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Fidelis Munyoro

Chief Court Reporter

The owners of two vehicles seized when a cigarette smuggling operation was aborted last year have successfully appealed to the High Court to have their vehicles returned and the forfeiture orders overturned.

Tawanda Mungate and Kenneth Mushaikwa said their vehicles had been hired without them knowing that they were being used in smuggling operations and that they had never had an opportunity to put their case before the Beitbridge regional magistrates court ordered the vehicles forfeited to the State.

In the operation the two vehicles were intercepted along the way to Beitbridge but the drivers escaped. However, police managed to trace the source of the goods, leading to the arrest of on Richard Tafireyi Richard.

Richard was convicted after pleading guilty to breaching the Customs and Excise Act by acquiring 228 crates of cartons of cigarettes, without the required prior payment of paying excise duty or surtax, from a company in Harare.

He was fined $2 000 and the 228 boxes plus the two vehicles, a Nissan Vanette and a Mitsubishi Delica, were forfeited to the State.

Mungate and Mushaikwa challenged the forfeiture of their vehicles which had been hired to ferry the goods.

When magistrate Ms Gloria Takundwa granted the State’s application for forfeiture of the vehicles, neither Mungate and Mushaikwa were given the opportunity to be heard before the order was made.

On that basis Justice Phildah Muzofa and Justice Benjamin Chikowero, hearing the appeal, overturned the lower court’s decision on the vehicles although upheld Richard’s fine and the confiscation of his cigarettes.

Writing the judgment for the court, Justice Phildah Muzofa said in considering the appropriate order,

“We considered remitting the matter for magistrate to hear the appellants on the issue for forfeiture.

“However, in view of the lapse of time we believe it is in the interest of justice that the order be set aside without further ado. The order ought not to have been made in the circumstances in which it was granted.”

Justice Muzofa said that there was no information before the court to help it come to the appropriate decision on the matter.

“We may as well conclude that the decision was thumb suck, the court just decided not to hear the owners based on nothing. Clearly the court fell into error,” said Justice Muzofa.

The trial court was also found wanting for not giving reasons for the forfeiture and that failure was a misdirection.