Robert Mabulala v Zimbabwe Revenue Authority

### Preamble
1
HH 508-25
Case No HCH 1156/25
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ROBERT MABULALA

versus

ZIMBABWE REVENUE AUTHORITY

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 18 June 2025 & 5 September 2025

Opposed Application-Review of the respondent’s decision made under the Customs & Excise Act [Chapter 23:02]

J. Dondo, for the applicant

T.E. Kamema, for the respondent

MUSITHU J: The applicants approached the court on review challenging the respondent’s decision to reject the applicant’s request for the clearance of his motor vehicle but instead directing that the vehicle be re-exported. The relief sought in the event of the court finding for the applicant was set out in the draft order as follows:

“IT IS HEREBY ORDERED THAT: -

The decision by the Respondent to seize the Applicant’s motor vehicle namely the ISUZU KB 280 chassis number ADMTFR564 YB984546 and engine number 4JB1789663 and the order that the motor vehicle be re-exported to South Africa at the Applicant’s expense be and is hereby set aside.

The Respondent be and is hereby ordered to clear the Applicant’s said motor vehicle for importation into Zimbabwe in terms of the law.

The Respondent shall pay costs of this application.

Background and Applicants’ Case

The brief factual background as set out in the applicant’s papers was as follows. Between July 2016 and 1 June 2024, the applicant was employed as a Counsellor at the Embassy of the Republic of Zimbabwe based in Pretoria, South Africa. In December 2023, he purchased a second-hand motor vehicle namely an ISUZU KB 280 with chassis number ADMTFR564 YB984546 and engine number 4JB1789663 (hereafter referred to as the Isuzu or the vehicle). The vehicle was manufactured in South Africa in July 2001.

The applicant returned to Zimbabwe on 1 June 2024, as a returning diplomat with two motor vehicles, namely a LandRover Defender (the Defender) with identification number 404616S2K002 and control number 4035005 J RG8 and the aforementioned Isuzu. After about a month the Defender was cleared by the respondent’s officials who sought further clarification with regards to the Isuzu.

On 2 August 2024, the applicant was served with a letter from the Station Manager Harare Port, which letter stated that in terms of s 3(1) of the Statutory Instrument 54 of 2024 (SI 54/24), the Isuzu could not be imported into Zimbabwe since it was manufactured more than 10 years ago. The letter also directed the applicant to re-export the vehicle to South Africa at his own expense. The vehicle was placed under seizure on 2 August 2024. The applicant contends that the said letter was written despite the fact that on 7 June 2024, the respondent’s officials based in Harare had authorised their counterparts based at Plumtree Border Post to issue the applicant with a report order which permitted him to proceed to Harare with the two motor vehicles.

The applicant was granted leave to appeal against the decision of the Station Manager to the Regional Manager, Greater Harare. On 5 August 2024, the applicant appealed to the Regional Manager through his legal practitioners. On 23 August 2024, the Regional Manager dismissed the applicant’s appeal and upheld the Station Manager’s decision.

On 12 September 2024, the applicant further appealed to the respondent’s Commissioner Customs and Excise. The appeal was dismissed on 6 December 2024. On 6 January 2025, the applicant served the respondent with the statutory notice to institute proceedings in terms of s 196(1) of the Customs and Excise Act [Chapter 23:02] (the Act), as read with the State Liabilities Act [Chapter 8:15]. There was no response to the letter.

The application for review was motivated on three grounds. The first ground was that the decision by the respondent’s officials was grossly unreasonable and irrational that no reasonable official could have arrived at such a decision taking into account the provisions of the legal instruments relied upon. It was averred that the officials failed to understand and appreciate the position of the law with regards to s 3(1) of SI 54/24, as amended by s 3(2) of SI 111/24.  The applicant averred that the effect of the amendment was that second hand vehicles aged 10 years and above belonging to certain categories of individuals would be allowed entry into Zimbabwe. As a diplomat returning to Zimbabwe, the applicant qualified under this exemption to have both vehicles allowed entry into Zimbabwe.

The applicant further averred that the Isuzu fitted into the category of second hand vehicles above 10 years which were allowed entry into Zimbabwe considering the applicant’s status. The respondent’s officials therefore misinterpreted the law in denying the vehicle entry into Zimbabwe for the reasons that they gave.

