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[2017] ZAGPPHC 23
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Encarnacao N.O and Another v Commissioner for the South African Revenue Services (33302/2014) [2017] ZAGPPHC 23; [2017] 2 All SA 153 (GP); 79 SATC 247 (3 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 33302/2014
DATE:
3/2/2017
IN
THE MATTER BETWEEN
JM DA
ENCARNAÇÄO
N.O. 1
ST
APPLICANT
MZ DA
ENCARNAÇÄO
N.O. 2
ND
APPLICANT
AND
THE
COMMISSIONER FOR THE SOUTH
AFRICAN RESPONDENT
REVENUE
SERVICES
JUDGMENT
PRINSLOO,
J
[1]
This is, essentially, an appeal in terms of the provisions of section
47(9)(e) of the Customs and Excise Act 91 of 1964 ("the
Act")
against a determination or determinations made by the respondent's
duly authorised representative to the effect that
200 cases of
Remington Gold cigarettes which were imported into the Republic
during June 2009 do not qualify for a full rebate
of customs duty in
terms of Rebate item 412.09 in Schedule 4 to the Act ("the
Rebate item").
[2] In
the notice of motion, there is also an alternative prayer, advanced
only in the event of a finding that the decision(s) in
question do
not constitute determinations or a determination and a confirmation
of the said determination, for a declaratory order
in terms of
section 21(1)(c)
of the
Superior Courts Act 10 of 2013
that the said
cigarettes do qualify for the rebate of customs duty in terms of the
Rebate item.
At the
commencement of the proceedings, I was informed by counsel for the
applicants, Mr Vorster SC, that this prayer for alternative
relief was no longer proceeded with. I add that the
question whether the decision or decisions made on behalf of the
respondent amounted to a determination or determinations did not
receive any attention before me. There was a bare denial
in the
opposing affidavit, that this was not pursued with any force.
In the
result, I accept, for present purposes, that the decision or
decisions taken on behalf of the respondent amount to a determination
or determinations which may be challenged in an appeal to this court
in terms of the statutory provision mentioned above.
[3] It
also appears to be common cause that certain internal remedies which
may have been available to the applicants were not exhausted
because
the prescribed time limit had expired, but it was also not
argued before me that this failure on the part of the applicants
disqualified them from launching this appeal.
[4] Mr
Van der Merwe SC appeared for the respondent.
[5]
The applicants also claim a refund of an amount which the respondent,
in terms of its wide powers provided for in the Act, unilaterally
withdrew from the applicants' account as representing the amount of
excise duty payable as calculated on behalf of the respondent.
The
relief sought
[6] It
is useful to quote the prayers as they appear in the notice of
motion:
"1. That the applicants' appeal against the respondent's
determinations contained in the respondent's letters dated 18 March
2013 (annexure 'FA2' to the founding affidavit) and 11 September 2013
(annexure 'FA3' to the founding affidavit), alternatively
against the
determination dated 18 March 2013 which was confirmed by the
respondent on 11 September 2013, be upheld.
2. That the said determinations, alternatively determination be set
aside and substituted by a determination that the 200 cases
of
Remington Gold cigarettes imported into the Republic of South Africa
on or about 17 June 2009 and 26 June 2009 as
described in
annexure 'FA8' and 'FA12' to the founding affidavit qualify for a
full rebate of customs duty in terms of Rebate item
412.09 in
Schedule 4 to the Customs and Excise Act 91 of 1964.
3. In the alternative to prayers 1 and 2 above, that it be declared,
in terms of
section 21(1)(c)
of the
Superior Courts Act 10 of 2013
... (this is the relief that has been abandoned).
4. That the respondent be ordered to pay to the applicants the amount
of R58 877,52 together with interest on the said amount
calculated at the rate of 15,5% per annum from 30 October 2009
to date of payment.
5. That the respondent be ordered to pay the costs of this
application."
[7]
The
mora
date of 30 October 2009 is the date on which the
respondent withdrew the amount from the applicants' account.
Brief
synopsis
[8]
The two applicants are the only trustees of the Da Encarnaçäo
Trust ("the Trust"). The prescribed
letters of
authority as well as a copy of the Trust Deed form part of the
founding papers.
An
initial defence to the effect that the Trust Deed does not contain
the necessary authority for the applicants to litigate this
matter,
was abandoned.
[9]
The Trust trades under the trading name "Classic Tobacco"
in Orkney, North West province and is a registered importer
of goods
(it appears, mainly cigarettes) in terms of section 59A of the Act.
The Trust is also a licensee of a customs bonded
warehouse in terms
of section 18 of the Act. The warehouse is in Orkney.
[10]
During May 2009 the Trust engaged All Trans Logistics CC ("All
Trans") a close corporation which is licensed as a
customs
clearing agent in terms of section 64B of the Act, to act as the
Trust's clearing agent to attend to the necessary entries
in terms of
the Act in respect of the importation of cigarettes by the Trust.
[11]
It is not disputed that during or about the period May to August 2009
All Trans acted as the Trust's clearing agent in respect
of a number
of consignments of cigarettes imported by the Trust, without any
incident.
[12]
It is not disputed that on 17 June 2009 and again on 26 June 2009 All
Trans made clearance, on behalf of the Trust, of two
consignments of
cigarettes which had been imported by air from Harare, Zimbabwe to
OR Tambo International Airport. These
consignments
represent the 200 cases of Remington Gold cigarettes, forming the
subject of this dispute.
