KUDYA
AJA: The
appellant appeals against the judgment of the High Court dated 9
September 2019, wherein the court a
quo
dismissed his appeal against conviction by the Magistrates Court on a
charge of criminal abuse of office under section 174(1) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23] (The
Criminal Law Code).
THE
FACTS
The
facts in this case are generally common cause:
On
26 May 2015, the appellant and Obert Tafadzwa Charamba (the
co-accused) were jointly charged with criminal abuse of office at the
Beitbridge Magistrate's Court.
On
9 November 2015, they were convicted and sentenced to pay a fine of
US$700 or in default of payment 6 months imprisonment with an
additional 5 months imprisonment suspended for a period of 5 years on
the appropriate conditions of future good conduct.
The
appellant and the co-accused were employed by the Zimbabwe Revenue
Authority (Zimra) as a revenue supervisor and loss control officer,
respectively. The appellant was stationed at the container depot at
the Beitbridge border post. The co-accused was based in Harare but
was on relief duties at the scanning unit at the same border post in
December 2014.
On
23 December 2014, Isaac Musharu (the driver) cleared all the manual
customs formalities
with the help of Christian Mugwali, a Beitbridge based freight and
clearing agent.
Duty
was paid for the consignment in the sum of US$29,303.88.
He
was driving a horse (Registration Number ABZ 4226) which was drawing
two trailers (Registration numbers ACE 9470 and ACE 9471). The
trailers were laden with 2,514 cartons of liquor (the consignment)
imported from Musina in South Africa by the local Bulawayo based
Turkey Trading (Pvt) Ltd (the importer).
His
last port of call was the scanning unit, where he handed over his
manually cleared customs documents, inclusive of the bill of entry
number C93285, to the co-accused at 11pm.
The
co-accused made a cursory physical examination of the consignment.
He
directed Mutero, a ZIMRA escort driver, to take the truck to the
container depot. At midnight and before the truck was driven to the
container depot, the clearing agent attended at the scanning unit, at
the behest of the driver.
The
co-accused referred the consignment to the container depot because
the electronic clearance system had “red flagged” the importer
for possible acts of smuggling previous liquor consignments into the
country.
He
caused this reason to be entered into the “Referred to Container
Depot Register” by his subordinate, one Eric Gorondondo.
The
driver and clearing agent, however, assumed that the consignment was
being referred to the container depot for an accentuated physical
examination.
The
consignment was received at the container depot by the security
guards on duty.
On
24 December 2014, the driver and the clearing agent alleged that two
of the appellant's subordinates inspected and reconciled the
consignment with the commercial invoice and the bill of entry. No
anomalies were found.
The
consignment was not released.
Instead,
the appellant, in colourful Shona prose (which the driver and
clearing agent understood to mean “the vehicle has been
impounded”), impounded the consignment and ordered the driver to
uncouple the horse from the trailers.
The
driver signed the “leave the consignment in the container depot”
form.
The
appellant impounded the consignment in compliance with the
instruction endorsed on the consignment note by the co-accused for
the detention of the consignment as a lien in
lieu
of impending investigations of the purported smuggling activities
undertaken by the importer in respect of previous liquor imports from
Musina.
He,
however, did not pay heed to the co-accused's suggestion to raise,
in terms of section 201 of the Customs and Excise Act [Chapter
23:02],
an “embargo” against the consignment.
He
also rebuffed the requests, to similar effect, made on 25 and 27
December 2014, by Amkela Ndebele, the clearing agent's Bulawayo
based managing director, to issue detention documents to the
importer.
During
Amkela's second visit, on 27 December 2014, the appellant asserted:
(i)
Firstly, that the consignment would be detained until the smuggling
investigations were completed.
(ii)
Secondly, that the investigation was being conducted by his head of
station (Acting Regional Manager Mungani), head of section
(enforcement manager Dumbu) and the technical manager (Chamboko).
He
further demanded copies of all the customs clearance documents
(pertaining to the previous liquor consignments) issued to the
importer between September and December 2014, to facilitate the
timeous conclusion of the investigations.
The
same documents were also demanded by, and availed by the importer to,
the Acting Regional Manager as a condition precedent to the release
of the shipment consequent to the consensual order issued on 14
January 2015, by the Bulawayo High Court in case number HC16/15.
