THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT
Case No: 647/09
In the matter between:
THE COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE SERVICE Appellant
and
PLASMAVIEW TECHNOLOGIES (PTY) LTD Respn!ent
Ne"t#al $%tat%n& CSARS ' Plas(a'%e) Te$*nl+%es (Pt,) Lt! (-./012) 341516
7ASCA 589 (5 O$t:e# 4151)
C#a(& Mpati P, Cloete, Lewis and Tshii !!" and #ertelsmann "!"
Hea#!& 4 SEPTEM;ER 4151
Del%'e#e!& 5 OCTO;ER 4151
S"((a#,& C$stoms and e%&ise ' tari(( determination ' &omplete tele)ision sets '
whether importer ma* &laim rebate+
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
,,,
ORDER
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
,,,
-n appeal (rom: North .a$ten/ 0i/h Co$rt 1Pretoria2 1Prinsloo ! sittin/ as &o$rt o(
(irst instan&e2+
3+ The appeal is allowed with &osts, in&l$din/ the &osts o( two &o$nsel+
4+ The order o( the &o$rt below is set aside and repla&ed with the (ollowin/:
5The apppli&ation is dismissed with &osts, in&l$din/ the &osts o( two &o$nsel+5
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
JUDGMENT
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
#67T6L8M"NN "!" 1Mpati P, Cloete, Lewis and Tshii !!" &on&$rrin/2
93: The appellant is the Commissioner (or the 8o$th "(ri&an 7e)en$e 8er)i&e,
appointed in terms o( the 8o$th "(ri&an 7e)en$e 8er)i&e "&t ;4 o( 3997+ 0e is
responsible (or inter alia the administration o( the C$stoms and 6%&ise "&t 93 o(
3964+ The respondent is Plasma)iew Te&hnolo/ies 1Pt*2 Ltd 1Plasma)iew2 a
&ompan*+
94: The Commissioner appeals a/ainst a <$d/ment and order o( the &o$rt below
1Prinsloo ! North .a$ten/ 0i/h Co$rt Pretoria2 whi&h re)iewed and set aside what
was said to be a determination, dated 47 !$l* 4006, alle/edl* made b* him in the
e%er&ise o( the powers &on(erred $pon him b* the "&t+
9;: Plasma)iew had imported ($ll* assembled tele)isions sets with plasma or
li$id &r*stal displa* 1LC=2 s&reens (rom >orea d$rin/ 4006+ These sets were
2
de&lared $nder tari(( headin/ ?@4?+43+40 whi&h allowed a ($ll rebate $nder rebate
item 460+36+
94: Plasma)iew relied on a tari(( determination dated 40 =e&ember 400@ as
<$sti(i&ation (or de&larin/ the tele)ision sets in the abo)e manner+ The tari((
determination was made at a sta/e when it imported the s&reens and TA t$ners
separatel*+ This determination was re(erred to as 5Plasma 35 in the &o$rt below and
this nomen&lat$re will be retained in this <$d/ment+ The ($ll* assembled TA sets
were onl* imported on&e a &op* o( 5Plasma 35 was made a)ailable to the respondent+
9@: -n 47 !$l* 4006, the a$thor o( that tari(( determination, Mr Pool, amended his
reasons (or &lassi(*in/ the s&reens witho$t t$ners $nder tari(( headin/ ?@4?+43+40,
b$t did not amend the determination that that tari(( headin/ applied to the s&reens in
the &ondition he had &onsidered them+ 0e did not in(orm the respondent o( this
amendment, whi&h is re(erred to as 5Plasma 45+
96: Bhen the Commissioner in)esti/ated the importation o( the assembled
tele)ision sets thro$/h his Post Clearan&e Inspe&tion 1PCI2 team (rom abo$t Ma*
