Merystake Investments (Private) Limited v Zimbabwe Revenue Authority and The Commissioner General of the Zimbabwe Revenue Authority and Commissioner Customs and Excise of the Zimbabwe Revenue Authority and Zimbabwe Revenue Authority Regional Manager, Region 1, Mrs J Munongi-Chikwanda (NO)

### Preamble
1
HH 88-21
HC 6620/20
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MERYSTAKE INVESTMENTS (PRIVATE) LIMITED

versus

ZIMBABWE REVENUE AUTHORITY

and

THE COMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY

and

COMMISSIONER CUSTOMS AND EXCISE OF THE ZIMBABWE REVENUE AUTHORITY

and

ZIMBABWE REVENUE AUTHORITY REGIONAL MANAGER, REGION 1, MRS J MUNONGI-CHIKWANDA (NO)

HIGH COURT OF ZIMBABWE

TAGU J

HARARE 17 November and 13 January 2021

Urgent Chamber Application

E Hamunakwadi, for applicant

T L Marange, for respondents

TAGU J: The instant urgent chamber application is one for an interim prohibitory interdict against respondents to bar and /or stop them from disposing and/or selling two truck horses and two tanker trailers belonging to applicant which respondents have forfeited. The relief sought is couched in the following terms:-

“TERMS OF THE FINAL ORDER

That you show cause to this Honourable Court why a final order should not be made in the 	following terms:

Respondents’ forfeiture of Applicant’s two truck horses namely a Freightliner Colombia 	Chassis Number 1FUJA6B033LK8115 and a Freightliner Colombia Chassis number 	1FUJA6AV33LK84802 as well as two tanker trailers namely Chassis Number 3010 and 	Chassis Number TT409512 be and is hereby suspended pending finalization of Applicant’s 	action against Respondents in this Honourable Court for which Notices to sue have already 	been issued and served in terms of the law.

Respondents shall jointly and severally the one paying the other to be absolved bear the 	costs of this application.

INTERIM RELIEF

Pending the return day, Applicant is granted the following relief;

Respondents be and are hereby interdicted from selling and /or disposing of Applicant’s 	two truck horses namely a Freightliner Colombia Chassis Number 1FUJA6B033LK8115 	and a Freightliner Colombia Chassis number 1FUJA6AV33LK84802 as well as two tanker 	trailers namely Chassis Number 3010 and Chassis Number TT409512.

SERVICE OF THE PROVISIONAL ORDER

Applicant’s legal practitioners be and are hereby granted leave to serve this order upon 	Respondents.”

The background facts to the application are that on the 19th of September 2020 the first respondent through its Customs Section at Chinhoyi seized applicant’s two truck horses namely a Freightliner Colombia Chassis Number 1FUJA6B033LK8115 and a Freightliner Colombia Chassis number 1FUJA6AV33LK84802 as well as two tanker trailers namely Chassis Number 3010 and Chassis Number TT409512 under Notices of Seizure Numbers 011035K and 011036K for contravention of the Customs and Excise Act [Chapter 23.02]. The two trucks were transporting 80 000 litres of petrol on behalf of Wellsford International Limited. The two drivers of the applicant’s trucks were arraigned before the Kariba Magistrates Court where they were convicted of smuggling and paid fines. The applicant’s directors and management were not aware of the drivers’ unlawful conduct. After the seizure of the trucks and trailers first respondent through the fourth respondent issued applicant with letters containing express release terms and conditions that obliged the applicant to pay the sum of thirty six thousand Zimbabwean dollars (ZWL36 000.00) as a precondition for the release of the said truck horses and trailers. The letters contained the following clause-

“If you are agreeable to the set terms, please approach the Zimbabwe Revenue Authority station 	manager at CONDEPS and arrange for payment and collection of your vehicle. The vehicle cannot 	be held indefinitely and if you have not met the terms set out above by 11 January 2021, the vehicle 	will be declared forfeit.”

