Commissioner for the South African Revenue Service v Van der Merwe (20152/2015) [2015] ZASCA 86; 2016 (1) SA 599 (SCA); [2015] 3 All SA 387 (SCA); 77 SATC 405 (28 May 2015)

Commissioner for the South African Revenue Service v Van der Merwe (20152/2015) [2015] ZASCA 86; 2016 (1) SA 599 (SCA); [2015] 3 All SA 387 (SCA); 77 SATC 405 (28 May 2015)

The Supreme Court of Appeal found that the respondent's application for condonation was fatally defective due to flagrant breaches of the rules and an unacceptable, inadequate explanation for the delay. The respondent failed to provide a full and candid account of the causes of delay, did not address prospects of success, and relied on unreasonable legal advice. The court held that condonation should be refused irrespective of the merits of the appeal, as the conduct prejudiced both SARS and the administration of justice. Regarding the cross-appeal, the court determined that the High Court erred in failing to appoint a curator bonis over the respondent's assets. The evidence showed that...

Citation
[2015] ZASCA 86
Parties
Appellant: Commissioner for the South African Revenue Service; Respondent: Candice-Jean van der Merwe
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 May 2015
Case Number
20152/2015
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Application for condonation dismissed with costs; appeal by SARS upheld with costs; High Court order set aside and replaced with order confirming preservation of assets and appointment of curator bonis.
Judges
Ponnan, Wallis, Mbha, Fourie, Mayat
Legal Topics
Tax Administration Act, Curator Bonis Appointment, Condonation, Preservation Order, Procedural Non Compliance
Tax Law Civil Procedure Tax Administration Act Curator Bonis Appointment Condonation Preservation Order Procedural Non Compliance

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 19 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Commissioner for the South African Revenue Service

Appellant

Candice-Jean van der Merwe

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the respondent's application for condonation of the late prosecution of her appeal should be granted.
  2. 2 Whether the High Court erred in failing to appoint a curator bonis over the respondent's assets under section 163 of the Tax Administration Act.
  3. 3 Whether the preservation order should be confirmed and extended to include the appointment of a curator bonis.

Ratio Decidendi

The Supreme Court of Appeal found that the respondent's application for condonation was fatally defective due to flagrant breaches of the rules and an unacceptable, inadequate explanation for the delay. The respondent failed to provide a full and candid account of the causes of delay, did not address prospects of success, and relied on unreasonable legal advice. The court held that condonation should be refused irrespective of the merits of the appeal, as the conduct prejudiced both SARS and the administration of justice. Regarding the cross-appeal, the court determined that the High Court erred in failing to appoint a curator bonis over the respondent's assets. The evidence showed that...

Court Disposition

Application for condonation dismissed with costs; appeal by SARS upheld with costs; High Court order set aside and replaced with order confirming preservation of assets and appointment of curator bonis.

Orders

  • The application for condonation by Ms Candice-Jean van der Merwe is dismissed with costs including those of two counsel on the attorney and client scale.
  • The appeal by SARS is upheld with costs including those of two counsel.