Revenue Services Lesotho & Ano. V Liqhobong Mining Development & Ano. (C of A (CIV) No.43/2025) [2025] LSCA 67 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between – C OF A (CIV) 43/2025 CCA/0009/2025 REVENUE SERVICES LESOTHO 1ST APPELLANT COMMISSIONER GENERAL, REVENUE SERVICES LESOTHO 2nd APPELLANT COMMISSIONER CORE OPERATIONS, REVENUE SERVICES LESOTHO 3RD APPELLANT and LIQHOBONG MINING DEVELOPMENT CO (PTY) LTD 1ST RESPONDENT ATTORNEY GENERAL 2ND RESPONDENT CORAM: SAKOANE, CJ DAMASEB, AJA VAN DER WESTHUIZEN, AJA HEARD: 23 OCTOBER 2025 DELIVERED: 14 NOVEMBER 2025 FLYNOTE Revenue law – Jurisdiction – High Court vs specialised tax tribunal – “Pay now, argue later” – Ouster or deferment of jurisdiction – Interdict to suspend tax payment – RAT Act 2005 – Income Tax Act 1993 – Condonation – Leave to appeal – Final vs interlocutory. Appeal against a judgment of the High Court (Commercial Division) assuming jurisdiction to grant interim interdictory relief suspending payment of tax pending objection/appeal before the Revenue Appeals Tribunal (RAT). RSL issued an amended assessment for M62 million. Liqhobong filed an objection and simultaneously approached the High Court seeking suspension of enforcement. High Court held that it retained inherent jurisdiction, granted interim relief and issued a rule nisi. Held, that the central issue is jurisdiction. The question is whether the statutory framework of the RAT Act 2005 and the Income Tax Act 1993 ousts or defers the jurisdiction of the High Court in respect of disputes concerning tax assessments and suspension of payment. Leave to appeal not required: finding on jurisdiction is final and dispositive. Condonation granted. Held, that section 23(1) of the RAT Act gives effect to the “pay now, argue later” principle by providing that the obligation to pay tax is not suspended by appeal unless the Commissioner General or the Tribunal so directs. Only RAT or the Commissioner may defer payment. High Court has no statutory authority to suspend tax collection or grant interim relief overriding specialised mechanisms. Held, that jurisdiction of the High Court is deferred—not ousted entirely—until RAT processes are exhausted. Sympathy for taxpayer’s financial hardship cannot confer jurisdiction. No exceptional circumstances justifying bypassing the RAT existed. Order: Condonation granted; appeal upheld with costs; ruling of the High Court assuming jurisdiction set aside. Keywords: Jurisdiction – Specialised tribunal – Tax assessment – Interim interdict – RAT Act – Income Tax Act – Condonation – Appeals procedure – Separation of powers – Constitutional principles. JUDGMENT J VAN DER WESTHUIZEN, AJA: Introduction [1] According to an old saying, two things are certain in life: death and taxes. This matter deals with the second of the two. [2] A central challenge for all tax systems is to balance the highly important function of the authority, tasked with the collection of taxes in the interest of effective governance and service delivery, with fairness to and the fundamental rights of taxpayers. In this, the legislature and the courts play a crucial role. [3] However, jurisdiction is the door to justice. Regardless the merits of a case, no relief will be found if a litigant knocks on the door of a court with no jurisdiction to hear the matter. The “return to sender” phrase on envelopes of old (made famous by a song by Elvis Presley) comes to mind. [4] In this appeal against a judgment by Mathaba J, in the Commercial Court Division of the High Court, the above- mentioned balancing exercise plays itself out around the jurisdiction of the High Court, vis-à-vis the system of specialised tax structures created by the legislature. [5] The main question is: Does the legislation concerning these structures oust the jurisdiction of the High Court; and if so, to what extent? Preceding this question, it has to be determined whether leave to appeal was required; and whether of the late filing of the appeal ought to be condoned [6] For ease of reference the 1st appellant, Revenue Services Lesotho, is referred to as “RSL”; and the 1st respondent as “Liqhobong”. The latter is a company registered and incorporated in terms of the laws of Lesotho, with its principal place of business in Maseru West. Facts [7] According to RSL, they notified Liqhobong in September 2023 of their intention to conduct a verification audit for Corporate Income Tax and VAT, covering the period 2020 to 2023. Multiple meetings were held to allow Liqhobong to comment on the audit findings before any assessment was issued. In spite of numerous opportunities, Liqhobong failed