The applicant accepted the offer and paid the two tranches of thirty six thousand Zimbabwean dollars on the 14th of October 2020 to the first respondent at first respondent’s Customs Section in Chinhoyi and was issued with two receipts. However, despite having complied with the set release conditions the first respondent and /or its officers refused, neglected and/or failed to release the said truck horses and trailers to applicant.

The applicant engaged its legal practitioners to make a follow up. The applicant’s legal practitioners then received an email on Monday the 9th of November 2020 but dated 6th November 2020 written and signed by the third respondent on behalf of the first respondent to the effect that the said truck horses and trailers had been forfeited. Fearing that once forfeited the respondents can deal with applicant’s truck horses and trailers as they please including but not limited to disposing and /or selling the same. The applicant filed the present application to urgently stop and or bar respondents from disposing and /or selling the said truck horses and trailers pending the return day to avoid serious irreparable financial prejudice being occasioned to applicant.

At the hearing of this matter four points in limine were raised by the respondents. The first point being failure to comply with Section 196 (1) of the Customs and Excise Act [Chapter 23.02]. The second point being improper citation of the 2nd, 3rd and 4th respondents. The third point in limine was material non-disclosure and the fourth point was a failure to exhaust local remedies. I will deal with each and every point in limine raised separately.

FAILURE TO COMPLY WITH SECTION 196 (1) OF THE CUSTOMS AND EXECISE ACT [CHAPTER 23:02]

Section 196 (1) of the Customs and Excise Act [Chapter 23.02] reads as follows:-

“No civil proceedings shall be instituted against the State, the Commissioner or an officer 	for 	anything done or omitted to be done by the Commissioner or an officer under this act or any other 	relating to customs and excise until sixty days after notice has been given in terms of the 	State 	Liabilities Act [Chapter 8.15].”

In the present case the applicant issued and served notices dated the 10th of November 2020 in terms of section 196(1) of the Customs and Excise Act giving Notices to sue the 1st, 2nd, 3rd and 4th respondents respectively for the release of the said truck horses and trailers. Two days later the applicant filed the present urgent chamber application for a prohibitory interdict in terms of order 32 Rule 244 of the High Court Rules, 1971. The respondents’ contention is that the application is improperly before the court for failure to comply with section 196 (1) of the Customs and Excise Act. Their argument being that this is civil proceedings and that the applicant should have waited for sixty days before mounting the present chamber application. They therefore submitted that failure to comply with the provisions of section 196 (1) of the Customs and Excise Act is fatal and prayed that this application be dismissed on this basis alone.

The applicant opposed the application on the basis that Notices to sue were indeed served on the respondents and that the section referred to by the respondents does not apply to urgent chamber applications for interim relief.

However, the respondents failed to appreciate that the Notices to sue the respondents were properly given and that section 196(1) of the Customs and Excise Act does not apply to urgent chamber applications for interim relief. The relief sought in the notices given is totally different from the relief being sought by this urgent chamber application. I therefore found no merit in the first point in limine. It would not have been the intention of the legislature to allow urgent chamber applications to be filed after 60 days from the date the need to act arose. By then the urgency of the matter would have ceased to exist. As properly submitted by the counsel for the applicant in his answering affidavit, allowing Section 196(1) of the Customs and Excise Act [Chapter 23.02] to apply to urgent chamber applications of this nature will be a sad day for the administration of justice. This Honourable Court has presided over a plethora of cases brought against Ministers, Ministries and State institutions and departments on an urgent basis despite the same provision being extant in terms of the State Liabilities Act. I therefore dismiss the first point in limine.

IMPROPER CITATION OF THE 2ND TO THE 4TH RESPONDENTS.

The contention by the respondents was that the 2nd, 3rd and 4th respondents were improperly cited in their official capacity, seeking a remedy that at law should be sought against the Zimbabwe Revenue Authority, as a body corporate established under an Act of Parliament. They prayed that the 2nd, 3rd and 4th respondents be removed as respondents.

