7
HH 260 - 24
HC 5670/20
DIRECT FUEL IMPORT GROUP
versus
ZIMBABWE REVENUE AUTHORITY
and
MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 14 March 2023 & 24 June 2024
Opposed Court Application for a Declaratur
S Hashiti with F Nyangani, for the applicant
E Mukucha, for the 1st respondent
C Chibindi, for the 2nd respondent
CHITAPI J: This is an application for a declaratur and consequential relief. The applicant is Direct Fuel Imports Group Zimbabwe. It is a universitas incorporated in terms of its constitution, a copy of which was attached to the founding affidavit. The applicant’s founding affidavit was deposed to by Nomatter Mutenje its vice president. He attached a resolution of the applicant authorising him to depose to the founding affidavit.
The first respondent is Zimbabwe Revenue Authority, a statutory body established in terms of the Revenue Authority Act, [Chapter 23:11]. It enjoys inter alia the power to sue and to be sued. The first respondent is the overall tax authority in Zimbabwe.
The second respondent is the Minister of Finance and Economic Development. He is the Minster to whom the administration of the Revenue Authority Act, is assigned. The Minister also enacts subsidiary legislation by virtue of powers to enact them granted in the Act and within the confines of the provisions of the said Act.
The applicant is described in the founding affidavit as an association of indigenous business people engaged in petroleum business. It purports to have a membership of twenty (20) plus companies who operate service stations around Zimbabwe. The applicant’s main objective is given in its constitution as advocating for and promoting the interests of indigenous players in the Petroleum Industry in Zimbabwe.
The applicant has filed this application seeking declaratory relief. Such relief is set out in its draft order. The draft order reads as follows:
“IT IS DECLARED THAT:
1. There is currently no law forcing the payment of duties for petrol, diesel and paraffin in foreign currency.
2. The 1st Respondent accepts duties already paid in Zimbabwe Dollars as full and sufficient payment for fuel already imported by the applicants’ member.
Alternatively
3. The designation by the 2nd Respondent was ultra vires the enabling Act, consequently Statutory Instrument 161 of 2019 which purportedly designated fuel as a foreign currency dutiable commodity be and is hereby declared null and void and consequently be struck off.”
It is necessary to comment on the alternative relief claimed before dealing with the points in limine and merits of the matter. I have considered the propriety of how the challenge to the constitutional invalidity of SI 161/2019 has been pleaded or brought up. This matter was not argued by the parties. The court despite the non-raising of the point with the parties remains a court of law. It deals with a matter which has been brought in terms of the law and may comment on the point for posterity.
The application before the court is a first instance application. The locus standi of the applicant to seek the invalidation of SI 161/2019 was not pleaded, nor established. If one takes the alternative relief into account, the application becomes a hybrid one which involves the making of a declaration of constitutional invalidity of a law and a declaratur under s 14 of the High Court Act. The declaratur sought is based on a different cause of action. The invalidity of a law cannot be pleaded as an alternative relief. See CABS v Stone & Ors SC 15/21; Stone & Anor v CABS & Anor CCZ 05/24. The alternative relief cannot be considered by the court under the circumstances and is struck out. That leaves the reliefs sought in para 1 and 2.
At the commencement of the hearing the parties agreed to adopt a rolled up approach in terms of which both the points in limine and merits are argued and the judgment deals with them in turn. If the points in limine succeed and dispose of the matter then that is the end of the matter. If the points are dismissed then the judgment deals with the merits. This approach in my view is appropriate in instances where the point in limine disposes of the matter. Where the point does not dispose of the matter to finality, the point should be separately argued and judgment given thereon since the judgment then shapes how the matter shall proceed.
The applicants’ alleged that the first respondent was acting unlawfully by threatening applicants’ members with demands that the members should pay duty on fuel imports in foreign currency in retrospect. The applicants’ contended that the applicants’ members had paid the duties in the Zimbabwe Dollar equivalent on time and in full. The applicants’ sought an order that the court should order that the first respondent accepts the duty amounts paid in Zimbabwe Dollars to be in full and final payment of the duties due and a fortiori, that therefore no further payment was due to the first respondent in import tax.
