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Last Updated: 7 December 2004
REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case Number : 294 / 03
In the matter between
WESTERN
PLATINUM LTD APPELLANT
and
THE COMMISSIONER
FOR SOUTH AFRICAN
REVENUE
SERVICE RESPONDENT
Coram : SCOTT, MTHIYANE, CONRADIE,
HEHER and VAN HEERDEN JJA
Date of hearing : 17 AUGUST
2004
Date of delivery : 27
SEPTEMBER 2004
SUMMARY
Income Tax -
attributes of income from mining operations capable of being set off by taxpayer
against mining capital expenditure
– when interest receipts qualify as
mining
income.
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
CONRADIE JA
[1] The fiscus favours miners and farmers. Miners are permitted to
deduct certain categories of capital expenditure from income derived from mining
operations. Farmers are permitted to deduct certain defined items of capital
expenditure from income derived from farming operations.
These are class
privileges. In determining their extent, one adopts a strict construction of
the empowering legislation. That is
the golden rule laid down in Ernst v
Commissioner for Inland Revenue 1954 (1) SA 318 (A) at 323C-E and approved
in Commissioner for Inland Revenue v D & N Promotions (Pty) Ltd 1995
(2) SA 296 (A) at 305A-B.
[2] The appeal and cross appeal before us are
from a decision of Cloete J sitting in the Gauteng Income Tax Special
Court.[1] They require us to decide
in what circumstances interest may be characterized as ‘income derived by
the taxpayer from mining
operations’. The fiscal importance of
determining the derivation of this kind of income lies in s 15(a) read
with s 36(7C) of the Income Tax Act 58 of 1962 (‘the
Act’).
[3] Section 15(a) permits the deduction of capital
expenditure by a miner in these terms:
‘There shall be allowed to be deducted from the income derived by the taxpayer from mining operations –
(a) an amount to be ascertained under the provisions of section 36, in lieu of the allowances in section 11(e), (f), (gA) and (o).’
[4] Section 36(7C) supplements s 15(a) by providing that -
‘Subject to the provisions of subsections (7E), (7F) and (7G), the amounts to be deducted under section 15(a) from income derived from the working of any producing mine shall be the amount of capital expenditure incurred.’
Section 36(7E) limits the deduction to amounts
of capital expenditure that do not exceed the taxable income ‘ ... derived
by
the taxpayer from mining ...’ but permits any excess to be carried
forward and to be deemed to be an amount of capital expenditure
incurred during
the next succeeding year of assessment. Section 36 (11) then sets out in detail
what items of capital expenditure
qualify for deduction.
[5] Section
15(a) speaks of ‘mining operations’ and s 36(7E) simply of
‘mining’. In terms of s 1 of the Act, they mean the
same:
‘Mining operations’ and ‘mining’ (unless the context
otherwise indicates)
‘ ... include every method or process by which any mineral (including natural oil) is won from the soil or from any substance or constituent thereof.’
The definition leaves scope for physical
operations outside the winning of minerals from the soil to be regarded as
mining; indeed,
it was common cause that the refining of excavated minerals is
included in the concept.
[6] Mining operations by themselves cannot
produce income. However, the definition of ‘mining’ and
‘mining operations’,
being context-dependent, is capable of
accommodating commercial transactions. Since there can be no derivation of
income without
commercial activity we are entitled to read that into the
definition.[2] In the case of minerals
or metals from a mine such an income-producing transaction would commonly be a
sale. One would therefore,
at least, have to interpose a sale (and the
associated delivery and payment) between the extraction of the minerals and the
income,
thus postulating a business. I am nevertheless unable to accept the
argument for the appellant that the Act contemplates as the
source of the income
the mining trade carried on by the appellant. In order to derive income a
taxpayer must generally carry on a
trade, but that is not to say that the trade,
although it is a sine qua non of the trading income, is its source.
