By Thapelo Molefe
The Supreme Court of Appeal (SCA) has ruled that taxpayers may be represented by duly authorised non-legal practitioners in Tax Court proceedings, dismissing an appeal brought by the South African Revenue Service (SARS).
In a judgment delivered on Tuesday, the SCA dismissed SARS’ appeal against an earlier ruling by the Full Court of the Western Cape High Court, which had set aside a Tax Court decision involving taxpayer Candice-Jean Poulter.
The case centred on whether Poulter’s father, Gary Van der Merwe, who is not a legal practitioner, could represent her in a dispute over her 2018 tax assessment.
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SARS had objected to Van der Merwe appearing on her behalf during proceedings in the Tax Court, arguing that only legal practitioners could represent taxpayers.
The Tax Court upheld the objection, barred him from appearing, proceeded in Poulter’s absence, and confirmed the assessment against her. The court also ordered her to pay costs on an attorney and client scale.
However, the SCA found that the Tax Court had erred in excluding Van der Merwe.
“The SCA concluded that a duly authorised layperson may represent a taxpayer in Tax Court proceedings,” the court said in a media summary of the judgment.
The court held that sections 12 and 125 of the Tax Administration Act, read with rule 44(7) of the Tax Court Rules, do not restrict taxpayer representation to legal practitioners.
According to the SCA, rule 44(7), which refers to “a person authorised to appear on the party’s behalf”, should be interpreted in its ordinary meaning and includes any person authorised by the taxpayer.
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The court also rejected SARS’ reliance on earlier cases involving laypersons appearing in ordinary courts, saying those matters differed from representation in the Tax Court under the framework created by the Tax Administration Act.
Although it was not necessary to decide the issue, the SCA agreed with the full court that the Tax Court is not a court contemplated in section 166 of the Constitution because it is established on an ad hoc basis by presidential proclamation rather than as part of the judicial system established by Parliament.
The appeal was dismissed with costs.
