Duty (CUSTOMS AND EXCISE) https://old.zimlii.org/taxonomy/term/10308/all en ZIMRA v Waringa Investments (Private) Limited (SC 19/19, Civil Appeal No. SC 301/17) [2019] ZWSC 19 (22 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/19-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>                    (19)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>ZIMBABWE      REVENUE     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>WARINGA     INVESTMENTS     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, MAKARAU JA &amp; BHUNU JA</strong></p> <p><strong>HARARE, MARCH 1, 2018 &amp; FEBRUARY 22, 2019</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>T. Magwaliba,</em> for the appellant</p> <p> </p> <p><em>Majachani,</em> for the respondent</p> <p> </p> <p> </p> <p><strong>BHUNU JA:       </strong>This is an appeal against the judgment of the Fiscal Appeal Court setting aside the classification and revaluation by the appellant’s Commissioner of Customs and Excise of a 2006 white box van Iveco 40C14 motor vehicle. The respondent imported the motor vehicle in question through the Plumtree Border Post on 23 August 2013. It’s clearing agent declared the motor vehicle as a “2006 IVECO DAILY BOX VAN MODIFIED AS AN AMBULANCE”. That much is not in dispute. What is in dispute is the proper classification of the motor vehicle in question for the purposes of calculating customs duty payable to the fiscus.</p> <p> </p> <p>The customs officer initially classified the motor vehicle as a minibus falling under Customs Tariff heading 87.02 and revalued it upwards in terms of s 111 of the Customs and Excise Act [<em>Chapter 23:02</em>]. Dissatisfied with that assessment and revaluation, the respondent appealed to the Regional Manager who held that the customs officer’s classification was wrong.  He accordingly reclassified it as a goods carrying motor vehicle under tariff heading 87.04 of the Customs and Excise (Tariff) Notice 2012 Statutory Instrument 112 of 2012. The respondent again disputed that classification and revaluation on the basis that what it had imported was an ambulance passenger carrying motor vehicle which should have been classified under tariff heading 87.03 of the above Statutory Instrument. It then appealed to the Commissioner without success.</p> <p> </p> <p>Aggrieved by the dismissal of its appeal by the Commissioner, the respondent successfully appealed to the Fiscal Appeal Court which on 10 November 2015 issued the following order:</p> <p>“I am satisfied that The Commissioner wrongly classified the motor vehicle under heading 87.04. He should have classified it under heading 87.03. Accordingly it is ordered that:</p> <p> </p> <ol> <li>The appeal is allowed.</li> <li>The classification imposed by the Commissioner of customs and Excise is set aside.</li> </ol> <p> </p> <ol> <li>The matter is remitted back (sic) to the Commissioner for the reclassification of the motor vehicle in accordance with the terms of this judgment.</li> <li>Each party shall bear its own costs.”</li> </ol> <p> </p> <p> </p> <p>                               </p> <p>The crisp issue for determination is whether the court <em>a quo</em> correctly found that the motor vehicle in issue is an ambulance which is a passenger carrying motor vehicle falling under tariff heading 87.03 and not a goods carrying motor vehicle falling under tariff heading 87.04.</p> <p> </p> <p>The classification of goods for purposes of duty is governed by s 87 of the Customs and Excise Act [<em>Chapter 23:02</em>] which provides as follows:</p> <p>“<strong>87 Classification of goods for customs purposes</strong></p> <p> </p> <ol> <li>For the purpose of determining the customs duty payable in respect of any goods that are imported, the Commissioner or an officer shall classify such goods into the appropriate tariff headings, subheadings or codes in accordance with any rules set out in the customs tariff, paying due regard to—</li> </ol> <p> </p> <ul> <li>the explanatory notes to the Harmonised Commodity Description and Coding System, issued from time to time by the World Customs Organisation in Brussels; and</li> </ul> <p> </p> <ul> <li>decisions of the Harmonised Commodity Description and Coding System Committee. [Subsection amended by Act 29 of 1998 and by Act 17 of 1999]</li> </ul> <p> </p> <ol> <li>The Commissioner shall vary or set aside a classification of goods made in terms of subsection (1) if he is satisfied, whether on appeal by the importer of the goods or otherwise, that the classification was incorrect.</li> </ol> <p> </p> <ol> <li>Any classification of goods made in terms of this section shall be binding on the importer of the goods, subject to an appeal—</li> </ol> <p> </p> <ul> <li>to the Commissioner, where the classification was made by an officer; or</li> </ul> <p> </p> <ul> <li>to the Fiscal Appeal Court in terms of the Fiscal Appeal Court Act [<em>Chapter 23:05</em>], where the classification was made, varied or confirmed by the Commissioner”.</li> </ul> <p> </p> <p> </p> <p>It is clear that The Commissioner and his subordinates are strictly bound by the provisions of s 87 and the relevant rules. For that reason, they have no discretion outside the section as read with the prescribed rules. It therefore follows, that the commissioner’s classification of goods must fall squarely within the dictates of s 87 and the rules, doing otherwise would be illegal.