The
salient facts of the case are the following.
On
9 June 2010, the applicant hired his vehicle, described above, together with
its driver, Absolom Murada, to one Phanuel Chiwandire. The vehicle was used to
smuggle 27 boxes and 24 bricks of Seville cigarettes and 25 bricks of Mega
cigarettes from Zimbabwe into Botswana through an undesignated exit point at
Plumtree. Phanuel Chiwandire and Absolom Murada were arrested. The cigarettes
and the applicant's vehicle, that had been used to smuggle the cigarettes, were
placed under seizure. A Notice of Seizure for the motor vehicle was given to
Absolom Murada on 10 June 2010 and that for the cigarettes was given to Phanuel
Chiwandire on the same date. Phanuel Chiwandire was charged for smuggling the
cigarettes. Absolom Murada was never charged. Phanuel Chiwandire pleaded guilty
to the charge of smuggling the cigarettes before a local magistrate. He was
convicted and sentenced to a fine of US$500= or ZAR5,000=. The smuggled
cigarettes were declared forfeited to the State. After representations had been
made before the presiding magistrate that the motor vehicle in question did not
belong to Phanuel Chiwandire (the accused person), the magistrate ordered that
the vehicle should not be declared forfeited to the State. The applicant, with
the support of Absolom Murada and Phanuel Chiwandire, then made representations
for the release of the motor vehicle to the Commissioner of the Zimbabwe
Revenue Authority.
The
Commissioner did not release the vehicle.
On
3 September 2010, the applicant filed an application at Plumtree Magistrates'
Court, under case number 185/10 for the release of the vehicle in question.
Among
other things, the respondent raised the objection that the applicant had not
given notice to institute proceedings as required by section 196(1) of the
Customs and Excise Act [Chapter 23:02].
The
application was dismissed by the magistrate. The applicant did not seek review
or appeal against the dismissal. Instead, on 14 October 2011, the applicant
instituted the current proceedings in this court. The applicant did not give
the respondent the notice required by section 196(1) of the Customs and Excise
Act [Chapter 23:02]. Section 196(1) of the Customs and Excise Act [Chapter
23:02] reads thus –
“196
Notice of action to be given to officer
(1)
No civil proceedings shall be instituted against the State, the Commissioner,
or an officer, for anything done or omitted to be done by the Commissioner or
an officer under this Act or any other law relating to customs and excise until
sixty days after notice has been given in terms of the State Liabilities Act
[Chapter 8:15].”
The
applicant ignored this provision at his own peril.
The
primary objective of the provision is provision of timely opportunity to the
Zimbabwe Revenue Authority to know, and therefore to investigate, the material
facts upon which its actions are challenged and to afford the Zimbabwe Revenue
Authority opportunity of protecting itself against the consequences of possible
wrongful action by tendering early amends as envisaged by the Customs and
Excise Act [Chapter 23:02] – Ebrahim v Controller of Customs 1985 (2) ZLR 1
(SC); Building and Engineering Supply Co (Pvt) Ltd v Controller of Customs 1988
(1) ZLR 238 (HC); and Car Rental Services (Pvt) Ltd v Director of Customs and
Excise 1988 (1) ZLR 402 (SC).
The
failure to give this notice is fatal as the applicant is effectively barred
from instituting proceedings for recovery of the motor vehicle unless, of
course, if the Commissioner is prepared to waive or extend the period. On this
point alone, the application should be dismissed without even considering the
merits of the case.
