The
applicant is a Zimbabwean citizen who has been resident in Namibia
since 1998 when he accompanied his father who was employed by the
Namibian Government. As such, he enjoyed permission to remain in
Namibia by virtue of being part of a family. His father's contract
of employment terminated on or about 31 December 2010. Temporary
residence permits were endorsed in his passport until 31 December
2010. Whenever his father's contract of employment was renewed, the
applicant's permit was also extended. After his father's contract
of employment expired in 2010, the Namibian Government extended the
temporary residence permit for his family, including the applicant,
for the purposes of winding up their affairs. This was done in
writing although there was no such endorsement to this effect in
their passports.
The
applicant contends that his temporary residence in Namibia subsisted
until his final departure on 3 September 2011. Prior to this final
departure, the applicant returned to Zimbabwe on a visit on 30
January 2011.
In
August 2011, the applicant had purchased a motor vehicle from a
dealer based in Japan. He paid for it in full on 29 August 2011. Upon
his return to Zimbabwe, through Kazungula Border post, he was
admitted into Zimbabwe as a returning resident coming back to resume
permanent residence in Zimbabwe. His passport was endorsed as such.
As a returning resident, the applicant was eligible for an immigrant
rebate in respect of his personal effects - including one motor
vehicle. The applicant's motor vehicle arrived at the Beit Bridge
border post on 19 November 2011.
The
first respondent detained it.
The
applicant approached the first respondent's offices to make
representations and claim the motor vehicle under the immigrants'
rebate scheme. His representations were denied on the pretext that he
did not qualify for such rebate as he had finally returned to
Zimbabwe on 30 January 2011. His appeal to the second respondent
against this ruling did not meet with success nor was it responded
to. Instead, they demanded payment of duty in the sum of US$2,907= or
R22,460= over and above storage charges of US$410= per day.
The
respondents, on the other hand, contend that the applicant was
disqualified from claiming a returning resident's rebate since by
the time he acquired the motor vehicle in question, on 29 August
2011, he was no longer lawfully resident in Namibia. In dismissing an
appeal by the applicant, the first respondent wrote to the applicant
in the following terms:
“Having
carefully considered the appeal, I wish to advise that the appeal has
not been successful for the following reasons;
Section
105(1)(b) of the Customs and Excise (General) Regulations, in S.I.154
of 2001, defines 'time of arrival' in relation to an immigrant
who has previously resided or has been employed in Zimbabwe and who
has been on contract of employment, the first occasion on which he
returns to Zimbabwe after the expiry of such contract; or if he has
been on an extended absence for any other reason, the first occasion
on which he returns to Zimbabwe.
Your
client came back to Zimbabwe on 30th
of January 2011 because his residence permit in Namibia had expired,
and, therefore, was not “legally resident” in Namibia after 30th
of January 2011. The Ministry of Home Affairs in Namibia, in a letter
dated 4 February 2011, specifically rejected your client's
application for an extension of stay and gave him 30 days to wind up
and leave the country.
The
fact that your client re-entered Namibia on the 22nd
of August 2011, on a 'visitor' permit, underlines the fact that
he was no longer a legal resident of Namibia and his time of arrival
he remains a fugitive of January 2011 which was
'the
first occasion'
he returned to Zimbabwe after the expiry of the father's contract
of employment which was tied to the appellant's resident permit.
After
the expiry of the permanent resident permit, your client naturally
reverted to his Zimbabwe permanent resident status and this occurred
on the 30th
of January 2011 when immigration correctly endorsed the “RR” in
his passport.
I
therefore advise that duty and storage charges remain payable on the
vehicle.”
Faced
with this attitude, the applicant has applied to this court for an
order in the following terms:
1.
That the decision of the second respondent, rejecting the applicant's
claim for immigrants' rebate, be and is hereby set aside.
2.
That the first respondent be and is hereby ordered to release the
applicant's motor vehicle without any conditions.
3.
The first respondent pays the costs of suit on an attorney and client
scale.
