No. SC 98/02
Appeal No. 27/01
JOHN MAZARURA v
DIRECTOR OF CUSTOMS AND EXCISE
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & MALABA JA
SEPTEMBER 9 & NOVEMBER 14, 2002
for the appellant
for the respondent
CJ: The facts of this case are by and large common cause. They
are set out in some detail by the learned judge
in the court a quo.
There is no need to relate them again in this judgment. I will
only briefly summarise them as follows.
appellant went to the United States to study. He remained
there for four years before he returned to Zimbabwe. He returned
Zimbabwe on 21 September 1999. In terms of s 92 of the
Customs and Excise (General) Regulations, SI 106 of 1977
(hereinafter referred to as the Regulations), he was entitled
to a rebate of duty on certain goods he might wish to import
return. To this end, he decided to purchase a motor vehicle, a
Mercedes Benz ML 430-190, which he intended to import
Zimbabwe duty free in terms of the Regulations.
He placed an
order for the motor vehicle with Mercedes Benz (United Kingdom)
Limited, of 78 Picadilly, London. The latter
availability of the motor vehicle. On 10 September 1999 the
appellant paid ?16 000.00, leaving a balance
of the purchase
price of about US$30 000.00. It is the date of the payment of
the balance of the purchase price which has
given rise to this
It is common
cause that on 13 September 1999 the appellant initiated the
transmission of the balance of the purchase price
to the bank of the
seller. It is also common cause that, through some confusion not
satisfactorily explained by the various banks
that handled this
money, the balance of the purchase price was not received by the
seller until 7 October 1999, some twenty-four
or so days after
the initial instruction to transmit the money to the seller. In the
meantime, the appellant returned to Zimbabwe
on 21 September
attempts to set out the sequence of events from the time of the
initial instruction to the date of receipt of
the purchase price by
the seller. Annexure C provides as follows:
you for your fax dated 14 July 2000 addressed to my colleague,
Mr D Holden, in which you asked for a résumé
events surrounding our payment IP4BM99091300162.
was sorry to learn of the difficulties you have encountered in
connection to this payment. Please find below a breakdown of
involvement in this particular SWIFT transfer.
Bank London received a SWIFT payment order from Bank of America New
York, instructing us to issue the following payment:-
amount: USD 31.500.00 LESS OUR CHARGES
date: 13 SEPTEMBER 1999
order: CHARLES MAZARURA
CAROLINA BANK AND TRUST
NC USA 27702
to bank instructions: /INS/NATIONSBANK NACHARLOTTE
ADVSORT CODE 720000
response to this payment order, due to the bank to bank instructions
SORT CODE 720000 NatWest issued a similar US 31,480.43
payment on 13 September 1999 to Citibank London. (Sort Code
720000 belongs to Girobank Bootle, who, I believe at the time
payment was processed, maintained their US Dollar settlement through
London returned the payment that we had made on 13 September
1999, as they advised us that the beneficiary institution
to apply the payment.
Investigations Team opened a file upon the payment, and started to
research the matter.
received a response from Bank of America New York, requesting
cancellation of the payment on behalf of Nationsbank NA.
for cancellation was stated to be funds sent in error. A
cancellation of the payment was initiated via our agent
Manhattan Bank New York.
received a further message from Bank of America New York,
revoking their cancellation request and requesting an amendment
their original payment instructions:-
BENZ REF: PICADILLY
bankers: BRANCH MILTON KEYNES
they requested that we now re-effect payment per these amended
instructions avoiding any duplication. As we had already
funds back through Chase Manhattan Bank, we contacted them to recall
numerous messages had been exchanged between all the banks involved
in this payment, the funds were returned to NatWest. [Due
time difference between (the) USA and (the) UK, NatWest was unaware
of the return until 7 October 1999.]
issued a payment in accordance with the revised payment instructions.
this transaction was first instructed to NatWest for value
13 September 1999, NatWest was not in receipt of both full
correct payment instructions and covering funds until 7 October
1999. With this in mind, I do not consider the apparent
involved in this transaction, 24 days [18 working days], to
be the responsibility of NatWest.
appellant also enquired of the sellers bank through the seller
what had transpired. The seller responded to that enquiry
to our recent telephone conversation (I) have read through the file
pertaining to your car, and have found a copy of a document,
may help you.
Our bank (was)
unable to assist in respect of answering the question of where the
money went. But the dates shown on the document
are clear that a
date of 13/9/99 was given!
(the underlining is mine)
is apparent from the above letter that the sellers bank and indeed
the seller itself gave the payment of the purchase price
a value date
of 13 September 1999.
facts the learned judge in the court a quo
concluded that the date of full payment in terms of the Regulations
was 7 October 1999, which is the date the seller received
appellant had returned to Zimbabwe by that date and consequently the
court a quo
concluded that the appellant was not entitled to a rebate in terms of
s 92(2) of the Regulations. Section 92(2) of the
Regulations provides as follows:
purposes of this section, goods shall be treated as being owned by an
immigrant only if such goods were in physical existence
paid for by the immigrant
before the time of his arrival. (the underlining is mine)
requirements of s 92 are clear. In order for one to qualify
for an immigrants rebate of duty, he or she ought to satisfy
(i) that the effects/goods were
in physical existence prior to his/her return; and
(ii) that such effects/goods were
fully paid for by the immigrant before arrival in Zimbabwe.
