THE Zimbabwe Revenue Authority (Zimra) has won a Supreme Court appeal against one Bruno Takawira who was contesting payment of import duty for his top-of-the-range vehicle, arguing that the law says he should be exempted for being physically handicapped.
Takawira had paid US$63 378 for the vehicle before he approached the High Court demanding a refund.
The Bulawayo High Court ruled in his favour, noting that Zimra had flouted the law by making Takawira to pay.
Aggrieved, Zimra filed an appeal against the decision of the High Court, which granted an order compelling it to reimburse Takawira US$63 378 being duty for the importation of a motor vehicle.
The basis of the application before the High Court was that on 24 January 2022, Takawira was granted exemption by a Zimra official from paying import duty on a Toyota Land Cruiser that he intended to buy in South Africa.
The application for suspension had been made and granted in terms of the Customs and Excise Act [Chapter 23:02] as read with the Customs and Excise (Suspension) Regulation, 2003 (Statutory Instrument 257 of 2003) as amended by Statutory Instrument 101 of 2011.
Following the granting of the application for suspension, Takawira proceeded to have the motor vehicle brought in for clearance and imported into Zimbabwe on 28 February 2022.
However, his suspension was rejected at Beitbridge Border Post, the port of entry, on the basis that the suspension had been granted in violation of the Customs and Excise (Suspension) Amendment Regulations Statutory Instrument 10 of 2022 (Statutory Instrument 10 of 2022) which was promulgated on 17 January 2022.
In terms of Statutory Instrument 10 of 2022, the maximum limit of the value of a motor vehicle that can be imported duty free by a physically challenged person is US$40 000.
His vehicle was valued at R2 129 000 which exceeded that prescribed duty-free limit.
Takawira however proceeded to pay the duty in question so as to avoid the seizure of the motor vehicle.
In motivating the application,Takawira argued that it was unfair for Zimra to withdraw the suspension of duty.
It was his case that, as a member of the public who had relied on a suspension letter issued by the appellant’s official, he was entitled to administrative conduct that was procedurally fair and just.
He insisted that Zimra was bound by the letter of suspension.
The application was opposed by the appellant which argued that, at the time the suspension was granted, Statutory Instrument 10 of 2022 had already come into effect.
Zimra said since the value of Takawira’s vehicle exceeded US$40 000, it did not qualify for the suspension.
The High Court ruled in Takawira’s favour, noting that Zimra could not withdraw a letter of suspension which was issued by one of its officials during the course of his duties.
Further, the High Court found that the letter of suspension, once issued, remained valid up to the time the motor vehicle was imported into Zimbabwe.
It also found that the law did not apply retrospectively unless the words of the relevant legislation expressly provided so.
The ruling prompted Zimra to file an appeal at the Supreme Court.
In its grounds of appeal Zimra said: “The court a quo erred at law in finding that the suspension of duty had been lawfully given when in fact the suspension was granted contrary to section 6 of Statutory Instrument 10 of 2022.
“The court a quo erred at law and fact in finding that all the requirements for the granting of the suspension of duty were met at the time the duty suspension letter was given.”
It also said the High Court erred at law in finding that Statutory Instrument 10 of 2022 had been applied retrospectively by Takawira and also that it was wrong in granting an order for the refund of customs duty when duty had been collected in terms of the law.
Takawira insisted that the High Court was correct in finding that once the appellant had made a decision to grant the suspension of duty, it could not thereafter withdraw the suspension as it had become functus officio.
The court noted that initially there was no limit placed on the value of a motor vehicle that could be imported duty free by a physically handicapped person.
The Supreme Court however noted that this was subsequently amended by Statutory Instrument 10 of 2022 on 17 January 2022 by the insertion, inter alia, of sub-section 6 which provides that the maximum import value for any motor vehicle to benefit under this suspension is US$40 000.
The amendment had the effect of imposing a limit on the value of a motor vehicle that could be imported duty free by a physically handicapped person.
“It is an elementary principle of law that anything done contrary to the dictates of law is a nullity,” said the bench chaired by Justice Elizabeth Gwaunza.
Gwaunza siad Takawira was granted a suspension of duty on 24 January 2022 in terms of section 4 of the Customs and Excise (Suspension) Regulation, 2003 (Statutory Instrument 257 of 2003) as amended by Statutory Instrument 101 of 2011.
She said it was evident that the letter of suspension of duty was issued after the amendment of the law had come into effect on 17 January 2022.
“It follows therefore that the suspension of duty granted to the respondent was granted contrary to S.I. 257 of 2003 as amended by S.I. 10 of 2022,” she said.
The grant of suspension of duty contrary to Statutory Instrument 257 of 2003 as amended by Statutory Instrument 10 of 2022 did not obviate the respondent’s obligation to pay the requisite duty.
She ruled in favour of Zimra, saying: “The court a quo erred in finding to the contrary. The appeal therefore has merit.” — STAFF WRITER.
