Can you drive a vehicle imported into Lesotho on South African roads?

The South African Revenue Service (“SARS”) is feared by many for their relentless tendency to impound vehicles with foreign number plates in South Africa. In the recent Supreme Court of Appeal case of SARS v Alves the absolute power that SARS has held in the former years might be a reign that has now come to an end.

South African Law

Section 88 of the Customs and Excise Act states that any SARS officer, magistrate or police officer is empowered to detain any ship, vehicle, plant, material or goods at any place for the purpose of establishing whether they are liable to forfeiture. An officer who has conducted the detainment will be awarded 30 % of the commission from the penalty that a detainee will have to pay in order to retrieve their vehicle. Over the years this has been the main piece of legislation on which SARS has relied on to detain foreign registered vehicles. Owners of vehicles that have been imported and registered in any Southern African Customs Union (“SACU”), are allowed to drive in South Africa without an import permit on South African roads. The Southern African Customs Union includes countries like Lesotho, Botswana, Namibia, Swaziland and South Africa.

SARS v ALVES

In the SARS v Alves case Alves borrowed his car to a friend who was then pulled over by SARS customs officials and the car was impounded in Ficksburg, South Africa. SARS argued that the car did not have an import permit and they suspected that import duties had not been paid. Alves contested this and stated that the vehicle was duly registered in Lesotho and he proceeded to remove his vehicle from the municipality lot where it was being held. He was then charged with theft and held in custody for a weekend after which he was released.

SARS then seized the vehicle and held it in its custody for months until Alves pursued a claim to have the vehicle released. The charge of theft was later withdrawn against Alves.

Alves approached the Free State High Court in 2019 and was successful in his claim. The court also held that SARS should return Alves’s car within two days as SARS did not lodge a thorough investigation within a reasonable time. The court held that SARS acted unreasonably, arbitrary, and unlawful. SARS responded by applying for special leave to appeal to the Supreme Court of Appeal (“SCA”). The SCA dismissed the petition for leave to appeal and held that the appeal had little to no prospect of success as the court of first instance was correct in their findings on merit and law.

SARS v Alves judgement: Implication
The implication of the judgement in SARS v Alves is that SARS will have an onus to investigate incidents where it believes a vehicle is not duly registered and for it to release a vehicle within a reasonable time. This means that SARS is obliged to make sure a vehicle it seeks to impound under the empowering provision, section 88 of the Customs and Excise Act, is not duly registered before issuing a penalty or detaining a vehicle for an extended period.  The court found that SARS affected Alves’s right to his property, which is in terms of section 25 of the Constitution of South Africa “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”. The vehicle was detained without investigation for months, in the courts view this a problematic approach and an abuse of SARS’s powers.

Conclusion:

Although the court did not amend the law it aided those who will be in similar situations to that of Alves. Often vehicles are detained, and many people are unable to afford the hefty fines that are issued to them by SARS officials. In this case, Alves had a Nissan Serena valued below R50 000 and had to pursue a legal suit that amounted to over One Million Rand in legal costs. Foreign registered vehicle owners within the SACU often do not have the legal knowledge or finances to protect their rights. This case gives hope to those who have foreign registered cars and allows a progressive way for recourse. Furthermore, should you own a vehicle and it has been imported into the SACU area, you are free to drive it anywhere in the common customs area.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.