The dispute between the parties surfaced in or around March 2020 when the first respondent engaged in post clearance checks on fuel importers. The applicant alleged that the post clearance checks were selective and resulted in the first respondent claiming additional duty payments denominated in USD. The applicants’ averred that the demand for payment of the additional duty in USD violated the provisions of SI 161/2019. The applicant averred that the additional duties as per demands made to its members amounted to over US$ 7 000 000.00
The applicant attached as annexure C1–C7 copies of letters from the first respondent addressed to seven (7) individual companies operating in Bulawayo and Harare. The letters without individualising them and dates of their generation were written between the period March 2020 – June 2020. In the letters, the first respondent referred to the post clearance verifications made on the fuel importations made by the members and noted that the correct amount of duty had not been accounted for. The various recalculated amounts of duty shortfalls in respect of each of the seven (7) companies was separately stated.
In each of the seven (7) letters of demand for payment of the duty the first respondent listed the quantity of petrol/diesel which was imported, the port of entry, the duty paid in ZWL Dollars and additional duty to be paid in USD. In each of the letters the reason for claiming additional duty in USD was generally stated as follows quoting from one of the letters dated 11 March 2020 annexure C1 addressed to JK Motors t/a Flo Petroleum of Bulawayo:
Following the post clearance verification on your fuel importation from 2 August 2019 to date, it was established that the correct amount of duties were not accounted for. Duties for your importations were paid in local currency which is a violation of S.I. 161/2019 which states that:
‘For all fuel imported from 2 August 2019 using free funds for own use by companies or for sale in foreign currency by designated fuel service stations duty is payable in foreign currency …’”
The applicant and the first respondent held a meeting on 19 March 2020 at the first respondent’s offices. They engaged the first respondent on the issue of the additional duties claimed from the applicants’ members. The applicant followed up on the meeting with a letter addressed to the first respondent dated 28 March 2020. The first respondent responded by letter dated 27 April 2020. The response is attached to the founding affidavit as annexure E. Significantly the applicant noted that there existed RBZ Circular 8 of 2019 and that in terms of s 2.1.2 the applicants’ members were permitted to settle transactions in foreign currency only for fuel purchased using the Nostro accounts. The applicant also noted that “no mechanism was put in place to enable the importer to pay duty in foreign currency. The applicant indicated that its members were not advised of the mechanisms if the mechanisms existed.
In response the first respondent noted that the RBZ circular referred to was superceded by SI 161/2019 which came into effect on 2 August 2019. The first respondent also noted that when the RBZ circular was passed there was no facility or mechanism provided for payment of duty in foreign currency. The first respondent however noted that with the passage of SI 161/2019, since the applicants’ members had to comply with the law, it was incumbent upon them to seek clarification with the relevant government authorities on modalities for complying with the new law. The first respondent noted that SI 161/2019 provided for duty to be paid in foreign currency where fuel was procured by companies or designated fuel dealers for personal use or resale using free funds. The first respondent further noted that the Customs and Excise Tariff Handbook SI 153/2017 specified tariff codes and rates of duty in relation to payment of duty in local currency and in foreign currency.
The first respondent further noted that it was incumbent upon each importer when declaring the imported fuel to indicate whether or not free funds had been utilised. The first respondent noted that it had no reason to deny a declaration made but that it was lawfully empowered to carry out post clearance audits to confirm the correctness of the declarations. Where anomalies existed the importer would be called to account as was done in this case.
The first respondent lastly noted that although it appreciated the efforts made by the applicant to engage the issue, tax issues were always handled on individual basis with an affected person. The first respondent invited the applicants’ members to individually engage with the first respondent who would deal with the matters on a case by case basis.
The applicant responded to the letter aforesaid by its own letter dated 14 May 2020. The applicant raised its tone. It described the first respondent’s response as ‘outrageous’. To cap it all, the applicant stated combatively as follows in the penultimate and last paragraphs of its letter:
“The blatant ineptitude must not be allowed to prosper and we will not fail to raise voices against it. We have a patriotic; if not atavistic, duty to call your organization to order in this regard.
In light of the foregoing we once again request you to withdraw enmasse your letters to our members requesting duties in foreign currency for fuel imported from 2 August to date.”
The applicant also accused the first respondent of failing to apply “high standards of performance” as noted by discrepancies in the response to its letter under reply. The discrepancies were noted as the response being signed by a different officer, namely B D Chadzingwa instead of V. Zuze who signed the earlier letter. The applicant averred that such conduct breached protocol. The applicant also alleged another breach of protocol as the first respondent’s failure to copy its response to RBZ, ZERA, Ministry of Energy and NOIC. The applicant averred that it was necessary for the first respondent to copy those entities because the issue at hand was “a public issue that is not private between yourselves and us. We insist that you copy all these stakeholders so that they may evaluate both our news on the matter.”
