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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO.: 41965/2014

DATE: 18 DECEMBER 2015

the matter between:

CAPITEC BANK LIMITED....................................................................................Plaintiff/Applicant

And

COMMISSIONER FOR

THE SOUTH AFRICAN REVENUE SERVICES..........................................Defendant/Respondent

JUDGEMENT

DE VOS J:

[1] The plaintiff instituted action against the defendant on 19 June 2014. The plaintiff now applies for leave to amend its particulars of claim. The plaintiff carries on the business of a bank by, amongst other things:

1.1 Concluding multi-loan agreements with borrowers;

1.2 Making monthly loans to borrowers in terms of such loan agreements; and

1.3 Charging initiation fees for all monthly loans so made, which initiation fees are paid to the Plaintiff by borrowers as and when they make withdrawals on the loans advanced to them.

1.4 The market field of the plaintiff consists mainly of micro-lending, a field previously explored by micro-lenders acting as private entrepreneurs.

[2] The plaintiff is a registered vendor under the Value-Added Tax Act and is registered for the payment of tax under the Income Tax Act.

[3] The plaintiff is currently involved in a dispute with the National Creditor Regulator (“NCR”), established under the National Credit Act 34 of 2005 (“the NCA”), about, amongst other things, the legality of the initiation fees which the plaintiff has charged to and received from borrowers under the multi-loan agreements. The NCR alleges that the plaintiff has charged and received full initiation fees from borrowers inconsistently with the NCA.

[4] On 27 May 2013 the NCR commenced proceedings against the plaintiff in the National Consumer Tribunal (“the NCT”) established in terms of s26 of the NCA. The relief sought by the NCR in those proceedings included an order declaring the plaintiff to be liable to repay to the borrowers the initiation fees found to have been charged by it under the multi¬loan agreements. The plaintiff opposed the proceedings at the NCT. In a judgement dated

9 April 2014 the NCT refused the NCR’s application for a finding that the plaintiff had engaged in prohibited conduct. It appears that this finding was based on a technical point and does not deal with the merits of the case.

[5] On 3 June 2014 the NCR’s attorneys of record informed the plaintiff that the NCR would be appealing against the decision of the NCT, as sl48(2)(b) of the NCA permits it so do so. A notice of appeal was filed at this Court on 19 June 2014. On 10 June 2014 the plaintiff launched these proceedings against the defendant in an action where the plaintiff s cause of action, such as there is, is premised upon the unknown and unascertainable outcome of the NCR’s appeal and the plaintiffs own subsequent appeals, if any.

[6] The basis for the action against the defendant is the plaintiffs contention that if this Court upholds the NCR’s appeal and makes an order declaring that the plaintiff is liable to repay its borrowers the initiation fees found to have been charged and received by it unlawfully in respect of the loans granted to them, and the plaintiff fails with any subsequent appeals to the Supreme Court of Appeal and the Constitutional Court against such an order, then the plaintiff will be liable to repay the borrowers the initiation fees charged and received by it.

[7] The plaintiff contends that it has paid VAT and income tax to the defendant on the initiation fees it charged and received from its borrowers. In the eventuality and if the plaintiff is declared liable to repay to the initiation fees to its borrowers (an event which the plaintiff refers to as the ‘liability condition’), then:

7.1 The plaintiff would have overpaid to the defendant the VAT and income tax on the income it earned from the initiation fees.

7.2 The plaintiff would be impoverished and the defendant would be unjustifiably enriched to the extent of the over-payments.

7.3 The defendant would not be justified in retaining the over-payments; and

7.4 The defendant would be liable to repay such overpayments to the plaintiff.

[8] In the event of the fulfilment of the liability condition, the plaintiff asks this Court (despite the alleged unlawfulness of its actions) to:

8.1 Order the defendant to repay it the VAT and income tax paid on the initiation fees charged and received from its borrowers;

8.2 Order the defendant to pay the plaintiff interest on these amounts of tax at the prescribed rate referred to in sl89 (3) of the Tax Administration Act 28 of 2011

8.3 In the alternative, the plaintiff seeks an order declaring that the defendant is liable to repay those tax amounts plus interest at that prescribed rate from the date(s) on which the amounts are agreed by the parties or determined by a court to the date of payment.

[9] On 29 September 2014 the defendant raised three exceptions to the plaintiffs Particulars on the grounds that they failed to make the averments necessary to disclose a cause of action. In this regard the defendant contended, in the main, that:

9.1 There is no allegation in the Particulars quantifying the amounts of VAT and income tax which form the subject matter of the plaintiffs conditional claim against the defendant.

9.2 There is no allegation in the Particulars that the plaintiff is liable to repay its borrowers the initiation fees charged to and received from them and, in the circumstances, the defendant’s alleged unjustified enrichment in respect of the VAT and income tax payments claimed in this action has not arisen.

9.3 There is no allegation in the Particulars that before instituting this action, the plaintiff complied with the provisions of Chapter 9 of the Tax Administration Act 28 of 2011, and, in the circumstances, the defendant contended that the plaintiff is not entitled to approach this Court for the relief that it seeks.

[10] On or about 21 November 2014 the plaintiff delivered its notice of intention to amend the Particulars. A notice of objection to all but one of the proposed grounds of amendment was delivered by the defendant on or about 3 December 2014 on the grounds that what the plaintiff seeks to introduce does not address or cure the defects identified by the defendant in its notice of exception. It is contended, amongst other things, that if the proposed amendments are introduced, the particulars will remain excipiable for failing to make the averments necessary to disclose a cause of action. The defendant does not oppose the amendmend to paragraph 13.4 of the particulars namely the replacement of the word “Defendant” at the end of the paragraph with the word “Plaintiff. Accordingly the relief sought in paragraph 1.2 A of the notice of application to amend must be granted.

