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[2015] ZAGPPHC 167
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Auto Haus Car Hire and Tours (Pvt) Ltd v Commissioner South African Revenue Services and Another (18077/2015) [2015] ZAGPPHC 167; 77 SATC 248 (2 April 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER:
18077/2015
DATE: 2 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
AUTO HAUS CAR
HIRE AND TOURS (PYT)
LTD
.........................................................
APPLICANT
And
THE
COMMISSIONER
........................................................................................
FIRST
RESPONDENT
SOUTH AFRICAN
REVENUE SERVICES
SECHABA TRUST
(PTY)
LTD
......................................................................
SECOND
RESPONDENT
REASONS FOR THE
ORDER GRANTED ON 11 MARCH 2015
MAVUNDLA J;
[1] The applicant
approached this court on the 11 March 2015 for an order that:
1.1 The matter is
heard on urgent basis and that the usual requirements with regard to
form and service provided for in the rules
be dispensed with in
accordance with Uniform Rule 6 (12);
1.2 The first and or
second respondent be ordered to stay the sale of the Rolls Royce
Ghost motor (Chassis number: SCA664S08UH14637
and engine number
90154707) (hereinafter referred to as "the vehicle"), for
which the tenders were scheduled to close
by 12:00 on 11 March 2015;
1.3 The above
interdict to be effective until adjudication of the issues raised by
the applicant in its section 96 Notice to the
first respondent,
served on 10 March 2015;
1.4 costs of the
application:
(a) against the
first respondent on attorney and client scale;
(b) against the
second respondent on attorney and client scale, only in the event
that the second respondent refuses to undertake
to stay the sale.
(c) Alternatively
that costs be reserved for determination in the main proceedings to
be instituted by the applicant according to
its s96 notice.
[2] The application
was opposed by the first respondent. Second respondent did not file
any papers at all. I dismissed the application
with costs including
the cost of 2 (two) counsels. I further indicated that reasons will
follow in due course. I therefore proceed
to tabulate the reasons for
the said order.
[3] The application
was founded on the affidavit deposed to by the applicant's attorney,
Mr. Engelbertus Leonard Grove of Nardus
Grove Attorneys. It is not in
dispute that the applicant is a company incorporated and registered
according to the Laws of Zimbabwe
The applicant has its principal
place of business at Stanford Crescent, Eastlea, and Harare,
Zimbabwe. It is common cause that
Mr Frank Buyanga Sadiiqi is the
sole director of the applicant and assisting the applicant in his
capacity as such.
[4] The sale was
scheduled to take place at 12:00 on 11 March 2015. This sale
according to Mr Grove was brought to his attention
by the first
respondent on the 6 March 2015. At the time Buyanga was out of the
Country in Zimbabwe and only returned on the weekend
of 9 March 2015.
Accepting Grove's version on urgency, it was only then that a
meaningful consultation was possible and counsel
was briefed to
settle the papers. During the course of 10 March 2015 a 596 Notice
was prepared and served on the first respondent.
A copy of the
relevant s96 Notice was attached as annexure "NG2". Indeed
the founding affidavit was deposed to and commissioned
on the 10
March 2015.
[5]
The respondent filed an unsigned and un-deposed to affidavit. In an
urgent application, the court has discretion to condone
deviation
from rule 6(5) of the Uniform Court Rules. The applicant's affidavit
was deposed to on Sunday the 10 March 2010. The
first respondent was
invited to attend court on 11 March 2011 at 10:00. The sale sought to
be stayed was scheduled for 11 March
2011 at 12:00. In my view, the
matter was indeed urgent and warranted that I condone both the
applicant in not affording the first
respondent sufficient notice as
required in terms of Rule 6(5), and the first respondent in not
filing a commissioned opposing
affidavit, as required in terms of
rule 6(5)(d). In my view, the application was indeed urgent and for
that reason I heard the
matter on urgent basis;
vide n
Gallagher v Norman's Transport Lines (Pty) Ltd
1992
(3) SA 500
at 502E-503D.
[6] The applicant
claimed ownership in respect of the relevant motor vehicle, which was
imported from the UK via Durban, destined
to Zimbabwe. It is common
cause that the SAPS detained the said vehicle since 2010. The first
respondent detained the vehicle in
terms of the provisions of s88 (1)
(a) of the Customs and Excise Act 91 of 1964 on or about 25 March
2013.
[7] The applicant
contended in its papers that, despite allegations of fraud and
syndicates, which was the reason the vehicle was
pulled off the road
during 2010, no charges were officially levelled against the
applicant or Mr Frank Buyenga. The first respondent
in its letter of
5 November 2014 communicated that it was still not satisfied with the
evidence of ownership, and invited the applicant
to make
representations in terms of s93 of the Act. The applicant responded
via an email on 14 November 2014. However since then
the applicant
was not provided with reasons regarding the representations. The
applicant further addressed a letter on 26 January
2015 to which the
respondent replied per letter of 3 February 2015 where it was alleged
that albeit that a decision in terms of
s93 was already taken, the
applicant was entitled to written reasons. No such reasons were
forthcoming. Only on the 6 March 2015
on further inquiry the first
respondent provided the applicant with an advertisement for the sale
of the vehicle scheduled for
11 March 2015. A s96 Notice was then
prepared and served on the first respondent on 10 March 2015.
[8]
The applicant further averred that it has, if not a clear right, at
least a
prima facie
right
to the vehicle. For all the years no one has claimed ownership of the
vehicle, and neither fraud charges preferred against
the applicant or
its representatives.
