1constitutional court of south africa



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Goods subject to detention and sale under section 114

The goods subject to detention and sale under section 114(1)(a)(ii) fall into the following five categories:


(i) any goods in a customs and excise warehouse or in the custody of the Commissioner (including goods in a rebate store room) and belonging to the customs debtor;

(ii) any goods afterwards imported or exported by the customs debtor;

(iii) any imported goods in the possession or under the control of the customs debtor or on any premises in the possession or under the control of the customs debtor;

(iv) any goods in respect of which an excise duty or fuel levy is prescribed (whether or not such duty or levy has been paid) and any materials for the manufacture of such goods in the possession or under the control of the customs debtor or on any premises in the possession or under the control of the customs debtor;

(v) any vehicles, machinery, plant or equipment in the possession or under the control of the customs debtor in which fuel in respect of which any duty or levy is prescribed (whether or not such duty or levy has been paid), is used, transported or stored.

By virtue of section 114(3) such goods would include the container of such goods.



Section 114(1)(a)(ii) authorises the detention of the goods, and stipulates that such goods shall be subject to a lien until the debt is paid. Section 114(1)(b) provides that the claims of the State shall have priority over the claims of all other persons upon anything subject to a lien, and may be enforced by sale of the goods referred to above or by other proceedings if the debt is not paid within three months after the date on which it became due.
Section 114 clearly authorises the detention and sale of the goods of third parties, that is persons who do not owe the section 114 debt to the state.32 Only the first category of goods requires the goods to belong to the debtor.
In relation to the second category, there need be no physical or other nexus between the goods belonging to a third party and the customs debtor; the only requirement is that the goods must have been imported or exported “afterwards” (presumably after the customs debt with which section 114(1)(a)(ii) is dealing, arose) by the customs debtor. In relation to the fifth category the only nexus required by the section between the goods of third parties and the customs debtor to render such goods subject to detention and sale by the Commissioner, is “possession or control” by the customs debtor; and as far as the third and fourth categories are concerned “possession or control” by the customs debtor or the presence of such goods “on any premises in the possession or under the control” of the customs debtor.
In the context of section 114 the concept “possession or control” is of wide signification. The Act seeks to spread the enforcement and recovery wings of the Commissioner as widely as possible. It is trite law that possession of a movable requires both physical control (detentio) and the necessary state of mind (animus).33 When used in a statute the context will determine what state of mind is required for possession in terms of such statute.34 At common law a distinction is drawn between civil possession and natural possession. Under the former the state of mind required by the controller is that of keeping the article for herself as if she were the owner; under the latter it is sufficient if control of the article is for her own purpose.35 In the case of other statutes “possession” has been construed to mean physical control plus the intention to control, either for the possessor’s own purpose, or on behalf of another; in the latter case little more than conscious physical detention, custody or control is required.36 Where, as in the present case, the critical phrase conjoins “possession and control”, this would cover not only an intention to control for the possessor’s own purpose but also mere conscious physical detention, custody or control.37 In the case of the third and fourth categories above, the net is cast even wider, for all that is required is the presence of the goods in question “on any premises in the possession or under the control” of the customs debtor. The customs debtor need only be in possession or control of the premises, not of the thing itself; in fact she could be unaware of the presence of the thing on the premises in question.



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