[13]
The relevant documentation, such as customs release notifications and
certificates of origin form part of the founding papers.
[14]
The consignments were landed under the purpose code of WH
("warehousing"). This purpose code indicates that
the
cigarettes were imported for storage in a bonded warehouse and that
the payment of duty and VAT was deferred until the cigarettes
were
removed from the mentioned warehouse for home consumption.
[15]
It is common cause that the two consignments of cigarettes were
stored in the All Trans warehouse in Dekama Road, Wadeville
and not
in the Orkney warehouse of the Trust. The All Trans warehouse
is also a registered bonded warehouse.
In the
founding papers, it is alleged on behalf of the Trust that the
storage of the goods in the All Trans warehouse instead of
in the
Orkney warehouse was "contrary to the ordinary practice in
respect of such importations" but nothing was made
of this by
the applicant. This allegation attracted some criticism in the
opposing affidavit when the deponent on behalf
of the respondent
pointed out that the Trust only registered its bonded warehouse in
Orkney on 1 February 2010, which is after
the event, to which I
will refer, which gave rise to this dispute. This oversight was
conceded by the applicants in reply.
[16] I
add that the applicants initially also adopted the stance that these
particular cigarettes were not imported by them and
that they knew
nothing about these consignments so that they could not be held
liable for excise duty. In correspondence
which was exchanged
between the attorneys representing the applicants and representatives
of the respondent, the latter presented
evidence to the effect that
the relevant documentation suggests that the Trust was indeed the
importer of these consignments of
cigarettes. This was dealt
with in the founding papers. On behalf of the Trust, it was
conceded, in the founding affidavit,
that, for purposes of this
application, the Trust will accept that it was the importer. It
appears that a dispute on this
subject existed between the parties
until shortly before the application was launched. It is
alleged on behalf of the Trust
that the applicants were advised to
make the concession because of the factual dispute which, presumably,
would be difficult to
resolve on affidavit.
[17]
The event which triggered this dispute, and subsequent litigation, is
an alleged armed robbery, during the night of 15 and
16 August
2009, at the All Trans warehouse during the course of which the
relevant consignment of cigarettes imported by the
Trust was stolen
by the robbers together with a consignment of cigarettes imported by
another importer, Savanna Tobacco Company
SA, and other items, such
as quantities of liquor.
[18]
It is the case of the Trust that this state of affairs, amounts to a
situation of
vis major
which entitles the Trust to a full
rebate of excise duty on the stolen cigarettes in terms of the Rebate
item. This explains
the nature of the relief sought as quoted
from the wording of the notice of motion.
[19]
The application is opposed on various grounds, which I will briefly
refer to.
[20] I
turn to the wording of the Rebate item, and a proposed interpretation
thereof.
Rebate
item 412.09 ("the Rebate item")
[21]
In Schedule 4/Part 1 one finds Rebate item 412.09 under the tariff
heading "Goods lost, destroyed or damaged".
[22]
It is convenient to quote the wording of the Rebate item (there is an
exclusion relating to goods contemplated in Rebate item
497.02 in
respect of which customs duty, in certain circumstances amounts to
less than R2 500,00, which does not apply for
present purposes
and which exclusion I omit from what is quoted:
"Goods, proved to have been lost, destroyed or damaged on any
single occasion in circumstances of
VIS MAJOR
or in such other
circumstances as the Commissioner deems exceptional while such goods
are –
(a) in any customs and excise warehouse or in any appointed transit
shed or under the control of the Commissioner;
(b) being removed with deferment of payment of duty or under rebate
of duty from a place in the Republic to any other place in
terms of
the provisions of this Act; or
(c) being stored in any rebate store-room, provided -
(i) no compensation in respect of the customs duty or fuel levy on
such goods has been paid or is due to the owner by any other
person;
(ii) such loss, destruction or damage was not due to any negligence
or fraud on the part of the person liable for the duty; and
(iii) such goods did not enter into consumption."
[23]
It is stipulated that the extent of the rebate is "full duty".
[24]
As to the interpretation of this Rebate item, it seems to me that the
following requires consideration:
• It is clear that the circumstances described in (a), (b) and
(c) are couched in the alternative.
Initially, counsel for the respondent argued that, inasmuch as this
Rebate item may be applicable, the situation under consideration
resorted under (c), referring to goods "being stored in any
rebate store-room" but later, and quite properly, counsel
conceded that the situation which is applicable for present purposes
is that listed in (a) as it is common cause that the goods
were
stored in a customs and excise warehouse.
This concession did not detract from the general tenor of the
arguments offered on behalf of the respondent.
• It is clear that the three provisos listed as (i), (ii) and
(iii) are not prescribed in the alternative but that all three
the
provisos have to be satisfied in order to successfully claim a
rebate. The word "and" between (ii) and (iii)
is
telling in this regard.
• It was argued by Mr Vorster on behalf of the Trust that
provisos (i), (ii) and (iii) forms part of situation (c) given the
"lay-out of the Rebate item" so that it does not apply to
situations (a) and (b).
I cannot, with respect, accept this argument. In the first
place, there is no conceivable reason why the provisos would only
apply to goods being stored in a rebate store room as opposed to
goods being stored in a customs and excise warehouse or goods
being
removed with deferment of payment of duty. In the second
place, it seems to me to be patently clear from the wording
and
lay out and also of the general nature of the meaning of the
Rebate item, that the provisos apply to (a), (b) or (c),
and not only
to the latter.
