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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 18187/2022
In the matter between:
AFRINERGY HOLDINGS (PTY) LTD Applicant
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED: NO
(4) DATE: 02 Febuary 2026
(5) SINGATURE: ______________
and
THE COMMISSIONER, SOUTH AFRICAN
REVENUE SERVICES First Respondent
SAKHILE SHIBA Second Respondent
DAVID MABUZA Third Respondent
This judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives by email.
The judgment is further uploaded to the electronic file of this matter on
CaseLines by the Judge or her Secretary. The date of this judgment is
deemed to be 02 February 2026.
JUDGMENT
____________________________________________________________________
COLLIS J
INTRODUCTION
1] The present application is a review of the decision by the Commissioner
for the South African Revenue Service (“the Commissioner” / “the second
respondent” or “SARS”) to seize fuel in terms of the Customs and Excise
Act (“the Act”)1 which was purportedly being transported into the Republic
of South Africa.
2] In the founding papers it as alleged that the decision to seize the
applicant’s truck, trailer and diesel fuel took place in terms of sections
88(1)(c) read together with sections 87 and 102 of the Act.
3] The grounds of review are premised on the provisions of the Promotion
of Administrative Justice Act (“PAJA”)2 alternatively on the basis that the
Commissioner’s decision is unlawful and stand to be set aside. In the
matter of Portland Cement Co Ltd and A nother v Competition
Commission and Others3 the Supreme Court of Appeal held that a review
is aimed at the maintenance of legality and not at correcting a decision on
the merits.
4] Central to the adjudication of the dispute is whether Afrinergy Holdings
(Pty) Ltd (“Afrinergy”) or (“the applicant”) contravened sections of the Act
which would cause the invocation of provisions of the Act namely the
seizure of the fuel.
1 No 91 of 1964.
2 No 3 of 2000.
3 2003 (2) SA 385 (SCA).
5] As such, in this application, this Court was called upon to determine the
following issues:
5.1 Whether the Answering Affidavit constitutes hearsay evidence?
5.2 Has the applicant complied with section 89 of the Customs Act?
5.3 Has the applicant complied with section 96 of the Customs Act?
5.4 Has the applicant made out a case for condonation in section 96 of the
Customs Act and whether this Court can grant condonation given the
factual matrix?
5.5. Has the applicant satisfied the requirements for the grant of the
review which it seeks?
DOES THE ANSWERING AFFIDAVIT CONSTITUTE HEARSAY?
6] The answering affidavit was deposed to by Mr. Sakhile Shiba (“Shiba”)
an Operations Manager based in Mpumulanga . In this regard the applicant
contends that albeit that he is technically authorised to depose to an
affidavit on behalf of the Commissioner by virtue of his employment, it is
denied that Mr. Shiba can properly depose to the answering affidavit . This
they say so, as Mr Shiba was not at the border on the day the alleged
contravention took place, nor does his affidavit contain confirmatory
affidavits from any of the SARS’s officials who were involved in c ontrolling
and operating the customs control area on the day the alleged
contravention took place. The facts thus deposed to are accordingly
hearsay.
7] Hearsay evidence is defined in section 3(4) of the Law of Evidence
Amendment Act, No. 45 of 1988 as “e vidence, whether oral or in writing,
the probative value of which depends upon the credibility of any person
other than the person giving such evidence”. It is trite that section 3 of the
same Act regulates the exception to this rule.
8] On behalf of the applicant it was argued that the respondent failed to
rely on the exception to this rule and as such the entire answering affidavit
constitutes hearsay evidence.
9] It is common cause that t he Commissioner can only execute his duties
through its functionaries and that these duties at times are executed by
different personnel at various intervals.
10] Herein before the decision to seize was taken, the applicant was
engaged at various intervals and at no stage during this engagement was
the point ever taken that the functionaries of the Commissioner relied on
hearsay evidence or was any documents relied upon ever disputed. So too
it was not disputed that these officials found the truck abandoned, detained
the tr uck and its consignment of fuel and found certain invoices and
documents inside the truck on inspection. In fact, the circumstances under
which the truck was detained all seem common cause between the parties.
