State v Prince Ndlovu

On 25 August 2020 at approximately 2100 hours at Syringer turn off along Bulawayo-Plumtree road, police intercepted a Toyota Hiace vehicle registration No. ABQ 6011 driven by the accused. Upon searching the vehicle, they found 66 x 30 litres of petrol and 200 litres x 2 of petrol. The accused was arrested and charged with storing or selling hazardous substances without a licence. The accused was convicted on his own plea of guilty by a Magistrate at Plumtree on 27 September 2020 and sentenced to pay a fine of ZWL $1,200.00 or in default 90 days imprisonment. The Magistrate also ordered that the petrol be forfeited to the State and disposed of by public auction. The matter was referred to review by the Regional Magistrate at Plumtree.

• Whether section 10(3) of the Environmental Management Act (Control of Hazardous Substances) (General) Regulations 2018 creates an offence
• Whether miscitation of the statutory provision was fatal to the proceedings
• Whether the trial court had jurisdiction to prescribe to the State the method of disposal of forfeited items
• Whether the court's direction that exhibits be disposed of by public auction was competent

The conviction and sentence were confirmed with an amendment. The sentence was amended by deleting the last sentence directing that 'The exhibit to be disposed by public auction.' The final sentence read: 'The accused is sentenced to $1,200-00 in default of payment 90 days imprisonment. The 66 x 30 litres petrol and 200 litres petrol x 2 be and are hereby forfeited to the State.'

The binding legal principles established are: (1) A miscitation of a statutory provision is not fatal to criminal proceedings where the court complies with the substantive provisions in question, canvasses the correct essential elements of the offence, and the accused is not prejudiced (applying section 202(3) of the Criminal Procedure and Evidence Act); (2) A trial court's jurisdiction in relation to seized hazardous substances ends upon making a forfeiture order to the State; (3) Courts do not have the power to prescribe the method of disposal of items forfeited to the State under section 17(3) of the Environmental Management (Control of Hazardous Substances) (General) Regulations 2018; (4) The jurisdiction to determine the manner of disposal of forfeited hazardous substances vests in the Agency as provided for in the relevant regulations, not in the courts.

The court made non-binding observations that: (1) If courts were permitted to prescribe methods of disposal, it would open floodgates for Magistrates across the country to choose whatever mode of disposal they preferred, which would be chaotic; (2) It is improper for a Magistrate to take judicial notice of alleged police abuse of office, as such reasoning is based on extra-judicial information and constitutes an 'abstruse argument'; (3) The court acknowledged difficulties in locating the relevant statute, noting 'I must confess I also struggled to locate the relevant statute leading to some delay in preparing this judgment.'

This case is significant in Zimbabwean criminal procedure and environmental law as it clarifies the limits of judicial authority in relation to forfeited items. It establishes that while courts have the power to order forfeiture of items to the State, they do not have jurisdiction to prescribe the method of disposal of such items. The case delineates the respective roles of the judiciary and the Agency in dealing with seized hazardous substances, confirming that disposal is an administrative function vested in the Agency rather than a judicial function. The case also reinforces the principle that technical errors in citation are not fatal if the essential elements of the offence are properly canvassed and the accused is not prejudiced.