REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
l ) REPORT ABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
SIGNATURE
In the matter between: 26 MAY.2025
DATE
POSEIDON OPERATIONS (Pty) LTD
(Reg No.2016/299208/07)
And
THE COMMISSIONER FOR SOUTH CASE NO: 23278/2022
DOH: 26 November 2024
DECIDED: 26 May 2025
Applicant
First Respondent
2
AFRICAN REVENUE SERVICE
KWIKFREIGHT SERVICES (Pty)
LTD (Reg No. 2009/01429/07)
Second Respondent
ZIEGLER SOUTH AFRICA (Pty) LTD
(Reg No. 2005/017338/07)
Third Respondent
TRANSGLOBAL AFRICA LOGISTICS
(Pty) LTD (Reg No. 2018/013690/07)
Fourth Respondent
INTERMODAL CONNECTIONS CC
(Reg No. 1998/039594/23)
Fifth Respondent
RAINET LOGISTICS (Pty) LTD
(Reg No. 2009/203750/23)
Sixth Respondent
BEYOND HEAVY HAULAGE (Pty) LTD
(Reg No: 2014/0033763/07)
Seventh Respondent
This judgment has been handed down remotely and shall be circulated to the parties by way of
email / uploading on Caselines. The date of hand down shall be deemed to be 26 May 2025.
ORDER
______________________________________________________ _______________ _
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1. Condonation is granted for the late filing of this application.
2. The application succeeds with costs.
3. The respondent’s demand of 25 July 2020 is hereby set aside.
4. The respondent is ordered to remit the penalties and the amount paid in lieu of
forfeiture.
5. Condonation is granted for the late filing of the answering and replying affidavits.
JUDGMENT
______________________________________________________ _______________ _
Bam J
Introduction
1. This is an application to review and set aside the first respondent ’s decision to levy
duties and penalties, and an amount in lieu of forfeiture, on the basis that the goods
that form the subject matter of this review were diverted without the Commissioner’s
consent , and could not readily be found . First respondent is resisting the relief on
various grounds , including the applicant’s failure to comply with the 180 days set out
in PAJA1, and inadmissible hearsay .
2. The main issue in these proceedings is whether , based on the various pieces of
evidence placed by the applicant before this court, it has succe eded in demonstrating
that the goods had not been diverted and has thus shown good cause for the remittal
1 Promotion of Administrative Justice Act 3 of 2000 .
4
of the penalties and forfeiture raised by the Commissioner , as provided for in Section
93(2) of the Act. Section 93 deals with remission and mitigation of penalties and
forfeiture . It states :
‘(2) The Commissioner may, on good cause shown , mitigate or remit any penalty incurred
under this Act on such conditions as the Commissioner may determine.’
3. The Commissioner and the applicant seek condonation for the late filing of their
answering and replying affidavits, respectively. I commence by introducing the parties
and follow -on with a summary of the background facts.
The parties
4. Applicant , formerly known as Seagull Africa (Pty) Ltd, is a private company duly
incorporated in terms of South African laws, with its registered address set out in its
papers as Unit 807, The Firestation, Baker Street, Rosebank, Gauteng . Applicant is
licensed as a clearing agent in terms of Section 64B of the Customs and Excise Act2,
(CEA or simply the Act) and is registered for VAT with vendor registration number
4930274420.
5. First respondent is the Commissioner for the South African Revenue Service . Their
address is described as Lehae La SARS , 299 Bronkhorst Street, Nieuw Muckleneuck,
Groenkloof, Gauteng. First respondent is charged with, amongst others, the
enforcement of the CEA.
2 Act 91 of 1964 .
5
6. Second respondent , Kwikfreight Services Proprietary Limited (Kwik), is a private
company duly registered in terms of South African laws, with its registered address
recorded as 11 Inanda Road, Hillcrest, KwaZulu Natal . Kwik is a licensed clearing agent
in terms of the Act.
7. Third respondent is Ziegler South Africa Proprietary Limited . Ziegler is a private
company duly incorporated in terms of South African laws, with its registered address
noted as 136 Plane Road, Spartan Extension 19, Kempton Park, Johannesburg,
Gauteng. Third respondent is licensed as a clearing agent in terms of Section 64B of
the Act.
8. Fourth respondent is Transglobal Africa Logistics Proprietary Limited (Trans ), a private
company duly incorporated in terms of South African laws, with its registered address
noted as 20 Meridian Drive, Umhlanga Ridge, KwaZulu Natal. Trans is a licensee of a
customs warehouse as provided for in Section 19 of the Act. It and Intermodal , oversaw
the loading of the trucks , according to the papers .
9. Fifth respondent is Intermodal Connections CC, a close corporation duly registered in
terms of the Close Corporations Act 69 of 1984, with its registered address noted as
40 Leceister Road, Mobeni, KwaZulu Natal.
10. Sixth respondent is Rainet Logistics Proprietary Limited . Rainet is a company duly
incorporated in terms of South African laws, with its registered address situated at Unit
3, 55A Harris Road, Isandovale, Edenvale, Johannesburg, Gauteng.
6
11. Seventh respondent is Beyond Heavy Haulage Proprietary Limited (Heavy). This
is a private company duly registered in terms of South African laws, with its registered
address noted as Woodland View, Spitfire Road, Sunninghill, Johannesburg, Gauteng.
Sixth and Seventh respondents are licensed removers of goods in bond (RoGs), as
provided for in terms of Section 64D of the Act.
