KAMOCHA
J: The
applicant seeks a declaratur in the following terms:-
“It is ordered that:
(1) Applicant be and is hereby declared as qualified in terms of section 105 of
Statutory Instrument 154/2001 as amended by Statutory Instrument 13/2002 for
the immigrant's rebate in respect of the goods detained by respondent as listed
in customs receipts number 156219C and 156221C issued to applicant on 22
February 2010 and annexed to the founding affidavit in these proceedings as
annexure “H”, “I” and “J”.
(2) In terms of paragraph (1) of its order, respondent be and is hereby ordered and
directed to clear the goods on the basis of the immigrant's rebate as provided
for in section 105 of Statutory Instrument 154/2001 as amended and release them
to applicant within seven (7) days of the date of this order without payment of
any storage fees or charges related to storage.
(3) The costs of this application shall be borne by respondent on an
attorney-client scale should it oppose this application.”
The applicant claimed that between
April 2007 and December 2009 she was resident in the United States of America –
“USA” under a permanent resident card (Green Card). She alleged that
during her resident in the USA she regularly visited Zimbabwe.
In December 2009 she decided to relocate from the USA back home to Zimbabwe.
In doing so she brought an assortment of goods and chattels including a 2003
Mercury Mountaineer motor vehicle gold in colour bought in the USA for use back
home. She arrived in Zimbabwe on 15 December 2009.
When the container carrying her goods arrived in Bulawayo, she declared the
goods which were assessed for duty purposes by the Zimbabwe revenue
Authority. While assessment for the purpose of duty was taking place she
made a formal application for an immigrant's rebate in terms of section 120 (1)
(b) of the Customs and Excise Act [Chapter 23:02] “the Act” as read with
section 105 of the Customs and Excise (General) Regulations Statutory
Instrument 154/2001 (as amended). Her application was rejected by the
officials of the Zimbabwe Revenue Authority who received it. She appealed
against the decision to reject her application without success. She was
advised by the officials to pay the assessed duty to avoid her goods being
forfeited to the state and sold at a rummage sale without further notice to
her. Her goods remain seized by the Zimbabwe revenue Authority. In
the result, she approached this court on 29 November 2012 seeking the order at
page 1 of this judgment.
The applicant averred in her application that she was entitled to and fully
qualified for the immigrant's rebate as a returning resident and therefore as
“immigrant” as defined in section 105 (i) of the instrument. The goods in
respect of which the rebate was sought are such goods as defined in subsections
3 and 4 of section 105. The goods have not been disqualified for a rebate
under Statutory Instrument 154 of 2001, or any other law.
She further alleged that according to the Green Card issued to her she had been
employed and resident in the USA for two and half (2 ½) years with effect from
26 April 2007. She claimed she was, therefore, a bona fide returning
resident with a well document status both in Zimbabwe and the USA intending to
now permanently settle in Zimbabwe which is her domicile of origin. She
had not previously claimed, or been granted any rebate in respect of any goods
in all her previous visits to Zimbabwe whilst resident in the USA.
Applicant stressed that she was resident in the USA for a period of not less
than 2 years since according to the Green Card she was resident there for two
and half years with effect from 26 April 2007.
The applicant acknowledged that it had been brought to her attention that in
terms of section 196 of the Customs and Excise Act, in ordinary civil actions
against the Commissioner at least 2 months notice of intention to institute
litigation against the Commissioner for anything done or omitted to be done in
terms of the Act, must be given as provided in the State Liabilities Act [Chapter
8:15]. However, because the applicant held the view that this matter was
urgent the requisite notice was waived in terms of the provisions of the State
Liability Act [Chapter 8:15]. She further submitted that this court was
in any event expressly empowered to deal with the matter before it on the
merits in terms of section 14 of the High Court Act [Chapter 7:06] whose
provisions provide as thus:
“14. High Court may determine future or contingent
rights
The
High Court may, in its discretion, at the instance of any interested person,
inquire into and determine any existing, future or contingent right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon such determination.”
She then cited the case of Johnsen v Agricultural Finance Corporation
1995 (1) ZLR 65 (SC) and Ex parte Chief Immigration Officer 1994 (1) SA
370 (ZS) and concluded that this was a proper case where this court ought to
exercise its power to grant a declaratory order and grant her the relief she
prayed for.
The respondent vehemently argued that applicant did not qualify for the
immigrant's rebate and raised two points in limine namely (a)
prescription and (b) no notice to institute civil proceedings given.
Under the first head respondent submitted that this application by the
applicant against the respondent was prescribed in terms of section 196 (2) of
the Act which provides thus:
“(2) Subject to subsection 12 of section 193, any proceedings referred to in
subsection 1 shall be brought within eight months after the cause of action
thereof arose. …”
It is common ground that the cause of action arose on 23 February 2010.
Proceedings should have been instituted no later than 24 October 2010.
Applicant should have instituted these proceedings within the mandated eight
months period. She did not. Instead, she only instituted these
proceedings on 29 November 2012 a period in excess of 2 years and one month.
On 26 May 2010 applicant filed a court application against the Director of
Customs and Excise under case HC 853/10. The attention of the applicant
was drawn to the fact that she had sued a non-existent person called “The
Director of Customs and Excise”. She had cited a respondent who did not
exist.
The position of Director of Customs and Excise was abolished in 1999 by Act
17/1999 by the introduction of the Revenue Authority in terms of the Revenue
Authority Act [Chapter 23:11].
She then filed a notice of withdrawal on 26 November 2012 and tendered costs in
the sum of US1 200,00 which he has not even paid to this date.
The respondent makes the point that prescription which began to run on 24
October 2010 has not been interrupted. Respondent cited the provision of
section 19 (3) (a) of the Prescription Act [Chapter 8:11] which recite that:
“(3) Unless the debtor acknowledges liability, the interruption of prescription in
terms of subsection (2) shall lapse and the running of prescription shall not
be deemed to have been interrupted if the creditor – (a) does not successfully
prosecute his claim under the process in question to final judgment.”
As alluded to earlier in this judgment, applicant did not prosecute her claim
under case number HC 853/10 to final judgment. She withdrew it on 26
November 2012.
The rights that the applicant sought to invite this court to determine were
prescribed and extinguished. Cadit questio. There are no
existing, future or contingent rights to determine. The court will not
decide abstract, academic or hypothetical questions unrelated to any existing,
future or contingent right. See Munn Publishing (Private) Limited
v Zimbabwe Broadcasting Corporation 1995 (4) SA 675 at page 680A.
The second point in limine related to failure by the applicant to give notice
to institute civil proceedings as provided by section 196 (1) of the Act which
reads:
“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].
These provisions expressly and
directly prohibit any litigation against the State, Commissioner or any
officer, for anything done or omitted to be done by the state and named
officials under the Customs and Excise Act or any other law for that matter
relating to customs without the requisite notice being given.
The applicant applied for an immigrant's rebate in terms of the Customs and
Excise Act as read with the regulations relating to customs and excise.
The application was dismissed by the officials acting in terms of the Act and
regulations there under. She has instituted proceedings to be declared as
qualified for the immigrant's rebate in respect of the goods detained by the
officers contrary to the prohibition of the law. That is void and of no
effect. INNES CJ stated in Schierhout v Minister of Justice
1926 AD 99 at 109 that:
“It
is a fundamental principle of our law that a thing done contrary to the direct
prohibition of the law is void and of no effect.”
Applicant had argued that this court was empowered to exercise its discretion
in terms of section 14 of the High Court Act [Chapter 7:06] to enquire into and
determine any existing, future or contingent right or obligation. This
court, however, is not empowered to over ride the provisions of other
legislation in the land. In particular the mandatory provisions of
sections 196 (1) and 196 (2) of the Act.
The fact that she is seeking a declaratur does not entitled her to disregard
the above peremptory provisions of the Customs and Excise Act under which she
sought to found her rights in the first place. She must comply with the
law.
The respondent concluded that this application was clearly an abuse of the
court process in the circumstances and should be dismissed with costs on
attorney and client scale. I agree.
In summary this court holds that, the applicant's application to be declared as
qualified in terms of section 105 of Statutory Instrument 154/2001 as amended
by Statutory Instrument 13/2003 for the immigrant's rebate in respect of the
goods detained by the Zimbabwe Revenue Authority officials was long prescribed.
I hold further that failure to give notice to institute proceedings against the
Zimbabwe Revenue Authority was done contrary to the direct prohibition of the
law and was ipso facto void and of no effect.
The need to deal with the merits of the matter does not arise in the light of the
above findings.
In the result, the application is hereby dismissed with costs on an attorney
and client scale.
Cheda &
Partners, applicant's legal practitioners
Coghlan & Welsh respondent's legal practitioners
