NDOU J: 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.
The
respondent's decision to detain the applicant's consignment of used wagon
monoblock wheels under Bills of Entry numbers E3415, E3451, E3449, E3445 and
E3450 at Beitbridge border post on the 18th August 2011 to and is
hereby declared unreasonable and unfair and therefore in breach of section 3 of
the Administrative Justice Act [Chapter 10:28] and is set aside.
2.
The
respondent be and is hereby ordered to pay costs of suit on an attorney and
client scale.
Interim Relief granted
Pending the finalization of this matter, applicant be and is
hereby granted the following relief.
1.
The
respondent be and is hereby ordered to forthwith process the customs clearance
and release the applicant's consignment of used wagon monoblock wheels detained
at Beitbridge border post under Bills of Entry numbers E3415, E3451, E3449,
E3445 and E3450.”
The salient facts of this matter are the following. On or about the 15th July 2011,
the applicant was awarded a tender to purchase four hundred (400) tonnes of
monoblock wheels by the National Railways of Zimbabwe and by virtue of that
award, purchased the same. Thereafter,
the applicant sold the monoblock wheels to a South African company called
Hariot Exports (Pty) Limited and then sought to export the same. It obtained a licence to export the said wheels
from the Ministry of Industry and Commerce dated 20 July 2011 and Release Order
from the respondent dated 27 July 2011.
Based on the said documents, on 27 July 2011, it exported thirty-two
tones of monoblock wheels. However, when
it sought to export one hundred and sixty (160) tonnes of the same monoblock
wheels and by virtue of the same documentation on or about 14 August 2011, the
consignment was detained by the respondent at the Beitbridge border post on the
instructions of the Mines and Minerals Corporation of Zimbabwe (MMCZ). This was on the basis that the applicant has
not sought the requisite authority from MMCZ to export that consignment. The applicant was not amused by the turn of
events and filed this application. The
application has been opposed by the respondent with supporting documents from
MMCZ. In his affidavit by Rodrick
Chikwira, MMCZ's Monitoring and Inspectorate Manager, opines that used railway
wagon wheels which were being exported by the applicant was scrap metal which
falls within the definition of a mineral.
Accordingly such export has to be sanctioned by the MMCZ. The allegation is further that the
consignment is a banned product which required special exemption from the
Ministry of Mines and Mining Development through their department of
Metallurgy.
The respondent has raised three points in limine. One of those is
that the interim relief sought is not competent at law as it seeks, under the
guise of a certificate of urgency, an order that overrides the statutory
provisions of the Minerals Marketing Corporation of Zimbabwe Act [Chapter
21:04] and the Customs and Excise Act [Chapter 23:02]. It is trite that it is not competent to seek
an order that overrides a statutory provision under the guise of a provisional
order – 1, 2, 3 Combined Harare Residents
Association & Anor vs Registrar
General & Ors 2002 (1) ZLR 83 (H) at page 86C and Triangle Limited vs Zimbabwe
Revenue Authority HB-12-11. The
applicant does not want to regularize the exportation of the metal in question by
going through all the statutory procedures at the Ministry of Mines. Section 42 of MMCZ Act, which deals with the
prohibition of sale or export of minerals otherwise than through the MMCZ,
stipulates that:
“(1) subject to
this Act, no person other than the Corporation shall-
(a)
…
(b)
export any mineral from Zimbabwe except –
(i)
in
terms of a contract in sub-paragraph (ii) of paragraph (a) or;
(ii)
when
authorized to do so by the Corporation in terms of section 43 and in accordance
with the terms and conditions of such authority.”
In fact in terms of such-section 2, any person who sells or
exports any mineral in contravention of sub-section 1 shall be guilty of an
offence and liable to a fine or imprisonment.
In terms of section 61 of the Customs and Excise Act;
“1. If
the exportation of any goods is restricted or controlled by enactment, such
goods shall only be exported in conformity with the provisions of such
enactment.
2.
Any
person who exports or assist in exporting of any goods the exportation of which
is prohibited by enactment and any person who exports and assists in exporting
any goods in contravention of any enactment which restricts or control the
exportation of such goods shall be guilty of an offence.”
Clearly once the MMCZ states that the used wagon monoblock
wheels constitute a mineral as defined in the MMCZ Act, the applicant cannot
seek to export same without proving its case that it is not a mineral. The provisional order is clearly incompetent.
The respondent should not be compelled to allow the exportation of banned or
restricted goods. To do so would defeat
the whole purpose of the legislature making the respondent the enforcer of
controls on exports and imports.
Irreparable harm will be suffered by fiscus. Such irreparable harm has already been suffered
in respect the first erroneous clearance of the four trucks on 27 July
2011. The applicant seems to be relying
on such earlier clearance to imply that it legitimately excpets the current
consignment to be cleared. No legitimate
expectation could arise from an ultra
vires or erroneous relaxation of the relevant statute by the body
responsible for enforcing it. The facts
reveal unfairness to the fiscus. There
is no unfairness to the applicant in acting upon the error of law that resulted
in the first clearance. It would be null
and void ab initio for ZIMRA to bind
itself to accept as valid a clearance based upon the error of law – R v AG
exp Imperial Chemical Industries plc (1986) 60 TC 1 and Commissioner of Taxes vs Astra Holdings (Private) Limited t/a Puzey
& Payne 66 SATC 79. I therefore
uphold the point in limine raised by
the respondent.
It is unnecessary for me to consider the other two points
raised. I accordingly dismiss the
application with costs.
R. Ndlovu & Co, applicant's legal practitioners
Coghlan & Welsh,
respondent's legal practitioners
