DELTA Beverages (Private) Limited v The Zimbabwe Revenue Authority (8 of 2025) [2025] ZWCC 8 (8 July 2025)

Judgment No. CCZ 8/25 Constitutional Application No. CCZ 48/24 16 REPORTABLE (6) DELTA BEVERAGES (PRIVATE) LIMITED v THE ZIMBABWE REVENUE AUTHORITY CONSTITUTIONAL COURT OF ZIMBABWE GOWORA JCC, HLATSHWAYO JCC & PATEL JCC HARARE, JANUARY 20, & JULY 8, 2025 T. Mpofu with M. Tshuma, for the applicant S. Bhebhe for the respondent GOWORA JCC: [1] On 9 July 2024, the Supreme Court rendered a judgment No SC 62/24, dismissing an appeal noted by the applicant against a judgment of the High Court. The latter judgment had dismissed an application by the applicant wherein it sought an order declaring as invalid additional assessments issued by the respondent against it following an audit of its tax affairs. The High Court confirmed the validity of the assessments and dismissed the application with costs. [2] Consequent thereto the applicant has filed a court application for an order for direct access to the Court in terms of s 167 (5) of the Constitution as read with rule 21 of the Constitutional Court Rules of 2016. [3] If granted leave, the applicant intends to file an application to this Court in terms of s 85(1) of the Constitution challenging the said judgment of the Supreme Court on the premise that its rights as enshrined in ss 56(1) and 69(2) were violated by the Supreme Court. Background facts [4] The applicant is a registered company which is an integrated beverages company with a diverse portfolio of local and international brands spanning lager beer, traditional beer, Coca-Cola, franchised sparkling and alternative non-alcoholic beverages. [5] The respondent is an administrative authority established in terms of the Revenue Authority Act [Chapter 23:11]. In accordance with s 4 of the above Act, its powers and duties are the following: “(a) to act as an agent of the State in assessing, collecting and enforcing the payment of all revenues; and (b) to advise the Minister on matters relating to the raising and collection of revenues; and (c) to perform any other function that may be conferred or imposed on the Authority in terms of this Act or any other enactment. (2) For the better exercise of its functions, the Authority shall have the power, subject to this Act, to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Second Schedule, either absolutely or conditionally and either solely or jointly with others.” [6] Pursuant to the above legislative mandate, the respondent is mandated to collect revenue for the fiscus through mechanisms provided for in the various pieces of legislation, principally the Income Tax Act [Chapter 23:06], (the “ITA”) ,the Value Added Tax Act [Chapter 23:12] (”the VAT Act”), the Betting and Totalizer Act [Chapter 10:02], the Capital Gains Act [Chapter 23:01], the Customs & Excise Act [Chapter 23:02], the Income Tax (Transitional Period) Act [Chapter 23:06], the Stamp Duties Act [Chapter 23:09] and the Tax Reservations Act [Chapter 23:10]. [7] This dispute is centered on the ITA and the VAT Acts which constitute the primary legislative instruments for the collection of taxes for the fiscus. Under these two pieces of legislation, the system of taxation involves the compilation by the taxpayers of self-assessments of their tax liabilities and the submission of tax returns to the respondent in respect of any year of assessment. Pursuant to its mandate under the system, the respondent can adjust these assessments in the event that it comes across any errors, either in the computation of the assessments or failures to include income or overstatement of credits claimed or for any anomalies it may pick up during its own audit processes. [8] The dispute between the parties emanates from a tax audit conducted by the respondent on the applicant’s tax affairs for the period 1 January 2019 to 31 October 2021. As provided by the fiscal regime, the applicant submitted its value added tax (VAT) returns for the period March 2019 to October 2021 and income tax returns for the years ended 2019 and 2021 and paid all its taxes in full for the above years in Zimbabwe dollars (ZWL). [9] Pursuant thereto, on 17 November 2021, the respondent notified the applicant of its intention to review its tax affairs, more specifically VAT returns for the period from January 1 to December 31, 2020, and income tax payments from January 2019 to September 30, 2021, were made in the currency of trade. [10] In response thereto, in a letter dated 24 November 2021, the applicant contended that s 4A of the Finance Act [Chapter 23:04] (“the Finance Act”) requiring the payment of taxes in foreign currency, preceded the promulgation of s 23 of the Finance Act No. 2 of 2019, which piece of legislation, the applicant contended, made local currency the sole legal tender within the country. The applicant argued in respect thereof that section 4A of the Finance Act which the respondent was relying on was therefore ultra vires the Finance Act. It therefore indicated that it objected to the tax audit. [11] The respondent was not convinced by the applicant’s expressed position. It followed through with the audit. On 11 June 2022, following the audit of the applicant’s tax returns as reflected in its self- assessments, the respondent informed the applicant in writing that discrepancies had been found in the assessments it had presented. The respondent indicated further that, in tandem with s 4A (1) (c) of the Finance Act [Chapter 23:04], and ss 38(4) (a) and 38(4a) of the VAT Act [Chapter 23:12], the applicant was obligated to pay its income and VAT tax in foreign currency in instances where income was received by or accrued to it, in whole or in part, in foreign currency and that it had neglected to do. The respondent indicated that it had also found that the applicant had received foreign currency for local sales during April 2020 to March 2021 and April to December 2019. [12] Following the audit, the respondent issued additional assessments on both VAT and income tax. The respondent re-computed the applicant’s tax liability and issued it with amended tax assessments that required its taxes to be paid in foreign currency in accordance with the revenue it received in foreign currency and to also pay its taxes in local currency proportionate to the revenue it received in local currency. The amended assessments reflecting the applicant’s foreign currency tax liabilities included penalties assessed at a percentage of 20% of the net tax payable. [13] The applicant was not inclined to accept the position of the law as postulated by the respondent and indicated as such. Thereafter correspondence ensued between the parties with no resolution. As a consequence, the applicant filed objections before the Commissioner against the additional assessments imposed by the respondent in July and August 2022. [14] The bases of its objections, amongst others, were the following; that the additional assessments were invalid; that there were no jurisdictional facts that would trigger a re-assessment by the respondent; that the public notice issued by the respondent was not legally binding; and that s 4A of the Finance Act did not apply to provisional tax. [15] The applicant maintained that the Finance Act No. 2 of 2019 took precedence over s 4A of the Finance Act, as the Act of 2019 was enacted later. Additionally, the applicant contested the respondent's apportionment method for the further assessments, claiming that such apportionment was inapplicable to VAT calculations, thus making tax payments in ZWL legally valid. The Commissioner disallowed all the objections. [16] Consequent thereto, the applicant filed suit in the High Court seeking the invalidation of the additional income tax assessments for the 2019 and 2020 tax years and, the additional value-added tax assessments issued against it by the respondent for the period March 2019 to October 2021. Proceedings before the High Court. [17] Before the High Court, the applicant contended that the re-assessment on income tax was invalid because it referred to the term ‘gross tax’ which is foreign to all tax statutes and that the amended tax returns did not compute the applicant’s taxable income, thus rendering the re-assessment invalid. It also contended that the amended tax returns failed to properly calculate the applicant’s taxable income, making them invalid. The applicant averred that there were no jurisdictional facts in existence that justified the respondent issuing its assessments. [18] The applicant contended further that it was unlawful for the respondent to reject payment in the local currency as it had been declared the sole legal tender in Zimbabwe. It averred that the enactment of s 4A of the Finance Act which stipulated that the Zimbabwean currency was to be the sole legal tender, had to prevail over all older provisions of the same Act. [19] The applicant further submitted that the respondent had violated its rights enshrined in s 15(3) of the VAT Act, by denying the deduction of the input tax paid by it in local currency from the output tax received by it in foreign currency. On that premise, the applicant submitted that the respondent's Public Notice No. 26 of 2019 which had set out that method of computation was unlawful and an attempt to legislate. The applicant argued that the penalty on its foreign currency tax was not recoverable in foreign currency as there existed no legal basis for such penalty. [20] Per contra, the respondent, in opposition, averred that the term “gross tax” was an administrative term it applied to denote an amount of the taxable income that would still be subject to further assessment before arriving at the net tax amount due to be paid to the respondent. The respondent further argued that both assessments complied with all the requirements prescribed by law. [21] As regards VAT, the respondent averred that deductions of input taxes from output taxes had to be separated according to currencies of trade and that the law prohibited an assortment of currencies. The respondent further submitted that Public Notice No. 26 of 2019 was issued for the purpose of providing advice and information to assist taxpayers whose receipts from trade were specifically in both local and foreign currency and was perfectly lawful. [22] In considering the application, the High Court noted that the applicant had argued its case on “several fronts”. The court then crystallized the several issues raised by the applicant and narrowed them into five key areas and addressed these specific issues only in making its determination. These were the alleged invalidity of the assessments, whether the respondent had an obligation to accept all taxes in RTGS as the sole legal tender, whether there were jurisdictional facts justifying the issuance of additional assessments, the unlawfulness of respondent’s alleged refusal to deduct local currency input tax from foreign currency output tax and, lastly, whether the respondent was entitled by law to levy penalties in foreign currency. [23] The High Court determined that, if the assessment conformed to s 2 as read with s 51(2) of the ITA, and as long as the VAT evaluation complied with s 31(5) of the Value Added Tax Act, then the assessments could not be rendered invalid on the basis of an alien term. [24] On the question whether the respondent had an obligation to accept all taxes paid by the applicant in RTGS, the court held that the RTGS currency, bond notes and coins were all legal tender because the RBZ Act did not expressly stipulate otherwise. The court further held that Statutory Instrument 142 of 2019 that introduced the sole legal tender concept did not single out the electronic currency. The court determined that there were exemptions to the introduction of the sole legal tender and in this regard made specific reference to the payment of customs duty and the payment of VAT on imports. The court further held that s 4 of Statutory Instrument 212 of 2019 specifically required that all relevant legislation be considered together especially considering that the law demanded that transactions in respect of which any other law expressly mandates or provides for payment to be made in any or a specified foreign currency should be made in the specified currency. [25] However, the court observed that the introduction of the Zimbabwe dollar as the sole legal tender was subject to certain exemptions, including the payment of customs duty and VAT on imports, with additional exemptions later introduced under Statutory Instrument 212 of 2019. It further held that s 4(e) of Statutory Instrument 212 of 2019 expressly permitted transactions to be conducted in foreign currency where any other law explicitly mandates or allows such payments. The court therefore determined that the reference to “any other law” was with respect to section 4 of the Finance Act. [26] The court further held that the jurisdictional facts that triggered the additional assessments were the applicant’s computation of all taxes in the local currency when part of its revenue was received in foreign currency and, in addition, that there were improper deductions from the taxable income. Regarding VAT, the court determined that the respondent had found that the applicant had not submitted the VAT returns in the prescribed form and had completely evaded the section that dealt with the calculation of VAT in foreign currency. [27] The High Court also held that ss 38(4) and (9) of the VAT Act did not permit the deduction of input tax paid in local currency from output tax received in foreign currency, thereby rejecting the applicant’s justification for such cross-currency deductions. [28] The court also ruled that, under s 4A of the Finance Act, the respondent was entitled to impose penalties in foreign currency, as companies and other juristic persons are required to pay certain taxes—and any related penalties—in the currency in which the tax is payable. [29] In the result, the court found that the arguments advanced by the applicant lacked merit and dismissed the application with costs. [30] The applicant was aggrieved with the determination of the High Court and noted an appeal with the Supreme Court. It raised six grounds of appeal. The Supreme Court dismissed the entire appeal. Only the first ground of appeal is pertinent to this application. As regards this ground of appeal, the court a quo found that the High Court had crystallized and summarized all the issues. The court a quo found that the summarized issues were sufficient to enable the High Court to determine the applicant’s rights as regards the payment of taxes in Zimbabwean dollars for taxable income and VAT returns which had been paid in foreign currency. Also, it found that the interpretation of tax statutes by the High Court was dispositive of the case before it. [31] The court a quo found that it could not be said that the High Court did not make a determination of the six issues raised by the respondent when it considered them and reasoned that they were not relevant to the determination of the real issue before it. On that premise, the court a quo dismissed the applicant’s first ground of appeal. The court reasoned as follows: “The primary issue is on the interpretation of the above provisions in relation to what a valid assessment is. In my view, the interpretation of the above provision entails that an assessment is a process of determining the amount of tax which is chargeable including taxable income and the credits to which the taxpayer is entitled to. In the case of Barclays Bank of Zimbabwe Limited v ZIMRA 2004(2) ZLR 151 (H) at 151 C-E, the court stated as follows: ‘It is clear from the definition section that an assessment should determine and contain (i) income and (ii) credits to which a person is entitled. This is not disputed by the respondent. In para 6 of its Heads of Argument the respondent clearly laid out the requirements of an assessment. In addition, in terms of s 51 of the Act, a notice of assessment should be issued whenever an assessment is carried out. Among other things s 51 of the Act stipulates the following: (i) Section 51 (2) – a notice of assessment and of the amount of tax payable shall be given to the tax payer. (ii)Section 51(3) – the commissioner shall give the taxpayer notice that any objection to the assessment shall be sent to the commissioner within 30 days after the date of such notice.’ On close scrutiny of annexure A, it is apparent that it states the taxable income and credits to which the applicant is entitled. Annexure A contains the sums due to the respondent in the form of taxes, penalties and interest.’ And concluded at 152D that: ‘In view of the foregoing I find that Annexure A falls within the ambit of being an assessment or notice of assessment as envisaged by the Act.’ The aforementioned authority explains what a valid assessment contains. If a notice of assessment complies with the requirements set out above, it is valid. In the present case, the Notices of Assessment contained the following: (i)The appellant’s taxable income; (ii) The credits to which the appellant is entitled to; (iii)Tax payable by the appellant; (iv)A notice that any objection to the assessment must be lodged within 30 days. It is therefore apparent that the validity of a notice of assessment does not depend on the minute details of the internal wording of the notice. A correct description of a notice and the inclusion in the notice of the key requirements of a notice specified in ss 2 and 51 (2) of the ITA validates the notice. Sections 2, 51 (2) of ITA and s 31 (5) of VATA do not concern themselves with the, details which can be found in a notice other than the specified aspects. It is therefore, my considered view that the inclusion of the words ‘gross tax’ inside the notices does not invalidate the notices of assessment since all the requirements of a valid assessment have been met. As a result, the appellants’ argument that the notices of assessment are invalid because the respondent used the term ‘gross tax’ in computing details in the notices is not correct.” [32] The Supreme Court proceeded to deal with all the issues before it and in the result dismissed the appeal with costs. The applicant is aggrieved and has, as a consequence, filed an application seeking leave for direct access challenging the constitutionality of the judgment of the Supreme Court. The Application [33] The applicant avers that, as the record confirms, it duly submitted its VAT and Income Tax Returns for the 2019-2021 tax years within the stipulated submission deadlines and settled its dues in full, using the legal tender of the country being the Zimbabwe Dollar (ZWL) and in foreign currency as required. It claims that in terms of the formula it utilized, there was no tax liability due in foreign currency for certain periods. [34] The applicant further avers that despite the fact that it had submitted its returns timeously and, consequent thereto having paid its taxes in full, the respondent, after conducting an audit of the applicant’s tax affairs, issued it with additional assessments for the tax years 2019-2021. [35] Having engaged both its external accountants, legal and tax experts and after it had conducted its own internal investigation as to whether the respondent was correct in its application of the ITA and the Finance Act, it became apparent to the applicant that the respondent had imposed tax and penalties on it based on non-existent provisions and that the respondent had also relied on an interpretation of the relevant Acts which was clearly and unambiguously inconsistent with the law. [36] The applicant avers that after numerous failed attempts to engage the respondent on the issues it had with the assessments issued by the latter, it filed an application for a declaratur before the High Court in which it sought to challenge the legality of the assessments issued by the respondent on several grounds. [37] Specifically, the applicant avers that it challenged the interpretation adopted by the respondent relying on various accepted dictates of interpretation established over time. The applicant further avers that it contended that the respondent’s interpretation of the law as well its formulae were ultra vires the governing fiscal legislative framework and accordingly unlawful. [38] In addition, the applicant contends that, in the alternative, it had gone to great lengths to raise challenges of impossibility and irrationality in complying with the requirements demanded of it by the respondent in an attempt to show that the respondent’s interpretation was not only flawed, but that it was impossible to comply with, thus rendering its stated position irrational. [39] According to the applicant, the High Court limited itself to interpreting specific provisions in the relevant Acts in question and in doing so refused to comment on six grounds raised by it, including grounds that dealt with whether the respondent’s interpretation was consistent with the law. It confirms that the determination by the High Court was on non-constitutional matters. [40] Further it is the contention by the applicant that in rendering its judgment, the High Court limited itself to dealing with a few issues, which issues alone only covered less than half of the applicant’s grievances with the respondent’s conduct. The applicant considers that all the grounds not dealt with by the High Court were material to the case before it. It avers further that it even challenged whether the formulae used by the respondent were provided for in any statutory provision. In sum, the applicant, before the High Court, averred that there was no statutory provision for the formulae adopted by the respondent. [41] The applicant contends that, to its regret, the High Court simply refused to rule on these six critical issues raised by it. It is of the view that the issues it raised were issues of law which, if any had been found in favour of the applicant, would have rendered the assessments issued by the respondent unlawful. [42] The applicant was aggrieved and appealed to the Supreme Court. In that appeal, the applicant relied on long standing precedent that states that the failure by a court to deal with material issues raised by a litigant vitiates the proceedings and ultimately the order granted by that court. It detailed the several issues the High Court had failed to deal with, which failure should have had the effect of rendering the judgment of the High Court grossly irregular and therefore liable to be vitiated. [43] However, contrary to established precedent on the right of litigants to have their justiciable issues on non-constitutional issues determined by a court of law, the applicant avers, the Supreme Court, in violation of the applicant’s constitutional rights to a fair hearing and to equal protection of the law, agreed with the High Court’s approach in truncating the issues raised by it in the appeal and only dealt with certain cherry-picked issues to the exclusion of other material issues. Thus, the Supreme Court failed to pronounce itself on these non-constitutional issues raised by applicant. [44] It is accordingly aggrieved by the judgment of the Supreme Court and now seeks to challenge it before this court on grounds allowed by law. In this respect, the applicant contends that the judgment of the Supreme Court does not deal with the issues placed before it. It accepts that the Supreme Court did not sit to deal with a constitutional matter as pronounced upon in many judgments of this court. The nature of its judgement has, however, now raised constitutional concerns in that it is in breach of applicant’s right to the protection of the law and the right to a fair hearing. [45] The applicant contends that the grounds upon which it seeks to be granted leave for direct access are the following. a) Right to equal protection of the law [46] The contention is made that the applicant’s right to equal protection of the law as guaranteed in terms of s 56(1) of the Constitution has been violated. In motivating this complaint the applicant states that it is entitled to be treated equally to all other litigants before the Supreme Court and the same laws that apply to other litigants should apply to it. [47] Therefore, the applicant contends, the decision by the Supreme Court not to impugn the High Court’s failure to deal with justiciable issues raised by a litigant is arbitrary and irrational. It asserts that the Supreme Court has a positive obligation to protect and promote the spirit, purpose and object of the law. This duty is owed to the public at large, including the applicant. b) Right to a fair hearing in the resolution of any justiciable dispute [48] The applicant avers that it approached a competent court of law with a justiciable dispute against the respondent. Its view is that the respondent had, inter alia, misinterpreted the Income Tax Act, the VAT Act as well as the Finance Act and, in the process, breached several provisions of the Constitution. [49] It contends that it went further and put in issue the practical inoperability of the position adopted by the respondent. Both the High Court and Supreme Court have however failed or refused to hear the applicant’s argument on six issues which issues, had any of them have been decided in its favour, would have resulted in the appeal by the applicant being upheld. Breach of the Constitution [50] Thus, the applicant contends, the exercise by the Supreme Court of its functions in this matter amounts to a breach by it of the Constitution which breach it has set out in its papers filed of record. The applicant goes further to contend that the validity of the exercise by the Supreme Court of its functions is a constitutional issue and that it does not matter that no constitutional question was directly engaged a quo. In addition, it contends that a judgment of the Supreme Court which is rendered in breach of the Constitution is invalid and therefore not final and definitive. This, so the applicant suggests, is what the supremacy of the Constitution entails. The applicant avers that it seeks to protect its right to judicial protection through the medium of the intended application for which it seeks leave herein. [51] It is the expressed view of the applicant that it is in the interests of justice that leave be granted for it to approach the Court because the judgment of the Supreme Court has wide ranging effects as it pronounces on issues applicable to not only the applicant but all taxpayers. According to the applicant, commercially, the judgement exposes it to a tax liability of some USD$50million in double taxation. It suggests that such a significant liability threatens its status as a going concern and should only be imposed after the applicant has been fully heard. It reiterates that it paid taxes in the legal tender in full value which the respondent collected and was made use of by the government of Zimbabwe. [52] The application is opposed. The facts of this case are largely common cause. It is not intended to repeat the same save for those issues that the respondent has placed in contention. [53] The respondent confirms that the applicant computed its income tax and VAT obligations for the years 2019 to 2021 in local currency and paid them in the same currency. The respondent conducted an investigation following receipt of the computations and payments in respect of the same. The investigation revealed that the applicant, despite receiving revenue as well as VAT in foreign currency from its trade, had failed to pay its obligation in the currency in which the revenue and VAT had been received. As a consequence, the respondent issued additional assessments against the applicant. [54] The applicant, being of the view that it was entitled to pay the tax obligations in question in the local currency, approached the High Court seeking a dectaratur that the assessments were invalid. The High Court dismissed the application. The applicant appealed to the Supreme Court again with no success. [55] The respondent has raised several preliminary objections. The first is that the application before the Court is a disguised appeal. The respondent suggests that the motive for the application is evident from a statement in the founding affidavit to the effect that the actions of the respondent have exposed the applicant to a double taxation to the tune of USD 50 million. Premised on this averment, the respondent contends that what the applicant has brought to this Court is in fact a disguised appeal. [56] The respondent contends further that the applicant is aggrieved by the substance of the judgment of the court a quo and that it should not be permitted to make use of an alleged financial burden to raise alleged constitutional violations. It points to the order being sought in the substantive application which seeks the nullification of the judgment of the court a quo and, as a consequence, remittal to the same court for adjudication before a different panel of judges as being proof of the motive behind the application. [57] In cementing its argument in this regard, the respondent contends that the real issue that was placed before the court a quo was “whether the High Court had misdirected itself by failing to consider and determine material issues raised by the applicant thereby rendering the proceedings irregular.” The respondent avers that the Supreme Court dedicated four pages of its judgment to an analysis of the High Court judgment after which it found that the latter had considered and dealt with the issues that the applicant on appeal was alleging had not been dealt with. [58] The respondent avers that the finding by the court a quo that the High Court had dealt with the issues raised before it was dispositive of the dispute herein. That being the case, the respondent contends that the application does not raise any constitutional issues for determination and is in reality a disguised appeal. The respondent prays for its dismissal with a consequent order of costs. [59] In addition, the respondent avers that the applicant is guilty of material non-disclosure. The respondent states that there are two appeals currently pending in the Special Court for Income Tax and the Fiscal Appeals Court arising from the dismissal by the Commissioner General of objections raised by the applicant to the additional assessments raised following the audit of its tax affairs. Critical to the determination of this dispute, avers the respondent, is the contention by the applicant in those matters that the assessments were invalid, this proposition being based on the premise upon which the invalidity was sought in the High Court. The respondent contends further that in those matters the applicant again raises for adjudication those issues that it complains were not determined by the High Court as well as the Supreme Court on appeal. [60] The respondent contends that, given the above, the Court should give effect to the doctrines of constitutional avoidance and subsidiarity and refuse to assume jurisdiction over this matter. According to the respondent, the appeals pending before the said specialized courts afford the applicant with alternative and adequate remedies that militate against the Court assuming jurisdiction to determine a constitutional matter, even if it exists, unnecessarily. Submissions before the Court [61] Counsel for the applicant, Mr. Mpofu, conceded that the decision of the court a quo is final, binding and unrelated to constitutional issues. However, he argued