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JUDGMENT
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This judgment is deemed to be handed down upon uploading by the Registrar to the
electronic court file.
Gilbert AJ:
1. The applicants by way of urgent proceedings seek what appears from
their founding affidavit as anti-spoliatory relief against the first respondent
(“Apple”) and the second respondent (“SARS”) for effectively the return or
release of some 540 mobile phones ostensibly manufactured by Apple .
Although the relief as sought in the notice of motion is not framed as
typical anti-spoliatory relief, when regard is had to the founding affidavit,
1
the matter must be approached on the basis that the effective relief being
sought by the applicants is anti-spoliatory relief in nature.
2. On or about 19 July 2025, a consignment of mobile phones imported from
Dubai into South Africa was inspected by the Customs Border Control
Unit Cargo Team, a part of the South Africa Revenue Services. This
inspection took place in terms of section 4(8A)(a) of the Customs and
Excise Act, 1964.
1 See, for example, paragraphs 14, 15, 29.7, 30 to 35 (which appears under the heading “The Requirements for
Spoliation”) and 43 of the founding affidavit.
3
3. Following this inspection, on 19 July 2025 the consignment was detained
in terms of section 88(1)(a) and 113A of the Customs and Excise Act.
Section 113A deals with the powers and duties of SARS officers in
connection with counterfeit goods.
4. The consignment comprised, apart from packaging, what appear ed to be
788 iPhones manufactured by Apple.
5. Samples of the detained goods (totalling five units) were drawn in order
for these to be examined by the attorneys Spoor & Fisher representing
Apple for verification and determination as to whether the goods may be
counterfeit.
6. On 6 August 2025, Spoor & Fisher reverted to SARS that of the five
samples, two were identified as counterfeit. The consignment was
removed to the counterfeit goods depot for each item in the consignment
to be examined individually.
7. On 29 September 2025, Spoor & Fisher, on behalf of Apple, informed
SARS that 466 of the mobile phones in the consignment were counterfeit
as too was 575 items of packaging.
8. Also on 29 September 2025, Spoor & Fisher addressed a letter to the
attorneys then representing the first applicant, setting out the basis on
which the detained goods were found to be counterfeit and were being
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retained by SARS in safe storage at the designated counterfeit goods
depot. Those mobile phones that were identified as authentic were
released to the applicants’ clearing agent.
9. It appears from this letter that on 25 September 2025 the first applicant’s
then attorneys had communicated with Spoor & Fisher. That
communication is not part of the court papers but it is clear from the
correspondence that since at least 29 September 2025 the applicants
were aware that the retained goods were not going to be released and
are to be further processed as suspected counterfeit goods in terms of
the appliable legislation.
10. The present application was only issued on 23 October 2025, nearly a
month later.
11. The application was only served per email on Apple and SARS on 29
October 2025 and set down for hearing on 4 November 2025.
12. On 30 October 2025, SARS applied for and obtained a warrant in the
magistrates’ court in terms of section 6, read with sections 4 and 5 of the
Counterfeit Goods Act, 1997 in relation to the detained goods.
5
13. On 3 November 2025, the detained goods were seized by SARS in terms
of the warrant and are presently being held by SARS as seized goods in
terms of the Counterfeit Goods Act.2
14. At all material times, as will appear below, the goods have remained in
the possession or under the control of SARS.
15. As already stated, the applicants sought and persist in seeking the relief
set out in their notice of motion, cast as anti-spoliatory relief in their
founding affidavit.
16. Apple, as the first respondent, approached its opposition to the matter on
the basis that:
16.1. the applicants had failed to make out a case for urgency and had
abused the urgent court process;
16.2. on the merits, the applicants had failed to establish either of the
requirements for anti-spoliatory relief;
16.3. Sierra Mandisa Ngcamu Attorneys (“SMM Attorneys”) must satisfy
the court in terms of Uniform Rule 7 that they are authorised to
represent each applicant;
2 There appears to be a disparity between the 466 mobile phones as referred to by SARS and Apple and the 540
mobile phones referred to as the subject matter of the relief in the notice of motion but this is not of consequence
given the outcome of these present proceedings.
6
17. Apple also made extensive submissions, both in argument and on the
affidavits, why SMN Attorneys were to pay the costs personally of the
litigation.
