Focal points of the matter

The case dealt with tariff determinations in the Customs and Excise Act 91 of 1964 (Customs Act). Section 47(9)(e) of the Customs Act states that an appropriate remedy in a tariff dispute is a tariff appeal to the High Court (although it does not confine remedies to a tariff appeal). However, in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) (read with section 33 of the Constitution of South Africa), or alternatively, the principle of legality, the right to administrative action which is lawful, reasonable and procedurally fair is guaranteed. It is notable that PAJA and the Constitution were enacted after the Customs Act.

In this regard, Rule 53 of the South African High Court Proceedings facilitates and regulates review applications, requiring the decision-maker to deliver a complete record of the proceedings to the court (and the applicant). This is so that the aggrieved person can have sight of the record in order to establish whether the decision was taken lawfully, reasonably and procedurally fairly. The judgment in RBCT deals with whether review proceedings (and provision of a record by the decision-maker) are allowed in tariff disputes in conjunction with a tariff appeal.

The order

The matter was heard before nine Constitutional Court judges on 5 August 2024 and the judgment was delivered on 31 March 2025, stating as follows:

“On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court of South Africa, KwaZulu-Natal Division, Durban):

1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the High Court and the Supreme Court of Appeal are set aside

and substituted with the following:

‘(a)  The application in terms of rule 30A is referred to the High Court for redetermination and, in doing so, the High Court is required to:

(i)  determine whether, regard being had to the existence of a wide appeal under section 47(9)(e) of the Customs and Excise Act 91 of 1964, the respondent has made out a case justifying the exercise of that court’s review jurisdiction.

(ii)  make an order arising from that determination and of the kind contained in [145] of this judgment.’

4. The parties are ordered to pay their own costs in this court, the Supreme Court of Appeal and the High Court.”

The full judgment can be found here.

Overview

The South African Revenue Service (SARS) submitted that a taxpayer seeking to challenge a tariff determination under the Customs Act is confined to the remedy of an appeal under section 47(9)(e), and may not challenge the tariff determination by way of judicial review (which review includes the request from the decision-maker of the record in taking its decision). This matter is of general public importance because it will impact the rights of all taxpayers wanting to challenge a tariff determination and also has vast implications for the administration of justice, the efficiency of trade, revenue for the fiscus and judicial resources.

The High Court and the Supreme Court of Appeal both disposed of the matter on the basis that the High Court’s review jurisdiction was not ousted, and that nothing precluded Richards Bay Coal Terminal (RBCT) from seeking review relief together with the wide tariff appeal. It was on this basis that those courts found that RBCT was entitled to a record under Rule 53.

The Constitutional Court found that it would have been incumbent upon the High Court to determine whether to exercise its review jurisdiction, and, in doing so, satisfy itself that RBCT had advanced sufficient reasons why it would have been entitled to proceed by way of review. The High Court would also have had an opportunity to determine which rule RBCT ought to rely on to obtain documents from SARS flowing from its conclusion relating to the exercise of its review jurisdiction.

The Constitutional Court further found that the High Court did not undertake such an enquiry, largely because it laboured under the belief that it did not have discretion as to how it could exercise its review jurisdiction.

Under those circumstances, the question of whether review is applicable in the circumstances must first be made by the High Court. The Constitutional 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 judgment.

Therefore, it remains uncertain whether review proceedings may be instituted in conjunction with tariff appeal proceedings as the court must take a decision in each case on the merits as to whether review proceedings are applicable in the circumstances.