Flynote

S V MAPHOSA 1989 (3) ZLR 306 (S)

Headnote

Section 167(g) of the Customs and Excise Act [Chapter 177] penalises any person who fraudulently claims a rebate of customs duty to which he is not entitled. The use of the word "fraudulently" puts the offence into the "positive proof" group of offences, where the onus is on the State to prove not only that the accused committed the act constituting the offence but also his guilty state of mind when he did so. No inference of mens rea is drawn merely from the fact that he committed the prohibited act; the State must prove positively that he committed it with intent to defraud the fiscus of the duty payable on the goods he is importing. This aspect may be proved by inference from the facts. Where the accused declares the goods to the Customs Officer but is not told either by the customs officer or on the customs declaration form that he may not resell the goods without payment of duty, he cannot be held to have made a fraudulent claim that the goods are not for resale.