[12] The applicant argues that this court erred in deciding that SARS’ actions under
the impugned provisions are administrative in nature
[13] The applicant is of the view that the categorisation of SARS’ liability as
administrative versus adjudicative constitutes res nova .
[14] The applicant further claims that if SARS’ actions are administrative in nature,
as this court found it to be, then the High Court does not have any power to
review its decision s thereby limiting the applicant’s right to access to court.
[15] The applicant suggests that there “ is a reasonable prospect that another court
may conclude that the institution of review is not an adequate guarantee to the rights protected in section 34”.
[16] Appeal against the costs order
[17] The applicant argues that my costs order against him is based on a wrong
principle of law, because the general position arising from Biowatch Trust v The
Registrar of Genetic Resources (Biowatch )
1 is that cost orders are not usually
awarded in cases involving constitutional challenges.
[18] However, there are exceptions to the above general principle. The principle is
not an unqualified position that applies in every constitutional challenge. At paragraph 24 of the Biowatch judgment, Sachs J. notes
“[T]he general approach of this Court to costs in litigation between
private parties and the state, is not unqualified. If an application is frivolous or vexatious, or in any other way manifestly inappropriate, the
1 2009 6 SA 232 (CC).
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applicant should not expect that the worthiness of its cause will immunise
it against an adverse costs award. ”
[19] T he applicant correctly points out that I did not provide reasons for my costs
order in my judgment. He also did not request reasons for the costs order after my judgment was delivered. Had he done so, I would have provided same.
[20] The reasons for my costs order were two- fold: a) Having found the impugned
provisions to be constitutionally valid, I did not see a constitutional issue to
which the Biowatch case would apply; and b) I considered the conduct of the
applicant to be an abuse of court process, for reasons which I set out hereunder.
[21] During the application regarding the constitutionality of the impugned
provisions , Mr Trengove SC acting for SARS , argued that the applicant had
abused the court’s process by bringing a constitutional challenge against the
impugned provisions. The reason for this was that a provisional preservation
order was granted against the applicant by my learned brother Van Niekerk AJ
on 28 February 2023. Instead of anticipating the final order on 24 hours’ notice, Mr Trengove SC suggested that the applicant brought the constitutional
challenge to circumvent the judicial process and treat this court as an appeal
court to overturn the provisional order. Nevertheless, Mr Trengove SC also indicated that SARS would not be asking for costs.
[22] After reading the papers filed on record, hearing the arguments presented by
counsel, and after considering the matter, I was persuaded that the applicant
did not approach this court in good faith. I was, and still am, convinced that the
applicant tried to use this court in a surreptitious attempt to bypass anticipating
the final order on 24 hours’ notice.
[23] In the hearing for leave to appeal, Mr Louw SC on more than one occasion
pointed out to this court that an advocate of Mr Trengove SC’s calibre would
not have forgone asking for costs if he thought there was a reasonable prospect
of success in favour of a costs order on appeal. I have the greatest respect for
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Mr Trengove SC, but this court is not bound by what counsel asks for regarding
costs. This court has discretion to decide what is best in the interests of justice.
And I am of the view that having brought the application in bad faith and having
failed in the application, it was appropriate to make a costs order against the
applicant. The conduct of the applicant amounted to an abuse of process,
which justifie d an adverse costs order against him .
[24] In Public Protector v South African Reserve Bank ,2 the Constitutional Court
found that where a party’s conduct amounts to an abuse of court process, c osts
on an attorney and client scale are to be awarded. While this was a finding of
the minority judgment, the Court in Tjiroze v Appeal Board of the Financial Services Board
3 did not read the majority judgment as differing from the
minority judgment.
[25] Test for leave to appeal
[26] As noted earlier in this judgment, section 17(1)(a) of the Superior Courts Act
provides that leave to appeal may only be given if the appeal would have a reasonable prospect of success or there is a compelling reason for the appeal
to be heard.
