A ZAMBIAN telecommunications company, Rock Telecom Limited, had its 81 540 mobile phones worth US$352 930 confiscated by the Zimbabwe Revenue Authority (Zimra) after it tried to smuggle them out of the country.
The matter recently spilled into the High Court after efforts to retrieve the mobile phones from Zimra hit a brick wall.
However, the High Court has dismissed the company’s application after hearing both parties.
Rock Telecom wanted an order declaring that Zimra’s forfeiture of its Tecno mobile phones is grossly irregular.
The company argued that Zimra failed to take into account the fact that the applicant was not involved in the violation of the Customs and Excise Act [Chapter 23:02].
The company also said Zimra’s forfeiture of its mobile phones was grossly harsh, excessive and unfair because the authority could have imposed a penalty which is provided for by the laws.
Rock Telecom also said Zimra was unfair because it failed to treat it in the same way that it treated other parties which committed similar offences in the past.
High Court judge, Justice David Mangota dismissed the application, noting that its arguments lacked merit.
“It follows, from a reading of the above-analysed matters, that the applicant’s last ground of review is devoid of merit. It is dismissed as well.
“The applicant, it is evident, failed to prove its case on a balance of probabilities.
“The application is, in the result, dismissed with costs,” he ruled.
Rock Telcom had submitted that in October 2022, it 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 it avers, 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.
It, 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 own 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 physical examination waiver claiming that the Zimra’s GMS would be held liable in the event that 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.
The undeclared goods, it states, were detained on notice of seizure number 041064 L of 22 November, 2022.
The clearing agent, it avers, was advised of his right to make written representations to the regional manager requesting release of the goods.
Allied Customs Freight unsuccessfully made written representations to the regional manager, the commissioner of customs and excise, as well as to the commissioner-general of the Zimbabwe Revenue Authority.
It claims that the goods which were the subject-matter of the offence were liable to forfeiture in terms of s 188 (2) of the Act.
Zimra successfully argued that the duty to make sure that a correct declaration is made at the point of entry falls upon the importer and the transporter.
It distinguished the case of the applicant from that of Gatbro International-Zambia stating that the quantities in the two cases are not the same.
Zimra said Rock Telecom declared only 13 000 mobile phones with a value of
US$9 000 which were assessed to US$54 930 free on board value.
It avers that 81 540 mobile phones with a duty value of US$352 792.80 were not declared, adding that the punishment was fair.
In handing down his ruling Mangota Mangota said it is trite that, in any sentencing process, the moral turpitude of the offender plays a pivotal role.
“The applicant’s moral blameworthiness cannot be wished away. It is very high by any standard.
“It under-declared the goods which it was importing in a most unacceptable manner.
“The reasons which the respondent advances for acting in the manner that it did cannot be faulted,” said the judge.
Rock Telecom said the surety it gave was insufficient.
The judge agreed that the decision which it took was the only way to deter smuggling of goods.
“The respondent cannot be said to have acted irregularly given the circumstances of the present case. The law supports the approach which it took of the applicant’s case.
He said the applicant, as a business entity, should always make the effort to act honestly in its dealings with other persons, governments of the countries through which its goods pass on their way to it in particular.
“If Zimra fails to act in circumstances such as what occurred with the goods of the applicant, the respondent will be failing in its duty to bring to book people or business entities which have their goods pass through this country.
“Punishments which the respondent imposes should bring to the business community, within and without, Zimbabwe that dishonesty has no room and is not tolerated in this country.
“The sentencing adage which states that punishment should fit the crime and the offender holds true in the present case.
“This is a fortiori the case where, as in casu, the applicant had the apparent intention to under-declare its goods for its own unknown reasons,” ruled the judge.
The judge also said whilst the case of Gatbro International Limited was one of negligence, the applicant’s case was, it would appear, one of a clear intention to smuggle the goods into Zimbabwe.
“The moral turpitude of the two entities are markedly different from each other.
“The gravity of the applicant’s moral blameworthiness accounts for the difference in the treatment of the applicant from that of Gatbro International Limited, Zambia.
“It follows, from a reading of the above analysed matters, that the applicant’s last ground of review is devoid of merit. It is dismissed as well.” — STAFF WRITER.
