Interview by Ntokozo Nkambule
Q: You are the first Registrar of the Revenue Appeals Tribunal Eswatini (RATE), what is your professional background?
A: My name is Nelisiwe Hlophe, I hold an LLB from the University of Pretoria, and an LLM, Masters in Tax Law from the University of South Africa. Previous positions I held include being the Assistant Registrar of the Supreme Court of Eswatini where I served under the late Chief Justice (CJ) Michael Ramodibedi. I was then promoted by the Judicial Service Commission under the current CJ, Bheki Maphalala where I became a Magistrate in Manzini Magistrate Court from 2017 to 2021. I am also a part-time lecturer at the University of Eswatini where I teach postgraduate in taxation.
Q: Give us a background of the establishment of the Tribunal.
A: The Revenue Appeals Tribunal Eswatini was established under Section 3 of the Revenue Appeals Tribunal Act, 2019 and is mandated to hear and determine appeals from decisions of the Commissioner General. The Tribunal presides over and makes determinations for Tax Appeals that are brought before it by the taxpayers otherwise aggrieved by any assessment, determination, decision or ruling by the Commissioner General of the Eswatini Revenue Authority. Any person dissatisfied or aggrieved with the decision of the Commissioner General relating to assessments, directions or determinations has a right to appeal against that decision with the Tribunal.
Q: Why was the establishment and existence of the Tribunal so important?
A: The primary reason behind our establishment was to get rid of the backlog of tax-related cases. Before we came into operation tax cases were mainly heard by the High Court of Eswatini. That presented a challenge, as the High Court deals with many cases such as criminal cases, among others. Tax cases, however, need to be dealt with quicker because they affect the country’s fiscus and individual taxpayers as in certain cases their business operations come to a halt due to a pending case. Without a higher structure or mechanism to preside over and determine the correct interpretation and application of any tax law on appeal, the relationship between the two equally important stakeholders would descend to acrimony and lead to the unnecessary demonization of the tax collection process.
Q: Does the Tribunal hear all types of tax-related issues, and is there a threshold for those willing to appeal?
A: Our Act stipulates that we hear all tax types related cases. These include income tax, value-added tax (VAT), Customs, and any form of tax-related matter. It is advisable, however, to weigh the matter against the costs, as appealing to the Tribunal attracts costs. It is also important to clarify that we do not only hear business-related cases but also cases lodged by individuals. There is no threshold, taxpayers can appeal for any amount.
Q: You mentioned earlier that lodging a case attracts costs. What are the fees associated with lodging a case?
A: Firstly, I am happy to say that the fees we charge are among the cheapest in the region. When we benchmarked against countries in the Southern African Development Community (SADC) in terms of fees, we found out that their fees are high and that is caused by the fact that they treat their Tribunals as courts. As it stands applying to the Tribunal costs E1 800. Worth noting is that this is not the final amount as the costs can escalate.
Q: In terms of adjudication, who decides on a matter?
A: The Tribunal consists of seven members, who have different expertise. The members are experts in different fields and represent various sectors of the economy. You will appreciate that tax is quite complex, as a result, matters cannot be determined by legal professionals only. This is why we have experts from various fields. To be precise, our panel comprises seven members, two of them are auditors, three are lawyers, and two are representatives from the community. Now, these are the members that hear and determine a matter.
Q: Is there a provision for a further appeal if either the taxpayer or the ERS is not satisfied with a judgement from the Tribunal?
A: The decision issued by the Tribunal is final, but the Revenue Tribunal Act of 2019 does give a right for those not happy with the judgement of the Tribunal to approach the High Court, and also proceed to the Supreme Court if they are not happy with the judgement from the former. It is important to emphasize that even though the Act gives provision for a party not happy with a decision to further appeal, the decision from the Tribunal is Final, as either the taxpayer or ERS must comply with the judgement issued by the Tribunal.
Q: Walk us through the process of appealing by a taxpayer, how long does it take?
A: The whole process takes three months and I will explain why that is the case. A taxpayer who is not satisfied by any assessment, ruling or decision by the Commissioner General may appeal to the Tribunal within 30 days of receipt of the Commissioner General’s decision. The second phase entails the Tribunal preparing its papers to then serve the ERS, this process also takes 30 days. It also takes a further month to set up the Tribunal seats who then hear the matter. This turnaround period is a major improvement as before the Tribunal was established, these cases would take years in certain instances just to be heard. The issuing of a judgment depends on each case. We must afford each matter the weight and importance it deserves.
Q: Since your establishment how many cases have been lodged and how many have been concluded?
A: A total of 20 cases have been lodged since we started operating in 2021 and a total of 10 cases have been concluded with judgements. It is worth mentioning that most of the cases that are lodged carry huge financial implications, as a result, they cannot be rushed. We, however, foresee an increase in the number of cases going forward, as more people are enquiring about our services. They are not necessarily lodging appeals, but we have noted an increase in enquiries.
Q: In terms of representation, who is eligible to represent an aggrieved taxpayer?
A: An aggrieved person can be represented by anyone, as long as that person has Power of Attorney. The Tribunal does not question the representative’s academic qualifications or professional background.
Q: The Tribunal is a relatively new organization, what challenges have you come across since you started operating?
A: There are several challenges that we have faced and continue to encounter. The most pressing issue is the perception that the Tribunal is a wing or an umbrella organization of the Eswatini Revenue Service. To dispel that notion we have to educate emaSwati and spread awareness about the functions and role of the Tribunal. We have a responsibility to sensitize the nation and make them aware that we are a stand-alone impartial entity. EmaSwati must be aware that we receive a full subsidy from the government of Eswatini, and no funding from the ERS.
This is why the Tribunal must be fair and impartial to all parties, being the taxpayer and the ERS. We believe and hope that aggrieved taxpayers who have dealt with us will also send a positive message to others on the role and function that we play. The judgements we issue must be unappealable at the High Court to help strengthen our credibility.
The other major challenge we have is a lack of personnel. We currently have 10 permanent employees, which is not sufficient for the work we do. We need specialists in-house, people who will provide expertise when analysing and researching specific cases, as this will help give the Tribunal a guide. We would also urge the Minister of Finance to allocate 3 substantive members to join the Tribunal panel. These 3 members should always be available as that will help in determining cases quicker. The 3 must be from the Legal, Accounting and Auditing professions respectively.
Q: Finally, what are the future aspirations of the Tribunal?
A: The Tribunal is currently located in Mbabane, Swazi Plaza, yet, we would certainly like to grow and spread more awareness about what we do, and to do that, we believe that we must be present in all regions of the country. For that to take place, we need to have offices all over the country as the work we do needs to be decentralized.
Q: Nelisiwe, thank you very much for your time and insight.
A: It has been a pleasure, and I hope that aggrieved taxpayers get to understand what we are about more after reading this article.