DAGS Trading (Private) Limited v Regional Manager of Beitbridge Zimbabwe Revenue Authority and Others

Applicant was a registered clearing agent operating at Beitbridge Border Post. On 7 June 2016, applicant used its transit bond to register three bills of entry for a consignment of Maq washing powder destined for Zambia through Victoria Falls. The consignment was not re-exported as required and was instead offloaded in Zimbabwe. On 17 July 2016, the first respondent (Regional Manager) suspended applicant's account maintained in the Automated Systems of Customs Data (ASYCUDA) and ordered payment of duty of US$49,735.39 plus a 100% penalty of US$49,735.39, with 10% interest per annum on the total. Applicant was not given prior notice or an opportunity to make representations before this decision was made. Following correspondence, on 10 June 2018, first respondent confirmed the decision still stood. Applicant appealed to the second respondent (Commissioner of Customs and Excise) who, by letter dated 10 November 2018 (received 7 December 2018), upheld the first respondent's decision. The suspension of applicant's account effectively disabled its ability to operate as a clearing agent, though its registration and licence were neither cancelled nor suspended.

• Whether the application for review was instituted within the prescribed 8-week period under Order 33 Rule 259 of the High Court Rules
• Whether applicant was required to give 60 days' notice under section 196(1) of the Customs and Excise Act and section 6 of the State Liabilities Act before instituting review proceedings
• Whether the Zimbabwe Revenue Authority should have been cited as a party
• Whether the first respondent's decision was procedurally unfair for failing to give applicant prior notice and an opportunity to be heard before making the decision
• Whether the suspension of applicant's account (as opposed to suspension of registration or licence) had a legal basis under the Customs and Excise Act
• Whether the second respondent's decision upholding an irregular decision was itself irregular

1. The first respondent's decision dated 17 July 2016 requiring applicant to pay duty plus 100% penalty amounting to US$99,570.78 together with interest at 10% per annum as well as suspending applicant's account was set aside. 2. The second respondent's decision dated 10 November 2018 upholding first respondent's decision of 17 July 2016 was set aside. 3. The first, second and third respondents were ordered to remove the suspension of applicant's account within 7 days of service of the order. 4. The 1st, 2nd and 3rd respondents were ordered to pay the applicant's costs jointly and severally, the one paying the others to be absolved.

An administrative authority exercising statutory powers must comply with the principles of natural justice, specifically the audi alteram partem rule, by giving adequate notice of proposed administrative action and a reasonable opportunity to make representations before taking any decision that may adversely affect a person's rights, interests or legitimate expectations, as required by section 68 of the Constitution and section 3 of the Administrative Justice Act. Administrative authorities cannot create mechanisms not provided for by statute (such as account suspension) to achieve the same practical effect as statutory sanctions (such as licence or registration suspension) while circumventing the procedural safeguards that attach to those statutory sanctions. A decision made in breach of procedural fairness requirements is reviewable and must be set aside. A decision upholding an irregular decision is itself irregular and must be set aside.

The court observed that the Administrative Justice Act is "fluid" and represents a codification of common law principles of natural justice that were gaining general acceptance. One can institute proceedings under section 4 of the Act, or employ its provisions without expressly invoking the Act to mount a review application. The Act may have opened a door for litigants to bring review applications outside the mandatory 8-week period without seeking condonation, as long as they characterize the application as being in terms of the Act - "after all, one may argue, there are times when what matters is that the body is clothed. The name of the clothing material may not always matter." The court noted that a good draft order should be capable of being granted unamended by the court, and it is not the court's function to usurp the role of respondents' legal advisors. The court emphasized the judiciary's duty under sections 8, 11 and 44 of the Constitution to interpret and apply the law in a manner that respects, protects, promotes and fulfills fundamental rights and contributes to "the establishment, enhancement and promotion of a just society." The court found the respondents' conduct reflected "misapprehension" and "misapplication of the law" rather than malice or reprehensible conduct, warranting costs on the ordinary scale only.

This case is significant in Zimbabwean administrative law for several reasons: (1) It clarifies that the 8-week period for instituting review proceedings under Order 33 Rule 259 runs from receipt of the decision, not from when it was made. (2) It confirms that the 60-day notice requirement under section 196(1) of the Customs and Excise Act and section 6 of the State Liabilities Act does not apply to applications for review of administrative decisions, only to claims for money or delivery of goods. (3) It strongly affirms the constitutional right to administrative justice under section 68 of the Constitution and the requirements of procedural fairness under section 3 of the Administrative Justice Act. (4) It demonstrates judicial enforcement of the audi alteram partem rule, holding that administrative authorities cannot make decisions affecting rights without prior notice and opportunity to be heard. (5) It establishes that administrative authorities cannot create extra-statutory mechanisms (like account suspension) to achieve the same effect as statutory sanctions (like licence suspension) while avoiding statutory safeguards. (6) It shows the court's approach to interpreting administrative powers strictly, requiring legal basis for any action that affects rights. (7) It demonstrates the application of Chapter 2 national objectives and the Bill of Rights in interpreting administrative law.