IN THE SUPREME COURT OF SWAZILAND
Civil Case No.06/2015
In the matter between:
SWAZILAND REVENUE AUTHORITY Applicant
IMPUNZI WHOLESALERS (PTY) LTD. Respondent
Neutral citation: Swaziland Revenue Authority vs. Impunzi Wholesalers (Pty) Ltd. (06/2015)  [SZHC 06]
(9th December 2015)
Coram: DR. B.J. ODOKI JA,
M.D. MAMBA AJA,
N.J. HLOPHE AJA,
R.C. CLOETE AJA,
M.J. MANZINI AJA.
Heard: 18th November 2015
Delivered: 9th December 2015
Civil Procedure – Application for Review of decision of Supreme Court under Section 148 (2) of the Constitution – Principles and conditions for review – Original Application brought before High Court challenging decision of the Commissioner of Customs and Excise Act – Failure to exhaust local remedies by appealing to the Minister – High Court dismissing the application on points in-limine, Whether jurisdiction of the High Court ousted – Whether Supreme Court correct to determine the application on merits when the trial court had not done so – Whether grounds exist for reviewing the Supreme Court judgment – Exceptional circumstances proved to justify the review and set aside the judgment of the Supreme Court – Case remitted back to the High Court to determine the original application on the merits.
DR. B.J. ODOKI J.A.
 This is an application by Swaziland Revenue Authority, the Applicant, to review and set aside the judgment of the Supreme Court delivered on 13th March 2015. The Application seeks an order reinstating the High Court judgment dated 6 February 2015 or in the alternative that the application that was served before the High Court be referred to the Minister of Finance for adjudication, as an appeal from the decision of the Commissioner of Customs and Excise (The Commissioner) and that the Minister makes a decision thereon within the time specified by this court.
 The brief background to this application is as follows. The Respondent (Impunzi Wholesalers (Pty) Ltd.) commenced with the importation of quilts in January 2014. These are decorative covers for beds made of two layers with soft material between them. The Respondent concluded that the quilts were subject to classification in accordance with the Customs and Excise Tariff Book under code HS9404.90.
 The Respondent attributed a value of US$1.50 per unit for purpose of customs duty which was the actual price of a quilt when purchased from its suppliers in China. The Customs and Excise Act is premised on a system of self-accounting and self-assessment since there exists no alternative method by which the Commissioner can keep track of goods imported that might result in customs duty being payable.
 The Applicant, acting through the Commissioner, being the specific body charged with the administration of customs matters in Swaziland, at first took no issue with the price which was based on the transaction value of the quilts as determined by section 65 (1) read with section 66 (1) of the Customs and Excise Act.
 In June 2014 in exercise of its powers under section 108 of the Customs and Excise Act, the Applicant held a consignment of quilts imported by the Respondent under embargo at the Matsapha Inland Container Depot. The Applicant took the view that the quilts have to be cleared under HS6301 of Chapter 9 of the Harmonized Customs Tariff at a value of US$14.33 per unit.
 According to the Respondent, no explanation was forthcoming as to how this was determined when the quilts were sold to the Respondent by its Chinese supplier at US$1.50 per unit, being the benchmark in terms of section 66 (1), which stipulates that the transaction value of any goods shall be the price actually paid or payable for goods when sold for export to Swaziland, but subject to adjustment in terms of section 67.
 The Respondent addressed correspondence to the Applicant on 23 June 2014, to advise that the quilts were not liable to be subjected to anti-dumping duties in terms of Schedule 2 of the Customs and Excise Act. The Applicant remained steadfast in its approach that the Respondent’s classification was erroneous as appears from correspondence from the Commissioner dated 25 June where it sought to justify the decision to value the quilts at a value of US$14.33 per unit.
 The Respondent was further advised that the quilts under embargo would not be released unless cleared under HS6301 of Chapter 9 of the Harmonized Customs Tariff, at a value of US$14.33 per unit but subject to the Respondent making payment of a deposit to cover the difference between the customs duty imposed by the Applicant and VAT based on the classification and value as declared, and further customs duty and VAT on the re-assessed value of US$14.33 per unit.