It
was also common cause that the appellant did not issue any detention
documents despite demand from the importer for him to do so until the
cargo was released pursuant to the consensual order.
It
was further common cause that the co-accused was required by the
dictates of his duties to enter the reason for referring the
consignment to the container depot in the electronic clearance system
'Referred to Container Depot Register' the 'Inspection Act'
and if the electronic system was down, endorse the reason on the back
of the driver's copy of the bill of entry.
He
was further required to enter the reason for doing so into the ZIMRA
electronic clearance system.
These
entries, amongst other purposes, served to alert the officials at the
container depot what to check for (values, tariffs or quantities).
Likewise,
the appellant was required to issue detention documents for the
consignment.
He
could issue a notice of seizure, a receipt of items held (RIH) or
Form 45 to the importer.
In
his testimony on the procedure pertaining to these documents, the
Acting Regional Manager asserted that once a notice of seizure or an
RIH was issued, the consignment would be carted to a warehouse for
storage.
Where,
however, Form 45 was issued, the consignment would be detained at the
container depot until the queries raised in that form were all
cleared by the importer or his clearing agent.
It
was also common cause that the appellant and the co-accused were
public officers.
It
was further agreed that neither of them acted in accordance with the
dictates of their respective public duties. Rather, by these
indisputable omissions, they acted contrary to their respective
duties as public officers.
The
real issue that confronted the trial court and the court a
quo
was, therefore, whether the appellant (and his co-accused who did not
appeal) had the intention to abuse his public office by disfavouring
the importer when he failed in his sworn duty to issue the requisite
detention documents between 24 December 2014 and 14 January 2015.
THE
FINDINGS IN THE MAGISTRATES COURT
The
trial court accepted the evidence adduced by the Acting Regional
Manager on the procedures that the appellant and the co-accused ought
to have followed in the referral of the consignment to and detention
thereof at the container depot.
It
found that the prosecution had established beyond a reasonable doubt
that the appellant had negated his duty of not only recording the
results of the physical examination in the “Inspection Register”
but also of issuing the requisite detention documents to the
importer.
Likewise,
it found that the co-accused had acted contrary to his duties by not
endorsing the reasons for referring the consignment to the container
depot in the system and on the back of the bill of entry.
The
trial court found that their respective conduct was prejudicial to
the importer and, accordingly, found them guilty as charged.
The
trial court did not relate to the reverse onus and misconstrued the
testimony of the Regional Manager.
The
Regional Manager asserted in his evidence in chief that he never
checked into the electronic clearance system but merely checked the
back of the bill of entry and the “Physical Examination Register”.
THE
GROUNDS OF APPEAL A
QUO
The
appellant appealed to the court a
quo
on the following grounds of appeal:
“1.
The court
a
quo
misdirected itself in convicting the appellant when there was no
evidence led beyond a reasonable doubt that the appellant committed
the offence.
2.
The court a
quo
erred in convicting the appellant when all the essential elements of
the offence were not proved, in particular the mens
rea.
3.
The court a
quo
erred and misdirected itself in basing its conviction of the
appellants on the grounds that the appellant had overall say on the
issuance of detention documents when in fact evidence to the contrary
had been led by the appellant and not disproved by the respondent.
4.
The court a
quo
also misdirected itself in failure to consider the appellant's
defence which was not disproved by the respondent.”
THE
ARGUMENTS A
QUO
The
appellant argued that the mens
rea
to commit the offence had not been established.
He
contended that the totality of the evidence led did not show that he
deliberately or even recklessly and calculatedly utilized his
position to injure the public interest by harming the co-related
interests of the importer.
He
argued that his conduct was genuinely motivated by the noble
intention of protecting the public purse, which was prejudiced in the
sum of US$195,000 by the previous smuggling activities of the
importer.
He
further argued that the trial court had failed to relate to his
uncontroverted testimony that he acted on the instructions of the
co-accused to check on the previous consignments that were
purportedly smuggled into the country from Musina by the importer.
He
called for previous clearance documents from the importer, which he
availed to his superiors (the enforcement manager, the technical
manager and the regional manager).
