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1992
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[1992] ZASCA 183
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Tieber v Commissioner for Customs & Excise (622/90) [1992] ZASCA 183; 1992 (4) SA 844 (AD); (28 September 1992)
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
CASE NO 622/90
FRANS FERDINAND TIEBER
APPELLANT
AND
THE COMMISSIONER FOR CUSTOMS & EXCISE
RESPONDENT
CORAM
: CORBETT CJ, E M GROSSKOPF, KUMLEBEN,
GOLDSTONE JJA et HOWIE AJA.
DATE HEARD
: 15 September 1992
DATE DELIVERED
: 28 September 1992
2
JUDGMENT
GOLDSTONE JA
:
The appellant, Frans Ferdinand Tieber, is a citizen of Austria and a resident
of the Republic. He lived in an apartment in Victory
Park, Johannesburg, with
his girl friend, Ms Irene Kotze ("Kotze"). During March 1989 the appellant and
Kotze agreed with unnamed
principals in Zimbabwe to transport on their behalf
unwrought gold, foreign currency and travellers cheques ("the consignment") from
Zimbabwe to Switzerland. On 9 March 1989 they took the consignment in two
suitcases by motor car from Zimbabwe to Gaborone in Botswana.
There, on the same
day, they made reservations for airline
3
flights to Zurich via Jan Smuts and Frankfurt
Airports. Their intention was to remain in transit at both airports. They
checked in
their baggage, including the consignment, from Gaborone to Zurich.
They were handed the usual baggage check tags by an Air Botswana
employee.
The appellant and Kotze boarded the Air Botswana flight from Gaborone to Jan
Smuts Airport. Upon arrival there they were informed
that the departure of their
connecting flight to Frankfurt had been delayed for 12 hours. But for the delay
they would have remained
in the passenger transit lounge at the airport. In the
circumstances they decided to spend some of the time at their home in Victory
Park.
As the consignment had already been checked in for delivery to them at Zurich
Airport, the appellant and Kotze decided that they would
save one air fare if
Kotze
4
alone completed the journey to Frankfurt and
Zurich. In accordance with that decision, later that day the appellant took
Kotze to
Jan Smuts Airport where she boarded the aircraft. She took the baggage
check tags with her. The appellant and Kotze were unaware
that, earlier in the
day, the two suitcases containing the consignment had been opened and searched
by police officers at the airport
and detained there.
Later that same evening, after the appellant had returned to his apartment,
members of the South African Police arrived with the two
suitcases. He was
arrested and a charge was laid against him. However, the attorney-general
declined to prosecute the appellant and
the charge was formally withdrawn on 20
October 1989. It would appear that on about 31 October 1989 the respondent
seized the consignment,
acting in terms of the provisions of the Customs and
Excise Act, 91 of 1964 ("the Act").
5
The foreign currency was returned by the
respondent to the appellant at Jan Smuts Airport and he was allowed to take it
with him on
a flight to Frankfurt. The unwrought gold and the travellers cheques
were not returned to the appellant. In respect of the gold,
the appellant was
informed by letter dated 31 October 1989 that it had been seized in terms of s
83 read with ss 87 (1) and 88(1)
of the Act.
In terms of s 83 any person who, inter alia, deals or assists in dealing with
any goods contrary to the provisions of the Act commits
an offence and the goods
in respect of which the offence is committed become liable to forfeiture.
S 87(1) expressly provides that goods imported or otherwise dealt with
contrary to the provisions of the Act are liable to forfeiture
"wheresoever and
in possession of whomsoever found."
6
In turn, s 88(1)(a) provides that certain persons,
including a member of the police force, may detain any goods at any place for
the
purpose of establishing whether they are liable to forfeiture under the Act.
And, paragraph (d) of s 88(1) authorises the respondent,
in his discretion, to
seize any goods liable to forfeiture under the Act.
The appellant applied unsuccessfully to the Transvaal Provincial Division for
an order compelling the respondent to return the gold
to him. With leave of the
Court a
quo
, the appellant has appealed to this Court for similar
relief.
In support of the action taken by him the respondent submits that:
(a) the unwrought gold was imported by the appellant into the Republic;
7
(b) the respondent acted contrary to provisions of the Act which impose certain
obligations upon persons who import goods into the
Republic;
(c) alternatively, the appellant failed to declare the gold when he entered the
Republic.
Before considering these propositions it
will be convenient to consider a point in
limine
relied upon on behalf of
the respondent, viz that the appellant had no
locus standi in iudicio
.
This contention rests upon the provisions of s 89 of the Act. It is there
provided as follows (omitting words presently irrelevant):
"(1) Any ... goods which have been seized under this Act, shall be deemed to
be condemned and forfeited and may be disposed of in
terms of section 90
unless the person from whom such . . . goods have been seized or the owner
thereof or his authorized agent
gives notice in writing, within one
month
8
after the date of the seizure, to the person seizing or to the
Commissioner or to the Controller in the area where the seizure was
made, that
he claims or intends to claim the said . . . goods under the provisions of this
section.
