NDOU J: The
applicant seeks a provisional order in the following terms:
“Interim relief granted
1.
That
1st respondent be and is hereby ordered to immediately upon being
served with this order, release to applicant the removed stock as listed in
Annexure “B” hereof. In the event that 1st
respondent refuses to co-operate the Deputy Sheriff or her lawful assistant be
and hereby is authorized and directed to enter into the storeroom and remove
therefrom all the goods as listed in Annexure “B” and place applicant in
possession thereof.
Terms of the final order sought
That you show cause to this honourable court why a final
order should not be made on the following terms:
1.
That
in the event that the respondents have disposed of the removed goods as listed
in Annexure “B” they be ordered to pay to applicant a sum of $7 515,00 being
the value thereof.
2.
That
the respondents pay jointly and severally the one paying the others to be
absolved, costs of this application on an attorney-client scale.”
The salient facts of this case are the following. On 12 February 2010 the office of the 1st
respondent received an anonymous call to the effect that the applicant's bottle
store in Barham Green was operating without a liquor licence. Three police details went to the bottle store
and demanded to see the applicant's liquor licence. The applicant was using someone else's liquor
licence. So in essence the applicant was
operating without the requisite licence.
The applicant was charged with trading without a liquor licence in
contravention of section 113 (1) of the Liquor Act [Chapter 14:12]. The applicant mandated its employee to go to police
at Drill Hall Licence Inspectorate together with the liquor subject matter of
this application. The said employee
admitted guilt on behalf of the applicant and paid a deposit fine of US$20,00.
The applicant's Managing Director
visited the Licence Inspectorate on 13 July 2010. He was advised by the 1st
respondent to obtain a licence in his own name in order to sale liquor. The applicant indeed complied and applied for
and was issued with a Temporary Transfer Liquor Licence by a Bulawayo
Provincial Magistrate in terms of section 35(1) of the Liquor Act, supra.
It has to be pointed out that prior its arrest, the applicant had
already submitted its application to the Liquor Licencing Board for the
transfer of the licence from the names of the previous owner to those of the
applicant. The application had been
advertised in the Chronicle newspaper and the Government Gazette.
Applicant seeks an order releasing
the removed stock of alcohol. The value
of the stock is US$7 515,00. The 1st
respondent has refused to release the liquor.
This liquor was seized by the respondents as exhibits. On 12 July 2010 the 1st respondent
applied for authority to confiscate and dispose the liquor from a Bulawayo
Magistrate in terms of section 59(1)(c ) of Criminal Procedure and Evidence Act
[Chapter 9:07]. This application was
brought to the attention of the applicant through its agent who paid the
deposit fine. The applicant acknowledged
receipt of the said application and signed on 12 July 2010. The application read inter alia,:
“This station is seeking for authority to confiscate and
dispose seized goods, which were being sold by the accused without relevant
licences [sic]. The accused Sean Randen of Bootleggers Bottle
store Reynolds Drive Barham Green Bulawayo was selling the listed liquor
without a licence. The accused paid fine
Z69 (J) 8407043A. All the seized goods
are still withheld at this station pending the approval of this forfeiture
order.
An application for the forfeiture of these goods will be made
to the Tredgold magistrates Court Office 138 on 14 /7/10.
If you have any representation to do so before this date [sic]
Signed (accused) [Sean Randen] NR
58-200641Q-00
Date 12/7/10 Time 20:25Hrs”
(Emphasis added)
What is clear from the above is
that,
(a)
The
applicant was informed of his right to be heard before the magistrate's
determination;
(b)
The
place and date of the hearing by the magistrate;
(c)
The
liquor subject-matter of these proceedings will be seized if the applicant does
not make successful representations;
(d)
The
hearing by the magistrate will take place on 14 July 2010 i.e. about two days
after the applicant was so informed.
Having been so informed the applicant neglected or chose not
to be heard before the magistrate's determination. The applicant chose not to cite the said
magistrate in these proceedings. The
long and short of it is that the magistrate authorized the forfeiture and
disposal of liquor without the applicant's input or representations. All the representations that the applicant
now should have been made before the magistrate. The applicant seeks to rely on the case of N & B Ventures (Pvt) Ltd v Minister of Home Affairs & Anor 2005
(1) ZLR 27(H)
The facts of this case are
distinguishable from those in the N & B Ventures – case, supra. At page 31C-E CHEDA J stated in the latter case:
“The second issue is the reason for the forfeiture. The forfeiture was authorized after an
admission of guilty had been paid by the applicant. … The
applicant was not informed of the intended forfeiture by the second respondent. Failure to inform the applicant clearly
offends against the principles of natural justice audi alteram partem …. The
learned magistrate should have afforded the applicant an opportunity to explain
its default before it took such a drastic step of forfeiting its goods.” (Emphasis added)
In this case, as alluded to above,
the applicant was informed of the intended forfeiture and was invited to
explain why the goods should not be forfeited.
The applicant ignored or neglected this show cause notice. The respondents did all that is required of
them in terms of the principles set out in the N & B Ventures – case, supra.
If the applicant is not satisfied
with the determination of the magistrate it can seek review thereof. There is no basis for interference in this
case as I am not seized with an application for review of the forfeiture by
magistrate. In effect it is the
magistrate who forfeited the applicant's liquor and authorized its
disposal. The applicant is barking the
wrong tree, it should have cited the magistrate and challenged his/her said
order of forfeiture and disposal of the liquor.
I brought this issue to attention of the applicant's legal practitioners
and there was not attempt to remedy the problems and as such costs should be
borne by the applicant.
Accordingly, the application is
dismissed with costs on the ordinary scale.
Dube-Banda, Nzarayapenga & Partners, applicant's legal practitioners
Civil Division, Attorney General's Office,
respondents' legal practitioners
