The
respondent raised two points in limine.
The
first one was the failure to exhaust internal or domestic remedies provided by
law before the applicant approached this court.
The
goods in question, in casu, were seized by the respondent in terms of section
193 of the Customs and Excise Act [Chapter 23:02]. When the goods are seized
thus, the owner, or possessor, thereof, will have to make representations for
their release should they want to have their goods back. The office who seized
the goods will then make his/her own report to the Commissioner of the
respondent in terms of section 193(5) of the Customs and Excise Act [Chapter
23:02]. The applicant's representations, as well as the report by the officer,
are then submitted to the Commissioner, who will then have to make a decision
to either release, or declare forfeit, the goods in question in terms of
section 193(6) of the Customs and Excise Act [Chapter 23:02].
A
Notice of Seizure was issued on 3 August 2009.
No
representations were made by the applicant herein to enable the respondent's
Commissioner to make a decision in terms of section 193(6) of the Customs and
Excise Act [Chapter 23:02]. The applicant has, instead, made a civil suit for
the release of the goods in question (this is provided for in section 193(12) of
the Customs and Excise Act [Chapter 23:02]).
The
said section 193(12) of the Customs and Excise Act [Chapter 23:02], however,
only allows the applicant to institute civil proceedings where the Commissioner
has refused to release the seized goods in terms of section 193(6)(a) of the
Customs and Excise Act [Chapter 23:02].
This,
therefore, means the applicant cannot make the application where the
Commissioner has not yet made a decision on whether to release the goods or
not.
So,
besides the applicant instituting civil proceedings before the Commissioner has
made a decision on the fate of the goods, it has also made the application
without giving the requisite notice as required by the Customs and Excise Act
[Chapter 23:02].
For this reason alone, the application has to
fail without even considering the second point in limine...,.
