MAPILA v ZIMBABWE REVENUE AUTHORITY (333 of 2025) [2025] ZWHHC 333 (3 June 2025)

9 HH 333-25 HCH 5162/24 MAKANAKA MAPILA versus ZIMBABWE REVENUE AUTHORITY HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 13 May & 3 June 2025 Opposed Court Application T. Tembani, for the applicant T. L. Marange, for the respondent DEMBURE J: INTRODUCTION This is a court application in terms of s 4(1) of the Administrative Justice Act [Chapter 10:28] (“AJA”). The applicant further stated: “as read with s 68 of the Constitution of Zimbabwe, 2013”. The applicant approached the court seeking a review of the respondent’s administrative decision of 6 April 2024. I hasten to state that it was unnecessary for the applicant to also resort to s 68 of the Constitution. The matter is clearly resolvable on the basis of the AJA. That should be the proper approach given the legal effect of the twin concepts of constitutional avoidance and the principle of subsidiarity. It is trite that where redress can be afforded in subsidiary legislation and without pleading constitutional issues, such remedies must be exhausted before approaching the court on a constitutional premise: See Stone & Anor v Central Africa Building Society & Ors CCZ 05/24 at para 49 and Vela v Auditor General of Zimbabwe & Anor CCZ 10/24. The applicant challenged the respondent’s administrative decision on the grounds that it was grossly unreasonable, manifestly harsh, excessive and unlawful. Therefore, the remedy under s 4 of the Act would provide her with sufficient redress in the circumstances.The applicant seeks the following order: “The decision of the respondent dated 6 April 2024 be and is hereby set aside.Applicant be and is hereby ordered to pay all costs associated with the supervised re-exporting of the vehicle to the Republic of [Zambia].The respondent to pay costs of suit.” FACTUAL BACKGROUND The applicant, Makanaka Mapila, is a Zimbabwean national resident in Zambia. The respondent is the Zimbabwe Revenue Authority, an administrative body established in terms of the Revenue Authority Act [Chapter 23:11] and the revenue authority of Zimbabwe. It is common cause that the matter involves a motor vehicle, a Mercedes Benz ML350, registration number BBC 9592, owned by the applicant and registered in Zambia (“the vehicle”).On 2 December 2023, the applicant was issued with a Temporary Import Permit (“TIP”) for the vehicle, which was expiring on 31 December 2023. The vehicle was, therefore, imported into the country in December 2023 under a tourist rebate by Tawanda Chikosi under the said TIP. The applicant averred that the vehicle exited the country on 13 December 2023 through Chirundu border post and the TIP was acquitted in the respondent’s system. On 19 December 2023, the applicant entered into an agreement of sale of her motor vehicle with a Zimbabwean citizen, Cephas Takawira Muchemwa (“Mr Muchemwa”). It was her position that the sale was concluded in Zambia. The agreement provided the delivery details as “Lusaka, Zambia” and that the purchaser would pick up the vehicle on “securing approval by the ZIMRA”. The applicant pleaded that the agreement was subject to a condition precedent that it would come into effect upon the purchaser securing a disability rebate from the respondent. On 27 December 2023, the purchaser, Mr Muchemwa, applied to the respondent for a disability rebate to import the vehicle into the country duty-free.On 13 January 2024, the applicant imported the vehicle into Zimbabwe under a TIP. She stated that she was visiting Zimbabwe. It was further pleaded that whilst Mr Muchemwa and his representative were making follow-ups regarding the disability rebate, they were asked about the whereabouts of the vehicle, and they indicated that it was in Zimbabwe. The respondent ordered that the vehicle be brought to its offices, and when it was driven there, it was eventually seized. On 23 January 2024, the respondent issued a notice of seizure of the vehicle in terms of s 193 of the Customs and Excise Act [Chapter 23:02] (“C&E Act”). On the same date, the applicant made representations to the respondent’s Regional Manager for the possible release of the vehicle and explained that the vehicle was never sold in Zimbabwe and was in the country legally.On 2 February 2024, the respondent’s Regional Manager made a decision on the matter. The decision was that the motor vehicle was not properly dealt with in terms of the C&E Act and was unprocedurally imported on a TIP for visitors’ vehicles in direct contravention of s 104 of the Customs and Excise (General) Regulations, SI 154 of 2001 (“the Regulations”), thereby evading duty. It was further stated that this rendered the vehicle liable for seizure and was accordingly seized. The decision also imposed terms for the release thereof, namely, that the applicant was to pay duty amounting to US$16,000.00, a level 14 fine equivalent to US$5,000.00, interest from the date of seizure and storage charges. The applicant further sought to explain that she did not violate the customs laws. However, the respondent maintained its position that the laws had been violated and the applicant had to comply with its decision.On 18 March 2024, the applicant lodged an appeal with the Commissioner seeking a reversal of the Regional Manager’s decision. On 6 April 2024, the Commissioner rejected the appeal and upheld the decision of the Regional Manager. This is the administrative decision subject to this application in terms of s 4(1) of the AJA. The applicant averred that the said decision was manifestly harsh, excessive, unlawful, unreasonable and unfair in that: the decision by the respondent in levying duty and fine on the vehicle violates the laws of another country;no violation of the C&E Act and or s 104 of the Regulations was ever done;the respondent has since denied the rebate application by Mr Muchemwa on one hand, while demanding payment of duty on a vehicle that is in the country in compliance with all laws. It was contended that this level of unreasonableness warrants the court to set aside that decision;if the court finds that indeed there was a violation, the respondent had allowed a party to re-export the vehicle to South Africa. The applicant reiterated that it had shown that the decision was grossly unreasonable, manifestly harsh, excessive and unlawful. She prayed that the decision be set aside and the vehicle be re-exported to Zambia.The respondent opposed the application. In its opposing affidavit, the respondent raised a point in limine that the application was fatally defective for non-compliance with the mandatory provisions of rule 62(2) of the High Court Rules, 2021. This preliminary objection was, however, abandoned at the hearing. At the hearing, the respondent raised another preliminary point that the applicant’s claim had prescribed for the failure by the applicant to institute the action within three months in terms of s 193(12) of the C&E Act.On the merits, the respondent contended that the applicant is not being candid with the court as the agreement of sale of the vehicle was signed while the vehicle was in Zimbabwe under a tourist rebate. It argued that there was a misrepresentation of facts to mislead the respondent. The vehicle was sold in violation of the customs and excise laws. It further averred that a false declaration was tendered at Chirundu on 13 January 2024 to circumvent payment of duty. The purchaser was still processing for duty suspension letter for a vehicle already imported and de-registered in its country of origin, as shown by the SAPCCO clearance dated 21 December 2023. The respondent further argued that the seizure is lawful. That the applicant ought to have sought written permission to sell the motor vehicle from the Commissioner or pay customs duty as at the date of entry. It was also pleaded that s 104(4) of the Regulations had been violated. Its position was that the vehicle was deregistered in Zambia, and a SARPCCO certificate was issued for export to Zimbabwe, an indication that the vehicle was being permanently imported into Zimbabwe. The vehicle was illegally disposed of and is a subject matter of an offence. The Commissioner is empowered to seize the vehicle and to enforce provisions of the customs laws. The respondent concluded that the applicant has failed to establish that the decision was irrational, illegal or unreasonable. It was prayed that the application ought to be dismissed with costs. POINT IN LIMINE ISSUE FOR DETERMINATION The question this court has to determine from the preliminary point is whether or not the applicant’s claim has prescribed. SUBMISSIONS MADE BY THE PARTIES Mr Marange, submitted for the respondent, that the applicant’s claim has prescribed. He referred the court to p15 of the record, where there is a notice of seizure issued on 23 January 2024. It was his argument that the application was issued on 15 November 2024 outside the prescribed period. In terms of s 193(12) of the C&E Act, a party can institute an action to recover the seized article within three months of notice being given. The cause of action emanates from the seizure of the motor vehicle, which took place on 23 January 2024. The cause of action with regard to the sum total of the proceedings falls under s 193(6). What the applicant seeks is the release of the motor vehicle and must, therefore, be governed by the limitations under s 193(12) of the Act. Counsel further argued that the court has already pronounced the law on this issue in Chigoga v Zimbabwe Revenue Authority HH 663/17 and the recent judgment in Twotap Logistics (Pvt) Ltd v Zimbabwe Revenue Authority SC 3/23. Chiweshe Ja stated that the prescriptive period with regard to seizure is three months. He submitted that the case of Twotap Logistics addressed the issue. The present claim before the court has prescribed, and the application must be dismissed.Per contra, Mr Tembani, counsel for the applicant, expressed his disappointment at the manner the point in limine had been raised at the eleventh hour. He, however, did not object to the point being argued. He was prepared to argue the issue. He went on to submit that, as shown from the draft order, what is being challenged is a decision made by the respondent. The decision is made in terms of s 193(6)(a) of the C&E Act. The respondent, being an administrative authority, made the decision, and this is an administrative action capable of being challenged on any grounds. Counsel further argued that the Supreme Court in Twotap Logistics confirmed that there are several causes of action outside of challenging the seizure alone. The cause of action in this case is the setting aside of an administrative decision on the basis that it was harsh, excessive, unlawful and unreasonable. Since the applicant is not challenging the placement of her vehicle under seizure, then its prescription period is now regulated by s 196(2) of the C&E Act, which provides an eight-month period before a cause of action of this particular nature prescribes. A similar preliminary point was raised in Ncube v Zimbabwe Revenue Authority HC 2527/23 where Mhuri J stated that since the applicant was not challenging the seizure but seeking the setting aside of the conditions stated in the decision and consequent to this the release of the motor vehicle the court was not persuaded that the application had prescribed. Mr Tembani further submitted that s 193(12) does not apply. Section 196 expressly and in peremptory terms compels a litigant to serve the respondent with a sixty-day notice advising of the litigant’s intention to bring them to court. If the litigant is to approach the court within three months, as stated in s 193(12), it means the litigant will always be out of time. To avoid that scenario that mischief was then cured under s 196 by providing that any other cause of action which is not seizure would be regulated by s 196(2) of the C&E Act. He finally submitted that the preliminary point ought to be dismissed.In reply, Mr Marange argued that a reading of the draft order shows that the applicant is seeking the release of the motor vehicle. The term cause of action was defined in Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H). As of 23 January 2024, the applicant had a cause of action to resort to. The notice of seizure states what action the applicant must take to challenge the seizure. Assuming the applicant’s position is correct, then the seizure will remain extant. Section 193(12) was also dealt with in Kasosera v Zimbabwe Revenue Authority HH 595/21 at p 2. The three months the law speaks of encompass the two months for the notice to sue. The law helps the vigilant. The point must be upheld and the application dismissed with costs. THE LAW ON PRESCRIPTION The law upon which the point in limine is anchored is s 193(12) of the C&E Act. It reads as follows: “(12) Subject to section one hundred and ninety-six, the person from whom the articles have been seized or the owner thereof may institute proceedings for— the recovery of any articles which have not been released from seizure by the Commissioner in terms of paragraph (a) of subsection (6); or the payment of compensation by the Commissioner in respect of any articles which have been dealt with in terms of the proviso to subsection (6); within three months of the notice being given or published in terms of subsection (11), after which period no such proceedings may be instituted.” (my emphasis) The above section is made subject to s 196 of the Act. Section 196 states as follows: “196 Notice of action to be given to officer (1) No civil proceedings shall be instituted against the State, the Commissioner or an officer for anything done or omitted to be done by the Commissioner or an officer under this Act or any other law relating to customs and excise until sixty days after notice has been given in terms of the State Liabilities Act [Chapter 8:15]. (2) Subject to subsection (12) of section one hundred and ninety-three, any proceedings referred to in subsection (1) shall be brought within eight months after the cause thereof arose, and if the plaintiff discontinues the action or if judgment is given against him, the defendant shall receive as costs full indemnity for all expenses incurred by him in or in respect of the action and shall have