[27] Mr Louw SC argued that both bases in section 17(1) are complied with namely,
the appeal would have a reasonable prospect of success and there is a
compelling reason why leave to appeal should be granted. He argues that t he
compelling reason relates to the constitutionality of the impugned provisions ,
which are of public interest.
[28] Mr Louw SC formulates the test for section 17(1)(a)(i) as a reasonable prospect
existing that another court may reach a different conclusion.
2 [2019] ZACC 29 at para 8.
3 2021 (1) BCLR 59 (CC) at para 23.
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[29] However, the Supreme Court of Appeal makes it clear that the test is more
stringent:4
“[L]eave to appeal, … must not be granted unless there truly is a
reasonable prospect of success. Section 17(1) (a) of the Superior
Courts Act 10 of 2013 makes it clear that leave to appeal may only be
given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some
other compelling reason why it should be heard.
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be a sound, rational
basis to conclude that there is a reasonable prospect of success on
appeal. ”
[30] The test for section 17(1)(a)(i) is therefore not whether there may be a
reasonable prospect of success. As explained by Bertelsmann J in Mont
Chevaux Trust (IT 2012/28) v Tina Goosen:
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“The use of the word “would” in the new statute indicates a measure of
certainty that another court will differ from the court whose judgment is
sought to be appealed against .” (my emphasis)
[31] The merits of the case are therefore decisive in determining whether the
application for leave to appeal should succeed.
[32] As Mr Louw SC pointed out, the merits of this application for leave to appeal
turn on the question whether SARS’ determination of liability is adjudicative or administrative in nature. This court found it to be administrative while the
4 MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176 paras 16- 17
5 LCC14R/2014 (unreported judgment of the Land Claims Court delivered on 3 November 2014) at
para 6.
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applicant maintains that it is adjudicative. The question is whether there is a
reasonable prospect that another court could conclude that SARS’ actions
under the impugned provisions are adjudicative, which might then lead to a
finding that the applicant’s section 34 right is violated. In my view, there is a
reasonable prospect that this could be an outcome of an appeal against my
findings relating to the impugned provisions.
[33] While the above suffices to grant the application for leave to appeal in respect
of sections 180 and 184(2) of the TAA, I think it is important to also consider
the question whether a compelling reason exists for the appeal to be granted.6
[34] The applicant is of the view that this matter is of substantial public interest.
[35] In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd,
7 the Supreme Court of
Appeal found:
“ A compelling reason includes an important question of law or a discreet
issue of public importance that will have an effect on future disputes. But
here too, the merits remain vitally important and are often decisive. ”
[36] While I found that the impugned provisions are constitutionally valid based on
already decided issues,
8 I also find in this application that there is a reasonable
prospect that another court could find differently based on the merits of the
case . Should that happen, the impugned provisions could be found to be
unconstitutional and invalid, in which case the matter w ould then be of public
importance and a compelling reason would exist for the appeal to be heard.
[37] As a result, the application for leave to appeal is granted.
[38] Costs are costs in the appeal.
6 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) at para 2.
7 (Case no 982/18) [2020] ZASCA 17 (25 March 2020) at para 2.
8 See for example Metcash Trading v Commissioner, SARS 2001 (1) SA 1109 (CC); Barnard
Labuschagne Inc v Commissioner, SARS 2022 (5) SA 1 (CC) .
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________________________________
W AMIEN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
APPEARANCES:
Counsel for the Applicant: Adv PF Louw SC
Instructed by: Kruger and Okes
Counsel for the First and Third Respondent: Adv HGA Snyman SC
Adv N Komar
Instructed by: Van Zyl Le Roux and Hurter
Attorneys
Counsel for the Second Respondent: Adv M Sello SC
Adv M Lekoane
Instructed by: State Attorney Pretoria
CASE NO: B2495/2023
Date heard: 30 May 2025
Date of judgment:
This judgment has been delivered by uploading it to the court online digital data base
of the Gauteng Division, Pretoria and by e- mail to the attorneys of record of the parties.
The deemed date and time for the delivery is 1 July 2025 .