Modibane v South African Revenue Service (09/9651) [2011] ZAGPJHC 152; 74 SATC 398 (20 October 2011)

Modibane v South African Revenue Service (09/9651) [2011] ZAGPJHC 152; 74 SATC 398 (20 October 2011)

The court held that the certified statement filed by SARS under section 91(1)(b) of the Income Tax Act is not a judgment in the ordinary sense and is therefore not susceptible to rescission. Even if it were considered a judgment, the applicant failed to show sufficient cause for rescission, as he was in wilful default and did not present a bona fide defence. The applicant's argument that SARS was not entitled to obtain judgment while an appeal was pending was rejected, as section 88(1) clearly provides that the obligation to pay tax and SARS's right to recover are not suspended by an appeal unless the Commissioner directs otherwise. The court found the applicant's reliance on Mokoena v...

Citation
[2011] ZAGPJHC 152
Parties
Applicant: Joseph Gadifele Modibane; Respondent: South African Revenue Service
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 October 2011
Case Number
09/9651
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Tax Judgment
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
M Tsoka
Legal Topics
Income Tax Assessment, Pay Now Argue Later, Tax Recovery Mechanisms, Rescission of Judgment
Tax Law Civil Procedure Income Tax Assessment Pay Now Argue Later Tax Recovery Mechanisms Rescission of Judgment

Case Brief

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Parties

Joseph Gadifele Modibane

Applicant

South African Revenue Service

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Tax Judgment

Legal Issues

  1. 1 Whether the certified statement filed by the Commissioner under section 91(1)(b) of the Income Tax Act constitutes a judgment susceptible to rescission.
  2. 2 Whether SARS was entitled to obtain judgment against the applicant while an appeal against the tax assessment was pending.
  3. 3 Whether the applicant showed sufficient cause for rescission, including absence of wilful default and existence of a bona fide defence.

Ratio Decidendi

The court held that the certified statement filed by SARS under section 91(1)(b) of the Income Tax Act is not a judgment in the ordinary sense and is therefore not susceptible to rescission. Even if it were considered a judgment, the applicant failed to show sufficient cause for rescission, as he was in wilful default and did not present a bona fide defence. The applicant's argument that SARS was not entitled to obtain judgment while an appeal was pending was rejected, as section 88(1) clearly provides that the obligation to pay tax and SARS's right to recover are not suspended by an appeal unless the Commissioner directs otherwise. The court found the applicant's reliance on Mokoena v...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application for rescission is dismissed.
  • The applicant is ordered to pay the respondent's costs, including costs consequent upon the engagement of two counsel.