Tawanda Mungate & Anor v Zimbabwe Revenue Authority

The plaintiffs' motor vehicles (a Nissan Vanette and a Mitsubishi Delica) were seized by the defendant (ZIMRA) in 2016 on suspicion of being used to transport cigarettes liable for unpaid excise duty. The vehicles had been with a mechanic for repairs when they were taken without the plaintiffs' knowledge. The actual offender, Richard Tafirei, was traced, arrested and convicted under s 184(e) of the Customs and Excise Act. The magistrate's court ordered forfeiture of the plaintiffs' vehicles to the State as part of Richard's sentence, without hearing the plaintiffs. The plaintiffs successfully appealed the forfeiture order and in July 2021, this court ordered the vehicles' release forthwith (HH 347-21). When the defendant failed to release the vehicles, the plaintiffs issued summons on 12 November 2021 seeking their return or monetary compensation. The defendant filed a special plea alleging: (1) failure to serve proper notice under s 196 of the Customs and Excise Act read with the State Liabilities Act, and (2) prescription under s 193(12) of the Customs and Excise Act.

• Whether the plaintiffs complied with the requirement to serve notice under s 196 of the Customs and Excise Act read with s 6 of the State Liabilities Act before instituting proceedings
• Whether a letter dated 17 November 2017 constituted proper notice under s 196 of the Customs and Excise Act
• Whether the issue of the s 196 notice was res judicata having been determined in previous proceedings (HH 265-19)
• Whether the plaintiffs' claims were prescribed under s 193(12) of the Customs and Excise Act or s 15(d) of the Prescription Act
• Whether the defendant could rely on prescription where the court had already ordered release of the vehicles
• Whether the special plea should be removed and referred to trial

The defendant's special plea was removed from the roll and referred to trial. Costs were ordered to be in the cause.

1. Issue estoppel applies where an issue that was a necessary ingredient in a previous cause of action decided upon is presented to the court again, preventing relitigation of the same issue. 2. The purpose of notice under s 196 of the Customs and Excise Act is to afford the revenue authority timely opportunity to know and investigate material facts and protect itself against consequences of possible wrongful action by tendering early amends. 3. Where a state agency has actual knowledge of the basis of a claim through years of engagement and previous litigation, it cannot rely on technical defects in notice to defeat a claim. 4. A revenue authority acting as agent of the State cannot exercise or arrogate to itself greater power than conferred upon it on behalf of its principal, the State. 5. When a court orders the State to release seized property, the revenue authority as the State's agent has no authority to refuse compliance. 6. Prescription cannot be competently pleaded where court proceedings for recovery have been instituted and concluded in favor of the claimant. 7. Seizure under customs legislation is not an end in itself but may ultimately end with forfeiture; the revenue authority cannot forfeit property while proceedings for recovery might be or have been instituted, particularly where concluded in the claimant's favor.

The court expressed concern about the conduct of the trial magistrate who had vacillated between various provisions of law regarding the authority for the forfeiture order. The court also noted that there were unresolved questions about the propriety of the notices of seizure themselves under s 193(10) and (11) of the Customs and Excise Act, including whether the notices were properly served on the plaintiffs (who were not the direct recipients), and whether they were informed of their rights under s 193(12). The court observed that these matters required viva voce evidence and could not be dealt with on the papers. The court also commented that while it remained to be apprised why the plaintiffs alleged they were still required by law to seek return of the vehicles notwithstanding the court's prior order for their release, the present proceedings were realistically a continuation of proceedings mounted from the time of the 17 November 2017 letter.

This case is significant in Zimbabwean jurisprudence (and relevant to South African law given similar customs and excise frameworks) for establishing important principles regarding: (1) the application of res judicata and issue estoppel in administrative law matters involving state agencies; (2) the purpose and requirements of statutory notice provisions under customs and excise legislation; (3) the limits of state agencies' powers when acting as agents of the State; (4) the binding nature of court orders directing state agencies to release seized property; (5) the inapplicability of prescription where court orders have already been made in favour of claimants; and (6) the need for substantial compliance with notice requirements where the state agency has actual knowledge of the claim. The judgment demonstrates judicial frustration with attempts to relitigate settled issues through technical objections when the substantive merits clearly favor the claimants.