Urgent
Chamber Application
MATHONSI
J: This
matter was placed before me on the afternoon of 14 April 2016. As
the applicant complained of the risk of being in contempt of a court
order issued by a magistrate on 12 April 2016 directing it to release
fuel to the first respondent within 48 hours, a period which was
expiring a while after the matter was placed before me, I set the
matter down for hearing on 15 April at 14:30 hours, the best that
could be done in the circumstances.
When
the matter came up, Mr Ncube
for
the applicant produced returns of service attesting to the challenges
experienced in trying to bring the first and second respondents to
court. In respect of the first respondent, although the papers show
that she was indeed represented by Messrs
Sansole and Senda
who wrote a letter on 1 April 2016 to the applicant demanding the
release of the fuel which had been seized, the sheriff reports that
they “advised that they have no instructions to receive documents”
on behalf of the first respondent, an overused and tired ruse
employed by unco-operative legal practitioners.
Regarding
the second respondent, who, I must say, did not approach the
magistrates court before the offending order was issued and therefore
should not have been included, his address is given in the state
outline as 1499 Luveve Gwabalanda, Bulawayo. The sheriff reports
that an attempt at that address yielded negativity because the
address could not be located and the Luveve Housing office informed
the sheriff that it does not exist.
I
was not overly concerned about the second respondent for purposes of
this application because the interim relief sought really does not
affect him. He did not apply for the release of his fuel but the
first respondent did. I then stood the matter down to 1600 hours and
directed that the first respondent be served with a notice of set
down for that time at 2228 Cowdray Park, Bulawayo. That has since
been done, but the first respondent has not bothered to come. I have
proceeded to consider the application in her absence. It is however
necessary to give the background of the circumstances under which the
decision was taken.
Ulric
Huber, Jurisprudence
of My Time,
page 318, put it very well when he said:
“The
duty of the judge is, in general, to give his decision according to
the dictate of the law and custom ----. Everything, therefore, which
is done by a judge contrary to the precepts of the law or the
established essentials of a transaction is ipso
facto
and immediately null and void by force of law.”
I
am surprised that the first and second respondents appear to be
difficult to locate at addresses they gave to the authorities. I am
also surprised that a magistrate sitting at Bulawayo was able to
entertain an application for the release of fuel in respect of which
no criminal prosecution was ever commenced before him. How then
could he become seized with a matter in which there was not even a
court record? I say this because the charges preferred against the
first and second respondents never saw the light of day in a court of
law. They ended at the set down office when the public prosecutor
declined to prosecute.
Where
the public prosecutor declines to prosecute, ordinarily no court
record is created and the accused person is therefore not taken to
court for remand. A court record is only generated when the matter is
being taken to court either for a plea recording or initial remand.
That is when it is entered in the Criminal Record Book and a number
is generated.
The
history of the matter is that on 29 March 2016 the applicant seized
20408 litres of petrol belonging to the first respondent and 7450
litres of petrol belonging to the second respondent by notices of
seizure numbers 014683L and 014684L respectively on suspicious that
it had been smuggled into the country. At the same time the police
charged them with smuggling.
As
I have said, the criminal prosecution floundered at the first hurdle
when the public prosecutor declined to prosecute. That outcome did
not stop the first respondent writing a letter addressed to “Tredgold
Court, Bulawayo” to wit:
“Application
for release of Thirty-seven thousand (37000) litres of fuel and two
(2) Trucks
in terms of section 59 of The Criminal Procedure (and) Evidence Act.
I
bought my fuel from Harare, which was confiscated by The Zimbabwe
Revenue Authority and The Zimbabwe Republic Police in Bulawayo
suspecting that the fuel had been smuggled from outside the country.
After giving evidence of purchase, the prosecution was declined at
Tredgold Court. I am hereby applying for a court order for The
Zimbabwe Revenue Authority to release the goods mentioned here above.
Yours
faithfully
Mpofu
Sikhanyisiwe.”
It
is significant that the letter could not possibly constitute a proper
application to be filed in court. More importantly, the
“application” was not served on the present applicant but the
magistrate still heard it on 12 April 2016 with the applicant being
the present first respondent and the public prosecutor presumably as
the respondent. The latter did not oppose the application, he could
not because he had declined to prosecute, was functus
officio
and had no interest in the matter at all.
At
the end of what was apparently a one sided affair, the magistrate
issued an order in the following:
“IT
IS HEREBY ORDERED THAT
Zimra
is ordered to release 37 000 litres of petrol belonging to the
accused which was confiscated by it pursuant of a criminal offence.
The property is to be released within 48 hours from granting of this
order into the custody of Sikhanyisiwe Mpofu and Christian Ndlovu.”
The
order was issued despite the fact that only Mpofu had applied and
only 20408 litres of petrol had been seized from her. Although it
was issued against Zimra, it did not occur to the magistrate that
Zimra deserved to be heard before an order adverse to it could be
made. Therefore the order was made in breach of the audi
alteram partem
rule.
The
applicant has made this application seeking interim relief staying
the order of the magistrate on the grounds that it was issued without
their involvement and in breach of the law.
In
terms of the proviso to paragraph (c) of subsection (9) of s 193 of
the Customs and Excise Act [Chapter 23:02];
“----
no court sitting as a criminal court for any purposes of this Act
shall make an order for the return of articles seized in terms of
this section, and no such articles shall be returned except by the
Commissioner General acting in accordance with this Act or by order
made by a court of appropriate jurisdiction in which the person from
whom the articles have been seized has instituted separate civil
proceedings for their return.”
The
respondents did not institute separate civil proceedings for the
release of the goods. Instead they unprocedurally approached a
criminal court which was not even seized with the matter and had no
business dealing with it after prosecution had been declined. I
agree with Mr Ncube
for
the applicant that the court in question did not have jurisdiction.
It
is not clear in terms of what law that court received the application
or ordered the release of the goods. Section 61 (1) of the Criminal
Procedure and Evidence Act [Chapter 9:07] reposes in a judge or
magistrate presiding at criminal proceedings the discretion to order
the release of exhibits at the conclusion of those proceedings to the
person from whose possession the articles were obtained where that
person may lawfully possess them. In my view that section has no
application to the present matter because the magistrate was not
presiding over criminal proceedings which had been concluded.
Section
59 of the Act which was cited by the first respondent in her letter
to “Tredgold Court” has no application either. More importantly,
the section is nor a right endowing provision upon which the first
respondent could approach the court seeking release of the fuel and
it was not used to seize the fuel which was only seized in terms of
s193 of the Customs and Excise Act.
The
inescapable conclusion therefore is that the magistrate acted
contrary to the precepts of the law. What he did was therefore ipso
facto
null and void. I am therefore satisfied that the applicant has made
out a case for the relief that is sought.
Accordingly
the provisional order is hereby granted in terms of the draft order.
Coghlan
and Welsh,
applicant's legal practitioners
