NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG COURT,PRETORIA

CASE No. 59460/2009
49806/2009
DATE: 29/10/2010

In the matter between:

and
COMMISSIONER FOR THE SOUTH AFRICAN

JUDGMENT

Van der Byl, AJ:-
Introduction
[1] In this matter the Applicants seek, in addition to the usual order of costs, an order -

[4] I find it convenient to refer, because of some disputes between the parties, beforehand to the facts set out in the answering affidavits filed by or on behalf of the Respondents.

[5] On 24 July 2009 the Second and Third Respondents in the course of their duties conducted in terms of section 4(4)(a) of the Act inspections at 10 gambling establishments in the North West Province belonging to the one, the other or all of the Applicants. Because gambling machines are not manufactured in South Africa, they requested the persons in charge of the establishments to produce import documentation relating to the gambling machines found on the premises, but they were unable to do so. They, however, promised and undertook to furnish such documentation within a few days.

It is apparent that there is no such section in the Act, but in so far as it may have been intended to be a reference to section 4(8A), that section is inapplicable to the situation in hand.

[6] On 12 August 2009, when the documents requested were not forthcoming, they again visited the premises and proceeded to detain 702 gambling machines found on the premises of which, as I already indicated, 432 were removed to the State warehouse in Pretoria as there were not sufficient space on the trucks that had been commissioned to convey the machines and directed the detention of the remaining 270 machines on the premises.

On this occasion a similarly worded letter dated 12 August 2009 was handed to the persons in charge of the premises.
In a letter addressed to the Applicants the next day, it is indicated -

[7] The Applicants, thereupon, together with two other persons, on 14 August 2009 launched an urgent application under Case No. 49802/2009 enrolled for 17 August 2009 seeking relief similar to the relief claimed in this application.
As in this application no distinction was drawn between the machines that were still detained and those that were released.

[8] The First Respondent had in the meantime conducted, with the assistance of the North West Gambling Board, an investigation in locating the relevant serial numbers on the machines and eventually established that the machines, except for 28 of the machines, were older than five years so that the Applicants were, if regard is had to section 102 of the Act, read with rule 101.01, not obliged to produce any documents in respect of those machines. A letter dated 14 August 2009 was, thereupon, addressed to the Applicants in which they were informed that 674 of the machines were for that reason released from detention and will as from 17 August 2009 be returned to the Applicants.

[9] In view of these developments the Applicants decided to remove the matter from the roll.

[10] In order to return the machines which had been released the First Respondent, thereupon, encountered a problem to return the machines as both the Gauteng and the North West gambling legislation, read with section 9(1 )(a) of the National Gambling Act, 2004 (Act 7 of 2004), required the authorisation of the respective gambling boards to transport the various gambling machines back from Pretoria to the North West Province.

[11] As the First Respondent was unable to obtain such authorization it was suggested to them through the State Attorney that the Applicants should themselves approach the respective boards for such authorisation.

[12] The Applicants, however, ignored the suggestion and instead on 21 August 2009 launched an urgent application under the same case number, set down for 25 August 2009, seeking an order to the effect -
(a) that the First Respondent's notification of the release of the machines dated 14 August 2009, on the basis or assumption that the First Respondent conceded unlawfulness of the detention of the machines and that such notification constituted a settlement agreement, be made an order of court; and
(b) that the First Respondent be directed to immediately restore possession of the machines that were no longer detained.

[14] On 25 August 2009, being the date on which the application was set down, the North West Gambling Board and the Casino Association of South Africa launched applications to join as the Fourth and Fifth Respondents which applications were granted by Phatudi J and directed them to file their answering affidavits before or on 15 September 2009.

[15] On 15 September 2009 the North West Gambling Board filed its answering affidavit in which it contended -

[18]    The Fourth Respondent, the North West Gambling Board, then enrolled the application launched on 14 August 2009 as well as this application for hearing. The Applicants, however, at the commencement of the hearing of those applications withdrew the application launched on 14 August 2009 and tendered the costs incurred by the Respondents in respect of that application.

[19] The hearing, thereupon, proceeded before me in respect of the application launched on 25 September 2009.

The Applicants' submissions

Relevant legal principles

[28] In terms of section 4(4)(a) of the Act an officer employed on any duty relating to customs and excise may for purposes of that Act, without previous notice, at any time enter any premises whatsoever and to conduct at such premises any examination he or she deems necessary and require the production of documents that relate to matters dealt with in that Act.

[30] In terms of section 88(1 )(a) of the Act an officer may detain any goods at any place for the purpose of establishing whether such goods are liable to forfeiture under that Act.

[31] Section 87 of the Act deals with the circumstances under which goods will be liable to forfeiture. In terms of subsection (1) of that section any goods imported or otherwise dealt with contrary to the provisions of the Act or in respect of which any offence under the Act has been committed shall be liable to forfeiture wheresoever and in possession of whomsoever found.

