Tawanda Mungate and Kenneth Mushaikwa v Gloria Takundwa (N.O) and Zimbabwe Revenue Authority

The first applicant owned a Nissan Vanette motor car (ADK 0694) and the second applicant owned a Mitsubishi Delica motor vehicle (ABU 6387). They left their cars with a mechanic, Calistas Musinyakore, at Mashakada Business Centre in Beitbridge for repair and service. On 12 October 2015, when they went to collect their cars, they found neither the cars nor the mechanic. On 14 October 2015, they learned that the second respondent's (Zimbabwe Revenue Authority) officials had seized the cars, which had been used in unlawful transportation of 220 Chelsea boxes of cigarettes liable for unpaid excise duty. The applicants assisted in tracking down the owner of the cigarettes, one Richard Tafirei, who was subsequently arrested and convicted by the Beitbridge Magistrates' Court for contravening s 184(e) of the Customs and Excise Act. Upon conviction, the magistrate ordered forfeiture of the applicants' motor vehicles to the State. The applicants were not heard before the forfeiture order was made. The conviction and forfeiture order were confirmed on review. The applicants then brought an application for a declaratur to set aside the forfeiture order and have their vehicles returned.

• Whether a declaratory order is the appropriate procedure to set aside an extant criminal court order of forfeiture
• Whether the applicants complied with s 196 of the Customs and Excise Act regarding notice requirements
• Whether the second respondent was properly joined to the application
• Whether the applicants pleaded a cause of action against the second respondent
• Whether the forfeiture order made without hearing the applicants violated their constitutional rights to a fair hearing and property rights

The application was dismissed with costs.

An extant court order cannot be set aside by way of a declaratory order. The only recognized methods for setting aside a properly entered court order are: (1) a successful appeal, (2) a successful review, or (3) a successful application for rescission of judgment. Where a criminal court has ordered forfeiture of property belonging to third parties, the proper remedy for those third parties is either: (a) an appeal in terms of s 209(6) of the Customs and Excise Act, which grants owners of forfeited articles locus standi to appeal as if it were a conviction; or (b) an application under s 62(4) of the Criminal Procedure and Evidence Act within three years of the forfeiture declaration, with a right of appeal under s 62(5) if unsuccessful. A declaratory application is not an appropriate substitute for these prescribed statutory remedies.

The court observed that the trial magistrate's response to the reviewing court's query contained clear misstatements, as the record contained no evidence supporting the magistrate's assertion that the applicants hired the vehicles to the accused or were aware of the illegal purpose. The court noted that the applicants' case would have been strong on appeal, as they could have taken advantage of s 209(3)(b)(i) read with subs (6) of the Customs and Excise Act and successfully argued that: (a) the court should not have forfeited their vehicles without hearing them; (b) the vehicles were not the convicted person's property; (c) they were unaware of the illegal use; and (d) they could not prevent such use. The court characterized the applicants' abandonment of their initial appeal (HC 743/18) and choice of an inappropriate procedure as "self-inflicted injury." Regarding the notice requirement under s 196, the court observed that while the notice of 17 November 2017 technically sufficed under the principle in Ronald Machacha v Zimbabwe Revenue Authority HB 186/11, it was misplaced because the court, not the second respondent, ordered the forfeiture, and the second respondent could not be accused of wrongful action.

This case is significant in Zimbabwean civil and criminal procedure for establishing that: (1) extant court orders, including criminal forfeiture orders, cannot be set aside through declaratory orders but must follow prescribed procedures (appeal, review, or rescission); (2) it clarifies the proper remedies available to third-party owners of property forfeited in criminal proceedings, specifically under s 209 of the Customs and Excise Act and s 62 of the Criminal Procedure and Evidence Act; (3) it emphasizes the importance of selecting the correct procedural mechanism and adhering to statutory time limits; and (4) it demonstrates the courts' strict approach to procedural requirements and the consequences of abandoning proper legal avenues. The case also illustrates the tension between property rights and criminal forfeiture powers, and the procedural safeguards available to innocent third-party property owners.