Tawanda Mungate and Kenneth Mushaikwa v Gloria Takundwa (N.O) and The State

Richard Tafirei illegally acquired goods without paying excise duty or surtax from a company in Harare. The goods were transported to Beitbridge in two motor vehicles owned by the appellants. The motor vehicles were intercepted along the way but the drivers escaped. Richard Tafirei was eventually arrested and charged with contravening section 184 of the Customs and Excise Act [Chapter 23:02]. He pleaded guilty and was sentenced to a fine of $2000 or 10 months imprisonment in default. The goods and the motor vehicles (a Nissan Vanette registration number ADK 0694 and a Mitsubishi Delica registration number ABU 6387) were forfeited to the State. The appellants, who claimed ownership of the motor vehicles, applied unsuccessfully to set aside the forfeiture order and for release of the vehicles. They then appealed to the High Court.

• Whether the right to be heard before forfeiture is mandatory where the court is aware that the convicted person is not the owner of the property subject to forfeiture
• Whether a court can forfeit property belonging to third parties without affording them an opportunity to be heard
• Whether the trial court properly exercised its discretion under section 209(3)(c)(ii) of the Customs and Excise Act in declining to hear the vehicle owners
• Whether the trial court erred in forfeiting the appellants' vehicles without proving negligence or intention on the part of the appellants
• What is the proper legal basis for forfeiture orders under the Customs and Excise Act

The appeal was upheld. The forfeiture order in respect of the two motor vehicles was set aside. The sentence was altered to: (1) $2000 fine in default of payment 10 months imprisonment; the 228 boxes of cigarettes are forfeited to the State; (2) The Nissan Vanette registration number ADK 0694 and the Mitsubishi Delica registration number ABU 6387 shall be released to the appellants forthwith.

A court cannot forfeit property belonging to third parties without affording them an opportunity to be heard, unless there is clear evidence before the court to justify the exercise of discretion under section 209(3)(c)(ii) of the Customs and Excise Act to dispense with such hearing. The discretion to forfeit goods without hearing the owner must be exercised with utmost care, as it involves limiting a fundamental right and giving a prejudicial order. A trial court must satisfy itself on proper evidence that there are good reasons not to hear the owners before declining to do so. Failure to give reasons for a forfeiture order constitutes a misdirection. Where a statute provides for forfeiture, the court must make an order in terms of that statute and not look to other laws. The provisions of the Customs and Excise Act do not impose strict liability for forfeiture of third-party property.

The court observed that it may be useful for a trial court considering forfeiture to enquire from the accused person whether the mode of transport used belonged to them or not. The court noted that the Magistrate's response to the notice of appeal, while assisting the appeal court and parties, is not at the same level as findings in the matter forming the subject of appeal, and that an appeal must be determined within the four corners of the record of proceedings. The court commented that section 209(3) of the Customs and Excise Act is elaborate and self-contained, and its provisions apply where forfeiture is made in terms of subsection (1)(b)(i) thereof, not where forfeiture is made under section 188(2)(b). The court expressed concern about being forced to rely on information outside the record of proceedings, noting the magistrate's response to the reviewing judge contained details about the appellants' alleged knowledge that did not appear in the record.

This case establishes important principles regarding the protection of property rights and procedural fairness in forfeiture proceedings in Zimbabwe. It affirms that the right to be heard (audi alteram partem) is a cornerstone of a democratic society and must be respected even in criminal forfeiture proceedings involving third-party property owners. The judgment clarifies that courts cannot exercise discretion to dispense with the hearing of property owners without proper evidence and justification, and that such discretion must be exercised judiciously given that it involves limiting fundamental rights. The case also emphasizes the importance of proper judicial reasoning, requiring courts to give clear reasons for forfeiture orders and to identify the correct statutory basis for such orders. It provides guidance on the interpretation and application of sections 188 and 209 of the Customs and Excise Act, particularly regarding forfeiture of property belonging to persons other than those convicted of offences.