that the applicant was aggrieved by the manner in which the appeal was determined. He contended that the failure by the court a quo to recognize the omission by the High Court in addressing the six key issues placed before it by the applicant constituted a gross misdirection, rendering the entire judgment invalid. As a result, he submitted that this constituted a violation of the applicant’s rights to equal protection under the law and a fair trial. [62] The Court required of Mr. Mpofu to address the fact that both the court a quo and the High Court had the discretion to summarize and streamline the issues to assess the validity of the respondent’s assessments. Counsel responded that the six issues left undetermined by the court a quo pertained to whether the applicant was liable for specific penalties and amounts imposed by the respondent, as well as the extent of these liabilities. He argued that, if the court a quo had addressed these issues and ruled in the applicant’s favor, there was a strong likelihood that the amount payable by the applicant would have been significantly reduced. [63] Further, the Court inquired of Mr. Mpofu how the pending appeals before the Special Court for Income Tax and the Fiscal Appeals Court affected the current application. Counsel argued that in Redan Petroleum (Pvt) Ltd v ZIMRA HH 673-23, the court ruled that the matters raised therein had already been resolved in Delta Beverages (Pvt) Ltd v ZIMRA HH 557-23. He asserted that, if the applicant attempted to revive these appeals, it would be barred by estoppel and would be unable to have the issues it was litigating on reconsidered. [64] The Court also engaged the applicant's counsel on whether the six unresolved issues could be addressed by the Special Court for Income Tax Appeals and the Fiscal Appeals Court, given that the pending appeals before these courts concerned the Commissioner's determinations on the applicant's objections. The Court further observed that the court a quo and the High Court could not be faulted for not addressing the six issues, as they pertained to liabilities, formulae, and quantum determinations made by the Commissioner after the application to the High Court had already been filed. [65] In response, Mr. Mpofu argued that the applicant’s grievance with the court a quo’s decision stemmed from its failure to address the six issues presented. He contended that the application before the High Court concerned the validity of the assessments and that the High Court should have considered the six issues, even though the Commissioner’s determination had not yet been made. Counsel maintained that the most appropriate remedy was to remit the matter to the court a quo, which would then refer it back to the High Court for a ruling on the six issues. He, therefore, requested that the application be granted, asserting that it had prospects of success before a full bench. [66] Per contra, Mr. Bhebhe for the respondent argued that any agreement between the parties could not, in law, prevent the applicant from pursuing its claims in the specialized tax courts, as those matters had been held in abeyance. They were not determined and were still live disputes for adjudication. He maintained that the applicant's concerns centered on two main issues: the tax liability and its amount, as well as the penalty imposed by the Commissioner and its quantum. Mr. Bhebhe further submitted that since the Commissioner's reasons for determination were not presented before the High Court or the court a quo, these courts could not be faulted for not considering them. [67] Further to the above, Mr. Bhebhe argued that the appeals before the Special Court for Income Tax Appeals and the Fiscal Appeals Court were based on the Commissioner's reasons for disallowing the objections raised by the applicant, making those courts better positioned to address the applicant’s issues. He stated that the applicant’s concerns related to the impact on liability and the quantum of the tax, rather than the validity of the assessments, which had already been determined by the court a quo. Therefore, counsel contended that there were no grounds for overturning the decision of the court a quo. Issue for determination [68] The sole issue requiring the Court’s resolution is whether it is in the interests of justice that leave for direct access to the Court be granted. The Law [69] Applications for direct access under the Court’s Rules are subject to r 21(3), which sets out that an applicant must demonstrate the following: the grounds upon which it is in the interests of justice that direct access be granted; the nature of the relief sought; the grounds upon which such relief is sought; and whether the matter can be dealt with without the hearing of oral evidence. [70] It is now settled that applications for direct access are an extraordinary procedure granted only in deserving cases that meet the requirements prescribed by the relevant rules of the Court – see Liberal Democrats and Ors v The President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CCZ 7/18. [71] Accordingly, an applicant seeking direct access must strictly comply with the rules and establish valid grounds showing that the granting of access by the Court would serve the interests of justice. [72] The criteria defining what the interests of justice constitute are outlined in r 21(8) as follows: i The prospects of success if direct access is granted; ii Whether the applicant has any other remedy available to him; and iii Whether there are any disputes of fact in the matter. [73] In Machine v The Sheriff of Zimbabwe & Ors CCZ 8-23, Makarau JCC aptly summarized the provisions of r 21(8) at pg. 7: “The above strictures constitute very broad guidelines to the Court. These guidelines apply in general terms to all applications for direct access. In an application such as the one before the Court, where the allegation is made that a Supreme Court judgment has infringed one or more of the applicant’s fundamental rights and/or freedoms, the applicant specifically bears a double –barrelled onus in establishing that it is in the interests of justice that he or she be granted direct access. He or she must show, in the first instance, that the Supreme Court was disabled from rendering a decision on the matter that was before it. In the second instance, he or she must allege and demonstrate that the judgment infringes one or more of his or her fundamental rights and or freedoms. A consideration of these two aspects will guide the Court in establishing whether it is in the interests of justice that direct access be granted.” [74] The Court will now assess whether the applicant has demonstrated that granting direct access aligns with the interests of justice, beginning with an assessment of whether the court a quo acted in accordance with the law in rendering its decision and whether such decision violated the applicant’s rights. Analysis Whether the court a quo failed to act in accordance with the law governing its proceedings. [75] The applicant does not contest that the court a quo’s decision concerned a non-constitutional issue. Rather, it objects to the manner in which the Supreme Court exercised its discretion in the determination of the appeal it was seized with. Specifically, the applicant alleges that the court a quo failed to impugn the High Court decision premised on the contention that it had omitted to deal with the six issues raised before it by the applicant, and that this amounted to an abdication of its duty, thus rendering its decision invalid and reviewable by this Court. [76] The law allows litigants to challenge decisions of the court a quo in non-constitutional matters on the basis that the decisions were made contrary to the law governing the court’s proceedings. However, for this Court to intervene, litigants must demonstrate that the challenged decision resulted from the court a quo’s failure to comply with the procedural and substantive legal standards applicable to its proceedings. This was stated in Denhere v Denhere CCZ 9-19 at pg. 19-20 to be: “The applicant has to show that the Supreme Court, in the process of determination of the issues before it, failed to act in accordance with the law governing the proceedings to the extent that it was disabled from rendering a decision on a non-constitutional issue it was required to decide. The reason is that a decision on a non-constitutional matter cannot constitute an infringement of the right to equal protection of the law, as it is a decision on a matter within the exclusive jurisdiction of the Supreme Court. The decision is protected by s 169(1) of the Constitution, as read with s 26(1) of the Act.” See also Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018(2) ZLR 743(CC) at 755A-C. [77] In casu, the allegation by the applicant that the court a quo failed to act in accordance with the law governing its proceedings by failing to find that the High Court erred in not determining the six issues raised by the applicant cannot be upheld. Whilst it is settled that the court has to determine all the issues placed before it by the parties and that the failure to do so results in a gross irregularity that vitiates the court’s decision – see PG Industries (Zimbabwe) Ltd v Bvekerwa & Ors SC 53/16 at pg. 7-8, courts are at liberty to identify and determine issues they deem to be relevant to the resolution of the dispute between the parties. This entails that courts, within their discretion, may disregard some issues raised by the parties on the basis that the determination of the other issues would effectively extinguish the dispute between the parties. This has been stated in the case of Longman Zimbabwe (Pvt) Limited v Midzi & Ors 2008 (1) ZLR 198 (S) p 203 that: “In my view, it is not proper for a court to make a decision on only one of the issues raised and say nothing about other equally important issues raised, unless the issue so determined can put the whole matter to rest.” [78] The key consideration in this approach on the part of a court seized with a dispute for determination is that the issues that the court focuses on primarily must contribute to the effective resolution of the dispute between the parties. This was emphasized in the case of Gwaradzimba v C. J. Petron & Company (Pty) Limited 2016 (1) ZLR 28 (S) pg. 31, where the court remarked as follows: “In general, I agree with the respondent’s submission that, in a case where a number of issues are raised, it is not always incumbent upon the court to deal with each and every issue raised in argument by the parties. It is also correct that a court may well take the view that, in view of its finding on a particular issue, it may not be necessary to deal with the remaining issues raised. However this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter.” (my emphasis) [79] The first ground of appeal before the court a quo and which is at the centre of this application reads as follows: The court a quo erred at law and misdirected itself by failing to consider and determine material issues raised by the appellant, thus rendering the proceedings grossly irregular. In particular, the court a quo failed to consider and determine the following issues raised by the appellant: Whether there is a penalty for payment of taxes purportedly due in foreign currency in the local legal tender, and what that penalty is?Whether the apportionment formulae used by the respondent exists in the taxing acts, and if so in which provisions of the taxing acts?Whether the formulae used by the respondent in computing both income tax and VAT was rational, and possible to comply with?Whether there is a constitutional bar to the respondent utilizing section 4(A) 7 of the Finance Act and section 38(9) of the VAT Act to amend primary legislation?The implication of the contra-fiscum rule to uncertain tax legislation. [80] In considering the above ground, the Supreme Court found that the High Court had effectively dealt with the substance of the dispute. The court a quo said: “The appellant had approached the court a quo for a declaratory order that it was entitled to pay income tax and VAT in local currency despite it having received the same in foreign currency. Therefore, the court made a determination which was dispositive of the real issues between the parties. It cannot be said that the court, (the High Court), did not make a determination on the six issues when it clearly considered them and reasoned that they were not relevant in the determination of the real issue before it. In coming up with the five issues on which it determined the case the court a quo was aware that the applicant had objected to the respondent’s re-assessments on multiple grounds and that the case had been argued on many fronts. It then through severe summarization, truncating, crystallization and distillation decided on what was relevant and irrelevant. That in our view is a consideration and determination of the issues the appellant alleges were not considered and given reasons on. The adverse determination on the relevancy of those issues is a determination. The explanation that it severely summarized the appellant’s grounds of objection and truncated and distilled the submissions made before it on many fronts is a giving of reasons why it settled for the five issues after discarding what it considered were irrelevant issues. In other words, the court found that some of the issues raised by the appellant which it left out were irrelevant. A brief and concise explanation of why a court arrives at a decision is proof of it having considered and determined the issues. There is therefore, no merit in the preliminary issue raised by the appellant.” [81] At issue before the High Court was the alleged invalidity of the additional assessments raised by the respondent. What constitutes a valid assessment has been settled and the attempt by the applicant to raise this as an issue for determination by the High Court in the face of decided authority would be, to say the least disingenuous, an attempt to vex the court. [82] The applicant contends that in interpreting the legislation which was the subject matter of the dispute between itself and the respondent, the applicant had clearly raised several key areas where the interpretation adopted by the respondent was inconsistent with the relevant taxing Acts. From this context, it is contended, the judgment of the Supreme Court sadly amounts to an abdication by that court of its function. [83] In my view, the High Court was correct to summarize and crystallize all the issues raised by the applicant into five main issues. According to law, the High Court was empowered to exercise its discretion to summarise and truncate the several issues before it and, thereafter, determine the matter based on the five issues it identified. The law allows for this position and as such there was nothing irregular in the High Court’s approach (see Longman Zimbabwe (Pvt) Limited v Midzi & Ors supra, at p 203. [84] An in-depth analysis of the High Court’s judgment shows that whilst it formulated five key issues from all the issues raised by the applicant, its decision effectively addressed the main dispute between the parties, that is, whether the additional assessments made against the applicant were valid. [85] The judgment of the High Court determined the issues raised by the applicant which resulted in the court upholding the additional assessments. The Supreme Court upheld this finding. In doing so, the Supreme Court found that: “It is absurd to hold that the legislature intended that income earned in foreign currency should be taxed in local currency contrary to the provisions of the statutes referred above. Clearly if that was the intention of the legislature, the whole purpose