MATHONSI J: This is an urgent application in which the
applicant seeks a provisional order in the following terms:
''TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this
Honourable Court why a final order should not be made in the following terms:
1. Applicant be and is hereby
declared a returning resident and is accordingly entitled to a rebate on the
goods that he is importing as a returning resident.
2. Respondent is not entitled to
charge customs duty on Applicant's goods that Applicant will import as a returning
resident.
3. Applicant's motor vehicle, being
VW24 X-Polo, Engine Number BAH362835 chassis Number AAVZZZ9NZ 8U004935 South African Registration
Number CA 689-274 is entitled to a
rebate and should be accordantly (sic) registered in Zimbabwe without any
encumbrances.
4. Respondent pays the costs of suit
on an attorney client scale.
TERMS OF THE INTERIM RELIEF GRANTED
5. Respondent be and is hereby
ordered, directed and compelled to forth with release the Applicant's motor vehicle
being VW 24X –Polo, Engine Number BAH 362835, chassis Number AAVZZZ9NZ8U
004935, South African Registration Number CA 689-274 to Applicant.
6. Respondent should issue Applicant
with the Customs Clearance Certificate and customs documents necessary to
enable applicant to register the motor vehicle in Zimbabwe.
7. Applicant should not sale (sic),
dispose and or change the ownership of the said vehicle to a third party or
permanently remove the said motor vehicle from the court's jurisdiction pending
the finalisation of this matter.
8. The storage costs and any
ancillary costs be costs in the cause and it is ordered that Applicant should
not pay any storage costs or any costs associated with the release of the
vehicle.''
The applicant is a registered
legal practitioner practicing in this country under the style T.K. Hove &
Partners and is a senior partner of that firm which is based in Harare. He is a citizen of this country. From the papers it would appear that on 20
January 2009, he was granted a study permit to pursue a masters degree in
Environmental Management at University of Cape Town in South Africa. Whilst in that country he purchased a VW
motor vehicle which is the subject of this application.
On 8 January 2011 he was
returning home from South Africa bringing with him some goods he intended to
import into the country including the motor vehicle in question when he was
intercepted at the Beitbridge Boarder Post by the Zimbabwe Revenue Authority
officers who impounded his vehicle. He
had not paid import duty for the vehicle as he claims that, as a returning
resident who has been out of the country for 2 years, he is entitled to an
immigrant rebate in terms of section 105 of the Customs and Excise (General)
Regulations 2001 which was published as Statutory Instrument 154/2001.
The motor vehicle has remained
in the custody of Zimra as applicant seeks to enforce what he regards as his
entitlement to that rebate. There are
storage charges associated with the continued detention of the vehicle in
Beitbridge. On 17 January 2010, the
applicant made written representations to Zimra arguing that he should be
accorded the rebate. What he did not
disclose in his application is that Zimra responded to those representations by
letter dated 23 January 2011. That
letter reads in part as follows:
''IMPORTATION OF GOODS
GENERAL: APPEAL AGAINST DENIAL OF THE IMMIGRANT'S
REBATE: HOVE TAFARA KUDAKWASHE
I refer
to your letter to this office. Your
letter and attachments have been read, well understood and fully considered, I however
would like to inform you that the office still sustains its initial decision to
deny your rebate application, for lack of proof of successful completion of studies. Refer to Customs and Excise Act, Chapter
23:02 section 102, subparagraph --- (10)
'(a) Any immigrant claiming a rebate of duty in
respect of effects or other goods in
terms of this section shall give to the proper officer –
(b) In the case of a person who has been on –
(i) a course of study, proof that he has
completed such course of study?
Also refer to section 102 definition of 'time
of arrival'
(c)In relation to an immigrant who has
previously resided in Zimbabwe and who has
(i) Has been on a course of study, the first
occasion on which he returns to Zimbabwe after successfully completing
such course of study.
The transcript will suffice for proof of
successful completion.''
As proof of his successful
completion of the course of study the Applicant submitted a document which is
neither a degree transcript nor any conclusive proof of completion of the
course. It is not even on the University
of Cape Town letterhead but has a list of names including that of the
applicant. It shows some results for 5
subjects he must have studied. It is not
proof of a successful completion of the course.
He says the university withheld the transcript because he has not paid
school fees.
