NOC (Pvt) Ltd and MD v EW (Pvt) Ltd and Zimbabwe Revenue Authority

The first respondent (EW (Pvt) Ltd) appealed against a decision by the Zimbabwe Revenue Authority (second respondent) imposing retrospective duty of US$15,884,943.46 and a 300% penalty of US$47,654,830.38 for importation of base station components between 2009 and June 2013. To support its appeal, the first respondent sought to call evidence from the first applicant's managing director (second applicant) to show that the first applicant had imported similar base station components under a duty-free tariff regime, thereby demonstrating discriminatory treatment. The first respondent obtained an order for a subpoena duces tecum compelling the second applicant to testify and produce bills of entry, packing lists, invoices and proof of payment of duty on base stations imported by the first applicant from October 1998 to November 2013. The applicants sought to set aside the subpoena on grounds that it was invasive, incompetent in scope, irrelevant, violated their right to privacy, and was unduly oppressive.

• Whether a subpoena duces tecum issued by the Fiscal Appeal Court could be set aside on grounds of irrelevance
• Whether the right to privacy under section 57 of the Constitution protects against disclosure of tax and trade information pursuant to a court-ordered subpoena
• Whether the subpoena was oppressive and constituted an abuse of court process
• Whether the constitutional right of access to information under section 62(2) of the Constitution and the right to a fair hearing under section 69(2) override privacy concerns in the context of litigation
• Whether the scope and reach of the subpoena covering 15 years of importation documents was unduly burdensome

The application to set aside the subpoena duces tecum was dismissed. Each party was ordered to bear its own costs.

The binding legal principles established are: (1) The constitutional right to privacy under section 57 is limited by sections 62(2) (right to access information for protection of rights) and 69(2) (right to a fair hearing), and section 86(3)(e) prohibits any limitation of the right to a fair trial. (2) Sections 6 and 7 of the Fiscal Appeals Court Act as read with rule 9 of the Fiscal Appeal Court Rules are laws of general application that compel competent witnesses to testify and produce documents to assist the court in establishing the truth. (3) A subpoena duces tecum will not be set aside as oppressive or an abuse of process where it: (a) specifically identifies the documents required by name and type; (b) serves a legitimate purpose relevant to the issues in dispute; (c) calls upon a competent and compellable witness who has custody or control of the documents; and (d) does not use language of wide or vague amplitude that leaves the witness uncertain as to what must be produced. (4) The burden of producing a large volume of documents over an extended period is not per se oppressive if the task is possible, the documents are identified with specificity, and production is necessary for a fair determination of the issues. (5) It is for the court, not the witness or objecting third parties, to determine the relevance and admissibility of subpoenaed documents at trial. (6) Corporate officers are competent and compellable witnesses who may be required to testify and produce company documents even when this may benefit competitors or reveal trade secrets, subject to the court's discretion to protect sensitive information from public disclosure.

The court made several obiter observations: (1) It noted that in classification cases, any interested importer or manufacturer can intervene in proceedings where they have a real interest, which undermines privacy arguments. (2) The court observed that under rule 19(3) of the Fiscal Court Appeal Rules, the court has power to exclude sensitive information from the public domain, providing a safeguard for legitimate privacy concerns. (3) Kudya J commented that the underlying reason for the application appeared to be the applicants' reluctance to assist a competitor rather than the proffered grounds of irrelevance, privacy or oppressiveness. (4) The court noted that the first respondent had originally sought to call a former clearing agent as a witness, but that witness was not the custodian of the relevant documents, necessitating the subpoena against the actual custodian. (5) The court observed that the subpoena may have unintended consequences for the applicants but these must be sacrificed in pursuit of truth. (6) Regarding costs, the court noted it would be unfair to burden the applicants with costs for a legal obligation forcibly thrust upon them by the court, and that they had genuinely believed disclosure to a competitor was improper. (7) The court referenced the principle from R v Jele that with certain exceptions, all competent witnesses are compellable.

This case is significant in Zimbabwean jurisprudence for establishing important principles regarding the balance between constitutional rights in the context of litigation. It clarifies that: (1) the right to privacy under section 57 of the Constitution is not absolute and must yield to the right to a fair hearing under section 69(2) and the right to access information under section 62(2) when necessary for the pursuit of truth in legal proceedings; (2) the test for determining whether a subpoena duces tecum is oppressive requires specificity in the documents requested, not mere breadth of the time period or volume of documents; (3) competent and compellable witnesses, including corporate officers, must produce relevant documents even when disclosure may benefit competitors or reveal sensitive business information; (4) the Fiscal Appeal Court has inherent power under section 4(1) and (4) of the Fiscal Appeal Court Act to regulate its own procedure and compel production of evidence necessary for substantial justice; and (5) the determination of relevance of subpoenaed documents rests with the trial court, not with the witness or third parties seeking to resist the subpoena. The case reinforces the principle that truth-seeking in litigation takes precedence over privacy concerns, subject to the court's power to exclude sensitive information from the public domain under rule 19(3) of the Fiscal Court Appeal Rules.