via Kereke appeal struck off roll | The Herald March 29, 2014 by Fidelis Munyoro
RMC Hospital owner Dr Munyaradzi Kereke’s appeal challenging the High Court decision forcing him to pay US$1,7 million to the Zimbabwe Revenue Authority in tax arrears for the past three years was yesterday struck off the roll for non-compliance with court rules.
The case, which was brought on appeal under a certificate of urgency at the Supreme Court, is now likely to be heard during the second term of the court session that begins in May.
A three-judge panel led by Justice Paddington Garwe unanimously agreed to have the appeal by Dr Kereke struck off the roll for non-compliance with rules of the court.
The court rules that Dr Kereke failed to comply with Rule 29(1) of the Supreme Court Rules of 1964 which requires that an appellant should indicate whether he or she appeals against the entire judgment or part of it.
“In the circumstances, therefore, there is no appeal before this court,” said Justice Garwe. “That being the position, this court cannot deal with the matter in question of the interdict raised in a separate application filed with this court as decided by the Chief Justice (Godfrey Chidyausiku) on 10 March 2014.”
Justice Garwe said Dr Kereke was at liberty to pursue the correctness of the decision of the court by way of a constitutional challenge to certain rules of the court.
He refused to grant a postponement of the case and struck it off the roll.
Earlier on when Advocate Lewis rose from the bar to make his submissions on the appeal, Justice Garwe queried why Dr Kereke was appealing against part of the lower court’s decision.
The law requires that an appellant appeals against the order of the court (operative part of a judgment) and not the reasons for arriving at that order.
The law distinguishes the reasons for the judgment and the judgment itself.
Adv Thembinkosi Magwaliba, who is representing Zimra, opposed the application for interim relief based on the view taken by the judges on the matter.
In his appeal, Dr Kereke wants garnishee orders imposed on RMC Hospital’s major debtors stayed pending determination of an appeal to Zimra’s Commissioner-General on November 21 last year, including any appeal to the Fiscal Appeals Court.
But Zimra argues that Dr Kereke should not seek the court’s assistance to aid him bar the tax collector from exercising its lawful mandate.
Zimra imposed garnishee orders on RMC’s major trade debtors – Cimas, Premier Service Medical Aid Society and Stanbic Bank – to collect tax liabilities amounting to US$3 297 103,62.
The balance consisted of penalties for late payment of other obligations, including Pay As You Earn, income tax and withholding tax.
Zimra subsequently slashed RMC’s tax bill to US$1,7 million when Dr Kereke submitted information required for tax assessments.