MAFUSIRE
J:
1.
These were three opposed applications heard as one case. The globular
relief sought was just about the same. Some facts differed here and
there. Counsel agreed this was not in any material respects. They
therefore agreed it would be practical for the cases to be combined.
2.
The proposed relief was poorly crafted. Without reading the full
applications into them, the draft orders by themselves were virtually
meaningless. For expedience, I have simply picked the quintessence of
the remedy sought by the applicants from their affidavits, which
themselves were prolix, argumentative and could easily pass off as
heads of argument.
3.
Apart from costs of suit, the essence of the main relief sought by
the applicants was an order declaring as ultra
vires
the Constitution, section 192[1] of the Customs and Excise Act, Cap
23:02
[“the
Customs Act”].
4.
Ancillary relief included an order declaring as unlawful, the
seizure, or attempted seizure, by the Zimbabwe Revenue Authority
[“ZIMRA”],
of certain second hand Toyota Fortuner motor vehicles imported by the
applicants in November 2015; March 2016 and October 2016. The
applicants also sought the immediate and unconditional return of such
of the motor vehicles as might have been seized by ZIMRA; the
nullification of ZIMRA's call for extra duty, penalties and
interest, and the reimbursement of such of the amounts as the
applicants might have paid already.
5.
ZIMRA is the central collector of revenue for Government. It was
established as such by the Revenue Authority Act, Cap
23:11.
6.
Except for some additional detail, or some not so consequential
variation here and there, the factual background in all the three
matters was largely identical, and in most material respects common
cause. The brief facts, as summarised by myself were these. Through
relatives based in that country the applicants bought the vehicles in
South Africa and imported them to Zimbabwe.
7.
At the border, the applicants, through their customs clearing agents,
declared certain values on the vehicles for the purposes of duty, as
required by the Customs Act.
8.
Except for Case 1: Main
Road Motors v Zimbabwe Revenue Authority & Ors
HC139/17, the applicants say ZIMRA's proper officers rejected the
declared values and calculated their own, which were higher. A proper
officer is the designated officer at a port of entry.
9.
In Case 1, the proper officer accepted the declared value. The amount
of duty as calculated by him was duly paid. The vehicle was cleared
and released to the applicant and it became its property. That was on
23 November 2015.
10.
In Case 2: Sylvia
Choruwa v Zimbabwe Revenue Authority
HC138/17, Sylvia Choruwa [“Sylvia”],
the applicant, says the value of her vehicle as declared by her agent
was R469,000. That was picked from some tax invoice. The duty on such
a value would have been US$17,000. But the proper officer raised the
value. The duty on the raised value came to US$20,800. The higher
amount of duty was paid. The vehicle was cleared. The agent delivered
it to her. That was on 22 March 2016. She subsequently got the
vehicle registered in her name.
11.
In Case 3: Patrick
Muguti v Zimbabwe Revenue Authority
HC137/17, the declared value was R200,000. The applicant [“Patrick”]
says this was extracted from a vehicle purchase document. The proper
officer rejected it. He raised it to R240,000-00. The duty on the
raised value was US$10,180. It was duly paid. The vehicle was
cleared. The agent delivered it to Patrick. That was on 31 October
2016. Patrick said from then on the vehicle became his personal
property.
12.
Subsequently, in November 2016, ZIMRA impounded, or threatened to
impound and embargo the vehicles unless and until additional duty, as
re-assessed by its officers, together with penalties for late
payments and interest, were all paid in full.
13.
For Main Road Motors, this development was coming a year after the
vehicle had been cleared and released to it. For Sylvia this was
eight months later. For Patrick this was after six days.
14.
ZIMRA said in post clearance audits, its officers had discovered
several anomalies in the declarations of value by the applicants, or
their agents, for customs clearance purposes. Basically it said the
applicants had undervalued their vehicles. They had given false
information concerning the vehicles' models and mileage, basically
making the cars appear much older. For that reason, ZIMRA had
recalculated the values of the vehicles using guidelines in the
Customs Act and had re-assessed the duty. It had gone on to raise
penalties and interest on the new amounts.
16.
