Tax-related matters pile at special court

THE judicial system is battling to clear a backlog of tax-related cases being handled by the special court for income tax appeals and fiscal court of appeal due to the unavailability of qualified judges, it has emerged.

By Melody Chikono

This comes amid concerns the unavailability of qualified judges to make determination on tax matters is partly turning away potential investors.

The two specialist tribunals — which were put in place in July 1995 to deal with matters arising against the Zimbabwe Revenue Authority (Zimra) in tax matters, including value-added tax, customs and excise duty cases — last functioned properly in 1999.

The initial idea was to avoid mixing tax cases with other legal cases that ordinarily go through the High Court.
Businessdigest understands that the current presiding judge, Justice Samuel Kudya, who was appointed through the magisterial ranks, has a backlog of close to 50 cases.

Kudya is reportedly struggling to bring closure to the cases in a timely manner.

The only other judge with tax proficiency, Justice Ben Hlatshwayo, is currently presiding as a Supreme Court judge.
Commercial Arbitration Centre in Harare chairperson Muchadeyi Masunda told businessdigest last week that it has been a while since judgments on these cases have been handed down.

Masunda said judgment in most cases was being reserved.
He added that the problem has now arisen amid concerns over loss of value, given the length of time involved in settling cases.

“Since its inception in July 1995, the Commercial Arbitration Centre in Harare has built up quite a formidable pool of experts, including a number of seasoned practising and retired chartered accountants (CAs), who would be available to serve as assessors on three-person panels which could be put together by Chief Justice Luke Malaba, in his official capacity as the incumbent chairperson of the Judicial Service Commission, for the express purpose of clearing the unsustainably large backlog of unresolved tax cases which have been pending before the Special Court for Income Tax Appeals and Fiscal Court of Appeals for an inordinately long time,” Masunda said.

“As the well-worn cliché goes, ‘justice delayed is justice denied’. Needless to say, it is incumbent on all of us to leave no stone unturned in our quest to change the commonly held perception that ‘the rule of law as well as the respect for human and property rights’ in Zimbabwe got jettisoned through the window following the necessary but ill-conceived agrarian revolution which went horribly wrong during the early 2000s.”

Masunda said historically the presiding judges were preferably those who had practised as lead counsel in tax cases familiar with what those issues where and lodge objection with Zimra.

He added that there has not been enough mentoring of judges on tax cases.

Against this background, the Law Society of Zimbabwe and the Institute of Chartered Accountants of Zimbabwe have moved to either recall retired judges, source experts from the Commonwealth or hire private qualified professionals to clear this backlog.

When Zimbabwe attained independence, judges from Commonwealth member states were seconded to the country to stabilise this pillar of governance.

However, Masunda said the repeal of the Attorneys, Notaries and Conveyancers Act has escalated this problem as lawyers no longer do articles which eventually qualify them in a certain area of law.

He said without the efficient delivery of justice, investors were likely to shun the country.

“The system in the past was very strict in terms of practice. But in 1984, a number of top officials who had practised law came back and refused to do articles, thus pushing for the repeal of the Attorneys, Notaries and Conveyancers Act,” he said.

“In most instances, state cases are lost because they didn’t have experienced prosecutors. Investors are losing confidence in the system. We can’t continue like that. It’s not a new phenomenon to outsource judges overseas per se. We have done that before just after independence. We have the likes of Louis Bloom Cooper who was hired to come and defend Edgar Tekere. It works. We can also use alternative dispute resolution mechanisms which include negotiation, reconciliation, mediation or arbitration. We have a very strong arbitration culture in this country.”

Recently, Chief Justice Malaba recalled from retirement justices Vernanda Ziyambi, Nicholas Ndou and November Mtshiya to assist in clearing this backlog.

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