of raising revenue would be defeated as tax payers would have the liberty to convert the foreign currency earned into domestic or local currency for purposes of paying tax in local currency.” [86] The above finding resolved the issue raised by the applicant which was centrally that the additional reassessment of its income tax returns and VAT returns be set aside. Once the Supreme Court found that the applicant could not calculate its taxes in local currency against foreign revenue receipts, the court essentially resolved the dispute as it found that the reassessments were valid. [87] Through the summarized issues for determination, the High Court found that the additional tax assessments were valid and necessary due to the applicant’s use of an incorrect method of calculation of its self-assessments. It also held that the applicant could not offset taxes in local currency against foreign revenue. [88] By this decision, the High Court effectively resolved the primary dispute between the parties. Accordingly, the court a quo was correct in finding that the High Court had addressed all of the applicant’s issues. There is thus no irregularity that can be imputed against the Supreme Court in the manner that it reached its decision, and the same cannot be deemed invalid. It follows therefore, that the applicant’s claim that the court a quo’s decision violated its governing legal principles is devoid of merit. I now turn to the rights allegedly violated by the respondent. [89] The applicant makes the observation that the Supreme Court has, in several cases, previously found that a court’s failure to determine material issues properly raised before a court is a gross misdirection which has the effect of vitiating proceedings. This is the standard which the Supreme Court has set and consistently adopted in a number of decided cases from this jurisdiction. The applicant suggests that similarly situated litigants in the authorities it relies on have been afforded the protection of the law when a lower court has failed to determine issues raised by the litigants. [90] However, in casu, the applicant contends that, faced with a situation where more than half of the issues it sought relief on were not determined, has been denied the protection afforded to several other litigants in identical situations. It therefore complains that by failing to apply settled precedent in the face of a judgment that neglected to deal with more than half of the applicant’s issues, the Supreme Court failed to act in accordance with the requirements of the law governing the proceedings before it. It states that the issues it raised before the High Court were not necessarily determined as erroneously held by the Supreme Court. [91] The right that is protected by s 56(1) has been construed in several authorities within this jurisdiction. It is non-discrimination provision that seeks to prevent unequal treatment between people situated in similar circumstances. The Court, in Nkomo v Minister of Local Government, Rural & Urban Development & Ors CCZ6/16 defined the protection afforded by s 56(1) as being: “The right guaranteed under s 56 (1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position. It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected. In order to found his reliance on this provision the applicant must show that by virtue of the application of a law he has been the recipient of unequal treatment or protection that is to say that certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.” [92] The applicant contends that the decision of the court a quo violated its right to equal protection of the law and the right to a fair hearing. The violation is alleged to have risen from what the applicant terms as the court a quo’s failure to impugn the High Court decision where, according to the applicant, that court had not determined all the issues raised before it. The applicant further avers that its right to a fair hearing was violated by both the High Court and the court a quo when they omitted to deal with the six issues it had raised. [93] What the Court said in Lytton, supra, cements the position of the law that a litigant may approach this Court for relief premised on the claim that a judgment of the court a quo violates his or her fundamental rights. Nevertheless, the authority stipulates what must be proved in order for a litigant to successfully launch such a challenge. At 755A-C, the Court held that: “The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant’s right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue. The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court’s failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision. Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under s 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.” [94] The Court, in Lytton, makes it clear that it is incumbent upon an applicant to demonstrate that it is the court a quo’s failure to act in accordance with the law governing its proceedings which results in its decision being arbitrary and consequently violating fundamental rights. [95] In demonstrating that the right to equal protection has been violated, a litigant is expected to show that it has not been subjected to the same protection that has been afforded to other similarly placed litigants. This was stated in Machine (supra) at pg. 11-12: “Thus, instead of the right to the protection and benefit of the law being a right to due process simpliciter, the right guaranteed by s56 (1) has been modified or discoloured, as it were, by the insertion of the word “equal” in the provision immediately preceding the right. An applicant seeking to rely on the right must not only allege and prove non-observance of due process but now bears the additional onus of alleging and ultimately showing that other persons similarly positioned are afforded the protection and benefit of the law that he or she craves.” (emphasis added) [96] In casu, the applicant has failed to sustain its claim that it was not afforded the same protection by the Supreme Court as other similarly situated litigants in having its appeal determined. A perusal of the judgment of the court a quo will tend to show that all the grounds of appeal placed before it were considered and determined. The claim that the court a quo left some issues undetermined is not borne out by the record. The applicant, as is evident from the relief it seeks in having the judgment set aside and for a consequent remittal, is unhappy with the result and has mounted a disguised appeal. [97] In my view, the above comments apply equally to the contention that it was not afforded a fair hearing as envisaged under s 69(2). The issues that the applicant was unhappy with as reflected in the first ground of appeal before the court a quo were considered and a determination arrived at. The applicant suggests that the court a quo was enjoined to consider and answer the issues raised by the applicant, and its failure to do was a violation of the applicant’s right to a fair hearing. A fair hearing requires that all material contentions bearing on the just determination of a matter be considered. The applicant suggests that it is no use allowing a litigant to access a court if the litigant’s material contentions are ignored and not determined. It maintains that the duty of the court is to hear the parties and not hear itself. This entails that a fair hearing requires that all the material contentions raised by a party be determined, particularly if a positive determination is to yield a result for a litigant. [98] The applicant complains that the Supreme Court took a trajectory that the issues had been necessarily determined and that this trajectory is erroneous both in law and fact. It is contended that the judgment of the Supreme Court is so fundamentally irregular that this Court can consider invoking its review powers so that there is a proper, full and effectual hearing. [99] The applicant is unhappy with the approach by the court a quo in its disposition of that ground. The Supreme Court affirmed a settled legal standard, namely that a court seized with a myriad of issues for determined is at large, and has the discretion to decide those issues that are dispositive of the dispute and leave aside the irrelevant matters. Just as the High Court had, the Supreme Court found that some of the issues raised by the applicant and which the High Court left out were irrelevant. It accepted that the High Court had given a brief and concise explanation of why a court arrives at a decision and confirmed that this constituted proof that the High Court had considered and determined the issues. Having thus concluded, it found no merit in the preliminary issue raised by the applicant and dismissed that particular ground. [100] The authorities I have referred to above stress that in challenging the decision of the court a quo for alleged violation of rights, litigants must show that the court a quo did not comply with the legal standards governing the proceedings or rights and obligations subject to determination. This failure must be shown to have resulted in the court giving an irrational or arbitrary decision. [101] In my view, the applicant has failed to demonstrate any differential treatment that it was subjected to by the court a quo, nor how its right to a fair trial was violated by both courts. As noted above, the finding by the court a quo that the High Court was correct in summarizing the issues raised by the applicant is permissible under the law as long as the court determines the real dispute between the parties. The decision of the court a quo was in terms of the law governing its proceedings and cannot be faulted. It is therefore only proper to find that there are no prospects of success in this matter. [102] The finding that the decision a quo was in accordance with the law marks the end of the issue. This is because in Denhere (supra) at pg. 23, para 39, the Court held that: “When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.” [103] The decision of the court a quo, being admittedly on a non-constitutional basis, is final and binding. There is no room for this Court to interfere with its decision. Therefore, it is not in the interests of justice that the applicant be granted direct access to this Court as the application has no merit. Whether the applicant has alternative remedies in the Special Court and the Fiscal Court. [104] The respondent submitted, as a preliminary point, that the applicant has pending appeals in the Special Court for Income Tax Appeals and the Fiscal Appeals Court and ought to pursue them to finality first. In response, the applicant avers that these appeals are no longer viable as, firstly, they were removed from the roll by consent of both parties to allow for the determination of the appeal filed in the court a quo. The parties agreed that they would be bound by the decision of the court a quo. Additionally, the record shows that the issues raised in these two appeals and those raised before the court a quo are the same. [105] In his submissions before the Court, Mr. Mpofu, on behalf of the applicant, stated that the applicant would be barred by estoppel from attempting to revive the two appeals, as the High Court had already stated the position set out in Delta Beverages (Pvt) Ltd v Zimra HH 557-23, in the case of Redan Petroleum (Pvt) Ltd v ZIMRA HH 673-23. [106] An appeal lies against a decision by the Commissioner disallowing an objection to an assessment. Without prejudging the attitude of the Special Court for Income Tax Appeals or the Fiscal Appeals Court, s 13 of the Fiscal Appeals Court Act [Chapter 23:05], provides that any person who is dissatisfied with a decision of a Commissioner given in terms of a tax Act may appeal to the Court against that decision. The section requires that every such appeal be noted and prosecuted within the period and in the manner prescribed by rules with the proviso that the Court may, on good cause being shown or by agreement of the parties, extend the said period. Having heard the appeal, the Court may confirm, vary or set aside the decision appealed against. [107] I am therefore not convinced by the contention that the applicant has no other remedy available to it. It is also worth noting that the issues placed before the High Court for determination were the very same issues that it had taken to the Commissioner as objections. Whether issue estoppel may successfully be raised against the applicant in the pending appeals is for those courts seized with the appeals to decide. That is not an issue for determination in the current dispute. The Court will therefore not detain itself on it. [108] What cannot be denied is that there are appeals pending against the decisions of the Commissioner disallowing objections to the additional assessments. What is also worthy of note is the fact that in the objections that the Commissioner disallowed the applicant wished to have the following issues resolved: the alleged invalid status of the additional assessments; whether there is a penalty for the failure to make payments in foreign currency and what the penalty is; whether the apportionment formulae used by Zimra exist in the taxing law regime and if so in which legislative instrument; whether the formulae used by the respondent in computing both income tax and VAT are rational and possible to comply with; whether there is a constitutional bar against the respondent utilizing s 4A(7) of the Finance Act and s 38(9) of the VAT Act to amend primary legislation; and the implications of the contra fiscum rule. [109] In addition to the above, it becomes pertinent to observe that at the time it launched the application for a declaratur before the High Court, the issue of the assessments were the subject of an administrative process under the Commissioner. The applicant had raised objections which had not yet been fully determined. The Commissioner indicated on 25 November 2022 that he had disallowed the major part of the objections and this resulted in the applicant noting an appeal to the Fiscal Appeals Court on 2 December 2022, and to the Special Court for Income Tax Appeals on 14 December 2022. Thus, by the time the High Court heard the parties on the application for a declaratur the matter was pending before these courts for the determination of the said appeals. [110] Courts must be loath to hear and decide on matters that are pending a legal process, be it administrative, quasi-judicial or judicial, before other bodies or authorities bestowed with decision making powers by law. A court that does so may compromise the proper and effective disposal of matters in a fair and just manner. In casu, the High Court should have been alive to the existence of the ongoing dispute before the Commissioner and the special tax appeal courts. These bodies were still seized with the substance of the objections raised by the applicant. Hence its assumption of jurisdiction was in all the circumstances irregular to say the least. It is also for this reason that the application must fail. See NMB Bank v Mushaya & Ors SC 164/21 and the authorities cited therein; Mamombe & Anor v Mushure & Anor CCZ 4/22 and the authorities cited therein. DISPOSITION [111] The application cannot succeed because it is not in the interests of justice for the Court to interfere with the final decision of the court a quo where no fundamental procedural irregularity or violation of rights has been demonstrated. [112] In the result, I make the following order: The application is dismissed.There shall be no order as to costs. HLATSWAYO JCC : I agree PATEL JCC : I agree Gill, Godlonton & Gerrans, applicant’s legal practitioners Kantor & Immerman, respondent’s legal practitioners Judgment No. CCZ 