No. S.C. 18/2002
Appeal No. 370/00
DIRECTOR OF CUSTOMS AND EXCISE
COURT OF ZIMBABWE
CJ, SANDURA JA & ZIYAMBI JA
FEBRUARY 14 & APRIL 19, 2002
for the appellant
for the respondent
This is an appeal against a judgment of the High Court which
dismissed with costs the appellants application
for an order
directing the respondent to release to him a BMW motor vehicle which
had been seized by the respondent in terms of s 193(1)
Customs and Excise Act [Chapter 23:02]
(the Act) on the ground that when the vehicle was imported into
Zimbabwe no duty was paid.
relevant facts are as follows. On 22 April 1999 the respondent
seized a BMW motor vehicle registered in the appellants
the ground that he had reasonable grounds for believing that when it
was imported into the country no duty was paid. The
previously worked in the Department of Customs and Excise.
the appellants lawyer wrote to the respondent, informing him that
the appellant had purchased the motor vehicle
from Innocent Gumbura
(Gumbura) and calling upon him to release the motor vehicle to
the appellant without delay.
the motor vehicle was not released, the appellant filed a court
application in the High Court. That application was subsequently
dismissed with costs. Aggrieved by that decision the appellant
appealed to this Court.
motor vehicle had been seized by the respondent, the matter was
investigated by a customs officers in the Investigations
He prepared an affidavit which was filed in the court a quo.
The relevant part of that affidavit reads as follows:
handled the matter. The BMW in question was imported into the
country and duty was not paid.
applicant should refer us to the person who imported the vehicle
applicant referred me to Innocent Gumbura whom he says sold the
vehicle to the applicant and in turn Innocent Gumbura
me to Temba Dube also known as Calvin Dube.
respondent has tried to locate Temba Dube to no avail. My
investigations in this matter have revealed that the BMW in
was first fraudulently registered by one Vincent Chakala using
fake Customs Clearance Certificate number 630815, date-stamped
26 March 1997. The date stamp is fake. The BMW was then
issued registration number 654-334 G.
5. Vincent Chakalas
address was given as 49 Borrowdale Trust, Marondera. On
checking on this address it turned out
that this place is an old
peoples home. Vincent Chakala is not known at this address.
During 1997 49 Borrowdale
Trust was occupied by a Mr and Mrs
1999 the BMW was fraudulently registered using fake Customs Clearance
Certificate number 698818 date-stamped 30 January
fake Customs Clearance Certificate was issued in the name of
Joyce Chasara of 38 Princess Margaret Road, Marlborough,
Harare. The date stamp used was fake. The new fake registration
number issued is 711-288 N, which is the one currently affixed
to the BMW.
proceeded to 38 Princess Margaret Road and found that
Joyce Chasara used to stay there. She was a housemaid working
for a Murira family who own the said property. Her last known
address is number 3, Guthrie Avenue, Marlborough, but
she does not reside there anymore.
8. Innocent Gumburas
name does not appear on any of the fake documents, neither does the
name of Temba Dube.
his founding affidavit, the appellant averred that he bought the
motor vehicle from Gumbura for $506 000.00, that he paid
purchase price by means of five company cheques (the company being
Con-Plant Technology (Pvt) Ltd), that at the time of the sale
was in possession of a Customs Clearance Certificate, that Gumbura
had imported the vehicle into the country, and that he
appellant) had given all this information to the respondent.
the circumstances, it was submitted on behalf of the appellant that
in terms of s 193(3) and s 222(1) of the Act the
was entitled to the release of the vehicle.
considering that submission I would like to set out the relevant
provisions of the Act.
