Capri Oro (Pty) Limited and Others v The Commissioner of Customs & Excise and Others

The second appellant arrived at Johannesburg International Airport from overseas carrying 77 kg of jewellery belonging to the third appellant in his hand luggage. He intended to fly to Namibia later that day to offer the jewellery for sale. Due to a three-and-a-half hour delay, he obtained permission from a passport control official to leave the transit area to meet his father. He passed through the green 'nothing to declare' customs channel without declaring the jewellery. Once past the customs point, he was detained by police who seized the jewellery. The following day, additional jewellery was seized from the premises of the first appellant (the second appellant's employer). The appellants claimed the goods should be returned, arguing inter alia that the second appellant had not entered South Africa as he intended to proceed to Namibia, and that no offence had been committed.

• Whether goods brought into South Africa but not declared as required by section 15(1) of the Customs and Excise Act 91 of 1964 are liable to forfeiture under section 87(1) even where no offence has been alleged or proven
• Whether an intention to subsequently remove goods to another country negates the requirement to declare goods under section 15(1)
• Whether a person who leaves the transit area but remains within the airport precinct has 'entered' the Republic for purposes of the declaration requirement
• Whether the court has discretion to order return of seized goods or whether such discretion vests exclusively in the Commissioner under section 93
• Whether the knowledge or intention of the owner of goods (as opposed to the person carrying them) is relevant to liability to forfeiture under section 87(1)

The applications for condonation for late delivery of notices of appeal and failure to deliver notices in proper form were dismissed. The appellants were ordered, jointly and severally, to pay the costs of the applications for condonation and the costs occasioned by the appeal.

Goods brought into South Africa and not declared as required by section 15(1) of the Customs and Excise Act 91 of 1964 are liable to forfeiture in terms of section 87(1). An intention subsequently to remove the goods to another country is irrelevant to the operation of sections 87(1) and 15(1). Section 87(1) renders goods liable to forfeiture where they are dealt with contrary to the provisions of the Act OR where an offence has been committed - commission of an offence is sufficient but not necessary for forfeiture. A person who leaves the transit area of an airport and passes through customs has 'entered' the Republic and triggers the declaration requirement under section 15(1), regardless of whether they remain within the airport precinct. The purpose of section 15(1) is to enable customs officers to determine whether duty is payable and to prevent prohibited or restricted goods being brought into the country - this purpose applies regardless of the final intended destination of the goods. Under section 87(1), goods become liable to forfeiture wherever they may be if the prohibited or irregular acts have been committed, no matter who commits them and regardless of the knowledge or intention of the owner of the goods.

The Court assumed without deciding that an oral application for condonation made from the bar is competent. The Court noted that where circumstances show the true owner is innocent (such as where a thief seeks to export stolen goods), the Commissioner will exercise discretion in terms of section 93 to return the goods. The Court observed there is a fundamental distinction between a case that seizure took place in circumstances not sanctioned by the Act, and a case which accepts goods were legitimately seized but seeks to impugn the exercise of discretion vested in officials under section 88 or the Commissioner under section 93. The only ground upon which a court could declare a seizure invalid would be if it were made illegally - the court has no discretion regarding whether a breach was sufficiently serious to justify seizure and forfeiture, as such discretion vests in the Commissioner.

This case clarifies the scope and operation of the forfeiture provisions in the Customs and Excise Act, particularly sections 87(1) and 15(1). It establishes that goods may be liable to forfeiture even absent proof of a criminal offence, provided there has been non-compliance with the Act's provisions. It confirms that the intended destination of goods does not exempt travelers from the declaration requirement when entering South Africa. The case reinforces the limited role of courts in matters of customs seizure and forfeiture, emphasizing that discretion to return seized goods vests in the Commissioner, not the courts. It is an important authority on the strict liability nature of customs forfeiture provisions and the irrelevance of the owner's knowledge or intention where goods have been dealt with contrary to the Act.