Delictual Liability for Loss of Property: Faynaz Import and Export Enterprises CC v. Commissioner of Customs and Excise

Abstract

In this case the plaintiff, a closed corporation involved in import and export, sued the third defendant (the Minister of Safety and Security) for the return of goods lodged in a customs bonded warehouse, or alternatively damages in the amount of the value of the goods. In a special plea, the defendants relied on section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, which provides that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given and served on the organ of state notice in writing of his or her intention to institute the legal proceedings within six months from the date on which the debt became due. The parties agreed that the special plea should only be decided after the court had examined the merits. After assessing the evidence, Murphy J examined the various remedies on which the plaintiff based its claim. The plaintiff’s main claim, the rei vindicatio, could not succeed because the plaintiff failed to prove that said goods were in possession of the defendant at the commencement of the action. The plaintiff’s alternative claim was based on the actio ad exhibendum which is according to the judge available to the owner of a stolen thing against any mala fide possessor, who has consumed or alienated the thing. The owner is entitled to claim damages to the extent of the value of the stolen thing.

Keywords: Delictual liability, loss of property