THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1299/2021
In the matter between:

THE COMMISSIONER FOR THE
SOUTH AFRICAN REVENUE SERVICE
FIRST APPELLANT
THE CHAIRPERSON, EXCISE APPEAL
COMMITTEE
SECOND APPELLANT

and

RICHARDS BAY COAL TERMINAL
(PTY) LTD
RESPONDENT

Neutral citation:
Commissioner for the South African Revenue Service and Another v
Richards Bay Coal Terminal (Pty) Ltd (Case no 1299/2021) [2023]
ZASCA 39 (31 March 2023)
Coram:
PONNAN ADP and MOCUMIE, GORVEN and GOOSEN JJA and
UNTERHALTER AJA
Heard:
28 February 2023
Delivered:
31 March 2023
Summary:
Customs and Excise Act 91 of 1964 – taxpayer not confined to the remedy
of a wide appeal under s 47(9)(e) – can also review a tariff determination under the
Promotion of Administrative Justice Act 3 of 2000, alternatively the principle of legality.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Durban (Topping AJ,
sitting as court of first instance):
The appeal is dismissed with costs, including those of two counsel where so
employed.

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Ponnan ADP (Mocumie, Gorven and Goosen JJA and Unterhalter AJA concurring)

[1] This appeal turns on whether an aggrieved taxpayer, seeking to challenge a tariff
determination in terms of the Customs and Excise Act 91 of 1964 (the CEA), is confined
to the remedy of a wide appeal under s 47(9)(e) of the CEA. It arises from a challenge by
the respondent, Richards Bay Coal Terminal (Pty) Ltd (RBCT), to a tariff determination
by the first appellant, the Commissioner, South African Revenue Service (SARS). RBCT’s
challenge was two-pronged: It sought both to appeal the determination in terms of the
statutory appeal provision in s 47(9)(e) of the CEA, as also, at the same time, to review it
under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), alternatively the
principle of legality.

[2] As an incident of the review application, RBCT sought the record of the tariff
determination in terms of Uniform rule 53. In the alternative, RBCT also sought the
documents constituting the record under Uniform rule 35(11). SARS resisted production
of the record on the basis that as the review was not competent, RBCT is consequently
not entitled to the record.

[3] The factual backdrop, against which the issue arises for consideration (and which
by and large is either common cause or undisputed), may be summarised as follows: In
his 2001 budget speech, the then Minister of Finance, made the following announcement:
‘In the 2000 budget, a diesel fuel concession was reintroduced for fishing and coastal shipping.
Government committed itself to explore the possibility of extending this to other primary
producers, contingent on developing an administrative regime to minimise the risk of fraud; and
ensuring the concession is affordable within the broader fiscal framework. The bulk of diesel fuel
used in farming, forestry and mining is used off road. Given this, and to encourage the
international competitiveness of especially our farmers, foresters and miners, the following diesel
fuel concessions are proposed:

25.6 cents a litre of the general fuel levy on qualifying consumption,

The full 16.5 cents a litre Road Accident Fund levy on qualifying consumption.
Qualifying consumption will be 80 per cent of total consumption. Diesel concessions will be
implemented on 4 July 2001 and will cost R417 million a year.’

[4] RBCT is one of the leading coal export terminals in the world. Its shareholders are
South Africa’s major coal exporters, with mines situated primarily in Mpumalanga and
northern KwaZulu-Natal. Coal is sourced from these mines and transported to RBCT in
Richards Bay, where it is stockpiled and loaded onto vessels for export. The
administrative regime that was set up to implement the diesel rebate scheme was
introduced by the Department of Finance in 2001, in the exercise of the powers provided
for in s 75 of the CEA. In 2009, RBCT registered for the diesel fuel levy refund scheme.
It thereafter claimed rebates for the period 2009 to 2017. On 22 April 2015, SARS
launched an investigation into those claims. On 15 August 2017, SARS sent RBCT an
audit engagement letter and, on 5 October 2017, it sent RBCT a Notice of Intention to
Assess. SARS’ prima facie view, as communicated to RBCT, was that the latter had
claimed refunds for ‘non-qualifying activity’ in excess of R7 million for the period March
2013 to August 2017. RBCT was given 14 days within which to respond to the Notice,
which it did on 15 November 2017.