4006, his o((i&ials &on&l$ded that the ($ll* assembled tele)ision sets had been
&leared in&orre&tl* and assessed the respondent b* iss$in/ two s&hed$les in the
amo$nts o( 7 ? 944 393, 69 and 7 6 @93 9?7, 90 respe&ti)el*, representin/ both
$nderpaid d$t* and A"T+
97: #elie)in/ that 5Plasma 45 had (ormed the basis $pon whi&h these
assessments were made, Plasma)iew lod/ed an appeal a/ainst them and at the
same time la$n&hed a re)iew appli&ation to ha)e this s$pposed determination set
aside+ In the same pro&eedin/s, Plasma)iew applied (or a de&larator* order that the
amo$nts assessed were not owin/ to the appellant+
3
9?: The &o$rt below a&&epted that 5Plasma 45 represented a determination that, in
the absen&e o( prior noti&e to Plasma)iew, amo$nted to administrati)e a&tion that
was $n(air to it and /ranted the relie( so$/ht+ The Commissioner was ordered to pa*
&osts, in&l$din/ those o( senior &o$nsel+
99: The Commissioner on appeal disp$tes the (indin/ that 5Plasma 45 is a
determinationC ar/$es that it there(ore does not &onstit$te administrati)e a&tion and
s$bmits that the de&larator* order sho$ld not ha)e been /ranted+ The appeal is with
the lea)e o( the hi/h &o$rt+
The salient (a&ts
930: =$rin/ 400@, the respondent imported ei/ht &onsi/nments o( LC= s&reens
(rom >orea into 8o$th "(ri&a+ The port o( entr* was 6ast London+ The s&reens were
des&ribed b* the respondent as &omp$ter monitors with ?3&m or 94 &m s&reens+
The* were &leared as 5inp$t displa* $nits (or a$tomati& data pro&essin/5 $nder tari((
headin/ ?473+60, $nder whi&h the* wo$ld not ha)e attra&ted an* &$stoms d$t*+
933: -ne o( the 8"78 o((i&ials, Mr P$tter, inspe&ted the ei/ht &onsi/nments+ 0e
(o$nd s&reens that were not (itted with TA t$ners on importation, b$t were e$ipped
with the t$ners )er* soon a(ter the* had been deli)ered to the respondentDs a/ents in
6ast London+
934: P$tter was o( the )iew that the LC= s&reens were d$tiable+ 0e re(erred the
$estion o( the tari(( appli&able to these items to his head o((i&e, whi&h determined
that the s&reens were in&omplete re&eption apparat$s (or tele)ision sets, attra&tin/
&$stoms and ad valorem d$t*+ The* were &lassi(ied $nder tari(( headin/ ?@4?+43+;0+
This &lassi(i&ation, it was &ommon &a$se, &onstit$ted a determination in terms o( s
471921a21i21aa2o( the "&t 15the LC= determination52+ Plasma)iew d$l* amended the
tari(( headin/ $nder whi&h these s&reens be&ame s$b<e&t to d$t* b* s$bmittin/
4
&orre&tin/ )o$&hers in respe&t o( the ei/ht &onsi/nments+
93;: Bhile importin/ LC= s&reens, Plasma)iew also imported 33 &onsi/nments o(
plasma s&reens+ Its a/ent re$ested Pool, a tari(( spe&ialist emplo*ed at that time at
the Commissioner5s head o((i&e, to determine the &orre&t tari(( appli&able to these
s&reens+ Pool &on&l$ded on 40 =e&ember 400@ that the plasma s&reens were
5re&eption apparat$s (or tele)ision5 and o$/ht to be &leared $nder tari(( headin/
?@4?+43+40+
934: This tari(( headin/ reads:
0eadE
in/
8$bE
0eadin/
C= "rti&le =es&ription 8tati
sti&al
Fnit
7ates o( =$t* 7e(eren&e
.eneral 6F 8"=C
?@+4?
