HIGH COURT OF ZIMBABWE
KAMOCHA AND MAKONESE JJ
BULAWAYO 11 MAY AND 4 JUNE 2015
Mr Sengweni for the appellant
Mr T Makoni for the respondent
MAKONESE J: On 10 December 2014, the appellant imported liquor products from South Africa into Zimbabwe through the Beitbridge Border Post. Appellant contracted one Godfrey Zulu, a clearing agent employed by ASB Agencies, a clearing agency based at Beitbridge to handle the clearance of the liquor products with the Zimbabwe Revenue Authority (ZIMRA). Appellant paid Godfrey Zulu the full amount required in respect of customs duty who failed to remit the funds to ZIMRA. Godfrey Zulu converted the money to his own use and instead forged the relevant clearance papers. The offence came to light when the truck carrying the consignment of liquor products was intercepted by alert ZIMRA officers. This led to the seizure of the truck and the consignment, and eventually Godfrey Zulu was arrested and charged for smuggling and was arraigned at Beitbridge magistrate court on 18 December 2014. For his criminal conduct, Godfrey Zulu was sentenced to pay a fine of $2000 or in default of payment 6 months imprisonment for contravening section 182 (1) of the Customs and Excise Act [Chapter 23:02]. The smuggled goods were forfeited to the state.
The appellant being the owner of the forfeited goods is aggrieved by such forfeiture and has filed an appeal against the order of forfeiture. This appeal has been filed in terms of section 209 (6) of the Customs and Excise Act.
The issues for determination in this appeal are as follows:
- Whether the court a quo was aware that the property in question belonged to the appellant or a third party.
- Whether the appellant was heard before an order adverse to it in respect of the forfeited goods was made by the court a quo.
- Whether the forfeiture order was made in accordance with the terms of section 209 (1) of the Customs and Excise Act.
- Whether the forfeiture order complied with the provisions of section 209 (3) of the Customs and Excise Act.
There can be no doubt that the court a quo was aware that the forfeited property belonged to the appellant, a third party. The state outlines clearly reveals that the consignment belonged to a third party. The state outline also indicates that Godfrey Zulu, a clearing agent was contracted by the appellant to clear the goods with ZIMRA. There could not have been any doubt in the mind of the trial magistrate regard being had to paragraph 5 of the state outline which is in the following terms:
“5. On 7 December 2014, the importer hired the services of accused person to do customs clearance procedures for the appellant.”
In her response to the Notice of Appeal the trial magistrate averred as follows;
“When the court convicted Godfrey Zulu (the convicted person) it was not submitted that the goods did not belong to the convicted person. The court could thus not use section 209 (3) (b) of the Customs and Excise Act. At the time the court made the forfeiture order it believed the goods belonged to the convicted person and imposed an additional penalty in terms of section 209 (1) (b) (i) of the Customs and Excise Act.”
The assertion by the trial magistrate that she was not aware that the goods belonged to a third party is simply untrue as the papers on the record and the charge sheet specifically indicate that Godfrey Zulu was contracted to clear the goods on behalf of the appellant. Appellant’s ownership or interest in the forfeited goods was always known to the court a quo. In my view the conviction of Godfrey Zulu for violation of section 82 of the Customs and Excise was proper. It is the additional penalty of forfeiture of the goods that needs to be examined.
The court may impose as an additional penalty forfeiture of goods in terms of section 209 (1) (b) (i) of the Customs and Excise Act, which provides as follows:
“Without derogation from the provisions of section one hundred and ninety three, a court, may in addition to passing sentence – subject to subsection (3) declare any such articles to be forfeited to the state.”
The forfeiture of the appellant’s goods was therefore under the provision in the Act and not in terms of the general forfeiture provision in the Criminal Procedure and Evidence Act [Chapter 9:07], being section 62 thereof. The court a quo misdirected itself in treating the forfeiture of the appellant’s goods in terms of section 62 of the Criminal Procedure and Evidence Act when dealing with forfeiture as provided under the Customs and Excise Act. It is clear that the court fell into error in dealing with the forfeiture outside the provisions of the Act governed by the Customs and Excise Act. In this regard reference is made to section 209 (3) (c) of the Customs and Excise Act which provides as follows:
“A court shall not, in terms of subparagraph (i) of paragraph (b) of subsection (i) declare forfeited to the state, any articles unless or until the owner thereof has been given an opportunity to be heard.”
In the instant case, the learned trial magistrate failed to adhere to the peremptory provisions of the Act and violated the appellant’s rights to be heard. This goes against the principles of the audi alterrim partem rule which is steeped in our law. Section 209 (6) of the Customs and Excise Act is couched in the following terms:
“Where the owner of any articles which have been declared forfeited to the state in terms of subparagraph (1) of paragraph (b) of subsection (1) is aggrieved by the decision of the court as to the forfeiture thereof, he may appeal therefrom as if it were a conviction by the court making the declaration.”
The state did not support the order for forfeiture and conceded that the appeal should be allowed. We support that concession and accordingly it is ordered as follows:
1. The order for forfeiture of the court a quo under Beitbridge CRB No. 1498/14 be and is hereby set aside.
2. It is ordered that the forfeited goods be released to the appellant.
Kamocha J agrees…………………………………..
Mcijo-Dube and Partners, appellant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners