De Beers Marine (Pty) Ltd v Commissioner for the South African Revenue Service (165/2001) [2002] ZASCA 45; [2002] 3 All SA 181 (A) (20 May 2002)

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[2002] ZASCA 45
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De Beers Marine (Pty) Ltd v Commissioner for the South African Revenue Service (165/2001) [2002] ZASCA 45; [2002] 3 All SA 181 (A); 2002 (5) SA 136 (SCA); 65 SATC 14 (20 May 2002)

THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number : 165/2001
In
the matter between :
DE
BEERS MARINE (PTY) LTD APPELLANT
First applicant in the Court
a quo
and
THE
COMMISSIONER FOR THE SOUTH
AFRICAN
REVENUE SERVICE RESPONDENT
First respondent in the Court
a quo
CORAM : NIENABER, ZULMAN JJA and LEWIS AJA
HEARD : 3 MAY 2002
DELIVERED : 20 MAY 2002
Summary:
Section 20(4) of the Customs and Excise Act 92 of 1964 - supply of
bunker fuel as stores to South African vessels on the
high seas -
vessels exploring for off-shore diamonds off the coast of Namibia -
whether such supply qualifies as ‘export’ and
hence not dutiable
- delivery of fuel over the South African continental shelf, as
defined in the
Maritime Zones Act 15 of 1994
- whether for purposes
of s 5(b) of the Customs and Excise Act that is ‘deemed to be part
of the Republic’ - whether consumption
of fuel over the Namibian
continental shelf qualifies as ‘home consumption’ for purposes of
s 20(4) of the Customs and Excise
Act, inasmuch as Namibia forms part
of the ‘common customs area’ with South Africa.
JUDGMENT
NIENABER JA
/
NIENABER JA
:
[1] What does the word ‘export’ mean in the context of s
20(4)(d) of the Customs and Excise Act 92 of 1964 (‘the
Customs
Act’)? Does it simply mean ‘take out of the Republic of South
Africa’ (as the appellant ((‘DBM’)) contends)
or does it
rather mean ‘take out of the Republic of South Africa for import
into another country’ (as the respondent ((‘the
Commissioner’))
contends? Delivery from a warehouse, as defined, and entered for
the purpose of ‘export’, does
not
attract excise duties
and fuel levies in terms of the charging provisions of the Customs
Act. But if the latter of the two interpretations
is the correct
one there was in fact no export, and hence such duties and
levies
were
duly payable, when bunker fuel, although
entered for export, was supplied on the high seas by a tanker ex
Cape Town to a number
of specially equipped marine vessels as
stores. These vessels belonged to DBM and were engaged in the
exploration for, and the
recovery of, diamonds from the seabed off
the coast of Namibia. That, whether a supply of this sort was a
form of ‘export’,
was the principal dispute between the parties
before the High Court of the Cape Provincial Division. The Court
a
quo
(Duminy AJ)
decided the matter in favour of the
Commissioner. Hence this appeal, brought with its leave.
[2] The factual setting to the problem is unusual and its statutory
setting complex. The facts, somewhat simplified, are these:
2.1 DBM
is a company duly registered in South Africa with its principal
place of business in Cape Town. That business consists
of
providing contracting and consulting services in the exploration,
evaluation, mining and management of underwater diamond deposits.

For that purpose DBM owns five vessels, described as mining vessels,
carrying vertical drilling equipment for the recovery of
diamond-bearing gravels from the seabed. One of the vessels uses a
seabed crawler for horizontal mining. An airlift suction conveys
diamond-bearing gravels from the crawler to the vessel. A sixth
vessel, a geosurvey vessel, is engaged primarily in the collection
of technical information by means of side scan sonar, seismics,
coring grab sampling and visual survey. The data collected by
this
vehicle is used to produce geological maps of the seabed. All six
vessels are conventional ships in the sense that they have
hulls,
are self-propelled, and are designed for navigation. They move
under their own power, to and from and within the areas
where they
operate.
2.2 The mining operations of these vessels are conducted in what are
termed ‘blocks’ and ‘sub-blocks’. Marine concession
areas
are divided in a grid pattern of blocks. Each block is divided into
sub-blocks in extent 50m x 50m. A mining vessel will
complete
drilling operations in a sub-block before moving to the next
sub-block. The vessel drops four anchors, two ahead and
two astern.
Drilling is done whilst the vessel is so positioned. In each
sub-block a number of holes are drilled in overlapping
patterns so
as to ensure that the entire sub-block is covered. The vessel is
moved within the sub-block into new positions by
using its anchor
chains and/or its own engines which are always kept running.
Drilling of each hole in the normal course of events
takes
approximately 15 minutes whereafter the vessel is repositioned.
2.3 The vessels sometimes spend more than two years at sea before
returning to Cape Town, their port of registration, for major
refits. The refuelling of the vessels also takes place at sea.
2.4 The
bunker fuel on which the excise duties and fuel levies were raised
by the Commissioner in this case were delivered to DBM’s
vessels
by a tanker, the Argun, belonging to another party. The relevant
deliveries, termed ‘bunker drops’, took place during
three
voyages in 1997. In each case the Argun sailed from Cape Town after
obtaining the fuel from Caltex Oil (SA) (Pty) Ltd (‘Caltex’).
2.5 Prior to the delivery of the fuel by Caltex it was stored by
Caltex at a site licensed by the Commissioner in terms of s 19
of
the Customs Act as a ‘customs warehouse’.
2.6 In
the case of each of the relevant three voyages a Form DA25 was
completed and submitted to the Controller (being the officer
designated by the Commissioner to act on his behalf) in respect of
the fuel removed from Caltex’s warehouse. The bunkers were
in
each case entered ‘for export’ and the ‘country of final
destination’ was variously reflected as being the Congo or
Gabon.
2.7 The
bunker drops took place at sea. The location where such delivery
took place, referred to in the papers as the ‘rendezvous
point’,
was deliberately chosen at a distance of approximately 50 nautical
miles from the South African coast and at a depth
of approximately
180 metres. The reason for this arrangement is explained in DBM’s
founding affidavit as follows:
‘
35.1 De Beers Marine has
always had a good relationship with the South African Department of
Transport. During 1993 De Beers Marine
had extensive discussions
with the Department regarding the re-fuelling of its vessels at sea.
It was felt that if a pollution
problem should arise during any
bunker drop, it would be preferable for De Beers Marine to deal with
the South African authorities,
rather than the Namibian authorities.
35.2 Accordingly, in 1993 De Beers Marine chose the position 29º
28 min south and 15º 49 min east as a rendezvous point
for
bunkering at sea. The said co-ordinates were chosen because they
were 50 miles offshore and thus outside the oil pollution
zone and
just south of the boundary line. This position was also a point
relatively close to where most of the De Beers Marine
vessels were
working.’
(Elsewhere in the founding affidavit the ‘boundary line’ is
described as the boundary between the northern-most South African
marine concessions and the southern-most Namibian marine
concessions.)
2.9 Although
the rendezvous point was south of the boundary line the vessels,
other than the survey vessel, were not at the time
operating south
of the boundary line but in the Namibian concession areas. They
crossed the boundary line specifically in order
to receive the
bunkers. After the bunker drops were complete (and these lasted
from 16 to 56 hours) the vessels once again returned
to the Namibian
concession areas.
[3] The section of the Customs Act crucial for present purposes is s
20(4). It reads as follows:
‘
(4)
No goods which have been stored or manufactured in a customs and
excise warehouse shall be taken or delivered from such warehouse
except in accordance with the rules and upon due entry for one or
other of the following purposes -
(a) home consumption and
payment of any duty due thereon;
(b) rewarehousing in
another customs and excise warehouse or removal in bond as provided
in section 18;
(c) …
(d) export from customs and
excise warehouse (including supply as stores for foreign-going ships
or aircraft).’
[4] As
mentioned earlier delivery from a warehouse for the purpose of
export does not attract excise duties and fuel levies; but
if the
disclosed purpose is ‘home consumption’ it does (ss 37(1) and
45(1) of the Customs Act). ‘Export’ is not defined
in the
Customs Act but ‘home consumption’ is. Section 1 of the Customs
Act defines ‘home consumption’ as ‘consumption
or use in the
Republic’. Counsel on both sides were agreed first, that ‘export’
must at the very least include the removal
of the excisable goods
from South Africa and secondly, that the two concepts (export and
home consumption) are antithetical. If
the declared and entered
purpose was ‘export’ it excluded an intended home consumption
and
vice versa
. Leaving aside s 20(4)(b) (which is neutral
on the point) or supplies destined for a foreign-going vessel (which
is a special
case), that must clearly be so, as appears from the
introductory words ‘for one or other of the following purposes’.
