Foreign jurists can help clear tax cases

THE recent move by the Judicial Service Commission (JSC) to recall some retired High Court judges to help clear the backlog of cases is a step in the right direction, but more needs to be done if the country is to enhance its prospects of being viewed as a desirable destination for investment by both domestic and foreign investors, businessdigest has learnt.

Melody Chikono

There is an unsustainably high backlog of cases in the two specialist tribunals, namely the Special Court for Income Tax Appeals and Fiscal Court of Appeal, which are an integral part of the High Court of Zimbabwe.

The Special Court for Income Tax Appeals deals with appeals by taxpayers against assessments made by the Zimbabwe Revenue Authority (Zimra) from time to time, while the Fiscal Court of Appeal handles appeals against Value-Added Tax and customs duties levied by Zimra.

Commercial Arbitration Centre chairperson Muchadeyi Masunda this week told businessdigest that there is no reason why the current political administration cannot recruit retired judges and senior legal practitioners with a flair for revenue law to step into the breach and help clear the backlog of tax cases.

“In 1983, Justice Roger Korsah came from Ghana to serve on the High Court of Zimbabwe initially in Bulawayo and later in the Supreme Court of Zimbabwe in Harare. Incidentally, his judicial pedigree was quite formidable as his father, Sir Kobina Arku Korsah, served as chief justice of Ghana from 1956 to 1963. There is absolutely no reason why the current administration headed by President Emmerson Mnangagwa cannot do likewise by recruiting retired judges and senior legal practitioners, with a flair for revenue law, from South Africa, the United Kingdom of Great Britain and Northern Ireland, the Republic of Ireland, Canada, Australia and New Zealand to step into the breach and help us to clear the backlog of tax cases,” he said.

“In addition, we should give serious consideration to recruiting, under the auspices of the JSC, a number of brilliant law graduates who are churned out by law schools at the University of Zimbabwe, Midlands State University and Great Zimbabwe University, as well as Witwatersrand University, Rhodes University, Pretoria University, University of Cape Town and University of KwaZulu-Natal.”

He said these bright sparks would be seconded by the Judicial Service Commission (JSC) as judges’ clerks to the two specialist tribunals for the express purpose of poring over the voluminous supporting documents in the pending tax cases, that is, researching the applicable law and judicial precedents and then producing executive summaries for the presiding judges.

The resultant executive summaries, according to Masunda, would then form the basis of the judgments in each of the outstanding cases. He added that the proposed modus operandi has been tried and tested in a number of more mature and successful jurisdictions.

“The net result of these recommendations, if they are properly implemented, would go a long way towards enhancing our prospects of being viewed as a desirable destination for investment in the eyes of both domestic and foreign investors,” he said.

“Needless to say, investors derive a lot of comfort in investing in a country which has a judiciary which is independent, competent, strong as well as ruthlessly fair and efficient. As the old adage goes, justice delayed is justice denied.”

Masunda said in the past the specialist tribunals used to function like clockwork when they were headed successively by the then High Court judges Tony Gubbay and George Smith well over 20 years ago.

He, however, says at the moment, they are not operating as they used to do in the past, largely because they have not been appropriately supported in terms of human, material and financial resources.

Through no fault of his own, Masunda said, the current head of both tribunals has had no previous experience whatsoever as a practising counsel in revenue law cases.

“He was literally thrown at the deep end of the pool and is desperately in need of help lest he drowns,” Masunda said.

He added that soon after the advent of uhuru in April 1980, the administration of the then Prime Minister, Robert Gabriel Mugabe, made a bold decision in March 1981 by appointing Justice Philip Telford Georges, an eminent jurist from the Caribbean island of Dominica, as Chief Justice of Zimbabwe.

According to Masunda, Georges served as chief justice of Tanzania, immediately prior to that appointment and, after his stint here, went on to serve as chief justice of The Bahamas.

Masunda said at about the same time, there were three Tanzanian judges who were seconded to the High Court of Zimbabwe including Justice Barnabas Albert Samatta, who later became Chief Justice of Tanzania.