The applicant’s contention was that the 1st Respondent is an institution which does not speak on its own as it has no capacity to perform such a function. It submitted that it does so through 2nd respondent who is the official representative of it. It found nothing amiss at law in the citation of the 2nd respondent. The 3rd and 4th respondents were cited in their official capacities simply because of the practical roles they played in the conduct complained of by the applicant for which an interim relief is sought. However. The applicant was quick to submit that if it were to be accepted that their citation is improper, they can be removed as respondents though in its view their citation is not fatal to the application.

This court has on diverse occasions pronounced the position of the law concerning the citation of the proper respondent where litigation against the Zimbabwe Revenue Authority (ZIMRA) is pursued. The settled position is that the proper respondent to sue in any matter involving ZIMRA, is ZIMRA itself, the statutory body since the Act that creates it provides for such. Instituting proceedings against an employee of the Authority, for acts done on behalf of the Authority renders such proceedings and any consequential relief sought invalid, unless the employee is personally liable. See Tregers Industries (Private) limited v Commissioner General of the Zimbabwe Revenue Authority HH-83-2006. The 2nd, 3rd and 4th respondents must therefore be removed. I uphold the second point in limine.

MATERIAL NON-DISCLOSURE

The respondents’ submission is that the applicant had failed to disclose the full circumstances of smuggling into Zimbabwe of fuel known to have been cleared by ZIMRA as being in transit to DRC, on those very same trucks which were later intercepted at Makuti en route to Harare where they intended to offload the fuel and consume it without the payment of excise duty. That the truck drivers were arrested at that point and paid fines. Further, that there was a letter (dated 28/10/20), email (dated 03/11/20) and WhatsApp written to the Managing Director and an agent one Levious Chikura advising them of the decision by the 3rd respondent to vary the 4th respondent’s decision setting out the release terms. The respondents contends that it is now settled law that where a litigant approaches the court on an urgent basis they are supposed to or are rather mandated to disclose to the court all the salient facts regarding the matter failing of which the application may be dismissed for non- disclosure.

The applicant denied ever seeing the said letter, email nor WhatsApp message as same were never addressed to its legal practitioners who had earlier written to the first respondent on the 27th of October 2020. It submitted that it disclosed all material facts it deemed relevant to the case.

In my view I tend to agree with the applicant that there are no material non-disclosures of fact as alleged by the respondents. I say so because paragraph 9 of Applicant’s founding affidavit is very clear that Notices of Seizure of Applicant’s trucks were issued because of the contravention of the Customs and Excise Act [Chapter 23.02]. Paragraph 10 thereto is also very clear that Applicant’s drivers were convicted of smuggling at the Kariba Magistrates Court and paid fines. The other nitty-gritties of the circumstances are not relevant. In any case I found no proof the Managing Director of the applicant saw the said letters, emails and WhatsApp messages about the reversal done by the 3rd respondent to 4th respondent’s initial decision. This point in limine is also dismissed.

FAILURE TO EXHAUST LOCAL REMEDIES

The submission by the respondents are that the applicant ought to have approached the Commissioner General on appeal as an appeal against the decision of the Commissioner of Customs and Excise lies to the Commissioner General instead of rushing to this court.

The applicant shot this point in limine down on the ground that it is meant to cloud the real issues before this Honourable Court. The applicant referred to the respondents’ letter dated 6th of November 2020 in which 3rd respondent communicated the forfeiture of Applicant’s truck horses and tanker trailers, in which they stated as follows-

“Your further appeal for release of the truck has been unsuccessful. You are free to approach the 	Courts if you are not satisfied with this decision.”