</p> <p> </p> <p>Heading 8703 provides for the description of motor vehicles falling under that heading as follows:</p> <p>“<strong>87.03 –</strong> <strong>Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 87.02) including station wagons and racing cars </strong></p> <p><strong>            ---“</strong></p> <p> </p> <p> </p> <p>The heading also includes:</p> <p> </p> <ol> <li><strong>“Motor cars (</strong>e.g., limousines, taxis, sports cars and racing cars).</li> <li> </li> <li><strong>Specialised transport vehicles such as ambulances, prison vans and hearses.</strong></li> <li> </li> </ol> <p>            (6)</p> <p>              ---“</p> <p>The classification of certain motor vehicles in this heading is determined by certain features which indicate that the vehicles are principally designed for the transport of persons rather than the transport of goods <strong>(heading 87.04). </strong>These features are especially helpful in determining the classification of motor vehicles which generally have a gross vehicle weight rating of less than 5 tonnes and which have a single enclosed interior space comprising an area for the driver and passengers and another area that may be used for the transport of both persons and goods. Included in this category of motor vehicles are those commonly known as “multiple purpose” vehicles (e.g. van-type vehicles, sport utility vehicles, certain pick-up vehicles. The following features are indicative of the design characteristics generally applicable to the vehicles which fall in this heading:</p> <ul> <li>Presence of windows along the two side panels;</li> <li>Presence of sliding, swing-out or lift-up door or</li> <li>doors, with windows on the side panel or in the</li> <li> </li> </ul> <p> </p> <ul> <li>Absence of a permanent panel or barrier between the</li> </ul> <p>area for the driver and front passengers and the</p> <p>rear area that may be used for the transport of</p> <p>both persons and goods.</p> <p> </p> <ul> <li>Presence of comfort features and interior finish and</li> </ul> <p>fittings throughout the vehicle interior that are</p> <p>associated with the passenger areas of vehicles</p> <p>(e.g., floor carpeting, ventilation, interior</p> <p>lighting, ashtrays)”.</p> <p>It was the respondent’s case that it imported the vehicle in question as a decommissioned ambulance intact, as it was principally designed to convey the sick to and from hospital. It was also used to ferry disabled persons and critically ill patients on life support. In proof whereof the respondent relied on the commercial invoice filed of record.</p> <p> </p> <p>At page 50 of the record of proceedings the importer of the motor vehicle Jetset Freight Services P/L gave a vivid description of the motor vehicle in graphic terms depicting it as an ambulance as follows:</p> <p><strong>“2006 IVECO DAILY 40V14 BOX VAN MODIFIED INTO AN AMBULANC</strong>E</p> <p> </p> <p>Vehicle is now fitted with a compressor to purify oxygen and fitted with pipes to distribute oxygen through to the patients on board. It has two outlets (valves) which pass through to the oxygen masks and to the patients.</p> <ul> <li>Vehicle has 6 seats for patients and the driver’s seat is the seventh. It also has 2 pillars for holding a stretcher when transporting bed ridden patients.</li> </ul> <p> </p> <ul> <li>Vehicle has drawers which serve as vomit bags, glove (sic) bags and disinfectant bags.</li> </ul> <p> </p> <ul> <li>Vehicle has a rack above the driver’s head which holds the stretcher.</li> </ul> <p> </p> <ul> <li>Vehicle is also fitted with machine to lift wheel chairs and stretchers for the bed ridden.</li> </ul> <p> </p> <ul> <li>Vehicle is fitted with glass windows on the sides and on the rear.</li> </ul> <p> </p> <ul> <li>The weight of the vehicle is given as 4 800kgs.”</li> </ul> <p> </p> <p>The above description  coupled  with pictures of the disputed motor vehicle chief among them is annexure ‘F’ at page 37 of the record of proceedings depicting the interior of the motor vehicle adorned with the convenient features and passenger seats installed for the comfort of passengers.</p> <p> </p> <p>Undoubtedly the description given by the importer and backed up by pictures of the motor vehicle fits that of an ambulance and the prescribed description of motor vehicles falling under heading 87.03.</p> <p> </p> <p>On the evidence placed before the court <em>a quo</em>, it is not in dispute that the motor vehicle in question was manufactured as a box van but was later modified into an ambulance. At the time of assessment it had been modified into an ambulance and it still bore the modified principal design that made it fit the description of an ambulance.</p> <p> </p> <p>The appellant’s contention is that the respondent did not import an ambulance because its principal design at the time of manufacture was not that of an ambulance but a box van suitable for the carriage of goods falling under tariff code 87.04. . In developing its argument, the appellant forcefully submitted in its heads of argument that,</p> <p>“<em>having found that the motor vehicle was manufactured as a box van, the inescapable conclusion was that it was principally designed for the carriage of goods. The subsequent modification did not matter in the principle design of the motor vehicle”</em></p> <p> </p> <p> </p> <p>The appellant agued further, that because heading 87.04 provides that it applies to all types of vans, the 2006 white box van Iveco 40C14 motor vehicle must be classified under tariff code 87.04.