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[2017] ZAGPJHC 243
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BCE Food Service Equipment (Pty) Limited v Commissioner for the South African Revenue Service (27898/2015) [2017] ZAGPJHC 243 (12 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 27898/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the review application of:
BCE
FOOD SERVICE EQUIPMENT (PTY)
LIMITED
Applicant
and
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICE
Respondent
Coram:
WEPENER J
Heard:
31 August 2017
Delivered:
12 September 2017
Summary:
Customs and Excise. Review of determination
made by Commissioner. Such distinct from appeal procedure provided
for in Customs and
Excise Act, the latter which does not oust a
common law review. Condonation for the late filing of a review
granted when not opposed
on any factual basis. Review of decision or
determination subject to ordinary principles of review. In order to
rely on the ground
that the decision maker failed to furnish any or
inadequate reasons an aggrieved person should utilise the provisions
of s 5(1)
of PAJA, unless 5(5)(6) applies and the automatic
furnishing or reasons is applicable.
JUDGMENT
WEPENER
J:
[1]
The applicant seeks to review a decision of the respondent. The
applicant elected not to pursue any rights that it may have
had to
appeal the decision under s 47(9)(e)
[1]
of the Customs and Excise Act.
[2]
There are four questions to be answered: if such review is competent,
should the applicant be granted an extension of time to launch
the
review in terms of s 9(2) of PAJA,
[3]
it having commenced review proceedings some months after the period
prescribed by PAJA for such proceedings to be instituted, having
lapsed.
[4]
The next question is
whether review proceedings are competent, and whether the decision of
the respondent falls to be reviewed,
and if so, whether to replace
the respondent’s decision or refer the matter back for
reconsideration.
Delay
[2]
There is no issue that the applicant exhausted all its internal
remedies. What it did not do was to institute these proceedings
within the 180 days after the relevant date when the internal remedy
was concluded and the decision given. The last internal remedy
pursued by the applicant was a second internal administrative appeal.
This was concluded by 22 April 2014. The one hundred and
eighty day
period provided for in s 7(1)(a) of PAJA within which proceedings to
review the adjudication are to be instituted, expired
on 18
October 2014. The review application was launched on 20 April 2015, a
few months later. Counsel for the applicant,
correctly in my view,
submitted that the question whether it is in the interests of justice
to condone a delay depended entirely
on the facts and circumstances
of each case.
[5]
The explanation
furnished by the applicant, brief as it may be, is set out in some
detail.
[6]
The first ground
calls for a value judgement as to what is ‘not excessively’
late. The respondent elected not to answer
the factual allegations of
the applicant in its answering affidavit by attempting to force the
applicant’s case into an appeal
under s 47(9)(e) of the Customs
and Excise Act. The respondent was content to say that a tariff
appeal was instituted within a
year from the date of the termination
of the alternative dispute resolution process and that indeed, the
proceedings in this court
were launched within one year from the date
in compliance with the provisions of the Customs and Excise Act.
In heads of
argument it is stated thus:
‘
In the premises the present
application was instituted timeously’.
The
refusal of the respondent to accept that the applicant sought a
review and its insistence that these proceedings are appeal
proceedings in terms of s 47(9)(e) has led it to a misguided approach
to the matter. Be that as it may, the allegations made by
the
applicant in support of the order extending the time period for the
launching of these proceedings are uncontested and indeed
the
respondent was content to deal with the matter. It does not allege
any prejudice to it, should the matter be heard and finalised.
The
respondent’s confusion as to whether the matter was an appeal
in terms of s 47(9)(e) or a review in terms of PAJA, appears
in para
1 of its heads of argument as follows:
‘
The applicant instituted a
review application in terms of which the honourable court is asked to
review and set asset aside a tariff
determination made by the
respondent on 18 March 2011 in terms of the provisions of section
47(9)(a) of the Customs and Excise
Act, 91 of 1964, the tariff
determination and the Act’.
The
respondent finally appreciated that it was indeed a review
application despite persistently referring to s 47(9)(e) of the
Customs And Excise Act.
[3]
The respondent consequently half-heartedly appreciated that the
applicant was indeed seeking a review of its decision. It was
then
argued that the review proceedings were not available to the
applicant and that the applicant’s remedy was limited to
one in
terms of s 47(9)(e), ie, an appeal as is provided for in the section.
