Judgment No. HB 118/14
Case No. HC 1184/14
THE NATIONAL PROSECUTING AUTHORITY
INNOCENT BEPURA (N.O)
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 17 JULY AND 24 JULY 2014
Mr T. Hove for the applicant
Mr P. Tererai for the respondent
MAKONESE J: In this matter the 2nd Respondent appeared before a Magistrate sitting at Beitbridge on the 25th April 2014. The 2nd Respondent was facing one count of contravening section 25(1) (a) as read with section 25(5) of the Immigration Act [Chapter 4:02], that is, failing to appear before and complying with the directions of the Immigration officer. The second count related to contravening section 20(1)(b) of the Exchange Control (General) Order 1996 Statutory Instrument 110/96 as read with section 5(i) (a) (ii) of the Exchange Control Act [Chapter 22:05], unlawful exportation of foreign currency.
The brief allegations against the 2nd Respondent were that he attempted to leave the country without declaring money in his possession in the sum of US$ 70 205-00 ZAR 639 800-00 and that he failed to report to an Immigration Officer. The 2nd Respondent pleaded not guilty to both counts and was discharged at the close of the state case. The reason for the acquittal was that the evidence established that 2nd Respondent is a permanent resident of South Africa. The magistrate in the court a quo properly applied the law in that section 21 of the Exchange Control Regulations, 1996 provides as follows:
“Subject to subsection (2), unless otherwise authorised by an exchange control authority, no person shall export or cause to be exported from Zimbabwe –
(a) any Zimbabwean currency
(b) any foreign currency, ---
(2) Subsection (1) shall not apply to
(c) any foreign currency which has been imported into Zimbabwe by a foreign resident and is being taken or sent out of Zimbabwe by that person on his person or his baggage; --.“
In casu, the 2nd Respondent being a permanent resident of South Africa was entitled to possess the foreign currency on his person or in his baggage. On the first count the evidence led was also not sufficient to secure a conviction and the 2nd Respondent was properly discharged at the close of the State case.
On 29 May 2014, the Applicant filed a Chamber Application for an order in the following terms:
“IT IS ORDERED THAT:
1. The order to return the seized money to the 2nd Respondent made by 1st
Respondent be and is hereby set aside.”
There is no indication on the face of the Chamber Application in terms of which
provision of the Rules, the application has been instituted. The body of the application itself
seems to invite the court to exercise its review jurisdiction. In accordance with the provisions of
section 26 of the High Court Act [Chapter 7:06] the High Court has power, jurisdiction and
authority to review all proceedings and decisions of inferior courts of justice, tribunals and
administrative authorities within Zimbabwe. The grounds for review are clearly spelt out in
section 27 of the High Court Act and these are:-
“(a) absence of jurisdiction on the part of the court, tribunal or authority concerned
(b) interest in the cause, bias, malice or corruption
(c) gross irregularity in the proceedings or the decision.”
The problem though is that the Applicant purports to be appealing against the decision of
the court a quo. This is borne out by the contents of a letter addressed to the 2nd Respondent’s
legal practitioners dated 2nd May 2014 which is in the following terms:
“The above matter refers.
Be advised that the Prosecutor General’s office has decided to appeal the decision of the trial magistrate in the above case. We have already posted the record of proceedings to the Appeal section in Bulawayo.
Our head, Western Division Mrs Cheda has directed me to inform you and your client of this development. She has also directed that the money involved should remain in the custody of ZIMRA for purposes of appeal.”
On the 28th May 2014, the Applicant directed another letter to the Regional Manager, Zimbabwe Revenue Authority, Beitbridge, as follows:-
“The above matter refers.
This serves to advise you that our office is unable to note an appeal in this matter against the acquittal of the accused. After going through the record of court proceedings we are unable to identify any misdirection on the part of the magistrate in arriving at the decision that he did. The evidence that was presented before the court was insufficient to secure a conviction on both counts that the accused was charged with.
We have filed a Chamber Application at the High Court for the setting aside of the order made by the magistrates for the return of the seized money to the accused. The magistrate had no authority to make the order in terms of section 193 of Customs Excise Act.”
From this last correspondence from the Applicant it is clear that there was never any intention on the part of the Applicant to challenge the decision of the trial court either by way of Review or Appeal. The question to be asked is whether the Chamber Application is indeed an application for Review in terms of section 26 of the High Court Act. The Applicant has averred that there was no misdirection on the part of the magistrate. The bone of contention is that the magistrate ought not to have ordered the return of the seized money to the 2nd Respondent. I have already indicated that in terms of the Exchange control Regulations, 1996, the 2nd Respondent had the lawful right to possess the foreign currency on his person or in his baggage. There was therefore absolutely no need for ZIMRA officers to seize the money in the first instance. The seizure of the money was in itself unlawful. The money should not have been seized because 2nd Respondent was a permanent resident of South Africa en route to that country. I cannot understand the justification for refusing to release the money to the 2nd Respondent even after his acquittal. Such conduct must be frowned upon.
The 2nd Respondent is being put to great expense and inconvenience by the seizure of his money. I agree with counsel for the Applicant that a criminal court has no jurisdiction to order return of articles seized by the Zimbabwe Revenue Authority in terms of the provisions of section 193(a) of the Customs and Excise Act [Chapter 23:02]. The relevant section provides as follows:
“(a) --- provided that no court sitting as a criminal court for any purposes of this Act shall make any order for the return of seized articles in terms of this section, and no such articles shall be returned except by the Commissioner General acting in accordance with this Act or by order made by a court with appropriate jurisdiction in which the person from whom the articles seized has instituted separate civil proceedings for their return (emphasis mine).
In the instant case the seizure itself was unlawful. There would be no useful purpose to be served by the Applicant instituting fresh civil proceedings for a return of the seized money. This court enjoys full jurisdiction and has wide discretion to order the return of the seized money to the 2nd Respondent.
In the result, I make the following order:-
1. The order to return the seized money to 2nd Respondent made by 1st Respondent is hereby set aside.
2. It is ordered that the Zimbabwe Revenue Authority, Beitbridge, be and is hereby directed to return the seized money to the 2nd Respondent forthwith.
3. There is no order as to costs.
Moyo J agrees......................................................
Civil Division, National Prosecuting Authority, applicant’s legal practitioners
Tererai legal practice, 2nd respondent’s legal practitioners