Mater Dei Hospital trust v Zimbabwe Revenue Authority & 1 other [2025] ZWBHC 7 (23 July 2025)

1 HB 127/25 HC 1292/23 MATER DEI HOSPITAL TRUST versus ZIMBABWE REVENUE AUTHORITY And COMMISSIONER, CUSTOMS AND EXCISE HIGH COURT OF ZIMBABWE M DUBE J BULAWAYO 16 MAY & 23 JULY 2025 Opposed Application Adv. P Dube for the applicant R Mukucha for the 1st and 2nd respondents DUBE J: The applicant is Mater Dei Hospital Trust, a trust that runs Mater Dei Hospital in Bulawayo. The applicant is a charitable non-profit trust established in 1998, it is also a member of the Zimbabwe Association of Church-Related Hospitals (“ZACH”). The first respondent is the Zimbabwe Revenue Authority an administrative authority established in terms of the Revenue Authority Act [Chapter 23: 11], which is tasked inter alia in the collection of customs and excise duty. The second respondent is the Commissioner of Customs and Excise. The second respondent rejected the applicant’s appeal against the denial of certain duty rebate certificates requested by the applicant in terms of section 124 of the Customs & Excise (General) Regulations, 2001 (SI 154/2001) (“Regulations”). The applicant received donations of various hospital equipment and consumables from non - Zimbabwean entities. From time to time, the applicant receives such donations of hospital equipment from foreign entities, including the four consignments which are in dispute. The Zimbabwe Association of Church-Related Hospitals applied on behalf of the Applicant for a duty rebate to be granted on each of the four consignments. On 2 March 2023, the applicant’s applications in respect of the first three consignments were denied by the Station Manager, Customs and Excise, Bulawayo on the basis that the applicant HB 127/25 HC 1292/23 was a “commercial entity” and not a “welfare entity”. Upon the applications being rejected, the applicant on 7 March 2023 appealed to the Regional Manager, Bulawayo Port. On 23 March 2023, the Regional Manager rejected the appeals on the grounds that the applicant was not a registered private voluntary organisation and neither had it been approved by the Commissioner of Customs and Excise, and so could not receive a rebate. The applicant appealed this decision to the 2nd respondent who on 27 April 2023 also rejected the appeal. Meanwhile, the fourth consignment was being shipped to the applicant. A request for the duty rebate certificate was made to the station manager. The station manager on 24 March 2023 repeated the same rejection as the regional manager's denial of the appeals. The applicant appealed the fourth rejection to the second respondent. The second respondent repeated the same rejection as in the other three requests. The applicant has made an application to this court for the review of the decisions of the 1st and 2nd respondent. Relief Sought 1. The Respondents' decisions to deny the Applicant duty rebate certificates in terms of section 124 of the Customs and Excise (General) Regulations, 2001, dated: (a) 27 April 2023; and (b) 24 March 2023; be and are hereby reviewed and set aside. 2. The First Respondent is ordered to issue duty rebate certificates in terms of section 124(2) of the Customs and Excise (General) Regulations, 2001 in favour of Applicant in respect of the consignments of goods under invoices from, and numbered Kpowertec Co. Ltd - KPS221111-002, Kpowertec Co. Ltd - KPS221230-03, Nanjing Perlove Medical Equipment Co. Ltd - OC220221229-081, and Guangzhou MeCan Medical Ltd - MC202221118TKY001. 3. 4. The first respondent is ordered to refund the applicant the duty and all charges paid for the clearance of the goods under the invoices set out in paragraph 2 above. The first respondent is ordered to pay the costs of this application. Issue for determination 1. Whether or not the decision by the 2nd respondent was unlawful? HB 127/25 HC 1292/23 2. Whether the applicant is entitled to a rebate in terms of section 124 of the Customs and Excise general regulations, 2001? 3. What if any was the effect of prior decisions to grant rebates to the Applicant based on the same facts? At the commencement of the hearing the parties agreed to argue the preliminary point simultaneously with the merits so that the court may pronounce itself once and for all. I shall deal first with the preliminary point. Is the 2 nd Respondent Mis-cited? In its opposing affidavit the 1st Respondent averred as follows; “…….the citation of the 2nd Respondent as a party to these proceedings is a nullity at law. This point shall be developed through the heads of arguments by counsel.” In their heads of arguments, the 1st and 2nd Respondents held as follows; “3.2 The respondents submit in limine that the second respondent had been wrongly cited. This is so because he is no more than a mere employee of ZIMRA. 