such remedy for the same as any defendant has in other cases where costs are given by law.” (my emphasis) The Supreme Court in the Twotap Logistics case supra held that there is a distinction between seizure and forfeiture. The cause of action under s 193(12) is for seizure, but a person challenging forfeiture does not have to do so in terms of that provision. He or she does so in terms of s 196, which encompasses all causes of action, including forfeiture. The provisions of s 196, therefore, embrace all other civil proceedings which may be instituted on other causes of action which are not for seizure and the prescription period applicable is eight months, not the three months under s 193(12). Chiweshe Ja had this to say: “The implication in the court a quo’s reasoning is that since the provisions of s 196 of the Act are made “subject to” s 193 (12), they are subservient to or overridden by the provisions of s 193 (12). The reasoning is erroneous. The court a quo failed to observe that the provisions of s 193 (12) are also made subject to the Provisions of s 196. In other words, the two provisions are made subject to each other. In the context of the Act the phrase “subject to” must be read as “without derogation from” for to read it otherwise would lead to an absurdity. It would mean that the legislature enacted s 196 so that it would be overshadowed by s 193 (12) by rendering it redundant. That surely could not have been the intention of the legislature. The correct position is that both sections exist independently of each other for different purposes and the phrase “subject to” serves to emphasise, rather than detract from, that position. Connected to the above is the fact that the cause of action contemplated under s 193 (12) is the seizure of the appellant’s truck, trailer and its contents. Under s 196 (2) the cause of action is different and wider than just seizure of property. Section 196 (1) provides for the sixty day notice required to be given to the respondent and the officers before any civil proceedings arising from their actions or omissions under the Act are instituted. Section 196 (2) provides that for such civil proceedings (other than against seizure) the period of prescription shall run for eight months reckoned from the date that the cause of action arose. (Own brackets) As the term “civil proceedings” is all embrasive it must include proceedings against forfeiture of property as opposed to seizure of the same. In casu the cause of action is not seizure but forfeiture of property. The period of prescription is thus the eight months provided for under s 196 (2). The court a quo failed to note the distinction between seizure and forfeiture. We agree with the appellant’s averments to the following effect. Seizure and forfeiture are two distinct juristic acts… Thus after seizure forfeiture is neither automatic nor inevitable. It is the Commissioner who determines whether to forfeit or not. Forfeiture is thus a distinct and separate act from seizure. It gives rise to its own cause of action. A person challenging forfeiture does not do so in terms of s 193 (12) which deals with seizure, but in terms of s 196 which encompasses all causes of action, including forfeiture. The prescribed period in that case is eight months and not the three months relating to seizure.” (my emphasis) ANALYSIS AND DETERMINATION Before I consider the point in limine, I wish to deal with whether the respondent could have competently raised the point in limine. It is not in dispute that the point in limine in question was not raised in the papers. It was raised at the hearing. While Mr Tembani bemoaned that it was raised at the eleventh hour, he did not object to it being raised. He, in fact, was prepared to argue on the preliminary point. It is trite at law that a point of law that goes to the root of the matter can be raised at any stage of the proceedings. In Muchakata v Netherburn Mine 1996 (1) ZLR 153, Korsah Ja (as he then was) enunciated that: “It is proper to raise a point of law, which went to the root of the matter, at any time, even for the first time on appeal, if its consideration involved no unfairness to the party against whom it was directed. If the order was void ab initio, it was void at all times and for all purposes. And the question of its validity could be raised at any time.” The point had, therefore, been properly raised. Mr Tembaini did not indicate any prejudice the applicant would suffer if the point is allowed to be raised and argued. He further did not object to the court hearing arguments on the point. He confirmed that he needed no further time to prepare and argue the legal point. To that extent, no issue arises, and the court will proceed to determine the preliminary point raised by the respondent at the hearing. The question that arises in resolving the point in limine is whether the applicant’s cause of action is one founded on s 193(12) of the C&E Act, which prescribes after three months. In other words, is it a claim for the recovery of the articles seized by the Commissioner or a cause of action for seizure? The term cause of action has been defined in several cases. In Mawire v Rio Zim Ltd (Pvt) Ltd SC 13/21, the court held that; “The term “cause of action” was defined in Peebles v Dairiboard (Pvt) Ltd 1999 (1) ZLR 41 (H) at 54E – F wherein Malaba J (as he then was) stated: “A cause of action is defined by Lord Esher MR in Read v Brown (1888) 22 QB 131 as every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court.” See also Chiwawa v Mutzuris & Ors HH 7/09 What arises from the Twotap Logistics case is that s 196 extends to other causes of action in civil proceedings outside a cause of action for seizure. In casu, the applicant’s cause of action as set out in the founding affidavit is not for seizure in terms of s 193(12). It is a settled position that in application proceedings, the application stands or falls on the cause of action as set out in the founding affidavit. See Fuyana v Moyo SC 54/06. She is challenging the respondent’s administrative decision of 6 April 2024, which is an endorsement of the decision of the Regional Manager and consequently seeks the release of the vehicle. It is trite that all administrative authorities (including the respondent) are required in terms of s 3 of the AJA to act reasonably, lawfully and in a fair manner. Should they fail to do so, the remedy under s 4(1) of the AJA is available to any aggrieved party to approach this court for the appropriate relief. The applicant’s cause of action is founded on administrative law, that is, in terms of s 4(1) of the Act. The challenge is on the basis that the decision is unlawful, unreasonable and unfair. This is a distinct cause of action from one for seizure and forfeiture. While the consequence of setting aside the decision would be the release of the motor vehicle, this simply flows from the legal position that an act that is void cannot create any lawful consequences. Nothing can flow from an invalid decision or act. See Muchakata v Nertherburn Mine 1996 (2) ZLR 153 (S) at 157 B-C. Accordingly, the setting aside of the respondent’s decision renders all other processes by the respondent a nullity. They cannot stand. I, therefore, do not agree with Mr Marange that even if the decision is set aside, the vehicle remains under seizure. In my view, the cause of action in casu would be one which falls to be governed by s 196 and not s 193(12), which is solely for seizure. It means that the prescriptive period would be eight months and not the three months under s 193(12). The Twotap Logistics decision clearly establishes that it does not follow that all causes of action in all civil proceedings against the respondent should only be for seizure under s 193(12). There is nothing in case law authorities to support the respondent’s argument that the three-month prescriptive period would apply to a case pleaded as the one before me merely because the ultimate result would be the release of the vehicle. The Twotap Logistics decision settles that point that s 196 encompasses other causes of action, such as forfeiture, which are not necessarily governed by the prescriptive period under s 193(12) but by the period under s 196. The correct interpretation of s 193(12) as read with s 196 does not support an argument that merely because at the end the applicant’s vehicle is released, then the applicant’s cause of action is one under s 193(12). In any case, a cause of action is not pleaded in the draft order, but in the founding affidavit. Paragraph (2) of the draft must, therefore, be read in the context of the whole application and para (1), which is the main relief. The applicant’s case is set out and established in the founding affidavit, and the draft order also informs the court of what remedy the litigant seeks from the court. In casu, the main remedy sought is one for the setting aside of the respondent’s administrative decision. Consequently, para (2) thereof would follow the setting aside of the decision. There will automatically be no legal basis for the respondent to hold on to the vehicle once its decision is set aside. The above should be the correct interpretation of the law as further clarified in the Twotap Logistics case. Section 196(2) clearly states that “Subject to subsection (12) of section one hundred and ninety-three, any proceedings referred to in subsection (1) shall be brought within eight months after the cause thereof arose.” When interpreting statutes, the cardinal rule of interpretation is that where the language used in a statute is plain and unambiguous, the words must be given their ordinary grammatical meaning unless to do so would lead to an absurdity. See Tapedza & Ors v Zimbabwe Energy Regulatory Authority & Anor SC 30/20. From the above provision, it means that the reference to “any proceedings referred to in subsection (1)” does not necessarily limit the cause of action to one for seizure under s 193(12). It means that there can be other causes of action which would have a prescriptive period of eight months. The one in casu is such a cause of action which can also arise as pleaded. It is not one for seizure under s 193(12). It is a cause of action rooted in the AJA and is encompassed by s 196 of the Act. Thus, in Kasosera v Zimbabwe Revenue Authority supra, the court acknowledged that there is no ambiguity created by s 193(12) and s 196(2) because the three months prescription period in s 193(12) applies to seized goods whereas the eight months limit in s 196(2) applied to any other civil proceedings other than proceedings to recover seized goods. In Ncube v Zimbabwe Revenue Authority supra, a similar point in limine as the one raised by the respondent was raised. Mhuri J, when dealing with the point, said: “Indeed the 2nd paragraph in the Draft Order speaks to the release of the motor vehicle and it is on this basis that the point in limine is being raised. It reads: “(i) The decision of the respondent dated 1st February 2023 be and is hereby set aside. (ii) The applicant’s Toyota Fortuner Registration number AFN 2031 be and is hereby released to the applicant on condition that applicant pays storage costs.” The second paragraph should be read in its context, i.e. considering all the factors in issue. Applicant is not, in my view, challenging the seizure and consequently the recovery of the vehicle for her to fall under the ambit of section 193(12). She is seeking the setting aside of the conditions as stated in the appeal decision of the 1st February 2023 and consequent upon this, the release of the motor vehicle on condition of payment of storage costs.” I am not persuaded therefore, that applicant’s application is prescribed as she does not fall under the ambit of section 193(1) of the Act. This section does not apply in casu. It is section 196(1) that applies and she complied with the said section. Consequently, the point in limine is hereby dismissed.” The above reasoning applies to this case with equal force. I do not accept the respondent’s argument that s 193(12) applies to the applicant’s case. It falls under the ambit of s 196, and accordingly, it cannot be said to have prescribed within three months from 23 January 2024. The cause of action in question is one which could only prescribe after the lapse of eight months in terms of s 196(2) of the C&E Act. The point in limine cannot succeed. Accordingly, the point in limine is dismissed. CONSIDERATION OF THE MERITS The court directed the parties’ legal practitioners to also argue on the merits at the hearing. I indicated that I would only proceed to deal with the merits if the point in limine is not upheld. Since I have dismissed the preliminary point, I will accordingly proceed to determine the matter on the merits. ISSUE FOR DETERMINATION The issue for determination is whether or not the respondent’s decision was grossly unreasonable, unlawful and/or manifestly harsh or excessive. SUBMISSIONS BY THE PARTIES Mr Tembani submitted that he would abide by the papers filed of record. He submitted that the application before the court is simple. The respondent seized a motor vehicle on suspicion that the vehicle was sold while it had a valid TIP. The respondent did not specify which provision of s 104 of the Regulations had been violated. The said section has eleven subsections. Each subsection regulates different scenarios. In the case of Mhiripiri v Zimbabwe Revenue Authority HH 426/23 Chitapi J stated that there is need for the Commissioner to extrapolate in what way were the quoted sections contravened. It is a fatal irregularity for a decision maker to refer to a statute without relating it to the facts and the law. Such a decision would be fatally flawed. In the present matter, we have a scenario where the applicant is being accused of violating s 104 without being advised which particular subsection of s 104 has been violated. Such conduct is a ground for review. Counsel further argued that it is not in dispute that in early December 2023, the vehicle came to Zimbabwe and was issued with a valid TIP. In light of the existence of the vehicle in early December 2023, the respondent formed an erroneous opinion that the vehicle was still in Zimbabwe on 19 December 2023 when an agreement of sale of the vehicle was entered