• It was argued on behalf of the Trust that the stipulations
with regard to situations (a), (b) or (c) as well as provisos
(i),
(ii) and (iii) do not apply to circumstances of
vis major
but only to the alternative "other circumstances as the
Commissioner deems exceptional".
I am unable to accept this argument, and find myself in respectful
agreement with the submissions made by Mr Van der Merwe, when
he
adopted the opposite stance.
It seems to me that in both sets of
circumstances
(emphasis
added) either situations (a), (b) or (c) must apply and the provisos
(i), (ii) and (iii) must be met.
It seems to me to be clear, from a general reading of the Rebate item
as a whole, that the requirement is that the goods must be
proved to
have been lost, destroyed or damaged on any single occasion (this
applies to both sets of
circumstances
) in
circumstances
of
vis major
or in
such other circumstances
as the
Commissioner deems exceptional while such goods are ... There
is no pause or comma or any other interruption between
the
description of these two sets of
circumstances
and the phrase
"while such goods are". In my view, the reference to
"
circumstances
" is a specific link between the two
situations namely
vis major
and what the Commissioner deems to
be exceptional so that stipulations (a), (b) or (c) and the three
provisos must apply to both
sets of
circumstances
.
In any event, there appears to be no valid reason why only the one
set of circumstances should be subjected to these rather strenuous
additional provisions. After all, in the case of both sets of
circumstances the goods must be proved to have been lost, destroyed
or damaged on any single occasion. The whole sentence from
"proved to have been lost" to "while such goods
are"
which leads to the additional stipulations, is a free flowing affair,
free of interruption of any kind. In my view,
this supports the
conclusion that both sets of
circumstances
fall to be
subjected to the same rules namely (a), (b) or (c) followed by (i),
(ii) and (iii).
• Finally, on the issue of interpreting the Rebate item, I turn
to submissions made by Mr Van der Merwe in his very
comprehensive supplementary heads of argument from which I quote the
following extract:
"The only circumstances in which the obligation to pay the
duties and taxes will fall away are when the goods are somehow
completely destroyed or rendered useless or '
irrevocably lost
'
such as when there was a fire or the goods have been rendered useless
by flooding. It is clear that it is the intention
of the
legislature that once goods enter the market, '
enter into
consumption
', whether lawful or unlawful, and whether as a result
of theft, a hi jack, a robbery or a burglary then the custom
duties
and taxes on those goods must be paid."
The first leg of this argument, if I understand it correctly, is that
the goods have to be rendered useless by fire or flooding
before they
can be proved to have been "lost" as foreshadowed in the
introductory wording of the Rebate item. I cannot
agree
with this submission: in my view, goods can also be "lost"
and even "irrevocably lost" to coin counsel's
phrase, if
they are removed during an armed robbery, never to be retrieved
again. They do not have to be destroyed by fire
or flooding in
order to bring the situation inside the ambit of the Rebate item.
The second leg of the argument, if I understand it correctly, appears
to be that in the event of an armed robbery, which is inevitably
aimed at selling the stolen goods to the public or some identified
collaborating recipients, the goods in any event "enter
into
consumption" so that proviso (iii) is not complied with.
Again, I find myself in respectful disagreement with this
argument:
it seems to me that when the robbery takes place, the goods did not
yet enter into consumption in the spirit of proviso
(iii). The
goods were still stored in the customs and excise warehouse.
The operative and relevant time appears to
me to be before the
robbery and not thereafter. I add that the reference by
counsel, when dealing with when consumption is
entered into, to
"theft, a hi jack or a burglary" in the same breath as
"a robbery", is, with respect,
inaccurate for present
purposes: As will appear from what I attempt to illustrate later,
vis
major
, on which the case of the applicants is based, may exist in
the case of a robbery, but not in the case of theft. I also
suggest later that the same would apply to a burglary. As for
hi jacking, which is not a crime independently defined
in our
criminal law text-books, it is not before me for decision, and I do
not pronounce thereupon, but if it, for example, happens
in situation
(b) mentioned in the Rebate item (I cannot see it happening in
situation (a) or (c)) under circumstances tantamount
to robbery, it
may well invite a debate around
vis major
, as happened in the
present case.
[25]
In conclusion, I mention, although it is stating the obvious, that
the
second set of circumstances
, namely such as the
Commissioner deems exceptional, do not enter the equation for present
purposes, because the Trust relies on
circumstances of
vis major
for purposes of establishing its case.
Vis
major
and how it may or may not apply to the
present case
[26]
In Wille's
Principles of South African Law
, 9
th
ed,
the following is said at p849:
"
Vis major
, or superior force, is some force, power or
agency which cannot be resisted or controlled by the ordinary
individual. The
term is now used as including not only the acts
of nature, vis divina, or 'act of God', but also the acts of man."
[27]
By way of example of the "acts of man" the learned author
refers to
Peters, Flamman & Co v Kokstad Municipality
1919
AD 427
at 435 where the following is said:
"For the authorities are clear that if a person is prevented
from performing his contract by
vis major
or
casus
fortuitus
, under which would be included such an act of state as
we are concerned with in this appeal, he is discharged from
liability."
The
"act of state" referred to was the compulsory winding-up by
the treasury of a contracting party's business rendering
it
impossible for him to perform in terms of the contract.
[28]
In heads of argument on behalf of the applicant, I was also referred
to
Davis v Lockstone
1921 AD 153.
A hotel guest had his
valuables stolen from his room while he was absent and he
successfully claimed the loss representing
the value of the stolen
articles from the proprietor of the hotel.
It was
common cause that the goods had been stolen but there was no evidence
of a break in or violence being used in the form
of a robbery.
At
158, the following is said:
"'The action', he says, 'is allowed against the inn keepers,
etc ... to repair and make good all damage caused by theft,
rotting,
or otherwise in whatever manner, that alone excepted which is proved
to have happened through
damnum fatale
or
vis major
, as
for instance through shipwreck or damage done by pirates. To
which is not dissimilar the case where the hotel or stable
being
broken into, the travellers' goods or horses have been stolen,
provided that there has been no accompanying neglect or
culpa
on the part of the inn keeper or ostler."
At
159, the learned Judge of Appeal, quoted the following extract from
an older authority:
"In this civil action for the property's value shipowners, inn
keepers and stable keepers were supposed to have implicitly
contracted that the property should be kept safely: and this was held
to make them liable absolutely, unless the loss was occasioned
by
something in the way of inevitable fate or
vis major
,
which would not include theft as distinguished from robbery with
violence not to be resisted."
[29]
The learned author H C Cronje,
Customs and Excise Service
at
10 34, says the following while dealing with the subject of
Rebate item 412.09:
"Regarding
casus fortuitus
damnum fatale
and
vis
major
see Wille's
Principles of South African Law
...;
Gibson
... and the cases and authorities there cited
(in respect of carriage of goods). Such forces or events
which are inevitable,
unforeseeable and quite irresistable
include,
so it seems, robbery but not theft
. If goods were
lost, destroyed or damaged by these forces or events the carrier
would escape liability but not if he
was negligent in exposing the
goods to such risks." (Emphasis added.)
[30]
It is worth noting that already on 11 November 2013, and well before
this application was launched in May 2014, the applicants'
attorney
wrote a letter to the respondent dealing with the contentious issues
and referring the latter to some of the authorities
which I already
quoted. The attorney also referred respondent to the SARS:
External Standard Operating Procedure Removal
of Goods which contains
the following guideline on p13:
"Robbery by armed or dangerous attackers can be regarded as
force majeure
, but theft in the ordinary cause (
sic
,
should be course) will seldom be regarded as
force majeure
.
Theft is
prima facie
considered the fault of the licenced
remover or representative ie by observing normal care the incidence
of theft can be avoided.
The theft of goods is definitely not
'destruction or loss by accident'. Therefore in the case of
theft the duty remains payable."
[31]
The respondent attempted to counter this reference to the External
Operating Procedure by pointing out that there is also a
Code of
Instruction which was attached to the answering affidavit.
The
relevant passages in this Code of Instruction relied upon by the
respondent stipulate:
"(a) In the event of a customs storage warehouse being burgled,
duty and VAT should immediately be called for on any pilfered
goods.
No provision exists whereby the duty and/or VAT can be waived in
these circumstances. Such goods are regarded
as being
removed/entered into home consumption.
(b) In the event of goods being destroyed by fire, flood water etc
and the duty amounts to R2 500,00 or more, the licensee
may
apply for a rebate of the duty in terms of Rebate item 412.09 of
Schedule 4. No provision exists whereby any duties or
VAT
amounting to less than R2 500,00 can be waived."
In the
first place, I am of the view that the situation of a "storage
warehouse being
burgled
", is not tantamount to a "robbery
by armed or dangerous attackers" which, in terms of the External
Standing Operating
Procedure, is recognised as amounting to
vis major
in a proper case. It is also not the same as the "robbery
with violence" recognised in
Davis v Lockstone, supra
.
Although
the phrase "burglary" is seldom used in our criminal law
text books, a "burglar" is described
in the
Concise
Oxford Dictionary
, p122, as "one who enters building
illegally ... with intent to commit felony". In the more
comprehensive
Shorter Oxford English Dictionary
, volume 1 p309
"burglary" is defined as "the crime of entering a
building (in English law formerly by night only)
with intent to
commit an arrestable offence". All this is a far cry from
an armed robbery which is the crime which is
regarded as
vis major
by the authorities quoted, and the circumstances recognised in the
Rebate item as qualifying the importer for a total rebate in
a proper
case.
The
second portion of the passage quoted from the Code of Instruction is
misleading because it is an incomplete summary of the terms
of the
Rebate item in the sense that the circumstances of
vis major
are not even mentioned. Indeed, the document relied upon by the
respondent is in harmony with the External Standard Operating
Procedure relied upon by the applicants in the sense that in the
latter document ordinary theft is also recognised as not qualifying
the importer for a rebate.
I add
that Mr Vorster, in his supplementary heads of argument, reminded me
that the effective date of the document relied upon by
the applicants
is 14 March 2012 and the effective date of the document relied
upon by the respondent is 14 May 2012.
The alleged robbery
on which the applicants rely in support of their case took place in
August 2009, some two years earlier.
Counsel points out that as
there is no indication that these documents were intended to have
retrospective effect, it would be
"unsafe to have regard
thereto". Neither party raised this point in their
affidavits. Indeed, it was the
applicants who initiated the
debate around these two documents.
Whatever
the position, it seems, that at least at present, the respondent
recognises that an armed robbery can be regarded as
vis major
for purposes of the Rebate item.
[32]
In conclusion, I add that the applicants, correctly in my view, find
broad support for their case in the provisions of section
76(2)(d) of
the Act which stipulates:
"(2) The Commissioner shall, subject to the provisions of
subsection (4), consider any application for a refund or payment
from
any applicant who contends that he has paid any duty or other charge
for which he was not liable or that he is entitled to
any payment
under this Act by reason of –
(a) ...
