Revenue Services Lesotho & Ano. V Liqhobong Mining Development & Ano. (C of A (CIV) No.43/2025) [2025] LSCA 67 (7 November 2025)

# Revenue Services Lesotho & Ano. V Liqhobong Mining Development & Ano. (C of A (CIV) No.43/2025) [2025] LSCA 67 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/67/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/67/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/67/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/67/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Revenue Services Lesotho & Ano. 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(C of A (CIV) No.43/2025) [2025] LSCA 67 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 67 Copy Hearing date 23 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No.43/2025 Judges [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Human Rights](/taxonomy/case-indexes/case-indexes-human-rights) * [International law](/taxonomy/case-indexes/case-indexes-human-rights-international-law) * [Jurisdiction](/taxonomy/case-indexes/case-indexes-human-rights-international-law-jurisdiction) Summary ###### Flynote _Revenue law – Jurisdiction – High Court vs specialised tax tribunal – “Pay now,_ _argue later” – Ouster or deferment of jurisdiction – Interdict to suspend tax_ _payment – RAT Act 2005 – Income Tax Act 1993 – Condonation – Leave to_ _appeal – Final vs interlocutory._ Read full summary * * * Skip to document content ###### Flynote _Revenue law – Jurisdiction – High Court vs specialised tax tribunal – “Pay now,_ _argue later” – Ouster or deferment of jurisdiction – Interdict to suspend tax_ _payment – RAT Act 2005 – Income Tax Act 1993 – Condonation – Leave to_ _appeal – Final vs interlocutory._ **LESOTHO** **IN THE COURT OF APPEAL OF LESOTHO** **HELD AT MASERU** **C OF A (CIV) 43/2025** **CCA/0009/2025** In the matter between – **REVENUE SERVICES LESOTHO 1****ST****APPELLANT** **COMMISSIONER GENERAL,** **REVENUE SERVICES LESOTHO 2****nd****APPELLANT** **COMMISSIONER CORE OPERATIONS,** **REVENUE SERVICES LESOTHO 3****RD****APPELLANT** and **LIQHOBONG MINING DEVELOPMENT** **CO (PTY) LTD 1****ST****RESPONDENT** **ATTORNEY GENERAL 2****ND****RESPONDENT** **CORAM:** SAKOANE, CJ DAMASEB, AJA VAN DER WESTHUIZEN, AJA **HEARD:** 23 OCTOBER 2025 **DELIVERED:** 14 NOVEMBER 2025** _FLYNOTE_** _Revenue law – Jurisdiction – High Court vs specialised tax tribunal – “Pay now,_ _argue later” – Ouster or deferment of jurisdiction – Interdict to suspend tax_ _payment – RAT Act 2005 – Income Tax Act 1993 – Condonation – Leave to_ _appeal – Final vs interlocutory._ _Appeal against a judgment of the High Court (Commercial Division) assuming_ _jurisdiction to grant interim interdictory relief suspending payment of tax_ _pending objection/appeal before the Revenue Appeals Tribunal (RAT). RSL_ _issued an amended assessment for M62 million. Liqhobong filed an objection_ _and simultaneously approached the High Court seeking suspension of_ _enforcement. High Court held that it retained inherent jurisdiction, granted_ _interim relief and issued a rule nisi._ _Held, that the central issue is jurisdiction. The question is whether the statutory_ _framework of the RAT Act 2005 and the Income Tax Act 1993 ousts or defers_ _the jurisdiction of the High Court in respect of disputes concerning tax_ _assessments and suspension of payment. Leave to appeal not required: finding_ _on jurisdiction is final and dispositive. Condonation granted._ _Held, that section 23(1) of the RAT Act gives effect to the “pay now, argue later”_ _principle by providing that the obligation to pay tax is not suspended by appeal_ _unless the Commissioner General or the Tribunal so directs. Only RAT or the_ _Commissioner may defer payment. High Court has no statutory authority to_ _suspend tax collection or grant interim relief overriding specialised_ _mechanisms._ _Held, that jurisdiction of the High Court is deferred—not ousted entirely—until_ _RAT processes are exhausted. Sympathy for taxpayer’s financial hardship_ _cannot confer jurisdiction. No exceptional circumstances justifying bypassing_ _the RAT existed._ _Order: Condonation granted; appeal upheld with costs; ruling of the High Court_ _assuming jurisdiction set aside._ 2 _Keywords: Jurisdiction – Specialised tribunal – Tax assessment – Interim_ _interdict – RAT Act – Income Tax Act – Condonation – Appeals procedure –_ _Separation of powers – Constitutional principles._ **JUDGMENT** **J VAN DER WESTHUIZEN, AJA:** **Introduction** [1] According to an old saying, two things are certain in life: death and taxes. This matter deals with the second of the two. [2] A central challenge for all tax systems is to balance the highly important function of the authority, tasked with the collection of taxes in the interest of effective governance and service delivery, with fairness to and the fundamental rights of taxpayers. In this, the legislature and the courts play a crucial role. [3] However, jurisdiction is the door to justice. Regardless the merits of a case, no relief will be found if a litigant knocks on the door of a court with no jurisdiction to hear the matter. The “return to sender” phrase on envelopes of old (made famous by a song by Elvis Presley) comes to mind. [4] In this appeal against a judgment by Mathaba J, in the Commercial Court Division of the High Court, the above- mentioned balancing exercise plays itself out around the jurisdiction of the High Court, _vis-à-vis_ the system of specialised tax structures created by the legislature. 3[5] The main question is: Does the legislation concerning these structures oust the jurisdiction of the High Court; and if so, to what extent? Preceding this question, it has to be determined whether leave to appeal was required; and whether of the late filing of the appeal ought to be condoned [6] For ease of reference the 1st appellant, Revenue Services Lesotho, is referred to as “RSL”; and the 1st respondent as “Liqhobong”. The latter is a company registered and incorporated in terms of the laws of Lesotho, with its principal place of business in Maseru West. **Facts** [7] According to RSL, they notified Liqhobong in September 2023 of their intention to conduct a verification audit for Corporate Income Tax and VAT, covering the period 2020 to 2023. Multiple meetings were held to allow Liqhobong to comment on the audit findings before any assessment was issued. In spite of numerous opportunities, Liqhobong failed to submit the required documents. This delayed the audit’s completion of the audit and the assessment. [8] Based on the audit findings, RSL issued an Amended Notice of Assessment on 11 November 2024, on 11 November 2024, totalling M 62 444 954.79, covering the 2020 to 2023 assessment period. The Notice required Liqhobong to settle the amount by 11th December 2024. [9] Liqhobong applied for an extension of the time period, in terms of section 143(4) of the Income Tax Act (“IT Act”)**__** of 1993. 4[10] On 20th December 2024 Liqhobong lodged a formal objection to the assessed amount. RSL rejected the application on 27th February 2024. According to them, they advised Liqhobong to approach their office to arrange a payment plan. Some of these claims are disputed by Liqhobong. [11] Liqhobong then initiated legal proceedings in the High Court, under case number CCA 009/2025. On 31 March 2025 Mathaba J granted interim relief to Liqhobong and issued a rule _nisi_ , returnable on 10 April 2025. [12] Unsuccessful settlement negotiations followed. On the return day the matter was postponed to 20th May 2025. [13] According to RSL, on the 3rd July 2025, during the hearing of the matter, Liqhobong informed the Court that they were no longer pursuing the interim order. Kopo J discharged _“(t)he interim Court_ _Order granted on the 31_ _st_ _March_ _2025_ ”; and ruled that _“(c)osts will_ _be decided once the appeal has_ _been finalised”._ **Applicable law** [14] Given the nature of this matter, as well as for ease of reference, it may be useful to scan the applicable legal – especially legislative – landscape. Thus, the relevant provisions are grouped together. [15] Regarding appeals from the High Court to this Court section 16 of the Court of Appeal [Act 10 of 1978](/akn/ls/act/1978/10) states: _“(1) An appeal shall lie to the Court –_ _(a)____from all final judgments of the High Court;_ _(b)____by leave of the Court from an interlocutory order, an order_ _made ex parte or an order as to costs only.”