 In an attempt to resolve the impasse, the Respondent furnished the Applicant with documents in support of the transaction value that it had attributed to the quilts including invoices paid by Respondent to its Chinese supplier. This demonstrated that the Respondent had purchased the quilts at US1.50 per unit. Despite having repeatedly engaged the Applicant on the issue through numerous meetings and the exchange of correspondence, the Applicant remained firm in its approach and refused to remove the embargo placed on the consignment of quilts. When this did not have the desired effect, the Respondent went further by requesting that the quilts under embargo be released so that they could be returned to the Respondent’s supplier on the Chinese mainland. The Applicant was not receptive to this request.
 The Applicant demanded that it would only consent to the release of the quilts under embargo if the Respondent secured at stake through a payment of E50 million.
 The Applicant eventually advised Respondent that it had determined that it had to make payment of customs duty and VAT on the re-assessed value of US$14.33 per unit, failing which the quilts would be forfeited to the State. As a result, the Respondent brought urgent proceedings before the High Court seeking the review and setting aside of the Applicant’s determination of US$14.33 per unit and an order that it be declared that the true value of each quilt be declared to be US$1.50 per unit.
 The application was heard on 16 December 2014 before Maphalala PJ, who delivered his judgment on 6 February 2015. The learnerd judge dismissed the application on the strength of a series of preliminary grounds advanced by the Applicant including that the application was not urgent, the alleged failure on the part of the Respondent to exhaust its internal remedies and a failure to specify whether the application was premised on Rule 53 or the common law.
 The Respondent was dissatisfied with the above judgment and launched an appeal against the judgment, which was heard by this Court on 6 March 2015, with Ramodibedi CJ, Maphalala J and Annandale AJ, having presided over the appeal.
 On 13 March 2015, the Supreme Court upheld the appeal with costs and substituted the High Court’s order with the following order:
1. the determination of the Applicant at the value of US14.33 was invalid;
2. the true value of each quilt is declared to be US$1.50;
3. Applicant was to pay all expenses occasioned by the seizure of Respondent’s goods;
4. the Applicant was to pay the Respondent’s costs.
 On 8 April 2015, the Applicant brought an application as a matter of urgency staying the execution of this Court’s order dated 13 March 2015 pending the outcome of a review application to be launched within ten days. The relief sought was rendered moot and the application was not argued in view of the undertaking given on the Respondent’s behalf not to execute the order of 13 March 2015, pending the outcome of a review application.
 The Application for review was accompanied by an affidavit of Dumisani Masilela, the Commissioner General of the Applicant. The Respondent filed an answering affidavit sworn by Thembisa Matsebula, the Chief Executive Officer of the Respondent.
 The grounds upon which the application was brought were contained in the affidavit sworn to by the Commissioner. They are basically two grounds. The first ground is that the Respondent failed to exhaust internal remedies before approaching the High Court. The second ground is that the Supreme Court ordered the Applicant to pay to the Respondent unquantified expenses occasioned by the seizure of the Respondent’s goods, when no case had been made out for the expenses claimed.
 With regard to the first ground, the Commissioner states in paragraph 8 of his affidavit as follows:
“8.1. I do not take issue with the golden rule of interpretations as enunciated in paragraph 15 of the Court’s judgment. The problem is, with respect, that the above Honourable Court did not follow the “Golden rule” of interpretation as enunciated by it in interpreting the CUSTOMS AND EXCISE ACT.
8.2. Section 65 (4) (a) of the above Act reads as follows:
“65(4)(a) If in the opinion of the Commissioner the transaction value of any imported goods cannot be ascertained in terms of Section 66 or has been incorrectly ascertained by the importer the Commissioner may determine a value, which shall, subject to a right of appeal to the Minister be deemed to be the value for custom duty purposes of the goods.” (Emphasis my own)
8.3. There is nothing in the above quoted section or any portion of Section 65 which would render it subservient to Section 66 as found by the above Honourable Court.
8.4. In Section 2 of the Act “Commissioner” is defined as the Commissioner of Customs and Excise appointed under Section 3. Section 3 of the Act reads as follow:
“3(1) The Commissioner shall subject to the direction of the Minister, be charged with the administration of this Act, including the interpretation of the schedules and may designate an officer to be the controller in relation to any area or matter.” (Emphasis my own)
8.5. The “Minister” is defined in Section 2 as meaning the Minister responsible for finance.
8.6. Section 65 (4) (a) clearly and unambiguously provided that the Commissioner may determine the value of goods for purposes of import duties and such determination shall be deemed to be the value thereof but subject to an appeal to the Minister. If the Commissioner, according to the Respondent, has erred in the determination of value placed on the goods, his complaint lies to the Minister on appeal.
