Adidas International Trading AG (Switzerland) and Another v Commissioner for the South African Revenue Service (28878/2019) [2025] ZAGPPHC 1392 (11 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1392 | Noteup | LawCite sino index ## Adidas International Trading AG (Switzerland) and Another v Commissioner for the South African Revenue Service (28878/2019) [2025] ZAGPPHC 1392 (11 December 2025) Adidas International Trading AG (Switzerland) and Another v Commissioner for the South African Revenue Service (28878/2019) [2025] ZAGPPHC 1392 (11 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1392.html sino date 11 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy FLYNOTES: CIVIL PROCEDURE – Jurisdiction – Removal of proceedings – Transfer to another division – Argued that Cape Town High Court was a more convenient and appropriate forum – Resolution of trial congestion in Pretoria High Court removed primary justification for transfer – Transferring trial would significantly increase costs for both parties and create logistical difficulties – Application dismissed – Superior Courts Act 10 of 2013 , s 27(1)(b)(ii). REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case Number: 28878/2019 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO DATE: 11/12/2025 SIGNATURE In the matter between: ADIDAS INTERNATIONAL TRADING AG (SWITZERLAND) First Applicant ADIDAS SOUTH AFRICA (Pty) Ltd Second Applicant and COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE Respondent Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date for hand-down is deemed to be 11 December 2025. JUDGMENT MANAMELA, AJ Introduction [1] This judgment pertains to an interlocutory application brought by the Plaintiffs in the main action, adidas International Trading AG (Switzerland) and adidas South Africa (Pty) Ltd (collectively referred to herein as “the Applicants”), for the removal of the trial proceedings from the Gauteng Division of the High Court to the Western Cape Division of the High Court, in terms of section 27(1)(b)(ii) of the Superior Courts Act 10 of 2013 (“ Superior Courts Act&rdquo ;). [2] The First Applicant is adidas International Trading AG ("adidas International Trading Switzerland" or "alTAG"), a company incorporated in terms of the laws of Switzerland and the adidas International Trading Switzerland's registered place of business is Platz1[…], Root 0[…], 6039, Switzerland. At the time of the launching of the application, the First Applicant was cited as adidas International Trading BV ("adidas International Trading BV" or "alTBV"), a company incorporated in the Netherlands, with its registered office situated at Hoogoorddreef 9[…], 1[…], BA Amsterdam Zuidoost, Amsterdam, the Netherlands. Adidas International Trading Switzerland was substituted for adidas International Trading BV as the First Applicant in the main application, following a merger. [3] The Second Applicant is adidas South Africa (Pty) Ltd ("aSA" or "adidas SA"), a company incorporated in accordance with the South African company laws, with its registered office situated at F[…] Road, […] Floor, Unit 2[…], Black River Park North, Observatory, Cape Town. The Second Applicant has been licensed to sell adidas branded products in its licensed territory, including South Africa, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Swaziland, Zambia, and Zimbabwe. [4] The Respondent is the Commissioner for the South African Revenue Service ("the Commissioner" or "SARS"), appointed in terms of the provisions of the South African Revenue Service Act 34 of 1997 , with its head office at Lehae La SARS, B[…] Street, Nieuw Muckleneuk, Pretoria. The Respondent is charged by the provisions of section 2(1) of the Customs and Excise Act 91 of 1964 (“Customs Act”) with the administration of that Act. The Respondent is responsible for carrying out the provisions of the VAT Act 89 of 1991 in terms of section 4(1) of that Act. In terms of section 4(2) of the VAT Act, administrative requirements and procedures not regulated by the VAT Act are regulated by the Tax Administration Act 28 of 2011 ("TAA"). Background [5] The main proceedings involve a statutory appeal under section 65(6) of the Customs Act filed by the Applicants. On 1 June 2018, SARS issued a determination and a letter of demand. The determination and the letter of demand were issued by SARS Customs and Boarder Management, situated in Hans Strydom Avenue, Cape Town. The Applicants initially instituted motion proceedings in April 2019, seeking an order for statutory appeal as contemplated in section 65(6)(a) of the Customs Act, and in addition, or in the alternative, a review in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). [6] The Applicants are challenging a value determination