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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 000317/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 06 February 2026
Signature:
In the matter between:
MULTIPURPOSE DISTRIBUTORS Applicant
And
THE COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 1st Respondent
P GOVENDER 2nd Respondent
K MOODLEY 3rd Respondent
A PILLAY 4th Respondent
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______________________________________________________________________
JUDGMENT
______________________________________________________________________
NYATHI J
Introduction – the application to strike
[1] The respondent in its response to the application for review , launched an
interlocutory application by the respondents, brought in terms of Rule 6(15) of the
Uniform Rules of Court, to strike out specified paragraphs in the applicant’s replying
affidavit on the grounds that they constitute inadmissible hearsay, are irrelevant
and/or prejudicial. The application arises in pending review proceedings in which the
applicant seeks to set aside a decision of the Commissioner to hold it liable for
excise/levy assessments linked to alleged fraudulent use of its remover codes.
[2] The respondents’ concise heads contend that disputes of fact have arisen on the
papers; that the Plascon ‑Evans rule therefore frames the approach to final relief on
motion; and that, because affidavits are both pleadings and evidence, hearsay
matter in reply must be struck out so that it does not form part of the evidentiary
material to be applied under Plascon‑Evans.
[3] The applicant’s submissions and heads of argument answer that (a) the review is to
be determined on rationality grounds; (b) the impugned passages were properly
responsive to an email annexed by the respondents; (c) the existence of a dispute of
fact is contrived and in any event not determinative for a Rule 6(15) inquiry; and (d)
even if portions were hearsay, they would be admissible under section 3(1)(c) of the
Law of Evidence Amendment Act 45 of 1988.
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[4] The strike‑out notice identifies paragraphs in the reply which, the respondents say,
repeat or rely on communications (including an email referencing the remover code
and an alleged admission by one Ms Karyn Lichaba in or about November 2017)
without establishing a basis for the deponent’s personal knowledge, and whose
probative value depends on the credibility of third parties.
Issues for determination:
[5] The issues for determination are:
(i) whether the impugned passages are hearsay and inadmissible at this stage of the
proceedings;
(ii) whether they are scandalous, vexatious or irrelevant within the meaning of Rule
6(15); and
(iii) whether, even if hearsay, they should nevertheless remain by virtue of the
statutory discretion in section 3(1)(c) of Act 45 of 1988 or because they are properly
responsive to matter introduced by the respondents.
[6] Rule 6(15) permits the court to strike out a matter which is scandalous, vexatious or
irrelevant, and which is prejudicial to the other party. The striking ‑out power is
discretionary; the threshold is not met merely because the material is unfavourable.
The court balances relevance and prejudice, having regard to the proper ventilation
of issues on affidavit. The applicant emphasises this by pointing out that the
challenged passages were directed at an email annexed by the respondents, and
that refusing a proper reply would undermine the audi alteram partem principle.
[7] In motion proceedings, affidavits serve a dual role of pleadings and evidence; the
usual rules of admissibility apply. The respondents rely on the well ‑known
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Plascon‑Evans approach to factual disputes in applications seeking final relief, as
well as authorities confirming the evidential character of affidavits in motion practice.
[8] Hearsay is not per se inadmissible in civil proceedings. Under section 3(1)(c) of the
Law of Evidence Amendment Act, hearsay may be admitted if the court, having
regard to various listed factors, is satisfied that admission would be in the interests
of justice. The applicants argue that the impugned material would meet that
discretionary standard. [emphasis added].
[9] The underlying matter is a review. While some relief sought may be final in effect,
the strike ‑out application is not the occasion to resolve whether Plascon ‑Evans
governs the ultimate merits. What is material is whether the impugned reply
passages are properly relevant to issues placed in dispute by the respondents and
whether their presence would unfairly prejudice the respondents. The respondents’
heads link strike ‑out to preventing hearsay from “continuing to form part of the
evidentiary material” to be applied in the Plascon ‑Evans rubric. That contention
conflates admissibility questions with the weighting of competing versions. Whether
certain paragraphs will carry weight at the merits stage is distinct from whether they
should be excised now.
[10] The applicant contends that the impugned passages respond to an email
annexed by the respondents and address allegations raised in the answering
affidavit; the true purpose of the replying affidavit is to refute the respondents’ case.
Preventing such a reply would unjustifiably curtail the applicant’s opportunity to meet
the case against it. I agree that, to the extent the reply engages directly with
documents and assertions placed on the record by the respondents, it is prima facie
relevant.
[11] Several impugned statements appear to refer to communications (including an
alleged admission by Ms Karyn Lichaba around November 2017) and to operational
alleged admission by Ms Karyn Lichaba around November 2017) and to operational
arrangements tied to remover codes whose details may lie outside the deponent’s
direct personal knowledge. The respondents are correct that such statements, if
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tendered for their truth, are hearsay. They submit no factual basis has been laid to
render them admissible, and that allowing them to remain would prejudice SARS
because the material would be applied under Plascon‑Evans.
