Graham C hinyondo v The Zimbabwe Revenue [2025] ZWCHHC 17 (25 February 2025)

8 HCC 07/25 HCCC 116/24 GRAHAM CHINYUNDO Versus THE ZIMBABWE REVENUE AUTHORITY IN THE HIGH COURT OF ZIMBABWE BACHI MZAWAZI & MUZOFA JJ CHINHOYI, 27 January, 3 & 25 February, 2025 Civil Appeal U. Saizi for the Appellant T. L. Marange for the Respondent BACHI MZAWAZI J: Brief Overview This appeal from the Magistrate's Court raised one predominant issue: whether or not the Magistrate's Court has the civil jurisdiction to order the release of goods seized by the respondents in terms of the Customs and Excise Act [Chapter 23:02]. It also brought to the fore several legislative interpretation aspects. In casu, the trial court declined jurisdiction after a full trial, reasoning that, by virtue of section 4 of the Administrative Justice Act [Chapter 10:28], it is the High Court that has the jurisdiction to determine administrative actions of an administrative body. Implicitly, the trial court relied on the maxim expressio unius exclusio alterius1. That is, had the legislature wanted to bestow jurisdiction of administrative acts on the Magistrates' Court, it should have expressly said so, as it did in the case of the High Court. To quote verbatim, the trial court stated that... “S4 of the Administrative Justice Act is clear that where a party is aggrieved by an administrative action, they should approach the high court. There is no mention whatsoever of the magistrates’ court in this aforementioned act making it abundantly clear that the magistrates’ court has no jurisdiction to hear such matters.” It is that court’s decision which is subject to this appeal on two stated grounds. The first being, that the court aquo erred and misdirected itself in failing to appreciate that section 4 of the Administrative Justice Act [Chapter 10:28] is made, subject to the Customs and Excise Act [Chapter 23:02] which merely obliges an aggrieved litigant to institute civil proceedings for the return of seized items in any court of appropriate jurisdiction. The second is, the court aquo misdirected itself in making a finding that it had no jurisdiction to hear the matter notwithstanding that s193 (12) as read with s193 (9) of the Customs and Excise Act [Chapter 23:02] conferred jurisdiction on it to hear the matter. The facts of the case clearly revealed that the appellant was found with some prohibited goods, as well as, some contraband he failed to account for after all his passengers at the time reclaimed their own. The respective charges of violating of s47(1)(e) and 182 of the Customs and Excise Act led to the seizure of the appellant’s vehicle a Nissan Caravan Chassis number VPE25-00694 by the respondents. What is not in dispute is that the action of seizure, up to the time of the criminal court acquittal verdict, was a lawful act made by an administrative authority.2 Both Mr Saizi for the appellant and Mr Marange for the respondent are in agreement that the Magistrates court sitting as a criminal court prosecuting the infringement of the above mentioned sections had no jurisdiction to release any seized goods.3 They also are not disputing that, in terms of the governing enactment, the release of seized goods is only through the Commissioner and an appropriate order from an appropriate court.4 However, the parties are at variance in their construction of what an appropriate court is, as provided in s193 (9) of the Customs and Excise Act and s4 of the Justice and Administrative Justice Act. Appellant’s Arguments It is Mr Saizi’s argument that, the express provisions of section 4 of the Administrative Justice Act [Chapter 10:28], makes it subject to any other law. According to their interpretation, ‘that other law’, is the Customs and Excise Act [Chapter 23:02]. Thus, in as much as the High Court has jurisdiction over administrative acts in general, it is contextually subservient to that of the Magistrates civil court. They advert, sections s193 (12) read in conjunction with s193 (9) of the Customs and Excise Act confers civil proceedings jurisdiction for the release of seized goods to any court of appropriate jurisdiction and that is inclusive of the Magistrates civil court. From that point of view, appellant contends that the trial Magistrate misconstrued the provisions of s4 of the Administrative Justice Act by restricting jurisdiction in such matters to the High Court in view of the phrase “subject to” any other law. It is their submission, that the court aquo’s decision is not legally sound or supported by the law, is erroneous and misdirected. Therefore, the Magistrate court has jurisdiction and the matter should be remitted back for the exercise of that jurisdiction. Respondent’s Argument On the other hand, Mr Marange counsel for the respondent counters that, the Magistrate court’s interpretation and decision was correct. It is the High Court which is empowered to review administrative acts of subordinate courts, tribunals and quasi- judicial functionaries and administrative authorities as embodied in s3 of the Administrative Justice Act. This is to keep them in check, in tandem with s 68(1) of the Constitution.5 Further, the High Court in terms of sections 26 of the High Court Act [Chapter 7:06]6 is bequeathed with review powers over those quasi-judicial bodies and subordinate courts on grounds set out in s27 of the same.7Mr, Marange, in addition asserts that, the Magistrates court as a creature of statute operates within the ambit and framework of the Act that created it and that Act does not give it judicial review powers over quasi-judicial functionaries’ administrative acts. Evaluation On analysis, as observed from the first ground of appeal, both parties seem to agree on the interpretation of the phrase “subject to any other law” in section 4 of the Administrative Justice Act [Chapter 10:28], as implying that since, the Customs and Excise Act [Chapter 23:02] is the any ‘other law,’ therefore, its provisions take precedence. They both employed the literal meaning to the phrase ‘subject to’.8 For ease of reference section 4 of the Administrative Justice Act reads: “Relief against administrative authorities, Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority comply with section three may apply to the High Court for relief.” (My emphasis) It suffices to note that this phrase ‘subject to’ in relation to statutory interpretation has found various expressions in several different cases, all depending on the context upon which it is found or placed. In John Basera v The Registrar of the Supreme Court of Zimbabwe and other SC35/22, it was noted; “The words “subject to’’ are used to denote the dominant provision where there is a conflict between two related provisions.” The Supreme court in the case of John Basera