In the case
v Director of Customs and Excise
1998 (1) ZLR 60H, ADAM J expressed the view that fully paid
for meant no payments were outstanding at the time of arrival
Zimbabwe. In that case the issue was whether the words paid for
by the immigrant in the above section meant paid for personally
by the immigrant, as contended for by the Director of Customs and
Excise (the Director), or included a gift of a motor vehicle paid
for, using the relatives funds, by a relative of the immigrant.
The court rejected the literal interpretation of the Director
accepted the more liberal interpretation contended for by the
immigrant. In doing so the court relied on the intention of
and the mischief intended to be dealt with, as opposed to
the literal meaning of the words of the Regulations.
concluding that payment was made after the return of the appellant to
Zimbabwe, the learned judge in the court a quo
contended that he was giving effect to the primary or literal meaning
of the words of the statute, in particular the words fully
for by the immigrant before the time of his arrival.
I have no
problem in accepting the proposition that the court should accord
words of a statute their ordinary meaning, save in cases
would lead to an absurdity so glaring that no reasonable person,
using those words, could have intended such an interpretation.
v Nottingham Estates
1995 (1) ZLR 253; and S
1998 (2) ZLR 371.
I am unable,
however, to agree with the learned judge in the court a quo
that ascribing the literal meaning of the words of the Regulations in
this case leads to the conclusion that full payment by the
occurred on 7 October 1999. The facts of this case clearly
show that what occurred on 7 October 1999 was the
by the seller of the full payment of the purchase price which had
been made by the buyer, the immigrant, several days previously.
learned judge ascribed to the words of the statute fully paid for
by the immigrant the meaning receipt of full payment
seller. I do not accept that the words fully paid for by the
immigrant literally mean, or are synonymous with,
full payment by the seller. The latter words are not the words
of the Regulations.
has argued that we should follow the case of Lardner-Burke
v Director of Customs and Excise
S-54-02, which concluded on very similar facts that full payment only
occurred upon receipt of the full purchase price by the bank
seller. I agree with Mr Chinake
that the facts of
Lardner-Burke v Director of Customs and Excise supra
are strikingly similar to the facts of this case, but there is one
very important factor that distinguishes the two cases. I shall
revert to that shortly.
reading of Lardner-Burkes
reveals that it did not seek to lay down a general proposition that
full payment occurs only
upon receipt of the full purchase price by the seller, but that on
the facts of that case full payment was effected on receipt of
purchase price by the seller.
In my view,
what constitutes full payment by the immigrant depends on the facts
of each case and no doubt to some extent the intention
parties. For example, where the parties agree that payment was to
be by cash sent to the seller by registered post and any
thereafter was to fall on the seller, full payment no doubt would be
complete upon the posting of the registered mail. In short,
the view that although full payment by the immigrant could occur upon
receipt of the full purchase price by the seller it
necessarily have to be the case and the facts of each case have to be
examined in order to make a determination as to when
In terms of
Annexure E, the seller and its bank value dated full payment by
the immigrant at 13 September 1999, the date
when the SWIFT
transfer was made. At the time the agreement was concluded, the
buyer was located in the United States, while
the seller was in
the United Kingdom. Given this situation, it must have been
within the contemplation of the parties that
payment would or could
be made by SWIFT transfer, which was in fact done on 13 September
1999. The appellant contends that
that is the date on which full
payment was made. The seller concurred with that view by value
dating the payment to that date.
That concurrence no doubt is based
on the fact that on 13 September 1999 the appellant did
everything that could reasonably
be expected of him, but for reasons
beyond his control the money did not reach the seller until 7 October
This case is
therefore distinguishable from Lardner-Burkes
on the basis that the parties in
are agreed that the date of full payment was the date on which the
purchaser sent the money to the seller by SWIFT transfer and not
date when such money was received by the seller.
also argued that the appellant did not own the motor vehicle upon his
arrival in Zimbabwe. I am not persuaded by this submission.
proper reading of s 92(2) of the Regulations reveals that once
it is shown that the goods were in existence and fully paid
the immigrant at the time of his arrival the goods shall be
treated as being owned by the immigrant.
also argued that the payment was made by the appellants brother
and not the appellant. Mohameds
is authority for the proposition that the words full payment by
the immigrant do not mean the goods necessarily have to be
for by the immigrant. It is interesting to note that the court in
that case applied a liberal interpretation to the words
statute. The words fully paid by the immigrant were
interpreted to include goods paid for by the immigrants relative
and given to the immigrant as a wedding gift.
foregoing reasons, the appeal must succeed. The court a quo
erred in rejecting 13 September 1999 as the date when full
payment was made by the appellant.
In the result,
the appeal succeeds. The order of the court a quo
is set aside and the following order is substituted
It is ordered as follows
(1) It is declared that the
respondents determination that the appellant had not fully paid
for the motor vehicle on his arrival
in Zimbabwe is invalid.
(2) That the respondent bears the
costs of this application.
JA: I agree.
JA: I agree.
appellant's legal practitioners
respondent's legal practitioners