High Court judge Justice Joel Mambara has set aside a ruling by Harare Regional Feresi Chakanyuka refusing to release US$78,000 to a theft accused duo after criminal proceedings against them were halted.
The applicants in the matter are Admore Musiza and Tafara Machokoto, who were accused of stealing the money from National Foods.
Despite several witnesses testifying, the State failed to locate a key witness.
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Consequently, on the applicants' motion, the magistrate refused further remand and removed the applicants from remand, effectively ending the proceedings.
Musiza and Machokoto then applied under section 58 of the Criminal Procedure and Evidence Act [Chapter 9:07] ("CP&EA") for the return of the seized money.
On 9 December 2024, the magistrate dismissed that application, leaving the money in police custody.
The two then approached the High Court with the present application seeking a review and setting aside the magistrate's decision.
The two argued that once the prosecution was discontinued, the law mandated the return of the exhibits to either the accused or the lawful owner.
They contend the magistrate misdirected herself by failing to determine ownership of the money and by effectively leaving the property in limbo, contrary to the CP&EA and established legal principles.
The State opposed the application, citing concerns that the money may be stolen property belonging to a third party and should not automatically revert to the accused without an ownership determination.
But the High Court said Feresi erred by failing to determine who was entitled to the money.
"Having analysed the applicable law and facts, this Court finds that the magistrate's decision of 9 December 2024 cannot stand.
"By refusing to release the exhibits without determining the competing claims, the magistrate failed to apply sections 58 and 61 of the CP&EA properly.
"The proceedings are tainted by a material irregularity and a misdirection on the law, warranting this Court's intervention on review," Mambara said.
The judge said the appropriate relief is to set aside the magistrate's ruling and to remit the matter to the magistrates' court for a proper determination of entitlement to the seized money, in line with the legal principles discussed.
He said the magistrate (same or another, as the Chief Magistrate may assign) should promptly hold an inquiry where the applicants and any interested party, such as National Foods (Pvt) Ltd, if it so wishes, can present evidence or affidavits on the ownership of the funds.
He also ordered the magistrate to make a determination whether the money should be restored to the applicants as possessors or to the company as purported owner, or partly to each if evidence so dictates, or otherwise dealt with according to law.
The judge said that in conducting this inquiry, the magistrate must be guided by the standards of proof in civil matters (balance of probabilities) and the statutory directives in CP&EA sections 58 and 61.
"If no credible evidence is presented to establish another person's claim, then the magistrate is obliged to order the money returned to the applicants.
"If, on the other hand, it is proven that the money in fact belonged to the company and was only in the applicants' possession by virtue of the alleged crime, then the magistrate can order it delivered to that rightful owner.
"In either scenario, the outcome will no longer be 'in limbo' but anchored in a judicial determination of rights."
For the reasons above, the judge reviewed, quashed and set aside Feresi's ruling.
"The matter is remitted to the magistrates' court for a fresh determination of the question of entitlement to the seized money (US$78,000 in total), in accordance with sections 58(1)(d)(i) and 61 of the CP&EA and the guidance provided in this judgment.
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"The magistrate is directed to conduct an inquiry and receive evidence as necessary to decide whether the money should be restored to the applicants or to any other person claiming ownership, and to then make the appropriate order for disposal of the exhibits."
While dealing with the application for a review, the judge said the State should not hold seized property any longer than necessary, and ultimately the property should end up with its lawful owner or possessor unless lawfully forfeited.
He said the law strikes a balance by giving law enforcement temporary custody and certain forfeiture powers, but it does not allow permanent deprivation of property without due process or without affording the possessor/owner an opportunity to assert their rights.
He said there is even a provision that if three months pass after the trial's end with no order or claim, the item is forfeited to the State by default - another indication that the law will not allow exhibits to remain in limbo indefinitely.