It seems to me however that the dispute involved the first respondent and entities who were disputing payment of additional import duty and in foreign currency. The first respondent as a corporate entity created by statute had power in terms of law to deal with the issue. The copying of letters to outside persons and bodies for them to “evaluate” the views of both the applicant and the first respondent has no justification as the dispute was not to be determined by third parties but by the first respondent and now by the court. It was not necessary for the applicant to be confrontational.
Be that as it may, the applicant responded to what it listed as six (6) issues arising from the letter. The first issue was on the prerogative to deal with the new SI 161/2019. The applicant averred that it was the prerogative of the first respondent to clear the issue of foreign currency payment modalities with other government departments. In other words the applicant disputed the applicant’s assertion that it was the duty of the applicant’s members or the tax payer to seek clarification on payment modalities. The second issue was in relation to split codes. The codes split categories of goods for which duty was payable in foreign currency and where payment is in local currency. The applicant took the view that SI 161/19 could not override an Act of Parliament, namely, the Finance (No. 2) Act 2019 which changed the currency regime. The Finance Act referred to inter alia made the Zimbabwe dollar the sole currency for legal tender purposes save as was excepted.
The third issue was the applicant’s assertion that although SI 161/19 listed as subject to payment of duty in foreign currency fuel imported for sale at designated service stations, no service station was designated as such and that ZERA did not put in place procedures and requirements for designated service stations. The fourth issue was the burden to declare free funds wherein the applicant considered that as there were no modalities laid down for implementation, that left one choice which was to pay the duty in the $ZWL currency. The fifth issue related to the first respondent’s averment that tax issues are handled on an individual basis. The applicant averred that the issue at hand was not one of individual tax issues. It was whether or not applicants’ members were liable to pay the taxes which the applicant was claiming. The applicant argued that the issue was of public interest and as such it entitled the applicants’ members to “act as a group”. Lastly the applicant averred that the first respondent had failed to address the issue of SI 212/2019 which was operationalised by SI 213/2019. Just for context, SI 212/2019 provided in s 3 that domestic transactions should be transacted in local currency save for exceptions in s 4 which included inter alia transactions or payments in relation to which another a law provided for payment of duty in foreign currency.
The applicant considered that the first respondent was not entitled to claim payment of the recalculated duties in import tax against the seven members or other fuel importers whose imports fell within the same period. In its combative tone, the applicant stated in reference to the first respondent that it had a “duty to call your organisation to order in this regard”. I don’t comment on the appropriateness of the grammar or applicability of the expression. Anyone reading it can form their opinion. I would however consider the statement unnecessary where the parties were expressing different points of view. In such a situation one party should not be a protagonist and the judge at the same time. My judgment in the application will however not be influenced by my comments on the impropriety of expressions and tone of the applicants’ letter.
The first respondent vehemently opposed the application. The first respondent took issue with the locus standi of the applicant to represent the affected persons or its members on customs clearance issues. The first respondent averred that it acted in terms of the law to conduct post clearance checks and verifications of fuel imports made by the fuel companies whom the first respondent individually addressed by letter. The first respondent averred that its powers to act as it did derived from the Customs and Excise (Tariff) Notice SI 53/2017 as read with SI 161/2019. The first respondent averred that the applicant did not import any fuel nor was any duty levied against it. The first respondent averred that it could therefore not share or debate discussions or outcomes of the cost clearance checks done on the individual tax payers as this would contravene s 34A of the Revenue Authority Act, [Chapter 23:11] as read with s 210 of the Customs and Excise Act, [Chapter 23:02]. The first respondent averred that it communicated this position to the applicant in its letter to the applicant dated 27 April 2020.
The provisions of subss (1) through to (7) s 34A referred to above, read as follows:
“34A Preservation of Secrecy
(1) Any person who –
(a) is employed in carrying out the provisions of this Act; or
(b) is authorised to receive payment of any revenues in terms of any of the Acts specified in the First Schedule; or
(c) examines records under the control or in the custody of the Commissioner-General in terms of the laws relating to the collection and safe custody of public moneys and the audit of public accounts;
Shall, subject to subsections (2), (3), (3a) and (4), keep secret, and aid in keeping secret, all information coming to their knowledge in the exercise of their functions.
