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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT
CASES NO.: A 295/2013 / A 21/2015; A197/2015, A 234/2015,
A 158/2016 and A 184/2016
In the matter between:
KAMBAZEMBI GUEST FARM CC T/AWATERBERG WILDERNESS APPLICANT
and
THE MINISTER OF LAND REFORM 1ST RESPONDENTTHE MINISTER OF AGRICULTURE, WATERAND FORESTRY 2ND RESPONDENTTHE MINISTER OF FINANCE 3RD RESPONDENTTHE LAND REFORM ADVISORY COMMISSION 4TH RESPONDENT THE COMMISSIONER FOR INLAND REVENUE 5TH RESPONDENTTHE ATTORNEY GENERAL OF NAMIBIA 6TH RESPONDENT
Neutral citation: Kambazembi Guest Farm CC T/A Waterberg Wildnerness v The
Minister of Land Reform and 5 Others (A197/2015) [2016]
NAHCMD 366 (17 November 2016)
Coram: Ueitele J et Masuku J
REPORTABLE
Heard: 1 September 2016
Delivered: 17 November 2016
Flynote: Constitutional law - Legislation - Interpretation of -Interpretation of - Of
constitution of a State - Not to be given narrow, mechanistic, rigid and artificial
interpretation - Rather to be interpreted so as to enable it to play creative and dynamic
role in expression and achievement of ideals and aspirations of nation. - Where
legislative provision reasonably capable of meaning placing it within constitutional
bounds, it should be preserved.
Constitutional law - Constitution – Namibian Constitution - Parliament - Powers of -
Parliament subject in all respects to provisions of Constitution and has only the powers
vested in it by Constitution expressly or by necessary implication. Meaning of Article
63(2)(b) of the Namibian Constitution.
Constitutional law - Constitution - Namibian Constitution - Parliament - Powers of -
Power to delegate legislative authority - Though Parliament may delegate authority to
make subordinate legislation within the framework of a statute under which the
delegation is made, it may not assign plenary legislative power to another body or
abdicate its law making authority.
Statute - Agricultural (Commercial) Land Reform Act, 1995 (Act 6 of 1995) – Validity of
section 76 to 80 – Validity of Land Valuation and Taxation Regulations- promulgated
under the Act.
Review - When application for review to be brought - To be brought within reasonable
time in absence of statutory period of prescription - Such question one of fact, and not
discretion - Delay of nearly 9 years in bringing application for review of assessment to
pay land tax grossly unreasonable.
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Costs - Constitutional litigation - Proper approach - Primary consideration being whether
order will promote advancement of constitutional justice - Court to have regard to
whether litigation undertaken to assert constitutional right and whether litigation
undertaken in improper fashion - Whether parties acting in own or in public interest
irrelevant.
Summary: On 22 August 2013 the applicant launched an application (under case
number A 295/2013) in this court in terms of which it, amongst other reliefs, it sought an
order to have sections 76 to 80 of the Agricultural (Commercial) Land Reform Act, 1995
and the regulations made under that Act (issued under Government Notice 120 of 18
June 2007) declared inconsistent with Article 63(2), 8, 10, 12(1)(a), 18 and 22 of the
Namibian Constitution and therefore invalid. The Minister of Land Reform gave notice
that it will oppose that application.
Whilst that application was still pending before this court the applicant, citing the same
respondents, brought another five applications being: (a) An application brought under
case number A 21/2015 in terms of which application the applicant seeks an order
reviewing and setting aside of the land tax assessment for the financial year 2013/2014
and which was payable on 28 February 2015, and in the alternative, to have the decision
to assess such taxes, declared invalid and unconstitutional. (b) An application brought
under case number A 197/2015 in terms of which application the applicant seeks an order
reviewing and setting aside of the land tax assessment for the financial year 2014/2015
and which was payable on 30 August 2015 and in the alternative to have the decision to
assess such taxes declared invalid and unconstitutional. (c) An application brought under
case number A 234/2015 in terms of which application the applicant seeks an order
declaring the amendment of Regulation 17(3) of the regulations made under the
Agricultural (Commercial) Land Reform Act, 1995 (issued under Government Notice 120
of 18 June 2007) void. (d) An application brought under case number A 158/2016 in terms
of which application the applicant seeks an order declaring the amendment of Regulation
17(3) void and also declaring the assessment for the payment of land tax for the financial
year 2015/2016 null and void. (e) An application brought under case number A 184/2016
in terms of which application the applicant seeks an order declaring the notice issued by
the first respondent dated 1 June 2016, in terms of regulation 64 of the regulations a
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nullity.
Held that the Constitution is located in a history which involves a transition from a society
based on division, injustice and exclusion from the democratic process to one which
respects the dignity of all citizens, and includes all in the process of governance. As such,
the process of interpreting the Constitution must recognise the context in which we find
ourselves and the Constitution's goal of a society based on democratic values, social
justice and fundamental human rights.
Held further that when a Court interprets and applies a constitution, a 'purposive' and it
requires that a Court has regard to 'the legal history, traditions and usages of the country
concerned, if the purposes of its constitution must be fully understood. That
notwithstanding, the words used, the legal history, the traditions/usages, norms, values
and ideals must never tilt the scales in favour of any practice or interpretation that defeats
the ultimate aim and purpose of the Constitution, namely the attainment of the
fundamental values (i.e. a democratic, equitable society and justice for all) which the
Constitution is designed to achieve.
Held further that the National Assembly, by section 76 of the Act, did what it was
empowered to do by Article 63(2) of the Constitution, namely enabling or allowing or giving
its express consent to the Minister responsible for Land Reform to raise revenue for the
purpose of funding land reform. The court also found that the powers conferred on the
Minister responsible for Land Reform to raise revenue under s 76 of the Act can only be
performed within the limits set by the Act and are therefore regulatory and not plenary.
Section 76 does therefore not violate the principles of separation of powers as contained
in our Constitution.
Held further that in a modern State detailed provisions are often required for the
purpose of implementing and regulating laws and Parliament cannot be expected to
deal with all such matters itself. The court found that there is nothing in the
Constitution, which prohibits Parliament from delegating subordinate regulatory
authority to other bodies. The power to do so is necessary for effective law-making. It is
implicit in the power to make laws for the country and that under our Constitution
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Parliament can pass legislation delegating such legislative functions to other bodies.
The court was of the view that there is, however, a difference between delegating
authority to make subordinate legislation within the framework of a statute under which
the delegation is made, and assigning plenary legislative power to another body.
Held further that s 76B does not delegate to the Minister the power to legislate or to make
law but confers on the Minister the authority or discretion to execute the law made by
Parliament. The court concluded that Parliament cannot be expected to deal with all
details of implementing legislation and involve itself in the minute details of the Act and
that there was nothing in the Constitution which prohibits Parliament from delegating
subordinate regulatory authority to the Minister. Section 76B was therefore held not to be
unconstitutional. The court further found that sections 77 to 80 of the Act are not
inconsistent with the Constitution.
Held further that the doctrine of vagueness is founded on the rule of law, which, as pointed
out earlier in the judgment, is a foundational value of our constitutional democracy. It
requires that laws must be written in a clear and accessible manner. It concluded that what
is required is reasonable certainty and not perfect lucidity. The court found that
Regulations 4(2) and (4) do with reasonableness certainty convey to the Minister and the
public what is expected of them. The court thus concluded that Regulations 4(2) and (4)
cannot be said to be vague and are therefore not inconsistent with the Constitution.
Held further that Regulations 4(9)(b), (13) and (14) were enacted on the authority of
Parliament and expressly authorise the valuer to further delegate the powers conferred
on him or her by the regulations . The court further found that Regulations 4(9)(b), (13)
and (14) do not violate the delegatus delegare non potest’ principle and are not
inconsistent with the common law, the rule of law or the Constitution.
Held further that the valuation court is a court of law but a tribunal. Tribunals, the court
held are informal investigative or quasi-judicial bodies which deal almost exclusively
with administrative law, and usually on a highly specialized level and that a tribunal, by
definition, should possess the following characteristics: the ability to make final, legally
enforceable decisions. Secondly, be independent from any departmental branch of
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government. Thirdly, the nature of the hearings conducted in tribunals should be both
public and of a judicial nature, while not necessarily subject to the stringent formalities
of a court of law. Fourthly, tribunal members should be in possession of specific
expertise, in the field of operation of the tribunal as well as judicial expertise. Fifthly,
there should be a duty on tribunals to give clear reasons for their decisions, and lastly
that there should be a right of appeal to a higher court on disputes regarding points of
law. The court found that the valuation court established by the Taxation Regulations
conforms to all these characteristics and is thus a tribunal as contemplated Article 12(1)
(a) of the Constitution and that Regulation 8 of the Taxation Regulations is not
inconsistent with the Constitution.
Held further that Article 12(1)(a) of the Constitution simply entitles a person to have his
or her civil obligations determined in a fair manner by a competent and independent
tribunal. The court further found that the central principles governing the proceedings of
administrative tribunals are flexibility and fairness, which are both emphasized at
common law. It was held that Regulation 13(1), simply restates the principle of flexibility
and thus fortifies the right to a fair hearing. Regulations 13(1), 14(1) and 14(3)(b) were
found not to be inconsistent with the Constitution.
Held further that Regulation 15 clearly does not place any impediment in the way of any
aggrieved person to approach the High Court for review of the valuer’s exercise of his or
her discretionary powers nor was there anything in in that Regulation which suggests
that the inherent jurisdiction of the High Court to grant appropriate relief is excluded.
The court therefore rejected the suggestion that Regulation 15(b) is inconsistent with
the Constitution.
Held further, that the delay of nearly 9 years in some instance and 11 years in other
instances is grossly unreasonable and that the delay in this matter is a sufficient ground
on its own to refusing to hear the application for the review of the administrative
decision and actions impugned by the applicant.