12. Of the seven respondents, first respondent is the only party resisting the relief
sought by the applicant . In the event, I refer to the first respondent as respondent or SARS
or the Commissioner.
Background
13. The essential facts in this case are largely common cause or have not been
seriously disputed. They are: Sometime during May 2020, as the country emerged from
COVID -19 Level 5 lock down regulations , the applicant was contacted by a Chinese
entity, China Manufacturing and Engineering Company Comtrans International
Company Ltd, a foreign entity based in Beijing, China , to assist with the clearance of
various goods to a warehouse for subsequent export to the Democratic Republic of
Congo (DRC ). I refer to this entity as Comtrans. Comtrans was acting as an agent for
Beijing Sun Rising Trade and Development (referred to in this judgment as Beijing).
The goods came into South Africa via the Durban harbour as the port of entry, in seven
40-foot containers . To fulfill its client’s mandate, the applicant assembled a team of
providers to assist it. One of those providers was the second respondent, Kwik .
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14. Kwik was appointed to assist with the importation and transpor tation of the goods
from the harbour to a Customs warehouse . However, Kwik ended up helping only with
the transportation of the goods from the harbour into the fourth respondent’s
warehouse , which is situated at Intermodal, the fifth respondent . The third respondent ,
Ziegler, was appointed to, inter alia, prepare and submit the export ation entries to
Customs . From the warehouse, the goods were to be transported by road to DRC. For
this purpose, applicant appointed Rainet and Heavy, the Sixth and Seventh
respondents, both of whom are RoGs . Rainet issued three trucks while Heavy issued
one.
15. The issue in these proceedings revolve s around one truck , AJE1605 and its
trailers , 1605, which was identified for random audit and later detained by respondent
for approximately 5 weeks. It is common cause that three of the four trucks cleared Beit
Bridge Border post (BBr) with acquittals issued. The importation of the goods into South
Africa is not in question in these proceedings. Thus, nothing further need be said about
it.
16. On 15 June, respondent issued a release in respect of truck 1605 , following a
number of queries . Soon thereafter, respondent issued a ‘stop notice through the
Electronic Data Interchange, EDI, system3, in respect of the same truck , in terms of
Section 4(8A) (a)4 of the CEA. However, by the time Ziegler received the stop notice,
3 The EDI system is an electronic platform, through which the respondent communicates with, amongst others , clearing
agents such as applicant. Clearing agents submit declarations using the EDI platform.
4 The section reads: (8A)
(a) An officer may stop and detain and examine any goods while under customs control in order to determine whether
the provisions of this Act or any other law have been complied with in respect of such goods …
8
the truck had already commenced its journey towards BBr. The truck was stopped by
Customs BBr for inspection of the load and documents. That inspection revealed that
goods declared in lines 3, 4, 8, 9 to 18, and 20 to 23, were not on the trailers. Of the
two items declared in line number 5, only one item was found. A second physical
inspection confirmed the results of the first inspection .
SARS’ letter of intent (LoI) to raise debt; applicant’s reply ; and the letter of demand
(LoD)
17. Arising from the inspection, SARS , on 22 June 20205, issued a LoI to the applicant.
The letter begins with a brief reference to the inspection carried out at BBr and the
outcome of that inspection . Although the letter refers to enqu iries having been made
with various external and internal agencie s, it deals only with the responses of
Intermodal and applicant. The applicant’s letter in response to SARS’ enquiry is dated
14 June , while Intermodal ’s is dated 18 June. Chris Gerber of Intermodal , in a letter
addressed to whomever it may concern, conveyed to SARS that trucks AJE1611 ZM
(1611) and 1605 arrived at the warehouse to load at around the same time; that
Intermodal were provided with instructions to load each truck but a miscommunication
regarding truck registrations occurred during the process of loading , leading to the
goods that were meant for truck 1611 being loaded on truck 1605 and vice versa .
18. The applicant confirmed the version provided by Intermodal. It further mentioned
that there had been an overload noticed while the trucks were enroute to BBr. In order
5 The dates are for year 2020 unless otherwise stated.
9
to address such overload, some goods were transferred to truck 1611. The truck or
trucks that had been overloaded are not identified. I interpose that repacking the trucks ,
contrary to the declarations made to SARS , on its own constitutes a violation of the
CEA.
19. The following findings are set out in the LoI:
(i) The goods were diverted , meaning, they were delivered to a destination other than
the one declared in the declaration form.
(ii) An arrangement to load the trucks under SARS’ supervision had been bypassed.
As a result, the consignments left Durban without inspection .
(iii) Conflicting informa tion had been furnished to SARS at the hub and at BBr,
suggesting an intention to mislead the Commissioner.
(iv) SARS is of the view that the export of goods must be done within the prescripts of
Customs and Excise legislation. That Section 40(1) of the Act read with Section
80(1) (c), 83 (a) and 84(1) stipulate that an entry shall be invalid if goods cleared
for export which have been placed into export stacks, cargo depots, Customs
controlled area or loaded into any vehicle which will remove such from South
Africa, return [s] to SA without permission ’.
20. The letter concludes that the goods were dealt with contrary to the provisions of
the Act and that the Commissioner is entitled to demand payment in lieu of forfeiture.
After the findings, there follows a large section titled Application of the law to the facts ,
but the author makes no attempt to apply the law to the facts. Instead, various
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provisions of the Act are cited at length and in abstract. The letter ends with a summary
of possible liability in the amount of R2 512 345.68 made up of duties in the amount of
R211 030.68, a penalty of R460 263, plus an amount of R1 842 052 in respect of
forfeiture . The applicant was invited to submit representations.