made by the Commissioner under section 65(4)(a)(i) of the Act. The value determination concerns the customs value of adidas-branded goods, imported into South Africa between August 2007 and February 2013. The Commissioner determined that the customs value should include the price paid by adidas South Africa to adidas International Trading AG, rather than the price paid by adidas International Trading AG to foreign manufacturers. This determination resulted in a customs duty and VAT assessment, including penalties and interest, amounting to R 1 870 694 792.61 as of 30 June 2018. [7] It is common cause that pleadings have already closed. The following factors are also common cause facts between the parties, namely - SARS audit into the compliance of the Applicants was conducted in Cape Town. The letter of demand and the value determination were issued by SARS Customs in Cape Town. The trial has been referred from motion to action proceedings by order of the Court dated 6 June 2023. The matter is trial-ready and expected to run for approximately 21 days, although this duration may be exceeded. The Applicants’ legal representatives are based in Gauteng but have confirmed their availability for trial in Cape Town. [8] Pleadings closed and the matter was referred to trial in June 2023. Subsequently, a pre-trial conference was held on 26 June 2024, wherein the Applicants raised the possibility of a removal of the matter from the Gauteng Division to the Western Cape Division. SARS indicated that it did not agree to the proposal and invited the Applicants to bring an application. [9] Following the above, the present interlocutory application for the transfer of the matter from Gauteng Division to the Western Cape Division of the High Court was launched on 17 April 2025, accompanied by the First Applicant’s founding affidavit with supporting annexures, and the Second Applicant’s founding affidavit, respectively, almost six years after commencement of the proceedings. [10] On 14 May 2025, the Respondents filed a notice of intention to oppose the application. This was followed by a notice of set down and the Deputy Judge President’s case management directives on 23 June 2025. On 4 July 2025, the Respondent submitted its answering affidavit. On 4 August 2025, the First Applicant filed its replying affidavit with supporting annexures, while the Second Applicant also submitted its replying affidavit. Issue for determination [11] The primary issue for determination is whether it would be more convenient for the trial to be heard in the Western Cape Division of the High Court rather than in the Gauteng Division of the High Court. Legal framework The Constitution [12] Section 173 of the Constitution provides that: “ The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.” The Superior Courts Act [13] Section 27(1) provides that - “ Removal of proceedings from one Division to another or from one seat to another in same Division (1) if any proceedings have been instituted in a Division or at a seat of a Division, and it appears to the court that such proceedings - (a)          should have been instituted in another Division or at another seat of that Division; or (b)          would be more conveniently or more appropriately heard or determined - (i) at another seat of that Division; or (ii) by another Division, that court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division or seat, as the case may be. (2) An order for removal under subsection (1) must be transmitted to the registrar of the court to which the removal is ordered, and upon the receipt of such order that court may hear and determine the proceedings in question.” [14] The general principle is that a plaintiff, as dominus litis, has a right to choose which competent forum to institute an action. [1] It is trite law that a transfer from a High Court to another court which is not a High Court is not possible, except in the case provided for under Rule 39(22) of the Uniform Rules of Court. [15] The main ground for removal contended between the parties is provided for under Section 27(1)(b) of the Superior Courts Act, where it would be more convenient or appropriate to have the case heard or determined by another court. This provision presupposes that both courts have jurisdiction. [2] [16] The use of the word "may" in Section 27(1) grants the court a discretionary power to order the removal of a case. It is trite law that any discretionary power of the court must be exercised judicially, in this case, taking into account all possible factors envisaged in Section 27. A court having original jurisdiction to hear a matter will not lightly transfer such a matter which it is competent to decide. [3] [17] The burden of proof rests on the Applicants to demonstrate that the transfer of the trial would result in greater convenience for all parties and the court. The Applicants' Version [18]       The Applicants contend that the matter would be more conveniently and appropriately heard in the Western Cape Division of the High Court, Cape Town, based on the following: 19.1.    The mandatory mediation directive issued by the Gauteng Judge President could further delay access to justice for cases that require judicial resolution, as parties would need to go through mediation before obtaining a trial date. The applicant argues that mandatory mediation is not suitable and would result in increased costs in addition to travel and accommodation costs. The directive's blanket approach to mandatory mediation does not account for cases like this matter, which are not suitable for alternative dispute resolution. 19.2.    The audit by SARS Customs and Border Management into the compliance of the Applicants was conducted in Cape Town, and the letter of demand dated 1 June 2018 was issued from SARS’ Cape Town office. Therefore, the cause of action arose within that jurisdiction. 19.3.    The majority of the Applicants’ factual witnesses reside in Cape Town, including the one witness intended to be called by the Respondent. Additionally, the Applicants’ international witnesses have confirmed that Cape Town would be more convenient for them. 19.4.    The trial is expected to exceed three weeks, and holding proceedings in Cape Town would be less disruptive to the everyday lives of the witnesses. [19] The Applicants rely on case law, including Kamupungu v Road Accident Fund (Kamupungu) [4] and Goode, Durrant and Murray (SA) Ltd and Another v Lawrence (Goode), [5] which emphasize the importance of considering the balance of convenience for both parties, the convenience of the court, and the equitable and appropriate jurisdiction for hearing the matter. In Kamupungu , the court dealt with whether a circuit court is a seat of a division for the purposes of section 27(1)(b) of the Superior Courts Act. [20 ] In Goode, [6] the court transferred a sequestration application from the Witwatersrand Local division to Durban and Coast Local Division because most of the matters which had to be investigated by the trustee arose in Durban and the persons the trustee would have to examine (the debtor, his wife, witnesses) resided in that area. The fact that sequestrating creditors were in the Witwatersrand was not enough to alter the balance of convenience. The court emphasized that in such cases, the question of convenience is what happens after the sequestration order is granted, not which court hears the matter. [21] In his founding affidavit, Mr John Steward Pitt, for the Applicants, indicates that the audit conducted by the two witnesses on behalf of the Respondent, as well as the determination and letter of demand were issued in Cape Town. Mr Pitt further states that the Western Cape Division of the High Court has concurrent jurisdiction to adjudicate the appeal in terms of section 47(9)(e) of the Customs Act, as the determination was made in Cape Town. He further attests that the Western Cape Division of the High Court has jurisdiction to entertain the PAJA review. The Applicants mainly argue that most witnesses reside in the Western Cape. The Applicants further argue that the witnesses from foreign countries would be more conveniently accommodated in Cape Town, were they will be able to use the Cape Town office during trial. The Respondent's Version [22] The Respondent opposes the application, arguing that the Gauteng Division is the appropriate venue for the trial based on considerations of convenience, costs, and judicial efficiency. The Respondent’s opposition is based on the following grounds: 24.1.    The Applicants' claim of trial roll congestion in the Pretoria High Court is no longer valid due to the directive issued by the Judge President on 22 April 2025, which resolved the backlog and allows for trial dates to be allocated within 18 months. The Respondent also refutes the claim that mandatory mediation in Gauteng would cause delays, as the dispute is governed by a specific ADR mechanism under the Customs and Excise Act, exempting it from generic mediation. SARS also concedes that mediation is inappropriate for this case due to its public-law nature and the substantial amount involved. 24.2.    