[11] The plaintiff applies to this Court in the present proceedings for leave to amend its Particulars in terms of Rule 28 (4). The plaintiffs notice of intention to amend its particulars of claim proposes the following amendments:

11.1 The insertion of a new paragraph (i.e. paragraph 9 A) stating that on 19 June 2014, a date after the institution of these proceedings, the NCR appealed against the decision of the the NCT;

11.2 The replacement of the paragraph (i.e. paragraph 10) describing the liability condition upon which the plaintiffs claims are based to reflect the fact that the NCR has so appealed and to refine the permutations of decision-making on that appeal and any ensuing appeals;

11.3 The insertion of six paragraphs (i.e. paragraphs 13 A to 13F) dealing with two requests made by the plaintiff to the defendant on 30 September 2014 and the defendants responses thereto on 21 October 2014, both dates after the institution of these proceedings, and the consequences of the defendant’s responses, namely if the plaintiff withdraws the present proceedings and the liability condition is fulfilled in the future the defendant will not raise a defence of prescription against any fresh proceedings the plaintiff may institute (i.e. paragraph 13F.1) and if the liability condition is fulfilled the plaintiff cannot pursue any remedies in terms of Chapter 9 of the Tax Administration Act (TAA)(i.e. paragraph 13F.2).

[12] The defendant’s objection to the proposed amendments contain three separate grounds of objection, namely:

12.1 The first ground of objection, in effect, restates the three exceptions by asserting that the proposed amendments to the particulars of claim do not cure the defects in the original particulars of claim alleged in the exceptions;

12.2 The second ground of objection, which relates to the insertion of the new paragraph 9A and the replacement of paragraph 10, in effect restates the applicability of the second exception to the amended formulation of the liability condition; and

12.3 The third ground of objection, which relates to one of the consequences of the defendant’s 21 October 2014 responses in its letter of 21 October 2014, namely that if the liability condition is fulfilled the plaintiff cannot pursue any remedies in terms of Chapter 9 of the TAA (i.e. paragraph 13F.2), is that the proposed amendment is vague and embarrassing because it does not specify which of such remedies the plaintiff may wish to or be compelled to pursue.

[13] Before dealing with the exceptions/objections, the general rule is that the cause of action relied upon by a plaintiff must have subsisted when the summons was issued. In Nzani v Mbanie and Another 1988 (2) SA 649 (ZS) at 651H-652B the following was held:

“It seems to me that the process initiating action in the Court, whether it be by the issue of a writ of summons or notice of motion, has the effect offreezing the rights of the parties at the time that it is filed in the registry. So that, if at the time action was instituted, a right of action had not accrued to the plaintiff or applicant, as the case may be, then no cause of action is established by the initiating process. Put another way, the plaintiff or applicant should, at or before filing the initiating process, have a complete cause of action against the defendant or respondent.

It is clear from the record that the notice of motion proceedings initiated by the respondents on 27 April 1987 were commenced before their right to eject the appellant on 1 May 1987 accrued to them. Therefore, the respondents had no cause of action against the appellant at the time the initiating process was filed at the registry. and the fact that the application was entertained some six days after a right of action had accrued to the respondents does not affect the relative positions of the parties at the time of commencement of the action: 'There can be no action before anything is due and owing.’ Voet 5.1.27. It follows, therefore, that the respondents had no right in law to launch proceedings for the ejectment of the appellant before the expiry of the period stipulated in the agreement of sale: South African Hotels Ltd v Wienbure 1950 (1) SA 516 (C) at 520".

[14] In the absence of special circumstances, a plaintiff will not be permitted to establish a cause of action based on an essential element of which came into being only after the issue of summons.

[15] In this matter the plaintiff issued its summons initiating the main proceedings on 10 June 2014, making a conditional claim against the defendant that is premised upon the fulfilment of the liability condition. The Particulars reveal no cause of action against the defendant. There is at present no lis between the plaintiff and the defendant.

[16] In its notice of intention to amend the plaintiff seeks to introduce an amendment that stipulates that if the High Court dismisses the NCR’s appeal and the NCR succeeds with any appeals to the Supreme Court of Appeal or the Constitutional Court against the High Court’s order and either the Supreme Court of Appeal or the Constitutional Court makes an order declaring that the plaintiff is liable to repay to the borrowers the sums found to have been charged and received by the plaintiff unlawfully as initiation fees in respect of loans under the multi-loan agreements, then the plaintiff will be liable to repay to the borrowers the sums so found to have been charged and received by the plaintiff unlawfully as initiation fees.

[17] It is apparent from the amendment the plaintiff seeks to introduce that none of the facts alleged therein have yet occurred. In this regard:

17.1 The NCR’s appeal is currently before the High Court and is yet to be determined by it.

17.2 The Supreme Court of Appeal and the Constitutional Court are, if this becomes appropriate, yet to determine the lawfulness of the plaintiffs conduct of charging its borrowers initiation fees in respect of the multi-loan agreements concluded with them.

17.3 In the circumstances no court has declared the plaintiff liable to repay initiation fees to its borrowers.

[18] The plaintiffs action against the defendant is premature. The plaintiff accepts, as a general proposition, that a cause of action must be complete when summons is issued. It points out that this “rule” most typically finds applications in determining whether or not it would be proper to grant a later amendment.