Held further with respect to the application launched under case number A 21/2015 that
the allegation that the Minister failed to comply with the rule of law, constitutional
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legality, including rationality is a hollow statement, as it does not tell the Minister or
direct the court as to how the assessment (which is sanctioned by law) contravenes the
rule of law, constitutional legality or how the assessment is irrational. The court
concluded that it was impossible for it to make a decision as to the breach of the rule of
law or constitutional legality alleged without having been apprised of the facts on which
the allegation is based. The court furthermore concluded that the applicant has failed to
discharge the onus resting on it to prove that the assessment to pay land tax for the
period 2013/2014 was in breach of the rule of law, constitutional legality or is irrational.
Held further that there is no general rule that all provisions with respect to time are
necessarily obligatory, and that failure to comply strictly therewith results in the
nullification of all acts done pursuant thereto. The real intention of the legislature should
in all cases be enquired into and the reasons ascertained as to why the legislature
should have wished to create a nullity. The court found that a value - coherent and
purposive interpretation of the Regulation points to the conclusion that it is also possible
to interpret the Regulations as providing for a valuation roll which was approved by the
valuation court to remain valid beyond the five year period set out in the Regulations
until it is superseded (the synonym for superseded is succeeded) by another main
valuation roll approved by the valuation court. The court thus found that the Minister of
Land Reform did not act ultra vires when he used the 2007 to 2013 to assess land tax
for the 2013/2014, 2014/2015, 2015/2016 financial years. The accordingly dismissed
the applications launched under case number A 21/2015, A 197/2015, A 234/2015, A
158/2016 and A 184/2016.
Held finally that in exercising the court’s discretion with respect to cost, the court will
take into consideration the general rule applied by the South African Constitutional
Court namely that in constitutional litigation, an unsuccessful litigant ought not,
ordinarily, to be ordered to pay costs. The court found that in this consolidated matters
the only application which involved genuine and substantive constitutional
considerations is the application brought under case number A 295/2015. The
remaining five applications did not, in the court’s, opinion involve constitutional matters
and for that reason, the unsuccessful applicant was ordered to pay the costs in those
applications.
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______________________________________________________________________
ORDER______________________________________________________________________
1 The application launched under case number A 295/2013 is dismissed and we
make no order as to costs in respect of the application.
2 The application launched under case number A 21/2015 is dismissed with costs.
3 The application launched under case number A 197/2015 is dismissed with costs.
4 The application launched under case number A 234/2015 is dismissed with costs.
5 The application launched under case number A 158/2016 is dismissed with costs.
6 The application launched under case number A 184/2015 is dismissed with costs.
7 The costs referred to in paragraphs 2 to 6 of this order are to include the costs of
one instructing counsel and two instructed counsel.
JUDGMENT
UEITELE J: (MASUKU J concurring)
Introduction
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[1] Moseneke DCJ1, is reported to have said that ‘not many people relish paying
taxes’. He furthermore quoted Thomas Jefferson as having observed that:
'To compel a man [or woman] to furnish contributions of money for the propagation of
opinions which he [or she] disbelieves … is sinful and tyrannical.'
The learned judge proceeded and said that ‘whatever one's temperament on them [i.e.
the payment of taxes] may be, taxes seem certain and inconvenient.’
[2] The dispute before us concerns the ‘inconvenience’ caused by the levying of land
tax on the applicant. The applicant, through its sole member a certain Mr. Joachim Rust,
feels that it has fallen victim to an invalid land tax regime and wants it set aside by the
court.
Background
[3] The applicant in this matter is a close corporation with its principal place of
business situated at Farm Otjosongombe No 327, Otjiwarongo District, Republic of
Namibia. It owns agricultural land as envisaged in the Act. A certain Mr. Joachim Rust
(who deposed to the applicant’s affiavit in support of this application) is the applicant's
sole member and together with his wife manages the applicant's day to day business.
According to Mr Rust, in the founding afffidavit, the applicant acquired agricultural land
in 1999.
[4] During July 2013, the applicant received an assessment from the first
respondent’s Ministry (I will, in this judgment, for ease of reference refer to the first
respondent as the Minister of Land Reform) for payment of land tax for the financial
year 2012/2013. In terms of that assessment the applicant had to pay the tax on or
before 31 July 2013. On 22 August 2013 the applicant launched an application (under
case number A 295/2013) in this court in terms of which it, amongst other reliefs it
seeks, sought an order to have sections 76 to 80 of the Agricultural (Commercial) Land
1 In the matter of South African Reserve Bank and Another v Shuttleworth and Another 2015 (5) SA 146 (CC).
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Reform Act, 19952 and the regulations made under that Act (issued under Government
Notice 120 of 18 June 2007) declared inconsistent with Article 63(2), 8, 10, 12(1)(a), 18
and 22 of the Namibian Constitution and therefore invalid.
[5] The Minister of Land Reform gave notice that it will oppose that application.
Whilst that application was still pending before this court the applicant, citing the same
respondents, brought another five applications being:
(a) An application brought under case number A 21/2015 in terms of which
application the applicant seeks an order reviewing and setting aside of the land
tax assessment for the financial year 2013/2014 and which was payable on 28
February 2015, and in the alternative, to have the decision to assess such taxes,
declared invalid and unconstitutional.
(b) An application brought under case number A 197/2015 in terms of which
application the applicant seeks an order reviewing and setting aside of the land
tax assessment for the financial year 2014/2015 and which was payable on 30
August 2015 and in the alternative to have the decision to assess such taxes
declared invalid and unconstitutional.
(c) An application brought under case number A 234/2015 in terms of which
application the applicant seeks an order declaring the amendment of Regulation
17(3) of the regulations made under the Agricultural (Commercial) Land Reform
Act, 1995 (issued under Government Notice 120 of 18 June 2007) void.
(d) An application brought under case number A 158/2016 in terms of which
application the applicant seeks an order declaring the amendment of Regulation
17(3) void and also declaring the assessment for the payment of land tax for the
financial year 2015/2016 null and void.
(e) An application brought under case number A 184/2016 in terms of which
application the applicant seeks an order declaring the notice issued by the first
2 Act No 6 of 1995.
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respondent dated 1 June 2016, in terms of regulation 64 of the regulations a nullity.
[6] The hearing of application instituted under case number A 197/2015 was
allocated to me whereas the other matters were allocated to two other judges. On 17
September 2015 I heard arguments in respect of that application (i.e. the application
instituted under case number A 197/2015) and at the conclusion of hearing the
application I promised to deliver judgment by 28 January 2016. In the process of
preparing judgment in that matter, I was concerned about the wisdom of handing down
a judgment in that matter whilst the challenge on the constitutionality of the sections 76
to 80 of the Act was still pending. I brought my concerns to the attention of the head of
court and the parties and after consultations (between the parties and the court) the
parties agreed that:
(a) All the matters can be heard together and the main application, relating to the
constitutionality of sections 76 to 80 of the Act and the Regulations made under
the Act, to form the basis of the hearing;
(b) That the judgment in the application under case number A 197/2015
simultaneously with judgment on the other consolidated applications; and
(c) That the consolidated application be heard on 1 September 2016.
[7] The consolidated applications were heard on 1 September 2016 by Mr Justice
Masuku and myself. In this judgment we will therefore mainly (without necessarily
omitting to deal with some of the ancillary reliefs sought in the applications serving
before us) deal with the constitutionality of sections 76 to 80 of the Agricultural Land
Reform Act, 1995.
Historical background to land ownership in Namibia
[8] In order to understand the complexity of this issue, and the historical background
against which the payment of land tax was introduced in this country we consider it
necessary to, albeit briefly, refer to the history of the ownership of land in Namibia prior
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to independence. Namibia became a German Protectorate in 1884 and the colonial
administration negotiated a number of land purchases and protection treaties with local
leaders to give the German Government and German companies' rights to use land. It is
recorded in historical annals3 that by 1902 only 6% of Namibia’s total land service area
was freehold farmland while 30% was formally recognized as communal land.
[9] The historical annals furthermore record that when the indigenous leaders
realized that they were being dispossessed of their land, they attempted to reclaim it
and that those attempts led to war (between the years 1904 and 1907) between the
German colonial forces on the one hand and the Herero and Nama on the other hand.
After that war (in which the Hereros and Namas were defeated) large tracts of land were
confiscated by the German colonial government by proclamation.4 By 1911 Namibia’s
total land surface area which made up communal land had shrunk from 30% to a mere
9% while the commercial (free hold) farm land had increased from 6% to 21 %.5
[10] It is further common historical knowledge that after the First World War, Germany
lost all its colonies (including Namibia) and Namibia became a Protectorate of Great
Britain with the British King’s mandate held by South Africa in terms of the Treaty of
Versailles. South Africa did not, as it was expected of it, administer Namibia for the
benefit of its inhabitants. During the 1920s South Africa instead followed a policy of
settling poor South African whites in Namibia. In order to achieve its policy of settling
poor white South Africans in Namibia, the South African Administration introduced
Proclamation 11 of 1922 which amongst other things authorized the Administrator
General to set aside areas as ‘native reserves’ for the sole use and occupation of
natives generally or for any race or tribe in particular. By 1925 a total of just 2 813 741
hectares of land south of the Police Zone accommodated a black population of 11 740
people while 7 481 371 hectares of land (880 freehold holdings) was exclusively
available for 1 106 white settlers.6 The process of allocating farms to whites was 3 See John Mendelsohn et al Atlas of Namibia: A Portrait of Land and its People. David Phillips
Publishers, Cape Town, 2003 at 134-137. This court in the matter of Kessl v Minister of Land Resettlement and Others and Two Similar Cases 2008 (1) NR 167 (H) cursorily dealt with the history of land ownership in Namibia.
4 United Nations Institute for Namibia. 1988. Namibia: Perspectives for National Reconstruction and Development. At p 37.
5 John Mendelsohn supra.6 Legal Assistance Centre: Our Land We Farm: An analysis of the Namibian Commercial Agricultural
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completed in 1960, by that time Namibia had 5 214 farming units (all in the hands of
white settlers) comprising approximately 39 million hectors of land,7 and this status
proceeded until independence in 1990.
