Washington Mandiwo v Zimbabwe Revenue Authority and Others

The applicant was the registered owner of a 2004 Nissan Caravan valued at US$3,500. In December 2020, he was hired by Andrew Kaspara to transport 160 cases of alcoholic beverages from Mozambique into Zimbabwe. Kaspara informed the applicant that the goods had been cleared. On 23 December 2020, the vehicle was intercepted by police at Border Streams, Vumba area along the Zimbabwe-Mozambique border, and both the applicant and Kaspara were arrested for smuggling. Kaspara was prosecuted, convicted and fined RTGS$2,000, and the beverages were forfeited to the state. The applicant was not prosecuted. The first respondent (ZIMRA) seized the vehicle and issued a Notice of Seizure, demanding a fine of RTGS$800,000 plus storage charges. The applicant appealed to the second and third respondents, but his appeals were dismissed. On 1 April 2021, the third respondent (Commissioner General) dismissed the final appeal. The applicant then filed this application for review on 27 September 2021 after issuing a notice to sue on 29 April 2021.

• Whether the application for review was properly before the court in compliance with Rule 62(4) of the High Court Rules, 2021 regarding the eight-week time limit
• Whether the application was prescribed in terms of section 193(12) of the Customs and Excise Act
• Whether the effect of COVID-19 Practice Directives on time limits was properly considered
• Whether the fine of RTGS$800,000 imposed by the respondents was irrational and unreasonable warranting judicial review
• Whether the court should interfere with the administrative decision on grounds of irrationality

The decision of the third respondent dated 1 April 2021 was set aside and substituted with an order that: (a) Applicant shall pay RTGS$250,000 being a fine and storage charges to the first respondent within 21 days of receipt of the order; (b) Upon receipt of payment, respondent shall release the applicant's motor vehicle; (c) Respondents to pay costs of the application.

The binding legal principles established are: (1) Practice Directives issued by the Chief Justice have legal force and effect and must be complied with by litigants and practitioners, and they operate to extend statutory time limits (dies induciae); (2) Administrative officials assessing fines under statute are duty-bound to consider all mitigating factors normally considered by sentencing courts, including moral blameworthiness, the need for rehabilitation and reform, and the circumstances of the offender; (3) Failure to consider such mitigating factors constitutes a misdirection warranting judicial intervention on review; (4) The Wednesbury unreasonableness test applies to review of administrative decisions - a decision is irrational and reviewable if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied their mind could have arrived at it; (5) Section 193(12) of the Customs and Excise Act applies only to actions for recovery of seized articles where the Commissioner General has not released the article pursuant to section 193(6), not to review applications challenging the quantum of fines; (6) A fine must incentivize an offender to pay, not deter payment; it must be proportionate to the offence and the offender's circumstances.

The court made several notable observations: (1) It observed that what is not disputed by a litigant is deemed to have been conceded; (2) The court noted that where an accomplice has been prosecuted and sentenced by a competent court which examined all aggravating and mitigating factors, a quasi-judicial body ought to consider that sentence in arriving at an appropriate fine; (3) The court questioned rhetorically whether the applicant would have received a fine of RTGS$800,000 had he been criminally prosecuted, especially considering the fine paid by the actual smuggler; (4) The court observed that the motor vehicle had been stationary since 23 December 2020 and was gradually losing its value, and that the accumulation of storage costs was created by the respondents themselves; (5) The court noted that it is very unlikely that in the event of the car being auctioned by respondents, it would fetch any amount close to the fine of $800,000; (6) The court emphasized that when casting "an eagle's eye" on the factors as an independent observer, one would conclude that the respondents improperly exercised their discretion.

This case is significant in Zimbabwean administrative law for several reasons: (1) It clarifies the legal status and binding nature of Practice Directives issued by the Chief Justice, particularly in relation to time limits during the COVID-19 pandemic; (2) It establishes that administrative bodies imposing fines must exercise their discretion by considering mitigating factors similar to those considered by sentencing courts, including moral blameworthiness; (3) It demonstrates the court's willingness to intervene and review administrative decisions on grounds of irrationality using the Wednesbury unreasonableness test; (4) It interprets section 193(12) of the Customs and Excise Act, limiting its application to specific circumstances where a Commissioner's release order exists; (5) It emphasizes the principle of proportionality in administrative penalties, particularly where the penalty vastly exceeds the value of the property in question and the fine imposed on the principal offender.