BY DESMOND CHINGARANDE THE High Court yesterday ruled that section 192 of the Customs and Excise Act used by the Zimbabwe Revenue Authority (Zimra) to charge import duty was unconstitutional.
This followed a court case where Grain Millers Association president Tafadzwa Musarara challenged the validity of the section after his top-of-the range Mercedes Benz vehicle worth US$160 000 purchased in December 2019 was confiscated by Zimra despite him fully paying for it at a car dealer.
The businessman had cited Finance minister Mthuli Ncube and Zimra as respondents.
Musarara’s vehicle was confiscated despite the fact that he had explained that he was not aware of the outstanding duty payments between Zimra and the seller, Clemio Kahuni.
The businessman said confiscation of his vehicle was unconstitutional because Kahuni had made him believe that he had paid duty for the car.
High Court judge Justice Webster Chinamhora upheld his arguments, and ruled that going forward, Zimra should allow buyers of improperly cleared goods to make representations before it enforces payment of customs and excise duty.
“My view is that section 192(1) and (1a) violate section 68 (1) of the Constitution. The basis of this disposition is that, the Constitution via section 68(1) needs reasonableness and proportionality in administrative conduct. There is no second guessing that proportionality entails that the desired goal of an administrative division is achieved by the use of a method which is least drastic or oppressive to achieve it,” Justice Chinamhora ruled.
The judge further stated that an administrative body must not deploy a sledge hammer to kill a fly.
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Musarara had submitted that he was an innocent purchaser.
“The confiscation of my vehicle contravened a constitutional right to administrative conduct that is lawful, prompt, impartial and both substantively and procedurally fair,” Musarara, through his lawyer Admire Rubaya, said.
“I was never allowed to make representations before seizure and was not even given notice,” Musarara said.
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