Mashoko Kusakadza v The Commissioner General of Police N.O and The Officer in Charge Vehicle Theft Squad N.O and Police Sergeant Muzira

### Preamble
1
HH 64-2022
HC 869/21
---------


MASHOKO KUSAKADZA

versus

THE COMMISSIONER GENERAL OF POLICE N.O

and

THE OFFICER IN CHARGE VEHICLE THEFT SQUAD N.O

and

POLICE SERGEANT MUZIRA

HIGH COURT OF ZIMBABWE

MHURI J

HARARE, 20 January, 2021 and 2 February 2022

Opposed application

Mr J Mugogo, for the applicant

Mrs M Mavemwa, for the respondents

MHURI J:   The applicant approached this court seeking a declaratur in terms of s 14 of the High Court [Chapter 7:06].  The applicant is seeking an order declaring that the seizure of the ISUZU KB 300 LE Single Cab truck Registration Number ABA1128 by the third respondent be and is hereby declared illegal.

The brief background which gave rise to this application is that sometime in 2011, the applicant purchased the motor vehicle in question from his mother-in-law a Mrs Mungofa who also had purchased it from EU Microproject Programme in 2010 at Ruby Auctions.

In February 2015, the motor vehicle was seized by CID officers from Southerton Vehicle Theft Squad on suspicion that it had been stolen.

On the 8th of April 2015, a forfeiture order was issued by the Provincial Magistrate in terms of s 59(1)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].  The motor vehicle was forfeited to the State.

The applicant’s averments were that, on the day the motor vehicle was seized, he was not issued with a notice of seizure but was only advised that he would be summoned to court.  He however was constantly checking with the respondents on the matter until in October 2020

when he learnt that the motor vehicle had been forfeited to the State.  By a letter dated the 15th of October 2020 through advice from the Director CID VTS Department and Officer Commanding VTS, Southerton, the applicant wrote to the first respondent seeking release of a file ER 34/15, as he intended to appeal against the procedure and verdict which led to the forfeiture of the motor vehicle.  His letter was not responded to which led him to engage his legal practitioner.

The applicant deposed to the facts that he was not given any chance to be heard before the motor vehicle was forfeited, the forfeiture was unlawful as it was done without due process.   His pleas and demands with the respondents yielded nothing hence his approach to this court.

The respondents opposed the application basically on the points that this court has no jurisdiction to hear the application and that the application is improper as it seeks the return and delivery to him of the motor vehicle in its draft order.

The applicant conceded to the second point in limine and consequently abandoned paragraph 3 of his Draft Order.

It was respondents’ submission on the point in limine that notwithstanding that the High Court has inherent jurisdiction, this is limited if there is a statute or any other law which limits the authority or grants exclusive jurisdiction to some other court.  The applicant referred to s 59(3) of the Criminal Procedure and Evidence Act arguing that the applicant ought to have approached the magistrates’ court which had issued the forfeiture order instead of this court on an application of this nature.   It was an after-thought by applicant to approach this court after six (6) years of forfeiture, there being nothing to show that he did something to recover the motor vehicle which he alleges was unlawfully forfeited.  The respondents further submitted that in terms of subsection (4) applicant had the right to appeal to this court if he was aggrieved by the magistrates’ determination.

The respondents’ prayer was to have the application dismissed on these points in limine.

In response to the respondents’ point in limine, it was applicant’s submission that notwithstanding s 59 of the Criminal Procedure and Evidence Act referred to by the respondents, this court has jurisdiction to hear this application because, at no time did the respondents communicate with him that the motor vehicle had been forfeited.  He was not advised of the proceedings leading to the forfeiture.  He only learnt of the forfeiture after 5 – 6 years.  He cannot approach the magistrates’ court at this point as he was supposed to do it within 3 years of the forfeiture.

The applicant prayed that the point in limine be dismissed.

Section 14 of the High Court Act which applicant relied on in bringing this application provides:

“The High Court may, in its discretion, at the instance of any interested person inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

It is trite that the High Court has inherent jurisdiction and in the exercise of its powers it can in its discretion hear applications for a declaratur in terms of section 14 of the High Court Act.  This inherent jurisdiction however has some limitations.  I agree with the respondents’ submission that the inherent jurisdiction is limited if there is a statute or any other law that limits the authority or grants exclusive jurisdiction to some other court.

Section 59(3) of the Criminal Procedure and Evidence Act relied on by the respondents provides as follows:

“Where an article has been forfeited to the State in terms of paragraph iii of subsection (1) or subsection (2), a magistrate within whose area of jurisdiction the article was, in terms of paragraph (c) of section fifty-eight, retained in police custody may at any time within a period of three years from the date of the original seizure by a police officer or delivery to a police officer, as the case may be, of the article, upon the application of any person who claims that any right referred to in paragraph(a) or (b) is vested in him, inquire into and determine such right and, ….”

On the 5th of February 2015 the applicant’s motor vehicle was seized by the Police on suspicion that it was a stolen motor vehicle.

On the 17th of February 2015 the applicant’s motor vehicle was examined by a Principal Forensic Scientist D. Zuze who found that the motor vehicle chassis number had been tempered with.

On the 8th of April 2015 the Provincial Magistrate V D Chikwekwe issued a Forfeiture Order in respect of the motor vehicle.

In terms of section 59(3) the applicant had a period of 3 years within which to make an application to the magistrate within whose area of jurisdiction the motor vehicle was forfeited, claiming his vested right in the motor vehicle, where upon after an enquiry the magistrate would either set aside the forfeiture and order that the motor vehicle be returned to him or direct that he be paid adequate compensation.  In the event that applicant was aggrieved by the magistrates’ determination applicant had recourse, i.e. appeal in terms of subs (4) of s 59.

The above clearly shows that the applicant approached this court after having realised that he was way out of time to utilise the provision of s 59(3).  In my view, being out of time or when a matter has prescribed in terms of the relevant Act does not give a party the right to approach this court in terms of s 14 of the High Court Act seeking a declaratur like what happened in casu.

In the result, the respondents’ point in limine is upheld.  With this finding, I shall not delve into the merits of the application.

It is therefore ordered that the application be and is hereby struck off.

John Mugogo Attorneys, applicant’s legal practitioners

Civil Division of the Attorney-General’s Office, respondents’ legal practitioners