Commissioner, South African Revenue Service, and Another v TFN Diamond Cutting Works (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Zulman JA, Streicher JA, Lewis JA, Heher JA and Ponnan JA
• Judgment Date: 31 March 2005
• Citation: 2005 (5) SA 113 (SCA)
• Docket Number: 070/2004
• Hearing Date: 22 March 2005
• Counsel: T J Kruger SC (with him M Mphaga) for the appellants. A O Cook SC for the respondent.
• Court: Supreme Court of Appeal

Ponnan JA: F

[1] In an action on certain separated issues before Swart J in the High Court (Pretoria), the appellants were held jointly and severally liable to the respondent 'for the loss of its diamonds in such damages as may be agreed or proved'; and were ordered to pay the costs of that portion of the proceedings. The first appellant, the Commissioner of the South African Revenue Service (the first defendant in the Court below), was cited in his capacity as the G official of State charged with the administration of the Customs and Excise Act 91 of 1964 (the Act). The second appellant, the Minister of Finance (the second defendant in the Court below), was cited as the Minister of State under whose control the Commissioner administers the Act. They appeal with leave of the trial Court. For convenience I will H refer to the appellants and the respondent as 'the defendant' and 'the plaintiff', respectively.

[2] TFN Diamond Cutting Works (Pty) Ltd (the plaintiff in the Court below), as the name suggests, purchases rough diamonds from a variety of sources in South Africa, which it then cuts and polishes for resale. On 20 October 2000 Mr W S Glowiczower, a diamond dealer of I long standing and a director of the plaintiff, travelled to New York with a consignment of diamonds. The diamonds had been duly inspected and sealed by the South African Diamond Board in accordance with the prescribed practice of the South African customs authorities. J

Ponnan JA

[3] The requisite documentation for the export (and in due course possible re-importation) of the diamonds had been lodged with A the designated employees of the defendant. Some of the diamonds were sold in New York. The remainder accompanied Glowiczower on his return to South Africa. Upon his arrival at the Johannesburg International Airport on 8 November 2000, Glowiczower declared the diamonds to employees of the defendant. He was met at the red zone B in the customs hall by Sean Sadler, an employee of Brinks SA (Pty) Ltd, a clearing agency. As a result of some miscommunication the original invoice for the diamonds could not be produced. A faxed copy did not satisfy the customs officials on duty and the diamonds were detained. The consignment was placed into a plastic pouch supplied by Sadler and sealed. Sadler then accompanied Daniel Khomolo and Cuthbert Lebang, C both employees of the defendant, to a strongroom at the customs hall where the...