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 loaded vehicle was intercepted by police at Border Streams, Vumba area, and both the applicant and Kaspara were arrested for smuggling. Kaspara was prosecuted, convicted, and fined RTGS$2,000. The cargo was forfeited to the state. The applicant was not prosecuted, but ZIMRA seized his vehicle and issued a Notice of Seizure. The first respondent demanded a fine of RTGS$800,000 plus storage charges. The applicant's appeals to the second and third respondents were dismissed. The third respondent's decision was dated 1 April 2021. On 29 April 2021, the applicant served notice to sue, and on 27 September 2021, filed this application for review.

• Whether the application for review was properly before the court given the 8-week time period in Rule 62(4) of the High Court Rules, 2021 and the effect of COVID-19 Practice Directives
• Whether the application was prescribed under section 193(12) of the Customs and Excise Act [Chapter 23:02]
• Whether the fine of RTGS$800,000 assessed by the respondents was irrational and unreasonable and subject to judicial review on grounds of irrationality

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

When a quasi-judicial administrative body assesses a monetary penalty or fine pursuant to statutory powers, it must exercise that discretion rationally and take into account all relevant mitigating factors, including the offender's moral blameworthiness, the value of the property involved, proportionality to similar offences, and circumstances of the offender. A penalty that is grossly disproportionate, excessive, and fails to consider relevant mitigating factors constitutes an irrational exercise of discretion subject to judicial review on Wednesbury unreasonableness grounds. COVID-19 Practice Directives issued by the Chief Justice have legal force and effect and suspend procedural time limits, including the 8-week period for filing review applications under Rule 62(4) of the High Court Rules. Section 193(12) of the Customs and Excise Act applies to actions for recovery of seized articles where the Commissioner has not ordered their release, but does not apply to review applications challenging administrative decisions regarding penalties.

The court observed that Practice Directives are binding and have legal force and effect, citing Cuthbert Elkana Dube v Premier Service Medical Aid Society SC73/19 and Ahmed v Docking Station Safaris SC 70/18. The court noted that when computing procedural time limits, matters not disputed by a respondent are deemed to have been conceded. The court remarked that storage charges had accumulated as a result of the respondents' actions in imposing an excessive fine, not due to the applicant's conduct. The court commented that it was unlikely the vehicle, if auctioned, would fetch anywhere near the fine of RTGS$800,000. The court expressed that a fine must incentivise an offender to pay, not deter payment through excessiveness. The court noted that the motor vehicle had been stationary since 23 December 2020 and was gradually losing value, with respondents barring the applicant from accessing it.

This case is significant in Zimbabwean administrative law for demonstrating the application of the Wednesbury unreasonableness test to administrative penalties imposed by statutory bodies. It establishes that revenue authorities, when assessing fines and penalties, must exercise discretion rationally and consider mitigating factors similar to those considered by criminal courts in sentencing, including moral blameworthiness, proportionality to the offence, and the offender's circumstances. The judgment clarifies the interplay between COVID-19 Practice Directives and procedural time limits in litigation, confirming that Practice Directives have legal force and effect and suspend procedural time limits. It also interprets section 193(12) of the Customs and Excise Act as applying to actions for recovery of seized articles, not to review applications challenging the quantum of administrative penalties.