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JUDGMENT
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LE GRANGE , AJ:
Introduction
[1] This is an application which was initiated as a review application but is (by
agreement between the parties) being dealt with as a statutory appeal as
provided for in section 47(9)(e) of the Customs and Excise Act, 91 of 1964
(“Act ”) against a tariff determination (CTN 55/2020 dated 5 July 2020) of the
product, which is more fully described hereinunder, as an article of plastic in
the tariff heading (“TH”) 3926.90 of Part 1 of S chedule No 1 to the Act,
whereas the applicant content that the product should be classified as a
connector for optic fibr e, cable and bundles contemplated in TH8536.70,
alternatively as a part thereof as contemplated in TH8538.90 of Part 1 of
Schedule 1 of the A ct.
[2] In the premises, the matter before me stands to be dealt with as a complete re -
hearing and fresh determination of the merits of the matter with or without
additional evidence or information.1
[3] Before we delve into the merits, the respondent applied for the filing of
duplicating affidavits which application was unopposed. As new, and most
probably unexpected, evidence was presented in the replying affidavit, I find
1 Tikly and Others v Johannes NO and Others 1963 (2) SA 588 (T) at 590G ; Cell C v Commissioner for the
South African Revenue Service 2022 (4) SA183 (GP ) at par 10.
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that special circumstances exists for the filing of further affidavits by the
respondent .
[4] The issue then for determination is which tariff heading would be most
appropriate for the product.
Classification process
[5] The three step process of tariff classification seems to be settled in law2 and is
follows:
(i) First, interpretation – the ascertainment of the meaning of the words used in
the headings (and relative section and chapter notes) which may be relevant;
(ii) Second, consideration of the nature and characteristics of the goods; and
(iii) Third, the selection of the heading which is the most appropriate to the goods.
[6] In determining the nature, characteristics and properties of the goods (in
accordance with (ii) above) , the goods are classified with reference to the
nature and characteristics of the goods as a whole .3
[7] The general rule is that goods are characterised by their objective
characteristics, and not by the intention with which they were made, or the use
they may be put.4 There is, however, an exception to this general rule namely
where the wording of the relevant tariff heading, or notes makes the intended
2 International Business Machines (Pty) Ltd v The Commissioner for Customs and Excise 1985 ( 4) SA 852
(A) at 863G -H.
3 The Heritage Collection (Pty) Ltd v Commissioner, South African Revenue Service 2002 (6) SA 15 (SCA)
at 21C -D.
4 South African Revenue Service v The Baking Tin (Pty) Ltd 2007 (6) SA 852 (A) at 548G -H; Durban North
Turf Club v Commissioner of the South African Revenue Services 2011 (2) SA 347 (KZP) at paras 36 and 37 .
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use relevant5. See also Commissioner, South African Revenue Service v LG
Electronics SA (Pty) Ltd where the Court stated: ‘That it is the primary design and
use which carries most persuasion.’6
[8] I will deal hereinunder with the respective proposed tariff heading s, each under
their own headings.
TH8536.70
First, interpretation – the ascertainment of the meaning of the words used in the headings
(and relative section and chapter notes) which may be relevant
[9] TH8536.70 provide for: ‘Connectors for optical fibres, optical fibre bundles or cables ’.
[10] In casu, the words ‘Connectors for optical fib res’ finds application and need
to be interpreted.
[11] In this regard, Note 7 to Chapter 85 provides an explanatory note to the term
‘connectors for optical fibres, optical fibre bundles or cables ’, and as follows:
‘For purposes of heading 85.36, ‘connectors for optical fibres, optical fibre bundles or
cables’ means connectors that simply mechanically align optical fibres end to end in a digital
line system. They perform no other function, such as the amplification, regeneration or
modification of a signal. ’ [Emphasis added]
[12] ‘Connector ’ is defined by Oxford Languages , as:
• a thing which links two or more things together. "a pipe connector"
5Commissioner, South African Revenue Service v Komatsu SA (Pty) Ltd 2007 (2) SA 157 (SCA) at 160F –
161A ; Mustek Ltd v South African Revenue Service 2017 JDR 0729 GP at par 15.
6 2012 (5) SA 439 (SCA) at par 16.
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• a device for keeping two parts of an electric circuit in contact. “a cable connector”’
[13] Considering all of the above, a ‘connector for optical fibr es’ would be a
product, thing or device which would enable the mechanical alignment and
joining of two optical fibres end to end in a digital line.
Second, consideration of the nature and characteristics of the goods
[14] The goods in question is described in the lit erature as a ‘FCST01131 Fiber
Optical Splice Closure – 8 Core’ and were imported in the state as reflected in
the following photos.
[15] According to Mr. Cheng, the product or similar products are called a ‘tray’ in
the industry and for that reason I will refer to it as such.
[16] Describing the tray (as the respondent does) as just a box is inaccurate. It is
clear from the photos and the evidence before me, that the tray (at the time of
importation) was made up of various parts or components being (i) a black
outer plastic box, (ii) a white inner splice tray, (iii) two metal clamps , and (iv)
various other metal screws and plates . The evidence further points out that it
may possibly also have had a clear plastic bag containing cable ties, splice
protectors, wall plus, and screw s.
