Van der Merwe and Another v Taylor and Others

Mr Gary van der Merwe was stopped at Cape Town International Airport while departing South Africa and found in possession of €130 000 and US$21 249 in cash. SAPS officials arrested him on suspicion of contravening exchange control regulations and seized the currency. SARS subsequently issued a notice under section 99 of the Income Tax Act appointing the investigating officer as Van der Merwe’s agent, despite no proven tax liability, and the money was handed to SARS and later transferred to the South African Reserve Bank. Van der Merwe sought urgent relief in the High Court for the return of the currency, ultimately pursuing a rei vindicatio for the €130 000 which he claimed to own. The High Court and the full bench dismissed his claim, holding either that the money had been forfeited under exchange control regulations or that ownership had not been proved.

Leave to appeal was granted, but the appeal was dismissed. The applicants were not entitled to the return of the €130 000.

The case clarifies that disputes over State seizure and retention of property engage constitutional property rights under section 25(1). It affirms the strict requirements of the rei vindicatio in South African law and underscores that ownership must be clearly proved before a court will order the return of seized property. The judgment also criticises inconsistent conduct by State organs when justifying seizures.