above relied on the dictum in the South case of Zantsi v The Council of State & Others African 1995 ZACC at par. 27 which says, “I respectfully agree with, and adopt, what Miller JA said in the following passage S v Marwarane 1982(3) SA 717 (A), 747H to 748A, namely, ‘ The purpose of the phrase “subject to” in such a context is to establish what is dominant and what is subordinate or subservient; that to which a provision is ‘subject’ is dominant – in case of conflict it prevails over that which is subject to it.” Glens Removal and Storage Zimbabwe (Private) Limited CC06-17 citing the case of S v Pillay 1995 (2) ZLR 313 (H) at 315H noted that Chatikobo J interpreted the meaning of the phrase “subject to” in the following manner: “The phrase 'subject to' has been interpreted to mean 'except as curtailed by'.” See, also Commissioner of Police v Wilson 1981 ZLR 451. In the Glens Removal (supra) the Apex court went on to state, “It follows therefore, as Ms Mahere correctly submitted, that the “access to the courts” provision set out in s 18(9) of the former Constitution is applicable except as curtailed by other provisions of that Constitution.” The honourable GWAUNZA DCJ in the case, Chihava and Others v The Provincial Magistrate Mapfumo N.O and Anor. CCZ 6/2015, encountered and had an opportunity to deal with the same ‘notorious’ phrase ‘ subject to ‘ when she commented in the following manner; “Firstly, the section is not prefixed with the words “Subject to …” or ‘Save as otherwise provided in terms of …’These phrases are normally used in legislative drafting parlance to indicate that the provision in question does not have unfettered application but is to be applied only to the extent that it does not contradict the specific other provisions mentioned. This is clearly not the case in casu.” As can be discerned from the above authorities the clause ‘subject to’ owes its interpretation to the context in which it appears. In the context of this case, ‘subject to’ may literally be construed to mean ‘governed by’ this act and any other law. This in our considered view, is because the provision did not start by saying ‘subject to any other law’ which may be interpreted to mean that, other law, will be the reigning law whilst the law subject to it takes a secondary role. The proviso in question, starts with , Subject to this law and any other’ as opposed to ‘subject to any other’ then some instruction. It becomes a question of semantics. Hence, by virtue of the phraseology which says ‘subject to this law and any other law it means the laws are at par. It speaks to parallel jurisdiction to that of the High Court. As such the dominant court, as per, the case of Basera above, the high court in the context of the aforementioned section 4, in so far as the jurisdiction over the violations of s3 of the Administrative Justice Act is concerned, takes the upper roll in this application. Given that the legislature is presumed consistent and that statutes should be interpreted in such way as to avoid any absurdity, the above construction is consistent with s7 of the Administrative Justice Act which specifically points out that the High Court is the first court to be approached save with the exceptions provided therein. Section 7 provides 7 Discretion to entertain applications “Without limitation to its discretion, the High Court may decline to entertain an application made under section four, if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise, and the High Court considers that any such remedy should first be exhausted….”9 In that respect, by following the judicial review argument posed by Mr Marange, through the purposive approach and by analysing the whole text contextually ,the Administrative Justice Act bequeaths judicial review powers over administrative acts of administrative authorities to the High Court.10 In tandem or in pari materia with High Court review powers borne in s26 and 27 of the High court Act, cited supra, it is the high court, as the third arm of government. This is pursuant to the doctrine of separation of powers that provides the necessary checks and balances over its fellow counterparts an oversight role, the executive and parliament, with all their subsidiaries in line with the Constitution and the doctrine of constitutionalism or constitutional supremacy. Hence, along those lines, it is only a court of superior jurisdiction that can preside and has judicial review powers over quasi- judicial bodies’ decisions and or acts when they violate the provisions stipulated in section 3 of the Administrative Justice Act. (My emphasis).11 If we go back to the subject matter and the crux of ground one of this appeal, by according a proper plain grammatical construction to the contentious section 4, ‘failure by an administrative authority to comply with section three’ is the central phrase. What this term entails is that for the jurisdiction embodied in clause 4 of the Act to be invoked there must have been a violation or non-compliance of the provisions outlined in section 3. Simply put, there must be a breach of section 3 of the Act. In their submissions before the court both parties missed this crucial observation, otherwise section 4 would have been a non- issue. The actions by the respondent were procedural as already noted. In addition, since it was a statutory act, the seizure itself was ingrained in the empowering sections. No reasons were supposed to be given or were given for the seizure and no decision could have been made in order to seize, as it was compulsorily an act of the law. This means that there was nothing that called for judicial review powers. Therefore section 4 was inapplicable, as well as, arguments then and now with the attendant determination based on that section. It follows that whether or not the jurisdictional provisions of Customs and Excise Act [Chapter 23:02] overrode those of the Administrative Justice Act [Chapter 10:28] mattered not. In view of that, clearly, the reasoning of the trial court in denying jurisdiction is based on its construction and application of section 4 as it is. On that basis it was wrongly premised. The trial court was simply being asked to order or not, the release of the seized article or the asked monetary replacement value of USD8.000. As such, ground one fails only to the extent that section 4 was not the appropriate section to determine the issue of jurisdiction over seized goods In that event, the question that arose, remained and is of importance is, in the absence of the Administrative Justice Act provisions whose application we have invalidated, did the Magistrate court still have jurisdiction by virtue of the Customs and Excise Act as a standalone without any reference to the already impugned law? Simply put, does