Nashfreight and Transport Services CC v Zimbabwe Revenue Authority Commissioner of Customs and Excise N.O and The Officer in Charge CID Border Control Flora and Fauna Chirundu N.O

### Preamble
1
HCC 54/24
REF: HCCC 8/24
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NASHFREIGHT AND TRANSPORT SERVICES CC

Versus

ZIMBABWE REVENUE AUTHORITY COMMISSIONER

OF CUSTOMS AND EXCISE N.O

And

THE OFFICER IN CHARGE CID BORDER CONTROL

FLORA AND FAUNA CHIRUNDU N.O

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 27 March & 19 June 2024

G. T. Zhuwarara, for the applicant

I. Kamema, for the 1st respondent

No appearance for the 2nd respondent

In this application the applicant seeks a mandamus couched in the following terms:

1st and 2nd respondents be and are hereby ordered to release the three (3) trucks loaded with copper, belonging to the applicant upon service of the order, belonging to the applicant upon service of the order. The details of the truck are

ND 498083 – Scania Truck

ND 606 157 – Iveco Truck

ND 694172 – Scania Truck

Should the 1st and 2nd respondent fail to comply with paragraph 1 the Sheriff of the High Court be and is hereby ordered to recover the trucks described in paragraph 1 from the 1st respondent and transfer possession to the applicant.

Respondents to bear the costs of suite jointly and severally, one paying the other to be absolved.

The 1st respondent opposed the application. The 2nd respondent did not file any opposing papers which implies they will abide by the Court order.

Background Facts

The applicant is a company in the transport business and duly incorporated in terms of the South African laws.

The 1st respondent is a Government body corporate responsible for collection of revenue in Zimbabwe.

The 2nd respondent is the officer in charge CID Border Control cited in his official capacity representing the Zimbabwe Republic Police.

The background set out by the 1st respondent and largely unconverted is that between 12 June 2023 to 20 June 2023 the applicant through its agent Bollore Logistics registered three transit bills of entry as follows:

S11872 with a consignment of 29.837 tonnes of copper cathodes on truck registration ND 85892 and trailer ND 729153 duty due was ZWL 253 761 889.79.

S12384 consignment of 32.841 tonnes of copper cathodes on truck registration number ND 498083 towing two trailers ND 614291 and ND 50291 duty due was ZWL 362 623 223.37.

S15165 consignment of 30.231 tonnes of copper cathodes truck registration number ND 694172 towing a trailer registration number ND 124360 duty due was ZWL 251 950 602.47.

From June the applicant being the transporter parked the trucks loaded with copper at Chirundu Customs area for a period in excess of three months without the 1st respondent’s knowledge and approval. On the 1st of October 2023 the applicant reported a theft of its three trucks and cargo at Chirundu Police Station under CR 02/10/23. The matter is still pending at Karoi Magistrates Court.

On the same day the 1st of October, the three mechanical horses were recovered parked in Zambia near the border. They were brought to the Zimbabwean side.

Investigations established that the three horses had illegally entered Zimbabwe without validation, offloaded the copper and the trailers. There was evidence that the trucks passed through the vehicle inspection weighbridge around midnight on 30 September. Later when they returned into Zimbabwe, they were not loaded they proceeded to exit Zimbabwe into Zambia.

The 1st respondent, acting on a suspicion that an offence was committed, seized the trucks by issuing a Notice of Seizure. The applicant frantically tried to secure their release by writing letters. Nothing materialised.

The applicant’s version of events partly confirms how the trucks got to the Customs and eventually seized. It however demonstrates the complexity of what transpires within our border system. Briefly it shows or points to serious shenanigans by 1st respondent’s officers which culminated with the arrest of some of the 1st respondent’s officers and the applicant’s drivers. In my view neither of the employers is better than the other both employers have been tainted the conduct of their employees.

As already stated, applicant sought the release of the trucks from the 1st respondent with no joy. The 1st respondent literally dithered from one reason to another. Thus, the applicant approached this court for a mandamus to compel the 1st respondent to release the trucks unconditionally.