The applicants own case is also based on the aforesaid facts. As such I
cannot conclude that the Answering affidavit constitutes hearsay evidence
as defined in section 3(4) of the General Law Amendment Act.
BACKGROUND
11] As a point of departure , it will be apposite to give some background
information to this dispute . On 10 July 2019 a consignment of fuel
purportedly went through Oshoek Border Post (“OBP”) . As a result of this
SARS Focused Investigations: Tactical Intervention Unit (“TIU”) conducted
an investigation into the incident.
12] This investigation was aimed at determining whether due entry had
been made on the fuel and whether provisions of the Act had been
complied with.
13] Pursuant to the investigation so conducted by SARS, officials had found
that a Mercedes Benz Truck bearing registration numbers and letters J[...]
(“the truck”) and a trailer bearing registration numbers and letters J[...]2
(“the trailer”) which were used to convey 39 892 litres of fuel, had been
abandoned at OBP. The driver had also absconded.
14] Inside this truck an invoice was found which informed the officials that
the fuel was being conveyed by the truck and trailer for import into the
Republic of South Africa. In additio n to the above , Eswatini declarat ions
documents were also found inside this truck.
15] As a result of this disc overy members of TIU deemed it necessary to
detain the vehicle and the fuel on 11 July 2019, in terms of section
88(1)(a) of the Act, this to conduct further investigation into the purported
importation of the fuel.
16] A detention notice,4 was thereafter issued to the applicant. In the said
notice, Afrinergy was informed that the vehicles and fuel would be detained
and removed to the state warehouse. In addition, the applicant was
informed that the vehicle and goods may be released on condit ion of the
applicant submitting to SARS the SAD, DA500, DA550, CCA1 customs
declaration forms (as applicable) as well as the commercial invoice and
packing list. Further payment of the fuel levy as well as possible penalties
also had to be made.5
17] In addition to the above, a request for information was also sent to the
applicant’s representatives during August 2019, more specifically proof of
ownership of the vehicle, the identity document of the owner of the
vehicle, movement tracking records of th e vehicle and an explanation of
the movement of the vehicle from the time it left South Africa for
Mozambique until the date of detention on 11 July 2019. In response, and
on 15 August 2019, Afrinergy submitted only some of the requested
information.6
4 Record of proceedings, Item 11, Detention Notice, 006-36.
5 Record of proceedings, Item 11, Detention Notice, 006-37.
6 Record of proceedings, Item 8, Letter from Afrinergy, 006-41.
18] Thereafter and on 5 September 2019, SARS addressed further
correspondence to the applicant, informing them that certain requested
information had been received however additional information was required
inter alia, proof of fuel purchases from Mozambiq ue as well as all import
and export entries between Mozambique, South Africa and Eswatini. 7 On
29 September 2019, the Applicant submitted an invoice for the diesel fuel
detained.
19] Some eight (8) months later and on 14 May 2020, Afrinergy submitted
its notice of intention to institute legal proceedings against SARS 8 in which
the cause of action was stated to be the release of the Afrinergy vehicle
(truck, trailer) and fuel.
20] Thereafter on 8 July 2020, SARS issued to Afrinergy a notice of intent
to seize 9. The letter sets out the preliminary findings of the SARS
investigation, informing Afrinergy of SARS conclusions, inter alia:
20.1 The fuel was brought into the country without payment of duties
and absent import declaration;
7 Record of proceedings, Item 8, Letter from SARS, 006-105-107.
8 Record of proceedings, Item 20, Section 96 Notice, 006-126.
9 Record of proceedings, Item 22, Letter of Intent to Seize, 006-131.
20.2 According to the truck tracker, there were movements of the
truck between South Africa, Mozambique and Eswatini between the
28th June 2019 and 10 July 2019;
20.3 Invoices submitted on 29 September 2019, reflect a different
amount and value from the invoice used to declare the consignment
in Eswatini; and
20.4 Offences were accordingly committed in terms of the Act and
under section 87(2)(a)(b) and (c), the vehicles and fuel are liable to
forfeiture.
