S v Masimike (104 of 2022) [2022] ZWSC 104 (30 September 2022)

Judgement No. SC 104/22 Civil Appeal No. SC 57/20 1 REPORTABLE

(89) STEVEN MUSIMIKE v THE STATE SUPREME COURT OF ZIMBABWE GWAUNZA DCJ, UCHENA JA & KUDYA AJA HARARE: 3 NOVEMBER 2020 & 30 SEPTEMBER 2022 Ms F Chinwawadzimba, for the appellant T Mapfuwa, for the respondent KUDYA AJA: The appellant appeals against the judgment of the High Court dated 9 September 2019, wherein the court a quo dismissed his appeal against conviction by the Magistrates’ Court on a charge of criminal abuse of office under s 174 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23](The Criminal Law Code).

The Facts

The facts in this case are generally common cause. On 26 May 2015, the appellant and Obert Tafadzwa Charamba (the coaccused) were jointly charged with criminal abuse of office at the Beitbridge Magistrate’s Court. On 9 November 2015, they were convicted and sentenced to pay a fine of US$700 or in default of payment 6 months imprisonment with an additional 5 months imprisonment suspended for a period of 5 years on the appropriate conditions of future good conduct. Judgement No. SC 104/22 Civil Appeal No. SC 57/20 2

The appellant and the co-accused were employed by the Zimbabwe Revenue Authority (Zimra) as a revenue supervisor and loss control officer, respectively. The appellant was stationed at the container depot at the Beitbridge border post. The co-accused was based in Harare but was on relief duties at the scanning unit at the same border post in December 2014. On 23 December 2014, Isaac Musharu (the driver) cleared all the manual customs formalities 1 with the help of Christian Mugwali, a Beitbridge based freight and clearing agent. Duty was paid for the consignment in the sum of US$29 303.88. He was driving a horse (Registration Number ABZ 4226), which was drawing two trailers (Registration numbers ACE 9470 and ACE 9471). The trailers were laden with 2 514 cartons of liquor (the consignment) imported from Musina in South Africa by the local Bulawayo based Turkey Trading (Pvt) Ltd (the importer). His last port of call was the scanning unit, where he handed over his manually cleared customs documents, inclusive of the bill of entry number C93285, to the co-accused at 11pm. The co-accused made a cursory physical examination of the consignment. He directed Mutero, a ZIMRA escort driver, to take the truck to the container depot. At midnight and before the truck was driven to the container depot, the clearing agent attended at the scanning unit, at the behest of the driver. The co-accused referred the consignment to the container depot because the electronic clearance system had “red flagged” the importer for possible acts of smuggling previous liquor consignments into the country. He caused this reason to be entered into the “Referred to Container Depot Register” by his subordinate, one 1 The customs clearance documents comprised, consignment note, the commercial invoice, road manifest and SADC certificate of origin issued by the South African exporter, the South African bill of export, the local bill of entry, and the gate pass or release order issued on entering Zimbabwe. Judgement No. SC 104/22 Civil Appeal No. SC 57/20 3 Eric Gorondondo. The driver and clearing agent, however, assumed that the consignment was being referred to the container depot for an accentuated physical examination. The consignment was received at the container depot by the security guards on duty. On 24 December 2014, the driver and the clearing agent alleged that two of the appellant’s subordinates inspected and reconciled the consignment with the commercial invoice and the bill of entry. No anomalies were found. The consignment was not released. Instead, the appellant, in colourful Shona prose (which the driver and clearing agent understood to mean “the vehicle has been impounded), impounded the consignment and ordered the driver to uncouple the horse from the trailers. The driver signed the “leave the consignment in the container depot form.”

The appellant impounded the consignment in compliance with the instruction endorsed on the consignment note by the co-accused for the detention of the consignment as a lien in lieu of impending investigations of the purported smuggling activities undertaken by the importer in respect of previous liquor imports from Musina. He, however, did not pay heed to the co-accused’s suggestion to raise, in terms of s 201 of the Customs and Excise Act [Chapter 23:02] , an “embargo” against the consignment. He also rebuffed the requests, to similar effect, made on 25 and 27 December 2014, by Amkela Ndebele, the clearing agent’s Bulawayo based managing director, to issue detention documents to the importer.

During Amkela’s second visit, on 27 December 2014, the appellant asserted, firstly, that the consignment would be detained until the smuggling investigations were completed. Secondly, that the investigation was being conducted by his head of station (Acting Regional Manager Mungani), head of section (enforcement manager Dumbu) and the Judgement No. SC 104/22 Civil Appeal No. SC 57/20 4 technical manager (Chamboko). He further demanded copies of all the customs clearance documents (pertaining to the previous liquor consignments) issued to the importer between September and December 2014, to facilitate the timeous conclusion of the investigations. The same documents were also demanded by, and availed by the importer to, the Acting Regional Manager as a condition precedent to the release of the shipment consequent to the consensual order issued on 14 January 2015, by the Bulawayo High Court in case number HC 16/15. It was also common cause that the appellant did not issue any detention documents despite demand from the importer for him to do so until the cargo was released pursuant to the consensual order.