Cases such as Sekretaris van Binnelandse Inkomste v Olifantsrivierse
Koöperatiewe Wynkelders Bpk 1976 (3) SA 261 (A) and Income Tax
Case 1420 49 SATC 69 and Commissioner for Inland Revenue v Zamoyski
1985 (3) SA 145 (C) which held that mining or farming is a trade therefore
do not advance the enquiry. Section 36(7C) of the Act
speaks not of
‘mining’ or ‘mining operations’ but of ‘... income
derived from the working of any producing
mine.’[3] This expression
(arguably more focused than the expressions ‘mining’ and
‘mining operations’) leaves no doubt
that to be mining income its
source must be minerals taken from the earth. This was the view correctly taken
by the full court in
Commissioner for Inland Revenue v BP Southern Africa
(Pty) Ltd 1997 (1) SA 375 (C) when it said that –
‘Properly construed, in the context of the Act and the Schedule, the phrase “income derived from mining operations” means income derived from the business of extracting minerals from the soil ...’ (at 379C-D).
The court used this formulation to point the difference between
the derivation of income from working a mine and the derivation of
deemed
income that accrued to the respondent from the sale of its interest in a mine.
[7] The appellant did not challenge the finding of the court a quo
that in order to qualify as mining income, the income had to be directly
connected to the mining source. ‘Directly connected’
is an
expression from the judgment of the lower
court[4] adopted by this Court in D
& N Promotions (at 306C-D).
' " ... the income and the source from which the income arises, namely farming operations, which of course embraces numerous agricultural activities, must be directly connneted. An indirect connection or a remote one will not suffice." '
It was held that interest on the price of sugar cane delivered
by a farmer to a miller was income directly derived from farming operations.
The interest was designed to compensate the farmer for the miller’s
retention during the year of the difference between the
final price and the
provisional price paid for the sugar cane: it was ‘part and parcel’
of the final price, no more than
additional remuneration.
[8] On the
other hand, interest on a payment received by the farmer from the SA Sugar
Association to compensate it for a newly imposed
obligation to bear the full
costs of transport of cane to the mill, was held to fall ‘outside the
general ambit of the [farmer’s]
income-earning operations from sugar
farming’ (308H-I) in the same way as it would have done
‘[i]f the capital sum had been paid in one lump sum and such moneys invested with or loaned to another institution...’ (at 308F-H).
The compensation paid by statutory authority under the Sugar Agreement promulgated in terms of the Sugar Act of 1978 was assessed in a lump sum but paid in instalments. In a passage from the judgment of the special court[5] quoted with approval by Corbett CJ (at 308E-H) the following approach was adopted:
‘It is clear that the interest was derived from a capital sum due to the appellant retained by the SA Sugar Association. It was interest accruing on either a compulsory investment of a fixed amount by the appellant with the SA Sugar Association or on a compulsory loan of this amount to the SA Sugar Association. If the capital sum had been paid in one sump sum and such moneys invested with or loaned to another institution, it is clear that such interest would not have been regarded as being derived from farming operations. In our view the position is not altered by the fact that such investment or loan was not effected voluntarily but compulsorily.’
The line of
reasoning is straightforward and, adapted to this case, leads to the conclusion
that income which is directly connected
to a mining source qualifies as mining
income; an intermediate investment of such income, putting it to work as
capital, generally
breaks the direct
connection.[6]
[9] The
appellant’s counsel suggested that any income flowing from the
trade of mining would be sufficiently closely connected to the mining
operations to qualify as mining income. Counsel for the respondent
on the other
hand contended that only the proceeds of the sale of minerals would be
sufficiently closely connected to the mining operations (the extraction and
refinement of the minerals) to be
properly characterised as mining
income.
[10] The appellant’s approach is too generous; the
respondent’s on the other hand is too narrow. Direct connection is
a
flexible concept. Its application does not inexorably lead to the
categorisation of any income item other than the price itself
as only indirectly
or remotely connected with the mining source. A good example of this is an
insurance payment, which, replacing
mining income, has itself been held to be
mining income. An insurance indemnity takes on the character of the amount that
would
have been received had it not been for the occurrence of the insured event
(see Income Tax Case 597 14 SATC 264 and the cases discussed therein). If
the amount lost is of a revenue nature an insurance receipt is regarded as
‘filling
the hole of income’ and is also revenue. The question in
Income Tax Case 1572 56 SATC 175 was whether this income, when it
replaced mining income (that would have been earned had it not been for a
machinery
breakdown) was also mining income. The court held that the connection
of the insurance payment (an income receipt) with the lost
mining income was
sufficiently direct to qualify it as mining
income.[7]
[11] The appellant
maintains that certain interest items in its financial statements formed part of
its income derived from mining
operations. Cloete J analyzed the various
sources of the interest income and concluded that some items derived from mining
operations
whereas others did not. In conducting this exercise he asked himself
whether the interest could be said to have been derived directly
from the mining
operations or could more properly be said to have been derived from the capital
employed to produce it.