18. SARS’ position as the second respondent is that:
18.1. the application against SARS is fatally defective because there
has been non-compliance with section 96(1)(a) of the Customs
and Excise Act and that the applicants’ request for condonation
for non-compliance with this section is to be refused;
18.2. in any event, the application is not urgent;
18.3. further, in any event, the application is bad on its merits because
the requirements for a mandament van spolie have not been
established.
19. For reasons that follow, it is convenient that the applicants’ failure to
comply with section 96(1) of the Customs and Excise Act be considered
first.
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20. Section 96(1)(a) and (c) provides:
“96 Notice of action and period for bringing action
(1)(a)(i) No process by which any legal proceedings are instituted
against the State, the Minister, the Commissioner or an officer for
anything done in pursuance of this Act may be served before the
expiry of a period of one month after delivery of a notice in writing
setting forth clearly and explicitly the cause of action, the name
and place of abode of the person who is to institute such
proceedings (in this section referred to as the ‘litigant’) and the
name and address of his or her attorney or agent, if any.
(ii) Such notice shall be in such form and shall be delivered in such
manner and at such places as may be prescribed by rule.
(iii) No such notice shall be valid unless it complies with the
requirements prescribed in this section and such rules.
…
(c)(i) The State, the Minister, the Commissioner or an officer may
on good cause shown reduce the period specified in paragraph
(a) or extend the period specified in paragraph (b) by agreement
with the litigant.
(ii) If the State, the Minister, the Commissioner or an officer
refuses to reduce or to extent any period as contemplated in
subparagraph (i), a High Court having jurisdiction may, upon
application of the litigant, reduce or extend any such period where
the interest of justice so requires.”
21. The applicants accept that section 96(1) applies and that the applicants
are required to comply with the section by furnishing notice to SARS. This
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appears inter alia from the applicants seeking that their non-compliance
with the section be condoned.3
22. During argument applicants’ counsel appeared to adopt the position that
there was no notice and so in arguing for condonation he was effectively
seeking condonation on behalf of the applicants on the basis that no
notice at all had been delivered. But when regard is had to the founding
affidavit4 the position adopted is that notice was given by the applicants’
erstwhile attorneys through correspondence and condonation is being
sought in relation to that notice. No specific notice is referred to or
attached to the founding affidavit from these erstwhile attorneys.
23. Without any details of that notice, whether in the body of the founding
affidavit or by way of an annexe in the form of the notice, not only is there
no credible evidence of any notice being given (bearing in mind that the
notice must comply with the requirements of section 96(1)(a)(i) and (ii)
including in writing setting forth clearly and specifically the cause of action
against SARS together with the name and place of abode of the person
who is to institute legal proceedings), the applicants cannot begin to make
out a case for condonation in terms of section 96(1)(c)(ii). Condonation
cannot be sought, and then granted, in the absence of the notice in
respect of which condonation is being sought.
3 See prayer 1.5 in the notice of motion and paragraphs 39 to 41 of the founding affidavit.
4 Paragraph 40.
9
24. Further, as argued by SARS’ counsel, no facts are set out in the founding
affidavit to support a finding by the court that it would be in the interests
of justice to condone non-compliance with section 96(1)(a). The section
in the founding affidavit dealing with condonation simply sets out the
legislation dealing with the section and then refers to the notice made by
the erstwhile attorneys but with no further facts.
5
25. Whether the application for condonation is approached on the basis that
the applicants are seeking condonation for no notice at all or in respect of
a notice that is not attached to the founding affidavit, there are simply no
facts upon which a court can decide whether it is in the interests of justice
to condone non-compliance.
26. I was referred to Commissioner for the South African Revenue Services
and Others v Dragon Freight (Pty) Ltd and Others [2022] 3 All SA 311
(SCA). Schippers JA for the Supreme Court of Appeal cited with
approval
6 the full court decision of Commissioner for the South African
Revenue Services v Prudence (Pty) Ltd 7 that compliance with
section 96(1)(a) constitutes a jurisdictional condition precedent which if
not fulfilled results in the court lacking jurisdiction to grant relief against
SARS in respect of anything done in pursuance of the Act.
5 The applicants do not rely in support of condonation, at least expressly, on their alleged urgency of the
proceedings but even if they did, condonation could not be granted on that basis given the findings later in this
judgment that the applicants have not made out a case of urgency in terms of Uniform Rule 6(12).
6 In para 37 and 38.
7 2015 JDR 2545 (GP). Also reported at [2016] JOL 35747 (GP).
