Civil Aviation Authority of Zimbabwe v Combine Cargo (Private) Limited and Zimbabwe Revenue Authority

### Preamble
1
HH 817-18
HC 7648/14
---------


CIVIL AVIATION AUTHORITY OF ZIMBABWE

versus

COMBINE CARGO (PRIVATE) LIMITED

and

ZIMBABWE REVENUE AUTHORITY

HIGH COURT OF ZIMBABWE

TAGU J

HARARE 13 JUNE and 19 DECEMBER 2018

Application for Absolution

B Diza, for plaintiff

I Changarambe, for 1st defendant

H Muromba, for 2nd defendant

TAGU J: The plaintiff, Civil Aviation Authority of Zimbabwe contracted Combine Cargo (Private) Limited as clearing agents between the months of March 2010 to April 2010 for goods which it had imported. The plaintiff paid Combine Cargo (Private) Limited US$139 189.39 which was meant for ZIMRA charges (Duty, VAT and other charges). In 2011 ZIMRA officials approached the plaintiff and indicated that the aforementioned goods had not been cleared properly as the customs duty amounting to USD$139 189.31 was outstanding which amount Combine Cargo (Private) Limited claimed to have paid to ZIMRA but could not produce proof thereof. In January 2014 ZIMRA then garnished the plaintiff an amount of US$139 189.31 which amount plaintiff had paid to Combine Cargo (Private) Limited. Despite numerous demands the first and second defendants failed or refused to pay the plaintiff the outstanding monies. The plaintiff issued summons against the defendants claiming payment of US$139 189.31, interest a temporae morae and costs of suit at Attorney client scale.

At the commencement of trial it became common cause that the plaintiff paid the first defendant Combine Cargo (Private) Limited sufficient amount to clear a certain imported consignment with the second defendant ZIMRA. Parties agreed that the only issue to be decided is whether or not the first defendant paid the requisite duty to the second defendant. Accordingly the first defendant assumed the role of the plaintiff and the second defendant remained a defendant. After the first defendant closed its case the second defendant applied for absolution from the instance.

The application was opposed by the first defendant.

It is trite that in applications of this nature, the defendant must show that the plaintiff has failed to prove a prima facie case against it. In the case of Lourenco v Raja Dry Cleaners and Steam Laundry (Private) Limited 1984 (2) ZLR 151 (S) Dumbutshena CJ (as he then was) stated at page 156F of the cyclostyled judgment as follows:

“The approach by the court to an application for absolution from the instance was laid down in the case of Gascoyne v Paul and Hunter 1917 TPD 170 by De Villiers JP as follows:

“The question therefore is, at the close of the case…Was there a prima facie case against the defendant Hunter; in other words was there such evidence before the Court upon which a reasonable man might, not should, give judgment against Hunter?”

In casu the first defendant led evidence from its Managing Director Mr. Phanuel Gukwe through whom it tendered documentary exhibits. His evidence was to the effect that the necessary shipping and import documents were prepared and the second defendant assessed the requisite taxes. The assessed amount was paid into the first defendant’s prepaid account which it held with the second defendant for the purposes of paying customs duty on behalf of first defendant’s customers who would have imported goods into the country. However, no receipt was issued as the second defendant’s cashier stated that it had problems in printing the same. The successful entries into second defendant’s computer system was proof that payment had been made otherwise the system would have rejected the entries through issuance of Form 45 indicating insufficient funds in the prepayment account. After confirmation by the second defendant of payment into first defendant’s prepayment account first defendant then submitted import documents for registration through BURCO. These documents were subsequently examined, assessed and stamped before the goods were released for collection. The witness stated that the same set of documents were taken to the second defendant at Aviation Ground Services (AGS) for further verification, clearance and calculation of storage charges. After payment of storage fees, the same set of documents were taken to second defendant at the AGS bonded warehouse for the release of goods.

From the witness’s account the second defendant was at all material times in full control of the repayment account as well as the ASCUDA system in which import entries were successfully made and captured upon confirmation of funds. He alluded to the fact that the second defendant admitted to an internal scam whereby several bills of entries were deleted immediately after goods had been collected and this was after payment and the verification process stated above had been done.

In this case indeed the goods were released after certain processes were done. In my view there are several questions which the second defendant must explain. For example if indeed no money had been paid into the first defendant’s prepayment account which was controlled by the second defendant, why were the documents not rejected by the system if there was insufficient funds? How was it possible for the goods to be released if they were not properly cleared? What does the second respondent mean by improperly clearing the goods? These and other questions must be explained by the second defendant. If there are any loopholes which the first defendant may have used these may be explained by the second defendant. If there were mechanisms in place to avoid manipulations in its system by clearing agents and its employees, then the second defendant must explain. The second defendant must explain what happens in the event its computer system fails to generate a receipt as proof of payment and the mechanisms put in place.  In my view it is possible that the second defendant’s own employees may have tempered with the system and mis-appropriated the funds creating an impression that the plaintiff did not pay when in actual fact it paid. This is within human experience.

The plaintiff in my view established a prima facie case and the second defendant must be placed in its defence because the second defendant may have erroneously garnished the plaintiff when plaintiff had paid. The application for absolution from the instance is therefore dismissed.

IT IS ORDERED THAT

Application for absolution is dismissed.

The second defendant be and is hereby placed on its defence.

Mhishi Nkomo legal practice, plaintiff’s legal practitioner

GN Mlotshwa & Company, 1st defendant’s legal practitioners

Kantor & Immerman, 2nd defendant’s legal practitioners