8.7. The judgment of the Court has the effect of a finding that an aggrieved party has an automatic right of appeal directly to the High Court and as such that the provisions of Section 65 (4) (a) should be read as pro non scripto and no meaning needs to be attached thereto.
8.8. It is respectfully submitted that this is a misdirection by the above Honourable Court, especially in the light thereof that the Respondent in its application in the Court a quo did not even endeavour to make out a case as to why its disagreement with the Commissioner was not taken on appeal to the Minister and why it was necessary to appeal directly to the High Court.
8.9. The Respondent in the urgent application furthermore gave no reasons as to why the provisions of Section 65 (4) (a) were not followed and why it contended that it had an automatic right of appeal to the High Court.
8.10. While it is accepted that it is not a general principle of law that all administrative procedures must be exhausted before the High Court can be approached, each matter should be determined by its own peculiar facts.
8.11. In casu and as I have stated above, simply no facts were placed before the High Court other than facts indicating why the Respondent was aggrieved at the determination made by the Commissioner and why it considered such determination to be wrong.
8.12. It will be submitted that Section 65 (4) (a) properly construed, requires that internal remedies first be exhausted especially where the Customs and Excise Act deals with a specialised field, and administered as such by specialists appointed to administer same.”
 The second ground for review was amplified in paragraph 9 of the Applicant’s affidavit as follows:
“9.1. The above Honourable Court sitting as a Court of Appeal, granted the relief the Respondent sought in its urgent application hear by the Court a quo, i.e. the High Court.
9.2. In prayer 7 of the Respondent’s notice of motion it asks for the following relief:
“7. Directing the Respondent to pay for all expenses occasioned by its seizure of Applicant’s goods.”
9.3. The Respondent, as the Applicant in the High Court, made out no case whatsoever for the expenses herein claimed.
9.4. What these expenses are, how much they amount to and how they are computed, hangs in the air.
9.5. The Respondent has a judgment in its favour in an amount unknown and the Applicant in this application has a judgment against it in an amount unknown for damage which occurred during the execution of a statutory and bona fide mandate.
9.6. For the above reasons the above Honourable Court erred in granting such relief and such relief at the very least is vague, embarrassing and unenforceable.
9.7. The order begs the question rather than gives the answer. Who is to determine the expenses and by what means and how are they to be opposed by the Applicant and before whom is this dispute to be resolved.
9.8 The order so granted by the above Honourable Court on Appeal is therefore bad at law and unenforceable.”
 The Applicant submitted that the Supreme Court is seized with the supervisory and review jurisdiction under Section 148 of the Constitution. It was pointed out that the South African Constitution does not have a similar section, but the Ghana Constitution has it where it seems to have been borrowed from. It was the contention of the Applicant that the case of President Street Properties (Pty) Ltd vs. Maxwell Uchechukwu and Others Appeal Case No 11/2014  SZSC had settled the issue of the review jurisdiction of the Supreme Court.
 The Applicant submitted that although the grounds and conditions upon which review could be exercised were not prescribed by Parliament or by rules of court, an attempt was made in the President Street Properties case (supra) to identify some of the possible grounds which have been recognised by the various authorities. In Paragraph  of that judgment, Dlamini AJA stated,
“ From the above authorities some of the situations already identified as calling for judicial intervention are exceptional circumstances, fraud, patent error, bias, presence of some unusual element, new facts, significant injustice or absence of effective remedy”
 With regard to the first ground for review, namely failure to exhaust internal remedies the Applicant submitted that the Supreme Court misdirected itself when interpreting Section 65 (4) (a) of the Customs and Excise Act when it did not follow the “golden rule” of interpretation and give the words used in the statute their clear and unambiguous meaning in order to arrive at the true intention of the legislature and give effect to it.
 The Applicant reiterated its argument that Section 65 (4) (a) properly construed requires the internal remedies first to be exhausted especially where the Customs and Excise Act deals with a specialized field and administered as such by specialists appointed to administer.