into. It is common cause that a TIP is issued to a tourist and upon departure from Zimbabwe the same TIP is acquitted upon exit. The respondent is the one responsible for the administration of the system whenever a vehicle is acquitted. In its opposing papers, the respondent neglected to produce evidence that the vehicle was still in Zimbabwe and not acquitted from their system. This is despite numerous advices in the applicant’s representations advising that the vehicle had left Zimbabwe prior to the entering of the contract. It was also argued that when interviews are done, they are recorded. There is no such evidence of any interview of the purchaser. The respondent was making an allegation that the vehicle was in Zimbabwe. It had the onus to show that. The respondent ought to have produced proof from their system to show that the vehicle exited the country on a particular date. The respondent is alleging that the vehicle was sold by virtue of a SARPCCO certificate that was issued. That is not proof of permanent exportation of the vehicle. The point of s 104(4) was only raised in the respondent’s heads of argument. The decisions of the respondent never raised that. One cannot be advised of a provision when already in court.On the other hand, Mr Marange also submitted that he will abide by the heads of argument filed of record. He argued that an application stands or falls on its founding affidavit. See Fuyana v Moyo SC 54/06. The applicant stands accused of having violated s 104(4) which prohibited the selling of any article exported through a tourist rebate without authority or duty. He referred the court to p 10 where there is the agreement of sale. It states that the agreement was done on 19 December 2023 between the applicant and Cephas Muchemwa, a Zimbabwean. It does not state the place where the contract was concluded. By the averment in para 9 of the opposing affidavit, the buyer confirmed that the agreement was concluded in Zimbabwe and the purchase price was paid for as cash in Zimbabwe. Counsel further argued that at p 68 is the TIP issued on 2 December 2023 with an expiry date of 31 December 2023. At the time the vehicle was sold, it was in Zimbabwe, and the vehicle was sold contrary to the provisions of s 104(4) of the Regulations. He argued that counsel for the applicant had said that it was the respondent’s duty to show that at the time the contract was concluded, the motor vehicle was in Zambia. The applicant bears the burden to show that the vehicle had been acquitted. Assuming that she had no acquittal, there are two tollgates which can print out receipts of the motor vehicle. Upon exit there is a gate pass. There was a material non-disclosure that the vehicle had been imported before 13 January. Only after the issue was raised that is when an attempt is made to answer that in the answering affidavit. It was also submitted that whether the sale is suspensive or not, it is precluded. Any sale, lease or disposal is prohibited under s 104(4). The submission that the respondent did not state the exact subsection is not referred to in the founding affidavit. In any case, the entirety of s 104 deals with tourist rebates, and it applies to the applicant. The letter at p 52 contains a fusion of the facts and the law that the applicant had contravened. There is reference to the provisions of the law. The applicant, by disposing of the vehicle to Muchemwa at a time when the vehicle was still in Zimbabwe, contravened the law. This resulted in the vehicle being seized in terms of s 193(1) and (2) of the Act. The applicant has now approached the court to set aside a decision made in terms of s 193(6), the decision is in terms of the law. It cannot be grossly unreasonable because the vehicle was sold. It cannot be excessive, as that is the law. The application is non-meritorious and must be dismissed with costs.In his reply, Mr Tembani argued that the respondent is saying the vehicle was in Zimbabwe in clear view of the agreement, which stated that delivery would be after the approval of the rebate. That shows that there was no underlying intention of violating the C&E Act. The applicant is insisting that the assertion by the respondent that tollgate receipts or a gate pass ought to have been attached is going to the extreme. The answering affidavit provided the name of the official who acquitted the vehicle on 13 December 2023. If it was a lie, the respondent ought to have produced an affidavit from the said Munyaradzi Kwembeya disputing that he acquitted the vehicle. The issue of the exact violation of s 104 is a point of law and it is capable of being raised at any stage during the proceedings. THE LAW The law is clear that an administrative authority has a legal duty to act lawfully, reasonably and in a procedurally and substantively fair manner. Thus, the provisions of the relevant s 3(1)(a) of AJA read: “3 Duty of administrative authority (1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall— (a) act lawfully, reasonably and in a fair manner; …” Accordingly, any person aggrieved by the failure by an administrative authority to act in terms of s 3 of the AJA is entitled to approach the court for the appropriate relief. See s 4(1). This court’s powers when determining an application in terms of s 4(1) are fully set out in s 4(2), and they include either confirming or setting aside the decision concerned.While the court has review powers under s 26 of the High Court [Chapter 7:06], in terms of s 27(2), the remedy of review of proceedings or decisions of administrative authorities can also be founded under s 4(1) of the AJA. Accordingly, in Gwaradzimba N.O v Gurta A.G. SC 10/15, the Supreme Court held that reviews may be done in terms of another statute, for instance, the Administrative Justice Act (“AJA”) and that is contemplated by the provisions of s 27(2) of the High Court Act. In casu, the applicant argued that the first respondent was required in terms of s 3(1) of the AJA to act reasonably, lawfully and in a fair manner and that it failed to do so. The application for review is, therefore, in terms of s 4(1). ANALYSIS AND DETERMINATION One of the grounds upon which the applicant challenged the respondent’s decision is that it was unlawful. At the hearing, Mr Tembani further amplified this ground by arguing that the respondent did not specify which provision of s 104 of the Regulations the applicant contravened. He argued that the decision is, therefore, fatally flawed. Mr Marange, on the other hand, argued that the argument was not raised in the founding affidavit and in any case, s 104 deals with tourist rebates and that reference would suffice. It is trite at law that a point of law can be raised at any time, and a party does not need to plead the law. This position was confirmed by the Supreme Court in Chinhoyi Municipality v Musonza SC 110/23 at p 7, where Mathonsi Ja had this to say: “The appellant further contended that if indeed it had sold this plot to the respondent, it would have been required to comply with the mandatory provisions of s 152 (1) and (2) of the Urban Councils Act [Chapter 29:15] (the Act). The court a quo ruled that the above section did not apply because it had not been pleaded and as such the appellant was raising it as an afterthought! Firstly, litigants are generally not required to plead the law. Secondly, the contention is not an afterthought. It is the Law! In any event, it is trite that a point of law can be raised at any stage of the proceedings.” The argument that the decision did not specify the exact provision of s 104 of the Regulations which the applicant had violated, rendering the decision fatally irregular at law, could be raised even in argument at the hearing. It was a legal point and, therefore, was competently raised. It is a legal argument that the applicant was not required by law to plead in the founding affidavit. It would still fall under the pleaded ground of review that the decision was unlawful. I will proceed to consider the argument. It is common cause that the Commissioner’s decision of 6 April 2024 upheld the Regional Manager’s decision of 2 February 2024. In the said Regional Manager’s decision, it is stated as follows: “Please be advised that your representations have been give due consideration but I cannot overlook the fact that an offence was committed in that the vehicle was not properly dealt with in terms of the Customs and Excise Act [Chapter 23:02]. The vehicle, which had already been purchased by a Zimbabwean resident, once Cephas Muchemwa was then unprocedurally imported on a temporary permit for visitor’s vehicles in direct contravention of Section 104 of the Customs and Excise (General) Regulations in Statutory Instrument 154 of 2001 thereby evading payment of duties at the time of its importation. This rendered the vehicle liable for forfeiture and hence was seized.” There is no doubt that in this decision, there is no indication of the exact provisions of the C&E Act violated by the applicant and their link to the facts of the matter. There is also no indication of any specific provision under s 104 of the Regulations, which the applicant was also found to have violated. The said s 104 has ten subsections, and the subsections create various violations relating to a rebate of duty for tourists. For example, subsections (4) and (6) specify the different violations which may also lead to seizure of the motor vehicle. They read as follows: “(4) No tourist to whom a rebate of duty has been granted in terms of this section shall sell, offer or display for sale, lease, hire, lend, pledge or in any manner whatsoever, whether gratuitously or otherwise, dispose of to any resident of Zimbabwe or any other person any goods in respect of which such rebate has been granted, without the prior written permission of the Commissioner and payment of the full duty based on a value applicable at the time of importation. (5) If any goods are dealt with or disposed of contrary to subsection (4), they shall be liable to seizure. (6) A tourist who has been granted a rebate of duty in terms of this section and who departs from Zimbabwe for any reason, shall remove such goods from Zimbabwe on his departure, unless he has obtained the prior written permission of the Commissioner to leave them in Zimbabwe. (7) Any goods which are left in Zimbabwe in contravention of subsection (6) shall be liable to seizure.” (my emphasis) The respondent, clearly, given that there are different violations under subsections (4) and (6) of s 104 of the Regulations, for example, needed to specify the exact subsection contravened by the applicant and relate it to the facts. The same goes for the alleged violations of the C&E Act. These should have been apparent from the decision itself. The reference to the specific subsection (4) of s 104 in the opposing affidavit and the heads of argument in court proceedings cannot cure the fatal irregularity. The decision had already been made. It could not be supplanted or amended before me. I, therefore, associate myself fully with the remarks by Chitapi J in Mhiripiri v Zimbabwe Revenue Authority supra, at p 4, where he held that: “Save for perhaps s 26 which the Commissioner interrogated in relation to the duty of the importer and agent to lodge the manifest on loading goods, the Commissioner did not extrapolate in what way the quoted ss 38, 174 and 188 none contravened. It is a fatal misdirection for a decision maker to find a person guilty or liable for wrong doing by referring to a provision of a statute without discussing its import and relating that law to the facts. Where the determination fails to relate the law to the facts such determination will be fatally flawed and must be set aside on review or appeal as the case may be.” (my emphasis) On the above basis, the decision, in casu, is fatally irregular and unlawful. In any case, I further agree that the decision was grossly unreasonable or irrational. What constitutes a grossly unreasonable decision was set out in Dombodzvuku & Anor v Sithole N.O. & Anor 2004 (2) ZLR (H), where at 246 Makarau J (as she then was) said: “A decision is said to be grossly unreasonable if it is completely wrong and is not merely a different way of looking at the issue. (See Tenesi v Public Service Commission 1996 (1) ZLR 196 (H)). As observed in Oskil Properties v Chairman, Rent Control Board 1985 (2) SA 234 (SEC), the onus resting upon a litigant seeking to set aside the exercise of a discretion on grounds of unreasonableness is considerable. In my view, the task is Herculean if it is an interpretation of the law by a judicial officer that is sought to be impugned as being unreasonable. An incorrect rendition of the law cannot be grossly unreasonable merely because it does not find favour with its attacker. The person attacking it must go further and show that on the facts before the court, the decision reached defies all logic and is completely wrong. A different opinion of the law, clearly showing how it was arrived at cannot be said to defy logic. It may be wrong but may not necessarily be unreasonable. (my emphasis) The approach the court must adopt was restated in Tenesi v Public Service Commission 1996 (1) ZLR 208 (H) at 210 G-H Malaba J (as he then was) referred to Mhlanga v Murands & Ors HH 136/92 where Smith J had this to say: “The High Court, in the exercise of its review powers over the determination of quasi-judicial bodies, must place itself in the position of the tribunal whose determination is being reviewed and assess the reasonableness of the determination on the basis of the evidence actually put before the tribunal.” In this case, the respondent failed to apply its mind to the facts and the evidence before it. If the finding was that the vehicle was in Zimbabwe at the time the agreement was entered into on 19 December 2023, such evidence should have been placed before the court and form part of the record for the decision. The applicant has been saying that the vehicle was sold whilst it was in Zambia. The agreement of sale itself stated as follows: “Delivery details: LUSAKA ZAMBIA Buyer will pick-up on: SECURING APPROVAL BY ZIMRA” There is no dispute that the vehicle exited Zimbabwe at some point before 31 December 2023, the expiry date for the TIP issued on 2 December 2023. This is so as the vehicle was issued with another TIP on 13 January 2024, which was still valid at the time the respondent seized the vehicle. The respondent had access to the entry records for the vehicle. It was the one which made the decision and must have considered all the available evidence to justify its decision. The evidence from its systems should have been there to show that the motor vehicle was sold in Zimbabwe or was in Zimbabwe on 19 December 2023 when it was sold. Since it was the respondent who asserted that the vehicle was still in Zimbabwe when it was sold, it had the onus to establish that. The general principle of the law is that he who makes an affirmative assertion, whether the applicant or respondent, bears the onus of proving the facts so asserted. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) at 459; Astra Paints Chemical v Chamburuka SC 27/12; Book v Davidson 1988 (1) ZLR 365 at 384 B-F. In Nyahondo v Hokonya & Ors, supra, Korsah Ja held that: “Where a person against whom a claim is made is not content with a mere denial but sets up a special defence or raises a fresh issue (when he confesses and avoids) then he is regarded in respect of that defence as being the claimant; for his defence to be upheld he bears the onus of satisfying the court that he is entitled to succeed on it.” There was no evidence to disprove the applicant’s assertions that the vehicle was in Zambia at the time it was sold. If it was sold in Zambia, there would be no violation of s 104(4) of the Regulations to talk about. In the absence of such evidence, the respondent, as the adjudicating authority, could not make its decision. In formulating its decision that the vehicle was sold in Zimbabwe on 19 December 2023 in violation of s 104(4), that is, without payment of duty or the consent of the Commissioner, while on tourist rebate, the respondent ought to have referred to the evidence establishing that. Mr Marange’s argument that it was the applicant who should have produced evidence in court, including toll gates receipts and a gate pass to show before the court that the vehicle was acquitted before 19 December or on 13 December 2023, was erroneous. The decision has already been made, and it is what the court is reviewing. The court considers the record to see whether or not the decision is one founded on the evidence which was placed before the decision-maker. The respondent failed to appreciate that it was the decision maker. There was no evidence on record that established that the motor vehicle was in Zimbabwe on 19 December 2023 and that the sale violated the provisions of the law. The respondent must also have justified its decision by considering the evidence placed before it. It failed to do so. The allegations by the respondent that the vehicle had been sold in contravention of the regulations and the C&E Act were never established. The decision was purely based on speculation or mere conjecture. A valid decision can only be properly made on evidence and not mere conjecture. Further, there was no evidence of the interviews the respondent had with the purchaser, Mr Muchemwa. The purchaser’s statement was never placed before me. It should have formed part of the evidence supporting the decision. The respondent is an institution of record. Surely, it could not merely allege that it relied on evidence from some “interviews” without any record of such interviews being available. This also includes the evidence that the purchaser paid the purchase price in Zimbabwe and the vehicle was in Zimbabwe on the date of the sale. In the absence of evidence or justification, the decision was, in my view, grossly unreasonable. This would justify the court interfering with an administrative action. Thus, in Affretair (Pvt) Ltd & Anor v M. K. Airline (Pvt) Ltd 1996 (2) ZLR 15 (S), at 21, it was stated that: “But at the other end of the scale, if the conclusion is hopelessly wrong, the courts may say that it could only have been arrived at by reference to improper considerations or by failure to refer to proper considerations. In these cases we reason backwards from the effect to the cause. We say ―the result is so bizarre that the process by which it was reached must have been unfair or lacking in transparency. So, in the result, the courts will expect from administrative bodies decisions that are — 1. Legal, in the sense that they are made within the framework of the law which empowers them to make the decision, and after the application of the appropriate criteria laid down in the statute or statutory instrument. 2. Rational, in the sense that they are not so wrong as to lead to the conclusion that they could only have been reached by a failure to apply the right criteria or by the application, whether deliberately or not, of the wrong criteria…” Administrative decisions should not be based on personal whims or preferences but on established principles. The respondent took the view that the SARPCCO certificate was proof that the vehicle had been permanently exported from Zambia and deregistered. However, that certificate per se is not proof of deregistration or permanent exportation of a motor vehicle. It is merely one of the documents required for a permanent exportation of a motor vehicle. To permanently export a motor vehicle from Zambia, one is required to obtain a Customs Clearance Certificate (“CCC”) from the Zambia Revenue Authority (“ZRA”). The Interpol Motor Vehicle Clearance (the SARPCCO certificate as the one in casu at p 48 of the record) is only one of the documents required to obtain the CCC from the ZRA. The full lists of the requirements and the procedure are also accessible from the following websites: https://zamportal.gov.zm; https://www.rtsa.org.zm (Road Transport and Safety Agency (RTSA)), and https://zra.org.zm (Zambia Revenue Authority (ZRA)). The requirements are also correctly captured in the document submitted by the applicant as part of the annexures to the founding affidavit at p 50 of the record. This document with the key requirements for permanent exportation of a motor vehicle from Zambia was placed before the respondent, including the temporary export permit at p 49 of the record and the motor vehicle registration certificate at p 47. The respondent did not challenge these documents in its opposing papers. The evidence clearly showed that the vehicle had not been permanently exported from Zambia and that it had not been deregistered in that country. Given the evidence before the respondent, it could not simply rely on the SARPCCO clearance certificate to conclude that the vehicle had been permanently exported from Zambia and deregistered. There was no documentary evidence to support that conclusion. Further, given the complete lack of evidence, the motor vehicle, which was on a valid TIP and under a tourist rebate, could not be said to have been permanently exported into the country in violation of the customs laws. The decision was utterly outrageous in its defiance of logic that any rational tribunal properly applying its mind to the facts would have arrived at it. It is so grossly unreasonable that the court has no option but to interfere with it. Consequently, the respondent invoked its powers to penalise the applicant when such statutory power had not been lawfully triggered.The motor vehicle was in Zimbabwe on a TIP issued on 13 January 2024 under the applicant’s agent. The vehicle was not with the purchaser but still under the applicant’s control or possession. It was not disputed that it had to be driven to the respondent’s office in Harare when they demanded that it be brought there, and it was then seized not from the purchaser, Mr Muchemwa, but from the applicant’s possession. The sale of the vehicle incorporated a condition that it would be delivered in Lusaka, Zambia, upon the approval of Mr Muchemwa’s application for a disability rebate. The vehicle was still in the possession of the applicant at the time it was seized. The respondent was completely wrong to conclude that Mr Muchemwa was the owner of the vehicle merely because he had paid the purchase price. The agreement of sale or payment of the purchase price alone did not mean that ownership of the vehicle had passed to the purchaser. In Gulmit Investments (Pvt) Ltd v Ranchville Enterprises (Pvt) Ltd & Ors HH 94/04, it was succinctly put that: “It is a common position at law that transfer of ownership in respect of movable property is effected by delivery of the property.” Accordingly, the fundamental principle of our common law is that ownership in corporeal movable property cannot pass by virtue of a contract of sale alone. See also Marcard Stein & Co v Port Marine Contractors (Pty) Ltd & Ors 1995 (3) SA 663, at 667B where it was held that: “It is a fundamental principle of our common law that ownership in corporeal movable property cannot pass by virtue of a contract of sale alone: there must, in addition, be at least proper delivery of the contract goods to the purchaser (see Lendalease Finance (Pty) Ltd v Corporacion De Mercadeo Agricola and Others 1976 (4) SA 164 (A), at 489H - 490A).” In this case, the respondent also did not properly consider whether the purchaser had indeed taken ownership of the vehicle. What is clear is that there was no evidence that the vehicle had been imported into the country and sold in violation of the law, in particular s 104(4) as alleged. The conclusions made were not based on any proven facts or evidence before the respondent. The decision was also completely at odds with the law. The decision, being grossly unreasonable, cannot stand. This court can interfere with any administrative decision in appropriate cases, in particular where the decision is unlawful or grossly unreasonable. The legal position was restated in ZIMSEC v Makomeka & Anor SC 10/20, where the court said: “The general principle is that the courts will not interfere with the actions or decisions of an administrative authority unless they are shown to be unlawful, grossly unreasonable or procedurally irregular or unfair. This fundamental canon of the common law, as embodied in the so-called Wednesbury principle, is now codified in s 3 (1) of the Administrative Justice Act [Chapter 10:28]. The corollary to this principle is that the courts will generally not substitute their own decisions for those of the administrative authority. As was aptly recognised by McNally JA in Affretair (Pvt) Ltd & Anor v M.K. Airline (Pvt) Ltd 1996 (2) ZLR 15 (S) at 21: “The duty of the courts is not to dismiss the authority and take over its functions, but to ensure, as far as humanly and legally possible, that it carries out its functions fairly and transparently. If we are satisfied that it has done that, we cannot interfere just because we do not approve of its conclusion.” However, this latter principle is not immutable and may be departed from in exceptional circumstances. In particular, the court may substitute its own decision for that of the administrative functionary in the following instances:  where the end result is a foregone conclusion and it would be a waste of time to remit the matter;  where further delay would prejudice the applicant;  where the extent of bias or incompetence displayed is such that it would be unfair to force the applicant to submit to the same jurisdiction;  where the court is in as good a position as the administrative body or functionary to make the appropriate decision. See the Affretair case, supra, at 24–25: Gurta AG v Gwaradzimba N.O. HH 353-13, at pp. 9–10; C.J. Petrow & Co (Pvt) Ltd v Gwaradzimba N.O. HH 175–14, at pp. 8–9.” In these circumstances, the respondent’s decision, having been unlawful, is null and void and cannot stand. Nothing can flow from it. The exercise of any authority to penalise the applicant and seize the vehicle was consequently illegal and a nullity. The purported penalties must also fall away with the decision. Lord DENNING in Macfoy v United Africa Co. 1961 [3] ALL ER 1169 at 1172, had this to say; “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” For completeness sake, I will further state that it was also grossly unreasonable and excessively harsh or unfair for the respondent to demand payment of duty on a vehicle that was in the country in compliance with all its laws, that is on a TIP which was valid while at the same time it had rejected the application for a disability rebate from the purchaser. I agree with Mr Tembani that the agreement of sale clearly showed an intention by the applicant to comply with the customs laws of Zimbabwe. The agreement incorporated a clause requiring that the vehicle be delivered or collected in Lusaka, Zambia, upon approvals by the respondent. There was no rational basis to allege and conclude that the applicant had violated the country’s laws or s 104 of the Regulations. The respondent completely failed to apply its mind to the facts and the evidence before it. The decision was, therefore, completely wrong. The application ought to succeed. DISPOSITION The applicant managed to establish that the respondent’s decision was grossly unreasonable and unlawful. Consequently, the court has no option but to interfere with the respondent’s decision. It is settled at law that where the decision maker fails to apply his or her mind to the matter, the consequent decision reached cannot be sustained. See Tenesi v Public Service Commission supra. There was completely no factual or lawful basis to hold that the applicant had violated s 104(4) of the Regulations and the C&E Act as alleged. The respondent’s decision of 6 April 2024 ought to be set aside. Consequently, the applicant is entitled to the relief sought in the draft order.As regards costs, I see no reason to depart from the general rule that costs shall follow the cause.Accordingly, I make the following order: The decision of the respondent dated 6 April 2024 be and is hereby set aside.The applicant shall pay all the costs associated with the supervised re-exportation of the motor vehicle, a Mercedes Benz ML350 registration number BBC 9592 to the Republic of Zambia.The respondent shall pay the costs of this application. Dembure J: …………………………………………… Tembani | Gomo Law Practice, applicant’s legal practitioners Legal Services Division, Zimbabwe Revenue Authority, respondent’s