21] On 16 July 2020, Afrinergy responded to the notice of intent to seize. 10
In the said response, t he applicant denied that it breached sections of the
Act nor that it failed to make , due entry of the fuel. In addition, the
applicant provided an explanation for the position of the truck when it was
found and a purported explanation as to why the driver abandoned the
vehicle.
10 Record of proceedings, Item 24, Letter from Pahad Attorneys, 006-140
22] Thereafter, on 13 August 2020, SARS responded to the applicant’s
explanation of events and drew to its attention the discrepancies in (i) the
trip/tracker report of the vehicle between 28 June and 10 July 2019 and (ii)
the invoices dated 8 July 2019 purporting to refle ct the fuel consignment.
SARS therefore remained of the view that Afrinergy failed to declare goods,
submitted false information and, thus, has committed an offence under
section 88 of the Act.11
23] SARS thereafter issued the Seizure Notice in respect of the vehicles
and fuel under section 88(1) (c) of the Act.12
24] This prompted the applicant to file an Internal Administrative Appeal
(“IAA”) on 19 November 2020 against SARS decision to seize.13
25] The IAA Committee considered Afrinergy’s submissions on appeal and
upheld the decision to seize. 14 On 12 March 2021, following further
11 Record of proceedings, Item 26, SARS Letter to Pahad Attorneys, 006-148.
12 Record of proceedings, Item 27, Seizure Notice, 006-151.
13 Record of proceedings, Item 28, IAA, 006-155.
14 Record of proceedings, Item 32, Letter from Pahad Attorneys, 0060114.
correspondence between the parties, Afrinergy was given additional
reasons why the appeal was refused.
26] The applicant also referred the matter to alternative dispute resolution
(‘ADR’) on 14 April 2020. On 28 September 2021 SARS terminated the
ADR proceedings on the basis that the seizure of the applicants detained
assets was correctly stated by the Internal Administrative Appeal
Committee and as a result the Commissioner has decided to terminate ADR
proceedings.
27] At the hearing the applicant applied for an amendment to the Notice of
Motion for an order in the following terms:
“1. Reviewing and setting aside the Second Respondent’s decision of dated
13 August 2020, seizing the Applicants truck, tanker trailer and diesel fuel,
which decision was confirmed by the Third Respondent, as Chairperson of
the Internal Appeals Committee, alte rnatively the Penalty Review
Committee.
2. To the extent necessary, condoning the applicant’s non -compliance (if
any) with the provisions of section 89 of the Customs and Excise Act, No
91 of 1964 (“the Act”).
3. Ordering that the First Respondent, pay the Applicant’s costs, if the
application is opposed.
4. Further and/or alternative relief.”
28] The application for an amendment was not opposed by the first
respondent as the affidavits in the main application by then had already
been filed in the matter and the notice to amend was first applied for
during the filing of the Replying Affidavit.
29] At the heari ng the Court proceeded to grant the application as there
was no opposition taken by the respondent, nor did the respondent raise
any prejudice on its part.
HAS THE APPLICANT COMPLIED WITH SECTION 89 OF CUSTOMS AND
EXCISE ACT?
30] In the application, first respondent had raised a point in limine, i.e. in
relation to the provisions of section 89 of the Customs Act which reads as
follows:
89. Notice of claim by owner in respect of seized goods.—
(1) Whenever any proceedings are instituted to claim any ship,
vehicle, container or other transport equipment, plant, material, or
goods (in this section, section 43 and section 90 r eferred to as
“goods”), which have been seized under this Act, such claim must be
instituted by the person from whom they were seized or the owner or
the owner’s authorised agent (in this section referred to as “the
litigant”)
(2) Any litigant must give notice to the Commissioner in writing
before serving any process for instituting any proceedings as
contemplated in section 96 (1) (a)—
(a) within 90 days after the date of seizure;
(b) in the case of an internal administrative appeal, where such
appeal is unsuccessful, within 90 days from the date contemplated in
section 77F.
(3) Any proceedings must be instituted within 90 days of such notice
(4) Whenever goods are seized and in consequence of the seizure—
(a) delivery thereof under section 9 3 is refused or the terms of
delivery thereunder are not accepted;
(b) no internal administrative appeal contemplated in Part A of
Chapter XA is lodged or is lodged and is not successful;
(c) any dispute is not resolved as contemplated in Part B of Chapt er
XA or not settled as contemplated in Part C of that Chapter;
(d) no proceedings are instituted as contemplated in this section or
have been instituted and have been dismissed in a final judgment of
the High Court or a judgment by the Supreme Court of Appeal, the
goods concerned shall, subject to the provisions of section 90, be
deemed to be condemned and forfeited.
(5) The provisions of section 96(1)(c) shall apply mutatis mutandis to
any period contemplated in subsections (2) and (3).”
31] In terms of this peremptory provisions of the Act , the respondent
contends that it is required that any party who lays claim to seized goods
must meet two requirements in that; the notice in terms of section 96
must be given within 90 days of the seizur e and secondly any intended
proceedings must be instituted within 90 days of the service of the section
96 Notice on the Commissioner.
32] In terms of the section quoted above, the Notice of intended litigation
(“section 96 Notice”) must therefore be served on the Commissioner within
90 (ninety) days of the date of seizure alternatively within 90 (ninety) days
of the outcome of an Internal Administrative Appeal. In addition, the
envisaged proceedings must be instituted within 90 (ninety) days of the
date of service of the Notice of intended litigation.
33] This much is clear from a plain reading of the text of the section.
34] Herein, the Notice of Seizure , was issued to Afrinergy on 9 October
2020. Thereafter, the Applicant was informed on 12 March 2021 that its
Internal Administrative Appeal (“IAA”) was unsuccessful, and the decision
was made to uphold the seizure.
35] On this basis the respondent contends that in terms of section 89(2)
(b), the Section 96 Notice should have been served by no later than 12
June 2021 and the envisaged proceedings should have been instituted no
later than 12 September 2021.
36] Given that the section makes no provision for Alternate Dispute
Resolution Proceedings, the applicant was mandated to utilise the date of
communication of the outcome of the IAA as the effective date from when
its dies started to run.
HAS THE APPLICANT COMPLIED WITH SECTION 96 OF THE ACT?
37] The applicant served its first section 96 Notice on 14 May 2020 , this
prior to any seizure having taken place ,15 and in the said notice it
formulated its cause of action as one for the release of its truck, trailer and
fuel.
38] It served a second section 96 Notice on 25 February 2022. This, some
eleven months after it was informed that its IAA appeal was unsuccessful.
The application for review was thereafter issued on 28 March 2022 , this
without any request which was made to the Commissioner to extend the
period as envisaged in section 96(1) (c) nor was condonation sought from
the Commissioner for the late filing of this section 96 Notice.
39] Section 96(1) permits a Court to condone the late filing of the Notice,
only in such circumstances where the Commissioner was requested to
condone the late filing and unreasonably refused such request.
40] In the present instance , counsel for the respondent had argued that
the applicant has neither sought condonation from the Commissioner or
15Founding Affidavit annexure “SA3”
from this Court and that the time period for instituting the application has
therefore prescribed.
41] On behalf of the applicant the argument advanced in respect of the
point in limine , was that Section 89 of the Act , is not applicable as the
applicant’s claim as per its Notice of Motion, is for the setting aside and
review of the decision to seize the applicant’s truck, trailer and fuel, in
terms of section 8 of t he Provisions of the Promoti on of Administrative
Justice Act No 3 of 2000 (“PAJA”).
42] This notwithstanding of the fact that the applicant in terms of PAJA
read together with the Act, has provided the respondents with sufficient
notice in terms of Section 96(1)(a) of the Act and has brought its
application within the 180-day period afforded to it by PAJA.