it have the jurisdiction to release goods seized by the respondent. This gives rise to the second ground of appeal. In respect to the second ground of appeal on whether or not the trial court misdirected itself in making a finding that it had no jurisdiction to hear the matter notwithstanding that s193 (12) as read with s193(9) of the Customs and Excise Act [Chapter 23:02] conferred jurisdiction on it to hear the matter. First and foremost, it is well established through judicial precedence and statute that an aggrieved person whose goods would have been seized by the respondents may approach the civil court of appropriate jurisdiction for the release of the seized goods. The whole of section 193 of the Customs and Excise Act is devoted to the procedural aspects of seizures by the respondents. Within the provisions in section 193(12) a person affected by the seizure has an option to either pursue the exhaustion of the domestic remedies route or to approach civil courts of appropriate jurisdiction for their release. The notice of seizure itself specifies the grievance procedures, time-limits and channels as captured in section 193(12). CHATUKUTA JA in the most recent case of Rock Telecom Limited v Zimbabwe Revenue Authority SC52/24 endorsed the jurisdiction of civil courts by disgruntled persons in respect to seized articles. The court observed the same in Patel v Controller of Customs and Excise 1982 (2) ZLR 82 (H) at p 87 A when it stated that: “An individual who is affected by the seizure of articles is able to protect his rights against the possibility of their subsequently being declared to be forfeited, by instituting proceedings for their release from seizure.” The Appeal case of Twotap Logistics (Pvt) Limited v Zimra SC3/23 is of equal significance. Again, what this signals is that, though the above precedents did not differentiate or address as to which particular court civil proceedings must be initiated in order to recover seized goods, they are instructive as to the importation of s193(12) as the alternative remedy for the exhaustion or exploration of domestic remedies provided for by the governing enactment. This means given the divergent interpretations by the parties herein on what an appropriate court is, s193(12) has to be viewed against the provisions of s 193(9) to clarify the position. That be as it may, Mr Marange in his supplementary heads and oral submissions perpetuating the judicial review argument, whilst acknowledging the civil jurisdiction apportioned to courts in general, insists that the Magistrates court, is not the court referred to under s193(9) as a court of appropriate jurisdiction. He argues that, the Magistrates court being a creature of Statute is confined to the monetary jurisdiction and civil proceedings explicitly enunciated in the Magistrates Court [Chapter 7: 10]. In support of his averments, Mr Marange relied on the cases of Mateure v Chimudimwa HB 156/16, and Biti v Chief Superintendent Majuta and Ors, HH 156/11. Counsel for the respondents, nevertheless, maintains that the Customs and Excise Act does not clothe the Magistrates Court with review jurisdiction. On further analysis, the relevant section, s193 (9) of the Customs and Excise Act [Chapter 23:02] calls for scrutiny. It provides as follows: “Provided that no court sitting as a criminal court for any purposes of this Act shall make any order for the return of articles seized in terms of this section and no such articles shall be returned except by the Commissioner General acting in accordance with the Act or by appropriate order made by a court of appropriate jurisdiction in which the person from whom the articles have been seized has instituted separate civil proceedings (my emphasis). The key phrase in the above provision is ‘an appropriate order made by a court of appropriate jurisdiction,’ The word ‘appropriate’ in common parlance means especially suitable or the right court12. The other synonyms are, ideal, fitting, suitable, and right. In this case a purposive and contextual interpretation is called for so as to give effect to the intention of the legislature and to avoid an absurdity. It goes without saying that, the Customs and Excises Act recognizes the criminal jurisdiction of the Magistrates courts as specified in the Act but does not empower the same court sitting as a criminal court to order the return of seized articles. This is the preserve of the Commissioner General and a court of appropriate jurisdiction. Having noted that, we agree with Mr Marange to the extent that indeed, the Magistrates court, acts within the confines of its monetary jurisdiction and civil law application areas as provided for by the Act that birthed it and the periodical reviews to the monetary jurisdiction. In reference to the authorities cited by Mr Marange, indeed in the case of Mateure v Chimudimwa HB 156/16, the court held that, “The Magistrates Court is a creature of statute. It operates in terms of the powers conferred upon it by the legislature.” In that case the court was seized with the issue of whether a Magistrates Court can issue a declaratory order. Biti v Chief Superintendent Majuta and Ors, HH 156/11, substantiated that:- “It is trite that the magistrate’s court is a creature of statute. It has no inherent jurisdiction. It thus, can only do that which it is empowered to do by statute as it has no power of its own, other than that conferred upon it by statute.” Both cases although stating the correct position of the Magistrates Court’s jurisdiction they were not seized with facts as before this court. As it is, reading the provisions of the High court act in pari materia to the Customs and Excise Act in order to give effect to the intention of the legislature the wording ‘an appropriate order by a court of an appropriate civil jurisdiction’, can be streamlined to mean and restricted to the monetary jurisdiction of any civil court. This in turn means, if the seized article’s monetary value falls within its monetary jurisdiction, then the Magistrate court is capable of giving an appropriate order and it becomes an appropriate court with the appropriate jurisdiction. In Commander v Collector of Customs 1920 AD 510 at 513 it was observed that the reasoning of the court of first instance, per Dove-Wilson JP is quoted as follows: “Customs Management Acts and their relative Tariff Acts may, I think, very fairly be taken to be statutes in pari materia, and the rule was thus laid down by Lord Mansfield, CJ, as far back as 1788 in the King v Loxdale: ‘Where there are different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system, and as explanatory of each other.’ Or as Lord Esher, MR, in Hodgson v Bell puts it: ‘It is a clear rule of construction that, where you find a construction has been put upon words in a former Act, which is in pari materia with the one under consideration, and when you find that the same words are used in the later Act as in the former, you must apply the same construction to the later Act’.” In the South African Constitutional Court of Saidi v Minister of Home Affairs [2018] ZACC 9; 2018 (4) SA 333 (CC); 2018 (7) BCLR 856 (CC) at para 36 it was emphasized that; which this Court said: “A well-established interpretive doctrine enjoins us to read the statutes alongside each other, so as to make sense of their provisions together. This canon is consistent with a contextual approach to statutory interpretation. Disposition Having synthesized the above, the determinant factor in the civil jurisdiction of the Magistrates court boils down to the framework of its monetary jurisdiction. In this case, the value of the vehicle in issue as discerned from the alternative claim being the replacement value of the vehicle is USD8000.00. This falls within the domain of the Magistrate court. All things being equal, the basis upon which the vehicle had been seized had fallen away by reason of the appellant’s acquittal of the criminal charges. It meant that a competent court exonerated the appellant from the charges emanating from the violations of the Customs and Excise Act as had been alleged. Common sense dictates that naturally, the release of the vehicle should be a non-issue in the circumstances of this case, even in the face of some other related withholding costs prescribed by the Act. It follows that the second ground of appeal succeeds. The trial court is empowered by s193(12) as read with s193(9) to issue an appropriate order for the release of the seized vehicle as it is our finding that it is an appropriate court for that purpose. As such, it erred and misdirected it -self in declining jurisdiction to deal with matter. The appellant had sought punitive costs which we are not convinced are justified in this case given each part strongly believed of the correctness of its statutory interpretative position. Accordingly, it is ordered that: The appeal succeeds.The matter is remitted to the trial Magistrate to determine the issue of the release of the seized goods in accordance with s193 (12) and 193(9) of the Customs and Excise Act [Chapter 23:02]. MUZOFA J Agrees: Saizi law Chambers appellant’s legal practitioners The Legal Service Department of the Zimbabwe Revenue Authority 1 A latin phrase which means when one or more things of the same class are mentioned others of the same genre are excluded, or the expression of one excludes the other. See, Tapedza and Others v Zera and Anor SC30/20. 2 Section 2 of the Administrative Justice Act [Chapter 10:28] which states that, administrative action means any action taken or decision made by an administrative authority. . Section 193(1) relates to the procedures for seizure and forfeiture empowers its officers to seize any goods, ship, aircraft or vehicle which he or she has reasonable grounds for believing are liable to seizure. Section 2(b) of the same Act defines ‘liable to seizure’ as meaning, any articles the subject matter of an offence under or a contravention of any provision of this Act or any other law relating to customs or excise, notwithstanding the fact that no person has been convicted of such offense or contravention. 3 s193 (9) of the Customs and Excise Act 4 The proviso to s193(9) ibid 5 Section 68[1] of the Constitution says: “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedural fair.” 6 6 Power to review proceedings and decisions; Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe 727 Grounds for review (1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be— (a) absence of jurisdiction on the part of the court, tribunal or authority concerned; (b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be; (c) gross irregularity in the proceedings or the decision. (2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities. 8 See Zambezi Gas Zimbabwe (Pvt)Ltd v N.R. Barber (Pvt)Limited & Anor SC3/20 which explains the golden rule of interpretation as a starting point in the construction of statute. 9 See, Independent Institute of Education (Pty) limited v KwaZulu Natal Law Society and others 2020 (2) SA 325(CC) . 10Chotabhai Union Government(Minister of Justice) 1911 AD 13 at 24 , which highlights that, “It is a well-established canon of statutory construction that, every part of a statute should be construed so as to be consistent, so far as possible, with every other part of that statute, and with every other unrepealed statute enacted by the Legislature. This imperative has the effect of harmonising conflicts and differences between statutes. 11 The dictum by Theron CCJ in the Independent Institute of Education (Pty) above speaking to both thepari materia rule and canons of interpretation stated as follows; “ A contextual approach requires that legislative provisions are interpreted in light of the text of the legislation as a whole (internal context). This Court has also recognised that context includes, amongst others, the mischief which the legislation aims to address, the social and historical background of the legislation, and, most pertinently for the purposes of this case, other legislation (external context). “ 12 See Merriam Webster online dictionary. 8 HCC 07/25 HCCC 116/24 8 HCC 07/25 HCCC 116/24 GRAHAM CHINYUNDO Versus THE ZIMBABWE REVENUE AUTHORITY IN THE HIGH COURT OF ZIMBABWE BACHI MZAWAZI & MUZOFA JJ CHINHOYI, 27 January, 3 & 25 February, 2025 Civil Appeal U. Saizi for the Appellant T. L. Marange for the Respondent BACHI MZAWAZI J: Brief Overview This appeal from the Magistrate's Court raised one predominant issue: whether or not the Magistrate's Court has the civil jurisdiction to order the release of goods seized by the respondents in terms of the Customs and Excise Act [Chapter 23:02]. It also brought to the fore several legislative interpretation aspects. In casu, the trial court declined jurisdiction after a full trial, reasoning that, by virtue of section 4 of the Administrative Justice Act [Chapter 10:28], it is the High Court that has the jurisdiction to determine administrative actions of an administrative body. Implicitly, the trial court relied on the maxim expressio unius exclusio alterius1. That is, had the legislature wanted to bestow jurisdiction of administrative acts on the Magistrates' Court, it should have expressly said so, as it did in the case of the High Court. To quote verbatim, the trial court stated that... “S4 of the Administrative Justice Act is clear that where a party is aggrieved by an administrative action, they should approach the high court. There is no mention whatsoever of the magistrates’ court in this aforementioned