Talkmore Chigeza v Assistant Commissioner Mvere and Others

The applicant, Talkmore Chigeza, was employed by Mbada Diamonds as a sorter. On 22 March 2014, police invited him to his homestead in Bocha where they seized two motor vehicles: a Honda Fit registered to Charles Gonzo (registration ACV2829) and an unregistered Mercedes Benz Sprinter. The seizure occurred during criminal investigations into Mudassar Khan (alias Guddu) for illegal dealing in precious stones. The applicant initially claimed the vehicles did not belong to him but were in his possession for test-driving purposes. However, he gave a sworn statement on 24 March 2014 admitting that he had illegally sold diamonds to Khan on multiple occasions and that Khan had purchased both vehicles for him as payment/rewards, registered in Charles Gonzo's name as an agent. The applicant later claimed he was tortured into making this statement and sought the return of the vehicles through a spoliation order.

• Whether the applicant was in peaceful and undisturbed possession of the motor vehicles
• Whether the police lawfully deprived the applicant of possession of the vehicles
• Whether the seizure of the vehicles under section 49 of the Criminal Procedure & Evidence Act constituted spoliation
• Whether the court should interfere with ongoing criminal proceedings by ordering return of exhibits

The application was dismissed with costs.

Where the state seizes property pursuant to section 49 of the Criminal Procedure & Evidence Act on reasonable grounds that the property is connected with the commission of an offence or may afford evidence of such commission, such seizure does not constitute unlawful spoliation even if the applicant was in prior possession. The deprivation is lawful by virtue of statutory authority. A court will not grant spoliatory relief to restore possession of property held as exhibits in ongoing criminal proceedings, as this would constitute unjustified interference with the criminal process. Disposal of seized exhibits must await the conclusion of criminal proceedings and be dealt with under section 61(1) of the Criminal Procedure & Evidence Act.

The court observed that the applicant's position was contradictory and confusing, alternating between denying ownership of the vehicles and claiming they were unlawfully taken from him. The court noted the applicant was "probably lucky" not to be prosecuted himself but was being used as a state witness. Regarding the torture allegations, the court noted this could not be resolved on affidavits and would require viva voce evidence before an appropriate court, though this was not necessary for determining the application. The court also observed that the applicant ought to make an election as to whether the vehicles were his or not - "He cannot have it both ways."

This case clarifies the limits of spoliation relief in Zimbabwe when property has been seized by police pursuant to criminal investigations. It establishes that lawful seizure under statutory authority (section 49 of the Criminal Procedure & Evidence Act) constitutes a valid defense to spoliation claims. The judgment reinforces the principle that civil courts should not interfere with ongoing criminal proceedings by ordering return of exhibits before trial conclusion. It also demonstrates the application of the two-fold requirements for spoliatory relief and the available defenses, consistent with established South African and Zimbabwean jurisprudence on spoliation.