</p> <p> </p> <p>On the other hand the respondent’s contention is that it imported an ambulance because at the time of presentation and assessment by the customs officials it had been modified into an ambulance and it still bore the features of an ambulance which is a passenger carrying motor vehicle falling under tariff code 87.03.</p> <p> </p> <p>The question to be answered is what did the respondent import on the 23 August 2013? It is common cause that the respondent imported a motor vehicle manufactured as a box van suitable for the conveyance of goods that had been subsequently converted into an ambulance for the conveyance of sick people and the disabled. The respondent bought the motor vehicle long after it had ceased to be a box van and was now an ambulance.</p> <p> </p> <p>In the absence of fraud, common sense dictates that the respondent could not possibly have imported a box van because as at 23 August 2013 the motor vehicle had ceased to be a box van and was now an ambulance. A perusal of the record of proceedings shows that apart from mere speculation and conjecture, the appellant came nowhere near establishing that the respondent had fraudulently converted a box van into an ambulance for purposes of avoiding duty. For the stronger reason, the appellant was unable to rebut the respondent’s assertion that the motor vehicle had been used as an ambulance in its country of origin and was imported as such, bearing the features of an ambulance such as oxygen  and stretcher handling facilities.</p> <p> </p> <p>The appellant’s interpretation of the law and classification of the motor vehicle in question is problematic in that it fails to recognise fundamental change. One cannot continue to call a hen an egg simply because at one time it was an egg, nor can a man be called a baby simply because he was born as a baby. Likewise the Commissioner cannot continue to call a motor vehicle a box van after it has been converted into an ambulance.</p> <p> </p> <p>The <em>contra fiscum </em>rule prescribes that the meaning that benefits the individual against the State Treasury should be adopted. See <em>Sekrtaris Van Binnelandse Inkomste v Raubenheiner</em> 1969 (4) SA 314 (A). Likewise, in the case of <em>S v Galguits Garage (Pty) Ltd</em> 1969 (2) 459 (A), the court held that in cases of doubt, the most favourable interpretation to the tax payer should be adopted. The mere fact that the Customs Officer, the Regional Manager, the Commissioner and the respondent could not agree as to which category the imported vehicle fell casts doubt on the customs officials’ classification of the motor vehicle. The court <em>a quo</em> was therefore undoubtedly correct in interpreting the law in favour of the respondent.</p> <p> </p> <p>In conclusion, I am constrained to remark that in cases of doubt the main function of customs officials is not to make extra money for the State but to facilitate trade, hence doubts must be resolved in favour of the tax payer.</p> <p> </p> <p>For the foregoing reasons, the learned judge in the court <em>a quo</em>’s finding that the motor vehicle presented at the Plumtree border post on 23 August 2013 by the respondent is an ambulance falling under tariff code 87.03 is beyond reproach. That being the case, the appeal can only fail.</p> <p> </p> <p>It is accordingly ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GWAUNZA DCJ</strong>:                                  I agree</p> <p> </p> <p><strong>MAKARAU JA</strong>:                        I agree</p> <p> </p> <p><em>Advocates Chambers</em>, appellant’s legal practitioners</p> <p> </p> <p><em>Mberi Chamwamurombe Legal Practice,</em> respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/19/2019-zwsc-19.doc" type="application/msword; length=66048">2019-zwsc-19.doc</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/customs-and-excise">CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duty-customs-and-excise">Duty (CUSTOMS AND EXCISE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/commissioner-taxes">Commissioner of Taxes</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/customs-duty">Customs duty</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1955/16">Customs and Excise Act [Chapter 23:02]</a></div></div></div> Fri, 14 Jun 2019 07:02:33 +0000 admin 9321 at https://old.zimlii.org Main Road Motors v Zimra & Others (HMA 01-18, Case Nos HC 137 - 139/17) [2018] ZWMSVHC 1 (18 January 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MAIN ROAD MOTORS</p> <p>versus</p> <p>ZIMBABWE REVENUE AUTHORITY</p> <p>and</p> <p>MINISTER OF FINANCE &amp; ECONOMIC DEVELOPMENT</p> <p>and</p> <p>ATTORNEY GENERAL                                                                                          Case 1</p> <p> </p> <p> </p> <p>SYLVIA CHORUWA</p> <p>versus</p> <p>ZIMBABWE REVENUE AUTHORITY                                                                  Case 2</p> <p> </p> <p> </p> <p>PATRICK MUGUTI</p> <p>versus</p> <p>ZIMBABWE REVENUE AUTHORITY                                                                  Case 3</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>MASVINGO, 26 &amp; 31 October 2017 &amp; 18 January 2018</p> <p>                                                                </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p>Adv <em>B. Hungwe</em>, with him, Mr <em>L. Mudisi</em>, for the applicants;</p> <p>Mr <em>I. Muzenda</em>, for the first and second respondents in Case 1; and for the respondent in Cases 2 and 3;</p> <p>No appearance for the third respondent in Case 1</p> <p> </p> <p> </p> <p>MAFUSIRE J</p> <p>1          These were three opposed applications heard as one case. The globular relief sought was just about the same. Some facts differed here and there. Counsel agreed this was not in any material respects. They therefore agreed it would be practical for the cases to be combined.