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[17] The papers has borne out that the tray may be accompanied with or without
cable fibr e connectors . None was however included at the time of import. The
latter aspect was a contentious issue in the correspondence between the parties
and do I find the applicant ’s persistence that the tray did included connectors ,
deplorable.
[18] Be that as it may, the position is clear and Mr. Cheng provide further insight
to the tray , without connectors. His evidence is that a fibre- optic cable has
extension and bend radius limitations , when exceeded can result in fibre
breakage or excessive amount of light signal power losses . In order to prevent
this, it is standard practice for fibre -optic cables to be installed in a tray or
duct.
[19] Mr. Cheng further conclude that the tray is a plastic box designed to perform
two functions:
• ‘To organise optical fibre cables and integrated components such as connector and
midcouplers; and
• To protect them from being damaged as above, as well as from the elements in
general. As far as the latter function is concerned, I may add that the product is quite
sturdy and has evidently been designed and manufactured for internal and external
use.’
[20] From the above it is clear that t he tray was specifically designed and
manufactured to forms an integral part of a standard fibre installation, more
specifically at the (or certain) connection points.
[21] After describing what a n optic cable connector entails, Mr Cheng concludes
that the tray is not a connector . If I understand his evidence correctly, the tray
is not a connector in itself but is specifically designed with the primary
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function to facilitate and ensure an easy, safe, proper, functional and aligned
connection of optical fibre.
[22] I agree with the above . The tray itself has as primary function to facilitate
(together with a connector(s)) a proper connection but does not in itself enable
a connection of optic fibres . It is thus not a connector .
[23] The applicant’s contention that the tray is indeed function ally a connector, fall
further foul when regard is had to the fact that some of the fibres may just pass
through the tray without being connected .
[24] I further agree with the respondent that the difference between an empty tra y
and one fitted with connecters is material, to such an extent that it is
determinative of the classification thereof . In the event that the tray contained
connectors upon entry , I submit that another characterisation of the product,
may be warranted.
TH 85.38
First, interpretation – the ascertainment of the meaning of the words used in the headings
(and relative section and chapter notes) which may be relevant
[25] TH 85 .38 provide for: ‘Parts suitable for use solely or principally with the apparatus of
heading 85.35, 85.36 or 85.37 ’.
[26] In reply, t he applicant (not waiving its initial stance) introduces an alternative
classification , under TH8538.90. Contending that the tray is a part, suitable for
use solely or pr incipally with the apparatus of heading 85.36 , the latter which
is the ‘connectors for optical fibres ’.
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[27] The respondent, having had the opportunity to answer hereto, did not contest
the point in duplication but raised the argument that this classification is also
incorrect . For its reasoning, the respondent considered the definition of the
word ‘Part(s)’ (in the tariff heading) and stated (using only one of the multiple
dictionary references) it to be ‘a portion or division of a whole that is separate or
distinct ; piece, fragment, or section; constituent : the rear part of the house; to glue the two
parts together. ’, and argued that as the tray is not a part of the connector for
optical fibres , that such a classification would also not suffice .
[28] The argument fails to consider the heading in full, which is composed of a
complete sentence with multiple words and not just the word ‘Parts’.
[29] The correct question would be, w hat is meant with ‘Parts suitable for use solely
or principally with the connectors for optical fibres’ ?
[30] Using the word ‘ with’ in the sentence is indicative that the ‘part
(piece/fragment/section)’ is not a part(s) of the connector but rather another
part(s) which can be used with the connector , to ensure a certain or specific
outcome .
[31] It is further clear from the wording of the tariff heading and more specifically
the use of the words ‘ … suitable for use solely or principally with …’ that the
part(s) must have an intended use . Hence this is a matter where the exception
to the general rule (as referred to above) comes in play and where the wording
of the relevant tariff heading or notes makes the intended use relevant .
Second, consideration of the nature and characteristics of the goods
[32] Considering the nature and chara cteristics of the tray as already stated above,
it is clear that the tray was specifically designed for use solely or principally ,
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as a standard practice with fibre connectors and cables, to facilitate and ensure
an easy, safe, proper, functional and aligned connection of optic fibres .
[33] For this reason, I find that the tray sits comfortably within TH85.38.
Third, the selection of the heading which is the most appropriate to the goods
[34] Considering that TH8538.10 is in no way relevant , the most appropriate
heading is TH8538.90.
TH 3926.90
[35] My finding above is dispositive of a finding that the tray falls within
TH3926.90.
Order [36]
In the result the following order is made :-
1. The respondent’s application for the filing of a duplicate affidavit is
granted with no order as to costs.
2. The tariff determination no CTN 55/2020 dated 5 July 2020 is set aside.
3. The product described as ‘FCST01131 Fiber Optical Splice Closure – 8
Core’ , imported under cover Bill of Entry 5016178 dated 21 January
2020 are classified in TH 8539.70 of Part 1 of Schedule No. 1 to the
Customs and Excise Act, 91 of 1964.
4. The respondent is ordered to pay the costs hereof inclusive of the costs
of counsel taxed on scale C.
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A J LE GRANGE
ACTING JUDGE
APPEARANCES:
COUNSEL FOR APPLICANT: Adv J. M. Barnard instruct ed by Ryan
Attorneys Inc.
COUNSEL FOR RESPONDENT: J. A. Meyer SC instructed by VDT
Attorneys .