43] In addition, counsel for the ap plicant had argued that in terms of the
section relied upon by the respondent , it does not account for all the steps
taken by the applicant, which steps included continually issuing notices in
terms of Section 96(1)(a) of the Act to keep the matter moving along
where the respondents continuously delayed in finalising their decisions,
which delays resulted in additional or further decisions being taken (albeit
based on the same information and facts) or taking unreasonably long
periods to do so. The r espondents were at all times aware that the
applicant intended to either apply for the review and setting aside of the
decision to detain or the decision to seize the truck, trailer and fuel, and
that the applicant’s application in terms of PAJA would be i n terms of the
same facts, with the necessary order requested in terms of PAJA.
44] Counsel had further argued that the applicant attempted to resolve the
matter by exhausting all internal remedies available to it in terms of the
Act, prior to launching this application in terms of PAJA.
45] In addition, the section 89 notice does not provide for any time limits
within which to institute proceedings if the applicant makes an application
for alternative dispute resolution such as in the present instance in terms
of Section 77I of the Act and the rules and regulations in regard thereto.
46] On this basis it was submitted that the applicant could not have, under
any reasonable or logical circumstances, issued a notice in terms of Section
96(1)(a) of the Act until such time as it had completed the alternative
dispute resolution process. Had the applicant done so it would have
negated the purpose of alternative dispute resolution – which is to resolve
a dispute without litigating.
47] In terms of Section 96 , extinctive prescription, so counsel had argued
would run from the date the Commissioner or any of his functionaries
delivered the outcome of the alternative dispute resolution process. This
was 28 September 2021. Thus, under no circumstances could the applicant
possibly have been expected to institute proceedings by 12 September
2021, as alleged by the respondents.
48] For these reasons counsel submitted that the applicant has brought its
application both within the timelines as set out in terms of PAJ A and in
terms of Section 89 of the Act, despite that the present application is not
one being brought in terms of Section 89. Based purely and ex abundante
cautela, the applicant therefore delivered an amended notice of motion and
requested condonation from this Court if at all necessary.
49] As previously mentioned, two requirements are to be met by a party
who lays claim to seized goods . Firstly, the notice in terms of section 96
must be given within 90 days of the seizure and secondly any intended
proceedings must be instituted within 90 days of the service of the section
96 Notice on the Commissioner.
50] In the present matter it is common cause that the applicant had served
several section 96 notices on the Commissioner. The first notice dated 14
May 2020 and the second notice dated 25 February 2022. In respect of the
first notice, it is important to note that the notice predat ed the notice of
seizure whereas the second notice of 25 February 2022 specifically dealt
with the application to review and set aside the Commissioners decision to
seize.
51] The service of the first section 96 notice dated 14 May 2020, took
place before the intention to seize had taken place. No cause of action had
arisen at that stage as no seizure by then had taken place. The notice was
thus delivered prematurely and at best it was a nullity.
52] Support for this reasoning is found in the matter of The
Commissioner for the South African Revenue Service and Others v
Dragon Freight (Pty) Ltd and Others 16 where the Supreme Court of
16 [2022] 3 All SA 311 (SCA) (7 June 2022).
Appeal dealt with a situation simila r to what is before the Court where
there are different section 96 Notices sent:
“The impugned decision had not been taken when the February
notice was delivered to SARS. It was thus impossible for the
respondents to set out any cause of action in that noti ce: there was
none. Section 96(1) (a) (i) of the Act does not permit a notice in
anticipation of a decision not yet taken, by the functionaries referred
to in that provision. Such a construction would nullify its purpose and
render the sanction of invalidity in s 96(1) (a) (iii), nugatory.
What is more, when the February notice was delivered, no
‘administrative action’ as defined in the Promotion of Administrative
Justice Act 3 of 2000 (PAJA), had been taken. That definition includes
a decision taken by an organ of state when exercising a public power
or performing a public function in terms of any legislation ‘which
adversely affects the rights of any person and which has a direct,
external legal effect’. This merely reinforces the absence of any
cause of action when the February notice was delivered.”
53] The second notice was served on the respondent on 25 February 2022,
this after the applicant was informed by the respondent that the IAA was
unsuccessful on 12 June 2021.
