The applicant
seeks an order releasing the removed stock of alcohol.
The
value of the stock is US$7,515=. The first respondent has refused to release
the liquor. This liquor was seized by the respondents as exhibits. On 12 July
2010, the first respondent applied for authority to confiscate and dispose the
liquor from a Bulawayo Magistrate ...
The applicant
seeks an order releasing the removed stock of alcohol.
The
value of the stock is US$7,515=. The first respondent has refused to release
the liquor. This liquor was seized by the respondents as exhibits. On 12 July
2010, the first respondent applied for authority to confiscate and dispose the
liquor from a Bulawayo Magistrate in terms of section 59(1)(c ) of the 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”
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 the 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 long and short of it is that the magistrate
authorized the forfeiture and disposal of the liquor without the applicant's
input or representations. All the representations that the applicant now makes
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
(Pvt) Ltd v Minister of Home Affairs & Anor 2005 (1) ZLR 27 (H) case. At
page 31C-E CHEDA J stated in the N & B Ventures (Pvt) Ltd v Minister of
Home Affairs & Anor 2005 (1) ZLR 27 (H) 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.” …,.
In this case…, 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 (Pvt) Ltd v Minister of Home Affairs & Anor 2005
(1) ZLR 27(H) case.
