Shiela Sithole v Zimbabwe Revenue Authority

The applicant was based in the United Kingdom from 2000 until her return to Zimbabwe in 2018. She applied for an immigrant's rebate upon her return. While she was granted a rebate for other goods, she was denied the rebate for a motor vehicle. The decision denying the motor vehicle rebate was made on 12 March 2020. Aggrieved by this decision, the applicant instituted court proceedings on 9 June 2021, seeking a declaratory order and other consequential relief. The applicant did not give the mandatory 60 days' notice of intention to sue as required by section 196(1) of the Customs and Excise Act. The period between the cause of action and the institution of proceedings was 14 months and 28 days, which exceeded the 8-month limitation period prescribed by section 196(2) of the Act.

• Whether the applicant's claim had prescribed in terms of section 196(2) of the Customs and Excise Act
• Whether a claim that is declaratory in nature is susceptible to prescription
• Whether the applicant complied with the mandatory requirement to give 60 days' notice of intention to sue in terms of section 196(1) of the Customs and Excise Act
• Whether section 196(1) of the Customs and Excise Act is unconstitutional as being ultra vires sections 56(1), 68(1), and 69(3) of the Constitution of Zimbabwe, 2013

The application was dismissed with costs.

A claim for declaratory relief under section 14 of the High Court Act does not exempt an applicant from complying with the peremptory prescription periods and notice requirements contained in the Customs and Excise Act, Chapter 23:02. Once a claim has prescribed under section 196(2) of that Act, there are no existing, future, or contingent rights for the court to determine by way of declaratory order. Section 196(1) of the Customs and Excise Act, which requires 60 days' notice before instituting civil proceedings against ZIMRA, is not unconstitutional and does not violate the constitutional rights to equality before the law (section 56(1)), administrative justice (section 68(1)), or access to courts (section 69(3)). Such notice requirements are necessary provisions for the proper administration of justice when dealing with State institutions and do not constitute unjustifiable limitations on constitutional rights.

The court observed that a party relying upon a precedent has a duty to demonstrate how such case is relevant as authority to their own situation. The court noted with apparent disapproval that the applicant's counsel made generalized arguments about COVID-19 lockdowns and court practice directions extending the limitation period without assisting the court with exact calculations to show that the applicant had acted within the required 8-month period. The court distinguished immunity from execution clauses (such as section 5(2) of the State Liabilities Act considered in Mangwiro) from procedural notice requirements, suggesting these serve different purposes and should be analyzed differently in constitutional challenges.

This case reinforces the strict application of prescription periods and procedural requirements when bringing actions against State entities under the Customs and Excise Act in Zimbabwe. It establishes that seeking declaratory relief does not exempt litigants from complying with statutory prescription periods in the enabling legislation. The case also clarifies that notice requirements for suing State entities are not unconstitutional limitations on access to courts but rather necessary provisions for the proper administration of justice. It demonstrates the Zimbabwean courts' approach to balancing constitutional rights of access to justice with statutory procedural requirements designed to protect State institutions from late claims.