to submit the required documents. This delayed the audit’s completion of the audit and the assessment. [8] Based on the audit findings, RSL issued an Amended Notice of Assessment on 11 November 2024, on 11 November 2024, totalling M 62 444 954.79, covering the 2020 to 2023 assessment period. The Notice required Liqhobong to settle the amount by 11th December 2024. [9] Liqhobong applied for an extension of the time period, in terms of section 143(4) of the Income Tax Act (“IT Act”) of 1993. [10] On 20th December 2024 Liqhobong lodged a formal objection to the assessed amount. RSL rejected the application on 27th February 2024. According to them, they advised Liqhobong to approach their office to arrange a payment plan. Some of these claims are disputed by Liqhobong. [11] Liqhobong then initiated legal proceedings in the High Court, under case number CCA 009/2025. On 31 March 2025 Mathaba J granted interim relief to Liqhobong and issued a rule nisi, returnable on 10 April 2025. [12] Unsuccessful settlement negotiations followed. On the return day the matter was postponed to 20th May 2025. [13] According to RSL, on the 3rd July 2025, during the hearing of the matter, Liqhobong informed the Court that they were no longer pursuing the interim order. Kopo J discharged “(t)he interim Court Order granted on the 31st March 2025”; and ruled that “(c)osts will be decided once the appeal has been finalised”. Applicable law [14] Given the nature of this matter, as well as for ease of reference, it may be useful to scan the applicable legal – especially legislative – landscape. Thus, the relevant provisions are grouped together. [15] Regarding appeals from the High Court to this Court section 16 of the Court of Appeal Act 10 of 1978 states: “(1) An appeal shall lie to the Court – (a) from all final judgments of the High Court; (b) by leave of the Court from an interlocutory order, an order made ex parte or an order as to costs only.” [16] Section 137 of the Income Tax Act 9 of 1993 (“IT Act”) provides: “(1) A taxpayer who is dissatisfied with an assessment (other than an amended assessment) may file an objection to the assessment with the Commissioner General within 4 years after service of the notice of assessment. (2) An objection to an amended assessment may be filed with the Commissioner within 4 years after service of the notice of original assessment or 60 days after service of the amended assessment, whichever is the later. (3) The objection must be in writing and specify in detail the grounds upon which it is made. (4) After consideration of the objection, the Commissioner General may allow the objection in whole or part and amend the assessment accordingly, or disallow the objection; and the Commissioner General’s decision is referred to as an objection decision. (5) The Commissioner General must serve the taxpayer with notice in writing of the objection decision. (6) If the Commissioner General has not made an objection decision within 90 days of the objection being filed, the Commissioner General is deemed to have made a decision to disallow the objection and to have served notice of the decision on that day.” (Sections 138 and 139 of the IT Act were repealed by section 29 of Act 2 of 2006.) [17] According to section 141(1) of the IT Act the burden of proving that an assessment is excessive is on the taxpayer. [18] Parts of section 143 of the IT Act are central in this appeal: “(1) Subject to subsections (2) and (5) income tax payable under this Act is due and payable on the date on which the return of income is due. … (3) Where an objection to, notice of appeal against, or an application for amendment to, an assessment has been filed, the amount of income tax payable under the assessment is due and payable, and may be recovered, notwithstanding that objection, appeal, or application. (4) Upon written application by the taxpayer, the Commissioner General may, where good cause is shown, extend the time for payment of income tax beyond the date on which it is required to be paid …, or make such other arrangements as appropriate to ensure the payment of the income tax liability.” [19] The Revenue Appeals Tribunal Act 2 of 2005 (“RAT Act”) introduced the Revenue Appeals Tribunal (“RAT”) as a specialised tribunal for tax matters. Section 3 states: “(1) There is established the Revenue Appeals Tribunal whose functions shall be to sit as a judicial authority for hearing and deciding such appeals as are authorised by any of the laws set out in the Schedule against assessments, decisions, rulings, determinations and directions of the Commissioner General. (2) Without prejudice