THE Zambia Revenue Authority (ZRA) and the MMD have submitted that the court should dismiss the action by Patriotic Front (PF) secretary general Wynter Kabimba against the authority with costs because it was irregular as he did not follow the laid down procedure for the commencement of an action as stipulated in section 164 of the Customs and Excise Act.
According to the submissions by Messers Eric Silwamba & Company for the MMD, the High Court is wanting in jurisdiction as the proceedings are premature since the plaintiff, Mr Kabimba, did not furnish ZRA the requisite one month.
It was submitted that the MMD was fortified by the provisions of section 3 of the Revenues appeals Tribunal Act No 11 of 1998 as read with the provisions of the revenue appeals tribunal regulations, 1998 statutory instrument number 143 of 1998.
This is in a matter in which Mr Kabimba in his capacity as PF secretary general sued ZRA, the Attorney General and Major Richard Kachingwe as MMD national secretary over the importation of the ruling party’s campaign materials.
And in their submissions to the High Court, ZRA argues that Mr Kabimba did not follow the stipulated procedure as provided for in the Act.
“The first defendant submits that the action is irregular before this honourable court as the plaintiff did not follow the clearly laid down procedure for the commencement of an action against the first defendant as stipulated in section 164 of the Customs and Excise Act chapter 322 of the laws of Zambia.
“Section 164 (1) of the Customs and Excise Act provides that a writ of summons shall not be issued against nor a copy of any process served upon the Authority for anything done under this Act or any other law relating to customs or excise until one month after notice in writing has been delivered to the authority, by the person, or the person’s legal practitioner, who intends to issue such write, summons or process,” reads the submissions in part.
The authority argued that it was clear from the provision of the Act that it is mandatory for a person who brings an action against ZRA, which arises from the Customs Act to give the one month’s notice before issuance of a writ of summons or any process.
“Furthermore it is trite law that where an Act makes provisions for processing of an action then such Act should be followed by the plaintiff and the trial court should be satisfied by the plaintiff that the action so brought is in compliance with legislation in so far as it places certain obligations on the plaintiff to comply with,” reads the submissions.
They argued that therefore failure to give notice by the plaintiff in this case Mr Kabimba is an rregularity which cannot be cured by the court by the excise of discretion or by amendment.
And in the affidavit in support of the application to dismiss the origination process for irregularity on a point of law pursuant to the provisions of order 18 rule 19 and order 33 of the rules of the Supreme Court ZRA legal counsel Arthur Sike argued that the plaintiff did not follow the laid down procedure.
“The plaintiff ought to have given the first defendant one month notice before commencing an action against the first defendant. That in the premises, the plaintiff’s action has not yet accrued and as such this matter is prematurely before the honourable court,” he said.
[Times of Zambia]
IS ZRA A POLITICAL PARTY…ZAMBIA??????????????????
1-0 Wynter loses again thats 4-0 and counting does he know the law..this council lawyer?
Ba Winter maize, you are just going to couse your party unneccesary costs. Don’t act out of excitement or ignorance…consult your coleagues that may be well read than you. Winter…will you ever win a case?
Imwe ama Layers, how about the merits of the issues Mr. Kabimba has raised? Are you really going to hide behind Legal Jargon and technicalities to shield criminality? Lawyers are just like politicians mwe: talko, talko, talko, and talko some more without really answering the question!
The question is: Did MMD evade paying taxes on commodities that are clearly taxed under our laws? That’s the question. Now let our learned Lawyers proceed to answer the question, not giving us cow-manure for an answer!
But how did the materials get cleared by customs into the country without duty and still being used. Isnt this abuse of authority with impunity?????
Anyone who imports anything into the country can agree terms of payment with ZRA. It has notjhing to do with politics. Mr Sata’s wife imported a Mercedes Benz motor vehicle in 1996, it was impounded by ZRA, notwithstanding that her husband was a powerful man in the government. ZRA is not MMD and MMD is not ZRA.
winter is a cadre not a lawyer. he will win a medal for being the most useless lawyer on earth. And these are guys who are expected to make laws for us. so depressing.
