Multichoice Africa (Pty) Ltd and Another v Commissioner for the South African Revenue Service (6326/2006) [2009] ZAGPPHC 114 (10 September 2009)

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[2009] ZAGPPHC 114
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Multichoice Africa (Pty) Ltd and Another v Commissioner for the South African Revenue Service (6326/2006) [2009] ZAGPPHC 114 (10 September 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE:
10 September 2009
CASE
NO: 6326/2006
In
the matter between:
MULTICHOICE
AFRICA (PTY) LTD
……………….
1
st
APPLICANT
UEC
TECHNOLOGIES (PTY) LTD
………………..
2
nd
APPLICANT
And
THE
COMMISSIONER FOR THE
SOUTH
AFRICAN REVENUE SERVICE
………
RESPONDENT
JUDGMENT
SERITI,
J
1. This matter came to
court by way of motion. In the notice of motion the applicants are
seeking an order in the following terms:
(i) The later delivery
of this application by the first applicant is condoned and the period
for the institution
of this application is
extended to the date of its delivery in terms of section 96(1)(c)(ii)
of the Customs and Excise Act 91 of 1964
(“the Act”);
(ii) The determination of
the respondent dated 8 April 2002 (in respect of the first
applicant) and 10 March 2005
(in respect of the second
applicant) that digital satellite decoders manufactured by the second
applicant for and on behalf of the
first applicant be classified
under Tariff Heading 85.28.12.90 of Part 1 of Schedule 1 of the Act
is set aside and is substituted
with a determination that the said
digital satellite decoders be classified under Tariff Heading
8479.89.90 alternatively Tariff
Heading 8543.89 of Part 1 of Schedule
1 of the Act or such other tariff heading as the Honourable Court may
deem meet.
(iii) In respect of the
first applicant only, and in the alternative to prayers (i) and (ii)
above, the respondent is directed to
withdraw its determination dated
8 April 2002 and to reclassify the digital satellite
decoders under Tariff Heading 8479.89.90,
alternatively Tariff
Heading 8543.89 of Part 1 of Schedule 1 of the Act.
(iv) It is hereby
declared that the digital satellite decoders with model number 720i
and 988 manufactured by the second applicant
for and on behalf of the
first applicant cannot be classified under Tariff Item 124.75 of Part
2B of Schedule 1 of the Act for the
period 1 July 2001 to
1 January 2007.
During his opening
address, the applicant’s counsel advised the court that they are
not proceeding with prayer 1.
2. When the matter was
initially on the roll, the court, on 30 May 2007 made an
order in the following terms:
“
1. The matter is
referred for the hearing of oral evidence, at a time to be arranged
with the Registrar, on the following question:
1.1 Whether the Model
720i ‘Digital Satellite Decoder’ manufactured by the second
applicant is to be classified:
1.1.1 under tariff
heading 8528.12.90 of Part 1 of Schedule 1 to the Customs and Excise
Act, 91 of 1964 (as contended for by the Respondent);
or
1.1.2 tariff heading
8479.89.90 alternatively tariff heading 8543.89 of the said Schedule
and Act (as contended for by the Applicants);
2. The evidence shall be
that of any witness whom the parties, or either of them, may elect to
call, subject, however, to what is
provided in paragraph 3 hereunder
…”
Founding Affidavit
3. It was attested to by
Mr Jan Nicolaas Petrus Meyer the Chief Financial Officer of the first
applicant. He alleges that the first
applicant is a subscription
television service company. The core business of first applicant
involves the encrypted analogue broadcasts
under the brand name DStv.
This application concerns only the encrypted digital satellite
broadcasts under the brand name DStv.
All of the first applicant’s
broadcasts for M Net (excluding the analogue M Net Open
Time) and DStv are done on a subscription
basis. This implies that a
member of the public can only view DStv or M Net if that person
pays the first applicant for the
service. The financial viability of
the first applicant depends on the subscription fees it collects from
its subscribers.
4. The decoders perform
various functions, namely to receive satellite broadcasts via
satellite mostly originating from the first
applicant’s broadcast
centre in Randburg, facilitate the first applicant’s control over
access to those broadcasts, facilitate
certain interactive services,
eg electronic games, programme information as well as news, weather,
e mail and troubleshooting
information.