3.3 ZIMRA, through its enabling Act, is a body corporate capable of suing or being sued in its own name and in its own right. All the actions of the second respondent and those of officers under him, are carried out on behalf of ZIMRA.” The applicant on the other hand contended that it is crucial to cite the 2nd Respondent as the actual decision maker so that he may have an opportunity to justify his or her decision. To buttress its argument the Respondent cited the matter of Tregers Industries (Pvt) Ltd v Commissioner General of the Zimbabwe Revenue Authority HH 83-06. In that matter a discussion of the matter of Richard Maradze & Others v The Chairman, Public Service Commission & Anor HH 223-98 and the case of Hardlife Matide v Chairman of the Public Service Commission & Anor HH 90-98. In all those matters the principle of law discussed is to the effect that in cases such the present “it is the body and not the head of that body” who should be cited. I am of the respectful view that it becomes a fatally defective non-joinder to fail to cite the body, in this case the Zimbabwe Revenue Authority and only cite the Commissioner as was the case in the Tregers matter supra. The result is different when the Commissioner as the actual maker of the decision made is cited over and above the body that he represents. That HB 127/25 HC 1292/23 way indeed he or she is given an opportunity to respond and give reasons that influenced him or her to make the decision he/ she made. Simply put it is a matter of the greater including the lesser and not the other way around. I find the 2nd Respondent to be properly cited and therefore dismiss the preliminary point raised without further ado. On the merits Legitimate expectation It is common cause and admitted by the Respondents that in the past the 2 nd Respondent had exercised its discretion in favour of the Applicant under similar circumstances. Counsel for the Respondents argue that the 2nd respondent carried out investigations and later found out that it had made a mistake by granting such duty rebates. It is now correcting such past errors. In the matter of Administrator v Traub 1989(4) SA 731 (A) at p 756 I, it was held that; “Legitimate or reasonable expectations may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue” In the matter of National Director of Public Prosecutions v Phillips 2002 (4) SA 60 (W) it was further held that; “The law does not protect every expectation it only protects a “legitimate” one” The question exercising my mind is; in the present matter have Respondents created any expectation? If so is it a legitimate one? To motivate its argument, Applicant submits as follows; “It ought to be common cause, as noted under the Factual Background, that second respondent has in the past issued a duty rebate certificate in respect of fully donated goods that were for the benefit of applicant, confirming that second respondent has already approved applicant as an association or organisation which is involved in charitable or welfare work. Respectfully, the enquiry should end at this point in favour of applicant.” The respondents do not deny such history. Their counsel put it across in the following manner; “It is admitted that in the past in year 2013 the Respondent indeed approved the applications by Applicant for rebate. That approval was made in error. It does not bar the Respondent from correcting the error. The Commissioner is allowed to conduct post clearance investigation or audit to allow the Commissioner to correct such mistakes” HB 127/25 HC 1292/23 Such argument is with respect flawed. The reasons are simple. If genuinely an error had been committed and discovered post clearance then the 2nd Respondent ought to have communicated such error to the Applicant. It follows that such waived import duty would have been collected and the record set straight. Applicant would have known from then onwards what to expect from the 2nd Respondent. In the present matter no such communication was made. The facts remain the same, yet the 2nd Respondent exercises his discretion differently. That offends section 3(1) (a) of the Administrative Justice Act [Chapter 10:28] which provides as follows: “(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;…” The decision of the 2nd Respondent in casu was exercised in a manner that contravenes the duty to act lawfully, reasonably and fairly. I am convinced that the Respondents have indeed created an expectation and a legitimate one for that matter. Legality of seeking to treat Mater Dei Hospital as a separate legal persona from its founding Trust. It would seem to me that the 2nd Respondent and indeed its counsel merely rely on their personal knowledge or whim that “Mater Dei is a private hospital that charges its clients and therefore it is “commercial entity”. Such argument, as shall be discussed below, is simplistic and does not go to the tenor of