Minister of the Interior, Transkei, and Another v City News Agency (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Goldin JA, Dumbutshena JA and Davies AJA
• Judgment Date: 05 March 1992
• Hearing Date: 27 February 1992
• Court: Transkei Appellate Division

Minister of the Interior, Transkei, and Another v City News Agency (Pty) Ltd
1992 (2) SA 407 (TkA)

1992 (2) SA p407

Citation	1992 (2) SA 407 (TkA)
Court	Transkei Appellate Division
Judge	Goldin JA, Dumbutshena JA and Davies AJA
Heard	February 27, 1992
Judgment	March 5, 1992

Flynote : Sleutelwoorde

I Publications and entertainments — Publications — Seizure of — Director-General of Publications Committee requesting Controller of Customs and Excise to seize all musical tapes etc and to forward them to Publications Committee — Customs officials instructed to do so in terms of s 88(1)(a) of Customs and Excise Act 91 of 1964 (RSA) — Customs J officials in so acting did not and could not do so

1992 (2) SA p408

A in terms of Publications Act 18 of 1977 (Tk) — Director-General having no power to appoint an agent to act on his behalf in terms of s 88 of Act 91 of 1964 — Controller of Customs aware that he could not act as agent of Director-General and hence instructing customs officials to act B in terms of s 88 of Act 91 of 1964 — Respondent accordingly not discharging onus of showing that Controller was agent of Ministry of Interior and contract of agency not proved — Controller and Minister of Finance not cited or joined in respondent's application for interdict restraining appellants from seizing musical tapes which it imported — Appeal against grant of interdict allowed.

Headnote : Kopnota

C The respondent had obtained an order in the Transkei General Division interdicting the appellants (the Minister and the Director-General of the Department of the Interior) from seizing musical cassette tapes which it imported into the Transkei. It appeared that the Director-General of the Publications Committee of the Department of the Interior (the Director-General) had requested the Controller of Customs and Excise (the Controller) to seize, inter alia, such cassette tapes D and forward them to the Publications Committee. The Controller had instructed customs official to seize the cassette tapes in terms of s 88(1)(a) of the Customs and Excise Act 91 of 1964 (RSA). The Court a quo had found that the customs officials were merely agents of the appellant and, as the appellants had no reasonable belief that the cassettes were undesirable as intended in the Publications Act 18 of 1977 (Tk), granted the application for an interdict. In an appeal,

E Held, that it was clear (from the Controller's instructions) that the customs officials were to act in terms of s 88 of the Customs and Excise Act 1964: they did not and could not act in terms of the Publications Act 1977.

Held, further, that the Controller had not purported to act as an agent of the appellants.

Held, further, that the Director-General could not appoint an agent to act in terms of s 88 of the Customs and Excise Act 1964 because he himself had no power to act in terms of that Act; and the Controller F appears to have been aware that he could not act as the agent of the Director-General, hence his insistence on having acted in terms of s 88 of the Customs and Excise Act 1964.

Held, further, that the onus being on the respondent to prove that the Controller was an agent of the Ministry of the Interior, a contract of agency had not been proved, nor could it be inferred from the surrounding facts.

Held, further, that the respondent's omission to cite or apply for the joinder of the Controller and the Minister of Finance was fatal. Appeal allowed. G

The decision in the Transkei General Division in City News Agency (Pty) Ltd v Minister of the Interior, Transkei, and Another 1991 (3) SA 391 (Tk) reversed.

Case Information

Appeal from a decision in the Transkei General Division (White J), reported at 1991 (3) SA 391 (Tk). The facts appear from the judgment of H Dumbutshena JA.

G H Penzhorn SC (with him P A C Rowan) for the appellants.

A J Troskie for the respondent.

Cur adv vult.

Postea (March 5).

Judgment

I Dumbutshena JA:

The appellants are the Minister of the Interior and the Director-General in a Department in the Ministry of the Interior. The respondent, which conducts its business in the name and style of 'Inkspots', sells cassettes, records, discs and periodicals and J stationery in Umtata in Transkei.

1992 (2) SA p409

Dumbutshena JA

A In the Court below the respondent applied for an interdict restraining the appellants from confiscating further its musical products. A rule nisi was granted and confirmed on the return day. The appellants were interdicted and restrained from further confiscating consignments of the respondent's musical products, without lawful and proper grounds to do so. They were also ordered to pay the costs of the application.

B On 12 June 1991 the appellants inadvertently filed an...