Forfeiture of items used in connection with crimes (Zimbabwe)
In terms of s 62 CPEA the court is given the discretion to order the forfeiture of certain items which have been used in connection with criminal activity. This discretion lies with the court and its exercise does not depend on prior application for forfeiture by the prosecution.
In summary, a court can order forfeiture:
- in respect of any crimes: of weapons, instruments and articles used in the commission of crimes can be declared forfeit to the State;
- in respect of theft and related crimes: vehicles used to transport stolen goods;
- in respect of statutory offences relating to possession, conveyance or supply of habit-forming drugs or harmful liquids, possession of or dealing in precious metals or stones, theft under common law or statute and housebreaking with intent to commit a common law or statutory offence: vehicles, containers and articles used in the commission of these offences
In Zendera HH-157-04 the court decided that an article "by means whereof" the offence is committed is one which enables the offender to commit the offence or assists or aids the offender in committing the offence.
The factors which should be taken into account when deciding whether to order forfeiture are set out in Ndhlovu(1)1980 ZLR 96 (GD). These are:
- the nature of the article;
- what its role was in the commission of the offence;
- what possibility there is of the article being used again to commit similar offences;
- the effect of the forfeiture on the person or persons affected by it;
- whether, in the light of the value of the article, its forfeiture will lead to the imposition of a penalty which is disproportionate to the gravity of the offence committed;
- where the article is of considerable value, such as a motor-vehicle, whether that article has previously been used for a similar criminal purpose.
Forfeiture is part of the punishment and the value of the goods which may be declared to be forfeit must be taken into account. Especially where these may be of substantial value, the courts should make some inquiry to determine their value: Poswell 1969(4) SA 194 (R); Barclay 1969 (4) SA 195 (RA); Pretorius 1969 (4) SA 198 (R); Kurimwi 1985 (2) ZLR 63 (S) (forfeiture of motor vehicle inappropriate where used for smuggling only small amount of goods); Mutasa 1988(2) ZLR 4 (S) (forfeiture of ungraded meat illegally offered for sale).
There are also specific forfeiture provisions in a number of other pieces of legislation. Some of the more important of these are:
s 209 of the Customs and Excise Act [Chapter 23:02] pertaining to forfeiture of smuggled items and things used in the commission of smuggling such as cars, ships and aircraft. See Mahomed 1977 (2) RLR 207 (GD);
s 7 of the Exchange Control Act [Chapter 22:05] laying down that when the court convicts for certain offences under this Act involving gold, currency, goods or other property it may order forfeiture of these items, unless the convicted person satisfies the court that there are special reasons for not ordering forfeiture;
s 106 of the Parks and Wildlife Act [Chapter 20:14] empowering the court to order forfeiture of the spoils of offences under this Act, such as trophies and animal carcasses and of items used in connection with offences under this Act such as weapons, explosives, tents, vehicles and aircraft.
s 31 of the Firearms Act [Chapter 10:09] empowering the court convicting for offences under this Act to order forfeiture of items such as firearms and ammunition.