(2)
If no such notice is given,
no legal proceedings whatever shall thereafter be instituted against ... the
Commissioner or any officer,
based merely upon the seizure of such ...
goods.
(3)
When a notice in writing has been
given in terms of sub-section (1),
the person giving such notice
shall,
within ninety days of the date of such notice, but, except with the consent of
the Commissioner, not earlier than one month
from the date thereof, institute
proceedings in a court of competent jurisdiction for release of the said . . .
goods." (My emphasis).
Counsel for the respondent
submitted that the gold was not seized from the appellant but either from
9
the police, the airport or airline authorities or
Kotze. He submitted further that as the appellant was not relying upon ownership
of the gold, or the authority of the owner, he had no
locus standi
.
When they seized the goods, the police were acting pursuant to the provisions
of the Act in order to determine whether, in terms of
s 88 (l)(a), they were
liable to forfeiture at the instance of the respondent. To hold that the
respondent thereafter seized the
goods from the police is highly artificial and
formalistic and does not reflect the reality of the situation. The same
criticism
applies to the submission that the gold was seized from the airport or
airline authorities. There is no warrant for giving the relevant
provisions a
formalistic interpretation. In reality, the gold was seized from the appellant
who, together with Kotze, arranged for
it to be in transit at Jan Smuts Airport.
That the respondent or his officials so regarded the
10
situation appears from the notice of seizure
given by the Controller of Customs to the appellant, from the return by the
respondent
to the appellant of the foreign currency and from the respondent's
acceptance of the appellant's notice under s 89.
Finally, on this preliminary point, there is the submission that the goods
were seized from Kotze because she alone, in the result,
was accompanying the
consignment to Zurich. In the first place, the opposing affidavit lays no
factual basis for the point in
limine
. There is no evidence to establish
that the consignment was seized after it was decided that the appellant would
not also travel
to Zurich. If anything, the probability is the other way. The
consignment was obviously taken off the Air Botswana aircraft and,
more probably
than not, would have been detained by the police prior to its being placed on
the aircraft destined for Frankfurt.
In any event it was not in issue that the
appellant and
11
Kotze were both conveying the consignment on
behalf of their undisclosed principals in Zimbabwe. When she proceeded on the
journey
alone she was acting on behalf of both of them. It follows that the
point in
limine
cannot succeed.
I turn, then, to consider the merits. The
first question is
whether the gold was imported by the
appellant into the Republic. S 1 of the
Act is the
definition section. A number of words and expressions
are
defined there; not, however, the word "import".
"Importer" is defined but not
in a manner which gives an
indication of any particular meaning to be
attributed to
"import". In
Beckett and Co Ltd v Union Government
(Minister of Finance
)
1919 TPD 6
at 8 Bristowe J
pointed
out that in its derivative sense an "import" means "any
goods
which are actually landed in the country". The
question is whether it has
that meaning for the purposes
of the Act. In the
Beckett
case, for instance, the
goods
12
concerned, although
prima facie
imported,
were landed for the purpose of immediate re-shipment to another country and were
therefore held not have been imported
within the meaning of the legislation in
issue there.
If one has regard to the scheme of the Act, it
appears
clearly that its main purpose is to ensure that
customs and excise duties are
paid on all goods which are
brought into the Republic other than goods only
in
transit, ie goods which are landed in this country but
destined for
conveyance to another country. For that
reason, one sees in s 18 that
elaborate provision is made
for the removal of goods in bond. Where bonded
goods in
fact leave the common customs area, which includes the
Republic,
no duties are payable: s 18(3)(b).
So, too, in s 6(1) (a) there is provision for designated places where goods
may enter the Republic, inter alia, for
import
or for
transit
.
Indeed, in this section it appears that the legislature expressly made a
13
distinction between goods imported, on the one
hand, and goods in transit, on the other. It follows that the legislature
intended
the word "import" to have a restricted meaning, at least to the extent
of not including goods in transit.
In his argument, counsel for the respondent relied on the provisions of s
10(1) of the Act for the submission that all goods brought
into or landed in the
Republic are deemed to be imported. S 10(1) reads as follows:
"(1) For the purposes of this Act all goods consigned to or brought into the
Republic shall be deemed to have been imported into the
Republic -
(a) in the case of goods consigned to a place in the Republic in a ship or
aircraft, at the time when such ship or aircraft on the
voyage or flight in
question, first came within the control area of the port or airport
14
authority at that place, or at the time of the landing of such goods at the
place of actual discharge thereof in the Republic if
such ship or aircraft did
not on that voyage or flight call at the place to which the goods were consigned
or if such goods were
discharged before arrival of such ship or aircraft at the
place to which such goods were consigned;
(b) in the case of goods not consigned to a place in the Republic but brought
thereto by and landed therein from a ship or aircraft,
at the time when such
goods were so landed;
(c) subject to the provisions of sub-section (2), in the case of goods brought
to the Republic overland, at the time when such goods
entered the
Republic;
(d)
in
the case of goods brought to the
Republic by post, at the time of importation in terms of paragraph
15
(a), (b) or (c) according to the
means of carriage of such goods; and
(e) in the case of goods brought to the Republic in any manner not specified
in this section, at the time specified in the General
Notes to Schedule No. 1
or, if no such time is specified in the said General Notes in respect of the
goods in question, at the time
such goods are considered by the Commissioner to
have entered the Republic."
