The State v Tadious Mukusa

The accused was found selling maize to the public at Chikafa Business Centre, Guruve. He had two tonnes of maize in his lorry at the time, valued at $30,000. He was charged for contravening section 3 of the Grain Marketing (Controlled Products Declaration) (Maize and Wheat) Notice S.I. 235A of 2001 as read with section 33(1) of the Grain Marketing Board Act. He pleaded guilty and was convicted and sentenced to $10,000 or 12 months imprisonment. His lorry was impounded and held at the Police Station.

• What is the correct statutory provision creating the offence of trading in controlled products (maize)?
• What is the proper procedure for forfeiture of controlled products under the Grain Marketing Act?
• Whether the police had the power to impound the accused's motor vehicle under the Act?
• What is the appropriate sentence given the statutory sentencing formula?

The charge was amended to reflect the correct statutory provision: "Contravening section 40(2)(c) of the Grain Marketing Act, [Chapter 18:14]". The sentence imposed by the lower court was set aside and replaced with "$10,000 or in default of payment 5 months imprisonment. The 2 tonnes of maize found in the accused's possession is forfeited to the use by GMB in terms of section 40(3)(a) of the Act". The police were directed to release the accused's motor vehicle if still impounded.

The binding legal principles established are: (1) S.I. 235A of 2001 does not create an offence but merely declares maize and wheat to be controlled products; the actual offence of trading in controlled products is created by section 40(2)(c) of the Grain Marketing Act [Chapter 18:14]. (2) A court cannot make an order of forfeiture meru motu (on its own motion) under section 40(3) of the Grain Marketing Act; such an order requires an application by the prosecutor. (3) Forfeiture under section 40(3) is for the use of GMB, not to the State, which means the accused is entitled to be paid the value of the forfeited product. (4) The police have no power under the Grain Marketing Act to impound an accused's motor vehicle.

The court observed that the difference between forfeiture to the State and forfeiture for the use by GMB is important because in the latter case the accused is paid the value of his product and "does not lose out completely". The court also commented that while the fine imposed was less than three times the value of the maize (as permitted by the statutory formula), there was no need to consider how the formula should be applied in detail. The court further observed that an alternative sentence of 12 months imprisonment was harsh in the circumstances and that 5 months would have been sufficient.

This case is significant in Zimbabwean jurisprudence for clarifying the proper interpretation and application of the Grain Marketing Act, particularly: (1) the distinction between enabling legislation that declares controlled products and provisions that actually create criminal offences; (2) the procedural requirement that forfeiture orders under the Act must be applied for by the prosecutor and cannot be made by the court on its own motion; (3) the important distinction between forfeiture to the State and forfeiture for the use of GMB, with the latter protecting the accused's property rights by requiring payment; and (4) the limits of police powers to impound property in the absence of specific statutory authority.