The stress
is on the purpose for which goods manufactured in a
customs and excise warehouse (such as refined bunker fuel) are taken
or delivered.
Of course, what actually happens may not always
correspond to what was declared to happen: goods may be entered for
export and
yet be consumed in the Republic - in which case, apart
from any other consequences, duty remains payable in terms of s 18A
(quoted
in para [21] below); so too, goods entered for home
consumption may in fact be consumed outside the borders of the
country - as,
for instance, where a non-foreign-going vessel,
consuming fuel entered for ‘home consumption’, fishes in foreign
waters before
returning to its South African port of registration.
In such a case the prescribed duties and levies are nonetheless
payable.
This consequence is seemingly in conflict with the
definition of ‘home consumption’ quoted earlier but in truth
there is no
anomaly for the initial emphasis in s 20(4) falls on the
purpose
of removal from the customs and excise warehouse and
not on the
actual
use or consumption of the goods so removed.
[5] According to counsel for DBM ‘export’ in the context of s
20(4)(d) simply means: ‘to take out of South Africa’. Counsel
for the Commissioner on the other hand contended that there were
additional elements to the notion of ‘export’
viz,
‘to
take out of South Africa for import into a foreign country for
commercial purposes’. Both counsel sought support for their
contentions from a selection of dictionary definitions of the word
‘export’. So, for example, counsel for DBM referred to
the
definition by
Longmans Dictionary of English
: ‘1) to
carry away; remove; 2) to carry or send (e g a commodity) abroad
for purposes of trade’; whereas counsel for
the Commissioner
referred to other definitions such as that of
The New Shorter
OED
, defining export as ‘send (especially goods) to another
country’. ‘Export’ can be an elusive concept capable of
several
shades of meaning. I have consulted most of the
dictionaries in the library of the Supreme Court of Appeal and I do
not propose
to list the various and varying definitions to be found
therein. There can be little doubt that while ‘export’ in a
general
sense may mean ‘to carry away’ or ‘remove’, in a
narrower commercial sense it bears one of the meanings attributed to
it
in
Black’s Law Dictionary
(7
th
ed): ‘to
transport (merchandise) from one country to another in the course of
trade’. That connotation is supportive of the
Commissioner’s
case since it is likely that the Legislature had its ordinary
commercial meaning in mind when using the word in
a commercial
context, and the supply in this case was not to another country.
Even so, and like the Court
a quo,
I am hesitant to regard a
meaning extracted from a miscellany of dictionary definitions as
conclusive of the entire issue (cf
Fundstrust (Pty)Ltd (in
liquidation) v Van Deventer
1997 (1) SA 710
(A)). The better
approach, so it seems to me, is to bear that meaning in mind when
examining the provisions of the Act itself
in order to determine
whether there is anything in the context in which the word is used
that adds to or detracts from its ordinary
commercial meaning
.
[6] The same approach applies to case law. Counsel for DBM sought
to gain some support for their contention from two old English
cases
viz Muller v Baldwin
(1873) 9 QB 457
and
Fox v Kooman
(1919) LTR 575
(KB). In the first case ‘export’ was defined
in the relevant Act as ‘carried out of port’; as such it had a
technical
meaning. The second case simply followed the first and
moreover stressed the fact that the goods in question (chamois
leather)
were due to be taken abroad. Not much guidance, I think,
can be gleaned from either of these decisions. The recent decision
of
this Court in
Engen Petroleum Ltd and Others v Commissioner of
Customs and Excise and Another
1999 (3) SA 690
(SCA) dealt with
rebates and is thus only peripherally in point.
[7] ‘Export’ in s 20(4) of the Customs Act must in my opinion
take its colour, like a chameleon, from its setting and surrounds
in
the Act. It is used in s 20(4) in contradistinction to ‘home
consumption’ (cf the
Engen
case,
supra,
paras 7 and
12). Between them the two antipodes cover (save for s 20(4)(b)) all
possible permutations of purpose. The purpose
of the removal of
manufactured goods from a warehouse can only be to use or consume
it. Such use and consumption may take place
either locally or
abroad. What is intended to be used or consumed locally is (in
respect of excise duty and fuel levy) taxed
locally; conversely,
what is intended to be exported is not to be taxed locally. Export
from South Africa implies, according
to counsel for the
Commissioner, an import elsewhere where such goods will likely be
subjected to import charges. I agree. To
require the local
exporter to pay excise duty and a fuel levy on goods not destined to
be used or consumed in this country but
abroad would place an undue
burden on him and may well discourage export. Conversely, if DBM is
right in its interpretation of
‘export’, it would mean that no
excise duties and fuel levies are payable at all in respect of the
supplies of the bunker fuel
to DBM’s vessels on the high seas, to
the benefit of DBM and to the ultimate detriment of the general
body of taxpayers.