 The Applicant criticised the Supreme Court for holding that the Customs and Excise is not a specialized body unlike the Competition Commission. Reference was made to the case of Koyabe vs. Minister for Home Affairs (Lawyers for Human Rights as amicus curia 2010 (4) SA 327.
 It was submitted by the Applicant that the Respondent did not give any reasons why it was aggrieved at the determination made by the Commissioner and why it considered the determination was wrong.
 The Applicant argued that while it is accepted that it is not a general principle of law that all administrative procedures must be exhausted before the High Court can be approached, each case should be determined on its own peculiar facts.
[27) The Respondent submitted that review under Section 148 (2) of the Constitution could not be construed broadly to include an appeal with the result that the terms are interchangeable. The Respondent gave three reasons why review is distinguishable from appeal.
 The first reason was that the Constitution makes it plain in Section 146 (1) that the Supreme Court is the final court of appeal and is vested with appellate jurisdiction to hear and determine appeals from the High Court. Therefore, the Constitution does not give the Supreme Court appellate jurisdiction to entertain appeals from itself.
 The second reason is that there is a clear distinction between appeals and reviews in the Constitution and the terms used are not interchangeable or synonymously used.
 The third reason is that treating reviews as appeals is inconsistent with the Supreme Court’s interpretation of Section 148 (2) in recent decisions.
 The Respondent submitted that in the Commissioner of Police and Another vs. Dallas Busani Dlamini and Four Others.  SZSC 39 (29 July 2015) and in President Street Properties (Pty) Ltd. vs. Uchechukwu and 4 Others  SZSC 11 (29 July 2015), this court did not only draw a careful distinction between its powers of appeal and review, but observed that Section 148 (2) must be applied as a matter of necessity with caution, since it goes against the underlying principle that the court must prevent the decapitation of the same action and must always endeavour to put a limit to needless litigation.
 The Respondent argued that a number of important principles that can be distilled from this court judgments in the decisions in Dallas Busani Dlamini (supra), President Street Properties (supra) and Vilane N.O. and Another vs. Lipney Investments (Pty) Ltd.  SZSC 62 (3 December 2014), can be summarised as follows:
1. In order to maintain certainty in cases already decided, the courts must be cautious against allowing a party to bring a matter back to Court on the same cause of action simply because he is dissatisfied with the outcome.
2. Section 148 (2) was not promulgated to permit litigants limitless chances to have cases previously adjudicated to finality reheard simply because they are disappointed with the result.
3. The Court’s review jurisdiction can only be exercised where there is a patent and obvious error of fact or law.
4. There is a distinction between an appeal and review so that review jurisdiction is not an appeal “and is not meant to be resorted to as an emotional reaction to an unfavourable judgment.”
5. Not every decision will be impugned because it is wrong and not every misdirection or error of law will be a ground of review but will rather amount to a ground of appeal.
6. Only exceptional circumstances justify the application of Section 148 (2) including fraud, patent error, bias, new facts, significant injustice or the absence of an alternative remedy.
7. The jurisdiction of the Supreme Court under Section 148 (2) is exceptional, and is to be invoked not to allow a litigant a second bite at the cherry, in the sense of another opportunity of appeal or hearing at Court of last resort, but to address only a situation of manifest injustice irremediable by normal Court process.
8. The Court’s review jurisdiction must be narrowly defined and employed with due sensitivity, to avoid opening a flood gate or reappraisals of cases otherwise finally disposed of, in accordance with the res judicata doctrine;
 It was the contention of the Respondent that the Applicant’s grounds of review amount to no more than grounds of appeal which do not come within the ambit of Section 148 (2) of the Constitution.
 Dealing with the grounds of review, the Respondent submitted that the High Court erred in disposing of the matter on the basis of technical objections when it was obliged to address the merits, which approach was criticised in the decision of this court in Shell Oil Swaziland (Pty) Ltd vs. Molir World (Pty) Ltd t/a SIR Motors  SZSC 11 (21 June 2006)
 The Respondent submitted further that the Supreme Court did not err in dealing with the merits of the case, and even if they did so, this does not constitute a ground for review, in that it did not amount to a material misdirection.