54] Th is second notice having regard of the provisions of the Act was
served outside of the 90-day period provided for in the section and as such
it was not served timeously on the Commissioner.
55] The second notice also never sought condonation from the
Commissioner for its late service on the Commissioner neither did it seek
an extension of the time period in respect of which it sho uld have been
served.
56] Absent such a request having been directed to the Commissioner, this
Court simply cannot condone the applicants ’ failure to have acted within
the prescribed time period as provided for in the Act and as such this Court
must then conclude that the proceedings were instituted prematurely in the
absence of condonation having been requested, considered and either
granted or refused by the Commissioner. Consequently, it is found that
there has also been non-compliance with section 96 of the Act.
57] In the matter of The Commissioner for the South African Revenue
Service v Prudence Forwarding (Pty) Ltd17 the Court held as follows:
‘It was therefore incumbent upon [the respondents] to serve the
relevant notice and to obtain the agreement of the Commissioner or
the sanction of the court to reduce the one -month period in respect
of the new cause of action in volving a review of the seizure decision.
This was not done. The respondents could not rely on the notice they
served to obtain the release of the goods from detention. Section
96(1)(a)(i) of the Act makes it plain that the notice must relate to a
specific cause of action, which is required to be set forth “clearly and
explicitly” in the written notice. And section 96(1) (a) (iii) provides
that no notice shall be valid unless it complies with the requirements
prescribed in the section. Thus, since no notice was delivered in
respect of the review, and neither the Commissioner or the court
agreed to a reduced period, the jurisdictional conditions precedent
were not fulfilled, and the court accordingly lacked jurisdiction to
grant the final relief it granted, i n the form of an order setting aside
17 2015 JDR 2545 (GP).
the seizure of the goods. For that reason alone, the appeal must
succeed.’18
58] Consequently, this Court must conclude that the applicant has failed to
comply with the provisions of section 89 of the Customs and Excise Act and
as a result the point in limine is upheld with costs.
HAS THE APPLICANT COMPLIED WITH SECTION 93 OF THE ACT?
59] In addition to the above, the respondent further avers that the
applicant lacked the necessary locus standi to have launched the present
proceedings, if one considers the provisions of section 93 of the Act. The
section reads as follows:
93. Remission or mitigation of penalties and forfeiture—
(1) The Commissioner may, on good cause shown by the owner
thereof, direct that any ship, vehicle container or other transport
equipment, plant, material or other goods detained or seized or
forfeited under this Act be delivered to such owner, subject to—
18 Ibid para 28.
(a) payment of any duty that may be payable in respect thereof.
(b) payment of any charges that may have been incurred in
connection with the detention or seizure or forfeiture thereof; and
(c) such conditions as the Commissioner may determine, including
conditions providing for the payment of an amount not ex ceeding the
value for duty purposes of such ship, vehicle container or other
transport equipment, plant, material, or goods plus any unpaid duty
thereon.
60] Herein the respondent avers that the applicant has not provided the
Commissioner with proof that he was the owner of the seized goods and
would therefore have the necessary locus standi to claim back the seized
goods.
61] Absent proof of ownership to the truck, there has also been non -
compliance with the provisions of section 93 of the Act.
HAS THE APPLICANT MET THE REQUI REMENTS FOR THE REVIEW OF THE
COMMISSIONER’S DECISION?
62] In respect of the merits of the review it is the applicant’s case that on
10 July 2019 when its truck passed through the OBP, it was not adequately
manned and that it intended to make the necessary declaration once its
consignment of fuel entered the country and remained in the appropriate
customs control area.
63] The applicant contends that this it was permitted to do so in terms of
Section 38(1)(a) of the Act which provides that “every importer of goods
shall within seven days of the date on which such goods are, in terms of
section ten deemed to have been imported except in respect of goods in a
container depot as provided for in se ction 43 (1) (a) or within such time as
the Commissioner may prescribe by rule in respect of any type of cargo,
means of carriage or any person having control thereof after landing, make
due entry of those goods as contemplated in section 39.”