[4]
What stands out in the application for an extension of time are three
factors which, in my view, sways a decision to grant the
extension of
time to the applicant. Firstly, the respondent did not contest the
allegations set out by the applicant, neither in
its answering
affidavit nor in heads of argument (of which three versions were
filed before this court). Secondly, it is not disputed
that there is
no prejudice to the respondent should the extension of time be
granted. This is so as a result of the fact that the
respondent was
of the view that the ‘appeal’ was indeed brought within
the time limits authorised by the Customs and
Excise Act. Having
regard thereto, the application was not launched excessively late.
Thirdly, it is uncontested that the
outcome of the application
is not only relevant to the past consignment of toasters imported by
the applicant, but due to its intention
to continue importing the
items with the result that the respondent’s classification will
continue to impact on the applicant’s
imports in the future.
This too, is an undisputed fact. The applicant explained its failure
to act immediately. The applicant’s
failure to fully set out
each and every detail in regard to its delay during February 2015 is,
in my view, when weighed up against
the uncontested evidence,
insignificant if regard is had to the fact that the future imports by
the applicant will be affected
by the classification or determination
made by the respondent. It is therefore in the interests of justice
that the time period
provided for in PAJA be extended to the date
when these proceedings were instituted.
[5]
When the applicant served its replying affidavit upon the respondent,
instead of serving it upon the respondent’s attorney,
it was
served upon the respondent at its offices. When this was discovered
the applicant served its replying affidavit on the respondent’s
attorney, albeit several months later. The initial service effected
directly upon the respondent due to an inadvertence led to
no
prejudice to the respondent and none was argued to exist. In the
circumstances I grant condonation for the late, if it was indeed
late, filing of the replying affidavit.
Review
or appeal
[6]
Despite initially ignoring the applicant’s sole reliance on
review procedure, the respondent eventually submitted argument
that
such procedure is not available to the applicant and that the
applicant was bound to utilise the appeal procedure provided
for in s
47(9)(e) of the Customs and Excise Act. It is common cause that the
determination by the respondent constitutes administrative
action –
the respondent conceded so much in its heads or argument and during
argument in court.
[7]
I need
therefore not say anything further about this issue.
[7]
Section 47 bestows a right on a party, which right would not have
existed but for the provisions of the section. There is no
common law
or other legislative provisions which an aggrieved party could employ
in order to challenge a determination of the respondent,
save of
course for a common law review or the provisions of PAJA. There is no
indication in the Customs and Excise Act that the
provisions of PAJA
have been ousted and that an aggrieved party is limited to the appeal
procedure provided for in that Act. The
test is whether the
legislation obliges and restricts an aggrieved person to utilise the
remedy provided for in that legislation.
[8]
No such construction can be placed on s 47 of the Customs and Excise
Act and there is no language contained in the Act that leads
to a
conclusion that the legislature has confined a complainant to the
particular statutory remedy. The decisions on which the
respondent
relied during argument
[9]
in
support of the contention that a party may not utilise the provisions
of PAJA, do not say that and it would have been surprising
if they
did deprive an aggrieved person of the rights afforded him or her in
terms of PAJA and the Constitution.
[10]
Kriegler J said as follows:
[11]
‘
It
is important to have clarity about the effect of the mechanism
created by ss 33 and ss 33A of the Act. Were it not for this special
“appeal” procedure, the avenues for substantive redress
available to vendors aggrieved by the rejection of their objections
to assessments and decisions by the Commissioner would probably have
been common-law judicial review as now buttressed by the right
to
just administrative action under s 33
[12]
of the Constitution, and as fleshed out in the Promotion of
Administrative Justice Act.’
[8]
Indeed, Kriegler J was at pains to make it clear that an aggrieved
party is not limited to the remedies created in the legislation:
‘
But,
and this is crucial to an understanding of this aspect of the case,
the Act nowhere excludes judicial review in the ordinary
course. The
Act creates a tailor-made mechanism for redressing complaints about
the Commissioner’s decisions but leaves intact
all other
avenues of relief’.
The
applicant disavowed reliance on appeal procedure and all arguments
advanced by the respondent as if this an appeal and based
on the
provisions of s 47(9)(e), fall by the wayside.
