Mutharika family move Malawi court to dismiss MRA duty claim: Judge Mwaungulu takes over case from late Manyungwa

Former President Bingu wa Mutharika’s family has asked the High Court to dismiss the case in which Malawi Revenue Authority (MRA) intends to impound 41 vehicles late Mutharika bought whilst in power on duty free, arguing the family should pay duty if they are to use the vehicles.

The family has also faulted the tax-collecting body for directing its demand letters to a wrong party, Professor Peter Mutharika instead of addressing it to the immediate beneficiaries to the deceased estate, arguing “there was no proper procedure and as such the family could not respond to the issues raised in accordance with Deceased Estate and Wills and Inheritance Act of 2012”.

Lawyer representing the family, Chancy Gondwe told the court on Thursday that MRA did not accord Mutharika’s family their constitutional right to be heard and in seizing the motor vehicles in the very short time without affording them sufficient time to appreciate “the sums due and organize the duty charged”.

Gondwe argued: “The Applicant was entitled to fair treatment by the authorities. The letter demanding for payment of duty was dated 18 December, 2012 and the said letter at the time of receipt the 14 day period had already lapsed. The Applicant was not given adequate and reasonable time as the beneficiaries of the deceased estate to assess the position of the Respondent (MRA)”.

Bingu's widow Callista Mutharika next to Peter Mutharika

Bingu’s widow Callista Mutharika next to Peter Mutharika

Counsel for MRA, Christopher Likomwa admitted the letter did not meet the Mutharika family.

Arguments in court was as to whether late Mutharika had disposed of vehicles involuntarily at time of his death, which the family firmly argued are still under the deceased estate and as such the issue of payment of duty does not arise.

Gondwe argued that the said duty MRA is claiming could only be payable when the vehicles are being disposed of voluntarily by the administrator of the deceased estate, adding there has been no disposal of the motor vehicles since Bingu’s death to warrant payment of customs duty.

He said: “The disposal must be voluntary and even if involuntary disposal arise the circumstances regarding the death of the Former president do not qualify to be involuntary disposal. The Respondent (MRA) is not entitled at law to demand payment of the customs duty in the circumstances.

“The Applicant is seeking an order to certiorari quashing the decision of MRA in respect of the decision made requiring payment of customs duty in respect of the 41 motor vehicles imported by the former head of state among other reliefs”.

However, Likomwa failed to substantiate on legal principles if there were any motor vehicles disposed the moment Mutharika died in office in April 2012 due to cardiac arrest.

The matter arose after MRA wrote Peter Mutharika demanding that the customs duty be paid within 14 days.

But the family obtained an injunction, restraining MRA from executing its decision, saying they have a constitutional right to property and freedom from arbitrary deprivation of property

Judge’s Determination

In his determination, Judge Justice Dunstain Mwaungulu demanded MRA to state the law that calls into question the principle of involuntary disposal.

Justice Mwaungulu argued that any ruling he might make might have far reaching consequences and would affect future presidents, cabinet ministers, MPs, Judges who are entitled to duty free status in the event that they die in office.

The Judge has reserved his ruling to July 19th, 2013 as he needs time to address the raised issues, which will have far reaching consequences on Public officers who have imported goods under duty free status provision.

Justice Mwaungulu has taken over the case following the sudden death of Justice Joseph Manyungwa in April this year.

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