Midnight Express at the Lesotho border

Travel through the towns bordering Lesotho and you will find scores of imported vehicles sporting Lesotho number plates. These are second-hand imports, usually from Japan, which can be bought in Maseru for R40,000 or even R25,000, substantially cheaper than equivalent second-hand cars in SA.

To protect the local industry, SA car retailers have lobbied for strict controls on how these cars enter the country and who can buy them. To import one of these second-hand vehicles you need to apply for a permit from the International Trade Administration Commission of South Africa, which is limited to returning residents and immigrants for the most part. The same rules do not apply to neighbouring countries such as Lesotho, where second-hand imported vehicles are everywhere in sight, and which is why you see so many of them in border towns. The International Vehicle Identification Desk Southern Africa has reckoned a loss to the fiscus of billions of rands due to illegal imports of vehicles bleeding across the border from neighbouring countries.

See government’s guidelines for importing a second-hand or used vehicle here.

But a recent court case in the Bloemfontein High Court appears to have upended whatever controls are in place. Pretoria-based attorney Mkhozi Radebe of MC Radebe Attorneys says the court ruling is potentially devastating for local car producers and importers: “It means that any South African is free to drive a second-hand imported vehicle without hinderance.”

Radebe’s client Joaquim Alves has been living in Ficksburg in the eastern Free State for 35 years and has businesses on both sides of the Lesotho border. He owns several vehicles, one of which was a second-hand import with Lesotho number plates that was impounded by SA Revenue Services (Sars) officials in May 2019 while being driven by a colleague. The vehicle in question, a Nissan Serena station wagon, travels to and fro across the border several times a week.

“The Sars officials approached the driver of the vehicle at the local Spar in Ficksburg and informed her that she could not drive the vehicle, and that she must accompany them to the municipal vehicle pound,” says Alves. “I arrived soon afterwards at the municipal compound and was told by the Sars officials that they would have to issue a seizure notice in terms of the Customs and Excise Act. When I looked at what clause of the Act they were relying on, I straight away saw that Sars was relying on a clause in the Act which referred to imported goods. My vehicle was not an imported good as contemplated in the Act. It is lawfully registered in Lesotho and is used to transport goods and people backwards and forwards across the border.”

When Alves attempted to lay a charge of theft against the officials concerned, the police refused to take his statement.

A week later, Alves casually walked into the municipal yard and drove the vehicle home, on the grounds that it had been unlawfully impounded.

Things went downhill from there. A few days later, local police officers arrived at his door with an arrest warrant on charges of vehicle theft and obstruction of justice. He had “illegally” repossessed his own vehicle. The timing of the arrest, being a Friday – which means he would not be able to apply for bail until the following Monday – was part of a campaign of harassment by local police and Sars officials, says Alves.

He was locked in a cockroach-infested cell and left a stew for the weekend. Alves, who suffers from high blood pressure, realised he was separated from his medication and might not last the night. He asked to be taken immediately to the local hospital. The arresting officer apparently told him he was under arrest and had no rights. The police eventually relented and took him to the hospital, with a police escort at his side.

His condition now stabilised, he went before the local magistrate on the Monday morning and was granted bail of R1,000 on condition that he agrees to hand over the disputed vehicle.

A month later, the police dropped all charges against Alves, but continued to hold onto the vehicle, despite being ordered to release the vehicle by the local magistrate. The court records show it was removed to an unknown location by a Sars official, AL Tau.

Alves was so infuriated by the episode that he decided to take on the police and Sars for its self-serving reading of the Customs and Excise Act and various other pieces of legislation he says were violated. He brought a case before the Bloemfontein High Court, which ruled in his favour in August 2019, declaring that the continued detention of the vehicle was “unreasonable, arbitrary and therefore unlawful” and ordered that it be returned in 48 hours. Costs were awarded against the police and Sars, which are appealing the judgment and have so far refused to release the vehicle.

Alves has spent R200,000 on legal fees so far, all over a vehicle that originally cost just R40,000. “I decided my rights were so obviously violated that I wanted to bring Sars and the police to justice. Yes, it costs a lot of money, but I think it is worth it.”

Alves fully expects the police and Sars to fight it all the way to the Constitutional Court, using taxpayer money to paper over a weak case and a shocking abuse of basic human rights. “I think it is time that we held rogue officials personally liable and stop them abusing the law by fighting cases in court at taxpayer expense.

“Effectively, what this judgment means is that as a South African you cannot be stopped from driving an imported foreign-registered vehicle in SA. That is what the Constitution guarantees us. To do otherwise would be arbitrary deprivation of property.”

What’s interesting about the case is that Alves relied on the Southern African Customs Union agreement, which applies to all countries within the customs union (SA, Lesotho, Botswana, Eswatini and Namibia). Thousands of imported vehicles are impounded each year, but most are released on the payment of penalties. Based on this judgment, those penalties may have been unlawfully charged.

The SACU agreement prohibits the any member country applying duties on imports from any other country in the union. Additionally, all members of the union are required to allow freedom of transit without discrimination as to goods being transported, subject to certain exceptions such as goods prohibited on grounds of public morals, health, security and other defined categories.

Radebe argues that Alves had been arbitrarily deprived of property in terms of Section 25 of the Constitution and was denied fair administrative action. “The police had no reasonable suspicions or grounds to impound the vehicle , nor was Alves allowed an opportunity to prove that the vehicle was legally being driven within SA’s borders.” In its appeal affidavit, Sars argues (among other things) that it has not had sufficient time to conclude its investigation and that its actions were reasonable – which is refuted by Alves and Radebe.

Moneyweb was unable to get comment from The International Vehicle Identification Desk Southern Africa before publication.