The second ground for review was that the decision directing that the vehicle be re-exported at the applicant’s expense was grossly unreasonable and irrational as it imposed excessive hardships on the applicant. This was because on his return to Zimbabwe, the applicant was issued with a report order which allowed the conveyance of the vehicles to Harare from Plumtree Border Post.

The respondent’s officials were accused of irrationally overlooking the fact that it was their parent ministry that issued him import licenses in respect of the two vehicles, with full knowledge that the vehicles were more than ten years old. The applicant also claimed that prior to receiving his recall letter, he was using the Isuzu for official duties in South Africa.

The last ground for review was that the decision by the respondent’s officials was contrary to law having regard to the provisions of SI 111/24. Their decision was influenced by irrelevant considerations.

Respondent’s Case

In its opposing affidavit, the respondent set out the factual background as follows. The applicant arrived at the Plumtree Border Post with the two vehicles on 1 June 2024. The applicant was issued with a report order for deferred clearance with the instruction to report to Head Office Compliance section with both vehicles. The applicant approached the Harare Port Motor Traffic section with the report order and import licenses that were issued on 22 July 2024, intending to clear both vehicles.  Only one vehicle was allowed under the immigrants’ rebate, and the applicant opted to clear the Defender.

The Isuzu did not qualify since the applicant was entitled to clear one motor vehicle under the rebate. He was therefore required to account for duty in respect of the Isuzu. However, since the vehicle was more than ten years old, duty could not be collected and neither was the importation permissible. Vehicles which were more than ten years old at the time of importation were banned in terms of SI 54/24.

As regards the merits, the respondent averred that the relief sought by the applicant was incompetent as it was prohibited by law. The order to assess duty on a vehicle that was more than 10 years old was incompetent. The respondent further averred that the applicant was only entitled to import one motor vehicle under the immigrants’ rebate facility. The Isuzu was more than 10 years old and it could not be cleared.

The respondent denied that it had misinterpreted the law. The Customs and Excise (General) Regulations, 2001 (the General Regulations), were clear that an immigrant was entitled to only one vehicle under the rebate within a period of four years. The only vehicle that was exempt from re-exportation was the one cleared under rebate as prescribed in terms of SI 111/24.

The respondent also justified the use of the report order as a form of deferred clearance which facilitated the movement of goods from the port of entry to the inland port for final clearance. It was upon clearance that it was discovered that only one motor vehicle could be cleared under the immigrant’s rebate while the other was more than 10 years and there was a ban on its importation in terms of SI 54/24. The respondent was simply enforcing the law.

Further, according to the respondent, at the time that the applicant purchased the two motor vehicles in December 2023, the importation of motor vehicles aged more than ten years was restricted implying that one needed an import licence from the Ministry of Industry and Commerce. The total ban only came into effect on 29 March 2024 after the promulgation of SI 54/24. Statutory Instrument 111/24 was promulgated on 12 July 2024 to bring clarity on transitional matters from the restriction to the total ban.

The respondent further averred that the issuing of import licences was outlawed by SI 54/24, which came into effect on 29 March 2024. The applicant’s vehicle did not require an import licence, but it had to be re-exported to the country of export. The exemption of the import ban for motor vehicles aged 10 years and above was intended for those motor vehicles that would have been granted immigrants rebate by the respondent. The Isuzu was not granted a rebate, and consequently the exemption did not extend to second hand motor vehicles imported by the same immigrant who had already benefited from the immigrant rebate facility.

The Submissions

Mr Dondo for the applicant submitted that the decision by the respondent’s Commissioner Customs and Excise was incorrect, if regard was had to the proviso to SI 111/24. He further submitted that although it was the prerogative of the respondent to grant a rebate, the applicant could not be expected to re-export the vehicle especially after the applicant had been issued with a report order.

Counsel further submitted that the applicant should be allowed to pay duty because he was issued with an import licence by the government in July 2024. It was highly irregular for him to be ordered to re-export the vehicle.

In reply, Ms Kamema for the respondent submitted that SI 54/24 placed a ban on the importation of vehicles above 10 years. The only exemption was in respect of a vehicle imported under a rebate. A vehicle imported outside of a rebate exemption did not qualify for as long as it was above 10 years.