Wynter Kabimba the circus!!! By the end of this yer, Wynter Kabimba will have trashed himself as a lawyer so much that I do not think he will ever have a genuine client. His best bet is probably defending wife-batterers in the local courts!! He has embarrassed even his family…! It is one disaster after another. Can’t someone advise him to stop embarrassing himself????????
Will Wynter ever win a case. The fellow seems not to do sufficient research on issues relating to procedure.
#5: There is a Mr Nekairo; heading ZRA; he is of Zimbabwean parentage. The key question should be why did RB remove the head of ZRA? Obviously to facilitate such things. In case you did not know; RB and MMD have their own people in nearly every influential organisation. Zesco, ZRA, and the lot. You wonder why they hate Sata? The issue is not so much how much they will steal from people; but how they will fail to handle the unemployed; the 8 out of 10 people without employment in Zambia. Even with a strong army, Gadaffi is struggling, what about you ba MMD without the support of the army, the Zp and the zns? such actions are reckless.
Ba Orgasm Tembo,
How did you work out that they (MMD, I guess) hate Sata? GRZ has come to Mr. Sata and his wife when they have fallen ill by sending them to RSA. How is that hate.
Here is a new definition of Trite law – means ‘law that is so obvious and commonly known except by Wynter Kabimba PFC.
#9 OrgasmTemboPlease do not pretend to be clever. What do you mean 8 out of 10 people unemployed in Zambia? Let us analyse your own statistic. There are 13 million Zambians. 8/10 is 10,400,000. But we know that 60% of Zambians are below 20 years of age, so that excludes 7,800,000 who cannot be employed because thay have no qualifications yet or none at all. Thus, only 5,200,000 Zambians are above 20 years of age and of these, we know that 1.2 million are in formal employment and pay tax. This leaves 4 million either unemployed or in informal employment, Let us take the worst case scenario that they ARE unemployed, it is 3/10 unemployed not your 8/10! BUT unemployed means ‘suitably qualified but cannot find employment in that field,’ eg. a Nurse can’t find employment. to be cont’d.
You *****, according to your own calculations you are proving Tembo to be right. You said 5.2 million Zambians are eligible to work and only 1.2 million arre working as at now, that leaves 4 million unemployed. 4/5 works out to be 80% bwana and not 30% according to your cadre calculations. 80% is the same as 8/10. Learn to shut up if you failed basic math.
@#4, You see that’s why last week I raised an issue to say Lawyers are behind Zambia’s economic misery. Why should such a case of public merit and interest be thrown out on such flimsy technicalities. Am using phrase thrown out coz I know it will be thrown out. I think we need to ban this so called profession and start relying on morals and wisdom. Alternatively we should castrate all lawyers so that they are ashamed of standing in courts, since people will be focussing their eyes on their castrated assets. I rest my case.
#9 OrgasmTembo
So of the 4 million so called unemployed, is there anyone who HAS formal qualifications but cannot find a job? I bet you NONE. There is not a single Engineer, Teacher, Doctor, Nurse, Accountant, Lawyer, Carpenter, Brick layer, Plumber in Zambia roaming the street without a job. Being employed is over rated. No one sjhould count this as a mark of the prosperity of a country in a country that has vast land and plenty of jobs. In the west, people live in mortgaged property and without any land or other means of livelihood. Once they are declared redundant, they can only fall on the State or Insurance for support. Not so in Zambia. There are tuntembas everywhere. Don’t call that UNEMPLOYMENT!
If u are working dont think we are all working….our degrees roting in our houses and u saying bullshit……..
Your analysis is so flawed. This is how rupiah, you & your MMD define unemploment.
No wonder we have 95% unemployment rate in the country.
Recently MMD admitted that for 20 years they only managed to create a paltry 200000 jobs
what a rotten govt we have!!
The question ZRA is not answering is: did MMD pay TAX or not?
The answer is that the question is premature. One does not have to pay tax IMMEDIATELY. Tax can be paid at the end of the tax year or in instalments depending on the agreed terms.
Saint it’s not income tax, it’s import duty. That is payable on the spot
The answer is that the question is premature.
The question of whether MMD paid tax on their imported materials is very valid.
ZRA has not addressed this issue.
What they are contending as premature is the court action
#9 OrgasmTembo
And Lastly, Nhekairo is Zambian and not Zimbabwean. This xenophobia is stupid and evil at the same time. His parents may have hailed from Rhodesia, but he is Zambian by birth and if the Americans have accepted a son of a Kenyan (who had no links with US at all), why can’t we accept a man born, brought up and nurtured in Zambia whose parents have remained attached to Zambia? I was of the thought that having killed tribalism, we would be more accomodating of ‘other’ people, but no, I was mistaken. We still have in our midst lots of Zambians who are bigoted and evil. Shame.
#14 exactly, this article is just legalistic sleight-of-hand to avoid the damn question
#13 the saint I would love to see you trying to make a living from a kantemba. People are in denial here, there are only about 500,000 formal jobs in Zambia, mostly in the civil service. Subsistence agriculture and fishing is not a job
I wish people knew what they are talking about. I also wish Wynter knew the meaning of law and its interpretation.
I think it is not too late for Wynter to go and study law, may be his understanding can improve. I wonder why people keep accusing Wynter of being a lawyer, when he denies these allegations through his conduct concerning legal issues.
My advice to Wynter is that now HE SHOULD SUE THOSE THAT
How did Wynter become a lawyer? We need to find out how the man passed,This is a record loss.Every week he is losing a case.Wynter is not a young man but above 55 years.Its so appalling how he doent know legal sh.i.t,You see what happens hanging around illiterates for too long.
My friends, I wish people knew what they are talking about. I also wish Wynter knew the meaning of law and its interpretation.
I think it is not too late for Wynter to go and study law, may be his understanding can improve. I wonder why people keep accusing Wynter of being a lawyer, when he denies these allegations through his conduct concerning legal issues.
My advice to Wynter is that now HE SHOULD SUE THOSE THAT ACCUSE HIM OF BEING A LAWYER.
#17 Airtime Sakala
My friend, the read histories of all the great enterpreneurs in the world today and you will be surprised. Heinz started by selling vegetables on a bicycle from door to door, Alan Sugar (Amstrad), Colgate, Branson (Virgin), TESCO, the list is endless. Others were janitors (Hoover), Bentley, Royce etc. None of these people ever saw the inside of a University. It is the mentality of get rich ‘yesterday’ that is killing the Zambian economy. In UK today, plumbers are making more money than doctors! Accountants are leaving their jobs to stack shelves in supermarkets! It is Egyptian farmers with ‘tuntemba’ who are supplying the UK with potatoes, Israelis with fruits and vegetables, all from desert!
I have looked at section 164 subsection (1) of cap 322 and i can confirm that kabimba will lose this case with shame. This section is clear. You can not sue ZRA without first writing to them in 30 days.
kABIMBA IS A VERY INCOMPEITENT LAWYER THAT THIS COUNTRY HAS EVER SEEN. And i think kabimba is now playing politcis and not law. This case will be dismised with cost because it is frivolous.
#14 Man of Action,
The problem is we can’t answer that question yet since Wynter has boobed (again!!) in procedure in quest for an answer.
What is wrong with Kabimba kanshi?
DRC and Airtime Sakala,
I hope you’ve read the advice from THE SAINT. Please put the politics aside for a moment and listen to the advice. DRC, you say you have a degree. I am really interested in understanding why you do not have a job. What degree do you have and what steps have you taken to secure a job?
As for you Mr. Airtime Sakala you frown upon tuntemba. I know many Zambians who are building houses from tuntemba businesses. I respect these guys as they are entrepreneurs. Yes, they need support by way of finance (affordable loans) and training in business, but I am afraid you sound like you are totally lost.
So MMD imported campaign material without paying tax? What a shame!!! No wonder Zambia is a banana republic and it will remain so for a very long time to come because the country has no business sense.
