CHINANZVANA v MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT and ANOTHER (200 of 2025) [2025] ZWHHC 200 (19 March 2025)

1 HH200-25 HC 4516/2023 REF HC 1446/22 CONCILIA CHINANZVANA versus MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT. and ATTORNEY GENERAL OFFICE HIGH COURT OF ZIMBABWE CHITAPI J Harare, 19 March 2025 Opposed Application T Biti, for the applicant J Shumba, for the first and second respondent CHITAPI J: The applicant is Consilia Chinanzvana a female adult and an elected Member of Parliament for Mashonaland West Province in the 2018 general and elections and was so elected on the MDC Alliance Party ticket. The first respondent is the Minister of Finance and Economic Development. He was cited as the Minister responsible for administering the Customs and Exercise (sic) Act. The second respondent is the Attorney General cited as the Chief Government lawyer. The applicant seeks a declaration that section 143 (6) of the Customs and Excise (General Regulations 2001) published as S. I 154/2001 is “irrational and invalid, unconstitutional and too wide in its scope, ill thought and therefore irrational illegal and should be set aside.” This is how the applicant expresses herself in her attack on the impugned regulations in the founding affidavit. The brief background that gave rise to this application is as follows. The Movement for Democratic Change political party had its internal problems which resulted in its splitting and recalls of its elected members of parliament in disputed circumstances. Many such recalls came before this Court, and the Supreme Court and the Constitutional courts wherein recalls were challenged. The applicant averred that she was recalled by the Douglas Mwonzora MDC Alliance Party faction . Parliament through the Speaker of Parliament declared in consequence of HH200-25 HC 4516/2023 REF HC 1446/22 the recall that the applicant was no longer a Member of Parliament. She averred that she was contesting that decision in case No HC 2837/21. She was however upon the, recall replaced. The applicant averred that as a Member of Parliament she enjoyed a rebate upon purchase of a motor vehicle in terms of section 143 of the regulations. She averred that she purchased a Madza BT50 vehicle through a loan advanced by Parliament. The purchase carried a duty tax rebate granted to Members of Parliament. She and her family where using the vehicle until 19 December 2020 when the vehicle was impounded by Zimbabwe Revenue Authority (ZIMRA) personnel at Nyabira tollgate as the applicant was en route to her base in Chinhoyi. She averred that she has filed case No HC 1014/22 for spoliation. She did not indicate who she was suing in that case. The applicant in this matter considers that the law as setout in section 143(6) of the regulations under whose power the motor vehicle was recovered from her is unconstitutional. The applicant averred that she was approaching the court under section 85 (1) (a) of the constitution which provides for applicants to approach the court to seek recourse where a fundamental right (s) has been infringed. There was no contest between the parties on the locus standi of the applicant to bring this application or its propriety. The crux of the application is the applicant’s contention that section 143(6) of the regulation is irrational and should be struck out and set aside. Section 143(6) reads as follows; “6 If for any reason , a serving Member of Parliament ceases to be a member before the dissolution of Parliament next following such members election or appointment the duty rebated under this section shall immediately become due and payable Provided that: (a) this subsection shall not apply to a deceased Member of Parliament; and (b) if the surviving spouse of a deceased Members of Parliament wishes to sell the vehicle the provisions of subsection (4) shall apply.” The applicant stated in paragraphs 39 and 40 of her founding affidavit as follows: “39. I strongly believe that section `143(6) of S. I 154/2001 in particular the provision that provides that; if for any reason a serving Member of Parliament ceases to be a Member of Parliament before dissolution then duty becomes due is irrational unconscionable and unconstitutional.” “40. it is my contention that a law that seeks to take away this benefit once a member of Parliament has been sworn in and served, is irrational and not supported .” The applicant averred that the rebate is a benefit granted to a Member of Parliament who will have been elected by the people. The rebate is intended to enable at cost a Member of HH200-25 HC 4516/2023 REF HC 1446/22 Parliament to acquire a vehicle to serve his or her constituency. The applicant contended that it