IN THE H IGH COU R T OF SO U TH AF R ICA
GA U TE NG DIVIS ION, PR ETOR IA
CAS E NO : 2023-047735
( l)
(2)
(3)
REPO RTAB LE: ~ /N O
O F INTE REST TO OTH ER JUDG ES: ~ /NO
RE VISED.
21 JULY 2025
SIG NATURE DATE
In the condonation application of:
TSHEPO LUCKY MONTANA
and
THE COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE SERVICE
In re:
The sequestration application of:
THE COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE SERVICE
and
TSHEPO LUCKY MONTANA
Ap plicant
Responden t
Ap plicant
Responden t
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JUDGMENT
LABUSCHAGNE AJ
[1] The applicant, Mr Montana, is a taxpayer who is facing sequestration
proceedings by the respondent on the strength of an unpaid tax liability. The
tax liability is fixed as the period for challenging it has passed.
[2] The sequestration application was served by publication in terms of court
authorised substituted service on 27 March 2024. Mr Montana filed a notice
of opposition on 5 April 202 4. His answering affidavit in the sequestration
proceedings was due on 26 April 2024. At his request an extension was
granted by SARS until 6 May 2024. He again requested an extension, which
SARS refused.
[3] The reason why the further extension was sought, according to Mr Montana,
was that his counsel was unavailable d ue to illness for three weeks. Mr
Montana then brought a condonation application for the late filing of his
answering affidavit. This application was however brought without attaching
the answering affidavit to which the condonation application pertained. SARS
filed an answering affidavit to the condonation application on 11 July 2024 and
Mr Montana filed a replying affidavit to the aforesaid an swering affidavit. In
proceedings serving before me I have to consider the aforesaid application for
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condonation together with an application to strike out certain matter in Mr
Montana’s replying affidavit in the condonation application.
CHRONOLOGY
[4] The following chronology sets out the history of the tax liabilit y, and the
sequestration proceedings proceedings.
[5] On 5 November 2020 SARS commenced engagement with Mr Montana in
respect of an income tax audit for the period 2009 to 2019.
[6] On 18 November 2020 Mr Montana requested an extension in order to
respond to SARS’s request for documentation.
[7] SARS granted an extension until 31 January 2021.
[8] His failure to comply resulted therein that SARS issued a final demand to Mr
Montana to submit his requested information by no later than 9 February 2021.
Mr Montana failed to do so.
[9] On 7 July 2021 SARS issued its letter of audit findings adjusting Mr Montana’s
tax debt to an amount in excess of R15 million. Mr Montana responded to
SARS’s audit findings on 16 August 2021 and correspondence ensued
between the parties thereafter.
[10] On 31 May 2022 Mr Montana filed a partial objection to the assessment,
coupled with a request to file a complete objection by 1 July 2022. The
supplemented submission was not filed by 1 July 2022 and Mr Montana
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requested further extensions. SARS refused further extensions and issued a
final assessment on 11 July 2022 and demanded the outstanding taxes from
Mr Montana.
[11] On 20 September 2022 Mr Montana delivered a letter which he describes as
“the final objection to the assessments”.
[12] On 23 September 2022 Mr Montana addressed a letter to SARS’s attorneys,
lamenting the execution of warrants at his residence. On 30 November 2022
SARS filed a notice of an invalid objection pertaining to the document
submitted by Mr Montana.
[13] On 22 May 2023 SARS launched an application to sequestrate Mr Montana’s
estate. Due to Mr Montana not being available for service, SARS obtained an
order for substituted service and the application for substituted service was
published on 27 March 2024. Mr Montana responded to such publication by
delivering a notice of opposition to the application for sequestration on 5 April
2024.
[14] On 12 April 2024 Mr Montana’s attorneys requested a copy of the application
for substituted service and sought an extension to file his client’s answer to
the sequestration application for three weeks. SARS granted an extension
until 6 May 2024. A further request for an extension was made by Mr Montana
on 7 May 2024, which request was refused.
[15] On 15 May 2024 SARS informed Mr Montana that it will not grant him
condonation and that a formal request for condonation could be incorporated
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into his answering affidavit. On 16 May 2024 Mr Montana’s legal
representative informed SARS that a separate condonation had been
prepared and will be launched immediately. On 31 May 2024 Mr Montana
launched the condonation application that currently ser ves before this Court.
On 11 July 2024 SARS opposed the application for condonation and filed its
answering affidavit, and Mr Montana filed his replying affidavit on 24 July
2024.
STRIKE OUT APPLICATION
[16] SARS has brought a strike out application in respect of objectionable matter
in the replying affidavit. There are 27 paragraphs in which sentences or entire
paragraphs are sought to be struck out. Not all of them meet the test for
striking out, but some do.
[17] It is trite that the basis of a strike out application in motion proceedings does
not just include the identification of objectionable matter that is irrelevant,
scandalous or vexatious but in addition prejudice needs to be shown in
conducting the proceedings if the strike out were not granted (See rule 6(15).
