No S.C. 54\2002
Appeal No 246\2001
LARDNER-BURKE (nee JONES) v DIRECTOR OF CUSTOMS
COURT OF ZIMBABWE
JA, CHEDA JA & MALABA JA
JUNE 24 & AUGUST 20, 2002
for the appellant
for the respondent
JA: The appellant approached the High Court seeking an order to
set aside the decision of the respondent who had denied
immigrant rebate for a motor vehicle. The High Court dismissed her
application with costs. This is an appeal against
appellant was resident in the Republic of South Africa. A
Zimbabwean man decided to marry her. She learnt that she was
to an immigrants rebate, which meant she could bring
goods without paying duty for them. This is provided for by section
of the Customs and Excise (General) Regulations 1997 (S.I. 106
of 1997) which reads as follows:-
92(3) Subject to this section a rebate of duty may be granted in
respect of personal and household effects and other goods
an immigrant if such effects
and other goods
to the satisfaction of the Director to have been owned by such
immigrant at the time of his arrival and at the time of
intended for personal use in Zimbabwe by such immigrant but not for
trade or commercial purposes;
imported at the time of arrival of such immigrant or at such time as
the Director may in his discretion approve.
is common cause that the appellant made arrangements for payment for
a Pajero motor vehicle purchased from Mitsubishi Corporation
Payment was by bank transfer. It is not clear why so many banks
were used but this seems to be the source of the appellants
The Bank of
Tokyo, where the money was to be paid, did not recognise Mees Pierson
as an A-grade Bank and they sent the money back.
On yet another
occasion it was returned because a wrong account number had been
the money finally got to the Bank of America in London after which it
was paid into the Bank of Tokyo for Mitsubishi Corporation.
was now 27 May 1999. The appellant had been granted a permit issued
on 27 April 1999 for 5 May 1999.
argued, for the appellant, that once she arranged payment she had no
more control of the events that followed and that as
far as she was
concerned she had paid for the vehicle and she owned it. The
respondents counsel argued that the appellant had
to satisfy the
Director that she complied with the provisions of s 92(3) of the
for the appellant submitted that payment by bank transfer was more
reliable than a cheque, and that once the transfer is
has been made. However, that is not the issue. The issue is
whether the Director was satisfied that she complied
movement of the money from one bank to another resulted in the money
delaying and it only reached the Bank of Tokyo for Mitsubishi
Corporation on 27 May 1999. In other words, this was the date of
view of the above, it cannot be said that when the appellant entered
Zimbabwe she had paid for the vehicle. It follows that
if she had
not paid for it she did not own it at the relevant time.
Director was also concerned about certain documents that she
produced. He asked for an explanation, after which he thought
of the documents were intended to deceive.
was argued that such thinking influenced the Director to the extent
that he based his decision on that.
do not agree.
Even if he
mentioned that, his decision was based on the provisions of the
Regulations since payment was received after the date
of her entry
into Zimbabwe. The suspicious documents could also make it
difficult for him to be satisfied. The Regulations required
was paid about a month after she had been issued with a permit.
When she moved to Zimbabwe, payment had not been made
to the account
of Mitsubishi Corporation. The Director was, for good reasons,
dissatisfied. He exercised his discretion based
on the above facts.
High Court was therefore correct in dismissing the application.
There is no
merit in the appeal.
appeal is dismissed with costs.
JA: I agree
JA: I agree
appellant's legal practitioners
respondent's legal practitioners