It’s official: owners of imported vehicles sporting Lesotho, Botswana and eSwatini number plates can drive freely and unhindered on SA roads. This after the SCA threw out an appeal by SARS against an earlier judgment in the Free State High Court, brought by Ficksburg resident Joaquim Alves, whose vehicle was impounded by customs officials in 2019, notes a Moneyweb report.

Alves’ 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. 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.

Alves decided to take SARS to court, and he won his case in the High Court in 2019.

SARS then appealed to the SCA, which dismissed its application with costs ‘on the grounds that the requirements for special leave to appeal are not satisfied’.

Mkhosi Radebe, of MC Radebe Attorneys in Pretoria, said: ‘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. Our costs so far in this case, which SARS – and therefore taxpayers – are required to repay are north of R1m, which is a fraction of what SARS itself has run up in this frivolous and wasteful case.'

In its court filings, SARS argued that Alves’ 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, notes Moneyweb.

Alves’s legal team replied that the customs officials had no reasonable suspicion that the Act was being violated when they stopped the vehicle 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 SA 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, said Radebe.

‘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.’

Full Moneyweb report