[5] On 4 December 2017, SARS issued a letter of demand to RBCT under s 75 (read

with Part 3 of Schedule 6) of the CEA. SARS demanded repayment of R7 126 934.63,
plus interest. On 9 February 2018, RBCT lodged an internal appeal in terms of s 77 of the
CEA. On 7 February 2019, the internal administrative appeal committee of SARS, the
Excise Appeal Committee (the EAC), rejected RBCT’s appeal. Following engagement
between the parties concerning the reasons for the dismissal of the appeal, as well as the
appropriateness of alternative dispute resolution, RBCT applied to the KwaZulu-Natal
Division of the High Court, Durban (the high court) on 26 November 2019. It sought to
appeal the decision of the EAC (which was cited as the second respondent in the
application) and, if successful on that score, for the decision of the EAC to be substituted
with one: (a) upholding RBCT’s appeal to it, and, (b) setting aside SARS’ letter of demand.
In the alternative, RBCT sought to review and set aside both the EAC’s decision to reject
its appeal and SARS’ decision to issue the letter of demand.

[6] RBCT also sought the record of decision from SARS. On 24 January 2020, SARS
informed RBCT that it did not consider the matter a review, but instead a ‘wide’ appeal
under s 47(9)(e) and indicated that it would therefore not be delivering the record. In
response, on 30 January 2020, RBCT served a Rule 30A notice on SARS calling on it to
comply with Rule 53, alternatively with Rule 35(11). When SARS persisted in its refusal,
RBCT launched the application, the subject of this appeal (the compelling application),
on 11 March 2020. SARS took the view that if the high court lacks review jurisdiction, then
Rule 53 does not apply and there would accordingly be no basis upon which to compel it
to produce the record. In a judgment delivered on 12 August 2021, the high court (per
Topping AJ) directed SARS to comply with Uniform rule 53(1)(b) within ten days, by
dispatching to RBCT a complete record relating to the decisions that are subject to the
appeal and review. The appeal by SARS against that order is before this Court with the
leave of Topping AJ.

[7] Parenthetically, it is perhaps necessary to pass certain preliminary observations.
First, in Competition Commission of South Africa v Standard Bank1 (Standard Bank) the
Constitutional Court held that an order compelling a respondent in a review to deliver the
record of its decision in terms of Rule 53, is indeed appealable. Second, both the majority

1 Competition Commission of South Africa v Standard Bank of South Africa [2020] ZACC 2; 2020 (4) BCLR
429 CC (Standard Bank).

and minority2 in Standard Bank held that the court may only order the production of the
record of a decision under Rule 53 after it has determined that it has jurisdiction in the
review. The majority put it as follows:
‘Therefore, [rule 53] enables an applicant to raise relevant grounds of review, and the court
adjudicating the matter to properly perform its review function. However, for a court to perform
this function, it must have the necessary authority. It is not prudent for a court whose authority to
adjudicate a review application is challenged to proceed to enforce rule 53 and order that
disclosure should be made, before the issue of jurisdiction is settled. The object of rule 53 may
not be achieved in a court that lacks jurisdiction.
For these additional reasons, we agree with the first judgment [of Theron J] that Boqwana JA
erred in ordering that the Commission should disclose its record of investigation before the
question of jurisdiction was determined. Once carried out, and in the event that the Competition
Appeal Court concluded that it has no jurisdiction, what is to be done in terms of the order cannot
be undone.’3

[8] Third, the notice of motion in this matter did not necessarily conduce to clarity. The
review was advanced in the alternative to the appeal. Thus, if the appeal (being the main
relief that was sought) were to succeed, the high court may notionally simply not get to
the review; much less, the compelling application that was incidental to the review. The
approach favoured by RBCT thus opened the door to a fractional disposal of issues and
the piecemeal hearing of appeals. However, as there are dissonant high court judgments
and because the present – as well as future – litigants will likely benefit, there may well
be a practical need, as also some public interest, in this Court expressing its view on the
point raised.