10
27. Dragon Freight was subsequently applied by this Division in Alliance Fuel
(Pty) Ltd v CSARS [2024] 4 All SA 759 (GJ) where there too Modiba J
found that the failure to comply with section 96(1) was fatal to the
application.
28. There is no dispute that the relief sought by the applicants is directed at
something done in pursuance of the Customs and Excise Act by the
SARS officials, in this instance, the detention of the goods in terms of
section 88(1)(a) of the Act and which was superseded by the seizure by
SARS of those goods in terms of section 88(1)(c) and section 113A of the
Act.
29. As there has been no compliance by the applicants with section 96(1)(a)
and there is no basis to condone non-compliance in terms of section
96(1)(c)(ii), the application is fatally defective as against SARS and so
must be dismissed.
30. Nonetheless, to the extent that I may have erred in relation to the
applicants’ non-compliance with section 96(1), the application would in
any event not succeed on its merits.
31. The requirements for a spoliation order are clear: an applicant must prove
that he was in peaceful and undisturbed possession (occupation) of the
property and that the respondent deprived him of his possession
(occupation) forcibly or wrongfully or against his consent. Bristowe J in
Burnham v Neumeyer 1917 TPD 630 at 633 is typically cited as authority:
11
“Where the applicant asks for spoliation he must make out not only
a prima facie case, but he must prove the facts necessary to justify
a final order – that is, the things alleged to have been spoliated
were in his possession and they were removed from his
possession forcibly or wrongfully or against his consent.”
8
32. Greenberg JA in what is perhaps the locus classicus of Nienaber v Stuckey 9
agreed as to the level of the proof required:
“Although a spoliation order does not decide what, apart from
possession, the rights of the parties to the property spoliated were
before the act of spoliation and merely orders that the status quo
be restored, it is to that extent a final order and the same amount
of proof is required as for the granting of a final interdict, and not
of a temporary interdict.”
10
33. What this means is that if there are two bona fide but conflicting factual
versions, the respondent’s version is effectively to be preferred in terms
of the usual Plascon-Evans approach. But this matter can be decided on
the common cause facts or facts that cannot be seriously disputed.
34. At no stage were any of the applicants, or any other person for that matter
other than SARS, in possession of the goods. The goods were taken into
possession by SARS in customs upon the goods entering the country in
July 2025. At no stage did any of the applicants come into possession of
8 See, for example, Nienaber v Stuckey 1946 AD 1049 at 1053 and also Painter v Strauss 1951 (3) SA 307 (O).
9 Above, at 1053.
10 See too Painter above at 312A-C.
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the goods. This point was squarely raised in both respondents’ opposition,
whether in the affidavits, written submissions or oral argument. Nothing to
the contrary was argued by the applicants’ counsel.11
35. Without any of the applicants having had possession of the goods, there
is no prospect of the applicants succeeding in obtaining spoliatory relief .
36. Although both Apple and SARS sought during argument to impress upon
me that SARS was initially empowered to detain the goods in terms of
section 88(1)(a) of the Customs and Excise Act, and then subsequently,
from 3 November 2025, empowered to continue to retain possession
through the exercise of their power to seize the goods in terms of section
88(1)(c) of the Act,
12 this enquiry is unnecessary. There is no need for,
nor could there be in the present instance, an enquiry whether the
dispossession was forcibly or wrongfully or against the consent of the
applicants. The second requirement for anti-spoliatory relief presupposes
that the first requirement has been satisfied, which is that the applicants
were in possession.
11 Applicant’s argument before me appearing to be directed more at the merits of whether the goods were actually
counterfeit, seeking to dispute Apple’s asserted basis why Apple held the view that the goods were counterfeit
and needed to be investigated and processed in terms of the Counterfeit Goods Act. That enquiry is irrelevant to
anti-spoliatory relief, and to the extent that the applicants were seeking to advance some or other collateral
challenge to the actions or decisions of SARS, that is not the manner in which the case was advanced in the
founding affidavit.
12 As to the distinction between SARS ‘detaining’ the goods and then ‘seizing’ the goods, I was referred to CSARS
& another v Sterling Auto Distributors CC et al [2006] JOL 17382 (T).
13
37. The present position can be contrasted to that in the unreported decision
of Bafana Bafana and Others v Commissioner for the South African
Revenue Services and Others, 13 to which both respondents’ counsel
referred, where Van der Byl AJ found that the exercise by SARS of its
powers such as those in terms of section 88(1)(a) was done pursuant to
its statutory power and so it cannot be said that SARS had taken the law
into their own hands by taking possession or had resorted to self-help.
14
In that matter the applicants had been in possession of the relevant
goods, being gambling machines, which had been removed from their
possession by the SARS officials. In the present instance, the applicants
were not in possession of the goods at any time, and so no need to
consider whether any dispossession was forcibly or wrongfully or against
their consent.
38. As to the opposition of Apple as the first respondent, it did not rely on non-
compliance with section 96 of the Customs and Excise Act as it may be
that only SARS can raise such non-compliance. Nevertheless the same
reason why the applicants cannot succeed on the substantive merits with
anti-spoliatory relief against SARS also apply to why the applicants
cannot succeed with such relief against Apple. And that is because at no
stage were the applicants in possession of the goods, and so it follows
they could not have been dispossessed.
13 [2010] ZAGPPHC 191 (29 October 2010).
14 Judgment, para 36.
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39. Having approached the matter on this basis, and having heard the parties’
argument the matter in all respects, there is no utility in striking the matter
from the roll for want of urgency. Full sets of affidavits were filed by the
parties and by the time I heard argument on 6 November 2025 no party
was seeking leave to file further papers. The matter was fully argued
before me that day, having stood down from 4 November 2025.
40. The application fails on its substantial lack of merit and is to be dismissed
on its merits, both because of non-compliance with section 96(1) of the
Customs and Excise Act insofar as SARS is concerned as well as on its
failing to sustain a case for anti-spoliatory relief in respect of both SARS
and Apple.
41. This is not to say that the manner in which the applicants have gone about
bringing the application as one urgency is irrelevant. As will appear below,
it features prominently in relation to the issue of costs, to which I now turn.
42. Both Apple and SARS have succeeded in opposing the application and
are entitled to their costs.
43. The question of costs is complicated, and info rmed, by whether the
applicants are properly before the court and more particularly whether
their attorneys are authorised to act on each of their behalf.
44. The issue of the applicants’ attorneys’ authority to represent the
applicants assumed prominence consequent upon Apple delivering a
notice in terms of Uniform Rule 7(1) calling upon the applicants’ attorneys
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to satisfy the court that they were so authorised to act on behalf of each
applicant. This was not a mere technical challenge, as will appear below.
45. When the matter was first called by me in the urgent court on 4 November
2025, Apple’s counsel pointed out the Rule 7 challenge and that Apple
was persisting with that challenge. I directed that as the matter was to
stand down to 6 November 2025 to accommodate the applicants
delivering a replying affidavit to the answering affidavits that had been
filed, the applicants too must deliver their response to the Rule 7
challenge.
46. It is disconcerting that given the highlighted challenge made by Apple to
the applicants’ attorneys’ authority that their response thereto proved
meagre.
47. The only response that was forthcoming was a power of attorney in
generic form signed by the second applicant authorising the applicants’
attorneys to act on her behalf. No document was delivered seeking to
establish the applicants’ attorneys authority to act on behalf of the first
and third applicants.
48. This is notable as the authority challenge appeared to be more pertinent
to whether the applicants’ attorneys were authorised to act for the first and
third applicants, rather than the second applicant. The second applicant
was an applicant in her personal capacity and had signed the founding
affidavit. Ordinarily it would be inferred that the second applicant had
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authorised her attorneys to bring these proceedings on her behalf as she
she had signed the founding affidavit.15
49. As the first applicant is a juristic entity, ordinarily it would have been
expected of the applicants’ attorneys to produce a board resolution
authorising them to act for the first applicant. No such board resolution
was forthcoming. Nor did the power of attorney signed by the second
applicant refer to any authority relating to the first applicant. Throughout
these proceedings the second applicant represented that she is a director
of the first applicant. But as Apple has pointed out in their affidavit with
reference to the records of the Companies and Intellectual Property
Commission, the second applicant had resigned already on
25 September 2025 and was not in a position to represent the first
applicant, at least as a director.
50. The third applicant is a natural person but no power of attorney was
forthcoming in response to the Rule 7 challenge.