In
their heads of argument resisting the grant of the order sought, the
respondents argue that since the applicant's father's work permit
expired on 30 December 2010, this becomes the date on which the
applicant's residence permit expired for the purpose of the law.
However, the respondents accept that when the applicant's father
was denied a work permit he was given 90 days, from 19 April 2011,
within which to exclusively wind up his affairs and depart from
Namibia. Therefore, according to the respondents, the applicant's
father would have been staying in Namibia illegally from 1 August
2011. Consequently, so the argument went, the applicant would have
similarly been illegally staying in Namibia. On the applicant's
return to Zimbabwe on 30 January 2011, he was accepted as a
“returning resident” hence his lengthy stay in Zimbabwe from that
date until he returned to Namibia on 22 August 2011. On that occasion
he was accepted as a “visitor” and given until 5 September 2011
to remain in Namibia.
This
matter turns on when exactly was the applicant's time of arrival
for the purposes of section 105 of the Customs and Excise (General)
Regulations, S.I.154 of 2001. Was it 30 January 2011, as submitted by
the respondents, or 3 September 2011 as submitted by the applicant?
If
I find that the applicant arrived in Zimbabwe on the first occasion
on 30 January 2011, then the issue whether he qualifies for a
returning resident's immigration rebate does not arise. It will
only arise if the court finds that, for the purposes of the Customs
and Excise (General) Regulations, S.I.154 of 2001,
the applicant arrived in Zimbabwe on 3 September 2011.
The
Customs
and Excise (General) Regulations, S.I.154 of 2001 define
'time of arrival' for the purposes of determining whether a
person qualifies for an immigrant's rebate as follows:
“'time
of arrival' means -
(a)
In relation to an immigrant who has not previously resided or been
employed in Zimbabwe, the first occasion on which he enters Zimbabwe;
the first occasion on which he enters Zimbabwe after the grant of his
employment or residence permit:
Provided
that the time of arrival of a person who enters Zimbabwe as a
visitor, but remains to take up employment or permanent residence and
does not depart from Zimbabwe, shall be deemed to be the first
occasion he imports any personal and household effects and other
goods in terms of this section within three months from the date of
grant of his employment or residence permit;
(b)
In relation to an immigrant who has previously resided or been
employed in Zimbabwe and who -
(i)
Has been on a course of study, the first occasion on which he returns
to Zimbabwe after successfully completing such course of study; or
(ii)
Has been on contract employment, the first occasion on which he
returns to Zimbabwe after the expiry of such contract; or
(iii)
Has been on an extended absence for any other reason, the first
occasion on which he returns to Zimbabwe:
Provided
that the time of arrival of a former resident who enters Zimbabwe as
a visitor and does not depart from Zimbabwe shall be deemed to be the
first occasion on which he imports any personal and household effects
and other goods in terms of this section within three months from the
grant of his permanent returning resident status;
(c)
In relation to a former diplomat who remains in Zimbabwe to take up
employment or permanent residence, the first occasion he imports any
personal and household effects and other goods in terms of this
section within three months from the date of grant of his new
employment permit or residence permit.”
The
respondents contend that the applicant was not resident in Namibia by
virtue of him undertaking some studies or employment. He was staying
with his parents. As such, for the purposes of the Customs
and Excise (General) Regulations, S.I.154 of 2001,
he was on an extended absence for any other reason contemplated by
paragraph (b)(iii) which defines 'time of arrival'.
In
terms of the said paragraph, the “time of arrival” of a person
who has been on an extended absence for any other reason is the
first occasion
on which he returns to Zimbabwe.
The
respondents argue that the applicant came to Zimbabwe at a time when
his father's permit had expired. He came back as a returning
resident and was accepted as such by Zimbabwe immigration
authorities. He was not accepted into Zimbabwe as a visitor when he
came on 30 January 2011. If he had been accepted as a visitor, his
passport would have been so endorsed and he would have been allowed
up to a maximum of 30 days usually permitted or granted to
Zimbabweans permanently resident in other countries. The applicant's
passport does not bear an endorsement to suggest that he was given an
extension of stay in Zimbabwe as a visitor.