[9] The dictum of Trollip J in Tikly,4 is perhaps a useful starting point. He there pointed
out that the word ‘appeal’ can have different connotations and explained that it could
mean:
‘(i) an appeal in the wide sense, that is, a complete re-hearing of, and fresh determination on the
merits of the matter with or without additional evidence or information . . .;

2 Ibid paras 118-119.
3 Ibid paras 202-203.
4 Tikly & Others v Johannes NO & Others 1963 (2) SA 588 (T).

(ii) an appeal in the ordinary strict sense, that is, a re-hearing on the merits but limited to the
evidence or information on which the decision under appeal was given, and in which the only
determination is whether that decision was right or wrong . . .;
(iii) a review, that is, a limited re-hearing with or without additional evidence or information to
determine, not whether the decision under appeal was correct or not, but whether the arbiters had
exercised their powers and discretion honestly and properly . . .’.5 (Footnotes omitted.)

[10] The thrust of SARS’ case is that because a s 47(9)(e) appeal is an appeal in the
wide sense as articulated by Trollip J in (i) above, a complete rehearing of the matter is
envisaged. This means a de novo reconsideration of the tariff determination, with or
without new evidence and information. Accordingly, so the argument proceeds, a party
seeking to challenge a tariff determination is confined to the wide statutory appeal
envisaged by s 47(9)(e), to the exclusion of review proceedings. That provision reads:
‘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.’

[11] SARS’ contention raises a question of statutory construction: Does the fact that
the CEA creates a tailor-made remedy, necessarily exclude a taxpayer’s right of review?
The question has been considered by the high court on four separate occasions. In Distell
Limited, a Full Court held:
‘With regard to the applicability, or not, of PAJA:
(a) The wording of the Act is trenchant and that the prescribed remedy of an aggrieved party
against a tariff determination, irrespective of whether it is founded on the Commissioner’s alleged
wrong interpretation of the relevant statutory provisions (i.e. the first step in the classification
process), or his incorrect application of the said provisions to the facts (i.e. the second and third steps
of the classification process)), is an appeal in terms of section 47(9)(e) of the Act.
(b) Because the Act governs both the procedural and substantive prescripts and requirements of an
aggrieved party's rights and remedies and because an appeal in terms of section 47(9)(e) is an
appeal "in the wide sense" i.e. a complete rehearing of the whole issue, there is simply no need to

5 Ibid at 590F–591A.

resort to the corresponding provisions of PAJA.’6

[12] In that matter, before Seriti J in the court of first instance, Distell had relied on both
the statutory appeal in terms of s 47(9)(e) and on a review in terms of PAJA in attacking
the tariff determinations made by the Commissioner.7 In dismissing Distell’s application,
Seriti J found that: (i) the proceedings attacking some of the tariff determinations were
instituted too late, whether under PAJA or under the CEA; and (ii) the tariff determinations
which could still be attacked, were correct on the merits. The matter then went on appeal
to the Full Court where Ebersohn AJ, on behalf of that Court, observed: ‘The only issue
which falls to be decided in this appeal is the merits of the classification issue. . .’
Somewhat confusingly, the learned Judge then referred to certain other issues that had
to be decided, including whether two of the tariff determinations, which had been made
as long ago as 1995 and 1996, may be impugned, whether under s 47(9) of the CEA, the
common law or alternatively s 7(1) (read with s 9) of PAJA. Ebersohn AJ then considered
and applied the principles relating to tariff classification and held that the Commissioner’s
determinations had been correct on the merits and dismissed the appeal. It is in this
context that the quoted excerpts in the preceding paragraph from the Full Court judgment
concluding with the words: ‘there is simply no need to resort to the corresponding
provisions of PAJA’, must be read.