51. It appear s that the applicants’ attorneys did not wish to grapple
substantively with the challenge to their authority, something that should
have been simple to address in this instance. This gives credence towards
the assertion made by Apple in its answering affidavit that “it appears
likely that the activities of the first applicant are taking place through the
15 A different question is why she was an applicant at all in these proceedings where her only interest
appeared to be that she had been a director of the first applicant until 25 September 2025 and further
had resigned before the institution of these proceedings.
17
machinations of the third applicant [sic] who appears to be safely hidden
behind the first and second applicants, not giving out his true address and
apparently not having any means with which to satisfy any costs orders
obtained against him.”
52. It was only after much engagement by me with the applicants’ counsel
during argument as to the absence of a confirmatory affidavit by the third
applicant, that the applicants’ counsel eventually towards the end of the
hearing attended to upload a confirmatory affidavit by the third applicant
deposed to on 26 October 2025. Taking this confirmatory affidavit at face
value, it appears that the third applicant has authorised these proceedings
given that he has signed a confirmatory affidavit and where he is cited as
the third applicant. The applicants’ attorneys have produced sufficient
evidence that they represent third applicant and so that the third applicant
is before the court and so can be held liable for costs.
53. It appears that the third applicant has been the sole director of the first
applicant since 25 September 2025 . The third applicant has signed a
confirmatory affidavit. Even should the second applicant’s persistence
throughout that she is a director of the ap plicant be accepted, she has
signed the affidavits and furnished a power of attorney. Whether or not
the second applicant remains a director, both her and the third applicant
are aware of these proceedings by the first applicant a t the i nstance of
the applicants’ attorneys and so I find that there is sufficient evidence that
they represent third applicant and so that the third applicant is before the
court and so can be held liable for costs.
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54. Each of the applicants are liable, jointly and severally, for the costs of
Apple and SARS.
55. But the issue of costs does not end there.
56. Apple as the first respondent gave notice on several occasions to the
applicants’ attorneys that costs would be sought against them personally,
such as in heads of argument and correspondence exchanged during the
course of the application. Those costs are sought on an attorney and
client scale, including the costs of two counsel.
57. The first basis asserted by Apple why the applicants’ attorneys should be
responsible for costs is because they have no authority to litigate on
behalf of the first and second applicants and therefore should be liable for
the costs that would normally have been granted against those applicants,
but which applicants are not before the court. Allied to this, Apple argues
that in any event the manner in which the applicants’ attorneys went about
responding to the Rule 7 challenge informs why they should be held liable
personally for the costs.
58. I have found that the applicants’ attorneys were authorised to represent
each applicant. But, as described above, this is because it was only after
much interaction by me with the applicants’ counsel that the thi rd
applicant’s confirmatory affidavit was uploaded and so addressed the
issue of authority. The manner in which the applic ants’ attorneys went
about addressing the authority challenge is a factor taken into account in
determining whether they should be personally liable for costs.
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59. The second ground relied upon by Apple is the abuse of the court process
by the applicants’ attorneys. Although the application was issued on 23
October 2025, it was only served upon the respondents per email on 29
October 2025, to be heard the following week on 4 November 2025. By
that stage the periods given to the respondents for delivering their notice
of intention to oppose and answering affidavits had already lapsed. No
explanation is given as to why there was this delay between the issuing
of the papers and service thereof upon the respondents and so in effect
affording the respondents no time to deliver any answering affidavits.
60. It may be that some of the delay is attributable to the second applicant
and third applicant signing their founding affidavit and confirmatory
affidavit respectively on 26 October 2025. But this exacerbates the
problematic conduct of the applicants’ attorneys, as it follows that they
attended to issue court papers on 23 October 2025 without any signed
affidavits. Apple’s counsel also made the point that the assertions made
by the applicants’ attorneys in their compliance statement when applying
for an urgent court date on 26 October 2025 had been misstated in
various respects, such as that the respondents had been invited to the
electronic court file and that the notice of motion and founding affidavit
had been duly served.
61. On 31 October 2025, Spoor & Fisher for Apple sent a detailed and self-
explanatory letter to the applicants’ attorneys concerning what they
contended was the improper conduct of the litigation. Spoor & Fisher in
the letter set out the abusive nature of the urgent application, demanding
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that the matter be removed from the roll for 4 November 2025, failing
which counsel would be instructed to appear on behalf of Apple and in
which event costs would be sought as against the applicants and the
applicants’ attorneys de bonis propriis on a punitive scale.