The 1st respondent opposed the application. At the onset it raised a point in limine on non-compliance with s6 of the State Liabilities Act. On the merits, it opposed on the basis that the trucks were lawfully seized for three reasons. Firstly, they were on the customs yard for more than 72 hours contrary to Customs regulations, secondly they were exhibits in a criminal investigation case therefore they cannot be released and thirdly they were used smuggle goods into Zimbabwe.

Preliminary Point

After the submissions on the preliminary point taken, I decided to take a rolled-up approach to hear both the submissions on the merits. I advised parties that the determination on the preliminary point would determine whether it is necessary to proceed to the merits.

The preliminary point which was raised in the 1st respondent’s head of argument is the non-compliance by the applicant of s6 of the State Liabilities Act (Chapter 8:04) as read with section 196 (1) of the Customs and Excise Act (Chapter 23:02) “hereinafter referred to as the Act” failure to give notice.

In its submissions, the 1st respondent averred that this is a question of law and it can be raised at any stage of the proceedings. Since the applicant impugns the decision of the 1st respondent made during the course of duty, these are civil proceedings as envisaged under s196 of the Act. The court was referred to a number of authorities where it was held that, non-compliance with s6 of the State Liabilities Act is fatal to the proceedings. To that end there is no proper application before the court, the matter must be dismissed with costs.

The point taken was vehemently opposed. A number of issues were raised including the history of the enactment of the Customs Act in 1955. I found that to be irrelevant. It was submitted that the point taken is not a point of law but a question of fact. The 1st respondent must have pleaded this cause and the applicant was to respond either by producing the notice or in any other way. Thus, the issue required a factual response. Surprisingly it was further submitted that this application is not made in terms of s196. I say surprisingly because these are civil proceedings, that the cause of action derives from common law or statute does not change the fact. Notice must be given in either way.

In my view the only issue for determination is whether this is a question of law or a question of fact. Courts have settled the issue as to what constitutes a question of law or fact in a number of cases. The starting point is the often cited case on this issue, in Muchakata v Netherburn Mine at page 157 the court had this to say;

“Provided it is not one which is required by a definitive law to be specifically pleaded, a point of law, which goes to the root of the matter may be raised at any time even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed……., if the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised, nothing can depend on it.”

In Muzuva v United Bottlers (Pvt) Ltd the court citing the dicta in Media Workers Association of South Africa & Ors v Press Corporation of South Africa Ltd (Perskar) the court summarised what constitutes a question of law as follows:

A question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fir in accordance with what is considered to be the truth and justice of the matter.

A question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.

Any question which is within the province of a Judge instead of the jury is a question of law (this arises in criminal matters).

I am persuaded that the point taken by the 1st respondent is a question of fact. The issue fails to fit in any of the definitions set out in the Muzuva case (supra). The issue is not what the law says when one intends to sue a state entity. The issue here is whether the applicant complied with the law. The 1st respondent is required to produce the notice or plead as inclined. At this stage of the proceedings the 1st respondent is unable, procedurally to file further pleadings except with the leave of the court. It therefore follows that the 1st respondent was required as a matter of procedure to plead its preliminary point to enable the applicant to competently respond to it in the answering affidavit.

As properly submitted for the applicant, in motion proceedings the affidavits constitute both the pleading and evidence. The purpose of heads of argument is to expound on the law applicable to the facts placed before the court, and one cannot plead through them. A cause or issue cannot be raised in heads of arguments which was not in the pleadings. See Nehava v Barrick Inv.

The 1st respondent referred the court to a number of cases where it was held that compliance with s6 of the State Liabilities Act is a precursor to suing a government entity. That is the correct position of the law. The 1st respondent overlooked the point that in all the cases relied upon, the issue was pleaded in the notice of opposition. It was not raised in the heads of argument. Secondly there was no challenge on the propriety of raising the issue. I was not referred to a case where the issue was raised and argued as in this case.

It is my finding that, the point taken is a question of fact and cannot be raised at any point during proceedings. It must be properly pleaded.

I proceed to deal with the merits of the case.

The Law

The requirements for an interdict be it mandatory or prohibitory is now settled.  In order to succeed in such an application, the applicant must establish on a balance of probabilities that:

A clear right exists.

