Main Road Motors v Zimbabwe Revenue Authority; Sylvia Choruwa v Zimbabwe Revenue Authority; Patrick Muguti v Zimbabwe Revenue Authority

Three applicants imported second-hand Toyota Fortuner motor vehicles from South Africa to Zimbabwe between November 2015 and October 2016. At the border, the applicants declared certain values for customs duty purposes through clearing agents. The vehicles were cleared and released after payment of duty (in Case 1 the declared value was accepted; in Cases 2 and 3 the proper officer raised the declared values and higher duty was paid). Subsequently, between 6 days and one year after clearance, ZIMRA conducted post-clearance audits and discovered alleged anomalies including undervaluation and false information about models and mileage. ZIMRA demanded additional duty, penalties and interest, and impounded or threatened to impound the vehicles. The applicants sought declarations that section 192(1) of the Customs and Excise Act was ultra vires the Constitution, and orders for the return of vehicles and reimbursement of amounts paid.

• Whether section 192(1) of the Customs and Excise Act, permitting ZIMRA to seize goods up to six years after clearance, is ultra vires sections 68 and 71 of the Constitution
• Whether the applications were time-barred under Order 33 Rule 259 of the High Court Rules (8-week period for review applications)
• Whether the application in Case 3 was time-barred under section 193(12) of the Customs and Excise Act (3-month period for recovery of seized goods)
• Whether the applicants in Cases 1 and 2 had 'dirty hands' for failing to comply with the 'pay-now-argue-later' principle in section 119 of the Customs and Excise Act
• Whether 60 days' notice under section 196 of the Customs and Excise Act was required in Case 3
• Whether section 85 of the Constitution collapses procedural requirements including prescription periods and the 'dirty hands' principle

All three applications dismissed with costs

Section 85 of the Constitution, which guarantees the right to approach courts for enforcement of fundamental rights and freedoms, does not override or nullify statutory prescription periods such as the 8-week period for review applications under Order 33 Rule 259 of the High Court Rules or the 3-month period under section 193(12) of the Customs and Excise Act. Prescription periods do not preclude or obstruct access to courts but merely prescribe time frames within which rights must be exercised. Where an application is brought outside the prescribed period and no application for condonation is made or no good cause is shown, the applicant will be non-suited. Statutes of limitation serve legitimate purposes of expedience and sparing courts from stale claims, and are justified by necessity and convenience.

The court observed that the applications were poorly crafted, with draft orders that were virtually meaningless without reading the full applications. The affidavits were prolix, argumentative and could easily pass as heads of argument. The court noted the rationale for statutes of limitation, citing Stambolie v Commissioner of Police, which drew from American jurisprudence: such statutes represent expedients rather than principles, practical devices to spare courts from litigation of stale claims and citizens from defending after memories have faded and evidence is lost. The court noted that even if ZIMRA's post-clearance audits conducted months or a year after clearance might breach the right to prompt and efficient administrative conduct, this did not render the prescription periods unconstitutional. The court distinguished Nyika v Minister of Home Affairs where a prescription period was declared unconstitutional, noting that in that case there was proper ventilation of issues and the restrictive 8-month period in the Police Act was found unfair and discriminatory compared to the general 3-year prescription period.

This case affirms the continued applicability of statutory prescription periods and procedural requirements in Zimbabwe despite the constitutional right of access to courts under section 85 of the Constitution. It confirms that section 85 does not collapse procedural time limitations for bringing review applications or other proceedings. The judgment emphasizes that while constitutional rights are fundamental, they must be exercised within established procedural frameworks, and that statutes of limitation serve the legitimate purposes of expedience and preventing stale claims. The case demonstrates the principle that applicants must comply with prescribed time periods or seek condonation with good cause shown, and that failure to do so will result in non-suiting.