act making it abundantly clear that the magistrates’ court has no jurisdiction to hear such matters.” It is that court’s decision which is subject to this appeal on two stated grounds. The first being, that the court aquo erred and misdirected itself in failing to appreciate that section 4 of the Administrative Justice Act [Chapter 10:28] is made, subject to the Customs and Excise Act [Chapter 23:02] which merely obliges an aggrieved litigant to institute civil proceedings for the return of seized items in any court of appropriate jurisdiction. The second is, the court aquo misdirected itself in making a finding that it had no jurisdiction to hear the matter notwithstanding that s193 (12) as read with s193 (9) of the Customs and Excise Act [Chapter 23:02] conferred jurisdiction on it to hear the matter. The facts of the case clearly revealed that the appellant was found with some prohibited goods, as well as, some contraband he failed to account for after all his passengers at the time reclaimed their own. The respective charges of violating of s47(1)(e) and 182 of the Customs and Excise Act led to the seizure of the appellant’s vehicle a Nissan Caravan Chassis number VPE25-00694 by the respondents. What is not in dispute is that the action of seizure, up to the time of the criminal court acquittal verdict, was a lawful act made by an administrative authority.2 Both Mr Saizi for the appellant and Mr Marange for the respondent are in agreement that the Magistrates court sitting as a criminal court prosecuting the infringement of the above mentioned sections had no jurisdiction to release any seized goods.3 They also are not disputing that, in terms of the governing enactment, the release of seized goods is only through the Commissioner and an appropriate order from an appropriate court.4 However, the parties are at variance in their construction of what an appropriate court is, as provided in s193 (9) of the Customs and Excise Act and s4 of the Justice and Administrative Justice Act. Appellant’s Arguments It is Mr Saizi’s argument that, the express provisions of section 4 of the Administrative Justice Act [Chapter 10:28], makes it subject to any other law. According to their interpretation, ‘that other law’, is the Customs and Excise Act [Chapter 23:02]. Thus, in as much as the High Court has jurisdiction over administrative acts in general, it is contextually subservient to that of the Magistrates civil court. They advert, sections s193 (12) read in conjunction with s193 (9) of the Customs and Excise Act confers civil proceedings jurisdiction for the release of seized goods to any court of appropriate jurisdiction and that is inclusive of the Magistrates civil court. From that point of view, appellant contends that the trial Magistrate misconstrued the provisions of s4 of the Administrative Justice Act by restricting jurisdiction in such matters to the High Court in view of the phrase “subject to” any other law. It is their submission, that the court aquo’s decision is not legally sound or supported by the law, is erroneous and misdirected. Therefore, the Magistrate court has jurisdiction and the matter should be remitted back for the exercise of that jurisdiction. Respondent’s Argument On the other hand, Mr Marange counsel for the respondent counters that, the Magistrate court’s interpretation and decision was correct. It is the High Court which is empowered to review administrative acts of subordinate courts, tribunals and quasi- judicial functionaries and administrative authorities as embodied in s3 of the Administrative Justice Act. This is to keep them in check, in tandem with s 68(1) of the Constitution.5 Further, the High Court in terms of sections 26 of the High Court Act [Chapter 7:06]6 is bequeathed with review powers over those quasi-judicial bodies and subordinate courts on grounds set out in s27 of the same.7Mr, Marange, in addition asserts that, the Magistrates court as a creature of statute operates within the ambit and framework of the Act that created it and that Act does not give it judicial review powers over quasi-judicial functionaries’ administrative acts. Evaluation On analysis, as observed from the first ground of appeal, both parties seem to agree on the interpretation of the phrase “subject to any other law” in section 4 of the Administrative Justice Act [Chapter 10:28], as implying that since, the Customs and Excise Act [Chapter 23:02] is the any ‘other law,’ therefore, its provisions take precedence. They both employed the literal meaning to the phrase ‘subject to’.8 For ease of reference section 4 of the Administrative Justice Act reads: “Relief against administrative authorities, Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority comply with section three may apply to the High Court for relief.” (My emphasis) It suffices to note that this phrase ‘subject to’ in relation to statutory interpretation has found various expressions in several different cases, all depending on the context upon which it is found or placed. In John Basera v The Registrar of the Supreme Court of Zimbabwe and other SC35/22, it was noted; “The words “subject to’’ are used to denote the dominant provision where there is a conflict between two related provisions.” The Supreme court in the case of John Basera above relied on the dictum in the South case of Zantsi v The Council of State & Others African 1995 ZACC at par. 27 which says, “I respectfully agree with, and adopt, what Miller JA said in the following passage S v Marwarane 1982(3) SA 717 (A), 747H to 748A, namely, ‘ The purpose of the phrase “subject to” in such a context is to establish what is dominant and what is subordinate or subservient; that to which a provision is ‘subject’ is dominant – in case of conflict it prevails over that which is subject to it.” Glens Removal and Storage Zimbabwe (Private) Limited CC06-17 citing the case of S v Pillay 1995 (2) ZLR 313 (H) at 315H noted that Chatikobo J interpreted the meaning of the phrase “subject to” in the following manner: “The phrase 'subject to' has been interpreted to mean 'except as curtailed by'.” See, also Commissioner of Police v Wilson 1981 ZLR 451. In the Glens Removal (supra) the Apex court went on to state, “It follows therefore, as Ms Mahere correctly submitted, that the “access to the courts” provision set out in s 18(9) of the former Constitution is applicable except as curtailed by other provisions of that Constitution.” The honourable GWAUNZA DCJ in the case, Chihava and Others v The Provincial Magistrate Mapfumo N.O and Anor. CCZ 6/2015, encountered and had an opportunity to deal with the same ‘notorious’ phrase ‘ subject to ‘ when she commented in the following manner; “Firstly, the section is not prefixed with the words “Subject to …” or ‘Save as otherwise provided in terms of …’These phrases are normally used in legislative drafting parlance to indicate that the provision in question does not have unfettered application but is to be applied only to the extent that it does not contradict the specific other provisions mentioned. This is clearly not the case in casu.” As can be discerned from the above authorities the clause ‘subject to’ owes its interpretation to the context in which it appears. In the context of this case, ‘subject to’ may literally be construed to mean ‘governed by’ this act and any other law. This in our considered view, is because the provision did not start by saying ‘subject to any other law’ which may be interpreted to mean that, other law, will be the reigning law whilst the law subject to it takes a secondary role. The proviso in question, starts with , Subject to this law and any other’ as opposed to ‘subject to any other’ then some instruction. It becomes a question of semantics. Hence, by virtue of the phraseology which says ‘subject to this law and any other law it means the laws are at par. It speaks to parallel jurisdiction to that of the High Court. As such the dominant court, as per, the case of Basera above, the high court in the context of the aforementioned section 4, in so far as the jurisdiction over the violations of s3 of the Administrative Justice Act is concerned, takes the upper roll in this application. Given that the legislature is presumed consistent and that statutes should be interpreted in such way as to avoid any absurdity, the above construction is consistent with s7 of the Administrative Justice Act which specifically points out that the High Court is the first court to be approached save with the exceptions provided therein. Section 7 provides 7 Discretion to entertain applications “Without limitation to its discretion, the High Court may decline to entertain an application made under section four, if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise, and the High Court considers that any such remedy should first be exhausted….”9 In that respect, by following the judicial review argument posed by Mr Marange, through the purposive approach and by analysing the whole text contextually ,the Administrative Justice Act bequeaths judicial review powers over administrative acts of administrative authorities to the High Court.10 In tandem or in pari materia with High Court review powers borne in s26 and 27 of the High court Act, cited supra, it is the high court, as the third arm of government. This is pursuant to the doctrine of separation of powers that provides the necessary checks and balances over its fellow counterparts an oversight role, the executive and parliament, with all their subsidiaries in line with the Constitution and the doctrine of constitutionalism or constitutional supremacy. Hence, along those lines, it is only a court of superior jurisdiction that can preside and has judicial review powers over quasi- judicial bodies’ decisions and or acts when they violate the provisions stipulated in section 3 of the Administrative Justice Act. (My emphasis).11 If we go back to the subject matter and the crux of ground one of this appeal, by according a proper plain grammatical construction to the contentious section 4, ‘failure by an administrative authority to comply with section three’ is the central phrase. What this term entails is that for the jurisdiction embodied in clause 4 of the Act to be invoked there must have been a violation or non-compliance of the provisions outlined in section 3. Simply put, there must be a breach of section 3 of the Act. In their submissions before the court both parties missed this crucial observation, otherwise section 4 would have been a non- issue. The actions by the respondent were procedural as already noted. In addition, since it was a statutory act, the seizure itself was ingrained in the empowering sections. No reasons were supposed to be given or were given for the seizure and no decision could have been made in order to seize, as it was compulsorily an act of the law. This means that there was nothing that called for judicial review powers. Therefore section 4 was inapplicable, as well as, arguments then and now with the attendant determination based on that section. It follows that whether or not the jurisdictional provisions of Customs and Excise Act [Chapter 23:02] overrode those of the Administrative Justice Act [Chapter 10:28] mattered not. In view of that, clearly, the reasoning of the trial court in denying jurisdiction is based on its construction and application of section 4 as it is. On that basis it was wrongly premised. The trial court was simply being asked to order or not, the release of the seized article or the asked monetary replacement value of USD8.000. As such, ground one fails only to the extent that section 4 was not the appropriate section to determine the issue of jurisdiction over seized goods In that event, the question that arose, remained and is of importance is, in the absence of the Administrative Justice Act provisions whose application we have invalidated, did the Magistrate court still have jurisdiction by virtue of the Customs and Excise Act as a standalone without any reference to the already impugned law? Simply put, does it have the jurisdiction to release goods seized by the respondent. This gives rise to the second ground of appeal. In respect to the second ground of appeal on whether or not the trial court misdirected itself in making a finding that it had no jurisdiction to hear the matter notwithstanding that s193 (12) as read with s193(9) of the Customs and Excise Act [Chapter 23:02] conferred jurisdiction on it to hear the matter. First and foremost, it is well established through judicial precedence and statute that an aggrieved person whose goods would have been seized by the respondents may approach the civil court of appropriate jurisdiction for the release of the seized goods. The whole of section 193 of the Customs and Excise Act is devoted to the procedural aspects of seizures by the respondents. Within the provisions in section 193(12) a person affected by the seizure has an option to either pursue the exhaustion of the domestic remedies route or to approach civil courts of appropriate jurisdiction for their release. The notice of seizure itself specifies the grievance procedures, time-limits and channels as captured in section 193(12). CHATUKUTA JA in the most recent case of Rock Telecom Limited v Zimbabwe Revenue Authority SC52/24 endorsed the jurisdiction of civil courts by disgruntled persons in respect to seized articles. The court observed the same in Patel v Controller of Customs and Excise 1982 (2) ZLR 82 (H) at p 87 A when it stated that: “An individual who is affected by the seizure of articles is able to protect his rights against the possibility of their subsequently being declared to be forfeited, by instituting proceedings for their release from seizure.” The Appeal case of Twotap Logistics (Pvt) Limited v Zimra SC3/23 is of equal significance. Again, what this signals is that, though the above precedents did not differentiate or address as to which particular court civil proceedings must be initiated in order to recover seized goods, they are instructive as to the importation of s193(12) as the alternative remedy for the exhaustion or exploration of domestic remedies provided for by the governing enactment. This means given the divergent interpretations by the parties herein on what an appropriate court is, s193(12) has to be viewed against the provisions of s 193(9) to clarify the position. That be as it may, Mr Marange in his supplementary heads and oral submissions perpetuating the judicial review argument, whilst acknowledging the civil jurisdiction apportioned to courts in general, insists that the Magistrates court, is not the court referred to under s193(9) as a court of appropriate jurisdiction. He argues that, the Magistrates court being a creature of Statute is confined to the monetary jurisdiction and civil proceedings explicitly enunciated in the Magistrates Court [Chapter 7: 10]. In support of his averments, Mr Marange relied on the cases of Mateure v Chimudimwa HB 156/16, and Biti v Chief Superintendent Majuta and Ors, HH 156/11. Counsel for the respondents, nevertheless, maintains that the Customs and Excise Act does not clothe the Magistrates Court with review jurisdiction. On further analysis, the relevant section, s193 (9) of the Customs and Excise Act [Chapter 23:02] calls for scrutiny. It provides as follows: “Provided that no court sitting as a criminal court for any purposes of this Act shall make any order for the return of articles seized in terms of this section and no such articles shall be returned except by the Commissioner General acting in accordance with the Act or by appropriate order made by a court of appropriate jurisdiction in which the person from whom the articles have been seized has instituted separate civil proceedings (my emphasis). The key phrase in the above provision is ‘an appropriate order made by a court of appropriate jurisdiction,’ The word ‘appropriate’ in common parlance means especially suitable or the right court12. The other synonyms are, ideal, fitting, suitable, and right. In this case a purposive and contextual interpretation is called for so as to give effect to the intention of the legislature and to avoid an absurdity. It goes without saying that, the Customs and Excises Act recognizes the criminal jurisdiction of the Magistrates courts as specified in the Act but does not empower the same court sitting as a criminal court to order the return of seized articles. This is the preserve of the Commissioner General and a court of appropriate jurisdiction. Having noted that, we agree with Mr Marange to the extent that indeed, the Magistrates court, acts within the confines of its monetary jurisdiction and civil law application areas as provided for by the Act that birthed it and the periodical reviews to the monetary jurisdiction. In reference to the authorities cited by Mr Marange, indeed in the case of Mateure v Chimudimwa HB 156/16, the court held that, “The Magistrates Court is a creature of statute. It operates in terms of the powers conferred upon it by the legislature.” In that case the court was seized with the issue of whether a Magistrates Court can issue a declaratory order. Biti v Chief Superintendent Majuta and Ors, HH 156/11, substantiated that:- “It is trite that the magistrate’s court is a creature of statute. It has no inherent jurisdiction. It thus, can only do that which it is empowered to do by statute as it has no power of its own, other than that conferred upon it by statute.” Both cases although stating the correct position of the Magistrates Court’s jurisdiction they were not seized with facts as before this court. As it is, reading the provisions of the High court act in pari materia to the Customs and Excise Act in order to give effect to the intention of the legislature the wording ‘an appropriate order by a court of an appropriate civil jurisdiction’, can be streamlined to mean and restricted to the monetary jurisdiction of any civil court. This in turn means, if the seized article’s monetary value falls within its monetary jurisdiction, then the Magistrate court is capable of giving an appropriate order and it becomes an appropriate court with the appropriate jurisdiction. In Commander v Collector of Customs 1920 AD 510 at 513 it was observed that the reasoning of the court of first instance, per Dove-Wilson JP is quoted as follows: “Customs Management Acts and their relative Tariff Acts may, I think, very fairly be taken to be statutes in pari materia, and the rule was thus laid down by Lord Mansfield, CJ, as far back as 1788 in the King v Loxdale: ‘Where there are different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system, and as explanatory of each other.’ Or as Lord Esher, MR, in Hodgson v Bell puts it: ‘It is a clear rule of construction that, where you find a construction has been put upon words in a former Act, which is in pari materia with the one under consideration, and when you find that the same words are used in the later Act as in the former, you must apply the same construction to the later Act’.” In the South African Constitutional Court of Saidi v Minister of Home Affairs [2018] ZACC 9; 2018 (4) SA 333 (CC); 2018 (7) BCLR 856 (CC) at para 36 it was emphasized that; which this Court said: “A well-established interpretive doctrine enjoins us to read the statutes alongside each other, so as to make sense of their provisions together. This canon is consistent with a contextual approach to statutory interpretation. Disposition Having synthesized the above, the determinant factor in the civil jurisdiction of the Magistrates court boils down to the framework of its monetary jurisdiction. In this case, the value of the vehicle in issue as discerned from the alternative claim being the replacement value of the vehicle is USD8000.00. This falls within the domain of the Magistrate court. All things being equal, the basis upon which the vehicle had been seized had fallen away by reason of the appellant’s acquittal of the criminal charges. It meant that a competent court exonerated the appellant from the charges emanating from the violations of the Customs and Excise Act as had been alleged. Common sense dictates that naturally, the release of the vehicle should be a non-issue in the circumstances of this case, even in