Patrick Musarara v The Commissioner General Zimbabwe Revenue Authority

HH 90-2011
                                                                                HC 4141/10

PATRICK MUSARARA
versus
THE COMMISSIONER GENERAL
ZIMBABWE REVENUE AUTHORITY


HIGH COURT OF ZIMBABWE
MTSHIYA J
HARARE, 10 February 2011 and 1 June 2011


Advocate Mushore, for the applicant
A. Moyo, for the respondent


       MTSHIYA J: This is an application wherein the applicant seeks the following relief:-
       “IT IS ORDERED THAT:-
       1. The respondent shall forthwith release to the applicant the Crysler Lemis 300C
          Hemi motor vehicle seized from the applicant on the 21st October, 2009.

       2. The applicant shall not be required to pay any duty or storage charge in respect of
          the motor vehicle.

       3. The costs of this application shall be paid by the respondent on the legal
          practitioner and own client scale”.

       The background to the relief sought is this.

       On 12 November 2008 the applicant, a Zimbabwean citizen who had been living
outside the country for five years returned to the country (Zimbabwe) through Beitbridge
Border Post. He was travelling from the United Kingdom. On his way back to Zimbabwe he
had passed through Sought Africa where he had purchased a vehicle, namely a Crysler Lemis
300C Hemi (the motor vehicle). Upon entry into Zimbabwe, the applicant was granted a rebate
on the motor vehicle on the basis that he was a returning resident. However, on 21 October
2009 the vehicle was seized by officers of the respondent on the ground that they doubted if
indeed he was a returning permanent resident.
       On 2 November 2009 the applicant made representations to the respondent in the
following terms:
       “My name is Patrick Musarara a returning resident from the United Kingdom. On my
       way from the United Kingdom, I passed through South Africa and bought the Chrysler
       Lemis 300C Hemi, from an auction of repossessed cars at Aucar Auctions,
       Johannesburg, South Africa. I drove the car to Zimbabwe on the 12 November, 2008
       through Beitbridge Border Post and got a rebate as a returning resident.
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       I am in the process of buying trucks from USA for my haulage business which I have
       just started and this necessitated that I travel to carry out the transactions which I did.
       The trucks are due into the country in January, 2010 from the United States. The papers
       are hereby attached for ease of reference.

       While I was away, my car was driven without my authorization on the 21 st October,
       2009. I had left the car in safe keeping knowing that this type of a car can easily attract
       car-jacking syndicates. Therefore, I truly submit that I did not authorize the use of the
       car while I was away on business transaction as stated earlier.

       There, I am appealing for your consideration on the determination of this matter for the
       release of the car to me personally. I undertake to ensure that there will not be a repeat
       of this nature again and hereby swear to abide by the rules of the rebate.

       I pray to God for your favourable consideration of the mater and have the car released
       to me”.

       On 9 November 2009, after further exchanges of correspondence and interviews, the
respondent gave the following response to the applicant’s request for the release of the motor
vehicle;
       “Re: Notice of Seizure Number 027411K of 21 October 2009: CHRYSLER LEMIS
       HEMI: CHASSIS NO. IC3H9E3H67Y51914
       I have thoroughly considered your submission and subsequent interviews in connection
       with your violation of the Customs and Excise (General) Regulations Section 105 subs
       3. The circumstances under which the immigrant rebate was claimed indicate that it
       was claimed earlier than the date of your return as your passport indicate that you are
       spending most of your time in the UK and in Zimbabwe you only come as a visitor.
       Hence, breaching of this condition required placing of the motor vehicle under seizure,
       release of which could be effected after payment of duty which was due on the day the
       motor vehicle was cleared under immigrant’s Rebate and penalty. The vehicle was
       placed on seizure on 21 October 2009 a.m. therefore prepared to release the motor
       vehicle on the following conditions:-

       1.     Payment of duty of ZAR253,000-00
       2.     Payment of 100% penalty of ZAR253,000-00
       3.     Payment of storage charges.
       You are being requested to pay Customs Duty in terms of the Customs and Excise
       (General) Regulations s 105 subs 8 which provide that where a person leaves the
       country within two years of claiming immigrant rebate he should remove such effects
       or duty pay for the goods so cleared.

