Shewan Tomes & Co Ltd v Commissioner of Customs and Excise

• Jurisdiction: South Africa
• Judge: Schreiner ACJ, Van Den Heever JA, Hoexter JA, Fagan JA and Steyn JA
• Judgment Date: 30 August 1955
• Hearing Date: 23 August 1955
• Court: Appellate Division

Schreiner, A.C.J.:

The appellant, a Hong Kong company, sued the respondent in the Natal Provincial Division for £9,027 11s. 5d., being B damages arising out of the allegedly unlawful seizure on the 20th February, 1953, and sale on the 10th October, 1953, of certain fire-crackers imported in October, 1952, by the appellant through the Port of Durban. The respondent on the 18th October, 1954, filed a plea alleging (a) that the importation was illegal as having been made C without an import permit, in breach of Government Notice 2948 of the 19th November, 1951, which was issued under War Measure 146 of 1942, as amended, (b) that the goods were liable to forfeiture under sec. 132 of Act 35 of 1944, which I shall call 'the Act', as having been imported in contravention of a law (i.e. Government Notice 2948) other than a law relating to customs, (c) that the goods were seized under sec. 143 of D the Act, which permits the seizure of goods liable to forfeiture under any law relating to customs, (d) that, having been seized, the goods, in terms of sec. 144 (1) of the Act, were deemed to be condemned-and became subject to disposal in terms of sec. 147 of the Act, in the absence of a notice of claim given within one month after the date of the seizure, and (e) that, no such notice having been given, the appellant was barred E under sec. 144 (2) of the Act from bringing any legal proceedings whatever based merely upon the seizure of the goods.

To this plea the appellant filed certain exceptions two of which were upheld and others dismissed. One of those dismissed was to the whole plea, and in order to understand its nature it must further be recorded, F (a) that on the 31st August, 1953, the Natal Provincial Division held, in the case of Vincent and Pullar Ltd v Commissioner of Customs, 1954 (2) SA 33 (N), that sec. 132 of the Act was a law other than a law relating to customs, and (b) that on the 14th October, 1953, there was promulgated Act 36 of 1943, sec. 1 (1) of which amended the definition section of the Act by adding -

''law relating to customs' includes any provision of this Act',

G and sec. 1 (2) of which reads -

'(2) Sub-sec. (1) shall be deemed to have come into operation on the 5th day of June, 1944,'

the date of commencement of the Act.

The exception in question, which was overruled by the Court below, is in the following terms:

'The plaintiff excepts to the whole plea as being bad in law and H ...