It was further common cause that the co-accused was required by the dictates of his duties to enter the reason for referring the consignment to the container depot in the electronic clearance system, “Referred to Container Depot Register”, the “Inspection Act”, and if the electronic system was down, endorse the reason on the back of the driver’s copy of the bill of entry. He was further required to enter the reason for doing so into the ZIMRA electronic clearance system. These entries, amongst other purposes, served to alert the officials at the container depot what to check for (values, tariffs or quantities). Likewise, the appellant was required to issue detention documents for the consignment. He could issue a notice of seizure, a receipt of items held (RIH) or Form 45 to the importer. In his testimony on the procedure pertaining to these documents, the Acting Regional Manager asserted that once a notice of seizure or an RIH was issued, the consignment would be carted to a warehouse for storage. Where, however, Form 45 was issued, the consignment would be detained at the container depot until the queries raised in that form were all cleared by the importer or his clearing agent. Judgement No. SC 104/22 Civil Appeal No. SC 57/20 5 It was also common cause that the appellant and the co-accused were public officers. It was further agreed that neither of them acted in accordance with the dictates of their respective public duties. Rather, by these indisputable omissions, they acted contrary to their respective duties as public officers.

The real issue that confronted the trial court and the court a quo was, therefore, whether the appellant (and his co-accused who did not appeal) had the intention to abuse his public office by disfavouring the importer when he failed in his sworn duty to issue the requisite detention documents between 24 December 2014 and 14 January 2015. THE FINDINGS IN THE MAGISTRATES COURT The trial court accepted the evidence adduced by the Acting Regional Manager on the procedures that the appellant and the co-accused ought to have followed in the referral of the consignment to and detention thereof at the container depot. It found that the prosecution had established beyond a reasonable doubt that the appellant had negated his duty of not only recording the results of the physical examination in the “Inspection Register” but also of issuing the requisite detention documents to the importer. Likewise, it found that the co-accused had acted contrary to his duties by not endorsing the reasons for referring the consignment to the container depot in the system and on the back of the bill of entry. The trial court found that their respective conduct was prejudicial to the importer and, accordingly, found them guilty as charged. The trial court did not relate to the reverse onus and misconstrued the testimony of the regional manager. The regional manager asserted in his evidence in chief Judgement No. SC 104/22 Civil Appeal No. SC 57/20 6 that he never checked into the electronic clearance system but merely checked the back of the bill of entry and the “Physical Examination Register”. THE GROUNDS OF APPEAL A QUO : The appellant appealed to the court a quo on the following grounds of appeal. “1. The court a quo misdirected itself in convicting the appellant when there was no evidence led beyond a reasonable doubt that the appellant committed the offence.

2. The court a quo erred in convicting the appellant when all the essential elements of the offence were not proved, in particular the mens rea.

3. The court a quo erred and misdirected itself in basing its conviction of the appellants on the grounds that the appellant had overall say on the issuance of detention documents when in fact evidence to the contrary had been led by the appellant and not disproved by the respondent.

4. The court a quo also misdirected itself in failure to consider the appellant’s defence which was not disproved by the respondent.”

The Arguments a Quo

The appellant argued that the mens rea to commit the offence had not been established. He contended that the totality of the evidence led did not show that he deliberately or even recklessly and calculatedly utilized his position to injure the public interest by harming the co-related interests of the importer. He argued that his conduct was genuinely motivated by the noble intention of protecting the public purse, which was prejudiced in the sum of US$195 000 by the previous smuggling activities of the importer. He further argued that the trial court had failed to relate to his uncontroverted testimony that he acted on the instructions of the co-accused to check on the previous consignments that were purportedly smuggled into the country from Musina by the importer. He called for previous clearance documents from the importer, which he availed to his Judgement No. SC 104/22 Civil Appeal No. SC 57/20 7 superiors (the enforcement manager, the technical manager and the regional manager). His superiors in turn, invoked bilateral cooperation protocols with the South African Revenue Services (SARS). SARS then supplied ZIMRA with all the requisite customs clearance documents used by the importer to bring the questioned consignments into Zimbabwe. He argued that these investigations, which commenced with the red flagging of the importer on the night of 23 December 2014, belatedly revealed the misfeasance committed by the importer.

He therefore submitted that had the trial court related to his version, it would have found that it passed muster the “reasonably possible true” test and acquitted him of the offence.

Per contra, the respondent contended that the abrogation of ZIMRA processes by the appellant were established. He argued that the colourful prose used by the appellant in impounding the consignment coupled with absence of detention documents betrayed his ulterior motive to injure the public interest by harming the importer’s interests. The injured interests were identified as the loss of income that could have accrued to the importer from beer sales during the festive season and the attendant loss incurred by the importer’s failure to use its trailers during the 21 days in question. The respondent also argued that the appellant’s contrary assertion that he was motivated by the smuggling allegations could not reasonably rebut the presumption against him that his abridgment of the consignment detention procedures was intended to harm the importer’s business interests. The respondent, therefore, submitted that the appellant was correctly convicted by the trial court. THE FINDINGS OF THE COURT A QUO Judgement No. SC 104/22 Civil Appeal No. SC 57/20 8 The court a quo made the following findings. The appellant acted on the instruction of the co-accused to investigate the previous consignments that were alleged to have been smuggled into the country. Notwithstanding such instruction, he was obliged to issue the requisite detention documents. His failure over a period of 21 days, despite the promptings of the clearing agents, established the actus reus of the offence. His version that he was motivated by the higher ideal of preserving public revenues by investigating the purported previous smuggling activities of the importer could not reasonably possibly be true because “that intention to investigate was not properly documented” nor placed before the investigating officer and the trial court. He was, therefore, complicit with the co-accused in the unlawful detention of the consignment. He failed to rebut the presumption that his act or omission was intended to show disfavour to the importer. All the essential elements were, accordingly, established beyond a reasonable doubt. In the circumstances, the court a quo confirmed the conviction and dismissed the appeal.