MOYO v MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE N.O and Others (367 of 2025) [2025] ZWHHC 367 (25 June 2025)

4 HH 367-25 HC 2419/25 NORMAN MOYO v ersus MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE N.O and COMMISSIONER-GENERAL OF POLICE and OFFICER IN CHARGE N.O-VEHICLE THEFT SQUAD and DETECTIVE ASSISTANT INSPECTOR MANDLA MOYO-FORCE NUMBER H IGH COURT OF ZIMBABWE **M UCHAWA J** H ARARE; 16 & 25 June 2025 **Urgent Court Application** M r. _Z. Bofu_ for the Applicant Mr. _F. Chimunoko_ for the Respondent MUCHAWA J: This is an urgent court application in which the following order is sought: “**IT IS HEREBY ORDERED THAT:** 1. Application be and is hereby granted. 2. The Respondents are hereby ordered to release the Applicant’s motor vehicle namely, a Toyota Hilux with Registration Number AGP3852. 3. In the event that second, third and fourth Respondent fail to comply with the terms of para (2) above, the Sheriff or his lawful deputy be and is hereby ordered and directed to take possession of the motor vehicle aforesaid and hand it over to the applicant or his legal practitioners. 4. Costs of this application shall be borne by first, second, third and fourth respondents jointly and severally, the one paying the other to be absolved on a higher scale as between legal practitioner and own client.” _**FACTUAL BACKGROUND**_ The background of the matter is that sometime on 28 January 2025, the applicant bought a motor vehicle namely a Toyota Hilux Double Cab Registration Number AGP3852, Engine Number IGD0816375, Chassis Number AHTGA3DD800979148 from one Given Deon Makazha. On 8 February 2025, the police officers stationed under the command of the third respondent approached the applicant’s workplace and informed him that the vehicle was suspected to have been stolen from Botswana. The motor vehicle was then seized based on the suspicion that it was stolen property. The applicant was then issued with a notification of seizure ZRP Form 390 Serial Number 000189. On 4 March 2025, the applicant’s legal practitioners wrote to the third respondent seeking the release of the motor vehicle on the basis that it appeared from the circumstances that the vehicle had been capriciously seized. The letter was responded to by the third respondent on 7 March 2025. On 24 March 2025, the applicant filed an application to this court under case number HCH 1361/25 for the release of the motor vehicle from the third respondent. Following a discussion between the applicant’s legal practitioners and those of the second and third respondents, the vehicle was released on 9 April 2025 to the applicant. On 8 May 2025, the applicant’s legal practitioners withdrew the application for the release of the motor vehicle. On 21 May, the fourth respondent and his team seized the motor vehicle. Following the seizure of the motor vehicle, the applicant was telephoned by the fourth respondent who informed him that the vehicle needed to be identified by a complainant from the Republic of Botswana and that it would be repatriated if the identification came out positive. The third respondent in their opposing affidavit stated that on 30 November 2024, a Botswana national by the name Otsogile Lekhutile agreed with two Zimbabweans Dion Makuzha and Tafadzwa Zibogowa to courier three motor vehicles for viewing by a potential buyer in Zimbabwe. The agreement was that after the potential buyer expressed interest, the motor vehicles were supposed to be returned to Botswana to have them properly exported to Zimbabwe. Subsequently, the two persons did not return the vehicles as per the agreement and after a while, the Botswana national received credible information to the effect that the motor vehicles were sold in Zimbabwe. On 6 May 2025, the Vehicle Theft Squad was notified of the visit to Zimbabwe by the Botswana Police Service Repatriation of recovered Botswana vehicles. _**SUBMISSIONS BEFORE THIS COURT**_ M r _Bofu_ submitted that the matter was premised on two issues that the seizure was done where there was no reasonable suspicion of a crime being committed and that the seizure was done without a warrant. He went on to submit that the vehicle was cleared when it was registered in Zimbabwe, however, nothing was proffered to prove the same. Mr _Bofu_ also went on to dispute the indemnity form filed of record highlighting that the consent was not given voluntarily given the fact that it was given before the Vehicle Theft Squad and seizure was done through a crack team. Mr _Bofu_ further submitted that the complaint lodged by the Botswana national was unduly delayed, implying that the delay undermines the credibility or legitimacy of the claim. However, a review of the record clearly demonstrates otherwise. The documentation reflects that the complaint was formally made on 30 November 2024, well before the subsequent sale of the motor vehicle, which took place on 28 January 2025. _Per contra,_ Mr _Chimunoko_ submitted that the report made on 30 November 2024 in relation to the theft of vehicles founded a reasonable suspicion that the vehicle was stolen. He went on to submit that s 49 of the CPEA allows the Police to seize property suspected of being stolen, including even where such crime is committed outside the country. This request had come from Botswana authorities through Interpol. It was also his contention that Zimbabwe is actively engaged in a serious effort to combat criminal activities, with cross border motor vehicle theft being one of the targeted offences. He therefore argued that the seizure of the vehicle was necessary for the purposes of investigation to enable positive identification by the Botswana national and police. This had since happened when they visited between 20 and 23 May 2025. _**ISSUES FOR DETERMINATION**_ 1. Whether or not there was a consent. 