In
this matter, the second respondent appeared before a Magistrate sitting at
Beitbridge on the 25th April 2014. The second respondent was
facing one count of contravening section 25(1)(a) as read with section 25(5) of
the Immigration Act [Chapter 4:02], that is, failing to appear before and
complying with the directions of the Immigration officer.
The
second count related to contravening section 20(1)(b) of the Exchange Control
(General) Order 1996 Statutory Instrument 110/96, S.I.110 of 1996, as read with
section 5(i)(a)(ii) of the Exchange Control Act [Chapter 22:05], unlawful
exportation of foreign currency.
The
brief allegations against the second respondent were that he attempted to leave
the country without declaring money in his possession in the sum of US$70,205=,
ZAR639,800= and that he failed to report to an Immigration Officer.
The
second respondent pleaded not guilty to both counts and was discharged at the
close of the State case. The reason for the acquittal was that the
evidence established that the second respondent is a permanent resident of
South Africa. The magistrate in the court a quo
properly applied the law in that section 21 of the Exchange Control
Regulations, 1996 provides as follows:
“Subject
to subsection (2), unless otherwise authorised by an exchange control
authority, no person shall export or cause to be exported from Zimbabwe –
(a)
Any Zimbabwean currency;
(b)
Any foreign currency…,;
(2)
Subsection (1) shall not apply to -
(c)
Any foreign currency which has been imported into Zimbabwe by a foreign
resident and is being taken or sent out of Zimbabwe by that person on his
person or his baggage;…,. “
In
casu, the second respondent, being a permanent resident of
South Africa, was entitled to possess the foreign currency on his person or in
his baggage.
On
the first count, the evidence led was also not sufficient to secure a
conviction and the second respondent was properly discharged at the close of
the State case.
On
29 May 2014, the applicant filed a Chamber Application for an order in the
following terms:
“IT
IS ORDERED THAT:
1.
The order to return the seized money to the 2nd Respondent made by 1st
Repondent be and is hereby set aside.”
There
is no indication on the face of the Chamber Application in terms of which provision
of the Rules the application has been instituted.
The
body of the application itself seems to invite the court to exercise its review
jurisdiction. In accordance with the provisions of section 26 of the High
Court Act [Chapter 7:06], the High Court has power, jurisdiction and authority
to review all proceedings and decisions of inferior courts of justice,
tribunals and administrative authorities within Zimbabwe.
The
grounds for review are clearly spelt out in section 27 of the High Court Act
[Chapter 7:06]; and these are:-
“(a)
Absence of jurisdiction on the part of the court, tribunal or authority
concerned.
(b)
Interest in the cause, bias, malice or corruption.
(c)
Gross irregularity in the proceedings or the decision.”
The
problem though is that the applicant purports to be appealing against the
decision of the court a quo. This is borne out by
the contents of a letter addressed to the second respondent's legal
practitioners, dated 2nd May 2014, which is in the following terms:
“The above matter refers.
Be advised that the Prosecutor General's office has decided
to appeal the decision of the trial magistrate in the above case. We have
already posted the record of proceedings to the Appeal section in Bulawayo.
Our head, Western Division, Mrs Cheda, has directed me to
inform you and your client of this development. She has also directed that
the money involved should remain in the custody of ZIMRA for purposes of
appeal.”
On
the 28th May 2014, the applicant directed another letter to the
Regional Manager, Zimbabwe Revenue Authority, Beitbridge, as follows:-
“The above matter refers.
This serves to advise you that our office is unable to note
an appeal in this matter against the acquittal of the accused. After going
through the record of court proceedings we are unable to identify any
misdirection on the part of the magistrate in arriving at the decision that he
did. The evidence that was presented before the court was insufficient to
secure a conviction on both counts that the accused was charged with.
We have filed a Chamber Application at the High Court for
the setting aside of the order made by the magistrates for the return of the
seized money to the accused. The magistrate had no authority to make the
order in terms of section 193 of Customs Excise Act.”
From
this last correspondence from the applicant, it is clear that there was never
any intention on the part of the applicant to challenge the decision of the
trial court, either by way of review or appeal.
The
question to be asked is whether the Chamber Application is indeed an
application for review in terms of section 26 of the High Court Act [Chapter
7:06].
The
applicant has averred that there was no misdirection on the part of the
magistrate.
The
bone of contention is that the magistrate ought not to have ordered the return
of the seized money to the second respondent.
I
have already indicated that in terms of the Exchange Control Regulations, 1996,
the second respondent had the lawful right to possess the foreign currency on
his person or in his baggage. There was therefore absolutely no need for ZIMRA
officers to seize the money in the first instance. The seizure of the money was
in itself unlawful. The money should not have been seized because the
second respondent was a permanent resident of South Africa en route to that country. I cannot understand the
justification for refusing to release the money to the second respondent - even
after his acquittal.
Such
conduct must be frowned upon.
The
second respondent is being put to great expense and inconvenience by the
seizure of his money.
