The State v Columbus Denga and Lizzy Ndabaningi and Maxwell Tazarurwa

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                                                                                 HH 199-21
                                                                           CRB K 600-602/15

THE STATE
versus
COLUMBUS DENGA
and
LIZZY NDABANINGI
and
MAXWELL TAZARURWA


HIGH COURT OF ZIMBABWE
MUZOFA J
HARARE,22 April 2021


Review judgment


       The record of proceedings was placed before me on 22 March 2021 for review with a
cover note by the trial magistrate.
       The substance of the trial magistrate’s concern is as follows. The three accused
persons appeared before the trial court charged with two counts of contravening section 182
(1) (a) and section 47 (1) (e) of the Customs and Excise Act [Chapter 23:02] respectively. On
the first count the accused allegedly smuggled 180kgs of secondhand clothes, 22kgs of new
clothing and 6kgs of new underwear. On the second count they imported prohibited goods.
The state withdrew charges against accused one and two in count one. The third accused
pleaded guilty to the second count. The matter proceeded to trial. The third accused was
convicted on the first count. The first and second accused were found not guilty and acquitted
on the second count. The third accused was the only one subsequently convicted on both
counts. A sentence of US$200 was imposed for both counts. In addition, the goods were
forfeited to the State except for the 180kgs of secondhand clothes that the court ordered
should be returned to the third accused. The court found no proof that the third accused
smuggled the goods.
       Later the trial Magistrate became aware of the proviso to s 193 of the Act that
precludes a criminal court from making an order for the return of seized articles.
       Before addressing the issue raised by the trial Magistrate, I address a fundamental
procedural irregularity in the proceedings.
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The record of proceedings shows that the trial proceeded as against the three accused persons
in respect of count one. The third accused had pleaded guilty to the second count and charges
were withdrawn against the first and second accused persons in respect of count two. At the
close of the state case, the defence lawyer applied for the discharge of the accused persons in
terms of s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The trial
court agreed with the defence lawyer in respect of the first and second accused persons.
However, it did not agree with the defence in respect of the third accused person. It made a
finding that there was no proof that the third accused smuggled the 180kgs of secondhand
clothes. He was therefore liable in respect of the 22 kgs of new clothing and 6 kgs of new
underwear.
       A verdict of not guilty was properly returned for the first and second accused. In the
same ruling made after hearing an application made in terms of s198            the trial magistrate
thereafter continued and penned a judgment in respect of the third accused. He was found
guilty. Mitigation was recorded and a sentence imposed.
       It is trite law that, where an application is made in terms of s 198 (3), and the court
considers that there is evidence that the accused committed the offence charged, it shall place
the accused on his defence. In this case the trial court was required as a matter of law (s198
(6) (a) of the Act ) to proceed with the trial. The accused was not given an opportunity to
ventilate his defence. His right to a fair trial was interfered with. This was a gross
misdirection which requires interference. The verdict was improperly entered. The trial ended
prematurely.
       I revert to the query raised. Section 193 of the Customs Act provides,
       “S 193 (1) subject to subsection (3), an officer may seize any goods, ship aircraft or vehicle
       (hereinafter in this section referred to as articles) which he has reasonable grounds for
       believing are liable to seizure.
       ……..
       Provided that no court sitting as a criminal court for any purposes of this Act shall make any
       order for the return of articles seized 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 of appropriate jurisdiction in which the person from whom the articles have
       been seized has instituted separate civil proceedings for their return” (underlining for my
       emphasis)

       Section 182 (1) of the Customs Act in terms of which the accused was charged creates
an offence of smuggling. The penalty is a fine exceeding level fourteen or three times the
duty paid value of the goods. It does not provide for the seizure of the goods. It is s 193 of the
said Act that empowers an officer in the department of the Zimbabwe Revenue Authority, or
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any person so assigned by the Commissioner General to seize goods. In essence all goods
seized by an officer in terms of this section naturally become regulated by the provisions in s
193. Once goods are seized, the Zimbabwe Revenue Authority through the Commissioner
General becomes the custodian of the goods and they can only be released by it. The rationale
is that, even if the state does not prove its case beyond a reasonable doubt to secure a
conviction, the accused may still be liable to pay duty after due process. An acquittal before a
criminal court does not entitle an accused person to retain the goods. This is the import of the
section.
       Cleary the court fell into error.
       From the above, these proceedings were inundated by two cardinal irregularities, both
in terms of the conviction and the sentence in count one. I would have set aside the
proceedings and ordered a trial de novo but in view of the lapse of time, there is no benefit in
that approach. The third accused has obviously disposed of the goods. This is almost 4 years
later. In addition, the fine imposed is for both counts and it becomes difficult to split it. The
proceedings in the first count cannot be certified to be in accordance with real and substantial
justice. The proceedings in respect of court two are confirmed to be in accordance with real
and substantial justice.




MUZOFA J ………………….