[Subsection amended by Act 12 of 2018]
(2) No person referred to in subsection (1) shall, except in the exercise of his functions under this Act or unless he is required to do so by order of a competent court –
(a) communicate information coming to his knowledge in the exercise of his functions to any person who is not –
(i) the taxpayer or other person to whom the information relates or by whom the information was furnished; or
(ii) the lawful representative of the taxpayer or other person to whom the information was furnished; or
(iii) a person to whom the provisions of the laws referred to in paragraphs (a) and (b) of subsection (1) require the information to be communicated; or
(b) allow any person who is not person referred to in subparagraph (i), (ii) or (iii) of paragraph (a) to have access to any record under the control or in the custody of the Commissioner-General which contains information referred to in that subparagraph.
(3) The Commissioner-General shall, if he is required or authorized, as the case the case may be, to do so by the Minister or the Board –
(a) inform the Minister or the Board of the total amount of taxable income which according to the records under the control or in the custody of the Commissioner- General accrued during such periods to such classes of persons from such source as the Minister or the Board may specify;
(b) disclose such information for such purposes as he considers to be desirable;
(c) disclose such information as is required and to the extent that is necessary in order to give effect to any obligation of Zimbabwe in terms of any international convention, treaty or agreement.
(3a) Where the Commissioner-General is satisfied that any information is required for the purpose of –
(a) detecting, investigating or preventing a serious offence; or
(b) combating money laundering or terrorist financing;
As defined in the Money Laundering and Proceeds of Crime Act [Chapter 9:24], the Commissioner-General shall disclose that information to the Director-General of the Financial Intelligence Unit established by that Act.
[Subsection inserted by Act 12 of 2018]
(4) The Commissioner-General may –
(a) in the exercise of his functions under the Income Tax Act [Chapter 23:06], use any information coming to his knowledge in the exercise of his functions under the Capital Gains Tax Act [Chapter 23:01];
(b) in the exercise of his functions under the Capital Gains Tax Act [Chapter 23:01], use any information coming to his knowledge in the exercise of his functions under the Income Tax Act [Chapter 23:06].
(5) All persons referred to in subsection (1) shall, before commencing to exercise the functions conferred or imposed upon them by the laws referred to in paragraphs (a) and (b) of that subsection, take and subscribe before a magistrate, justice of the peace or commissioner of oaths the prescribed oath of secrecy.
(6) Every person who, in contravention of this section or the true intent of the oath of secrecy taken by him and without lawful excuse, reveals to any person whomsoever any matter or thing which has come to his knowledge in the course of his official duties, or suffers or permits any person to have access to any records in the possession or custody of the Commissioner, shall be guilty of an offence and liable to imprisonment for a period not exceeding two years.
(7) Any person who acts in the execution of his office before he has taken the oath prescribed in terms of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand dollars.”
Section 210 of the Customs and Excise Act, [Chapter 23:02] provides as follows:
“210 Secrecy
(1) Subject to subsection (3) and (4) an officer who in the course of his duties has acquired any information relating to any person, firm or business shall not disclose such information, except –
(a) for purposes of this Act or for compilation of statistics; or
(b) when required or ordered to do so by court; or
(c) to the extent that it is necessary in order to give effect to any obligations of Zimbabwe in terms of any international convention, treaty or agreement; or
(d) where on the opinion of the Commissioner such information is or may be relevant to prove the commission of –
(i) an offence in terms of this Act or other law; or
(ii) an act of misconduct by a person employed by the State.
(2) Any officer who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and imprisonment.
(3-5) ……”
The applicant responded in answer to the first respondent’s objection as follows as set out in para 4 of its answering affidavit:
“4. Ad Preliminary Objections
This is denied. The applicant has the locus standi in judicio to sue on behalf of its members as the issues for determination in casu are matters which affect every member in general. These are issues which pertain to the law as opposed to the specific needs of each individual member. This application seeks a declaratur to the effect that the duties already paid by the applicants’ members is full and sufficient payment of duties for fuel already paid by the applicants’ members. It also seeks to declare that there is no law or legal framework currently forcing the payment of duties for fuel in foreign currency. This does not require the applicant to be a customs clearing agent as suggested by the first respondent. It does not require the applicant to be a Registered Clearing Agent. The action is not about Customs Procedures. It is about the law.”