His
superiors in turn, invoked bilateral co-operation protocols with the
South African Revenue Services (SARS).
SARS
then supplied ZIMRA with all the requisite customs clearance
documents used by the importer to bring the questioned consignments
into Zimbabwe.
He
argued that these investigations, which commenced with the red
flagging of the importer on the night of 23 December 2014, belatedly
revealed the misfeasance committed by the importer.
He
therefore submitted that had the trial court related to his version,
it would have found that it passed muster the “reasonably possible
true” test and acquitted him of the offence.
Per
contra,
the respondent contended that the abrogation of ZIMRA processes by
the appellant were established.
He
argued that the colourful prose used by the appellant in impounding
the consignment coupled with absence of detention documents betrayed
his ulterior motive to injure the public interest by harming the
importer's interests.
The
injured interests were identified as the loss of income that could
have accrued to the importer from beer sales during the festive
season and the attendant loss incurred by the importer's failure to
use its trailers during the 21 days in question.
The
respondent also argued that the appellant's contrary assertion that
he was motivated by the smuggling allegations could not reasonably
rebut the presumption against him that his abridgment of the
consignment detention procedures was intended to harm the importer's
business interests.
The
respondent, therefore, submitted that the appellant was correctly
convicted by the trial court.
THE
FINDINGS OF THE COURT A
QUO
The
court a
quo
made the following findings:
The
appellant acted on the instruction of the co-accused to investigate
the previous consignments that were alleged to have been smuggled
into the country.
Notwithstanding
such instruction, he was obliged to issue the requisite detention
documents.
His
failure over a period of 21 days, despite the promptings of the
clearing agents, established the actus
reus
of the offence.
His
version that he was motivated by the higher ideal of preserving
public revenues by investigating the purported previous smuggling
activities of the importer could not reasonably possibly be true
because “that intention to investigate was not properly documented”
nor placed before the investigating officer and the trial court.
He
was, therefore, complicit with the co-accused in the unlawful
detention of the consignment.
He
failed to rebut the presumption that his act or omission was intended
to show disfavour to the importer.
All
the essential elements were, accordingly, established beyond a
reasonable doubt.
In
the circumstances, the court a
quo
confirmed the conviction and dismissed the appeal.
THE
GROUNDS OF APPEAL
Aggrieved
by these findings, the appellant appealed to this Court on the
following grounds:
“1.
The
court a
quo
grossly erred and misdirected itself in upholding the conviction of
the appellant in the absence of evidence to prove that the appellant
had committed the offence.
2.
The
court a
quo
erred and grossly misdirected itself in dismissing the appeal against
conviction notwithstanding the fact that the respondent had failed to
place before the court evidence to prove the essential elements of
the offence.
3.
The court a
quo
erred and misdirected itself in upholding the conviction
notwithstanding that the respondent failed to place before the court
evidence to disprove the appellant's case.”
He
sought the vacation of the conviction and its consequent substitution
by an order upholding the appeal.
THE
ISSUE
The
sole issue that arises from the three grounds of appeal is whether
the court a
quo
erred in upholding the appellant's conviction.
SUBMISSIONS
BEFORE THIS COURT
Ms
Chinwawadzimba,
for the appellant, submitted that the court a
quo
erred in upholding the appellant's conviction when the totality of
the evidence adduced before the trial magistrate clearly showed that
the appellant did not intend to harm the importer in his business but
sought to protect public revenue by recovering revenue lost through
the alleged previous smuggling activities perpetrated by the
importer.
She
argued that the court a
quo
failed to give proper regard to the common cause facts of the
investigations
of
the previous
liquor imports that the importer was alleged to have smuggled into
the country.
She
contended that the proven existence of these investigations, which
investigations constituted part of the appellant's duties, negated
the finding that his failure to raise detention documents for the
impounded consignment was actuated by an underlying ulterior or
dishonest motive.
She,
therefore, submitted that the appellant lacked the mens
rea
to commit the offence.
Per
contra, Mr Mapfuwa,
for the respondent, submitted that the court a
quo
did not misdirect itself in upholding the conviction and dismissing
the appeal.