8/25 Constitutional Application No. CCZ 48/24 16 Judgment No. CCZ 8/25 Constitutional Application No. CCZ 48/24 16 Judgment No. CCZ 8/25 Constitutional Application No. CCZ 48/24 16 REPORTABLE (6) DELTA BEVERAGES (PRIVATE) LIMITED v THE ZIMBABWE REVENUE AUTHORITY CONSTITUTIONAL COURT OF ZIMBABWE GOWORA JCC, HLATSHWAYO JCC & PATEL JCC HARARE, JANUARY 20, & JULY 8, 2025 T. Mpofu with M. Tshuma, for the applicant S. Bhebhe for the respondent GOWORA JCC: [1] On 9 July 2024, the Supreme Court rendered a judgment No SC 62/24, dismissing an appeal noted by the applicant against a judgment of the High Court. The latter judgment had dismissed an application by the applicant wherein it sought an order declaring as invalid additional assessments issued by the respondent against it following an audit of its tax affairs. The High Court confirmed the validity of the assessments and dismissed the application with costs. [2] Consequent thereto the applicant has filed a court application for an order for direct access to the Court in terms of s 167 (5) of the Constitution as read with rule 21 of the Constitutional Court Rules of 2016. [3] If granted leave, the applicant intends to file an application to this Court in terms of s 85(1) of the Constitution challenging the said judgment of the Supreme Court on the premise that its rights as enshrined in ss 56(1) and 69(2) were violated by the Supreme Court. Background facts [4] The applicant is a registered company which is an integrated beverages company with a diverse portfolio of local and international brands spanning lager beer, traditional beer, Coca-Cola, franchised sparkling and alternative non-alcoholic beverages. [5] The respondent is an administrative authority established in terms of the Revenue Authority Act [Chapter 23:11]. In accordance with s 4 of the above Act, its powers and duties are the following: “(a) to act as an agent of the State in assessing, collecting and enforcing the payment of all revenues; and (b) to advise the Minister on matters relating to the raising and collection of revenues; and (c) to perform any other function that may be conferred or imposed on the Authority in terms of this Act or any other enactment. (2) For the better exercise of its functions, the Authority shall have the power, subject to this Act, to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Second Schedule, either absolutely or conditionally and either solely or jointly with others.” [6] Pursuant to the above legislative mandate, the respondent is mandated to collect revenue for the fiscus through mechanisms provided for in the various pieces of legislation, principally the Income Tax Act [Chapter 23:06], (the “ITA”) ,the Value Added Tax Act [Chapter 23:12] (”the VAT Act”), the Betting and Totalizer Act [Chapter 10:02], the Capital Gains Act [Chapter 23:01], the Customs & Excise Act [Chapter 23:02], the Income Tax (Transitional Period) Act [Chapter 23:06], the Stamp Duties Act [Chapter 23:09] and the Tax Reservations Act [Chapter 23:10]. [7] This dispute is centered on the ITA and the VAT Acts which constitute the primary legislative instruments for the collection of taxes for the fiscus. Under these two pieces of legislation, the system of taxation involves the compilation by the taxpayers of self-assessments of their tax liabilities and the submission of tax returns to the respondent in respect of any year of assessment. Pursuant to its mandate under the system, the respondent can adjust these assessments in the event that it comes across any errors, either in the computation of the assessments or failures to include income or overstatement of credits claimed or for any anomalies it may pick up during its own audit processes. [8] The dispute between the parties emanates from a tax audit conducted by the respondent on the applicant’s tax affairs for the period 1 January 2019 to 31 October 2021. As provided by the fiscal regime, the applicant submitted its value added tax (VAT) returns for the period March 2019 to October 2021 and income tax returns for the years ended 2019 and 2021 and paid all its taxes in full for the above years in Zimbabwe dollars (ZWL). [9] Pursuant thereto, on 17 November 2021, the respondent notified the applicant of its intention to review its tax affairs, more specifically VAT returns for the period from January 1 to December 31, 2020, and income tax payments from January 2019 to September 30, 2021, were made in the currency of trade. [10] In response thereto, in a letter dated 24 November 2021, the applicant contended that s 4A of the Finance Act [Chapter 23:04] (“the Finance Act”) requiring the payment of taxes in foreign currency, preceded the promulgation of s 23 of the Finance Act No. 2 of 2019, which piece of legislation, the applicant contended, made local currency the sole legal tender within the country. The applicant argued in respect thereof that section 4A of the Finance Act which the respondent was relying on was therefore ultra vires the Finance Act. It therefore indicated that it objected to the tax audit. [11] The respondent was not convinced by the applicant’s expressed position. It followed through with the audit. On 11 June 2022, following the audit of the applicant’s tax returns as reflected in its self- assessments, the respondent informed the applicant in writing that discrepancies had been found in the assessments it had presented. The respondent indicated further that, in tandem with s 4A (1) (c) of the Finance Act [Chapter 23:04], and ss 38(4) (a) and 38(4a) of the VAT Act [Chapter 23:12], the applicant was obligated to pay its income and VAT tax in foreign currency in instances where income was received by or accrued to it, in whole or in part, in foreign currency and that it had neglected to do. The respondent indicated that it had also found that the applicant had received foreign currency for local sales during April 2020 to March 2021 and April to December 2019. [12] Following the audit, the respondent issued additional assessments on both VAT and income tax. The respondent re-computed the applicant’s tax liability and issued it with amended tax assessments that required its taxes to be paid in foreign currency in accordance with the revenue it received in foreign currency and to also pay its taxes in local currency proportionate to the revenue it received in local currency. The amended assessments reflecting the applicant’s foreign currency tax liabilities included penalties assessed at a percentage of 20% of the net tax payable. [13] The applicant was not inclined to accept the position of the law as postulated by the respondent and indicated as such. Thereafter correspondence ensued between the parties with no resolution. As a consequence, the applicant filed objections before the Commissioner against the additional assessments imposed by the respondent in July and August 2022. [14] The bases of its objections, amongst others, were the following; that the additional assessments were invalid; that there were no jurisdictional facts that would trigger a re-assessment by the respondent; that the public notice issued by the respondent was not legally binding; and that s 4A of the Finance Act did not apply to provisional tax. [15] The applicant maintained that the Finance Act No. 2 of 2019 took precedence over s 4A of the Finance Act, as the Act of 2019 was enacted later. Additionally, the applicant contested the respondent's apportionment method for the further assessments, claiming that such apportionment was inapplicable to VAT calculations, thus making tax payments in ZWL legally valid. The Commissioner disallowed all the objections. [16] Consequent thereto, the applicant filed suit in the High Court seeking the invalidation of the additional income tax assessments for the 2019 and 2020 tax years and, the additional value-added tax assessments issued against it by the respondent for the period March 2019 to October 2021. Proceedings before the High Court. [17] Before the High Court, the applicant contended that the re-assessment on income tax was invalid because it referred to the term ‘gross tax’ which is foreign to all tax statutes and that the amended tax returns did not compute the applicant’s taxable income, thus rendering the re-assessment invalid. It also contended that the amended tax returns failed to properly calculate the applicant’s taxable income, making them invalid. The applicant averred that there were no jurisdictional facts in existence that justified the respondent issuing its assessments. [18] The applicant contended further that it was unlawful for the respondent to reject payment in the local currency as it had been declared the sole legal tender in Zimbabwe. It averred that the enactment of s 4A of the Finance Act which stipulated that the Zimbabwean currency was to be the sole legal tender, had to prevail over all older provisions of the same Act. [19] The applicant further submitted that the respondent had violated its rights enshrined in s 15(3) of the VAT Act, by denying the deduction of the input tax paid by it in local currency from the output tax received by it in foreign currency. On that premise, the applicant submitted that the respondent's Public Notice No. 26 of 2019 which had set out that method of computation was unlawful and an attempt to legislate. The applicant argued that the penalty on its foreign currency tax was not recoverable in foreign currency as there existed no legal basis for such penalty. [20] Per contra, the respondent, in opposition, averred that the term “gross tax” was an administrative term it applied to denote an amount of the taxable income that would still be subject to further assessment before arriving at the net tax amount due to be paid to the respondent. The respondent further argued that both assessments complied with all the requirements prescribed by law. [21] As regards VAT, the respondent averred that deductions of input taxes from output taxes had to be separated according to currencies of trade and that the law prohibited an assortment of currencies. The respondent further submitted that Public Notice No. 26 of 2019 was issued for the purpose of providing advice and information to assist taxpayers whose receipts from trade were specifically in both local and foreign currency and was perfectly lawful. [22] In considering the application, the High Court noted that the applicant had argued its case on “several fronts”. The court then crystallized the several issues raised by the applicant and narrowed them into five key areas and addressed these specific issues only in making its determination. These were the alleged invalidity of the assessments, whether the respondent had an obligation to accept all taxes in RTGS as the sole legal tender, whether there were jurisdictional facts justifying the issuance of additional assessments, the unlawfulness of respondent’s alleged refusal to deduct local currency input tax from foreign currency output tax and, lastly, whether the respondent was entitled by law to levy penalties in foreign currency. [23] The High Court determined that, if the assessment conformed to s 2 as read with s 51(2) of the ITA, and as long as the VAT evaluation complied with s 31(5) of the Value Added Tax Act, then the assessments could not be rendered invalid on the basis of an alien term. [24] On the question whether the respondent had an obligation to accept all taxes paid by the applicant in RTGS, the court held that the RTGS currency, bond notes and coins were all legal tender because the RBZ Act did not expressly stipulate otherwise. The court further held that Statutory Instrument 142 of 2019 that introduced the sole legal tender concept did not single out the electronic currency. The court determined that there were exemptions to the introduction of the sole legal tender and in this regard made specific reference to the payment of customs duty and the payment of VAT on imports. The court further held that s 4 of Statutory Instrument 212 of 2019 specifically required that all relevant legislation be considered together especially considering that the law demanded that transactions in respect of which any other law expressly mandates or provides for payment to be made in any or a specified foreign currency should be made in the specified currency. [25] However, the court observed that the introduction of the Zimbabwe dollar as the sole legal tender was subject to certain exemptions, including the payment of customs duty and VAT on imports, with additional exemptions later introduced under Statutory Instrument 212 of 2019. It further held that s 4(e) of Statutory Instrument 212 of 2019 expressly permitted transactions to be conducted in foreign currency where any other law explicitly mandates or allows such payments. The court therefore determined that the reference to “any other law” was with respect to section 4 of the Finance Act. [26] The court further held that the jurisdictional facts that triggered the additional assessments were the applicant’s computation of all taxes in the local currency when part of its revenue was received in foreign currency and, in addition, that there were improper deductions from the taxable income. Regarding VAT, the court determined that the respondent had found that the applicant had not submitted the VAT returns in the prescribed form and had completely evaded the section that dealt with the calculation of VAT in foreign currency. [27] The High Court also held that ss 38(4) and (9) of the VAT Act did not permit the deduction of input tax paid in local currency from output tax received in foreign currency, thereby rejecting the applicant’s justification for such cross-currency deductions. [28] The court also ruled that, under s 4A of the Finance Act, the respondent was entitled to impose penalties in foreign currency, as companies and other juristic persons are required to pay certain taxes—and any related penalties—in the currency in which the tax is payable. [29] In the result, the court found that the arguments advanced by the applicant lacked merit and dismissed the application with costs. [30] The applicant was aggrieved with the determination of the High Court and noted an appeal with the Supreme Court. It raised six grounds of appeal. The Supreme Court dismissed the entire appeal. Only the first ground of appeal is pertinent to this application. As regards this ground of appeal, the court a quo found that the High Court had crystallized and summarized all the issues. The court a quo found that the summarized issues were sufficient to enable the High Court to determine the applicant’s rights as regards the payment of taxes in Zimbabwean dollars for taxable income and VAT returns which had been paid in foreign currency. Also, it found that the interpretation of tax statutes by the High Court was dispositive of the case before it. [31] The court a quo found that it could not be said that the High Court did not make a determination of the six issues raised by the respondent when it considered them and reasoned that they were not relevant to the determination of the real issue before it. On that premise, the court a quo dismissed the applicant’s first ground of appeal. The court reasoned as follows: “The primary issue is on the interpretation of the above provisions in relation to what a valid assessment is. In my view, the interpretation of the above provision entails that an assessment is a process of determining the amount of tax which is chargeable including taxable income and the credits to which the taxpayer is entitled to. In the case of Barclays Bank of Zimbabwe Limited v ZIMRA 2004(2) ZLR 151 (H) at 151 C-E, the court stated as follows: ‘It is clear from the definition section that an assessment should determine and contain (i) income and (ii) credits to which a person is entitled. This is not disputed by the respondent. In para 6 of its Heads of Argument the respondent clearly laid out the requirements of an assessment. In addition, in terms of s 51 of the Act, a notice of assessment should be issued whenever an assessment is carried out. Among other things s 51 of the Act stipulates the following: (i) Section 51 (2) – a notice of assessment and of the amount of tax payable shall be given to the tax payer. (ii)Section 51(3) – the commissioner shall give the taxpayer notice that any objection to the assessment shall be sent to the commissioner within 30 days after the date of such notice.’ On close scrutiny of annexure A, it is apparent that it states the taxable income and credits to which the applicant is entitled. Annexure A contains the sums due to the respondent in the form of taxes, penalties and interest.’ And concluded at 152D that: ‘In view of the foregoing I find that Annexure A falls within the ambit of being an assessment or notice of assessment as envisaged by the Act.’ The aforementioned authority explains what a valid assessment contains. If a notice of assessment complies with the requirements set out above, it is valid. In the present case, the Notices of Assessment contained the following: (i)The appellant’s taxable income; (ii) The credits to which the appellant is entitled to; (iii)Tax payable by the appellant; (iv)A notice that any objection to the assessment must be lodged within 30 days. It is therefore apparent that the validity of a notice of assessment does not depend on the minute details of the internal wording of the notice. A correct description of a notice and the inclusion in the notice of the key requirements of a notice specified in ss 2 and 51 (2) of the ITA validates the notice. Sections 2, 51 (2) of ITA and s 31 (5) of VATA do not concern themselves with the, details which can be found in a notice other than the specified aspects. It is therefore, my considered view that the inclusion of the words ‘gross tax’ inside the notices does not invalidate the notices of assessment since all the requirements of a valid assessment have been met. As a result, the appellants’ argument that the notices of assessment are invalid because the respondent used the term ‘gross tax’ in computing details in the notices is not correct.” [32] The Supreme Court proceeded to deal with all the issues before it and in the result dismissed the appeal with costs. The applicant is aggrieved and has, as a consequence, filed an application seeking leave for direct access challenging the constitutionality of the judgment of the Supreme Court. The Application [33] The applicant avers that, as the record confirms, it duly submitted its VAT and Income Tax Returns for the 2019-2021 tax years within the stipulated submission deadlines and settled its dues in full, using the legal tender of the country being the Zimbabwe Dollar (ZWL) and in foreign currency as required. It claims that in terms of the formula it utilized, there was no tax liability due in foreign currency for certain periods. [34] The applicant further avers that despite the fact that it had submitted its returns timeously and, consequent thereto having paid its taxes in full, the respondent, after conducting an audit of the applicant’s tax affairs, issued it with additional assessments for the tax years 2019-2021. [35] Having engaged both its external accountants, legal and tax experts and after it had conducted its own internal investigation as to whether the respondent was correct in its application of the ITA and the Finance Act, it became apparent to the applicant that the respondent had imposed tax and penalties on it based on non-existent provisions and that the respondent had also relied on an interpretation of the relevant Acts which was clearly and unambiguously inconsistent with the law. [36] The applicant avers that after numerous failed attempts to engage the respondent on the issues it had with the assessments issued by the latter, it filed an application for a declaratur before the High Court in which it sought to challenge the legality of the assessments issued by the respondent on several grounds. [37] Specifically, the applicant avers that it challenged the interpretation adopted by the respondent relying on various accepted dictates of interpretation established over time. The applicant further avers that it contended that the respondent’s interpretation of the law as well its formulae were ultra vires the governing fiscal legislative framework and accordingly unlawful. [38] In addition, the applicant contends that, in the alternative, it had gone to great lengths to raise challenges of impossibility and irrationality in complying with the requirements demanded of it by the respondent in an attempt to show that the respondent’s interpretation was not only flawed, but that it was impossible to comply with, thus rendering its stated position irrational. [39] According to the applicant, the High Court limited itself to interpreting specific provisions in the relevant Acts in question and in doing so refused to comment on six grounds raised by it, including grounds that dealt with whether the respondent’s interpretation was consistent with the law. It confirms that the determination by the High Court was on non-constitutional matters. [40] Further it is the contention by the applicant that in rendering its judgment, the High Court limited itself to dealing with a few issues, which issues alone only covered less than half of the applicant’s grievances with the respondent’s conduct. The applicant considers that all the grounds not dealt with by the High Court were material to the case before it. It avers further that it even challenged whether the formulae used by the respondent were provided for in any statutory provision. In sum, the applicant, before the High Court, averred that there was no statutory provision for the formulae adopted by the respondent. [41] The applicant contends that, to its regret, the High Court simply refused to rule on these six critical issues raised by it. It is of the view that the issues it raised were issues of law which, if any had been found in favour of the applicant, would have rendered the assessments issued by the respondent unlawful. [42] The applicant was aggrieved and appealed to the Supreme Court. In that appeal, the applicant relied on long standing precedent that states that the failure by a court to deal with material issues raised by a litigant vitiates the proceedings and ultimately the order granted by that court. It detailed the several issues the High Court had failed to deal with, which failure should have had the effect of rendering the judgment of the High Court grossly irregular and therefore liable to be vitiated. [43] However, contrary to established precedent on the right of litigants to have their justiciable issues on non-constitutional issues determined by a court of law, the applicant avers, the Supreme Court, in violation of the applicant’s constitutional rights to a fair hearing and to equal protection of the law, agreed with the High Court’s approach in truncating the issues raised by it in the appeal and only dealt with certain cherry-picked issues to the exclusion of other material issues. Thus, the Supreme Court failed to pronounce itself on these non-constitutional issues raised by applicant. [44] It is accordingly aggrieved by the judgment of the Supreme Court and now seeks to challenge it before this court on grounds allowed by law. In this respect, the applicant contends that the judgment of the Supreme Court does not deal with the issues placed before it. It accepts that the Supreme Court did not sit to deal with a constitutional matter as pronounced upon in many judgments of this court. The nature of its judgement has, however, now raised constitutional concerns in that it is in breach of applicant’s right to the protection of the law and the right to a fair hearing. [45] The applicant contends that the grounds upon which it seeks to be granted leave for direct access are the following. a) Right to equal protection of the law [46] The contention is made that the applicant’s right to equal protection of the law as guaranteed in terms of s 56(1) of the Constitution has been violated. In motivating this complaint the applicant states that it is entitled to be treated equally to all other litigants before the Supreme Court and the same laws that apply to other litigants should apply to it. [47] Therefore, the applicant contends, the decision by the Supreme Court not to impugn the High Court’s failure to deal with justiciable issues raised by a litigant is arbitrary and irrational. It asserts that the Supreme Court has a positive obligation to protect and promote the spirit, purpose and object of the law. This duty is owed to the public at large, including the applicant. b) Right to a fair hearing in the resolution of any justiciable dispute [48] The applicant avers that it approached a competent court of law with a justiciable dispute against the respondent. Its view is that the respondent had, inter alia, misinterpreted the Income Tax Act, the VAT Act as well as the Finance Act and, in the process, breached several provisions of the Constitution. [49] It contends that it went further and put in issue the practical inoperability of the position adopted by the respondent. Both the High Court and Supreme Court have however failed or refused to hear the applicant’s argument on six issues which issues, had any of them have been decided in its favour, would have resulted in the appeal by the applicant being upheld. Breach of the Constitution [50] Thus, the applicant contends, the exercise by the Supreme Court of its functions in this matter amounts to a breach by it of the Constitution which breach it has set out in its papers filed of record. The applicant goes further to contend that the validity of the exercise by the Supreme Court of its functions is a constitutional issue and that it does not matter that no constitutional question was directly engaged a quo. In addition, it contends that a judgment of the Supreme Court which is rendered in breach of the Constitution is invalid and therefore not final and definitive. This, so the applicant suggests, is what the supremacy of the Constitution entails. The applicant avers that it seeks to protect its right to judicial protection through the medium of the intended application for which it seeks leave herein. [51] It is the expressed view of the applicant that it is in the interests of justice that leave be granted for it to approach the Court because the judgment of the Supreme Court has wide ranging effects as it pronounces on issues applicable to not only the applicant but all taxpayers. According to the applicant, commercially, the judgement exposes it to a tax liability of some USD$50million in double taxation. It suggests that such a significant liability threatens its status as a going concern and should only be imposed after the applicant has been fully heard. It reiterates that it paid taxes in the legal tender in full value which the respondent collected and was made use of by the government of Zimbabwe. [52] The application is opposed. The facts of this case are largely common cause. It is not intended to repeat the same save for those issues that the respondent has placed in contention. [53] The respondent confirms that the applicant computed its income tax and VAT obligations for the years 2019 to 2021 in local currency and paid them in the same currency. The respondent conducted an investigation following receipt of the computations and payments in respect of the same. The investigation revealed that the applicant, despite receiving revenue as well as VAT in foreign currency from its trade, had failed to pay its obligation in the currency in which the revenue and VAT had been received. As a consequence, the respondent issued additional assessments against the applicant. [54] The applicant, being of the view that it was entitled to pay the tax obligations in question in the local currency, approached the High Court seeking a dectaratur that the assessments were invalid. The High Court dismissed the application. The applicant appealed to the Supreme Court again with no success. [55] The respondent has raised several preliminary objections. The first is that the application before the Court is a disguised appeal. The respondent suggests that the motive for the application is evident from a statement in the founding affidavit to the effect that the actions of the respondent have exposed the applicant to a double taxation to the tune of USD 50 million. Premised on this averment, the respondent contends that what the applicant has brought to this Court is in fact a disguised appeal. [56] The respondent contends further that the applicant is aggrieved by the substance of the judgment of the court a quo and that it should not be permitted to make use of an alleged financial burden to raise alleged constitutional violations. It points to the order being sought in the substantive application which seeks the nullification of the judgment of the court a quo and, as a consequence, remittal to the same court for adjudication before a different panel of judges as being proof of the motive behind the application. [57] In cementing its argument in this regard, the respondent contends that the real issue that was placed before the court a quo was “whether the High Court had misdirected itself by failing to consider and determine material issues raised by the applicant thereby rendering the proceedings irregular.” The respondent avers that the Supreme Court dedicated four pages of its judgment to an analysis of the High Court judgment after which it found that the latter had considered and dealt with the issues that the applicant on appeal was alleging had not been dealt with. [58] The respondent avers that the finding by the court a quo that the High Court had dealt with the issues raised before it was dispositive of the dispute herein. That being the case, the respondent contends that the application does not raise any constitutional issues for determination and is in reality a disguised appeal. The respondent prays for its dismissal with a consequent order of costs. [59] In addition, the respondent avers that the applicant is guilty of material non-disclosure. The respondent states that there are two appeals currently pending in the Special Court for Income Tax and the Fiscal Appeals Court arising from the dismissal by the Commissioner General of objections raised by the applicant to the additional assessments raised following the audit of its tax affairs. Critical to the determination of this dispute, avers the respondent, is the contention by the applicant in those matters that the assessments were invalid, this proposition being based on the premise upon which the invalidity was sought in the High Court. The respondent contends further that in those matters the applicant again raises for adjudication those issues that it complains were not determined by the High Court as well as the Supreme Court on appeal. [60] The respondent contends that, given the above, the Court should give effect to the doctrines of constitutional avoidance and subsidiarity and refuse to assume jurisdiction over this matter. According to the respondent, the appeals pending before the said specialized courts afford the applicant with alternative and adequate remedies that militate against the Court assuming jurisdiction to determine a constitutional matter, even if it exists, unnecessarily. Submissions before the Court [61] Counsel for the applicant, Mr. Mpofu, conceded that the decision of the court a quo is final, binding and unrelated to constitutional issues. However, he