THE Supreme Court has allowed an appeal by NetOne against a Fiscal Appeals Court subpoena ordering the State-owned telecommunications firm to furnish the court with information related to the import of base station equipment.
The Fiscal Appeals Court order had been granted after rival telecommunications firm, Econet Wireless Zimbabwe, argued that it was being treated in a discriminatory manner by the Zimbabwe Revenue Authority (ZIMRA) in charging duty on capital goods.
Justice Bharatkumar Patel, sitting with Justices Ben Hlatshwayo and Anne-Mary Gowora as a Supreme Court, allowed NetOne’s appeal to be heard.
“…having regard to the time and expense that would be involved in complying with the terms of the subpoena, as was recognised by the court a quo itself, it seems to me that the balance of convenience tilts in favour of the appellants being allowed to appeal without leave on the particular facts of this case,” Justice Patel ruled.
He ordered the registrar of the Supreme Court to set the matter down for hearing on the merits of the appeal at the earliest available date.
On February 9, 2015, the registrar of the Fiscal Appeals Court issued a subpoena directing former NetOne managing director, Reward Kangai, to produce documents relating to customs duty on certain base stations imported by NetOne between October 1998 and November 2013.
Econet required the documents for the purpose of its appeal against the decision by ZIMRA to impose retrospective duty on the company of $15,8 million and a 300 percent penalty of $47,6 million on the importation of base station components from 2009 to 2013.
Econet had originally intended to call a former clearing agent who had cleared components on behalf of NetOne to show that it was being discriminated against in the imposition of duty by ZIMRA.
NetOne, however, objected to the clearing agent being called to testify, while ZIMRA claimed taxpayer privilege and that it was not the custodian of the documents required.
NetOne has challenged the issuance of the subpoena on the grounds that it was invasive and also incompetent in its scope and reach.
However, the Fiscal Appeals Court ruled that the requested documents were relevant to the case between Econet and ZIMRA. It pointed out that NetOne and Kangai were competent and compellable witnesses and that Econet’s right to access to information and right to a fair trial countervailed their right to privacy.
The court pointed out that the documents were necessary to establish whether or not ZIMRA was treating Econet in a discriminatory manner.
Unhappy with the Fiscal Appeals Court order, NetOne approached the Supreme Court for relief. – Fingaz