At the hearing of the
application Mr Ncube for the Respondent took 2 points in limine namely that the matter is not urgent and that the interim
relief sought is incompetent. I propose
to deal first with the issue of urgency.
Mr Ncube strongly argued that the applicant does not state in his
founding affidavit why he considers the matter urgent, that the certificate of
urgency itself is not helpful at all and that it has not been shown that the
applicant will suffer irreparable harm or prejudice if the matter proceeds by
ordinary court application.
Looking at the certificate of
urgency the only relevant parts are paragraph 2(b) and 3 as they are the only
ones which attempt to address the issue of urgency. The rest are irrelevant narrations which do
not impact on urgency at all. Paragraph
2(b) reads:
''Respondent is currently holding the Applicant's
car in their yard charging him rentals of $10-00 per day, since 8 January 2011,
when as a returning resident he should be allowed to get a rebate.''
Paragraph
3 reads:
''Irreparable harm will be occasioned on
applicant if the matter is not heard urgently and an order granted in terms of
the Draft''
It has
been submitted on behalf of the Respondent that the rental of $10-00 being
charged for the detained vehicle is merely a paper tray as the applicant is not
paying that money. Whether he will have
to pay that money will depend on the success or otherwise of his claim. The court is still entitled to order the
release of the vehicle without payment of storage charges and the Respondent
may still waive the charges if applicant's claim for a rebate has merit. For those reasons it cannot be a vehicle for
urgency.
The averment relating to
irreparable harm is a bald one not supported by any fact and why the certifying
legal practitioner thinks irreparable harm will be suffered is not stated. The applicant cannot expect the court to
exercise its discretion to accord him audience on an urgent basis without useful
information to sustain such claim. That
there is a close relationship between urgency and irreparable harm is
obvious. Triangle Limited v Zimbabwe Revenue Authority HB 12/11 at p4.
I did state in Gapare
& Another v Mushipe & Another
HB17/11 at p4 that the hearing of a matter as urgent is entirely the
discretion of the court and that the court exercises its discretion in favour
of the applicant to jump the queue on the strength of a certificate issued by a
legal practitioner. Where there is nothing to suggest that the legal
practitioner applied his mind before certifying the matter as urgent, a
conclusion may be drawn that he acted dishonestly. See also General
Transport & Engineering (Pvt) Ltd
v Zimbank Corp (Pvt) Ltd 1998(2) ZLR 301 at 302 E.
There is nothing in the founding
affidavit or indeed the certificate of urgency to suggest how the Applicant
will suffer irreparable harm as would attract the hearing of the matter on an
urgent basis. Ms Ncube for the applicant
did not dispute that even the storage charge of $10-00 per day in not being
paid at all and may be waived after all.
All she submitted is that the Applicant is being discriminated against
without elaborating.
I agree with Mr Ncube for the
Respondent that the fact that a party is suffering some form of prejudice does
not, standing on its own, amount to urgency.
As stated in Madzivanzira &
Others v Dexprint Investments (Pvt)
Ltd & Another 2002 (2) ZLR 316(H) at 318E:
''Matters that come before the courts are
without doubt dealing with prejudice or potential prejudice to the plaintiff or
applicant in one way or another. In
asking that a matter be dealt with on an urgent basis one does not over
emphasis the aspect of prejudice. What
is most important to me is whether the matter can or cannot wait. If the matter can wait there is no
justification in hearing the matter as urgent.
To do so will result in that matter unfairly jumping the queque of other
matters that are waiting to be heard by the court. I would add that if the application is one
that cannot wait, then that opinion must be brought home to the court, not as
an opinion but as a matter of fact. The
affidavit must establish that the applicant will suffer some form of prejudice
or harm, and probably irreparable at that, if relief is not afforded him instanter.
--- the element of harm should not be
confused with urgency.''
I find myself in total agreement
with that pronouncement and in casu
there is nothing, other than the fact that the applicant is being deprived of
the use of his VW Polo, to suggest irreparable harm or even an iota of urgency. I therefore conclude that urgency has not
been proved.
Having come to that conclusion
it is unnecessary for me to consider the second point in limine taken by Mr Ncube relating to the incompetence of the
interim relief sought. The matter fails
on the first hurdle.
Accordingly the application is
dismissed with costs for want of urgency.
T.K Hove and Partners, Applicant's Legal Practitioners
Coghlan & WeIsh,
Respondent's Legal Practitioners
