Shoprite Checkers Zimbabwe v The Co-Ministers of Home Affairs and The Officer in Charge – ZRP Licence Inspectorate Section, Drill Hall Bulawayo

On 10 September 2012, police officers from the Licensing Inspectorate Section arrived at applicant's supermarket (Shop 22, Bulawayo Centre) and demanded to see a current liquor licence. The applicant showed proof that a renewal application had been submitted to the Liquor Licensing Board in February 2012 via Fedex courier with proof of payment and supporting documents, but the renewed licence had not yet been issued due to delays at the Board. The police rejected this explanation and arrested George Chirinda, an employee, who paid a $20 admission of guilt fine for trading without a liquor licence. Police then drafted an affidavit which Chirinda was compelled to sign before Inspector Nkomo (Officer-in-Charge Licence Inspectorate), despite his protestations about lacking authority. Police then seized all liquor. When the applicant's legal practitioner attended the police station on 12 September 2012, she was told to appear in court on 14 September 2012, but was later informed that a magistrate had already authorized forfeiture on 11 September 2012 without the applicant being given any opportunity to make representations. The applicant was granted a provisional order on 17 September 2012 and sought confirmation thereof.

• Whether an affidavit commissioned by a police officer with an interest in the matter is valid
• Whether the forfeiture order was properly granted without affording the applicant an opportunity to make representations
• Whether the Provincial Magistrate should have been joined as a party to the proceedings
• Whether the procedure followed by the police and magistrate complied with the requirements of natural justice and procedural fairness

1. The 2nd respondent was ordered to retain and keep in safe custody all seized goods pending determination of the forfeiture issue by a magistrate. 2. The authority to forfeit goods granted by a Bulawayo Magistrate on 11 September 2012 was set aside. 3. The issue of forfeiture was to be determined afresh by another magistrate after affording the applicant the opportunity to make representations. 4. The respondents were ordered to bear costs of the application.

An affidavit commissioned by a person who has an interest in the matter to which the affidavit relates is null and void in terms of section 8 of the Justices of Peace and Commissioners of Oaths Act [Chapter 7:09] and Regulation 1258. Where a police officer involved in seizing goods drafts an affidavit and the senior officer in charge of the same unit commissions that affidavit and uses it to obtain a forfeiture order, the affidavit is invalid due to their interest in the matter. A magistrate cannot properly authorize the forfeiture of seized goods without affording the affected party an opportunity to make representations, particularly where the application is based on an invalid affidavit. Natural justice requires that a person affected by a forfeiture order be given a fair opportunity to be heard before the order is made.

The court distinguished the present case from Acil Marketing (Pvt) Ltd t/a Boot Leggers Bottle Store v Rukada HB-77-10 on the issue of non-joinder of the Provincial Magistrate, noting that unlike in Acil Marketing where the applicant had been properly invited to make representations before the magistrate, in the present case the proceedings were conducted behind the applicant's back and the legal practitioner was misled into believing they would be heard when the authority had already been granted. The court also observed that the respondents misrepresented facts to the magistrate by suggesting that George Chirinda was the accused rather than the applicant company, as evidenced by the deletion and substitution of the representative section in the Admission of Guilt Form.

This case reinforces important principles of administrative justice and procedural fairness in Zimbabwean law. It establishes that law enforcement officials cannot circumvent the requirements of natural justice by obtaining ex parte forfeiture orders without giving affected parties an opportunity to be heard. The judgment also emphasizes the strict requirements for commissioning affidavits under the Justices of Peace and Commissioners of Oaths Act, particularly that commissioners cannot administer oaths in matters in which they have an interest. This is crucial for preventing abuse of process and ensuring procedural integrity in administrative and criminal proceedings. The case serves as a warning against police officers who might be tempted to take procedural shortcuts in forfeiture proceedings, and protects the rights of businesses and individuals to be heard before their property is forfeited.