[19] In his judgment in Dinath v Breedt 1966 (3) SA 712 (T) at 715F-G, COLMAN J held that a party who has no cause of action at the time of the issue of its summons cannot rely upon subsequent events to remedy the defect, and should not be allowed, by amendment, to introduce into his pleadings references to subsequent events. Authority for that proposition is to be found in Lebedina v Schechter and Haskell 1931 WLD 247 at 255. Lebedina supra was approved by the Appellate Division, as it then was, in Mohamed v Nasdee 1952 (1) SA 410 (AD) at pp 418-9. In Lebedina’s case, GREENBERG J (as he then was) assumed, without deciding:

“ that in an exceptional case the Court might extend the decision of Rich v Bhvat to cases where no cause of action existed at the time when summons was issued ”, while Melamet A.J. (as he then was) held in Barclays Bank International Ltd v African Diamond Exporters (Ptv) Ltd 1976 (1) SA 93 (W) at p. 97H that:

"the Court has a discretion to allow an amendment to complete a cause of action where no cause of action existed at the time when the summons was issued. It is a discretion which will be used only in exceptional or special circumstances to discourage persons instituting action when they have no cause of action

[20] There is no case made out that this is an exceptional case. The onus is on the plaintiff to do so. The defendant's counsel contends that those cases that relate to the introduction, by way of a subsequent amendment, of a cause of action that was not in existence at the time that action was instituted do not, in the circumstances, assist the plaintiff. Bankers are professionals who render professional services. See Columbus Joint Venture v ABSA Bank 2002 (1) All SA 105 (A); 2002 (1) SA 90 (SCA). What the plaintiff seeks amounts to a condonation of its unlawful actions vis a vis the defendant. A contract prohibited by common law or statute is illegal. An illegal contract in unenforceable. See ABSA Insurance Brokers (Ptv) Ltd v Luttiz NO [1997] ZASCA 61; 1997 (4) SA 229 (SCA).

[21] In paragraph 2 of the first exception the statement is made that “there is no allegation in the particulars quantifying the amounts of VAT and income tax which form the subject matter of the plaintiff's conditional claim against the defendant It is submitted on behalf of the plaintiff that the first exception not only overlaps with the second exception, but, on closer examination, does not represent a distinct, self-sufficient ground of complaint at all. The lack of quantification complained of under this heading is nothing more that the practical manifestation of the fact that the liabilitiy condition has not yet been fulfilled (being the complaint under the second exception). The lack of quantification flows from the fact that, only when the legal proceedings initiated by the NCR referred to in paragraph 10 of the particulars of claim have run their course, will it be known whether the plaintiff will have to repay inititation fees to its customers and, if so, what those amounts will be and consequently what the amounts of the tax overpaid will be.

[22] In McKelvev v Cowan NO 1980 (4) SA 525 (Z) 526 it was held that:

"a first principle in dealing with matters of exception that, if evidence can be lead which can disclose a cause of action alleged in the pleading, that particular pleading is not exipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can dislcose a cause of action Plaintiffs counsel contends that the distinction drawn in the quoted passage highlights the sui generis nature of the claim in the present action. Although at the moment there is no evidence in support of the claim, this will automatically be cured if and as soon as the liability condition is fulfilled. The lack of quantification complained of by the defendant is, therefore, not material to the determination of the defendant's contingent liability to repay, which is the main issue raised for decision by this matter. The lack of quantificatio will inevitably be cured by the fulfilment of the liability condition (if that is what occurs). The final outcome of the NCR proceedings (i.e. the order of the relevant appellate court) will speak for itself.

[23] The defendant’s counsel contends that the question raised by the second exception is , in a nutshell, the fact that the liability condition has not been fulfilled and may not be fulfilled. The plaintiff has therefore not made out a cause of action against the defendant. This exception again raises the contingent nature of the defendants’ alleged liability to the plaintiff as a supposed bar to the plaintiffs claim for repayment of the tax which will have been overpaid if in the NCR proceedings the plaintiff is found to have charged and received unlawful initiation fees (prayers (a) and (b) in the particulars of claim) and to the plaintiffs alternative claim for a declarator that if the liability ocndition is fulfilled the defendant will be liable to repay such tax to the plaintiff (prayer (c) in the particulars of claim).

[24] Although as a general point of departure a cause of action must be complete when summons is issued, the question of the completeness or otherwise of a claim surfaces most typically in a situation not directly relevant here, namely whether it would be proper to grant a late amendment. See Dinath v Breedt supra; De Bruvn v Centenary Finance Co (Ptv) Ltd 1977 (3) SA 37 T 42A-E; and Neani v Mbanie and Another supra.

[25] Be this as it may, and assuming that it would be proper to speak of a “rule” in the first place, the above-mentioned rule is not absolute. It may be departed form in suitable cases, where exceptional circumstances are present and common sense requires such a departure. See Barclays Bank International Ltd v African Diamond Exporters (Ptv) Ltd 1976 (1) SA 93 (W) 96G -97 H; Philotex (Ptv) Ltd and others v Snvman and Others 1994 (2) SA 710 (T) 715F-716F; Marigold Ice Cream Co (Ptv) Ltd v Nationa ICo-Operative Dairies Ltd 1997 (2) SA 671 (W) 677H-J; Solomon NO and others v Spur Cool Corporation (Ptv) Ltd and Others 2002 (5) SA 214 (C) at para 30, not affected in this respect by being overruled in Picardi Hotels Ltd v Thekwini Properties (Ptv) Ltd [2008] ZASCA 128; 2009 (1) SA 493 (SCA).

[26] The defendant’s counsel also particularly referred to Zeta Property Holdings (Ptv) Ltd v Lesatshe Technologies (Ptv) Ltd 2013 (6) SA 630 (GSJ), because it specifically mentions the recognition of conditional claims. Paragraph 6 reads as follows:

"[The] authorities reveal a movement away from the stringent application of the general rule that a cause of action should exist at the time of the institution of an action, as formulated, for exampple, by Wunsh J in Marigold Ice Cream Co (Pty) Ltd v National Co-Operative Dairies Ltd and by Flemming DJP in Bankorp Ltd v Anderson-Morshead. In Bankorp Flemmin DJP expressed the development of the Ian’ in the following terms:

‘Our practice has seen various instances of that which was thought ot be axiomatic, if not a rule of law, losing its absoluteness. An observer may view those instances as distinct exceptions or aberrations, or when approved of, developments and refinements. But when viewed collectively an underlying explanation is exposed insofar as pleadings are concerned: the increased realisation that Court Rules, procedural principals and pleadings are not there for their own sake or for any other reason than to advance the good order and the administration of justice.

