Merveille Imp and Exp (Pty) Ltd and Others v Apple Inc and Others

The applicants launched urgent proceedings seeking the release/return of a consignment of Apple-branded mobile phones imported from Dubai, which had been detained and later seized by SARS on suspicion of being counterfeit. SARS inspected the consignment under the Customs and Excise Act and, following verification by Apple’s attorneys, determined that a substantial portion of the phones and packaging were counterfeit. Authentic phones were released, while suspected counterfeit goods were detained and subsequently seized under the Counterfeit Goods Act. The applicants framed their relief as anti-spoliatory (mandament van spolie) relief against Apple and SARS, despite never having been in possession of the goods. They also failed to comply with the statutory notice requirements under section 96(1) of the Customs and Excise Act before instituting proceedings against SARS.

The application was dismissed on its merits. The applicants and their attorneys were ordered, jointly and severally, to pay Apple’s costs on an attorney-and-client scale, including the costs of two counsel. The applicants were further ordered to pay SARS’ costs on a party-and-party scale, including counsel’s costs on scale B.

The judgment reaffirms that compliance with section 96(1) of the Customs and Excise Act is a strict jurisdictional requirement for litigation against SARS. It clarifies that mandament van spolie is unavailable where an applicant was never in possession of the goods. The case also underscores the court’s intolerance of abusive urgent litigation and confirms its willingness to grant punitive and de bonis propriis costs orders against attorneys who misuse urgent court procedures.