MATHONSI J: The applicant purchased 2800 pockets of
potatoes for a total of R39 200-00 from National Fruit Suppliers of South
Africa on 4 July 2011. It then engaged
Achripel Trading (Pvt) Ltd, a clearing agent based in Beitbridge to declare and
clear the potatoes for importation into Zimbabwe.
The
potatoes were pre-cleared on 6 July 2011 using a permit which turned out to be
fake and has been disowned by the issuing authority, the Ministry of
Agriculture Mechanisation and Irrigation Development. Potatoes cannot be imported without a
permit. The secretary of that ministry
wrote a letter on 25 July 2011 which reads in part as follows:
“The
Commissioner General
ZIMRA
Attention:
Mr G Pasi
RE: FRAUDULENT
PERMIT – IMPORT PERMIT NUMBER 003344A
The
above matter refers.
The
Ministry of Agriculture, Mechanisation and Irrigation Development would like to
bring to your attention that permit number 003344A belonging to Qalisani
Trading for 500MT of potatoes is not authentic.
Your
usual co-operation is greatly appreciated.
C.
Kabudura
For
Secretary for Agriculture, Mechanisation and Irrigation Development.”
Using
that permit, in terms of which a release order was issued, the applicant
imported the consignment of potatoes on 8 July 2011. Its vehicle was intercepted as it left
Beitbridge border post resulting in the arrest of the applicant's driver
Sikhumbuzo Mhlanga who readily admitted smuggling the potatoes. The consignment was seized by first
respondent in terms of the Customs and Excise Act, [Chapter 23:02] on the basis
that it was the subject of an offence.
The
driver transporting the consignment appeared at Beitbridge Magistrates' Court
on 12 July 2011 on a charge of contravening section 182 of the Customs and Excise
Act, “smuggling”. He pleaded guilty, was
duly convicted and sentenced to a fine of US$300-00 or in default of payment, 1
month imprisonment. The trial magistrate
did not order forfeiture of the consignment of potatoes but endorsed that the
owner was free to make representations to the first respondent regarding their
release.
It
would appear that the applicant appealed to the Regional Manager of the first
Respondent against the seizure on 12 July 2011 and that appeal was thrown out
by letter dated 13 July 2011 addressed to the applicant's then legal
practitioners Nyamushaya, Kasuso and Rubaya of Harare. The letter reads as follows:
“NOTICE OF SEIZURE NUMBER 018638L OF
8 JULY 2011.
I
refer to your appeal letter dated 12 July 2011 in connection with the above
mentioned subject.
Please
be advised that the potatoes were seized in terms of section 47 of the Customs
and Excise Act [Chapter 23:02] which prohibits the importation of certain goods
into Zimbabwe. Any prohibited goods
imported into Zimbabwe are a subject of an offence and the said goods shall be
liable to forfeiture.
In
this case the question of whether an offence was committed or not does not
arise given that the accused has already been convicted by the courts.
A
proviso to section 193 (16) of the Customs and Excise Act clearly states that
any goods whose importation is prohibited in terms of section 47 of the Act
cannot be released by the Commissioner.
Furthermore,
my investigations have revealed that Import Permit number 003344A which was used
for the importation of the potatoes in question is not authentic and has been
disowned by the relevant ministry officials at Beitbridge Border Post.
In
view of the above, I am not prepared to release the potatoes as this would be
in contravention of current procedures and practice.
Yours
faithfully
M.
MADONGORERE
REGIONAL
MANAGER”
After
receiving the decision of the regional manager, the applicant decided to launch
this urgent application seeking the following relief:
“TERMS OF FINAL ORDER SOUGHT
That
1st and 2nd respondents show cause to this Honourable
Court why a final order should not be made in the following terms:
1. THAT the Respondents be
and are hereby directed to release 2800-00 (sic) pockets of potatoes belonging
to the applicant and facilitate their re-exportation into South Africa.
2. THAT in the event that
the Respondents oppose the order herein sought should pay (sic) the costs of
this application jointly and severally the one paying the other to be absolved.
INTERIM RELIEF SOUGHT (SIC)
Pending
determination of this matter, the applicant is granted the following relief
1. THAT the Respondents be
and are hereby directed to release 2800-00 (sic) pockets of potatoes belonging
to the applicant and facilitate their re-exportation into South Africa.”
Clearly
therefore the interim relief sought by the applicant is the same as the final
order sought. The courts have stated
times without number that it is inappropriate for an applicant to seek interim
relief which is final in nature because doing so means the applicant obtains
final relief without proving its case.