Ms Kamema further submitted that the import licence referred to by the applicant was issued on 22 July 2024. The licence was invalid because at the time of its issuance, SI 54/24 had been promulgated on 29 March 2024. The effect of the new law was to do away with the requirement for import licences and imposed a complete ban on vehicles above 10 years.

of the same year.

Analysis

The issue before the court is concerns the fate of the Isuzu which the applicant was ordered to re-export to the country of origin for two reasons. The first reason was that the vehicle did not qualify for an immigrants’ rebate since the applicant had already been granted a rebate in respect of the Defender. The second reason was that the respondent could not even levy duty on the vehicle because it was above the age of 10 years and therefore its importation was prohibited by operation of SI 54/24 as amended by SI 111/24.

The applicant on his part argued otherwise. According to him, the report order that was issued at the port of entry entitled him to have the car cleared upon payment of duty. He also argued that the prohibition did not apply to vehicles imported by diplomats as he his interpretation of the law was that he was entitled to a rebate for the two vehicles. The applicant further argued that at any rate, he was issued with an import licence by Government, which meant that even if the Isuzu did not qualify for a rebate, the respondent was still obliged to levy duty because of the import licence.

To resolve this issue, it is critical to analyse the law pertaining to the granting of the immigrants’ rebate and the effect of the ten year prohibition that was introduced by SI 54/24 and SI 111/24.

Section 105 of the General Regulations deals with the rebate of duty on immigrant’s effects. It provides in s 105 (4) as follows:

“(4) No rebate shall be granted in terms of this section in respect of—

(a) any motor-vehicle imported by an immigrant who is, at the time of his arrival, under the age of sixteen years; and

(b) more than one motor-vehicle imported by an immigrant; and

(c) ……………………;

and shall be granted not more than once during any period of four years.” (Underlining for emphasis)

The word immigrant is defined in section 105(1) to include a person who is returning to Zimbabwe after having resided outside Zimbabwe for a period of not less than two years or any shorter period as may be approved by the Minister. Statutory Instrument 54 of 2024, was gazetted on 29 March 2024. It amended the Control of Goods (Import and Export) (Commerce) Notice, 2021, published in Statutory Instrument 89 of 2021, by deleting section 3(1) and substituting it with the following section:

“3. (1) Second-hand vehicles aged ten (10) years and above from the date of manufacture shall not be imported. Any second-hand vehicle prohibited under this subsection shall be re-exported by the owner of the said vehicle at his or her expense.”

The Control of Goods (Import and Export) (Commerce)(Amendment) Regulations, 2024 (No. 11) were published in Statutory Instrument 111 of 2024. The instrument amended the Control of Goods (Import and Export) (Commerce) Regulations, 1974, by the insertion of the following section:

“3. (1)(a) The said motor vehicle should be below ten (10) years upon completion of all Zimbabwe Revenue Authority (ZIMRA) clearance processes-

(b)	import licenses will not be processed or issued for used motor vehicles purchased and consigned after the promulgation of Statutory Instrument 54 of 2024 even in cases of delays with any authority.

(c)	for vehicles purchased and consigned before promulgation of Statutory Instrument 54 of 2024, issuance of import licences and ZIMRA clearance for 30 days from the date of publication of this notice.

3. (2) Notwithstanding section 3(1), second hand motor vehicles aged ten years and above belonging to the following shall be allowed entry into Zimbabwe-

(i)	deceased estates (inherited motor vehicles); or

(ii)	diplomats returning to Zimbabwe from their postings abroad; or

(iii)	returning residents.

Explanatory note

This exemption only applies to used motor vehicles imported by diplomats and returning residents granted Immigration rebates by the Zimbabwe Revenue Authority (ZIMRA) in accordance with the Customs and Excise Act [Chapter 23:02], Customs and Excise Regulations and any other relevant legislation. These residents must meet all eligibility requirements for the Immigrant Rebate programme.”

It is clear from a reading of s 105(4)(b) that an immigrant is only entitled to a rebate of duty in respect of one motor vehicle at the time that the rebate is claimed. To qualify for that rebate, the returning resident must have satisfied all the eligibility requirements as determined by the respondent and consistent with the provisions of the law.

Statutory Instrument 54 of 2024, imposed a ban on the importation of second hand vehicles aged 10 years and above from the date of their manufacture. The instrument also penalised the importer of such vehicle by requiring that such vehicle must be re-exported by the owner at their expense. Statutory Instrument 54 of 2024, was gazetted on 29 March 2024.