He
contended that the appellant acted in common purpose with the
co-accused in impounding the consignment. They both flouted the Zimra
procedural requirements to endorse the reasons for the referral to,
and issuance of detention documents at the container depot.
He
further argued that the fact that the appellant accepted the
consignment without demur, impounded and further detained it for 21
days without issuing the requisite detention documents demonstrated
that he was acting in cahoots with the co-accused to harm the
importer in his business.
He
also contended that the appellant's failure to avail the internal
investigations to the investigating officer showed that he was
raising them as an afterthought to ward off his proven intention to
harm the importer's interests.
He,
therefore, submitted that as the respondent had overwhelmingly
established all the essential elements of the offence beyond a
reasonable doubt, the court a
quo
correctly dismissed the appeal.
ANALYSIS
OF THE LAW AND FACTS
What
constitutes proof beyond a reasonable doubt was pronounced by
DUMBUTSHENA CJ in S
v Isolano
1985 (1) ZLR 62 (S) at 64G-65A thus:
“In
my view the degree of proof required in a criminal case has been
fulfilled.
In
Miller v Minister of Pensions
[1947]
2 All ER 372 (KB), LORD DENNING described that degree of proof at
373H as follows:
'…… and
for that purpose, the evidence must reach the same degree of cogency
as is required in a criminal case before an accused person is found
guilty. That degree is well settled. It need not reach certainty, but
it must carry a high degree of probability. Proof beyond reasonable
doubt does not mean proof beyond the shadow of a doubt. The law would
fail to protect the community if it admitted fanciful possibilities
to deflect the course of justice. If the evidence is so strong
against a man as to leave only a remote possibility in his favour
which can be dismissed with the sentence 'of course it is possible,
but not in the least probable, the case is proved beyond reasonable
doubt, but nothing short of that will suffice.'
See
Hoffman and Zeffertt: South
African Law of Evidence
3rd
ed 409-410.”
The
approach to be adopted where, as in this case, a reverse onus is
prescribed by statute was enunciated by this Court in a kindred
offence of contravening section 4(a) as read with section
15(2)(e)(iii) of the repealed Prevention of Corruption Act [Chapter
9:16]
in S
v Chogugudza
1996 (2) ZLR 28 (S) at 42D, as follows:
“The
actus
reus
of the offence of contravening section 4(a) of the Prevention of
Corruption Act having been proved by the State, it was for the
appellant to displace the presumption by satisfying the trial court
that his purpose of showing favour was legitimate - that in doing
what he did, he had acted with an innocent state of mind. It was not
for him to establish that his evidence on this aspect was necessarily
true - only that on a preponderance of probabilities it was true. See
S
v Ndlovu
1983 (4) SA 507 (ZS) at 510D-G; Miller
v Minister of Pensions
[1947] 2 All ER 372 (KBD) at 374A-B.”
The
Court had earlier on emphasized at 34E that:
“The
plain language of section 15(2)(e) mandates that the presumption will
stand unless proof to the contrary is adduced by the public officer,
who is the accused. It is a presumption rebuttable at his instance.
It imposes a legal burden upon him which must be discharged on a
balance of probabilities. It is not discharged merely by raising a
reasonable doubt.”
The
relevant provisions under which the appellant was charged provide
that:
“174
Criminal abuse of duty as public officer
(1)
If a public officer, in the exercise of his or her functions as such,
intentionally
-
(a)
does anything that is contrary to or inconsistent with his or her
duty as a public officer; or
(b)
omits to do anything which it is his or her duty as a public officer
to do;
for
the purpose of showing favour or disfavour to any person, he or she
shall be guilty of criminal abuse of duty as a public officer and
liable to a fine not exceeding level thirteen or imprisonment for
period not exceeding fifteen years or both.
(2)
If
it is proved,
in any prosecution for criminal abuse of duty as a public officer,
that
a public officer,
in
breach of his or her duty as such, did or omitted to do anything to
the favour or prejudice of any person, it shall be presumed, unless
the contrary is proved, that he or she did or omitted to do the thing
for the purpose of showing favour or disfavour, as the case may be,
to that person.”
(My emphasis)
The
key word found in subsection (1) of section 174 is “intentionally”.
It
constitutes the mens
rea
of the offence of criminal abuse of office.