ZIMRA says post clearance audits are authorised by section 223A of
the Customs Act. In subsection [4] ZIMRA is empowered to undertake a
post-clearance audit of goods cleared at entry in order to satisfy
itself of the accuracy of any declarations made on them. In terms of
subsection [1], a declaration made for the purposes of clearance of
goods at ports of entry which contains any omission, inconsistency,
error or misrepresentation shall be invalid whether or not such
declaration has been accepted by an officer. Subsection [3] says that
any goods not properly declared shall be deemed to be uncustomed
goods. Uncustomed goods, among other things, are dutiable goods on
which the full amount of duty has not been paid.
17.
In terms of section 192 of the same Act, ZIMRA is empowered to seize
or embargo goods in respect of which the correct amount of duty has
not been paid.
18.
ZIMRA, through its deponent, one William Gadzikwa [“William”],
at the relevant time the Acting Regional Manager, Customs and Excise
Region 3, and in equally expansive and argumentative affidavits,
explained that owing to the large number of goods that pass through
the borders requiring customs clearances, ZIMRA has an enormous task
to check, scrutinise, assess and collect duty. Mistakes are sometimes
made. It was in appreciation of the difficult circumstances that its
officers operate under that the Legislature, in section 223A and
others, clothed ZIMRA with powers to conduct post clearance audits
and to recover any underpayments of duty.
19.
The applicants did not accept ZIMRA's demands. In February 2017
Main Road Motors and Sylvia filed an urgent chamber application to
bar ZIMRA pendente
lite
from impounding and embargoing their vehicles. The lite
said
to be pending were these applications.
20.
The urgent chamber applications failed on the points in
limine.
Under judgment HMA17-17 I dismissed them on three grounds, namely,
that the proper respondent had not been cited; that the certificate
of urgency was incurably; and that the matters were not urgent, in
the sense that the applicants had themselves not treated them as
such. The details appear in the judgment.
21.
In
casu,
the applicants do not accept ZIMRA's argument about post clearance
audits. They say that once the vehicles had been customs-cleared and
released to them, they had become their personal properties. Any
attempt to seize and embargo them as ZIMRA had done, or had purported
to do, was unlawful, because such conduct violated their inalienable
right to property as enshrined in section 71 of the Constitution.
22.
Section 71[3] of the Constitutions says:
“Subject
to this section and to section 72, no person may be compulsorily
deprived of their property except where the following conditions are
satisfied
–”
23.
ZIMRA justified its actions on section 192 [1] of the Customs Act.
William stressed that the power to seize and embargo goods in
post-clearance audits can be exercised at whatever place, and from
whomsoever those goods are found, within a period of six years from
the date of importation.
24.
In full, section 192[1] of the Customs Act reads:
“192
Embargo on goods which have passed out of customs control
[1]
If at any time an officer has reason to believe that the correct duty
has not been paid on any goods which have passed out of customs
control, or that there has been or may be in respect of those goods a
contravention of any of the provisions of this Act or any other law
relating to the importation of goods, he may, within
a period of six years from the date of importation,
removal from bond or delivery from factory in the case of excisable
goods, seize or place an embargo on those goods, wheresoever or in
possession of whomsoever found, and until the embargo has been
withdrawn no person shall remove such goods from the place indicated
by the officer or in any deal therewith, except with the permission
of the officer”
[emphasis
by Counsel for both parties].
25.
The applicants say section 192[1] is ultra
vires
section 68[1] of the Constitution.
Section 68[1] of the Constitution says:
“Every
person has a right to administrative conduct that is lawful, prompt,
efficient,
reasonable,
proportionate,
impartial and both substantively and procedural fair.”
[emphasis
by applicants' Counsel].
26.
The applicants argued that seizing and embargoing goods one year [in
the case of Main Road Motors] and eight months [in the case of
Sylvia] after customs clearances, was the antithesis of promptness,
efficiency and reasonableness.
27.
The applicants also argued that once a ZIMRA officer has assessed the
duty on imported goods; has received the duty paid by the importer,
and has cleared the goods, he becomes functus
officio,
and cannot go back to his decision to review it again.
28.
ZIMRA responded in full to the merits of the applications, but also
raised several technical objections.
29.
