Why Judge Mamba ordered Cigarettes release
HIGH Court Judge Mbutfo Mamba says the suspension of Tanya Investments (Pty) Limited's licence adversely affects its existing rights to carry out business as a Bonded Warehouse.
HIGH Court Judge Mbutfo Mamba says the suspension of Tanya Investments (Pty) Limited's licence adversely affects its existing rights to carry out business as a Bonded Warehouse. The judge, handing a full judgement, said such rights may never been taken away from the licence without a hearing and at the whim of the Customs & Excise Department. Justice Mamba said the court, had, however, not been called to make any declaration, determination or finding pertaining to the suspension of Tanya's trading licence. "The applicant (company), seeks a spoliation order; that is to say, the goods removed from its possession and custody be restored to its possession," he said. "One notes again that the Act requires the first respondent (Customs) to state the period within which a licence is being suspended. The suspension may, therefore, not be indefinite. "In casu (in this case), the notice of suspension merely advises the applicant that the suspension is with effect from the 23rd February, 2008 and what is to happen to the goods pending completion of investigations." On Tuesday, the High Court issued an order directing government to release E17 million worth Cigarettes belonging to Tanya Investments (Pty) Limited. Judge Mbutfo Mamba said accepting for the moment that the respondent (government) was investigating the general operations of the company, there was nothing in the papers before him indicating that the goods detained were in any way the subject matter of the pending investigations. "The sole reason for detaining the goods by the first respondent is that, the applicant's licence having been suspended, the applicant has no lawful right to deal with the goods as a Bonded Warehouse," he remarked. "That may be true, but I do not think that it is necessary or automatically follows that the applicant is not entitled to even to the mere possession and custody. "For instance, the applicant may have the physical custody of the goods under an embargo by the respondents as contemplated in Section 108." The judge then ruled that seizure and detention of the goods by the Customs & Excise Department and the police force was unlawful. The application for the release of the 5 000 boxes of Cigarettes was brought by one of the directors of the company, Peter Matsimbe, who argued that the goods were confiscated without a court order. Appearing for the company was lawyer Mduduzi Mabila while Deputy Attorney General Mzwandile Fakudze represented government.