adminMashudu Netsianda Senior Court Reporter
THE Bulawayo High Court has set aside the sentence of a man who was last year fined $10,000 or four years in jail for allegedly smuggling a South African registered kombi and a trailer into the country through Beitbridge Border Post. Nowell Ndlovu of Bulawayo was convicted of a charge of violating section 182 of the Customs and Excise Act by a Beitbridge magistrate. He was sentenced to four years in jail or $10,000 fine.
Justice Nokuthula Moyo set aside the sentence following an appeal by Ndlovu through his lawyer, Nkosilathi Mlala, arguing that there were irregularities on the part of the trial magistrate. In her ruling, Justice Moyo who was sitting with Justice Martin Makonese during the criminal appeals court yesterday said the trial magistrate erred at law by imposing the sentence. She remitted the matter back to the court aquo for retrial.
“We’re of the view that the sentence imposed on the appellant (Ndlovu) cannot be allowed to stand and in the circumstances the appeal is allowed and the sentence is set aside. The matter is remitted back to the magistrate’s court for retrial,” ruled Justice Moyo.
Ndlovu, in his grounds of appeal, said there was misdirection on the part of the trial magistrate.
“In casu (in this case), I humbly submit that the court erred at law by imposing a $10,000 fine. The statute that is the Customs and Excise in section 181 states that any person who smuggles any goods shall be guilty of an offence and liable to a fine not exceeding level 12 or three times the duty paid value of the goods,” said Ndlovu.
The temporary import permit that was supposed to be paid was R400. “In spite of the provisions of the Act, the learned magistrate went on to impose a fine of $10,000 which is way above the maximum fine provided for in sub-section 1, level 12 which is $2,000. “It’s, therefore, a gross misdirection on the part of the court aquo,” said Mlala.
Sifiso Ndlovu-Sibanda, for the State, which was cited as the respondent concurred with Sibanda, saying she did not support Ndlovu’s sentence. “It’s respectfully submitted that the learned magistrate erred in imposing a fine of $10,000 without explaining how he got to such a figure. It boggles the mind how the learned magistrate reached a figure of $10,000 without the value of duty paid of the goods in question,” said Ndlovu-Sibanda.
The state in its heads of argument noted that there were no reasons given for the sentence thus creating an impression that the decision was an arbitrary one which could have been reached on a whim.
“The learned magistrate misdirected himself particularly on failing to ascertain the value of the duty paid on the goods that is a Toyota Quantum and a trailer. The State prays that the appeal against sentence succeed and this matter remitted to the court aquo for proper inquiry,” said Ndlovu-Sibanda.
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