[8] The true antithesis of ‘home consumption’ is ‘foreign
consumption’. Foreign consumption (and hence ‘export’) has
two sequential elements: (a) physical removal from South Africa;
and (b) use or consumption
not
in South Africa. Foreign use
or consumption postulates a foreign destination for further delivery
of the goods taken from the
warehouse in South Africa. The foreign
destination will as a matter of probability mostly be a foreign
country but there is nothing
in the actual wording of the Customs
Act that ordains the introduction of such a further refinement to
bring it in line with the
ordinary commercial meaning of ‘export’
referred to in para [5]; and counsel for the Commissioner conceded
in argument that
‘a foreign-going ship’ to which bunker fuel is
supplied on the high seas, for use or consumption outside South
Africa, either
as cargo or as stores, cannot be ruled out as a
foreign destination. DBM’s vessels, it is common cause, were not
foreign-going
ships so that the somewhat unusual facts of this case
pertinently highlight the issue whether the delivery of bunker fuel
to a
non-foreign-going ship beyond the territorial waters of South
Africa qualifies as ‘export’ for purposes of s 20(4) of the
Customs
Act.
[9] Counsel for the Commissioner launched a subsidiary argument
based on the words in parenthesis in s 20(4)(d). Inasmuch as the
supply of stores to a foreign-going ship in South Africa is regarded
by the Legislature as ‘export’ it would follow, so it
was
contended, that the supply of stores to a non-foreign-going ship
operating outside South Africa must likewise be a form of
‘export’.
I cannot agree. In my opinion this form of flip-side reasoning
leads, as counsel for DBM rightly submitted, to
a
non sequitur.
[10] I return to the issue raised in para [8] above
viz,
whether
the supply of bunker fuel beyond South African waters to a
non-foreign-going ship qualifies as export for purposes of s
20(4)
of the Customs Act. In my view the question answers itself. While
supply to a foreign-going vessel may conceivably still
be regarded
as delivery to a foreign destination, the same can hardly be said of
supplies on the high seas to a vessel belonging
to a South African
company and operating out of a South African port. Such delivery
is not delivery to a foreign destination.
It is not for present
purposes necessary to characterize what precisely a foreign
destination is. It is sufficient that the
vessels to which the
deliveries were made were neither foreign nor foreign-going. The
second of the two conceptual elements referred
to in para [8] above
have therefore not been satisfied. The question whether the goods
were ‘exported’ must accordingly be
answered in the negative and
in the Commissioner’s favour.
[11] That
conclusion in effect disposes of the appeal. But since a large part
of the argument in this Court was devoted to two
further issues I
propose to mention and discuss them.
[12] The
first of these issues relates to the first of the two elements
mentioned in para [8] above,
viz
whether the bunker fuel was
physically removed from South Africa. If the rendezvous point
where re-delivery of the bunker fuel
took place is by statutory
extension to be regarded as ‘part of the Republic of South Africa’
then the first element mentioned
above would not have been satisfied
and the fuel would not have been ‘exported’. To that issue I
now turn.
[13] The question is whether the bunker drops took place within the
Republic (as the Commissioner contends) or not (as DBM contends).

The debate turns on the meaning of s 5 of the Customs Act. It reads
as follows:
‘
5. Application
of Act. - Notwithstanding anything to the contrary in any other law
contained, for the purposes of this Act -
(a) …
(b) the continental shelf as referred to in section 8 of the
Maritime Zones Act, 1994 (Act No. 15 of 1994),
shall be deemed to be part of the Republic.
(c) Any installation or device of any kind whatever, including any
floating or submersible drilling or production platform, constructed
or operating upon, beneath or above the said continental shelf for
the purpose of exploring it or exploiting its natural resources
shall be deemed to be constructed or operating within the Republic.
(d) Any goods mined or produced in the operation of such
installation or device and conveyed therefrom to the shore whether
by
pipeline or otherwise and any person or other goods conveyed by
any means to and from such installation or device shall be deemed
to
be so conveyed within the Republic.’
According to the Commissioner s 5(b) is conclusive of the issue:
re-delivery, it is common cause, took place at the rendezvous
point
immediately above the continental shelf of South Africa and the
continental shelf is, for purposes of the Customs Act, deemed
to be
part of the Republic. According to DBM this is an
oversimplification of the problem: s 5(b) takes one to s 8 of the
Maritime
Zones Act 15 of 1994 (‘the MZA’) and s 8 of MZA takes
one to article 76 of the United Nations Convention on the Law of the

Sea (‘LOSC’), and all these provisions must be taken into
account, according to DBM, to determine what s 5(b) means when it
refers to the continental shelf.
[14] The
MZA legislates for an ever-widening but correspondingly
ever-weakening sphere of South African influence. Section 4 defines
the South African territorial waters, being 12 nautical miles from
the baseline (which corresponds broadly to the low-water line
of
the coast) to which all law in force in South Africa applies.
Section 5 refers to the contiguous zone, 24 kms from the baseline,
within which the Republic shall have the right to exercise certain
preventative powers including, incidentally, the prevention
of
customs contraventions. Section 6 provides for a maritime cultural
zone, between 12 and 24 nautical miles from the baseline,
for the
protection of objects of an archaeological or historical nature.
Section 7 provides for an ‘exclusive economic zone’,
200
nautical miles from baseline, for the protection of ‘all natural
resources’, which would include the regulation of commercial
fishing within that zone. Finally, s 8 of the MZA provides as
follows:
‘8. Continental shelf. - (1) The continental shelf as defined in
Article 76 of the United Nations Convention on the Law of the
Sea,
1982, adopted at Montego Bay on 10 December 1982, shall be the
continental shelf of the Republic.
(2) …
(3) For the purposes of -
(a) exploration and exploitation of natural resources, as defined in
paragraph 4 of Article 77 of the United Nations Convention
on the
Law of the Sea, 1982; and
(b) any law relating to mining of precious stones, metals or
minerals, including natural oil,
the continental shelf shall be deemed to be unalienated State
land.’
[15] Section
8 of the MZA incorporates art 76 of LOSC. Article 76 provides as
follows:
‘1. The continental shelf of a coastal State comprises the seabed
and subsoil of the submarine areas that extend beyond its

territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a

distance of 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured where the outer edge
of
the continental margin does not extend up to that distance.’
Article
76, according to DBM’s argument, defines not only what but also
where the continental shelf is; and since it refers specifically
only to the seabed and its subsoil it does not extend to the sea
above it and accordingly has no application to vessels floating
on
the surface. This, so it was contended, is placed beyond doubt by
art 78(1) and (2) of LOSC which read as follows:
‘
1. The rights of the coastal
State over the continental shelf do not affect the legal status of
the superjacent waters or of the
air space above those waters.
2. The exercise of the rights
of the coastal State over the continental shelf must not infringe or
result in any unjustifiable interference
with navigation and other
rights and freedoms of other States as provided for in this
Convention.’
[16] Article 78, assuming it to have been incorporated into South
African municipal law, is concerned with the legal status of
the
superjacent waters. Section 5(b) of the Customs Act does not
purport to interfere with the legal status of the waters above
the
continental shelf. The article accordingly has no direct bearing on
the present enquiry. What s 5(b) seeks to do is to extend
the area
of operation of appropriate provisions of the Customs Act to the
continental shelf which, for that strictly limited purpose,
is
deemed to be part of South Africa.
[17] To
seek to separate the sea surface from the seabed when applying the
provisions of the Customs Act to the continental shelf
does appear
to be somewhat artificial. The continental shelf is, after all,
described not only in relation to the seabed but also
in terms of
location and area. It is within that zone that the bunker drops
took place. Since the place of delivery has relevance
for purposes
of s 20(4) of the Customs Act the deeming provision, so it could be
said, is of application; and if the continental
shelf is
pro hac
vice
deemed to be part of the Republic, the further delivery of
bunker fuel that took place above it was delivery within the
Republic.
On that approach the first of the two elements mentioned
in para [8] above would also not have been satisfied; the bunker
fuel
would not have been ‘exported’; and its subsequent
consumption would accordingly have qualified as ‘home
consumption’,
even if it took place physically in Namibian waters.
As such, the relevant entries should have been for ‘home
consumption’
and not for ‘export’. That in essence was the
finding of the Court
a quo.
