Zimbabwe Revenue Authority v Washington Mavunga

### Preamble
1
HH 815-18
HC 7239/18
---------


ZIMBABWE REVENUE AUTHORITY

versus

WASHINGTON MAVUNGA

ZIMBABWE REVENUE AUTHORITY

versus

WASHINGTON MAVUNGA

and

SHERIFF FOR ZIMBABWE

WASHINGTON MAVUNGA

versus

FAITH MAZANI

and

THABANI SIBANDA

and

THE ZIMBABWE REVENUE AUTHORITY

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 4 December 2018 & 12 December 2018

Consolidated Opposed Matters

S Bhebhe, for applicant in HC 7239/18 and HC 7246/18

Respondent in person

Applicant in person, in HC 9055/18

S Bhebhe, for respondents

TAGU J: By order dated 7 November 2018 the Honourable Justice Foroma directed that these three matters be consolidated and be heard by this court or any other judge without delay. Matter HC 7239/18 is a court application for rescission of default judgment granted by PHIRI J in motion court in HC 6220/18 in favour of Mr Washington Mavunga and against Zimbabwe Revenue Authority. Matter HC 7246/18 is a court application for confirmation of an urgent Chamber application granted by MUREMBA J in favour of Zimbabwe Revenue Authority against Mr Washington Mavunga. Lastly matter HC 9055/18 is a court application for contempt of court against one Faith Mazani, Thabani Sibanda (both employees of Zimbabwe Revenue Authority) and the employer Zimbabwe Revenue Authority (ZIMRA) filed by Mr Washington Mavunga.

The facts of the three matters are that on 5 July 2018 in HC 6220/18 Mr Mavunga made an Urgent Chamber Application against ZIMRA in which he was claiming the release of his motor vehicle that had been seized by officers of ZIMRA. The Urgent Chamber application was found not urgent and was removed from the roll of urgent matters. On 20 July 2018 in HC 6793/18 Mr Mavunga filed another Urgent Chamber application seeking an interdict barring ZIMRA from disposing of his vehicle that had been seized by ZIMRA. The second Urgent Chamber Application was again found not urgent and was removed from the roll of urgent matters. On 1 August and unbeknown to ZIMRA Mr Mavunga set down the first urgent chamber application in HC 6220/18 on the unopposed roll and proceeded to get a default judgment before PHIRI J. On 7 August 2018 ZIMRA became aware that such an order had been sought and granted. ZIMRA then filed court application for rescission in HC 7239/18. On the same day ZIMRA filed an urgent chamber application for stay of execution of the order granted on HC 7246/18. That urgent chamber application was granted on 9 August 2018 by MUREMBA J. It is the provisional order which ZIMRA now seeks to be confirmed. The final order being sought is the stay of execution of the order granted in

HC 6220/18 pending application for rescission which is also before this court. ZIMRA is now seeking that pending rescission Mr Mavunga must not proceed to execute the order he obtained on the unopposed roll. The reason being that that order in HC 6220/18 was erroneously granted. On the contempt of court application counsel for the respondents took preliminary points that there was a misjoinder in that the first and second respondents were not party of the order in HC 6220/18 hence as agents of ZIMRA cannot be said to have been in contempt of any court order. If at all anyone was in contempt it was ZIMRA but further argued that the order was not complied with because it was erroneously granted and must be rescinded.  On the other hand Mr Mavunga attempted twice to execute order under HC 6220/18 without success. He then filed HC 9055/18 for contempt of court.

In defending his actions of setting down HC 6220/18 on the unopposed roll Mr Mavunga submitted that he assumed that ordinary rules of this court apply to a matter that was adjudged not to be urgent hence he set the matter down in terms of rule 223 (e) of the High Court Rules 1971. He said since ZIMRA had not filed its opposition to his urgent chamber application he was at liberty to set it down on the unopposed roll. His defence to the application for rescission of default judgment was that ZIMRA was approaching the court with dirty hands. He submitted that ZIMRA must first comply with the court order in HC 6220/18 and that the application for rescission has been overtaken by events because the Sheriff attempted to execute twice but ZIMRA resisted execution. On the contempt of court application he submitted that the first and second respondents were served with the court order in HC 6220/18 on 2 August 2018 and should have complied with the order.

APPLICATION FOR CONFIRMATION OF PROVISIONAL ORDER

MUREMBA J granted a provisional order for stay of execution pending application for rescission of default judgment granted in the motion court by PHIRI J. The final order being sought by ZIMRA is the stay of execution in HC 6220/18 pending application for rescission. In my view Mr Mavunga following removal of his urgent chamber application from the roll of urgent matters was supposed to file a proper court application or an action if he still wished to get the relief he sought. He could not set down an urgent chamber application on the unopposed roll. The biggest impediment in this matter is that Mr Mavunga did not know what happens if a matter is found not urgent and is removed from the roll of urgent matters. It does not automatically became a court application. Once a matter has been struck off the roll of urgent matters the applicant has two choices. The first choice is to let the matter go and that is the end of the matter. The second choice is to proceed with the matter as an ordinary court application or as an action whereby summons are issued and the other party is served. In casu after removal of HC 6220/18 from the roll of urgent matters, Mr Mavunga filed another urgent chamber application meaning HC 6220/18 had been abandoned. If he had decided to proceed with

HC 6220/18 the respondent was entitled to know that the applicant was proceeding and applicant had as I said two choices. He should have filed a court application and serve it on the other party. Or he should have filed Summons and proceeded with the matter as an action. One cannot certainly set down that urgent chamber application in a motion court and say it was not opposed.