Accord inly the stream has turned away from regarding a document or procedural step as a nullity and has come to manage that which previously was thought to be unworkable or even unthinkable. I mention a few examples. Many cases of a summons being a nullity have been discarded. Conditional claims and conditional counterclaims are managed . Conflicting alternative claims are often tolerated.. /

[27] The defendant’s counsel submits that because the court can by the exercise of its discretion exert control over persons who in undeserving circumstances approach the court without a complete cause of action, it would be inappropriate for the law to recognise a blanket rule in this regard which would have the undesirable effect of also non-suiting persons with a good claim (albeit with a measure of technical incompleteness in their underlying cause of action). Whether a claim with an inherent element of conditionality or contingency ought to be regarded as legally tenable or not is something that depends on "al die omliggende besonderhede van die saak of die soort saak”. See Nel v Silicon Smelters (Edms) Bpk en ‘n Ander 1981 (4) SA 792 (A) 800E. Indeed, in that judgement the SC A went furhter, saying that "daar skyn in elke geval geen rede te wees waarom so 'n eis [i.e. a conditional claim] nie in gepaste omstandighede erkenning kan geniet nie

[28] It is the plaintiff s contention that adopting the terminology in Nel v Silicon Smelters (Edms) Bpk en ln Ander supra, it is hard to conceive of “omstandighede” more “gepas ” for the recognition of a conditional claim than the circumstances faced by the plaintiff in the present case, for the following reasons:

28.1 Although the liability condition creates uncertainty, it is of a manageable kind. With the passage of time it will become clear whether or not it has been fulfilled and, if so, what its financial impact on the plaintiff and on its claim against the defendant will be.

28.2 There is also no possible prejudice to the defendant, and, in particular, no scope for confusion. See in this regard Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk 1979 (4) SA 467 (T) 471H. Since there is also complete clarity as to “what the defendant is sued for’\ there is no reason why a highly technical objection (such as the second exception) should be upheld. See Joubert v Inwala Platinum Ltd 1998 (1) SA 463 (BH) 47IE. This is so expecially when considered in light of the principle that “a charitable test is used on exception, espeially in deciding whether a cause of action is establishedSee Nel and Others NNO v McArthur and Others 2003 (4) SA 142 (T) 149F.

[29] The plaintiff therefore relies in its heads of argument on a line of cases as authority for the proposition that the approach towards conditional claims has softened in recent times so that it is now perfectly permissible to institute action on the strength of a claim that is uncertain ever to come about.

[30] I am not persuaded by the plaintiff’s submissions. The fallacy of the argument can be illustrated with reference to the principal case relied upon by the plaintiff as authority for its proposition, namely Zeta Property Holdings (Ptv) Ltd v Lefathshe Technologies (Ptv) Ltd 2013 (6) SA 630 (GSJ. That case, like many of the other cases relied upon by the plaintiff, dealt with the introduction of a new cause of action by way of an amendment in circumstances where the original particulars of claim did not disclose a cause of action and where the cause of action sought to be introduced does not exist at the time that action was instituted. It is in that context that the dictum in Zeta Property Holdings (Ptv) Ltd v Lefathshe Technologies (Ptv) Ltd supra was expressed. This does not constitute authority for the proposition that an entirely conditional claim can give rise to a cause of action prior to fulfilment of the condition. The situation in the present case must be distinguished from one where a claim is formulated conditionally upon the failure of an already pleaded claim. There can be no objection in principle to a conditional claim in the alternative, but, as this case shows, there is no warrant for accepting in principle that a cause of action is established by pleading an entitlement to relief only if certain events (which are uncertain to occur) take place. The amendments that the plaintiff seeks to introduce must be triable issues, on which, if it can be proven by evidence foreshadowed in the application for amendment, will be viable or relevant; or which as a matter of probability, will be proven by the evidence so foreshadowed. In this matter there is no possible evidence that can be led on the pleadings to disclose a cause of action and the contention that this will automatically be cured when the liability condition is fulfilled does not assist the plaintiff.

It merely emphasises the absence of a triable issue on 10 June 2014 (the date when summons was issued) and the absence of a triable issue now. The defendant’s objections are not merely technical, but strike at the very root of the action.

[31] Counsel for the plaintiff further contended that even if the plaintiffs claims for repayment of the overpaid tax and for interest (prayers (a) and (b)) are legally untenable, it does not follow that prayer (c), for a declaratory, is also legally unsound. A claim for a declaratory may validly be brought on the basis than, provided only that a particular suspensive condition is fulfilled in due course, the legal position between the parties will be such-and- such. This is clear from s21(l)(c) of the Superior Courts Act, No. 10 of 2013, which confirms that a Division of the High Court has the power:

"in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future of contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination

[32] It is contended that the wording of s21(l)(c) is taken over virtually verbatim from sl9(l)(a)(iii) of the now repealed Supreme Court Act No. 59 of 1959, and the case law in relation to the latter ought to apply also to s21(l)(c). See Mvbursh Park Lamebaan (Ptv) Ltd v Lamebaan Municipality and Others 2001 (4) SA 1144 (C) 1152J-1154J, part of which was affirmed by the Constitutional Court in Rail Commuters Action Group v Transnet Ltd t/a Metrorail and Others [2004] ZACC 20; 2005 (2) SA 359 (CC). Even if the word “contingent" is given its accepted meaning in the context of these provision, namely that of a condition in the narrow sense of the word (see Family Benefit Friendly Society v CIR 1995 (4) SA 120 (T) 125A-B), it is clear that the present case comes within the statutory wording. The liability condition referred to in the particulars of claim does represent a condition in the strict sense. There is accordingly no reason why, despite the conditionality inherent in the liability condition, a court could not validly pronounce on prayer (c).

