ABC Limited v CSARS (0092/2019)

Facts:

This is an opposed application for leave to amend in terms of Uniform Rule 28(1) (i.e. rules regulating the conduct of the High Court) read with Tax Court Rule 42(1), Part A of the Notice of Motion and for further relief in terms of Part B of the Notice of Motion

ABC gave SARS notice that it intended amending its grounds of objection by including an amendment that they attached to the notice. SARS delayed in filing their answering affidavit and on filing same, also requested condonation for the late filing of the answering affidavit. ABC in its replying affidavit did not formally oppose the condonation request and chose to abide by the decision of the Court.

SARS objected to ABC’s proposed amendment of their grounds of objection to the assessment of 2011, based on the following:

1. The amendment seeks to introduce new grounds of objection after the relevant time periods prescribed in the Rules have expired;
2. The amendment seeks to introduce new grounds of objection after the additional assessment in relation to the said grounds became final; and
3. The statutory provisions relied upon by the Applicant for the amendment sought do not apply in relation to the amendment of an objection.

ABC wanted to amend their objection after obtaining advice from a new set of attorneys. The new attorneys advised that the 2011 assessment should not be conceded as finalised.

Issues:

Whether SARS’s grounds of objection are bad in law and incorrect.

Ruling:

The Rules do not make specific provision for an amendment in circumstances such as present in this case, namely, the amendment of a notice of objection.

ABC submitted that if the Tax Court Rules do not make provision for amendment of pleadings and documents, then as permitted in terms of Rule 42 of the Tax Court Rules, the Applicant is permitted to make use of Rule 28 of the Uniform Rules of Court. As the Income Tax Act 58 of 1962 (as amended) (“IT Act”) and the Tax Court Rules do not make provision for the amendment, the court agreed with this view.

Aligning itself with the decision taken in Affordable Medicines Trust v Minister of Health, the court found that the amendments will always be allowed unless the amendment is mala fide or unless the amendment will cause an injustice to the other side which cannot be cured by an appropriate order for costs, or unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed.

In the Commercial Union case, certain principles were outlined, inter alia:

1. An amendment cannot be granted for the mere asking, some explanation must be offered;
2. It must be should that prima facie the amendment has something deserving of consideration (i.e. a triable issue); and
3. The modern tendency lies in favour of an amendment if such 'facilitates the proper ventilation of the dispute between the parties’.

The reason for raising the objection at this time is stated to be that ABC changed Attorneys and were advised to raise the impugned objection which has been objected to by the respondent.

The court held in favour of ABC, stating that the court should allow for proper ventilation of issues so that justice may be done.

Find a copy of the case here.

26/11/2021