It is proper to deal with this objection without further ado. It is also noted that the second respondent raised a similar objection. The second respondent averred that the applicant was not a fuel importer let alone a registered one. It was averred that the members of the applicant individually and independently of the applicant imported fuel. They acted through their agents who are registered and licenced with the first respondent to file declarations or bills of entry at import points for assessment of duty. The assessed duty was paid to the first respondent by or on behalf of the individual importers without reference to or the involvement of the applicant. It was averred that without being licenced, the applicant lacked the necessary knowledge of customs law and procedure. The second respondent deposed that it was anomalous that the applicant would purport to have locus standi to represent its members without the applicant being a clearing agent and not having represented the applicants in the importation clearances from which the dispute between the applicant and the first respondent arose.
Significantly, the second respondent whilst maintaining that SI 161/2019 was intra vires the enabling Act and was lawful, deposed that the first respondent’s actions were in conformity with s 174 of the Customs and Excise Act which penalizes the making of a false declaration. The second respondent attached as Annexure A1 – A4 copies of bills of entry made by one of the applicants’ members namely Ocean Power Investments Private Limited in which it declared unleaded petrol which it imported under Code 2710.12.13 whereof duty is paid in $ZWL instead of correct Code 2710.1215 whereof duty is paid in foreign currency here the imported fuel is funded with free funds. The same applied in relation to diesel where the code 2710.19.29 was used instead of 2710.19.31. The second respondent as also averred by the first respondent deposed that the first respondent accepted payment in ZWL because of the false declarations which quoted wrong codes. The second respondent averred that by seeking a declaratur to the effect that the applicants’ members had discharged their obligations the court would have ignored the falsity of the declaration.
In the answering affidavit the applicant persisted that it had locus standi because the issues to be determined were matters which affect each of the applicants’ members in general and were not matters affecting individual members.
The applicant then averred that the applicants’ members had been “threatened” by the first respondent through letters of demand. The applicant averred that the members had not made any incorrect declarations nor had they uttered wrong commodity codes. The applicant deposed that its members did not contravene SI 53/2017 as amended by SI 161/2019. The applicant went on to argue that the commodity codes referred to by the respondents applied to designated service stations yet the applicants’ members were not so designated. The applicant argued that the mere fact of selling fuel in foreign currency did not qualify the dispensing or selling service station as a designated fuel service station. The applicant also averred that the collection of duty in foreign currency by the first respondent did not mean that SI 161/2019 was legal. The applicant persisted to argue that in any event foreign currency payment of duty would have contravened the Reserve Bank directive. The applicants’ also argued that SI 252A/2018 which the respondents relied upon as listing diesel and petrol as foreign currency dutiable commodities did not in fact do so. The applicant presented that the second respondent had not passed a law declaring fuel and diesel as attracting duty in foreign currency.
The requirements for a declaratur applied for in terms of s 14 of the High Court Act are well trodden. In the case of Johnson v Agricultural Finance Corporation 1995 (1) ZLR 65, the court stated thus:
“The condition precedent to the grant of a declaratory order made under section 14 of the High Court Act of Zimbabwe, 1981 is that the applicant must be an “interested party” in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties is not a pre-requisite to the exercise of jurisdiction. See Ex p Chief Immigration Officer 1993 (1) ZLR (S) @ 129 F – G; 1994 (1) SA 370 @ 376 G – H; Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) and cases cited.”
The case of Johnsen as quoted is still recognized as setting out the correct position. See Andrew Ranganai Chigovera v Minister of Energy and Power Development & Anor SC 115/21.
The term direct and substantial interest is defined in the following terms in Herbstein and Van Winsen Book – Civil Practice of High Courts of South Africa 5th ed at p 217 as quoted in the Supreme Court judgment in the case Jameson Zvidzai Timba v Chief Elections Officer & 4 Ors SC 69/15:
“A direct and substantial interest has been held to be an interest in the right which is the subject matter of the litigation and not merely a financial interest. It is a legal interest in the subject matter of the litigation excluding commercial interest only. The possibility of such an interest is sufficient and it is not necessary for the court to determine that it in fact exists.”
It follows form the interpretation of s 14 of the High Court Act that if the applicant fails to establish a direct and substantial interest in the subject of the litigation, the applicant has no locus standi. The question is what is the direct interest of the applicant let alone substantial. If the direct interest was in seeking a declaration of invalidity of SI 161/2019, then that is a non-issue in view of the failure of the applicant to procedurally bring a constitutional application or prayer before the court and its subsequent striking out. The direct interest must therefore be considered against the ancillary reliefs which the applicant seeks.
