DISTRIBUTABLE
(53)
Judgment
No S.C. 54\2002
Civil
Appeal No 246\2001
JENNIFER
LARDNER-BURKE (nee JONES) v DIRECTOR OF CUSTOMS
AND EXCISE
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, CHEDA JA & MALABA JA
HARARE
JUNE 24 & AUGUST 20, 2002
E.T.
Matinenga,
for the appellant
J.
Zindi,
for the respondent
CHEDA
JA: The appellant approached the High Court seeking an order to
set aside the decision of the respondent who had denied
her the
immigrant rebate for a motor vehicle. The High Court dismissed her
application with costs. This is an appeal against
that decision.
The
appellant was resident in the Republic of South Africa. A
Zimbabwean man decided to marry her. She learnt that she was
entitled
to an immigrants rebate, which meant she could bring
goods without paying duty for them. This is provided for by section
92(3)
of the Customs and Excise (General) Regulations 1997 (S.I. 106
of 1997) which reads as follows:-
Section
92(3) Subject to this section a rebate of duty may be granted in
respect of personal and household effects and other goods
imported by
an immigrant if such effects
and other goods
are shown
to the satisfaction of the Director to have been owned by such
immigrant at the time of his arrival and at the time of
their
importation;
are
intended for personal use in Zimbabwe by such immigrant but not for
trade or commercial purposes;
are
imported at the time of arrival of such immigrant or at such time as
the Director may in his discretion approve.
It
is common cause that the appellant made arrangements for payment for
a Pajero motor vehicle purchased from Mitsubishi Corporation
Limited.
Payment was by bank transfer. It is not clear why so many banks
were used but this seems to be the source of the appellants
problem.
The Bank of
Tokyo, where the money was to be paid, did not recognise Mees Pierson
as an A-grade Bank and they sent the money back.
On yet another
occasion it was returned because a wrong account number had been
given.
However,
the money finally got to the Bank of America in London after which it
was paid into the Bank of Tokyo for Mitsubishi Corporation.
This
was now 27 May 1999. The appellant had been granted a permit issued
on 27 April 1999 for 5 May 1999.
It was
argued, for the appellant, that once she arranged payment she had no
more control of the events that followed and that as
far as she was
concerned she had paid for the vehicle and she owned it. The
respondents counsel argued that the appellant had
to satisfy the
Director that she complied with the provisions of s 92(3) of the
Regulations.
Counsel
for the appellant submitted that payment by bank transfer was more
reliable than a cheque, and that once the transfer is
done payment
has been made. However, that is not the issue. The issue is
whether the Director was satisfied that she complied
with the
Regulations.
The
movement of the money from one bank to another resulted in the money
delaying and it only reached the Bank of Tokyo for Mitsubishi
Corporation on 27 May 1999. In other words, this was the date of
payment.
In
view of the above, it cannot be said that when the appellant entered
Zimbabwe she had paid for the vehicle. It follows that
if she had
not paid for it she did not own it at the relevant time.
The
Director was also concerned about certain documents that she
produced. He asked for an explanation, after which he thought
some
of the documents were intended to deceive.
It
was argued that such thinking influenced the Director to the extent
that he based his decision on that.
I
do not agree.
Even if he
mentioned that, his decision was based on the provisions of the
Regulations since payment was received after the date
of her entry
into Zimbabwe. The suspicious documents could also make it
difficult for him to be satisfied. The Regulations required
that he
be satisfied.
The money
was paid about a month after she had been issued with a permit.
When she moved to Zimbabwe, payment had not been made
to the account
of Mitsubishi Corporation. The Director was, for good reasons,
dissatisfied. He exercised his discretion based
on the above facts.
The
High Court was therefore correct in dismissing the application.
There is no
merit in the appeal.
The
appeal is dismissed with costs.
SANDURA
JA: I agree
MALABA
JA: I agree
Wickwar &
Chitiyo,
appellant's legal practitioners
Kantor
& Immerman,
respondent's legal practitioners