[33] In support of the argument that a declaratory order should be granted, the plaintiff submits that this court is not faced with an abstract, hypothetical question (in respect of which a declaratory usually cannot be sought). On the contrary, the plaintiff has a direct and tangible interest in the outcome, very real liabilities, of considerable magnitude, are potentially at stake, subject only to the fulfilment or non-fulfilment of the liability condition. Compare Family Benefit Friendly Society v CIR supra.

[34] It is trite law that a court may grant a declaratory on the basis of assumed facts where there is a pertinent dispute between the parties and the desired declaration “w/7/ decide the legal issue one way or the other” (Compasnie Interafricaine de Travaux v South African Transport Services and Others [1991] ZASCA 16; 1991 (4) SA 217 (A) 230-23). The plaintiff contends that a declaratory order can therefore be sought in relation to contingent rights and obligations.

On the authority of Odendaalsrust Municipality v New Nisei Estate Gold Minins Co Ltd 1948 (2) SA 656 (O), same commentators accept that obtaining a declaratory may be possible even in a contractual context although the right in question is still subject to an unfulfilled condition. See De Wet & Van Wyk Die Suid-Afrikaanse Kontrakteres en Handelsres 5de uitg vol 1 Butterworths p 151; Van der Merwe et al Contract - General Principles 4th ed Jut a 2012 p 254. The plaintiff submits that there is no reason why the same reasoning should not apply to the plaintiffs unjustified enrichment claim.

[35] What is meant by a contingent obligation in the context of the legislation relied upon by the plaintiff is expressed as follows in Family Benefit Friendly Society v CIR supra as follows:

“ There must be a right or obligation which becomes the object of enquiry. It may be existing, future or contingent but it must be more tangible than the mere hope of a right or mere anxiety about a possible obligation. The word ‘contingentis not

used in a broad and vague sense, but... in the narrow sense of 'conditional The word ‘contingent ’ is used as opposed to ‘vested\ The rights and obligations to be enquired info are either vested (present andfuture) or conditional (contingent)...

Prior to 1963 an existing and concrete dispute between persons was required but this requirement was modified Ex parte Nell... However, the facts of this case were such that litigation was unavoidable, no matter which line of action the applicant adopted. In the circumstances the Court decided that the inevitable dispute could more practically be settled before it actually arose. These considerations do not apply where, depending on which course of action an applicant takes, a dispute may or may not arise. ”

[36] It is the plaintiffs case that the facts of the present case distinguish it from those such as Ex parte NelL where the dispute was inevitable and from the situation where there is in fact a conditional liability as opposed to “mere anxiety about a possible obligation”. The defendant contends that the considerations implied applied in Ex Parte Nell supra do not apply here, depending on which course of action an applicant takes, a dispute may or may not arise.

[37] In my view the plaintiff has failed to make out a proper case to prove that there is in fact a conditional liability. On its own version the plaintiff has done nothing wrong and is still proceeding with its banking activities as before. At present there exists only a mere anxiety about a possible obligation and only if the appeal goes against it. If declaratory relief is competent because it relates to a contingent claim, it should necessarily follow that a cause of action has been pleaded such as would sustain the relief sought in the other prayers. In the present situation there is no justification to deport from the general principle that when action is instituted the case of action must have accrued.

[38] The defendant's objection in this regard is not merely a technical objection as argued on behalf of the plaintiff. KORSAH JA held as follows in Nsani v Mbanie and Another supra:

‘This objection in limine is, in my view, not a mere technical point affecting some provision of adjectival law; it strikes at the very root of the action. It is so fundamental as to render the initiating process a nullity. If there is no cause of action then a judgment pronouncing that a non-existent cause of action exists is void and of no effect. ’

It follows from the aforesaid that the exceptions/objections set out in the first and second exceptions/objections must succeed and the application for a declaratory order must be dismissed. The third exception must be determined separately.

[39] The defendant contends that the plaintiffs conditional claim against the defendant will arise from VAT and income tax paid by the plaintiff to the defendant in respect of initiation fees that the plaintiff charged and received from its borrowers in the 2008 to 2013 tax years.

[40] It is apparent ex facie the particulars that if the plaintiff is found by a court to have unlawfully charged initiation fees to its borrowers, it intends to dispute the VAT and income tax assessed by and paid to the defendant in respect of those initiation fees for these years.

[41] The defendant raised the third exception to the Particulars on the grounds that they do not contain an allegation that, before instituting this action, the plaintiff complied with the dispute resolution provisions contained in Chapter 9 of the Tax Administration Act 28 of 2011.

[42] The plaintiffs answer to this exception demonstrates the fundamental problem with its action against the defendant, and illustrates the absence of any dispute for determination by this Court in the action. In this regard, the plaintiff contends that the defendant’s complaint regarding the dispute resolution mechanisms of the TAA is bad, that it is itself excipiable because the jurisdictional requirement for the operation of the dispute resolution measures in Chapter 9 of the TAA is not in place “with the result that si 05 has simply not yet been activated. There is namely at this stage (and this is apparent ex facie the Particulars of Claim) simply no disputed "assessment ”. This flows from the very fact that the liability condition has not yet been fulfilled and the relevant amounts of tax to be recovered (if any) are not yet capable of quantification ” This demonstrates once again the prematurity of the action the plaintiff has brought against the defendant. Indeed there may never be any disputed assessments if the liability condition is decided in favour of the plaintiff by this Court, the SC A or the Constitutional Court.

[43] The plaintiff seeks to introduce a series of amendments one of which includes an allegation that the defendant has made it impossible for the plaintiff to pursue any remedies in terms of Chapter 9 of the TAA that the plaintiff might either have wished to pursue or have been compelled to pursue, should the liability condition be fulfilled in the future.

