The Order It is convenient at this stage to quote the actual order made by the High Court so that the impact of our order on that of the High Court can be clearly appreciated. In the High Court both cases were dealt with in one order.
“(1) The detention of a Volkswagen Jetta motor vehicle in the possession of Lauray Manufacturers CC belonging to the applicant and the detention of Mercedes-Benz and Volkswagen Golf motor vehicles in the possession of Airpark Halaal Cold Storage CC belonging to the applicant was not unlawful.
(b) the costs of the postponed hearing on 22 February 2000; and
(c) the costs of First National Bank Limited v The Minister of Finance (Case no 9101/94),183
all such costs to include the costs of two counsel.”184
The following orders are accordingly made:
In the Cape of Good Hope High Court case First National Bank of SA Limited v The Minister of Finance (Case no 9101/94):
The appeal is dismissed with costs and the appellant is ordered to pay the costs in the High Court.
B: In the Cape of Good Hope High Court case First National Bank of SA Limited v The Commissioner for the South African Revenue Services and the Minister of Finance (Case no. 825/99):
The appeal succeeds with costs.
The provisions of section 114 of the Customs and Excise Act 91 of 1964 are declared to be constitutionally invalid to the extent that they provide that goods owned by persons, other than the person liable to the State for the debts described in the section, are subject to a lien, detention and sale.
The order in paragraph 2 shall not apply –
3.1 to sales of goods to purchasers, resulting from the application of the provisions of section 114, where such purchasers have been placed in possession of such goods pursuant to such sales; or,
3.2 to any case in which judgment has been given and in which, as at the date of this order, neither an appeal nor a review is pending or the time for the noting of an appeal has expired.
The High Court order is set aside and replaced with the following:
“1. The detentions of a Volkswagen Jetta motor vehicle in the possession of Lauray Manufacturers CC belonging to the applicant and of Mercedes-Benz and Volkswagen Golf motor vehicles in the possession of Airpark Halaal Cold Storage CC belonging to the applicant were unlawful.
2. The applicant is to pay the costs of the postponed hearing on 22 February 2000, such costs to include the costs of two counsel.
3. Save for the costs referred to in paragraph 2, the respondents are to pay the costs of the application in the case of First National Bank of SA Limited v The Commissioner for the South African Revenue Services and The Minister of Finance (Case no 825/99).”
Chaskalson CJ, Langa DCJ, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J, Yacoob J, Du Plessis AJ, Skweyiya AJ concur in the judgment of Ackermann J.
For the appellant: AM Breitenbach and N Bawa instructed by
Cape High Court Case Number 825/99 Field & Gowar Inc, Cape Town.
For the appellant: SC Kirk-Cohen instructed by Field & Gowar
Cape High Court Case Number 9101/94 Inc, Cape Town.
For the respondents: GJ Marcus SC, JP Vorster SC and CS Kahanovitz instructed by the State Attorney, Cape Town.
1Reported as First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Service and Another 2001 (7) BCLR 715 (C); 2001 (3) SA 310 (C). References in this judgment will be to the South African Law Reports.
2Its provisions are quoted in para 11 below.
31996 (7) BCLR 889 (CC); 1996 (4) SA 552 (CC).
4The Constitution of the Republic of South Africa 1996.
5Its long title.
6Section 22 of the interim Constitution and section 34 of the (1996) Constitution, quoted in paragraph 116 below.
7Section 28 of the interim Constitution and section 25 of the (1996) Constitution, quoted in paragraph 25 below.
8Section 26 of the interim Constitution, quoted in n 104 below and section 22 of the (1996) Constitution.
9The High Court found (above n 1 at 314I) that Lauray owed R3,26m to the Commissioner by 10 June 1996, but this should probably read 10 January 1996.
10The South African Revenue Service Act 34 of 1997 substituted the word “Commissioner” for “Office” wherever it occurred in subsection (1), and for convenience and clarity “Commissioner” will be used throughout the judgment.
13Sections 10 and 44(1).
15Sections 38(1) and 39(1).
16Sections 65 to 74A.
17In this respect reference may be made to the list compiled in 5-32 to 5-34 of HC Cronje Customs and Excise Service (Butterworths)(Issue 5).
21Definition of “importer” in section 1.
22See Cronje above n 17 at Int-24.
24Sections 47(9), 65(4)-(6) and 69(3) read with part 2B of schedule 1, respectively.
25See sections 47(9)(b) and (e), 65(4)(a) and (c), and 69(3).
26Sections 47(9)(f) and 65(6)(b).
27See, for example, Commissioner for Inland Revenue v NCR Corporation of South Africa (Pty) Ltd 1988 (2) SA 765 (A) at 774D-F; Metcash Trading Limited v The Commissioner for the South African Revenue Service and Another 2001 (1) BCLR 1 (CC); 2001 (1) SA 1109 (CC) paras 35-36; McKesson Corporation v Division of Alcoholic Beverages and Tobacco, Department of Business Regulation of Florida 496 US 18 (1990); Phillips v Commissioner of Internal Revenue 283 US 589 (1930).