[12] Current bank accounts, of which there were
several, were managed in terms of a cash management system (CMS) operated by
arrangement
with the appellant’s bankers and producing over the tax years
in question interest of R1 776 187. The special court
described the system
thus:
‘If the total amounts overdrawn on all the accounts managed by the management company (those of the appellant and those of the other companies in the group) exceeded the amounts in credit, the banks charged the overdraft rate on the amounts in debit and paid interest at the overdraft rate on the amounts in credit. The nett effect was therefore that the bank charged interest at the overdraft rate on the nett amount in debit.
If the total of the debits exceeded the total of the credits, the position was somewhat different. The bank paid overdraft interest on the total of the amounts in credit, but only on an amount equal to the total of the amounts in debit. On the nett excess credit the bank paid only the deposit interest rate, which was lower than the overdraft rate. The nett effect to the bank was therefore that it paid interest at the deposit rate to the companies on the total nett amount in credit. However, to alleviate administrative difficulty, the management company made up the shortfall between the overdraft and the deposit rate on this total nett credit.’
[13] The management company’s commitment to making up the
interest shortfall could, of course, impose a considerable burden
on it. It
therefore tried to eliminate credit balances as far as possible by investing any
surplus overnight in the money market.
Interest received on overnight money lent
to South African banks in this manner came to R13 868 980. The special court was
of the
view that the placing of money on overnight call was an investment
decision that altered the character of the interest from mining
to investment
income. I agree. The interest was taken out of the mining income stream.
[14] The Commissioner challenges the special court finding that, since
money in an banking account would invariably attract interest,
and the keeping
of a banking account was indispensable to the operation of the mine,
‘ ... the interest earned as a necessary concomitant of the operation of those accounts is mining income.’
[15] If the current accounts had simply been repositories of the
proceeds of metal sales and interest were earned on credit balances
so that such
interest was the result of an (inevitable) disequilibrium from time to time
between outgoings from that account and
mining income paid into it, the
connection between the interest and the mining source would be direct. Interest
so earned could
therefore be regarded as a necessary concomitant of the mining
operations. The facts here do not, however, support such a conclusion.
The
accounts were manipulated in the manner described by the judge a quo. The
management of the accounts of the whole group comprising twenty-six companies
(and the intervention of the management company)
meant that the appellant
received from the banks, or from the banks subsidized by the management company,
the overdraft rate of interest
on its credit balances, a rate that it would not
have received had it not been for the CMS. The scheme was obviously conceived
to
maximize the group’s interest income. It was, in essence, an
investment scheme. The decision to manipulate the accounts broke
any direct
connection that the interest may have had with the mining
source.
[16] Interest on money in foreign bank accounts for the tax years
1992 to 1997 came to R2 166 179. Proceeds of off-shore mineral sales
were paid
into foreign bank accounts conducted by the appellant for the convenience of its
overseas customers. The evidence for the
appellant was that this money was
transferred to South Africa with a brief delay either because it was not
possible to transfer it
on the same day or because the appellant preferred to
transfer rounded amounts rather than specific deposits. In this way interest
accrued on (short term) credit balances in the accounts. That was the position
up to the 1994 year of assessment and the special
court found that the interest
had until then been earned in the ordinary course of marketing the
appellant’s metals.
[17] The Commissioner contends that the
appellant failed to discharge the onus of proving that the monies were
not allowed to remain overseas for the purpose of earning income or deriving
foreign exchange benefits
and in any event argues that interest earned in this
way was investment income, the fruit of capital derived from the
appellant’s
metal sales. It is not readily apparent why in an era of
electronic transfers money in the overseas accounts could not have been
transmitted as soon as it had been received. It might have had something to do
with different banking hours in this country and overseas
or perhaps with time
zone differences but that is speculation. The appellant laid no factual
foundation for its assertion that deposits
could not be transferred on the same
day as they were received. The appellant’s unexplained preference for
receiving rounded
amounts is, on the evidence before us, too quirky to carry
conviction; in any event, a decision to wait for rounded amounts to be
made up
(to leave money in an account until the happening of a specified event) is in
itself a conscious investment decision. In
my view the appellant has not
discharged the burden of proving that this interest income was directly
connected to the mining operations.
