04 April 2025
| Maritime Law and Insurance | Business Law
The Constitutional Court in Commissioner for the South African Revenue Service and Another v Richards Bay Coal Terminal (Pty) Ltd considered whether, in a challenge to a tariff determination in terms of the Customs and Excise Act (CEA):
- a taxpayer is limited to a so-called “wide appeal” under section 47(9)(e) of the CEA; and
- if not, whether the taxpayer can, in the alternative or separately, challenge the tariff determination by way of a judicial review (such as through the Promotion of Administrative Justice Act (PAJA)).
The distinction between an appeal and a review is important from the perspective of a litigant because it is only in the latter that a litigant is entitled to request a copy of SARS’ record of decision in relation to the impugned decision.
In this case, the taxpayer sought to challenge certain decisions of SARS through a statutory appeal (section 47(9)(e)) and through judicial review (PAJA review and legality review).
On the question of whether a taxpayer was limited in remedies, the Court held that neither section 47(9)(e) nor any other provision of the CEA ousts the review jurisdiction of the High Court.
The Court then turned to consider whether an aggrieved taxpayer enjoys unrestricted access to challenge a decision by choosing either or both remedies at its instance.
First, the court considered the interplay between the right of appeal in the CEA and the PAJA right of review. Underpinning this consideration was the court’s recognition that although the court’s jurisdiction is not ousted, it nonetheless may decline to exercise its jurisdiction.
If a taxpayer’s complaint, in nature and in substance, is both about the correctness of the decision on the merits and the lawfulness of the decision-making process, the court will be called upon to decide whether to exercise its review jurisdiction. If it refuses to exercise its review jurisdiction, the court can deal with the matter as a wide appeal, notwithstanding the allegation of review grounds. If it decides to exercise its review jurisdiction, it will deal with the matter as a review.
The Court highlighted that there may be cases where a challenge is clothed in PAJA language to obtain access to the record and that a court should decline to exercise its review jurisdiction in those cases.
Second, the court considered the principle of subsidiarity, which means that the more specific norm should be preferred over the general norm. In this context, it said that the more specific appeal in section 47(9)(e) of the CEA should be preferred over the general review under PAJA or the principle of legality.
The Court described three conceivable scenarios:
(a) The taxpayer may institute a review and appeal in the same process, in which case the court will first need to be persuaded to exercise its review jurisdiction. If it decides to do so, the record must be made available. The court may, in such a case, hear argument and give judgment on the review before dealing with the appeal. If the review is successful, the decision is set aside, and the need for the appeal falls away. If the review is unsuccessful, the court may consider the appeal.
(b) The taxpayer may institute a review only, reserving its right to pursue an appeal at a later time. Similarly, the taxpayer will need to persuade the Court to exercise its review jurisdiction in the face of a possible appeal under section 47(9)(e). However, the failure to expressly reserve the right to pursue the appeal may not justify the inference that the taxpayer has waived its right to pursue the appeal.
(c) The taxpayer may simply pursue an appeal, in which case, the appeal will proceed as usual, and the right to review at a later time is lost since a review must logically precede an appeal. This is so because an appeal presupposes the existence of a lawful decision.
The Court also commented on the taxpayer’s entitlement to request access to the record. It held that where a court has decided not to entertain a review, the review will not be considered and the right to a rule 53 record falls away.
The judgment provides useful guidance to litigants seeking to challenge decisions which constitute tariff determinations and assists in identifying the appropriate manner in which to do so. It does, however, limit the circumstances in which a litigant will be entitled to seek access to a record.
The full judgment can be accessed
here.
