King v Commissioner for the South African Revenue Service (08/38415) [2009] ZAGPJHC 1; 71 SATC 261 (9 March 2009)

King v Commissioner for the South African Revenue Service (08/38415) [2009] ZAGPJHC 1; 71 SATC 261 (9 March 2009)

The court held that the plaintiff's particulars of claim did not disclose a valid cause of action because the settlement agreement was not signed by the Commissioner personally or by an official properly delegated under section 88E(1) of the Income Tax Act. The written authority relied upon did not constitute proper delegation, and there was no allegation that Delville Whatley & Associates were authorised officials of SARS. Furthermore, the agreement did not comply with the prescribed format required by section 88F(3), and the parties to the agreement were incorrectly identified, as the agreement was signed on behalf of the South African Revenue Service rather than the Commissioner. The...

Citation
[2009] ZAGPJHC 1
Parties
Plaintiff: David Cunningham King; Defendant: Commissioner for the South African Revenue Service
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 March 2009
Case Number
08/38415
Procedural Posture
Civil Trial / Exception to Particulars of Claim
Outcome
Defendant's exception upheld; plaintiff's particulars of claim set aside.
Judges
Malan
Legal Topics
Income Tax Act Settlement, Authority to Settle, Delegation of Powers, Exception Procedure, Contractual Conditions
Tax Law Civil Procedure Income Tax Act Settlement Authority to Settle Delegation of Powers Exception Procedure Contractual Conditions

Case Brief

Summary, issues, holding and outcome

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Parties

David Cunningham King

Plaintiff

Commissioner for the South African Revenue Service

Defendant

Procedural Posture

Civil Trial / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the settlement agreement relied upon by the plaintiff is valid and binding on the defendant under the Income Tax Act.
  2. 2 Whether Delville Whatley & Associates were properly authorised to settle the dispute on behalf of the Commissioner.
  3. 3 Whether the settlement agreement complies with the prescribed format and requirements under section 88F of the Income Tax Act.

Ratio Decidendi

The court held that the plaintiff's particulars of claim did not disclose a valid cause of action because the settlement agreement was not signed by the Commissioner personally or by an official properly delegated under section 88E(1) of the Income Tax Act. The written authority relied upon did not constitute proper delegation, and there was no allegation that Delville Whatley & Associates were authorised officials of SARS. Furthermore, the agreement did not comply with the prescribed format required by section 88F(3), and the parties to the agreement were incorrectly identified, as the agreement was signed on behalf of the South African Revenue Service rather than the Commissioner. The...

Court Disposition

Defendant's exception upheld; plaintiff's particulars of claim set aside.

Orders

  • The defendant's exception is upheld and the plaintiff's particulars of claim are set aside.
  • The plaintiff is granted leave to proceed with an application to amend in terms of Rule 28(4) if so advised.