Qalisani (Private) Limited v Zimbabwe Revenue Authority and Another

The applicant purchased 2800 pockets of potatoes from South Africa for R39,200.00 on 4 July 2011 and engaged a clearing agent to import them into Zimbabwe. The potatoes were pre-cleared on 6 July 2011 using an import permit that was subsequently discovered to be fraudulent and disowned by the Ministry of Agriculture. The applicant's vehicle was intercepted at Beitbridge border post on 8 July 2011, and the driver, Sikhumbuzo Mhlanga, was arrested. The consignment was seized by ZIMRA under the Customs and Excise Act. The driver appeared in Beitbridge Magistrates' Court on 12 July 2011, pleaded guilty to smuggling under section 182 of the Customs and Excise Act, and was convicted and fined US$300.00. The magistrate did not order forfeiture but indicated the owner could make representations to ZIMRA. The applicant appealed to ZIMRA's Regional Manager on 12 July 2011, which was dismissed on 13 July 2011. The applicant then launched an urgent application seeking release and re-exportation of the potatoes.

• Whether interim relief that is identical to final relief sought should be granted
• Whether an applicant has a duty to disclose material facts in an ex parte application
• Whether the court can order release of goods that are the subject of an offence under the Customs and Excise Act and liable to forfeiture
• Whether the court can override statutory provisions regarding seized goods

The application was dismissed with costs on an attorney and client scale (enhanced costs).

1. It is inappropriate and undesirable for an applicant to seek interim relief that is identical to the substantive final relief, as this defeats the object of interim protection and allows the applicant to obtain final relief without proving its case, merely on showing a prima facie case. 2. Applicants making ex parte applications must observe the utmost good faith in disclosing all material facts to the court; material non-disclosure, whether willful, mala fide or negligent, justifies setting aside an order and may attract punitive costs. 3. Courts cannot lawfully order the release of goods that are the subject of an offence under the Customs and Excise Act and liable to forfeiture under sections 47, 182 and 188 of the Act, as doing so would override clear statutory provisions. 4. Under section 218(2) of the Customs and Excise Act, principals are strictly liable for the actions of their agents.

The court observed that the practice of seeking interim relief which is final in nature ought to be suppressed decisively. The court also noted that courts should discourage urgent applications characterized by material non-disclosures, mala fides or dishonesty, and may make adverse or punitive costs orders as a seal of disapproval of such conduct. The judge commented that the application should have been obviously without merit to the applicant before it was made, making it an exercise in futility.

This case is significant for establishing important principles regarding: (1) the impropriety of seeking interim relief that is identical to final relief in urgent applications; (2) the strict duty of utmost good faith in ex parte applications and the consequences of material non-disclosure; (3) the court's inability to override statutory provisions of the Customs and Excise Act regarding goods that are the subject of an offence and liable to forfeiture; and (4) the appropriateness of punitive costs orders where applicants exhibit dishonesty or mala fides in applications. The case reinforces the importance of procedural propriety and candor in urgent chamber applications.