</p> <p> </p> <p>2          The proposed relief was poorly crafted. Without reading the full applications into them, the draft orders by themselves were virtually meaningless. For expedience, I have simply picked the quintessence of the remedy sought by the applicants from their affidavits, which themselves were prolix, argumentative and could easily pass off as heads of argument.</p> <p> </p> <p>3          Apart from costs of suit, the essence of the main relief sought by the applicants was an order declaring as <em>ultra vires</em> the Constitution, s 192[1] of the Customs and Excise Act, <em>Cap 23:02</em> [“<strong><em>the Customs Act</em></strong>”].</p> <p> </p> <p>4          Ancillary relief included an order declaring as unlawful, the seizure, or attempted seizure, by the Zimbabwe Revenue Authority [“<strong><em>ZIMRA</em></strong>”], of certain second hand Toyota Fortuner motor vehicles imported by the applicants in November 2015; March 2016 and October 2016. The applicants also sought the immediate and unconditional return of such of the motor vehicles as might have been seized by ZIMRA; the nullification of ZIMRA’s call for extra duty, penalties and interest, and the reimbursement of such of the amounts as the applicants might have paid already.</p> <p> </p> <p>5          ZIMRA is the central collector of revenue for Government. It was established as such by the Revenue Authority Act, <em>Cap 23:11</em>.</p> <p> </p> <p>6          Except for some additional detail, or some not so consequential variation here and there, the factual background in all the three matters was largely identical, and in most material respects common cause. The brief facts, as summarised by myself were these. Through relatives based in that country the applicants bought the vehicles in South Africa and imported them to Zimbabwe. </p> <p> </p> <p>7          At the border, the applicants, through their customs clearing agents, declared certain values on the vehicles for the purposes of duty, as required by the Customs Act.</p> <p> </p> <p>8          Except for Case 1: <em>Main Road Motors v Zimbabwe Revenue Authority &amp; Ors</em> HC 139/17, the applicants say ZIMRA’s proper officers rejected the declared values and calculated their own, which were higher. A proper officer is the designated officer at a port of entry.</p> <p> </p> <p>9          In Case 1, the proper officer accepted the declared value. The amount of duty as calculated by him was duly paid. The vehicle was cleared and released to the applicant and it became its property. That was on 23 November 2015.</p> <p> </p> <p>10        In Case 2: <em>Sylvia Choruwa v Zimbabwe Revenue Authority</em> HC 138/17, Sylvia Choruwa [“<strong><em>Sylvia</em></strong>”], the applicant, says the value of her vehicle as declared by her agent was R469 000. That was picked from some tax invoice. The duty on such a value would have been US$17 000. But the proper officer raised the value. The duty on the raised value came to US$20 800. The higher amount of duty was paid. The vehicle was cleared. The agent delivered it to her. That was on 22 March 2016. She subsequently got the vehicle registered in her name.</p> <p> </p> <p>11        In Case 3: <em>Patrick Muguti v Zimbabwe Revenue Authority</em> HC 137/17, the declared value was R200 000. The applicant [“<strong><em>Patrick</em></strong>”] says this was extracted from a vehicle purchase document. The proper officer rejected it. He raised it to R240 000-00. The duty on the raised value was US$10 180. It was duly paid. The vehicle was cleared. The agent delivered it to Patrick. That was on 31 October 2016. Patrick said from then on the vehicle became his personal property.</p> <p> </p> <p>12        Subsequently, in November 2016, ZIMRA impounded, or threatened to impound and embargo the vehicles unless and until additional duty, as re-assessed by its officers, together with penalties for late payments and interest, were all paid in full.</p> <p> </p> <p>13        For Main Road Motors, this development was coming a year after the vehicle had been cleared and released to it. For Sylvia this was eight months later. For Patrick this was after six days.</p> <p> </p> <p>14        ZIMRA said in post clearance audits, its officers had discovered several anomalies in the declarations of value by the applicants, or their agents, for customs clearance purposes. Basically it said the applicants had undervalued their vehicles. They had given false information concerning the vehicles’ models and mileage, basically making the cars appear much older. For that reason, ZIMRA had recalculated the values of the vehicles using guidelines in the Customs Act and had re-assessed the duty. It had gone on to raise penalties and interest on the new amounts.