The CC held that a wide appeal does not exclude the inherent right of review. In justifying this finding, the CC held that there was no clear ouster of review in terms of the wording of the Act. The CC acknowledged that a correct decision in a wide appeal may well not cure unfair or unlawful action preceding such decision, action which would be dealt with in a review which focuses on whether the way that a decision was made was lawful rather than its correctness. The CC went on to say that the right of review gives effect to the values of accountability and openness in the decision-making process [the crux of RBCT’s complaint in this matter].

The CC, however, was at pains to point out that this does not mean every appealable decision gives rise to an unrestricted right of review. The judge explained that the wide appeal is the stipulated remedy under the Act and should be sufficient in most instances to yield a just result. The court considered the principle of subsidiarity and stated that a more specific norm (wide appeal) should be preferred over a more general norm (a court’s inherent review jurisdiction). It found that a court should only exercise its review jurisdiction in those instances where a taxpayer can establish good cause for a court to do so, i.e., demonstrate why a wide appeal may not give rise to a just result and where it would be in the interests of justice to do so. The CC found that the courts have a discretion whether to exercise their review jurisdiction where a specific remedy such as a wide appeal is available.

Where a taxpayer is simply on a fishing expedition, or where it might constitute an abuse of process, is vexatious, or where review would be uneconomical and constitute an inefficient use of judicial resources, given that a wide appeal will achieve the same result, the court should not exercise its review jurisdiction.

In short, the upshot of the CC’s decision is that where a specific remedy such as a wide appeal is available, the right of review is not unlimited. A review will only be allowed in proper instances where the interests of justice require that a court exercises its discretion to allow such a review.

At paragraph 109 the CC cautions that:

“The manner in which a party pleads their case is important, just as the availability of the two remedies is in assisting a court to determine whether the exercise of its review jurisdiction is warranted”. 

Despite finding that a review of the decision-making process in the face of a wide appeal may be warranted to ensure that serious shortcomings affecting its very functioning and underpinnings are addressed, the CC stated at paragraph 142:

“It would be in the egregious cases where, even though a wide appeal will likely produce a correct tariff determination, it will leave unaddressed the serious nature of the matter being raised in the review. It is in these types of limited cases that a court is likely to exercise its discretion to entertain the review. The consequence of the review, if successful, would be to set aside the determination and remit it to SARS, or in some instances, substitute the determination. However, if unsuccessful in review, the taxpayer may still have a case on the correctness of the decision”.

The CC considered 3 scenarios:

1. review and appeal in the same process;

2. review only with a reservation of rights pursue an appeal if necessary in the future (which need not be express);

3. wide appeal only, which by implication forgoes the right of review.

The CC did not consider that the time period allowed for a review in terms of PAJA is 180 days and the time period allowed for an appeal under the Act is a year from the date of the decision or determination being appealed against.

The CC held that the right to a record would only apply if and when a court agrees to allow the review.

The regrettable outcome of the matter is that while the court found that the court’s review jurisdiction is not ousted, it held that in each case, the court must decide whether or not to hear the review.  In short, 5 years into this matter, the CC referred the matter back to the court a quo to decide if it would exercise its review jurisdiction taking account of the “guiding principles” outlined by the CC. 

At paragraphs 164 to 165, the CC states:

“[164] The High Court did not undertake such an enquiry, largely because it laboured under the belief that it did not have discretion on how it could exercise its review jurisdiction. 

[165] Under those circumstances, that determination must first be made by the High Court. This Court would not be in a position do so, largely because it has not had the benefit of argument or submissions on that issue. Under these circumstances it would be appropriate to set aside the orders of the High Court and the Supreme Court of Appeal and, in their place, make an order remitting the matter to the High Court to deal with in accordance with the principles set out in this judgement.”

It is difficult to understand why it was necessary to send the matter back to the High Court. The application in terms of Rule 30A commenced in 2020. The matter was first heard by the Durban High Court, then the Supreme Court of Appeal, and finally found its way to the Constitutional Court at great cost and after much time elapsed. It is difficult to conceive why a single judge of the High Court would be better suited to decide the matter than nine judges in the apex court of the country. The CC was well within its rights to have decided the matter conclusively, but it chose not to do so.

The practical consequence of the CC’s decision is that even if RBCT is again successful in the High Court, SARS may again appeal that decision via the SCA and then back to the CC.  The circularity of litigation about which the CC expressed concern is a real possibility in this case. It exposes both RBCT and SARS to significant further costs, on what is really an interlocutory issue to the main disput