DDT Engineering & Logistics v Regional Manager, Zimbabwe Revenue Authority Beitbridge & 2 Ors

### Preamble
1
HB 241/22
HC 376/22
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DDT ENGINEERING & LOGISTICS

Versus

REGIONAL MANAGER, ZIMBABWE

REVENUE AUTHORITY BEITBRIDGE

And

THE COMMISSIONER OF CUSTOMS & EXCISE

ZIMBABWE REVENUE AUTHORITY

And

ZIMBABWE REVENUE AUTHORITY

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 7 & 29 SEPTEMBER 2022

Opposed Application

T. Tashaya, for the applicant

T. L Marange for the respondents

MAKONESE J:	This is an application for review brought in terms of s26 of the High Court Act (Chapter 7:06).  Applicant seeks an order in the following terms:

“1.	The decision of the 1st and 2nd respondent to forfeit applicant’s Horse and Trailer under notice of seizure number 008533 L on 7the December 2021 be and is hereby reviewed and set aside.

2.	The respondents be and are hereby allowed to assess any statutory penalties and fees for the offence committed and allow applicant to pay the same.

3.	The 3rd respondent is ordered to release applicant’s Horse and Trailer to the applicant upon payment of any statutory fees and penalties as would have been assessed in paragraph 2 above.

4. 	Respondents be and hereby ordered to pay the costs of suit jointly and severally the one paying the other to be absolved.”

The application is opposed by the respondents.   Respondents have raised various points in limine, which they contend are dispositive of the matter without dealing with the matter on the merits.

Background facts

On the 24th of November 2021, 3rd respondent’s enforcement team based at Beitbridge or routine compliance checks intercepted a foreign registered truck towing taut liner interlink trailers bearing registration numbers JJ287H GP/KK3579MP; KK5571MP in a tunnel towards an imports scanner.  Upon request, the driver presented Bill of Entry number C84043 dated 27 November 2021 indicating that the truck was carrying diapers.  The truck was referred for scanning to confirm the goods reflected on the declaration.  Before the image analyst could start scanning, the driver jumped out of the truck and sped off towards the last check point.  The driver abandoned the truck and fled the scene.

The abandoned truck was driven by a Zimbabwe Revenue Authority driver towards a parking bay.  The truck developed a mechanical fault and blocked all south bound traffic.  It took several days to remove applicant’s truck to a proper parking bay.  A physical examination of the truck revealed that the truck was not carrying diapers.  A false declaration had been presented to 2nd respondent.  Diapers are imported duty free.  The Bill of Entry was meant to deceive officials of 3rd respondent.  An assortment of goods including soap, washing powder, switch energy drinks, candles, beans and baby petroleum jelly were located in the trailer.  These goods attracted duty and the state suffered financial prejudice in unpaid duty.   3rd respondent seized both the goods and the truck and trailers.  The motor vehicle was seized for conveying goods subject of an offence in terms of section 188 (2) of the Customs and Excise Act (Chapter 23:02) as read with section 193 of the Act.  Applicant made representations to the 1st respondent for the release of the vehicle on the grounds that the driver of the truck was not authorized to carry smuggled goods.  Applicant indicated that it had no knowledge that the vehicle was being used to ferry smuggled goods and that it hired out the truck in good faith.  On 20th January 2022 applicant’s appeal to 2nd respondent for the release of the motor vehicle and trailers was declined.  It is that dismissal of the appeal that has led to this present application.

POINTS IN LIMINE

Whether 1st and 2nd respondents have been properly cited as respondents

Respondents submit that 1st and 2nd respondents have not been properly cited in this application.  It is contended by respondents that 1st and 2nd respondents are not legal personas with rights to sue or to be sued.  It is further submitted that applicant cited the wrong parties in these proceedings when it cited the Commissioner Customs and Excise and the Regional Manager, Zimbabwe Revenue Authority, Beitbridge.  In response, the applicant avers that the 1st and 2nd respondents have been properly cited. Applicant avers that the respondents have been cited in their official capacities.  They have the right to sue and to be sued, not in their personal capacities but in their official capacities, as functionaries of the 3rd respondent.  The citation of the 1st and 2nd respondents, in my view, is not fatal to the application.  The decisions sought to be reviewed were taken by 1st and 2nd respondents in their official capacities.  This point in limine has no merit and ought to be dismissed.

Whether failure to give notice of intention to sue in terms of section 196 (1) of the Customs and Excise Act is fatal to these proceedings

Respondents submit that in terms of section 196 (1) of the Act, the applicant was required to give notice of intention to institute legal action against the Commissioner or any officer under this Act.  The relevant provision states that:

“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).”

