Harare businessman and the Grain Millers Association of Zimbabwe (GMAZ) chairman, Tafadzwa Musarara is contesting the legality of the Customs Act over the payment of customs duty on imported goods which are bought by third parties.
This comes after the he (Musarara) had gone through the hell of paying taxes after buying a Mercedes Benz from a legal and registered local car dealer.
In High court papers seen by this publication, Musarara cited the Finance Minister and the Zimbabwe Revenue Authority (Zimra) as first and second respondents respectively.
In his application, Musarara argued that all paperwork had been cleared and shown proof but was surprised to receive communication from the Zimbabwe Revenue Authority demanding that the duty paid for the vehicle was not enough.
In a bid to end the dispute, the GMAZ boss complied by paying the demanded taxes but still claims that Zimra is still haunting him.
"This is an application for declaring as invalid section 192 (1) and (1a) of the Customs and Excise Act (Chapter 23:02) on the basis that the provisions are inconsistent with sections 56 (1), 71 (2) and (3) as well as section 68(1) of the Constitution of Zimbabwe, 2013," he wrote in his application.
"Upon the provisions being declared invalid, I seek an order for the referral of the matter to the Constitutional Court for an order confirming the declaration. I am a Zimbabwean citizen and have a legal interest in the validity of the operational statues. The Customs and Excise is one such statute.
"Further, as I will show, I have been adversely affected in the past by the provisions involved and my standing to seek invalidation of the same is indisputable. I am anxious that my interests be not imperiled in the future by provisions whose validity I doubt.
"I must indicate that the provisions involved have affected me under circumstances which have left me in no doubt that they are unconstitutional."
Giving the background to the case, Musarara said on or around December 1 2019 he purchased from Kahuni a Mercedes Benz G63 Wagon then unregistered but which is now registered as AFE 6327.
He said it was his understanding that Kahuni was in the business of importing motor vehicles, that he had imported the vehicle in question, and had fully paid all taxes and duties required by law.
The vehicle was then in the second respondent (Zimra)'s warehouse and his understanding were that upon presentation in terms of the agreement, he would acquire rights to the vehicle and would be able to take it from Zimra.
"I was obliged to pay the sum of US$160 000 which I duly paid," he said.
"On his part, Kahuni produced documents which suggested that he had paid all the duties required by law. In fact, on the strength of those documents, the vehicle was cleared for its to be changed into my name," he further explained.
According to Musarara, Zimra however took the position that Kahuni (car dealer) had not paid all taxes and duties due. It did not fully explain why it had given the impression that he had so paid before I committed myself to the agreement.
He said Zimra officials went on to seize the vehicle after it was already in his hands.
This was on account of a dispute that had arisen between Zimra and Kahuni but he was still affected.
He said the seizure of the vehicle led to litigation during which Kahuni reiterated on oath that he had paid all the taxes claimed by Zimra.
Musarara said he took a business decision and decided that he would pay the taxes claimed by Zimra subject to his right to claim a refund from Kahuni and duly did so.
He however said the dispute is not yet over because Zimra has taken the position that the payment that I made did not discharge the obligation involved.
"It takes this high handed position because it has an hanging over my head arising by reason of its reliance on section 192(1) of the Customs and Excise Act," he said.
He said the provisions impugned have been used against him, an innocent third party to his prejudice.
Musararaa said section 192 (1) is dangerously wide and places in the hands of the state a weapon that is harmful to the subject of the state.
"In other words, it allows for the weapon of the law by an already powerful second respondent (Zimra). The harm administered by the provision is complemented by being given a criminal enforcement mechanism by subsection 1(a). This leaves the subject at the mercy of the state and is what a written constitution is meant to address," Musarara said.
He said it is on consideration of the foregoing that he is of the view that the provisions in question implicate a breach of the protection of the law guarantee as encapsulated in section 56 of the Constitution.
"It is further my view that the provisions violate my right to administrative justice as set out in section 68 of the Constitution," he said.
He said the provision is overbearing in that it allows an innocent third party who has acquired for value to have their rights interfered with for no reason that pertains to their delinquency.
Musarara further said the provision does not kick in unless tax has already been levied on goods and paid.
Such tax is levied by the state through the Zimra.
A subject of the state acquiring goods for value has to assume that the second respondent properly computed the taxes payable.
The law however allows Zimra to repossess the goods so acquired from that party notwithstanding that they may not be responsible for the debacle that would have led to the original underpayment of duty.
"Without a doubt, the provision exposes the third party to an undue penalty arising out of an offense for which they are not responsible," he said.
He said the overbearing nature of the provision taken together with the undue powers it gives the state makes it inconsistent with the three rights.
"It is too wide, lacks discipline, and must be declared invalid," he wrote.
The case is yet to be heard.