to the generality of subsection (1), the Tribunal shall – … (c) hear all appeals under the Income Tax Act 1993, in particular, in respect of assessments of income or fringe benefits, tax, decisions, rulings and determinations of the Commissioner General” [20] Regarding the payment of tax pending an appeal, section 23(1) of the RAT Act states: “The obligation to pay and the right to receive and recover any tax chargeable under any of the laws set out in the Schedule shall not, unless the Commissioner General or Tribunal so directs, be suspended by any appeal or pending the decision of the Tribunal or any court of law.” [21] The Revenue Appeals Tribunal Rules of 2007 stipulate more detail on the workings of the RAT. They deal with objections, the Commissioner General’s objection decision, appeals to the RAT and procedures before the RAT. Rule 5 states that a taxpayer who is dissatisfied with an assessment may file an objection to the assessment with the Commissioner General within the period stipulated and in the prescribed form. In terms of Rule 6 the Commissioner General may, by notice within 30 days, inform the taxpayer that the objection is not accepted as valid. Rule 7 provides for a taxpayer who is dissatisfied with the Commissioner General’s objection decision to appeal to the RAT, within 30 days after receipt of the objection decision. The High Court [22] In the High Court Liqhobong sought urgent interdictory relief, incorporating a rule nisi, that – “ … (RSL’s) Notice of Amended Assessment dated on or about 11 November 2024, demanding payment … in the sum of M62 444 954.79 (together with any enforcement or implementation thereof), be and is hereby suspended pending the final determination of (Liqhobong’s) objection to the said Amended Assessment by the Commissioner General and, if necessary, any subsequent appeal to the Revenue Appeals Tribunal (RAT) under the (RAT) Act, 2005; … that (RSL’s) decision (on or about 27 February 2025) to refuse (Liqhobong’s) application for an extension of time for payment (under section 143(4) of the Income Tax Act 9 of 1993) be and is hereby suspended, and that (RSL) be directed not to take any further enforcement steps against (Liqhobong) until final determination of any review proceedings in respect of that refusal, provided that such review shall be instituted … within fifteen (15) days …” [23] RSL argued that the High Court had no jurisdiction to hear the application. The enactment of the RAT Act introduced a specialised mechanism to resolve tax disputes; so, it was not permissible to use the High Court as the first port of call. Liqhobong contended the opposite. The High Court had jurisdiction. It was not ousted by the RAT Act. The RSL’s refusal to extend the date of payment was not appealable to the Tribunal. Even if the High Court did not have jurisdiction to decide the main dispute, it did have it to preserve the status quo. [24] The High Court considered and discussed the parties’ arguments, with reference to legislation, such as the IT Act and RAT Act. It furthermore analysed case law, including Gcaba v Minister of Safety and Security and Others1, Ashraf Abubaker v Commissioner for Lesotho Revenue Authoirity2, Lephema Executive Transport v RSL3 and Commissioner the South African Revenue Service v Rappa Resources (Pty) Ltd4. [25] The High Court concluded: “I am not oblivious to the decision in National Treasury v Opposition to Urban Tolling Alliance5 which stressed that while a court has the power to grant an interdict restraining the exercise of a statutory power, that must be done with circumspection, and that a proper and strong case must be made in support of that relief…. Considering the negative impacts of the delay in tax collection, which the ‘pay now and argue later’ principle is intended to ameliorate, I would ordinarily be reluctant to grant an interdict against ‘a tax man’, even if it is to preserve the status quo for a period until the return day. However, not in this case. I find it to be extraordinary. Besides being convinced that the applicant (Liqhobong) has good prospects of success, either in its objection to the assessment or in the mooted review, I find it mindboggling that 1 CCT 64/08 (2009) ZACC 26, 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) 2 CCA 50 of 2011 (2013) LSHC 25 (28 June 201, 3 2024 LSHC 10 COMM (13/2/2024) 4 2023 (4) SA 488 (SCA) 5 2012 (6) SSA 223 (CC) at paras 65 - 66 the respondents (RSL) would want to insist on an assessment which it recognises that it is valid to a certain extend. Sending away a taxpayer under the circumstances of this case would be a travesty of