Metmak (Pty) Ltd v Commissioner of Customs and Excise

• Jurisdiction: South Africa
• Citation: 1984 (3) SA 892 (T)

Metmak (Pty) Ltd v Commissioner of Customs and Excise
1984 (3) SA 892 (T)

1984 (3) SA p892

Citation	1984 (3) SA 892 (T)
Court	Transvaal Provincial Division
Judge	Esselen J, Philips AJ and Zulman AJ
Heard	May 9, 1984
Judgment	May 17, 1984

Flynote : Sleutelwoorde B

Appeal — Against determination by Commissioner of Customs and Excise in terms of s 47 (9) (a) (i) of the Customs and Excise Act 91 of 1964 as amended — Single Judge sitting in Chamber Court competent to hear such appeal. C

Headnote : Kopnota

A single Judge sitting in Chamber Court has jurisdiction to hear an appeal against a determination by the Commissioner of Customs and Excise made in terms of s 47 (9) (a) (i) of the Customs and Excise Act 91 of 1964 as amended.

Case Information

Application for a declaratory order referred to the Full Bench D for a decision on a preliminary point. The nature of the pleadings appears from the reasons for judgment.

C Plewman SC (with him B Doctor) for the applicant.

E M du Toit SC (with him D Marais) for the respondent.

Cur adv vult. E

Postea (May 17).

Judgment

Esselen J:

This matter was referred to this Court by GORDON J on the basis that it had been submitted by respondent in limine F in the Motion Court of the Witwatersrand Local Division that the matter constitutes an appeal which should be heard by a Full Court and that it would be advisable that this preliminary point be decided by a Full Court of the Transvaal Provincial Division.

GORDON J ordered that the merits of the application are to be G dealt with in accordance with the directions of this Court, and that the question of costs is reserved for decision of this Court.

On 18 December 1982 respondent, acting in terms of s 47 (9) (a) (i) of the Customs and Excise Act 91 of 1964 as amended by s 6 (1) of Act 110 of 1979, made a determination that certain H electrical equipment, known as cable ties and supporting bases, are properly classifiable under Chap 39 of Schedule 1 of the aforesaid Act.

The applicant on the other hand contends that the equipment in question is properly classifiable under Chap 85 of Schedule 1 of the aforesaid Act.

On 9 May 1983 the applicant sought a declaratory order in I accordance with its aforesaid contention and a further order setting aside the determination of the respondent.

Annexed to the notice of motion and founding affidavit is an affidavit by an expert in the field of electrical and electronic engineering. The Court is informed that this application, save for the prayer setting the respondent's determination aside, is identical with the initial

1984 (3) SA p893

Esselen J

application for a declaratory order which was launched on 30 A March 1983, but which was withdrawn by consent. The present application constitutes the appeal against the respondent's determination. The respondent consented, on 21 December 1982, to an extension of time within which the appeal was to be brought.

The respondent has filed an answering affidavit and affidavits by two experts. The applicant has filed a replying affidavit, B and the respondent has given notice that it will apply at the hearing for leave to file supplementary affidavits. It is unnecessary to consider whether there is a dispute of fact created by the expert evidence.

Section 47 (9) (b) of the aforesaid Act provides that:

"any determination so made shall subject to appeal to the Court C be deemed to be correct for the purposes of this Act..."

In terms of s 47 (9) (e) of the said Act:

"an appeal against such determination shall lie to the Division of the Supreme Court of South Africa having jurisdiction to hear appeals in the area wherein the determination was made or the goods in question were entered for home consumption".

In terms of s 47 (9) (f) of the said Act:

D "such appeal shall be prosecuted within a period of 90 days from the date of the determination".

It may be mentioned that in the case of International Business Machines SA (Pty) Ltd v The Commissioner for Customs and Excise - which came before VAN DYK J on 24 April 1983 in the Motion Court of this Division, he came to the conclusion after hearing E argument that the matter, being an appeal, should have been enrolled in the usual manner for hearing by a Full Court. He stated that such a Court consisted of at least two or more Judges but in this regard he was referring to the Supreme Court Act 59 of 1959, prior to the amendment thereof by Act 105 of F 1982. Thereafter this matter was heard by two Judges of this Division and judgment was delivered on 25 November 1983. During the course of his judgment GOLDSTONE J mentioned that he is not convinced that a single Judge is not competent to hear an appeal under s 47 (9) (e) of the Act. Both parties were however agreed that the matter should proceed before two Judges.

G It appears that an appeal under the aforesaid section was heard by a Full Court of two Judges in the Eastern Cape Division and, according to annexure "B1" to the respondent's written submissions, a notice of appeal was filed in that matter. Although the judgment in that Division is unreported...