_ 5[16]**__** Section 137 of the Income Tax [Act 9 of 1993](/akn/ls/act/1993/9) (“IT Act”) provides: _“(1) A taxpayer who is dissatisfied with an assessment (other than_ _an amended assessment) may file an objection to the assessment_ _with the Commissioner General within 4 years after service of the_ _notice of assessment._ _(2) An objection to an amended assessment may be filed with the_ _Commissioner within 4 years after service of the notice of original_ _assessment or 60 days after service of the amended assessment,_ _whichever is the later._ _(3) The objection must be in writing and specify in detail the grounds_ _upon which it is made._ _(4) After consideration of the objection, the Commissioner General_ _may allow the objection in whole or part and amend the assessment_ _accordingly, or disallow the objection; and the Commissioner_ _General’s decision is referred to as an objection decision._ _(5) The Commissioner General must serve the taxpayer with notice_ _in writing of the objection decision._ _(6) If the Commissioner General has not made an objection decision_ _within 90 days of the objection being filed, the Commissioner_ _General is deemed to have made a decision to disallow the objection_ _and to have served notice of the decision on that day.”_ (Sections 138 and 139 of the IT Act were repealed by section 29 of [Act 2 of 2006](/akn/ls/act/2006/2).) 6[17] According to section 141(1) of the IT Act the burden of proving that an assessment is excessive is on the taxpayer. [18] Parts of section 143 of the IT Act are central in this appeal: _“(1) Subject to subsections (2) and (5) income tax payable under this_ _Act is due and payable on the date on which the return of income is_ _due._ _…_ _(3) Where an objection to, notice of appeal against, or an application_ _for amendment to, an assessment has been filed, the amount of_ _income tax payable under the assessment is due and payable, and_ _may be recovered, notwithstanding that objection, appeal, or_ _application._ _(4) Upon written application by the taxpayer, the Commissioner_ _General may, where good cause is shown, extend the time for_ _payment of income tax beyond the date on which it is required to be_ _paid …, or make such other arrangements as appropriate to ensure_ _the payment of the income tax liability.”_ [19]**__** The Revenue Appeals Tribunal Act 2** __** of 2005 (“RAT Act”) introduced the Revenue Appeals Tribunal (“RAT”) as a specialised tribunal for tax matters. Section 3 states: _“(1) There is established the Revenue Appeals Tribunal whose_ _functions shall be to sit as a judicial authority for hearing and_ _deciding such appeals as are authorised by any of the laws set out_ _in the Schedule against assessments, decisions, rulings,_ _determinations and directions of the Commissioner General._ 7 _(2) Without prejudice to the generality of subsection (1), the Tribunal_ _shall –_ _…_ _(c)____hear all appeals under the Income Tax Act 1993, in particular,_ _in respect of assessments of income or fringe benefits, tax,_ _decisions, rulings and determinations of the Commissioner_ _General”_ [20]**__** Regarding the payment of tax pending an appeal, section 23(1) of the RAT Act states: _“The obligation to pay and the right to receive and recover_ _any_ tax chargeable _under any_ _of the laws set out in the Schedule shall not,_ _unless the Commissioner General or Tribunal so directs, be_ _suspended by any appeal or pending the decision of the Tribunal or_ _any court of law.”_ [21]**__** The Revenue Appeals Tribunal Rules of 2007 stipulate more detail on the workings of the RAT. They deal with objections, the Commissioner General’s objection decision, appeals to the RAT and procedures before the RAT. Rule 5 states that a taxpayer who is dissatisfied with an assessment may file an objection to the assessment with the Commissioner General within the period stipulated and in the prescribed form. In terms of Rule 6 the Commissioner General may, by notice within 30 days, inform the taxpayer that the objection is not accepted as valid. Rule 7 provides for a taxpayer who is dissatisfied with the Commissioner General’s objection decision to appeal to the RAT, within 30 days after receipt of the objection decision. 