21. On 6 July 2020, the applicant replied through its attorneys . In its reply, the applicant
deals with its appointment by Comtrans , its appointment of various providers to assist
it in fulfilling its customer’s order , and the furnishing of the loading instructions and load
plans to Kwik, in order to load the different trucks . The applicant further mention ed that
the same information was furnished to Ziegler. It acknowledge d that there had been a
human error in loading the trucks and that, bar that error , the exports continued as
indicated in the relevant customs documentation and were delivered to the recipient
mine in DRC. At this point, the applicant was referring to the three trucks that had
cleared the border. It emphasise d that the fiscus suffered no prejudice . The applicant
further attached to its reply proof of the load plans and packing instructions for each
truck, identified as Annexures D6 and E, which were furnished to Kwik and Ziegler .
22. It is noted in the letter that Ziegler received EDI releases for trucks AJE1608,
AJE1611 and CF00FMGP after they had already left for BBr. In respect of truck 1605,
however, Ziegler had received a release , but SARS denied having issued that release ,
leading to escalation of the matter up to investigation . The applicant further conveys
that after the trucks were loaded and had departed the warehouse, they were stopped
6 The load plan is referenced as D1 in these proceedings .
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at a weighbridge enroute to the border. There, it was noted that one of trucks (not
identified) was overloaded. In order to reduce the load, various goods were transferred
to other trucks. After clearing the border, the trucks continued with their journey . As
proof that the goods had been delivered to the mine , the applicant attached various
annexures identified as H, I and J, along with a letter from Comtrans . I return later to
the detail concerning these annexures . I note for now, in order to obviate any confusion,
that the labelling of the annexures , while the applicant was still dealing with SARS
directly , differ from the labelling used in these proceedings . For example, Annexure H
in these proceedings refers to the undated letter from Intermodal.
23. In response to the charge s of bypassing arrangements to load under SARS’
supervision, the applicant asserted that there had been no such arrangement and that
the loading had been overseen by Intermodal and Trans, as is required of them in terms
of Customs’ requirements. The applicant stated that the goods declared in respect of
1605 were, in fact, loaded on 1611 and vice versa . It acknowledged that there had been
a human error , but it denied any intention to mislead the Commissioner, adding that
such charge had not been substantiated . The applicant requested SARS to furnish it
full details pertaining to the charge in order to respond. It denied that the goods were
loaded onto stacks and placed onto a vehicle meant to remove them from South Africa ,
only to return such goods without permission. Once again, applicant sought further
details in order to deal with the charge.
24. The author of the LoI, or the team that was responsible for this investigation , were
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clearly not impressed with the applicant’s response because the next step in the
investigation was not the furnishing of the details to enable applicant to respond but a
demand , LoD, dated 20 July 2020. The demand repeated the content of the LoI. It
purpo rted to apply the law to the facts but steered clear of doing so. Instead, it set out
numerous sections of the Act and demanded payment within 14 days. It warned the
applicant of its rights and of the dispute resolution process. The applicant’s appeal to
first respondent’s internal Appeals Committee was met with disfavour. Its referral and
participation in ADR proceedings failed to yield positive results , as the Commissio n
terminated the ADR proceedings on 21 May 2021. The present application was lodged
on 22 April 2022.
Applicant’s submissions
25. In essence, the applicant acknowledges the error on its part and accepts that the
goods declared in the BoE for truck 1605 were not found . The applicant submits that
the goods were interspersed between the various trucks. It further makes the point that,
notwithstanding, all the goods , including those carried by the delayed truck 1605 , were
eventually received by the mine. The applicant points to several pieces of evidence in
support of the assertion that the goods were received by the mine. These include the
statement under oath made by one Ntum be Eudoxie, an employee of the mine in DRC,
whom it is said was personally involved in overseeing the trucks while they were
offloading . Ntumbe further confirmed , with reference to the order and the payment , that
all the goods ordered were received , including those that were delayed with truck 1605 .
26. The applicant further submits that there was neither an intention to mislead the
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Commissioner nor fraud. According to the applicant, there was a human error which
did not only involve trucks 1611 and 1605 as initially understood , but all four trucks.
The goods, as it turned out, were interspersed across the trucks because the load plans
were not followed. The applicant submits that the error was not foreseen at the time. It
adds that SARS cannot ignore the conditions on the ground at the time, referring to the
challenges associated with COVID -19, the backlog at the harbour, the increased
workloads and the prevailing circumstances at the time. All of these , according to the
applicant , led to the human error. It adds that it has shown good cause and submits
that the Commissioner remit or mitigate the penalties as set out in Section 93(2) .
Respondent’s submissions
27. As a start, the respondent submits that the review is based on PAJA and, based
on the applicant’s failure to bring an application for condonation and explain the delay
in launching the application , it ought to be dismissed on this ground alone . The
respo ndent is critical of the records relied on by the applicant to demonstrate delivery
to the consignee in DRC and levels various attacks on each of the records. As to the
conditions on the ground caused by COVID -19 which led to the human error s, the
respondent is dismissive of the submission and argue s that the backlogs at the harbour
had no impact on warehouses . The respondent submits that it is reasonable to
conclude that the goods were diverted. For present purposes, it is sufficient to record
that the respondent is well within their right to resist the admission of hearsay evidence .
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Issues
28. The main issue in these proceedings is whether the applicant has demonstrated
that the goods were not diverted. Expressed differently, the issue is whether the
applicant has demonstrated that the goods were actually exported to the recipient in
Katanga, DRC, as declared in the SAD 500.