[18] From September 1994 the
appellant arranged with the overseas banks to place sale proceeds on overnight
call before transferring
them to the appellant’s head office account in
South Africa. The delay in the transfer of the money was no greater than before
but the interest earned increased by one percent. This interest was a
fortiori not classifiable as income from mining operations.
[19] There were two overseas accounts exhibiting different features.
They were the so-called escrow accounts held at the Hypobank
and the Bayerische
Vereinsbank in Germany. As part of the security arrangements for long-term
loans to the appellant customers were
obliged to pay the price of metals
purchased from the appellant into these accounts so that the banks might lay
claim to the funds
if the appellant failed to comply with its obligations to
them. Although the banks released funds on a daily basis monies inevitably
remained in the accounts for short periods where they earned interest totalling
R239 501 at rates equivalent to that earned on the
off-shore current accounts.
[20] The court a quo concluded that since this interest arose
from receipts held by the two foreign banks as part of the security for loans to
enable
the appellant to mine there was a direct connection between the interest
earned and the operation of mining. I agree. The interest
was the unavoidable
result of the way in which the scheme for the remuneration of the appellant had
been devised. It was not entitled
to be paid the price for its metals except in
accordance with its financing arrangement with the banks. The interest earned
on the
escrow accounts is part and parcel of the appellant’s mining
operations; it exhibits the direct connection with those operations
that
qualify it as mining income.
[21] On four occasions during the tax years
in question the appellant lent money on fixed deposit. Two of the loans were to
Lonrho
Management Services: the interest totalled R2 686 478. Two further loans
on which the interest came to R3 073 389 were made
to other institutions.
The appellant’s counsel submitted that the placing of money on short term
fixed deposit could not be
regarded as an independent trade carried on by the
appellant. I agree with the submission, but it does not answer the essential
question
of whether there was a direct link between the interest derived from
the investment and the mining operations carried on by the appellant.
The
question of how to treat the investment of surplus income was settled in D
& N Promotions. Whether funds are invested over the short or the long
term the interest is properly characterized as investment income not directly
connected to a mining income source. The Commissioner succeeds on this
issue.
[22] The court a quo held that interest (amounting to R4
614 125) accruing by virtue of an agreement under which a customer undertook to
pay interest
if it paid late was derived from the appellant’s mining
operations. Mitsubishi, one of the appellant’s principal customers,
was by
agreement charged a favourable rate of interest for a short period if it failed
to pay for metal sold to it on due date; thereafter
it was charged ordinary
interest. The Commissioner contends that the interest so received was not income
derived from mining operations.
The appellant should, he says, have adjusted the
price to take account of the extended period for payment: had it done that, the
income would have been mining income. In making this submission the
Commissioner sees the income stream from mining operations too
narrowly. The
interest was part and parcel of the income stream; under the prescribed
circumstances it augmented the income stream
in exactly the same way as an
increase in the purchase price would have done but it did so in a more flexible
and commercially sensible
way. I do not consider that the directness of the
derivation of this income from the mining source can be doubted.
[23] In
terms of the General Export Incentive Scheme in force at the time the appellant
became entitled to incentives on the export
of two base metals, nickel sulphate
and copper cathodes. The export incentives were calculated according to a
formula Z = U x (M
plus or minus E) x P in which Z was the value of the benefit
payable under the scheme, U was the export sales value of the exported
product,
M the manufacturing level factor, E the exchange rate factor and P the local
content factor. Larger incentives were paid
by the Department of Trade and
Industry by way of promissory notes on which interest became due. It is common
cause that for the
tax years in question (1992 and 1993) the incentives were tax
exempt under the now repealed s 10(1)(zA) of the Act but that the interest
was
not. The only dispute is whether the interest, amounting to R421 163, is
mining or non-mining income.
[24] It is not necessary to know precisely
how the formula worked. The point is that it was devised to augment an
exporter’s
income. The promissory notes were issued for varying periods
depending on the department’s budget and its ability to pay the
notes.
The interest was intended to compensate exporters for deferred payment, very
like the interest paid by Mitshubishi for late
payment, and incontestably part
and parcel of the purchase price. I agree with the special court that there was
a direct connection
between the mining source and the export incentive interest.
[25] The final three items in dispute are all concerned with refunds by
the Commissioner of tax or mining rental on which he was in
terms of s 88(1) of
the Act obliged to pay interest. The similarity between the second situation
dealt with in the D & N Promotions case and these three items of
interest is that money due to the taxpayer was retained by government action and
later repaid with
interest. For the purpose of determining the derivation of
the interest there is no difference in principle between the retention
of money
by the Sugar Association and the retention of money by the fiscus. In
either case the retention of the money can be equated with a compulsory loan,
the interest on which, as explained in para [8],
is not derived from a farming
or mining source.
[26] For the 1989 year of assessment the appellant
claimed a deduction of R23 758 447 in respect of capital expenditure
and paid its provisional tax on the footing that the deduction would be allowed.
When the deduction was disallowed[8]
the appellant had to pay more provisional tax and also, in terms of
s 89quat(2) of the Act, had to pay interest on the difference
between the provisional payment and the tax as assessed.
[27] An appeal
against the disallowance of the appellant’s objection to the assessment
was later conceded by the Commissioner
who during the 1994 year of assessment
refunded to the appellant R10 697 186,64 plus the interest of R2 559 318,15
that it had
been obliged to pay on that amount; moreover, in terms of s 88(1) of
the Act the Commissioner paid the appellant interest of R7 044 140,62
on these overpayments – interest that the appellant claims is part of its
mining income.
[28] Apart from the considerations referred to in
para [8], a tax is an impost on income; it has none of the attributes of
revenue.
By virtue of the statutory intervention that allows the imposition of
the tax it is already one level removed from the mining income
on which it is
imposed. The refund of the tax occurred after procedures to secure that result
had been adopted by the appellant so
that the refund was two levels removed from
the mining income. The interest that the Commissioner was statutorily obliged
to pay
on that refund is another level away. Its connection with the mining
income is tenuous. It did not flow from the appellant’s
mining operations:
it would have been payable whatever the source of the income on which tax had
unjustifiably been imposed.
[29] The court a quo was correct in
finding that ‘ ... the fact that the earning of the mining income was a
sine qua non for the payment of the tax which was paid, does not provide
a sufficiently direct causal link between the interest paid on the refund
of the
tax and the actual mining operation.’
[30] The downward revision of
the appellant’s tax liability following on the allowance of the capital
expenditure meant not
only that it owed the Commissioner of Inland Revenue less
in tax but also that it owed the Commissioner of Mines less in rental.
[31] The appellant mined precious minerals under a mining lease in terms
of the Mining Rights Act 20 of 1967 (now largely replaced
by the Minerals Act 50
of 1991). The rental under the lease was calculated on the appellant’s
annual profit in the same manner
as its taxable income from mining operations
was determined under the Income Tax Act. When the Commissioner disallowed the
deduction
claimed by the appellant its taxable income increased and so in
consequence did the rental on its mining lease, from R8 712 270 to
R12 134 512. The appellant was required to pay the difference of R3
422 242 to the Commissioner pending the resolution
of its dispute with the
Revenue.[9] Since the rental was paid
later than the appointed day the appellant paid interest of R1 107 623,52
for the period of the delay.
As a result of the revised assessment, these
amounts were repaid to the appellant together with R2 323 620 in
interest.
[32] The direct cause of the payment of the interest was the
reversal by the Commissioner of an earlier decision not to allow certain
capital
expenditure as a deduction. The interest was paid as compensation for the
Commissioner’s wrongful detention of these
amounts. The repayment has
much more to do with the complexities of the tax regime under which the
appellant carries on its mining
trade than with the extraction of minerals from
the soil. For these reasons and for the reasons stated in para [8] the interest
cannot
be characterized as mining income.
[33] In 1990 the appellant
through a share issue to Impala Platinum Holdings acquired the Karee Mine owned
by one of the latter’s
subsidiaries. This was a developing mine situated
on land adjoining the Western Platinum mine. Capital expended by the appellant
on the development of the Karee mine could not be set off against mining income
earned from the Western Platinum mine since s 36(7F)
of the Act prohibited
such a set-off unless the Minister of Finance permitted it.