The submission was that this sub-section is concerned not
only with the
time when goods are deemed to have been
imported into the Republic but that it also provides that
all goods
brought into the Republic are deemed to have
been imported. In my judgment
such a construction is
unjustified and incorrect. My reasons are the
following:
1. Such a construction is contrary to the scheme and purpose of
the Act, to which 1
16
have already referred. In particular, duty is not payable on all goods landed
in the Republic. They are payable only in respect of
goods imported into the
Republic. 2. Such a construction would lead to impractical and even absurd
results. Two examples will suffice:
(a) The words "shall be deemed" in the introductory passage of the sub-section
apply both to goods
consigned to
and goods
brought into
the
Republic. It would necessarily follow, on the respondent's construction, that
goods consigned to the Republic would be deemed
to have been imported into the
Republic. Thus, for example, goods consigned from Europe would be deemed to have
been imported into
the Republic even before they physically arrived in this
country and even, in the event of a mishap, if they never did arrive here.
It is
true that they would be deemed to have arrived at the relevant date specified in
the sub-section.
Non constat
that they
would
17
be deemed to have been imported when consigned. Such a
situation could not have been contemplated by the legislature.
(b) As was conceded by the respondent's counsel, the provisions of s 38 of
the Act, which require an importer to make due entry of
imported goods, would
oblige all goods in transit to be declared even by passengers who do not leave a
transit area and, indeed,
even if they do not disembark from an aircraft which
lands only for refuelling. Again, such an absurd and impractical effect could
not have been intended by the legislature.
In my opinion, therefore, goods in transit are
not imported into the Republic. The appellant did not import the gold and he
could not have contravened any provision of the Act relating
to the import of
goods into
18
the Republic. Consequently, the respondent was
not
entitled to seize the gold on that account.
The only other provision of the Act relied on
by the respondent was s 15(1). At the relevant time,
prior to amendment by
s 12 of Act 59 of 1990, it was
there provided that:
"(1) Any person entering or leaving the Republic shall, in such manner as the
Commissioner may determine, unreservedly declare all
goods in his possession
which he brought with him into the Republic or proposes taking with him beyond
the borders of the Republic,
and shall furnish an officer with full particulars
thereof, answer fully and truthfully all questions put to him by such officer
and, if required by such officer to do so, produce and open such goods for
inspection by the said officer, and shall pay the duty
assessed by such officer
to the Controller."
19
The submission is that when the appellant left
the transit area he was "in possession" of the gold and was obliged to declare
it.
Again, I do not agree. The only purposes of declaring goods are:
(a)
to enable the customs
officer to determine whether duty is payable; and
(b)
to prevent prohibited or restricted goods being brought into the
country.
Goods in transit do not fall into either of
those two categories. No purpose would be served in declaring goods in the hold
of an
aircraft or ship which are not to be brought into the Republic. An
indication that s 15 (1) does not apply to such goods is also
to be found in the
provision there for a customs officer to require the person declaring the goods
to produce and open them for inspection.
In the usual situation such a
requirement would be impossible to fulfil in respect of goods in transit and not
in the physical possession
of the
20
traveller. It follows that the provisions of s
15(1) do not apply to goods which remain in a transit area.
The result is
that the respondent has not been able to justify his seizure of the gold. It
follows that the order in favour of the
respondent made by the Court a
quo
must be reversed. If the gold were delivered to the appellant
personally in the Republic he would, on the known facts, immediately
be in
contravention of the provisions of s 143(3) of the Mining Rights Act, 20 of
1967, viz. by being in possession of unwrought
gold. That is a serious offence
and a court should not make an order which would have that consequence: cf
Scoop Industries (Pty) Ltd v Langlaagte Estate and G. M. Company Ltd (In Vol
Liq
) 1948(1) SA 91 (W) at 102. When this difficulty was put to the
appellant's counsel he undertook to submit an amended form of order
which in the
event of the appeal being upheld would avoid the commission by appellant of any
offence in the Republic.
21
He has done so without any objection from the
respondent's counsel to the grant of an amended order.
The appeal is upheld
with costs, including the costs of two counsel. The order of the Court a
quo
is set aside and there is substituted therefor the following
order:
1. The goods, being six packages marked 1 to 6, sealed with police seal
number 1385 and containing unwrought gold with a total mass
of 38,115 kilograms,
are forthwith to be returned by the respondent to the appellant or his duly
authorised agent in the following
manner at the cost of the respondent:
(a) By having the goods, in the name of the appellant or his agent, placed as
passenger baggage bound for Zurich, Switzerland, on
an aircraft at Jan Smuts
Airport;
22
(b) By handing the appellant or his agent the baggage
receipts.
2. The respondent is ordered to pay the costs
of the application,
including the costs of
two counsel.
R J GOLDSTONE
JUDGE OF APPEAL
CORBETT CJ)
E M GROSSKOPF
JA)
KUMLEBEN JA) CONCUR
HOWIE AJA)