[11] At independence in 1990, the Government of Namibia thus inherited two
agricultural sub sectors comprising of communal and commercial land, which divided
Namibia in terms of land utilization and also reflected the racial division of the country,
with most whites (who only make up 6% of the Namibian population) as freeholders of
land and blacks (who make up 87, 5 % of the Namibian population),8 as communal land
holders. There was usually ownership of land in the freehold system in commercial
farming areas, while communal land holders did not have any title to their land.
[12] At independence in 1990, of the 82.4 million hectares of surface land area in
Namibia, 41% is described as communal land (making up approximately 33, 8 million
hectares of land and on which more than 80% of the Namibian population lived), while
44% of the surface land area makes up commercial farms (making up approximately 39
million hectares of land on which less than 20% of the Namibian population lived) and
proclaimed towns (making up approximately 9.6 million hectares of land) made up 11%
of the surface land area. White Namibians enjoy one of the world’s highest standards of
living while the majority of black Namibians being amongst the poorest of the world’s
populations and this made Namibia one of the most unequal societies in the world. This
inequality is deeply rooted in land ownership.9
[13] After independence, the Government of the Republic of Namibia (the
Government) had a constitutional duty and mandate to address the inequitable access
to land ownership. The Government thus held a land conference in 1991 in Windhoek.
The land conference adopted a policy stating that rectifying specific historical wrongs by
means of seizing land from particular people of European descent who acquired land
under successive German or South African colonial powers was not to be attempted.
The conference instead recommended (which recommendation was adopted by the
Land Reform Process. 2005 at p 2.7 Legal Assistance Centre: supra.8 The statics are as per the Namibia Demographics Profile of 2014. 9 Legal Assistance Centre: supra.
13
new government) a policy aimed at redressing Namibia’s historical iniquitous land
ownership through national reconciliation and in accordance with the provisions of the
Article 16 of the Namibian Constitution.
[14] Four years10 after the land conference was held, the Government introduced the
first piece of legislation on land reform namely the Agricultural (Commercial) Land
Reform Act, 1995, (the Act) which amongst other things regulates the purchase (on the
basis of 'willing buyer/willing seller' principle) and redistribution of privately owned farms
(agricultural land). The Act also makes provision for the appointment, composition,
powers and duties of a Land Reform Advisory Commission, (the fourth respondent in
this application. I will in this judgment refer to it as the Commission). In the Kessl
matter,11 Muller J commented that the Agricultural (Commercial) Land Reform Act,
1995 is the product of an intensive effort by the Namibian Government to address the
need for land reform.
[15] Historically Namibia has had no tax on agricultural land, but in 2001 the
Government, as a means to raise revenue to fund the land reform process, by the
Agricultural (Commercial) Land Reform Second Amendment Act, 200112 introduced land
tax.
[16] In pursuance of s 77 of the Act, the Minister responsible for land reform, passed the
Land Valuation and Taxation Regulations which were published under Government Notice
Number 259 of 29 December 2001. The first commercial agricultural land valuation
process was completed during the year 2004 and the first collection of land tax on
commercial agricultural land was to take place at the end of the 2004/2005 tax year (i.e.
31 March 2005). The due date for the payment of land tax was however, extended to 31
August 2005.
[17] The Land Valuation and Taxation Regulations of 2001 were, however, repealed
10 The Legal Assistance Centre: (supra) at p 5 ascribes the delay to the little capacity, that existed within the new Government of the Republic of Namibia to deal with land reform management, land reform planning and drafting legislation on land reform.
11 Kessl v Minister of Land Resettlement and Others and Two Similar Cases 2008 (1) NR 167 (H) at p 173.
12 Act No. 2 of 2001.
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and replaced by the Land Valuation and Taxation Regulations of 2007, which were
published under Government Notice Number 120 of 3 July 2007 (I will, in this judgment,
refer to these Regulations as the ‘Taxation Regulations’). Regulation 21(1) of the Taxation
Regulations, amongst other things, provides that the Commissioner of Inland Revenue,
must from the valuations supplied by the Minister of Land Reform, cause an assessments
to be made of the land tax payable by owners of agricultural land and regulation 21(2)
requires the Commissioner of Inland Revenue to, where an assessment has been made
under regulation 21, serve a notice of assessment on the owner concerned, stating-
(a) the amount of the land tax payable on each piece of land and the total of such
amounts; and
(b) the date on which land tax is due and payable in terms of regulation 23. (Emphasis
supplied)
The present dispute
[18] The Minister of Land Reform, in pursuance of s 77 of the Act promulgated the
Taxation Regulation which imposed a land tax to be paid by every owner of agricultural
land on the value of such land. The regulations also set out the procedure for levying the
land tax. The Commissioner of Inland Revenue, on the basis of valuations contained in a
valuation roll (approved for the period 2007 to 2013) assessed the land tax payable by the
applicant. Mr Rust alleges that the applicant has since the finnacial year 2004/2005 paid
land tax. He alleges that the last land tax paid by the applicant was paid on 26 June 2013.
[19] Although Mr Rust alleges that the applicant has, since the 2004/2005 finnacial year
been paying land tax, the applicant on 22 August 2013 launched the application under
case number A 295/2013 challenging the constitutionality of ss 76 to 80 of the Act and
also demanding a refund of the land taxes which the applicant alleges it paid since the
2004/2005 financial year. The applicant does not, through the affidavit of Mr Rust, tell the
Court what has led to change of heart. I will therefore proceed to first deal with the
application which the applicant launched under case number A 295/2013.
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THE APPLICATION UNDER CASE NUMBER A 295/2013
The basis on which the legislative provisions are impugned.
[20] In the notice of motion in respect of case number A 295/2013, the applicant seeks
no less than 38 prayers divided under 19 sub-paragraphs headed alphabetically from
paragraph A to pargraph N. The first sub-paragraph (i.e A) of the notice of motion is titled:
‘Declaring the following legislative provisions to be in valid’. Under this sub-paragrph the
applicant sets out the sections of the Act and regulations made under the Taxation
Regulations which he wants declared invalid. The bases on which the applicant impugns
those legislative provisions are the averments that:
(a) Sections 76 to 80 of the Act:
(i) In terms of Article 63(2)(b) of the Namibian Constitution, the power of taxation is a
legislative power reserved for the National Assembly. It is a power peculiar to
elected legislative bodies and that the executive has no independent taxing power.
On that basis, sections 76 to 80 of the Act are inconsistent with the Constitution
because they provide for legislation by the Executive and an impermissible
delegation by the National Assembly of its legislative authority, which is inconsistent
with Article 63(2) of the Namibian Constitution and the constitutional imperative of
the separation of powers.
(ii) The applicant furthermore contends that section 76B(1) –is unconstitutional
because:
The exemption from land tax is not done by the National Assembly but is
allegedly impermissibly delegated to the Minister;
Section 76B(1)(a) relies on Article 23 for the power of the Minister to exempt
certain categories of persons as contemplated in Article 23 of the Namibian
16
Constitution from the payment of land tax. Any exemption granted in terms
of Article 23(2) should be effected by way of legislation enacted by
Parliament and cannot be performed by (or delegated to) any other body or
person. Section 76B(1)(a) thus violates the right to equality and freedom
from discrimination entrenched under Article 10 of the Namibian;
It violates Article 22(b) of the Constitution in that it does not specify the
ascertainable extent of any limitation of the rights under Article 10 as may be
permissible in terms of section Article 23(2) of the Constitution. In violation
of Article 22(b) - read with Article 23(2) - the (not ascertainable) extent of
such limitation is entirely left to the discretion of the Minister.
It failed to come into operation because the section 77 procedure was not
invoked. The Regulations do not provide for any procedure for the making of
any application for an exemption as contemplated by section 76B read with
section 77(1)(b) or any form to be used for that purpose as contemplated by
section 77(1)(a).
(b) The challenge of the regulations.
[21] The applicant challenges the validity of the Taxation Regulations in their entirety
because, so it alleges, they were issued under sections 76 and 77 which are in law invalid.
The applicant furthermore contends that the core component of the land tax – being the
taxable value of the land is determined by the Minister of Land Reform in terms of the
regulations. The applicant further contends that the content of the regulations
demonstrates the extent to which the National Assembly impermissibly delegated the
imposition of land tax to the Executive and in terms of which the Minister (and not the
National Assembly) determines the basis of land values.
[22] As it is clear from what I have stated above, the imposition of the land tax is
authorised by an Act of Parliament. The applicant however contends that the sections in
the Act dealing with imposition and determination of the land tax are inconsistent with
Article 63(2) of the Constitution. We must thus determine whether Article 63(2) of the
Constitution authorizes the National Assembly to enact sections 76 to 80 of the Act. I
17
am of the view that for the purpose of this inquiry, we must ascertain the proper
meaning of the relevant provisions in the Act and the Constitution of Namibia, in
particular Article 63(2) of the Constitution. I start with a consideration of the principles,
which are applicable to the interpretation of the Constitution.
Interpreting statutory provisions under the Constitution
[23] I digress to observe that interpretation, whether statutory or constitutional deals with
linguistic expressions. Statutory interpretation thus has as its object to construct the
meaning of a text within the context of adjudication. The meaning which the adjudication
process seeks to construct from a given text must as of necessity be performed within the
context of the document in which the text appear. With this prelude, I now proceed to
consider some of the principles, which are in my view relevant to the task we have to
perform.
[24] Speaking of the Constitution of South Africa, the late former Chief Justice of South
Africa, Mr Justice Langa observed that the South African:
‘Constitution is located in a history which involves a transition from a society based on
division, injustice and exclusion from the democratic process to one which respects the
dignity of all citizens, and includes all in the process of governance. As such, the process of
interpreting the Constitution must recognise the context in which we find ourselves and the
Constitution's goal of a society based on democratic values, social justice and fundamental
human rights. This spirit of transition and transformation characterises the constitutional
enterprise as a whole.’13
[25] These words by Mr Justice Langa are equally true for Namibia, as the preamble to
the Namibian Constitution and Article 1 (1) wills Namibia to be a State ‘… founded on the
principles of democracy, the rule of law and justice for all.’ It thus follows that when
interpreting the text of the Constitution, the Courts must do so keeping in mind the
fundamental values which the Constitution is designed to achieve.
13 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC).
18
[26] In the matter of S v Acheson14 the Supreme Court of Namibia opined that:
‘…the Constitution of a nation is not simply a statute which mechanically defines the
structures of government and the relations between the government and the governed. It is
a `mirror reflecting the national soul', the identification of the ideals and aspirations of a
nation; the articulation of the values bonding its people and disciplining its government. The
spirit and the tenor of the Constitution must therefore preside and permeate the processes
of judicial interpretation and judicial discretion.’
[27] In the matter of Cultura 2000 and Another v Government of the Republic of
Namibia and Others15 the Supreme Court held that the Constitution must be:
'…broadly, liberally and purposively be interpreted so as to avoid the ''austerity of tabulated
legalism'' and so as to enable it to continue to play a creative and dynamic role in the
expression and the achievement of the ideals and aspirations of the nation, in the
articulation of the values bonding its people and in disciplining its Government.'
[28] I am mindful of the decision in the matter of Chairperson of the Immigration
Selection Board v Frank and Another16 where the late Mr. Justice O'Linn after a survey
of some authorities said:
‘In my respectful view, the starting point in interpreting and applying a constitution, and
establishing the meaning, content and ambit of a particular fundamental right, or
freedom, must be sought in the words used and their plain meaning …It follows from the
above that when a Court interprets and applies a constitution and adheres to the
principles and guidelines above-stated, a 'purposive' interpretation also requires that a
Court has regard to 'the legal history, traditions and usages of the country concerned, if
the purposes of its constitution must be fully understood'.
To sum up: The guideline that a constitution must be interpreted 'broadly, liberally and
purposively', is no license for constitutional flights of fancy. It is anchored in the
14 1991 (2) SA 805 (NmSC) at 813A-C per Mohamed CJ.15 1993 NR 328 (SC) at 340B-D.16 2001 NR 107 (SC).
19
provisions of the Namibian Constitution, the language of its provisions, the reality of its
legal history, and the traditions, usages, norms, values and ideals of the Namibian
people. The Namibian reality is that these traditions/usages, norms, values and ideals
are not always 'liberal' and may be 'conservative' or a mixture of the two. But whether or
not they are 'liberal', 'conservative' or a 'mixture of the two, does not detract from the
need to bring this reality into the equation when interpreting and applying the Namibian
Constitution.’
[29] I have no qualms with the observation made by Mr. Justice O'Linn that the
starting point in interpreting and applying a constitution, and establishing the meaning,
content and ambit of a particular fundamental right, or freedom, must be sought in the
words used and their plain meaning and that courts must have regard to ‘the legal
history, traditions and usages of the country concerned, if the purposes of its
constitution must be fully understood' and that the legal history, the traditions/usages,
norms, values and ideals (which in the words of Justice O’Linn are not always 'liberal'
and may be 'conservative' or a mixture of the two) must always be brought into the
equation when interpreting and applying the Namibian Constitution.
[30] But in my view the words used, the legal history, the traditions/usages, norms,
values and ideals must never tilt the scales in favour of any practice or interpretation
that defeats the ultimate aim and purpose of the Constitution, namely the attainment of
the fundamental values (i.e. a democratic, equitable society and justice for all) which the
Constitution is designed to achieve.
[31] I say so for the reason that it is possible that the legal history, norms, values and
ideals of the past may not have been steeped in constitutional foundations and ethos.
The court must, for that reason, be astute not to give their imprimatur to what are
otherwise values, traditions, norms and values of long standing which are however, not
consonant with constitutional ethos for no other reason than that they have a long
connection with the country’s past, when they carry the potential, if not the reality of
running counter to the new constitutional ethos, ideals and values which are
encapsulated in the constitution. In other words, the court should not allow the vestiges
of the past to form part of the new constitutional values if they are inconsistent with the
imperatives of the new dawn ushered in by the Constitution.
20
[32] In view of the objectives of the South African Constitution, Mr. Justice Langa
observed that the Constitution requires judicial officers to read legislation, where
possible, in ways which give effect to its fundamental values. He said:
‘Consistently with this [i.e. the injunction that judicial officers read legislation, where
possible, in ways which give effect to the Constitution’s fundamental values], when the
constitutionality of legislation is in issue, they (judicial officers) are under a duty to
examine the objects and purport of an Act and to read the provisions of the legislation,
so far as is possible, in conformity with the Constitution… Accordingly, judicial officers
must prefer interpretations of legislation that fall within constitutional bounds over those
that do not, provided that such an interpretation can be reasonably ascribed to the
section.’
[33] Mr. Justice Langa, however, proceeds to caution as follows:
‘Limits must, however, be placed on the application of this principle. On the one hand, it
is the duty of a judicial officer to interpret legislation in conformity with the Constitution so
far as this is reasonably possible. On the other hand, the Legislature is under a duty to
pass legislation that is reasonably clear and precise, enabling citizens and officials to
understand what is expected of them. A balance will often have to be struck as to how
this tension is to be resolved when considering the constitutionality of legislation. There
will be occasions when a judicial officer will find that the legislation, though open to a
meaning which would be unconstitutional, is reasonably capable of being read 'in
conformity with the Constitution'. Such an interpretation should not, however, be unduly
strained.’
I now turn to consider the proper interpretation to be given to Article 63(2) of the
Constitution and section 76 of the Act.
The meaning of Article 63(2) of the Constitution and s 76 of the Act.
[34] The real issue between the parties was whether Article 63 (2) of the Constitution
empowers the National Assembly to enact legislation, which empowers the executive to,
21
by subordinate legislation, impose land tax. Article 63(2) of the Constitution provides
that:
‘The National Assembly, shall further have the power and function subject to this
Constitution:
(a) …
(b) to provide for revenue and taxation;’
[35] Our first task is thus to assign meaning to the undefined words ‘to provide for…’
in Article 63(2) of the Constitution: Mr. Tötemeyer (for the applicant), relying on the
South African Constitutional Court matter of Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others,17 argued for
unconstitutionality because, so he argued, the power of taxation is a legislative power
reserved for the National Assembly. He further argued that the Executive branch of
government has no independent taxing power. Defending the constitutionality of s 76 Mr
Gauntlet (for the respondents) maintained that properly interpreted, Article 63 of the
Constitution provides that the National Assembly has the power “to provide for revenue
and taxation” and the National Assembly indeed so provided in s 76 of the Act.
[36] In determining the ambit of the powers of the National Assembly the starting
point must and will always be the words used by the Constitution within the context that
I have set out above.18 In the matter of Kauesa v Minister of Home Affairs and Others,19
the Supreme Court reminds us that it is proper to remember that when construing a
provision in a Constitution, the words used should carry their ordinary meaning and
content. In Namunjepo and Others v Commanding Officer, Windhoek Prison and
Another,20 Strydom CJ emphasized that the usual and grammatical meanings of the
words cannot be totally ignored. He said:
17 1999 (1) SA 374 (CC) at 395 – 396 footnote 44 (as per Chaskalson P, Goldstone J and O’Regan J).18 Paragraphs [21] to [28].19 1995 NR 175 (SC) at 184.20 1999 NR 271 (SC).
22
‘A Court interpreting a Constitution will give such words, especially those expressing
fundamental rights and freedoms, the widest possible meaning so as to protect the
greatest number of rights.’21
[37] The Concise Oxford English Dictionary defines the word ‘provide’ as follows: ‘v 1 make available for use; supply; equip or supply someone with; 2 (provide for) make
adequate preparations or arrangements for; (of a law) enable or allow something to
done…’ The question to answer is who is the National Assembly called upon to enable
or allow? It certainly cannot ‘allow’ or ‘enable’ itself. It therefore follows, from the above
definition, that the National Assembly must enable or allow or equip or supply another
entity than itself. Article 63(2) of the Constitution confers on the National Assembly the
power to enable or allow or to make available for use by other branches of government
the power to raise revenue or taxes; or to equip or supply other branches of government
with the power to raise revenue or taxes.
[38] In the premises, the conclusion is inescapable that the National Assembly allows
other branches of government, particularly the executive branch, to raise revenue. The
National Assembly does not, in my view, have the wherewithal to itself carry out the
exerting duties of raising revenue, which require especial skill and expertise, which the
executive branch, through its officials, has in abundance at its disposal.
[39] This interpretation finds support in the following words of Moseneke DCJ, in the
matter of South African Reserve Bank and Another v Shuttleworth and Another 22 when
he said:
‘A blissful starting point would be to affirm that the power to tax residents is an incident
of, and subservient to, representative democracy. The manner and the extent to which
national taxes are raised and appropriated must yield to the democratic will as
expressed in law. It is the people, through their duly elected representatives, who decide
on the taxes that residents must bear. An executive government may not impose a tax
burden or appropriate public money without due and express consent of elected public
representatives.’ (Italicized and underlined for emphasis).
21 Ibid at 283.22 Supra Footnote 1 at p 187.
23
[40] Section 76 of the Act provides as follows:
‘76 Land tax(1) Notwithstanding any other law to the contrary, the Minister, with the
concurrence of the Minister responsible for Agriculture, and the Minister responsible for
Finance, may-
(a) for the benefit of the Fund by regulations made under section 77, impose
a land tax to be paid by every owner of agricultural land on the value of such land, the
amount of which shall be calculated in accordance with the following formula:
T = V x R,
in which formula-
"T" represents the land tax payable;
"V" represents the unimproved site value as determined under those
regulations; and
"R" represents the rate of land tax as determined under paragraph (b);
and
(b) by notice in the Gazette determine the rates of such land tax.