28For an example of its operation see Commissioner for Customs and Excise v Standard General Insurance Co Ltd 2001 (1) SA 978 (SCA).
29See sections 78(2) and (3), 79, 80(1), 82, 83, 84(1), 85 and 86.
30See sections 81, 83, 84, 85 and 86.
32Secretary for Customs and Excise v Millman NO 1975 (3) SA 544 (A) at 550A-B; Rand Bank Limited v Government of the Republic of South Africa 1975 (3) SA 726 (A) at 731D-732E; Minister of Finance and others v Ramos 1998 (4) SA 1096 (C) at 1100F-G.
33Wille’s Principles of South African Law 8 ed by Hutchison, Van Heerden, Visser and Van der Merwe, Juta: Kenwyn, 1991 at 262-4; Groenewald v Van der Merwe 1917 AD 233 at 238-9.
34S v Brick 1973 (2) SA 571 (A) at 579H and S v Adams 1986 (4) SA 882 (A) at 891D-E.
35S v Adams id at 890H-J.
36Id at 891A.
37S v Brick above n 34 at 579H.
38Which in its relevant part provides:
“Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief . . . ”
39Quoted in n 38 above.
40Section 28 of the Interim Constitution provided:
(1) Every person shall have the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights.
(2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a law.
(3) Where any rights in property are expropriated pursuant to a law referred to in subsection (2), such expropriation shall be permissible for public purposes only and shall be subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable, taking into account all relevant factors, including, in the case of the determination of compensation, the use to which the property is being put, the history of its acquisition, its market value, the value of the investments in it by those affected and the interests of those affected.”
41Above n 1 at 327C.
48Id 316I-J and 329A-B.
53Id 330 F-G.
54Compare id 330C-D.
60Id 335C. See also Millman NO and the other cases cited in n 32 above.
61The corresponding provision of the Interim Constitution (IC) (Act 200 of 1993), section 35(3), provided:
“In the interpretation of any law and the application and development of the common law or customary law, a court shall have due regard to the spirit, purport and objects of this Chapter.”
In Carmichele v Minister of Safety and Security and Another, 2001 (10) BCLR 995 (CC); 2001 (4) SA 938 (CC) it was held, at para 33 fn 17, that –
“[a]s emerges from the provisions of section 35(3) of the IC and section 39(2) of the Constitution, the development of the common law will not be different whether we ‘have regard to’ or ‘promote’ the ‘spirit, purport and objects’ of the respective Bills of Rights.”
62Above n 61 at para 39.
631996 (4) SA 19 (A) at 26J-27A. See also Bombay Properties (Pty) Ltd v Ferrox Construction 1996 (2) SA 853 (W) at 856C and Joubert & Faris (ed) Law of South Africa (First Reissue) Vol 15: Lien by Susan Scott, para 50.
641999 (Butterworths) 78 para (e).
66Millman NO above n 32 at 548H.
68Coetzee v Government of the Republic of South Africa and Others; Matiso v The Commanding Officer, Port Elizabeth Prison and Others, 1995 (10) BCLR 1382 (CC); 1995 (4) SA 631 (CC) paras 13 and 17; Case and Another v Minister of Safety and Security and others; Curtis v Minister of Safety and Security and Others 1996 (5) BCLR 609 (CC); 1996 (3) SA 617 (CC) paras 93 and 97; and Mistry v Interim National Medical and Dental Council and Others 1998 (7) BCLR 880 (CC); 1998 (4) SA 1127 (CC) paras 21, 25 and 27.
69De Lange v Smuts NO and Others 1998 (7) BCLR 779 (CC); 1998 (3) SA 785 (CC) para 85; Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC) paras 22-24.
70Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996 1996 (10) BCLR 1253 (CC); 1996 (4) SA 744 (CC).
75The Law of South Africa Vol 4 Part 1 (First Reissue) paras 18, 21-23.
76Id, para 23.
77Hyundai above n 72 para 18.
78Even a cursory reading of the works cited in n 79 below illustrates this. See also Kleyn, below n 79, at 404.