The residence of witnesses does not favour either location. Of the Applicants' eight witnesses, three are based in Cape Town, three in Gauteng, and two are foreigners. The contribution of the three Cape Town-based witnesses is minimal and would occupy only two days of the anticipated 21-day trial. The Respondent argues that foreign witnesses can work remotely from any location, including hotels in Gauteng, and their preference for Cape Town does not justify the transfer. Additionally, one of the Respondent's witnesses is based in Cape Town, while the other is from Australia. Since the majority of witnesses, legal teams, and parties involved are based in Gauteng, transferring the case to Cape Town would result in increased travel and accommodation costs for both parties. 24.3.    The Respondent argues that the Pretoria High Court is now equipped to handle the case efficiently, given the resolution of trial roll congestion. 24.4.    The Pretoria High Court has available trial dates in the fourth term of 2026 or the first or second term of 2027, which is comparable to or earlier than the dates available in Cape Town. 24.5.    Transferring the case to Cape Town would significantly increase costs for both parties due to the need for travel and accommodation for legal teams and witnesses based in Gauteng. 24.6.    SARS contends that it is more convenient and appropriate for the matter to remain in the Pretoria High Court, as transferring the case to Cape Town would not provide any significant advantage in terms of trial dates or convenience for the majority of participants. [23] The cases of Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (In Liquidation) (Veneta) [7] and Mulder and Another v Beacon Island Shareblock Ltd, [8] generally emphasized the importance of the balance of convenience, the appropriateness of the transferee court, and the need for sufficient information to justify removal under section 27 of the Superior Court Act 59 of 1959 or similar provisions. In this case, Veneta Mineraria Spa, an Italian company, sued Carolina Collieries (Pty) Ltd in the Durban and Coast Local Division for breach of contract, claiming damages, interest, and costs. Carolina Collieries operated a colliery in Transvaal and had its head office in Johannesburg. Similarly, in this case, the majority of witnesses and legal teams are based in Gauteng, making Pretoria the more convenient location. It is found that transferring the case to Cape Town would impose unnecessary logistical and financial burdens on the parties, as most participants would need to travel and arrange accommodation for the duration of the trial. [24] The Mulder v Beacon Island Shareblock Ltd case highlighted the importance of the location of evidence and witnesses in determining the appropriate forumvenue. Here, the Aapplicants’ witnesses from Cape Town have minimal contributions to the case, while the majority of witnesses are based in Gauteng. This further supports the argument that Pretoria is the more suitable forumvenue for the trial. [25] In Minister of Agriculture v Tongaat Group Ltd, [9] Miller J said the following: "The word 'convenient' in the context of Rule 33 (4) is not used, I think, in the narrow sense in which it is sometimes used to convey the notion of facility or ease or expedience. It appears to be used to convey also the notion of appropriateness; the procedure would be convenient if, in all the circumstances, it appeared to be fitting, and fair to the parties concerned.” (references omitted) The court emphasized that the decision to grant such an application should be based on whether it would be convenient and result in a reasonable likelihood of saving time and costs. The court granted the application for one issue but refused it for others, emphasizing the balance of convenience. Analysis [26] Section 27(1)(b)(ii) of the Superior Courts Act empowers the court to order the removal of proceedings to another division if it is more convenient for the trial to be heard in that division. What is convenience ? In a contractual or legal context, convenience refers to the right of a party to take a specific action, such as terminating an agreement or making changes, without needing to provide a reason or prove fault. [10] The principle of "convenience" encompasses a range of factors, including: a. The location of witnesses and parties; b. The availability of legal representatives; c. The costs associated with the trial; d. The efficient administration of justice, including the availability of trial dates. The location of witnesses and parties as a basis for convenience [27] The location of witnesses appears to be the main point of contention between the parties. The Applicants argue that most witnesses are residents of the Western Cape, making the Cape Town High Court a more convenient venue. The Respondent has demonstrated that the residence of witnesses does not justify the removal to the Western Cape Division of the high Court (CPD). Evidently, out of the Applicants’ eight witnesses, three are based in Cape Town, three are based in Gauteng, and two are foreigners. The foreign witnesses’ preference for trial is apparently Cape Town High Court due to proximity of the Applicants’ offices in Cape Town. [28]    In Nongovu NO v Road Accident Fund , the court held that transferring the case to the CPD would be more convenient for all parties involved, including the witnesses, and would facilitate the efficient and cost-effective resolution of the matter. In this case the plaintiff and her son resided in the Western Cape, and the medical experts who have assessed and reported on the plaintiff's son were also based in the Western Cape. In contrast to the current matter, which involves two witnesses from foreign countries for the Applicant, as well as the Respondent’s witnesses—one based in Cape Town and another who has relocated from Cape Town to Australia—along with both legal teams being located in Gauteng, I find that these factors do not substantially impact the balance of convenience. [29] In Veneta [11] the court considered the availability of trial dates as a factor in deciding the venue. The Applicants argue that Cape Town offers earlier trial dates; however, SARS has provided evidence that the Pretoria High Court has resolved its backlog and can allocate trial dates within 18 months. I find this timeline as comparable to or better than the dates available in Cape Town, as confirmed by the Chief Registrar of the Cape Town High Court. [30] In Thembani, [12] the Respondent, resisting summary judgement, raised jurisdiction of the court as one of the defences wherein Chetty J, when considering the aspect of convenience, stated that the inconvenience to a litigant hauled before a far flung court will, no doubt, not be lightly countenanced and, the court’s opprobrium marked by an appropriate costs order. Consequently, the convenience argument relied upon as an aid to the interpretation contended for, must fail. The efficient administration of justice, including the availability of trial dates [31] In the Gauteng Division, the directive issued by the Judge President is aimed at addressing the backlog in trial dates, ensuring that the trial can be scheduled within a reasonable timeframe. This directive aims to improve access to justice by reducing the civil trial backlog, which has led to trial dates being set as far ahead as 2031. It is based on the authority of the Superior Courts Act and the Constitution, emphasising the judiciary's role in regulating its processes. Historically, it has been normalized that almost up to 85% of civil cases settle on the trial date, and this potentially formulated the introduction of compulsory mediation intended to alleviate court congestion and last-minute collapse. Section 173 of the Constitution affirms the Court’s inherent power to regulate its own process. [32] The Applicants argued that the trial roll in the Pretoria High Court is severely congested, and contend that it is possible to be allocated an earlier trial date in the Western Cape Ddivision. However, the Respondent has demonstrated that this ground is no longer valid as trial dates can now be allocated within 18 months at the Gauteng Division, especially a long duration trial like this one. [33] I cannot overlook the possibility that the Applicants seem not to be willing to comply with this directive in their quest to have the matter transferred to the Western Cape High Court. It is further worth noting that, Section 77(1)I of the Customs and Excise Act provides for an alternative dispute resolution mechanism specific to customs disputes, which also allows the parties not to be subjected to the generic mediation directive. As such, I find that the Applicants have failed to prove that the trial roll congestion or mediation requirements in the Pretoria High Court would justify the transfer of proceedings. The Applicants’ contention that mandatory mediation in the Gauteng Division would further delay proceedings is unfounded. [34]       When considering the place where the demand was issued, I was also not convinced that it plays much significance in that the Respondent, as a statutory body, has offices and operates at various locations throughout South Africa, which are considered as its principal places of business, with the Pretoria office in Gauteng, as one of the main offices, which is also considered as the head office, as such, it gives the Gauteng Division of the High Court the convenience to entertain these legal proceedings. [35] The Mulder case highlighted that the court must consider the overall convenience and the interests of justice when deciding on the removal of proceedings. In this case, the Commissioner has demonstrated that the Pretoria High Court is the more convenient and a cost-effective forumvenue for the majority of participants, and