Listerfill Enterprises (Pvt) Limited v Officer in Charge Mutare ZRP (Criminal Investigations)

Listerfill Enterprises, a company trading in small-scale mining equipment, secured AMOREF gold crushing machines from South Africa for resale in Zimbabwe. In 2019, it hired a South African expert (Mario Wasserman) to demonstrate the machines to miners in Mutare, giving him two machines for this purpose. The expert was involved in a road traffic accident and returned to South Africa, leaving the machines at a war veterans' office in Mutare with instructions that they not be sold, used, or removed without his consent. The machines subsequently went missing. A police report was filed and one machine was recovered by ZRP on 20 September 2019 from Isaac Tendai Bhamusi in Harare. The machine was seized as an exhibit. Theft charges were preferred against Anusu Pariyani and Jefrey Ngome. Three parties claimed ownership of the recovered machine: the applicant, Ngome (claiming it was collateral for a debt), and Bhamusi (claiming he purchased it from Ngome). The police refused to release the machine to the applicant, citing the ownership dispute and the need to use it as an exhibit in the pending criminal trial. The applicant sought an order for the release of two machines to it.

• Whether the police were obliged to release the recovered machine to the applicant under section 58A of the Criminal Procedure and Evidence Act
• Whether the court could determine ownership of the machine in the absence of the other claimants as parties to the proceedings
• Whether the police were entitled to retain the machine as an exhibit for pending criminal proceedings
• Whether the applicant established its ownership of the recovered machine
• The number of machines actually recovered by the police (dispute of fact between applicant's claim of two machines and respondent's evidence of one machine)

The application was dismissed with costs of suit.

Where property seized by police is the subject of competing ownership claims by multiple parties, a court will not order its release to one claimant in motion proceedings where the other claimants have not been joined as parties and given an opportunity to present their case. Section 58A of the Criminal Procedure and Evidence Act does not require release of seized property to an applicant who was not the possessor at the time of seizure and whose ownership is disputed. Where a seized article is intended to be used as an exhibit in pending criminal proceedings and ownership is disputed, a court will not order its release, as the ownership dispute should be resolved either at the conclusion of the criminal trial or through civil proceedings with all claimants as parties. A court will not make findings that effectively determine the guilt of accused persons in pending criminal matters, as they are presumed innocent until convicted.

The court observed that while it must insist that police comply with section 58A of the CP&E Act, which is crafted in strict terms to safeguard against unjustified interference with the right to property and other fundamental rights, the present case did not fall within the ambit requiring such enforcement given the disputed ownership and pending criminal proceedings. The court noted that it is a court of law and whatever decision it makes must be grounded in law, and it cannot unnecessarily interfere with processes pending in lower courts. The court commented that a thief can neither pass title in the thing he has stolen, nor could a third party acquire valid title from a thief (though this principle was not determinative as no finding of theft had been made).

This case establishes important principles regarding the release of seized property where ownership is disputed and criminal proceedings are pending. It demonstrates the limits of section 58A of the Criminal Procedure and Evidence Act in circumstances where the applicant was not the possessor at the time of seizure and multiple parties claim ownership. The judgment reinforces procedural fairness principles requiring that all parties with a direct and substantial interest in property must be joined to proceedings that may affect their rights. It also illustrates the court's reluctance to interfere with pending criminal proceedings in lower courts or to prejudge criminal matters by making findings that would effectively determine guilt before trial. The case clarifies that courts will not determine ownership disputes in motion proceedings where interested parties have not been joined and afforded an opportunity to be heard.