(b) ...
(c) ...
(d) the goods concerned having been damaged, destroyed or
irrecoverably lost by circumstances beyond his control prior to the
release thereof for home consumption."
(Subsection
(4) does not apply for present purposes.)
This
sums up the case offered on behalf of the applicants. I have
already expressed the view that "lost" in the
spirit of the
Rebate item, is not limited only to destruction by fire or flood, but
can also be "lost" in that sense
through a robbery, if the
goods were never retrieved. The learned author
Cronje
,
dealing with the same subject at 10 35, states that
"irrecoverably lost" would require conclusive evidence that
the goods cannot be recovered. My attention was not invited to
any evidence to the effect that the goods lost during the
robbery
were ever recovered. Now, 9 years after the event, this is in
any case not likely to happen.
[33]
In the result, and for the reasons mentioned, I have come to the
conclusion, and I find, that an armed robbery, in a proper
case, can
amount to circumstances of
vis major
as intended by the
provisions of the Rebate item which could qualify the importer for a
rebate.
[34] I
turn to the evidence about the armed robbery relied upon.
Evidence
about the armed robbery relied upon by the applicants in support of
their case
[35]
At the outset, it must be observed that the applicants,
understandably, have no personal knowledge about the incident.
They were not at the scene or even near the scene of the alleged
crime.
[36]
The best evidence available to the applicants, from the start, was
the case docket obtained from the SAPS Elsburg with CAS
number
214/08/2009 which contains affidavits of three security guards, which
are annexed to the founding papers.
[37]
The three security guards, Mr Wabeng, Mr Nyembenya and Mr Ramahlo
were employed by Sabela Security (East branch).
The
following evidence is attached to the founding papers:
• the full docket, including what is listed hereunder;
• the police statements of the three security guards;
• affidavits by staff members of the applicants' attorney
describing efforts made to trace the security guards in order to
obtain their supporting affidavits;
• the supporting affidavit by Mr Moshesh Wabeng which was handed
up by agreement during the hearing before me in which Mr Wabeng
confirms the correctness of his police statement;
• the report of Sabela security;
• importantly, the SARS Post Clearance Inspection Report dated
26 August 2009 and compiled by lead officer Ms Brenda Koekemoer
as
well as a colleague Mr Carel Jacobs. Ms Koekemoer is also
the deponent to the respondent's opposing affidavit;
• a report by Chubb which was the armed response company
involved.
[38]
Although there was some suggestion in the opposing papers that the
applicants rely on hearsay evidence, this issue was not
pressed with
any force before me. In any event, given the nature of the
evidence, including the report by SARS itself,
clearly recognising
that the occurrence took place and that the relevant consignments of
cigarettes were removed during the robbery,
I have no hesitation in
exercising my discretion, inasmuch as it may be necessary, to allow
this evidence in the interest of justice
by exercising my discretion
in favour of the applicants in terms of the provisions of
section
3(1)
of the
Law of Evidence Amendment Act 45 of 1988
.
[39]
Broadly speaking, it can be said that it appears from the evidence
that on 15 August 2009, at about 21:00, while the security
guards were stationed at or patrolling the premises of All Trans in
Dekama Road, Wadeville, they were approached by a number of
African
males armed with firearms. The robbers apprehended the security
guards. The robbers then took the security
guards' uniforms and
tied them up in the guardroom. When the security supervisor
came to check the occurrence book a firearm
was also pointed at him
and all the guards were then put in a toilet. Boxes of
cigarettes from the warehouse were loaded
by the robbers, assisted by
at least one of the security guards under duress onto trucks together
with certain boxes of alcohol.
[40]
This is an extract of the affidavit made by security guard Kgotso
Ramahlo to the police on 25 August 2009:
"During the tour of my duties at approximately 21:00 I was
seated alone in the guardroom. I saw two people coming to
the
guardroom. One was dressed in our uniform jacket. I
presumed they were my two colleagues who were also on duty.
The
two people just entered the room and grabbed me. I then
realised that the two were not my colleagues. They
asked me how
many were we on duty and after telling them that we were three they
took me to where my two colleagues were.
I found them lying
down with their hands and legs tied with shoe laces. One
of the suspects took my uniform jacket and
put it on. The three
of us were taken to a toilet.
Myself and Kenneth were taken to a store-room whereupon we were
ordered to help load the liquor and cigarette boxes into the three
trucks. The three trucks left the premises in the early morning
and myself and Kenneth were left in the store room.
We
came out and only found the police in the yard. Supervisor
Moses was in their company. The supervisor also told
me that he
too was tied up by the suspects ..."
[41]
This is an extract from the police affidavit of Ntembeko Kenneth
Nyembenya stating that he was on duty on Saturday 15 August
2009:
"On the same day at about 21:00 I saw two black males one with a
Sabela security uniform. They went into the guardroom
where I
was sitting and it was dark. They came to me and told me to
stand up and the one who was wearing the uniform had
a gun pointing
at me telling me that he will shoot me and the other guy had a knife
and told me that he will stab me.
I complied with the instructions and they searched me and took my
uniform that I was wearing and my black Nokia 600 cell phone
with a value of R800,00. They took me with them to the other
guys. When I got there I found out that one of our security
guards was already been tied up on his hands. Then they took
out my shoe-laces off my shoes and tied me up on my hands."