Preliminary issues
29. Prior to determining the preliminary issues, it is apposite to begin by making some
observations on the investigation purportedly conducted by SARS. It appears that
during further interactions between applicant and SARS, including during the appeals
committee and the ADR session, no attention was paid to the ‘investigation’ conducted .
30. Importantly, it appears that the prevailing conditions on the ground as caused by
COVID -19 were not taken into account at all. The conditions caused by COVID -19,
notwithstanding the respondent’s dismiss ive attitude, resulted in enormous disruptions
to ordinary lives, in business and in the activities of state agencies . Drastic measures ,
such as reducing staff, maintaining safe distances, to list a few, were required to
manage the spread of the pandemic . These ought to be taken into account if the cases
made by either party are to be properly assesse d. The Supreme Court of Appeal has
had occasion to describe what the country and, one might add, countries across the
globe, were facing at the time. That description featured once again, in Democratic
Alliance v Minister of Co-operative Governance and Traditional Affairs :
‘In one of several judgments in which this Court had occasion to pronounce on the Covid -
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19 pandemic, it said:
‘The seriousness and the magnitude of the threat to life brought about by the pandemic
cannot be exaggerated. It is not melodramatic to say that it posed, and continues to pose,
the biggest threat to this country since the Spanish influenza pandemic of the immediate
post-World War I years a century ago. It had the potential, and continues to have the
potential, to cause devastation on a scale that, only a short while ago, people could not
have begun to imagine. Drastic measures were required and an excess of caution was
called for, especially given the limited knowledge about Covid -19, even among experts in
the field of epidemiology.’7
31. To underscore the challenges faced by the government , including agencies such
as SARS, one need only refer to the notice issued by SARS on 22 April 2020, the
relevant parts of which read:
‘Customs measures relating to COVID
‘On 2 April 2020 amendments to the Regulations were made that allowed all cargo to be
moved away from ports of discharge and onwards to their intended destinations in order
to ease port congestion. The Minister of Transport, Mr Fikile Mbalula, would later remark ,
in his Media Statement of 16 April 2020, on the domino effect that the earlier decision
allowing only the movement of essential cargo had on the value chain. This included the
unintended consequence of congestion at ports and surrounding storage facilities,
which were not designed to handle the storage of such volumes of cargo ….
As a result, we wish to advise traders as follows:
The inspection of cargo
3. Customs inspections will now take place in respect of all cargo …
4. Extensive use will be made of documentary inspections and, where possible, non-
intrusive examination methods will be used in an effort to limit physical inspections to
numbers that match our operational capacity at this time...’ (emphasis added).
7 Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs (700/2022) [2024] ZASCA 65;
[2024] 3 All SA 1 (SCA); 2024 (9) BCLR 1189 (SCA); 2024 (5) SA 463 (SCA) (30 April 2024), paragraph 1.
16
32. The notice under mines the respondent’s assertions that backlogs in the harbour
had no impact on warehouses. Similarly, the impact on humans caused by the
increased workload at the time cannot be wished away . Good cause , after all, as the
Constitutional Cour t has espoused in many a case , requires that the court consider
relevant factors8. In Madinda v Minister of Safety and Security, Republic of South Africa ,
the Supreme Court of Appeal stated:
‘[10] Good cause looks at all those factors which bear on the fairness of granting the relief
as between the parties and as affecting the proper administration of justice. In any given
factual complex , it may be that only some of many such possible factors become
relevant ….’9
33. Back to the ‘investigation’, it is plain from the two letters issued by SARS in June
and July 2020 , namely, the LoI and the LoD, that from the onset, SARS maintained an
intractable position that the goods had been diverted . Whether that position was
informed by the absence of the goods in truck 1605 and/or the explanations relayed by
Mr Kramer, the applicant’s deponent , remains unclear . What is clear is that SARS went
through the motions and rode roughshod over the applicant without following due
process , which is a violation of the higher duty placed on the state to respect the law.
The Constitutional Court in MEC for Health, Eastern Cape and Another v Kirland
Investments (Pty) Ltd remarked :
‘To demand this of government is not to stymie it by forcing upon it a senseless formality.
It is to insist on due process, from which there is no reason to exempt government. On
the contrary, there is a higher duty on the state to respect the law, to fulfil procedural
8 Brummer v Gorfil Brothers Investments (Pty) Ltd and Others (CCT45/99) [2000] ZACC 3; 2000 (5) BCLR 465 ; 2000
(2) SA 837 (CC) (30 March 2000), paragraph, 6.
9 (153/07) [2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA) (28 March 2008), paragraph s 10, 12.
17
requirements and to tread respectfully when dealing with rights.’10
34. The applicant’s answers may have been confusing, and it may be criticised for
relying on hearsay evidence , but SARS was required to conduct a proper and fair
investigation . To underscore SARS’ conduct of riding roughshod over the applicant, I
refer to SARS’ incautious charges levelled against the applicant, which were never
substantiated at any stage by SARS , in spite of applicant seeking details in order to
address SARS’ concerns. There can be no doubt that these statements, labelled as
findings in the LoI, informed SARS’ steps going forward.
35. They are: (i) the charge that the trucks had bypassed arrangements to load under
SARS’ supervision ; (ii) the conclusion that there was an intention to mislead the
Commissioner , without providing the applicant with the basis for such conclusions in
order for it to address it; and (iii) the contravention of the CEA allegedly based on the
conduct of loading goods into stacks and placing them into a vehicle purporting to
remove the goods from the Republic of South Africa only to return them without
permissi on. Notwithstanding that the applicant had requested the opportunity to
address these matters , SARS paid no heed to the request and swiftly moved to issue
a demand. The applicant was entitled to the information that led to SARS conclusions.