@ #17 Airtime Sakala  THE SAINT
THE SAINT,you are spot on.Forgive Airtime Sakala for a very myopic view of such important matters.No great nation in history has ever been great without small and medium sized business.About 65%- 70% of the Germany economy is driven by small and medium sized business.If one can say that small and medium sized business are irrelevant to the economy and that ”subsistence agriculture and fishing are not jobs” then they are definetely delusional PFcadres.Icelands economy is significantly driven by fishing.
# 12
Is it your case you have rested or your stup.idi.ty?
#28, As you see it Sir/Madam. All the best!!!
Kabimba,how did you qualify to be a Lawyer?Which Law school did you go to?I strongly believe you got your degree through the back door.
It is now becoming apparent that all cases with MMD DNA are always thrown out on the basis of legal technicalities before the discredited Zambian courts. Zed courts should learn to hear cases then make proper judgements.
A lot of questions come to mind.. Is this the lawyer that has always been in Kabimba or has he been brainwashed by his master’s voice? Does this man know what dangling of dirty linen in public can do? When a lawyer loses one case on precedural grounds, it is enough reminder that re-schooling is necessary!! Alas this learned coleague can’t see it. The next problem he will have is when the Post starts its payback overtures for their unprecedented coverage of the PF, this guy will have it thick. From a distance I will enjoy the drama when RB starts pindering the POSTfor loans from FB, DBZ, Zambian Airways to name but a few..
#11 Saint – How silly can you be to state that anyone below the age of 20 should not be employed. There are what you call apprentiships which are legal for 14 year olds. With Zambian kids dropping out at grade 7 at that age, many should take a route of apprentiship, particularly in the agriculture and manufacturing industry.
MMD never paid duty on those vehicles purchased using govt funds!ZRA should own up n admit RB n his band of thieves never paid any duty
But winter doesnt seem to understand even the basic law procedures like how and when to sue/ take a case to court. Na 1 month notice yonse taba ishiba….he is a serious disgrace to the legal fraternity.
The counsel has clearly boobed on procedure Had he done the correct thing he would have found it easy because for customs matters the burden of proof lies with the accused or the person claiming ownership of the goods in issue (Section 173 of the customs and excise Act). In this case the MMD being the owners of the materials purpoted to have been illegally imported would have been compelled to produce proof pertaining to the clearance of the same whether they were actually imported by them or any other person.
Was TAX paid or NOT. If Tax was paid all that ZRA has to do is show that TAX was paid as required by law. Whats so difficult about it kanshi. Thats the main issue and not the damn technicalities.
Guys,the importer pays all the duties and not the buyer.Have you ever paid duties for buying anything from within Zambia? Ubututu!
#33 Amayama, I want to entirely agree with you that #11 i.e. Saint is indeed very silly and dull at the same time, I dout if this guy is a Zambian or does he live in Zambia? In any case you do not need live in Zambia to know that there are so many educated people in Zambia who are uneployed. There are so many Degree, Diploma and Certificate holders in Zambia who are on the streets and can’t find jobs becoz there are just no jobs. Early this year we had advertised 4 the recrutment of research assistants and we wanted certificate or diploma holders but it was shocking to see that we had so many degree holders applying to be research assistants simply becoz there are no jobs out there. So Saint stop cheating people on thos blog that thoz unemployed have no formal qualifications.
Lcc dull lawyer.and u expect anything from this fool. if pf were to form grz this foool may end up being the top legal brain. imagine
Kabimba should not be demonized or be considered incompetent, he took the issue to court so that we understand there’s some truth, had he just said campaign materials and vehicles were brought in without duty the MMD would have been quick in denying, now that it is in court and legal jargon is being used to confuse the issue the question of payment to ZRA as per laymans’ need for an answer is being thwarted! The lawyers representing the MMD have not said duty was paid! So why doesn’t ZRA educate the nation and extend the benefits of this facility to all citizens?
Zambia lawyers! And the media refer him as Zambia’s prominent lawyer Wynter Kabimba its such a shame. How are you repeating things over and over. Nzelu!!!
Fast track Degree iya corespondance ku Mathero University. Now all the court proceedings and other legal should be Fast track procedures. MMD can you please teach these guys a lesson. RB 2011!!!!