The
witness goes on to say that the robbers went to fetch another
security guard, brought him to the rest of them and locked them
all
up in the toilet. After midnight, he was instructed by the
robbers to report on the radio that all was well. When
he
resisted, the robber that was wearing his uniform threatened him with
a firearm and slapped him. When he fell down he
was kicked and
taken back to the toilet. The attack on this security official,
Kenneth, was confirmed in the Sabela report
which states that Kenneth
was later rushed to hospital.
[42]
The police affidavit which the witness Moshesh Wabeng made on
16 August 2009, the day after the robbery, and the correctness
of which he confirmed in his supporting affidavit handed up during
the hearing which he signed after his whereabouts were traced,
reads
that he was employed by Sabela Security East and it contains his
telephone numbers and other particulars. Here is an
extract:
"On 15 August 2009 at around 21:00 in the evening while I was
patrolling at All Trans as a security guard I went around
the
building while I was busy moving around I was approached by four
African males who pointed me with four firearms. They
were
possessing four 9mm pistols. I was then instructed to take off
my uniform. After I took off my uniform they asked
me how many
we are. I then relayed that we are three. They went
on to the guardroom where my other colleague was.
After some
few minutes they came back with my colleague Kenneth who was tied
with shoe-laces. We were then kept in the corner,
since they
were wearing our uniforms. The supervisor came to check the
Occurrence book, but he could not notice them.
The suspects
then pointed the supervisor with the firearm and took all of us and
kept us in a toilet. The suspects and my
two colleagues went
inside the warehouse and three 1 tonner trucks came inside the
warehouse. Boxes of cigarettes were
loaded inside the trucks as
well as boxes of alcohol Richards ..."
[43]
It is clear that the security guards corroborate each other in all
material respects. At least on the overwhelming
probabilities, they were the victims of an armed robbery. They
were outnumbered by well organised armed robbers. They
were
tied up and assaulted. I add that according to affidavits by
staff members of the applicants' attorney, Mr Wabeng was
ultimately
traced and he signed the supporting affidavit referred to. Mr
Nyembenya was traced to Katlehong. He refused
to sign an
affidavit, not because of the contents of his police affidavit, but
because his services were terminated by his employer.
Mr
Ramahlo could not be traced.
In my
view, the circumstances that prevailed were those of
vis major
as described and recognised by the relevant authorities referred to.
There is no evidence whatsoever that they were able
to prevent this
robbery or that there was any negligence on their part, let alone on
the part of the employer or the applicants.
It is also clear,
on the overwhelming evidence, that the stolen cigarettes had not yet
entered into consumption when it was removed
from the warehouse by
the robbers.
[44] I
turn to the all important SARS Post Clearance Inspection Report.
This is part of the founding papers. As I mentioned,
it was
signed by lead officer Ms Brenda Koekemoer and team leader
Mr Carel Jacobs on 26 August 2009. These officials
consulted with Ms Doris Wagner, the All Trans warehouse
manageress on 19 August 2009 and with Mr Keith Mordaunt, the
managing member, on the same date. They also consulted
Messrs Bruwer and Du Preez of Marwalo Warehousing and confirmed
that the stolen goods had been removed from the All Trans bonded
warehouse during the week end of 15 and 16 August 2009.
A
"break-in" at the bonded warehouse was recorded.
In the
report it is confirmed that 614 master cases of cigarettes were
looted, 414 belonging to Savanna Tobacco Company of
South Africa
and 200 master cases belonging to the Da Encarnaçäo
Family Trust t/a Classic Tobacco Wholesalers.
Details of the
various containers, the brand names and so on describing the
cigarettes appear from the report. It is common
cause that the
200 cases of cigarettes forming the subject of this disputes were
those stolen during the robbery. The duties
and VAT on the
stolen cigarettes was assessed, in terms of the SARS report, in the
amount of R1 018 006,07 and a letter
of demand was
addressed to the applicants for payment of this amount on 26 August
2009. The amount was later reduced
to R910 171,42.
According to the report, the incident which occurred is described as
a "break in".
It was not explained to me
what the difference is between this amount and the R58 000,00
refund claimed, or whether this
amount was ever paid. Nothing
turns on this for present purposes.
[45]
The Sabela report, by and large, confirms details of the incident.
It is also stated that the alarm system was disconnected
and the
camera surveilance equipment was removed. The remark was made
that "the intruders were methodical in their approach
which
means that they have had inside information as they knew exactly
where to go and what to go for". On behalf of
the
respondents, this information was submitted as representing a clear
sign that this was, after all, not a robbery but no more
than a theft
as it happened with the co operation of insiders. There is
no evidence to this effect as far as the security
guards and their
version is concerned. This is no more than speculation.
Even if the robbers had some inside information
it does not detract
from the fact that there was a clear description of an armed robbery,
something which was not controverted
by the respondent. In
fact, the whole incident is not disputed. The evidence of the
security guards is not disputed.
There is no basis to reject
the clear evidence that an armed robbery took place.
[46]
The report by Chubb, dated 18 August 2009 indicates that a phone call
was received at 05:45 on 16 August. This presumably
happened because the alarm system had been disconnected. At
05:48 armed response was dispatched and it was discovered that
an
unknown number of suspects gained entry by breaking open the front
door. Mr Wagner reported that an undisclosed amount
of
cigarettes and liquor had been stolen.
[47]
Against this background, and for all reasons mentioned, I have come
to the conclusion, and I find, that the cigarettes were
stolen, and
never retrieved, during an armed robbery under circumstances of
vis
major
.