SARS’ disregard of the requests demonstrat es a refusal to be held accountable. In
Merafong City Local Municipality v AngloGold Ashanti Limited , the court remarked:
‘The courts have a duty “to insist that the state, in all its dealings, operates within the
confines of the law and, in so doing, remains accountable to those on whose behalf it
10 (CCT 77/13) [2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC) (25 March 2014), paragraph 82.
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exercises power ’11.
36. SARS had the opportunity and indeed was obliged to properly investigate and pose
whatever questions it considered relevant . It clearly did not do so, because, in these
proceedings, SARS bemoans the idea of the applicant involving numerous providers to
help with its client’s order, notwithstanding that it is licensed as a clearing agent. It
further claims not to know the role played by Kwik . Yet, it was always open to SARS to
seek this information from the applicant . Having said that,, it is not for SARS to decide
how businesses should run their operations , as long as the law is upheld . Business
entities routinely make business decisions on when to compete and when to collaborate
with others. The applicant in this case decided to collaborate with various entities,
whether this was informed by the size of the mandate from the customer, the applicant’s
own competencies or the conditions occasioned by the COVID pandemic , is irrelevant .
Whether PAJA is applicable in these proceedings
37. It will be recalled that the applicant contends that the application is brought in terms
of the provisions of the CEA. It argues that PAJA is not implicated. The question is, in
the event this court were to conclude that PAJA applies, as applicant appears to
concede , somewhat ambivalently in its replying affidavit , should this court grant
condonation? During argument , the applicant doubled down on its contention that the
application is based on the provisions of the CEA without identifying the specific
provision on which the application is based. Bearing in mind that the review is not
11 (CCT106/15) [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211 (CC) (24 October 2016), paragraph 61.
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pursued on the basis of legality, it must follow that it is brought on the basis of PAJA.
Fortifying my view are the remarks of the court in Zondi v MEC for Traditional and Local
Government Affairs :
‘[99] Ordinarily anyone who wishes to review any administrative action must now base the
cause of action on PAJA. This is so because “[t]he cause of action for judicial review of
administrative action now ordinarily arises from PAJA, not from the common law as in the
past. ’12
38. Drawing from the ratio in Zondi , it must be inferred that the present review
application is brought on the basis of PAJA.
The delay and whether condonation must be granted
39. In its replying affidavit, the applicant appears to accept that the review is brought
on the basis of PAJA and makes some submissions regarding the delay in launching
these proceedings. The first time PAJA was mentioned was in the respondent’s
answering affidavit, which was filed on or about 11 August 2022. At that point, the
applicant ought to have brought an application for condonation. It is common cause
that there is no such application before the court. To understand the extent of the delay,
one must refer to the date of termination of the ADR proceedings, which was 21 May
2021. The review of the Commissioner’s decision had to be brought within 180 days
from the date of termination of the ADR , which was about 20 November 2021 . However,
12 Zondi v MEC for Traditional and Local Government Affairs (CCT 73/03) [2004] ZACC 19; 2005 (3) SA 589 (CC);
2005 (4) BCLR 347 (CC) (15 October 2004), paragraph 99-101; See also Commissioner for the South African Revenue
Service and Another v Richards Bay Coal Terminal (Pty) Ltd (Case no 1299/2021) [2023] ZASCA 39 (31 March2023) .
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the review was brought only on 22 April. Thus , there was a delay of six months .
40. Does the fact of a delay mean the end of the application, as the respondent has
suggested? I do not think so. I return to this issue later in the judgment. For now, the
point must be made that whether or not a delay is to be condoned is ultimately
determined by reference to what is in the interests of justice. This approach is informed
by, amongst others, the reasoning of the court in South African National Roads Agency
Limited v City of Cape Town . There , the court made the following informative remarks :
‘[69] With reference to this court’s judgment in Opposition to Urban Tolling Alliance v South
African National Roads Agency Limited [2013] ZASCA 148; [2013] 4 All SA 639 (SCA)
(OUTA SCA), it was submitted on behalf of SANRAL that, sequentially , the question of
delay must be dealt with before the merits of a review can be entertained. Unless an
extension is granted, so it was contended, a court is precluded from embarking upon the
merits of a review application. It was contended by SANRAL that the delay of more than
three years, from the date of the Transport Minister’s approval of SANRAL’s proposal to
the date that the review application was launched, was unexplained, unreasonable and in
the light of all the circumstances ought not to have been condoned. [78]…[ I]t does not,
for practical purposes, matter whether condonation for the delay in launching the
application is approached in terms of the provisions of PAJA or otherwise. As will be
demonstrated below, in both instances, ultimately the decision whether to condone the
delay is based on whether the interests of justice so require. [80] Simply put, whether one
is considering condoning a delay either under the provisions of PAJA or beyond it, the
same determining criterion applies, namely, the interests of justice…’13
41. The same approach was endorsed by the Constitutional Court in Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15. Prior to the
13 (66/2016) [2016] ZASCA 122; [2016] 4 All SA 332 (SCA); 2017 (1) SA 468 (SCA) (22 September 2016), at
paragraphs, 69, 78, 80.
