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KWIKFREIGHT SERVICES (Pty)
LTD (Reg No. 2009/01429/07)
Second Respondent
ZIEGLER SOUTH AFRICA (Pty) LTD
(Reg No. 2005/017338/07)
Third Respondent
TRANSGLOBAL AFRICA LOGISTICS
(Pty) LTD (Reg No. 2018/013690/07)
Fourth Respondent
INTERMODAL CONNECTIONS CC
(Reg No. 1998/039594/23)
Fifth Respondent
RAINET LOGISTICS (Pty) LTD
(Reg No. 2009/203750/23)
Sixth Respondent
BEYOND HEAVY HAULAGE (Pty) LTD
(Reg No: 2014/0033763/07)
Seventh Respondent
This judgment has been handed down remotely and shall be circulated to the parties by way of email /
uploading on Caselines. The date of hand down shall be deemed to be 29 April 2026.
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ORDER
______________________________________________________________________
1. The application for leave to appeal is dismissed.
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______________________________________________________________________
JUDGMENT
______________________________________________________________________
Bam J
Introduction
1. This is an application for leave to appeal the judgment and order of this court of 26
May 2025. The application is brought by the Commissioner for South African Revenue
Service, CSARS or simply SARS. SARS’ grounds of appeal are set out in their Notice
of Application for Leave to Appeal. Before I consider SARS’ grounds, I digress to
consider a house keeping matter. Despite diligent search on Caselines, this court
could not find Poseidon’s Heads of Argument to resist the present application. The
registrar of this court further confirmed that there was nothing emailed to her office
prior to hearing the application. Accordingly, this judgment proceeds on the basis that
Poseidon filed no papers to oppose the application.
Applicable legal principles
2. It is instructive to start off by considering the applicable legal principles. Section 17 of
the Superior Courts Act governs applications for leave to appeal. Sub paragraph (1)
(a) provides that leave to appeal may only be granted where:
‘ the judge or judges concerned are of the opinion that:
(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
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conflicting judgments on the matter under consideration;’
3. Our senior courts have interpreted this provision to mean that an applicant for leave
to appeal must persuade the court on proper grounds that there is a reasonable
prospect that another court would come to a different decision. ‘A mere possibility of
success, an arguable case or one that is not hopeless, is not enough’1. If a court is
unpersuaded that there would be prospects of success, it must still enquire into
whether there is a compelling reason to grant leave, but here too, prospects of success
play a vital role2.
4. It is further a foundational procedural principle that an appeal lies against the
substantive order rather than the reasons3. A court will not be persuaded if the
applicant for leave merely directs criticisms against the reasoning in the judgment
where the criticism does not have a material impact on the substantive order4.
5. Furthermore, it is now trite that a court of appeal will not likely interfere with a lower
court’s exercise of its discretion, unless it is persuaded that the discretion was not
exercised judiciously, or that the court misdirected itself as to the facts or the law5.
1 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016),
paragraph 17.
2 Ramakatsa and Others v African National Congress and Another (Case No. 724/2019) [2021] ZASCA 31 (31 March
2021), paragraph 10; Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (982/18) [2020] ZASCA 17; 2020 (5) SA 35
(SCA) (25 March 2020), paragraph 2.
3 Zurich Insurance Company South Africa Ltd v Gauteng Provincial Government (734/2021) [2022] ZASCA 127; [2023]
1 All SA 368 (SCA); 2023 (1) SA 447 (SCA) (28 September 2022), paragraph 4; Neotel (Pty) Ltd v Telkom SOC &
Others (605/2016) [2017] ZASCA 47 (31 March 2017), paragraph 23.
4 Celliers and Others v Kleinfontein Aandeleblok (Edms) Bpk and Others (Leave to Appeal) (4755/2022) [2024]
ZAGPPHC 1060 (31 October 2024), paragraph 15.
ZAGPPHC 1060 (31 October 2024), paragraph 15.
5 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another
(CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (26 June 2015), paragraphs 83-87;
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SARS’ grounds of appeal
6. In dealing with SARS’ grounds and, owing to repetition of some grounds, I do not
necessarily deal with each and every ground. Rather, I deal with the grounds
thematically.
1. The court erred in finding that the applicant had demonstrated that the goods had
been exported to Katanga
7. SARS contends that the court erred in concluding that the applicant had demonstrated
that it had exported the goods to Katanga. The judgment deals adequately with what
the court considered in reaching this conclusion. I see no need to repeat the detailed
reasoning set out in the judgment.
2. The court erred in finding that SARS had to investigate whether the goods had
been diverted
8. Elsewhere in the Notice of Application for Leave to Appeal this ground is repeated as,
The court erred in finding that SARS had to conduct a proper and fair investigation.
As a start, it is necessary to record that it is incorrect that the court found that SARS
had to investigate whether the goods had been diverted. That statement does not
appear anywhere in the judgment. In any event, the context in which the word
investigate is used in the judgment is made clear, and it bears no relation to the onus
carried by the applicant to prove to the Commissioner that the goods had been
exported to Katanga. I see no need to repeat what is in the judgment.
Giddey NO v JC Barnard and Partners (CCT65/05) [2006] ZACC 13; 2007 (5) SA 525 (CC); 2007 (2) BCLR 125 (CC)
(1 September 2006), paragraph 19.
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3. The court erred in finding that the goods had been swapped and the founding
affidavit does not contain any averment that the goods had been swapped.
9. Both the founding and the answering affidavits make this averment very clearly. I see
no point in repeating what is in the judgment.
4. There was no explanation provided as to why inadmissible hearsay evidence was
admitted and the court misapplied the law relating to hearsay evidence
10. The judgment sets out a detailed account of how the court concluded that it was in the
interests of justice to admit hearsay evidence. This criticism does not at all interact
with that reasoning. I may add, and this point applies to the previous ground dealing
with swapping of goods, it does not assist a litigant to snipe at the factual or even legal
reasoning in the judgment, without demonstrating how the alleged error or errors
materially impact the substantive order.
5. The relevance of COVID 19 is not clear in the judgment
11. The judgment makes the role of COVID 19 regulations abundantly clear. I see no need
to repeat what is set out in the judgment.
6. The court erred in granting condonation
12. It is of interest to note that the court laid a foundation for its conclusions in this regard.
Instead of interacting with the reasoning in the judgment, SARS merely states that the
court erred. This cannot be a ground for appeal. I refer to the trite principles of
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appellate interference with the exercise of a lower court’s discretion. There is
absolutely no case made as to why an appeal court should interfere with this court’s
exercise of its discretion. As the authorities make clear, an appellate court will not
likely interfere with a lower court’s exercise of its discretion. There is no merit to this
ground.
7. The court erred in finding that annexures I, J, K, L1, and L2 constitute evidence
that the goods were delivered
13. The judgment clearly sets out the court’s reasoning prior to admitting this evidence
into record. I stand by what is set out in the judgment.
8. The court erred in admitting the evidence of Ntumba Euxodie
14. The judgment provides adequate reasons for admitting Ntumba’s evidence into
record. There is no point in repeating what is set out in the judgment.
9. The court erred in finding that there are no material disputes of fact
15. SARS contends, without more, that the court erred in finding that there were no
material disputes of fact. A statement is then made that the material disputes of fact
are demonstrated in the applicant’s own affidavit. Indeed, the judgment made that
finding. I stand by that finding. Consistent with SARS’ conduct in their answering
affidavit, the claim is simply made that there are material disputes of fact without any
effort to demonstrate what those material disputes of fact are, and where SARS dealt