Review
[9]
The decision, which is the subject of the review, is the tariff
determination of the respondent regarding toasters which the
applicant imported into South Africa. I need not refer to the history
of each step of the process as the end result of the classification
of imported goods under a tariff heading for purposes of Chapter V of
the Customs and Excise Act is the determination and administrative
action which is to be judged.
[13]
[10]
The determination complained of as being reviewable is contained in a
letter of demand of 12 July 2012, the letter of findings
dated 26
April 2012 and a tariff determination dated 17 August 2011. Although
the respondent takes a different view of what constitutes
the
determination, nothing turns on it as the issue is the fact that the
respondent declared that the toasters fall under the tariff
heading
TH8516.72 in Part 1 of Schedule 1 of the Customs and Excise Act. I
refer to this classification as tariff 8516.
[11]
After completing all the internal remedies available to it, the
applicant launched these proceedings, as it is obliged to do,
pursuant to Rule 53 of the Rules of this court. It called upon the
respondent to dispatch to the registrar its record of proceedings
together with such reasons as the respondent desires to make. The
respondent ignored the provisions of Rule 53 and filed an opposing
affidavit as if the matter is an appeal under s 47 of the Customs and
Excise Act. It nevertheless, furnished some reasons for the
determination which the applicant seeks to review, in its affidavit.
I need say little about the respondent’s submission
that it
need not have complied with the provisions of Rule 53 which,
according to its submission, has been ‘overtaken’
by more
recent legislation, being PAJA. There is no merit in this submission.
Rule 53 regulates the manner in which review proceedings
are brought
before a review court. It has not been overtaken or amended by PAJA.
One does not find any provision in PAJA where
such an overtaking can
be inferred from. PAJA and the Rules of procedure are complementary.
The failure by the respondent to furnish
a record of the decision
leaves the court with the record as set out by the applicant. This,
of course, results in that most, if
not all, of the evidence
contained in the answering affidavit attempting to force the matter
into appeal procedure, is of no value
in these review proceedings,
save that the reasons furnished by the respondent are properly before
the court. The applicant complained
that the respondent failed to
furnish reasons for the decision when it made the determination, or
at least furnished woefully inadequate
reasons. But the applicant
does not explain its own failure to call for reasons under the
provisions of PAJA.
[14]
There
is no general duty on officials to furnish reasons for every decision
without more,
[15]
thus the
enactment of the provisions of s 5(1) of PAJA which entitles one to
the right to reasons and it has not been shown that
this matter is on
the list of administrative actions which requires the automatic
furnishing of reasons.
[16]
The
failure to request reasons, in my view, disentitles the applicant to
rely on a review ground that the respondent failed to
furnish reasons
or furnished inadequate reasons in this matter per se. The
respondent’s reasons contained in the answering
affidavit and
furnished pursuant to the provisions of Rule 53, are properly before
me. They are the reasons why the respondent
arrived at the tariff
classification having regard to the legal prescripts and facts of the
matter.
[12]
The applicant’s case is that the respondent committed an error
of law;
[17]
that irrelevant
considerations were taken into account and relevant considerations
not considered;
[18]
there was
arbitrary or capricious decision making;
[19]
the decision was irrational;
[20]
and the decision was taken for inadequate reasons.
[21]
All these complaints are spelt out in the founding affidavit and the
respondent’s answering affidavit baldly denies that
the
respondent failed to comply with the prescripts of PAJA. The test
then is whether the applicant has shown that any of the review
grounds were present when the decision was made.
[13]
The applicant conducts business as an importer and distributor of
catering equipment which is sold to wholesalers and retailers
in
South Africa. The item in issue is a six-slot bread toaster. The
applicant’s classification of the toasters would allow
for it
to be imported duty free. On the customs declaration form the
applicant recorded the toaster as commodity code 8419.81.00
(1),
which I hereafter refer to as tariff 8419. On 18 March 2011 the
respondent directed that the tariff heading be amended to
tariff
8516. No reasons were given for this classification that resulted in
the applicant then being liable for a 20% rate of duty.