In respect of Cases 1 and 2, ZIMRA's first technical objection was
that the applicants had approached the court with 'dirty hands'
and were therefore not entitled to be heard because they had violated
the fiscal principle that says pay-now-and-argue- later, which is
enshrined in section 119 of the Customs Act.
This
section reads:
“119
Appeals against valuation of goods
[1]
Any person who is aggrieved by any determination of the Commissioner
in terms of this Part may, subject to section one
hundred and ninety-six and
after payment of the amount of any duty or tax demanded by the
Commissioner in respect of the goods concerned,
appeal to the High Court against such determination
[emphasis
by respondent's Counsel].
[2]
If, on an appeal in terms of this section, the High Court determines
that a lesser amount was payable by way of duty or tax than the
amount actually paid by the appellant in terms of subsection [1], the
Commissioner shall refund the amount overpaid in accordance with
section one
hundred and twenty-five.”
30.
In respect of Case 1 in particular, William said despite Patrick's
claim to the contrary, Main Road Motors “… had not paid a dime …”
of the top-up duty required. In respect of Case 2, he said despite
being granted a special dispensation to pay in monthly instalments
over six months, Sylvia had only made a single payment, which was not
even a full instalment.
31.
ZIMRA's second technical objection to Cases 1 and 2 was that the
applications being for review, had become time-barred by virtue of
Order 33 Rule 259 of the Rules of this Court. In terms of this Rule,
an application for review shall be instituted within eight weeks of
the termination of the action or proceeding in which the illegality
complained of allegedly occurred.
32.
All the three applications were filed with this court on 22 May 2017.
In respect of Cases 1 and 2, the date of the termination of the
actions complained of was 28 November 2016. Thus, the applications
were allegedly six months out of time. None of the applicants applied
for condonation.
33.
ZIMRA's first technical objection in respect of Case 3 was that the
applicant was non-suited by reason of his failure to comply with the
mandatory provision of section 196[1] of the Customs Act. This
provision requires that sixty days' notice be given before any
civil proceedings are instituted for anything done, or omitted to be
done by the Commissioner or an officer of ZIMRA.
34.
ZIMRA's second technical objection in Case 3 was that the
application had also become time barred by reason of the provisions
of section 193[12], as read with section 196, of the Customs Act.
Section 193[12] prescribes that any proceedings before this court for
the recovery of seized goods must be instituted within three months
of the date when the notice of seizure was issued, after which period
no such proceedings may be instituted.
35.
William pointed out that Patrick's vehicle was seized on 2 November
2016. His application having been filed on 22 May 2017 was three
months out of time.
36.
The third technical objection by ZIMRA in respect of Case 3,
particularly in relation to the remedy to have the seized vehicle
released, and the reimbursement of the money charged as penalty and
interest, was that this relief had since been overtaken by events in
that after Patrick had paid the additional duty; the fine; the
penalty and the storage charges, the vehicle had been released to
him. As such, an order of court in this regard would amount to a
brutum
fulmen.
37.
At the hearing, Counsel agreed that the points in
limine,
or at least some of them, went to the root of the applications. As
such, they further agreed that a determination be made on them before
the merits could be considered. I agreed.
38.
The main thrust of Mr Hungwe's
argument, for the applicant, as I understood him, and in my own
words, was that what was at stake in these three applications was the
enforcement of a fundamental right and freedom as provided for in
section 85 of the Constitution.
39.
Mr Hungwe
further argued that the right to administrative justice and access to
the courts, in terms of section 68 and section 69 of the
Constitution, is a fundamental right that is enshrined in the
Declaration of Rights under Chapter 4 of the Constitution, and that,
as such, it should not be unnecessarily impeded by obstructive and
restrictive legislation and rules of procedure.
40.
Section 85 of the Constitution says:
“85
Enforcement of fundamental human rights and freedoms
[1]
Any of the following persons, namely -
[a]
any person acting in their own interests;
[b]
any person acting on behalf of another person who cannot act for
themselves;
[c]
any person acting as a member, or in the interests, of a group or
class of persons;
[d]
any person acting in the public interest;
[e]
any association acting in the interests of its members;
is
entitled to approach a court, alleging that a fundamental right or
freedom enshrined in this Chapter has been, is being or is likely to
be infringed, and the court may grant appropriate relief, including a
declaration of rights and an award of compensation.
[2]
The fact that a person has contravened a law does not debar them from
approaching a court for relief under subsection [1].
[3]
The rules of every court must provide for the procedure to be
followed in cases where relief is sought under subsection [1], and
those rules must ensure that -
[a]
the right to approach the court under subsection [1] is fully
facilitated;
[b]
formalities relating to the proceedings, including their
commencement, are kept to a minimum;
[c]
the court, while observing the rules of natural justice, is not
unreasonably restricted by procedural technicalities; and
[d]
a person with particular expertise may, with the leave of the court,
appear as a friend of the court.
[4]
The absence of rules referred to in subsection [3] does not limit the
right to commence proceedings under subsection [1] and to have the
case heard and determined by a court.”
41.
Mr Hungwe
argued that jurisprudence or principles developed or affirmed in case
law pre-dating the Constitution [which only became effective in 2013]
should defer to the Constitution in the event of a conflict. He said
sub-section [2] of section 85 of the Constitution collapsed the
'dirty hands' principle as espoused in cases such as Associated
Newspapers of Zimbabwe [Private] Limited v The Minister of State for
Information and Publicity in the President's Office & Ors.
In that case CHIDYAUSIKU CJ said:
“This
Court is a court of law, and as such, cannot connive at or condone
the applicant's open defiance of the law. Citizens are obliged to
obey the law of the land and argue afterwards.”
42.
For the respondents, Mr Muzenda
[now MUZENDA J], also as I understood him, and in my own words,
argued that applications are creatures of statutes and of the Rules
of Court. The right of access to the courts is never an issue. But
such right has to be exercised within certain statutory parameters.
Where a statute, for example, prescribes certain procedures to be
taken before someone exercises their right of access to court, or
where the Rules of Court prescribe certain time frames within which
such right of access may be exercised, there is nothing in the
Constitution that says that such requirements are obstructive or an
impediment to the exercise of the right.
43.
Drawing from the Constitutional Court case of Zinyemba
v Minister Lands & Rural Settlement & Anor
Mr Muzenda
further argued that there being an Act of Parliament, namely the
Administrative Justice Act, [Cap 10:28],
to give effect to the rights enshrined in section 68[1] of the
Constitution, as provided for in sub-section [3], section 85 of the
Constitution takes a back seat. It was incompetent for the applicants
to purport to found a cause of that section. The principle of
avoidance dictates that remedies should be found in legislation
before resorting to constitutional remedies. The principle of
subsidiarity holds that norms of greater specificity should be relied
on before resorting to norms of greater abstraction.
44.
I note that to ZIMRA's second objection in Cases 1 and 2, namely,
that the applications were out of time by reason of the provisions of
Rule 259, there was practically no reply. This objection was first
raised in the opposing affidavits. Neither Patrick, on behalf of Main
Road Motors in Case 1, nor Sylvia in Case 2, filed any answering
affidavits. None of them sought condonation. Only in the heads of
argument, by their legal practitioners of record, was this reticent
and ambivalent reference to the point:
“A.
Failure
to Comply with Order 33 Rule 259 of the High Court Rules, 1971
The
Applicant, after the cause of action arose, he [sic]
gave the mandatory Notice of Intention to Sue, under the State
Liabilities Act [Chapter 8:15],
which after the expiration of the sixty days, this Application for
Review, contesting the constitutionality was launched.”
45.
Rule 259 says:
“259.
Time within which proceedings to be instituted
Any
proceedings by way of review shall be instituted within eight weeks
of the termination of the suit, action or proceeding in which the
irregularity or illegality complained of is alleged to have occurred:
Provided
that the court may for good cause shown extend the time.”
46.
As early as their urgent chamber applications in February 2017, the
applicants indicated that they would bring review applications. In
their notices of intention to sue in terms of section 196 of the
Customs Act, the applicants said they were bringing review
applications. Their applications are clearly marked court application
for
review.
