THE State V TLOU Fredrick

### Preamble
1
HB 162/25
HCBCR 3876/25
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THE STATE

Versus

TLOU FREDRICK

HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 29 SEPTEMBER 2025

Review Minute

NDUNA J: - The accused was convicted by a Regional Magistrate, for smuggling. He was sentenced as follows:

fine of $7 000USD or ZWG equivalent at the prevailing bank rate. In default of in default of payment 5 years imprisonment

In addition, 2 years imprisonment is suspended for 5 years on condition the accused does not within that period commit any offence involving smuggling for which upon conviction the accused shall be sentenced to imprisonment.

The accused was granted time to pay the fine of up to 30 August 2025.

What had transpired was that the accused had smuggled a motor vehicle through the border at Plumtree on 25th July 2025. He was and he appeared before the Learned Regional Magistrate who imposed the sentence in question.

The offence the accused pleaded guilty to is provided as follows: -

182 Smuggling

(1) Any person who smuggles any goods shall be guilty of an offence and liable to—

(a )a fine not exceeding level fourteen or three times the duty-paid value of the goods, whichever is the greater; or

(b) imprisonment for a period not exceeding five years; or to both such fine and such imprisonment.

It follows that a court convicting the accused must impose a fine which is up to level 14 or three times the duty paid value of the goods in question if the court elects to impose a fine. It is the greater of the two which should be imposed. In this case the duty paid value of the motor vehicle is given as USD 42721-32 and USD 1554-82. Therefore, if the court had elected to impose a fine; the limitation to the amount of the fine was three times the value of the motor vehicle in question. In the determination of the fine, the court has to be aware of level 14 fine or three times the duty of the motor vehicle; and the greater is the amount to be imposed as the fine. It must be clear from the court’s reasons for sentence the option taken by the court.

In this case the learned trial Regional Magistrate calculated the amounts and got USD9 331-76 as the three times the duty value of the motor vehicle. There was no reason for the trial magistrate to have failed to impose that amount as the fine. The Customs and Excise Act [Chapter 23:03] seeks to arrest smuggling by imposing those greater fines. Section 209 of the Act is very clear that the court ought to consider ordering forfeiture of the smuggled goods to the state. In the case under consideration the court was silent on the question of forfeiture of the motor vehicle which had been smuggled. It is therefore unknown as to whether the motor vehicle was released to the smuggler or not. It is a requirement that a court must order forfeiture of such motor vehicles over and above any sentence imposed on the offender. However, what a court cannot do is order release of the motor vehicle to the accused. It must be a deliberate act by the court to order the forfeiture of the motor.

It follows that the proceedings cannot be confirmed as being accordance with real and substantial justice in this case.

I accordingly withhold my certificate.

Nduna J :……………………………….

Ndlovu J……………………………… I agree