Mutharika family wins duty claim case: Judge Mwaungulu rules Malawi Revenue Authority had no authority

Former President Bingu wa Mutharika’s family has won the case against Malawi Revenue Authority (MRA) which had wanted to collect duty on 41 vehicles Mutharika imported on free duty as part of his presidential benefits.

Last year, MRA wrote late Mutharika’s brother, Peter, who is also Democratic Progressive Party (DPP) leader demanding customs duty on the vehicles, arguing the family should pay duty if they are to use them because the family members no longer enjoy the privilege of duty free status following the death of the former president.

But the Mutharika family protested and obtained an injunction restraining the tax-collecting body from impounding the vehicles arguing it had a constitutional right to property and freedom from arbitrary deprivation of property.

The family also faulted the tax-collecting body for directing its demand letters to a wrong party, 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”.

Duwa and Tapiwa Mutharika: Case won
Duwa and Tapiwa Mutharika: Case won

Court Ruling

And in is 32 paged ruling on the matter, Justice  Dunstain Mwaungulu said the decisions and action s by the tax body to collect duty and seize the said vehicles “were in circumstances without authority, unfair and unreasonable”.

Justice Mwaungulu said there wasn’t any crime Mutharika committed in importing the vehicles, adding he was entitled under Presidential Salaries and Benefits Act therefore MRA has no powers to demand duty.

The judge also dismissed MRA’s argument that Mutharika involuntary disposed the vehicles following his death in April, 2012, saying there is no law which assents to that, adding the Presidents (Salaries and Benefits) Acts is silent on what happens to the property bought on free duty for personal use.

Justice Mwaungulu said late Mutharika’s family is not entitled to pay duty since it is just the beneficiaries, which based on Customs Procedure Code 4000.1 is not liable to pay duty.

He then said the MRA’s Commissioner General should have investigated if  it were empowered to impose duty on vehicles purchased by the President before taking action, which he said was misguided and unlawful.

Lawyer Chancy Gondwe: Represented Mutharika family
Lawyer Chancy Gondwe: Represented Mutharika family

“I think this is a very unusual argument. First, it cannot be that a president can by death be voluntarily disposing of goods. Secondary, even if we accept that by his death he is doing that, it would be him, according to the Customs Procedure Code 4000.1 that would be liable to pay duty, not the person who receives the goods by the President’s disposal by death.

“I don’t think, however, for once that the President by death disposes of anything as to activate the Customs Procedure Code 4000.1. Property, upon death, devolves because of death and is not disposed voluntarily by the deceased,” argues Justice Mwaungulu.

Mwaungulu said Presidents are sovereign to whom citizens pay the taxes therefore cannot pay taxes to himself, and that Mutharika was entitled to purchase vehicles for personal use as stipulated by law.

“The affidavits sworn against the application and the arguments raised by counsel for the Commissioner General show, and understandably so, a misapprehension of the sovereign who the President is and a misunderstanding of the Custom and Exercise Act on which Commissioner General based the actions the citizen complains about,” said Justice Mwaungulu.

The judge also faulted the revenue collector for addressing its case to Professor Peter Mutharika on the assertions that he was the personal representative of his late brother, arguing it has not basis or demonstrations that the young Mutharika was the administrator of his brother’s estate.

Mwaungulu therefore said there is a need to examine the actions of MRA’s Commissioner General in the effort to collect the claimed duty, saying “I have been at pains to understand why, in the absence of crime by the former president and personal representative, the administrator, the Commissioner General of MRA could seize the vehicles”.

He added: “The hallmark that runs right through the section is that the goods must be ones to which an offence against the customs laws has been committed. The Commissioner General of the Malawi Revenue Authority has not shown that there was any crime against the customs laws. The Commissioner General of the Malawi Revenue Authority had no authority, without an offence against the customs laws committed, to seize the goods”.

Justice Mwaungulu then dismissed the claims by MRA that, it owned the vehicles since were bought on duty free, adding the institution acted unlawfully and had flouted procedures in its quest to collect the demanded duty, adding there is no justification in its demands.

Post-case reactions

Lawyer representing the family, Chancy Gondwe was all smiling and said following the court ruling, MRA will have to meet all legal cost incurred including the accommodation fees late Mutharika’s daughter, Tapiwa-who was absent at the court-incurred each time she attended court sessions as a plaintiff.

Counsel for MRA, Christopher Likomwa said they will have to study the ruling first before making a decision.

Peter Mutharika’s Public Relations group ‘Pursuit of Happiness’ spokesperson told Nyasa Times: “Although piles of court cases have been planned  to ruin the reputation of the DPP and the Mutharika family, they are being proven null and void and without grounds.”

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


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