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case reaching the Constitutional Court, Asla had successfully appealed to the SCA
against the decision of the High Court which upheld Buffalo ’s review application. Buffalo
had failed to bring an application for condonation. There the SCA held that the High
Court had erred in upholding the review in the face of Buffalo ’s abject failure to furnish
full and adequate details to explain its unreasonable delay for the entire period (15
months ), together with the severe prejudice to the respondent. It accordingly concluded
that the award of the contract had been ‘validated’ by the undue delay of the
respondent . The Constitutional Court reasoned the issue of delay differently . Relying
on the context sensitive and flexible test of interests of justice , the court said:
[56] This Court has made plain that even within the context of PAJA, the extent and nature
of the deviation from constitutional prescripts directly impacts upon an application for
condonation in terms of Section 7 of PAJA. …
In SANRAL, Navsa JA rejected a suggestion that the question of delay must be dealt with
before the merits of the review can be entertained …14
This approach was confirmed by this Court in Aurecon where the explanation for the delay
was found to be unsatisfactory:
“Nonetheless, due regard must also be given to the importance of the issue that is raised
and the prospects of success ….”
Whether condonation should be granted for the late filing of the answering and replying
affidavits
42. Both the applicant and the respondent seek condonation for the late filing of their
answering and replying affidavits , respectively. The parties have set out the
circumstances that led to their late filing. None of the parties have raised any issue
14 See quote in paragraph 25 of this judgment .
22
pertaining to prejudice. Condonation is thus granted to both parties.
Hearsay evidence
43. A fundamental question to be addressed in these proceedings is whether this court
is at liberty to accept the evidence relied on by the applicant, which in large part, is
based on letters or records , or both, compiled by people who are not giving evidence
before this court. To this end, the applicant presented various records as proof of
delivery : Annexures , I, J, K, including Annexures L1 and L2; an undated letter from the
supplier, Comtrans, and an invoice produced in the Chinese language . Section 3(4) of
the Law of Evidence Amendment Act, LEAA15 defines hearsay evidence as:
‘evidence, whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence’.
44. Section 3(1) of the LEAA, provides that:
‘Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless -
(a) –; (b) - ; or
(c) the court, having regard to:
(i) the nature of the proceedings; (ii) the nature of the evidence; (iii) the purpose for which
the evidence is tendered; (iv) the probative value of the evidence; (v) the reason why the
evidence is not given by the person upon whose credibility the probat ive value of such
evidence depends; (vi) any prejudice to a party which the admission of such evidence
might entail; and (vii) any other factor which should , in the opinion of the court , be taken
into account ,
is of the opinion that such evidence should be admitted in the interests of justice.
15 Act 45 of 1998 .
23
45. The touchstone as to whether hearsay evidence is to be admitted is set out in
Section 3 (1) (c) (i)–(vii), which , according to the court in Kapa v The State , must be
viewed holistically and weighed collectively to determine whether it is in the interests of
justice to admit it16. I now embark on the enquiry.
The nature of the proceedings
46. It has been acknowledged by senior courts that hearsay evidence is more likely to
be admitted in civil proceedings than in criminal procee dings17. As these are civil
proceedings, this court is positively disposed to receiving hearsay evidence.
The nature of the evidence
47. Under this element of the enquiry, the court is concerned with the extent to which
evidence can be considered reliable, along with weighing its probative value against its
prejudicial effect , said the court in Kapa18. Reliability is, in turn, influen ced by factors
such as ‘(a) whether the witness testifying has any interest in the outcome of the
proceedings; (b) the degree to which it is corroborated or contradicted by other
evidence; (c) the contemporaneity and spontaneity of the hearsay statement; and (d)
the degree of hearsay. ’19
On the question of interest, there is no evidence provided suggesting that the persons
from whom the hearsay evidence emanates have an interest in the outcome of these
16 Kapa v The State [2023] ZACC 1, paragraph 77.
17 Id, paragraph 78.
18 Id paragraph 79.
19 Supra , paragraph 80.
24
proceedings. Annexures I, J, K, L1 and L2 all bear stamps from the border authorities of
DRC. There has not been a suggestion that the border authorities may have an interest
in these proceedings, nor is there any indication that Comtrans has any connection with
the applicant which may suggest the former’s interest in the outcome of these
proceedings. There is also no direct evidence contradicting the evidence in these records .
The hears ay evidence is instead reinforced or corroborated by the statement under oath,
deposed by Ntumba Eudoxie , that all the goods pertaining to the order made by the
consignee, including those delayed with truck 1605 , were received by the consignee .
48. As to contemporaneity and spontaneity , I, J, and K, in respect of the three trucks,
appear to be dated 12 and 16 June 2020 while L1 and L2 contain stamps dated 8
August. This too is contemporaneous, regard being had to the date of release of truck
1605 after it was detained , on or about 31 July. The letter written on Comtrans ’
letterhead , albeit it does not appear to be dated (the letter contains a signature in
Chinese , which makes it unclear whether there is a date in the foot), was already made
available to SARS in June 2020. It can be accepted that Annexures I, J, and K, L1 and
L2 are contemporary , much like the letter generated round June 2020.
49. The existence of admissible evidence in the nature of the supporting affidavit ,
deposed to by Ntumba Eudoxie , on 22 October 2022 , enhances the probative value of
the proof of delivery and the letter issued under Comtrans’ letterhead. The deponent to
the affidavit avers that he was involved in the offloading of the goods from the trucks .
He further states that after confirming receipt of all the goods under the order, he
25
authorised payment.
The purpose of the evidence
50. The purpose of the evidence is to inform the court that the goods transported via
the four trucks from South Africa , including truck 1605, had all been received by the
mine. SARS is critical of the proof of delivery and the letter on Comtrans’ letterhead.
