THE High Court in Bulawayo has dealt a major blow to Zimbabwe Revenue Authority (Zimra)’s bid to reclaim a truck seized in an alleged smuggling operation near Binga, with the judge sharply criticising the tax authority for relying on “inadmissible hearsay evidence”.
Zimra filed an application for review of the ruling that compelled the release of a truck it had seized citing Leapium Holdings t/a Leapmed Logistics, National Prosecuting Authority and the Zimbabwe Republic Police — officer in charge, Binga Police Station, as respondents.
In a strongly worded judgment, Bulawayo High Court judge Justice Mpokiseng Dube struck Zimra’s application for review off the roll with costs, ruling that the authority’s key witness had no direct knowledge of the events surrounding the seizure of the vehicle.
The case stemmed from the seizure of a MAN truck belonging to Leapium Holdings after police intercepted suspected smugglers about 25 kilometres outside Binga on New Year’s Day last year.
Police arrested three men found near the truck after they allegedly failed to produce customs clearance documents for assorted goods loaded on the vehicle.
One of the suspects, Antony Chabata, was convicted under the Customs and Excise Act for smuggling-related offences.
However, Leapmed Logistics successfully approached the Binga Magistrates Court for the truck's release after arguing that it owned the vehicle and was not implicated in the alleged smuggling activities.
Zimra then approached the High Court seeking to overturn that ruling, arguing that the magistrate had exceeded his jurisdiction by ordering the release of property seized under customs laws.
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But the application unravelled in court.
Justice Dube ruled that Zimra’s founding affidavit, deposed to by regional manager Bekezela Majokojoko, was riddled with hearsay and factual inconsistencies.
“The evidence given is hearsay,” ruled the judge. “He does not state the source of his knowledge.”
The court noted that Majokojoko was based in Bulawayo and was not present in Binga when the arrests and seizure took place.
Justice Dube said the deponent merely made broad assertions without identifying who briefed him or how he verified the facts.
In one finding, the court said Majokojoko falsely claimed that a seizure notice had been issued to Leapmed employee Ntokozo Sibanda, when documents attached to Zimra’s papers showed the notice had actually been issued to convicted smuggler Antony Chabata.
“It turns out, therefore, that after all, he did not make any diligent enquiry to satisfy himself of the veracity of such facts as he claims,” Justice Dube said.
The judge further said the inaccuracies prejudiced Leapmed Logistics and there was no justification for relying on second-hand evidence in a non-urgent matter.
“This case was not brought on an urgent basis; therefore, there is no justification why the applicant did not bring forth first-hand evidence,” the court ruled.
The court also rejected arguments that Zimra lacked legal standing to challenge the magistrate’s decision simply because it had not been formally cited in the original proceedings.
Justice Dube clarified that review proceedings differ from appeals and can be brought by parties with a “direct and substantial interest” in a matter.
“In fact, the applicant is the current custodian of the truck in question,” the judge observed.
The judgment also touched on growing tensions around Zimbabwe’s electronic filing system after Zimra argued that filing court documents through the Integrated Electronic Case Management System (IECMS) automatically constituted service.
Justice Dube dismissed the argument, warning that litigants still have an obligation to properly serve documents and provide proof of service.
“The IECMS did not do away with the requirements for service,” the judge ruled.
In the end, the court upheld two preliminary objections raised by Leapmed Logistics and struck Zimra’s review application off the roll with costs.
Zimra was represented by its legal division, while Leapmed Logistics was represented by Moyo and Nyoni Legal Practitioners.