in terms of which the vehicle was seized, reads as follows:
to subsection (3), an officer may seize any goods, ship,
aircraft or vehicle (hereinafter in this section referred
articles) which he has reasonable grounds for believing are liable to
of s 193 of the Act, which is referred to in subs (1)
above, reads as follows:
seizure shall be made in terms of subsection (1) where more than
two years have elapsed since the articles first became
seizure or where such articles have been acquired after importation
for their true value by a person who was unaware at
the time of his
acquisition, that they were liable to seizure:
(ii) proof that a person was
unaware that the goods he acquired were liable to seizure shall lie
s 222(1), in relevant part, reads as follows:
person being in possession or control of imported goods or goods
which are liable to duty under this Act,
an officer so to do, produce proof as to the place where entry of the
goods was made and any duty due thereon was paid
and also the date of
. If he himself did not pay the duty or make entry of the
goods, such person shall produce such
evidence as will enable the
officer to locate and question the person who did make such entry and
payment in respect of the goods.
was submitted on behalf of the appellant that the vehicle should not
have been seized because the provisions of s 193(3)
of the Act
were satisfied. In other words, the submission was that the vehicle
had been acquired from Gumbura after importation,
for its true value,
by the appellant who was unaware that it was liable to seizure.
it is true that the appellant acquired the vehicle after its
importation into the country, I do not think that the evidence
that he acquired it for its true value.
the first place, the appellant averred that he bought the vehicle for
$506 000.00 when, according to the respondent, the
true value of
the vehicle at the relevant time was $1 073 851.02.
there is no evidence which shows that the five company cheques, for
the total sum of $506 000.00, which were issued
to Gumbura, were
issued as payment of the purchase price of the vehicle. Although it
appears from the signature on the five cheques
that the appellant may
have signed them, there is no indication of the capacity in which he
may have done so, or his relationship
with the company which issued
there is no evidence which shows that the appellant bought the
vehicle from Gumbura, apart from the appellants own
this regard, it is pertinent to note that at the time the appellant
acquired the vehicle it was registered, not in Gumburas
in Joyce Chasaras name, and yet the appellant made no mention
of Joyce Chasara. If, indeed, he bought the
assuming that he was a prudent buyer, he would have examined the
registration book before purchasing the vehicle.
would have revealed that the registered owner was Joyce Chasara,
and not Gumbura. In the circumstances, the
appellants failure to
explain why the cheques were issued in favour of Gumbura, and not in
favour of Joyce Chasara, is very
strange. Indeed, the fact
that he made no mention of Joyce Chasara,
the registered owner of the vehicle which he said he bought, creates
a very strong suspicion that his actions were not bona
am, therefore, satisfied that the vehicle was not acquired for its
true value, and that the appellant failed to prove, on a balance
probability, that when he acquired the vehicle he was unaware that it
was liable to seizure. He cannot, therefore, rely upon
provisions of s 193(3) of the Act.
now come to the provisions of s 222(1) of the Act. In order to
benefit from these provisions, the appellant should have
such evidence as will enable the officer to locate and question
the person who imported the vehicle into the country
and paid the
duty in respect of the vehicle.
In my view, the appellant
dismally failed to produce the required evidence. All he told the
respondent was that he bought the
vehicle from Gumbura of
Aloe Enterprises, 2nd Floor,
Noczim House, Leopold Takawira Avenue, Harare, for $506 000.00,
and that the vehicle had been imported into
the country by Gumbura.
He did not inform the respondent that at the time he acquired it the
vehicle was registered in the name
of Joyce Chasara and that the
Customs Clearance Certificate shown to him by Gumbura had been issued
in the name of Joyce Chasara
in January 1999. He was not,
therefore, being truthful.
Gumbura was subsequently contacted by the investigating officer, he
referred him to Temba Dube, who could not be located.
event, neither Gumburas name nor Temba Dubes name appeared
on any of the forged Customs Clearance Certificates.
am, therefore, satisfied that the appellant cannot rely upon the
provisions of s 222(1) of the Act. The evidence he gave
the customs officer falls short of what was envisaged by that
the circumstances, the appeal is devoid of merit and is dismissed
CJ: I agree.
JA: I agree.
Mabulala & Motsi,
appellant's legal practitioners
Division of the Attorney-Generals Office,
respondent's legal practitioners