Jack Kembo and Others v The Commissioner General of Taxes

The applicants were charged before the Magistrates Court with importing goods without entry and without paying duty, and alternatively with smuggling goods (230 bales of second hand clothes) from Mozambique through an undesignated entry point, in contravention of s 38(1) as read with s 174(1)(e) and s 182(1) of the Customs and Excise Act [Cap 23:02]. The goods were seized by Zimbabwe Revenue Authority officials. On 19 October 2010, the Magistrates Court acquitted the applicants, finding them not guilty. However, the seized goods were not released to the applicants. The applicants then brought this application seeking an order for the respondent to release the 230 bales of second hand clothes.

• Whether the applicants complied with the notice requirements under s 196(1) of the Customs and Excise Act [Cap 23:02] read with s 6 of the State Liabilities Act [Cap 8:14] before instituting civil proceedings
• Whether the application was properly before the court given the alleged procedural defects
• Whether evidence can properly be adduced through heads of argument rather than affidavits
• Whether the applicants' claim had prescribed by the time the court application was instituted
• Whether the applicants were entitled to release of the seized goods following their acquittal

The application was struck off the roll with costs against the applicants.

Civil proceedings against the State, the Commissioner General of Taxes, or officers acting under the Customs and Excise Act cannot be validly instituted unless sixty days' written notice has been given in terms of s 196(1) of the Customs and Excise Act [Cap 23:02] read with s 6 of the State Liabilities Act [Cap 8:14]. Such notice is a prerequisite to the validity of the proceedings and must be properly alleged and proven through the founding affidavit. Failure to demonstrate compliance with this notice requirement renders the application improperly before the court. Evidence cannot be adduced through heads of argument; heads of argument are merely a summary of legal arguments based on evidence already adduced through affidavits in a court application.

The court made observations about the common misunderstanding by both parties regarding the nature of heads of argument. Zhou J noted that it appeared both parties misunderstood that heads of argument are not affidavits and cannot be used to introduce new evidence or attach supporting documents that were not previously part of the affidavit evidence. The court also noted that it was not necessary to inquire into the other grounds of defence raised by the respondent (including the prescription issue and the merits of whether the goods were properly seized and whether the applicants were entitled to them notwithstanding their acquittal) given the finding on non-compliance with notice requirements.

This case is significant in Zimbabwean law for clarifying procedural requirements in civil proceedings against the State and revenue authorities. It emphasizes the strict requirement of compliance with notice provisions under the Customs and Excise Act and State Liabilities Act before instituting civil proceedings against the State or its officials. The case also establishes important principles regarding civil procedure, particularly that heads of argument cannot be used to introduce new evidence that was not contained in the affidavits, and that such evidence must be properly pleaded in founding affidavits, especially when it relates to jurisdictional prerequisites. The judgment reinforces the importance of proper procedural compliance as a prerequisite to the court's jurisdiction to hear a matter.