Memory Chingwenya and Johannes Chituta v Zimbabwe Revenue Authority and Others

On 1 February 2017, ZIMRA seized a Toyota Gaia motor vehicle (registration number AED 4899) belonging to the first applicant, together with 10 trays of chicken cuts weighing approximately 450kg, under a notice of seizure. The first applicant was the owner of the vehicle, and the second applicant was employed as her driver. On 23 February 2017, the first applicant wrote to ZIMRA requesting release of the vehicle, explaining that she had given the vehicle to the driver for carrying passengers to earn income, but the driver had been hired to carry chicken cuts, which resulted in the seizure. ZIMRA responded on 23 February 2017, indicating that the vehicle was liable to forfeiture under sections 182 and 188 of the Customs and Excise Act, but offered to release it subject to payment of a $5,000 fine and storage charges, with a deadline of 1 May 2017. The first applicant contested this decision on 25 February 2017, arguing that the vehicle had never crossed the border and therefore no smuggling had occurred. ZIMRA maintained its position on 4 March 2017. The applicants filed an urgent chamber application on 14 March 2017 seeking interim relief for immediate release of the vehicle without payment of storage fees.

• Whether the matter was urgent and properly brought under a certificate of urgency
• Whether the applicants had failed to act promptly when the need to act arose
• Whether the interim relief sought was competent, given that it appeared to be final in nature
• Whether the applicants had established that they would suffer irreparable harm
• Whether the applicants had alternative remedies available

The application was dismissed with costs.

1. A matter is urgent when, at the time the need to act arose, the matter could not wait - not merely when a final deadline is approaching. An applicant who delays in bringing an urgent application after becoming aware of the need to act fails to establish urgency. 2. It is incompetent to seek interim relief that is final in nature, as this allows an applicant to obtain final relief without proving their case on the merits. A provisional order should not grant relief that would make confirmation a mere formality or fait accompli. 3. An applicant bringing an urgent application must demonstrate that irreparable harm will be suffered if the matter is not dealt with urgently, and must show that no alternative remedy exists.

The court noted in passing that the applicants may have had alternative remedies available, observing that under section 193(6)(b) of the Customs and Excise Act, the mere institution of civil proceedings against ZIMRA would bar the Commissioner General from declaring goods forfeited. This suggests that the applicants could have pursued ordinary civil proceedings rather than an urgent application. The court also noted that apart from being deprived of the use of the vehicle and the income it generated, there was no basis for concluding that the first applicant had no other remedies available. The judgment also contains general observations on the well-established principle that applicants should not seek interim relief that is final in nature.

This case reinforces important principles of Zimbabwean civil procedure regarding urgent applications. It emphasizes that applicants must act promptly when the need to act arises, not merely before a final deadline expires. The judgment also serves as a strong warning against the practice of seeking interim relief that is effectively final in nature, which allows applicants to obtain substantive relief without proving their case on the merits. The case illustrates the court's willingness to dismiss urgent applications on preliminary grounds where procedural requirements are not met, and demonstrates the strict approach courts take to applications that seek to circumvent normal procedural safeguards. It is particularly relevant in the context of customs and excise seizures, showing that property owners must pursue their remedies promptly and through proper channels.