Glencore Operations SA (Pty) Limited v Commissioner for the South African Revenue Service (11696/18) [2019] ZAGPPHC 545; 82 SATC 362 (24 October 2019)

Glencore Operations SA (Pty) Limited v Commissioner for the South African Revenue Service (11696/18) [2019] ZAGPPHC 545; 82 SATC 362 (24 October 2019)

The court found that the word 'include' in note 6(f)(iii) of Schedule 6 to the Customs and Excise Act must be interpreted broadly and non-exhaustively. The listed activities go beyond the primary meaning of 'mining', and the legislative intent is to cover all activities integral to primary production in mining, even if not specifically listed. The applicant's activities, though not all precisely enumerated, are part and parcel of mining operations intended to be covered by the concession. The applicant's delay in lodging the appeal was fully explained, and no prejudice was shown by the respondent; thus, extension of time was granted. The Commissioner's determination was set aside and...

Citation
[2019] ZAGPPHC 545
Parties
Applicant: Glencore Operations SA (Pty) Limited; Respondent: Commissioner for the South African Revenue Service
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 October 2019
Case Number
11696/18
Procedural Posture
Civil Appeal / Appeal From Internal Determination Under Customs and Excise Act
Outcome
Appeal upheld; determination by the Commissioner set aside and substituted; extension of time granted; costs awarded to applicant including senior counsel.
Judges
Van der Westhuizen
Legal Topics
Customs and Excise Act, Diesel Fuel Rebate, Statutory Interpretation, Primary Production in Mining
Tax Law Administrative Law Customs and Excise Act Diesel Fuel Rebate Statutory Interpretation Primary Production in Mining

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Parties

Glencore Operations SA (Pty) Limited

Applicant

Commissioner for the South African Revenue Service

Respondent

Procedural Posture

Civil Appeal / Appeal From Internal Determination Under Customs and Excise Act

Legal Issues

  1. 1 Whether the applicant's activities qualify as 'primary production activities in mining' under note 6(f)(iii) of Schedule 6 to the Customs and Excise Act for purposes of diesel fuel rebates.
  2. 2 Whether the list of qualifying activities in note 6(f)(iii) is exhaustive or illustrative.
  3. 3 Whether the applicant's appeal was timeously instituted and whether extension should be granted.

Ratio Decidendi

The court found that the word 'include' in note 6(f)(iii) of Schedule 6 to the Customs and Excise Act must be interpreted broadly and non-exhaustively. The listed activities go beyond the primary meaning of 'mining', and the legislative intent is to cover all activities integral to primary production in mining, even if not specifically listed. The applicant's activities, though not all precisely enumerated, are part and parcel of mining operations intended to be covered by the concession. The applicant's delay in lodging the appeal was fully explained, and no prejudice was shown by the respondent; thus, extension of time was granted. The Commissioner's determination was set aside and...

Court Disposition

Appeal upheld; determination by the Commissioner set aside and substituted; extension of time granted; costs awarded to applicant including senior counsel.

Orders

  • The period of one year referred to in section 96(1)(b) of the Customs and Excise Act, 91 of 1964 is extended until 21 February 2018 for the relief sought.
  • The applicant's appeal against the determination by the respondent that the applicant does not qualify for diesel refunds under rebate item 670.04 is upheld and the determination is set aside.