?@4?+4
?@4?+43
+30
+40
4
@
7e&eption "pparat$s
(or Tele)ision,
Bhether or Not
In&orporatin/ 7adioE
broad&ast 7e&ei)ers
or 8o$nd or Aideo
7e&ordin/ or
7eprod$&in/
"pparat$sC Aideo
Monitors and Aideo
Pro<e&tors:
* Refer to General
Rebates of Customs
Duties and Fuel Levy
460.16 Temporary
Rebates of Customs
Duties
* Refer to d !alorem
"#$ise Duties from
%a&e 6'1
GAideo monitors:
H Colo$r:
E Bith a s&reen
siIe
e%&eedin/
;m % 4+++++++++++
E Bith a s&reen
siIe not
e%&eedin/ ; m % 4
m
$
$
(ree
4@J
(ree
44J
(ree
(ree "3/3/347;
w+e+(+ 3/3/0@
5
93@: Pool added that it was the )iew o( his o((i&e that 5tele)ision monitors are )ideo
monitors5 and that 5tele)ision re&ei)ers in&orporatin/ s&reens + + + $ali(* as )ideo
monitorsD+ 0e moti)ated his determination in part as (ollows:
5CL"88IKIC"TI-N:
To $ali(* as a tele)ision set, a )ideo monitor m$st either in&orporate a t) t$ner or be
otherwise desi/ned (or &ompletion into a tele)ision set+ No e)iden&e o( this nat$re has been
presented b* *o$r o((i&e+ Classi(i&ation within T0 ?@4?+43+40 &annot be &hallen/ed on the
basis o( the a)ailable in(ormation+
It sho$ld be noted that it is in an* e)ent the position o( this o((i&e, in line with the 6%planator*
Note to headin/ ?@+4?, that tele)ision monitors are )ideo monitors and wo$ld $ali(* (or
entr* $nder rebate item 460+36, pro)idin/ that the* &ompl* with all the other re$irements o(
the rebate item+ 6N ?@+4? reads in pertinent part: LThis headin/ &o)ers tele)ision re&ei)ers
1in&l$din/ )ideo monitors and )ideo pro<e&tors2L + + + + The meanin/ o( this s*nta% &o$ld
hardl* be plainer: in&l$ded $nder tele)ision re&ei)ers are )ideo monitors and )ideo
pro<e&tors+
+ + + +
0-L=IN.
T0?@4?+43+40 applies to the /oods at iss$e+ The* are admissible $nder rebate item 460+36
inso(ar as the* &ompl* with all the other re$irements o( this rebate item+
Tari(( =etermination
Tari(( Code ?@4?+43+40/460+36
=etermination
7e&eption apparat$s (or tele)ision, whether or not in&orporatin/ radioEbroad&ast re&ei)ers or
so$nd or )ideo re&ordin/ or reprod$&in/ apparat$sC )ideo monitors and )ideo pro<e&tors:
Aideo monitors: Colo$r: Bith a s&reen siIe not e%&eedin/ ;m % 4m Aideo monitors: Pro)ided
that a &erti(i&ate (rom the 8o$th "(ri&an #$rea$ o( 8tandards is presented at the time o( entr*
that the )ideo monitors ha)e more than 600 resol$tion lines+
=es&ription
Plasma s&reens 144 in&h2 not in&orporatin/ t) t$ners: PA 4403 8 and PA 4403
+ + + +5
6
936: #* )irt$e o( this determination, these s&reens $ali(ied (or a ($ll rebate o( d$t*
$nder rebate item 460+36+ PoolDs ad)i&e was sent to the respondentDs &learin/
a/ents b* wa* o( an eEmail on ; !an$ar* 4006+ Plasma)iew then applied to the
Controller at 6ast London on @ !an$ar* 4006 (or lea)e to s$bstit$te the bills o( entr*
o( the LC= s&reens to re(le&t tari(( headin/ ?@4?+43+40 rather than ?@4?+43+;0, in
order to $ali(* (or the ($ll rebate+ This re$est was /ranted on 3; Mar&h 4006
s$b<e&t to the pa*ment o( penalties+
937: It m$st be emphasised that the plasma s&reens to whi&h Plasma 3 applied