legal reasoning. The decisions complained of are summarised as follows: “The decision of the Regional Manager is different from that of the Station Manager in that the Station Manager stated that the Applicant was a “commercial entity” and not a welfare entity. The Regional Manager stated: “Being a member of the Zimbabwe Association of Church Hospitals (ZACH) does not make Mater Dei a PVO as well. In addition, Mater Dei Hospital cannot be registered as a PVO in terms of section 2 of the PVO (CAP 17.05) as it is registered with the Health Profession Act (CAP 29.19). The Act excludes such Institutions from its definition of PVO.” In his submissions during hearing counsel for the Respondents argued thus; “I fully appreciate that the Applicant is Mater Dei Trust. But the ultimate beneficiary is Mater Dei Hospital. So in this case the consideration taken by the Commissioner is, that is the beneficiary. Mater Dei being the beneficiary is the importer in terms of the definition. It is Mater Dei Hospital which was having communication with the HB 127/25 HC 1292/23 Respondent per letter of the 23rd March 2023. So Mater Dei is the importer, it being the organisation that fails to meet the conditions set out in section 124, the Commissioner was justifiable in denying the applicant a rebate. In other words, the proper person to be in court is Mater Dei Hospital not the Mater Dei Trust.” If I understand this argument properly it avers that the use of Mater Dei Trust as the applicant for rebate is a ruse meant to hoodwink the Respondents. If that is the case then an offence is surely committed. Why are the respondents not coming out in the clear on their decisions refusing the rebate? Why is no one facing prosecution for fraud or any form of misrepresentation? The answer thereto is plainly that the Respondents are misinterpreting the law. Section 124 of SI 154 of 2001 (Customs and Excise General Regulations) provides as follows; “124 (2) Subject to this section and to such conditions as the Commissioner may in each case fix, a rebate of duty shall be granted on such goods as the Commissioner may approve, which have been fully donated and imported by an association or organisation approved by the Commissioner, which is involved in charitable or welfare work.” As discussed above the 2nd Respondent has on several past occasions approved the applicant as eligible for rebate. It therefore follows that it had “approved” the Applicant as such. Had the 2nd Respondent averred that it had since carried out an in depth investigation into the conduct, make up or structures of the Applicant and found out that it is a commercial entity. It could logically then assert that it is a commercial entity or a non-charitable organisation. Without such evidence, the facts and circumstances remain the same. The law not placing any requirement for Applicant to be registered as Private Voluntary Organisation, the 2nd Respondent can not justify arriving at a different finding from its prior findings. More so there is no requirement that Applicant should be wholly a “charitable organisation”. If it does so in part that satisfies the requirements of the law as it stands. It is legally untenable to want to divorce the beneficiary hospital and regard it as a separate legal person from the trust that runs it without good cause shown. Through the entire pleadings and oral arguments in court it is not disputed that; a) The type of goods imported are approved by the 2nd Respondent. b) The goods are fully donated. c) They are imported by Mater Dei Trust an association previously approved by the 2 nd Respondent to be doing charitable work. HB 127/25 HC 1292/23 There is not good cause shown for the 2nd Respondent to now want to find differently. The interpretation of the law it seeks to rely on does not support its stand point. Disposition In the foregoing the application for review must succeed with costs. Accordingly it is ordered that: 1. The respondents’ decisions to deny the applicant duty rebate certificates in terms of section 124 of the Customs and Excise (General) Regulations, 2001, dated: (a) 27 April 2023; and (b) 24 March 2023; be and are hereby reviewed and set aside. 2. The first respondent is ordered to issue duty rebate certificates in terms of section 124(2) of the Customs and Excise (General) Regulations, 2001 in favour of Applicant in respect of the consignments of goods under invoices from, and numbered Kpowertec Co. Ltd - KPS221111-002, Kpowertec Co. Ltd - KPS221230-03, Nanjing Perlove Medical Equipment Co. Ltd - OC220221229-081, and Guangzhou MeCan Medical Ltd - MC202221118TKY001. 3. The first respondent is ordered to pay the costs of this application. Webb, Low & Barry inc. Ben Barons & Partners, applicant’s legal practitioners Zimbabwe Revenue Authority, Legal Division, respondents’ legal practitioners HB 127/25 HC 1292/23