Puwayi Chiutsi v Commissioner of Police & 3 Ors

### Preamble
HH 65-05
HC 2756/05
PUWAYI CHIUTSI
vs
COMMISSIONER OF POLICE
---------


==============================

PUWAYI CHIUTSI
vs
COMMISSIONER OF POLICE
and
SUPERINTENDENT MAKODZA
and
ZIMBABWE REVENUE AUTHORITY
and
MR NDLOVU

HIGH COURT OF ZIMBABWE
BHUNUN J
HARARE, 21 June 2005 and 27 July 2005

Urgent Chamber Application

Mr Mapfunde, for the applicant
Mr Butau-Mocho, for the 1st and 2nd respondents
Mr Moyo, for the 3rd and 4th respondents

BHUNU J: This is an urgent application seeking a final order committing 1st and 2nd respondents to imprisonment for contempt of court. It also seeks to interdict the 3rd and 4th respondents from confiscating the applicants Motor Vehicle being a Mercedes Benz S320 registration No. 825-412L, Chassis No. WDB220652A 114144, Engine No. 11294430690891 and costs of suit.

In the interim the applicant seeks an interdict barring 3rd and 4th respondents from interfering or dispossessing the applicant of the said motor vehicle. He further seeks an order for the immediate release of the motor vehicle from seizure in terms of the Customs and Exercise Act [Chapter 23:02]. The facts giving rise to this urgent chamber application are to a large extent common cause. The undisputed facts are that the applicant purchased the motor vehicle in question from one P Moharaj of Yaz Fashions (Pvt) Limited on the 12th April, 2005. He paid the full purchase price but the mode of payment is in dispute.

He claims that payment was effected in local currency whereas the state alleges that payment was in foreign currency in contravention of The Exchange Control Regulations.


It is however not necessary to resolve that dispute of fact at this juncture. Suffice it to say that the police acting under the command of the 2nd respondent in his capacity as Officer Commanding Vehicle Theft Squad threatened to impound the said motor vehicle from the applicant alleging that it had been stolen from South Africa.

The applicant being a lawyer and conscious of his rights took pre-emptive action and obtained an interdict from this court on the 2nd of June 2005 barring the police from impounding the said motor vehicle or interfering with his right of possession.

Having cause to believe that the motor vehicle might have been improperly imported and registered with the Central Vehicle Registry, the 2nd respondent passed on information to the 4th respondent.

Acting upon the information received the 4th respondent an officer under the employ of the 3rd respondent instituted investigations into the propriety or otherwise of the importation of the motor vehicle.

The investigations unearthed a number of factors, tending to suggest that the importation and registration of the motor vehicle was shrouded in mystery and irregularities. Some of the irregularities were as follows:

1. The customs clearance certificate for the motor vehicle could not be found and the applicant was unable to produce a copy although it was common cause that the motor vehicle had been imported from South Africa on the 8th of January 2005.

2. A search at Central Vehicle Registry revealed that the motor vehicle had not been registered in the normal way. It was discovered that the motor vehicle had been allocated a number reserved exclusively for Government motor vehicles, not withstanding that it is a civilian motor vehicle.

3. The applicant was unable to produce any proof that import duty had been paid for the motor vehicle.

It is clear that the above factors raise more questions than answers. Section 204 of the Customs and Excise Act [Chapter 23:02] places the onus of proving that the importation of the motor vehicle in question was regular and lawful on the applicant.

The applicant was unable to give a convincing explanation regarding the lawfulness or otherwise of the importation of the motor vehicle in dispute. His difficult is understandable. He is not the one who imported the motor vehicle into the country. He was not the one who registered the motor vehicle with Central Vehicle Registry. He was not furnished with documentation or an explanation regarding the circumstances surrounding the importation of the said motor vehicle. The motor vehicle is not registered in his name.

The long and short of it all is that the applicant has no knowledge of the circumstances surrounding the importation and registration of the motor vehicle in question. He merely relies on an agreement of sale between himself and Yaaz Fabrics (Pvt) Limited dated 12th April, 2005 dully represented by P Maharaj.

P Maharaj was unable to shed any light regarding the importation and registration of the motor vehicle because he did not import the motor vehicle into the country as well, nor caused its registration.

In his sworn affidavit to the police P Maharaj deposed that he obtained the motor vehicle from a friend one Mike Chiodza as payment for a debt. He in turn sold the Motor Vehicle to the applicant. Beyond that he was unable to shed any light on the circumstances surrounding the importation and registration of the motor vehicle.

It is common cause that before an imported motor vehicle can be validly registered the person seeking registration must produce a valid customs clearance certificate. It is also not in dispute that when purchasing an imported motor vehicle the buyer has the duty to obtain the necessary documentation from the seller.

The applicant having failed to produce the necessary documentation or to give a satisfactory explanation regarding the importation and registration of the motor vehicle, the 4th respondent had cause to entertain a reasonable suspicion that the importation and registration of the motor vehicle was irregular.

That being the case, he proceeded to impound the motor vehicle in terms of section 193 of the Act. That section provides as follows:

"193 (1) subject to subsection (3), an officer may seize any goods or vehicle (hereinafter) in this section referred to as articles) which he has reasonable grounds for believing are liable to seizure." Goods which are liable for seizure include goods imported in contravention of the Act or otherwise unlawfully brought into the country.

The facts I have recounted above clearly establish beyond question that the circumstances under which the motor vehicle was imported and registered in this country may very well be tainted with illegality. That being the case the 4th respondent acted reasonably and within his rights when he impounded the said motor vehicle in terms of section 193 of the Act.

The 4th respondent's conduct in impounding the said motor vehicle is however subject to internal regulation. If the applicant was aggrieved by the seizure of the motor vehicle he was free to approach the Director for relief in terms of section 193 of the Act. Thus the applicant had at his disposal speedy and appropriate domestic remedies which he chose not to utilise.

Apart from the need to exhaust domestic remedies before approaching the courts, section 196 precludes the applicant from approaching the courts before observing laid down procedures. The section provides that:

"(1) No civil proceedings shall be instituted against the state, the Director or an officer for anything done or omitted to be done by the Director or an officer under this Act or any other law relating to customs and excise until sixty days after notice has been given in terms of the State Liabilities Act [Chapter 8:14].
As the laid down 60 days period has not yet expired this application is ill-conceived and premature. The section is mandatory and admits of no exception because it constitutes a prohibition without making provision for any exception.
 Having come to the conclusion that the seizure was lawful and that the application to court is premature the application cannot succeed.

It is accordingly ordered that the application be and is hereby dismissed with costs.

Manase and Manase, the applicant's legal practitioners
Civil Division of the Attorney General's Office, 1st and 2nd respondents' legal practitioners
Kantor & Immerman, the 3rd and 4th respondent's legal practitioners
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