(2) …’
[41] I have attempted to demonstrate, above, that the historic origins of the Act, in
1995 is the skewed and inequitable ownership of land in Namibia pointing to a necessity
to reform land ownership. The Act makes it plain that its purpose is the acquisition of
agricultural land by the State for the purpose of land reform and for the allocation of
such land to Namibian citizens who do not own or otherwise have the use of any or of
adequate agricultural land, and foremost, those Namibian citizens who have been
socially, economically or educationally disadvantaged by past discriminatory laws or
practices. In my view the National Assembly, by section 76 of the Act, did what it was
empowered to do by Article 63(2) of the Constitution, namely enabling or allowing or
giving its express consent to the Minister responsible for Land Reform to raise revenue
for the purpose of funding land reform.
24
Does section 76 of the Act violate the principle of separation of powers?
[42] Mr. Tőtemeyer also relied on the principle of separation of powers to argue that
s76 of the Act is inconsistent with the Constitution. He argued that the Parliament by
enacting s 76 of the Act impermissibly delegated its law making powers to the
Executive. Our second task is thus to determine the extent of the separation of powers
under the Constitution. It is by now axiomatic that the doctrine of separation of powers
is part of our constitutional design, even though there is no express mention of the
separation of powers doctrine in the text of the Constitution. However, the starting point
in an understanding of the model of separation of powers upon which our Constitution is
based, must be the text of our Constitution. Article 27(2) of the Constitution vests the
executive power of the Republic of Namibia in the President and the Cabinet. In terms
of Article 40(b), the Cabinet has the constitutional authority to prepare and initiate
legislation. (Emphasis supplied)
[43] Article 63(1) of the Constitution provides that the National Assembly as the
principal legislative authority in and over Namibia, shall have the power, subject to the
Constitution, to make and repeal laws for the peace, order and good government of the
country in the best interest of the people of Namibia. Article 78 (1) vests the judicial
power of Namibia in the Courts. (Emphasis supplied) In the matter of Ex parte
Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa, 199623 the Constitutional Court of South Africa opined that
there is
‘… no universal model of separation of powers and, in democratic systems of
government in which checks and balances result in the imposition of restraints by one
branch of government upon another, there is no separation that is absolute…The
principle of separation of powers, on the one hand, recognises the functional
independence of branches of government. On the other hand, the principle of checks
and balances focuses on the desirability of ensuring that the constitutional order, as a
totality, prevents the branches of government from usurping power from one another. In
this sense it anticipates the necessary or unavoidable intrusion of one branch on the 23 1996 (4) SA 744 (CC) ad paras.108-109.
25
terrain of another. No constitutional scheme can reflect a complete separation of powers:
the scheme is always one of partial separation.’ (Emphasis added)
[44] In the matter of Executive Council, Western Cape Legislature, and Others v
President of the Republic of South Africa and Others24 the Constitutional Court of South
Africa considered the validity of s 16A Local Government Transition Act, 1993 (Act No
209 of 1993) which empowered the President of the Republic of South Africa to amend
the Local Government Transition Act 209 of 1993 and its Schedules. In that matter the
Constitutional Court recognized the need for the legislature to delegate some of its
legislative powers to the executive branch of government. Chaskalson CJ who delivered
the judgment on behalf of the Court said:
‘The legislative authority vested in Parliament under s 37 of the Constitution is
expressed in wide terms - 'to make laws for the Republic in accordance with this
Constitution'. In a modern State detailed provisions are often required for the purpose of
implementing and regulating laws and Parliament cannot be expected to deal with all
such matters itself. There is nothing in the Constitution which prohibits Parliament from
delegating subordinate regulatory authority to other bodies. The power to do so is
necessary for effective law-making. It is implicit in the power to make laws for the
country and I have no doubt that under our Constitution Parliament can pass legislation
delegating such legislative functions to other bodies. There is, however, a difference
between delegating authority to make subordinate legislation within the framework of a
statute under which the delegation is made, and assigning plenary legislative power to
another body, including, as s 16A does, the power to amend the Act under which the
assignment is made.’
[45] I endorse those remarks and am of the view that they equally apply to the
constitutional dispensation in Namibia. The only question that we must thus determine
is whether s76 assigns plenary of legislative powers to the executive branch of
government. In my view parliament will confer plenary powers of legislation to the
executive branch where it has, so to speak, abdicated its law-making powers, but where
24 1995 (4) SA 877 (CC).
26
the power to make subordinate laws is regulated that does not amount to an
assignment of plenary powers.
[46] The court’s attention, was drawn to a case from the Republic of Botswana, being
Botswana Public Employees’ Union and Three Others v Minister of Labour and Home
Affairs and Another.25 That case dealt with the constitutionality of s 49 of the Trade
Disputes Act [Cap. 40;02] (‘the TDA”) which allowed the relevant Minister to amend the
schedule listing essential services thus effectively taking away the right of those
employees included in the schedule, to go on strike.
[47] Dingake J, after an exhaustive review of relevant case law, came to the
conclusion that the right to strike is a fundamental constitutional right enshrined in s13
of the Botswana Constitution. For that reason, he contended, ‘it is inconceivable that a
court can hold that such a right may be taken away or compromised by the Minister, by
way of a statutory instrument without due process of the law, acting in terms of s49 of
the Trade Disputes Act.
[48] At paragraph 139, the learned Judge concluded as follows:
‘139. I am therefore satisfied, having regard to the Botswana’s system of constitutional
supremacy and the fact that the Constitution assigns the power to make laws to
Parliament in the most emphatic terms, that Section 49 of the TDA constitutes an
impermissible abdication of Parliament’s power to pass laws – and consequently
the said section being ultra-vires the Constitution, is declared unconstitutional
and is set aside.’
[49] It is accordingly clear that in the present case, the situation is markedly different
from the one confronting the Botswana High Court in that in that case the Minister
exercised legislative powers to take away a right that was otherwise provided for in the
Constitution, when the power to do so could only lie with Parliament. In the instant case,
Parliament gave the power to the Executive branch to levy taxes subject to its
supervision and there is nothing unconstitutional in Parliament having done so.
25 A case decided by the High Court of Botswana sitting at Lobatse under case number MAHLB –
000 674 – 11 delivered on 9 August 2012.
27
[50] Section 76 of the Act, clearly sets out the aspects and circumscribes the
instances in respect of which the Minister may make regulations.26 The section itself
sets the formula according to which the amount which is to be paid as land tax is to be
determined. In subsection (4) of s 76 the Act states that the rate of tax which the
Minister may levy from any individual must, before it comes into force, be approved by
resolution of the National Assembly, thus subjecting the powers to make regulations
that raise revenue through land tax subject to parliamentary oversight. I have thus
come to the conclusion that the powers conferred on the Minister to raise revenue under
s 76 of the Act can only be performed within the limits set by the Act and are therefore
regulatory and not plenary. Section 76 does therefore not violate the principles of
separation of powers as contained in our Constitution.
Is section 76B unconstitutional?
[51] Mr Tötemeyer argued that s 76B of the Act is unconstitutional because the
exemption from land tax is not done by the National Assembly but is impermissibly
delegated to the Minister. He argued that 76B(1)(a) relies on Article 23 for the power of
the Minister to exempt certain categories of persons as contemplated in Article 23 of the
Namibian Constitution from the payment of land tax. Any exemption granted in terms of
Article 23(2) should be effected by way of legislation enacted by Parliament and cannot be
performed by (or delegated to) any other body or person. Mr Tőtemeyer relies on the
matter of Grobbelaar and Another v Council of the Municipality of Walvis Bay and
Others.27
[52] The brief facts of the Grobbelaar matter are that Mr Grobbelaar brought an urgent
application to interdict the transfer of certain erven in the Municipality of Walvis Bay to
person who purchased those erven at a public auction conducted during December 2003
pending an application to review and set aside the proceedings of the auction. The
auction was held in accordance with a land policy adopted and implemented by the
Municipal Council of Walvis Bay since December 1998. The land policy provided that
26 In subsection (2).27 2007 (1) NR 259 (HC).
28
when residential erven were offered for sale, this would be done in three phases. The first
two phases would take place by way of public auction at which the first round of the
auction would be open only to previously disadvantaged Namibians and the second round
to all persons. The Court found that the auction was held in a manner excluding certain
persons from participating in the first round on the basis of their colour, in this case, on the
basis that they are white. After that finding the Court held that:
‘The so-called land policy and the manner in which it was applied at the auction is clearly
discriminatory on grounds of colour and therefore in violation of art 10. Parliament has not
enacted legislation under art 23(2) to provide for the implementation of such a policy. As
such it is clearly illegal.’
[53] In the present case s 76B of the Act provides as follows:
‘76B Exemption from land tax
(1) The Minister may on application made to him or her by an owner of
agricultural land, exempt by notice in the Gazette for such period as may be specified in
that notice from land tax imposed pursuant to section 76-
(a) any agricultural land of such owner, but only if he or she is a person belonging to
the category of persons contemplated in Article 23 of the Namibian Constitution;
(b) any agricultural land that is primarily used for the activities of-
(i) a church, mission, hospital, school or hostel, provided such activities shall not
be for profit or gain;
(ii) any state-aided institution, or any charitable institution as defined in section 1
of the Sales Tax Act, 1992 (Act 5 of 1992).
(2) An application referred to in subsection (1) shall be in such form as the
Minister may determine and shall specify the agricultural land to which it relates.
(3) The Minister may revoke any exemption granted under subsection (1) if the
reason for granting such exemption ceases to exist, but shall do so only after having
afforded the owner concerned an opportunity to be heard.’