 On the ground of failure to exhaust internal remedies by not lodging an appeal with the Minister, the Respondent submitted that the Supreme Court was correct in rejecting the argument. It was the Respondent’s contention that the cannons of construction require that legislation be interpreted in such a way that the jurisdiction of the courts is not ousted. See De Wet vs. Deetles 1928 AD 286 at 290.
 The Respondent further argued that in the interpretation of statutes there is a presumption against the exclusion of the jurisdiction of the courts, and the Section 65 (4) (a) of the Customs and Excise Act was not excluded from this presumption.
 The Respondent cited the case of Met Cash Trading Limited vs. Commissioner of South African Revenue Service and Another 2002 (4) SA 317 where the Constitutional Court upheld that taxpayers’ right to approach the High Court for appropriate relief, notwithstanding the existence of a statutory right of appeal to the Minister.
 The Respondent also referred to the case of Koyabe V. Vs. Minister of Home Affairs (Lawyers for Human Rights as amicus curiae 2010 (4) SA 327 where the South African Constitutional Court stated,
“The duty to exhaust internal remedies is therefore a valuable and necessary requirement in our law. However, that requirement should not be rigidly imposed. Nor should it be used by administrators to frustrate the efforts of an aggrieved person or to shield the administrative process from judicial scrutiny.”
 It was the Respondent’s contention that the legislature did not contemplate the exclusion of the affected importer’s right to approach the High Court before lodging an appeal with the Minister. The Respondent argued that it is plain that the powers of the Commissioner are draconian under the Customs and Excise Act and could occasion a party significant hardship.
 With regard to the ground that the court ordered the Applicant to pay all expenses to the Respondent occasioned by the seizure of its goods, the Respondent submitted that this ground does not come within the purview of Section 148 (2). It was the Respondent’s contention that the Applicant abused its powers to the prejudice of the Respondent’s business through unlawful detention of its goods and therefore the prayer and order are justified.
 The Respondent argued that what was envisaged by the order was that the Respondent would table these expenses to the Applicant based on the prayer so as to avoid litigation. Should the parties not reach an agreement on the precise amount for these expenses, the Respondent would return to the High Court by way of a separate claim for payment of a fixed amount on the basis that the question of the Applicant’s liability had already been decided.
 The review jurisdiction of the Supreme Court has been introduced by Section 148 of the Constitution which provides in relevant subsections as follows:
“(2) The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by an Act of Parliament or rules of court.
3. In the exercise of its review jurisdiction the Supreme Court shall sit as a full bench”
 It is common ground that no grounds and conditions have been prescribed by Parliament or by the rules of court. As such this court has the responsibility to develop the jurisprudence in this field to provide guidance in the determination of applications for review. Both the Applicant and the Respondent have referred to recent decisions of this court on the matter and identified some of the guiding principles. These principles appear in paragraphs  and  of this judgement and I do not wish to repeat them, save to observe that I agree with them.
 The critical issue in cases of this nature is whether the Applicant has established grounds to bring the Applicant within Section 148 (2) of the Constitution, having regard to the emerging jurisprudence on the review jurisdiction in this country and other similar jurisdictions. Regard must always be had to the need to respect the principles of finality in litigation on one hand, and the need to do justice where serious irregularities have occurred resulting in a gross miscarriage of justice, on the other. This is why in most cases the court will look for exceptional circumstances as recognised from time to time. Indeed this process requires a delicate balance.
 In the present case, the main ground for review is that the Supreme Court erred in entertaining the Application when the Respondent had not exhausted internal remedies by appealing to the Minister under Section 65 (4) (a) of the Customs and Excise Act. The Supreme Court rejected the argument that the Respondent had to exhaust internal remedies because the appeal to the Minister arises only where the price of goods was actually paid or payable could not be ascertained and not as in the present case where the price was ascertainable. Secondly the Act did not seek to oust the jurisdiction of the court.
 In paragraphs    and  the Supreme Court came to the following conclusions:
“ This Court subscribes to the trite and tested principle of interpretation that every word in a statute must be given its ordinary grammatical meaning unless to do so would lead to an absurdity which could not have been contemplated by the Legislature. Adopting this approach, as we must, we take due notice of the word “Subject to this Act----within the meaning of section 66: appearing in section 65 (1) is subservient to it. As to this line of interpretation see, for example such cases as Elias Velaphi Dlamini v Ministry of Justice and Constitutional Affairs and Other, Industrial Court of Appeal Case No. 6/2011 at para ; S V Marwane 1982 (3) SA 717 (A) at 747 – 748.