It
further demonstrates that the presumptive proof reposed in subsection
(2) does not create a strict liability offence.
The
onus to establish beyond a reasonable doubt the actus
reus
of the offence, which is prescribed in the opening words and in paras
(a) and (b) of section 174(1), lies on the State.
The
presumptive proof casts a legal onus on the accused person to show on
a balance of probabilities that he did not have the intention of
favouring or prejudicing any person impacted by his act or omission.
Thus,
the actus
reus,
which must be established by the State is that:
(a)
The accused person is a public officer;
(b)
Who in the course of his or her duties or functions;
(c)
By commission or omission, breached his or her duties or functions
In
its wisdom, the legislature cast the legal burden of disproving
intention on a balance of probabilities on an accused person: see
Chogugudza's
case, supra
at
35C-D.
Now
'intentionally' is a synonym of 'wilfully' which in the
context of the English provision equivalent to our section 174(1) was
defined by LORD BUNGHAM in R
v G
[2003] UK HL 50 to mean “deliberately doing something which is
wrong knowing it to be wrong or with reckless indifference as to
whether it is wrong or not.”
The
nature and scope of the intention cast on the accused person has best
been described in two foreign cases cited by TSANGA J in S
v Taranhike & Ors
2018 (1) ZLR 399 (H) at 405G-406B. The first is the English case of R
v Dytham
[1979] 2 QB 722, in which the Court stated that:
“The
neglect must be wilful and not merely inadvertent and it must be
culpable in the sense that it is without reasonable excuse or
justification, the misconduct must be calculated to injure the public
interest so as to call for condemnation and punishment.”
The
second is the Australian case
of Northern
Territory Australia v Mengel
(1995) CLR 307, which held that:
“It
is the absence of an honest attempt to perform the functions of the
public office that constitutes abuse of office. Misfeasance in public
office consists of a purported exercise of some power or authority by
a pubic officer otherwise than in an honest attempt to perform
functions of his or her office whereby loss is caused to the
plaintiff. Malice, knowledge and reckless indifference are the states
of mind that stamp on a purported but invalid exercise of the power
the character of abuse or misfeasance in public office. If the
impugned conduct then causes injury, the cause of action is
complete.”
It
is against this backdrop that the sole issue for determination in
this appeal falls to be decided.
It
is however trite that an appeal court may only interfere with a
subordinate court's factual findings or the exercise of its
judicial discretion on established grounds of irrationality or in
circumstances where that court has misdirected itself on the facts by
failing to appreciate the import of the fact or by making a finding
that is contrary to the evidence actually presented. See RBZ
v Granger & Anor
SC44/15 at 5-6.
At
p161 of the appeal record the court a
quo
dismissed the appellant's investigation version and his appeal
thus:
“From
his evidence the appellant said he engaged his superiors and they
agreed to send someone to South Africa to investigate the importer.
If this was indeed the case at least the investigating officer should
have been favoured with this information. No evidence was placed
before the court about this investigation. In any event the appellant
was seized with the matter, obviously he had access to all the
documentation in respect of the truck, save for the reasons for
impounding it. The appellant was well aware of the non-documentation
and was complicit in the unlawful detention of the truck.
The
issue that arises is whether his conduct was just an oversight or the
conduct constitutes an abuse calculated to disadvantage the truck
owner.
There
was evidence of the abusive conduct of the appellant towards the
truck owner and the clearing agents.
This
kind of offence is sometimes difficult to connect the dots, because
the public official would just sit on work in order to induce a
consideration.
In
this case the appellant could not possibly take over an investigation
of an impounded truck when in the first place the truck was not
properly impounded.
The
Magistrates reasons for convicting the appellant are very clear.
The
inconsistencies highlighted by the appellant are of no consequence,
they do not go to the substance of the conviction.”
Section
174(2) required the appellant to lead evidence of his state of mind
at the time he impounded the goods.
He
asserted the common cause fact that no instructions for a search,
examination and clearance were ever relayed to the container depot by
the co-accused. He testified that no physical examination of the
consignment was ever carried out at the container depot.
His
version was confirmed, by two common cause facts:
(i)
The first was that there was no record of such an examination in the
inspection register held at the container depot.
