Judgment record
Twotap Logistics (Pvt) LTD Versus Zimbabwe Revenue Authority
HH 345-21HH 345-212021
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HC 185/21
TWOTAP LOGISTICS (PVT) LTD
versus
ZIMBABWE REVENUE AUTHORITY
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 24, 28, 29 & 30 June and 6 July 2021 & 7 July 2021
Opposed Application – Preliminary Objection
T. Tembani, for the applicant
T.L Marange, for the respondent
CHIRAWU-MUGOMBA: On 24 June 2021, I reserved judgment in this matter to
consider the issue of prescription that had been raised by the respondent. This was after the
court had dismissed the applicant’s point in limine that the opposing affidavit to the
respondent’s notice of opposition had not been properly commissioned. It is trite that a court
before proceeding into the merits must deal with a point in limine. See Gwaradzimba N.O v
CJ Petron & Co (pty) Ltd, 2016(1) ZLR 28 (S).
For purposes of this judgment, it is prudent to outline only the critical facts that will
enable the court to make a decision on prescription. The respondent issued a notice of seizure
of the applicant’s truck and tanker dated 18 July 2020 reference number 00348L. By way of a
letter dated 27 July 2020, Messrs Gonese Ndlovu Legal Practitioners addressed a letter to the
Station Manager, ZIMRA, Forbes Border post on inter alia, on the above captioned notice of
seizure. The Regional Manager responded by way of a letter dated 18 August 2020 stating
that the tanker trucks and petroleum products therein would remain impounded and would be
forfeited to the state. By way of a letter dated 12 October 2020, a different firm of legal
practitioners wrote to the Commissioner of Customs and excise of the respondent specifically
on the notice of seizure issued to the applicant. This was an appeal from the decision to keep
the seized items impounded and forfeited. The respondent addressed the appeal by way of a
letter dated 11 January 2021.
In its notice of opposition, the respondent raised two points in limine. The first point
was that the matter has prescribed. It averred as follows. It is not in dispute that the goods
were seized under a notice of seizure issued on 18 July 2020. The notice on the face of it
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indicates the remedies available. The applicant elected to make representations to the Station
Manager as to why the penalties that can be imposed should not be so imposed. That route
did not yield any results. The applicant could also have instituted proceedings for the
recovery of goods from the Commissioner General or for the payment of compensation in
respect of the goods which had been disposed within three months from the date of the notice
of seizure. The application in casu, was filed on 2 March 2021 well outside the window
period. The second objection was that the applicant had not given notice to ZIMRA as
required by section 196(1) of the Customs and Excise Act [Chapter 23:02] (the act) which
requires a period of 60 days’ notice before commencement of civil proceedings. The
applicant only wrote a letter dated 14 January 2021, wherein it was asking the respondent to
suspend any forfeiture proceedings pending the institution of the present matter. The letter
cannot be taken as notice in terms of the act. If the court were to find that the letter constitutes
notice, then the present matter has been prematurely filed since the applicant neglected to
wait for the 60 days to lapse.
In addressing the points in in limine raised by the respondent, the applicant made
the following averments. The applicant served the respondent with notice to institute
proceedings on 14 October 2020. The applicant had the option of approaching the court on or
before 17 October 2020 but it was premature since it had to first exhaust all internal
remedies. The respondent must also take the blame since it delayed in responding to internal
appeals.
Respondent’s submissions on preliminary issues
In its heads of argument, the respondent indicated that it was abandoning the 2 nd
preliminary objection in relation to s 196 (1) of the act. It made the following submissions
both in the heads and orally. The applicant had a period of three months within which to
institute proceedings for the recovery of the truck and the tanker as provided for on the face
of the seizure notice. The exhaustion of internal remedies did not bar applicant from
approaching the court for relief. The applicant had conceded that it should have approached
the court at least by 17 October 2020. The applicant was in violation of s193 (12) of the act.
Reference was made to Murphy v Director of Customs, 1992(1) ZLR 28 @32, Harry v
Director of Customs, 1991(2) ZLR 39(H) and Dube v ZIMRA, HB-2-14. The 60 days’ notice
in terms of s 196(1) should be read to be within the three months i.e. 90 days within which
the applicant ought to have filed civil proceedings for the recovery of the seized goods. The
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eight months’ time period provided for in s 196 (2) to institute proceedings should not be read
in isolation. This is because s 196 (2) is made subject to the provisions of s 193 (12) that
make provision for the three months period. There is no provision anywhere in the law that
states that the applicant had to first exhaust internal remedies before instituting action.
The applicant made the following submissions. Notice of the instituting of legal
proceedings was given on 14 October 2020. The applicant had an option to institute
proceedings in this honourable court on or before 17 October 2020 but it had to exhaust
internal remedies. In terms of issuing civil process, the eight months period was affected by
the various Practice Directions issued in 2021 that impacted on the reckoning of days. This is
due to the fact that the filing of process was limited.
In my view, the legal issues that arise are these?
1. What is the meaning of instituting legal proceedings within three months from
the date of the cause of action?