transferring the case would not serve the interests of justice. Cost implications [36]       The Applicants argue that transferring the proceedings to Cape Town would reduce costs related to travel and accommodation. The Respondent has countered this argument, demonstrating that the legal teams for both parties are based in Gauteng. Transferring the proceedings to Cape Town would not only result in additional costs for travel and accommodation for the legal teams, who would need to be present for the entire three-week trial, but also, additional costs of a correspondent legal firm based within the court’s jurisdiction. Obviously, the witnesses, on the other hand, would only require accommodation for the duration of their testimonies, but that does not amount to any sort of inconvenience to justify the move. Transferring the case to Cape Town would result in significant additional expenses for travel and accommodation, particularly for the legal teams and witnesses based in Gauteng. This would contradict the principle of ensuring cost-effective litigation. On that score, I also find that the cost efficiency argument does not support the transfer of proceedings to Cape Town. [37] I have taken note that the level of convenience envisaged in the provision is mainly that of the litigants and not strictly that of their legal team, but when one considers all the factors around convenience and that the cost of running the trial itself falls squarely against the very same litigants, the burden of proof rests on the Applicants to demonstrate that the transfer of the trial would result in greater convenience for all parties and the court. [38] I find that the transfer would result in significant additional expenses for the Commissioner, including travel and accommodation costs for the legal team and witnesses, as most of them are based in Gauteng, and would most probably be travelling to and from Johannesburg at the end of each week of the estimated 21 days trial. The Commissioner’s legal team and three of the Applicants' witnesses are based in Gauteng, making Pretoria a more convenient location for the trial. I find that transferring the matter to Cape Town would create logistical challenges and inconvenience for the majority of participants. Conclusion [39]       Based on the Respondent's submissions, I find that the Applicants have failed to establish that the transfer of proceedings to the Cape Town High Court would be more convenient or appropriate. The resolution of the trial roll congestion in the Pretoria High Court negates the Applicants' primary argument for transfer. Furthermore, the residence of witnesses does not significantly favour either location; and transferring the case would result in increased costs for both parties due to the relocation of legal teams. [40]       The court is satisfied that the Pretoria High Court is the appropriate forum for the main proceedings, as it ensures cost efficiency, convenience for the legal teams, and timely resolution of the matter. Costs [41]       Consequentially, the customary rule that costs follow the event should apply in this matter, and it is my view that the matter is complex enough to justify the employment of two counsel, as they are also counsel employed in the main action, on scale C. Order (a) The application for the removal of the trial proceedings to the Western Cape Division of the High Court is dismissed. (b) The Applicants are ordered to pay the costs of this application, including the costs of two counsel, on Scale C. P N MANAMELA ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Date of hearing:                   16 October 2025 Judgment delivered:            11 December 2025 Appearances: For the Applicants:              Adv A P Joubert SC Instructed by:                      B AKER McKENZIE Inc. Attorneys For the Respondent:           Adv J R Peter SC & Adv N K NXUMALO Instructed by:                     KLAGSBRUIN EDENSTEIN BOSMAN DU PLESSIS Inc. Attorneys [1] Marth NO v Collier and Another [1996] 3 All SA 506 (C) at 508. [2] Mulder and Another v Beacon Island Shareblock Ltd (Mulder ) 1999 (2) SA 274 (C). [3] Mulder above n 2 at para 8. [4] 2023 (4) SA 627 (ECM). [5] 1961 (4) SA 329 (W). [6] Above n 5. [7] 1987 (4) SA 883 (A). [8] Above n 2. Also see Thembani Wholesalers (Pty) Ltd v September and Another (Thembani) 2014 (5) SA 51 (ECG). [9] 1976 (2) SA 357 (D) at 363C-D. [10] Cobrief “Convenience: Overview, definition, and example” Cobrief app (16 April 2025) available at https://www.cobrief.app/resources/legal-glossary/convenience-overview-definition-and-example/#:~:text=This%20is%20often%20seen%20in,the%20contract%20early%20without%20penalty . [11] Above n 9. [12] Above n 10 at para 13. sino noindex make_database footer start