The State v Tlou Fredrick

The accused was convicted by a Regional Magistrate for smuggling a motor vehicle through the border at Plumtree on 25 July 2025. The duty paid value of the motor vehicle was given as USD 42,721.32 and USD 1,554.82. The accused pleaded guilty to the offence. The Regional Magistrate sentenced the accused to a fine of $7,000 USD (or ZWG equivalent) with 5 years imprisonment in default of payment, plus 2 years imprisonment suspended for 5 years on condition the accused does not commit any offence involving smuggling. The accused was granted time to pay the fine up to 30 August 2025.

• Whether the sentence imposed by the Regional Magistrate was in accordance with section 182 of the Customs and Excise Act which requires a fine not exceeding level 14 or three times the duty-paid value of the goods, whichever is greater
• Whether the trial court erred in failing to impose the correctly calculated fine of three times the duty value
• Whether the trial court erred in failing to consider and order forfeiture of the smuggled motor vehicle to the state as required by section 209 of the Customs and Excise Act

The High Court withheld its certificate, finding that the proceedings were not in accordance with real and substantial justice. Ndlovu J agreed with the judgment.

When sentencing for smuggling under section 182 of the Customs and Excise Act, a court imposing a fine must impose the greater of either a level 14 fine or three times the duty-paid value of the smuggled goods, and must clearly state in its reasons which option was taken. Furthermore, under section 209 of the Act, a court must consider and order forfeiture of smuggled goods to the state as part of the sentence. A court cannot release smuggled goods to the accused, and the forfeiture order must be a deliberate and express act by the court. Failure to comply with these statutory requirements renders the proceedings not in accordance with real and substantial justice.

The court observed that it is unknown whether the motor vehicle was released to the smuggler or not, given the trial court's silence on forfeiture. The court noted that the Customs and Excise Act seeks to arrest smuggling by imposing greater fines, emphasizing the legislative intent behind the sentencing provisions. The court also remarked that a court cannot order release of a smuggled motor vehicle to the accused - it must be a deliberate act by the court to order forfeiture of the motor vehicle to the state.

This case is significant in Zimbabwean criminal and customs law as it clarifies the mandatory requirements for sentencing in smuggling cases under the Customs and Excise Act. It emphasizes that courts must: (1) impose the greater of either a level 14 fine or three times the duty-paid value of smuggled goods; (2) clearly state the reasoning for the fine amount imposed; and (3) actively consider and order forfeiture of smuggled goods to the state. The judgment reinforces that these provisions are designed to combat smuggling through substantial financial penalties and forfeiture, and that courts cannot exercise discretion to impose lesser fines or ignore the forfeiture requirement.