[13] On further appeal, this Court took the view that the relief sought by Distell in the
courts below ‘took the form of appeals in terms of s 47(9)(e), or, as an alternative,
applications to compel the Commissioner to correct determinations “made in error”, as
contemplated in s 47(9)(d)(i), and . . . declaratory relief.’8 This Court recorded that the
appellants had refined the relief claimed without objection from the respondent before the
Full Court and persisted with such refined relief in the appeal.9 As the separate concurring
judgment of Harms DP in this Court makes perfectly plain, Distell had neither sought any
relief on review nor relied on PAJA before the Full Court. Harms DP had this to say:

6 Distell Ltd & Others v Commissioner for SARS & Another [2009] 23384 (GNP) para 35.
7 Distell Ltd & Others v Commissioner for SARS & Another [2006] 18682 (GNP).
8 Distell v CSARS [2010] ZASCA 103; [2011] 1 All SA 225 (SCA) para 4.
9 Ibid para 20.

‘The Full Court added a discussion of matter not raised by either party, namely, the application of
[PAJA] to the case. In the course of this the issue, which ought to be a straightforward
interpretation issue, became blurred.’10

[14] This Court applied the principles of tariff classification and concluded that the
Commissioner’s tariff determinations were wrong on the merits. It thus upheld the appeal
(except in relation to the determinations in respect of which the appellants had not
timeously instituted litigation). But, it did not (nor was it required to) give any consideration
to whether a review is ousted by the appeal provisions in the CEA. It follows that SARS’
reliance on Distell is misplaced.

[15] In the next matter, BCE Food Service Equipment v Commissioner, South African
Revenue Service (BCE), the applicant elected not to pursue any rights that it may have
had of appeal under s 47(9)(e) of the CEA, preferring instead to confine itself to review
the decision of the respondent, SARS.11 As here, SARS argued ‘that the review
proceedings were not available to the applicant and that the applicant’s remedy was
limited to one in terms of s 47(9)(e), ie, an appeal as is provided for in the section’.12 The
high court (per Wepener J) held:
‘Section 47 bestows a right on a party, which right would not have existed but for the provisions
of the section. There is no common law or other legislative provisions which an aggrieved party
could employ in order to challenge a determination of the respondent, save of course for a
common law review or the provisions of PAJA. There is no indication in the Customs and Excise
Act that the provisions of PAJA have been ousted and that an aggrieved party is limited to the
appeal procedure provided for in that Act. The test is whether the legislation obliges and restricts
an aggrieved person to utilise the remedy provided for in that legislation. No such construction
can be placed on s 47 of the Customs and Excise Act and there is no language contained in the
Act that leads to a conclusion that the legislature has confined a complainant to the particular
statutory remedy. The decisions on which the respondent relied during argument in support of the
contention that a party may not utilise the provisions of PAJA, do not say that and it would have

10 Ibid para 74.
11 BCE Food Service Equipment (Pty) Ltd v Commissioner for the South African Revenue Service [2017]
ZAGPJ HC 243.
12 Ibid para 3.

been surprising if they did deprive an aggrieved person of the rights afforded him or her in terms
of PAJA and the Constitution.’13

[16]  In finding against SARS on the point, Wepener J called in aid the dicta of Kriegler
J in Metcash v Commissioner, South African Revenue Service (Metcash).14 There, in an
analogous context, Kriegler J stated:
‘It is important to have clarity about the effect of the mechanism created by sections 33 and 33A
of the Act. Were it not for this special “appeal” procedure, the avenues for substantive redress
available to vendors aggrieved by the rejection of their objections to assessments and decisions
by the Commissioner would probably have been common-law judicial review as now buttressed
by the right to just administrative action under section 33 of the Constitution, and as fleshed out
in the Promotion of Administrative Justice Act.
. . .
But, and this is crucial to an understanding of this part of the case, the Act nowhere excludes
judicial review in the ordinary course. The Act creates a tailor-made mechanism for redressing
complaints about the Commissioner’s decisions, but leaves intact all other avenues of relief’.15

