THE High Court has dismissed an application challenging the requirement to give 60 days’ notice before instituting proceedings against the Zimbabwe Revenue Authority (Zimra).
Opposition legislator Consilia Chinanzvavana was seeking an order of constitutional invalidity declaring the subsections unconstitutional.
The legislator had cited Finance, Economic Development and Investment Promotion minister, Zimra and the Attorney-General as respondents.
In the application heard by High Court judge Justice Gladys Mhuri, Chinanzvavana, who was being represented by Tendai Biti, applied to the High Court after she suffered a setback at the hands of Zimra.
According to court papers, on December 19, 2021, Chinanzvavana had her motor vehicle, a Mazda BT50 double-cab pick-up truck, impounded at Nyabira tollgate by the Zimbabwe National Road Administration on the instruction of Zimra for failing to pay duty.
Aggrieved by this action, she filed an application for a spoliation order at the High Court under HC 1014/22, which was unsuccessful due to failure to give the requisite notice.
As a result, Chinanzvavana filed the current application challenging the notice requirement.
However, the application was opposed by all the respondents.
In the application, Chinanzvavana contended that the said provision infringed on her right of access to court or to some other tribunal for the resolution of any dispute protected by section 69(3) as well as her right to a fair and speedy trial before an independent and an impartial court codified under section 69(1).
She contended that the said provision infringed on her right to equal protection and benefit of the law as provided in section 56(1) of the Constitution.
Her argument was that the requirement to give 60 days’ notice was an unnecessary constraint to her right of access to the courts, particularly in a country like Zimbabwe, where the majority of people are poor and cannot afford lawyers.
Chinanzvavana questioned why it was only Zimra which required a notice when other bodies such as the Reserve Bank of Zimbabwe or Air Zimbabwe had no such requirement.
She submitted that, therefore, section 56 was flouted, hence the notice period was unconstitutional.
The Finance ministry and Attorney-General opposed the application saying the rationale behind the requirement to give notice in terms of section 196(1) was that claims have to be investigated before litigation is instituted as there are cases that are settled at that stage.
They also argued that it was not only Zimra which was accorded this requirement, but it also applied to all claims against the State in terms of the State Liabilities Act.
The respondents submitted that the provision was meant to bring finality to tax issues and promoted the right to a fair and speedy trial as envisaged in section 69.
They also argued that as regards section 56(1) of the Constitution, Chinanzvavana had not cited examples of people who had approached the courts, the State or the Zimra commissioner on tax issues and had been treated in a different manner.
Zimra also argued that with regards to section 56(1), the Constitutional Court had made itself clear on the meaning of this provision to the effect that it did not protect people in different circumstances.
The judge said a litigant was obliged to give the requisite notice of 60 days to Zimra before instituting proceedings against it.
She said the law was clear that these provisions regulate the procedure, manner and time frames within which litigation is to be done.
“There is, therefore, nothing unconstitutional about a provision that regulates the manner in which persons must institute proceedings.
“It is clear, therefore, that this provision does not trample on a person’s right to access the courts,” the judge said.
“I agree with the submission that the eight months period is not so inadequate as to affect the fundamental right of access to the courts. I am also persuaded by the submission that the 60-day notice requirement serves a legitimate purpose of allowing the State to investigate the matter and potentially resolve it without the need for litigation.
“The provisions actually promote the right to a fair and speedy trial before an independent tribunal as envisaged in section 69 of the Constitution. Further, the said provisions of the Customs and Excise Act are not discriminatory as they apply to anyone who intends to litigate against Zimra.”
Justice Mhuri added: “It is on this basis that I find the provisions of section 196(1) and (2) of the Customs and Excise Act [Chapter 23:02] not to be ultra vires the Constitution. They do not infringe the right to access the courts and the right to equal protection and benefit of the law. In the result, it is accordingly ordered that the application be and is hereby dismissed.”
Justice Mhuri did not give an order for costs.