Cell C (Pty) Ltd v Commissioner for the South African Revenue Service (30959/2019) [2022] ZAGPPHC 152; 2022 (4) SA 183 (GP); 84 SATC 369 (11 March 2022)

Cell C (Pty) Ltd v Commissioner for the South African Revenue Service (30959/2019) [2022] ZAGPPHC 152; 2022 (4) SA 183 (GP); 84 SATC 369 (11 March 2022)

The High Court held that while its general review jurisdiction is not ousted by the Customs and Excise Act, the availability of a wide appeal under section 47(9)(e) excludes the possibility of review proceedings for the same determination. The statutory wide appeal is a complete re-hearing on the merits, allowing the court to substitute its own decision for that of the Commissioner, and encompasses all grounds, including those that would be raised in review. The Commissioner is not legally required to keep a record or provide reasons for tariff determinations, and thus cannot be compelled to dispatch a record under Rule 53. Allowing both remedies would result in cumulative and conflicting...

Citation
[2022] ZAGPPHC 152
Parties
Applicant: Cell C (Pty) Ltd; Respondent: Commissioner for the South African Revenue Service
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 March 2022
Case Number
30959/2019
Procedural Posture
Review Application / Application to Compel Dispatch of Record Under Rule 30 a Prior to Main Review/appeal Proceedings
Outcome
Application to compel SARS to dispatch a record under Rule 30A is dismissed. The Court declares it does not have review jurisdiction over the tariff determination in light of the wide appeal remedy under section 47(9)(e) of the Customs and Excise Act.
Judges
R G Tolmay
Legal Topics
Customs and Excise Act, Tariff Determination, Wide Appeal, Review Jurisdiction, Rule 53 Procedure
Tax Law Civil Procedure Customs and Excise Act Tariff Determination Wide Appeal Review Jurisdiction Rule 53 Procedure

Case Brief

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Parties

Cell C (Pty) Ltd

Applicant

Commissioner for the South African Revenue Service

Respondent

Procedural Posture

Review Application / Application to Compel Dispatch of Record Under Rule 30 a Prior to Main Review/appeal Proceedings

Legal Issues

  1. 1 Whether the High Court has review jurisdiction over SARS's tariff determination in light of the wide appeal remedy under section 47(9)(e) of the Customs and Excise Act.
  2. 2 Whether SARS is obliged to dispatch a record and reasons under Rule 53 when a wide appeal is available.
  3. 3 Whether the statutory scheme of the Customs and Excise Act excludes review proceedings when a wide appeal is provided.

Ratio Decidendi

The High Court held that while its general review jurisdiction is not ousted by the Customs and Excise Act, the availability of a wide appeal under section 47(9)(e) excludes the possibility of review proceedings for the same determination. The statutory wide appeal is a complete re-hearing on the merits, allowing the court to substitute its own decision for that of the Commissioner, and encompasses all grounds, including those that would be raised in review. The Commissioner is not legally required to keep a record or provide reasons for tariff determinations, and thus cannot be compelled to dispatch a record under Rule 53. Allowing both remedies would result in cumulative and conflicting...

Court Disposition

Application to compel SARS to dispatch a record under Rule 30A is dismissed. The Court declares it does not have review jurisdiction over the tariff determination in light of the wide appeal remedy under section 47(9)(e) of the Customs and Excise Act.

Orders

  • It is declared that the Court does not have review jurisdiction to review the respondent's tariff determination in light of the wide appeal afforded to the applicant in section 47(9)(e) of the Customs and Excise Act.
  • The application in terms of Rule 30A to compel is dismissed.