[9] The applicant
has a grounded apprehension of irreparable harm should the interim
relief not be granted, because the applicant
stand to lose the
vehicle which it has purchased and paid for. The applicant doubts the
independence of the public auction sale
of the vehicle as the
proceeds realised would not replace today's value of the vehicle.
[10] The applicant
further averred that the balance of convenience favours the granting
of the interim relief because an opportunity
in terms of PAJA would
be afforded the applicant to address the issue of the first
respondent's purported decision and or failure
to provide reasons;
The first respondent would not suffer any harm or real prejudice
during the process of further representation
in terms of PAJA.
[11] There are
various other annexures attached to the applicant's papers, some of
which I will in due course refer to.
[12] The applicant
sought an interim relief, pending the adjudication of the issues
raised by the applicant in its s96 Notice to
the first respondent
served on the 10 March 2015. The granting of an interim interdict
pending an action is an extraordinary remedy
within the discretion of
the Court. For an applicant to succeed on an interim relief, he must
satisfy the court that: (a) he has
a right which, 'prima facie
established is open to some doubt';
(b) has a
well-grounded apprehension of irreparable injury;
(c) there is absence
of ordinary remedy;
(d)
the balance of convenience favours the grant of such relief;
vide
Eriksen Motors (Welkom) Ltd v Warrenton and Another
1973
(3) SA 685
(A) at 691C-G.
[13] It is trite
that a legal entity, such as the applicant, exists independently of
its directors. It can own assets in its own
capacity. A director of a
legal entity cannot, in his own personal capacity own the assets of
the legal entity. He remains an agent
of the legal entity and can
only act on behalf of the legal entity if so authorised.
[14] S93 of the
Customs and Excise Act accords the first respondent, on good cause
shown by the owner, a discretion to release a
seized items, in casu,
the vehicle. The burden to prove ownership rest on the person
claiming ownership. Where there are more than
one person claiming
ownership, ownership must be decided by the court, and only then can
the first respondent on the court's order,
release the seized
vehicle.
[15] The essence of
the first respondent's opposition to the grant of the relief sought
by the applicant was that the latter is
not the owner of the vehicle
but Mr Frank Buyenga Sadiiqi is. In this regard the first respondent
relied on the letter of the 17
September 2013 from Witz Padayachee
& Isakow ("M P I Attorneys"), wherein Mr Frank
Buyenga professed to be the
owner of the said vehicle. The first
respondent further contended that Mr Sadiiqi in claiming to be owner
of vehicle presented
to it false documents reflecting the purchase
price of the vehicle to be USD80 000. 00. The first respondent
subsequently on the
evidence before it, found that the vehicle had
been dealt with irregularly as contemplated by s87 (1) of the Act and
on 4 July
2014 informed Mr Sadiiqi that his application in terms of
s93 (1) was refused for insufficient proof that he was the owner of
the
vehicle, per letter 4 July 2014 (annexure 8).
[16]
In a letter dated 17 February 2011 from the applicant's attorneys
Christelis Artemides, (annexure "G" paginated page
35) it
is alleged that the applicant is the owner of the vehicle and paid
£172, 000 therefor. Where false documentation has
been used in
respect of imported goods, such goods are liable to forfeiture in
terms of ss 83, 84 and 87 of the Act. The first
respondent advised
the applicant's erstwhile attorneys DMS Attorneys per letter dated 10
October 2014 that the vehicle is forfeited.
The applicant has also
attached a letter of 28 October addressed to
Deca Motors
International Ltd
in London
instructing them to consign the vehicle to Ian Frank Properties Cc
for £172, 000.
[17]
The purpose of Customs and Excise Act is,
inter alia
,
to provide proper control on the levying and excise duties and
surcharge on importation and exportation of goods into and from
the
Republic. This entails,
inter alia
,
that those who import and export through our harbours, must transect
with the first respondent with
uberrimae fides,
otherwise
less revenue would be paid or collected the first respondent to the
detriment of the country. Where, there seems to be
lack of candour in
making an accurate disclosure of the proper value of the relevant
commodity involved, the court in the exercise
of its discretion
should be slow in coming to the rescue of such a litigant.
In
casu,
it would seem that first
and foremost, the true owner of the vehicle was not properly
disclosed, and secondly the true value of
the vehicle was
questionable, either as £172, 000 or USD80 000. 00.
[18] In my view, the
decision of the first respondent that it was not proven who the owner
of the vehicle was, cannot be assailed,
regard being had to the
conflicting evidence concerning ownership and the value of the
vehicle. In my view, both the urgent application
as well as the s96
notice stand to be dismissed, as I did.
[19] It is trite
that the costs follow the event. The first respondent employed,
rightly so in my view, the services of a senior
counsel and junior
counsel. The applicant must be mulcted with the costs inclusive the
costs of two counsel.
[20] I therefore
hand down the reasons for the order dismissing the application with
costs of two counsel.
N M MAVUNDLA
JUDGE OF THE HIGH
COURT
DATE OF HEARING :
11 / 03 / 2015
DATE OF JUDGMENT
: 02 /04 /2015
APPLICANT'S ATT :
NG ATTORNEYS
APPLICANT'S ADV :
ADV D H WIJNBEEK SC
1ST RESPONDENT'S
ATT: STATE ATTORNEY PRETORIA
RESPONDENT'S ADV
: ADV J A MEYER SC with ADV H A MPSHE