IN
THE HIGH COURT OF SWAZILAND
1
a:
Kingsbur
Kingsburg
Exports Limited
and
seven
others (applicants)
v
Commissioner
of Customs and Excise
and
Attorney
General (Respondents)
Case
No 2167/97
Coram
S.W. Sapire, AC"J
For
Applicant Mr. L. Mamba
For
Respondent Mr. Nduma
Judgement
(07/11/97)
The
applicants, which are eight foreign companies, seek an order from
this court requiring the Commissioner to release a number of
specified containers presently detained by the Commissioner at
Matsapha.
The
application was brought as a matter of urgency, and dealt with as
such. Despite this the matter was heard only on the 21st October
1997.
The
relief claimed was set forth and described in the prayers of the
notice of application.
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a:Kingsbur
After
the usual first prayer for the matter to be heard as a matter of
urgency, the applicants in prayer two asked for the release to them
of a number of containers. It was conceded in the course of argument
that for one reason or another some of the containers should be
erased from the list and that any order which may be made should not
include the following:
1x
40 Container No. KHLU 9442085 Sea No. 45123 KLH INBU 3133500 (wrongly
quoted as ENBU) CMBU 409077 which was duplicated on the list.
In
the alternative an order was sought requiring the containers to be
removed in bond in terms of section 16 of the Customs and Excise Act
to Namibia.
The
application contained the usual prayer for costs.
During
the argument the applicants conceded that they were not entitled to
the relief sought in prayer two and confined the object of the
application for the remaining containers to be removed in bond to
Namibia in terms of Section 16.
For
the Respondents a point in limine was raised. It concerned the
capacity and authority of the deponent to the founding affidavit.
The
Founding affidavit commenced in a manner now only too common by the
deponent stating the widely used formula as follows:
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a:Kingsbur
"I,
the undersigned,
YAGABARUM
MUNIEN do hereby make oath and say that:
1,
I am an adult male of Johannesburg and the facts deposed herein are
within my personal knowledge and belief and are true and correct. I
am the local agent of the applicant companies and as such authorised
to swear to this affidavit.(My italics) I annex hereto marked "A'A"
copies of my letters of appointment"
There
were several aspects to the point raised by the Respondents. It was
in the first place correctly pointed out that the letters of
authority on which the deponent relied, did not mention the present
litigation and did not constitute proof of authority to the deponent
to "swear to this affidavit"
This
point had to fail however as no one requires authority to give
evidence in any matter, whether it be an action or an application.
The giving of evidence is a personal act of the witness whether the
evidence is given viva voce or on affidavit. No individual can be
prevented from giving evidence by any party withholding authority to
do so. No individual requires the authority of any party to give
evidence for or against that party in any proceedings. The formula I
have quoted, ie "I am authorised to swear to this affidavit"
appearing in the affidavit is therefor meaningless and should
henceforth be omitted from affidavits intended for use in this court.
"A
witness, also when a deponent, may testify even if he has no
authority to bring, withdraw or otherwise deal with the application
itself." Barclays National Bank Ltd v Love
4
a:Kingsbur
1975
(2) SA 514 (D) at 515C-E and 515F-G.
See
Eskom v Soweto City Council 1992 (2) SA 703 (W)
It
was further argued that the Applicants' papers were not in order as
there was no allegation in the founding affidavit to the effect that
the applicants had resolved and determined to institute the present
proceedings for which purposes they had authorised and appointed the
deponent to act on their behalf A body corporate cannot be
represented in court by an individual other than an attorney or
advocate admitted to practice in the court.. Proceedings of the
present nature are instituted on behalf of the Applicant by the
attorney who signs the notice of motion and not by the deponent to
the founding affidavit. The question of the attorney's authority is
dealt with in the rules of court. Any challenge to that authority
must be made in accordance with the provisions of Rule 7 (1). This
has not been done. There is no reason therefor to question the
authority of Applicants' attorney to act on their behalf and to bring
these proceedings. The points in limine are therefor dismissed with
costs.
Turning
now to the merits. In view of the concession rightly made by
Applicants, that they were not entitled to the relief claimed in
prayer 2 of the notice of motion the only issue remains is whether
the Commissioner is entitled to rely on the lien placed on the goods
in the containers, or whether the Applicants can require him to deal
with them in terms of Section 16.
At
this point I must observe and remark on the inexcusable
inaccessibility of the statute law applicable in the present case.
Although the representative of the Attorney General was able to
assist me by providing privately compiled texts of the relevant
legislation and amendments the reliance which may be put on such is
questionable. For practical purposes I am assuming them to be
accurate copies of what was enacted. The series of blue covered files
containing the
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a:Kingsbur
Statutes
of Swaziland are sadly out of date. Much legislation to which
reference has continually to be made does not appear therein. It is
many years since they have been update . They are used at the peril
of making mistakes and applying provisions of the law which have been
amended or repealed.
The
argument that all Statutes are promulgated in the Government Gazette
takes the matter no further. It is common experience that the
relative copy of the Gazette is seldom to hand or conveniently
available when needed and there is no index to the Gazettes of which
I am aware.
This
is, I understand, a hoary complaint, which has not received proper
attention in the responsible quarters for a long time. It is a matter
of record that the South African government sponsored the updating of
the published statute. The project has however not produced anything.
I have a faint hope that if all this is brought to the attention in
those responsible quarters to which I have referred, something may be
done to remedy the situation.
I
have referred to what I believe is Section 16 of the Custom and
Excise Act (Act No. 21 of 1971) on which Applicants rely for the
relief claimed in prayer three of the Notice of Motion. It reads:
"16.
(1) Notwithstanding any other provisions contained in this Act –
(a)
the importer or owner of any imported goods landed in Swaziland, or
the manufacturer, owner, seller or purchaser of any excisable goods
or sales duty goods manufactured in a duty warehouse or the licensee
of a duty warehouse in which dutiable goods are manufactured or
stored may remove such goods in
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a:Kingsbur
bond
to anyplace of entry or warehousing place or to anyplace outside
Swaziland:"
Apart
from any other difficulties facing the Applicants, sub section five
of this section provides that no goods are to be removed in bond
under this section from the place where they were landed in Swaziland
until they have been entered for removal in bond. There is no
allegation that this has been done and the respondents aver
positively that it has not.
This
is an insuperable obstacle to the granting of any of the relief which
the Applicants seek in prayer three.
See
Eskom v Soweto City Council 1992 (2) SA 703 (W)
In
accordance with the principles examined in, and on the authority of
the cases cited the point in limine has to be dismissed.
S.
W.
SAPIRE
ACTING
CHIEF
JUSTICE