In
my view, this is quite a strong argument especially when literally
read in the context of the thrust of the Customs
and Excise (General) Regulations, S.I.154 of 2001.
Interpreted strictly, this paragraph places the burden to declare a
status on the returning resident. He must, without being warned of
the consequences, elect the status under which his papers, upon
re-entry into Zimbabwe, ought to be processed. The returning resident
is presumed, by this interpretation, to be aware of the consequences
of failure to indicate whether one wishes to be treated as a visitor
or as a permanent returning resident who wishes to resume his
permanent stay in Zimbabwe.
In
my view, if this was intended, the Customs
and Excise (General) Regulations, S.I.154 of 2001 would
have said so.
The
fact that there was no endorsement that the applicant was accepted as
a visitor does not, in my view, imply that he was accepted as a
returning resident. If this were so, the corollary of this ought to
apply: there ought to have been such an endorsement by the
immigration authorities to that effect. Even if there was such an
endorsement, in my view, the phrase “the first occasion on which he
returns to Zimbabwe” may be interpreted to mean that where a
Zimbabwean citizen resident abroad wishes for some reason, say
vacation, holiday, bereavement and so on; once he sets foot into the
country, but without the intent to settle permanently, then he
forfeits his or her entitlement to a returning resident's rebate
when he/she finally returns home. This clearly could not have been
the intended object of the Customs
and Excise (General) Regulations, S.I.154 of 2001.
Zimbabweans resident abroad are aware that when they finally return
they will be entitled to the rebate. This final date of return can
only be ascertained from the returning resident himself or herself.
The
general expectation is that it is up to the immigration official to
ask a returning resident whether he has come back for good or not. If
he has, he naturally will indicate this and will be interviewed for
the purpose of deciding whether he wishes to exercise the right to an
immigrant's rebate there and then or at some later stage when his
household goods arrive in the country.
The
respondents also rely on their interpretation of the endorsements in
the applicant's passport by the Namibian immigration authorities in
urging this court to find that the applicant was accepted into that
country as a visitor on 22 August 2011.
I
decline that invitation.
It
is merely an expression of opinion as to what the practice in Namibia
is on the issue. There is no basis for this court to accept that
indeed that interpretation is correct. No expert opinion evidence
regarding this aspect of Namibian law or practice was tendered in
support of the averment.
Even
if that interpretation were correct, that alone, in my view, would
not detract from the applicant's status in Zimbabwe on 3 September
2011 when he was interviewed, and accepted, as a returning resident.
There
is no history of such an interview prior to this one.
It
seems to me that the respondents would have been on firmer ground
were they able to point to such an interview where the applicant's
decision to return permanently was established without the applicant
claiming a rebate within the period stipulated by the Customs
and Excise (General) Regulations, S.I.154 of 2001.
The reason for coming to this conclusion is as follows;
This
court cannot be asked to consider the applicant's status in a
foreign country in an effort to persuade the court to interpret the
applicable regulations in Zimbabwe when clearly the permanent
residence status was granted to that person and endorsed in his
passport as such. The applicant's passport was endorsed “Acc R/R”
upon his return to Zimbabwe on 3 September 2011. The applicant argues
that this denotes that the respondents accepted him as a permanent
returning resident. It seems to me that it was only then that the
first respondent inquired of the applicant whether he wished to
exercise his right to an immigrant's rebate since he was returning
to Zimbabwe after “an extended period of absence for any other
reason.” The Customs
and Excise (General) Regulations, S.I.154 of 2001 provide
that the 'time of arrival' of a former resident who enters
Zimbabwe as a visitor and does not depart from Zimbabwe shall be
deemed to be the first occasion on which he imports any personal and
household effects and other goods in terms of this section within
three months from the grant of his permanent returning resident
status. The one interpretation to be given to this provision is that
one must have initially entered Zimbabwe as a visitor and then decide
to remain there and imports his household effects within three months
of having arrived. The other interpretation is that having been
interviewed for the purposes of making a determination on whether the
applicant qualified for an immigrant's rebate the returning
resident must import his goods and household effects within three
months in order to benefit from the permanent returning resident
status in terms of the Customs
and Excise (General) Regulations, S.I.154 of 2001.