So I have wondered how ZIMRA's objection on the basis of Rule 259,
which refers to review applications, led applicants' lawyers to
respond in respect of section 196 of the Customs Act, which refers to
sixty days' notice to sue. There is complete dissonance.
47.
In Case 3, I also note that nowhere does the applicant deal with
ZIMRA's objection relating to the three months' prescription of
section 193[12] of the Customs Act. This point seems to have been
raised by the respondent for the first time in heads of argument. But
nobody else dealt with it expressly at any time afterwards.
48.
As a result, it is my finding that ZIMRA's objections in respect of
the two types of prescription found in Rule 259 of the Rules of
Court, and section 193[12] of the Customs Act, were not dealt with at
all.
49.
Statutes of limitation are a common factor of legal life the world
over. The law helps the vigilant, not the sluggard. The rationale for
the existence of such limitations is expediency. It is logical and
practical that civil suits be brought within certain time frames. In
Stambolie
v Commissioner of Police
GUBBAY
JA, as he then was, drawing from the American case of Chase
Securities Corporation v Donaldson
said:
“Statutes
of limitations find their justification in necessity and convenience
rather than in logic. They represent expedients, rather than
principles. They are practical and pragmatic devices to spare the
courts from litigation of stale claims, and the citizen from being
put to his defence after memories have faded, witnesses have died and
disappeared and evidence has been lost.”
50.
I do not see how section 85 of the Constitution is relevant to
ZIMRA's objections. Even accepting the applicants' argument that
for ZIMRA to do post-clearance audits and to come back to the
applicants for more duty, plus penalties and interest, one year, or
eight months later, is a breach of their fundamental right to prompt
and efficient administrative conduct, I do not see how Rule 259 and
section 193[12] of the Customs Act can be said to be mis-aligned to
section 85 of the Constitution. These provisions do not preclude or
obstruct one's access to the courts, except after the lapse of
certain time frames. They prescribe no formalities.
51.
At any rate, to the rights endowed by section 85 of the Constitution
are certain limitations imposed by section 86 of the same
Constitution. Furthermore, with Rule 259 specifically, where one is
outside the eight weeks period, that is not the end of the matter.
One may still apply for condonation and give reasons why they failed
to act timeously. For good cause shown, the court will extend the
time.
52.
In Nyika
& Anor v Minister of Home Affairs & Ors
TSANGA J declared section 70 of the Police Act, Cap
11:10,
providing for an eight month prescription period within which to
bring proceedings against the State for anything done, or omitted to
be done, by the police, as being inconsistent with section 69[2] and
section 56[1] of the Constitution. Section 69[2] of the Constitution
provides that in the determination of civil rights and obligations,
every person has a right to a fair, speedy and public hearing within
a reasonable time before an independent and impartial tribunal or
other forum established by law. Section 56[1] says all persons are
equal before the law and have the right to equal protection and
benefit of the law.
53.
Noting that the general period of prescription of debts in terms of
the Prescription Act, Cap
8:11,
is three years, the learned judge held that the restrictive period of
prescription in the Police Act is unfair and discriminatory to the
generality of the target populace for a number of reasons, not least
the lack of information and indigence on their part.
54.
The circumstances of Nyika's
case above are different. Unlike in this case, the court's final
conclusion therein was arrived at after a proper and thorough
ventilation of the issues and of the statutory provisions in
question. In this case, there simply has been no cogent response to
the objections by ZIMRA.
55.
In the premises, I find that the applicants are non-suited by reason
of their failure to bring their applications for review within the
eight-week period prescribed by Order 33 Rule 259 of the High Court
Rules, in the case of the applicants in Cases 1 and 2; or within the
three-month period as prescribed by section 193[12] of the Customs
Act, in the case of the applicant in Case 3.
56.
My findings above make it unnecessary for me to consider the rest of
the points in
limine.
Therefore, the applications are hereby dismissed with costs.
18
January 2018
Mutendi,
Mudisi & Shumba,
legal practitioners for the applicants
Muzenda
& Partners,
legal practitioners for the respondents
1.
2004 [1] ZLR 538
2.
2016 [1] ZLR 23 [CC]
3.
1989
[3] ZLR 287 [SC], at p 298C
4.
[1944] 325 US 304
5.
HH181-16