The facts are simple and straight forward in this application. The applicants’ members are importers of fuel and in that process they have a relationship with the first respondent of tax payer and tax collector. The relationship is governed by law and in particular inter alia by the provisions of law which the respondents referred to. Significantly the members of the applicant are treated individually in relation to individual import of fuel transactions which they will have made. They each use a chosen agent who is registered and accredited with the first respondent to clear fuel imports and in the process each import is declared on a bill of entry specific to the specific import. The applicant is not an actor nor participant in the process. It does not have a legal relationship with the first respondent vis-a-vis importation formalities of fuel imported by its members. The applicant is if anything a voluntary interest group of fuel companies accredited to it. It plays its role of promoting the interests of its members. However when it comes to importation of fuel by the individual members the applicant exists in the shadows. It is a spectator. Its name does not feature. It is not privy to the assessments made by the first respondent not to the declarations made by the members.
In terms of the law the applicant cannot debate the declarations made nor the assessments because the law places a gag on disclosure of tax issues and in particular import tax and assessments as well as related information on tax matters save as excepted. The applicant having become aware of its difficulties in that regard ingeniously argued that it was acting for its members in a matter of impugning the validity of SI 161/19. The argument then became that if the legislation is invalid then the first respondent could not act in terms thereof for any purposes including levying additional tax on the applicants’ members. However, the argument becomes stuck on account of the refusal of the court to deal with the supposed constitutional challenge for procedural error. The applicants’ averment that the matter is of general public interest is arguable. However there is no rationale for developing the argument or giving a ruling on it. To do so will be academic in the light of the fact that the question of constitutional validity of SI 161/91 has been struck off.
The declaration which consequently remains as sought by the applicant is for the court to declare that the duties paid by the applicants’ members are in full payment of the duty due on the fuel imports for which the first respondent claims additional duty. Such a prayer is in essence a prayer for review. The first respondent undeniably has legal power to revisit, audit and recalculate import duties as was done in the case of the seven importers who are members of the applicant. Worryingly though, the first respondent stated that the applicants’ members used wrong commodity codes on making their declarations or bills of entry. The first and second respondents allege that the declarations were false and that it is in law a crime to make a false declaration. These issues need investigations by the first respondent with the co-operation of the applicants’ members. Notably the first respondent has invited the applicants’ members to dialogue on the issue. Hopefully they will oblige. If a crime was committed the applicants’ members risk prosecution. It cannot be proper for the court to issue a declaratur which has the effect of disposing of an administrative matter which is still live and being lawfully dealt with by the first respondent.
For the avoidance of doubt the court finds that the challenge to the validity of SI 161/19 was uprocedurally taken and cannot be dealt with. In relation to a declaration that there is no law which forces payment of duty for petrol, diesel and paraffin in foreign currency, the issue as much as the prayer to declare that full duty was paid would amount to seeking the court to anticipate and stifle or interfere with matters which are currently being dealt with by the first respondent. The applicant in any event has no locus standi to seek the relief it seeks as it has no direct and substantial legal interest to merit the court to grant the declarations sought. Even if the court may be wrong to hold that the applicant does not have locus standi, the declaration sought would still be refused in the exercise of the court’s discretion on the basis that the court must not willy nilly make orders which compromise lawful processes by administrative authorities in the absence of illegality and irreversible prejudice to an applicant.
The remaining issue pertains to costs. The first respondent prayed for costs on the ordinary scale whilst the second respondent prayed for costs on the higher scale. Costs are in the discretion of the court. Costs as a general rule follow the event unless there are good grounds to deny a successful party its costs. In relation to a claim for higher or punitive costs such costs are granted in special circumstances which must be specially pleaded and established. Such costs are not granted merely by asking. They must be justified on proven grounds. Counsel for the second respondent did not motivate the justification for punitive costs. Its prayer in this regard fails.
Resultantly this application is determined as follows:
IT IS HEREBY ORDERED THAT:
1. The application be and it is hereby dismissed.
2. The applicant shall pay the first and second respondents’ costs on the court scale.
Nyangani Law Chambers, applicants’ legal practitioners
Zimbabwe Revenue Authority, first respondent’s legal practitioners
Civil Division of Attorney General’s Office, second respondent’s legal practitioners