2. W hether or not the seizure is lawful _**APPLICATION OF THE LAW TO THE FACTS**_ 1. __Whether or not there was consent__. The applicant executed an indemnity agreement in which he unequivocally undertook to make the motor vehicle available to the respondents at any time upon request for the purpose of further investigations. This undertaking served as a formal assurance to the respondents, providing them with a legal safeguard during their inquiry. Having voluntarily accepted and signed the indemnity form; the applicant is now estopped from disputing its validity or attempting to withdraw from its terms. In law, a party cannot approbate and reprobate, that is, they cannot accept the benefits of a document and later seek to challenge its enforceability when it no longer serves their interests. Accordingly, the applicant is bound by the terms of the indemnity form to which he willingly affixed his signature when he sought the release of the motor vehicle the first time around. He undertook to handover the vehicle upon demand. He cannot resile from that undertaking. In the case of _Fastgrip Investments (Pvt) Ltd_ v _Klipspringer_ , HB 286/17 it was stated that: “It is a cardinal principle of our law of contract that contracts entered into by parties out of their free will are sacrosanct. ...The doctrine of sanctity of contract stipulates that men and women of full legal capacity and competent understanding are at liberty to contract with one another. When they have so contracted freely and voluntarily, their contracts are held sacred and must be enforced by courts of law who shall not lightly interfere with that freedom of contract. As a matter of public policy, courts of law not only do not interfere with the freedom of the parties to contract as they please as long as the contracts are lawful, they also do not make contracts for the parties but only enforce and give effect to what the parties have agreed to.” The case _of Nyika_ v _Moyo_ HB 145-10 explains in detail what the _caveat subscriptor_ rule entails. It is stated that: “The general rule, sometimes known as the _caveat subscriptor_ rule is…. that a party to a contract is bound by his signature whether or not he has read and understood the contract. …and this will be so even if he has signed in blank… or it is obvious to the other party that he did not read the document.” Therefore, the applicant, of his own volition and without any evidence of duress, misrepresentation, or undue influence, executed the indemnity form, thereby binding himself to its terms. Having willingly assumed the obligation to make the vehicle available for further investigations, he cannot now seek to repudiate or contest the validity of the document merely because the circumstances have shifted and the burden of performance now rests upon him. In law, a party is not permitted to approbate and reprobate, that is, to accept and rely on a document or agreement when it is to their advantage and subsequently seek to avoid its obligations when it becomes onerous. The principle of _pacta sunt servanda_ (agreements must be kept) underscores the enforceability of voluntary undertakings. Accordingly, the applicant remains bound by the legal consequences of the indemnity form which he executed with full knowledge of its implications. 2. _Whether or not the seizure is lawful_ It is submitted by the applicant that the seizure which the respondents want to effect is unlawful and it will deprive him of his constitutional right to property. The respondents submitted that the seizure is lawful as there are current investigations in relation to the theft of the motor vehicle and that the applicant consented to the effect that he would provide the motor vehicle whenever requested. In accordance with the Criminal Procedure and Evidence Act [_Chapter 9:07_], law enforcement officers are vested with the authority to seize property under specific conditions. This power is delineated in Part VI of the Act, which governs search warrants, seizure, detention, and disposal of property connected with offences. Section 49 of the Criminal Procedure and Evidence Act provide as follows; “(1) The State may, in accordance this Part, seize any article— (a) which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or (b) which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or (c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.” I n _State_ v _Chiwondo_ 1999 (1) ZLR 407 (H) at page 414-15 Chatikobo J had this to say in such a case- “ It would be absurd to ask an offender in plea proceedings if he admits that there was a reasonable suspicion that the goods found in his possession had been stolen. It is not the accused who suspects himself. The suspicion is formed by a third person, usually a police officer. It is such person who harbours the suspicion. He it is who assesses the circumstances under which he finds the accused in order to determine if the suspicion harboured by him is reasonable.” It is not in dispute that the motor vehicle in question is suspected to have been stolen from Botswana and that ongoing investigations are being conducted in this regard. This circumstance clearly satisfies the legal requirement that there must exist a reasonable