SA Historical Mint (Pty) Ltd v Minister of Finance and Another

• Jurisdiction: South Africa
• Judge: Farlam J
• Judgment Date: 09 December 1996
• Citation: 1997 (2) SA 862 (C)
• Docket Number: 4237/95
• Hearing Date: 19 August 1996
• Counsel: W R E Duminy (with him J Newdigate) for the appellant No appearance for the first respondent H P Viljoen (with him RC Hiemstra) for the second respondent
• Court: Cape Provincial Division

Farlam J:

This is an appeal brought in terms of s 47(9)(e) of the Customs and Excise Act 91 of 1964 (to which I shall hereinafter refer as 'the Act') against a E written determination made by the second respondent in terms of s 47(9)(a)(i) of the Act on 15 September 1994, in respect of certain goods imported by the appellant.

The goods in issue are gold-coloured necklaces, each consisting of nine solid cylindrical bars, approximately 8 mm in length and 3 mm in diameter, inter-linked by F means of a fine chain and a clasp. The necklaces are coated with a copperbased alloy, electroplated with gold. Each of the bars is a permanent magnet and the claim is made by the manufacturer thereof that wearing these bars on various parts of the body can 'have the effect of helping those suffering, inter alia, from fibrositis, arthritis, rheumatism, muscular cramps and spasms, stress induced tension and circulatory problems'. G

The applicant accepts that the necklaces (each of which is referred to as a 'device' in the founding affidavit) have no proven benefits and that the claims made in respect thereof are controversial. In the founding affidavit the statement is made that the goods are imported 'solely for their alleged remedial properties' and that 'anecdotal evidence exists that (they bring) relief to some persons who wear (them)'. H

Applicant contends that the goods in issue (to which I shall hereinafter refer as 'the goods') are covered by tariff item 90.21.9021.90 of Schedule 1 to the Act, alternatively tariff item 85.05.8505.11. Under both tariffs items are imported free of duty. Second respondent contends, on the other hand, that the applicable tariff item is 71.17.7117.19, in which case duty of 30% is payable. I

Tariff item 90.21.9021.90 is to be found in chap 90 of the Schedule, which in turn forms part of s XVIII of Part 1 of the Schedule. Section XVIII and chap 90 relate to optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; clocks and watches; musical instruments and apparatus; parts and accessories thereof. J

Farlam J

The relevant part of the heading reads as follows: A

'(H)earing aids and other appliances which are worn and carried, or implanted in the body, to compensate for a defect or disability'.

Tariff item 85.05.8505.11 falls within chap 85, which forms part of section XVI, and relates to machinery and mechanical appliances, electrical equipment; parts thereof; sound recorders and reproducers, television image and sound recorders and B reproducers, and parts and accessories of such articles. Tariff heading 85.05 reads as follows:

'Electro-magnets; permanent magnets and articles intended to become permanent magnets after magnetisation; electro-magnetic or permanent magnetic chucks, clamps and similar holding devices; electro-magnetic C couplings, clutches and brakes; electro-magnetic lifting heads.'

Tariff item 71.17.7117.19 reads as follows:

'71.17

Imitation jewellery

7117.1

Of base metal whether or not plated with precious metal

. . . D

7117.19

Other'

Section 10 of the notes to chap 71 of the Schedule to the Act reads as follows:

'10.

For the purposes of heading number 71.17, the expression "imitation jewellery" means articles of jewellery within the meaning of para (a) of note 8 above. . . . ' E

The relevant portion of s 8 of these notes is in the following terms:

'8.

. . . the expression "articles of jewellery" means:

(a)

Any small objects of personal adornment (gem-set or not) (for example, rings, bracelets, necklaces, brooches, ear-rings, watch-chains, fobs, pendants, tie-pins, cuff-links, dress-studs, religious or other medals and insignia).' F

The explanatory notes to heading 71.17 provide as follows:

'For the purposes of this heading, the expression imitation jewellery, as defined in note 10 to this chapter is restricted to small objects of personal adornment, such as those listed in para (A) of the explanatory note to heading 71.13, eg rings, bracelets (other than wrist watch bracelets), necklaces, G earrings, cuff-links, etc, but not including buttons and other articles of heading 96.06, or dress combs, hair...