justice.” [26] The High Court then found that the matter was urgent; and ordered, on 31st March 2025, that RSL be prevented from taking enforcement steps against Liqhobong in respect of the assessment of M62 444 954.79 for a period until the return date. It issued a rule nisi, returnable on 10th April 2025. In its order, the Court also set out the final relief, related to the above. [27] RSL appealed to this Court against the High Court judgment of Mathaba J. Grounds of appeal [28] The appeal is based on the submission that the High Court misdirected itself in finding that it had jurisdiction to entertain a matter relating to the suspension of the payment of tax; and furthermore that section 24 of the RAT Act “does not exclude or defer the jurisdiction of the High Court in cases where a taxpayer has not yet lodged an appeal to the (RAT).” The Court is also argued to have erred and misdirected itself by failing to appreciate that all matters relating to the suspension of payment of tax fall exclusively within the jurisdiction of the RAT. These matters are not justiciable before the High Court, so it is submitted in the Grounds of Appeal. Condonation and leave to appeal [29] RSL applied for condonation for the late filing of the appeal. Perhaps indicative of not only the fierceness of this dispute, but also the importance of the matter, Liqhobong opposed it. In response to RSL’s 18 page Founding Affidavit, they produced an Answering Affidavit of 12 pages. [30] The appeal was filed on 23rd June 2025. Liqhobong points out that this was 56 court days after the judgment had been delivered (instead of the six weeks determined by Rule 4I(1) of the Court of Appeal Rules of 2006). [31] The application for condonation is based on RSL’s account of the above-mentioned factual history, which is largely not in dispute. Their Founding Affidavit narrates several delays caused by the need to seek legal advice, the unavailability of counsel and related matters. [32] RSL concludes that the delay was not deliberate, but caused by circumstances beyond their control. Once the restraints had been resolved, prompt steps were taken to lodge the appeal at the earliest practicable opportunity. The delay was neither inordinate nor unreasonable. [33] According to RSL, there are reasonable prospects of success. Furthermore, it is in the interests of justice that the appeal be heard, in view of the importance of the issue to be decided. [34] Liqhobong’s opposition to condonation is largely based on their view that RSL needed leave to appeal, which they had not obtained. They rely on section 16 of the Court of Appeal Act, as well as case law, such as National Bank of Lesotho Ltd v Manthoane L Tlaba6. In that matter the appeal was struck off the roll, because of non-compliance with section 16. This Court stated: “An appeal as of right lies only against a judgment of the High Court that is final in effect and disposes of the substantive rights of the parties. An interlocutory order may only be appealed with leave being granted either by the High Court or by this Court in the event that the High Court refuses to grant leave.” [35] Section 16 is quoted above. Liqhobong submits that the order made by Mathaba J in the High Court is interlocutory in nature. It included a rule nisi that was later discharged by Kopo J. As such, leave to appeal had to be obtained by RSL. This, they neither applied for, nor received. [36] However, the appeal before this Court is not against Mathaba J’s interim order. It is against the High Court’s finding that it had jurisdiction. This is also clear from RSL’s Grounds of Appeal. The finding about jurisdiction was not subject to the rule nisi and return date. It was not to be argued and decided later. It was not interlocutory, but final. Moreover, it stands as a binding precedent. In Prof Nqosa Leuta Mahao, BAP President and Others v Maqelepo and Others7 this Court held that the High Court’s finding that it had jurisdiction to grant interim relief was final and appealable without leave from the Court. The Court stated that jurisdiction “when either assumed or declined by a court, is dispositive of the matter in the court concerned and the decision either way may be appealed without leave as it is final in nature”. 6 C of A (CIV) 06/2025 7 2050 LSCA (2 May 2025) [37] Liqhobong furthermore argues that the delay was not properly explained by RSL. The issue about the jurisdiction of the High Court vis-à-vis the income tax structures is important though. In the interests of justice it has to be resolved. The appeal cannot be said to be without reasonable prospects of success. And the delay is not so inordinate that it renders the prospects irrelevant. Condonation has to be granted. Submissions in this Court [38] As in the High Court, RSL mainly contends that Liqhobong should not have approached the High Court before exhausting the RAT Act processes. The High Court had no jurisdiction to hear their application. Liqhobong submits the opposite. The RAT Act could not deliver justice to them. Both sides presented lengthy and detailed arguments in their written Heads of Argument and oral submissions. These are considered and analysed hereunder. Analysis [39] As to the structure and hierarchy of courts and tribunals, traditions have varied in different jurisdictions. For example, whereas Germany preferred separate specialised courts, next to one another, countries in the English-speaking world have largely relied on a single hierarchy of courts, dealing with all matters from bottom to top. The German Federal Constitutional Court specialises in constitutional matters, while the Supreme Courts in the United States of America and Canada hear cases from many fields of law. [40] The tradition in some jurisdictions, including Lesotho and South Africa, seems to have been changing. In Lesotho a single judge ordinarily presides in the High Court, but a panel of three in constitutional cases. While in this Court appeals are heard by a panel of three judges, five judges sit in constitutional maters. When South Africa brought into life its democratic constitutional dispensation in 1994 and 1996, it opted for a specialized Constitutional Court, to a considerable extent based on the German Court, rather than to follow the models in the United States and Canada. (Due to constitutional amendments, the South African Court is now not that singularly specialized though.) [41] The creation of separate hierarchies of specialized courts and tribunals has resulted in disputes and litigation about the jurisdiction of the High Court, vis a vis the specialized structures. In this regard the High Court judgment in the present case states that “… one must be mindful of the principle that there is a strong presumption against the legislature interfering with the jurisdiction of courts of law …for the jurisdiction of a court to be ousted there has to be an express provision or a necessary implication flowing from the statutory provision under consideration’ “.8 (The South African authority relied on by the High Court is a 1988 decision by the then Appellate Division of the Supreme Court though.) [42] One example of where jurisdiction has been contested terrain is labour law. The general inherent jurisdiction of the High Court has been weighed against the specialised purpose of the Labour Court. In the recent ‘Mamohale Matsetso v Minister of Public Service and Others9 Mosito P refers to the South African decisions in 8 The High Court quoted from National Union of Textile Workers v Textile Workers Industrial Union (SA) and Others 1988 (1) SA (A); Mgjima v Eastern Cape ATU and Another2000 (2) SA 291. 9 C of A (CIV) 53/2025; CIV/APN/0052/2025; delivered on 7th November 2025 Chirwa v Transnet Ltd10 and Gcaba11. In the last-mentioned the Constitutional Court stated “jurisdiction” to be the “power or competence of a Court to hear and determine an issue between the parties”. The Labour Relations Act 66 of 1995 granted exclusive jurisdiction to the Labour Court and should be given “expansive content to protect the special status” of that Court. [43] Then the President of this Court proceeds: “Locally, decisions such as Makhalane v Letsig Diamonds (Pty) Ltd12, Lesotho Revenue Authority v Dichaba13 and National University of Lesotho v Motlatsi Thabane14 confirm the steady jurisprudential trajectory towards exclusivity …. A coherent system of adjudication requires that cases be determined by a single, expert tribunal. Fragmentation between the High Court and the Labour Court would foster uncertainty, duplication and inconsistent outcomes – the very mischief the 2024 Act sought to cure. Judicial structure must reflect legislative design, not judicial preference.” [44] In principle, as well as practically, this should apply to the situation regarding the High Court and specialised tax structures as well. The wording of the applicable legislation must be explored though. [45] Counsel for RSL relied on section 23(1) of the RAT Act. It clearly and unambiguously excludes tax payments from the usual suspension of execution by an appeal. This interpretation is 10 2008 (4) SA 367 11 Para [22] and footnote 1 above 12 LAC (2011 – 2012) 73 13 C of A (CIV) 21/2019 14 C of A (CIV) 67/2019 consistent with