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

On 19 July 2025, a consignment of 788 iPhones imported from Dubai was inspected and detained by SARS Customs Border Control in terms of sections 88(1)(a) and 113A of the Customs and Excise Act, 1964. Five samples were sent to Apple's attorneys (Spoor & Fisher) for verification. On 6 August 2025, two of five samples were identified as counterfeit. On 29 September 2025, Apple informed SARS that 466 mobile phones and 575 items of packaging were counterfeit; authentic items were released to the applicants' clearing agent. The applicants were informed by letter on 29 September 2025 that the goods would be retained and processed as suspected counterfeit goods. The applicants only launched urgent proceedings on 23 October 2025, serving papers on 29 October 2025 for a hearing on 4 November 2025. On 30 October 2025, SARS obtained a magistrate's court warrant under the Counterfeit Goods Act, 1997, and seized the goods on 3 November 2025. The applicants sought anti-spoliatory relief for return of approximately 540 mobile phones.

• Whether the applicants complied with section 96(1)(a) of the Customs and Excise Act, 1964, which requires notice before instituting proceedings against SARS
• Whether the court could condone non-compliance with section 96(1)(a) in the interests of justice
• Whether the applicants satisfied the requirements for a spoliation order (mandament van spolie)
• Whether the applicants were in peaceful and undisturbed possession of the goods before alleged dispossession
• Whether the application was properly urgent in terms of Uniform Rule 6(12)
• Whether the applicants' attorneys were properly authorized to represent all three applicants under Uniform Rule 7
• Whether the applicants' attorneys should be held personally liable for costs de bonis propriis for abuse of process

The application is dismissed on its merits. The first, second and third applicants and Sierra Mandisa Ngcamu Attorneys personally are ordered to pay, jointly and severally with each other, the costs of the first respondent (Apple Inc) on an attorney and client scale, including the costs of two counsel. The first, second and third applicants are ordered to pay, jointly and severally with each other, the costs of the second respondent (SARS) on a party and party scale, including the costs of counsel on scale B.

The binding legal principles established are: (1) Compliance with section 96(1)(a) of the Customs and Excise Act, 1964 is a jurisdictional condition precedent to instituting proceedings against SARS for anything done in pursuance of the Act. Failure to comply results in the court lacking jurisdiction to grant relief. (2) For a spoliation order, an applicant must prove on a balance of probabilities (the standard for final orders): (a) that the applicant was in peaceful and undisturbed possession of the property, and (b) that the respondent deprived the applicant of possession forcibly, wrongfully or against consent. (3) Where goods are detained by SARS in customs upon importation and never come into the physical possession of the importer or applicant, the first requirement for spoliation relief cannot be satisfied and the application must fail. (4) Courts may impose personal costs orders against attorneys de bonis propriis on a punitive scale where there has been abuse of the urgent court process, including where attorneys fail to comply with practice directives, issue papers containing multiple irregularities, fail to adequately respond to challenges to their authority, and engage in strategic litigation tactics designed to delay or avoid adjudication on the merits.

The court made several obiter observations: (1) The court noted that even if it had erred regarding non-compliance with section 96(1), the application would fail on its merits in any event. (2) The court observed that there was no need to enquire whether SARS' actions were lawful exercises of statutory power under sections 88(1)(a) or 88(1)(c) of the Customs and Excise Act, because the applicants had not established the threshold requirement of possession. (3) Gilbert AJ commented disapprovingly on the pattern of conduct by the third applicant and his attorneys in launching similar urgent applications concerning counterfeit goods and then withdrawing at the last moment, suggesting this was part of an abusive litigation strategy. (4) The court noted concerns about the authenticity of signatures on various documents and the failure of the commissioner of oaths to sign the replying affidavit, which would ordinarily require investigation but was unnecessary given the outcome. (5) The court observed that the applicants made only cursory, unsubstantiated averments about business destruction without factual detail. (6) The court noted uncertainty about whether the first applicant was the correct party given that another corporate entity appeared to be the importer on various documents.

This case is significant for several reasons: (1) It reaffirms that compliance with section 96(1)(a) of the Customs and Excise Act (requiring notice before instituting proceedings against SARS) is a jurisdictional condition precedent that cannot be circumvented, following the precedents in Dragon Freight and Alliance Fuel. (2) It clarifies that for spoliation relief, an applicant must prove actual possession of the property—constructive possession or mere entitlement is insufficient. Where goods are detained by SARS in customs before an importer takes possession, no spoliation remedy lies. (3) It demonstrates the courts' willingness to impose punitive costs orders (attorney-client scale) and personal costs orders against attorneys (de bonis propriis) for abuse of the urgent court process, including: launching urgent applications without proper grounds, issuing papers before they are signed, failing to serve timeously, making misstatements in compliance certificates, and attempting to withdraw at the eleventh hour without tendering costs. (4) It reinforces the importance of complying with Uniform Rule 7 when authority to represent litigants is challenged. (5) It serves as a warning against strategic litigation aimed at delaying enforcement of counterfeit goods legislation.