AFGTI Case Alert 2 – 2025 Commissioner for the South African Revenue Service and Another v Richards Bay Coal Terminal (Pty) Ltd (CCT 104/23) [2025] ZACC 3 (31 March 2025)
This was an application for leave to appeal against the judgment and order of the Supreme Court of Appeal, which dismissed an appeal by the applicants against a judgment of the High Court of South Africa, KwaZulu-Natal Division, Durban (High Court).
This application arose in a challenge against a tariff determination in terms of the Customs and Excise Act[1] (CEA). In an interlocutory application under rule 30A[2] of the Uniform Rules of Court (Uniform Rules), the respondent, Richards Bay Coal Terminal (Pty) Limited (RBCT), sought to have the applicants, the Commissioner of the South African Revenue Service (Commissioner) and the Chairperson of the Excise Appeal Committee, comply with a rule 30A notice to furnish a record in terms of rule 53[3] or alternatively documents[4] constituting the record pursuant to rule 35(11). RBCT is a coal export terminal owned by South Africa’s major coal exporters.
SARS refused to comply on the basis that they did not consider RBCT’s challenge to the tariff determination a review, but rather, an appeal under section 47(9)(e) of the CEA. Section 47(9)(e) states:
“An appeal against any such determination shall lie to the division of the High Court of South Africa having jurisdiction to hear appeals in the area wherein the determination was made, or the goods in question were entered for home consumption.”[6]
The dispute at the heart of this matter was whether SARS must be compelled to produce the rule 53 record. To resolve that dispute, this Court had to determine whether, in a challenge to a tariff determination in terms of the 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. If a taxpayer can challenge the tariff determination by way of a judicial review in these circumstances, this Court must determine how a court deals with these different modalities of relief that a taxpayer may invoke.
The court found that, in the specific context where a taxpayer seeks to prosecute a review when a section 47(9)(e) appeal is available, a court must first determine the threshold question whether it will exercise its jurisdiction to entertain the review. The threshold enquiry obviously only applies if a litigant in this context seeks to prosecute a review or seeks to prosecute both a wide appeal and review concurrently or in the alternative. If a party seeks only to prosecute an appeal under section 47(9)(e), none of what I say here applies, since rule 53 would not be implicated in that scenario. This is a natural consequence of the distinction between wide appeal proceedings and review proceedings discussed extensively earlier in this judgment.
When a party brings an application for proceedings which are subject to the threshold determination, the timelines contained in rule 53 will only apply once the court decides to exercise its review jurisdiction and the taxpayer has been granted leave to pursue the review application. This also means that, upon delivery of the rule 53 notice, the respondent would be placed on terms to produce the record, but those terms will only become effective once the court has made the threshold determination. Therefore, the timelines in rule 53 will become operative only once the threshold determination is made.