[17] In the present matter, Topping AJ held that a review of a tariff determination is
competent. The learned judge accepted that the s 47(9)(e) appeal is ‘an appeal in the wide
sense and constitutes a rehearing of the matter’, in which ‘additional evidence or
information may be adduced’ and that the high court ‘is not confined to the record and is
placed in the same position as a court of first-instance, with the power to reconsider and,
if necessary, replace the first-instance decision.’ Relying on BCE, Topping AJ concluded
‘that [the] Court’s review jurisdiction had not been excluded . . . and that [he was] therefore
entitled to grant an order directing compliance with the provisions of Rule 53(1)(b)’.

[18] Most recently, in Cell C (Pty) Ltd v Commissioner for the South African Revenue

13 Ibid para 7.
14 Metcash Trading Limited v Commissioner, South African Revenue Service and Another [2000] ZACC
21; 2001 (1) SA 1109 (CC).
15 Ibid para 33.

Service, the Pretoria High Court (per Tolmay J) concluded that it lacked jurisdiction to hear
a review of a tariff determination, and accordingly dismissed Cell C's Rule 30A application
to compel the Rule 53 record on that basis.16 Tolmay J stated: ‘The Distell Full Court
finding is not binding authority for the proposition that reliance on PAJA is excluded in
terms of the CEA. It should nevertheless be said that, the remark that no need to resort
to PAJA exists due to the nature of a wide appeal, is correct’.17 The learned judge also
considered the decision in BCE — by which it was bound unless it was clearly wrong —
as well as the decision of Topping AJ in the present matter, which had followed BCE.
Tolmay J concluded:
‘It is clear from the above that the court’s general review jurisdiction is not ousted, but in the light
of the ambit of a wide appeal the need for a review falls away when such an appeal is available.
The court can, as was illustrated above, exercise its own discretion and substitute its decision on
all grounds with that of the Commissioner. To allow a wide appeal and a review in these
circumstances will also result in the remedies to be cumulative and will lead to confusion. The
vastly different legal principles applicable to a wide appeal and a review will result in a legally
untenable situation. In doing so the purpose of treating the tariff determination being provisional
and preliminary will be subverted. The fact of the matter is that the CEA does not require the
Commissioner to keep a record or give reasons as was said in Pahad. Accordingly it would not
be appropriate for a court to compel the Commissioner to provide a record where he is not legally
required to keep one. In any event, in a wide appeal the applicant will be able to obtain access to
all relevant documents by way of discovery in terms of Rule 35 of the Uniform Rules of Court.’18

[19] In my view, for the reasons that follow, the conclusion reached by Tolmay J in
Cell C cannot be supported. In Zondi,19 the Constitutional Court stated that PAJA is not
ordinary legislation. It was enacted, pursuant to the provisions of s 33 of the Constitution,
to give effect to the right to just administrative action. In applying PAJA, the Court held
that all decision-makers, who enjoy authority to make administrative decisions by any
statute must do so in a manner that is consistent with PAJA. Statutes that authorise
administrative action must now be read together with PAJA. The Constitutional Court

16 Cell C (Pty) Ltd v Commissioner for the South African Revenue Service [2022] ZAGPPHC 152; 2022
(4) SA 183 (GP); 84 SATC 369.
17 Ibid para 20.
18 Ibid para 36.
19 Zondi v MEC for Traditional and Local Government Affairs and others 2005 (3) SA 589 (CC).

indicated that the only exception to this rule would be the instance where, on a proper
construction of the statute, its provisions are inconsistent with PAJA. However, it held that
before inconsistency can be found, consideration must first be given to whether the
provisions can possibly be read in a manner that is consistent with the Constitution.20

[20] SARS’ argument appears not to take into account the clear wording of s 33 of the
Constitution that everyone has the right to administrative action that is lawful, reasonable
and procedurally fair or that all public power (which would include tariff determinations) is
subject to constitutional control and must comply with the Constitution and the doctrine of
legality.21 As it was put in Pharmaceutical Manufacturers:
‘Courts no longer have to claim space and push boundaries to find means of controlling public
power. That control is vested in them under the Constitution which defines the role of the courts,
their powers in relation to other arms of government, and the constraints subject to which public
power has to be exercised.’22

[21] SARS argues that RBCT has no entitlement to the record of decision because all
that matters is whether the ultimate decision is ‘correct’ and it does not really matter how
it arrived at that decision. This argument misconstrues what is sought to be vindicated in
a review, namely, the right to just administrative action.23 A decision may be correct but
taken unlawfully or unfairly. The correctness of a decision in no way negates the right of
a person adversely affected by administrative action to a lawful and fair decision. SARS’
argument also flies in the face of the principles that underpin the exercise of all public
power24 and undermines the very important principle in our law that decisions should not
be taken in secret and that administrative bodies such as SARS can and should be held
accountable for their actions. Thus, disclosure of the record is essential to give effect to

20 Ibid paras 101–102. See also Walele v City of Cape Town 2008 (6) SA 129 (CC) para 51.
21 See for example Fedsure Life Assurance Limited and Others v Greater Johannesburg Transitional
Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374.
22 Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic
of South Africa and Others 2000 (2) SA 674 (CC) para 45.
23 See for example Commissioner South African Revenue Services v Pretoria East Motors (Pty) Ltd [2014]
ZASCA 91; [2014] 3 All SA 266 (SCA); 2014 (5) SA 231 (SCA) para 11.
24 Section 195 of the Constitution establishes various principles applicable to all organs of state including
that ‘people's needs must be responded to’ and that ‘transparency must be fostered by providing the public
with timely, accessible and accurate information’.

a litigant’s rights under section 34 of the Constitution.25

[22] The audit conducted by SARS and the subsequent ruling by the EAC are
quintessentially administrative action as defined in s 1 of PAJA. SARS does not contend
otherwise. It follows that SARS was obliged to engage the taxpayer in an administratively
fair manner.26 Even if the determinations sought to be impugned by RBCT in these
proceedings are not administrative action, they would fall under the exercise of public
power that is subject to the rule of law and are reviewable under the principle of legality.27

[23] It follows that SARS’ argument cannot be sustained. The fundamental flaw in
SARS’ argument is that it conflates the remedy to vindicate the constitutional right to just
administrative action and the remedy to rectify a decision on its merits. The undeniable
effect of SARS’ argument is that it would deprive affected persons of the right to just
administrative action and render its decisions immune from judicial review in terms of s 33
of the Constitution, PAJA and under the rule of law. Affording s 47(9)(e) of the CEA the
construction advanced by SARS, would bring it into conflict with: (i) s 33 of the
Constitution, which protects the right to just administrative action, and provides for a
fundamental right to review administrative action by a court if it is not lawful, reasonable
and procedurally fair; (ii) the rule of law and s 169 of the Constitution, which gives the
high court the power to decide any violation of the principle of legality (save for certain
specific exclusions that do not apply here); and, (iii) s 172 of the Constitution, which
affords courts the power to make a declaratory order that the conduct complained of is
inconsistent with the Constitution and invalid to the extent of such inconsistency and to
make such an order that, in the circumstances, is just and equitable.

