Tuesday, July 14, 2020

Custom clearing agents score little victory over BURS

Lobatse High Court Judge Justice Reuben Lekorwe has interdicted the Botswana Unified Revenue Services (BURS) from suspending licenses of customs clearing agents and bonded house operators. 

Delivering judgment on Friday, Lekorwe said: “The suspension of the applicants (customs clearing agents) licenses as communicated in the respondents (BURS and Commissioner General of BURS)’ letters dated 3rd February are hereby set aside forthwith pending final determination of the review application launched by the applicants.” 

He added: “It seems to me that a case may be made that in terms of Section 291 of the Act, once the applicants have been licensed and are operating in accordance with the conditions of their licenses, they have the right to operate their businesses without unlawful interference from anyone including the second respondent who conferred their licenses.”

The judge found that it is a right traceable from a statute, the Custom Act. That is the right they would be entitled to protect in the event of any lawful interference, the judge added.  

“If there is to be any interference by the regulator, then such must be sanctioned by law,” said Lekorwe.  

He said although the Act empowers the Commissioners General to suspend or revoke registration or license of an agent, it does not lay down the procedure for such suspension or revocation in Section 289 or anywhere else in the BURS Act.  

“The plain reading of Section 289 does not also, immediately attract an interpretation that the Commissioner General has the power to suspend or revoke registration or license where investigations are pending or contemplated, let alone an indefinite period as he has done in this case,” observed Lekorwe. He said the clearing customs agents had been able to demonstrate ‘prima facie’ an infringement by BURS of their rights to trade as conferred by their licenses. 

“In weighing the potential prejudice that is to befall the parties should the interdict be or not be granted, it appears to me that if the interdict is withheld , the applicants later succeed on review that the second respondent(commissioner general) has no powers of pre investigation suspension of licenses, it is doubtful whether the applicants will be able to pursue their remedies in damages, for their existence is threatened by the accumulation of debts in terms of employees’ salaries and rentals relating to their premises,” said Lekorwe.  

On the other hand, he said: “the respondents stand to suffer less, if the interim interdict is granted, for the first respondent would still be entitled to deal with the applicants appropriately, should the review court find that second respond exercised his statutory powers legitimately. The balance of convenience in my view, favours the applicants.”

On whether the application was urgent or not, the Judge said the customs clearing agents businesses have been closed suddenly and may be, under circumstances least expected. 

“There is no doubt that such is a drastic measure that any authority can take. That the applicants have lost revenue and continue to lose as long as the suspension is operative, cannot be gainsaid,” he said.

The Judge said: “The ripple effect of the closure of their businesses on their employees who are innocent parties in this saga is escapable. It took the applicants some 16 days from the date of the suspension to bring this matter to court which is by no means an easy case.”

He said even prior launching of the application; the customs clearing agents have always demonstrated the intension to protect their interests by engaging the BURS other than the suspensions or at least alleviation of the effects of the suspensions. 

“I loathe to castigate the applicants for first engaging the respondents with a view to resolve their dispute before coming to court. I’m mindful of the authorities that say out of court negotiations cannot excuse the applicants for not approaching the court earlier,” he said. 

Justice Lekorwe added: “Although the respondents are of the view that the applicants’ ear of liquidation is farfetched, I’m unable to agree. The fear of liquidation at the instance of the applicants’ creditors is real and substantial, particularly where the suspension of their licenses is indefinite as in this case. He therefore found that the matter needs to be dealt with on urgency.”

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