Benning v Union Government (Minister of Finance)

JurisdictionSouth Africa
JudgeLord De Villiers CJ, CG Maasdorp AJA, J De Villiers AJA and AFS Maasdorp Acting AJA
Judgment Date13 March 1914
Citation1914 AD 180
Hearing Date05 March 1914
CourtAppellate Division

Innes, J.A.:

The ultimate question at issue in this litigation is whether the plaintiff is entitled to a refund of the sum of five pounds by way of duty upon a floor-surfacing machine which he contends should have been admitted free under the industrial class, instead of being charged 12 per cent. ad valorem under the domestic class of machinery. The summons alleged that the payment had been made, that the article was in law exempt from duty, and that the plaintiff was entitled to a refund, which the defendant refused to make. No specific legal ground was advanced for demanding back the money thus paid. To this summons two pleas were filed; first, that the action could not be maintained because the plaintiff had failed to give the notice required by section 68 of the Cape Act, No. 10, 1872; and second, that the machine was not exempt under the tariff, that the Commissioner of Customs, whose decision was final, had decided the matter, that the payment was made in full knowledge of the facts, and that there could be no claim in law for a refund of duty thus voluntarily paid. The plaintiff excepted to the first plea, and by way of replication, alleged that the payment was made involuntarily and under protest, or, alternatively, that it was made in error. Upon these pleadings the case went to trial before the magistrate of Cape Town, who upheld the plaintiff's exception and expunged the first plea. Evidence was then led on the merits, and the Court granted absolution from the instance, holding that there had been a difference of opinion between the agents of the importer and the Customs officials, which bad been by common consent submitted to the Commissioner for decision, the agents in the meantime clearing the machine and paving the duty as assessed. Against this decision the plaintiff appealed, while the defendant cross-appealed in respect of the order expunging his exception. In this state...

To continue reading

Request your trial
63 practice notes
  • Staatspresident en Andere v United Democratic Front en 'n Ander
    • South Africa
    • Appellate Division
    • 13 September 1988
    ...Suidwes-Afrika, en Andere 1983 (1) SA 411 (A); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Benning v Union Government 1914 AD 180 op 185; S v Ramgobin and Others 1985 (3) SA 587 (N) op 590A - E; United Democratic Front and Another v State President of the Republic of So......
  • Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill
    • South Africa
    • Invalid date
    ...be strictly construed and not extended beyond the cases to which they expressly apply.' Benning v Union Government (Minister of Finance) 1914 AD 180 at 185. It is well established that when a question of law is raised as to whether or not the jurisdiction of the Court has been ousted by a p......
  • Staatspresident en Andere v United Democratic Front en 'n Ander
    • South Africa
    • Invalid date
    ...Suidwes-Afrika, en Andere 1983 (1) SA 411 (A); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Benning v Union Government 1914 AD 180 op 185; S v Ramgobin and Others 1985 (3) SA 587 (N) op 590A - E; United Democratic Front and Another v State President of the Republic of So......
  • Administrator, Transvaal, and Others v Traub and Others
    • South Africa
    • Invalid date
    ...is so fundamental an invasion of a basic right that it must be restrictively construed. Benning v Union Government (Minister of Finance) 1914 AD 180; Bazdease v The Minister of Justice 1962 (3) SA 215 (T); Avex Air (Pty) Ltd v Borough of Vryheid 1973 (1) SA 617 (A). For this reason limitati......
  • Request a trial to view additional results
62 cases
  • Staatspresident en Andere v United Democratic Front en 'n Ander
    • South Africa
    • Appellate Division
    • 13 September 1988
    ...Suidwes-Afrika, en Andere 1983 (1) SA 411 (A); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Benning v Union Government 1914 AD 180 op 185; S v Ramgobin and Others 1985 (3) SA 587 (N) op 590A - E; United Democratic Front and Another v State President of the Republic of So......
  • Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill
    • South Africa
    • Invalid date
    ...be strictly construed and not extended beyond the cases to which they expressly apply.' Benning v Union Government (Minister of Finance) 1914 AD 180 at 185. It is well established that when a question of law is raised as to whether or not the jurisdiction of the Court has been ousted by a p......
  • Staatspresident en Andere v United Democratic Front en 'n Ander
    • South Africa
    • Invalid date
    ...Suidwes-Afrika, en Andere 1983 (1) SA 411 (A); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Benning v Union Government 1914 AD 180 op 185; S v Ramgobin and Others 1985 (3) SA 587 (N) op 590A - E; United Democratic Front and Another v State President of the Republic of So......
  • Administrator, Transvaal, and Others v Traub and Others
    • South Africa
    • Invalid date
    ...is so fundamental an invasion of a basic right that it must be restrictively construed. Benning v Union Government (Minister of Finance) 1914 AD 180; Bazdease v The Minister of Justice 1962 (3) SA 215 (T); Avex Air (Pty) Ltd v Borough of Vryheid 1973 (1) SA 617 (A). For this reason limitati......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT