High Court Says “Use the Tax Court First” Dismissing Late Tax Dispute
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Kerbyn Cape 2 (Pty) Ltd vs The Commissioner: SARS (15899/2023) [2025] ZAWCHC (11 July 2025)
Case Background
Kerbyn Cape 2 (Pty) Ltd tried to take SARS to the High Court, challenging its refusal to allow late objections for VAT and corporate income tax assessments from as far back as 2011 to 2014. The company claimed that SARS acted unfairly and unreasonably by rejecting the objections, and brought a case under the Promotion of Administrative Justice Act (PAJA). The case facts included the following:
SARS audited Kerbyn Cape in 2015 for VAT and income tax covering 2011–2014.
The taxpayer’s director was overseas and didn’t file objections on time. Upon return, he filed multiple late objections, all of which SARS rejected because they were too late and lacked “exceptional circumstances.”
Kerbyn Cape eventually tried to bypass the tax process and went straight to the High Court for relief.
The Judgment
The Western Cape High Court dismissed the case, agreeing with SARS that:
Tax disputes must first go through the Tax Court under the Tax Administration Act (TAA), unless the High Court formally gives permission to hear the matter (which didn’t happen here).
Kerbyn Cape failed to exhaust internal remedies — it should have first followed the formal SARS dispute process (objection, appeal, and condonation applications) before seeking court intervention.
The High Court said it had no jurisdiction because the company didn’t ask for permission to bypass the Tax Court process.
The application was also way out of time, and Kerbyn Cape didn’t properly explain why it took so long or why it should be excused.
Impact on Taxpayers
This case is a clear warning: if you’re disputing a tax assessment, you must follow SARS’s official process first, even if you think it’s unfair or time has passed. Don’t assume the High Court will step in just because you missed deadlines. Courts expect taxpayers to act quickly, follow procedure, and explain delays clearly if seeking condonation.
Key Takeaway
Always deal with SARS assessments through the proper channels (objection → appeal → Tax Court). The High Court is not a shortcut, and failing to follow the rules could cost you the chance to challenge SARS — and land you with a legal bill.
