Piteous Gwara v The Officer in Charge (Zimbabwe Republic Police Anti-Corruption Unit, Bulawayo) and DS Ngwenya No. 045898N

On 18 September 2020, the respondents (police) seized the applicant's Toyota Land Cruiser vehicle in terms of section 49 of the Criminal Procedure and Evidence Act for an alleged offence of fraud. Seven months later, no criminal proceedings had been instituted against the applicant, nor had a statement of charge been lodged. The applicant requested the return of his vehicle, which was declined. Subsequently, on 20 April 2021, the police handed the vehicle over to the Zimbabwe Revenue Authority (ZIMRA), which then seized it in terms of the Customs and Excise Act. ZIMRA issued a notice of seizure to the applicant in terms of section 193 of the Customs and Excise Act, informing him that the vehicle was believed on reasonable grounds to be liable to seizure and inviting him to make written representations. The applicant launched this application seeking an order that the police release and return his vehicle.

• Whether the continued detention of the vehicle by the police beyond 21 days without instituting criminal proceedings was unlawful in terms of section 58A(1) of the Criminal Procedure and Evidence Act
• Whether the police could be ordered to release a vehicle that was no longer in their custody and control, having been seized by ZIMRA under the Customs and Excise Act
• Whether ZIMRA should have been joined as a party to the proceedings given its direct and substantial interest in the subject matter
• Whether an order directing the police to release a vehicle in ZIMRA's custody would be enforceable

The application was dismissed with no order as to costs.

A court cannot order the release of property that is not in the custody and control of the party against whom the order is sought. Where property has been seized by a statutory body (ZIMRA) under specific empowering legislation (the Customs and Excise Act), it can only be released in terms of that legislation, not under a different statutory regime (the Criminal Procedure and Evidence Act). An order directing one party to release property in the custody of another party not before the court would be brutum fulmen (unenforceable and of no legal effect), and courts will not grant such orders. A party with a direct and substantial interest in the subject matter of litigation should be joined to the proceedings, and no order can be made against a party not before the court.

The court observed that while it is true that the release of seized property is strictly regulated by law, and that the police must release and return such property to the owner or possessor, and that generally the property should have been released and returned to the applicant (given the failure to institute criminal proceedings within 21 days), the particular facts of this case required further inquiry. The court noted that the dismissal of the application does not amount to a victory for the respondents, but rather a realization that the vehicle has been seized by ZIMRA in terms of the law. The court emphasized that the conventional rule that costs follow the result was not applicable in this matter, recognizing the unique circumstances where the applicant had a legitimate grievance about the initial police seizure but was ultimately seeking relief against the wrong party.

This case is significant in Zimbabwean law (which shares many principles with South African law) as it clarifies the limitations on court orders when property has been transferred between different statutory seizure regimes. It emphasizes the principle that courts cannot grant orders that are brutum fulmen (unenforceable). The case demonstrates the importance of proper joinder when third parties with direct and substantial interests are involved, and confirms that no order can be made against a party not before the court. It also illustrates the interplay between different statutory regimes for seizure of property (Criminal Procedure and Evidence Act versus Customs and Excise Act) and establishes that once property passes from one statutory regime to another, it must be dealt with under the applicable governing legislation. The case reinforces the strict regulation of police seizure powers and the protection of property rights, while also recognizing the legitimate exercise of statutory powers by different agencies.