CIV/T/436/2008
In the matter between:
AND
THE MANAGER ANTI-SMUGGLING 1ST RESPONDENT
THE COMMISSIONER OF CUSTOMS
AND EXCISE 2ND RESPONDENT
THE ATTORNEY-GENERAL 3RD RESPONDENT
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 17th NOVEMBER, 2009.
I have already given an ex temporae judgment in this case on the 17th November, 2009 dismissing the Application with costs. I promised to write a full judgment later and this now is the judgment.
The main prayer in these proceedings was the release by the Respondents of an Isuzu truck, white in colour bearing the following particulars:-
(a). Engine no. 6HH1 – 208046
(b). Chassis no. FSR 33H2 – 3000122
which Applicant claimed to have bought around 9th November, 2008.
Applicant showed in his founding Affidavit that when the vehicle arrived in Lesotho, he duly followed the relevant procedures of having the truck declared and paid the requisite tax duties. He had attached documents as proof of what he alleged.
Annexure “PK1” page 11 of the record according to the Applicant, is the Custom and Excise Clearance Certificate, Annexure “PK2” page 12 of the record, the value added Tax Certificate, Annexure “PK3”, page 14 of the record, the Tax Receipts and the Tax Declaration form (SAD 500) Annexure “PK4” page 16 and 17 of the record. All those documents were prepared and signed for or issued by the officers of the first and second respondents, and bare the date stamp of first and second Respondents.
Applicant has further shown in his papers that whilst he was going through the process covered by Annexure “PK1” to “PK4” he had left the vehicle in question with his friend and business associate one Khurshed Ahmed in Mohale’s Hoek. He said he learned later from his friend that the aforesaid vehicle had been seized by the Mohale’s Hoek Police for using false number plates or false documents. But Applicant was taken aback as no one had up to that stage, or at least still he instituted these proceedings, been charged with offences relating to that registration or documents.
According to the Applicant the vehicle remained with police till when he was informed that it had been taken from the police by officers of first and second Respondents. Applicant had then approached the officers of the Lesotho Revenue Authority with the documents for the said vehicle but he said they did not even allow him to produce such documents but only accused him of evading tax and cheating the government. Applicant has attached Annexure “PK 5”, a Detention form by Customs and Excise indicating that the said truck was detained for failing to pay or produce proof of payment of customs and Excise Duties. The vehicle was not yet registered when it was so detained according to the Applicant.
The Respondents’ case on the other hand has been that the Applicant has been instrumental in the registration of the same vehicle as evidenced by a Registration Certificate in the names of Lenka L at page 55 of the record. The allegations being that Applicant had registered the vehicle even before he bought it. They argued further that the said vehicle has been used here in Lesotho, for eleven months before paying for its taxes and duties.
The Respondents were saying that though Applicant has alleged in his papers that he had bought his vehicle around 9th December 2008, but annexure “TJ1a” attached to their answering papers showed that the same vehicle was bought on the 11th January 2008.
Responding to Annexure “TJIa” Applicant contended that the document could not be taken as proof of sale but only showing an intention to buy which would only become affective upon payment of the purchase price. The price on the document is even reflected in Dollars.
It would be worth noting that it has not been established as to where Annexure “TJ1a to TJ1g” came from. In their heads of argument Respondents argued that Applicant has failed to deny that Annexures “TJ1a – TJ1g “were submitted by him, alternatively on his behalf for purposes of accessing how much customs duties and VAT were payable with respect to his vehicle. Respondents have not specifically said the papers were found with the Applicant.
But again, looking at the response by the Applicant at page 113 of the record in reply, he has not shown that he knows nothing about Annexures “TJ1a” and others as “TJ11”. To confirm that he knew about such annexures, he has shown that he infact was not the importer of the vehicle in question but Khurshed as shown in annexure “TJ11”. Also that the description of the vehicle in annexure “TJ11” is the same as that of the vehicle in question as shown by the Applicant in his annexure “PK1” at page 11 of the record. “PK1” which but indicated that the Applicant was the importer of the same vehicle.
