Poulter v Commissioner for the South African Revenue Service

The appellant, Candice-Jean Poulter, appealed to the High Court against a decision of the Tax Court which had confirmed her original tax assessment for 2018 and ordered costs against her without hearing her or her representative. Her father, Mr Gary van der Merwe, sought to appear as her authorised representative in the Tax Court under a power of attorney, but the Tax Court refused him audience, relying on Supreme Court of Appeal authority that a layperson cannot represent a natural person in a court of law. An earlier interlocutory ruling in the same Tax Court proceedings had also prohibited Mr van der Merwe from appearing. The Tax Court proceeded to make an order under rule 44(7) of the Tax Court rules, effectively granting a default judgment in favour of the Commissioner.

• Whether the Tax Court is a 'court of law' for purposes of the rule that only legal practitioners may represent litigants.
• Whether a layperson holding a power of attorney from a taxpayer is entitled to appear as the taxpayer's representative in the Tax Court.
• Whether the Tax Court was bound by its earlier interlocutory ruling prohibiting Mr van der Merwe from appearing, requiring that ruling to be set aside on review before he could be heard.
• Whether the Tax Court properly exercised its powers under rule 44(7) by granting a default order when the taxpayer's authorised lay representative had appeared.

1. The appeal is upheld with costs. 2. The order made by the Tax Court in terms of rule 44(7) is set aside. 3. The appellant's appeal to the Tax Court is remitted for hearing de novo before the Tax Court.

The Tax Court is an administrative tribunal performing the function of a 'court of revision' and is not a 'court of law' within the meaning of section 166 of the Constitution. Consequently, the common law rule and provisions of the Legal Practice Act 28 of 2014 that restrict rights of appearance in courts of law to admitted legal practitioners do not apply to proceedings in the Tax Court. A taxpayer is entitled to be represented in the Tax Court by a layperson holding a valid power of attorney, there being no statutory or regulatory provision that limits representation to legal practitioners.

The court expressed doubt as to whether the earlier interlocutory ruling in the Tax Court (paragraph 2 of the order mentioned in para 3) was appealable. The judgment also noted that even if the Tax Court were a superior court, the SCA's judgment in Manong & Associates (Pty) Ltd v Minister of Public Works recognises a discretion in superior courts to permit lay representation in exceptional circumstances, suggesting that the absolute bar stated in CSARS v Van der Merwe may be too broadly stated. The court further observed that a provision excluding all representation for a taxpayer would probably be unconstitutional on grounds of unfairness.

The case clarifies the legal nature of the Tax Court, confirming it is not a 'court of law' within the judicial system under s 166 of the Constitution but an administrative tribunal with revisionary powers. It establishes that laypersons holding a power of attorney may represent taxpayers in the Tax Court, resolving a conflict arising from prior SCA rulings that had been applied to exclude such representation. The judgment affirms that the Tax Court's function is to step into the shoes of the Commissioner to arrive at a correct assessment, rather than to exercise judicial power in the traditional sense.