Commissioner for the South African Revenue Service v Sasol Chevron Holdings Limited

Sasol Chevron Holdings Limited (Sasol Chevron), a Bermuda-incorporated company, purchased movable goods (catalysts) from Sasol Catalyst for export from South Africa to Nigeria in 2014. The goods were supplied on an ex-works and flash title basis. Tax invoices were dated 20 August 2014, 22 September 2014, and 22 October 2014. Sasol Catalyst elected to supply the goods at a zero VAT rate under s 11(1) of the VAT Act. Regulation 15(1) of the Export Regulations requires goods sold for export to be exported within 90 days. Sasol Chevron failed to export within 90 days due to delays in obtaining Nigerian import clearance certificates, industrial action in Nigeria, and delays in finalizing freight forwarding contracts. The goods were ultimately exported on 24 April 2015. By operation of regulation 8(2), Sasol Catalyst was required to levy standard rate VAT. Sasol Catalyst issued revised tax invoices at the standard 14% rate, and Sasol Chevron paid the VAT. On 30 January 2015, Sasol Catalyst requested SARS to extend the 90-day export period. SARS declined the request on 7 November 2016 (except for goods invoiced in November and December 2014). On 6 December 2017, SARS reiterated its decision that Sasol Chevron was not entitled to a VAT refund. Further correspondence followed, with SARS reaffirming its position on 26 March 2018. On 21 September 2018 (served 25 September 2018), Sasol Chevron instituted a PAJA review application in the Gauteng High Court.

• Whether Sasol Chevron's review application was instituted within the 180-day period prescribed by section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the word 'instituted' in section 7(1) of PAJA requires both the issuing and service of the application within the 180-day period
• When the 180-day period commenced – from 7 November 2016, 6 December 2017, or 26 March 2018
• Whether, absent an application for extension under section 9(2) of PAJA, the court had jurisdiction to hear a review application instituted outside the 180-day period

The appeal was upheld with costs, including costs of two counsel. The order of the high court was set aside. In its place, the application was dismissed with costs, including costs of two counsel where so employed.

For purposes of section 7(1) of PAJA, proceedings for judicial review are 'instituted' only when the application is both issued by the court and served on the respondent. The 180-day period prescribed in section 7(1) commences from the date on which the applicant became aware (or ought reasonably to have become aware) of the administrative decision and the reasons for it, not from the date of becoming aware of alleged irregularities. After the expiry of the 180-day period, delay is unreasonable per se and the court has no jurisdiction to entertain a review application unless the period is extended under section 9(2) of PAJA. Absent such extension, the unlawfulness or otherwise of the administrative decision no longer matters – it is 'validated' by the delay.

The court expressly declined to decide interesting questions of VAT law that arose on the facts, namely whether it is permissible for a vendor who has elected to supply goods at zero rate under section 11(1)(a)(ii) of the VAT Act read with Part Two of the export regulations to subsequently migrate to Part One of the export regulations in respect of the same supply by issuing fresh tax invoices at the standard rate. The court stated these questions should be left for determination when the opportunity presents itself in an appropriate case, following the principle in Albutt that courts should decide only what is necessary for proper disposal of the case before them. The court also expressed concern about delays in the disposition of applications for leave to appeal, noting that a five-month delay in the present case had the potential to bring the administration of justice into disrepute if such delays go unchecked, though it did not censure the judge a quo.

This case clarifies the interpretation and application of the 180-day time limit for instituting judicial review proceedings under PAJA. It confirms that: (1) 'Instituting' proceedings requires both issue and service of the application within the prescribed period, not merely issuing. (2) The 180-day period commences when the applicant becomes (or ought reasonably to have become) aware of the decision and reasons, not when the applicant becomes aware of alleged irregularities. (3) After 180 days, delay is unreasonable per se. Courts have no jurisdiction to hear review applications instituted after 180 days absent an extension granted under s 9(2). (4) The decision reinforces the public interest in finality of administrative decisions and the importance of strict compliance with procedural time limits in administrative law. The judgment also emphasizes the need for courts to dispose of applications for leave to appeal expeditiously to avoid bringing the administration of justice into disrepute. The substantive VAT issues (whether a vendor can migrate from zero-rated to standard-rated supply for the same goods) were not decided.