Albano Antonio Manuel Da Cunha and RJA Kellie v Rangarirai Gakanje N.O and The State

The first applicant, a 47-year-old South African national, arrived at Pandamatenga Border Post on 7 November 2015 driving a Nissan UD Truck (registration DR 84LD GP) enroute to Botswana. Upon search by customs officials, a false compartment containing 4114 bricks of Pacific cigarettes was discovered, which had not been declared. The cigarettes and vehicle were seized. The first applicant appeared before a magistrate at Victoria Falls on 27 November 2015, charged with smuggling in contravention of section 182(1) of the Customs and Excise Act [Chapter 23:02]. He pleaded guilty and was sentenced to pay a fine of US$2000 or in default 6 months imprisonment. The seized cigarettes and the motor vehicle were ordered forfeited to the state. The vehicle belonged to the second applicant, RJA Kellie, who was not given an opportunity to be heard before the forfeiture order.

• Whether a junior magistrate had jurisdiction to impose a fine of US$2000 when section 208 of the Customs and Excise Act limited such magistrates to imposing fines not exceeding level eight (US$500)
• Whether the trial magistrate erred in ordering forfeiture of the motor vehicle without giving the owner an opportunity to be heard as required by section 209(3)(c) of the Customs and Excise Act
• Whether the forfeiture order was competent where the magistrate had doubts about whether the compartment was designed for smuggling and where there was no evidence the owner authorized or was aware of the vehicle's use for smuggling

1. The sentence of US$2000 imposed on the first applicant was set aside and substituted with a fine of US$500. 2. The forfeiture of vehicle number DR 84 LD GP was set aside. 3. The vehicle was to be released to the second applicant or his legal representative within 48 hours of the date of the order.

1. A junior magistrate lacks jurisdiction to impose a sentence exceeding the limits prescribed in section 208 of the Customs and Excise Act (Level 8 fine of US$500), and any sentence exceeding this limit is incompetent. 2. Section 209(3)(c) of the Customs and Excise Act mandates that before a vehicle can be forfeited, the owner must be given an opportunity to be heard to establish whether they were aware or should have been aware that the vehicle was being used for smuggling purposes. 3. Failure to afford the owner of property (distinct from the accused) an opportunity to be heard before ordering forfeiture constitutes a serious irregularity that renders the forfeiture order defective and incompetent.

The court noted that the Public Prosecutor himself did not seek forfeiture of the vehicle, recognizing the evidential and procedural difficulties. The court observed that even the trial magistrate had expressed doubts about whether the compartment was designed for smuggling or was part of the manufacturer's design, yet proceeded to order forfeiture despite these doubts. The court also implicitly acknowledged that there was no evidence suggesting the owner (second applicant) had authorized the use of his vehicle for smuggling or any unlawful purpose, or that he was aware of such use.

This case is significant in Zimbabwean law as it affirms the importance of magistrates adhering to their jurisdictional limits in sentencing under the Customs and Excise Act. More importantly, it establishes that the audi alteram partem (right to be heard) principle must be strictly observed before forfeiture orders are made against property owners who are not the accused persons. The case reinforces that procedural safeguards in section 209(3)(c) of the Customs and Excise Act are mandatory, not discretionary, and that property cannot be forfeited from an owner without giving them an opportunity to explain whether they knew or should have known of the unlawful use of their property. The judgment protects innocent third-party property owners from arbitrary forfeiture.