HARARE – The High Court has dismissed a constitutional challenge to the 60-day notice requirement for instituting civil proceedings against the Zimbabwe Revenue Authority (ZIMRA).
Justice Gladys Mhuri held that the provision, contained in Section 196 of the Customs and Excise Act, does not infringe on the right of access to the courts and equal protection of the law.
The applicant, Consilia Chinanzvavana represented by prominent lawyer Tendai Biti, had argued that the requirement unduly restricts her right to seek redress in court and discriminates against her compared to others who do not face similar hurdles when suing other parastatals.
“It was the applicant’s contention that the said provision infringes on her right of access to a court or to some other tribunal for the resolution of any dispute protected by section 69 (3) as well as her right to a fair and speedy trial before an independent and an impartial court codified by section 69 (1).
“She also contended that the said provision infringes on her right to equal protection and benefit of the law as protected by section 56 (1) of the Constitution.
“Her main argument was that the requirement to give 60 days’ notice is an unnecessary constraint to her right of access to the courts particularly in a country like Zimbabwe where the majority of people are poor and cannot afford lawyers.
“She questioned why it is only Zimra which requires notice when other bodies such as Reserve Bank of Zimbabwe, Air Zimbabwe etc have no such requirement. It was submitted that therefore section 56 is flouted hence the notice period is unconstitutional,” Justice Mhuri said.
However, the court found that the provision serves a legitimate purpose, allowing ZIMRA to investigate and potentially resolve disputes before litigation.
The court also noted that the 60-day notice requirement applies equally to all persons seeking to institute civil proceedings against ZIMRA, and therefore does not discriminate against the applicant.
The ruling affirms the constitutionality of the provision and upholds the principle of equal protection of the law.
“Applicant has not shown that she was treated differently from persons in the same circumstances as her. All she did was give examples of other Parastatals to which the requirement of giving notice does not apply.
“Further, on s 56, it is important to note that the notice requirement applies equally to all persons seeking to institute civil proceedings against the State, the Commissioner or an officer under the specified laws.
“It does not discriminate against any individual or group, thus upholding the principle of equal protection of the law.
“While the 60-day notice requirement may impose a procedural hurdle, it does not violate the constitutional rights to access the courts and equal protection of the law. It serves a legitimate purpose and applies equally to all persons seeking to institute civil proceedings under the specified laws.
“It is on this basis that I find the provisions of s 196 (1) & 2 of the Customs and Excise Act [Chapter 23:02] not to be ultra vires the Constitution. They do not infringe the right to access the courts and the right to equal protection and benefit of the law.
“In the result, it is accordingly ordered that: The application be and is hereby dismissed,” Justice Mhuri ruled.
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