64] Accordingly, counsel had argued that it was allowed in terms of the
Act, to enter the Republic with its cargo, and that the cargo had to remain
with SARS, in a customs control area at the border until such time as the
declaration was to be made within the seven-day period allowed for in the
section.
65] As a result of an error on the part of its driver, the truck proceeded
beyond the customs control area and then it exited the border in order to
turn the truck around. This error , so counsel contends , was allowed to
occur because of a lack of control over the area by SARS officials, with both
the entry and exit gates being unmanned. Had SARS officials properly
carried out their duties, this would have been avoided.
66] The respondent denies that the OBP on the day on question was not
adequately manned by its officials. They say so, as the applicant ha d failed
to produce evidence at the very least by its driver to support this
contention.
67] The deponent to the founding affidavit further bears no personal
knowledge of what exactly ha d transpired when its ’ driver drove through
the OBP. In addition, the truck was found turned around, abandoned and
unattended and facing the border some metres awa y with also no
explanation proffered by the applicant in this regard.
68] In the present matter, it is common cause that the driver of the truck
had not deposed to an affidavit explaining why he went through the OBP
without declaring the goods he was transporting.
69] This Court considers it at best opportunistic by the applicant to
apportion blame on the side of the SARS officials employed at the border
for its failure to make a declaration as it always was and remained the
applicant’s obligation to declare such goods when it entered the border
post or within seven days as provided for by section 38 of the Act.
70] In the a bsence of such evidence being placed before this Court , I
cannot conclude that the OBP was not adequately manned on the day of
the incident.
71] Upon making the finding of the abandoned truck containing the fuel,
the Commissioner issued a notification o f its intent to seize the abandoned
truck containing the fuel and informed the applicant of its decision to seize .
It thereafter requested certain information from the applicant which could
potentially prove that the provisions of the Act had not been contravened.
72] The applicant provided some of the requested information and
documentation, but this documentation did not prove that there was due
compliance with the Act.
73] The applicant was also provided with an opportunity to provide
explanations and supporting documentation to explain the discrepancies
picked up by SARS. Upon receipt of the explanations coupled with the
information at its disposal, the decision was then made by the
Commissioner to seize the fuel and the truck.
74] The applicant as mentioned, relies on the provisions of section 38 of
the Act, namely that it had a period of 7 (seven) days to make due entry of
the goods. H owever as a result of its driver absconding the vehicle, they
could not make due entry of the fuel.
75] Fuel is an incredibly risky commodity which carries a high customs
duty and the duty incumbent on transporters, importers, exporters etc. is
even higher given the ease with which fuel can be unlawfully moved
around without duty having been paid thereon.
76] Given the factual matrix and the absence of evidence by the driver who
absconded, this Court cannot conclude that the decision taken by the
Commissioner for the subsequent seizure of the goods under section 88
was unwarranted, unlawful and without meri t. The decision taken by the
Commissioner was made upon engagement with the applicant and upon
assessment of the explanations provided by the applicant in respect of the
invoices, movements of the truck as well as documents reflecting
legitimate import of the fuel.
77] A review is specifically concerned with the process undertaken to reach
the decision under attack and more importantly whether such decision is
lawful. In Liberty Life Association of Africa v Kachelhoffer 19 the court
held that the correctness or otherwise of the decision is confined to the
enquiry in an appeal. In the present matter this Court is of the view that
the decision taken by the Commissioner was lawful and that the applicant
19 2001(3) SA 1094 (C).
has failed to meet the requirements to have the decision so taken set
aside.
ORDER
78] In the result the following order is made:
78.1 The respondents point in limine is upheld with costs.
78.2 The application is dismissed with costs, including the costs of
two counsel, in accordance with Scale C of Rule 67A (as amended) of
the Uniform Rules of Court.
___________________
COLLIS J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
Counsel for the Applicant: Adv. G.Y. Benson
Instructing Attorney: PAHAD ATTORNEYS
Counsel for the Respondent: Adv. K. Kollapen & S. Kazee
Instructing Attorney: YAMMIN HAMMOND INC.
Date of Hearing: 13 November 2024
Date of Judgment: 02 February 2026