79Particular mention must be made of the seminal works of Carole Lewis “The Right to Private Property in a New Political Dispensation in South Africa” in (1992) 8 SAJHR 389 (“Lewis 1992”) and AJ van der Walt, The Constitutional Property Clause Juta: Kenwyn, 1997 (Van der Walt 1997) and Constitutional Property Clauses: A Comparative Analysis Juta: Kenwyn, 1999 (Van der Walt 1999). Other significant contributions by South African scholars in this field include Budlender “The Constitutional Protection of Property Rights: Overview and commentary” in Geoff Budlender et al, Juta’s New Land Law, Juta: Kenwyn, 1998 (“Budlender”); Matthew Chaskalson “The Problem with Property: Thoughts on the Constitutional Protection of Property in the United States and the Commonwealth” (1993) 9 SAJHR 388 (“Chaskalson 1993); “The Property Clause: Section 28 of the Constitution” (1994) 10 SAJHR 131 (“Chaskalson 1994”); “Stumbling towards Section 28: Negotiations over the Protection of Property Rights in the Interim Constitution” (1995) 11 SAJHR 222 (“Chaskalson 1995”); Matthew Chaskalson and Carole Lewis “Property” in Chaskalson et al Constitutional Law of South Africa Juta: Kenwyn, 1998, chapter 31 (“Chaskalson and Lewis”); De Koker and Pretorius “Confiscation Orders in terms of the Proceeds of Crime Act: some constitutional perspectives” (1998) TSAR 39, 277, 467 (“De Koker and Pretorius”); Johan de Waal et al The Bill of Rights Handbook 4ed, Juta: Kenwyn, 2001, chapter 25 (“De Waal et al”); Kleyn “The constitutional protection of property: a comparison between the German and the South African approach” (1996) 11 SAPL 402 (“Kleyn”); Murphy “Property Rights and Judicial Restraint: A Reply to Chaskalson” (1994) 10 SAJHR 385 (“Murphy 1994”), “Interpreting the property clause in the Constitution Act of 1993” (1995) 10 SAPL 107 (“Murphy 1995”); Roux “Constitutional Property Rights Review in Southern Africa: the Record of the Zimbabwe Supreme Court” (1996) 8 Afr J Int & Comp L 755 (“Roux”); Van der Walt, AJ and Botha, H “Coming to grips with the new constitutional order: critical comments on Harksen v Lane NO” (1998) 13 SAPL 17 (“Van der Walt and Botha”); Erasmus “Reconciling land reform and the constitutional protection of property: A look at jurisdictions without an official land reform programme” (2000) 15 SAPL 105 (“Erasmus”).
80Above n 70paras 70-71.
81Id para 72.
82“(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1).
(9) Parliament must enact the legislation referred to in subsection (6).”
83See, for example, sections 24 (in regard to the environment), 26 (housing), 27 (health care, food, water and social security) and 29 (education).
84Above n 79 at 15-16.
85Id at 16.
86Whatever disagreement there may be as to the outer limits of the meaning of “property” the writers accept that ownership of fixed property and movable corporeals must be included. Most do so implicitly while some do so explicitly such as, for example, De Waal et al above n 79 at 412-414; Lewis (1992) above n 79 at 397-399; Van der Walt (1999) above n 79 at 349-353.
87Above n 79 at 11.
88See also, for example, Budlender at 1-19 to 1-22 (Original Service 1998); Chaskalson and Lewis at 31-5 to 31-6 (Revision Service 2, 1998); Erasmus 135-6; Kleyn at 412-413, 417; Lewis 1992 at 430; Murphy (1994) at 389-392. See above n 79.
89Limiting the purpose for and the way in which property may be used, has always been a feature of urban development law, where the practice of “zoning” land for specific purposes is a prime example. (The following passage from para 324 of “Townships and Town Planning” by J Meyer in Law of South Africa Vol 28 (establishment volume) is illustrative of the situation in the past: “The content of town planning is, first, to accord a use right to each legally identifiable piece of land in a proclaimed township, dividing it into use zones such as residential; special residential; business; commercial and industrial; or even for educational or municipal purposes; parks; etc.”) Even in relation to agricultural land, legislative restrictions were placed on the sub-division of property (Sections 2 to 4 of the Subdivision of Agricultural Land Act 70 of 1970) and on the extent of permissible grazing and other use of the land in order to prevent its deterioration by, for example, soil-erosion (see, for example, section 6 of the Conservation of Agricultural Resources Act 43 of 1983, which provides that “the Minister may prescribe control measures which shall be complied with by land users to whom they apply”.)
90Gasus Dosier- und Fördertechnik GmbH v Netherlands  20 EHRR 403 at para 68.
91Above n 79 at 101ff.
92That this is so worldwide can be gleaned from the references and examples given by Van der Walt id at 112-4, 116-132 and Van der Walt (1999) above n 79, at 46-58; 77-81; 89-91; 105-114; 132-150; 176-183; 213-218; 235-241; 250-253; 259-262; 268-273; 293-304; 364-372;384-394; 410-440; 473-489.
93Above n 79 at para 31.6, p 31-14 (Revision Service 2, 1998).
“Expropriations, however, must satisfy two additional requirements: they must be performed pursuant to a public purpose (or, in the case of the final Constitution, in the public interest) and must be accompanied by the payment of just and equitable compensation.”
95Which, I repeat, reads:
“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”
96Beckingham v Boksburg Liquor Licencing Board 1931 TPD 280 at 282 and Johannesburg Liquor Licencing Board v Kuhn 1963 (4) SA 666 (A) at 671C.
97 3 All ER 433 (HL) 433 at para 28.
98Above n 79 at 422.
100Above n 79 para 31.5(b)(ii)(bb) at 31-13,14.
101Above n 79 1-34 to 1-36.
102S v Lawrence; S v Negal; S v Solberg 1997 (10) BCLR 1348 (CC); 1997 (4) SA 1176 (CC).