5. The first applicant
was involved in the development of the Conditional Access System at
the moment, the intellectual property
rights in and to the system are
held by a Dutch business, Irdeto Access B.V. The Conditional Access
System has a component called
Conditional Access Module which is used
in every activated decoder. The first applicant is contractually
obliged to pay a royalty
and licence fee to Irde to Access B.V. in
respect of the proprietary technology and software used in the
Conditional Access Module.
6. On 8 April 2002
(for the first applicant) and on 10 March 2005 (for the
second applicant) the respondent determined
that a digital satellite
decoder is to be classified under Tariff Heading 8528.12.90 of Part 1
of Schedule 1 of the Act, that is,
as a “reception apparatus for
television colour, other”. By virtue of the respondent’s
aforementioned determination, an
ad valorem
excise duty of 7%
is payable by the first and second applicants in terms of Tariff
Item 124.75.
7. The first and second
applicants do not agree with the respondent’s determination and
believe that the decoders should be classified
under Tariff Heading
8479.89.90 alternatively Tariff Heading 8542.89 of Part 1 of Schedule
1 of the Act.
8. He further alleges
that the decoder’s television reception function complements the
decoder’s conditional access function which
in turn complements the
decoder’s conversion function. Without the conditional access
function and the conversion function of
the decoder, the broadcast
signal cannot be viewed by anyone. It must first be decoded before
it can be converted and transmitted
to a television for viewing by
the subscriber. Furthermore a decoder has other applications for
which people subscribe which have
nothing to do with television, e.g.
audio services offered by the first applicant. These subscribers use
a hi fi or other audio
distribution system to listen to the
first applicant’s audio services. Decoders are multi function
electronic machines with
individual functions with no one function
being the principal function.
9. There was a supporting
affidavit attached and it was attested to by Mr Constant Fourie,
employed by the first applicant as manager
of product development.
He is a registered engineer and a specialist in broadcasting and
communication systems, and in particular,
digital satellite decoders.
He confirmed the correctness of Mr Meyer’s affidavit in so far as
it concerns the technical aspects
of the application which fall
within his area of expertise.
10. He further alleged
that decoders do not have any moving parts being operated
electronically and therefore they are not considered
to be mechanical
machines. They are connected to a type of reproducing equipment such
as an ordinary television, a monitor, a projector
and/or a hi fi
or home theatre system. Without the external reproducing equipment,
the decoder would not be useful because
the first applicant’s
subscribers would not be able to access the satellite broadcast
content. Functions and functioning of the
decoder are distinct from
the functions and functioning of the external reproducing equipment.
The reproducing equipment is not
usually reliant on the decoder as a
source of content and its functionality is not affected by the
absence of a decoder.
11. He further alleged
that a decoder performs several individual functions, which include
the following:
11.1 It receives
satellite transmissions containing audio and/or visual and/or
interactive data;
11.2 It decodes these
transmissions;
11.3 It converts the
audio and/or visual data into a format capable of being used by
external reproducing equipment;
11.4 It executes
transmitted and embedded applications and manipulates the data for
display as requested by the subscriber.
11.5 When connected with
a modem to a telephone line it serves as a messaging service similar
to e mail on a personal computer.
12. No single function
can be considered the primary function of the decoder. The first
applicant has, amongst its subscribers those
who only subscribe to
the first applicant’s audio services eg hotels and chain stores.
They cannot view any television channels
but use hi fis or audio
distribution system to convey specific audio channels. He further
alleged that as it is possible to
use the decoder in a viable
business without any television services, television reception cannot
be regarded as an essential function
and therefore is also not the
primary function of a decoder. All of the decoder’s functions
complement each other. The function
of receiving a television signal
is no more than a specific instance of one of the important functions
of a decoder.
13. There was another
supporting affidavit attached, which was attested to by Mr David Neil
Siedle an Electronics Engineer, employed
as a Project Architect by
Irdeto Access B.V. He alleged that he is an expert in the field of
electronic engineering and his area
of speciality lies in the
integration of Conditional Access into digital satellite decoders.
He confirmed the correctness of the
affidavit of Mr Meyer insofar as
it concerns the technical aspects of this application which are
within his area of expertise.
14. He described how the
Irde Conditional Access System works and further stated that the
primary purpose of the Irdeto Conditional
Access System is to provide
an auditable means of ensuring that payment is received in return for
the consumption of broadcasting
programme rights. Access to certain
protected programming is made conditional upon payment for the
consumed content by the entitled
end user.
15. He further alleged
that their Conditional Access System consists of three main
components. The said components are the following:
15.1 The Irdeto Access
Standalone Scrambler situated at the premises of the broadcast centre
infrastructure of the first applicant;
15.2 The Conditional
Access Control system; and
15.3 A network of
decoders, incorporating a conditional access module, dispersed
countrywide at the premises of the subscribers.
He further explained how
the said three components functions.
16. The last supporting
affidavit that was attached was attested to by Mr Charles Reeves,
Financial Director of the second applicant.
He alleged that the
second applicant manufactures digital satellite decoders for and on
behalf of the first applicant. The second
applicant reconciles
itself with the affidavits made on behalf of the first applicant, and
confirms correctness thereof insofar as
they refer to the second
applicant.
Answering Affidavits
17. It was attested to by
Mr Jean Pool a Tariff Specialist in the employ of the respondent. He
alleged that in order not to cause
confusion, the products, which the
applicant refers to as decoders, he will refer to them as “satellite
receivers”. He alleged
that it is not correct that the nature and
functions of all satellite receivers are as set out in the affidavits
of Messrs Fourie
and Siedle. Although satellite receivers may vary
in the functions they perform, they all perform the following central
functions:
17.1 They receive a
satellite transmission containing visual, audio and interactive data;
17.2 They decode the
signal – this entails the converting of the data into a format
capable of being read by the television set,
video/cd recorder,
projector or tv monitor/screen to which it is connected.
17.3 They regulate access
to the data by means of the satellite receiver’s conditional access
function which, in practice is done
by means of a smart card.
18. He further alleged
that the principal function performed by the satellite receiver is
the receiving, (which includes decoding)
of the satellite signal and
that the conditional access function is complementary and accessorial
thereto. The real commodity that
is made available to customers by
means of the satellite receiver is television programs and the games,
program information, news
and weather information are merely
secondary and/or additional features. He accepts that the satellite
receiver has additional features
and can perform additional functions
but that fact does not mean that it has a principal function.
19. A supporting
affidavit attested to by Mr Jacques Herman Van Wyk, a qualified
electronic engineer and employed as a lecturer by
the Department of
Electrical, Electronic and Computer Engineering of the University of
Pretoria. He alleged that during August 2004
he was approached
by representatives of the respondent to assist with advise on the
true nature and functioning of so called
Digital Satellite
television (DStv) decoder manufactured by the second applicant. He
was furnished with a sample of the product
in question, namely model
DSD 720i. The product will be referred as a satellite receiver.
20. After examining and
analysing the nature and functioning of the satellite receiver and
after perusing the relevant technical data
relating thereto and
relevant legislative provisions he prepared a report in which he
concluded that the principal function of the
satellite receiver is
the receiving and decoding of a satellite television signal. By and
large he is in agreement with the evidence
of the applicant’s
expert, Mr Constant Fourie as far as the functioning of the satellite
receiver is concerned.
In the absence of the
external reproducing equipment, ie television set or television
monitor, that would not affect the functioning
of the satellite
receiver but would merely make it impossible for a subscriber to view
the selected broadcast content. He further
said “Although the
functions such as the interactive and messaging services could be
seen as individual functions, the main functions,
ie receiving of the
satellite signal, decoding and the granting of access are clearly
complementary functions.”
21. He further alleged
that the functions performed by the satellite receiver comprise the
following three main functions:
21.1 The receiving of a
satellite signal;
21.2 The decoding of the
received satellite signal – this entails the processing or
converting of the signal received from the satellite
into a format
that can be understood and read by the external reproducing
equipment, ie television set;
21.3 Only in the event of
the television signal being encrypted, the granting of access to the
decoded signal. If the signal is encrypted,
as would be the case
with almost all of the Multichoice signals, the viewer would not have
access thereto, unless the data has been
decrypted by the conditional
access function. What is clear is that central to the said functions
is the reception of the satellite
broadcast signal.
22. In conclusion, he
stated that:
22.1 There can be no
doubt that although the satellite receiver has various complementary
functions, the principal function being
the reception and conversion
of the satellite signal;
22.2 Except for the
presence of a conditional access function and the absence of a modem,
the product in issue complies with the product
contemplated in
Explanatory Note 4 to Tariff Heading 85.28;
22.3 The presence of the
conditional access system does not affect the nature and functioning
of the product.
