British American Tobacco Zimbabwe v Zimbabwe Revenue Authority

### Preamble
Judgment No. SC 98/22
1
Chamber Application No. SC 181/22
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DISTRIBUTABLE		(85)

BRITISH     AMERICAN     TOBACCO     ZIMBABWE

v

ZIMBABWE     REVENUE     AUTHORITY

SUPREME COURT OF ZIMBABWE

HARARE: 13 JULY 2022 & 16 SEPTEMBER 2022

R. G. Zhuwarara, for the applicant

T. Magwaliba, for the respondent

CHAMBER APPLICATION

CHIWESHE JA: 	This is an application for condonation of late noting of an appeal and extension of time within which to appeal.  The application is made in terms of Rule 61 of the Supreme Court Rules, 2018 which provides as follows:

“61 Applications for extension of time to appeal

Save where it is expressly or, by necessary implication prohibited by the enactment concerned, a Judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by r 60 or by the enactment concerned, for instituting an appeal.”

BACKGROUND FACTS

The applicant seeks to appeal against the judgment of the Special Court for Income Tax Appeals (the court a quo) given at Harare on 28 August 2020 under reference HH 552/20 (ITC 02/18).  Rule 60(1) requires that such appeal be noted within 15 days of the date of the decision appealed against.

Initially the applicant noted the appeal within the stipulated time.  It did so under SC 394/20.  That appeal was adjudged fatally defective for the reason that it had been directed at the Registrar of the High Court and not the Registrar of the Special Court for Income Tax Appeals.  As a result the appeal was struck off the roll.  Thereafter the applicant was out of time within which to file a valid fresh notice of appeal.  Under SC 292/21 the applicant sought and was granted condonation for late noting of an appeal and extension of time within which to appeal.  It then noted the appeal under SC 334/21.  It did so on 14 January 2022.  This appeal was also struck off the roll for being fatally defective in that it sought relief that had not been motivated in the court a quo.

The applicant is now back in this Court seeking similar relief – condonation for late noting of an appeal and extension of time within which to appeal.  This is the third time such relief has been sought with regards the same appeal.

The grounds of appeal in the intended appeal are captured in the draft notice of appeal.  They read as follows:

“GROUNDS OF APPEAL

With, respect, the court a quo erred in holding that the respondent’s communication of the 8th of November 2016 to the appellant constituted the ‘statement of reasons’ as contemplated in s 37 A (13) of the Income Tax Act.

Concomitantly, court a quo also erred in determining that the respondent was not required at law to specifically inform the appellant that it was reopening prescribed tax assessments by reason of misrepresentation as defined by s 47(1) of the Income Tax Act.

Further the court a quo anomalously held that the word “misrepresentation” in proviso (ii) to s 47(1) of the Income Tax Act ought to be accorded a wide and broad meaning that would include wrong deductions innocently or ignorantly made by a tax-payer.

On a point of law: In casu the respondent never issued a legally cognisable amended assignments: consequently, in the circumstances the said respondent could not lawfully collect tax and penalties from the appellant.”

At the hearing of this application Mr Magwaliba (for the respondent) raised a number of preliminary issues chief among which was the fact that the applicant had neither sought nor obtained leave to appeal from the court a quo as required by law.

Section 66 of the Income Tax Act provides as follows:

“66 Appeals from determination of High Court or Special Court to Supreme Court.

On the determination by the High Court or the Special Court of an appeal under s 65 or other proceedings incidental to or connected therewith, the appellant or the Commissioner, if dissatisfied with the determination-

May appeal to the Supreme Court on any ground of appeal which involves a question of law;

May, with the leave of a Judge of the High Court or a President of the Special Court, as the case may be, or if such Judge or President refuses to grant leave with the leave of a Judge of the Supreme Court, appeal to the Supreme Court on any ground of appeal which involves a question of fact alone or a question of mixed law and fact.”

Thus an appeal against the decision of the court a quo on a point of law may be noted without leave of that court.  An appeal on a point of fact or mixed law and fact can only be noted with leave of that court.  Mr Magwaliba argued that grounds 1 and 2 of the draft notice of appeal relate to points of fact and that grounds 3 and 4 relate to points of law.  He submitted that since the draft notice of appeal involves both points of law and points of fact, it was imperative that the applicant obtains leave to appeal from the court a quo.

Mr R. G. Zhuwarara, for the applicant, contended that both grounds 1 and 2 relate to points of law, namely, that on ground (1) the court is being asked to determine whether the respondent’s communication on 8 November 2016 constituted the statement of reasons as contemplated in s 37 A(13) of the Income Tax Act and on ground 2, whether the respondent was not required at law to specifically inform the appellant that it was reopening prescribed tax assessments by reason of misrepresentation as defined by s 47(1) of the Income Tax Act.

I am inclined to agree with Mr Magwaliba’s submissions for the reason that in either instance the court would need to look at the “statement of reasons” as a matter of fact in order to determine the point of law raised, that is whether such statement of reasons complies with the provisions of the law.  Similarly the court would have to consider whether the communication, as a matter of fact, fell short of satisfying the provisions of s 47(1) of the Income Tax Act.  Thus while grounds 1 and 2 raise points of law, the same points cannot be determined in the absence of the assessment of the factual basis upon which they arise.

I come to the inevitable conclusion that grounds 1 and 2 involve a question of mixed law and fact.  That being the case the applicant is obliged to seek leave to appeal in the court a quo.  Without such leave the intended appeal cannot be heard.

The point in limine raised by the respondent is accordingly upheld.  That being the case it is no longer necessary for me to determine the rest of the preliminary issues raised by the respondent nor, for that matter, the merits of the application.  The matter must end here.

Further, in the absence of leave to appeal, the application is not properly before me.  It must be struck off the roll.

Costs shall follow the cause.

In the result:

It is ordered that the application be and is hereby struck off the roll with costs.

Mawere Sibanda Commercial Lawyers, applicant’s legal practitioners.

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