8**The High Court** [22] In the High Court Liqhobong sought urgent interdictory relief, incorporating a rule _nisi,_ that – _“ … (RSL’s) Notice of Amended Assessment dated on or about 11_ _November 2024, demanding payment … in the sum of_ _M62 444 954.79 (together with any enforcement or implementation_ _thereof), be and is hereby suspended pending the final_ _determination of (Liqhobong’s) objection to the said Amended_ _Assessment by the Commissioner General and, if necessary, any_ _subsequent appeal to the Revenue Appeals Tribunal (RAT) under the_ _(RAT) Act, 2005;_ _… that (RSL’s) decision (on or about 27 February 2025) to refuse_ _(Liqhobong’s) application for an extension of time for payment (under_ _section 143(4) of the Income Tax[Act 9 of 1993](/akn/ls/act/1993/9)) be and is hereby_ _suspended, and that (RSL) be directed not to take any further_ _enforcement steps against (Liqhobong) until final determination of_ _any review proceedings in respect of that refusal, provided that such_ _review shall be instituted … within fifteen (15) days …”_ [23] RSL argued that the High Court had no jurisdiction to hear the application. The enactment of the RAT Act introduced a specialised mechanism to resolve tax disputes; so, it was not permissible to use the High Court as the first port of call. Liqhobong contended the opposite. The High Court had jurisdiction. It was not ousted by the RAT Act. The RSL’s refusal to extend the date of payment was not appealable to the Tribunal. 9Even if the High Court did not have jurisdiction to decide the main dispute, it did have it to preserve the _status_ _quo_. [24] The High Court considered and discussed the parties’ arguments, with reference to legislation, such as the IT Act and RAT Act. It furthermore analysed case law, including _Gcaba v_ _Minister of Safety and Security and Others_ 1 _, Ashraf Abubaker v_ _Commissioner for Lesotho Revenue Authoirity_ _2_ _, Lephema Executive_ _Transport v RSL_ _3_ __ and _Commissioner the South African Revenue_ _Service v Rappa Resources (Pty) Ltd_ _4_ _._ [25] The High Court concluded: _“I am not oblivious to the decision in_ National Treasury v Opposition to Urban Tolling __ Alliance5 _which stressed that while a court has the_ _power to grant an interdict restraining the exercise of a statutory_ _power, that must be done with circumspection, and that a proper_ _and strong case must be made in support of that relief…._ _Considering the negative impacts of the delay in tax collection,_ _which the ‘_ pay now and __ argue later’ _principle is intended to_ _ameliorate, I would ordinarily be reluctant to grant an interdict_ _against_ ‘a tax man’,_even if it is to preserve the status_ quo _for a_ _period until the return day. However, not in this case. I find it to be_ _extraordinary. Besides being convinced that the applicant_ _(Liqhobong) has good prospects of success, either in its objection to_ _the assessment or in the mooted review, I find it mindboggling that_ 1 CCT 64/08 (2009) ZACC 26, 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) 2 CCA 50 of 2011 (2013) LSHC 25 (28 June 201, 3 2024 LSHC 10 COMM (13/2/2024) 4 2023 (4) SA 488 (SCA) 5 2012 (6) SSA 223 (CC) at paras 65 - 66 10 _the respondents (RSL)_**__**_would want to insist on an assessment which_ _it recognises that it is valid to a certain extend. Sending away a_ _taxpayer under the circumstances of this case would be a travesty_ _of justice.”_ [26] The High Court then found that the matter was urgent; and ordered, on 31st March 2025, that RSL be prevented from taking enforcement steps against Liqhobong in respect of the assessment of M62 444 954.79 for a period until the return date. It issued a _rule nisi_ , returnable on 10th April 2025. In its order, the Court also set out the final relief, related to the above. [27] RSL appealed to this Court against the High Court judgment of Mathaba J. **Grounds of appeal** [28] The appeal is based on the submission that the High Court misdirected itself in finding that it had jurisdiction to entertain a matter relating to the suspension of the payment of tax; and furthermore that section 24 of the RAT Act _“does not exclude or_ _defer the jurisdiction of the High Court in cases where a taxpayer_ _has not yet lodged an_ _appeal to the (RAT).”