Statutory Instrument 111 of 2024 went a step further by declaring that import licenses would not be processed or issued for used motor vehicles purchased or consigned after S.I. 54/24 became law. Statutory Instrument 111 of 2024, was gazetted on 12 July 2024.

The applicant’s import licence in respect of the Isuzu was issued on 22 July 2024, some four months after the promulgation of SI 54/24. The import license was issued by the Ministry of Industry and Commerce, which same Ministry also promulgated both SI 54/24 and SI 111/24. It follows that at the time the import license was issued, the same license had long been rendered nugatory by operation of the law passed by the same authority that issued the license. The applicant’s submission that the respondent ought to have cleared the Isuzu on the basis of the import license becomes futile and meritless. The respondent would not have been expected to act on the basis of a license that had been issued in violation of the law.

The applicant also argued that from a reading of s 3(2)(ii) of SI 111/24, the Isuzu qualified for an immigrants’ rebate because, para (ii) which referred to a diplomat returning to Zimbabwe from their tour of duty, did not limit the number of vehicles that could be imported under rebate.  While it is correct that s 3(2)(ii) of SI 111/24 does not specify the number of vehicles that a diplomat may import under the rebate, the explanatory note made it clear that the exemption applied to used vehicles imported by diplomats granted the immigration rebates by ZIMRA in accordance with the enabling legislation under which rebates are granted. The explanatory note accompanying SI 111/24 therefore brought the applicant and the vehicle within the rebate regime that only allowed one vehicle to be cleared under the facility.

Even without the explanatory note, the applicant’s argument would still have been unsustainable. Both SI 54/24 and SI 111/24, have as their objective, the control of goods for import and export purposes. The immigrant rebate regime is regulated by the Customs and Excise Act, and the regulations that are made under that Act. Part XI of the Customs and Excise Act provides for rebates, refunds and the remission of duty. Section 120 of the Act provides as follows:

“120 Suspension, drawback, rebate, remission or refund of duty

(1) Regulations in terms of section two hundred and thirty-five may provide for—

(a)the suspension of any of the duties appearing in the customs tariff, the excise tariff or the surtax tariff;

(b)the granting of a drawback, rebate, remission or refund of duty.”

From a reading of the above section, it is clear that it is in terms of the regulations that are made pursuant to s 235 that provision can be made for rebate of duty. The applicant would not therefore have been granted a rebate of duty in respect of the Isuzu outside the provisions of the Customs and Excise Act and related legislation. As already noted, s 105(4)(b) provides that an immigrant is only entitled to a rebate of duty in respect of one motor vehicle at the time that the rebate is claimed. For that reason, the applicant could not claim a rebate of duty in respect of the Isuzu once he had claimed that same rebate in respect of the Defender.

Further, the applicant could not rely on the report order that was issued at the port of entry, as a basis for impugning the respondent’s decision to have the vehicle re-exported. As correctly submitted on behalf of the respondent, a report order is merely a form of deferred clearance, which is intended to facilitate the movement goods to an inland port for final clearance. It is convenient in the sense that the importer does not have to wait for long hours at the point of entry in order to undertake the clearance process, when the same process can also be undertaken closer to home. Section 3(1) of SI 54/24, is very clear that a vehicle which is imported in violation of that provision has to be re-exported at the importer’s expense. Once it was determined that the applicant was not entitled to a rebate in respect of the Isuzu, then that vehicle had to be re-exported.

In light of the above, the court determines that there is no merit in the applicant’s grounds for review. The decision by the respondent’s officials cannot be assailed on any of the grounds for review raised by the applicant. The respondent’s officials simply enforced the law, and their decision could not be characterised as grossly unreasonable and irrational on account of the hardships that the applicant must contend with as a consequence of violating the law.

Costs

The general rule is that costs follow the cause. I find no reason to depart from this general principle and award costs of suit to the respondent as the successful party.

Resultantly, it is ordered that:

The application for review is hereby dismissed for lack of merit.

The applicant shall bear the respondent’s costs of suit on the ordinary scale.

Musithu J:…………………………………………

Dondo & Partners, legal practitioners for the applicant

ZIMRA Legal Services Division, legal practitioners for the respondent