(ii)
The second was that one of his subordinates, who was alleged by the
driver and the clearing agent to have searched the consignment at the
container depot, denied ever doing so in his statement to the police.
The
appellant's version on this aspect was controverted by the driver
and the clearing agent who said the examination was held on 24
December 2014.
These
two State witnesses contradicted each other in a material respect.
The
driver stated that the examination commenced at “around 4pm”. The
clearing agent stated that it took place between 10am and 2pm.
A
further complication in the State evidence was that the Bulawayo
based clearing agent testified that these two witnesses, contrary to
their respective evidence, had told him that a minimum of 4 searches
had been conducted at the container depot on that day.
The
court a
quo
held that these discrepancies “were of no consequence, they did not
go to the substance of the conviction.”
In
my view, the discrepancies were material in that they confirmed the
truthfulness of appellant's version and discredited the contrary
version of the State's witnesses.
The
discrepancies, contrary to the finding a
quo,
also went to the root of the conviction.
The
appellant was convicted for detaining the consignment without
probable cause and without issuing the requisite detention documents.
The
absence of probable cause was premised on the fact that he continued
to detain the consignment after it had purportedly been cleared by
the physical examination.
The
trial court and the court a
quo
then ascribed an ulterior motive to harm the importer's interests
to his failure to proffer such a probable cause.
Ms
Chinwawadzimba
contended
that the appellant established on a balance of probabilities that he
did not have the requisite intention to harm the importer in his
business. On the other hand, Mr Mapfuwa
made the contrary contention that as the appellant had failed to
proffer any reasonable justification for his admitted failure to
issue the requisite detention documents, the conviction was
unimpeachable.
The
justification proffered by the appellant was that he detained the
consignment pursuant to the instruction endorsed on the consignment
note by the co-accused for him to investigate the smuggling
allegations that had been raised against the importer in the
electronic clearance system.
Ms
Chinwawadzimba
argued that the uncontroverted testimony of the co-accused to the
same effect negated the ulterior motive ascribed to the accused by
the trial court and confirmed by the court a
quo.
The
uncontroverted testimony of the co-accused, which both the trial
court and the court a
quo
did not interrogate, was that he referred the consignment to the
container depot for investigation after the importer had been red
flagged for smuggling by the electronic clearance system.
He
caused the endorsement of the referral details into the “Referred
to the Container Depot Register” by his subordinate one Eric
Gorondondo.
He
relied on the provisions of section 201 of the Customs and Excise Act
for his actions. The section stipulates that:
“201
Liens and preferences
(1)
The correct amount of duty payable in respect of any goods shall,
from the time when it should have been paid, constitute a debt due to
the State by the person concerned and shall, at
any time after it becomes due, be recoverable in a court of competent
jurisdiction by proceedings in the name of the Commissioner, and
any goods
in a bonded warehouse or
in the custody of the Department and belonging to that person, and
any
goods afterwards imported
or entered for export by
the person by whom the duty is due,
shall,
while still under the control of the Department, be subject to a lien
for such debt and may be detained by the Department until such debt
is paid,
and the claims of the State shall have priority over the claims of
all persons upon the said goods of whatever nature and may be
enforced by sale or other proceedings if the debt is not paid within
three months after the date upon which it became due.” (My
emphasis)
Section
201(1) permits a customs official to detain the consignment, which is
subsequently imported by an indebted importer and is still under the
control or custody of the Commissioner of Customs and Excise, for the
purpose of exercising a lien upon it.
This
provision imbues a customs officer with the power to detain properly
cleared consignments of an importer which are in a customs area for
unpaid duty incurred in a prior consignment.
The
underlying reason for conferring such a power is to ensure that every
importer pays his or her or its correct duty.
It
is that underlying reason that prompted the co-accused and the
appellant to act.
That
the importer was aware of the reason for the detention of his
consignment was confirmed by the testimony of its clearing agents.
They
were apprised of the reason by the appellant a day after he impounded
the consignment. Indeed, in its letter of 27 December 2014, which was
addressed to the Regional Manager, the importer disputed the
smuggling allegations, enclosed the requested previous customs
clearance documents and implored the appellant to release the
consignment.
