The Supreme Court has set aside forfeiture of mobile phones worth US$352 930 belonging to Zambian Telecommunications company seized by the Zimbabwe Revenue Authority (ZIMRA) last year.
This follows an appeal mounted at the upper court by the company, Rock Telecom Limited which lost a total of 81 540 cellphones to ZIMRA.
A three-panel bench chaired by Justice Felistus Chatakuta partially upheld the appeal but ruled that the cell phones would remain under seizure.
The Supreme Court however set aside the decision by ZIMRA declaring the goods forfeited to the state.
"The appeal succeeds in part.
"The application for review partially succeeds with no order as to costs.
"The decision of the respondent made on 30 January 2023 declaring the appellant's goods forfeited to the State be and is hereby set aside," said Chatukuta in a recent judgement.
Rock Telecom had its 81 540 mobile phones worth US$352 930 confiscated by ZIMRA after it tried to smuggle them out of the country.
In October 2022, the company imported 96820 Tecno mobile phones from China.
These were to be delivered to Zambia which is its country of domicile.
It engaged a transporter, Allied Customs Freight, who lodged a manifest and its clearing agent registered a bill of entry.
At the point of entry of the goods into Zimbabwe, ZIMRA's officials conducted a physical examination of its goods.
They discovered that the goods which the clearing agent declared were less than what was being transported as a result of which they seized its mobile phones.
It was discovered that 81 540 mobile phones with a value of US$352 930 were not declared.
Rock Telecom allegedly declared only 9000 mobile phones with a value of US$9 000.
According to court papers, the company wrote ZIMRA advising that its agent, and not it, under-declared the goods.
The agent, it claimed, had been provided with all the paperwork for the goods.
It took its case to ZIMRA's regional manager who did not believe its submissions.
He ruled that the goods were liable to forfeiture.
The company approached ZIMRA's commissioner for customs and excise who confirmed the decision of the regional manager.
As a final resort, approached ZIMRA's commissioner-general arguing that forfeiture of the goods which were never consumed or intended to be consumed in Zimbabwe was a drastic punishment.
Rock Telecoms persuaded the commissioner-general to impose other forms of punishment which the law provided to him instead of forfeiture.
The company argued that another company, Gatbro International Limited, Zambia whose circumstances were on all fours with its case was treated more leniently than it was by ZIMRA who, according to it, offered release terms to Gatbro International Limited.
ZIMRA opposed the application.
According to ZIMRA, on 3 November 2022, its Forbes Border commercial release desk issued an order for physical examination of Rock Telecoms goods after they observed that the same were grossly under-valued.
ZIMRA avers that, on 4 November 2022, the company's clearing agent, Allied Customs Freight, requested a waiver for the physical examination of the goods which the respondent declined.
It asserts that it instructed the clearing agent to arrange to do the physical examination of the goods.
The agent, it claims, made a further appeal to the acting customs manager for a physical examination waiver claiming that ZIMRA's GMS would be held liable if the goods are, in any way, damaged or if the same reach their destination with a shortage.
The appeal was refused.
The agent, according to ZIMRA refused to co-operate resulting in its officials clamping the motor vehicle which carried the applicant's goods.
On examination, it was discovered that 81540 mobile phones with a value of US$352 930 were not declared.
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The undeclared goods, it states, were detained on notice of seizure number 041064 L of 22 November 2022.
ZIMRA said Rock Telecom declared only 13 000 mobile phones with a value of US$9 000 which were assessed to be US$54 930 free on board value.
It says that 81 540 mobile phones with a duty value of US$352 792.80 were not declared, adding that the punishment was fair.
The High Court then confirmed the seizure as lawful ruling that Rock Telecom as a business entity, should always make the effort to act honestly in its dealings with other persons, and governments of the countries through which its goods pass on their way to it in particular.
Aggrieved, the company appealed at the Supreme C.
The Supreme Court said the declaration of forfeiture was on 30 January 2023 and therefore effected after two months of the date of giving the notice of seizure, therefore falling short of the three months.
"The declaration of forfeiture was clearly premature.
"The declaration of forfeiture was therefore invalid," ruled the judges.
