Tieber v Commissioner for Customs and Excise

• Jurisdiction: South Africa
• Citation: 1992 (4) SA 844 (A)

Tieber v Commissioner for Customs and Excise
1992 (4) SA 844 (A)

1992 (4) SA p844

Citation	1992 (4) SA 844 (A)
Court	Appellate Division
Judge	Corbett CJ, E M Grosskopf JA, Kumleben JA, Goldstone JA and Howie AJA
Heard	September 15, 1992
Judgment	September 28, 1992

Flynote : Sleutelwoorde B

Revenue law — Customs and excise — Importation of goods — Meaning of 'import' in Customs and Excise Act 91 of 1964 — Word to be given C restricted meaning so as not to include goods in transit — Appellant having checked in baggage containing 38 kg unwrought gold on flight from Gaborone to Zurich, via Jan Smuts and Frankfurt airports — Appellant's intention to remain in transit at both airports — Police seizing gold at Jan Smuts airport from transit luggage — Gold not imported into Republic in terms of Act and respondent not entitled to seize it — Section 15(1) D of Act not applicable to goods which remain in transit area and appellant not obliged to declare it — Court on appeal ordering that gold be returned to appellant by placing it on flight to Zurich and handing appellant baggage receipts. E

Headnote : Kopnota

During March 1989 the appellant and his girlfriend, K, agreed with unnamed principals in Zimbabwe to transport on their behalf unwrought gold, foreign currency and travellers cheques ('the consignment') from Zimbabwe to Switzerland. They made reservations for airline flights from Gaborone to Zurich via Jan Smuts and Frankfurt airports, intending to remain in transit at both airports. They checked in their baggage, including the consignment, from Gaborone to Zurich. Upon arrival at Jan Smuts airport, F the appellant and K were informed that their flight to Frankfurt had been delayed by 12 hours. They therefore decided to spend some of the time at their home in Johannesburg. Later that day, the appellant took K to the airport where she alone boarded the aircraft, it having been decided between them that in order to save one air fare K alone would complete the journey to Frankfurt and Zurich. In the meantime, however, unbeknown to appellant and K, the two suitcases containing the consignment had been G opened and searched by police officers at the airport and detained there. Later that same day the police arrived at the appellant's apartment with the two suitcases and he was arrested and a charge laid against him. The Attorney-General declined to prosecute the appellant and the charge was formally withdrawn. Thereafter, however, the respondent seized the consignment, acting in terms of the provisions of the Customs and Excise Act 91 of 1964. The foreign currency was returned to the appellant but not so the unwrought gold and the travellers cheques, and the appellant was H later informed by the respondent that the gold had been seized in terms of s 83 read with ss 87(1) and 88(1) of the Act. The appellant applied unsuccessfully to the Transvaal Provincial Division for an order compelling the respondent to return the gold to him. On appeal, the respondent submitted in limine that the appellant had no locus standi in iudicio, inasmuch as s 89 of the Act provided that any goods seized under the Act shall be deemed to be condemned and forfeited unless the person from whom such goods have been seized or the owner thereof or his I authorised agent gives notice in writing that he intends to claim the said goods, and that such person shall institute proceedings in a court for the release of such goods not earlier than one month from the date of the notice. It was submitted that the gold was not seized from the appellant but either from the police, the airport or airline authorities or K, and that as the appellant was not relying upon ownership of the gold, or the authority of the owner, he had no locus standi. The Court held that the police, when they seized the goods, were acting pursuant to the provisions J of the Act in order to determine

1992 (4) SA p845

A whether, in terms of s 88(1)(a), they were liable to forfeiture at the instance of the respondent, and that to hold that the respondent thereafter seized the goods from the police, or from the airport or airline authorities, was highly artificial and formalistic and not warranted by the provisions of the Act. The Court held that in reality the gold was seized from the appellant who, together with K, arranged for it to be in transit at Jan Smuts Airport, and that the respondent or his officials also regarded the matter as such. As regards the merits of the matter, the Court turned to consider whether the gold was imported by the B appellant into the Republic. The Court held that, if regard was had to the scheme of the Act, it was clear that the Legislature intended the word 'import' to have a restricted meaning, at least to the extent of not including goods in transit. The Court accordingly held that the appellant did not import the gold and could not have contravened any provision of the Act relating to the importation of goods into the Republic, and that C the respondent was consequently not entitled to seize the gold on that account. The respondent also relied on the provisions of s 15(1) (as it was at the relevant time before its amendment by s 12 of Act 59 of 1990) of the Act in submitting that when the appellant left the transit area he was 'in possession' of the gold and was obliged to declare it. The Court held that the provisions of s 15(1) were not applicable to goods which remain in a transit area: the only purpose of declaring goods was to enable the customs officer to determine whether duty was payable and to D prevent prohibited or restricted goods being brought into the country, and goods in transit did not fall into either of those two categories.

The Court concluded that the respondent had not been able to justify his seizure of the gold and that the order in favour of the respondent made by the Court a quo had to be reversed. The Court accordingly issued an order that the gold be returned to the appellant by having it placed as E passenger baggage bound for Zurich on an aircraft at Jan Smuts airport and by handing the appellant the baggage receipts. Appeal allowed.

The decision in the Transvaal Provincial Division in Tieber v Commissioner for Customs and Excise reversed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Hartzenberg F J). The facts appear from the judgment of Goldstone JA.

H Z Slomowitz SC (with him B K Pincus) referred to the following authorities: The Shorter Oxford English Dictionary vol 1 at 1033, vol 2 at 2347; Jaga v Dönges 1950 (4) SA 653 (A); Beckett & Co Ltd v Union Government 1919 TPD 6; BP Southern Africa v Secretary for Customs & Excise G 1984 (3) SA 367 (C); Commissioner of Taxes v F 1968 (2) SA 755 (RA); Canada Sugar Refining Co Ltd v The Queen [1898] AC 735 (PC); Parkinson v Matthews 1930 WLD 58; Tension Overhead Electric (Pty) Ltd v National Employers General Insurance Co Ltd 1990 (4) SA 190 (W); Mphosi v Central Board for Co-operative Insurance Ltd 1974 (4) SA 633 (A); Utopia Vakansie-Oorde Bpk v Du Plessis 1974 (3) SA 148 (A); S v Rosenthal 1980 (1) SA 65 (A) H ; The Oxford English Dictionary vol 1 at 981; General Agreement on Tariffs and Trade published in Government Gazette 3896 of 18 November 1947; Geneva General Agreement on Tariffs and Trade 29 of 1948; Encyclopaedia of Public International Law (1987) at 509-511; The Encyclopaedia of the United Nations and International Relations (1990) at I 309, 914-15...