[34] Between
the acquisition of the new mine in 1990 and the grant of permission by the
Minister in 1992, the appellant had paid provisional
tax on the basis of the
then existing separate taxation regime. The appellant’s 1992 assessment,
based on the joint taxation
of the two mines, entitled it for the 1990 tax year
to a refund of R43 000 700 of provisional tax together with interest This
interest,
payable by the Commissioner in terms of s 88(1) of the Act, came to R4
827 353. The appellant contends that the interest should
be classified as
mining income.
[35] The tax refund flowed from a decision of the
government to adjust the law relating to the ring fencing of the two mines in
such
a way that the appellant was able to deduct from its mining income greater
capital expenditure than it was formerly permitted to
do. This resulted in a
reduction of its mining income and led to the tax refund together with interest.
For the reasons stated above,
the interest on the tax refund was only remotely
connected with the mining source of the income. I agree with the judge a
quo in this regard.
[36] The special court did not issue an order in
respect of each of the items of interest. It simply referred the matter back to
the Commissioner to issue revised assessments in terms of its findings. The
special court's order therefore stands but revised assessments
will of course
have to be issued in accordance with the findings as adjusted on appeal. It is
necessary to identify the findings
on which each of the parties has been
successful in order to arrive at a just costs order.
1 The Commissioner has succeeded in having the following findings of the income tax special court overturned-
(a) that interest earned by the appellant by virtue of its participation in the cash management scheme is mining income;
(b) that interest earned on foreign current banking accounts is mining income;
(c) that interest on the refund of mining lease rentals is mining income.
2 The Commissioner has succeeded in having the following findings of the income tax special court upheld –
(a) that interest earned on money placed on overnight call is not mining income;
(b) that interest on fixed deposits is not mining income;
(c) that interest on tax refunds is not mining income;
3 The Commissioner has failed in his attempt to have the following findings of the income tax special court overturned –
(a) that interest on late payments by a customer of the appellant is mining income;
(b) that interest on escrow accounts is mining income;
(c) that interest on export incentives is mining income.
The overall
result is that none of the appellant’s attacks on the findings of the
special court has succeeded. The Commissioner
on the other hand has successfully
attacked the findings of the special court mentioned in 1(a) – (c). It
seems to me that
this substantial success merits an award of costs in this Court
which is to include the costs of two counsel.
1 The appeal is dismissed.
2 The cross-appeal succeeds to the extent set out in para [36]
1(a) – (c) above.
3 The appellant is to pay the respondent’s costs of the appeal and the cross-appeal which include the costs of two counsel.
J H CONRADIE
JUDGE OF APPEAL
CONCURRING:
SCOTT
JA
MTHIYANE JA
HEHER JA
VAN HEERDEN AJA
[1] Reported as Income Tax Case
1753 65 SATC 310 and as Case no 10678 2003 JTLR 117
(WSpCrt).
[2] Two decisions of the
Canadian Federal Court of Appeal espouse the approach that the operation of a
mine is an economic, not a metallurgical,
concept: Falconbridge Nickel Mines
Ltd v Minister of National Revenue 72 DTC 6337; Westar Mining Ltd v The
Queen 92 DTC 6358.
[3] The
word ‘producing’ was inserted in section 36(7C) by s 29 of Act 113
of 1993 with effect from the years of assessment
ending on or after 1 January
1994.
[4] The decision is
reported as CIR v D&N Promotions (Pty) Ltd 1993 (3) SA 33
(N).
[5] Reported in ITC 53 1505
SATC 406.
[6] Where a portion of a
farm was put to use as an investment the rental was held not to be income from
farming operations: ITC 732
18 SATC 108.
[7] ITC 65 1753 SATC 310.
Interestingly, this was also the conclusion of the Canadian Federal Court of
Appeal on a similarly worded provision
in Westar Mining Ltd v The Queen
92 DTC 6358.
[8] A small
portion of the expenditure was allowed in a later year of
assessment.
[9] The
Commissioner had in terms of the lease and s 26(7) of the Mining Rights Act,
1967 the same power to exact payment of rental and
interest thereon as he had to
exact payment of income tax and interest thereon in terms of the Act.
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