HC 6220/18 was erroneously set down and the court could not have granted it if it was aware of the circumstances. The applicant’s rights and interests were therefore adversely affected. Rule 223 (e) that the applicant had relied on does not apply in this case but to cases where the other party had been served but decided not to contest. See Motor Cycle (Pvt) Ltd v Old Mutual Property & Anor HH-45-2007 at p 2; Capital Brake Company (Pvt) Ltd & Anor v Colleen Beatrice Benatar HH-34-16 at p 4.

For these reasons I will confirm the provisional order. Pending application for rescission Mr Mavhunga must not proceed to execute order he obtained on unopposed roll in HC 6220/18.

APPLICATION FOR RESCISSION OF DEFAULT JUDGMENT

This application is made in terms of r 449 (1) (a) on the basis that the judgment was erroneously granted. In my view because the applicant was not served the applicant was not in willful default. The judgment was erroneously granted because what was before the court was an urgent chamber application which cannot be set down on unopposed roll after the case had been adjudged to be not urgent. The order given in the motion court was a provisional order and the court could not have granted such a relief.

Rule 449 (1) (a) of the High Court Rules, 1971 provides that:

“(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order-

that was erroneously sought or erroneously granted in the absence of any party affected thereby.”

The purpose of r 449 was duly expounded by MAKARAU J (as she then was) in Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H) where she stated at 472 as follows:

“The purpose of r 449 appears to me to be to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is functus officio would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule, and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.”

The rule goes beyond the ambit of mere formal, technical and clerical errors and may include the substance of the order of the judgment. See Grantully (Pvt) Ltd v UDC Ltd 2000 (1) ZLR 361 (S).

Rule 449 is a procedural step to correct an obviously wrong judgment or order.

The power given the court under the rule is discretionary and, like all such powers, must be exercised judiciously.

In light of the above, the present matter satisfies the requirements for rescission in terms of r 449 (1) (a) because if PHIRI J had known that HC 6220/18 had been smuggled into the motion court when it had been struck off the roll of urgent matters and that the applicant had not been served he would not have granted it.

Besides the applicant had prospects of success in that the respondent’s vehicle was seized by applicant because it did not have necessary documents to cross the border from South Africa as it did. The vehicle had entered Zimbabwe from South Africa, documents were stamped that it was entering Zimbabwe on temporary import permit (TIP). The next time the same vehicle was again seen coming from South Africa without documents that it had lawfully left Zimbabwe. The respondent conceded he had not paid duty for the vehicle and it had not been properly declared. The applicant must be allowed his day in court and for these reasons the application for rescission will be granted.

APPLICATION FOR CONTEMPT OF COURT

The requirements for an application for contempt of court are that there must be a court order. The court order must be served on the respondent. The respondent must have refused to comply with the court order. The relief sought by the applicant in this case is that-

“1. 	First and second respondents be and is hereby declared in contempt of the order of this court in HC 6220/18.

2. 	The first and second respondents shall on receipt of this order comply with the order in HC 6220/18.

3. 	Should first and second respondents fail to comply with para 2 above, the Sheriff of Zimbabwe, if he is not available, his deputy or assistant is hereby ordered to procure members of the Zimbabwe Republic Police to effect the arrest of the first and second respondents and their committal to Central Prison until such time they purge their contempt in case no HC 6220/18.

4. 	The re-detention of the applicant’s vehicle on 8 August 2018 is hereby declared unlawful and unconstitutional.

5. 	The receipt for items held No. 215869 is hereby nullified.

6. 	The third respondent is hereby ordered to pay a fine of $5000.00.

7. 	The sheriff is hereby ordered to repatriate the applicant’s vehicle namely, Isuzu KB 250, registration FL 32 BG GP to the South African side of the border.

8. 	First and second respondents to pay costs of this application on a higher scale.”

In this case the order in HC 6220/18 was never meant for first and second respondents. If ever there was anyone who was in contempt of court it was ZIMRA and not Faith Mazani and or Thabani Sibanda who were not parties in HC 6220/18. I therefore found merit in the point in limine raised by the counsel for the respondents. The applicant sought to obtain through the back door that which he failed to get through his two urgent chamber applications.  See Golden Reef Mining (Pvt) Limited & Ferbit Investments (Pvt) Limited v Mnjiya Consulting Engineers (PTY) Limited & The Sheriff of Zimbabwe HH-631-15 & Dr Vivek Solanki & Autoband Investments (Private) Limited & Streamsleigh Investments v Peter John Annesley HH-303-17.

However, be that as it may the court had difficulties with the order sought that ZIMRA pays the fine given that the order was erroneously obtained and has been rescinded. I will therefore dismiss the application for contempt of court.

IT IS ORDERED THAT

Pending the determination of the application for rescission of judgment filed under

HC 7239/18 the execution of the judgment granted under case no HC 4239/17 be and is hereby stayed.

The writ of removal issued by the 3rd respondent in HC 6220/18 be and is hereby set aside.

The default judgement granted against the applicant on 1 August 2018, under Case No. HC 6220/18 be and is hereby rescinded.

The application for contempt of the order of this court in HC 6220/18 be and is hereby dismissed.

Washington Mavunga, be and is hereby ordered to pay costs of suit on a higher scale.

Kantor & Immerman, applicant’s legal practitioners