argued that the applicant was aggrieved by the manner in which the appeal was determined. He contended that the failure by the court a quo to recognize the omission by the High Court in addressing the six key issues placed before it by the applicant constituted a gross misdirection, rendering the entire judgment invalid. As a result, he submitted that this constituted a violation of the applicant’s rights to equal protection under the law and a fair trial. [62] The Court required of Mr. Mpofu to address the fact that both the court a quo and the High Court had the discretion to summarize and streamline the issues to assess the validity of the respondent’s assessments. Counsel responded that the six issues left undetermined by the court a quo pertained to whether the applicant was liable for specific penalties and amounts imposed by the respondent, as well as the extent of these liabilities. He argued that, if the court a quo had addressed these issues and ruled in the applicant’s favor, there was a strong likelihood that the amount payable by the applicant would have been significantly reduced. [63] Further, the Court inquired of Mr. Mpofu how the pending appeals before the Special Court for Income Tax and the Fiscal Appeals Court affected the current application. Counsel argued that in Redan Petroleum (Pvt) Ltd v ZIMRA HH 673-23, the court ruled that the matters raised therein had already been resolved in Delta Beverages (Pvt) Ltd v ZIMRA HH 557-23. He asserted that, if the applicant attempted to revive these appeals, it would be barred by estoppel and would be unable to have the issues it was litigating on reconsidered. [64] The Court also engaged the applicant's counsel on whether the six unresolved issues could be addressed by the Special Court for Income Tax Appeals and the Fiscal Appeals Court, given that the pending appeals before these courts concerned the Commissioner's determinations on the applicant's objections. The Court further observed that the court a quo and the High Court could not be faulted for not addressing the six issues, as they pertained to liabilities, formulae, and quantum determinations made by the Commissioner after the application to the High Court had already been filed. [65] In response, Mr. Mpofu argued that the applicant’s grievance with the court a quo’s decision stemmed from its failure to address the six issues presented. He contended that the application before the High Court concerned the validity of the assessments and that the High Court should have considered the six issues, even though the Commissioner’s determination had not yet been made. Counsel maintained that the most appropriate remedy was to remit the matter to the court a quo, which would then refer it back to the High Court for a ruling on the six issues. He, therefore, requested that the application be granted, asserting that it had prospects of success before a full bench. [66] Per contra, Mr. Bhebhe for the respondent argued that any agreement between the parties could not, in law, prevent the applicant from pursuing its claims in the specialized tax courts, as those matters had been held in abeyance. They were not determined and were still live disputes for adjudication. He maintained that the applicant's concerns centered on two main issues: the tax liability and its amount, as well as the penalty imposed by the Commissioner and its quantum. Mr. Bhebhe further submitted that since the Commissioner's reasons for determination were not presented before the High Court or the court a quo, these courts could not be faulted for not considering them. [67] Further to the above, Mr. Bhebhe argued that the appeals before the Special Court for Income Tax Appeals and the Fiscal Appeals Court were based on the Commissioner's reasons for disallowing the objections raised by the applicant, making those courts better positioned to address the applicant’s issues. He stated that the applicant’s concerns related to the impact on liability and the quantum of the tax, rather than the validity of the assessments, which had already been determined by the court a quo. Therefore, counsel contended that there were no grounds for overturning the decision of the court a quo. Issue for determination [68] The sole issue requiring the Court’s resolution is whether it is in the interests of justice that leave for direct access to the Court be granted. The Law [69] Applications for direct access under the Court’s Rules are subject to r 21(3), which sets out that an applicant must demonstrate the following: the grounds upon which it is in the interests of justice that direct access be granted; the nature of the relief sought; the grounds upon which such relief is sought; and whether the matter can be dealt with without the hearing of oral evidence. [70] It is now settled that applications for direct access are an extraordinary procedure granted only in deserving cases that meet the requirements prescribed by the relevant rules of the Court – see Liberal Democrats and Ors v The President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CCZ 7/18. [71] Accordingly, an applicant seeking direct access must strictly comply with the rules and establish valid grounds showing that the granting of access by the Court would serve the interests of justice. [72] The criteria defining what the interests of justice constitute are outlined in r 21(8) as follows: i The prospects of success if direct access is granted; ii Whether the applicant has any other remedy available to him; and iii Whether there are any disputes of fact in the matter. [73] In Machine v The Sheriff of Zimbabwe & Ors CCZ 8-23, Makarau JCC aptly summarized the provisions of r 21(8) at pg. 7: “The above strictures constitute very broad guidelines to the Court. These guidelines apply in general terms to all applications for direct access. In an application such as the one before the Court, where the allegation is made that a Supreme Court judgment has infringed one or more of the applicant’s fundamental rights and/or freedoms, the applicant specifically bears a double –barrelled onus in establishing that it is in the interests of justice that he or she be granted direct access. He or she must show, in the first instance, that the Supreme Court was disabled from rendering a decision on the matter that was before it. In the second instance, he or she must allege and demonstrate that the judgment infringes one or more of his or her fundamental rights and or freedoms. A consideration of these two aspects will guide the Court in establishing whether it is in the interests of justice that direct access be granted.” [74] The Court will now assess whether the applicant has demonstrated that granting direct access aligns with the interests of justice, beginning with an assessment of whether the court a quo acted in accordance with the law in rendering its decision and whether such decision violated the applicant’s rights. Analysis Whether the court a quo failed to act in accordance with the law governing its proceedings. [75] The applicant does not contest that the court a quo’s decision concerned a non-constitutional issue. Rather, it objects to the manner in which the Supreme Court exercised its discretion in the determination of the appeal it was seized with. Specifically, the applicant alleges that the court a quo failed to impugn the High Court decision premised on the contention that it had omitted to deal with the six issues raised before it by the applicant, and that this amounted to an abdication of its duty, thus rendering its decision invalid and reviewable by this Court. [76] The law allows litigants to challenge decisions of the court a quo in non-constitutional matters on the basis that the decisions were made contrary to the law governing the court’s proceedings. However, for this Court to intervene, litigants must demonstrate that the challenged decision resulted from the court a quo’s failure to comply with the procedural and substantive legal standards applicable to its proceedings. This was stated in Denhere v Denhere CCZ 9-19 at pg. 19-20 to be: “The applicant has to show that the Supreme Court, in the process of determination of the issues before it, failed to act in accordance with the law governing the proceedings to the extent that it was disabled from rendering a decision on a non-constitutional issue it was required to decide. The reason is that a decision on a non-constitutional matter cannot constitute an infringement of the right to equal protection of the law, as it is a decision on a matter within the exclusive jurisdiction of the Supreme Court. The decision is protected by s 169(1) of the Constitution, as read with s 26(1) of the Act.” See also Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018(2) ZLR 743(CC) at 755A-C. [77] In casu, the allegation by the applicant that the court a quo failed to act in accordance with the law governing its proceedings by failing to find that the High Court erred in not determining the six issues raised by the applicant cannot be upheld. Whilst it is settled that the court has to determine all the issues placed before it by the parties and that the failure to do so results in a gross irregularity that vitiates the court’s decision – see PG Industries (Zimbabwe) Ltd v Bvekerwa & Ors SC 53/16 at pg. 7-8, courts are at liberty to identify and determine issues they deem to be relevant to the resolution of the dispute between the parties. This entails that courts, within their discretion, may disregard some issues raised by the parties on the basis that the determination of the other issues would effectively extinguish the dispute between the parties. This has been stated in the case of Longman Zimbabwe (Pvt) Limited v Midzi & Ors 2008 (1) ZLR 198 (S) p 203 that: “In my view, it is not proper for a court to make a decision on only one of the issues raised and say nothing about other equally important issues raised, unless the issue so determined can put the whole matter to rest.” [78] The key consideration in this approach on the part of a court seized with a dispute for determination is that the issues that the court focuses on primarily must contribute to the effective resolution of the dispute between the parties. This was emphasized in the case of Gwaradzimba v C. J. Petron & Company (Pty) Limited 2016 (1) ZLR 28 (S) pg. 31, where the court remarked as follows: “In general, I agree with the respondent’s submission that, in a case where a number of issues are raised, it is not always incumbent upon the court to deal with each and every issue raised in argument by the parties. It is also correct that a court may well take the view that, in view of its finding on a particular issue, it may not be necessary to deal with the remaining issues raised. However this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter.” (my emphasis) [79] The first ground of appeal before the court a quo and which is at the centre of this application reads as follows: The court a quo erred at law and misdirected itself by failing to consider and determine material issues raised by the appellant, thus rendering the proceedings grossly irregular. In particular, the court a quo failed to consider and determine the following issues raised by the appellant: Whether there is a penalty for payment of taxes purportedly due in foreign currency in the local legal tender, and what that penalty is? Whether the apportionment formulae used by the respondent exists in the taxing acts, and if so in which provisions of the taxing acts? Whether the formulae used by the respondent in computing both income tax and VAT was rational, and possible to comply with? Whether there is a constitutional bar to the respondent utilizing section 4(A) 7 of the Finance Act and section 38(9) of the VAT Act to amend primary legislation? The implication of the contra-fiscum rule to uncertain tax legislation. [80] In considering the above ground, the Supreme Court found that the High Court had effectively dealt with the substance of the dispute. The court a quo said: “The appellant had approached the court a quo for a declaratory order that it was entitled to pay income tax and VAT in local currency despite it having received the same in foreign currency. Therefore, the court made a determination which was dispositive of the real issues between the parties. It cannot be said that the court, (the High Court), did not make a determination on the six issues when it clearly considered them and reasoned that they were not relevant in the determination of the real issue before it. In coming up with the five issues on which it determined the case the court a quo was aware that the applicant had objected to the respondent’s re-assessments on multiple grounds and that the case had been argued on many fronts. It then through severe summarization, truncating, crystallization and distillation decided on what was relevant and irrelevant. That in our view is a consideration and determination of the issues the appellant alleges were not considered and given reasons on. The adverse determination on the relevancy of those issues is a determination. The explanation that it severely summarized the appellant’s grounds of objection and truncated and distilled the submissions made before it on many fronts is a giving of reasons why it settled for the five issues after discarding what it considered were irrelevant issues. In other words, the court found that some of the issues raised by the appellant which it left out were irrelevant. A brief and concise explanation of why a court arrives at a decision is proof of it having considered and determined the issues. There is therefore, no merit in the preliminary issue raised by the appellant.” [81] At issue before the High Court was the alleged invalidity of the additional assessments raised by the respondent. What constitutes a valid assessment has been settled and the attempt by the applicant to raise this as an issue for determination by the High Court in the face of decided authority would be, to say the least disingenuous, an attempt to vex the court. [82] The applicant contends that in interpreting the legislation which was the subject matter of the dispute between itself and the respondent, the applicant had clearly raised several key areas where the interpretation adopted by the respondent was inconsistent with the relevant taxing Acts. From this context, it is contended, the judgment of the Supreme Court sadly amounts to an abdication by that court of its function. [83] In my view, the High Court was correct to summarize and crystallize all the issues raised by the applicant into five main issues. According to law, the High Court was empowered to exercise its discretion to summarise and truncate the several issues before it and, thereafter, determine the matter based on the five issues it identified. The law allows for this position and as such there was nothing irregular in the High Court’s approach (see Longman Zimbabwe (Pvt) Limited v Midzi & Ors supra, at p 203. [84] An in-depth analysis of the High Court’s judgment shows that whilst it formulated five key issues from all the issues raised by the applicant, its decision effectively addressed the main dispute between the parties, that is, whether the additional assessments made against the applicant were valid. [85] The judgment of the High Court determined the issues raised by the applicant which resulted in the court upholding the additional assessments. The Supreme Court upheld this finding. In doing so, the Supreme Court found that: “It is absurd to hold that the legislature intended that income earned in foreign currency should be taxed in local currency contrary to the provisions of the statutes referred above. Clearly if that was the intention of the legislature, the