Commissioner for the South African Revenue Service v Pearlstock (Pty) Ltd (83481/18) [2020] ZAGPPHC 704 (25 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

25/11/2020

CASE NO: 83481/18

In the application of:

THE COMMISSIONER FOR THE

SOUTH AFRICAN REVENUE SERVICE

APPLICANT

and

PEARLSTOCK (PTY) LTD

RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

COLLIS J:

INTRODUCTION

[1] This is an application for leave to appeal against the judgment and order I made on 13 August 2020. The full order of the court reads as follows:

1.1 "The applicants appeal against the respondent's tariff determination in terms whereof the respondent determined that the tariff heading 3916.20.90 in Part 1 of Schedule 1 to the Customs and Excise Act 91 of 1964 ('the Act') is applicable to a product described as a "PVC Panels", as set out in annexure NFA 4" to the Notice of Motion, is upheld.

1.2 The respondent's tariff determination referred to in paragraph 61.1 is set aside and replaced with a tariff determination in terms of which the products described in paragraph 61.1 above, be classified under tariff heading 3921.12.

1.3 The respondent is ordered to pay the costs of the application including the costs occasioned by the employment of senior counsel."

[2] The application is premised on the grounds as listed in the Application for Leave to Appeal dated 3 September 2020.

LEGAL PRINCIPLES

[3] Section 17 of the Superior Court's Act provides as follows:[1]

(1) Leave to appeal may only be given 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;

(b) the decision sought to appeal does not fall within the ambit of section 16(2)(a);

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[4] As to the test to be applied by a court in considering an application

for leave to appeal, Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the following:

'It is clear that the threshold for granting leave to appeal against a judgment of a high Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. 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.’

[5] 'In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance

of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other word, be a sound, rational basis for the conclusion that there are prospects of success on appeal.'[2]

[6] The applicant and the respondent on request by this court had filed written Heads of Argument in order to facilitate the virtual hearing of the matter.

[7] Having read the papers and having carefully heard counsel I come to the conclusion that there is a reasonable prospect that another court would come to a different conclusion on the order of the court.

ORDER

[8] Consequently I make the following order:

8.1 The application for leave to appeal is granted to the Full Court of the Gauteng Division Pretoria with costs to be costs in the appeal.

C. J. COLLIS

JUDGE OF THE HIGH COURT

GAUTENG DIVISION PRETORIA

[1] Act 10 of 2013

[2] S v Smith 2012 (1) SACR 567 (SCA) at para 7