[48] I
turn to the final subject for consideration, namely whether evidence
pleaded by the applicants only in the replying affidavit
and not in
the founding affidavit ought to be allowed or whether it ought to be
disregarded.
Should
certain evidence pleaded only in the replying affidavit be accepted
as part of the record?
[49]
The main thrust of the respondent's argument that the evidence
pleaded in the replying affidavit should be disregarded is the
following: it has been the case of the applicants throughout
that the duty to comply with provisos (i), (ii) and (iii) mentioned
in the Rebate item does not apply when the goods were lost, destroyed
or damaged in circumstances of
vis major
. It only
applies, and has to be established, when the goods were lost,
destroyed or damaged "in such other circumstances
as the
Commissioner deems exceptional". Indeed, as I already
pointed out, counsel for the applicants persisted with
this argument
throughout. I have already rejected this argument. It is
a relatively complex legal argument.
Because
of the stance adopted by the applicants, they did not establish a
case in the founding affidavit that there was compliance
with the
requirements of the three provisos.
When
the respondent raised the issue in the opposing affidavit, contending
that the provisos had not been complied with, the applicants,
in the
replying affidavit, persisted with their attitude that the provisos
do not apply on a proper interpretation of the Rebate
item, but
pleaded compliance in any event, "to the extent that this may be
relevant".
The
issue was pleaded as follows in the replying affidavit:
"6.2 Legal argument will be addressed to the Honourable Court
with regard to the proper interpretation of the Rebate item.
However, to the extent that this may be relevant, I state the
following:
6.2.1 The cigarettes were present in the customs and excise warehouse
of All Trans in Wadeville when the robbery took place.
No
compensation in respect of the customs duty has been paid or is due
to the Trust by any other person. In this regard,
the Trust had
no insurance cover in respect of the customs duty in question.
6.2.2 The loss of the cigarettes was not due to any negligence or
fraud on the part of the Trust or its trustees as the robbery
took
place from the warehouse of the Trust's clearing agent, All Trans
which is geographically far removed from the Trust's place
of
business and customs and excise warehouse in Orkney.
6.2.3 The cigarettes had not been entered for home consumption when
the robbery occurred.
6.2.4 Should respondent be of the view that a further affidavit
should be filed by the respondent to deal with any of the aforegoing
averments, the respondent is invited to file such affidavit within a
reasonable time of receipt of this affidavit. The applicants
will not object to the filing of such affidavit.
6.2.5 In this regard I respectfully point out that, as far as the
applicability of the Rebate item is concerned, SARS' stance as
communicated in the last paragraph of the 2
nd
page of
annexure 'FA2' to the founding affidavit was simply that the
circumstances in issue did not constitute
vis major
.
6.2.6 The correspondence between the applicants' attorneys and the
respondent dealt with the proviso in paragraph (c) of the Rebate
item
as dealing, not with
vis major
, but with such other
circumstances which the Commissioner deems exceptional (in this
regard I refer to paragraph 20 on p4 of annexure
'FA21' and also
paragraphs 18 and 19 on p5 of 'FA25' to the founding affidavit)."
[50]
The invitation to the respondent to file a further affidavit on the
issue was not accepted. The invitation was extended
in the
replying affidavit dated August 2014 and the case was only heard in
May 2016.
[51]
Turning to the correspondence on the issue which was exchanged
between the applicants' attorney and the respondent, and referred
to
in paragraph 6.2.6 of the replying affidavit, it is useful to record
that, already on 11 November 2013, in letter "FA25",
the applicants' attorney says the following in paragraph 27 of that
letter:
"27. Although we are of the view that item (c)(i) to (iii) is
only applicable in the event of '
such other circumstances as the
Commissioner deems exceptional
', it is in any event confirmed
that:
27.1 our client has not received any compensation from any party in
relation to the duties thereon;
27.2 the loss was not a result of negligence or fraudulent activities
of our client; and
27.3 our client cannot comment regarding whether the cargo has
entered into home consumption."
Where
this letter forms part of the founding papers, it can be said that
the stance of the applicants relating to compliance with
the provisos
if it were to be found that the compliance therewith was applicable
to this case, was already disclosed in the founding
papers in
November 2013, some 7 months before the application was launched in
May 2014.
Against
this background I am of the view that it cannot properly be argued
that the applicants are seeking to introduce a new case
in the
replying affidavit: they are simply repeating evidence already
disclosed before the launch of the application to support
an argument
that the provisos were in any event complied with if their legal
argument about the proper interpretation of the Rebate
item (that the
provisos do not apply) were to be rejected.
[52]
In support of his argument that the evidence introduced in the
replying affidavit about compliance with the provisos fall to
be
disregarded, the respondent relied on the well known case of
Titty's Bar and Bottle Store v A.B.C. Garage and Others
1974 4
SA 362
(TPD) where the following was said at 368H 369C:
"It has always been the practice of the Courts in South Africa
to strike out matter in replying affidavits which should have
appeared in petitions or founding affidavits, including facts to
establish
locus standi
or the jurisdiction of the Court ...
In my view this practice still prevails ... It lies, of course,
in the discretion
of the Court in each particular case to decide
whether the applicant's founding affidavit contains sufficient
allegations for the
establishment of his case. Courts do not
normally countenance a mere skeleton of a case in the founding
affidavit, which
skeleton is then sought to be covered in flesh in
the replying affidavit. In the present case, the applicant has
not made
out even a skeleton of a case in so far as his
locus
standi
rests on a
stipulatio alteri
..."