</p> <p> </p> <p>16        ZIMRA says post clearance audits are authorised by s 223A of the Customs Act. In subsection [4] ZIMRA is empowered to undertake a post-clearance audit of goods cleared at entry in order to satisfy itself of the accuracy of any declarations made on them. In terms of subsection [1], a declaration made for the purposes of clearance of goods at ports of entry which contains any omission, inconsistency, error or misrepresentation shall be invalid whether or not such declaration has been accepted by an officer. Subsection [3] says that any goods not properly declared shall be deemed to be uncustomed goods. Uncustomed goods, among other things, are dutiable goods on which the full amount of duty has not been paid.   </p> <p> </p> <p>17        In terms of s 192 of the same Act, ZIMRA is empowered to seize or embargo goods in respect of which the correct amount of duty has not been paid.</p> <p> </p> <p>18        ZIMRA, through its deponent, one William Gadzikwa [“<strong><em>William</em></strong>”], at the relevant time the Acting Regional Manager, Customs and Excise Region 3, and in equally expansive and argumentative affidavits, explained that owing to the large number of goods that pass through the borders requiring customs clearances, ZIMRA has an enormous task to check, scrutinise, assess and collect duty. Mistakes are sometimes made. It was in appreciation of the difficult circumstances that its officers operate under that the Legislature, in s 223A and others, clothed ZIMRA with powers to conduct post clearance audits and to recover any underpayments of duty.</p> <p> </p> <p>19        The applicants did not accept ZIMRA’s demands. In February 2017 Main Road Motors and Sylvia filed an urgent chamber application to bar ZIMRA <em>pendente lite</em> from impounding and embargoing their vehicles. The <em>lite </em>said to be pending were these applications.</p> <p> </p> <p>20        The urgent chamber applications failed on the points <em>in limine</em>. Under judgment HMA 17-17 I dismissed them on three grounds, namely that the proper respondent had not been cited; that the certificate of urgency was incurably; and that the matters were not urgent, in the sense that the applicants had themselves not treated them as such. The details appear in the judgment.</p> <p> </p> <p>21        <em>In casu</em>, the applicants do not accept ZIMRA’s argument about post clearance audits. They say that once the vehicles had been customs-cleared and released to them, they had become their personal properties. Any attempt to seize and embargo them as ZIMRA had done, or had purported to do, was unlawful, because such conduct violated their inalienable right to property as enshrined in s 71 of the Constitution.</p> <p> </p> <p>22        Section 71[3] of the Constitutions says:</p> <p> </p> <p>“Subject to this section and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied – ”</p> <p> </p> <p>23        ZIMRA justified its actions on s 192 [1] of the Customs Act. William stressed that the power to seize and embargo goods in post-clearance audits can be exercised at whatever place, and from whomsoever those goods are found, within a period of six years from the date of importation.</p> <p> </p> <p>24        In full, s 192[1] of the Customs Act reads:</p> <p> </p> <p>“<strong>192 Embargo on goods which have passed out of customs control</strong></p> <p> </p> <p>[1]        If at any time an officer has reason to believe that the correct duty has not been paid on any goods which have passed out of customs control, or that there has been or may be in respect of those goods a contravention of any of the provisions of this Act or any other law relating to the importation of goods, he may, <strong>within a period of six years from the date of importation</strong>, removal from bond or delivery from factory in the case of excisable goods, seize or place an embargo on those goods, wheresoever or in possession of whomsoever found, and until the embargo has been withdrawn no person shall remove such goods from the place indicated by the officer or in any deal therewith, except with the permission of the officer” [<em>emphasis by Counsel for both parties</em>].</p> <p> </p> <p>25        The applicants say s 192[1] is <em>ultra vires</em> s 68[1] of the Constitution. Section 68[1] of the Constitution says:</p> <p> </p> <p>            “Every person has a right to administrative conduct that is lawful, <strong>prompt</strong>, <strong>efficient</strong>, <strong>reasonable</strong>, <strong>proportionate</strong>, impartial and both substantively and procedural fair” [<em>emphasis by applicants’ Counsel</em>].</p> <p> </p> <p>26        The applicants argued that seizing and embargoing goods one year [in the case of Main Road Motors] and eight months [in the case of Sylvia] after customs clearances, was the antithesis of promptness, efficiency and reasonableness.</p> <p> </p> <p>27        The applicants also argued that once a ZIMRA officer has assessed the duty on imported goods; has received the duty paid by the importer, and has cleared the goods, he becomes <em>functus officio</em>, and cannot go back to his decision to review it again.</p> <p> </p> <p>28        ZIMRA responded in full to the merits of the applications, but also raised several technical objections.