The applicant
objected to this tariff. On 25 March 2011 the respondent stated that
its ruling remained in force. Again, no reasons
were furnished for
this decision. The applicant instituted an internal administrative
appeal that appears to have been unresolved
although the respondent’s
view is that it was indeed resolved. On 17 August 2011 the respondent
made a tariff determination
in which it was indicated that the
correct tariff code for the toasters remained 8516. On 22 November
2011 the applicant requested
the respondent to reconsider the tariff
determination. The respondent failed to respond to the request. On 25
November 2011 the
applicant applied for alternative dispute
resolution in relation to the respondent’s tariff determination
pursuant to the
provisions of s 77I of the Customs and Excise Act. On
31 May 2012 the respondent wrote to the applicant that the National
Appeal
Committee had found that the applicant’s submissions
were not compelling and it therefore ruled that the tariff heading
8516
was applicable. No reasons were furnished for this ruling.
[14]
In the interim the respondent decided to advise the applicant that it
had contravened certain provisions of the Customs and
Excise Act due
to the applicant having declared goods under an incorrect tariff
heading. Nothing turns on this as the applicant
launched a second
internal administrative appeal. This too was unsuccessful. A follow
up alternative dispute resolution ended unresolved.
On 17 December
2014 the applicant, as it was obliged to do, addressed a notice in
terms of s 96(1)(a)(i)
[22]
of
the Customs and Excise Act of its intention to bring a review
proceeding. The applicant however, failed to request the respondent
to furnish reasons for its decision. The response by the respondent
was that it stood by its tariff determination.
[15]
In this court the applicant submitted that the tariff determination
furnished by the applicant (8419) is applicable to toasters
not for
domestic use, whilst the respondent’s determination (8516) is
for toasters for domestic use. The respondent in supplementary
heads
of argument, forwarded to my registrar shortly before the hearing,
submitted that the parties ‘misdirected’ themselves
as to
the correct classification of the toasters and that the correct
classification should be tariff 8516 for the reasons set
out in the
heads of argument. These heads can, of course, not form the reasons
for the respondent having concluded what the tariff
was when it did
make the determination. However, if a decision maker comes to the
correct conclusion even for the incorrect reason,
I am of the view
that the decision should not be reviewable as it results in a correct
decision.
[16]
This necessitates an investigation into the classification of the
toasters – if it results in tariff 8419, the respondent
is and
was incorrect in the determination. If it results in tariff 8516, the
respondent was correct despite it having failed to
give reasons for
the determination at the time of the determination.
The
analysis of the tariff to be applied
[17]
Section 47(1) of the Customs and Excise Act provides for duty to be
paid in accordance with the terms of Schedule 1 of the
Act. South
Africa is a member of the World Customs Organisation, which employs
the International Harmonized System referred to
in the Act. Part 1 of
Schedule 1 to the Act, compromising the section and chapter notes,
the General Rules for the Interpretation
of the Harmonized System and
the tariff headings, is a direct transportation of the nomenclature
of the Harmonized System.
[23]
[18]
Section 47(8)(a) of the Customs and Excise Act states the following:
‘
(8) (a) The interpretation of-
(i) any tariff heading or tariff
subheading in Part 1 of Schedule 1;
(ii) . . .
(iii) the general rules for the
interpretation of Schedule 1; and
(iv) every section note and chapter
note in Part 1 of Schedule 1,
shall be subject to the International
Convention on the Harmonized Commodity Description and Coding System
done in Brussels on 14
June 1983 and to the Explanatory Notes to the
Harmonised System issued by the Customs Co-operation Council,
Brussels (now known
as the World Customs Organisation) from time to
time: Provided that where the application of any part of such Notes
or any addendum
thereto or any explanation thereof is optional the
application of such part, addendum or explanation shall be in the
discretion
of the Commissioner.’
[24]
[19]
The relevant headings and section and chapter notes in Part 1 of the
Schedule 1 are the paramount consideration in a determination
which
classification, as between headings, should apply in any particular
case. The Explanatory Notes to a heading are
‘
merely
intended to explain or perhaps supplement [the headings and section
and chapter notes] and not override or contradict them.’
[25]
Thus,
the correct starting point is to examine the goods in relation to the
proper meaning of the headings, together with any relevant
section
and chapter notes, rather than to resort to the Explanatory Notes at
the outset.
[26]
[20]
The Supreme Court of Appeal has described the process of
classification thus:
‘
Classification as between
headings is a three-stage process: first, interpretation – the
ascertainment of the meaning of the
words used in the headings (and
relative section and chapter notes) which may be relevant to the
classification of the goods concerned;
second, consideration of the
nature and characteristics of those goods; and third, the selection
of the heading which is most appropriate
to such goods.’