29
[54] I am of the view that the facts in the Grobbelaar matter are distinguishable from the
facts at hand, firstly because in the Grobbelaar matter it is a local authority which resolved
to invoke Article 23 of the Constitution. Secondly the local authority’s invocation of Article
23 was done in terms of a land policy adopted by the local authority itself and not in terms
of authorisation by an Act of Parliament. In the present matter it is Parliament through
section 76B (1) that expressly empowers the Minister to exempt, an owner of agricultural
land, from land tax imposed pursuant to section 76. The Act itself again stipulates that the
only persons whom the Minister may exempt from the land tax imposed pursuant to s 76
are persons who belong to the category of persons contemplated in Article 23 of the
Namibian Constitution. The only issues that are left for the determination by the Minister
are the period over which a person may be exempted from the land tax and the form in
which the application for exemption must be made.
[55] In my view s76B does not delegate to the Minister the power to legislate or to make
law (which necessarily involves a discretion as to what the law shall be) but confers on the
Minister the authority or discretion to execute the law made by Parliament. It cannot
seriously be contended that Parliament itself must legislate on how the law must be
implemented. Furthermore, it is clear that the relevant provisions of the Act granting the
Minister exemption powers resonate fully with, and are consistent with the solicitudes
expressed in Article 23 of the Constitution. As Mr Justice Chaskalson observed, in a
modern State, detailed provisions are often required for the purpose of implementing and
regulating laws and Parliament cannot be expected to deal with all such matters and the
minutiae involved itself. There is nothing in the Constitution, which prohibits Parliament
from delegating subordinate regulatory authority to the Minister. In my view there is
nothing unconstitutional in s 76B.
[56] Mr Tőtemeyer furthermore argued that even if s 76B of the Act is held to be valid, it
failed to come into operation because the s 77 procedure was not invoked. In my view the
failure to comply with a statutory provision, does not necessarily render an act performed
without complying with the statutory provisions unconstitutional. It may simply render the
act invalid for want of a legal basis on which the act is performed.
30
[57] Section 77 of the Act simply empowers the Minister to make regulations in relation
to-(a) the forms to be used for the purposes of the Act; (b) the procedure for making any
application under the Act; (c) the procedure for applying for any consent to any transaction
relating to or affecting land under the Act; and (d) any matter required or permitted to be
prescribed by regulation under the Act. Section 78 of the Act simply deals with the
manner in which documents which are required to be served under the Act must be
served. Section 79 of the Act creates offences and sets out the penalties which may be
imposed on a person found guilty of an offence created under that section. Section 79A of
the Act empowers the Minister to, in writing, delegate or assign to any staff member in the
Ministry of Land Reform any power or duty conferred or imposed on the Minister by the
Act, except the power granted under sections 76, 76B and 77. Section 80 deals with the
limitation of rights. At the hearing of this matter Mr Tőtemeyer conceded, and correctly so,
that sections 77 to 80 of the Act are not unconstitutional. I thus come to the conclusion that
ss 76 to 80 of the Act are not inconsistent with the Constitution and must therefore be held
to stand.
The challenge of the regulations.
[58] The applicant challenges the validity of the regulations in their entirety because
they were issued under section 76 and 77 which are in law invalid. In the light of our
finding that ss 76 and 77, of the Act are not inconsistent with the Constitution this basis of
the challenge also falls away. I have already dealt with the allegation that Parliament
allegedly impermissibly delegated its legislative authority to the Minister and found that the
delegation is within the limits of the Constitution. The applicant then proceeds and attacks
individual regulations, which he alleges are unconstitutional. It is to those individual
regulations that I now turn.
(i) Regulation 4(2)(f).
[59] In the founding affidavit in support of the notice of motion the applicant attacks
Regulation 4(2)(f) as being unconstitutional because it allegedly lacks particularity. The
applicant does not inform the Court of the aspects in respect of which the Regulation is
allegedly lacking. Mr. Tötemeyer in his argument simply states that Regulation 4(2)(f)
31
directs that the provisional ‘regulation roll’ shall contain ‘such other information as the
Minister may direct to be shown’. This does not conform with the requirements of
particularity and precision which flow from the concept of the rule of law. A regulation –
as is the case with all other administrative action - should express itself in reasonably
clear and precise terms, argued Mr. Tötemeyer.
[60] The applicant challenges the constitutionality of Regulation 4(2)(f) on the basis that
it is vague and does not conform to the principle of legality. The doctrine of vagueness is
one of the principles of common law that was developed by courts to regulate the exercise
of public power. The principle applicable to a challenge of legislation on the basis of
vagueness in a constitutional dispensation was considered by this Court in the matter of
Lameck and Another v President of the Republic of Namibia and Others28 where Smuts J
(as he then was) outlined the principle as follows:
‘'The doctrine of vagueness is founded on the rule of law, which, as pointed out earlier, is a
foundation value of our constitutional democracy. It requires that laws must be written in a
clear and accessible manner. What is required is reasonable certainty and not perfect
lucidity. The doctrine of vagueness does not require absolute certainty of laws. The law
must indicate with reasonable certainty to those who are bound by it what is required of
them so that they may regulate their conduct accordingly. The doctrine of vagueness must
recognise the role of government to further legitimate social and economic objectives and
should not be used unduly to impede or prevent the furtherance of such objectives.’
[61] In the matter of Affordable Medicines Trust and Others v Minister of Health and
Others29 Mr Justice Ngcobo, stated that where, it is contended that the regulation is vague
for uncertainty, the Court must first construe the regulation applying the normal rules of
construction including those required by constitutional adjudication. The ultimate question
is whether, so construed, the regulation indicates with reasonable certainty to those who
are bound by it what is required of them.
[62] The question which must thus be answered in the present matter is whether
Regulation 4(2) conveys a meaning which can reasonably be ascertained by those who
28 2012 (1) NR 255 (HC) at para [89].29 2006 (3) SA 247 (CC).
32
are affected by it or to whom it applies. One of the principles of statutory interpretation is
that when interpreting a document, the words sought to be given a meaning must be read
in the context of that document. Regulation 4(2)(f) which the applicant attacks is a
paragraph of sub regulation (2) of Regulation 4. Regulation 4 deals with the appointment,
powers and duties of valuer. Sub-regulation (2), in turn, sets out the information, which the
valuer must include in a provisional valuation roll. It states that:
‘(2) The valuer is responsible for the valuation of the agricultural land in question and for
the preparation of a provisional valuation roll containing-
(a) the farm number, registration division, and farm name of the agricultural land in
question;
(b) the name of the owner of that land;
(c) the size in hectares of that land;
(d) the unimproved site value of that land;
(e) remarks (if any) with regard to the agricultural land in question; and
(f) such other information as the Minister may direct to be shown.’
[63] In my view Regulation 4(2) does with certain reasonableness, tell the valuer and
also the owners of agricultural land the information which the valuer must include in a
provisional valuation roll. In these circumstances the provisions of Regulation 4(2) cannot
be said to be vague. This argument, for that reason fails.
(ii) Regulation 4(4).
[64] In the notice of motion the applicant seeks an order declaring Regulation 4(4) as
unconstitutional because ‘the form should be predetermined by the first respondent and
published’. Mr Tötemeyer argued as follows I quote verbatim from his heads of
arguments:
‘Regulation 4(4)30 states that “The Minister must cause a certificate of appointment in
such a form as the Minister may determine to be issued to a valuer upon his or her
designation or appointment”. This likewise is inimical to the principles referred to in the
30 A 295/2013, p 4, notice of motion, prayer 15.
33
previous paragraph, because the form should be pre-determined and published
[Compare section 77(1)(a) of the Act] as it constitutes subordinate legislation. Members
of the public would be unable to assess if the certificate of appointment conforms with
the law and to regulate their conduct accordingly.’
[65] The difficulty I have with the applicant’s notice of motion and its supporting affidavit
is that the applicant does not elaborate on its contentions that the regulations are
unconstitutional. Mr Tötemeyer relies on the principle of vagueness to argue that
Regulation 4(4) does not conform to the principle of legality. The same principles that I
have set out in the preceding paragraphs, apply with equal force to the challenge of
Regulation 4(4). Regulation 4(4) is similarly part of the regulation that deals with the
appointment, powers and duties of a valuer. The question which must also be answered
here is whether Regulation 4(4) conveys a meaning which can reasonably be ascertained
by those who are affected by it or to whom it applies.
[66] Regulation 4(4) reads as follows:
‘The Minister must cause a certificate of appointment in such a form as the Minister may
determine to be issued to a valuer upon his or her designation or appointment.’
In my view Regulation 4(4) does, with certain reasonableness, tell the Minister what he
must do once he has appointed a valuer. The Regulation, in my view, also informs the
public what they must look for when they want to establish whether or not a valuer has
validly been appointed. In these circumstances the provisions of Regulation 4(4) cannot be
said to be vague and are therefore not inconsistent with the Constitution.
(iii) Regulation 4(7)(a) & (b).
[67] In the notice of motion, the applicant seeks an order declaring Regulation 4(7)(a)
unconstitutional because it is allegedly inconsistent with the rule of law, Article 12(1)(a)
and Article 18 of the Constitution, the common law and the third paragraph of the
preamble to the Constitution. Mr Tötemeyer argued that Regulation 4(7)(a), allegedly
offends the applicant’s right to a fair and public trial in terms of Article 12(1)(a) and is
34
inconsistent with open justice, is inconsistent with a free and independent judiciary in
terms of the third paragraph of the preamble to the Namibian Constitution; and offends
against the transparency required by the Namibian Constitutional dispensation, which is
inherent to fair and reasonable administrative action under Article 18 and open and
transparent government. Regulation 4(7)(b) is attacked on the basis that the ‘mass
appraisal approach’ that may be used in terms of regulation 4(7)(b) fails to determine the
actual carrying capacity of the land, which is vital to determine a fair and reasonable land
tax.
