Pahad Shipping CC v Commissioner for the South African Revenue Services (529/08) [2009] ZASCA 172; [2010] 2 All SA 246 (SCA); 72 SATC 35 (2 December 2009)

Pahad Shipping CC v Commissioner for the South African Revenue Services (529/08) [2009] ZASCA 172; [2010] 2 All SA 246 (SCA); 72 SATC 35 (2 December 2009)

The Supreme Court of Appeal found that there were serious reservations about the credibility of the appellant's factual averments regarding its relationship with Al Ajwad International LLC, as the documentary evidence did not support the appellant's version. The inconsistencies between the affidavits and the documents were not adequately explored, and the respondent was not given an opportunity to cross-examine the deponent to the founding affidavit. The court held that, given the doubts about the correctness of the appellant's allegations and the potential for injustice, the matter should be referred to oral evidence for cross-examination. The appeal was upheld, and the matter adjourned...

Citation
[2009] ZASCA 172
Parties
Appellant: Pahad Shipping CC; Respondent: Commissioner for the South African Revenue Services
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 December 2009
Case Number
529/08
Procedural Posture
Civil Appeal / Appeal From High Court Johannesburg (tsoka J)
Outcome
Appeal upheld. The matter is adjourned for cross-examination of Mr Nassim Pahad. Costs to be determined at the adjourned hearing.
Judges
Streicher, Brand, Snyders, Malan, Bosielo
Legal Topics
Customs Duty, Transaction Value, Commission Vs Finance Charges, Appeal Procedure, Credibility of Affidavit Evidence
Tax Law Commercial and Corporate Customs Duty Transaction Value Commission Vs Finance Charges Appeal Procedure Credibility of Affidavit Evidence

Case Brief

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Parties

Pahad Shipping CC

Appellant

Commissioner for the South African Revenue Services

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Johannesburg (tsoka J)

Legal Issues

  1. 1 Whether the 5% 'finance charges' paid by the appellant to Al Ajwad International LLC form part of the transaction value of imported goods for customs duty purposes.
  2. 2 Whether the respondent's determination that these charges are commission and thus dutiable was correct.
  3. 3 Whether the appellant's factual averments regarding its relationship with Al Ajwad are credible and supported by documentary evidence.

Ratio Decidendi

The Supreme Court of Appeal found that there were serious reservations about the credibility of the appellant's factual averments regarding its relationship with Al Ajwad International LLC, as the documentary evidence did not support the appellant's version. The inconsistencies between the affidavits and the documents were not adequately explored, and the respondent was not given an opportunity to cross-examine the deponent to the founding affidavit. The court held that, given the doubts about the correctness of the appellant's allegations and the potential for injustice, the matter should be referred to oral evidence for cross-examination. The appeal was upheld, and the matter adjourned...

Court Disposition

Appeal upheld. The matter is adjourned for cross-examination of Mr Nassim Pahad. Costs to be determined at the adjourned hearing.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The application is adjourned to a date to be arranged with the Registrar for the cross-examination of Mr Nassim Pahad in respect of the evidence deposed to by him in the applicant's founding and replying affidavits.