[53] I
turn to a few other authorities on the subject:
• In
Juta and Company Ltd and Others v De Koker and Others
1994 3 SA 499
(TPD) the learned Judge quotes the following extract
from
Shakot Investments (Pty) Ltd v Town Council of the Borough of
Stanger
1976 2 SA 701
(D) at 510G H of the
Juta
judgment:
"In consideration of the question whether to permit or to strike
out additional facts or grounds for relief raised in the
replying
affidavit, a distinction must, necessarily, be drawn between a case
in which the new material is first brought to light
by the applicant
who knew of it at the time when his founding affidavit was prepared
and a case in which facts alleged in the respondent's
answering
affidavit reveal the existence or possible existence of a further
ground for relief sought by the applicant. In the
latter
type of case the Court would obviously more readily allow an
applicant in his replying affidavit to utilise and enlarge
upon what
has been revealed by the respondent and to set up such additional
ground for relief as might arise therefrom."
• In
Shephard v Tuckers Land and Development Corporation (1)
1978 1 SA 173
(W) at 177H-178A the learned Judge comments as follows
on the principle laid down in
Titty's Bar
to which I have
referred:
"This is not however an absolute rule. It is not a law of
the Medes and Persians. The Court has a discretion to
allow new
matter to remain in a replying affidavit, giving the respondent the
opportunity to deal with it in a second set of answering
affidavits.
This indulgence, however, will only be allowed in special or
exceptional circumstances ..."
• In
Triomf Kunsmis (Edms) Bpk v AE & CI Bpk en Andere
1984 2 SA 261
(W) the learned Judge, after referring to what was said
in
Shephard
, said the following at 269E G:
"My indruk is dat hierdie reëls soos aldus geformuleer
hoofsaaklik van toepassing is op wat gewoonlik beskou word as
'new
matter', wat nie sinoniem is met 'n nuwe oorsaak van aksie nie.
In die geval van 'n nuwe oorsaak van aksie wat die bestaande
een
vervang kan ek my kwalik omstandighede indink wat nie die
onvermydelike gevolg het dat die proses, soos op daardie stadium,
afgewys word nie. Dit is een ding om slegs ekstra feite ter
ondersteuning van 'n bepaalde oorsaak van aksie, óf te
onderstreep óf vir die eerste keer aan te haal in 'n
repliserende verklaring. Dit is 'n ander ding om geheel en al
bollemakiesie te slaan ten opsigte van gedingsoorsaak wat die
gedingvoering in 'n totaal verskillende rigting stuur."
[54]
It seems to me, that the following remarks are appropriate for
present purposes against the background of the aforesaid authorities:
• There is no question of the applicants seeking to introduce a
new cause of action, as I already pointed out, let alone performing
a
"bollemakiesie" in the celebrated words of the learned
Judge in
Triomf
.
• It is a question of the applicants, as I pointed out,
repeating evidence already disclosed before the application was
launched
and appearing from annexures to the founding affidavit.
This was done in response to what was said in the opposing affidavit
reflecting the attitude of the respondent on the proper
interpretation of the Rebate item, a stance evidently not earlier
adopted
by the respondent who only attacked the question of whether
or not there were circumstances of
vis major
.
• It is a question of maintaining the applicants' stance on the
proper interpretation of the Rebate item but dealing with
the
evidence that may be required in the event of the somewhat complex
legal argument not being upheld.
• I have already rejected the legal argument but found that the
three provisos were complied with.
[55]
Inasmuch as "special or exceptional circumstances" may have
been required as suggested by the learned Judge in
Shephard
, I
am of the view that these are present, for the reasons mentioned,
particularly where the respondent was invited to file further
affidavits.
[56]
In the circumstances, I am of the view that the evidence on this
particular subject pleaded in the replying affidavit ought
to be
taken into account.
Conclusion
[57]
In all the circumstances, I have come to the conclusion, and I find,
that the application should succeed and the costs should
follow the
result.
The
order
[58] I
make the following order:
1. The applicants' appeal against the respondent's determinations
dated 18 March 2013 (annexure "
FA2
" to the
founding affidavit) and 11 September 2013 (annexure "
FA3
"
to the founding affidavit), alternatively against the respondent's
determination dated 18 March 2013 which was confirmed
by the
respondent on 11 September 2013, is upheld.
2. The said determinations, alternatively determination are set aside
and substituted by a determination that the 200 cases of
Remington
Gold cigarettes imported into the Republic of South Africa on or
about 17 June 2009 and 26 June 2009, as described
in annexures
"
FA8
" and "
FA12
" to the founding
affidavit, qualify for a full rebate of customs duty in terms of
Rebate item 412.09 in Schedule 4 to the
Customs and Excise Act 91 of
1964.
3. The respondent is ordered to pay to the applicants the amount of
R58 877,52 together with interest on the said amount calculated
at the rate of 15,5% per annum (alternatively the applicable
mora
rate of interest from time to time) from 30 October 2009 to date of
payment.
4. The respondent is ordered to pay the applicants' costs of this
application, including the costs flowing from the employment
of
senior counsel.
W R C
PRINSLOO
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
HEARD
ON: 6 MAY 2016
FOR
THE APPLICANTS: J P VORSTER SC
INSTRUCTED
BY: SHEPSTONE & WYLIE ATTORNEYS
FOR
THE RESPONDENT: M P VAN DER MERWE SC
INSTRUCTED
BY: THE STATE ATTORNEY