In Metcash the Constitutional Court, in a unanimous decision, held that tax judgments were in principle susceptible to rescission and that there was a wide range of defences available in such rescission proceedings (despite the conclusive evidence rule). In Kruger I, the full bench of the Cape Provincial Division held on appeal that a tax judgment was indeed susceptible to rescission in terms of section 36(a) of the Magistrate’s Court Act 32 of 1944, which allows the magistrates’ court to “ rescind or vary any judgment by it in the absence of the person against whom that judgement was granted”. While the Constitutional Court agreed with this contention, it also referred to Kruger v Commissioner for Inland Revenue (1966 (1) SA 457 (C)) (“Kruger I”) and Metcash Trading Ltd v Commissioner, South African Revenue Service Z(1) SA 1109 (CC) 2001 (1) BCLR 1 (CC) (“Metcash”), which it held was binding precedent which the High Court should have considered, but did not.
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