       Please arrange with the head Investigations to pay the above amounts and release of
       your motor vehicle at Kurima House 89 N Mandela Ave. Failure to pay the above
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       amounts within three months will result in the motor vehicle being forfeited to the
       state”.

       The applicant has to date refused to pay duty arguing that he is a bona fide returning
permanent resident and that he has not violated the country’s customs and Excise (General)
Regulations S.I. 154/2001. The respondent has in turn refused to release the motor vehicle and
hence this application.
       In an opposing affidavit to this application the respondent raised a point in limine. The
respondent argued that the application, having not been made within three months, as required
by the regulations, was prescribed. The respondent correctly relied on the notice of seizure
which states:
       “If you wish, you may within three months from the date of this notice, make your own
       representations to the Port Manager of the Port shown on this notice, for the release of
       the goods. Additionally or alternatively you may, within three months from the date of
       this notice and subject to the submission of written notification 60 days beforehand and
       in terms of s 196 of the Act, institute proceedings for the recovery of the goods from
       the Commissioner…”

       The respondent submitted that, notwithstanding the fact that the applicant had engaged
the respondent in discussions for the release of the motor vehicle, the applicant should have all
the same filed this application three months from the date of seizure (i.e 21 October 2009).
       The applicant on his part has argued that, given the appeals he made to the respondents,
his application was filed within the requisite period.
       Both parties have dealt with the issue of prescription at length in their heads of
argument. I am, however, unwilling to accept that the applicant’s application should be
dismissed on the basis of prescription. I find it untenable for anyone to suggest that the
applicant should be punished for his confidence in the internal remedies that the respondent
can, in law, offer. Furthermore, even on 2 November 2009 the respondent was still in a
position to allow the applicant to pay duty within a period of three months. That surely brought
clear shifts in terms of time calculations.
       It should also be noted that as late as 31 December 2009 the respondent was still saying
the following:-

       “We wish to advise that your client’s appeal is still under consideration and you will be
       advised of the outcome in due course. Please bear with us in the meantime.”
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       In fact at one stage in the process of preparing this judgment I had formed the view that
the relief that the applicant should seek is to compel the respondent to make a final decision. I,
however, moved away from that view because in para 18 of the opposing affidavit the
respondent states the following:-
       “It is admitted that the respondent advised that the applicant’s appeal was still under
       consideration as the respondent had closely monitor the applicant’s movement. A
       decision was eventually made and it was communicated to the applicant that his appeal
       was unsuccessful”.

       There is no evidence of that finalisation.

       Although I do not know when the final decision “was eventually made, I thought it
would only serve to delay finalisation of the issue if I were to suggest that what the applicant
needed to do was to seek to compel the respondent to make a final decision. The papers before
me suggest that the motor vehicle will not be released until the applicant complies with the
requirements of the respondent as spelt out in the respondent’s letter of 9 November 2009.
       In view of the conduct of the respondent, as confirmed in the above letter of 31
December 2009, I am unable to uphold the respondent’s point in limine. There was reason for
the applicant to believe in respondent’s internal remedies. The applicant, having given the
necessary notice, is properly before the court.
       As to the merits of this application, I believe the issue to determine is whether or not
the applicant falsely declared himself a returning permanent resident in order to qualify for the
grant of a rebate on the motor vehicle.
       In their heads of argument, both parties have carefully considered the issue of whether
or not the applicant made a false declaration.
       In paras 10 and 11 of his supplementary heads of argument the applicant states as
follows:-
       “10.    The conditions to be fulfilled for taking up permanent residency are clear and
               unequivocally state that a permanent resident is a person who returns home and
               does not stay out of the country for periods longer than 6 months outside the
               country. Section (8) of SI 154/2001 which reads:-