[18] On
the other hand, it is plain that the provisions of the MZA relating
to the continental shelf are primarily concerned with
giving South
Africa exclusive rights in the exploration and exploitation, in
their various forms, of the resources of the seabed
and its subsoils
on the continental shelf itself (cf Dugard,
International Law
,
A South African Perspective,
2ed 298-304). Activities
related to such exploration and exploitation (in contrast to the
normal activities and traffic on
the high seas) would have direct
relevance to the Customs Act, as is pertinently demonstrated by ss
5(c) and (d) of the Customs
Act. It is for that purpose, rather
than for the purpose of s 20(4), that the continental shelf, so it
seems to me, is deemed
to be part of the Republic; and if
that is so, it follows that the slant that the Commissioner
now seeks to place
on s 5(b) goes beyond what the Legislature
likely intended. Although it is, for the reasons stated in para
[10] above, not
necessary to express a firm view on the issue
so formulated, I am disposed to agree with the arguments advanced by
DBM in
this regard. The conclusion suggested on its behalf is a
more palatable one since it was purely coincidental, viewed from an
excise
perspective, that delivery of the fuel took place over the
South African continental shelf.
[19] In passing it may be mentioned that s 5(c) is not helpful in
the solution of the present problem. Even accepting (as the
Court
a
quo
for good reasons did) that the six vessels were ‘devices’
for purposes of subsection 5(c) and that the five mining vessels

would also fall within the general meaning of ‘installations’ it
does not help the Commissioner. The reason is that none of
these
vessels was ‘operating’ above the South African continental
shelf when the bunker drops took place.
[20] Finally, there is the further submission on which the
Commissioner relied and which also found favour with the Court
a
quo
. That submission is based on s 18(A) of the Customs Act.
It must be read with the definition of ‘common customs area’ in

s 1 thereof
viz
, ‘the combined area of the Republic and
territories with the government of which customs union agreements
have been concluded
under s 51’.
[21] Section 18A(1) and (2) of the Customs Act provide as follows:
‘
(1)
Notwithstanding any liability for duty incurred thereby by any
person in terms of any other provision of this Act, any person
who
exports any goods from a customs and excise warehouse to any place
outside the common customs area shall, subject to the provisions
of
subsection (2), be liable for the duty on all goods which he so
exports.
(2) Subject
to the provisions of subsection (3), any liability for duty in terms
of subsection (1) shall cease when it is proved
by the exporter that
the said goods have been duly taken out of the common customs area.’
Section
18A(1) and (2) in substance provide that if excisable and leviable
goods are exported it is for the exporter to satisfy
the
Commissioner that delivery outside the borders of the Republic had
in fact taken place. The clear implication is that if the
excised
goods are not proven to have been ‘taken out’ of the common
customs area, excise duties and fuel levies remain payable
in South
Africa. It is common cause in this case (a) that Namibia is part of
the common customs area; (b) that Namibia has a Customs
Act in terms
similar to that of South Africa, including a provision corresponding
to s 5(d) thereof; and (c) that the fuel delivered
to DBM’s
vessels was largely consumed by them above the continental shelf of
Namibia. On the basis of those facts the Commissioner
contended
that excise duties and fuel levies were duly payable in South
Africa: since the Namibian continental shelf, where the
consumption
took place, was deemed to form part of Namibia via its own
equivalent section to our s 5(b) and since the common customs
agreement made Namibia part of the ‘combined area of the
Republic’, such consumption qualified, so the argument went, as
‘consumption
for use in the Republic’ for purposes of the
definition of ‘home consumption’. DBM’s counter-argument was
that the Namibian
continental shelf was not by this process of
incorporation made part of the Republic; that the common customs
area did not extend
to the continental shelf but merely to the
Namibian land plus, at most, its territorial waters; that the South
African Customs
Act did not purport to subsume the Namibian Customs
Act; and consequently that it was not capable of being extrapolated
in the
manner contended for by the Commissioner. Although it is
not necessary, in the light of my earlier conclusion, to resolve
this
particular aspect of the wider dispute between the parties, I
find myself once again in general agreement with the submissions

made on behalf of DBM.
[22] Having
regard to the conclusion reached in para [10] above, the following
order is made:
The appeal is dismissed with costs, including the costs of two
counsel.
…………………
P M NIENABER
JUDGE OF APPEAL
Concur
:
Zulman JA
Lewis AJA