On
his return to Zimbabwe, on 3 September 2011, the applicant was
interviewed and an endorsement to that effect made accepting him as a
returning resident. The applicant contends that the respondents
cannot, after granting him the returning resident status, turn around
and claim that he was illegally staying elsewhere so he does not
qualify for the rebate.
His
status in that other jurisdiction, in my view, is not relevant for
the purpose of determining whether the applicant meets the criteria
set out in section 105 of the Customs and Excise (General)
Regulations, S.I.154 of 2001.
I
say this because the Customs and Excise (General) Regulations,
S.I.154 of 2001 spell out the criteria.
The
legality or otherwise of the claimant's status in some other
jurisdiction cannot have been within the contemplation of the framers
of the Customs and Excise (General) Regulations, S.I.154 of 2001. The
Regulations are meant to encourage migration back into Zimbabwe by
benefitting those of the immigrants who have previously been resident
of this country. To give an interpretation that fettered or oppressed
that class for whose benefit the Customs and Excise (General)
Regulations, S.I.154 of 2001 were meant would, in my view, be to
frustrate the object, purpose and intention of the legislature. The
Customs and Excise (General) Regulations, S.I.154 of 2001 have been
in force for a considerable period. The right to benefit from the
provisions of the Customs and Excise (General) Regulations, S.I.154
of 2001 has created, in my view, a substantive legitimate expectation
for permanent returning residents to Zimbabwe to enjoy the associated
benefits which flow from the Regulations. The authorities
administering the regulations must do so rationally, fairly,
non-arbitrarily and in an unbiased manner. If a denial of a
legitimate expectation, in a given case, amounts to denial of a right
guaranteed or is arbitrary, discriminatory, unfair or biased, gross
abuse of power or violation of principles of natural justice, the
same can be questioned on well-known grounds of review.
In
R
(Bhatt Murphy) v Secretary of State for the Home Department
[2008]
EWCA Civ 755 LORD JUSTICE LAWS expressed how, arising from the
doctrine of legitimate expectation, an abuse of power may be
established:
“A
very broad summary of the place of legitimate expectations in public
law might be expressed as follows.
The
power of public authorities to change policy is constrained by the
legal duty to be fair (and other constraints which the law imposes).
A change of policy which would otherwise be legally unexceptionable
may be held unfair by reason of prior action, or inaction, by the
authority. If it has distinctly promised to consult those affected or
potentially affected, then ordinarily it must consult (the paradigm
case of procedural expectation). If it has distinctly promised to
preserve existing policy for a specific person or group who would be
substantially affected by the change, then ordinarily it must keep
its promise (substantive expectation). If, without any promise, it
has established a policy distinctly and substantially affecting a
specific person or group who in the circumstances was in reason
entitled to rely on its continuance, and did so, then ordinarily it
must consult before effecting any change (the secondary case of
procedural expectation).
To
do otherwise, in any of these instances, would be to act so unfairly
as to perpetrate an abuse of power.”
The
respondents argue that the first occasion on which the applicant
returned ought to be 30th
January 2011.
This
cannot be so for the further reason that the respondents themselves
never sought to establish, on that occasion, whether, by his return
on the date, the applicant wished to be treated as harbouring an
intent to settle permanently or only wished to visit. Had this been
the case, then the applicant's passport would have carried the
endorsement one way or the other. In my view, it is irrational, and
therefore unreasonable, irregular, and unfair to deprive the
applicant a right which accrued to him as a returning resident in the
circumstances of this case.
The
applicant seeks a review of the decision of the second respondent
dismissing his claim under the immigrant rebate on the grounds of
gross irrationality in his assessment of the evidence before him and
misdirection at law in the second respondent's application of
section 105 of the Customs and Excise (General) Regulations, S.I.154
of 2001.