               ‘(8) An immigrant who has been granted a rebate of duty in terms of this
               section, and who emigrates or departs from Zimbabwe for a period of more
               than six months within twenty-four months from the date of which any effects
               or other goods imported by him were entered under rebate, shall remove such
               effects or other goods from Zimbabwe on his departure, unless he has obtained
               the prior written permission of the Commissioner to leave them in Zimbabwe,
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               or has paid the full duty which would have been payable at the time of entry of
               the goods but for their entry under rebate’

       11.     In no way whatsoever has applicant departed from Zimbabwe for a period
               longer than six months. A departure for longer than 6 continuous month would
               in accordance with s (8) qualify to be called emigration. He immigrated and
               under such cause of immigration as it flowed therefrom, was granted a
               permanent residence rebate”.

        The respondent counters the above submission through paras 2.5 and 2.6 as follows:-
       “2.5    It is the respondent’s submission that surely if the applicant was a returning
               resident he would not have been be accorded a visitors status in Zimbabwe but
               in the United Kingdom and it boggles one’s mind why the applicant was not
               accorded the visitors status in U.K. which he is claiming to have been visiting
               and accorded the visitor’s status in a country that he is claiming to be residing
               permanently. All this goes to show that the applicant is not a resident here but is
               resident in the United Kingdom. Further the fact that he is a British resident is
               supported by his valid British resident permit.

       2.6.    It is further submitted that is a pre requisite that one has to be a returning
               resident to qualify to be granted the immigrants’ rebate. In casu the applicant
               misrepresented that he was a returning resident when in actual fact he knew that
               he had no intentions whatsoever of residing in Zimbabwe permanently. This is
               clearly evidence by his failure to reside in Zimbabwe for a continuous period of
               even one month. In doing so the applicant violated the Act and Regulations and
               his vehicle was liable to seizure”.

       I initially had a serious inclination to agree with the applicant that he did not breach
any law in obtaining the rebate for his motor vehicle. That is so because I hold the view that a
returning permanent resident, moreso the applicant who had permission to enter the UK
through a resident permit, is not totally barred from leaving the country. He can still visit other
countries provided, as already indicated, he does not depart from Zimbabwe for a period of
more than six months from the date of being granted the rebate or from the date he or she
declares that he or she has returned permanently. A simplistic approach to the problem would
make it appear that the applicant managed not to offend this provision of the law. The
applicant new the legal meaning of a returning permanent resident. He therefore put in place
acts which would, under ordinary circumstances, ensure compliance with the law.
       However, the problem in casu arises when the applicant accepts to be treated as a
visitor in his country of permanent residence. If indeed he was honest that he was now a
returning permanent resident, he should, have , in my view,
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       (a)     formally protested against being allowed to stay in Zimbabwe as a visitor for a
               limited period of only 30 days, or

       (b)     ignored the 30 days limit.

       The applicant did not take either of the above two steps but instead made sure that the
30 days accorded to him as a visitor did not expire whilst he was still in Zimbabwe. Clearly
therefore the logical conclusion to be drawn by the respondent, after its post importation
clearance audit, was that the applicant was manipulating the system. I am unable to disagree
with that conclusion. The applicant clearly sought to manipulate the system in such a way that
it would appear he was complying with the law.
       The applicant’s conduct, in my view, does not qualify him as a returning permanent
resident. On a balance of probabilities therefore, the facts presented by both sides clearly point
to the finding that the applicant had indeed falsely declared himself to be a returning resident
in order to be granted the rebate for the motor vehicle. In those circumstances the respondent
was justified in withdrawing the rebate and seizing the motor vehicle pending payment of the
requisite rebate.
       The authorities cited by Advocate Mushore (e.g. Time Sahwira Mupinga v The
commissioner General Zimbabwe Revenue Authority and the Minister of Finance HH 21/10)
could only have been relevant if the applicant was indeed a bona fide returning permanent
resident. There is therefore merit in the opposition mounted by the respondent against this
application. The application cannot succeed.
       The application is dismissed with costs.




Mhiribidi, Ngarava & Moyo, applicant’s legal practitioners
Kantor & Immerman, respondent’s legal practitioners