PATEL v CONTROLLER OF CUSTOMS AND EXCISE 1982 (2) ZLR 82 (H)

Flynote

Customs and Excise Act [Chapter 177] — sections 176 and 178 — seizure and subsequent forfeiture of goods — period of prescription of action by person from whom goods seized — where cause of action arises — waiver by Controller of prescription — proof of.

Headnote

An officer of the Department of Customs and Excise had in August 1979 seized from the plaintiff eight diamonds, five ring settings and two Krugerrands. In January, 1981, the plaintiff was brought to trial on an allegation of having smuggled the goods. On the 2nd June, 1981 he was acquitted. The next day his legal practitioners requested the Controller to release the articles seized. This request was refused. On the 1st September the Controller declared the articles to be forfeited to the State. The plaintiff brought an action for the recovery of his goods.

The Controller entered a special plea in bar, averring that the plaintiff's action was prescribed, not having been brought within three months after the cause of action arose. His contention was that the plaintiff's cause of action arose when the articles were seized, in August, 1979, not when they were declared forfeit, in September 1981.

It was argued for the plaintiff that even if the action were prescribed, the Controller had, in a letter written in July 1981, waived or extended the period of prescription. In this letter, the Controller had said that although it was competent for him to declare all the goods forfeit, he would not do so until the 21st August, in order to give the plaintiff another opportunity to show cause why the goods should not be forfeited.

Held, upholding the special plea with costs, that the plaintiff's cause of action arose when the goods were seized. Forfeiture is a different procedure; at the moment of forfeiture ownership of the goods vests in the President and the period of prescription allowed to an affected person cannot be reconciled with such immediate vesting. An analysis of the relevant provisions of the Act shows that a clear distinction is made between seizure and a declaration of forfeiture.

Held, further, that in order to establish waiver on the part of the defendant, the plaintiff must prove knowledge by the defendant of his rights under section 178 of the Act and a deliberate surrender of those rights, whether expressly or by conduct plainly inconsistent with an intention to persevere with their exercise. The letter from the Controller could not be so construed.