Replying Affidavit
23. It was attested to by
Mr Jan Nicolaas Petrus Meyer who also deposed to the founding
affidavit. He pointed out that in this application
the respondent
together with their expert Mr Van Wyk choose to refer to the product
in question as “satellite receiver” although
in a report that he
made available to the respondent, Mr Van Wyk referred to the products
as “digital satellite decoders”.
24. He further alleges
that the only differences between the DSD 720i model decoder and
the DSD 988 model are the following:
24.1 The DSD 720i
model was manufactured by the second applicant in South Africa,
whereas the DSD 988 model was manufactured
in Thailand.
24.2 The layout of the
components within each model differs slightly according to the method
of manufacture of the respective manufacturers.
The two models
differ only marginally.
The two models function
in the same manner. The decoders which are the subject of this
application are, for the purpose of this application,
precisely the
same. Although different manufacturers were used, both models were
developed and manufactured in accordance with precisely
the same
technical specifications. The nature and functioning of both models
are the same.
25. He further said that
since the respondent does not agree with the fact that the decoders
which are the subject matter of this
application are, for the purpose
of tariff classification, precisely the same, the respondent is
invited to file a further affidavit
in which he details the points of
distinction (material to this application) between the DSD 720i
model and the DSD 988
model. He also pointed out that it is not
insignificant that the respondent issued determinations for both
models and therefore
had all the information at its disposal to
furnish the court with substantive points of distinction between the
two models of decoders
should such points of distinction have
existed, but the respondent failed to do so.
26. He further stated
that in addition to facilitating the collection of subscriptions and
facilitating a subscriber’s choices,
the Conditional Access Module
also assist the first applicant to comply with conditions attached to
channels purchased by the first
applicant. It also ensures that the
first applicant does not fall fowl of the industry Regulatory Body
namely the Independent Communications
Authority of South Africa
(“ICASA”). It must be noted that a satellite broadcast has a
vast geographical area which can be reached
by a satellite signal.
When the signal sent from the first applicant’s broadcast centre in
Randburg is beamed back to earth by
the satellite, that signal covers
the whole of Southern Africa. But for the encryption of the signal
and the Conditional Access
Module which again unencrypts that signal,
a person in for example Botswana would be able to pick up the signal
and watch or listen
to whatever channel is broadcast and selected.
27. The first applicant’s
broadcast permission does not allow it to broadcast its services in,
for example Botswana. Similarly
some of the channels purchased by
the first applicant are subject to certain conditions. It is only
through the Conditional Access
Module that the first applicant can
control who can benefit from its broadcast signals and thereby ensure
that it does not breach
the rights bestowed on it or fall foul of
ICASA.
28. In response to the
affidavit of Mr Van Wyk, he denied that Mr Van Wyk is qualified to
give an expert opinion on all the aspects
and functions of a decoder.
He pointed out that Mr Van Wyk’s terminology for the decoders does
not accord with the terminology
used by him in a report he drew some
time ago, in which report he referred to the decoders as “digital
satellite decoders”.
He also denied that Mr Van Wyk considered
technical information of the decoders relevant to this application.
He further pointed
out that Mr Van Wyk, in his report referred to
earlier concluded that “the primary function of a Satellite Decoder
is to decode
a satellite signal” and he did not restrict the signal
to a television signal. According to the said report Mr Van Wyk did
not
find that reception is a principal function of the decoders.
29. In conclusion, he
stated that the conclusions of Mr Van Wyk are factually incorrect in
so far as Mr Van Wyk has analysed an antiquated
system of conditional
access in a different product and unreliable insofar as they do not
accord with his previous conclusions.
30. A supporting
affidavit of Mr Constant Fourie was attached. In the said affidavit
it is stated that he has read the replying affidavit
of Mr Meyer and
he confirms as correct the allegations of a technical nature therein.
A confirmatory affidavit from the second applicant
was also
attached.
Experts Agreement
31. This agreement was
signed by the four experts, namely Messrs Siedle and Fourie, who
testified on behalf of the applicants and
Messrs Van Wyk and Von
Willich who prepared experts reports on behalf of the respondent.
According to the said agreement the experts
agreed on certain issues
and some of the said issues are noted as follows:
31.1 For any meaningful
functionality decoders are dependent on receiving a satellite signal;
31.2 The functionality of
a decoder can be broken up into three functions, namely receiving the
signal, applying conditional access
and converting the signal to a
format compatible with external reproducing equipment.
31.3 A satellite signal
does not necessarily contain television services and a decoder is not
dependent on the reception of a signal
containing television service
for it to function.