[24] Even in our pre-constitutional era, there was a strong presumption against the
ouster or curtailment of a court’s jurisdiction. It has been stated that the curtailment of the

25 Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others [2012]
ZASCA 15; 2012 (3) SA 486 (SCA) para 37 (DA v ANDPP).
26 Commissioner South African Revenue Services v Pretoria East Motors (Pty) Ltd fn 22 above.
27 Fedsure Life Assurance Limited and Others v Greater Johannesburg Transitional Metropolitan Council
and Others fn 20 above para 40.

powers of a court of law is, in the absence of an express or clear implication to the
contrary, not to be presumed.28 These principles continue to apply, now buttressed by the
Constitution.29 Nothing in the CEA expressly ousts the jurisdiction of the high court to
review a tariff determination decision. SARS does not suggest that it does. In fact, there
may well be certain indicators in the language of the CEA that point in the opposite
direction. First, s 77B of the CEA headed ‘Persons who may appeal’ provides in
subsection 1 that ‘[a]ny person who may institute judicial proceedings in respect of any
decision . . . may, before or as an alternative to instituting such proceedings, lodge an
appeal’. Thus recognising, so it seems, that affected taxpayers also have other remedies
in addition to an appeal under s 47(9)(e). Second, s 47(9)(d)(i)(bb) of the CEA affords to
the Commissioner the power to ‘amend any determination or to withdraw it and make a
new determination if it was made in error or any condition or obligation on which it was
issued is no longer fulfilled or on any other good cause shown including any relevant
ground for review contemplated in section 6 of [PAJA]’. It would certainly be anomalous
that the Commissioner can interfere with a decision on a PAJA ground, but a court cannot.

[25] In Metcash, the Constitutional Court made clear that the mere fact that a party has
a statutory appeal against a decision of SARS does not preclude such party from
instituting a review against that decision. There is nothing repugnant to our principles of
justice in the notion that an affected person may enjoy both a right of appeal in the wide
sense as well as a right of review. It is fallacious to treat the right of review as a hollow
remedy, simply because a taxpayer is afforded a wide right of appeal. Had the CEA
intended to remove the court’s jurisdiction to review SARS’ determinations, it could and,
one suspects, would have said so expressly.  Accordingly, no warrant appears to exist
for the conclusion that a taxpayer, who is dissatisfied with a determination by SARS, does
not enjoy the right to review the determination in terms of PAJA.

[26] In the context of the duty to discover documents, it is well to remember Lord
Denning’s observation in Riddick v Thomas Board Mills Ltd that it is a tool for the

28 See Nedbank Ltd v Mateman and Others; Nedbank Ltd v Stringer and Another 2008 (4) SA 276 (T) at
280I–281I and the cases there cited.
29 De Lille v Speaker of the National Assembly 1998 (3) SA 430 (C) para 40–41.

discovery of the truth.30 In this matter, RBCT seeks disclosure of the record to ensure that
it can fully access justice in a manner that is real, meaningful and not illusory. The
reasoning and information on which the impugned decisions were made is a core issue
in the case; of which, as things presently stand, only SARS is aware. There is a
heightened need for the record where SARS has refused to provide any reasons. SARS
cannot shield its own conduct from scrutiny by refusing to make disclosure of the details
relevant to its conduct.31 There is moreover a duty on public officials to take the court into
their confidence and disclose all relevant information so that it is properly placed in an
informed position to make a decision in the public interest to ensure good governance.

[27] In the matter of Helen Suzman Foundation v Judicial Service Commission, the
applicant had sought to review a decision of an organ of state, the Judicial Service
Commission (the JSC) and had sought disclosure of the record of decision.32 The JSC
refused to provide the applicant with the deliberations of the JSC that had preceded its
decision. The Constitutional Court ordered the disclosure of those records. Madlanga J
(for the majority) emphasised the importance of openness and accountability as well as
the danger of illegalities being concealed from scrutiny, as well as the impact of non-
disclosure on the fairness of the trial.33