whole purpose of raising revenue would be defeated as tax payers would have the liberty to convert the foreign currency earned into domestic or local currency for purposes of paying tax in local currency.” [86] The above finding resolved the issue raised by the applicant which was centrally that the additional reassessment of its income tax returns and VAT returns be set aside. Once the Supreme Court found that the applicant could not calculate its taxes in local currency against foreign revenue receipts, the court essentially resolved the dispute as it found that the reassessments were valid. [87] Through the summarized issues for determination, the High Court found that the additional tax assessments were valid and necessary due to the applicant’s use of an incorrect method of calculation of its self-assessments. It also held that the applicant could not offset taxes in local currency against foreign revenue. [88] By this decision, the High Court effectively resolved the primary dispute between the parties. Accordingly, the court a quo was correct in finding that the High Court had addressed all of the applicant’s issues. There is thus no irregularity that can be imputed against the Supreme Court in the manner that it reached its decision, and the same cannot be deemed invalid. It follows therefore, that the applicant’s claim that the court a quo’s decision violated its governing legal principles is devoid of merit. I now turn to the rights allegedly violated by the respondent. [89] The applicant makes the observation that the Supreme Court has, in several cases, previously found that a court’s failure to determine material issues properly raised before a court is a gross misdirection which has the effect of vitiating proceedings. This is the standard which the Supreme Court has set and consistently adopted in a number of decided cases from this jurisdiction. The applicant suggests that similarly situated litigants in the authorities it relies on have been afforded the protection of the law when a lower court has failed to determine issues raised by the litigants. [90] However, in casu, the applicant contends that, faced with a situation where more than half of the issues it sought relief on were not determined, has been denied the protection afforded to several other litigants in identical situations. It therefore complains that by failing to apply settled precedent in the face of a judgment that neglected to deal with more than half of the applicant’s issues, the Supreme Court failed to act in accordance with the requirements of the law governing the proceedings before it. It states that the issues it raised before the High Court were not necessarily determined as erroneously held by the Supreme Court. [91] The right that is protected by s 56(1) has been construed in several authorities within this jurisdiction. It is non-discrimination provision that seeks to prevent unequal treatment between people situated in similar circumstances. The Court, in Nkomo v Minister of Local Government, Rural & Urban Development & Ors CCZ6/16 defined the protection afforded by s 56(1) as being: “The right guaranteed under s 56 (1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position. It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected. In order to found his reliance on this provision the applicant must show that by virtue of the application of a law he has been the recipient of unequal treatment or protection that is to say that certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.” [92] The applicant contends that the decision of the court a quo violated its right to equal protection of the law and the right to a fair hearing. The violation is alleged to have risen from what the applicant terms as the court a quo’s failure to impugn the High Court decision where, according to the applicant, that court had not determined all the issues raised before it. The applicant further avers that its right to a fair hearing was violated by both the High Court and the court a quo when they omitted to deal with the six issues it had raised. [93] What the Court said in Lytton, supra, cements the position of the law that a litigant may approach this Court for relief premised on the claim that a judgment of the court a quo violates his or her fundamental rights. Nevertheless, the authority stipulates what must be proved in order for a litigant to successfully launch such a challenge. At 755A-C, the Court held that: “The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant’s right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue. The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court’s failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision. Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under s 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.” [94] The Court, in Lytton, makes it clear that it is incumbent upon an applicant to demonstrate that it is the court a quo’s failure to act in accordance with the law governing its proceedings which results in its decision being arbitrary and consequently violating fundamental rights. [95] In demonstrating that the right to equal protection has been violated, a litigant is expected to show that it has not been subjected to the same protection that has been afforded to other similarly placed litigants. This was stated in Machine (supra) at pg. 11-12: “Thus, instead of the right to the protection and benefit of the law being a right to due process simpliciter, the right guaranteed by s56 (1) has been modified or discoloured, as it were, by the insertion of the word “equal” in the provision immediately preceding the right. An applicant seeking to rely on the right must not only allege and prove non-observance of due process but now bears the additional onus of alleging and ultimately showing that other persons similarly positioned are afforded the protection and benefit of the law that he or she craves.” (emphasis added) [96] In casu, the applicant has failed to sustain its claim that it was not afforded the same protection by the Supreme Court as other similarly situated litigants in having its appeal determined. A perusal of the judgment of the court a quo will tend to show that all the grounds of appeal placed before it were considered and determined. The claim that the court a quo left some issues undetermined is not borne out by the record. The applicant, as is evident from the relief it seeks in having the judgment set aside and for a consequent remittal, is unhappy with the result and has mounted a disguised appeal. [97] In my view, the above comments apply equally to the contention that it was not afforded a fair hearing as envisaged under s 69(2). The issues that the applicant was unhappy with as reflected in the first ground of appeal before the court a quo were considered and a determination arrived at. The applicant suggests that the court a quo was enjoined to consider and answer the issues raised by the applicant, and its failure to do was a violation of the applicant’s right to a fair hearing. A fair hearing requires that all material contentions bearing on the just determination of a matter be considered. The applicant suggests that it is no use allowing a litigant to access a court if the litigant’s material contentions are ignored and not determined. It maintains that the duty of the court is to hear the parties and not hear itself. This entails that a fair hearing requires that all the material contentions raised by a party be determined, particularly if a positive determination is to yield a result for a litigant. [98] The applicant complains that the Supreme Court took a trajectory that the issues had been necessarily determined and that this trajectory is erroneous both in law and fact. It is contended that the judgment of the Supreme Court is so fundamentally irregular that this Court can consider invoking its review powers so that there is a proper, full and effectual hearing. [99] The applicant is unhappy with the approach by the court a quo in its disposition of that ground. The Supreme Court affirmed a settled legal standard, namely that a court seized with a myriad of issues for determined is at large, and has the discretion to decide those issues that are dispositive of the dispute and leave aside the irrelevant matters. Just as the High Court had, the Supreme Court found that some of the issues raised by the applicant and which the High Court left out were irrelevant. It accepted that the High Court had given a brief and concise explanation of why a court arrives at a decision and confirmed that this constituted proof that the High Court had considered and determined the issues. Having thus concluded, it found no merit in the preliminary issue raised by the applicant and dismissed that particular ground. [100] The authorities I have referred to above stress that in challenging the decision of the court a quo for alleged violation of rights, litigants must show that the court a quo did not comply with the legal standards governing the proceedings or rights and obligations subject to determination. This failure must be shown to have resulted in the court giving an irrational or arbitrary decision. [101] In my view, the applicant has failed to demonstrate any differential treatment that it was subjected to by the court a quo, nor how its right to a fair trial was violated by both courts. As noted above, the finding by the court a quo that the High Court was correct in summarizing the issues raised by the applicant is permissible under the law as long as the court determines the real dispute between the parties. The decision of the court a quo was in terms of the law governing its proceedings and cannot be faulted. It is therefore only proper to find that there are no prospects of success in this matter. [102] The finding that the decision a quo was in accordance with the law marks the end of the issue. This is because in Denhere (supra) at pg. 23, para 39, the Court held that: “When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.” [103] The decision of the court a quo, being admittedly on a non-constitutional basis, is final and binding. There is no room for this Court to interfere with its decision. Therefore, it is not in the interests of justice that the applicant be granted direct access to this Court as the application has no merit. Whether the applicant has alternative remedies in the Special Court and the Fiscal Court. [104] The respondent submitted, as a preliminary point, that the applicant has pending appeals in the Special Court for Income Tax Appeals and the Fiscal Appeals Court and ought to pursue them to finality first. In response, the applicant avers that these appeals are no longer viable as, firstly, they were removed from the roll by consent of both parties to allow for the determination of the appeal filed in the court a quo. The parties agreed that they would be bound by the decision of the court a quo. Additionally, the record shows that the issues raised in these two appeals and those raised before the court a quo are the same. [105] In his submissions before the Court, Mr. Mpofu, on behalf of the applicant, stated that the applicant would be barred by estoppel from attempting to revive the two appeals, as the High Court had already stated the position set out in Delta Beverages (Pvt) Ltd v Zimra HH 557-23, in the case of Redan Petroleum (Pvt) Ltd v ZIMRA HH 673-23. [106] An appeal lies against a decision by the Commissioner disallowing an objection to an assessment. Without prejudging the attitude of the Special Court for Income Tax Appeals or the Fiscal Appeals Court, s 13 of the Fiscal Appeals Court Act [Chapter 23:05], provides that any person who is dissatisfied with a decision of a Commissioner given in terms of a tax Act may appeal to the Court against that decision. The section requires that every such appeal be noted and prosecuted within the period and in the manner prescribed by rules with the proviso that the Court may, on good cause being shown or by agreement of the parties, extend the said period. Having heard the appeal, the Court may confirm, vary or set aside the decision appealed against. [107] I am therefore not convinced by the contention that the applicant has no other remedy available to it. It is also worth noting that the issues placed before the High Court for determination were the very same issues that it had taken to the Commissioner as objections. Whether issue estoppel may successfully be raised against the applicant in the pending appeals is for those courts seized with the appeals to decide. That is not an issue for determination in the current dispute. The Court will therefore not detain itself on it. [108] What cannot be denied is that there are appeals pending against the decisions of the Commissioner disallowing objections to the additional assessments. What is also worthy of note is the fact that in the objections that the Commissioner disallowed the applicant wished to have the following issues resolved: the alleged invalid status of the additional assessments; whether there is a penalty for the failure to make payments in foreign currency and what the penalty is; whether the apportionment formulae used by Zimra exist in the taxing law regime and if so in which legislative instrument; whether the formulae used by the respondent in computing both income tax and VAT are rational and possible to comply with; whether there is a constitutional bar against the respondent utilizing s 4A(7) of the Finance Act and s 38(9) of the VAT Act to amend primary legislation; and the implications of the contra fiscum rule. [109] In addition to the above, it becomes pertinent to observe that at the time it launched the application for a declaratur before the High Court, the issue of the assessments were the subject of an administrative process under the Commissioner. The applicant had raised objections which had not yet been fully determined. The Commissioner indicated on 25 November 2022 that he had disallowed the major part of the objections and this resulted in the applicant noting an appeal to the Fiscal Appeals Court on 2 December 2022, and to the Special Court for Income Tax Appeals on 14 December 2022. Thus, by the time the High Court heard the parties on the application for a declaratur the matter was pending before these courts for the determination of the said appeals. [110] Courts must be loath to hear and decide on matters that are pending a legal process, be it administrative, quasi-judicial or judicial, before other bodies or authorities bestowed with decision making powers by law. A court that does so may compromise the proper and effective disposal of matters in a fair and just manner. In casu, the High Court should have been alive to the existence of the ongoing dispute before the Commissioner and the special tax appeal courts. These bodies were still seized with the substance of the objections raised by the applicant. Hence its assumption of jurisdiction was in all the circumstances irregular to say the least. It is also for this reason that the application must fail. See NMB Bank v Mushaya & Ors SC 164/21 and the authorities cited therein; Mamombe & Anor v Mushure & Anor CCZ 4/22 and the authorities cited therein. DISPOSITION [111] The application cannot succeed because it is not in the interests of justice for the Court to interfere with the final decision of the court a quo where no fundamental procedural irregularity or violation of rights has been demonstrated. [112] In the result, I make the following order: The application is dismissed. There shall be no order as to costs. HLATSWAYO JCC : I agree PATEL JCC : I agree Gill, Godlonton & Gerrans, applicant’s legal practitioners Kantor & Immerman, respondent’s legal practitioners