the principle of “pay now, argue later”. Liqhobong sought from the High Court the suspension of its obligation to pay tax on the assessment, pending the decision of the RAT. No statutory provision gives the High Court the power to overrule this provision of the RAT Act, usurp the function of the RAT, or substitute its decision for that of the Commissioner General. Only the RAT or the Commissioner may suspend payment of tax. [46] RSL referred to the recent High Court decision in Lephema15, which dealt with jurisdiction and judicial review. The Court held that the RAT had both appeal and review powers. For the purposes of review the jurisdiction of the High Court is not ousted. As to where justice can be best served, section 23(1) of the RAT Act “tilts the scale towards the matter being handled by the RAT”. The Court furthermore held that it did not have jurisdiction to interdict the respondents from implementing their enforcement decisions. Although the High Court’s review jurisdiction is not ousted, “it must be delayed so as to give the RAT an opportunity to deal with the matter as the legislature has given it powers to do”. The High Court’s jurisdiction is thus deferred until the stage of judicial review of the actions of the RAT. [47] In Ashraf Abubaker16 it was accepted that in terms of the RAT Act assessments can only be brought on appeal to the High Court from a decision of the RAT. To ignore the existence of specialised mechanisms and procedures, would be a serious misdirection. 15 Para [22] footnote 3 above 16 Para [22] footnote 2 above [48] RSL referred to several other decisions in Lesotho and South Africa. They submit that taxpayers cannot as a first port of call approach a court for interdictory relief. They must first approach the Commissioner General or the RAT. [49] RSL argues that the High Court in this case wrongly found that “the decision to refuse to extend the date of payment is not appealable to the RAT” and that “the Tribunal can only direct that a taxpayer should not pay the assessed liability pending the appeal before it”. The RAT Rules define “assessment” as any assessments, decisions, rulings determinations or directions by the Commissioner General. Rule 5 of the RAT Rules, read with section 137 of the IT Act, provides that when a taxpayer is dissatisfied with an assessment they may object thereto. Rule 6, read with section 137(4) of the IT Act, provides for an objection decision to be issued; and Rule 7 allows a taxpayer who is dissatisfied with an objection decision to appeal to the RAT. [50] Section 143(3) provides that when an objection to an objection to an objection to, a notice of appeal, or application for amendment has been filed, the amount payable under the assessment is due and payable and may be recovered, notwithstanding that objection, appeal, or application. [51] According to RSL, Liqhobong ought to have lodged an objection to the decision to refuse the suspension of payment application and, if still aggrieved, lodge an appeal to the RAT. [52] Liqhobong countered RSL’s submissions on jurisdiction by submitting that the question for consideration is “(w)hether the High Court has jurisdiction to grant interim interdictory relief, in which the status quo is preserved, in exceptional circumstances on matters related to the payment of income tax assessed under an amended assessment, until the return date”. [53] Counsel for Liqhobong then pointed out, in their written Heads of Argument, that the amended assessment was only valid to a certain extent. “As a result of the irreparable harm, (Liqhobong) could not afford the luxury of awaiting the outcome of the objection decision. Imminent liquidation and irreversible economic consequences of the obligation to pay the approximately M62 million … precluded the Applicant from obtaining substantial redress in due course.” [54] Liqhobong was also unable to negotiate a payment arrangement, as alleged by RSL. Their only option was to extend the time for payment.