Assmang Proprietary Limited v Commissioner for the South African Revenue Service and Others (91960/2015) [2023] ZAGPPHC 2032 (27 June 2023)

Assmang Proprietary Limited v Commissioner for the South African Revenue Service and Others (91960/2015) [2023] ZAGPPHC 2032 (27 June 2023)

The court found that the applicant's proposed amendment raises a trialable constitutional issue regarding the discriminatory effect of sections 47(9)(c) and 75(1A)(f) of the Customs and Excise Act, which deny interest on diesel refunds, unlike other tax statutes. The differentiation is not justified merely because the diesel refund scheme is voluntary, and the absence of interest on refunds may violate the equality principle and constitute arbitrary deprivation of property. SARS failed to demonstrate prejudice from the amendment or that it was introduced mala fide. The court held that the amendment is bona fide, raises a viable constitutional issue, and should be allowed to ensure proper...

Citation
[2023] ZAGPPHC 2032
Parties
Applicant: Assmang Proprietary Limited; Respondent: Commissioner for the South African Revenue Service; Respondent: Minister of Justice; Respondent: Minister of Finance
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 June 2023
Case Number
91960/2015
Procedural Posture
Leave to Amend / Application for Leave to Amend Notice of Motion Prior to Oral Evidence in Main Review Proceedings
Outcome
Leave to amend the applicant's notice of motion is granted. Costs are awarded to the applicant, including the costs of two counsel.
Judges
Neukircher
Legal Topics
Diesel Refund Scheme, Constitutional Invalidity, Discrimination, Interest on Tax Refunds, Customs and Excise Act, Equality Principle
Tax Law Constitutional Law Diesel Refund Scheme Constitutional Invalidity Discrimination Interest on Tax Refunds Customs and Excise Act Equality Principle

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Parties

Assmang Proprietary Limited

Applicant

Commissioner for the South African Revenue Service

Respondent

Minister of Justice

Respondent

Minister of Finance

Respondent

Procedural Posture

Leave to Amend / Application for Leave to Amend Notice of Motion Prior to Oral Evidence in Main Review Proceedings

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend its notice of motion to introduce a constitutional challenge to sections 47(9)(c) and 75(1A)(f) of the Customs and Excise Act, 1964.
  2. 2 Whether the impugned sections are discriminatory and inconsistent with the Constitution, particularly the equality principle and protection against arbitrary deprivation of property.
  3. 3 Whether the amendment raises a trialable issue and is not academic or bad in law.

Ratio Decidendi

The court found that the applicant's proposed amendment raises a trialable constitutional issue regarding the discriminatory effect of sections 47(9)(c) and 75(1A)(f) of the Customs and Excise Act, which deny interest on diesel refunds, unlike other tax statutes. The differentiation is not justified merely because the diesel refund scheme is voluntary, and the absence of interest on refunds may violate the equality principle and constitute arbitrary deprivation of property. SARS failed to demonstrate prejudice from the amendment or that it was introduced mala fide. The court held that the amendment is bona fide, raises a viable constitutional issue, and should be allowed to ensure proper...

Court Disposition

Leave to amend the applicant's notice of motion is granted. Costs are awarded to the applicant, including the costs of two counsel.

Orders

  • The applicant is granted leave to amend its notice of motion as set out in its draft order dated 27 January 2023.
  • Sections 47(9)(c) and 75(1A)(f) of the Customs and Excise Act, 91 of 1964 are declared invalid for being inconsistent with the Constitution of the Republic of South Africa, Act 108 of 1996.