S v NYOKA 1987 (2) ZLR 202 (S)

Flynote

Criminal law — statutory offences — Customs and Excise Act [Chapter 177] — s 156(1)(a) — failure to declare goods to a customs officer D — "officer" — meaning — includes customs cadet carrying out duties of customs officer — maxims — omnia praesumuntur rite esse acta — application of.

Criminal procedure (sentence) — matters affecting — failure to declare goods to customs officer — attempt to bribe officer — whether can betaken into account.

Headnote

The definition of "officer" in s 2 of the Customs and Excise Act [Chapter 177] covers all persons employed in the Customs Department, it being left to the Controller of Customs to decide administratively which officers are to perform the duties and exercise the powers set out in Part F 1 of the Act. The appellant had been convicted of failing to declare foreign currency, in the sum of R21 400, on arrival back in Zimbabwe from South Africa, having been questioned by a customs cadet in terms of s 156(1)(a) of the Act. When the cadet found the currency, the appellant offered him and his immediate superior some of the money.

Held, that although the person who questioned the appellant was still a customs cadet at the time, he had been appointed to duty as, and was performing the duties of, a customs officer and was accordingly an "officer" for the purposes of s 156(1)(a) of the Act.

Held, further, that the fact that a person acts in a public office is prima facie evidence A of the validity of his appointment, and the appellant had failed to discharge the onus of rebutting the presumption of regularity relating to the cadet's appointment.

Held, further, that it would have been improper for the magistrate to take into account for sentence the fact that the appellant attempted to bribe the customs officers. That conduct disclosed a distinct and more serious offence for which the appellant might still be prosecuted.