</p> <p> </p> <p>29        In respect of Cases 1 and 2, ZIMRA’s first technical objection was that the applicants had approached the court with ‘dirty hands’ and were therefore not entitled to be heard because they had violated the fiscal principle that says pay-now-and-argue- later, which is enshrined in s 119 of the Customs Act. This section reads:</p> <p> </p> <p>“<strong>119 Appeals against valuation of goods</strong></p> <p> </p> <p>[1]        Any person who is aggrieved by any determination of the Commissioner in terms of this Part may, subject to section <em>one hundred and ninety-six </em><strong>and after payment of the amount of any duty or tax demanded by the Commissioner in respect of the goods concerned</strong>, appeal to the High Court against such determination [<em>emphasis by respondent’s Counsel</em>].</p> <p> </p> <p>[2]        If on an appeal in terms of this section the High Court determines that a lesser amount was payable by way of duty or tax than the amount actually paid by the appellant in terms of subsection [1], the Commissioner shall refund the amount overpaid in accordance with section <em>one hundred and twenty-five</em>.”</p> <p> </p> <p>30        In respect of Case 1 in particular, William said despite Patrick’s claim to the contrary, Main Road Motors “… had not paid a dime …” of the top-up duty required. In respect of Case 2, he said despite being granted a special dispensation to pay in monthly instalments over six months, Sylvia had only made a single payment, which was not even a full instalment.</p> <p> </p> <p>31        ZIMRA’s second technical objection to Cases 1 and 2 was that the applications being for review, had become time-barred by virtue of Order 33 r 259 of the Rules of this Court. In terms of this Rule, an application for review shall be instituted within eight weeks of the termination of the action or proceeding in which the illegality complained of allegedly occurred.</p> <p> </p> <p>32        All the three applications were filed with this court on 22 May 2017. In respect of Cases 1 and 2, the date of the termination of the actions complained of was 28 November 2016. Thus, the applications were allegedly six months out of time. None of the applicants applied for condonation.</p> <p> </p> <p>33        ZIMRA’s first technical objection in respect of Case 3 was that the applicant was non-suited by reason of his failure to comply with the mandatory provision of s 196[1] of the Customs Act. This provision requires that sixty days’ notice be given before any civil proceedings are instituted for anything done, or omitted to be done by the Commissioner or an officer of ZIMRA.</p> <p> </p> <p>34        ZIMRA’s second technical objection in Case 3 was that the application had also become time barred by reason of the provisions of s 193[12], as read with s 196, of the Customs Act. Section 193[12] prescribes that any proceedings before this court for the recovery of seized goods must be instituted within three months of the date when the notice of seizure was issued, after which period no such proceedings may be instituted.</p> <p> </p> <p>35        William pointed out that Patrick’s vehicle was seized on 2 November 2016. His application having been filed on 22 May 2017 was three months out of time.</p> <p> </p> <p>36        The third technical objection by ZIMRA in respect of Case 3, particularly in relation to the remedy to have the seized vehicle released, and the reimbursement of the money charged as penalty and interest, was that this relief had since been overtaken by events in that after Patrick had paid the additional duty; the fine; the penalty and the storage charges, the vehicle had been released to him. As such, an order of court in this regard would amount to a <em>brutum fulmen</em>.</p> <p>37        At the hearing, Counsel agreed that the points <em>in limine</em>, or at least some of them, went to the root of the applications. As such, they further agreed that a determination be made on them before the merits could be considered. I agreed.</p> <p> </p> <p>38        The main thrust of Mr <em>Hungwe’s</em> argument, for the applicant, as I understood him, and in my own words, was that what was at stake in these three applications was the enforcement of a fundamental right and freedom as provided for in s 85 of the Constitution.</p> <p> </p> <p>39        Mr <em>Hungwe</em> further argued that the right to administrative justice and access to the courts, in terms of s 68 and s 69 of the Constitution, is a fundamental right that is enshrined in the Declaration of Rights under Chapter 4 of the Constitution, and that, as such, it should not be unnecessarily impeded by obstructive and restrictive legislation and rules of procedure.</p> <p> </p> <p>40        Section 85 of the Constitution says:</p> <p> </p> <p>“<strong>85      Enforcement of fundamental human rights and freedoms</strong></p> <p> </p> <p>[1]        Any of the following persons, namely—</p> <p> </p> <p>[<em>a</em>]        any person acting in their own interests;</p> <p> </p> <p>[<em>b</em>]        any person acting on behalf of another person who cannot act for themselves;</p> <p> </p> <p>[<em>c</em>]        any person acting as a member, or in the interests, of a group or class of persons;</p> <p> </p> <p>[<em>d</em>]        any person acting in the public interest;</p> <p> </p> <p>[<em>e</em>]        any association acting in the interests of its members;</p> <p> </p> <p>is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.