The criticism refers to the haphazard nature of the delivery records and the applicant’s
failure to point SARS to a specific page demonstrating receipt by the mine ; the failure
to itemise the goods that were delivered; and the use of the French language in the
documents along with English . Perhaps SARS has a point . However, given the COVID -
19 conditions at the time these records were produced , they must be accepted ,
imperfect as they may be. Regard must be had to the statements emanating from the
employee of the mine, Ntumba, that the mine satisfied itself that the full order had been
received and authorised payment.
The probative value of the evidence
51. Probative value refers to value for purposes of proof ,20 and it raises two questions,
namely, what the hearsay evidence if admitted will prove, and whether it will do so
reliably. For the two classes of records , namely proof of delivery, referenced as I, J and
K, L1 and L2 and the letter on Comtrans’ letterhead , referenced M, to be reliable and
have probative value, it is not necessary that they must be corroborated on every
aspect by the admissible evidence in the form of the supporting affidavit emanating
20 S v Ndhlovu [2002] ZASCA 70; 2002 (6) SA 305 (SCA) at paragraph 45.
26
directly from the employee of the mine. What is required is that the records must be
corroborated on a number of material aspect s21.
52. Firstly, the records demonstrating proof of delivery were stamped by DRC
Authorities, part of the Ministry of Finance in that country. These records convey that,
in addition to the three trucks, truck 1605 went through the DRC border. Secondly, the
letter on Comtrans ’ letterhead confirms, amongst others, that the order handled by the
applicant was part of a very large consignment and that the mine had confirmed receipt
of the goods . The material element of these records is corroborated by the admissible
evidence of Ntumba Eudoxie that the full order from Beijing had been received . That
strengthens their probative value.
The reason the evidence is not given by person who issued the letter on behalf of
Comtrans and a responsible person from the border authorities ; and, the preju dice to
SARS
53. It is not clear why the evidence in question was not given by the persons directly
responsible for it. On the question of prejudice to SARS, bearing in mind that these are
civil proceedings on motion, the Supreme Court of Appeal in S v Ndhlovu and Others
made this informative remark:
‘The Bill of Rights does not guarantee an entitlement to subject all evidence to cross -
examination. What it contains is the right (subject to limitation in terms of s 36) to
‘challenge evidence’. Where that evidence is hearsay, the right entails that the accused is
21 Note 8, paragraph 86.
27
entitled to resist its admission and to scrutinise its probative value, including its reliability. ’22
54. Here the Commissioner has done just that, criticised and challenged the reliability
and the probative value of the evidence to resist its admission. Ultimately, it is for the
court to decide whether it is in the interests of justice to admit the evidence.
Other factors the court considers necessary
55. Finally, it must be observed that, despite the respondent’s reference to Plascon
Evans , there was no mention of disputes of fact. Instead, the respondent conten ts itself
with the statement that the applicant is seeking final relief on motion. A cursory glance
at the respondent’s answering affidavit would lead one to conclude that there are
indeed insoluble disputes of fact in this matter, but this is not the case. The rule in
relation to disputes of fact in motion proceedings is set out in Plascon -Evans Paints
(TVL) Ltd. v Van Riebeck Paints (Pty) Ltd23, which for present purposes , I have chosen
to quote in full, states:
‘.... where there is a dispute as to the facts a final interdict should only be granted in notice
of motion proceedings if the facts as stated by the respondents together with the admitted
facts in the applicant's affidavits justify such an order.... Where it is clear that facts, though
not formally admitted, cannot be denied, they must be regarded as admitted". This rule
has been referred to several times by this Court ... It seems to me, however, that this
formulation of the general rule, and particularly the second sentence thereof, requires
some clarification and, perhaps, qualification. It is correct that, where in proceedings on
notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be
an interdict or some other form of relief, may be granted if those facts averred in the
22 (327/01) [2002] ZASCA 70; [2002] 3 All SA 760 (SCA); 2002 (6) SA 305 (SCA); 2002 (2) SACR 325 (SCA) (31 May
2002), paragraph 24.
23 (53/84) [1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984) .
28
applicant's affidavits which have been admitted by the respondent, together with the facts
alleged by the respondent, justify such an order. The power of the court to give such final
relief on the papers before it is, however, not confined to such a situat ion. In certain
instances , the denial by respondent of a fact alleged by the applicant may not be such as
to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co. (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd, 1949 (3) SA 1155 (T), at pp 1163 -5; Da Mata v
Otto, NO, 1972 (3) SA 585 (A), at p 882 D - H).’
56. A ‘real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has, in his affidavit , seriously and
unambiguously addressed the fact said to be disputed .’24 In several areas in the
answering affidavit where the respondent purports to dispute the version put up by the
applicant, they recant the denial . For example, the respondent initially disputed that the
applicant was appointed by Comtrans, only to accept that the applicant acted for a foreign
company. The respondent disputed that there was a load plan, only to concede that the
tabs in the excel spread sheet must refer to load per truck. I accept that the record, in
large part, has Mandarin or some other Chinese language and English. In some respects,
the respondent’s denial is bare. For example , the respondent denies the impact of
COVID -19 on warehouses , which is a bare denial. Such responses do not raise genuine
and bona fide dispute s of fact as recognised in law.
The said internal contradictions in the applicant’s version
57. A further point to consider is whether there were indeed internal contradictions on
24 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another (66/2007) [2008] ZASCA 6; [2008] 2 All SA 512
(SCA); 2008 (3) SA 371 (SCA) (10 March 2008), paragraph .