Respondents contend that there is a bar against the institution of civil proceedings against the respondents up until sixty days have passed after the giving of notice in terms of the State Liabilities Act.  Respondents aver that the applicant neglected to give out the requisite notice in terms of the law rendering the application a nullity which ought to be dismissed.  In support of its position respondents placed reliance on the case of Ronald Machacha v ZIMRA HB-186-11.  Applicant’s response on this aspect is that the provisions of section 196 (1) of the Customs and Excise Act do not apply to this application.  Applicant contends that an application for the review of the decision of the respondents does not amount to the institution of legal proceedings as provided for in the Customs and Excise Act.  Applicant contends that a review of the decision of the respondents’ decision does not by any stretch of imagination amount to civil proceedings against the State, the Commissioner or any officer under the Customs and Excise Act section 193 (12) of the Customs and Excise Act. The person from whom the articles were seized or the owner is required to institute proceedings for the recovery of the articles within 3 months of the notice being given or published in terms of subsection (ii).  In the instant case the notice of seizure was given on the 7th of December 2021.  On the 3rd of March 2022, the applicant filed the application for review.  This is within the 3 months as provided in terms of section 193 (12) of the Customs and Excise Act.  It is clear that the applicant is not barred from instituting these review proceedings by virtue of the provisions of section 196 (1) of the Customs and Excise Act.  I would, therefore, dismiss the point in limine.

THE MERITS

The issue for determination in this matter is whether or not the decision of the 3rd respondent made through the 1st and 2nd respondents to have forfeit   applicant’s International Truck and Trailers is “so outrageous in its defiance of logic and accepted moral standards that no sensible person who had applied his mind to the questions to be decided could have arrived at it.”

The third respondent and its employees being 1st and 2nd respondents are administrative authorities in terms of the Administrative Justice Act (Chapter 10:28).  In terms of section 3 of the Administrative Justice Act it is provided that:

“(1)	An  administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall:

Act lawfully, reasonably and in a fair manner …”

It is the applicant’s contention that the decision made by the respondents to have its Horse and trailers forfeited in terms of section 193 (1) and (2) of the Customs and Excise Act is irrational, arbitrary and unfair, for the following reasons:

Firstly, section 188 (2) of the Customs and Excise Act states that:

“188   …

2(a)	Any person who makes available his or her ship, aircraft as vehicle for use by another person for the removal of goods referred to in subsection 2 (a) or (b) shall be guilty of an offence and liable to a fine not exceeding level fourteen or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment unless he or she proves that he or she was unaware that the ship, aircraft or vehicle would be so used.”  (my emphasis)

Respondents forfeited applicant’s Truck and Trailers despite the applicant having demonstrated that applicant was not aware that the driver of the truck would use the vehicle for smuggling or for any illegal purpose. It  was not denied by the respondents that the truck was hired by one Partial Jeche.

The respondents’ attitude towards this matter is reflected in a letter dated 25th December 2021 addressed to the applicant by the 1st respondent in the following terms:

“The facts of the matter have been considered very carefully but I cannot overlook the fact that your truck was used to convey goods which are a subject matter of the offence.  This constitutes a serious offence in terms of section 188 of the Customs and Excise Act (Chapter 23:02) …”

From these comments, it is clear that respondents took the view that because the truck was used to convey smuggled goods, then the owner of the truck should have been aware that the vehicle was being used for illegal purposes.  This cannot be a correct approach.  The law demands that before the vehicle is forfeited it is shown that the owner was aware that the vehicle was used for the illegal enterprise.

In the case of Ndaza v Zimbabwe Revenue Authority 2004 (1) ZLR 317, the learned judge who was faced with an application for the release of a house boat which had been seized and forfeited by ZIMRA in terms of section 188 of the Customs and Excise Act had this to say:

“As can be seen from the above passage smuggling cannot be classified as one of the public welfare offences and is accordingly not a strict liability offence.  It must therefore be established that there was intention and culpa on the part of the owner for liability to attach.  In casu, there is no doubt that the applicant had no knowledge of the commission of the crime which led to the seizure of the vessel.  Neither was he negligent in any way.  Finally, I wish to emphasise that although the provisions of section 187 and 188 of the Customs and Excise Act were indeed peremptory, they do not create a strict liability offence.”

I am of the firm view that the respondents did not establish on the papers that the applicant had the intention to smuggle any goods. It was not established that applicant had prior knowledge that the vehicle would be used to smuggle goods.  On this basis, the decisions of the respondents is irrational and arbitrary and ought to be set aside.

Secondly, and in event, the decision to forfeit the International Truck and Trailers is rational, the decision made is not proportional to the offence allegedly committed.  The Customs and Excise Act provides for penalties for the smuggling of undeclared goods.  The act of forfeiting is not only punitive but harsh and must only be resorted to when there is clear evidence that the owner of the vehicle was aware that the vehicle was being used to commit an offence.  For this reason, the decision by the respondents cannot be allowed to stand.

DISPOSITION

I am satisfied that the act of forfeiture of the Horse and Trailers was irrational, arbitrary and drastic.  Whilst the respondents have to enforce measures to reduce smuggling, there is need for a fair approach that achieves justice for the parties.  It was necessary for the respondents to establish that applicant knew or must have known that the Horse and Trailers was used to smuggle goods.

For the foregoing, the following order is made:

The application is granted in terms of the amended draft order.

The respondents are ordered to pay the costs of suit.

Sengweni Legal Practice, applicant’s legal practitioners

Zimbabwe Revenue Authority, respondents