Nicholas Mapisa v Zimbabwe Revenue Authority and Others

The applicant, a Zimbabwean national, had been resident in Botswana for approximately 15 years. In October 2017, he relocated to Zimbabwe and attempted to bring two motor vehicles into the country. One vehicle, a Toyota Coaster Minibus (Registration No. B 571 BEB), was left at the Plumtree Border Post in the custody of ZIMRA officials because the applicant was unable to immediately pay the required import duty of $4,300.00. The applicant intended to return and pay the duty before retrieving the vehicle. However, ZIMRA disposed of the motor vehicle through a customs rummage sale without providing the applicant with prior notification. The applicant challenged this disposal as irregular, unlawful, and corrupt, alleging that ZIMRA failed to notify him before disposing of the vehicle as required under the Customs and Excise Act. ZIMRA contended that the disposal was lawful as the applicant had failed to clear the vehicle within 60 days as stipulated in section 39 of the Act.

• Whether the applicant complied with the mandatory requirement under section 196(1) of the Customs and Excise Act to give 60 days' notice before instituting civil proceedings against ZIMRA
• Whether section 196(1) applies to civil proceedings against ZIMRA as an entity or only to proceedings against officers of ZIMRA
• Whether non-compliance with the notice requirement under section 196(1) is fatal to the application
• Whether the court has discretion to condone non-compliance with section 196(1)

The point in limine raised by the respondents based on section 196(1) of the Customs and Excise Act was upheld. The application was dismissed with costs.

Section 196(1) of the Customs and Excise Act is peremptory and requires that 60 days' notice be given before instituting any civil proceedings against the State, the Commissioner, or an officer for anything done or omitted under the Act. The term 'State' in section 196(1) includes ZIMRA acting as an agent of the State. Failure to comply with the notice requirement is fatal to an application, and the court has no discretion to condone such non-compliance in the absence of express statutory provision allowing condonation. The conduct of ZIMRA's officers in the official discharge of their duties is imputed to ZIMRA itself, and therefore proceedings against ZIMRA for such conduct require compliance with section 196(1).

The court noted that the respondents initially raised a preliminary point regarding the alleged misjoinder of the 2nd and 3rd respondents, but this was abandoned based on a realization that misjoinder would not defeat the applicant's cause of action. The court observed that the applicant's attempt to withdraw the application against the 2nd and 3rd respondents would effectively emasculate the application, as there must be some conduct on the part of ZIMRA's officers that is attributed to ZIMRA itself. The court also noted that the primary objective of the notice provision is to provide ZIMRA with timely opportunity to investigate the material facts upon which its actions are challenged and to afford ZIMRA opportunity to protect itself against consequences of possible wrongful action.

This case reinforces the mandatory nature of the notice requirement under section 196(1) of the Customs and Excise Act before instituting civil proceedings against ZIMRA or its officers. It clarifies that the notice requirement applies to ZIMRA as an entity, not merely to its individual officers, because ZIMRA acts as an agent of the State. The judgment emphasizes strict compliance with procedural prerequisites in litigation against revenue authorities and confirms that courts have no discretion to condone non-compliance with section 196(1) absent express statutory language permitting condonation. It serves as an important precedent regarding procedural requirements in customs and excise litigation in Zimbabwe.