MUTEMA J: This matter came before me via the chamber
book on the basis of perceived urgency. The applicants are desirous of a
provisional order whose interim relief is couched in this vein:
“Pending determination of this
matter, the first and second applicant is (sic)
granted the following relief:
1.That the motor vehicles impounded by
the respondent from the second applicant being Isuzu KB 250 double cab,
Registration ABG 3091 and Isuzu KB 250 ABI 6481 double cab, be and are hereby
ordered to be released to second applicant forthwith or upon service of this
Order.
2. That the respondent pays costs of
suit on a legal practitioner/client scale”.
The final order sought is thus
worded:
“The respondent should show cause
why a Final Order should not be made in the following terms:
1. That the second respondent (sic) be and is hereby ordered to sought
(sic) out its differences with the
first applicant, if at all, and not to impound cars from 3rd parties
which cars the respondent granted Customs Clearance Certificates upon payment
of duty by the first applicant”.
The
bare bones of the matter are these:
First
applicant imported the two motor vehicles mentioned in the provisional order
which it later sold to the second applicant. These were some of the many
vehicles imported by the first applicant between 2007 and 2009. Upon
importation the respondent asked the first applicant to pay duty of 25% in
foreign currency. For the two vehicles in question duty was paid in May, 2008
and customs clearance certificates were issued. The vehicles were registered
and subsequently sold to the second applicant. Unbeknown to the respondent's
officers duty payable had been hiked to 60% via statutory instrument 58 of 2008
gazetted on 11 April, 2008. When the second applicant wanted to effect change
of ownership, the respondent discovered that the duty that had been paid for
the vehicles was not enough by 35%. Respondent then impounded the said vehicles
pending payment of the difference in duty by the second applicant. This was
done in terms of ss 226 and 192 of the Customs and Excise Act, [Cap 23:22]. This action did not go down
well with the applicants, hence the urgent chamber application on a certificate
of urgency.
Before
delving into the merits of the application, it behoves me to determine whether
or not the matter is urgent.
In
General Transport and Engineering (Pvt)
Ltd and Ors v Zimbabwe Banking Corporation 1992(2) ZLR 301 (HC) litigants
were reminded to heed that the preferential treatment of allowing a matter to
be dealt with urgently is only extended, if good cause is shown for treating
the litigant in question differently from most litigants. Coupled with this is
the allied problem stated in Kuvarega v
Registrar-General & Anor 1998(1) ZLR 188 (HC) that there is a tendency
among some legal practitioners to rush to certify that a matter is urgent when
it is anything but urgent.
Now,
looking at the certificate of urgency by Wilson Tatenda Manase, I have not been
able to glean anything akin to urgency at all. All there is are allegations
that not only has the respondent's action “affected the operations of the
applicant's customers but has caused great financial prejudice, inconvenience
and disrepute of the applicant's customers. Irreparable harm continues to be
caused to 3rd parties like Econet and NUST. Despite writing a letter
to the respondent they never responded to same”.
The
papers that were filed and even the oral submissions made are deafeningly
silent with regard to when exactly the two vehicles were impounded by the
respondent. Obviously the date(s) of the impound is known to the applicants but
for reasons only known by them this material information was omitted. This
might have been designedly overlooked in order to buttress the alleged urgency.
The letter alluded to was written on 30 March, 2010. It is not known how long
following the impounding of the vehicles was this letter written. Even then,
from that time (30 March, 2010) to 15 July, 2010 when this application was
lodged is a period of 31/2 months. Surely if the matter were urgent
the applicants would not have delayed for that long. If the matter were urgent
the applicants would have immediately and diligently pursued it via the chamber
book as soon as the vehicles had been impounded.
What
is contained in the certificate of urgency are sheer unsubstantiated averments
and inconvenience. This per se cannot
and should not entitle the applicants to preferential treatment over most
litigants whose cases are in the queue before this Court. The applicants should
accordingly wait to have their turn and their day in court.
Having
found that the matter is not urgent, there is no need to deal with the merits
of the application.
In
the result, the application be and is hereby dismissed with costs.
Manase
& Manase, applicants' legal
practitioners
