The first applicant, a 47 year old South African national,
arrived at Pandamatenga Border Post on 7 November 2015. He was driving a Nissan
UD Truck bearing registration number DR 84LD GP. He was enroute to Botswana. He surrendered
his Temporary Import Permit and Passport to the Customs and Immigration
officials. The motor vehicle was searched by customs officials and a false
compartment containing 4,114 bricks of Pacific cigarettes was discovered. The
cigarettes were not declared to customs officials and were accordingly seized
under Notice of Seizure number 016001. The UD Nissan Truck was also seized in
terms of section 188(2) of the Customs and Excise Act [Chapter 23:02].
The first applicant appeared before a magistrate sitting at
Victoria Falls on 27 November 2015 facing a charge of smuggling, in
contravention of section 182(1) of the Customs and Excise Act [Chapter 23:02]. He pleaded guilty to smuggling 4,114 bricks
of cigarettes. He was sentenced and convicted on his own plea of guilty and was
sentenced to pay a fine of US$2,000=, or, in default of payment, 6 months
imprisonment. In addition, the seized goods (cigarettes) were forfeited.
The trial magistrate ordered that the motor vehicle used to
smuggle the goods be forfeited to the State.
The applicant's legal practitioner has filed an application
for review premised on essentially two grounds:
(a) The sentence imposed against the first applicant is
incompetent in that the trial magistrate did not have the jurisdiction to
impose a sentence exceeding US$500=.
(b) The learned magistrate grossly erred in ordering
forfeiture of the motor vehicle despite the fact that she had doubts whether
the vehicle was designed for smuggling and without establishing whether the
owner of the vehicle was aware that the vehicle was being used for such a
purpose. It was further argued that in terms of the Customs and Excise Act the
court should have heard the owner's explanation before ordering forfeiture.
It is beyond dispute that the trial magistrate, being a
junior magistrate, did not have jurisdiction to impose a sentence of a fine
exceeding US$500= (Level 8). Section 208 of the Customs and Excise Act [Chapter
23:02] provides as follows:
“…,.
(b) A court of a magistrate, other than a Regional, Provincial
or Senior magistrate, shall have special jurisdiction to impose, on summary
trial or on remittal by the Prosecutor General of the case for trial or
sentence, a fine not exceeding level eight or imprisonment for a period not
exceeding two years or both such fine and such imprisonment.”
The sentence ordering the first applicant to pay a fine of
US$2,000= is therefore incompetent and cannot be allowed to stand.
On the aspect of forfeiture, the learned trial magistrate
dealt with the issue as follows in her reasons for sentence:
“As mitigatory, I have also considered that accused did not
benefit from the offence as the 4,114 bricks of cigarettes were seized and
later forfeited by this court.
I find it appropriate to further forfeit the vehicle which
was used in the commission of the offence in accordance with section 188 of the
Customs and Excise Act. It is not clear from the vehicle whether the
compartment is built in or from the manufacturer in that state. I therefore
feel that it is not for the accused person to say that the vehicle is not his
but for the owner to clarify certain issues.”…,.
The learned trial magistrate went on to order forfeiture of
the motor vehicle despite the fact that the Public Prosecutor submitted that he
did not intend to apply for forfeiture of the vehicle as there was no evidence
that the compartment was a false compartment designed for smuggling, and,
crucially, the owner of the vehicle had not been called to defend himself. In
her own reasons for sentence, the magistrate expressed doubts whether the
compartment where the cigarettes were concealed was a false compartment or was
a design by the manufacturer. It is common cause that the vehicle belongs to
RJA Kellie. There is no evidence on record to suggest that the owner of the
vehicle authorized the use of his vehicle for smuggling purposes or for any
other unlawful purpose. There is also no evidence to infer that the owner of
the vehicle was aware that his vehicle was being used to smuggle cigarettes.
Section 209(3)(c) of the Customs and Excise Act [Chapter
23:02] provides that no article, ship, aircraft or vehicle shall be forfeited;
“…, until the owner thereof has been given an opportunity
of being heard:
Provided that –
(1) This subsection shall not apply to goods which have
been imported in contravention of section forty-seven or exported in
contravention of section sixty-one…,. “
It is clear from a reading of the above section that the
trial magistrate was obliged to hear the explanation of the owner of the vehicle
to establish whether or not he was aware or must have been aware that his motor
vehicle was being used for the purposes of smuggling cigarettes.
Failure on the part of the trial court to give the owner of
the vehicle an opportunity to be heard, in clear violation of the provisions of
the Customs and Excise Act, amounts to a serious irregularity which renders the
order of forfeiture clearly defective and incompetent.
I am satisfied, for the reasons stated above, that the
applicants are entitled to the relief sought in the draft order. I accordingly
order as follows:
1. The sentence of US$2,000= imposed on the first applicant
be and is hereby set aside and substituted with a fine of US$500=.
2. The forfeiture of vehicle number DR 84 LD GP be and is
hereby set aside.
3. The said vehicle be released to the second
applicant or his legal representative within 48 hours of the date of this
order.
