Bernard Chiondegwa v The Director of Customs and Excise

On 22 April 1999, the Director of Customs and Excise seized a BMW motor vehicle registered in the appellant's name on the ground that no duty was paid when it was imported into Zimbabwe. The appellant, a former employee of the Department of Customs and Excise, claimed he purchased the vehicle from Innocent Gumbura for $506,000.00, paying with five company cheques from Con-Plant Technology (Pvt) Ltd. The appellant alleged Gumbura had a Customs Clearance Certificate. Investigations revealed the vehicle was fraudulently registered twice: first by Vincent Chakala in 1997 using fake Customs Clearance Certificate number 630815, and again in 1999 using fake certificate number 698818 in the name of Joyce Chasara. At the time of appellant's alleged purchase, the vehicle was registered in Joyce Chasara's name, not Gumbura's. Gumbura later referred investigators to Temba Dube, who could not be located. Neither Gumbura's nor Dube's names appeared on any Customs Clearance Certificates. The appellant applied to the High Court for release of the vehicle, which was dismissed with costs.

• Whether the vehicle was seized lawfully under section 193(1) of the Customs and Excise Act
• Whether the appellant acquired the vehicle for its true value while unaware it was liable to seizure, as required by section 193(3) of the Act
• Whether the appellant complied with the evidentiary requirements of section 222(1) of the Act to prove payment of duty or to enable officers to locate the person who imported the vehicle and paid duty

The appeal was dismissed with costs.

1. Under section 193(3) of the Customs and Excise Act, a person seeking to avoid seizure of goods acquired after importation must prove: (a) acquisition for true value; and (b) that they were unaware the goods were liable to seizure. The burden of proof lies on the person claiming such protection. 2. Acquisition is not "for true value" where the purchase price is substantially below the actual value of the goods. 3. Failure to conduct proper due diligence, such as verifying that the registered owner matches the seller, and failure to explain such discrepancies, creates a strong inference against bona fide acquisition and awareness of liability to seizure. 4. Under section 222(1), a person in possession of imported goods must produce evidence sufficient to enable customs officers to actually locate and question the person who imported the goods and paid duty. Merely providing names of intermediaries who cannot be located or verified is insufficient. 5. Failure to provide truthful and complete information to customs officers, including material facts about registered ownership, means the person has not complied with section 222(1).

The Court made observations about the appellant's conduct suggesting lack of bona fides, noting it was "very strange" that the appellant failed to explain why cheques were issued to Gumbura rather than the registered owner Joyce Chasara. The Court also commented that "assuming that he was a prudent buyer, he would have examined the registration book before purchasing the vehicle," suggesting an expectation of due diligence in vehicle purchases. The Court's description of the appellant as "not being truthful" when he failed to inform the respondent about Joyce Chasara's registered ownership suggests that candor and full disclosure to customs authorities is expected, though this was not strictly necessary for the ratio decidendi based on failure to meet statutory requirements.

This case is significant in Zimbabwean customs law as it clarifies the burden of proof on persons claiming innocent acquisition of goods liable to seizure. It establishes strict requirements for what constitutes acquisition "for true value" and being "unaware" of liability to seizure under section 193(3) of the Customs and Excise Act. The judgment emphasizes that purchasers of vehicles must conduct proper due diligence, including verifying registered ownership matches the seller, and that failure to disclose material facts (such as discrepancies between registered owner and seller) will be viewed as evidence of lack of bona fides. It also interprets section 222(1) to require substantial, truthful evidence enabling customs officers to locate the actual importer, not merely naming intermediaries who cannot be verified.