In
Affretair
(Pvt) Ltd v M K Airlines (Pvt) Ltd
1996 (2) ZLR 15…, it is written:
“The
duty of the Courts is not to dismiss the authority and take over its
functions, but to ensure, as far as humanly and legally possible,
that it carries out its functions fairly and transparently. If we are
satisfied it has done that, we cannot interfere just because we do
not approve of its conclusion. But, at the other end of the scale, if
the conclusion is hopelessly wrong, the Courts may say that it could
only have been arrived at by reference to improper considerations or
by failure to refer to proper considerations. In these cases we
reason backwards from the effect to the cause. We say 'the result
is so bizarre that the process by which it was reached must have been
unfair or lacking in transparency.'”
So,
in the result, the courts will expect from administrative bodies
decisions that are:
“1.
Legal, in the sense that they are made within the framework of the
law which empowers them to make the decision, and after the
application of the appropriate criteria laid down in the statute or
statutory instrument;
2.
Rational, in the sense that they are not so wrong as to lead to the
conclusion that they could only have been reached by a failure to
apply the right criteria or by the application, whether deliberately
or not, of the wrong criteria.
3.
Procedurally proper, in the sense that the appropriate procedures
required by the statute have been followed and that the principles of
natural justice have been observed.
4.
Justifiable, in that the administrative body will give its decision,
at least when the decision is challenged, with reasons. The purpose
of requiring reasons is that the Court can then more readily
determine the propriety and reviewability of the decision.”
See
also Metsola
v Chairman of the PSC & Anor
1989 (3) ZLR 147; Patriotic
Front-ZAPU v Minister of Justice, Legal & Parliamentary Affairs
1985 (1) ZLR 305 (SC)…,.; 1986 (1) SA 532 (ZS)…,.
The
decision by the respondents qualifies, in my view, to be described as
“so outrageous in its defiance of logic or accepted moral standard
that a sensible person who had applied his mind to the question to be
decided could have arrived at it.” Per LORD DIPLOCK in Council
of Civil Service Unions (CCSU) & Ors v Minister for the Civil
Service
[1984] 3 All ER 935 (HL)…,.
The
applicant was an immigrant because he was on an extended absence from
Zimbabwe for more than two years. In order to establish whether he
was returning permanently or not, the respondents were enjoined to
interview him as they did on 3 September 2011. The respondents did
not establish such purpose from him on 30 January 2011. They were not
obliged to if the applicant did not indicate that he wished to claim
a benefit under the Customs
and Excise (General) Regulations, S.I.154 of 2001.
This was the only occasion on which the applicant was granted
permanent residence. Accordingly, for the purpose determining “time
of arrival” the “first occasion” of his return for the purpose
of permanent returning residence status became 3 September 2011.
As
to whether by 3 September 2011 the applicant had fully paid for the
motor vehicle, I come to the conclusion that the correct position is
that he had fully paid for it by 29 August 2011 as reflected by the
FNB invoice. He therefore owned the vehicle from 29 August 2011, and,
consequently, was entitled to claim an immigrant's rebate at the
time of arrival on 3 September 2011.
I
am unable to find that the applicant was an illegal resident of
Namibia. There is just no evidence of this besides the bald claim by
the respondents. The respondents' assertion in this regard is
illogical and therefore unreasonable and irrational in the sense that
no evidence of this claim was tendered in proof of the allegation.
In
any event, in my respectful view, the applicant's status is as it
presented itself on 3 September 2011. There was no legal impediment
to his claim for an immigrant's rebate. The refusal to accede to
his claim for a rebate in terms of the Customs
and Excise (General) Regulations, S.I.154 of 2001,
seen in this light, is unreasonable and therefore irrational.
Consequently that decision is set aside.
It
is ordered as follows;
“1.
That the decision of second respondent rejecting the applicant's
claim for immigrants' rebate be and is hereby set aside.
2.
That the first respondent be and is hereby ordered to release the
applicant's motor vehicle without any conditions.
3.
The first respondent pays the costs of suit.”
