Selfmed Investments (Pvt) Ltd v Zimbabwe Revenue Authority

### Preamble
1
HH 136/21
HC 4735/20
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SELFMED INVESTMENTS (PVT) LTD

versus

ZIMBABWE REVENUE AUTHORITY

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 11 September 2021 & 31 March 2021

Urgent Chamber Application

T. Tembani, for the applicant

Ms L. Chipateni, for the respondent

FOROMA J: Defendant brought an urgent chamber application seeking a provisional order under which the following interim relief is sought.

“1. That the respondent be and is hereby prohibited from suspending the applicant’s

agent’s bond pending the return date of this order.

2. That the respondent be and is hereby prohibited from suspending the applicant’s bond

unless and until the respondent has complied with the provisions under section 3 (2)

as read with section 216A of the Customs and Excise Act [Chapter 23:02].

3. That the respondent be and is hereby prohibited from suspending the applicant’s

Agent’s bond until such time the respondent has complied with the provisions of section

98 E (5) of the Customs and Excise Act [Chapter 23:02].”

The application arises from respondent’s suspension of applicant’s Agent’s Bond on account of the discovery by respondent that applicant had fraudulently ………. The importation of fuel both petrol and diesel purportedly as Soya bean oil destined for a company called Pure Oil Industries P/L. The suspension of the bond has literally crippled applicant’s clearance business.

Respondent took 3 points in limine in its opposition to the application and l deal with each in turn.

(i)	Relief sought is fatally defective.

Respondent considered that the interim relief sought is fatally defective as it is final in form substance and effect. Applicant sought an order in the following terms “That the respondent be and is hereby prohibited from suspending the applicant’s agent’s bond pending return date of this order. Indeed if this order were to be granted there remains nothing to incentivise the applicant to desist from the unlawful conduct or to get the provisional order confirmed and it is in that context that the order is final in substance and effect.

Respondent conceded the fatality inherent in this draft order but did not abandon the matter as it considered that the other relief could be competently granted.

Paragraph 2 has similar effect as the first one if it were granted and so has paragraph 3.

Applicant complains that the respondent acted in breach of both the Administrative Justice Act [Chapter 10:28] and Customs and Excise Act [Chapter 23:02] as detailed in the submissions namely s 3 (2) of Administrative and Justice and section 98 E (5) of the Customs and Excise Act.

A proper construction of paragraphs 2 & 3 of the interim relief aforesaid is that they both seek a permanent prohibition of suspension of the agent’s Bond until a compliance with certain statutory provisions.

In the circumstances they are all final in nature and cannot competently be granted through an urgent application on the basis of a prima facie established case. Applicant has not produced evidence or proof on a balance of probabilities that the said statutory provisions have been breached. Accordingly Applicant cannot be granted final relief as presently worded.

It is apparent that applicant was party to a criminal and fraudulent act in the importation of fuel as aforesaid and the action taken by respondent to suspend its agent’s Bond was lawful in the circumstances.

Applicant accepts that the respondent has lawful power to suspend the bond. Their only complaint is that such suspension should not be done arbitrarily. A suspension of the Bond is meant to arrest further perpetration of criminal conduct. It is not cancellation of the bond.

In the circumstance the applicant ought to have exhausted internal remedies seeking to reverse the suspension of the Bond. Applicant’s justification for not exhausting such internal remedies is its perceived and speculative predictable outcome. That cannot be a lawful justification. Once Applicant concedes that respondent has power to suspend the agent’s bond the Court cannot interdict a lawful action by the Respondent see Echocash Zim P/L v RBZ HH 333/20.

In the circumstances the application is dismissed with costs.

Muhlolo Legal Practice, respondent’s legal practitioners