_ The Court is also argued to have erred and misdirected itself by failing to appreciate that all matters relating to the suspension of payment of tax fall exclusively within the jurisdiction of the RAT. These matters are not justiciable before the High Court, so it is submitted in the Grounds of Appeal. **Condonation and leave to appeal** 11[29] RSL applied for condonation for the late filing of the appeal. Perhaps indicative of not only the fierceness of this dispute, but also the importance of the matter, Liqhobong opposed it. In response to RSL’s 18 page Founding Affidavit, they produced an Answering Affidavit of 12 pages. [30] The appeal was filed on 23rd June 2025. Liqhobong points out that this was 56 court days after the judgment had been delivered (instead of the six weeks determined by Rule 4I(1) of the Court of Appeal Rules of 2006). [31] The application for condonation is based on RSL’s account of the above-mentioned factual history, which is largely not in dispute. Their Founding Affidavit narrates several delays caused by the need to seek legal advice, the unavailability of counsel and related matters. [32] RSL concludes that the delay was not deliberate, but caused by circumstances beyond their control. Once the restraints had been resolved, prompt steps were taken to lodge the appeal at the earliest practicable opportunity. The delay was neither inordinate nor unreasonable. [33] According to RSL, there are reasonable prospects of success. Furthermore, it is in the interests of justice that the appeal be heard, in view of the importance of the issue to be decided. [34] Liqhobong’s opposition to condonation is largely based on their view that RSL needed leave to appeal, which they had not obtained. They rely on section 16 of the Court of Appeal Act, as well as case law, such as _National Bank of Lesotho Ltd v Manthoane_ 12 _L Tlaba_ 6\. In that matter the appeal was struck off the roll, because of non-compliance with section 16. This Court stated: _“An appeal as of right lies only against a judgment of the High Court_ _that is final in effect and disposes of the substantive rights of the_ _parties. An interlocutory order may only be appealed with leave_ _being granted either by the High Court or by this Court in the event_ _that the High Court refuses to grant leave.”_ [35] Section 16 is quoted above. Liqhobong submits that the order made by Mathaba J in the High Court is interlocutory in nature. It included a rule _nisi_ that was later discharged by Kopo J. As such, leave to appeal had to be obtained by RSL. This, they neither applied for, nor received. [36] However, the appeal before this Court is not against Mathaba J’s interim order. It is against the High Court’s finding that it had jurisdiction. This is also clear from RSL’s Grounds of Appeal. The finding about jurisdiction was not subject to the rule _nisi_ and return date. It was not to be argued and decided later. It was not interlocutory, but final. Moreover, it stands as a binding precedent. In _Prof Nqosa_ _Leuta_ _Mahao,_ _BAP President and Others v Maqelepo_ _and Others_ _7_ __ this Court __ held that the High Court’s finding that it had jurisdiction to grant interim relief was final and appealable without leave from the Court. The Court stated that jurisdiction _“when either assumed or declined by a court, is dispositive of the_ _matter in the court concerned and the decision either way may be_ _appealed without leave as it is final in nature”._ 6 C of A (CIV) 06/2025 7 2050 LSCA (2 May 2025) 13[37] Liqhobong furthermore argues that the delay was not properly explained by RSL. The issue about the jurisdiction of the High Court _vis-à-vis_ the income tax structures is important though. In the interests of justice it has to be resolved. The appeal cannot be said to be without reasonable prospects of success. And the delay is not so inordinate that it renders the prospects irrelevant. Condonation has to be granted. **Submissions in this Court** [38] As in the High Court, RSL mainly contends that Liqhobong should not have approached the High Court before exhausting the RAT Act processes. The High Court had no jurisdiction to hear their application. Liqhobong submits the opposite. The RAT Act could not deliver justice to them. Both sides presented lengthy and detailed arguments in their written Heads of Argument and oral submissions. These are considered and analysed hereunder. **Analysis** [39] As to the structure and hierarchy of courts and tribunals, traditions have varied in different jurisdictions. For example, whereas Germany preferred separate specialised courts, next to one another, countries in the English-speaking world have largely relied on a single hierarchy of courts, dealing with all matters from bottom to top. The German Federal Constitutional Court specialises in constitutional matters, while the Supreme Courts in the United States of America and Canada hear