[18] Scandalous allegations are allegations that may or may not be relevant but
are formulated to be abusive or defamatory. Vexatious allegations may or may
not be true but are formulated in a manner to convey an intention to harass or
annoy. Irrelevant allegations do not apply to the matter and do not assist in
deciding the matter (see Vaatz v Law Society of Namibia 1991 (3) SA 563
(Nm) at 566C-E).
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[19] In this instance it bears noting that the context of the allegations is to seek
condonation to file an answering affidavit which has not yet been filed . That
provides the backdrop to the test for relevance. From the list of paragraphs in
the strike out notice the following fall to be struck out.
[20] In Par 20 of the replying affidavit Mr Montana accuses SARS of arrogant
conduct that disregards legitimate objections and denies constitutional rights
administrative justice and fairness.This is not relevant and is vexatious.
[21] In Par 28 .5 Mr Montana accuses SARS of maladministration and abuse of
power. In par 29.4 and par 42 he accuses SARS of indulging in a witch hunt
against him, motivated by a political agenda. In par 33 he contends that SARS
persisted in pursuing false claims that he bought properties to the value of R36
million in order to “nail” him. In par 38 he alleges that SARS was part of a dirty
campaign of a Johannesburg firm of attorneys to target persons like him by
pursuing false allegations. In par 41 he accuses SARS of breaking into his
house and acting like a criminal gang. All these allegations are scandalous
and vexatious.They are also not relevant to condonation.
[22] SARS argues that it is prejudiced by such allegations. Not only are the
allegations scandalous, vexatious or irrelevant, but SARS has no right to
respond. Further it faces institutional reputational harm, to the detriment of the
tax administration scheme in South Africa if such allegations are not struck
out.
[23] I am satisfied that SARS has established a right to strike out the above
material identified in its strike out notice . The allegations are emotive and
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intemperate, unsupported by facts and constitute gratuitous abuse. They are
irrelevant to the issue of whether this court should condone the late filing of an
answering affidavit.
[24] While the court is mindful not to stifle robust debate, such allegations fall to be
deprecated as irrelevant, unhelpful and calculated to harm. Such conduct
warrants a punitive cost order.
THE CONDONATION APPLICATION
[25] By its very nature, an application for condonation for the late filing of an
answering affidavit has to cover the full period of non -compliance with the
Rules and to provide a full explanation for non -compliance. In addition the
court needs to assess the interests of justice by ascertaining whether a valid
defence is being raised. The court needs to be apprised of relevant facts in
order to be able to assess the conduct of the applicant in order to exercise a
discretion to come to the assistance of the applicant.
[26] Mr Montana’s answering affidavit was due in the sequestration proceedings
on 26 April 2024. Since then, he has failed to file the answering affidavit or to
indicate in papers when it would be filed. Either way, the lapse of more than
a year since the due date of the answering affidavit is sufficient an indicator
that Mr Montana is playing for time. He appointed new attorneys and counsel
on 2 May 2025, who valiantly sought to argue his case.
[27] The failure to file an answering affidavit together with the c ondonation
application means that the full extent of the period o f non-compliance cannot
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be determined on the papers. An explanation for the failure to comply can only
be up to the date of the hearing but cannot cover a further delay thereafter.
The court will condone a specific period of non-compliance , but will not grant
an open-ended condonation covering the future.
[28] The answering affidavit is relevant to ascertain whether there is a bona fide
defence to the sequestration proceedings. It is also required for purposes of
determining whether the Court should exercise its discretion in favour of
granting condonation in the current proceedings. It suffices that, in the
absence of an answering affi davit, this Court cannot determine whether a
bona fide defence has been raised. It is therefore not possible to consider
granting a condonation on the facts currently available. On the current facts
the interests of justice favour the dismissal of the application.
[29] In the premises I make the following order:
ORDER
1.The strike out application is granted in respect of the objectionable matter identified
in the notice of strike out pertaining to the following paragraphs in the replying affidavit:
- par 20;
- par 28.5;
- par 29.4;
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par 33;
par 38;
par 41;
par 42.
[30] The costs of the strike application out are to be paid on a punitive scale of
attorney and client, including the costs of two counsel, Scale C , w here so
employed.
[31] The applicant's condonation application is dismissed w ith costs, such costs to
include the costs of two counsel w here so emp loyed, on Scale C .
LABUSCHAGNE J
JUDG E OF THE H IGH COUR T
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APPEARANCES:
ATTORNEYS FOR APPLICANT: DUN & ASSOCIATES ATTORNEYS
COUNSEL FOR APPLICANT : ADV M MACHETE
ATTORNEYS FOR RESPODENT: VZLR INCORPORATED ATTORNEYS
COUNSEL FOR RESPONDENT: ADV SNYMAN SC