29
the version of the applicant or whether the applicant’s reasons for the missing goods
changed, as and when it suited it. The applicant accepted from the onset that errors had
occurred, which resulted in the goods that were meant for truck 1605 , as reflected in SAD
500, not being found. The circumstances prevailing at the time may indeed have led to
the human errors . It does not help the respondent to capitalise on the shortcomings in the
answers provided by the applicant as it understood the root causes at the time. Clearly,
the applicant was conveying hearsay evidence. The court takes note that there were
challenges not only with backlogs at the harbour , as set out in SARS media statements ,
Customs warehouses had to contend with work beyond their capacities. The
repercussions on human capital cannot be ignored.
58. I conclude that it is in the interests of justice to admit the hearsay evidence
substantiating the export ation of the goods as declared . Flowing from the admission of
hearsay evidence, reinforced by the statement under oath by Ntumba , this court accepts
that, regard being had to the circumstances at the time, the goods had not been diverted .
59. The final point to consider has to do with the respondent ’s complain ts regarding
Ntumba’s evidence. The respondent complains that the deponent fails to provide details
of his employment and his duties at the mine at the time the goods were delivered ; that
he does not provide proof of delivery of the goods; that he does not state when the missing
goods were delivered; and that the invoice referred to in his affidavit is in Mandarin and
thus cannot be verified. In fairness to the respondent, it is correct that Ntumba does not
provide these details. But, I disagree that these complaints, whether taken individu ally or
30
cumulatively , water down his evidence. The material aspects of his evidence make
business sense. In this regard, the deponent confirms having overseen the off-loading of
the trucks, with reference to the invoice. After confirmation of receipt of the whole order,
payment was authorised . This is direct evidence which cannot be ignored. The court
accepts the evidence as confirmation that the goods were exported as declared to
Customs .
60. Fortifying this court’s views are the words of the court in Allpay Consolidated
Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African
Social Security Agency and Others :
‘ Assessing the materiality of compliance with legal requirements in our administrative law
is, fortunately, an exercise unencumbered by excessive formality. It was not always so.
Formal distinctions were drawn between “mandatory” or “peremptory” provision s on the
one hand and “directory” ones on the other, the former needing strict compliance on pain
of non-validity, and the latter only substantial compliance or even non-compliance. That
strict mechanical approach has been discarded. Although a number of factors need to be
considered in this kind of enquiry, the central element is to link the question of compliance
to the purpose of the provision. ’25
61. There is no doubt that the Customs duties serve an important public purpose as
encapsulated in Gaertner and Others v Minister of Finance and Others , where the court
said:
‘Customs duty is levied, primarily, to: (a) raise revenue; (b) regulate imports of foreign
goods into South Africa; (c) conserve foreign exchange, regulate the supply of goods into
the domestic market; and (d) provide protection to domestic industries from foreign
25 (CCT 48/13) [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013), paragraph 31.
31
competition. ’26
62. The court is satisfied that the purpose of the Act has not been undermined in the
circumstances of this case.
Whether this court should grant condonation to the applicant for the late filing of this
application
63. It is now appropriate to decide the question of condonation. The court in this regard
is asked to exercise its discretion . [See in this regard the discussion on discretion in
Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa
Limited and Another (CCT198/14) [2015] ZACC 22, paragraphs 82-89.] The test is the
interests of justice. In my view, the interests of justice will be better served by granting
condonation. Fortifying my reasoning is the following: One is dealing with a delay of six
months. This is not eggrigious. The issues involved in this case are important. The
circumstances at the time the human error occurred were extra -ordinary, including the
period when the applicant was still interacting with SARS in connection with the appeal
and the ADR. The prospects of success favour granting condonation. I cannot see any
impact on the administration of justice , and in the event there is, it is negligible . The
prejudice to the respondent too is not pronounced in that, from the onset, they knew that
the applicant had paid the penalties and the amount in lieu of forfeiture under protest. It
is unlikely that SARS would have accounted for the amount paid as revenue, without
26 (CCT 56/13) [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC); 76 SATC 69 (14 November 2013),
paragraph 53.
32
making an allowance for the risk of remittal in the event the court finds in the applicant’s
favour. Whatever, the case, the amount on its own is negligible and would unlikely cause
a major upheaval to the fiscus . Overall, based on the reaso ning set out in this judgment,
it is in the interests of justice to grant condonation.
Conclu sion
64. The court is satisfied that the applicant has demonstrated that the goods were not
diverted. Thus, an order will be issued directing the Commissioner to remit the penalties
raised against the applicant , including the amou nt claimed in lieu of forfeiture.
Order
1. Condonation is granted to the applicant for the late filing of this application.
2. The application succeeds with costs .
3. The respondent’s demand of 25 July 2020 is hereby set aside .
4. The Commissioner is ordered to remit the penalties and the amount paid in lieu
of forfeiture.
5. Condonation is granted for the late filing of the answering and replying
affidavits.
___ ____________________
N.N BAM
JUDGE OF THE HIGH COURT, GAUTEN G
DIVISION, PRETORIA
33
Date of Hearing: 26 November 2024
Date of Judgment: 26 May 2025
Appearances:
Counsel for the Plaintiff : Adv D.H Wijnbeek , with him AVd S.P Mbatha
Instructed by: Faber, Goërtz Ellis Austin Inc
c/o Phillip Venter Attorneys
Lynnwood , Pretoria
Counsel for the Defendant : Adv C Naude SC
Instructed by: MacRobert Attorneys
Brooklyn, Pretoria