were imported, as the LC= s&reens had been $p to that time, witho$t TA t$ners+
Fpon re&ei)in/ PoolDs determination, Plasma)iew arran/ed with the man$(a&t$rer in
>orea to (it both the LC= as well as the plasma s&reens with TA t$ners, so that the*
were imported as ($ll* assembled tele)ision sets+ The assembled sets were imported
(rom !an$ar* 4006+ The ($ll rebate was &laimed $nder rebate item 460+36 as be(ore+
93?: PoolDs )iew that tele)ision re&ei)ers were s&reens that witho$t t$ners $ali(ied
as )ideo monitors (or a ($ll rebate was not $n&ontro)ersial and was debated with him
b* his &ollea/$es+ -n 47 !$l* 4006, Pool amended the 5Law and 6)iden&e5 portion o(
5Plasma 35+ This do&$ment is 5Plasma 45+ In essen&e, Pool &han/ed his stan&e that
tele)ision re&ei)ers &o$ld be &lassi(ied $nder tari(( headin/ ?@4?+43+ This &han/e in
his approa&h was not &omm$ni&ated to Plasma)iew $ntil -&tober 4006+
939: The determination made on 40 =e&ember 400@, identi(*in/ the appli&able
tari(( headin/ as ?@4?+43+40 (or s&reens that had not been e$ipped with TA t$ners,
was not a((e&ted b* Pool5s amended &omments+
940: =$rin/ Ma* 4006, $naware o( PoolDs ori/inal determination and $naware o(
5Plasma 45, Ms 8pies o( the 8"78 PCI in !ohannesb$r/ be/an an inspe&tion and
7
a$dit pro&ess into Plasma)iewDs imports o( tele)ision sets and the possible
$nderpa*ment o( d$t* and ta% in respe&t thereo(+ These imports &ame to 8pies5
noti&e as part o( an on/oin/ in)esti/ation into imports o( tele)ision sets /enerall*,
when the repa*ment &laims lod/ed b* the respondent with the Controller in 6ast
London a(ter PoolDs determination were inspe&ted+
943: 8$spe&tin/ that d$t* had been $nderpaid, 8pies telephoned a Plasma)iew
representati)e to in(orm her o( the inspe&tion and pendin/ a$dit and to re$est
rele)ant do&$mentation (rom the &ompan*+ This &all was made on 4; Ma* 4006+ The
dis&$ssion was &on(irmed b* eEmail the same da*+ The respondent pro)ided the
do&$mentation 8pies had &alled (or+
944: K$rther literat$re on the s&reens was re$ested in writin/ on 9 !$ne 4006+
8ome o( it was deli)ered to 8pies the ne%t da*+ The balan&e was to be s$pplied at a
personal meetin/ between 8pies and Plasma)iew5s representati)es+ This meetin/
was held on @ !$l* 4006+ 8pies in(ormed the respondent o( her prima (a&ie )iew that
d$t* had been $nderpaid+ 7espondent handed a &op* o( 5Plasma 35 to 8pies, pla&in/
relian&e $pon this do&$ment (or the proposition that &omplete tele)ision sets &o$ld
be imported $nder ($ll rebate o( d$t*+
94;: -n 49 8eptember 4006, a(ter ha)in/ dis&$ssed the respondentDs importation
o( tele)ision sets with her &ollea/$e Lester Millar, and ha)in/ been pro)ided with a
&op* o( 5Plasma 45, 8pies ser)ed a noti&e o( intention to demand o$tstandin/ d$ties
on Plasma)iew, based $pon the prima (a&ie e)iden&e in her possession+ This noti&e
in)ited the &ompan* to maMe representations in respe&t o( the alle/ed liabilit* (or
$nderpaid d$t*+ -n 4 -&tober 4006, Plasma)iew rea&ted to 8pies5 noti&e b* letter,
pla&in/ relian&e on Pool5s ori/inal determination, Plasma 3, whi&h was anne%ed to