2. Is there a requirement that internal remedies should be exhausted before
instituting civil proceedings?
Section 196 of the act makes provision for the 60 days’ notice period and the eight months
period within which to institute proceedings as follows:
196. Notice of action to be given to officer
(1) 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 law relating to customs and excise until sixty days after notice has been given in
terms of the State Liabilities Act [Chapter 8:15].
(2) Subject to subsection (12) of section one hundred and ninety-three, any proceedings
referred to in subsection(1) shall be brought within eight months after the cause thereof arose,
and if the plaintiff discontinues the action or if judgment is given against him, the defendant
shall receive as costs full indemnity for all expenses incurred by him in or in respect of the
action and shall have such remedy for the same as any defendant has in other cases where
costs are given by law.
Section 193 broadly deals with the procedure as to seizure and forfeiture. Specifically
s 193 (12) states as follows.
(12) Subject to section one hundred and ninety-six, the person from whom the articles have
been seized or the owner thereof may institute proceedings for—
(a) the recovery of any articles which have not been released from seizure by the
Commissioner in terms or paragraph (a) of subsection (6); or
(b) the payment of compensation by the Commissioner in respect of any articles which have
been dealt with in terms of the proviso to subsection (6); within three months of the notice
being given or published in terms of subsection (11), after which period no such proceedings
may be instituted.
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In casu, the time lines are very clear and have raised no dispute hence there is no need
to establish them through oral evidence as contended in Brooker v Mudhanda and anor,
Pearce v Mudhanda and anor, 2018(1) ZLR 33. The notice was given on 18 July 2020 and
the three months lapsed on 17 October 2020.
In dealing with the then provision on forfeiture and seizure, (s179(6) of the then
Customs and Excise act [Chapter 177] in Murphy v Director of Customs and excise, 1992(2)
ZLR 28, the headnote reads, “In terms of s176 (9) of the Customs and Excise Act, Chapter
177, a person wishing to recover goods which have been seized by Customs must institute
proceedings to recover his goods within three months of the seizure. As the plaintiff had
failed to bring his proceedings within the time period specified, his claim was prescribed.
What is critical to note in that case is the observation by SMITH J that the 3 month period was
extended to eight months – see s 196(2). It is clear that the cause of action is the notice of
seizure. To that extent, reliance by the respondent’s legal practitioner to the three month
period in that case is out of context.
In Machacha v. ZIMRA, HB-186-11, NDOU J had this to say,
In the event I am wrong in this conclusion, still the application has to be dismissed on the
basis of the other point in limine raised i.e. the claim has prescribed in terms of section
193(12) of the Act. In terms of section 193 (12) the application of this nature has to be made
within three months of the notice of seizure being given to the owner of the vehicle. In casu,
the Notice of Seizure was given to Murada on 10 June 2010. This application was filed about
four months after this date. This means that his cause of action based on unlawful seizure has
prescribed – Harry v Director of Customs 1991 (2) ZLR 39 (H) and Murphy v Director of
Customs and Excise 1992 (1) ZLR 28 (HC).
In Chigonga v ZIMRA, HH-663-17, NDEWERE J stated as follows;-
The motor vehicle in dispute was seized on 19 December, 2014. The applicant instituted
proceedings for the release of the motor vehicle on 2 October, 2015, more than nine months
later, yet in terms of s 193 (12) of the Act referred to above, proceedings ought to have been
instituted within three months. Thus instituting the proceedings on 2 October, 2015, was in
direct conflict with the specific provision of s 193 (12) of the Customs and Excise Act,
[Chapter 23:02].
In casu, the cause of action as stated in the letter dated the 13 th of October 2020 from
the applicant’s legal practitioners to the respondent, the cause of action was the forfeiture of
the truck and the trailer. This all emanated from the notice of seizure dated 18 July 2020,
which on the face of it gave a plethora of rights to any person affected. The cause of action
falls squarely within the purview of s 193. I agree with the submission by Mr Marange for
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the respondent that the provisions of s 196 (2) is clearly made subject to s 193 (12).
Proceedings were instituted on 2 March 2021, way after the three months period.
The applicant contended that it first had to exhaust internal remedies and reference was
made to Qingsham Investment (pvt) Ltd v ZIMRA, HH-207-17. However in that case, the
exhaustion of internal remedies was in the context of an urgent application and therefore is
not applicable. In my view, exhaustion of internal remedies is not a bar to the institution of
civil proceedings. Section 193(12) is a statutory provision that makes no provision for the
extension of the time period. To that extent, it is my considered view that the exhaustion of
internal remedies is not a bar to the institution of civil proceedings as long as the cause of
action falls broadly under s 193.
To that end the applicant’s claim has prescribed. There is nothing warranting
departure from the general rule that costs should follow the cause especially in non-
constitutional matters.
DISPOSITION
It is ordered as follows:-
1. The respondent’s point in limine on prescription is upheld.
2. The application is dismissed with costs.
Muhlolo Legal Practice, applicant’s legal practitioners