This is a direct appeal, with leave of this Court, from the judgment and order of the Cape of Good Hope High Court1 (the High Court) dismissing a constitutional challenge by the appellant, First National Bank of SA Limited (trading as Wesbank) (FNB), to the provisions2 of section 114 of the Customs and Excise Act 91 of 1964 (the Act) in two High Court cases, Nos 825/99 (the Lauray-Airpark case) and 9101/94 (the Republic Shoes case) respectively. Although this Court has come to a different conclusion, the judgment of the High Court has been of much assistance in a complex matter.
FNB is a financial institution that sells and leases movables. Three motor vehicles of which it is the owner have been detained under the provisions of section 114 of the Act. The first respondent is the Commissioner of the South African Revenue Service (the Commissioner) who is charged under section 2(1) of the Act with its administration. The second respondent is the Minister of Finance (the Minister) under whose aegis the Act falls.
The two cases were consolidated for hearing in the High Court. In the Republic Shoes case it was common cause that FNB’s cause of action had arisen before 27 April 1994, the date on which the interim Constitution came into force. The High Court accordingly correctly held, on the strength of the judgment of this Court in Rudolph and Another v Commissioner for Inland Revenue and Others,3 that FNB could not validly base a challenge on either the interim Constitution or the 1996 Constitution4 and that the substantive dispute in this case fell away. The only issue on appeal in the Republic Shoes case is the costs order made in the High Court. Unless the contrary is indicated, all references in this judgment will be to the Lauray-Airpark case.
The Act provides for the “levying of customs and excise duties and a surcharge; for a fuel levy and for an air passenger tax; the prohibition and control of the importation, export, manufacture or use of certain goods; and for matters incidental thereto”.5 It is primarily a fiscal measure and has counterparts in countries throughout the world. Section 114 is concerned with the collection of debts (customs debts) due to the state by the debtor (customs debtor) under the Act. For the purposes of this case, and at the risk of oversimplification it is helpful to emphasize two features of the provisions of section 114 at this stage. The first is that, in order to collect the debt owed, they allow the Commissioner to sell goods without the need for a prior judgment or other authorisation by a court. The second is that, in order to satisfy the debt owed, the Commissioner may sell goods even where the goods do not belong to the customs debtor but to some third party.
FNB contends, as it did in the High Court, that section 114 of the Act constitutes an unjustified infringement of its constitutional rights to have access to the courts in the settlement of disputes,6 to the protection of its property7 and to its freedom to choose a trade.8 Save for the constitutional attack, the entitlement of the Commissioner in terms of section 114 of the Act to act as he has done in this case is not in dispute.
The format of this judgment is as follows: