Hubert Kasongo Mbwembwe v Zimbabwe Revenue Authority

The applicant purchased abalone fish on 16 May 2021 from Irvine Africa (Pty) Ltd in South Africa for export to Zambia. He obtained an export permit from the Western Cape Government in South Africa for movement of fish from Western Cape to Gauteng for export to Zambia. The consignment arrived at Beitbridge on 24 May 2021, where it was seized by ZIMRA on 27 May 2021 under Notice of Seizure Number 032789L. The Atego Rigid Truck (Registration Number JR94CCGP) carrying the consignment was also seized under Notice of Seizure Number 032788L. ZIMRA alleged the truck was ferrying smuggled goods in breach of section 188 of the Customs and Excise Act, and that the abalone fish was imported without a permit contrary to regulation 76 of the Parks and Wildlife, Imports and Exports Regulations, SI 76 of 1998. The applicant made representations to the Regional Manager, ZIMRA, Beitbridge on 4 June 2021, which were rejected on 6 June 2021. He then appealed to the Commissioner Customs and Excise on 8 June 2021. On 9 June 2021, the applicant filed an urgent chamber application seeking release of the consignment and truck.

• Whether the matter was urgent
• Whether the applicant failed to exhaust domestic remedies before approaching the court
• Whether there was material non-disclosure by the applicant
• Whether the applicant was required to issue a notice of intention to sue under section 196 of the Customs and Excise Act and section 6 of the State Liabilities Act
• Whether the goods were properly seized or should be released as transit goods

1. The consignment held under Notice of Seizure No. 032789L and the truck (Atego Rigid Truck, Registration No. JR 94CCGP) held under Notice of Seizure No. 032788L shall forthwith be released to the applicant. 2. The Atego Rigid Truck and its consignment of 81 boxes of Abalone Fish and Tissue Packs shall be permitted transit from Beitbridge Post to Chirundu Post under supervision by the respondent's officers until it exits Zimbabwe and reaches the Zambian side of the Chirundu Border Post. 3. The respondent shall pay the applicant's costs at the ordinary scale.

1. Where goods are perishable, a matter is urgent and domestic remedies need not be fully exhausted if waiting for internal administrative processes would render any court decision ineffective. 2. Domestic remedies are those specifically set out in the applicable statutory framework, and the court will not insist on exhausting them where they do not confer better, cheaper, or timely remedies. 3. Section 7(c) of the State Liabilities Act exempts urgent matters from the section 6 requirement to issue a notice of intention to sue. 4. Documents executed outside Zimbabwe for production in a Zimbabwean court must be authenticated by a notary public, mayor, or person holding judicial office in accordance with Rule 3(b) of the High Court Authentication of Documents Rules 1971, failing which they will be inadmissible. 5. Goods properly documented as transit goods should be released under customs supervision to ensure they exit Zimbabwe rather than being consumed locally.

The court noted that the prosecution of the truck driver did not necessarily implicate the owner of the goods, as the Prosecutor General exercised discretion to charge the driver rather than the owner. The court also observed that ZIMRA's claim that the goods were held as an exhibit under the Criminal Procedure and Evidence Act was unsubstantiated by evidence, as the documents showed the goods were detained for alleged breaches of the Customs and Excise Act. The court emphasized that it would have been unfair to characterize the applicant's delay as self-created when he was following the very processes suggested by ZIMRA itself in the seizure notices.

This case is significant for establishing important principles regarding urgent applications in customs and excise matters, particularly where perishable goods are involved. It clarifies that domestic remedies need not be exhausted where they cannot provide effective redress in time-sensitive matters. The case also reinforces the strict authentication requirements for foreign documents under the High Court Authentication of Documents Rules 1971, and provides guidance on the treatment of transit goods under Zimbabwean customs law. It demonstrates the court's approach to balancing administrative processes with practical commercial realities and the rights of traders.