Tsitsi Nyoni v Zimbabwe Revenue Authority

The applicant imported a Mercedes Benz GLE 350d motor vehicle in December 2022 using a returning resident's rebate which suspended duty liability under the Customs and Excise (Suspension) Regulations 2003. In January 2024, the applicant left Zimbabwe for South Africa to care for her ill sister who later passed away on 14 August 2024. The applicant also fell ill in February 2024 and only became fit to travel in August 2024. She returned to Zimbabwe on 23 August 2024. The respondent (ZIMRA) conducted a post-clearance verification and attempted to contact the applicant but failed. The vehicle was flagged, and upon attempting to renew her vehicle licence on 28 August 2024, the applicant was informed that her vehicle was liable to seizure as she had left the country for more than six months within 24 months of clearance without written authority from the Commissioner of Customs and Excise or payment of duty. ZIMRA issued a Notice of Seizure and imposed release conditions including payment of duty amounting to USD 23,875.34, a 100% fine, and storage charges. The applicant appealed to the Commissioner who upheld the duty, interest and storage charges but reduced the penalty from 100% to 50%. The applicant sought judicial review of these decisions on various grounds including gross irregularities and lack of jurisdiction.

• Whether an application for review of a decision by the Commissioner of Customs and Excise is subject to the 60-day notice requirement under section 196 of the Customs and Excise Act as read with section 6 of the State Liabilities Act
• Whether review applications constitute 'civil proceedings' requiring notice in terms of section 196(1) of the Customs and Excise Act
• Whether the failure to give the requisite notice is fatal to an application for review
• Whether the respondent's decisions to seize the vehicle, impose duty, interest, penalties and storage charges were lawful

The preliminary point raised by the respondent that the applicant ought to have given notice in terms of section 196 of the Customs and Excise Act as read with section 6 of the State Liabilities Act was dismissed with costs.

Section 196(1) of the Customs and Excise Act does not require the giving of 60 days' notice for review applications challenging decisions of the Commissioner of Customs and Excise. While review applications constitute civil proceedings, they are exempt from the notice requirement because at the time the application for review is filed, the respondent is already fully aware of the applicant's complaint, having made the decision under challenge, which gives the respondent ample time to consult and take a position. Review applications are distinguishable from other civil proceedings that are subject to the notice requirement under section 196(1) of the Customs and Excise Act and section 6 of the State Liabilities Act.

The court noted that the primary objective of the notice requirement is to provide timely opportunity to ZIMRA to know and investigate the material facts upon which its actions are challenged and to afford ZIMRA opportunity to protect itself against consequences of possible wrongful conduct by tendering early amends. The court also observed that section 196(1) of the Customs and Excise Act is generally a peremptory provision, as indicated by the use of the word 'shall', but acknowledged that this applies to proceedings other than review applications. The court acknowledged the general principle that Supreme Court decisions take precedence over High Court decisions (stare decisis), but found the Supreme Court case of Care International v Zimra to be distinguishable as it dealt with different issues and did not specifically address whether review proceedings require notice under section 196(1).

This case is significant in Zimbabwean administrative law as it clarifies that applications for judicial review of administrative decisions by ZIMRA are not subject to the 60-day notice requirement under section 196 of the Customs and Excise Act, despite such applications constituting civil proceedings. The judgment distinguishes review applications from other civil proceedings on the basis that the administrative authority is already aware of the complaint by virtue of having made the decision under challenge. This represents an important exception to the general notice requirement in proceedings against state entities, facilitating access to justice in administrative review matters. The case also demonstrates the application of the principle of stare decisis in Zimbabwe's court hierarchy, showing how High Court decisions can be distinguished from Supreme Court precedents on their facts and specific legal issues addressed.