An injury actually committed or reasonably apprehended.

Absence of a similar or adequate remedy to protect the applicant’s interests.

See Setlogelo v Setlogelo 1914 AD 221; Flame Lily Investment Co (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378; Universal Merchant Bank Zimbabwe Ltd v Zimbabwe Independent & Anor 2000 (1) ZLR 234 (H).

The requirements must be construed as conjunctive and not disjunctive. Put differently, an applicant seeking an interdict must prove all the requirements. The point is therefore made that if one of the requirements is not proved the relief sought cannot be granted.

Analysis

The applicant argued that the trucks are registered in its names therefore it remains the owner of the trucks. The trucks were lawfully parked at the 1st respondent’s yard with the 1st respondent’s full knowledge until they were stolen. It denied that the trucks were used to illegally export goods into Zimbabwe. It also denied that the trucks were held as exhibits in a criminal matter pending before the Karoi Magistrates Court. Both the National Prosecuting Authority and the 3rd respondent did not oppose the release of the trucks. This is all about the 1st respondent. Further that the issue of duty was not on the applicant but its agent who is supposed to pay the duty. The court was referred to some correspondence in which the 1st respondent advised the agent of the amount due and the response. In short there was no valid reason to limit the applicant’s right in the trucks.

Although conceding that the applicant is the registered owner of the trucks, the 1st respondent opined that, its rights were properly limited by its failure to comply with the Customs laws and regulations. The 1st respondent literally threw every reason it can pull to justify its point. Firstly, that the applicant failed to export its goods in transit within 72 hours of date of entry, secondly that its drivers illegally exported the goods using the trucks into Zimbabwe and no duty was paid and lastly that the trucks cannot be released as they are subject to an offence and criminal proceedings are underway.

It is not in dispute that the applicant is the transporter and has a vested right in the trucks. The issue that arise for determination is whether this right was properly or legally limited. If the right was limited in terms of the law, then the applicant ceases to have a clear right. The opposite is equally true. Everyone has a Constitutional right to own and use his/ her or its property according to the law. However, that right is not absolute. It is subject to limitations.

The historical background which was uncontroverted by the applicant, establishes that the applicant indeed violated the Customs regulations. In terms of s234 (1) (b) of the Act as read with s60 (5) (e) of the Customs and Excise General Regulations SI 154/2001, transit goods must be exported within three days of the date of entry or removal or be delivered to the custody of the Department within that period. For completeness Section 60 (5) ( e) of the Regulations provides,

(5) The removal of goods by road vehicles in transit through Zimbabwe may be disallowed by the Commissioner, and if allowed, shall, in addition to any other conditions that the Commissioner may impose, be subject to the conditions that—

…

(e) any goods in transit shall be exported within three days of the date of entry of removal, or be delivered to the custody of the Department within that period;

…

(10) If any transporter or owner of the goods contravenes any provisions of this section—(a) the goods may be liable for seizure; and

(b) the offender may be liable to a fine of US$500 dollars.

In its answering affidavit, the applicant gave a detailed explanation of what transpires at the Customs yard which would invariably mean the 1st respondent was well aware of the presence of the trucks.

The applicant clearly failed to appreciate the import and the attendant consequences of the provision relied upon by the 1st respondent. According to that section the Commissioner has the prerogative to allow or disallow removal of goods in transit by road. Where it is allowed in terms of ss 5 (e) thereof, the goods shall be exported within three days of entry of removal or delivered to the Department during that period. Strictly speaking it was either export or delivery the Department within the three days.

There is no dispute that the goods were in transit and were not exported within the prescribed time frame. The applicant was therefore required to show that it delivered the goods to the custody of the Department. There was no such proof placed before the Court. All that was given was an elaborate explanation of how the processes operate. In my view even if the 1st respondent may have been aware in the sense that the system did not activate the exit of the goods, that is not the delivery of the goods to the Department as envisaged by the Regulations. Although technically the goods were already in the Customs yard there must be some official process to regularise the stay of goods for more than the period allowed in the Regulations. Infact at no time did the applicant plead that it regularised the stay of goods as provided.

According to the 1st respondent there was evidence that the trucks exited Zimbabwe and the goods were consumed in Zimbabwe before the trucks were driven to the Zambian side of the border. It appears the applicant in its answering affidavit capitalised albeit incorrectly on this issue that if the trucks passed through the Vehicle Inspection Weighbridge it means all the relevant paper work was presented.This court cannot sit to deliberate on the truthfulness or veracity of the averments. The 1st respondent is the administrative body endowed with the power and prerogative to deal with such issues. Thus s193(1) of the Act provides,

193 Procedure as to seizure and forfeiture

Subject to subsection (3), an officer may seize any goods, ship, aircraft or vehicle (hereinafter in this section referred to as articles) which he has reasonable grounds for believing are liable to seizure.

…

“liable to seizure”, in relation to articles, means articles

(a) liable to forfeiture under this Act or any other law relating to customs or excise; or

(b) the subject matter of an offence under or a contravention of any provision of—

(i) this Act or any other law relating to customs or excise; or

(ii) any enactment prohibiting, restricting or controlling the importation or exportation thereof;’

The test upon which an officer may seize any items is whether reasonable grounds exist to seize the items. In this case there is evidence that both the applicant and the 1st respondent’s employees were involved in the exportation of the goods into Zimbabwe without following proper procedures. That in my view together with other intrinsic evidence in the 1st respondent’s systems was the basis of the reasonable grounds.

A notice of seizure is a juristic act to pave way for an investigation by the 1st respondent. It is founded upon the provisions of s 193 and is done by an officer who on reasonable grounds suspects that an article is liable to seizure. The seizure is reported to the Commissioner who in the exercise of his or her powers granted under the Act, may release the seizure article or declare the article forfeited to the state including levying duty on the article if it had not been paid. Courts should not be quick to muzzle lawful administrative processes. In this case indeed the 1st respondent played hide and seek with the applicant by not making a decision within a reasonable time but that in itself does not take away its powers. Courts are slow to intervene in the operations of administrative bodies.

Having made a finding that the 1st respondent had reasonable grounds to interfere with the applicant’s right on the first two issues l find it unnecessary to deal with the issue of the trucks being held as exhibits. The applicant therefore failed to establish a clear right.

This could be the end of the matter since the applicant must establish the existence of all the requirements. For the sake of completeness l deal with the remaining two briefly.

The applicant averred that it has suffered irreparable harm through loss of business and the attendant failure to meet its financial obligations. This maybe factually correctly but for the fact that the seizure was in accordance with the law then the harm subordinates to the authority of the law.

In respect of an alternative remedy, even if the 1st respondent averred that the trucks were required as exhibits in criminal proceedings in my view there was nothing to support this averment. The State Outline dealing with the criminal matter does not refer to the recovery of the trucks and their intended use as exhibits. The District Public Prosecutor in Karoi by letter advised that for the purposes of the case the trucks were not exhibits. It seems there was an anticipation of another criminal matter which by then was not before the courts. Finally the Prosecutor referred the decision to the 1st respondent since it seized the trucks and not the NPA. With such paper trail is difficult to accept that the trucks were held as exhibits. The 1st respondent must make a decision on them. So the remedy through the Criminal Procedure maybe irrelevant in these circumstances.

However, what is eminently clear is that, the trucks were seized on reasonable grounds that a violation of the Customs laws had been violated. It then means 1st     respondent as the administrative body is required to complete its processes by way of a decision in terms of s193 of the Act. These are the internal remedies that the applicant should have enforced.

Disposition

The application fails. The applicant failed to show that it has a clear right. There is evidence which was uncontroverted that the transit goods were not exported or lodged with the 1st respondent within the prescribed period. There was also evidence that the trucks crossed into Zimbabwe illegally. On that basis the 1st respondent was entitled to seize the trucks pending a final decision by the Commissioner.

As to costs, costs always follow the cause. I was not given any reason to depart from this tried and tested principle.

Accordingly, the application is dismissed with costs.

Coghlan Welsh & Guest, applicant’s legal practitioners