the letter to/ether with the LC= determination+
944: -n @ -&tober 4006, the &$stoms s$per)isor o( 6ast London /a)e noti&e to
8
Plasma)iew o( his intention to re)oMe the a$thorisation to present s$bstit$ted bills o(
entr* relatin/ to the LC= s&reens be&a$se o( the (a&t that the !ohannesb$r/ PCI
-((i&e had dis&o)ered that the imported s&reens had been de&lared $nder the
in&orre&t tari(( and did not $ali(* (or a rebate+ Plasma)iew was in)ited to maMe
representations be(ore ; No)ember 4006 wh* this step sho$ld not be taMen+
94@: " meetin/ on 4 -&tober 4006 (ollowed at whi&h the respondent was pro)ided
with a &op* o( 5Plasma 45+ -n 4; -&tober 4006, Plasma)iew, thro$/h its attorne*s,
/a)e (ormal noti&e in terms o( s 471921e2, read with s 961321a21i2 o( the "&t, o( its
intention to appeal a/ainst 5the determination5 o( 47 !$l* 4006, whi&h it had identi(ied
as the &a$se o( the demand (or $nderpaid d$ties+ "t the same time, representations
were made to the Commissioner5s Pretoria o((i&e in an e((ort to pers$ade the latter to
abandon the &laim+
946: 8pies was $naware o( the s$bmissions made to the Pretoria o((i&e+ 8he
iss$ed the s&hed$les re(le&tin/ the &laim (or $nderpaid d$ties and ta% on 9
No)ember 4006 and had them deli)ered on 3; No)ember 4006+
947: "ltho$/h the respondent had deli)ered its noti&e o( appeal and its
representations to 8"78 in -&tober 4006, almost a *ear passed be(ore the re)iew,
the appeal and the appli&ation (or a de&larator* order were la$n&hed in one
appli&ation+ Ne/otiations between the parties &ond$&ted prior to liti/ation had &ome
to na$/ht+
94?: The &o$rt below $pheld the respondent5s &ontention that 5Plasma 45 was a
determination, &onstit$ted $n(air administrati)e a&tion and /ranted the orders
re(erred to abo)e+ The &ommissioner &hallen/es these (indin/s and &ontends that
5Plasma 45 is no determination at all, b$t merel* an amendment o( the moti)ation that
Pool pro)ided in 5Plasma 35+ The Commissioner adopts the stan&e that the &laim (or
$nderpaid d$ties is not based $pon 5Plasma 45 b$t $pon the s&hed$les prod$&ed b*
9
the PIC team+
Is 5plasma 45 a determinationN
949: " determination (or p$rposes o( Chapter A o( the "&t is the end res$lt o( the
&lassi(i&ation o( imported /oods $nder the &orre&t tari(( headin/: Col&ate %almolive
(%ty) Ltd v Commissioner* +out, fri$an Revenue +ervi$e 4007 132 8" ;@ 1N2 para
3C Commissioner* +out, fri$an Revenue +ervi$es v -omatsu +out,ern fri$a (%ty)
Ltd 4007 142 3@7 18C"2 para ? and the a$thorities there &ited+
9;0: The pro)isions o( Chapter A o( the "&t were s$mmariIed b* Cloete !" in
Commissioner* +out, fri$an Revenue +ervi$e v Trend Finan$e (%ty) Ltd . anot,er
4007 162 8" 337 18C"2 para @:
OChapter A deals with &learan&e o( /oods and liabilit* (or pa*ment o( d$ties+ 6)er* importer
o( /oods is obli/ed in terms o( s ;?132 to maMe d$e entr* o( those /oods in terms o( s ;9+
That latter se&tion re$ires the person enterin/ an* imported /oods (or an* p$rpose to
deli)er a bill o( entr* to the &ontroller in the pres&ribed (ormC to de&lare that the parti&$lars
&ontained in the bill o( entr* are &orre&tC and to pa* all d$ties d$e on the /oods+ 8e&tion
40132 pro)ides that no entr* shall be )alid $nless the tr$e )al$e o( the /oods on whi&h d$t* is
le)iable or whi&h is re$ired to be de&lared $nder the pro)isions o( the "&t, has been
de&laredC a &orre&t in)oi&e has been prod$&ed to the &ontroller in the &ase o( /oods
&onsi/ned to an* person in the 7ep$bli&C and the &orre&t d$t* has been paid+ 8e&tion 44162
1&2 pro)ides that in all &ases e%&ept those spe&i(i&all* mentioned, the liabilit* (or d$t* on an*
imported /oods is that o( the importer or owner o( s$&h /oods 1or an* person who ass$mes
s$&h liabilit* (or an* p$rpose $nder the pro)isions o( the "&t2+ 8e&tion 441302 pro)ides that
an* d$t* (or whi&h an* person is liable in terms o( s 44 shall be pa*able $pon demand b* the
Commissioner+ 8e&tion 47 pro)ides that d$t* shall be paid on all imported /oods in
a&&ordan&e with the pro)isions o( 8&hed$le 3+D
9;3: 5Plasma 35 identi(ies, thro$/h the a&&epted pro&ess o( &lassi(i&ation ' see
/nternational 0usiness 1a$,ines + (%ty) Ltd v Commissioner for Customs and
"#$ise 39?@ 142 8" ?@4 1"2 at ?6;K'?64C ' the headin/ $nder whi&h the imported
10
s&reens sho$ld be &lassi(ied+ 5Plasma 45 di((ers (rom 5Plasma 35 onl* in respe&t o( the
amended &omment prepared b* Pool $nder the headin/ 5Law and "nal*sis5, in whi&h
he s$//ests that a plasma s&reen or a LC= s&reen in&orporatin/ a TA t$ner &o$ld
5P ne)er be re/arded as a )ideo monitor5, and &o$ld not $ali(* (or a rebate $nder
item 460+36+ The tari(( determination made in respe&t o( the s&reens 1witho$t t$ners2
in =e&ember 400@ was e%pressl* not altered b* the amended &omment+ The date o(
the ori/inal determination was not a((e&ted and the do&$ment spe&i(ies that it 1still2
applies to plasma s&reens not in&orporatin/ TA t$ners+
9;4: 5Plasma 45 is there(ore no tari(( determination+ -n&e this (a&t is established, it
is &lear that the &laim (or $nderpaid d$ties does not, and &o$ld not, arise (rom the
amended &omment prepared b* Mr Pool+
The re)iew o( 5Plasma 45
9;;: "s 5Plasma 45 is not a determination, it is not a de&ision &apable o( bein/
re)iewed, nor &an an appeal be lod/ed in terms o( s 471921e2 a/ainst its &ontents+
The &o$rt below erred in this re/ard+ Co$nsel (or the respondent was &onstrained to
&on&ede d$rin/ ar/$ment that the hi/h &o$rt5s (indin/s &o$ld not be s$pported+
The importation o( &omplete TA sets
9;4: 5Plasma 35 was prepared at a sta/e at whi&h the respondent imported s&reens
witho$t TA t$ners, with spe&i(i& re(eren&e to plasma s&reens+ 8e&tion 471921a21iii2 o(
the "&t reads:
5"n* determination made $nder this s$bse&tion shall operate '
1aa2 onl* in respe&t o( the /oods mentioned therein and the person in whose name it is
iss$edP5
9;@: It is &ommon &a$se, as I ha)e said, that the respondent, on&e it re&ei)ed
11
5Plasma 35, imported both LC= and plasma s&reens with TA t$ners alread* (itted b*
the >orean man$(a&t$rer+ It there(ore be/an to import &omplete TA sets+