As
stated by Chatikobo J in Kuvarega v
Registrar General and Another 1998(1) ZLR 188(H) at 192 G-H and 193 A-B, a
pronouncement with which I am in agreement;
“As
already pointed out, the application was filed on the Friday immediately
preceding the Monday in which the election commenced. If the interim relief had been granted, the
applicant would have obtained the substantive relief claimed before the return
date and after the election she would not have had any reason to move for the
confirmation of the order. There was
nothing interim about the provisional relief sought. It would have provided the applicant with the
relief she sought on the day of the election.
The practice of seeking interim relief which is exactly the same as the
substantive relief sued for and which has the same effect, defeats the whole
object of interim protection. In effect,
a litigant who seeks relief in this manner obtains final relief without proving
his case. That is so because interim
relief is normally granted on the mere showing of a prima facie
case. If the interim relief sought is
identical to the main relief and has the same substantive effect, it means that
the applicant is granted the main relief on proof merely of a prima facie
case. This, to my mind, is undesirable
especially where, as here, the applicant will have no interest in the outcome
of the case on the return day.”
In
casu, the same point may be made that if the applicant is granted the
interim relief it seeks, the potatoes will be released and re-exported to South
Africa merely by the showing of a prima facie case and certainly
without proof of the applicant's case.
This is undesirable and as shall be shown later in this judgment, if this
had been allowed to happen, the consequences would have been dire indeed. I agree with Mr Ncube for the respondents that the practice of seeking interim
relief which is final in nature ought to be suppressed decisively.
It
is critical to point out that when the applicant made the ex parte application
seeking the relief I have referred to, it did not disclose in the application
that its driver had already been convicted of smuggling and sentenced by a
court of competent jurisdiction. This
was in respect of the same consignment sought to be released for re-exportation
to South Africa. The applicant did not
disclose that the consignment was the subject of an offence in terms of the
Customs and Excise Act. This was a very
material non-disclosure especially to the extent that goods which form the
subject of an offence are liable for forfeiture in terms of section 47(1) as
read with section 188 of the Act.
More
importantly, at the time this application was filed the applicant was aware of
the decision of the first respondent contained in the letter of 12 July 2011
quoted above, which decision dismissed the appeal against the seizure of the
potatoes. The applicant did not disclose
that factor and yet wanted the court to substitute its own decision and order the
release of the consignment. It was only
my intervention in directing service of the application upon the respondents
which saved the day.
Otherwise,
I would have determined the matter without knowledge of these material facts
which the applicant deliberately withheld from the court. Such non-disclosure relegates the applicants
conduct to the realm of dishonesty. In Graspeak Investments (Pvt) Ltd v Delta
Corporation (Pvt) Ltd and Another 2001 (2) ZLR 551(H) NDOU J, quoting with
approval The Civil Practice of the
Supreme Court of South Africa by Herbestein and Van Winsen at 554D said;
“The
utmost good faith must be observed by litigants making ex parte
applications in placing material facts before the court, so much so that if an
order has been made upon an ex parte application and it appears that
material facts have been kept back, whether wilfully or mala fide
or negligently, which might have influenced the decision of the court whether
to make the order or not, the court has a discretion to set the order aside
with costs on the ground of non-disclosure.”
At
555C the learned judge went on to say;
“The
courts should, in my view, discourage urgent applications, whether ex parte
or not, which are characterised by material non-disclosures, mala fides
or dishonesty. Depending in
circumstances of the case, the court may make adverse or punitive orders as a
seal of disapproval of mala fides or dishonesty on the part of
litigants.”
I
hold the same view. In the present case
there is a glaring non-disclosure of material facts and misrepresentation
designed to hoodwink the court into granting an order which applicant is not
entitled to. Gapare and Another v Mushipe and Another HB 17/11 at page 5. Mr
Chivaura's contention on behalf of the applicant that the conviction of the
applicant's agent and the decision by the first respondent to dismiss the
appeal against the seizure is not relevant because this court has inherent
jurisdiction cannot be taken seriously.
Section 218 (2) of the Act provides for strict liability of principals
for the actions of their agents.
In
any event, this court cannot lawfully order the release of the consignment of
potatoes as doing so would override the provisions of sections 47, 182 and 188
of the Customs and Excise Act. Triangle Ltd v Zimra HB 12/11.
The
goods were the subject of an offence and in terms of section 188(1) of the Act,
they are liable to forfeiture. The first
respondent seized the goods in pursuance of that provision. It would therefore be incompetent for me to
order their release as doing so would cut against the clear provisions of the
statute.
Therefore
even on the merits the application cannot succeed. This should have been apparent to the
applicant before this application was made and making it was an exercise in
futility. In addition, the applicant
exhibited high levels of dishonesty in keeping back facts illustrating the lack
of merit of the application. For that it
should be visited with costs on an enhanced scale.
Accordingly,
the application is dismissed with costs on an attorney and clients scale.
Messrs Masawi and partners, applicant's
legal practitioners
Coghlan and Welsh, 2nd
respondent's legal practitioners
