MAYOR LOGISTICS (PVT) LTD v ZIMBABWE REVENUE AUTHORITY 2014 (2) ZLR 78 (CC) 2014 (2) ZLR p78

Flynote

Constitutional law — challenge to constitutionality of a statutory provision — approach of court thereto — assumption that the legislation is constitutionally valid until the contrary is clearly established

Interdict — requirements for — prima facie right — need for proof thereof — interdict cannot be granted against past invasions of a right or against lawful conduct — application for an interim order that certain legislation be suspended pending a decision of the Constitutional Court as to its constitutionality — application refused.

Practice and procedure — Constitutional Court — certificate of urgency — founding affidavit — what needs to be set out therein

Headnote

An interdict is for the protection of an existing right. There has to be proof of the existence of a prima facie right which needs to be protected from unlawful conduct which is about to infringe it. An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct

It is only in exceptional circumstances and upon an application on a certificate of urgency signed by a legal practitioner that the Chief Justice will order that a constitutional matter should be heard on an urgent basis. A party seeking to be accorded such preferential treatment must set out in the founding affidavit facts which distinguish the case from others to justify the granting of the order for an urgent hearing without breach of the principle that similarly situated litigants are entitled to be treated alike.

The applicant contended that the respondent had assessed an amount of tax due to it which was excessive. In so doing, the applicant submitted that s 36 (1) of the Value Added Tax Act [Chapter 23:12] and s 69 (1) of the Income Tax [Chapter 23:06], upon which the respondent relied, were contrary to ss 68(1) and 69(3) of the Constitution of Zimbabwe. These provisions relate to a taxpayer's fundamental rights of access to a court and to administrative justice, and were thus relevant to the question whether the amount of tax assessed was due and payable. For this reason, the applicant sought an interim order that the provisions of the two Acts be suspended, pending a determination by the Constitutional Court of their constitutionality. It was the applicant's case that if the provisions were indeed unconstitutional, it would not be required to pay respondent the assessed tax before his appeal to the Fiscal Appeal Court could be decided.

Held, that any court faced with an application challenging the constitutionality ofa statutory provision is required to proceed on the assumption that the legislation is constitutionally valid until the contrary is clearly established. A finding has to be made first that there has been a contravention of a fundamental right or freedom. Until then, the legislation has legal force.

Held, further, that the application for an interim order suspending the provisions of s 36(1) of the Income Tax Act [Chapter 23:12] and of s 69(1) of the Value Added Tax Act [Chapter 23:06], pending the determination of their constitutionality by the Constitutional Court, must be dismissed with costs