cases from many fields of law. [40] The tradition in some jurisdictions, including Lesotho and South Africa, seems to have been changing. In Lesotho a single 14judge ordinarily presides in the High Court, but a panel of three in constitutional cases. While in this Court appeals are heard by a panel of three judges, five judges sit in constitutional maters. When South Africa brought into life its democratic constitutional dispensation in 1994 and 1996, it opted for a specialized Constitutional Court, to a considerable extent based on the German Court, rather than to follow the models in the United States and Canada. (Due to constitutional amendments, the South African Court is now not that singularly specialized though.) [41] The creation of separate hierarchies of specialized courts and tribunals has resulted in disputes and litigation about the jurisdiction of the High Court, _vis a vis_ the specialized structures. In this regard the High Court judgment in the present case states that “… _one must be mindful of the principle that there is a strong_ _presumption against the legislature interfering with the jurisdiction_ _of courts of law …for the jurisdiction of a court to be ousted there_ _has to be an express provision or a necessary implication flowing_ _from the statutory provision under consideration’ “.__8_ _(_ The South African authority relied on by the High Court is a 1988 decision by the then Appellate Division of the Supreme Court though.) [42] One example of where jurisdiction has been contested terrain is labour law. The general inherent jurisdiction of the High Court has been weighed against the specialised purpose of the Labour Court. In the recent _‘Mamohale Matsetso v Minister of Public_ _Service_ _and Others_ 9 Mosito P refers to the South African decisions in 8 The High Court quoted from National Union of Textile Workers v Textile Workers Industrial Union (SA) and Others 1988 (1) SA (A); Mgjima v Eastern Cape ATU and Another2000 (2) SA 291. 9 C of A (CIV) 53/2025; CIV/APN/0052/2025; delivered on 7th November 2025 15 _Chirwa v Transnet Ltd_ 10 and _Gcaba_ 11\. In the last-mentioned the Constitutional Court stated “jurisdiction” to be the “ _power or_ _competence of a Court to_ _hear and determine an issue between the_ _parties_ ”. The Labour Relations [Act 66 of 1995](/akn/ls/act/1995/66) granted exclusive jurisdiction to the Labour Court and should be given _“expansive_ _content to protect the_ _special status”_ of that Court. [43] Then the President of this Court proceeds: _“Locally, decisions such as_ Makhalane v Letsig Diamonds (Pty) Ltd _12_ _,_ Lesotho Revenue __ Authority v Dichaba _13_ _and_ National University of Lesotho v Motlatsi Thabane _14_ _confirm the steady_ _jurisprudential trajectory towards exclusivity …. A coherent system_ _of adjudication requires that cases be determined by a single, expert_ _tribunal. Fragmentation between the High Court and the Labour_ _Court would foster uncertainty, duplication and inconsistent_ _outcomes – the very mischief the 2024 Act sought to cure. Judicial_ _structure must reflect legislative design, not judicial preference.”_ [44] In principle, as well as practically, this should apply to the situation regarding the High Court and specialised tax structures as well. The wording of the applicable legislation must be explored though. [45] Counsel for RSL relied on section 23(1) of the RAT Act. It clearly and unambiguously excludes tax payments from the usual suspension of execution by an appeal. This interpretation is 10 2008 (4) SA 367 11 Para [22] and footnote 1 above 12 LAC (2011 – 2012) 73 13 C of A (CIV) 21/2019 14 C of A (CIV) 67/2019 16consistent with the principle of “pay now, argue later”. Liqhobong sought from the High Court the suspension of its obligation to pay tax on the assessment, pending the decision of the RAT. No statutory provision gives the High Court the power to overrule this provision of the RAT Act, usurp the function of the RAT, or substitute its decision for that of the Commissioner General. Only the RAT or the Commissioner may suspend payment of tax. [46] RSL referred to the recent High Court decision in _Lephema_ _15_ , which dealt with jurisdiction and judicial review. The Court held that the RAT had both appeal and review powers. For the purposes of review the jurisdiction of the High Court is not ousted. As to where justice