the face of some other related withholding costs prescribed by the Act. It follows that the second ground of appeal succeeds. The trial court is empowered by s193(12) as read with s193(9) to issue an appropriate order for the release of the seized vehicle as it is our finding that it is an appropriate court for that purpose. As such, it erred and misdirected it -self in declining jurisdiction to deal with matter. The appellant had sought punitive costs which we are not convinced are justified in this case given each part strongly believed of the correctness of its statutory interpretative position. Accordingly, it is ordered that: The appeal succeeds. The matter is remitted to the trial Magistrate to determine the issue of the release of the seized goods in accordance with s193 (12) and 193(9) of the Customs and Excise Act [Chapter 23:02]. MUZOFA J Agrees: Saizi law Chambers appellant’s legal practitioners The Legal Service Department of the Zimbabwe Revenue Authority 1 A latin phrase which means when one or more things of the same class are mentioned others of the same genre are excluded, or the expression of one excludes the other. See, Tapedza and Others v Zera and Anor SC30/20. 1 A latin phrase which means when one or more things of the same class are mentioned others of the same genre are excluded, or the expression of one excludes the other. See, Tapedza and Others v Zera and Anor SC30/20. 2 Section 2 of the Administrative Justice Act [Chapter 10:28] which states that, administrative action means any action taken or decision made by an administrative authority. . Section 193(1) relates to the procedures for seizure and forfeiture empowers its officers to seize any goods, ship, aircraft or vehicle which he or she has reasonable grounds for believing are liable to seizure. Section 2(b) of the same Act defines ‘liable to seizure’ as meaning, any articles the subject matter of an offence under or a contravention of any provision of this Act or any other law relating to customs or excise, notwithstanding the fact that no person has been convicted of such offense or contravention. 2 Section 2 of the Administrative Justice Act [Chapter 10:28] which states that, administrative action means any action taken or decision made by an administrative authority. . Section 193(1) relates to the procedures for seizure and forfeiture empowers its officers to seize any goods, ship, aircraft or vehicle which he or she has reasonable grounds for believing are liable to seizure. Section 2(b) of the same Act defines ‘liable to seizure’ as meaning, any articles the subject matter of an offence under or a contravention of any provision of this Act or any other law relating to customs or excise, notwithstanding the fact that no person has been convicted of such offense or contravention. 3 s193 (9) of the Customs and Excise Act 3 s193 (9) of the Customs and Excise Act 4 The proviso to s193(9) ibid 4 The proviso to s193(9) ibid 5 Section 68[1] of the Constitution says: “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedural fair.” 5 Section 68[1] of the Constitution says: “Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedural fair.” 6 6 Power to review proceedings and decisions; Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe 6 6 Power to review proceedings and decisions; Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe 727 Grounds for review (1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be— (a) absence of jurisdiction on the part of the court, tribunal or authority concerned; (b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be; (c) gross irregularity in the proceedings or the decision. (2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities. 727 Grounds for review (1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be— (a) absence of jurisdiction on the part of the court, tribunal or authority concerned; (b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be; (c) gross irregularity in the proceedings or the decision. (2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities. 8 See Zambezi Gas Zimbabwe (Pvt)Ltd v N.R. Barber (Pvt)Limited & Anor SC3/20 which explains the golden rule of interpretation as a starting point in the construction of statute. 8 See Zambezi Gas Zimbabwe (Pvt)Ltd v N.R. Barber (Pvt)Limited & Anor SC3/20 which explains the golden rule of interpretation as a starting point in the construction of statute. 9 See, Independent Institute of Education (Pty) limited v KwaZulu Natal Law Society and others 2020 (2) SA 325(CC) . 9 See, Independent Institute of Education (Pty) limited v KwaZulu Natal Law Society and others 2020 (2) SA 325(CC) . 10Chotabhai Union Government(Minister of Justice) 1911 AD 13 at 24 , which highlights that, “It is a well-established canon of statutory construction that, every part of a statute should be construed so as to be consistent, so far as possible, with every other part of that statute, and with every other unrepealed statute enacted by the Legislature. This imperative has the effect of harmonising conflicts and differences between statutes. 10Chotabhai Union Government(Minister of Justice) 1911 AD 13 at 24 , which highlights that, “It is a well-established canon of statutory construction that, every part of a statute should be construed so as to be consistent, so far as possible, with every other part of that statute, and with every other unrepealed statute enacted by the Legislature. This imperative has the effect of harmonising conflicts and differences between statutes. 11 The dictum by Theron CCJ in the Independent Institute of Education (Pty) above speaking to both thepari materia rule and canons of interpretation stated as follows; “ A contextual approach requires that legislative provisions are interpreted in light of the text of the legislation as a whole (internal context). This Court has also recognised that context includes, amongst others, the mischief which the legislation aims to address, the social and historical background of the legislation, and, most pertinently for the purposes of this case, other legislation (external context). “ 11 The dictum by Theron CCJ in the Independent Institute of Education (Pty) above speaking to both thepari materia rule and canons of interpretation stated as follows; “ A contextual approach requires that legislative provisions are interpreted in light of the text of the legislation as a whole (internal context). This Court has also recognised that context includes, amongst others, the mischief which the legislation aims to address, the social and historical background of the legislation, and, most pertinently for the purposes of this case, other legislation (external context). “ 12 See Merriam Webster online dictionary. 12 See Merriam Webster online dictionary.