It
was also common cause that the release of the consignment after the
consensual High Court order was issued, was conditional upon the
further submission of more of the previous customs clearance
documents connected to the alleged smuggling activities.
Notwithstanding
the investigation officer's failure to seek documentation on the
smuggling investigation, the totality of the evidence adduced at the
trial showed, on a balance of probabilities, that such an
investigation existed.
These
factors clearly showed that the appellant's failure to issue the
requisite detention documents was motivated by the higher ideal of
recovering lost revenue, rather than some amorphous and speculative
ulterior motive.
I
agree with Ms Chinwawadzimba
that the appellant discharged the onus on him to show on a balance of
probabilities that he did not bear any ill-intention to disfavour the
importer. Consequently, the State failed to establish that the
appellant had the mens
rea
to commit the offence.
In
the premises, all the grounds of appeal are meritorious and the
appeal ought to succeed.
DISPOSITION
The
co-accused did not appeal against his conviction or sentence to the
court a
quo
or to this Court. His conviction has come to our attention in the
present appeal.
This
is a proper case for the exercise of this Court's review powers
that are encapsulated in section 25(2) of the Supreme Court Act
[Chapter
7:03].
The
trial magistrate made the following findings:
The
co-accused intercepted, inspected and did not find any anomalies with
the consignment. He did not clear the consignment but referred the
driver and the clearing agent Christian Magwali to the container
depot, ostensibly for an accentuated physical verification of the
consignment.
He
did not endorse the reason for the referral on the back of the bill
of entry. His failure resulted in the detention of the consignment
for 21 days at the container depot.
The
failure to endorse on the back of the bill of entry was inconsistent
or contrary to his duties as a public officer. He failed to give a
reasonable justification for his conduct. His conduct was prejudicial
to the importer who failed to sell the consignment during the festive
season.
He
was, therefore, guilty as charged.
The
trial court failed to relate to the evidence which was favourable to
the co-accused. The clearing agent testified that the scanning unit
was the last checkpoint for clearing the consignment. This was in
consonance with the denial of the co-accused that he ever intercepted
the consignment and his insistence that he dealt with the consignment
at his workstation. He was, after all, the night shift supervisor.
He
instructed his subordinate Eric Gorondondo to enter the reason for
the referral in the “Referred to Container Depot Register” and on
the road manifest that night.
The
regional manager testified that an endorsement could only be made on
the back of a bill of entry if the electronic clearance system was
down.
The
impact of this evidence was that endorsement on the back of the bill
of entry was not a mandatory requirement.
The
regional manager further testified that he did not check the
electronic clearance system or any registers other than the
inspection register at the container depot.
The
testimony of the co-accused on what he did at his workstation was,
therefore, uncontroverted.
That
the co-accused referred the consignment to the container depot to
facilitate the investigation of a possible smuggling racket
engineered by the importer was confirmed by the appellant. The
co-accused, further, testified that his actions were motivated by the
provisions of section 201 of the Customs and Excise Act. He believed
the consignment could be held as a lien pending investigations of the
smuggling allegations.
That
he could have misconstrued the import of section 201 is irrelevant.
His
belief negated the finding that he was actuated by an ignoble motive
to injure the importer in his business interest. He ought to have
been acquitted.
The
conviction and consequent sentence will therefore be set aside.
Accordingly,
the following order will issue:
1.
The appeal be and is hereby allowed.
2.
The judgment of the court a
quo
is set aside and substituted with the following:
“The
appeal against conviction and sentence be and is hereby allowed.”
3.
Pursuant to the provisions of section 25 of the Supreme Court Act
[Chapter
7:03],
the conviction and consequent sentence imposed upon Obert Tafadzwa
Charamba at Beitbridge Magistrate's Court on 9 November 2015, be
and is hereby set aside.
GWAUNZA
DCJ:
I agree
UCHENA
JA:
I agree
Mutandiro,
Chitsanga & Chitima,
appellant's legal practitioners
National
Prosecution Authority, respondent's legal practitioners
1.
The
customs clearance documents comprised, consignment note, the
commercial invoice, road manifest and SADC certificate of origin
issued by the South African exporter, the South African bill of
export, the local bill of entry, and the gate pass or release order
issued on entering Zimbabwe