can be best served, section 23(1) of the RAT Act _“tilts_ _the scale towards the matter being handled by the RAT_ ”. The Court furthermore held that it did not have jurisdiction to interdict the respondents from implementing their enforcement decisions. Although the High Court’s review jurisdiction is not ousted, _“it_ _must be delayed so as to give the RAT an opportunity to deal with_ _the matter as_ the _legislature has given it powers to do”._ The High Court’s jurisdiction is thus deferred until the stage of judicial review of the actions of the RAT. [47] In _Ashraf Abubaker_ 16 it was accepted that in terms of the RAT Act assessments can only be brought on appeal to the High Court from a decision of the RAT. To ignore the existence of specialised mechanisms and procedures, would be a serious misdirection. 15 Para [22] footnote 3 above 16 Para [22] footnote 2 above 17[48] RSL referred to several other decisions in Lesotho and South Africa. They submit that taxpayers cannot as a first port of call approach a court for interdictory relief. They must first approach the Commissioner General or the RAT. [49] RSL argues that the High Court in this case wrongly found that _“the decision to refuse to_ _extend the date of payment is not_ _appealable to the RAT”_ and that “the Tribunal can only _direct that_ _a taxpayer should not pay the assessed liability pending the appeal_ _before it”._ The RAT Rules define “assessment” as any assessments, decisions, rulings determinations or directions by the Commissioner General. Rule 5 of the RAT Rules, read with section 137 of the IT Act, provides that when a taxpayer is dissatisfied with an assessment they may object thereto. Rule 6, read with section 137(4) of the IT Act, provides for an objection decision to be issued; and Rule 7 allows a taxpayer who is dissatisfied with an objection decision to appeal to the RAT. [50] Section 143(3) provides that when an objection to an objection to an objection to, a notice of appeal, or application for amendment has been filed, the amount payable under the assessment is due and payable and may be recovered, notwithstanding that objection, appeal, or application. [51] According to RSL, Liqhobong ought to have lodged an objection to the decision to refuse the suspension of payment application and, if still aggrieved, lodge an appeal to the RAT. [52] Liqhobong countered RSL’s submissions on jurisdiction by submitting that the question for consideration _is “(w)hether the_ _High Court has jurisdiction to grant_** _interim_** __**_interdictory relief_** _, in_ 18 _which the status quo is preserved, in_** _exceptional circumstances_** _on matters related to the payment of income tax assessed under an_ _amended assessment, until the return date”._ [53] Counsel for Liqhobong then pointed out, in their written Heads of Argument, that the amended assessment was only valid to a certain extent. _“As a result of the irreparable harm, (Liqhobong)_ _could not afford the luxury of awaiting the outcome of the objection_ _decision. Imminent liquidation and irreversible economic_ _consequences of the obligation to pay the approximately M62 million_ _… precluded the Applicant from obtaining substantial redress in due_ _course.”_ [54] Liqhobong was also unable to negotiate a payment arrangement, as alleged by RSL. Their only option was to extend the time for payment _.“By refusing to extend the time for payment,_ _(RSL) signalled that they were insisting on payment in terms of_ _sections 143(2) and 143(3) of the Income Tax Act. There is simply no_ _further legal provision that would enable (RSL) to grant (Liqhobong)_ _further negotiated relief ….”_ [55] During the hearing before this Court counsel for Liqhobong stated orally that her client had “run out of money”. It would thus appear that the “exceptional circumstances”, referred to above, were basically Liqhobong’s alleged dire financial situation. [56] Many a taxpayer could rely on this ground. In the tax world, it is probably hardly exceptional. The “tax man” is a hard man, most taxpayers know quite well. [57] Counsel for Liqhobong went further though, and disagreed with RSL’s interpretation of the relevant statutory provisions. For 19example, the IT Act contains no provision permitting an appeal against a deferment decision and the RAT has no jurisdiction to her or determine such an appeal, so it was