[28] It remains to add that even on its own approach, namely that because the appeal
under s 47(9)(e) is a wide appeal, RBCT can raise ‘any ground, including grounds that
resemble grounds of review’, SARS can hardly resist production of the record. How, it
must be asked, can RBCT meaningfully raise ‘grounds that resemble grounds of review’,
without the benefit of the record. It is unclear why SARS refuses to disclose the
documents. It could have disclosed the record without prejudice to its rights to raise the
jurisdiction point, but elected not to.  What discernible benefit SARS hoped to derive by
adopting this course, remains unexplained. On the other hand, the prejudice to RBCT is
plainly self-evident. There is no gainsaying that if a review application is launched in a
forum that enjoys jurisdiction, then a party is entitled to the record even if their grounds of

30 Riddick v Thames Board Mills Ltd [1977] 3 All ER 677 (CA) at 687.
31 DA v Acting NDPP 2012 (3) SA 486 (SCA) para 37.
32 Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) para 59.
33 Ibid paras 64 - 68 and 77

review are meritless.34 SARS accordingly accepts that if the institution of the review
proceedings is competent (as we have found), then it does not dispute that it is obliged
to produce the record of its decision under Uniform rule 53. This conclusion renders it
unnecessary to consider RBCT’s alternative case founded upon Rule 35.

[29] In the result, the appeal must fail and it is accordingly dismissed with costs,
including those of two counsel where so employed.

V M PONNAN
JUDGE OF APPEAL

34 Standard Bank fn 1 above para 120.

APPEARANCES

For appellant:
C J Pammenter SC and G J Marcus SC

and M Mbikiwa
Instructed by:
Linda Mazibuko and Associates, Durban

Honey Attorneys, Bloemfontein

For respondent:
M Chaskalson SC
Instructed by:
Shepstone & Wylie, Durban

Matsepes Inc, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

31 March 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
The Commissioner of the South African Revenue service and Another v Richards Bay Coal Terminal
(Pty) Ltd [2023] ZASCA 39 (31 March 2023)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal from the KwaZulu-Natal Division of
the High Court, Durban (high court) in the above matter. The question the court had to deal with was
whether an aggrieved taxpayer, seeking to challenge a tariff determination in terms of the Customs and
Excise Act 91 of 1964 (the CEA), is restricted to the remedy of a wide appeal under s 47(9)(e) of the
CEA.

In 2001, the Department of Finance introduced a diesel rebate scheme. The respondent, Richards Bay
Coal Terminal (Pty) Ltd (RBCT), one of the leading coal export terminals in the world, registered for the
diesel fuel levy scheme in 2009. It thereafter claimed rebates for the period 2009 to 2017. The first
appellant, the Commissioner, South African Revenue Service (SARS), launched an investigation into
those claims and on 4 December 2017, SARS demanded repayment of R7 126 934.63, plus interest
for what it asserted were claims for ‘non-qualifying activity’ by RBCT.

RBCT’s challenge to SARS’ tariff determination was two-pronged: it sought to appeal the determination
(s 47(9)(e) of the CEA) and to review it. As a result of the review application, RBCT sought the record
of the tariff determination in terms of Uniform rule 53, alternatively, the documents constituting the
record under Uniform rule 35(11). SARS refused production of such record on the basis that RBCT did
not have a right of review and was therefore not entitled to it. According to SARS, if the high court lacks
review jurisdiction, then Rule 53 does not apply and there would be no basis upon which to compel it
to produce the record.

The high court concluded that it does, in fact, have review jurisdiction and granted an order directing
compliance with the provisions of Rule 53(1)(b). On appeal, SARS argues that RBCT is not entitled to
the record of decision because all that matters is whether the decision is ‘correct’ and it does not matter
how it arrived at that decision. This argument misconstrues what is sought to be achieved in a review:
the right to just administrative action, and it does not take into account the wording of s 33 of the
Constitution. SARS’ argument undermines the important principle in our law that decisions should not
be taken in secret and that administrative bodies should be held accountable for their actions. This
Court held that SARS’ argument cannot be sustained because a taxpayer enjoys both a right of appeal
in the wide sense under s 47(9)(e) as well as a right of review.

In the result, the appeal was dismissed.
~~~~ends~~~~