 Viewed in the light of the foregoing considerations, it is our considered view that the starting point in a matter such as this is section 66 (1) of the Act. One cannot simply jump to section 66 (7) in a situation where the transaction value of the imported goods may be ascertained by showing the price “actually paid or payable.”
 Similarly, it is our considered view that the right of appeal to the Minister provided in section 65 (4) (a) of the Act only arises in a situation where section 66 (1) is inapplicable, that is to say, where the price “actually paid or payable” cannot be ascertained. This then becomes a question of evidence to be determined on the facts in each case.
 In any event, we wish to stress that this Court subscribes to the well-known presumption against construing a statute so as to oust or restrict the jurisdiction of the superior courts in particular. We are in respectful agreement with the following principles expressed b Solomon CJ some 107 years ago in De Wet vs. Deetlefs 1928 AD 286 at 290:-
“It is a well-recognised rule in the interpretation of statutes that, in order to oust the jurisdiction of a court of law, it must be clear that such was the intention of the legislature.”
That case was followed with approval by the Full Bench in this Court in the case of the Prime Minister or Swaziland and Others vs. Christopher Vilakati, Civil Case No. 35/2013”
 I am unable to fault the conclusions reached by the Supreme Court. Even the Respondent conceded that there is a presumption against ousting of the jurisdiction of the court, unless there are clear provisions to that effect in the Statute. However, the Respondent argued that the Applicant did not prove exceptional circumstances for not lodging its appeal with the Minister. The Applicant responded by stating that it did so because the Applicant had threatened to forfeit its goods and therefore needed urgent remedy to protect it interests.
 In my view each case should be decided on its own merits and it should not be taken for granted that the provisions of the Act will be flouted without sound reasons as this will adversely affect the sound management of the tax regime.
 However I find that even if the Supreme Court misdirected itself in interpreting the Act, it would not constitute a proper ground to review as it would merely amount to another appeal. The court did not decide the appeal per incuriaim, as it was aware of the provisions of the Act, it interpreted. This did not amount to an exceptional circumstance justifying review.
 The next ground for review was that the Supreme Court misdirected itself when it ordered the Applicant to pay for expenses occasioned to the Respondent by seizure of its goods when no basis for such claim had been laid or established. The Respondent argued that it would provide the details to the Applicant and in case of disagreement, it would approach the High Court to determine the matter.
 This ground raises a serious issue whether the Supreme Court was entitled to determine the merits of the application on appeal and award damages when the trial court had dismissed the application on points in limine, without determining the merits. Had the trial court determined the merits of the Application, both parties would have addressed the issue of the expenses incurred during the seizure of the Respondent’s goods and necessary evidence and arguments presented to prove the claim.
 Even the issue of the assessment of the chargeable tax for the quilts was not addressed by the trial judge, but dealt with on an appeal.
 In my view, the determination of the merits on appeal was a serious irregularity which caused a gross miscarriage of justice for an appellate court to arrogate itself the role of a trial court, thus depriving the parties of a right to appeal against the decision made in the first instance. Instead of castigating the trial judge for dismissing the application on technicalities and determining the merits itself, the Supreme Court should have sent back the application to the High Court to be determined on the merits
 For the foregoing reasons, this application for review is upheld.
 Consequently, I make the following orders:
(a) The application for review is granted with costs.
(b) The judgment and orders of this court issued on 13 March 2015 are set aside.
(c) The matter is remitted back to the High Court to hear and determine the original application by the Respondent on the merits, by another judge.
DR. B.J. ODOKI
JUSTICE OF APPEAL
I agree ______________
ACTING JUSTICE OF APPEAL
I agree _______________
ACTING JUSTICE OF APPEAL
I agree _____________
ACTING JUSTICE OF APPEAL
I agree _______________
ACTING JUSTICE OF APPEAL
For Applicant: ADV. D.A. Smith
For Respondent: A.D.V. C.S. Bester