Tafadzwa Musarara v Minister of Finance & Economic Development and Zimbabwe Revenue Authority

In December 2019, the applicant purchased a Mercedes Benz G63 G Wagon (Registration No. AFE 6327) from Clemio Kahuni for US$160,000.00. At the time of purchase, the vehicle was in the 2nd respondent's (ZIMRA) warehouse. The applicant believed that all taxes and duties had been fully paid. However, ZIMRA contended that duty had not been fully paid and seized the vehicle under section 192(1) of the Customs and Excise Act after the applicant had taken delivery. The applicant, claiming to be an innocent purchaser, challenged the constitutionality of sections 192(1) and (1a) of the Customs and Excise Act, arguing they violated his constitutional rights as he was not given notice or an opportunity to make representations before the seizure.

• Whether sections 192(1) and (1a) of the Customs and Excise Act [Chapter 23:02] are inconsistent with sections 68(1), 56(1), 71(2) and (3) of the Constitution of Zimbabwe
• Whether the applicant had standing to bring the constitutional challenge
• Whether the matter was properly before the High Court as a constitutional issue
• Whether the defence of lis alibi pendens barred the application
• Whether ZIMRA's seizure of the vehicle without prior notice violated the right to administrative justice
• Whether the applicant was entitled to declaratory relief

1. The point in limine was dismissed. 2. Sections 192(1) and (1a) of the Customs and Excise Act [Chapter 23:02] were declared inconsistent with sections 68(1) and 56(1) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013, and struck out as invalid. 3. The Registrar of the High Court was ordered to place the judgment before the Constitutional Court for confirmation of the order of invalidity. 4. No order as to costs.

Administrative action that involves seizure of property must comply with section 68(1) of the Constitution by providing affected persons with adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations before the seizure is effected. Legislation that empowers administrative officials to seize property without prior notice and hearing violates the constitutional rights to administrative justice (section 68(1)) and equal protection of the law (section 56(1)). Post-seizure remedies cannot cure the constitutional defect of failing to provide procedural fairness before administrative action is taken. Administrative powers must be proportionate and not use more heavy-handed means than necessary to achieve their objective. For a constitutional challenge to be properly before the court, the applicant must demonstrate actual harm from the impugned law and that the court's order will practically affect their rights.

The court observed that proportionality entails achieving the desired goal of an administrative decision by using the method which is least drastic or oppressive, and administrative bodies must not use "a sledge hammer to kill a fly." The court noted that while section 71(2) and (3) of the Constitution protect against compulsory acquisition of property, these provisions are not implicated where seizure is done to enforce payment of duty rather than for purposes such as public safety, defence, or community benefit. The court commented that the 6-year seizure period and the ability to seize goods "wherever found" and from "whomever" possesses them makes the provision arbitrarily wide and unfair to innocent purchasers. The court emphasized that declarations of invalidity made by the High Court have no force until confirmed by the Constitutional Court under section 175(1) of the Constitution, and the Constitutional Court must conduct its own thorough investigation regardless of lower court findings.

This case is significant in Zimbabwean constitutional jurisprudence as it establishes the principle that administrative seizure powers must comply with constitutional requirements of procedural fairness, including prior notice and an opportunity to be heard before action is taken. It affirms that post-seizure remedies are insufficient to satisfy constitutional requirements of administrative justice under section 68(1) of the Constitution. The judgment reinforces the principles of proportionality and reasonableness in administrative action, particularly protecting innocent third-party purchasers from arbitrary state action. It demonstrates the court's willingness to strike down legislation that grants overly broad and arbitrary powers to administrative authorities. The case also clarifies the test for when constitutional challenges are properly before the High Court and the requirements for declaratory relief in constitutional matters.