IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE No.569/88
In
the matter between:
SCAN
AIR CHARTER LTD Applicant
and
THE
SECRETARY FOR CUSTOMS 1st Defendant
THE
ATTORNEY-GENERAL 2nd Defendant
CORAM
: HANNAH,
CJ.
FOR
THE PLAINTIFF : MR.
FLYNN
FOR
THE DEFENDANT : MR.
WIMALARATNE
JUDGMENT
(2/5/89)
Hannah,
CJ.
On
19th February, 1988 an aircraft belonging to the applicant departed
from Matsapha airport without first obtaining clearance from the
customs authorities and in so doing the pilot contravened certain
provisions of the Customs, Fiscal, Excise and Sales Duties Act, 1971
as well as certain regulations made under that Act. On its return to
Matsapha the customs authorities detained the aircraft as they were
entitled to do but upon the pilot signing an admission of guilt form
and upon provisional payment being made of E3,000 the aircraft was
released. The payment of E3,000 was made under protest, the applicant
taking the view that such a sum was far too high having regard to the
maximum fine for which the pilot had made himself liable, and by
notice of motion the applicant now seeks to have the decision of the
customs authority to require payment of such a sum set aside.
It
is convenient at this stage to set out certain parts of Section 91 of
the Act which deals with an admission of guilt. Section 91(1)
provides:
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"If
any person -
(a)
admits to the secretary that he has contravened this Act, or that he
has failed to comply with a provision
thereof with which it was his duty to comply;
(b)
agrees to abide by the secretary's decision and;
(c)
deposits with the secretary such sum as the secretary may require of
him but not exceeding the
maximum fine which may be imposed upon a conviction for the
contraventiion or failure in question
or makes such arrangement or complies with such conditions with
regard to securing the
payment of such sum as the secretary may require,
the
secretary may, after such enquiry as
he deems necessary, determine the matter summarily and without legal
proceedings order forfeiture
by way of penalty of the whole or a part of the amount so deposited
or secured.
(3)
There shall be a right of appeal to the Minister from any
determination or order of the secretary
under subsection (1) whereby a penalty exceeding two hundred rand is
imposed, and
the Minsiter's decision on any such appeal shall be final."
Mr.
Wimalaratne argued as a preliminary point that as a general rule an
applicant for review must first exhaust all statutory remedies
available to him before making such application and, it being
accepted that the applicant has not appealed to the Minister against
the first respondent's determination, Mr. Wimalaratne contends that
the application should not be entertained. The exclusion of the
Court's powers to entertain a review immediately following upon an
alleged irregularity must flow from the express
3
words
of the relevant statute or by necessary implication from all the
relevant terms. Welkom Village Management Board v Leteno S.A. 1958
(1) 490 (A) at 503, cited by Mr. Flynn, but, as Mr. Flynn submits, as
a general rule the Courts are reluctant to hold that ordinary
remedies are implicitly excluded, particularly where the statutory
remedy is in the hands of an administrative body. Reading subsection
(l)of section 91 together with subsection (3) it seems to me
abundantly clear that what the statute is providing is a channel of
appeal to the Minister on the merits of the secretary's summary
determination and order resulting in a penalty being imposed. It does
not provide a channel of complaint against an invalid or illegal
requirement made by the secretary that a deposit in excess of the
maximum fine should be made and where that is the essence of the
complaint, as it is in the instant case, the Court's jurisdiction is
not ousted or restricted in any way.
The
question, therefore, which this Court has before it is whether the
Secretary had the power to require a deposit of E3,000 having regard
to the contravention or contraventions which had taken place and in
determining that question regard must be had to the allegations which
were being made against the applicant and its 'pilot. According to
the detention notice issued on the 19th February, the aircraft was
detained because of a contravention of section 6 (6) of the Act. This
subsection requires the pilot of an aircraft destined for a place
outside the common customs area not to cause the aircraft to depart
without first obtaining a certificate of clearance and it seems to me
that that was the primary contravention alleged. The admission of
guilt form repeated this contravention but in addition also alleged
contravention of "Section 5 (2), 6(4) and regulations 67, 8(2)
8(8) etc." The "et cetera" in my view has no proper
place in a document such as this and should be ignored as being too
vague to have any real meaning. Certainly it is far too imprecise an
expression to visit legal liability for the purposes of an admission
of guilt. As for section 5(2) it would appear that the.
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contravention
complained of concerned the hour at which the aircraft left the
airport and the failure of the pilot to request a customs officer to
attend him at a time which fell outside normal working hours.
This
is also dealt with by Regulation 67 but as I read that regulation it
is more in the nature of an administrative regulation than a
regulation which imposes criminal liability. Section 6(4) is akin to
section 6(6) and requires the pilot to appear before the controller
at the airport and to deliver a report to him before departure and
regulation 8(2) overlaps completely with this subsection. Regulation
8(8) prescribes the circumstances in which a customs officer may
refuse clearance for the departure of an aircraft and cannot, by any
stretch of the imagination, be described as a penal provision .
As
I have already indicated the real substance of the Customs
Authority's complaint against the pilot was his failure to obtain
clearance before departing from the airport in contravention of
section 6(6) of the Act and in ordinary circumstances it may be
thought that they would have been content with an admission of guilt
of that offence. But even assuming that in doing so the pilot also
contravened section 6(4) and regulation 8(2) and section 5(2) it is
impossible to see how a deposit of E3,000 can be justified. The
maximum fine for contravening each of these provisions was at the
time E400 making a total of El,600 for the four offences referred to
and in my view requiring a deposit in excess of that amount, the
first respondent must be held to have exceeded the power conferred
upon him by section 91 of the Act. The situation would be different
today as the penalty was increased by an amending Act in October 1988
but we are concerned with the position as it was in February, 1988.
Accordingly,
in my view, the applicant has made out a case on the relief sought
and there will be an order in terms of prayer one of the Notice of
Motion.
N.R.
Hannah
CHIEF
JUSTICE
