De Beers Marine (Pty) Ltd v The Commissioner for the South African Revenue Service

De Beers Marine (DBM), a South African company registered in Cape Town, owned six vessels engaged in exploring for and recovering diamonds from the seabed off the coast of Namibia. The vessels spent extended periods at sea, sometimes over two years, before returning to Cape Town for refits. DBM arranged for bunker fuel to be delivered to these vessels at sea by a tanker (the Argun) during three voyages in 1997. Prior to delivery, the fuel was stored at Caltex's licensed customs warehouse. DBM completed Form DA25 for each voyage, entering the fuel as being 'for export' with the country of final destination listed as Congo or Gabon. The fuel was delivered at a rendezvous point approximately 50 nautical miles from the South African coast, over the South African continental shelf at a depth of about 180 metres. This location was deliberately chosen to deal with South African rather than Namibian authorities in case of pollution incidents. Although the rendezvous point was south of the boundary line between South African and Namibian marine concessions, DBM's vessels were operating in Namibian concession areas at the time. The vessels crossed the boundary specifically to receive fuel, then returned to Namibian waters where the fuel was largely consumed over the Namibian continental shelf. The Commissioner for SARS assessed excise duties and fuel levies on the bunker fuel. DBM challenged this assessment, arguing the supply constituted 'export' and therefore was not subject to these charges.

• Whether the supply of bunker fuel to South African vessels on the high seas constitutes 'export' for purposes of section 20(4)(d) of the Customs and Excise Act 92 of 1964
• Whether 'export' means simply 'take out of the Republic' or requires 'take out of the Republic for import into another country for commercial purposes'
• Whether delivery of fuel over the South African continental shelf, as defined in the Maritime Zones Act 15 of 1994, is 'deemed to be part of the Republic' for purposes of section 5(b) of the Customs and Excise Act
• Whether consumption of fuel over the Namibian continental shelf qualifies as 'home consumption' given that Namibia forms part of the 'common customs area' with South Africa
• The proper interpretation of sections 5(b), 18A and 20(4) of the Customs and Excise Act 92 of 1964

The appeal was dismissed with costs, including costs of two counsel. The decision of the High Court (Duminy AJ) in favour of the Commissioner was upheld. Excise duties and fuel levies remained payable on the bunker fuel supplied to DBM's vessels.

'Export' in section 20(4)(d) of the Customs and Excise Act 92 of 1964 means more than simply 'take out of the Republic'; it requires two sequential elements: (a) physical removal from South Africa; and (b) use or consumption not in South Africa (foreign consumption). Foreign consumption postulates delivery to a foreign destination. The supply of bunker fuel on the high seas to non-foreign-going vessels belonging to a South African company and operating out of a South African port does not constitute delivery to a foreign destination and therefore does not qualify as 'export' for purposes of section 20(4)(d). Such supplies are subject to excise duties and fuel levies as they do not meet the second conceptual element required for 'export'. The purpose of the removal from the customs warehouse determines whether the transaction constitutes 'export' or 'home consumption', and these concepts are antithetical under section 20(4).

Section 5(b) of the Customs and Excise Act, which deems the continental shelf as defined in the Maritime Zones Act to be part of the Republic, is primarily concerned with giving South Africa exclusive rights in exploration and exploitation of seabed resources. The deeming provision is intended for purposes such as those addressed in sections 5(c) and (d) (relating to installations and devices for exploring or exploiting natural resources) rather than for the general purpose of section 20(4). The slant the Commissioner sought to place on section 5(b) likely goes beyond what the Legislature intended. The Namibian continental shelf is not incorporated into the Republic through the common customs area provisions such that consumption of fuel over that shelf would automatically qualify as 'home consumption' in the Republic. Article 78 of the United Nations Convention on the Law of the Sea (LOSC), which concerns the legal status of superjacent waters above the continental shelf, does not have direct bearing on the enquiry under section 5(b) of the Customs Act, as that provision does not purport to interfere with the legal status of waters above the continental shelf but merely extends the area of operation of appropriate provisions of the Customs Act.

This case provides authoritative guidance on the meaning of 'export' in the context of the Customs and Excise Act 92 of 1964, particularly section 20(4)(d). It establishes that 'export' requires more than mere physical removal from South Africa – it requires delivery to a foreign destination for foreign use or consumption. The judgment clarifies that the antithesis of 'home consumption' is 'foreign consumption', and that these concepts are mutually exclusive for purposes of the Act. The case demonstrates the importance of purposive statutory interpretation in tax legislation, rejecting simplistic dictionary definitions in favor of contextual analysis. It also provides important obiter guidance on the scope and application of section 5(b) of the Customs Act relating to the continental shelf, suggesting that the deeming provision that the continental shelf is 'part of the Republic' is primarily intended for regulation of seabed resource exploitation rather than general customs purposes. The decision has implications for the taxation of marine operations and the supply of bunkers to vessels, clarifying when such supplies attract excise duties and fuel levies. It also touches on complex issues of maritime zones, the common customs area with Namibia, and the interaction between South African and international maritime law.