Commissioner for the South African Revenue Service v Tunica Trading 59 (Pty) Ltd

Tunica Trading 59 (Pty) Ltd is a licensed distributor of fuel under the Customs and Excise Act 91 of 1964. In 2014 it purchased diesel fuel from Masana Petroleum Solutions (Pty) Ltd, an intermediary supplied by BP Southern Africa (Pty) Ltd, a licensed customs and excise manufacturing warehouse. Tunica supplied the fuel to foreign-going vessels and applied to SARS for refunds of excise duty and fuel levy under s 75(1)(d) read with s 64F and Schedule 6 of the Act. SARS rejected one refund application (Tun 068) on the basis that Tunica had not obtained the fuel directly from a licensed manufacturing warehouse as required by s 64F(1)(b). Tunica’s internal administrative appeal was dismissed in September 2015. After delivering a notice of intended legal proceedings under s 96 of the Act, SARS engaged further with Tunica and ultimately reiterated its refusal in February 2017. Tunica sought judicial review of the refusal under PAJA. The High Court dismissed the application, the Full Court upheld an appeal and set aside SARS’s decisions, and SARS appealed to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of senior counsel. The order of the Full Court was set aside and replaced with an order dismissing Tunica’s application with costs, including the costs of two counsel where employed.

The case clarifies that a response by SARS to a notice of intended legal proceedings under s 96 of the Customs and Excise Act is not administrative action and is not independently reviewable under PAJA. It also confirms a strict interpretation of refund provisions under the Customs and Excise Act, reinforcing the principle that taxpayers and licensees must comply precisely with statutory requirements in a self-assessment tax system.