</p> <p> </p> <p>[2]        The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection [1].</p> <p> </p> <p>[3]        The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection [1], and those rules must ensure that—</p> <p> </p> <p>[<em>a</em>]        the right to approach the court under subsection [1] is fully facilitated;</p> <p> </p> <p>[<em>b</em>]        formalities relating to the proceedings, including their commencement, are kept to a minimum;</p> <p> </p> <p>[<em>c</em>]        the court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities; and</p> <p> </p> <p>[d]        a person with particular expertise may, with the leave of the court, appear as a friend of the court.</p> <p> </p> <p>[4]        The absence of rules referred to in subsection [3] does not limit the right to commence proceedings under subsection [1] and to have the case heard and determined by a court.”</p> <p> </p> <p>41        Mr <em>Hungwe</em> argued that jurisprudence or principles developed or affirmed in case law pre-dating the Constitution [which only became effective in 2013] should defer to the Constitution in the event of a conflict. He said sub-section [2] of s 85 of the Constitution collapsed the ‘dirty hands’ principle as espoused in cases such as <em>Associated Newspapers of Zimbabwe [Private] Limited v The Minister of State for Information and Publicity in the President’s Office &amp; Ors</em>. In that case CHIDYAUSIKU CJ said:</p> <p> </p> <p>“This Court is a court of law, and as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.”</p> <p> </p> <p>42        For the respondents, Mr <em>Muzenda</em> [now MUZENDA J], also as I understood him, and in my own words, argued that applications are creatures of statutes and of the Rules of Court. The right of access to the courts is never an issue. But such right has to be exercised within certain statutory parameters. Where a statute, for example, prescribes certain procedures to be taken before someone exercises their right of access to court, or where the Rules of Court prescribe certain time frames within which such right of access may be exercised, there is nothing in the Constitution that says that such requirements are obstructive or an impediment to the exercise of the right.</p> <p> </p> <p>43        Drawing from the Constitutional Court case of <em>Zinyemba v Minister Lands &amp; Rural Settlement &amp; Anor</em> Mr <em>Muzenda</em> further argued that there being an Act of Parliament, namely the Administrative Justice Act, Cap <em>10:28</em>, to give effect to the rights enshrined in s 68[1] of the Constitution, as provided for in sub-section [3], s 85 of the Constitution takes a back seat. It was incompetent for the applicants to purport to found a cause of that section. The principle of avoidance dictates that remedies should be found in legislation before resorting to constitutional remedies. The principle of subsidiarity holds that norms of greater specificity should be relied on before resorting to norms of greater abstraction.    </p> <p> </p> <p>44        I note that to ZIMRA’s second objection in Cases 1 and 2, namely that the applications were out of time by reason of the provisions of r 259, there was practically no reply. This objection was first raised in the opposing affidavits. Neither Patrick, on behalf of Main Road Motors in Case 1, nor Sylvia in Case 2, filed any answering affidavits. None of them sought condonation. Only in the heads of argument, by their legal practitioners of record, was this reticent and ambivalent reference to the point:</p> <p> </p> <p>“<strong>A</strong>. <strong>Failure to Comply with Order 33 Rule 259 of the High Court Rules, 1971</strong></p> <p> </p> <p>The Applicant after the cause of action arose, he [<em>sic</em>] gave the mandatory Notice of Intention to sue, under the <strong>State Liabilities Act [Chapter 8:15]</strong>, which after the expiration of the sixty days, this Application for Review, contesting the constitutionality was launched.”</p> <p> </p> <p>45        Rule 259 says:</p> <p> </p> <p><strong>“259. Time within which proceedings to be instituted</strong></p> <p> </p> <p>Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred:</p> <p> </p> <p>Provided that the court may for good cause shown extend the time.”</p> <p> </p> <p>46        As early as their urgent chamber applications in February 2017, the applicants indicated that they would bring review applications. In their notices of intention to sue in terms of s 196 of the Customs Act, the applicants said they were bringing review applications. Their applications are clearly marked court application <strong><em>for review</em></strong>. So I have wondered how ZIMRA’s objection on the basis of r 259, which refers to review applications, led applicants’ lawyers to respond in respect of s 196 of the Customs Act, which refers to sixty days’ notice to sue. There is complete dissonance.</p> <p> </p> <p>47        In Case 3, I also note that nowhere does the applicant deal with ZIMRA’s objection relating to the three months’ prescription of s 193[12] of the Customs Act. This point seems to have been raised by the respondent for the first time in heads of argument. But nobody else dealt with it expressly at any time afterwards.</p> <p> </p> <p>48        As a result, it is my finding that ZIMRA’s objections in respect of the two types of prescription found in r 259 of the Rules of Court, and s 193[12] of the Customs Act, were not dealt with at all.</p> <p> </p> <p>49        Statutes of limitation are a common factor of legal life the world over. The law helps the vigilant, not the sluggard. The rationale for the existence of such limitations is expediency. It is logical and practical that civil suits be brought within certain time frames. In <em>Stambolie v Commissioner of Police</em> GUBBAY JA, as he then was, drawing from the American case of <em>Chase Securities Corporation v Donaldson</em> said:</p> <p> </p> <p>“Statutes of limitations find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defence after memories have faded, witnesses have died and disappeared and evidence has been lost.”</p> <p> </p> <p>50        I do not see how s 85 of the Constitution is relevant to ZIMRA’s objections. Even accepting the applicants’ argument that for ZIMRA to do post-clearance audits and to come back to the applicants for more duty, plus penalties and interest, one year, or eight months later, is a breach of their fundamental right to prompt and efficient administrative conduct, I do not see how r 259 and s 193[12] of the Customs Act can be said to be misaligned to s 85 of the Constitution. These provisions do not preclude or obstruct one’s access to the courts, except after the lapse of certain time frames. They prescribe no formalities.</p> <p> </p> <p>51        At any rate, to the rights endowed by s 85 of the Constitution, are certain limitations imposed by s 86 of the same Constitution. Furthermore, with r 259 specifically, where one is outside the eight weeks period, that is not the end of the matter. One may still apply for condonation and give reasons why they failed to act timeously. For good cause shown, the court will extend the time.</p> <p> </p> <p>52        In <em>Nyika &amp; Anor v Minister of Home Affairs &amp; Ors</em> TSANGA J declared s 70 of the Police Act, <em>Cap 11:10</em>, providing for an eight month prescription period within which to bring proceedings against the State for anything done, or omitted to be done, by the police, as being inconsistent with s 69[2] and s 56[1] of the Constitution. Section 69[2] of the Constitution provides that in the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial tribunal or other forum established by law. Section 56[1] says all persons are equal before the law and have the right to equal protection and benefit of the law.</p> <p> </p> <p>53        Noting that the general period of prescription of debts in terms of the Prescription Act, <em>Cap 8:11</em>, is three years, the learned judge held that the restrictive period of prescription in the Police Act is unfair and discriminatory to the generality of the target populace for a number of reasons, not least the lack of information and indigence on their part.</p> <p> </p> <p>54        The circumstances of <em>Nyika’s</em> case above are different. Unlike in this case, the court’s final conclusion therein was arrived at after a proper and thorough ventilation of the issues and of the statutory provisions in question. In this case, there simply has been no cogent response to the objections by ZIMRA.</p> <p> </p> <p>55        In the premises, I find that the applicants are non-suited by reason of their failure to bring their applications for review within the eight-week period prescribed by Order 33 r 259 of the High Court Rules, in the case of the applicants in Cases 1 and 2; or within the three-month period as prescribed by s 193[12] of the Customs Act, in the case of the applicant in Case 3.</p> <p> </p> <p>56        My findings above make it unnecessary for me to consider the rest of the points <em>in limine</em>. Therefore, the applications are hereby dismissed with costs.</p> <p> </p> <p> </p> <p>18 January 2018</p> <p> </p> <p><em>Mutendi, Mudisi &amp; Shumba</em>, legal practitioners for the applicants</p> <p><em>Muzenda &amp; Partners</em>, legal practitioners for the respondents</p> <p>2004 [1] ZLR 538</p> <p>2016 [1] ZLR 23 [CC]</p> <p>1989 [3] ZLR 287 [SC], at p 298C</p> <p>[1944] 325 US 304</p> <p>HH 181-16</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/1/2018-zwmsvhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=68844">2018-zwmsvhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/1/2018-zwmsvhc-1.pdf" type="application/pdf; length=267084">2018-zwmsvhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/customs-and-excise">CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/duty-customs-and-excise">Duty (CUSTOMS AND EXCISE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/seizure-customs-and-excise">Seizure (CUSTOMS AND EXCISE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/customs-duty">Customs duty</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/181">Nyika &amp; Another v Minister of Home Affairs &amp; Others (HC 5310/15 HC 5311/15) [2016] ZWHHC 181 (09 March 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/1955/16">Customs and Excise Act [Chapter 23:02]</a></div><div class="field-item even"><a href="/zw/legislation/act/1999/17">Revenue Authority Act [Chapter 23:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</a></div></div></div> Fri, 13 Apr 2018 07:47:06 +0000 admin 8726 at https://old.zimlii.org