31.4 Decoders do not have
any moving parts being operated electronically, and therefore are not
considered to be mechanical machines.
31.5 Even if a decoder is
not connected to any reproducing equipment it will still perform its
functions of receiving, applying conditional
access to and converting
the signal. The functions and functioning of the decoder are
distinct form the functions and functioning
of the external
reproducing equipment.
31.6 The Multichoice 720i
decoder has more than one vital function and they all need to work in
harmony to complement each other and
provide the full potential of
the originally intended purpose.
31.7 A decoder is not a
reproducing apparatus for television and no single function of the
decoder can be considered its principal
function.
Oral Evidence
32. The applicants called
Messrs Fourie and Siedle to testify. They confirmed their experts
reports and also testified and gave reasons
why on certain aspects
the respondent’s experts version is not correct. They also gave
evidence relating to the functions of a
decoder. After their
evidence applicants closed their case and respondent also closed its
case without leading any oral evidence.
Findings
33. The evidence of the
experts reveals that a decoder has three functions namely receiving
the signal, applying conditional access
and converting the signal to
a format compatible with external reproducing equipment. A decoder
is not dependent on the reception
of a signal containing a television
service for it to function. A satellite signal does not necessarily
contain television services.
A decoder is not a
reproducing apparatus for television and no single function of the
decoder can be considered its principal function.
The functions
performed by a decoder are individual functions which are distinct
form the functions and functioning of the external
reproducing
equipment.
34. The experts, as
stated above agreed that no single function of a decoder can be
considered its principal function and Mr Fourie
in his statement also
stated that in his opinion no single function of the 720i decoder can
be considered its principal function,
and he gave reasons for the
said opinion.
35. As stated earlier,
the court order dated 30 May 2007 stated that the question
to be determined is whether the Model
720i “Digital Satellite
Decoder” manufactured by the second applicant is to be classified
under tariff heading 8528.12.90 of
Part 1 of Schedule 1 to the Act or
tariff heading 8479.89.90 alternatively tariff heading 8543.89 of the
Act as contended for by
the applicants.
36. The respondent’s
counsel submitted that the various functions performed by the decoder
are not “individual” functions as
contemplated by tariff headings
84.79 and 85.43. This submission is not supported by the
evidence tendered in this case. In
the statement of Mr Constant
Fourie it is stated that “The functions performed by a Multichoice
decoder are individual functions
in the sense that it can be
performed distinctly from and independently of any other machine.”
I cannot find any reason not to
accept the version of Mr Fourie.
37. The respondent’s
counsel further submitted that the various functions performed by the
decoder, taken together, constitute a
“reception apparatus for
television”. This submission is incorrect. Mr Fourie’s evidence
is to the effect that decoder performs
various functions and
television reception cannot be regarded as an essential function nor
a principal function of a decoder. He
also pointed out that there
are certain subscribers of Multichoice who only subscribe to
Multichoice audio services, eg hotels and
chain stores.
It appears to me that
the tariff headings contended for by the respondent are
inappropriate.
38. The applicants
contend that the decoders should be classified under tariff heading
8479.89.90 alternatively 8543.89.
The relevant parts of
tariff heading 84.79 reads as follows:
“
Machines and
mechanical appliances having individual functions, not specified or
included elsewhere in this chapter.
8479.8 – Other machines
and mechanical appliances.
8479.89 – Other.”
39. The explanatory notes
to the abovementioned tariff heading provides as follows:
“
This heading is
restricted to machinery having individual functions, which …
For this purpose the
following are to be regarded as having ‘individual functions’ …
(B) Mechanical devices which cannot perform
their functions unless
they are mounted on another machine or appliance, or are incorporated
in a more complex entity, provided that
this function:
(i) is distinct from that
which is performed by the machine or appliance whereon they are to be
mounted, or by the entity wherein
they are to be incorporated; and
(ii) does not play an
integral and inseparable part in the operation of such machine,
appliance or entity.”
40. From the evidence
presented, it is clear that decoders have individual functions which
are distinct and independent of any other
machine. During argument,
I was not referred by any of the counsel to any heading which covers
decoders nor any section or chapter
note which excludes decoders from
the chapter under consideration.
My view is that the
Model 720i “Digital Satellite Decoder” manufactured by the second
applicant should be classified under tariff
heading 8479.89.90.