[27]
[21]
In the second stage of the classification process:
‘
. . . the decisive criterion
for the customs classification of goods is the objective
characteristics and properties of the goods
as determined at the time
of their presentation for customs clearance. This is an
internationally recognised principle of tariff
classification. The
subjective intention of the designer or what the importer does with
the goods after importation are, generally,
irrelevant
considerations. But they need not be because they may in a given
situation be relevant in determining the nature, characteristics
and
properties of the goods.’
[28]
[22]
It is worth expanding on the central notion of the objective
characteristics of the goods: Light may be thrown on the
characteristics
of the articles by subjective factors; but the
principle remains that it is not the intention with which the
articles are
made nor the use to which they may be put, that
characterise the articles in question – it is their objective
to characteristics
which do so.
[29]
Also, the manner in which goods are described in advertisements
manuals and elsewhere, is irrelevant.
[23]
Applying these principles, it is to be observed that tariff heading
8419 provides for:
‘
Machinery, plant or laboratory
equipment . . . for the treatment of materials by a process involving
a change of temperatures such
a heating . . ., other that machinery
or plant of kind used for domestic purposes; . . . . ‘
The
relevant explanatory notes to tariff heading 8419, says the
following:
‘
The heading covers only
non-domestic equipment, except for the instantaneous or storage water
heaters referred to in the Explanatory
Note’.
[24]
Tariff heading 8516 provides for ‘other electro-thermic
appliances of a kind used for domestic purposes;’ and one–dash
subheadings under 8516 is ‘other electro-thermic appliances’
and the second two-dash subheading (8516) ‘other
electro-thermic appliances’ provides for ‘toasters’.
To this end the parties are in agreement. And they are in
agreement
that the final question is to establish whether the appliance is of a
kind used for domestic purposes. The respondent
submitted that by
specifically including ‘toasters’
eo nomine
in a sub-heading under heading 8516, the legislature has confirmed
that toasters are electro-thermic appliances of a kind used
for
domestic purposes.
[25]
The determination to be made is whether it is used for domestic
purposes – not whether it can possibly be used for domestic
purposes. ‘Used’ should be read as ‘normally
used’.
[30]
The
interpretation is, in my view, logical and finds support of the
Canadian Trade Tribunal that in order to be considered as goods
for
‘domestic purposes’ goods must be primarily for domestic
household use,
[31]
a principle
accepted by both the applicant and the respondent in this matter.
[26]
The submissions placed before the respondent from the outset were
that the toaster was imported to be sold to the catering
and hotel
industries, a fact which throws light on the characteristics of the
toaster, but such is not the test.
[32]
In addition, it was argued that a six-slot toaster that produces six
slices of toast at a time and a hundred and thirty rounds
of toast
every hour is not the norm or normally used in a South African
household; nor is a toaster at a cost in excess of R2500
the norm for
households in South Africa. But these ‘facts’ were either
not placed before the Commissioner or not adequately
so. Tariff 8516
provides for appliances ‘of a kind used for domestic purposes’.
In contrast, tariff 8419 provides for
items which are ‘only
non-domestic equipment’. On the assumption that a bread toaster
can be either used as non-domestic
equipment or that it is of a kind
used for domestic purposes, the question is whether it should be
classified as the latter or
former. Leaving aside evidence which may
not be considered
[33]
the
notes of classification requires that the heading which occurs last
in numerical order,
[34]
will
find application. That tariff is 8516.
[27]
Without relying on the reasons furnished by the respondent in its
answering affidavit, I find that the respondent correctly
classified
the toasters under tariff 8516. It did not make any error of law with
the result that the decision or determination
is neither reviewable
on this basis, nor due to the alleged failure to furnish reasons. In
my view the other grounds advanced
[35]
by the applicant do not overcome this conclusion. The result is
that the final question posed,
[36]
does not arise. If regard is had to the reasons furnished by the
respondent in the answering affidavit, that conclusion is
strengthened
overwhelmingly.
[28]
The parties were in agreement that the costs of two counsel should be
awarded to the successful party.
[29]
I make the following order:
1. The late filing of the
applicant’s replying affidavit is condoned.
2. The time period
provided for in PAJA for the launching of proceedings is extended to
the date when these proceedings were instituted.
3. The application is
dismissed with costs including the costs of two counsel.
__________
Wepener
J
Counsel
for Applicant: C. Dreyer with A. Pantazis
Attorneys
for Applicant: Fluxmans Attorneys
Counsel
for the Respondent: A.J. Meyer SC with L. Pillay
Attorneys
for Respondent: State Attorney Pretoria
[1]
‘An appeal against any such determination shall lie to the
division of the High Court of South Africa having jurisdiction
to
hear appeals in the area wherein the determination was made, or the
goods in question were entered for home consumption.’
[2]
Act 91 of 1964.
[3]
Promotion of Administrative Justice Act 3 of 2000
.
[4]
Section 7
of PAJA requires a party to institute review proceedings
not later than 180 days of the date from the date of conclusion of
proceedings
in terms of internal remedies.
[5]
Van Wyk v Unitas Hospital
(Open Democratic Advice Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 20.
[6]
‘62.1 The application has not been brought excessively late.
62.2 This application has been
brought within the one-year prescription period provided for in
section 96(1)(b) of the Customs
and Excise Act for causes of action
arising out of the provisions of that Act.
62.3 BCE has had to give SARS
one-month notice of its intention to institute legal proceedings.
The Notice was given on 17 December
2014. In response, on 15 January
2015. SARS gave notice that it stood by its Tariff Determination of
17 August 2011.
62.4 The application was further
delayed by two weeks in March 2015 as I underwent surgery for a
broken knee and I was involved
in financial year-end work: I was the
person at the applicant who could provide the information necessary
for the drafting of
this application.
62.5 There is no prejudice to SARS in
the small delay in bringing the application The dispute is
determinable on the documents
available to the parties and is not
dependant on the vagaries of witnesses’ testimony or other
sources of possible unreliability.
62.6 The merits of the application
are strong. The seasoning in support of BCE’s reasoning is
cogent.
62.7 The outcome of this application
is not relevant only to the past consignments of the toasters. BCE
intends to continue to
import the toasters and SARS’ tariff
classification will continue to have an impact on BCE in the
future.’
[7]
‘A tariff determination will constitute administrative action
as defined by PAJA if it is against the importer….’
Respondent’s heads of 31 July 2017 para 15.
[8]
See
Madrassa Anjuman
Islamia v Johannesburg Municipality
1917 AD 718
at 727.
[9]
Pahad Shipping CC v
Commissioner, SARS
[2010]
2 All SA 246
(SCA);
Levi
Strauss SA (Pty) Ltd v The Commissioner for the South African
Revenue Service
20923/2015 – unreported judgment of Murphy J of
the Gauteng Division, Pretoria.
[10]
These two cases did not deal with reviews but with what was
permissible in an appeal under the Customs and Excise Act.
[11]
Metcash Trading Ltd v
Commissioner, South African Revenue Service and Another
2001 (1) SA 1109
(CC) para 33.
[12]
Section 33 of the Constitution provides that:
‘
(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair’ and
‘
(2) Everyone . . . has the
right to be given written reasons’
where
rights ‘have been adversely affected by administrative
action’.
[13]
Commissioner for the South
African Revenue Service v Plasmaview Technologies (Pty) Ltd
[2011] 2 All SA 235
(SCA) paras 29:
‘
[29] A determination for
purposes of Chapter V of the Act is the end result of the
classification of imported goods under the
correct tariff heading:
Colgate Palmolive (Pty) Ltd v Commissioner, South African Revenue
Service
2007 (1) SA 35
(N) para 1;
Commissioner, South
African Revenue Services v Komatsu Southern Africa (Pty) Ltd
2007 (2) 157 (SCA) para 8 and the authorities there cited.’
[14]
PAJA s 5(1): ‘(1) Any person whose rights have been materially
and adversely affected by administrative action and who
has not been
given reasons for the action may, within 90 days after the date on
which that person became aware of the action
or might reasonably
have been expected to have become aware of the action, request that
the administrator concerned furnish written
reasons for the action.’
[15]
See the discussion by Hoextra: Administrative Law in South Africa,
2
nd
Ed pp 464-466.
[16]
PAJA s 5(6)
[17]
PAJA s 6(2)(d).
