Court slams Zimra over 'hearsay evidence' in truck seizure case

The High Court in Bulawayo has dealt a significant setback to the Zimbabwe Revenue Authority (Zimra) after dismissing its attempt to reclaim a truck seized in an alleged smuggling operation near Binga, with the court criticising the tax authority for relying on inadmissible hearsay evidence.

In a strongly worded judgment, Justice Mpokiseng Dube struck Zimra's review application off the roll with costs, finding that the authority's case was founded on evidence from a witness who had no direct knowledge of the events surrounding the seizure of the vehicle.

Zimra had approached the High Court seeking to overturn a ruling by the Binga Magistrates Court that ordered the release of a MAN truck belonging to Leapium Holdings, trading as Leapmed Logistics.

The authority cited Leapmed Logistics, the National Prosecuting Authority and the officer commanding Binga Police Station as respondents in the matter.

The dispute arose from an incident on New Year's Day last year when police intercepted suspected smugglers about 25 kilometres outside Binga and seized the truck, which was carrying assorted goods.

Three men found near the vehicle were arrested after allegedly failing to produce customs clearance documents. One of the suspects, Antony Chabata, was later convicted under the Customs and Excise Act for smuggling-related offences.

However, Leapmed Logistics successfully challenged the continued detention of the truck, arguing that it owned the vehicle and was not implicated in the alleged smuggling activities.

Following that ruling, Zimra sought a review, contending that the magistrate had exceeded his jurisdiction by ordering the release of property seized under customs legislation.

The application, however, encountered serious difficulties in the High Court.

Justice Dube found that Zimra's founding affidavit, deposed to by regional manager Bekezela Majokojoko, contained hearsay evidence and factual inaccuracies.

"The evidence given is hearsay," Justice Dube ruled. "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 occurred. The judge said he had made broad assertions without identifying who had supplied the information or how he had verified it.

In one of the most damaging findings against Zimra, the court established that Majokojoko incorrectly stated that a seizure notice had been issued to Leapmed employee Ntokozo Sibanda. Documents attached to Zimra's own application showed that 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 ruled that the inaccuracies prejudiced Leapmed Logistics and found no justification for the reliance on second-hand evidence in a matter that was not brought on an urgent basis.

"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 said.

Justice Dube also dismissed arguments that Zimra lacked legal standing to challenge the magistrate's decision because it had not been formally cited in the original proceedings.

The court clarified that review applications differ from appeals and may 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 further addressed concerns surrounding Zimbabwe's Integrated Electronic Case Management System (IECMS), after Zimra argued that filing documents through the electronic platform automatically constituted service on the opposing party.

Justice Dube rejected the argument, stressing that litigants remain obliged to properly serve court documents and provide proof of service.

"The IECMS did not do away with the requirements for service," he ruled.

The court ultimately upheld two preliminary objections raised by Leapmed Logistics and struck Zimra's application off the roll with costs.

Zimra was represented by its legal division, while Leapmed Logistics was represented by Moyo and Nyoni Legal Practitioners.