NDEWERE J: The applicant was arrested in
March 2006 for unlawful possession of firearms. He was convicted for
contravening the Public Order and Security Act [Cap 11:17] and
sentenced. At the time of arrest, the police recovered several firearms
and other property from the applicants' premises. The recovered property was
not returned to the applicants after the trial.
On 4 July, 2012, the applicants filed a court application for the return of the
seized property. The applicants' prayer was for the watch, Trace Mod
S3001 B, a Hewlett Packard laptop, restoration to the second applicant of
property listed in annexure B by handing over the property to a firearms dealer
designated by the applicants, return of the radio equipment in annexure C and
return of applicant's files containing his documents. Alternatively, in
relation to property in annexure B and C the respondents were to pay the
applicants US$23 345 and US$2 825.00 being the replacement value of the
property in annexure B and C respectively. The applicant also wanted the
respondents to pay the costs of the suit.
On 19 July, 2012, the respondents filed a notice of opposition and attached
opposing affidavits from the first respondent and the fifth respondent.
On 24 August, 2012, the applicants filed an answering affidavit. And on 23
October 2012, the applicants filed their heads of argument.
The respondents did not file heads of argument. They were therefore barred in
terms of r 238 (2) of the High Court Rules. In terms of the High Court
Rules, the barred party can apply for upliftment of the bar, but there was no
such application from the respondents and on the date of the hearing, there was
no appearance for the respondents.
Such conduct from the respondents' legal representatives is shocking, to say
the least. An applicant who was convicted for contravening the Public Order and
Security Act was applying to have among other things, the firearms seized from
him at the time of arrest returned to him. One would have expected the
respondents' legal representatives to be very alert and ensure that they
complied with every court rule to ensure a proper defence in the matter.
This was not the case.
The court proceeded in terms of r 238 (2b) and dealt with the matter on the
merits. The applicants presented their application and the court sought
clarifications from counsel. When applicant's counsel was presenting his last
clarification to the court following a query, that is when an officer from the
Attorney General's office walked in and tried to interject. The court did
not give him audience because he was already barred and proceedings were almost
over.
The court expects the legal
representatives of the respondents to take their work more seriously than they
did in the present case in order to adequately assist the court in the
discharge of its functions.
On the merits of the application, the court observed a lot of errors in the
founding affidavit. A founding affidavit is the document upon which an
application is founded and as such it should be prepared seriously with the
object of making the basis of the application clear to the court. If a
founding affidavit is full of errors: the accuracy of its content is
compromised. It appears applicants counsel did not proof read the founding
affidavit before filing and such carelessness cannot be tolerated.
In para 1 of the founding affidavit, the
affidavit states:
“1. I am the applicant in this
matter. I am also a Director in the applicant.”
During the hearing, the second sentence
was reconstructed to read “I am also a Director in the second applicant.”
The third sentence reads as follows: “I
depose to this affidavit in my personal capacity and in my capacity as a
Director in the second and third applicants ……” There is no third
applicant in this application so the “third applicants” was struck out.
Paragraph 8 says,
“In March 2006 I was arrested by the fourth respondent…..”
The fourth respondent is the Attorney General and he was not the arresting
authority so fourth respondent was struck out and replaced with fifth
respondent. In para 11, the second respondent was struck out and replaced
with the second applicant and the fourth respondent was struck out and replaced
with the fifth respondent. In para 13 second respondent was struck out
and replaced with second applicant. In para 14, second respondent was
struck out and replaced with the second applicant. In para 17, second
respondent was struck out and replaced with second applicant on three occasions
in three different sentences.
In the draft order, the first applicant seeks the return of his watch Trade Mod
S3001B and a Hewlett Packard laptop. During the hearing, applicant's
counsel abandoned the claims for the return of the wrist watch and
laptop. On the wrist watch he said in view of the dispute that it was
never recovered and in view of the fact that applicant had no evidence to prove
that indeed it was recovered, applicant had no option but to abandon the
claim. Regarding the laptop, applicant's counsel conceded that first
applicant did not know its serial number and that he had no other identifying
features for it. The claims for the wrist watch and laptop therefore fell
by the wayside.
The applicants sought the return of the property listed in annexure B which
comprised a list of mainly different types of firearms from 1 to 29. In
their opposing affidavits, the first and fifth respondents averred that some of
the firearms on annexure B were never recovered. During the hearing,
applicants' counsel abandoned his clients claim to the firearms whose recovery
was disputed but said those which were recovered should be returned to the
applicants. Applicants' argument was that at the time the firearms were seized
by the police, the second applicant lawfully possessed them as it had a
license. However, in para 17 of the founding affidavit, the applicants
concede that the license which the second applicant had at the time of arrest
expired and was not renewed; para 17 actually states the following;
“I am aware that second applicant cannot
be in lawful possession of the firearms at this stage.”
The above concession means the court
cannot make a decision to return the firearms in annexure B to the applicants
because second applicant cannot lawfully possess them anymore.
In terms of s 59 (1) (iii) of the Criminal
Procedure and Evidence Act [Cap 9:07] referred to by the applicants,
if the person the article was seized from cannot lawfully possess the article
and the police officer concerned does not know a person who may lawfully
possess the article, the article shall be forfeited to the state. There
is no provision in s 59 above or in any other relevant section which provides
for a sale as suggested by the applicants in para 17 of their founding affidavit.
The only option if the officer does not know of a person who may lawfully
possess the seized article is forfeiture to the state. Sections 61
and 62 of the Criminal Procedure and Evidence Act (supra) are
similarly worded and they too provide for forfeiture to the state, without
notice to any other person.
Consequently, the applicants' prayer that
the seized firearms should be sold on their behalf or a replacement value paid
to them cannot succeed.
The applicant's prayer was also for the
return of some radio communication equipment which they say belonged to second
applicant and was licensed by Postal and Telecommunications Regulatory
Authority of Zimbabwe (POTRAZ). However, the applicant failed to produce
the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ)
license to show that the second applicant still has a valid license for the
radio equipment. Proof that a person may lawfully possess a seized
article is a requirement before the seized article can be returned to
them. Consequently, in the absence of proof that the second applicant
still has a valid license for the radio equipment, the court cannot order its
return to the applicants.
The applicant is also seeking the return
of his several files containing his documents. During the application
hearing, applicants' counsel conceded that there were no identifying features
on the files neither could the first applicant provide the number of the
files. It is not possible for the court to order the release of unknown
files without any identifying features.
The application is therefore dismissed,
with costs.
Maunga,
Maanda and Associates, napplicants' legal
practitioners