[18]
PAJA s 6(2)(e)(iii).
[19]
PAJA s 6(2)(e)(vi).
[20]
PAJA s 6(2)(e)(ii).
[21]
PAJA s 5.
[22]
‘(1)(a)(i) No process by which any legal proceedings are
instituted against the State, the Minister, the Commissioner or
an
officer for anything done in pursuance of this Act may be served
before the expiry of a period of one month after delivery
of a
notice in writing setting forth clearly and explicitly the cause of
action, the name and place of abode of the person who
is to
institute such proceedings (in this section referred to as the
'litigant') and the name and address of his or her attorney
or
agent, if any.’
[23]
Commissioner for the South
African Revenue Services v Terreplas South Africa (Pty) Ltd
[2014] 3 All SA 11
(SCA) para 11.
[24]
Section 45(1) of the Customs and Excise Act provides that all
imported goods shall be liable to such duties as may at the time
of
entry be levied upon such goods. The toasters were imported from
August 2009 to August 2011. At this time the applicable edition
of
the Explanatory Notes was fourth edition (2007), which was replaced
by the fifth edition (2012) (in operation from 1 January
2012).
However, the editions are identical for present purposes.
[25]
Secretary for Customs and
Excise v Thomas Barlow & Sons Ltd
1970 (2) SA 660
(A) at 675D-676D. Furthermore, Rule 1 of the General
Rules for the Interpretation of the Harmonized System states: ‘The
titles of Sections, Chapters and sub-Chapters are provided for ease
of reference only; for legal purposes, classification shall
be
determined according to the terms of the headings and any relative
Section of Chapter Notes. . . . ‘
[26]
The Heritage Collection
(Pty) Ltd v Commissioner, South African Revenue Service
2002 (6) SA 15
(SCA) para 10.
[27]
International Business
Machines SA (Pty) Ltd v Commissioner for the Customs and Excise
1985 (4) SA 852
(A) at 863F-G.
[28]
Commissioner, South African
Revenue Services v Komatsu Sothern Africa (Pty) Ltd
2007 (2) SA 157
(SCA) para 8.
[29]
Commissioner, South African
Revenue Service v The Baking Tin (Pty) Ltd
2007 (6) SA 545
paras 12 and 13:
‘
[12] The second difficulty
with the reasoning of the High Court is that it is well-established
that the intention of the manufacturer
or importer of goods is not a
determinant of the appropriate classification for the purpose of the
Act. Thus the purpose for
which they are manufactured is not a
criterion to be taken into account in classification. In
Commissioner, South African Revenue Services v Komatsu Southern
Africa (Pty) Ltd
this Court said:
“
It is clear from the
authorities that the decisive criterion for the customs
classification of goods is the objective
characteristics
and properties of the goods as determined at the time of their
presentation for customs clearance. This is an
internationally
recognised principle of tariff classification. The subjective
intention of the designer or what the importer
does with the goods
after importation are, generally, irrelevant considerations. But
they need not be because they may in a given
situation be relevant
in determining the nature, characteristics and properties of the
goods.”
[13] The last sentence of this
passage is invoked by The Baking Tin in support of its argument that
the intention of the designer,
or the use to which the goods are
put, may affect what appear to be the objective characteristics of
the goods and thus change
their classification. It seems to me,
however, that the court was suggesting no more than that light may
be thrown on the characteristics
of the article by subjective
factors. The principle remains the same: it is not the intention
with which they are made, nor the
use to which they may be put, that
characterise the containers in question. It is their objective
characteristics. Thus the mere
fact that the containers are regarded
as disposable by The Baking Tin, and perhaps other suppliers and
manufacturers in the chain,
does not necessarily make them
disposable by nature.’
[30]
See tariff heading 8419 where to words ‘normally used in the
household’ and tariff heading 8516 where the words ‘normally
used in the household’ are used.
[31]
Evenflo Canada Inc v
President of Canada Border Services Agency
(19 May 2010), AP-2009-049 (CIT) para 68, available on the website
of the Canadian International Trade Tribunal.
[32]
The Baking Tin
supra para 12-13.
[33]
The Baking Tin
supra.
[34]
General Rules for the Interpretation of the Harmonizes System 3(c).
[35]
Referred to in para 12 above.
[36]
Para 1 above.