Jotam Gonese & Anor v The State & Ors

The two applicants and three others were arrested in December 2009 for alleged armed robbery and attempted murder at Stanbic Bank in Chegutu. Police seized various items from both applicants including motor vehicles, cash in various currencies, passports, and driver's licences. The applicants were tried at the regional court in Harare and on 20 October 2010 were found not guilty and acquitted. The Attorney General noted an appeal on 24 December 2010 without seeking leave to appeal. The applicants subsequently demanded release of their seized property, but police refused for various reasons including that the items were recovered from another person (Akim Matare), that they were needed for further investigations of accomplices still at large, and that they could only be returned to the person from whom they were seized. The applicants then launched this application to compel the release of their property.

• Whether police are entitled to withhold exhibits seized from an acquitted accused person to facilitate further investigations into other unapprehended suspects
• Whether the Attorney General's appeal was valid without obtaining leave from a judge as required by s 61 of the Magistrates' Court Act
• Whether the respondents' heads of argument filed out of time should be heard or whether they should be barred
• Whether the applicants were lawfully entitled to possess the seized items following their acquittal

The court ordered: (1) The first to fourth respondents to release to the first applicant the Volvo S80 motor vehicle registration number ABE 4378, USD 1,691.00, ZAR 2,650.00, BWP 10, Benki Tanzanian Currency 800.00, Zimbabwean passport, driver's licence and registration book; (2) The first to fourth respondents to release to the second applicant the Isuzu KB motor vehicle registration number 778-217M, the registration book, USD 29,022.00, ZAR 10,180.00, BWP 11,710.00, ZMK 1,000.00, 2 Zimbabwean passports (one current, one expired), satchel with personal clothing and driver's licence; (3) The first to fourth respondents to pay costs jointly and severally on an ordinary scale.

Following acquittal of an accused person, police have no legal basis to retain exhibits seized from that person for the purpose of conducting further investigations into unapprehended suspects. Where items seized are not unlawfully possessed and are not required as exhibits in a pending trial, they must be returned to the person from whom they were seized. An appeal by the Attorney General against an acquittal in the magistrates' court requires leave from a High Court judge as per s 61 of the Magistrates' Court Act (as amended); without such leave, there is no valid appeal. Order 32 r 238(2a) of the High Court Rules is peremptory - failure to file heads of argument within the prescribed time results in automatic barring, and condonation requires a substantive application with proper explanation for delay.

The court noted that legal practitioners, including law officers at the Attorney General's office, frequently flout the rules regarding timely filing of heads of argument. The court emphasized that such practitioners cannot be treated differently from other legal practitioners and must comply with the rules. The court also observed that while there is no specific time limit for the Attorney General to appeal against an acquittal, such appeal must be made within a reasonable time.

This case is significant as it establishes important principles regarding the rights of acquitted accused persons to have their seized property returned, and limits police powers to retain exhibits after acquittal. It clarifies that police cannot indefinitely retain property on the basis of investigating unapprehended suspects where the person from whom the items were seized has been acquitted. The judgment also reinforces procedural requirements for appeals against acquittals (requiring leave from a judge) and strict compliance with rules regarding filing of heads of argument, including the automatic barring of parties who fail to comply with peremptory time limits.