suspicion justifying the seizure of the vehicle. T he applicant argues that the seizure which was done by the respondents was not lawful as it was done without a warrant. The respondents argue that the seizure was done by consent of the applicant and that they are assisting the Botswana police to investigate an offence allegedly committed in their jurisdiction. However, the seizure should be done in terms of the law. In this case the seizure was done in terms of s 51 of the Criminal Procedure and Evidence Act. S ection 51 of the Criminal Procedure and evidence Act provides that, “ (1) A police officer may, without warrant, search any person or container or premises for the purposes of seizing any article referred to in s 49 and additionally, or alternatively, seize any such article— 1. _if the person concerned consents to the search for and additionally, or alternatively, the seizure of the article in question or if a person who may consent to the search of the container or premises consents to such search and additionally, or alternatively, the seizure of the article in question; or_ 2. i f he on reasonable grounds believes that— (i) a warrant would be issued to him in terms of para (a) of subs (1) of s 50 if he applied for one; and (ii _)_ the delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as the case may.” There is a form of indemnity attached by the respondents which shows that the vehicle was released to Norman Moyo with condition. It is stated in the indemnity form by the applicant that, 1. “I shall not sell or dispose of the motor vehicle and neither shall i give it for use by other persons without the explicit consent of the police. 2. I shall keep it in its present condition and I will not make any changes unless to keep it in good condition. 3. _I have understood the above terms and shall abide by them and avail the motor vehicle and its documents to CID VTS Harare when required for further investigations”_. (my emphasis) It is perplexing that the applicant now raises objections to the seizure of the vehicle, given that he previously consented to make the vehicle available upon request for further investigations. In my view, by executing the indemnity form, the applicant effectively consented to the seizure of the vehicle. Section 49(2) of the Criminal Procedure and Evidence Act provides that, “A police officer who seizes and removes any article in accordance with this Part, whether under or without a warrant, must make a full receipt in duplicate for the article so seized and removed, and—(a) give a copy of it to the owner or possessor thereof (unless the owner or possessor of the article is arrested in connection with an offence involving the article, in which case paragraphs (b), (c) and (d) following apply); or…” It should be noted in this case that the above provision was complied with as a seizure confirmation receipt was also provided which the applicant refused to sign. I n _Chigwada_ v _Commissioner-General, ZRP & Ors_ HH-69-11, the applicants were the registered owners of a particular vehicle. The vehicle was the subject of an investigation into an alleged fraud committed by the seller on two other parties before. It was seized by the police a s exhibit evidence in terms of s 49 CPEA and placed in police custody. At the time of the seizure, the vehicle was at a garage undergoing repairs. The applicants sought the release of the vehicle and contended that there was no legal basis for the police to interfere with their possession and ownership of the vehicle. The court stated that, ” Applicants have therefore failed to prove that the police acted outside the law when they took the vehicle away as an exhibit. They have also failed to prove that the vehicle was not required as an exhibit. They further failed to meet the requirements for an interim order on an urgent basis. Their application cannot therefore succeed. It is accordingly ordered that the application be and is dismissed with costs _.”_ The applicant in this case also faces the same predicament as he has also failed to prove that the police acted outside their jurisdiction. The respondents consent to the fact that they did not follow the dictates of the law when they first seized the motor vehicle and they corrected that through releasing the same by an indemnity form and the second seizure was done through the consent of the applicant. T he applicant also avers a concern that the respondents may facilitate the repatriation of the motor vehicle to Botswana. However, such apprehension is unfounded and can be dispelled by reference to the applicable legal framework. In terms of s 63 of the Criminal Procedure and Evidence Act [_Chapter 9:07_], any item that is the subject of a criminal investigation in a foreign jurisdiction, including Zimbabwe, may only be removed from the jurisdiction of Zimbabwe pursuant to a court order. The respondents submitted that an application must be brought before a magistrate within whose jurisdiction the article in question was seized and that in such proceedings, the applicant shall be cited as an interested party and afforded the opportunity to participate fully. The seizure was lawful, and the applicant has recourse to protection through s 63 of the Criminal Procedure and Evidence Act. _**D isposition**_ In the circumstances, the urgent court application has no merit and is dismissed. **Muchawa J:………………………………………….** _Tabana and Marwa,_ applicant’s legal practitioners _._ _Attorney General’s Office,_ respondent’s legal practitioners