Applicant said it is the respondents that prescribed that applicant must approach the Courts. So they cannot disregard their own procedure. In my view while it was necessary to first approach the Commissioner General, the applicant was placed in a fix because the Applicant’s letter of the 27th of October 2020 was addressed to the Commissioner General to whom the appeal must lie. Respondents’ letter of the 6th November 2020 referred to Applicant’s both letters and to Applicant’s “further appeal” which is said to have been dismissed. There is therefore nowhere else Applicant could have gone to further appeal especially in circumstances where it had been directed to approach the Courts. Hence this last point in limine has no merit and must suffer the fate of dismissal as well.

Coming to the merits of the application, it is trite that in an application of this nature, applicant is enjoined to prove the following-

Urgency of the matter,

A prima facie right, though open to some doubt,

An injury actually committed or reasonably apprehended,

A well-grounded apprehension of irreparable harm to applicant, and

The absence of an alternative remedy.

In casu it is no doubt that the applicant’s two truck horses and two tanker trailers were seized by the 1st respondent through its Customs section at Chinhoyi on the 19th of September 2020 under Notices of Seizure 011035K and 011036K for contravention of the Customs and Excise Act [Chapter 23.02]. 1st respondent, through 4th respondent’s two letters dated the 12th of October 2020 issued applicant with release instructions to the effect that applicant was supposed to pay two tranches of thirty six thousand Zimbabwe Dollars (ZWL$36 000.00) in fines for both seizures as preconditions for the release of its truck horses and tanker trailers. The release instructions were very clear and express to effect that if applicant was agreeable to the set terms of release, it was to proceed to effect payment of the fines and collect its truck horses and trailers.

Applicant complied with the release instructions and conditions on the 14th of October 2020 by effecting payment of two tranches of thirty six thousand six hundred Zimbabwe dollars to 1st respondent’s Customs’ office at Chinhoyi and was issued with two receipts to confirm payment thereof. However, 1st respondent did not release the same but its officers became evasive and elusive. Applicant approached its legal practitioners who then wrote two letters dated 27th October and 3rd November 2020 respectively requesting release of the trucks and trailers. It was only on the 10th of November 2020 that an email was received from 1st respondent through 3rd respondent to the effect that the truck horses and trailers had in fact been forfeited.

There is no clear justification for the forfeiture contrary to the release conditions given to the applicant. 1st respondent can therefore dispose of the trucks horses and trailers any time. The applicant stands to suffer serious irreparable harm if the truck horses and trailers are disposed of. The applicant has no other alternative remedy to stop the disposal of its truck horses and trailers. The applicant’s application therefore satisfies the requirements warranting the granting of a prohibitory interim interdict against the 1st respondent.

The following order as amended is granted.

TERMS OF THE FINAL ORDER

That you show cause to this Honourable Court why a final order should not be made in the 	following terms:

1st Respondent’s forfeiture of Applicant’s two truck horses namely a Freightliner 	Colombia Chassis Number 1FUJA6B033LK8115 and a Freightliner Colombia 	Chassis number 1FUJA6AV33LK84802 as well as two tanker trailers namely 	Chassis Number 3010 and Chassis Number TT409512 be and is hereby suspended 	pending finalization of Applicant’s action against 1st Respondent in this 	Honourable Court for which Notices to sue have already been issued and served in 	terms of the law.

1st Respondent shall bear the costs of this application.

INTERIM RELIEF

Pending the return day, Applicant is granted the following relief:

1st Respondent be and is hereby interdicted from selling and/or disposing of 	Applicant’s two truck horses namely a Freightliner Colombia Chassis Number 	1FUJA6B033LK8115 and a Freightliner Colombia Chassis number 	1FUJA6AV33LK84802 as well as two tanker trailers namely Chassis Number 3010 	and Chassis Number TT409512.

SERVICE OF THE PROVISIONAL ORDER

Applicant’s legal practitioners be and are hereby granted leave to serve this order 	upon 1st Respondent.

Hamunakwadi & Nyandoro law chambers, applicant’s legal practitioners.

Zimbabwe Revenue Authority legal Services Division, 1st respondent’s legal practitioners.