[12] However, two considerations militate against striking out at this stage:
a. First, section 3(1)(c) confers a broad interests ‑of‑justice discretion. Whether
to admit hearsay often depends on the totality of the record, the availability of
the source (e.g., where the email’s author is identifiable), the nature of the
review grounds, and whether the statements are corroborated by
contemporaneous documentation. Premature excision may unnecessarily
truncate the record and hamper the court’s later calibration of admission and
weight. The applicant squarely invokes this statutory discretion.
b. Second, where the respondents themselves introduced the email and thereby
put the subject matter into issue, a proportion of the reply’s references are
contextual and explanatory rather than offered as standalone evidential truth.
Rule 6(15) is directed at improper matter; it is not a surrogate for objections
that can be dealt with through rationality review analysis or weight.
[13] Prejudice as described in Rule 6(15) , is not mere annoyance at unfavourable
content. It contemplates unfairness in the litigation process. The applicant’s heads
correctly note that vexatious matter refers to wording intended to harass or annoy;
nothing in the reply (as described in the strike ‑out notice and heads) suggests such
intention or language. To the extent the respondents argue prejudice because the
material might be considered later under Plascon ‑Evans, that is not the kind of
prejudice Rule 6(15) is aimed at.
[14] Having considered the parties’ submissions, I am not persuaded that the
respondents have demonstrated that the impugned passages are scandalous,
vexatious or irrelevant, nor that their presence in the record occasions prejudice in
vexatious or irrelevant, nor that their presence in the record occasions prejudice in
the Rule 6(15) sense. To the extent any statements are hearsay, their admission
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and weight are best determined in the review hearing under section 3(1)(c) and the
ordinary motion principles. The strike‑out application therefore fails.
The review application proper
[15] The applicant seeks to review and set aside SARS’s decision to issue a letter of
demand in the sum of R7 985 412.23, being customs duties, VAT, interest, penalties
and a forfeiture amount in terms of s 88(2)(a) of the Customs and Excise Act 91 of
1964 (“CEA”). In the alternative, it seeks that the matter be remitted to SARS for
reconsideration; and ultimately it asks this Court to replace the impugned decision
with a finding that it is not indebted to SARS at all.
[16] SARS opposes the application. It raises a preliminary point that the review is out
of time under s 7 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”),
and on the merits contends that the applicant, as a licensed remover of goods in
bond, is liable for duty by operation of s 18 of the CEA read together with s 64D.
Background and undisputed factual matrix
[17] The core events concern alcohol products declared for export to Mozambique
under various export bills of entry processed by Turners Shipping (Pty) Ltd on behalf
of Ocean Traders International Africa (Pty) Ltd (“OTIA”), with C ogef Trading LDA
reflected as consignee. Multipurpose was reflected on the export bills of entry as the
licensed remover of the goods.
[18] Multipurpose had leased trucks to Frimol Logistics (Pty) Ltd (“Frimol”) pursuant to
a truck lease arrangement. The applicant avers that although trucks were leased, its
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remover code was used without knowledge or consent, and that SARS failed to
verify declarations and authorisations properly. SARS disputes this and points to:
(a) a letter dated 28 September 2020 ostensibly authorising use of remover code 2[...],
(b) statements attributed to Multipurpose personnel indicating that the leasing
arrangement “comes with” the remover code, and
(c) prior communications in November 2017 in which Multipurpose authorised certain
companies to use its remover code.
[19] SARS’s audit and verification reflected that for a number of export bills of entry
the goods were marked for arrival at the border but never marked for exit on the
SARS SSM system; certain CN2 references furnished were allegedly invalid/false
because they related to different transactions at other borders; and hard copy
electronic road manifests indicated an exit status inconsistent with the SSM record.
From this SARS inferred diversion and raised the demand.
The issues
[20] Two issues arise arise:
20.1. Preliminary: Whether the review was instituted within the 180 -day period
contemplated by s 7(2) of PAJA (and, if not, whether condonation/extension under s
9 of PAJA is warranted).
20.2. Merits (in the event the Court reache s them): Whether SARS’s decision is
reviewable under PAJA on grounds of irrationality, unreasonableness or procedural
unfairness, and specifically whether Multipurpose is liable under s 18 of the CEA
(read with s 64D) as the remover of goods in bond in circumstances of alleged
diversion and failure to produce proof of unlawful export.
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The preliminary point: PAJA timeliness
[21] SARS contends the 180-day period ran from 5 April 2022, the date on which the
Internal Administrative Appeal (IAA) under Part A of Chapter XA of the CEA was
concluded; on that footing Multipurpose should have launched its review by October
2022 but only did so in January 2023. SARS relies on Petrogas SA1 (an unreported
judgment of the Gauteng Division) for the proposition that Part A of Chapter XA of
the CEA does not constitute an “internal remedy” for PAJA purposes, meaning the
IAA’s conclusion does not defer commencement of the 180 -day clock; SARS also
invokes the principle that courts strictly enforce PAJA’s time limits.