“By refusing to extend the time for payment, (RSL) signalled that they were insisting on payment in terms of sections 143(2) and 143(3) of the Income Tax Act. There is simply no further legal provision that would enable (RSL) to grant (Liqhobong) further negotiated relief ….” [55] During the hearing before this Court counsel for Liqhobong stated orally that her client had “run out of money”. It would thus appear that the “exceptional circumstances”, referred to above, were basically Liqhobong’s alleged dire financial situation. [56] Many a taxpayer could rely on this ground. In the tax world, it is probably hardly exceptional. The “tax man” is a hard man, most taxpayers know quite well. [57] Counsel for Liqhobong went further though, and disagreed with RSL’s interpretation of the relevant statutory provisions. For example, the IT Act contains no provision permitting an appeal against a deferment decision and the RAT has no jurisdiction to her or determine such an appeal, so it was argued. [58] In diligently prepared and strongly presented written and oral submissions, of varying persuasive weight, counsel for Liqhobong dealt with related points. These included South African jurisprudence on the constitutional implications of the “pay now, argue later” principle. [59] The jurisdiction of courts can obviously not be ousted entirely by legislation in a constitutional democracy, based on the rule of law and separation of powers. Ultimately all legal disputes may end up in this Court. Jurisdiction can be delayed though, until the avenues created by the legislature for specific purposes have been utilised. [60] From the High Court’s conclusion (in [25] and [26] above) it would appear that it had considerable sympathy with the taxpayer, vis-à-vis the “tax man”. Many would share this sentiment. After all, as stated (in [1]) above, the old saying compares taxes to death. On the other side of public opinion, millions of the poorest of the poor have little or no income from which to pay taxes. They expect the authorities to provide essential services, like water and electricity, for which the efficient collection of taxes from those who are capable of and obliged to pay is essential. [61] Be that as it may, the High Court seems to have lost sight of what this matter is about, namely jurisdiction. The correctness of the assessment by the RSL, the prospects of success of Liqhobong’s case and the attitude of RSL cannot give the Court jurisdiction which it does not legally have. In this regard, the Court misdirected itself. [62] It furthermore did not consider section 3 of the RAT Act wholistically, within the context of the rest of the Act, such as section 23 and the RAT Rules, as well as section 143(3) of the IT Act. So argues RSL, with merit. Conclusion [63] Did fairness and the interests of justice require anything that the RAT Act does not allow for, thus leaving Liqhobong with no other option than to approach the High Court, even urgently? The answer appears to be: No. [64] The legislation referred to above – especially section 143 - accords with the principle of “pay now, argue later”. This phrase is not used in legislation, but widely recognised in the tax systems of several countries [65] The legislature provided a specialised mechanism to deal with income tax matters. This has to be utilised, fully, before the High Court is approached. [66] In a constitutional democracy, under the rule of law, recognising the separation of powers, the legislature may not oust the jurisdiction of courts of law. It would act unconstitutionally if it does so. The courts are the guardians of the Constitution and other law. [67] There is a time and place for everything though. Whereas legislation may not oust the jurisdiction of the High Court entirely from the field of some disputes, for example income tax, it may delay the Court’s jurisdiction until the finalisation of proceedings before the specialised structure, in this case the RAT. [68] There are administrative law remedies17 for instances of, for example, mala fides or blatant irrationality on the part of a decision maker. That is not the case that Liqhobong brought to the High Court though. This judgment does not speculate about possibly difficult boundaries and distinctions. [69] This appeal is not against the High Court’s interim order, regarding which the rule nisi has in any event been discharged; the assessment; decisions of the Commissioner General; or the merits of the case of either side. It is also not about the attitude of RSL. [70] The appeal is about jurisdiction only. On this point, it has to succeed. Costs [71] Both RSL and Liqhobong asked for costs. Costs have to follow the result. Order [72] It is ordered that – (a) condonation for the appellants’ late filing of the appeal is granted; and – (b) the appeal is upheld, with costs, as far as the High Court’s ruling on jurisdiction is concerned. 17 See eg Metcash Trading Ltd v CSARS 2001 (1) SA1109 (CC) I agree: I agree: _______________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL ____________________________ S P SAKOANE CHIEF JUSTICE __________________________ P T DAMASEB ACTING JUSTICE OF APPEAL FOR THE APPELLANTS: ADV AR BHANA SC ADV A KOLLOORI FOR THE FIRST RESPONDENT: ATT E BRIEDENHANN 23