was irrational to require a Member of Parliament who has completed his or her term to repay the rebated duty. The applicant also contended that the provision is irrational and discriminatory in that it protects the dead only to the exclusion of other situations where for example a Member of Parliament loses membership through no fault of the member. In the applicant’s case, her party recalled her in a process provided for under the Constitution. The first respondent Minister Muthuli Ncube opposed the application. He raised a point in limine that these proceedings were lis pendens in case No HC 1446/22. In that case the applicant cited the Minister, Zimbabwe Revenue Authority and its Commissioner General. The matter was filed on 4 March, 2022. It was based on the same facts as in casu. The prayer was for a declaration. The draft order sought was as follows: “IT IS DECLARED THAT 1. Section 143(6) of the Customs and Exercise (sic) (General Regulations 2001) published as Statutory Instrument 154 of 2001 be and is hereby declared irrational and is therefore struck out and set aside 2. Alternatively it is declared that section 143 (6) of the Customs and Exercise (sic) (General Regulations 2001) published as Statutory instrument 154 of 2001 is a breach of section 56(1) of the Constitution of Zimbabwe and is therefore should (sic) be set aside. 3. That there is no order as to cost unless any of the Respondents of the application (sic) in which case the costs must therefore follow the event.” The draft order has grammar and spelling mistakes. Counsel should pay attention to detail when settling court papers. The above draft order is a replica of the draft order sought herein and so is the applicant’s affidavit which, save for a change in parties to include the Attorney General and do away with Zimbabwe Revenue Authority and its Commissioner General, has otherwise been copied and pasted. The applicant in answer to the lis pendens objections simply averred that the matter was not lis pendens because it had been completed by DEME J on 15 November 2022. I have considered case No HC 1446/22. DEME J issued an order as follows: IT IS ORDERED THAT 1. The application be and is hereby withdrawn against the first Respondent 2. The application be and is hereby struck from the roll in order to allow HH200-25 HC 4516/2023 REF HC 1446/22 (a) The Applicant to give second Respondent notice provided for in terms of section 196 of the Customs and Exercise Act [Chapter 23:02] (b) The applicant to remedy the defects of her answering affidavits (c) The second Respondent to attend to the defects in the opposing affidavit. 3. These shall be no order as to costs. It is clear from the order that the applicant was ordered to do certain things by this court if she wanted the court to determine her challenge and grant her the order sought. The applicant instead of following up on case No HC 1446/22 in which she was given directions to comply with to have the matter determined has instead filed a new application. At the hearing of this matter both counsel did not advance the issue of lis pendens. The issue was however not abandoned. When writing the judgment I had recourse to the full record in case No HC 1446/22. The matter before DEME J case No HC 1446/22 was not finalised. It remains on the books and records of the court and in Registry as a matter which was partly heard and directives given for its continuance. The applicant instead of following the courts directive did not even withdraw the case but circumvented case No HC 1446/22 by filing a fresh application citing the same principal respondent viz, the Minister and claiming the same duplicate relief. I must record that I am mindful of the dicta in the Nzara 3 ors v Kashumba v 30 ors SC 18/2018 to the effect that the court should determine disputes placed before it and on which the court is addressed. The issue of lis pendens was addressed by the parties in the opposing and answering affidavits. These affidavits and the founding affidavit constitutes evidence placed before the court. The issue of lis pendens is determined through a paper trial examination of the cases involved. The cases are court records to which the court has access and is entitled to make reference to them and take note of their contents See Mhungu v Mtindi 1986 (2) ZLR 171. The court is therefore entitled to consider whether a similar case on which this court had presided is in fact recorded as being in existence. So it turned out that it is in existence as case No HC 1446/22. The court has a duty to protect its process. The court is not a playing ground for litigants to file matters adhoc and or duplicate matters. The litigant is not entitled to hop around HH200-25 HC 4516/2023 REF HC 1446/22 courts filing more than one case that involves the same dispute with the same relief being claimed. Lis pendens as a defence was adverted to MAVANGIRA JA in the case; Zimbabwe National Water Authority v Hippo Valley and Triangle Estates SC 55/19 where at page 7 the learned judge stated: “Generally lis pendens is a defence that is brought where an action is brought against one party notwithstanding the fact that the same matter is pending before a court of competent jurisdiction Cillers Ac, Loots and Nel HC Herbstein v Van Wisen, The Civil Practice of the High Court and Supreme Court of Appeal of South Africa (4th edition Juta and Co Ltd Cape town 2009) at page 3 10 express the following view “if an action is already pending between the parties and the plaintiff brings another action against the same defendant on the same cause of action and in respect of the same subject matter, whether in the same or in a different court, it is open to the defendant to take the objection of lis pendens, that is, that another action respecting the identical subject matter has already been instituted. There upon the court in its discretion may stay one action pending the decision of the court on the other. The requirements of lis pendens are described as follows by the learned authors: “The requisites of a plea of lis pendens are the same with regard to the person, cause of action and subject matter as those of a plea of res judicata which in turn are that the two actions must have been between the same parties or their successors in title concerning the same subject and founded upon the same cause of complaint.” In casu the same Minister who administers the Customs and Excise Act is cited in both cases and the relief sought is the same. The fact that in the curr3ent case the Attorney General is cited is neither here nor there since no relief is sought against him or her. It is also neither here nor there that there is an additional respondent in the form of Zimbabwe Revenue Authority in case No HC 1446/22 because the relief therein really concerns the Minister. In the case of Govera (Executor Estate Late David Govera) and anor v NMB Bank Limited and 2 others HH309/24 ZHOU J stated as follows in the cyclostyled judgment: “It is the courts view that litigants cannot file cases with the court and park them at the court without bringing them to finality. See Home of Angels Housing Co-operatives Society Limited to 5 ors vs City of Harare HH 800/22. It is important for litigants to make every effort to bring their matters to their logical conclusions. There must be finality in the litigation See Allan Cimas Mpofu v (1) The Directors of Customs And Excise and HH200-25 HC 4516/2023 REF HC 1446/22 Anor SC 3/02; S v Framat Ors 1974(2) RLR 39(AD). What they cannot do is to make no effort to resurrect the same matter for the consideration of the court when previous process which they filled on the same matter subject matter between the same parties and the same cause of action remains unterminated.” The practice of parties filing multiple cases on the same dispute as happened here must be put in check to safeguard the court process against abuse by litigants and for counsel. The first case is not just lis pendens, it is partly heard and was removed from the roll with directions given by the presiding judge for its continuance. The applicant is bound to it and cannot ignore it for a new case as she has done and neither can she withdraw it without the other parties making submissions on the withdrawal. It was through this court’s oversight to direct the parties to deal with lis pendens that I allowed the parties to address the merits. It is however not too late to hold proceedings in abeyance pending disposal of case No HC 1446/22 which must take precedence. In the case of Govera (Executor Estate Late David Govera) and anor v NMB bank Limited and 2 others HH 309/24 ZHOU J stated as follows in the cyclostyled judgment: The applicant has brought about the lis pendens issue by reason of filing this application when HC 1446/22 which is partly head is still to be determined and directions given by the court are still to be complied with. I was inclined to order costs against the applicant. The issue of costs must however be dealt with when this matter is finalised. It is best to reserve the issue of costs at this stage. The following order will therefore be made IT IS ORDERED THAT 1. Case No HC 4516/23 is stayed pending finalization of case No HC 1446/22 2. Costs are reserved CHITAPI J…………………………………………… Biti Law Chambers, applicant’s legal practitioners Civil Division Attorney General Office, first respondent’s legal practitioners HH200-25 HC 4516/2023 REF HC 1446/22