Moosa N.O and Others v High Street Auction Company (Pty) Ltd (3691/2018) [2018] ZAKZPHC 61 (6 November 2018)

Moosa N.O and Others v High Street Auction Company (Pty) Ltd (3691/2018) [2018] ZAKZPHC 61 (6 November 2018)

The court found that the applicants failed to exhaust internal remedies provided by the VAT Act, specifically the mechanism under section 72 for resolving anomalies or difficulties. The relief sought required the involvement of the Commissioner for SARS, who was not joined as a party. The VAT Act prohibits the issuance of more than one tax invoice for a taxable supply, and any deviation must be authorized by the Commissioner. The non-joinder of the Commissioner was fatal to the application, as the Commissioner has a direct and substantial interest in the subject matter. The applicants did not provide evidence that they had attempted to resolve the issue with SARS or complied with section...

Citation
[2018] ZAKZPHC 61
Parties
Applicant: Mohammed Shaaz Moosa N.O.; Applicant: Mohammed Shuabe Moosa N.O.; Applicant: Jose Alberto Delgado N.O.; Applicant: Yaseera Abdul Kader Essack N.O.; Applicant: Yusuf Abdul Kader Essack N.O.; Applicant: Zaiboon Niza Ismail Essack N.O.; Applicant: Abdul Kader Mohammed Essack N.O.; Respondent: The High Street Auction Company (Pty) Ltd
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
6 November 2018
Case Number
3691/2018
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed with costs.
Judges
Mbatha
Legal Topics
Value Added Tax Act, Joinder of Parties, Exhaustion of Internal Remedies, Tax Invoices, Credit Notes
Tax Law Civil Procedure Value Added Tax Act Joinder of Parties Exhaustion of Internal Remedies Tax Invoices Credit Notes

Case Brief

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Parties

Mohammed Shaaz Moosa N.O.

Applicant

Mohammed Shuabe Moosa N.O.

Applicant

Jose Alberto Delgado N.O.

Applicant

Yaseera Abdul Kader Essack N.O.

Applicant

Yusuf Abdul Kader Essack N.O.

Applicant

Zaiboon Niza Ismail Essack N.O.

Applicant

Abdul Kader Mohammed Essack N.O.

Applicant

The High Street Auction Company (Pty) Ltd

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the respondent should be compelled to issue VAT invoices to the Trusts for auctioneers commission.
  2. 2 Whether the Commissioner for SARS ought to have been joined as a party to the proceedings.
  3. 3 Whether the applicants exhausted internal remedies under the VAT Act before approaching the court.

Ratio Decidendi

The court found that the applicants failed to exhaust internal remedies provided by the VAT Act, specifically the mechanism under section 72 for resolving anomalies or difficulties. The relief sought required the involvement of the Commissioner for SARS, who was not joined as a party. The VAT Act prohibits the issuance of more than one tax invoice for a taxable supply, and any deviation must be authorized by the Commissioner. The non-joinder of the Commissioner was fatal to the application, as the Commissioner has a direct and substantial interest in the subject matter. The applicants did not provide evidence that they had attempted to resolve the issue with SARS or complied with section...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.