It’s official: owners of imported vehicles sporting Lesotho, Botswana and eSwatini number plates can drive freely and unhindered on South Africa roads.
Last week the Supreme Court of Appeal (SCA) threw out an appeal by the South African Revenue Service (Sars) against an earlier judgment in the Free State High Court, brought by Ficksburg resident Joaquim Alves, whose Nissan Serena station wagon was impounded by customs officials in 2019.
The case also has huge potential impact on local car manufacturers who rely on import protection from the kind of cheap Japanese-made imports found in neighbouring countries like Lesotho and Botswana.
Alves’s vehicle, which has a Lesotho number plate, was being driven by a friend in the Lesotho border town of Ficksburg when customs officials stopped the driver and asked to see the import permit.
Alves raced to the scene and argued with the customs officials that the vehicle was legally registered in Lesotho, and hence no import permit was required.
These arguments fell on deaf ears, and the customs officials impounded the vehicle.
Believing the law was on his side, Alves went into the municipal pound in Ficksburg to retrieve his vehicle.
A few hours later the police arrived at his door and charged him with the theft of his own vehicle.
They locked him up in a cell for the weekend, until the local magistrate ordered him released on the Monday morning and later ordered that the vehicle be released.
Moneyweb covered the story as it unfolded.
A furious Alves decided to take Sars to court, and he won his case in the High Court in Bloemfontein in 2019. Sars appealed the case all the way to the SCA, losing all the way.
The SCA ruling last week reads: “The application for special leave to appeal [by Sars] is dismissed with costs on the grounds that the requirements for special leave to appeal are not satisfied.”
Mkhosi Radebe of MC Radebe Attorneys in Pretoria, who is representing Alves in the case, says Sars is now out of options to take its legal argument any further, though there is a possibility it may ask the SCA for a “reconsideration” of its ruling.
“[It] is an outrage that this kind of reckless and adventurous litigation by Sars is being paid for by taxpayers, with no consequence for the bad legal advice it is following,” says Radebe.
“Who in Sars is making these decisions and why are they not being held to account? Let’s be clear about this: Sars is not above the law and must be held to account for its behaviour and the behaviour of its officers.
“What happened to my client Mr Alves is an act of thuggery, and I must emphasise that his vehicle has still not been released by Sars,” says Radebe.
“Our costs so far in this case, which Sars – and therefore taxpayers – are required to repay are north of R1 million, which is a fraction of what Sars itself has run up in this frivolous and wasteful case.
“Taxpayers should be asking how responsibly Sars is spending their hard-earned money by chasing down futile cases like this.”
Ironically, the original cost of vehicle was about R40 000, a fraction of the legal bills spent on the case – which Sars must now refund to Alves.
In its court filings, Sars argued that Alves’s vehicle had been seized in terms of Section 88 of the Customs and Excise Act, and that it had acted lawfully and reasonably in terms of the act. It also argued that the seized vehicle was an import for which an import permit was required.
Alves’s legal team replied that the customs officials had no reasonable suspicion that the act was being violated when they stopped the Nissan Serena in the first place, and the indefinite seizure of the vehicle was unlawful.
Lesotho falls under the Southern African Customs Union (SACU), which links member states by a single tariff and with no customs duties between them, and could therefore travel freely on South African roads.
Section 88 of the Customs and Excise Act allows any officer, magistrate or member of the police to “detain any ship, vehicle, plant, material or goods at any place for the purpose of establishing whether that ship, vehicle, plant, material or goods are liable to forfeiture under this act”.
Radebe says this clause is so badly worded and open-ended that any South African driving their locally-purchased vehicle could be subject to the same treatment as Alves, which would violate constitutional protections against arbitrary deprivation of property.
The Free State High Court’s finding, followed by the SCA ruling, provides clarity on the existing law rather than breaking new legal ground, says Radebe.
Sars official reinstates theft charges against Alves
Alves told Moneyweb that one of the customs officials involved in the case has reinstated theft charges against him for removing his own car from the Ficksburg pound.
“This is just malicious intimidation by a Sars official who has been caught out acting unlawfully himself, now trying to save his reputation,” he says.
“How can you be charged with stealing your own car? And how can it be theft when multiple judges have ordered Sars to return the vehicle to me, and Sars has yet to comply.”
Radebe says one positive outcome from the case is that there are fewer seizures of vehicles with foreign number plates by Sars, and several vehicles under seizure are being returned to their owners.
“The case has definitely had some positive effects,” he says.
“The law has now been clarified. If you own a vehicle, no matter where it was manufactured, and it has been imported into the SACU area, you are free to drive it without hinderance anywhere in the common customs area.
“We are now preparing a class action suit against Sars for the tens of thousands of vehicles unlawfully impounded over the years.”