[44] It is trite that every pleading must contain a clear and concise statement of the material facts upon which the pleader relies. The amendment sought to be introduced fails to do this. The remedies that the plaintiff might wish to pursue or be compelled to pursue in the event of the liability condition being fulfilled are not specified in the amendment it proposes to introduce, and accordingly this amendment, if introduced, will result in the amended Particulars being vague and embarrassing in that they will lack sufficient particularity to enable the defendant to plead thereto. It is simply not possible for the defendant to admit or deny an allegation that it has made it impossible for the plaintiff to pursue any remedies in Chapter 9 of the TAA which it might either have wished to pursue or have been compelled to pursue.

[45] Reading the third exception and the third ground of objection together, it is clear that the defendant essentially presses a two-fold complaint, the strands of which are intertwined.

In the first place there is a substantive complaint. It is to the effect that no cause of action is disclosed because of the presence on the statute book of si 05 of the (TAA), considered in conjunction with the fact that there is no allegation in the particulars of claim that the plaintiff has complied with (or exhausted its remedies in terms of) Chapter 9 of the TAA. Secondly, there is a complaint that the particulars of claim as proposed to be amended would be vague and embarrassing (and accordingly excipiable) in the sense that the remedies under Chapter 9 of the TAA which the plaintiff might wish or be compelled to pursue, in the event of the liability condition being fulfilled, are not sufficiently specified or particularised. S105 of the TAA provides as follows:

"105. Forum for dispute of assessment or decision.—A taxpayer may not

dispute an assessment or ‘decision ’ as described in si04 in any other court or proceedings, except in proceedings under this Chapter or by application to the High Court for review. ”

S105 must be read with sl04, the relevant parts of which provide as follows:

"104. Objection against assessment or decision. —

(1) A taxpayer who is aggrieved by an assessment made in respect of the taxpayer may object to the assessment.

(2) The following decisions may be objected to and appealed against in the same manner as an assessment—

(a) a decision under subs(4) not to extend the period for lodging an objection;

(b)...

(c) ...

(3) A taxpayer entitled to object to an assessment or ‘decision ’ must lodge an objection in the manner, under the terms, and within the period prescribed in the ‘rules'.

(4) A senior SARS official may^xtend the period prescribed in the 'rules' within which objections must be made if satisfied that reasonable grounds exist for the delay in lodging the objection.

(5) The period for objection must not be so extended—

(a) for a period exceeding 21 business days, unless a senior SARS official is satisfied that exceptional circumstances exist which gave rise to the delay in lodging the objection;

(b) if more than three years have lapsed from the date of assessment or the ‘decisionor

(c) ...

[46] Plaintiff contends that on a straight-forward interpretation of si 05 the third exception itself is excipiable (as to which see Buthelezi v Minister of Bantu Administration and Another 1961 (3) SA 256 (N) 258% in that a jurisdictional requirement for its operation is not in place, with the result that si05 has simply not yet been activated. There is namely at this stage (and this is so ex facie the particulars of claim) simply no disputed ‘"assessment” (such as is referred to in paragraph 15 of the defendant’s notice of exception). The liability condition has not yet been fulfilled (see the second exception) and the relevant amounts of tax to be recovered (if any) are not yet capable of quantification. In the circumstances of this matter the provision sustained in si05 does not have the effect contended for by the defendant; and that on a proper interpretation it does not prevent the plaintiff from having recourse to the High Court in the form of the present action for the following reasons.

46.1 There is ample authority for the proposition that it is possible in suitable cases for declaratory orders to be obtained in tax matters, even (where applicable) in the face of dedicated legislatively determined dispute resolution regimes that prima facie do not allow for, and are at any rate not premised on, such possibility. Metcash Trading Ltd v CSARS and Another 2001 (1) SA 1109 (CC) and National Educare Forum v CSARS2002 (3) SA 111 (TkH).

46.2 To paraphrase Friedman and Others NNO v CIR: In Re Phillip Frame Will Trust v CIR 1991 (2) SA 340 (W) 341G, the question is whether si 05 actually prohibits an approach to the High Court to resolve an issue of the present nature.

46.3 The decision in Metcash Trading v CSARS and Another supra furthermore makes it clear that there is a strong presumption against the ousting of the jurisdiction of the ordinary courts.

46.4 In interpreting si05, as with any statutory provision, one must not only guard against going beyond the consequences justified by the statutory wording itself, but must also throughout keep in mind that context and purpose, along of course with the language of the provision, are co-determinants of its meaning

[47] Plaintiff s counsel submits that on the assumption that the third exception is not itself excipiable as such, si 05 nevertheless ought to be interpreted on the basis of the following premise: whilst the provision may as a rule indeed exhaust the taxpayer's options in a situation where there is already a disputed assessment or decision in existence, the same result does not follow in a situation where no such assessment or decision is yet in existence, but the taxpayer is nevertheless (on good grounds) concerned about the possible coming into existence of such a problematic assessment or decision at some point in the future; alternatively si05 does not rule out an approach to the High Court for suitable relief in a case like the present as the plaintiff effectively has no remedies under Chapter 9 of the

TAA available to it at all, and therefore no such remedies are capable of being exhausted. SI04(1) is the only remedy in Chapter 9 of the TAA that would even hypothetically become available to the plaintiff. None of the other provisions of Chapter 9 even have to be considered. Plaintiffs counsel then in detail dealt with the provisions of ssl 01 - 150 of the Act, concluding that none of these sections render any assistance to the plaintiff and neutralises the third ground of objection as Chapter 9 is not applicable.

[48] Plaintiff s counsel submits that as condition has not yet been fulfilled (being the gravamen of the first and second exceptions, and the plaintiff therefore cannot yet say that it “is aggrieved” by the relevant tax assessments, in the sense contemplated in si04(1)), the plaintiff cannot at present make use of the objection procedure provided for in si 04(1).

[49] The only way in which the plaintiff could escape from this predicament would have been to request (and be granted) extension for the lodging of an objection or objections, as the case may be, against the relevant income tax and value-added tax assessments, until well after the fulfilment of the liability condition. This the plaintiff did; see in particular paragraph 15 of '“POC6”, where the request was made that extension be given, in respect of all tax years or periods that are or might be affected “until six months after final adjudication of the NCR proceedingsThe requests for extension were refused in toto by the defendant. This refusal, considered in the context of the provisions of s 104 of the TAA, and coupled in particular with the three-year time limit laid down in s 104(5)(b) and the standard objection period of thirty days (see s 104(3) read with Rule 7(1) of the rules issued under s 103(1)), means that the relevant assessments will either already have become final and no longer subject to possible objection under s 104(1), or will automatically become so upon the expiry of thirty days after the relevant date(s) of assessment. This means that two categories of underlying assessments have crystallised,

namely (a) those in respect of which the plaintiff is or will be precluded form objecting as contemplated in si04(1) of the TAA, either because the period allowed for such an objection has elapsed or because it will have elapsed if and by the time the liability condition is fulfilled; and (b) those (if any) that do not fall within category (a). Due to the uncertainty in connection not only with whether the liability condition will be fulfilled, but also (if it is indeed eventually fulfilled) in connection with when it be fulfilled, the inevitable effect in the meantime is that over time category (a) will become larger whereas category (b) will become smaller, possibly to be extinguished altogether. It is not possible for the defendant (or any other person, for that matter) to say which of the relevant underlying tax assessments (if any) will fall within category (b) as opposed to category (a) above - and, indeed, whether there will be a category (b) at all. It is contended that the third exception and ground of objection in particular must therefore be adjudicated on the basis of category (a), which may, after all, turn out to be the only relevant category. On this basis it is clear from the plaintiffs particulars of claim (especially as proposed to be amended) that, for the purposes of the present application, no remedy under Chapter 9 of the TAA is open to the plaintiff at all.

[50] It is self-evident that the basic idea underlying s 105 of the TAA is not and cannot be to deprive the taxpayer in question altogether of any remedy whatsoever. The purpose must be more nuanced, namely to deprive the taxpayer of other remedies only because, and therefore only to the extent, that such taxpayer does have a remedy under Chapter 9. The fact that the latter may be the usual position (i.e. that there usually is a remedy under Chapter 9) does not detract from the principle that statutory provisions must be interpreted with due regard to their purpose as long as the purpose is clear from the provisions in question or is easily discemable. See CSARS v Airworld CC and Another 2008 (3) SA 335 (SCA) at para 25. The provision contained in Chapter 9 and si05 is clearly intended

merely to channel and circumscribe the application of, not utterly destroy, the fundamental principle that ubi ius ibi remedium. Finally, the plaintiffs counsel contends that the plaintiff would suffer from the loss of rights through prescription if the third exception is upheld.

[51] In my view an amendment cannot be granted if the particulars of claim remain vague and embarrassing. It is common cause that even if the amendment is granted, the plaintiff will still not have a cause of action against the defendant as the status quo between the plaintiff and the respondent regarding the present lawfulness of the plaintiffs banking operations remain unaltered. To grant an amendment on the facts before me would leave the defendant in the invidious position of having to file a plea to the claim within the time periods specified in the Rules of Court where no claim exists. I cannot find any good reason why any defendant should be allowed to be dragged into an intolerable situation such as this one; the defendant did not commit any wrong. Not only will such a process be unfair to the defendant, but it will have a serious impact on the managing of the defendant's affairs. The sole purpose for defendant’s existence is to collect taxes from taxpayers as set out in the various Tax Acts. These Acts, and specifically the Income Tax and VAT Acts, are based on the principle that a taxpayer must personally asses the amount of tax due to the defendant and to pay the defendant accordingly. At no stage did the plaintiff raise any objections. Even at this stage of the proceedings the plaintiff maintains that his actions are lawful. The defendant’s reliance on si05 and Chapter 9 of the TAA is clearly a reference to tax payments made by the plaintiff from 2008 until now.

[52] What the plaintiff wants to achieve by seeking the amendment amounts to an abuse of the powers of Court. Plaintiff seeks an amendment (to be sanctioned by the Court) condoning its alleged unlawful banking practices (which is denied by the plaintiff) to reclaim taxes

from the defendant in terms of the condictio indebiti. In order to succeed with a claim in terms of the condictio indebiti, the claimant must prove that payment was made in terms of an excusable error to another in the mistaken belief that payment was owing and the latter was enriched at the claimant’s expense. See in this regard Willis Faber Enthoven (Ptv) Ltd v Receiver of Revenue [1991] ZASCA 163; 1992 (4) All SA 62 (A); 1992 (4) SA 202 (A). From this citation the following principles emerge:

52.1 Legal policy demands that there exist no distinction between payments made in error of law and payments made in error of fact;

52.2 An amount of money paid in mistake of fact could not be recovered by means of the condictio indebiti where the conduct of the payer was found to be “inexcusable slack”. The ignorance of fact should appear to be neither slack nor studied (nec supine nec affecta);

52.3 Mistakes of law should be treated in a similar fashion. It follows that an indebitum paid as a result of a mistake of law can be recovered, provided the mistake of law is found to be excusable.

[53] The underlying principle to claims based on fact and in law is a “mistake”. If the “mistake” is found to be “inexcusable slack” then the action cannot succeed. Much will depend on the relationship between the parties. In order to determine the state of mind of the plaintiff, I can merely draw an inference that at the time of payment of the relevant taxes the plaintiff, on its own version, believed that it was obliged to pay the said taxes. The defendant on the other hand merely received and accepted the taxes as and when it was received. Everyone participating in business activities is under a legal duty to pay taxes. The plaintiff was accordingly under a legal duty to pay the aforesaid taxes.