legal practitioners 9 HH 333-25 HCH 5162/24 9 HH 333-25 HCH 5162/24 MAKANAKA MAPILA versus ZIMBABWE REVENUE AUTHORITY HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 13 May & 3 June 2025 Opposed Court Application T. Tembani, for the applicant T. L. Marange, for the respondent DEMBURE J: INTRODUCTION This is a court application in terms of s 4(1) of the Administrative Justice Act [Chapter 10:28] (“AJA”). The applicant further stated: “as read with s 68 of the Constitution of Zimbabwe, 2013”. The applicant approached the court seeking a review of the respondent’s administrative decision of 6 April 2024. I hasten to state that it was unnecessary for the applicant to also resort to s 68 of the Constitution. The matter is clearly resolvable on the basis of the AJA. That should be the proper approach given the legal effect of the twin concepts of constitutional avoidance and the principle of subsidiarity. It is trite that where redress can be afforded in subsidiary legislation and without pleading constitutional issues, such remedies must be exhausted before approaching the court on a constitutional premise: See Stone & Anor v Central Africa Building Society & Ors CCZ 05/24 at para 49 and Vela v Auditor General of Zimbabwe & Anor CCZ 10/24. The applicant challenged the respondent’s administrative decision on the grounds that it was grossly unreasonable, manifestly harsh, excessive and unlawful. Therefore, the remedy under s 4 of the Act would provide her with sufficient redress in the circumstances. The applicant seeks the following order: “The decision of the respondent dated 6 April 2024 be and is hereby set aside. Applicant be and is hereby ordered to pay all costs associated with the supervised re-exporting of the vehicle to the Republic of [Zambia]. The respondent to pay costs of suit.” FACTUAL BACKGROUND The applicant, Makanaka Mapila, is a Zimbabwean national resident in Zambia. The respondent is the Zimbabwe Revenue Authority, an administrative body established in terms of the Revenue Authority Act [Chapter 23:11] and the revenue authority of Zimbabwe. It is common cause that the matter involves a motor vehicle, a Mercedes Benz ML350, registration number BBC 9592, owned by the applicant and registered in Zambia (“the vehicle”). On 2 December 2023, the applicant was issued with a Temporary Import Permit (“TIP”) for the vehicle, which was expiring on 31 December 2023. The vehicle was, therefore, imported into the country in December 2023 under a tourist rebate by Tawanda Chikosi under the said TIP. The applicant averred that the vehicle exited the country on 13 December 2023 through Chirundu border post and the TIP was acquitted in the respondent’s system. On 19 December 2023, the applicant entered into an agreement of sale of her motor vehicle with a Zimbabwean citizen, Cephas Takawira Muchemwa (“Mr Muchemwa”). It was her position that the sale was concluded in Zambia. The agreement provided the delivery details as “Lusaka, Zambia” and that the purchaser would pick up the vehicle on “securing approval by the ZIMRA”. The applicant pleaded that the agreement was subject to a condition precedent that it would come into effect upon the purchaser securing a disability rebate from the respondent. On 27 December 2023, the purchaser, Mr Muchemwa, applied to the respondent for a disability rebate to import the vehicle into the country duty-free. On 13 January 2024, the applicant imported the vehicle into Zimbabwe under a TIP. She stated that she was visiting Zimbabwe. It was further pleaded that whilst Mr Muchemwa and his representative were making follow-ups regarding the disability rebate, they were asked about the whereabouts of the vehicle, and they indicated that it was in Zimbabwe. The respondent ordered that the vehicle be brought to its offices, and when it was driven there, it was eventually seized. On 23 January 2024, the respondent issued a notice of seizure of the vehicle in terms of s 193 of the Customs and Excise Act [Chapter 23:02] (“C&E Act”). On the same date, the applicant made representations to the respondent’s Regional Manager for the possible release of the vehicle and explained that the vehicle was never sold in Zimbabwe and was in the country legally. On 2 February 2024, the respondent’s Regional Manager made a decision on the matter. The decision was that the motor vehicle was not properly dealt with in terms of the C&E Act and was unprocedurally imported on a TIP for visitors’ vehicles in direct contravention of s 104 of the Customs and Excise (General) Regulations, SI 154 of 2001 (“the Regulations”), thereby evading duty. It was further stated that this rendered the vehicle liable for seizure and was accordingly seized. The decision also imposed terms for the release thereof, namely, that the applicant was to pay duty amounting to US$16,000.00, a level 14 fine equivalent to US$5,000.00, interest from the date of seizure and storage charges. The applicant further sought to explain that she did not violate the customs laws. However, the respondent maintained its position that the laws had been violated and the applicant had to comply with its decision. On 18 March 2024, the applicant lodged an appeal with the Commissioner seeking a reversal of the Regional Manager’s decision. On 6 April 2024, the Commissioner rejected the appeal and upheld the decision of the Regional Manager. This is the administrative decision subject to this application in terms of s 4(1) of the AJA. The applicant averred that the said decision was manifestly harsh, excessive, unlawful, unreasonable and unfair in that: the decision by the respondent in levying duty and fine on the vehicle violates the laws of another country; no violation of the C&E Act and or s 104 of the Regulations was ever done; the respondent has since denied the rebate application by Mr Muchemwa on one hand, while demanding payment of duty on a vehicle that is in the country in compliance with all laws. It was contended that this level of unreasonableness warrants the court to set aside that decision; if the court finds that indeed there was a violation, the respondent had allowed a party to re-export the vehicle to South Africa. The applicant reiterated that it had shown that the decision was grossly unreasonable, manifestly harsh, excessive and unlawful. She prayed that the decision be set aside and the vehicle be re-exported to Zambia. The respondent opposed the application. In its opposing affidavit, the respondent raised a point in limine that the application was fatally defective for non-compliance with the mandatory provisions of rule 62(2) of the High Court Rules, 2021. This preliminary objection was, however, abandoned at the hearing. At the hearing, the respondent raised another preliminary point that the applicant’s claim had prescribed for the failure by the applicant to institute the action within three months in terms of s 193(12) of the C&E Act. On the merits, the respondent contended that the applicant is not being candid with the court as the agreement of sale of the vehicle was signed while the vehicle was in Zimbabwe under a tourist rebate. It argued that there was a misrepresentation of facts to mislead the respondent. The vehicle was sold in violation of the customs and excise laws. It further averred that a false declaration was tendered at Chirundu on 13 January 2024 to circumvent payment of duty. The purchaser was still processing for duty suspension letter for a vehicle already imported and de-registered in its country of origin, as shown by the SAPCCO clearance dated 21 December 2023. The respondent further argued that the seizure is lawful. That the applicant ought to have sought written permission to sell the motor vehicle from the Commissioner or pay customs duty as at the date of entry. It was also pleaded that s 104(4) of the Regulations had been violated. Its position was that the vehicle was deregistered in Zambia, and a SARPCCO certificate was issued for export to Zimbabwe, an indication that the vehicle was being permanently imported into Zimbabwe. The vehicle was illegally disposed of and is a subject matter of an offence. The Commissioner is empowered to seize the vehicle and to enforce provisions of the customs laws. The respondent concluded that the applicant has failed to establish that the decision was irrational, illegal or unreasonable. It was prayed that the application ought to be dismissed with costs. POINT IN LIMINE ISSUE FOR DETERMINATION The question this court has to determine from the preliminary point is whether or not the applicant’s claim has prescribed. SUBMISSIONS MADE BY THE PARTIES Mr Marange, submitted for the respondent, that the applicant’s claim has prescribed. He referred the court to p15 of the record, where there is a notice of seizure issued on 23 January 2024. It was his argument that the application was issued on 15 November 2024 outside the prescribed period. In terms of s 193(12) of the C&E Act, a party can institute an action to recover the seized article within three months of notice being given. The cause of action emanates from the seizure of the motor vehicle, which took place on 23 January 2024. The cause of action with regard to the sum total of the proceedings falls under s 193(6). What the applicant seeks is the release of the motor vehicle and must, therefore, be governed by the limitations under s 193(12) of the Act. Counsel further argued that the court has already pronounced the law on this issue in Chigoga v Zimbabwe Revenue Authority HH 663/17 and the recent judgment in Twotap Logistics (Pvt) Ltd v Zimbabwe Revenue Authority SC 3/23. Chiweshe Ja stated that the prescriptive period with regard to seizure is three months. He submitted that the case of Twotap Logistics addressed the issue. The present claim before the court has prescribed, and the application must be dismissed. Per contra, Mr Tembani, counsel for the applicant, expressed his disappointment at the manner the point in limine had been raised at the eleventh hour. He, however, did not object to the point being argued. He was prepared to argue the issue. He went on to submit that, as shown from the draft order, what is being challenged is a decision made by the respondent. The decision is made in terms of s 193(6)(a) of the C&E Act. The respondent, being an administrative authority, made the decision, and this is an administrative action capable of being challenged on any grounds. Counsel further argued that the Supreme Court in Twotap Logistics confirmed that there are several causes of action outside of challenging the seizure alone. The cause of action in this case is the setting aside of an administrative decision on the basis that it was harsh, excessive, unlawful and unreasonable. Since the applicant is not challenging the placement of her vehicle under seizure, then its prescription period is now regulated by s 196(2) of the C&E Act, which provides an eight-month period before a cause of action of this particular nature prescribes. A similar preliminary point was raised in Ncube v Zimbabwe Revenue Authority HC 2527/23 where Mhuri J stated that since the applicant was not challenging the seizure but seeking the setting aside of the conditions stated in the decision and consequent to this the release of the motor vehicle the court was not persuaded that the application had prescribed. Mr Tembani further submitted that s 193(12) does not apply. Section 196 expressly and in peremptory terms compels a litigant to serve the respondent with a sixty-day notice advising of the litigant’s intention to bring them to court. If the litigant is to approach the court within three months, as stated in s 193(12), it means the litigant will always be out of time. To avoid that scenario that mischief was then cured under s 196 by providing that any other cause of action which is not seizure would be regulated by s 196(2) of the C&E Act. He finally submitted that the preliminary point ought to be dismissed. In reply, Mr Marange argued that a reading of the draft order shows that the applicant is seeking the release of the motor vehicle. The term cause of action was defined in Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H). As of 23 January 2024, the applicant had a cause of action to resort to. The notice of seizure states what action the applicant must take to challenge the seizure. Assuming the applicant’s position is correct, then the seizure will remain extant. Section 193(12) was also dealt with in Kasosera v Zimbabwe Revenue Authority HH 595/21 at p 2. The three months the law speaks of encompass the two months for the notice to sue. The law helps the vigilant. The point must be upheld and the application dismissed with costs. THE LAW ON PRESCRIPTION The law upon which the point in limine is anchored is s 193(12) of the C&E Act. It reads as follows: “(12) Subject to section one hundred and ninety-six, the person from whom the articles have been seized or the owner thereof may institute proceedings for— the recovery of any articles which have not been released from seizure by the Commissioner in terms of paragraph (a) of subsection (6); or the payment of compensation by the Commissioner in respect of any articles which have been dealt with in terms of the proviso to subsection (6); within three months of the notice being given or published in terms of subsection (11), after which period no such proceedings may be instituted.” (my emphasis) The above section is made subject to s 196 of the Act. Section 196 states as follows: “196 Notice of action to be given to officer (1) No civil proceedings shall be instituted against the State, the Commissioner or an officer for anything done or omitted to be done by the Commissioner or an officer under this Act or any other law relating to customs and excise until sixty days after notice has been given in terms of the State Liabilities Act [Chapter 8:15]. (2) Subject to subsection (12) of section one hundred and ninety-three, any proceedings referred to in subsection (1) shall be brought within eight months after the cause thereof arose, and if the plaintiff discontinues the action or if judgment is given against him, the defendant shall receive as costs full indemnity for all expenses incurred by him in or in respect of the action and shall have such remedy for the same