argued. [58] In diligently prepared and strongly presented written and oral submissions, of varying persuasive weight, counsel for Liqhobong dealt with related points. These included South African jurisprudence on the constitutional implications of the “pay now, argue later” principle. [59] The jurisdiction of courts can obviously not be ousted entirely by legislation in a constitutional democracy, based on the rule of law and separation of powers. Ultimately all legal disputes may end up in this Court. Jurisdiction can be delayed though, until the avenues created by the legislature for specific purposes have been utilised. [60] From the High Court’s conclusion (in [25] and [26] above) it would appear that it had considerable sympathy with the taxpayer, _vis-à-vis_ the “tax man”. Many would share this sentiment. After all, as stated (in [1]) above, the old saying compares taxes to death. On the other side of public opinion, millions of the poorest of the poor have little or no income from which to pay taxes. They expect the authorities to provide essential services, like water and electricity, for which the efficient collection of taxes from those who are capable of and obliged to pay is essential. [61] Be that as it may, the High Court seems to have lost sight of what this matter is about, namely jurisdiction. The correctness of the assessment by the RSL, the prospects of success of Liqhobong’s case and the attitude of RSL cannot give the Court 20jurisdiction which it does not legally have. In this regard, the Court misdirected itself. [62] It furthermore did not consider section 3 of the RAT Act wholistically, within the context of the rest of the Act, such as section 23 and the RAT Rules, as well as section 143(3) of the IT Act. So argues RSL, with merit. **Conclusion** [63] Did fairness and the interests of justice require anything that the RAT Act does not allow for, thus leaving Liqhobong with no other option than to approach the High Court, even urgently? The answer appears to be: No. [64] The legislation referred to above – especially section 143 - accords with the principle of “pay now, argue later”. This phrase is not used in legislation, but widely recognised in the tax systems of several countries [65] The legislature provided a specialised mechanism to deal with income tax matters. This has to be utilised, fully, before the High Court is approached. [66] In a constitutional democracy, under the rule of law, recognising the separation of powers, the legislature may not oust the jurisdiction of courts of law. It would act unconstitutionally if it does so. The courts are the guardians of the Constitution and other law. [67] There is a time and place for everything though. Whereas legislation may not oust the jurisdiction of the High Court entirely from the field of some disputes, for example income tax, it may 21delay the Court’s jurisdiction until the finalisation of proceedings before the specialised structure, in this case the RAT. [68] There are administrative law remedies17 for instances of, for example, _mala fides_ or blatant irrationality on the part of a decision maker. That is not the case that Liqhobong brought to the High Court though. This judgment does not speculate about possibly difficult boundaries and distinctions. [69] This appeal is not against the High Court’s interim order, regarding which the rule _nisi_ has in any event been discharged; the assessment; decisions of the Commissioner General; or the merits of the case of either side. It is also not about the attitude of RSL. [70] The appeal is about jurisdiction only. On this point, it has to succeed. **Costs** [71] Both RSL and Liqhobong asked for costs. Costs have to follow the result. **Order** [72] It is ordered that – (a) condonation for the appellants’ late filing of the appeal is granted; and – (b) the appeal is upheld, with costs, as far as the High Court’s ruling on jurisdiction is concerned. 17 See eg Metcash Trading Ltd v CSARS 2001 (1) SA1109 (CC) 22_______________________________ **J VAN DER WESTHUIZEN** **ACTING JUSTICE OF APPEAL** I agree: **____________________________** **S P SAKOANE** **CHIEF JUSTICE** I agree: __________________________ **P T DAMASEB** **ACTING JUSTICE OF APPEAL** **FOR THE APPELLANTS:** ADV AR BHANA SC ADV A KOLLOORI **FOR THE FIRST RESPONDENT:** ATT E BRIEDENHANN 23 #### __Related documents ▲ To the top >