The
applicant seeks a provisional order in the following terms –
“Terms
of the Final Order Sought
That
the provisional order granted by this honourable court be confirmed in the
following manner:-
The
respondent be and is hereby permanently interdicted from forfeiting the
applicant's petrol (35 000 litres) to the State.
The
respondent be and is hereby ordered to release 35 000 litres of fuel to
applicant, or, alternatively, to pay the current market value of the petrol to
the applicant within five days of this order.
Interim Relief Granted
Pending
finalization of the matter, the applicant be granted the relief:
The
respondent be and is hereby interdicted forthwith from forfeited the applicant's
petrol to the State.”
The
background facts of this matter are the following.
On
13 May 2009, the applicant and the driver of a RMS tanker, which was carrying
petrol, approached the Plumtree entry gate on their way from Botswana to
Zimbabwe. It was around 0618 hours. The driver handed, to the guard on duty at
the gate, his gate pass from the border post, and entry into Zimbabwe.
The
Zimbabwe Revenue Authority Plumtree Station Manager, Ms. L.Ndlovu, was also at
the gate. She was acting on a tip-off on the applicant's alleged fuel smuggling
activities.
Ms.
L.Ndlovu asked for the gate pass from the guard, and it was given to her. She
then asked the driver what was contained in the tanker. The driver did not
respond, but, instead, it was the applicant who responded by indicating that
the tanker was empty. She asked for the applicant's documents. The tanker was
escorted back to the border area. The applicant, all along, insisted the tanker
was empty.
Later,
the applicant allegedly confessed that the tanker had 10 000 litres of
paraffin. Later, officials from the National Oil Company of Zimbabwe (NOCZIM)
were summoned, and they confirmed that the tanker contained petrol, i.e. 35 000
litres of petrol.
The
applicant was prosecuted for importing fuel without a licence, and making a
false declaration on the manifest that the tanker was empty, or, alternatively,
for smuggling the petrol, i.e. contravening section 182 and 48 of the Customs
and Excise Act [Chapter 23:02].
The
applicant, in his founding affidavit, avers that he was acquitted on the
charges. This is not entirely correct.
Counts
One and Two were withdrawn before plea, and he was acquitted on Count Three.
Legally, the State can still summon the applicant to face charges under Counts
One and Two. Instead of dwelling on the reasons for the withdrawal, in casu, if
the State has a case, it should pursue it, and I cannot make a determination in
that regard in this application. Further, there is no point in dwelling on the
point whether the applicant should have been acquitted on Count Three. If the
State was not satisfied with the acquittal, it was aware of the remedies
available to it. In short, I am not dealing with the criminal trial here.
I am only seized with the issue of forfeiture
and disposal of the 35 000 litres of petrol.