62. The applicants’ attorneys did not respond to this letter. Instead, on
3 November 2025 at 15h41, the day before the matter was to be heard,
the applicants’ attorneys delivered a notice that the applicants intended ,
unilaterally it would appear, removing the matter from the urgent court roll,
without any tender of costs. This was followed by correspondence from
Spoor & Fisher later that day pointing out that the applicants could not
simply remove the matter from the roll without an appropriate order as to
costs and requiring a tender of costs consequent upon the removal, failing
which counsel would appear in court the next day.
63. The applicants’ attorneys did later that day revert that there would be a
tender of costs and so the matter could be removed. Spoor & Fisher
responded requiring that an updated notice be furnished tendering the
wasted costs, including the costs of senior counsel.
64. No such notice was delivered. Instead, when I called the matter the next
day, on 4 November 2025, the applicants’ counsel stated that the
applicants intended proceeding with the matter and were ready to
proceed. This notwithstanding the correspondence of the day before that
the matter was to be removed with a tender for costs.
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65. When I enquired of the applicants’ counsel whether the applicants
intended filing a replying affidavit in response to the answering affidavits
that had been filed, the applicants’ counsel, notwithstanding that he had
just stated that the applicants were ready to proceed, sought that the
applicants be given an opportunity to respond by way of a replying
affidavit. Apple’s counsel raised this vacillation as further evidence of the
abusive nature of the litigation.
66. I directed that the applicants should file their replying affidavit by close of
business the next day, and so too the other parties who wished to file any
further documents, so that the matter could be heard on 6 November
2025.
67. That was also the occasion when I directed that to the extent that the
applicants were going to deal with the Rule 7 challenge, that the
applicants’ response should also be forthcoming by the next day. I have
already dealt with the deficiency of the response in relation to the Rule 7
challenge.
68. There has been no regard at all by the applicants’ attorneys as to what is
required when assessing whether a matter is to be brought urgently or as
to what is an appropriate truncation of the periods for the exchange of
affidavits to ensure that the matter is ripe for hearing. This is self-evident
from what I have already set out.
69. Nor, as required in term of Uniform Rule 6(12)(b), has any substantial
case been made out that the applicants would not be afforded substantial
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redress at a hearing in due course. Nor is any basis made out why if not
afforded an urgent hearing during the week of 4 November 2025 (rather
than in some later week,16 or even in the ordinary course), the applicants
will not be afforded substantial redress. The goods have been in the
possession of SARS since the goods entered the country in July 2025.
Even should the applicants have been delayed because of some or other
uncertainty (which they do not assert), at least from 29 September 2025
upon receipt of a letter from Spoor & Fisher to the applicants’ erstwhile
attorneys, it was clear that the goods were not going to be released. Yet
the applicants did not explain why they waited until 23 October 2025 to
launch the application, or why it was so urgent that the application was to
be launched without affidavits having yet been signed.
70. Nor do the applicants’ assertions that the first applicant’s business will be
destroyed if the goods are not released hold much water. Only the most
cursory averments are made, devoid of any factual detail. Further, as
argued by the opposing respondents, it is not clear whether first applicant
is necessarily the correct party to be seeking any relief given that the
importer and owner is reflected in various of the documents as being
some other corporate entity.
16 See para 5 of the DJP’s notice on the urgent motion court, Johannesburg dated 4 October 2021.
23
71. There is therefore merit in Apple’s submissions that the applicants’
attorneys have abused the urgent court process, and informs whether the
applicants’ attorneys should bear the costs personally.17
72. Apple has also set out in its answering affidavit that the applicants’
attorneys previously represented the third applicant in similar proceedings
seeking the release of mobile phones in which the third applicant’s
attorneys removed the matter from the roll at the eleventh hour. Apple
asserts that the present urgent proceedings are part of a pattern of
improper and abusive litigation engaged in by the third applicant
concerning the seizure of counterfeit goods. Apple’s counsel argued that
the applicants attorneys, acting for the third applicant, effectively sought
to ambush Apple and SARS with urgent litigation on deficient papers and
without proper authority, and then when faced with opposition, to seek to
avoid the matter being heard.
73. As is the case with the other serious averments made by Apple in its
answering affidavit, the applicants did not seek to engage substantially
with these averments.
74. There is accordingly substance to Apple’s assertion that the methodology
adopted by the applicants’ attorneys is to launch urgent applications and
17 See pars 4 of the DJP’s notice of 4 October 2021 above, forewarning that punitive costs de bonis propriis may
be awarded against legal practitioners where non-urgent matters are enrolled.
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then when being faced with opposition, seeking to remove the matter and
avoid a determination of the matter.
75. Further, as highlighted by both respondents’ counsel, the urgent
application bristles with irregularities and deficiencies.
76. SARS’ counsel pointed out that the belated replying affidavit filed
ostensibly on behalf of the applicants and ostensibly deposed to by the
second applicant is not commissioned in that the commissioner of oath’s
signature is missing. And so, SARS’ counsel argues, there is actually no
replying affidavit before the court. The only response forthcoming from the
applicants’ counsel is that the failure of the commissioner to sign the
replying affidavit when commissioning the affidavit is something to be
condoned. Again, no attempt was made to address this deficiency such
as by asking for an indulgence for a properly signed and commissioned
replying affidavit to be delivered.
77. This is no small thing in this particular matter whether Apple has squarely
raised in its answering affidavit whether various signatures that purport to
be those of the second applicant in fact are her signatures. Apple in its
answering affidavit makes the averments that the signatures that purport
to be those of the second applicant as appear in her founding and replying
affidavits and her power of attorney differ significantly. Apple also under
oath raises its own concerns as to the commissioning of the affidavits.
78. It would have been expected of the applicants’ attorneys to seek leave to
file a supplementary affidavit by the second applicant unequivocally
25
stating that the various signatures were hers and that she stood by what
she has said in her affidavits and in her power of attorney.
79. As was the case with the many other serious averments made by Apple,
neither the applicants nor the applicants’ attorneys sought to substantively
refute these averments. The applicants’ counsel could do no better than
seek to argue that these deficiencies were a product of the application
having been launched on an urgent basis and therefore should be
condoned. It is the applicants’ attorneys who advised the applicants to
have embarked upon urgent proceedings and therefore have little
grounds to complain that the battlefield on which they chose to litigate
turns out to be the cause of the multiple deficiencies in their papers.
80. I find that the manner in which the applicants’ attorneys have gone about
litigating in this matter, with no regard to the practice of the urgent court
and with papers bristling with irregularities, is deserving of censure. It is
appropriate in that, in addition to the applicants’ being liable for Apple’s
costs, that so too the applicants’ attorneys should be liable to pay costs
personally.
18
81. These costs, both as awarded against the applicants and the applicants’
attorneys should be on an attorney and client scale, as requested by
18 The applicants’ attorneys are liable in addition to the applicants themselves. Contrast to Machumela v Santam
Insurance Co Ltd 1977 (1) SA 660 (AD) at 664B/C where the litigant’s attorneys were held liable and precluded
from recovering a fee from the litigant as their client because no blame attached to the litigant himself.
26
Apple. Both the applicants and the applicants’ attorneys have participated
in the abuse of the court process.
82. The engagement of two counsel by Apple is justified, particularly given
the truncated periods in which Apple had to oppose the urgent
proceedings.
83. SARS as the second respondent also sought costs but did not seek it on
a scale other than on a party and party scale, with the costs of counsel
being on scale B. Although SARS’ counsel during the course of argument
submitted that costs should be granted on a more punitive scale,
potentially also against the applicants’ attorneys, I was not directed to any
prior notice was given that such costs would be sought.
84. The following order is made:
84.1. the application is dismissed, on its merits;
84.2. the first applicant, the second applicant, the third applicant and
Sierra Mandisa Ngcamu Attorneys personally are to pay, jointly
and severally with each other, the costs of the first respondent on
an attorney and client scale, including the costs of two counsel;
84.3. the first applicant, the second applicant, the third applicant, jointly
and severally with each other, are to pay the costs of the second
respondent on a party and party scale, including the costs of
counsel on scale B.
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______________________
Gilbert AJ
Date of hearing: 4, 6 November 2025
Date of judgment: 10 November 2025
Counsel for the applicants: S M Nkabinde
Instructed by: Sierra Mandisa Ngcamu Attorneys,
Johannesburg
Counsel for the first respondent: I Joubert SC (with T Mamabolo)
Instructed by: Spoor & Fisher, Pretoria
Counsel for the second respondent: W M Mothibe
Instructed by: MacRobert Attorneys, Pretoria