[54] The plaintiffs state of mind as recorded by itself must accordingly be examined against the background of its banking activities. The banking industry in South Africa is highly regulated. The plaintiff, since its inauguration, became involved in micro-lending, an activity previously conducted mainly by private entrepreneurs. Strict rules apply to the micro-lending business as it involves thousands of people who were subjected to very high rates of interest. If the plaintiff, being a registered bank, breached any laws (as alleged by the NCR) the nature of such contraventions must be determined. Only thereafter can it be determined whether the plaintiff has a claim against the defendant.

[55] The application to amend is clearly necessitated by the pending appeal against a finding in favour of the plaintiff. If the finding is set aside it might entail that plaintiffs banking activities were unlawful. At present, the plaintiff still maintains that his banking activities are lawful and that the taxes paid to the defendant were due and payable. If the plaintiffs banking activities are held to be unlawful it would entail that taxes paid to the defendant was mistakenly or erroneously paid. The plaintiff intends to reclaim the said taxes.

[56] The question whether the plaintiff was obliged to pay taxes is clearly a matter of law. In S v De Blom 1977 (3) SA 513 (A) it was held that in suitable cases, ignorance of the law may even provide an excuse for otherwise criminal behaviour. The next question is whether the question of law is excusable, or conversely, is not to be used as an excuse. HEFER JA said in Willis Faber Enthoven (Ptv) Ltd v Receiver of Revenue supra at 224E:

"It is not possible nor would it be prudent to define the circumstances in which an error of law can be said to be excusable or, conversely to supply a compendium of instances where it is not”.

[57] In the present matter it seems to be irrelevant whether the plaintiff conducted his banking activities in a lawful fashion or not. The plaintiff conducted the business of a bank. Taxes

are payable on both lawful and unlawful transactions. This is not a matter where a certain type of business is exempted from paying taxes. It is trite law that a citizen in his relationship with the State has a duty to acquaint himself with the various laws and regulations applicable to the particular business in which he operates. See in this regard S v Saved 1981 (1) SA 982 (C)\ and Sv De Blom supra

[58] If the plaintiff did make a mistake in law, this mistake revolves around the question whether he transgressed the laws and regulations of its operations as a bank. The answer to this question has nothing to do with its liability to pay taxes. For example, if someone conducts an illegal Ponzi scheme, he is still obliged to pay taxes as and when obliged to do so. A person who sells uncut diamonds without being issued with the necessary permit and derives an income from it, is still liable to pay taxes although he acted unlawfully. Similarly, a banker who contravenes the banking laws is still liable to pay the required taxes in accordance with the tax laws of this country.

[59] The present application to amend the particulars of claim - to insert a claim - based on the condiction indebiti can be distinguished from the facts in Willis Faber Enthoven (Ptv) Ltd v Receiver of Revenue supra. In that matter payment of 2.5 % of the premiums were paid to the Receiver of Revenue in terms of s 60(1 )(f) of the Insurance Act, No. 27 of 1943. However, if the premiums derived from policies which are effected and renewed, are not underwriters but are derived from Lloyds in terms of the Insurance Act, the provision that 2.5% of the premiums must be paid to the Receiver of Revenue does not apply. What the applicant in that case sought to rectify was to seek a repayment of monies that were not due. In the present instance the grounds for seeking a repayment is not based on a wrong application of the law but a condonation of the plaintiffs unlawful acts whilst conducting the business of a bank.

[60] In my view, and in terms of the discretion granted to me to allow or to refuse an

amendment, I find that for the reasons set out above, the application to amend should be

refused, except on those aspects where no objection was raised. The application for a

declaratory order must also fail as said before.

I THEREFORE MAKE THE FOLLOWING ORDER:

1. The plaintiffs application for leave to amend its notice of application to amend by inserting between the existing paragraphs 1.2 and 1.3 a new paragraph 1.2A which reads "by the replacement of the word ‘Defendant' at the end ofparagraph

13.4 with the word ‘Plaintiff’” is granted.

2. Prayer 1.2 A of the plaintiffs application for leave to amend paragraph 13.4 of its particulars of claim by replacing the word “Defendant” at the end of the paragraph with the word “Plaintiff, is granted.

3. The plaintiff s application for leave to amend its particulars of claim as set out in its application for leave to amend is refused and accordingly dismissed, with the exception of Prayer 1.2A.

4. The defendant’s objections to the amendments referred to in the plaintiffs application for leave to amend is upheld.

5. The plaintiffs application for a declaratory order is dismissed.

6. The plaintiff is ordered to pay the costs of this application, such cost to include the cost of two counsel.

[60] In my view, and in terms of the discretion granted to me to allow or to refuse an amendment, I find that for the reasons set out above, the application to amend should be refused, except on those aspects where no objection was raised. The application for a declaratory order must also fail as said before.

I THEREFORE MAKE THE FOLLOWING ORDER:

1. The plaintiffs application for leave to amend its notice of application to amend by inserting between the existing paragraphs 1.2 and 1.3 a new paragraph 1.2A which reads "by the replacement of the word ‘Defendant' at the end ofparagraph

13.4 with the word ‘Plaintiff”’ is granted.

2. Prayer 1.2 A of the plaintiffs application for leave to amend paragraph 13.4 of its particulars of claim by replacing the word “Defendant” at the end of the paragraph with the word “Plaintiff, is granted.

3. The plaintiffs application for leave to amend its particulars of claim as set out in its application for leave to amend is refused and accordingly dismissed, with the exception of Prayer 1.2A.

4. The defendant’s objections to the amendments referred to in the plaintiffs application for leave to amend is upheld.

5. The plaintiffs application for a declaratory order is dismissed.

6. The plaintiff is ordered to pay the costs of this application, such cost to include the cost of two counsel.

DE VOS J

JUDGE OF THE GAUTENG DIVISION OF THE HIGH COURT

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