Clear Enterprises (Pty) Ltd v ITAC and Others
06 February 2014
Posted by: Author: SARS Legal and Policy
Author: SARS Legal and Policy
This matter was an application for
a review arising out of the seizure of vehicles belonging to the applicant by
the first respondent, ITAC, in terms of the provisions of International Trade
Administration Act, 71 of 2002 (ITA Act).
The applicant sought costs against
the first respondent or any other respondent opposing the application. Both the
first and second respondents opposed the application.The applicant sought that the
costs be determined against the first and second respondents, whilst the first
and second respondents sought that the costs of the application be awarded in their
favour, such costs to include costs consequent upon the employment of two
In Jenkins v SA Boiler Makers, Iron and Steel Workers and Ship Builders
Society 1946 WLD 15, the Court held that where a disputed application is
settled on a basis which disposes of the merits except in so far as the costs
are concerned, the Court should not have to hear evidence to decide the
disputed facts in order to decide who is liable for costs, but the Court must,
with the material at its disposal, make a proper allocation as to the costs.
The second respondent, being the
Commissioner of South African Revenue Service, attached the applicant’s
vehicles on 22 February 2007, in terms of section 88(1)(a) of the Customs Duty
Act 91 of 1964. The second respondent further attached another vehicle of the
applicant in terms of section 88(1)(a) of the Customs Duty Act 91 of 1964, on 23
April 2007. The applicant subsequently provided the second respondent with the
relevant documents pertaining to the vehicles after the aforesaid detainment. As
a result of the continued detainment of the vehicles, the applicant caused two
applications to be issued in which it sought the second respondent’s continued
detention of the vehicles to be set aside.
At the time the application
commenced against the second respondent, the first respondent had seized all
the three vehicles in terms of section 41(g) of the International Trade Administration
Act 71 of 2002 (the ITA Act), without notifying the applicant. The seizure
notices had been handed to representatives of the second respondent, however,
they were not forwarded to the applicant.
The court held that unless the
application had been instituted within 90 days, there would be no application
and the ‘lawfulness and reasonableness of ITAC’s conduct in relation to the
seizure of the vehicle would not be ruled upon by any court. In that event ITAC
would be able to set the matter down for determination of costs. For the
applicant to be successful, the applicant would have had to succeed first with
the application for condonation and extension of time.
It was held further that taking into account
the facts and the law, the applicant has failed to make out a proper case. The
applicant was ordered to pay the costs of the respondents, such costs to
include the costs consequent upon the employment of two counsel.
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