Nyasha Kennedy Masvikeni v Zimbabwe Revenue Authority

### Preamble
1
HH 387-21
HC 3935/21
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NYASHA KENNEDY MASVIKENI

versus

ZIMBABWE REVENUE AUTHORITY

HIGH COURT OF ZIMBABWE

MUCHAWA J

HARARE, 23 July 2021

Urgent Chamber Application

In Chambers

MUCHAWA J: This is an urgent chamber application which had been set down for hearing on 22 July 2021. Due to Practice Direction 6 of 2021 addressing COVID-19 Prevention and Containment, the hearing was cancelled and the matter is to be determined on the papers. Both parties filed their pleadings.

The brief facts of the matter are that the applicant presented himself before the respondent’s official as a returning resident who had been living with his family for 11 years in the United Kingdom. Upon being interviewed he qualified for a returning resident’s duty free rebate on his household and personal goods except on irrigation equipment, a solar system and a 40 foot container. On 13 March 2020, the applicant cleared and paid duty on the solar system and irrigation equipment leaving only the 40 foot container detained.

An appeal was then lodged with the respondent’s Commissioner General on 4 April 2021. On 26 May 2021, the appeal was dismissed and applicant was advised to approach the Regional Manager of Greater Harare at Kurima House to arrange to pay the duties due by 26 July 2021, failing which the container would be forfeited to the State.

It was only on 5 July 2021 that the applicant gave 60 days’ notice of intention to institute legal proceedings against the respondent in terms of the State Liabilities Act, [Chapter 8:14]. This application was filed on 17 July 2021.

The terms of the draft provisional order sought by the applicant are stated as follows;

“ 1. 	The respondent be and is hereby interdicted from auctioning a 40 foot container scheduled for the 26th July 2021, until the applicant can file an application for declaratory order for the court to determine the rights of all parties involved in the matter of the 40 foot container.

2. 	 In the event that by the time this order is granted the auction have already been conducted such auction be and are hereby declared null and void.

3. 	Applicant’s legal practitioners shall be and hereby granted leave to serve this provisional order upon the respondents.”

The terms of the final order sought are that the respondent show cause why the interim order granted by the court be not confirmed with respondent paying costs.

The respondent has taken points in limine in its opposition. The first is that this matter is not urgent and the second is that the applicant’s right to institute civil proceedings has prescribed. I turn to consider each of these in turn below.

URGENCY

The applicant says the matter is urgent because his appeal to the respondent was dismissed without any justifiable basis yet he had a legitimate expectation to be granted a rebate as returning resident. Further it is stated that the auction scheduled for 26 July 2021, if allowed to proceed, will result in irreparable harm on him. Reference is made to the 60 days’ notice of intention to sue the respondent and that the 60 days has not yet lapsed wherein a review of the decision of the respondent on grounds of gross irrationality would be sought resulting in a declaratory order. It is argued that if this application is not granted, then the declaratory order would be academic and that the urgency in casu is not self-created.

On the other hand, the respondent submits that there is no urgency in this matter as the cause of action arose sometime in February 2020 when applicant was denied rebate for the container in question when the need to act arose. It is argued that, instead, the applicant sat on his laurels and did not act for 15 months and has not explained the delay.

Respondent stated that the applicant has been pushed to act now simply because of the imminence of the day of reckoning and this is self-created urgency.

In the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (HC) where there was only a 7 day delay in filing an urgent chamber application from the date when the cause of action was complete, it was observed that the certificate of urgency did not explain the delay. It was held that what constitutes urgency is not only the imminent arrival of the day of reckoning. A matter was said to be urgent, if at the time of the need to act arises, the matter cannot wait. Further, it was held that urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.

In casu, as stated by the respondent, the need to act on applicant’s part initially arose in February 2020 when the request for free rebate was denied. The delay of 15 months to date is not explained. Even if I was to reckon the time from 26 May 2021 when the applicant received the Commissioner General’s decision, there is close to 2 months delay which is not accounted for. It is clear that it is the looming auction on 26 July 2021 which has spurred the applicant to act yet this deadline was spelt out in the Commissioner General’s letter. This is not the type of urgency contemplated by the rules.

This point in limine is upheld and I accordingly strike off this matter from the urgent matters roll for want of urgency with costs.

PRESCRIPTION

In the light of my findings of the issue of urgency, there is no need for me to detain myself on this second point in limine. The matter stands struck off the roll of urgent matters with costs.

Tapera  Muzana & Partners, applicant’s legal practitioners

Zimbabwe Revenue Authority Legal Service Division, respondent’s legal practitioners