as any defendant has in other cases where costs are given by law.” (my emphasis) The Supreme Court in the Twotap Logistics case supra held that there is a distinction between seizure and forfeiture. The cause of action under s 193(12) is for seizure, but a person challenging forfeiture does not have to do so in terms of that provision. He or she does so in terms of s 196, which encompasses all causes of action, including forfeiture. The provisions of s 196, therefore, embrace all other civil proceedings which may be instituted on other causes of action which are not for seizure and the prescription period applicable is eight months, not the three months under s 193(12). Chiweshe Ja had this to say: “The implication in the court a quo’s reasoning is that since the provisions of s 196 of the Act are made “subject to” s 193 (12), they are subservient to or overridden by the provisions of s 193 (12). The reasoning is erroneous. The court a quo failed to observe that the provisions of s 193 (12) are also made subject to the Provisions of s 196. In other words, the two provisions are made subject to each other. In the context of the Act the phrase “subject to” must be read as “without derogation from” for to read it otherwise would lead to an absurdity. It would mean that the legislature enacted s 196 so that it would be overshadowed by s 193 (12) by rendering it redundant. That surely could not have been the intention of the legislature. The correct position is that both sections exist independently of each other for different purposes and the phrase “subject to” serves to emphasise, rather than detract from, that position. Connected to the above is the fact that the cause of action contemplated under s 193 (12) is the seizure of the appellant’s truck, trailer and its contents. Under s 196 (2) the cause of action is different and wider than just seizure of property. Section 196 (1) provides for the sixty day notice required to be given to the respondent and the officers before any civil proceedings arising from their actions or omissions under the Act are instituted. Section 196 (2) provides that for such civil proceedings (other than against seizure) the period of prescription shall run for eight months reckoned from the date that the cause of action arose. (Own brackets) As the term “civil proceedings” is all embrasive it must include proceedings against forfeiture of property as opposed to seizure of the same. In casu the cause of action is not seizure but forfeiture of property. The period of prescription is thus the eight months provided for under s 196 (2). The court a quo failed to note the distinction between seizure and forfeiture. We agree with the appellant’s averments to the following effect. Seizure and forfeiture are two distinct juristic acts… Thus after seizure forfeiture is neither automatic nor inevitable. It is the Commissioner who determines whether to forfeit or not. Forfeiture is thus a distinct and separate act from seizure. It gives rise to its own cause of action. A person challenging forfeiture does not do so in terms of s 193 (12) which deals with seizure, but in terms of s 196 which encompasses all causes of action, including forfeiture. The prescribed period in that case is eight months and not the three months relating to seizure.” (my emphasis) ANALYSIS AND DETERMINATION Before I consider the point in limine, I wish to deal with whether the respondent could have competently raised the point in limine. It is not in dispute that the point in limine in question was not raised in the papers. It was raised at the hearing. While Mr Tembani bemoaned that it was raised at the eleventh hour, he did not object to it being raised. He, in fact, was prepared to argue on the preliminary point. It is trite at law that a point of law that goes to the root of the matter can be raised at any stage of the proceedings. In Muchakata v Netherburn Mine 1996 (1) ZLR 153, Korsah Ja (as he then was) enunciated that: “It is proper to raise a point of law, which went to the root of the matter, at any time, even for the first time on appeal, if its consideration involved no unfairness to the party against whom it was directed. If the order was void ab initio, it was void at all times and for all purposes. And the question of its validity could be raised at any time.” The point had, therefore, been properly raised. Mr Tembaini did not indicate any prejudice the applicant would suffer if the point is allowed to be raised and argued. He further did not object to the court hearing arguments on the point. He confirmed that he needed no further time to prepare and argue the legal point. To that extent, no issue arises, and the court will proceed to determine the preliminary point raised by the respondent at the hearing. The question that arises in resolving the point in limine is whether the applicant’s cause of action is one founded on s 193(12) of the C&E Act, which prescribes after three months. In other words, is it a claim for the recovery of the articles seized by the Commissioner or a cause of action for seizure? The term cause of action has been defined in several cases. In Mawire v Rio Zim Ltd (Pvt) Ltd SC 13/21, the court held that; “The term “cause of action” was defined in Peebles v Dairiboard (Pvt) Ltd 1999 (1) ZLR 41 (H) at 54E – F wherein Malaba J (as he then was) stated: “A cause of action is defined by Lord Esher MR in Read v Brown (1888) 22 QB 131 as every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court.” See also Chiwawa v Mutzuris & Ors HH 7/09 What arises from the Twotap Logistics case is that s 196 extends to other causes of action in civil proceedings outside a cause of action for seizure. In casu, the applicant’s cause of action as set out in the founding affidavit is not for seizure in terms of s 193(12). It is a settled position that in application proceedings, the application stands or falls on the cause of action as set out in the founding affidavit. See Fuyana v Moyo SC 54/06. She is challenging the respondent’s administrative decision of 6 April 2024, which is an endorsement of the decision of the Regional Manager and consequently seeks the release of the vehicle. It is trite that all administrative authorities (including the respondent) are required in terms of s 3 of the AJA to act reasonably, lawfully and in a fair manner. Should they fail to do so, the remedy under s 4(1) of the AJA is available to any aggrieved party to approach this court for the appropriate relief. The applicant’s cause of action is founded on administrative law, that is, in terms of s 4(1) of the Act. The challenge is on the basis that the decision is unlawful, unreasonable and unfair. This is a distinct cause of action from one for seizure and forfeiture. While the consequence of setting aside the decision would be the release of the motor vehicle, this simply flows from the legal position that an act that is void cannot create any lawful consequences. Nothing can flow from an invalid decision or act. See Muchakata v Nertherburn Mine 1996 (2) ZLR 153 (S) at 157 B-C. Accordingly, the setting aside of the respondent’s decision renders all other processes by the respondent a nullity. They cannot stand. I, therefore, do not agree with Mr Marange that even if the decision is set aside, the vehicle remains under seizure. In my view, the cause of action in casu would be one which falls to be governed by s 196 and not s 193(12), which is solely for seizure. It means that the prescriptive period would be eight months and not the three months under s 193(12). The Twotap Logistics decision clearly establishes that it does not follow that all causes of action in all civil proceedings against the respondent should only be for seizure under s 193(12). There is nothing in case law authorities to support the respondent’s argument that the three-month prescriptive period would apply to a case pleaded as the one before me merely because the ultimate result would be the release of the vehicle. The Twotap Logistics decision settles that point that s 196 encompasses other causes of action, such as forfeiture, which are not necessarily governed by the prescriptive period under s 193(12) but by the period under s 196. The correct interpretation of s 193(12) as read with s 196 does not support an argument that merely because at the end the applicant’s vehicle is released, then the applicant’s cause of action is one under s 193(12). In any case, a cause of action is not pleaded in the draft order, but in the founding affidavit. Paragraph (2) of the draft must, therefore, be read in the context of the whole application and para (1), which is the main relief. The applicant’s case is set out and established in the founding affidavit, and the draft order also informs the court of what remedy the litigant seeks from the court. In casu, the main remedy sought is one for the setting aside of the respondent’s administrative decision. Consequently, para (2) thereof would follow the setting aside of the decision. There will automatically be no legal basis for the respondent to hold on to the vehicle once its decision is set aside. The above should be the correct interpretation of the law as further clarified in the Twotap Logistics case. Section 196(2) clearly states that “Subject to subsection (12) of section one hundred and ninety-three, any proceedings referred to in subsection (1) shall be brought within eight months after the cause thereof arose.” When interpreting statutes, the cardinal rule of interpretation is that where the language used in a statute is plain and unambiguous, the words must be given their ordinary grammatical meaning unless to do so would lead to an absurdity. See Tapedza & Ors v Zimbabwe Energy Regulatory Authority & Anor SC 30/20. From the above provision, it means that the reference to “any proceedings referred to in subsection (1)” does not necessarily limit the cause of action to one for seizure under s 193(12). It means that there can be other causes of action which would have a prescriptive period of eight months. The one in casu is such a cause of action which can also arise as pleaded. It is not one for seizure under s 193(12). It is a cause of action rooted in the AJA and is encompassed by s 196 of the Act. Thus, in Kasosera v Zimbabwe Revenue Authority supra, the court acknowledged that there is no ambiguity created by s 193(12) and s 196(2) because the three months prescription period in s 193(12) applies to seized goods whereas the eight months limit in s 196(2) applied to any other civil proceedings other than proceedings to recover seized goods. In Ncube v Zimbabwe Revenue Authority supra, a similar point in limine as the one raised by the respondent was raised. Mhuri J, when dealing with the point, said: “Indeed the 2nd paragraph in the Draft Order speaks to the release of the motor vehicle and it is on this basis that the point in limine is being raised. It reads: “(i) The decision of the respondent dated 1st February 2023 be and is hereby set aside. (ii) The applicant’s Toyota Fortuner Registration number AFN 2031 be and is hereby released to the applicant on condition that applicant pays storage costs.” The second paragraph should be read in its context, i.e. considering all the factors in issue. Applicant is not, in my view, challenging the seizure and consequently the recovery of the vehicle for her to fall under the ambit of section 193(12). She is seeking the setting aside of the conditions as stated in the appeal decision of the 1st February 2023 and consequent upon this, the release of the motor vehicle on condition of payment of storage costs.” I am not persuaded therefore, that applicant’s application is prescribed as she does not fall under the ambit of section 193(1) of the Act. This section does not apply in casu. It is section 196(1) that applies and she complied with the said section. Consequently, the point in limine is hereby dismissed.” The above reasoning applies to this case with equal force. I do not accept the respondent’s argument that s 193(12) applies to the applicant’s case. It falls under the ambit of s 196, and accordingly, it cannot be said to have prescribed within three months from 23 January 2024. The cause of action in question is one which could only prescribe after the lapse of eight months in terms of s 196(2) of the C&E Act. The point in limine cannot succeed. Accordingly, the point in limine is dismissed. CONSIDERATION OF THE MERITS The court directed the parties’ legal practitioners to also argue on the merits at the hearing. I indicated that I would only proceed to deal with the merits if the point in limine is not upheld. Since I have dismissed the preliminary point, I will accordingly proceed to determine the matter on the merits. ISSUE FOR DETERMINATION The issue for determination is whether or not the respondent’s decision was grossly unreasonable, unlawful and/or manifestly harsh or excessive. SUBMISSIONS BY THE PARTIES Mr Tembani submitted that he would abide by the papers filed of record. He submitted that the application before the court is simple. The respondent seized a motor vehicle on suspicion that the vehicle was sold while it had a valid TIP. The respondent did not specify which provision of s 104 of the Regulations had been violated. The said section has eleven subsections. Each subsection regulates different scenarios. In the case of Mhiripiri v Zimbabwe Revenue Authority HH 426/23 Chitapi J stated that there is need for the Commissioner to extrapolate in what way were the quoted sections contravened. It is a fatal irregularity for a decision maker to refer to a statute without relating it to the facts and the law. Such a decision would be fatally flawed. In the present matter, we have a scenario where the applicant is being accused of violating s 104 without being advised which particular subsection of s 104 has been violated. Such conduct is a ground for review. Counsel further argued that it is not in dispute that in early December 2023, the vehicle came to Zimbabwe and was issued with a valid TIP. In light of the existence of the vehicle in early December 2023, the respondent formed an erroneous opinion that the vehicle was still in Zimbabwe on 19 December 2023 when an agreement of sale of the vehicle was entered into. It is common cause that a TIP is issued to a tourist and upon departure from Zimbabwe the same TIP is acquitted upon exit. The respondent is the one responsible for the administration of the system whenever a vehicle is acquitted. In its opposing papers, the respondent neglected to produce evidence that the vehicle was still in Zimbabwe and not acquitted from their system. This is despite numerous advices in the applicant’s representations advising that the vehicle had left Zimbabwe prior to the entering of the contract. It was also argued that when interviews are done, they are recorded. There is no such evidence of any interview of the purchaser. The respondent was making an allegation that the vehicle was in Zimbabwe. It had the onus to show that. The respondent ought to have produced proof from their system to show that the vehicle exited the country on a particular date. The respondent is alleging that the vehicle was sold by virtue of a SARPCCO certificate that was issued. That is not proof of permanent exportation of the vehicle. The point of s 104(4) was only raised in the respondent’s heads of argument. The decisions of the respondent never raised that. One cannot be advised of a provision when already in court. On the other hand, Mr Marange also submitted that he will abide by the heads of argument filed of record. He argued that an application stands or falls on its founding affidavit. See Fuyana v Moyo SC 54/06. The applicant stands accused of having violated s 104(4) which prohibited the selling of any article exported through a tourist rebate without authority or duty. He referred the court to p 10 where there is the agreement of sale. It states that the agreement was done on 19 December 2023 between the applicant and Cephas Muchemwa, a Zimbabwean. It does not state the place where the contract was concluded. By the averment in para 9 of the opposing affidavit, the buyer confirmed that the agreement was concluded in Zimbabwe and the purchase price was paid for as cash in Zimbabwe. Counsel further argued that at p 68 is the TIP issued on 2 December 2023 with an expiry date of 31 December 2023. At the time the vehicle was sold, it was in Zimbabwe, and the vehicle was sold contrary to the provisions of s 104(4) of the Regulations. He argued that counsel for the applicant had said that it was the respondent’s duty to show that at the time the contract was concluded, the motor vehicle was in Zambia. The applicant bears the burden to show that the vehicle had been acquitted. Assuming that she had no acquittal, there are two tollgates which can print out receipts of the motor vehicle. Upon exit there is a gate pass. There was a material non-disclosure that the vehicle had been imported before 13 January. Only after the issue was raised that is when an attempt is made to answer that in the answering affidavit. It was also submitted that whether the sale is suspensive or not, it is precluded. Any sale, lease or disposal is prohibited under s 104(4). The submission that the respondent did not state the exact subsection is not referred to in the founding affidavit. In any case, the entirety of s 104 deals with tourist rebates, and it applies to the applicant. The letter at p 52 contains a fusion of the facts and the law that the applicant had contravened. There is reference to the provisions of the law. The applicant, by disposing of the vehicle to Muchemwa at a time when the vehicle was still in Zimbabwe, contravened the law. This resulted in the vehicle being seized in terms of s 193(1) and (2) of the Act. The applicant has now approached the court to set aside a decision made in terms of s 193(6), the decision is in terms of the law. It cannot be grossly unreasonable because the vehicle was sold. It cannot be excessive, as that is the law. The application is non-meritorious and must be dismissed with costs. In his reply, Mr Tembani argued that the respondent is saying the vehicle was in Zimbabwe in clear view of the agreement, which stated that delivery would be after the approval of the rebate. That shows that there was no underlying intention of violating the C&E Act. The applicant is insisting that the assertion by the respondent that tollgate receipts or a gate pass ought to have been attached is going to the extreme. The answering affidavit provided the name of the official who acquitted the vehicle on 13 December 2023. If it was a lie, the respondent ought to have produced an affidavit from the said Munyaradzi Kwembeya disputing that he acquitted the vehicle. The issue of the exact violation of s 104 is a point of law and it is capable of being raised at any stage during the proceedings. THE LAW The law is clear that an administrative authority has a legal duty to act lawfully, reasonably and in a procedurally and substantively fair manner. Thus, the provisions of the relevant s 3(1)(a) of AJA read: “3 Duty of administrative authority (1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall— (a) act lawfully, reasonably and in a fair manner; …” Accordingly, any person aggrieved by the failure by an administrative authority to act in terms of s 3 of the AJA is entitled to approach the court for the appropriate relief. See s 4(1). This court’s powers when determining an application in terms of s 4(1) are fully set out in s 4(2), and they include either confirming or setting aside the decision concerned. While the court has review powers under s 26 of the High Court [Chapter 7:06], in terms of s 27(2), the remedy of review of proceedings or decisions of administrative authorities can also be founded under s 4(1) of the AJA. Accordingly, in Gwaradzimba N.O v Gurta A.G. SC 10/15, the Supreme Court held that reviews may be done in terms of another statute, for instance, the Administrative Justice Act (“AJA”) and that is contemplated by the provisions of s 27(2) of the High Court Act. In casu, the applicant argued that the first respondent was required in terms of s 3(1) of the AJA to act reasonably, lawfully and in a fair manner and that it failed to do so. The application for review is, therefore, in terms of s 4(1). ANALYSIS AND DETERMINATION One of the grounds upon which the applicant challenged the respondent’s decision is that it was unlawful. At the hearing, Mr Tembani further amplified this ground by arguing that the respondent did not specify which provision of s 104 of the Regulations the applicant contravened. He argued that the decision is, therefore, fatally flawed. Mr Marange, on the other hand, argued that the argument was not raised in the founding affidavit and in any case, s 104 deals with tourist rebates and that reference would suffice. It is trite at law that a point of law can be raised at any time, and a party does not need to plead the law. This position was confirmed by the Supreme Court in Chinhoyi Municipality v Musonza SC 110/23 at p 7, where Mathonsi Ja had this to say: “The appellant further contended that if indeed it had sold this plot to the respondent, it would have been required to comply with the mandatory provisions of s 152 (1) and (2) of the Urban Councils Act [Chapter 29:15] (the Act). The court a quo ruled that the above section did not apply because it had not been pleaded and as such the appellant was raising it as an afterthought! Firstly, litigants are generally not required to plead the law. Secondly, the contention is not an afterthought. It is the Law! In any event, it is trite that a point of law can be raised at any stage of the proceedings.” The argument that the decision did not specify the exact provision of s 104 of the Regulations which the applicant had violated, rendering the decision fatally irregular at law, could be raised even in argument at the hearing. It was a legal point and, therefore, was competently raised. It is a legal argument that the applicant was not required by law to plead in the founding affidavit. It would still fall under the pleaded ground of review that the decision was unlawful. I will proceed to consider the argument. It is common cause that the Commissioner’s decision of 6 April 2024 upheld the Regional Manager’s decision of 2 February 2024. In the said Regional Manager’s decision, it is stated as follows: “Please be advised that your representations have been give due consideration but I cannot overlook the fact that an offence was committed in that the vehicle was not properly dealt with in terms of the Customs and Excise Act [Chapter 23:02]. The vehicle, which had already been purchased by a Zimbabwean resident, once Cephas Muchemwa was then unprocedurally imported on a temporary permit for visitor’s vehicles in direct contravention of Section 104 of the Customs and Excise (General) Regulations in Statutory Instrument 154 of 2001 thereby evading payment of duties at the time of its importation. This rendered the vehicle liable for forfeiture and hence was seized.” There is no doubt that in this decision, there is no indication of the exact provisions of the C&E Act violated by the applicant and their link to the facts of the matter. There is also no indication of any specific provision under s 104 of the Regulations, which the applicant was also found to have violated. The said s 104 has ten subsections, and the subsections create various violations relating to a rebate of duty for tourists. For example, subsections (4) and (6) specify the different violations which may also lead to seizure of the motor vehicle. They read as follows: “(4) No tourist to whom a rebate of duty has been granted in terms of this section shall sell, offer or display for sale, lease, hire, lend, pledge or in any manner whatsoever, whether gratuitously or otherwise, dispose of to any resident of Zimbabwe or any other person any goods in respect of which such rebate has been granted, without the prior written permission of the Commissioner and payment of the full duty based on a value applicable at the time of importation. (5) If any goods are dealt with or disposed of contrary to subsection (4), they shall be liable to seizure. (6) A tourist who has been granted a rebate of duty in terms of this section and who departs from Zimbabwe for any reason, shall remove such goods from Zimbabwe on his departure, unless he has obtained the prior written permission of the Commissioner to leave them in Zimbabwe. (7) Any goods which are left in Zimbabwe in contravention of subsection (6) shall be liable to seizure.” (my emphasis) The respondent, clearly, given that there are different violations under subsections (4) and (6) of s 104 of the Regulations, for example, needed to specify the exact subsection contravened by the applicant and relate it to the facts. The same goes for the alleged violations of the C&E Act. These should have been apparent from the decision itself. The reference to the specific subsection (4) of s 104 in the opposing affidavit and the heads of argument in court proceedings cannot cure the fatal irregularity. The decision had already been made. It could not be supplanted or amended before me. I, therefore, associate myself fully with the remarks by Chitapi J in Mhiripiri v Zimbabwe Revenue Authority supra, at p 4, where he held that: “Save for perhaps s 26 which the Commissioner interrogated in relation to the duty of the importer and agent to lodge the manifest on loading goods, the Commissioner did not extrapolate in what way the quoted ss 38, 174 and 188 none contravened. It is a fatal misdirection for a decision maker to find a person guilty or liable for wrong doing by referring to a provision of a statute without discussing its import and relating that law to the facts. Where the determination fails to relate the law to the facts such determination will be fatally flawed and must be set aside on review or appeal as the case may be.” (my emphasis) On the above basis, the decision, in casu, is fatally irregular and unlawful. In any case, I further agree that the decision was grossly unreasonable or irrational. What constitutes a grossly unreasonable decision was set out in Dombodzvuku & Anor v Sithole N.O. & Anor 2004 (2) ZLR (H), where at 246 Makarau J (as she then was) said: “A decision is said to be grossly unreasonable if it is completely wrong and is not merely a different way of looking at the issue. (See Tenesi v Public Service Commission 1996 (1) ZLR 196 (H)). As observed in Oskil Properties v Chairman, Rent Control Board 1985 (2) SA 234 (SEC), the onus resting upon a litigant seeking to set aside the exercise of a discretion on grounds of unreasonableness is considerable. In my view, the task is Herculean if it is an interpretation of the law by a judicial officer that is sought to be impugned as being unreasonable. An incorrect rendition of the law cannot be grossly unreasonable merely because it does not find favour with its attacker. The person attacking it must go further and show that on the facts before the court, the decision reached defies all logic and is completely wrong. A different opinion of the law, clearly showing how it was arrived at cannot be said to defy logic. It may be wrong but may not necessarily be unreasonable. (my emphasis) The approach the court must adopt was restated in Tenesi v Public Service Commission 1996 (1) ZLR 208 (H) at 210 G-H Malaba J (as he then was) referred to Mhlanga v Murands & Ors HH 136/92 where Smith J had this to say: “The High Court, in the exercise of its review powers over the determination of quasi-judicial bodies, must place itself in the position of the tribunal whose determination is being reviewed and assess the reasonableness of the determination on the basis of the evidence actually put before the tribunal.” In this case, the respondent failed to apply its mind to the facts and the evidence before it. If the finding was that the vehicle was in Zimbabwe at the time the agreement was entered into on 19 December 2023, such evidence should have been placed before the court and form part of the record for the decision. The applicant has been saying that the vehicle was sold whilst it was in Zambia. The agreement of sale itself stated as follows: “Delivery details: LUSAKA ZAMBIA Buyer will pick-up on: SECURING APPROVAL BY ZIMRA” There is no dispute that the vehicle exited Zimbabwe at some point before 31 December 2023, the expiry date for the TIP issued on 2 December 2023. This is so as the vehicle was issued with another TIP on 13 January 2024, which was still valid at the time the respondent seized the vehicle. The respondent had access to the entry records for the vehicle. It was the one which made the decision and must have considered all the available evidence to justify its decision. The evidence from its systems should have been there to show that the motor vehicle was sold in Zimbabwe or was in Zimbabwe on 19 December 2023 when it was sold. Since it was the respondent who asserted that the vehicle was still in Zimbabwe when it was sold, it had the onus to establish that. The general principle of the law is that he who makes an affirmative assertion, whether the applicant or respondent, bears the onus of proving the facts so asserted. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) at 459; Astra Paints Chemical v Chamburuka SC 27/12; Book v Davidson 1988 (1) ZLR 365 at 384 B-F. In Nyahondo v Hokonya & Ors, supra, Korsah Ja held that: “Where a person against whom a claim is made is not content with a mere denial but sets up a special defence or raises a fresh issue (when he confesses and avoids) then he is regarded in respect of that defence as being the claimant; for his defence to be upheld he bears the onus of satisfying the court that he is entitled to succeed on it.” There was no evidence to disprove the applicant’s assertions that the vehicle was in Zambia at the time it was sold. If it was sold in Zambia, there would be no violation of s 104(4) of the Regulations to talk about. In the absence of such evidence, the respondent, as the adjudicating authority, could not make its decision. In formulating its decision that the vehicle was sold in Zimbabwe on 19 December 2023 in violation of s 104(4), that is, without payment of duty or the consent of the Commissioner, while on tourist rebate, the respondent ought to have referred to the evidence establishing that. Mr Marange’s argument that it was the applicant who should have produced evidence in court, including toll gates receipts and a gate pass to show before the court that the vehicle was acquitted before 19 December or on 13 December 2023, was erroneous. The decision has already been made, and it is what the court is reviewing. The court considers the record to see whether or not the decision is one founded on the evidence which was placed before the decision-maker. The respondent failed to appreciate that it was the decision maker. There was no evidence on record that established that the motor vehicle was in Zimbabwe on 19 December 2023 and that the sale violated the provisions of the law. The respondent must also have justified its decision by considering the evidence placed before it. It failed to do so. The allegations by the respondent that the vehicle had been sold in contravention of the regulations and the C&E Act were never established. The decision was purely based on speculation or mere conjecture. A valid decision can only be properly made on evidence and not mere conjecture. Further, there was no evidence of the interviews the respondent had with the purchaser, Mr Muchemwa. The purchaser’s statement was never placed before me. It should have formed part of the evidence supporting the decision. The respondent is an institution of record. Surely, it could not merely allege that it relied on evidence from some “interviews” without any record of such interviews being available. This also includes the evidence that the purchaser paid the purchase price in Zimbabwe and the vehicle was in Zimbabwe on the date of the sale. In the absence of evidence or justification, the decision was, in my view, grossly unreasonable. This would justify the court interfering with an administrative action. Thus, in Affretair (Pvt) Ltd & Anor v M. K. Airline (Pvt) Ltd 1996 (2) ZLR 15 (S), at 21, it was stated that: “But at the other end of the scale, if the conclusion is hopelessly wrong, the courts may say that it could only have been arrived at by reference to improper considerations or by failure to refer to proper considerations. In these cases we reason backwards from the effect to the cause. We say ―the result is so bizarre that the process by which it was reached must have been unfair or lacking in transparency. So, in the result, the courts will expect from administrative bodies decisions that are — 1. Legal, in the sense that they are made within the framework of the law which empowers them to make the decision, and after the application of the appropriate criteria laid down in the statute or statutory instrument. 2. Rational, in the sense that they are not so wrong as to lead to the conclusion that they could only have been reached by a failure to apply the right criteria or by the application, whether deliberately or not, of the wrong criteria…” Administrative decisions should not be based on personal whims or preferences but on established principles. The respondent took the view that the SARPCCO certificate was proof that the vehicle had been permanently exported from Zambia and deregistered. However, that certificate per se is not proof of deregistration or permanent exportation of a motor vehicle. It is merely one of the documents required for a permanent exportation of a motor vehicle. To permanently export a motor vehicle from Zambia, one is required to obtain a Customs Clearance Certificate (“CCC”) from the Zambia Revenue Authority (“ZRA”). The Interpol Motor Vehicle Clearance (the SARPCCO certificate as the one in casu at p 48 of the record) is only one of the documents required to obtain the CCC from the ZRA. The full lists of the requirements and the procedure are also accessible from the following websites: https://zamportal.gov.zm; https://www.rtsa.org.zm (Road Transport and Safety Agency (RTSA)), and https://zra.org.zm (Zambia Revenue Authority (ZRA)). The requirements are also correctly captured in the document submitted by the applicant as part of the annexures to the founding affidavit at p 50 of the record. This document with the key requirements for permanent exportation of a motor vehicle from Zambia was placed before the respondent, including the temporary export permit at p 49 of the record and the motor vehicle registration certificate at p 47. The respondent did not challenge these documents in its opposing papers. The evidence clearly showed that the vehicle had not been permanently exported from Zambia and that it had not been deregistered in that country. Given the evidence before the respondent, it could not simply rely on the SARPCCO clearance certificate to conclude that the vehicle had been permanently exported from Zambia and deregistered. There was no documentary evidence to support that conclusion. Further, given the complete lack of evidence, the motor vehicle, which was on a valid TIP and under a tourist rebate, could not be said to have been permanently exported into the country in violation of the customs laws. The decision was utterly outrageous in its defiance of logic that any rational tribunal properly applying its mind to the facts would have arrived at it. It is so grossly unreasonable that the court has no option but to interfere with it. Consequently, the respondent invoked its powers to penalise the applicant when such statutory power had not been lawfully triggered. The motor vehicle was in Zimbabwe on a TIP issued on 13 January 2024 under the applicant’s agent. The vehicle was not with the purchaser but still under the applicant’s control or possession. It was not disputed that it had to be driven to the respondent’s office in Harare when they demanded that it be brought there, and it was then seized not from the purchaser, Mr Muchemwa, but from the applicant’s possession. The sale of the vehicle incorporated a condition that it would be delivered in Lusaka, Zambia, upon the approval of Mr Muchemwa’s application for a disability rebate. The vehicle was still in the possession of the applicant at the time it was seized. The respondent was completely wrong to conclude that Mr Muchemwa was the owner of the vehicle merely because he had paid the purchase price. The agreement of sale or payment of the purchase price alone did not mean that ownership of the vehicle had passed to the purchaser. In Gulmit Investments (Pvt) Ltd v Ranchville Enterprises (Pvt) Ltd & Ors HH 94/04, it was succinctly put that: “It is a common position at law that transfer of ownership in respect of movable property is effected by delivery of the property.” Accordingly, the fundamental principle of our common law is that ownership in corporeal movable property cannot pass by virtue of a contract of sale alone. See also Marcard Stein & Co v Port Marine Contractors (Pty) Ltd & Ors 1995 (3) SA 663, at 667B where it was held that: “It is a fundamental principle of our common law that ownership in corporeal movable property cannot pass by virtue of a contract of sale alone: there must, in addition, be at least proper delivery of the contract goods to the purchaser (see Lendalease Finance (Pty) Ltd v Corporacion De Mercadeo Agricola and Others 1976 (4) SA 164 (A), at 489H - 490A).” In this case, the respondent also did not properly consider whether the purchaser had indeed taken ownership of the vehicle. What is clear is that there was no evidence that the vehicle had been imported into the country and sold in violation of the law, in particular s 104(4) as alleged. The conclusions made were not based on any proven facts or evidence before the respondent. The decision was also completely at odds with the law. The decision, being grossly unreasonable, cannot stand. This court can interfere with any administrative decision in appropriate cases, in particular where the decision is unlawful or grossly unreasonable. The legal position was restated in ZIMSEC v Makomeka & Anor SC 10/20, where the court said: “The general principle is that the courts will not interfere with the actions or decisions of an administrative authority unless they are shown to be unlawful, grossly unreasonable or procedurally irregular or unfair. This fundamental canon of the common law, as embodied in the so-called Wednesbury principle, is now codified in s 3 (1) of the Administrative Justice Act [Chapter 10:28]. The corollary to this principle is that the courts will generally not substitute their own decisions for those of the administrative authority. As was aptly recognised by McNally JA in Affretair (Pvt) Ltd & Anor v M.K. Airline (Pvt) Ltd 1996 (2) ZLR 15 (S) at 21: “The duty of the courts is not to dismiss the authority and take over its functions, but to ensure, as far as humanly and legally possible, that it carries out its functions fairly and transparently. If we are satisfied that it has done that, we cannot interfere just because we do not approve of its conclusion.” However, this latter principle is not immutable and may be departed from in exceptional circumstances. In particular, the court may substitute its own decision for that of the administrative functionary in the following instances:  where the end result is a foregone conclusion and it would be a waste of time to remit the matter;  where further delay would prejudice the applicant;  where the extent of bias or incompetence displayed is such that it would be unfair to force the applicant to submit to the same jurisdiction;  where the court is in as good a position as the administrative body or functionary to make the appropriate decision. See the Affretair case, supra, at 24–25: Gurta AG v Gwaradzimba N.O. HH 353-13, at pp. 9–10; C.J. Petrow & Co (Pvt) Ltd v Gwaradzimba N.O. HH 175–14, at pp. 8–9.” In these circumstances, the respondent’s decision, having been unlawful, is null and void and cannot stand. Nothing can flow from it. The exercise of any authority to penalise the applicant and seize the vehicle was consequently illegal and a nullity. The purported penalties must also fall away with the decision. Lord DENNING in Macfoy v United Africa Co. 1961 [3] ALL ER 1169 at 1172, had this to say; “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” For completeness sake, I will further state that it was also grossly unreasonable and excessively harsh or unfair for the respondent to demand payment of duty on a vehicle that was in the country in compliance with all its laws, that is on a TIP which was valid while at the same time it had rejected the application for a disability rebate from the purchaser. I agree with Mr Tembani that the agreement of sale clearly showed an intention by the applicant to comply with the customs laws of Zimbabwe. The agreement incorporated a clause requiring that the vehicle be delivered or collected in Lusaka, Zambia, upon approvals by the respondent. There was no rational basis to allege and conclude that the applicant had violated the country’s laws or s 104 of the Regulations. The respondent completely failed to apply its mind to the facts and the evidence before it. The decision was, therefore, completely wrong. The application ought to succeed. DISPOSITION The applicant managed to establish that the respondent’s decision was grossly unreasonable and unlawful. Consequently, the court has no option but to interfere with the respondent’s decision. It is settled at law that where the decision maker fails to apply his or her mind to the matter, the consequent decision reached cannot be sustained. See Tenesi v Public Service Commission supra. There was completely no factual or lawful basis to hold that the applicant had violated s 104(4) of the Regulations and the C&E Act as alleged. The respondent’s decision of 6 April 2024 ought to be set aside. Consequently, the applicant is entitled to the relief sought in the draft order. As regards costs, I see no reason to depart from the general rule that costs shall follow the cause. Accordingly, I make the following order: The decision of the respondent dated 6 April 2024 be and is hereby set aside. The applicant shall pay all the costs associated with the supervised re-exportation of the motor vehicle, a Mercedes Benz ML350 registration number BBC 9592 to the Republic of Zambia. The respondent shall pay the costs of this application. Dembure J: …………………………………………… Tembani | Gomo Law Practice, applicant’s legal practitioners Legal Services Division, Zimbabwe Revenue Authority, respondent’s legal practitioners