The State v Tlou Fredrick

The accused smuggled a motor vehicle through the border at Plumtree on 25 July 2025. He pleaded guilty to smuggling before a Regional Magistrate. The duty-paid value of the motor vehicle was given as USD 42,721.32 and USD 1,554.82. The Regional Magistrate sentenced the accused to a fine of USD 7,000 (or ZWG equivalent at the prevailing bank rate), in default of payment 5 years imprisonment, plus 2 years imprisonment suspended for 5 years on condition he does not commit any smuggling offence. The accused was granted time to pay the fine until 30 August 2025. The matter came before the High Court on automatic review.

• Whether the sentence imposed by the Regional Magistrate complied with the sentencing provisions of section 182 of the Customs and Excise Act [Chapter 23:03]
• Whether the fine imposed was calculated correctly in accordance with the statutory requirement of three times the duty-paid value or level 14 fine, whichever is greater
• Whether the trial court erred in failing to consider or order forfeiture of the smuggled motor vehicle as required by section 209 of the Act

The reviewing judge (Nduna J, with Ndlovu J agreeing) withheld the certificate of review and declined to confirm the proceedings as being in accordance with real and substantial justice.

When sentencing for smuggling under section 182 of the Customs and Excise Act [Chapter 23:03], 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. The court must make clear from its reasons for sentence which statutory option was selected and applied. Additionally, section 209 of the Act requires a court to consider and make an order regarding forfeiture of smuggled goods to the state. A court cannot order release of smuggled goods to the accused; forfeiture must be a deliberate act by the court and must be ordered over and above any sentence imposed on the offender. Failure to impose the correct fine amount and failure to address forfeiture renders proceedings not in accordance with real and substantial justice.

The court observed that the Customs and Excise Act seeks to arrest smuggling by imposing greater fines, indicating the legislative intent behind the sentencing provisions. The court also remarked that there was no reason for the trial magistrate to have failed to impose the correctly calculated amount of USD 9,331.76 as the fine, suggesting that the error was inexplicable given that the calculation had been properly performed.

This case clarifies the proper application of sentencing provisions under section 182 of the Customs and Excise Act [Chapter 23:03] in smuggling cases. It emphasizes that courts must impose the greater of either a level 14 fine or three times the duty-paid value of smuggled goods, and must provide clear reasons for the option selected. The judgment also reinforces the mandatory consideration of forfeiture orders under section 209 of the Act, highlighting that forfeiture of smuggled goods is a critical component of the legislative scheme to combat smuggling. The case serves as an important reminder to magistrates to comply strictly with statutory sentencing requirements in customs and excise offences and to address forfeiture explicitly in their judgments.