The State v Charles Nongerai and Others

On 27 August 2012 at around 1340 hours, three accused persons living in Gweru proceeded by car (a green Isuzu Ballet Registration Number AAT 1637) to Wallcose A2 mine at Tongogara Farm, Shurugwi, which was owned by the complainant's mother. They found the complainant's brother, Norest Javangwe, in a shaft underground and enquired about their mother's whereabouts. They then called the complainant into their car and began assaulting her with various weapons, demanding money allegedly owed to them by her mother. She suffered injuries requiring medical attention. The accused forcibly took her into their car and drove her to various locations in Gweru including Ascot Shopping Centre, Mambo Shopping Centre, Irvine shops, and Mkoba 9 and 6, continuing to assault her throughout. They locked her in the car while they drank beer. The complainant was held for approximately 8 hours and messed herself in the vehicle. A report was made to police and the accused were subsequently arrested. They were convicted of assault with intent to cause bodily harm and kidnapping, and sentenced to 5 years imprisonment with the vehicle forfeited to the State.

• Whether the forfeiture of the motor vehicle used in the commission of the offence was appropriate and lawful under section 62 of the Criminal Procedure and Evidence Act [Chapter 9:07]
• What factors should be considered when exercising discretion to order forfeiture of property used in the commission of an offence
• Whether the forfeiture order was disproportionate to the gravity of the offence

The conviction and sentence of 5 years imprisonment were confirmed. The forfeiture order of the vehicle (Isuzu Bellet AAT 1637) was set aside.

The binding legal principle established is that when exercising discretion to order forfeiture under section 62 of the Criminal Procedure and Evidence Act [Chapter 9:07], courts must consider multiple factors holistically, including: (1) the nature of the article; (2) the role played by it in the commission of the offence and whether there is a necessary connection; (3) the possibility that it will be used again in similar offences; (4) the effect of forfeiture on the person(s) affected; (5) whether by virtue of value the forfeiture would be disproportionate to the gravity of the offence; and (6) in the case of valuable articles like motor vehicles, whether it has been used on other occasions for similar criminal purposes. The mere fact that property was used in the commission of an offence is insufficient basis for forfeiture; the discretion must be exercised judicially considering all relevant factors, and forfeiture orders must be proportionate and consistent with public policy and an acceptable sense of justice.

The court observed that forfeiture is a serious matter with serious consequences, and judicial officers should approach the question of forfeiture with great care. The court also noted approvingly the magistrate's acknowledgment of the error and undertaking not to repeat it in future. The court emphasized that the discretion to order forfeiture should be exercised judicially, referencing the principle established in R v Ndlovu 1980 ZLR 96. The court also referenced the guidelines from S v Mohamed 1977(2) RLR 207 (GD) regarding factors to consider when determining whether a forfeiture order would be equitable, including the real value of goods to the accused, the purpose for which they were being used, the importance to the accused of retaining them, difficulty of replacement, community benefit or harm, and the accused's ability to pay monetary penalties.

This case is significant in Zimbabwean criminal procedure law as it clarifies the principles governing the exercise of judicial discretion in making forfeiture orders under section 62 of the Criminal Procedure and Evidence Act. It emphasizes that while a court has discretion to order forfeiture of property used in the commission of an offence, this discretion must be exercised judicially by considering multiple factors holistically, not merely the fact that the property was used in committing the offence. The case reinforces that forfeiture orders must be proportionate to the gravity of the offence and should not be made mechanically without considering the broader effects on the accused and principles of justice. It provides important guidance to lower courts on avoiding disproportionate punishment through forfeiture, particularly where the accused is already serving a substantial custodial sentence.