Further, Applicant in his Replying Affidavit at page 113 of the record has accepted that there has been non-compliance with the Provisions of Section 39 (1) of Custom and Excise Act 10 of 1982, (the Act) but contented that the 2nd Respondent was estopped from alleging otherwise as his officers had all the same issued him with the Customs Clearance Certificate
Annexure “PK1” to his founding papers.
Section 39 (1) (a) reads:-
“Every importer of goods shall within seven days of the date on which such goods are in terms of Section 10, deemed to have been imported or within such time as the Director may allow, make due entry of those goods, in the form prescribed, and declare to the truth of such entry.”
Section 10 (1)
“for the purpose of this Act all goods consigned to or brought into Lesotho shall be deemed to have been imported into Lesotho.”
It has not been disputed that the vehicle was brought to Lesotho from Durban. The Respondents have alleged in their papers that Applicant’s vehicle was imported or dealt with contrary to the provisions of the Act and that in terms of Section 88 (1) of the Act the vehicle was and still is liable to forfeiture and could as a result still be detained. That section prescribes that imported goods irregularly dealt with are liable to forfeiture. Applicant as shown earlier on has owned up to having not complied with the Provision of Section 39 of the Act.
Applicant at paragraph 8 of his founding affidavit pointed out that when the vehicle in question arrived in Lesotho he followed the relevant procedures of having it declared and paid the requisite tax duties. At Paragraph 9 of the affidavit he said when all the above was being done, that is going through that process, he had left the vehicle in the care and custody of his business associate and friend one Khurshed Ahmed in Mohale’s Hoek.
What Applicant said above tend to confirm what was deposed to by Motsilisi Thuhloane, Senior Customs Officer in the supporting affidavit, also the supporting affidavit of Police Officer None None working at Interpol showing that the vehicle in question was never brought before his office for inspection and clearance. Mhlontlo Zally, Principal Vehicle Examiner, also showed that the vehicle was never taken to Maseru Traffic Vehicle Testing Station for inspection. Hlalele Rampai of Criminal Investigation Division also showed that the vehicle was never brought to their office for inspection and clearance.
Tsiu Makunya on the other hand stated in his supporting affidavit that he issued the said vehicle with a Value Added Tax Clearance Certificate because he was shown the vehicle’s Lesotho Registration Certificate unaware that Value Added Tax and custom duties were not paid before such registration. The documents reflected that the vehicle had been registered on the 9th January, 2008.
Relying on the statement by the Applicant in his founding affidavit where he said as he was going through the clearance process he had left the vehicle behind with a friend, the question to be asked would be how was that possible to go through the process in the absence of the vehicle? It was gleaned from the papers filed that for clearance process to be conducted there has to be an inspection of the vehicle in question.
Applicant’s papers filed of record only start from the time when he was dealing with the vehicle having already entered the country. The Respondents on the other side have filed papers which showed where the vehicle originated and when and how it ended up being in Lesotho.
What also is of importance in this case has been that both the Applicant and the Respondents have attached to their papers a detention form “PK5” (page 19) and “TJ11” (page 67) respectively. It is one and the same form from Customs and Excise Division. The document reflects that when the vehicle in question was so detained it already bore the registration number AL 346. Applicant only said he was not party to the registration of the vehicle, without necessarily denying that the vehicle was in fact registered. It was for the Applicant to convince the court on the papers filed that he truly and honestly followed the provisions of the Act in importing the vehicle into this country but has failed.
Relying on the authority of Plascon Evans Paints ltd v van Riebeck Paints (pty) ltd billed 1984 (4) S.A. 623 at 634 the court had to prefer the version of the Respondents to that of the Applicant. In fact the Respondents relying on Plascon’s case and other authorities, asked the Court to assume the correctness of the version put forward by them. They argued that because there was variance between their version and that of the Applicant in a
matter brought by way of motion proceedings, which proceedings were designed to secure a final relief, their version had to be believed. I wouldn’t agree more with that line of argument.
M. HLAJOANE
JUDGE
17th NOVEMBER, 2009.
For Applicant: Mr. Nathane
For Respondent: Mr. Lichaba
