The Zimbabwe Revenue Authority (applicant) seized three trucks and their fuel contents belonging to the second and third respondents under s 193 of the Customs and Excise Act, suspecting the drivers were illegally entering Zimbabwe with loaded fuel. The drivers were arrested and charged with fraud and alternatively with contravening s 174 of the Customs and Excise Act. The first respondent, a magistrate presiding at Kariba, acquitted the drivers of all charges and ordered the release of the seized trucks and their contents to the respondents. The applicant became aware of the magistrate's order on 2 April 2016 but only filed applications for condonation and review on 2 June 2016, after the respondents had sued for contempt of court on 25 April 2016. The applicant sought to set aside the magistrate's order on grounds that it was ultra vires s 193(9) of the Act and made in violation of the audi alteram partem rule.
Both the application for condonation and the application for review were dismissed with costs.
A magistrate presiding over a criminal trial has jurisdiction to order the release of seized goods to an accused person following acquittal, as the goods are not subject to any offence and the accused can lawfully possess them. Section 193(9) of the Customs and Excise Act only applies where the court has found that goods were imported or exported without payment of duty. Administrative authorities must exercise their powers in accordance with s 68 of the Constitution, which requires administrative conduct to be lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. Applications filed mala fide or for ulterior purposes such as retaliation will be dismissed. Statutory provisions granting unbridled discretion without defined guiding principles offend constitutional rights to fair administrative action.
The court observed that s 193(9) of the Customs and Excise Act, in its current form, likely offends s 68(1) and (2) of the Constitution and by extension ss 1 and 2, due to the wide and unbridled discretion it grants without clearly defined guiding principles. The court noted that much of the Customs and Excise Act, promulgated approximately 50 years before the 2013 Constitution, requires alignment with the Bill of Rights. The court expressed concern about the wide discretionary powers being exercised subjectively rather than objectively, citing with approval Gubbay CJ's remarks in Elliot v Commissioner of Police regarding the objectionable nature of arbitrary discretion exercised without adequate determining principles. The court also commented critically on the conduct of the Commissioner-General in swearing false statements under oath and attempting to use court process to settle scores with the respondents.
This case is significant in Zimbabwean administrative and constitutional law as it: (1) establishes that criminal courts have jurisdiction to order release of seized goods following acquittal where no offence has been proven; (2) confirms that administrative authorities must act in accordance with constitutional rights to fair administrative conduct under s 68 of the Constitution; (3) highlights that wide discretionary powers granted to administrative officials must be exercised objectively and in accordance with constitutional principles; (4) identifies that pre-constitutional legislation like the Customs and Excise Act requires alignment with the Bill of Rights in the 2013 Constitution; and (5) demonstrates judicial willingness to reject applications filed mala fide or in abuse of court process, particularly where authorities act vindictively rather than in pursuit of justice.