41. The next issue to be
considered is the applicability or otherwise of tariff item 124.75
for the period 1 July 2001 to
1 January 2007.
The relevant tariff item reads as follows:
“
Reproducing apparatus
for television, whether or not incorporating radio broadcast
receivers or sound or video recording or reproducing
apparatus; video
monitors and video projectors.”
42. According to the
agreement of the experts a decoder is not reproducing apparatus for
television. The applicant’s counsel correctly
submitted that the
primary product identified in tariff item 124.75 is a “reproducing
apparatus for television” which is qualified
by the words that
follow thereafter.
43. The respondent’s
counsel submitted that read in context the use of the word
“reproducing” instead of “reception” is
a palpable and
manifest error which the court on ordinary cannons of interpretation
should disregard and substitute with the word
that was intended to be
used ie “reception”.
In
Ebrahim v Minister
of Interior
1977 1 SA 665
(AD) 678A the court said that the
golden or general rule of construction is that words must be given
their ordinary, literal and
grammatical meaning, unless if doing so
would lead to absurdity or to result contrary to the intention of
Parliament. I cannot find
any reason not to apply the golden or
general rule of construction. The application thereof does not
result to an absurdity or failure
to give effect to the intention of
the legislature. The respondent’s counsel’s submission made in
this paragraph is not sustainable.
The tariff item in question in my
view was intended to apply to “reproducing apparatus for
television” and decoders are not
such apparatus.
44. The next question to
be determined is the relief sought by the first application in prayer
(iii) of the notice of motion. The
said relief is premised on the
second applicant succeeding with the relief that it seeks in prayer
(ii) and on the fact that the
720i Model and 988 Model decoders are
the same for purpose of this application.
45. In the founding
affidavit, the applicants stated that for the purpose of this
application 720i model decoder and 988 model decoder
are the same and
in the answering affidavit the respondent denied that they are the
same. In the replying affidavit the applicants
invited the
respondent to file a further affidavit in which it details the points
of distinction (material to this application) between
DSD 720i
model and the DSD 988 model. The respondent did not file such
further affidavit and consequently the court will
accept that the
said models are for the purpose of this application the same.
46. Section
47(9)(d)(i)(bb) of the Act states:
“The Commissioner
shall –
(aa) …
(bb) … amend any
determination or withdraw it and make a new determination if it was
made in error … or on any other good cause
shown including any
relevant ground for review contemplated in
section 6
of the
Promotion
of Administrative Justice Act, 2000
.”
As stated earlier in this
judgment the appropriate tariff heading of the Model 720i “Digital
Satellite Decoder” is tariff heading
8479.90 and not tariff heading
8528.12.90. There is also uncontested evidence to the effect that
for the purpose of this application
that model 720i and model 988
decoders are the same. This, of necessity implies that the
respondent made the determination issued
to the first applicant in
error.
47. My view is that the
applicants have made out a case for the relief sought in the notice
of motion.
The court therefore
makes the following order:
(i) The determination of
the respondent dated 8 April 2002 (in respect of the first
applicant) and 10 March 2005
(in respect of the second
applicant) that digital satellite decoders manufactured by the second
applicant for and on behalf of the
first applicant be classified
under Tariff Heading 85.28.12.90 of
Part 1
of Schedule 1 of the Act
is set aside and is substituted with a determination that the said
digital satellite decoders be classified
under Tariff Heading
8479.89.90 of Part 1 of Schedule 1 of the Act.
(ii) In respect of the
first applicant only, the respondent is directed to withdraw its
determination dated 8 April 2002
and reclassify the digital
satellite decoders under Tariff Heading 8479.89.90 of Part 1 of
Schedule 1 of the Act.
(iii) It is hereby
declared that the digital satellite decoders with model number 720i
and 988, manufactures by the second applicant
for and on behalf of
the first applicant cannot be classified under Tariff Item 124.75 of
Part 2B of Schedule 1 of the Act for the
period of 1 July 2001
to 1 January 2007.
(iv) The respondent is to
pay the applicants’ costs on a party and party scale, which costs
will include costs consequent upon the
employment of two counsel.
W L SERITI
JUDGE OF THE NORTH
GAUTENG HIGH COURT
6326/2006/sg
Heard on
: 28
August 2009
For
the Applicants
: Adv A P Joubert SC & C J McAslin
Instructed
by
: Messrs Cliff Dekker Hofmeyr Inc, Pretoria
For
the Respondent
: Adv C E Puckring SC & J A Meyer SC
Instructed
by
: The State Attorney
Date
of Judgment
: