MTSHIYA J: This is an application wherein
the applicant seeks the following relief:-
“IT IS ORDERED THAT:
1. The respondent shall forthwith
release to the applicant the Crysler Lemis 300C Hemi motor vehicle seized from
the applicant on the 21st October, 2009.
2. The applicant shall not be required
to pay any duty or storage charge in respect of the motor vehicle.
3. The costs of this application shall
be paid by the respondent on the legal practitioner and own client scale”.
The background to the relief sought
is this.
On 12 November 2008 the applicant, a
Zimbabwean citizen who had been living outside the country for five years
returned to the country (Zimbabwe)
through Beitbridge Border Post. He was travelling from the United Kingdom.
On his way back to Zimbabwe
he had passed through Sought Africa where he had purchased a vehicle, namely a
Crysler Lemis 300C Hemi (the motor vehicle). Upon entry into Zimbabwe, the
applicant was granted a rebate on the motor vehicle on the basis that he was a
returning resident. However, on 21 October 2009 the vehicle was seized by
officers of the respondent on the ground that they doubted if indeed he was a
returning permanent resident.
On
2 November 2009 the applicant made representations to the respondent in the
following terms:
“My name is Patrick Musarara a returning
resident from the United
Kingdom. On my way from the United Kingdom, I passed through South Africa and bought the Chrysler Lemis 300C
Hemi, from an auction of repossessed cars at Aucar Auctions, Johannesburg, South Africa.
I drove the car to Zimbabwe
on the 12 November, 2008 through Beitbridge Border Post and got a rebate as a
returning resident.
I am in the process of buying trucks
from USA
for my haulage business which I have just started and this necessitated that I
travel to carry out the transactions which I did. The trucks are due into the
country in January, 2010 from the United States. The papers are
hereby attached for ease of reference.
While I was away, my car was driven
without my authorization on the 21st October, 2009. I had left the
car in safe keeping knowing that this type of a car can easily attract
car-jacking syndicates. Therefore, I truly submit that I did not authorize the
use of the car while I was away on business transaction as stated earlier.
There, I am appealing for your
consideration on the determination of this matter for the release of the car to
me personally. I undertake to ensure that there will not be a repeat of this
nature again and hereby swear to abide by the rules of the rebate.
I pray to God for your favourable
consideration of the mater and have the car released to me”.
On
9 November 2009, after further exchanges of correspondence and interviews, the
respondent gave the following response to the applicant's request for the
release of the motor vehicle;
“Re: Notice of Seizure Number
027411K of 21 October 2009: CHRYSLER LEMIS HEMI: CHASSIS NO. IC3H9E3H67Y51914
I have thoroughly considered your
submission and subsequent interviews in connection with your violation of the
Customs and Excise (General) Regulations Section 105 subs 3. The circumstances
under which the immigrant rebate was claimed indicate that it was claimed
earlier than the date of your return as your passport indicate that you are
spending most of your time in the UK and in Zimbabwe you only come as a
visitor. Hence, breaching of this condition required placing of the motor
vehicle under seizure, release of which could be effected after payment of duty
which was due on the day the motor vehicle was cleared under immigrant's Rebate
and penalty. The vehicle was placed on seizure on 21 October 2009 a.m.
therefore prepared to release the motor vehicle on the following conditions:
1. Payment
of duty of ZAR253,000-00
2. Payment
of 100% penalty of ZAR253,000-00
3. Payment
of storage charges.
You are being requested to pay
Customs Duty in terms of the Customs and Excise (General) Regulations s 105
subs 8 which provide that where a person leaves the country within two years of
claiming immigrant rebate he should remove such effects or duty pay for the
goods so cleared.
Please arrange with the head
Investigations to pay the above amounts and release of your motor vehicle at
Kurima House 89 N Mandela Ave. Failure to pay the above amounts within three
months will result in the motor vehicle being forfeited to the state”.
The
applicant has to date refused to pay duty arguing that he is a bona fide returning permanent resident
and that he has not violated the country's customs and Excise (General)
Regulations S.I. 154/2001. The respondent has in turn refused to release the
motor vehicle and hence this application.
In
an opposing affidavit to this application the respondent raised a point in limine. The respondent argued that
the application, having not been made within three months, as required by the
regulations, was prescribed. The respondent correctly relied on the notice of
seizure which states:
“If you wish, you may within three
months from the date of this notice, make your own representations to the Port
Manager of the Port shown on this notice, for the release of the goods. Additionally
or alternatively you may, within three months from the date of this notice and
subject to the submission of written notification 60 days beforehand and in
terms of s 196 of the Act, institute proceedings for the recovery of the goods
from the Commissioner…”
The
respondent submitted that, notwithstanding the fact that the applicant had
engaged the respondent in discussions for the release of the motor vehicle, the
applicant should have all the same filed this application three months from the
date of seizure (i.e 21 October 2009).
The
applicant on his part has argued that, given the appeals he made to the
respondents, his application was filed within the requisite period.
Both
parties have dealt with the issue of prescription at length in their heads of
argument. I am, however, unwilling to accept that the applicant's application
should be dismissed on the basis of prescription. I find it untenable for
anyone to suggest that the applicant should be punished for his confidence in
the internal remedies that the respondent can, in law, offer. Furthermore, even
on 2 November 2009 the respondent was still in a position to allow the
applicant to pay duty within a period of three months. That surely brought
clear shifts in terms of time calculations.
It should also be noted that as late
as 31 December 2009 the respondent was still saying the following:
“We wish to advise that your
client's appeal is still under consideration and you will be advised of the
outcome in due course. Please bear with us in the meantime.”
In
fact at one stage in the process of preparing this judgment I had formed the
view that the relief that the applicant should seek is to compel the respondent
to make a final decision. I, however, moved away from that view because in para
18 of the opposing affidavit the respondent states the following:
“It is admitted that the respondent
advised that the applicant's appeal was still under consideration as the
respondent had closely monitor the applicant's movement. A decision was
eventually made and it was communicated to the applicant that his appeal was
unsuccessful”.
There
is no evidence of that finalisation.
Although
I do not know when the final decision “was eventually made, I thought it would
only serve to delay finalisation of the issue if I were to suggest that what
the applicant needed to do was to seek to compel the respondent to make a final
decision. The papers before me suggest that the motor vehicle will not be
released until the applicant complies with the requirements of the respondent
as spelt out in the respondent's letter of 9 November 2009.
In
view of the conduct of the respondent, as confirmed in the above letter of 31
December 2009, I am unable to uphold the respondent's point in limine. There was reason for the applicant to believe
in respondent's internal remedies. The applicant, having given the necessary
notice, is properly before the court.
As
to the merits of this application, I believe the issue to determine is whether
or not the applicant falsely declared himself a returning permanent resident in
order to qualify for the grant of a rebate on the motor vehicle.
In their heads of argument, both
parties have carefully considered the issue of whether or not the applicant
made a false declaration.
In
paras 10 and 11 of his supplementary heads of argument the applicant states as
follows:
“10. The conditions to be fulfilled for taking
up permanent residency are clear and unequivocally state that a permanent
resident is a person who returns home and does not stay out of the country for
periods longer than 6 months outside the country. Section (8) of SI 154/2001
which reads:
'(8) An immigrant who has been granted a rebate of duty
in terms of this section, and who emigrates or departs from Zimbabwe for a
period of more than six months within twenty-four months from the date of which
any effects or other goods imported by him were entered under rebate, shall
remove such effects or other goods from Zimbabwe on his departure, unless he
has obtained the prior written permission of the Commissioner to leave them in
Zimbabwe, or has paid the full duty which would have been payable at the time
of entry of the goods but for their entry under rebate'
11. In no way whatsoever has applicant
departed from Zimbabwe
for a period longer than six months. A departure for longer than 6 continuous
month would in accordance with s (8) qualify to be called emigration. He
immigrated and under such cause of immigration as it flowed therefrom, was
granted a permanent residence rebate”.
The respondent counters the above submission
through paras 2.5 and 2.6 as follows:
“2.5 It is the respondent's submission that
surely if the applicant was a returning resident he would not have been be
accorded a visitors status in Zimbabwe but in the United Kingdom and it boggles
one's mind why the applicant was not accorded the visitors status in U.K. which
he is claiming to have been visiting and accorded the visitor's status in a
country that he is claiming to be residing permanently. All this goes to show
that the applicant is not a resident here but is resident in the United Kingdom.
Further the fact that he is a British resident is supported by his valid
British resident permit.
2.6. It is further submitted that is a pre
requisite that one has to be a returning resident to qualify to be granted the
immigrants' rebate. In casu the
applicant misrepresented that he was a returning resident when in actual fact
he knew that he had no intentions whatsoever of residing in Zimbabwe
permanently. This is clearly evidence by his failure to reside in Zimbabwe for a
continuous period of even one month. In doing so the applicant violated the Act
and Regulations and his vehicle was liable to seizure”.
I
initially had a serious inclination to agree with the applicant that he did not
breach any law in obtaining the rebate for his motor vehicle. That is so
because I hold the view that a returning permanent resident, moreso the
applicant who had permission to enter the UK through a resident permit, is
not totally barred from leaving the country. He can still visit other countries
provided, as already indicated, he does not depart from Zimbabwe for a
period of more than six months from the date of being granted the rebate or
from the date he or she declares that he or she has returned permanently. A simplistic approach to the problem would
make it appear that the applicant managed not to offend this provision of the
law. The applicant new the legal meaning of a returning permanent resident. He therefore put in place acts which would,
under ordinary circumstances, ensure compliance with the law.
However, the problem in casu arises when the applicant
accepts to be treated as a visitor in his country of permanent
residence. If indeed he was honest that he was now a returning permanent resident, he should, have
, in my view,
(a) formally protested against being allowed
to stay in Zimbabwe
as a visitor for a limited period of only 30 days; or
(b) ignored the 30 days limit.
The
applicant did not take either of the above two steps but instead made sure that
the 30 days accorded to him as a visitor did not expire whilst he was still in
Zimbabwe. Clearly therefore the logical conclusion to be drawn by the
respondent, after its post importation clearance audit, was that the applicant
was manipulating the system. I am unable to disagree with that
conclusion. The applicant clearly sought to manipulate the system in such a way
that it would appear he was complying with the law.
The applicant's conduct, in my view,
does not qualify him as a returning permanent resident. On a balance of
probabilities therefore, the facts presented by both sides clearly point to the
finding that the applicant had indeed falsely declared himself to be a
returning resident in order to be granted the rebate for the motor vehicle. In
those circumstances the respondent was justified in withdrawing the rebate and
seizing the motor vehicle pending payment of the requisite rebate.
The authorities cited by Advocate Mushore (e.g. Time Sahwira Mupinga v The commissioner General Zimbabwe Revenue
Authority and the Minister of Finance HH 21/10) could only have been relevant if the applicant
was indeed a bona fide returning
permanent resident. There is therefore merit in the opposition mounted by the
respondent against this application. The application cannot succeed.
The
application is dismissed with costs.
Mhiribidi, Ngarava
& Moyo,
applicant's legal practitioners
Kantor
& Immerman, respondent's legal
practitioners