[22] Multipurpose counters that both internal appeal and ADR under Chapter XA are
internal remedies that had to be exhausted before review, and that after ADR was
terminated SARS issued a notice (MD11) advising the applicant of its rights and
stating that prescription runs for one year from the termination of ADR for
proceedings against the State in terms of s 96 of the CEA. The applicant argues that,
read with s 7(2) of PAJA and s 9(1), the time bar either did not run until ADR
termination or was extended “in writing” by SARS’s notice.
[23] The difficulty for the applicant is twofold. First, on the authorities and the stance
adopted in the respondents’ heads , Part A of Chapter XA is not an internal remedy
for PAJA purposes and does not suspend the running of s 7(1) (and by parity of
reasoning, ADR, being within the same administrative hierarchy, does not change
that position). Second, s 9(1) of PAJA requires the court to extend the 180 -day
period where the interests of justice so demand; it is not competent for an
1 Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd v Commi ssioner for the South African Revenue
Service [2018] ZAGPPHC 871
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administrator’s letter to unilaterally extend PAJA’s time limits. On the papers and
heads before me, Multipurpose did not seek condonation (or set out facts warranting
extension) in the manner PAJA contemplates. In those circumstances, a court is
enjoined to refuse to entertain the merits.
[24] I accordingly uphold the preliminary point and find that the review was launched
out of time and that no condonation has been shown on the papers or in the heads
to justify an extension under s 9.
Merits (obiter)
[25] Even if I am wrong on timeliness, the application would in any event fail on the
merits.
[26] The review standard is well settled: courts scrutinise administrative decisions
through PAJA to ensure they are rational, reasonable and procedurally fair, mindful
of the separation between appeals and reviews articulated in Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Others 2, and as restated in CSARS v
Dragon Freight .3 This Court does not sit to determine the correctness of the
decision, but whether it falls within the bounds of reasonableness.
[27] SARS’s factual basis is substantial: Multipurpose was reflected as the licensed
remover on the export bills of entry; several consignments were marked for arrival
but never for exit on the SSM system; CN2 references furnished were invalid for the
transactions in question; and the road manifest “exit” statuses conflicted with the
SSM record, pointing to non -export/diversion. Those facts, taken together, support
SARS’s inference that the goods were diverted and that liability under s 18 remained
2 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC)
3 Commissioner for the South African Revenue Service and Others v Dragon Freight (Pty) Ltd and Others (751/21)
[2022] ZASCA 84; [2022] 3 All SA 311 (SCA).
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because the remover had not produced proof that liability ceased under
s 18(3)(a)(i)–(ii).
[28] On authorisation, SARS relies on a 28 September 2020 letter and statements by
Multipurpose personnel indicating that the leasing arrangement included the
remover code, as well as a 14 November 2017 email showing prior authorisations of
third parties to use the code. Multipurpose alleges fraud, denies issuing any
authorisation to Frimol/OTIA in relation to the consignments, and says it is a victim
rather than a perpetrator. While those denials are noted, the materials SARS cites
provide a plausible evidentiary basis for concluding that Multipurpose at least
caused or permitted the removal, satisfying s 18(2) (“removes or causes such goods
to be removed”) and triggering the obligations in s 18(3) and s 64D(6). In that light,
SARS’s decision falls within the band of reasonableness.
[29] The applicant’s contention that SARS ought to have verified the declarations and
authorisations more rigorously before release does not, in my view, transform
SARS’s subsequent decision into one that is irrational or procedurally unfair,
particularly where the remover is strictly tasked by the statute to ensure proper
acquittal or proof of export and bears continuing liability until that occurs.
Costs
[30] SARS seeks costs. The ordinary rule is that costs follow the event. There is no
basis in the heads or record before me for a punitive costs order; the matter was
complex but not marked by reprehensible conduct. Ordinary party-and-party costs
are appropriate.
Order
[31] The following order is made:
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31.1 The application is dismissed on the grounds that it was instituted outside the
period prescribed by s 7(1) of PAJA, and no condonation under s 9 has been sought
or established.
31.2 In the alternative (obiter), were timeliness not dispositive, the application would
be dismissed on the merits because SARS’s decision is rational, reasonable and
lawful under s 18 and s 64D of the CEA and is not susceptible to review under
PAJA.
32.3 The applicant is to pay the costs of the application, including costs of counsel,
on the party-and-party scale B.
31.4 The respondent’s application in terms of Rule 6(15) to strike out specified
paragraphs of the applicant’s replying affidavit having been dismissed, the
respondents are to pay the costs of that specific application, including costs of
counsel, on the party and party scale B.
____________________
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 13/05/2025
Date of Judgment: 06 February 2026
On behalf of the Applicant: Mr G.Y. Benson
Instructed by: Pahad Attorneys c/o: Savage Jooste & Adams Inc, Pretoria
On behalf of the Respondents: Mr. A. Thompson
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Instructed by: Maponya Incorporated, Pretoria.
Delivery: This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand-down is deemed to be 06/02/2026.