9;6: Bhile s&reens imported witho$t t$ners were at the time &orre&tl* &lassi(ied
$nder tari(( headin/ ?@4?+43+40, $ali(*in/ (or a ($ll rebate $nder rebate item 460+36
' see C+R+ v LG "le$troni$s 144?/092 94030: Q"8C" 79 14? Ma* 40302 ' the
determination (ell awa* on&e the nat$re o( the imported item &han/ed+ Not onl* did
5Plasma 45 there(ore not amend the earlier determination, it simpl* did not appl* an*
lon/er to the respondentDs imports on&e the t$ners were (itted prior to shipment o(
the sets to 8o$th "(ri&a+ This (a&t was o)erlooMed in the <$d/ment appealed a/ainst+
The s&hed$les prepared b* the PIC
9;7: Ms 8pies prepared two s&hed$les relatin/ to bills o( entr* s$bmitted b* the
respondent in respe&t o( the s&reens imported d$rin/ 400@ and 4006+ The s&hed$les
were prepared in the e%er&ise o( the powers /ranted to the appellant b* se&tion
471921a2 and 471332:
5192 1a2 1i2 The Commissioner ma* in writin/ determineE
1aa2 the tari(( headin/s, tari(( s$bheadin/s or tari(( items or other items o( an* 8&hed$le
$nder whi&h an* imported /oods, /oods man$(a&t$red in the 7ep$bli& or /oods e%ported
shall be &lassi(iedC or P+
1332 1a2 Notwithstandin/ the pro)isions o( s$bse&tion 1302, an* determination made $nder
s$bse&tion 192 1a2 as a res$lt o( or d$rin/ the &o$rse o( or (ollowin/ $pon an inspe&tion o( the
booMs, a&&o$nts and other do&$ments o( an importer, e%porter, man$(a&t$rer or $ser o(
/oods, shall, s$b<e&t to the pro)isions o( se&tion 4413321&2, be deemed to ha)e &ome into
operation in respe&t o( the /oods in $estion entered (or the p$rposes o( this "&t two *ears
prior to the date on whi&h the inspe&tion &ommen&ed+
1b2 The e%pression Linspe&tion o( an* booMs, a&&o$nts and other do&$mentsL, or an* other
re(eren&e to an inspe&tion in this "&t shall be taMen to in&l$de an* a&t done b* an o((i&er in
the e%er&ise o( an* d$t* imposed or power &on(erred b* this "&t (or the p$rposes o( the
ph*si&al e%amination o( /oods and do&$ments $pon or a(ter or in the absen&e o( entr*, the
12
iss$e o( stop notes or other reports, the maMin/ o( assessments and an* preE or postE
importation a$dit, in)esti/ation, inspe&tion or )eri(i&ation o( an* s$&h booMs, a&&o$nts and
other do&$ments re$ired to be Mept $nder this "&t+5
9;?: The s&hed$les prepared b* 8pies are determinations as intended in the "&t+
"lternati)e relie(
9;9: -n&e it was &lear that the appeal had to s$&&eed, respondentDs &o$nsel
so$/ht to rel* on alternati)e relie( en)isa/ed d$rin/ the hearin/ be(ore the &o$rt
below when Plasma)iew was /ranted an amendment o( the noti&e o( motion+ Pra*er
@ was amended to in&l$de the words 5"nne%$res K" 37 and K" 3? 98pies5
s&hed$les: are hereb* set aside and5 be(ore the ori/inal pra*er 5it is de&lared that the
amo$nts demanded b* the respondent 9the present appellant: (rom the appli&ant 9the
present respondent: in "nne%$res RK" 37S and RK" 3?S to the (o$ndin/ a((ida)it,
bein/ respe&ti)el* 7? 944 393,69 1to/ether with interest thereon2 and 7 6 @93
9?7,90 1to/ether with interest thereon2, are not owin/ b* the appli&ant to the
respondent+5 "ltho$/h the amendment was /ranted 2provisionally2* the &o$rt below
&o$&hed its de&larator* order in the (orm in whi&h it was worded ori/inall*+
940: The CommissionerDs relian&e on the s&hed$les was introd$&ed into the &o$rt
below b* an additional a((ida)it (iled witho$t opposition+ "ltho$/h Plasma)iew did (ile
a ($rther a((ida)it in repl* to the additional a((ida)it, the s&hed$les were not dealt with
at all+
943: Ka&ed with these di((i&$lties, Plasma)iew5s &o$nsel re$ested the ind$l/en&e
o( a postponement in order to s$pplement the papers to enable it to deal with the
s&hed$les+ The Commissioner ob<e&ted+ The s&hed$les were not disp$ted in the
&o$rt below, either in respe&t o( the &orre&tness o( the &al&$lations o( d$t* and ta%, or
in respe&t o( the )alidit* o( the de&ision to prepare them+ There is no e%planation
13
be(ore this &o$rt wh*, i( these aspe&ts were in iss$e, the disp$te was not )entilated
be(ore and wh* a)ailable e)iden&e was not pla&ed on re&ord+ There is &onse$entl*
no basis $pon whi&h a postponement &o$ld be /ranted+
944: Kinall*, Plasma)iew ar/$ed that the &ommissioner does ha)e a dis&retion
whether or not to appl* the pro)isions o( s 471332 on&e an $nderpa*ment o( d$t* is
established+ It so$/ht a postponement (or the p$rpose o( maMin/ representations to
the appellant to pers$ade him not to e%er&ise the powers /i)en to him in terms o( this
se&tion+ "/ain, the Commissioner opposed the re$est+
94;: Krom the wordin/ o( the se&tion $oted abo)e it wo$ld appear prima (a&ie that
the appellant has no dis&retion that wo$ld allow him not to appl* its pro)isions+ No
postponement &o$ld alter this (a&t+ #$t e)en i( the appellant &o$ld e%er&ise a
dis&retion not to appl* s 471332, this iss$e was not raised in the &o$rt below+ There is
no basis $pon whi&h the appeal &o$ld be postponed to a&&ommodate a re$est to
maMe ($rther representations at this sta/e+ The remarMs b* 8&h$tI !" in 1$Cart,y
Retail Ltd v +,ort Distan$e Carriers CC 4003 1;2 8" 4?4 18C"2 paras 47 to ;; are
appli&able in this &ase+ The postponement was so$/ht at the last moment a(ter the
appeal had been &on&ededC no satis(a&tor* reasons were ad)an&ed (or the lateness
o( the ho$r at whi&h it was so$/htC and the Commissioner has a ri/ht to ha)e the
appeal disposed o(+ The prin&ipal reason (or re($sin/ the postponement is the (a&t
that it was so$/ht in order to allow the respondent to &reate a &a$se o( a&tion where
none e%isted when the appeal was heard+ The re$est (or a postponement &o$ld
there(ore not be entertained+
944: 3+ The appeal is allowed with &osts, in&l$din/ the &osts o( two &o$nsel+
4+ The order o( the &o$rt below is set aside and repla&ed with the
(ollowin/:
5The appli&ation is dismissed with &osts, in&l$din/ the &osts o( two &o$nsel+5
14
,,,,,,,,,,,,,,,,,,,
6 #67T6L8M"NN
"CTIN. !F=.6 -K "PP6"L
15
"PP6"7"NC68:
Kor appellant: C P$&Mrin 8C
T >hatri
Instr$&ted b*:
The 8tate "ttorne*, Pretoria
The 8tate "ttorne*, #loem(ontein
Kor respondent: ! P Aorster 8C
Instr$&ted b*:
Bol)aardt In&, Pretoria
Matsepes In&, #loem(ontein
16