[33]    It is apparent from these provisions that any officer employed on any duty
relating to customs and excise is duly authorized -

[34] It is, as I have already indicated, the First, Second and Third Respondents' case that they indeed at all times acted by virtue of the powers vested in them by these provisions.

"In Nino Bonino v de Lange (1906, T.S. 120) INNES C.J stated the law in the following terms: 'It is a fundamental principle that no man is allowed to take the law into his own hands: no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable.' That is the principle in concise language as stated in all the books. The appellant accuses the respondent of a delict, and to succeed he must therefore satisfy the Court not only that he was in possession at the time of ejection (which has not been denied), but also that instead of invoking the proper machinery of the Court, the respondent took the law into his own hands and by force, or by other unlawful means, wrongfully and unlawfully deprived him (the appellant) of possession by sending the cattle to the pound. This the appellant has failed to establish, and is not in a position to establish. For by setting the machinery of the Pound Ordinance into motion the respondent cannot, in any aspect of the matter, be said to have taken the law into his own hands. In sending the cattle to the pound he merely invoked the aid of the law of the land in his dispute with the appellant. If he has unlawfully impounded the cattle, he is liable in damages to the owner......and he would be so liable if, when the issues in dispute between the parties come to be tried, it is found that the cattle were not trespassing, for according to sec. 18 (1) of the Ordinance only cattle found trespassing may be sent to the pound. The decision made by himself that the cattle were trespassing, and the fact of acting upon that decision by sending the cattle to the pound, does not constitute taking the law into his own hands. The Pound Ordinance does not provide any machinery to determine there and then whether or not cattle are trespassing, and the owner of the land must of necessity, therefore, make Lip his mind whether they are or not, taking the risk of being mulcted in damages if he comes to a wrong conclusion. But to hold that under such circumstances he is taking the law into his own hands would be to lay down the absurd proposition that in every case where the owner of cattle, at the time of trespass, chooses to deny that the cattle are trespassing he would be entitled to a mandament van spolie if his cattle are then impounded.'.

[37] By analogy this is what occurred in this matter. The First, Second and Third Respondents invoked the relevant provisions of the Act in detaining the machines in question and by having done that it cannot be said that what occurred since 24 July 2009 until the detention was lifted that they took the law into their own hands.

[39]    It accordingly follows that the Applicants approached the Court on a wrong remedy in an application which does not contain sufficient facts and which seeks, if regard is had to the fact that the First Respondent cannot transport the machines without the prescribed authorization, impossible relief.

[41]    On these facts I am satisfied that the Applicants were not wrongfully or
unlawfully dispossessed of the machines in question.

[42] In view of the conclusion I have reached in this regard it is not necessary to deal with the other issues raised on behalf of the Applicants.

[43] In so far as I may be wrong in relation to those conclusions, I may point out that the contents of the letters dated 24 July 2009 and 12 August 2009 do not in my opinion detract from the lawfulness of the Respondents' actions.

The contention that the letters contain an indication that there was a reasonable ground for believing that customs related documents or goods are kept on the premises is not without any substance. It is clearly stated in the Applicants' papers that because gambling machines are not manufactured in South Africa and must accordingly be imported, hence the request that documentation be produced relating to such importation and any duties paid thereon. This is in my opinion clearly a reasonable ground for their belief. The First Respondent has indeed wide powers of inspection and I fail to see why he should have any reasonable ground for believing that documents or goods are kept on any premises before exercising any of those powers In so far as a reasonable belief is a prerequisite for the exercise of the powers vested in section 4(4)(a) I can see no reason why the person concerned should be informed of the grounds on which such belief is based. There is accordingly also no reason why the contents of the letters should detract from the validity of the Respondents actions. The incorrect references in the letters were in any event corrected the next day. I am in any event satisfied that the persons in charge of the respective premises were duly informed of what was expected from them.

[44] There are also two other issues which were dealt with in argument, namely, whether an order can be granted for the return of the machines where the Applicant's possession of the machines is unlawful.

As far as the second of these issues is concerned there is the fact that the Applicants are not in law entitled to possess the machines.

[48]    In summary I am of the view -

P C VAN DER  BYL,AJ:-
ACTING JUDGE OF THE HIGH COURT

ADV N JAGGA

On the instructions of:
HENK WISSING ATTORNEYS
c/o SHAPIRO & SHAPIRO

20 Bureau Lane

Tel: (012)328 5847

ON BEHALF OF THE FIRST, SECOND AND

ADV T KHATRI

Bothongo Heights

167 Andries Street 
PRETORIA
Ref: 5030/09/Z30 (Mr. D C du Toit)

ADVZ MATEBESE

Suite 18/7A, 

Ref: Mr. S S Mketsu 
Tel: (012) 322 4660

ON BEHALF OF THE FIFTH, SIXTH AND SEVENTH