[68] The difficulty I expressed in paragraph 56 of this judgment also applies to the
attacks against Regulation 4(7)(a) & (b). The applicant does not set out the material
facts upon which it contends that the Regulations violate the Constitution or the
common law, worse still, the complaint does not tell us which principle of the common
law is violated. Regulation 4(7)(a) & (b) reads as follows:
‘(7) In determining the value of any agricultural land in terms of these Regulations, a
valuer-
(a) must have due regard to the carrying capacity of such land as supplied by the
Ministry administering agricultural affairs at the date of valuation; and
(b) may use a mass appraisal approach to value the land and may-
(i) divide the Republic of Namibia cadastral map into value zones to create
an iso-value map showing the values of agricultural land per hectare;
(ii) create value zones each of which may contain agricultural land with the
same carrying capacity classification, and any agricultural land that lies in
two or more carrying capacity classifications may, for the purpose of
preparing value zones, be placed in the carrying capacity classification
that constitutes the greater part of such land.
[69] Kauesa v Minister of Home Affairs and Others31 tells us that where it is
contended that a regulation is unconstitutional, the party so contending bears the onus
31 1994 NR 102 (HC).
35
of persuading the court that the said regulation is inconsistent with the Constitution. As I
have indicated above the applicant does not, in its founding affidavit, set out the
material facts on which it relies to persuade us to conclude that Regulation 4(7)(a) or (b)
is inconsistent with the rule of law or how it violates the applicant’s right to have its civil
rights or obligations determined by an independent, competent and impartial tribunal.
On the allegations made by the applicant in its founding affidavit, I find it impossible to
determine how Regulation 4(7)(a) or (b) violates the Constitution, the rule of law or the
common law. In these circumstances the party who bears the onus has failed to
discharge the onus resting on it. I therefore find that Regulation 4(7)(a) or (b) is not
inconsistent with the Constitution and should stand.
(iv) Regulation 4(9) (b).
[70] In the notice of motion the applicant seeks an order declaring Regulation 4(9)(b),
4(13), and 6(8) unconstitutional because, ‘the assistant is not bound by oath, and the
valuer exercises an uncontrolled power resulting in taxation.’ Mr Tötemeyer argued that
(I quote verbatim from Mr Tőtemeyer’s heads of arguments):
‘Regulation 4(9)(b) [and 4(13)] authorise the valuer to delegate or assign his/her powers or
duties to an assistant or to “any suitable person” to be performed on the valuer’s behalf. In
terms of Regulation 6(8), such assistant may communicate with and “reach an agreement
to settle the objection” with such owner. These provisions are ultra vires and violate Article
18:
Section 77 of the Act confers powers of delegation on the Minister only. Those powers
should be interpreted restrictively and does not permit the delegee to delegate his
delegated powers still further;
The assistant possesses violation powers (compare regulations 4(8) and (9)), but is not
nominated by the Commission in terms of Regulation 4(1) nor is he or she bound by oath in
terms of Regulation 4(3);
The assistant further enjoys wide ranging powers, including the right to reach an agreement
and in that way determine tax (Regulation 6(8):’
36
[71] The applicant thus attacks the validity of Regulations 4(9)(b), and 4(13) on the
basis that the regulations violate the principle of ‘delegatus delegare non potest’. Before
I deal with the provisions of the Act and the Regulations which deal with delegation of
powers. I will briefly outline the principle contained in the maxim ‘delegatus delegare
non potest’.
[72] Baxter32 argues that in modern democracies original power derives from the
political authority of elected legislatures. He proceeds and argues that because of
practical requirements of government, it is recognised that the elected bodies may
delegate their powers. Baxter (speaking of the pre 1994 era) expresses the view that in
South Africa, only Parliament is possessed with unlimited powers, whereas other
administrative authorities are treated as delegees, power having been delegated to
them by the original authority. The same position applies to Namibia, save to qualify that
statement by indicating that the Parliament’s powers are subject to the Constitution.
[73] He proceeds and states that delegees, not being the direct repository of public
trust, are not permitted the same freedom to choose who shall exercise their power.
There is a presumption that they may not further delegate their powers, delegatus
delegare non potest’. Baxter, however, hastens to add that delegation is not always a
bad practice as it may well have been contemplated that the powers conferred on
officials should be delegated to others where appropriate. He thus concludes by stating
that the delegatus maxim is not absolute and he cites the case of Attorney-General,
OFS v Cyril Anderson Investments (Pty) Ltd33 where Mr. Justice Botha said:
‘The maxim delegatus delegare non potest is based upon the assumption that, where
the legislature has delegated powers and functions to a subordinate authority, it intended
that authority itself to exercise those powers and to perform those functions, and not to
delegate them to someone else, and that the power delegated does not therefore
include the power to delegate. It is not every delegation of delegated powers that is hit
by the maxim, but only such delegations as are not, either expressly or by necessary
implication, authorised by the delegated powers.’ (Underlined for emphasis).
32 L Baxter: Administrative Law. Juta 1984 at p 434 to 435.33 1965 (4) SA 628 (A) at p 639.
37
[74] It is, in my view, therefore necessary to consider the legislative provisions
concerned in order to determine whether the impugned Regulations are ‘hit’ by the
delegatus maxim. Regulation 4(9)(b) reads as follows:
‘(9) When a valuer or any person assisting the valuer exercises or performs a power
or duty in terms of these Regulations in the presence of any person affected thereby, he
or she must, on demand by such person-
(a) in the case of a valuer, produce to such person the certificate of appointment
issued in terms of subregulation (4); or
(b) in the case of a person assisting the valuer, produce a letter duly signed by the
valuer authorizing him or her to perform specified duties on the valuer's behalf in
accordance with subregulation (13) and (14).’
[75] I find it difficult to understand how Regulation 4(9)(b) offends against the
Constitution. Paragraph (b) of Regulation 4(9) simply states that where a person who is
assisting a valuer in the performance of his or her power or duties in the presence of a
person affected by the performance of the power or duty, the affected person is entitled
to demand from the person assisting the valuer a letter indicating that that person is
authorised to perform the duties that he or she is performing. There is nothing
unconstitutional about this.
[76] Mr. Tötemeyer argues that s 77 of the Act confers powers of delegation on the
Minister only and that those powers must be interpreted restrictively and does not
permit the delegee (presumably the Minister) to further delegate his delegated powers.
First, Mr. Tötemeyer is wrong because s 77 of the Act does not confer powers of
delegation on the Minister. That section simply empowers the Minister to make
regulations in relation to (a) the forms to be used for the purposes of the Act;(b) the
procedure for making any application under the Act; (c) the procedure for applying for
any consent to any transaction relating to or affecting land under the Act; and (d) any
matter required or permitted to be prescribed by regulation under the Act.
38
[77] The section which empowers the Minister to delegate his powers is s 79A of the
Act, which section provides as follows:
‘(1) The Minister may in writing delegate or assign to any staff member in the Ministry
of Land Reform any power or duty conferred or imposed on the Minister by this Act,
except the power granted under sections 76, 76B and 77.
(2) A delegation or assignment by the Minister under subsection (1)-
(a) may be effected subject to such conditions as the Minister may
determine;
(b) may be withdrawn or varied by the Minister; and
(c) shall not preclude the Minister from exercising or performing any power or
duty so delegated or assigned.
[78] Section 76 (2) of the Act provides as follows:
‘(2) For the purposes of imposing land tax the regulations referred to in subsection
(1) may also provide for-
(a) the method of calculating such tax and the due date for payment and manner of
collection and recovery of such tax (including the payment of interest on such tax);
(b) the valuation of agricultural land by a valuer and the manner in which such
valuation shall be carried out;
(c) the appointment and functions of a valuer;
(d) the preparation of a valuation roll by a valuer, the contents of such valuation roll
and the manner in which an objection or appeal against such roll may be lodged
by an owner;’ (Underlined for emphasis).
[79] From the provisions of ss 76(2) and 79A of the Act, it is quite clear that a valuer
is not a staff member in the Ministry of Land Reform nor does the Minister have the
power to value agricultural land. It thus follows that the valuer is not a delegee of the
Minister but a delegee of Parliament. I agree with Mr. Gauntlett who argued that the
39
valuer is possessed with authority from Parliament to value agricultural land. The
question that needs to be answered therefore is whether the valuer is either expressly
or by necessary implication, authorised by Parliament to further delegate the powers
delegated to him or her. I have indicated above, that Parliament has in s 76(2)
authorised the Minister to, for the purposes of imposing the land tax referred to in
subsection (1), make regulations, which provide for the appointment and functions of a
valuer. Regulation 4 does deal with the appointment, functions and powers of a valuer
as contemplated in s 76 (2). Regulation 4(13) & 14 provides that:
‘(13) A valuer, when necessary, may delegate or assign to any suitable person any
power or duty conferred or imposed upon the valuer in terms of these Regulations.
(14) A delegation or an assignment under subregulation (13)-
(a) must be in writing, and subject to such limitations and conditions as the
valuer may impose;
(b) may be reviewed and, if necessary, amended or withdrawn at any time.’
[80] I agree with Mr. Gauntlett that there can be no serious suggestion that a single
individual was ever intended by Parliament to perform all the functions of assessing the
land values of the commercial agricultural land in the entire Namibia which as I have
pointed out in the introductory part of this judgment may be in excess of 30 million
hectares. The regulations (which have been acted on the authority of Parliament)
expressly authorise the valuer to further delegate the powers conferred on him or her by
the regulations. I am thus of the view that Regulations 4(9)(b), (13) and (14) are not
inconsistent with the common law, the rule of law or the Constitution.
(v) Regulation 8.
[81] In the notice of motion the applicant seeks an order declaring Regulation 8
unconstitutional because the composition of the valuation court, is allegedly inconsistent
with the rule of law, Articles 12(1)(a) and 18 of the Constitution.’ Mr. Tötemeyer argues
that, the majority of the members of the valuation court consists of Ministerial
40
appointees and the valuation is thus ministerially driven, which may lead to
governmental - decision making.
[82] Regulation 8 provides the establishment of a valuation court to consider and
determine valuations or other information contained in a provisional valuation roll or
objections lodged in relation to any such valuation. Mr. Tőtemeyer’s argument that the
valuation court may engage in governmental decision making is with respect
unfounded. The valuation court’s mandate is clear it must determine the valuations of
agricultural land, or other information contained in a provisional valuation roll or
objections lodged in relation to any valuation of agricultural land.
[83] The valuation court consists of four members namely –
(a) a magistrate designated, at the request of the Minister, by the Magistrates
Commission established by section 2 of the Magistrates Act, 2003 (Act 3 of
2003);
(b) a staff member of the Ministry designated by the Minister;
(c) a person from the private sector appointed by the Minister by reason of his or her
expertise in the field of land matters relevant to the application of these
Regulations; and
(d) a staff member of the Ministry administering agricultural affairs, designated, at
the request of the Minister by the Minister of that Ministry.
[84] It is correct that the four members of the valuation court are appointed by the
Minister responsible for Land Reform, but three of the four persons are identified by
other bodies and they do not resort under the control of the Minister. It is necessary in
this regard, to draw an example from the appointment of judges of the superior courts.
All of them are appointed by the president on the advice of the judicial service
commission. It cannot, therefore, be correctly argued that because they are appointed
by the President they are not independent and impartial in the performance of their
41
duties and for no other reason than that they are ultimately presidential appointees. If
that argument were to be sustained, the question would then be, which would be the
proper authority to make those appointment? Mr. Tötemeyer, during argument, when on
taxed on this issue failed to satisfactorily respond.
[85] The fact that the members of the valuation court are appointed by the Minister
responsible for Land Reform does not make the valuation court an extension of the
Minster or render them less independent. If, in the performance of their duties, they
exhibit conduct that is unbecoming and points to the being partial and not independent
than in that event there are available to an aggrieved party.
[86] I agree with Mr. Gauntlett who argued that the challenge on Regulation 8 is
entirely misplaced because it construes Regulation 8 as constituting a court of law
which is not sufficiently independent and impartial. I further agree with Mr. Gauntlett’s
submission that the valuation court is not a Court of law. I so agree because Article 78
of the Constitution stipulates that the Courts in Namibia consist of the Supreme Court,
the High Court and the Lower Courts, which must be established by an Act of
Parliament.
[87] Mr. Gauntlett argued that the valuation court is merely an administrative body
exercising administrative power. I, however, slightly differ with Mr. Gauntlett on that
aspect. My difference from Mr. Gauntlett stems from the decision of this Court in the
matter of Disciplinary Committee for Legal Practitioners v Makando34 where Parker J
opined that in our jurisdiction:
‘… administrative bodies and administrative officials are State institutions who form the
Bureaucratic Executive, which, together with the Political Executive, constitute the
Executive organ of State in our system of constitutional governance based on the trias
politica of the doctrine of separation of powers; and administrative officials are, as a
matter of course, the personnel who man those institutions that fall within the
Bureaucratic Executive.
34 An unreported judgment of this court: HC case No A 370/2008 delivered on 18 October 2011.
42
[88] The valuation court is not part of the State institutions who form the Bureaucratic
Executive, which, together with the Political Executive, constitute the Executive organ of
State. The valuation court is a body established by law for the purpose of determining
the civil rights and obligations of persons; it performs a quasi-judicial function. In the
matter of Medical Association of Namibia Ltd and Another v Minister of Health and
Social Services and Others35 I approved the statement that:
'Tribunals are informal investigative or quasi-judicial bodies which deal almost
exclusively with administrative law, and usually on a highly specialized level and that a
tribunal, by definition, should possess the following characteristics:
Firstly, they should have the ability to make final, legally enforceable decisions.
Secondly, they should be independent from any departmental branch of government.
Thirdly, the nature of the hearings conducted in tribunals should be both public and of a
judicial nature, while not necessarily subject to the stringent formalities of a court of law.
Fourthly, tribunal members should be in possession of specific expertise, in the field of
operation of the tribunal as well as judicial expertise. Fifthly, there should be a duty on
tribunals to give clear reasons for their decisions, and lastly that there should be a right
of appeal to a higher court on disputes regarding points of law.'
[89] The valuation court is established by the Taxation Regulations (which is law) to
consider and determine valuations or other information contained in a provisional
valuation roll or objections lodged in relation to valuation of agricultural land36. I am
therefore, of the view that the valuation court conforms to the first requirement of a
tribunal, namely the requirement of enforceability and finality.
[90] The valuation court further meets the second and fourth requirements of a
tribunal because it consists of a Magistrate who presides over the tribunal; a staff
member of the Ministry of Land Reform, a person from the private sector by reason of
his or her expertise in the field of land matters relevant to the application of the
Regulations; and a staff member of the Ministry administering agricultural affairs. The
composition of the valuation court confers on it a degree of independence. The
35 2015 (1) NR 1 (HC).36 See Regulation 8(1).
43
members must also have expertise in the field in which the valuation court operates. It is
common cause that the valuation court is required to give reasons for its decisions 37 and
its decisions are appealable to the High Court38. The valuation court is also obliged to
keep or cause to be kept a proper record of its proceedings and findings. 39 So the
valuation court also conforms to the fifth and sixth requirements. The valuation court is
thus a tribunal as contemplated Article 12(1)(a) of the Constitution and not an
administrative body, as contemplated in Article 18 of the Constitution. I am therefore of
the view that Regulation 8 of the Taxation Regulations is not inconsistent with the
Constitution.
(vi) Regulations 13(1), 14(1) and 14(3).
[91] In the notice of motion, the applicant seeks an order declaring Regulations 13(1),
14(1) and 14(3) unconstitutional because Regulation 13(1) allegedly inherently allows
for a procedure which is unpredictable, impossible to anticipate and therefore to
properly prepare for a hearing. Mr. Tőtemeyer accordingly argued that Regulations
13(1), 14(1) and 14(3) fail to comply with Articles 18 and 12(1)(a) of the Constitution.
[92] In paragraphs 73 to 76 of this judgment I held that the valuation court is not a
court of law but a tribunal as envisaged in Article 12(1) of the Constitution. The attack
on Regulation 13(1) stems from the following wording in that Regulation:
‘(1) The proceedings before a valuation court are conducted in such a manner as the
presiding officer considers most suitable to resolve the issues before the court
and the court is not bound by any law relating to procedure and admissibility of
evidence.’
[93] In my view the applicant and Mr. Tőtemeyer overlook what Article 12(1)(a) of the
Constitution mandates. That Article simply entitles a person to have his or her civil
obligations determined in a fair manner by a competent and independent tribunal. A
legislative provision will thus be inconsistent with the Constitution if it sets up a tribunal
37 See Regulation 8(7)(c).38 See Regulation 14(1).39 See Regulation 8(8).
44
which determines the civil rights and obligations in an unfair manner. The question that
needs to be answered is therefore whether the legislative provision in question negates
the principles of fairness. This necessitates one to ask what does the word fair entail?
Baxter40 argues that the requirement to act in a fair manner finds expression in the
celebrated principles of natural justice which dictate that persons who are affected by
administrative action should be afforded a fair and unbiased hearing. (Emphasis
supplied)
[94] In the matter of Marlin v Durban Turf Club and Others41, Mr. Justice Tindall,
examined what the "principles of natural justice" - comprehend, and came to the
conclusion that natural justice,
‘…when applied to the procedure of tribunals …, seems to [be] a compendious (but
somewhat obscure) way of saying that such tribunals must observe certain fundamental
principles of fairness which underlie our system of law as well as the English law. Some
of these principles were stated, in relation to tribunals created by statute, by INNES,
C.J., in Dabner v South African Railways, 1920 AD 583, in these terms:
'Certain elementary principles, speaking generally, they must observe; they must
hear the parties concerned: these parties must have due and proper opportunity of
producing their evidence and stating their contentions and the statutory duties must
be honestly and impartially discharged'."
[95] Baxter42 argues that fair hearings need not necessarily meet all the formal
standards of proceedings adopted by courts of law. He said ‘the vagaries of the
administrative process demand much less formality and much greater flexibility.’ He
then cites the English case of Board for Education v Rice43 where Lord Loreburn LC
said:
'… what comes for determination is sometimes a matter to be settled by discretion,
involving no law. It will, I suppose usually be an administrative kind … In such cases the
40 Supra at footnote at p 536.41 1942 AD 122, at pp125-126.42 Supra at p 542.43 [1911] AC 179 at 182.
45
Board of Education will have to ascertain the law and also to ascertain the facts. I need
not add that in doing either they must act in good faith and fairly listen to both sides for
that is a duty lying upon everyone who decides anything. But I do not think they are
bound to treat such a question as though it were a trial ... They can obtain information in
any way they think best, always giving a fair opportunity to those who are parties in the
controversy for correcting any relevant statement prejudicial to their view.'
[96] The Taxation Regulations in Regulation 12(3) require of the valuation court to
afford a person who has lodged an objection to the valuation of his or her agricultural
land an opportunity to be heard. Regulation 13(2) empowers the valuation court to
summon any person to appear before the valuation court and to administer an oath or
take an affirmation from that person or any other person (including the valuer), present
at a sitting of the valuation court, and to examine any such person under oath or
affirmation. Regulation 13(3) grants to a person who has lodged an objection against a
valuation contained in the provisional valuation roll the right to appear before the
valuation court either in person or through a valuer or a legal practitioner.
[97] I have thus come to the conclusion that the phrase ‘in such a manner as the
presiding officer considers most suitable to resolve the issues before the court and the
court is not bound by any law relating to procedure and admissibility of evidence’ in
Regulation 13(1) does not derogate from the right to a fair hearing contemplated in
Article 12(1)(a) or Article 18 of the Constitution but simply requires the valuation court to
be flexible. Baxter44 argues that the central principles governing the proceedings of
administrative tribunals are flexibility and fairness which are both emphasized at
common law. In my view Regulation 13(1) simply restates the principle of flexibility and
thus fortifies the right to a fair hearing. Regulation 13 (1) is therefore not inconsistent
with the Constitution.
[98] In this regard if any party has a legitimate complaint on a specific matter
regarding the conduct of a member of the court or their handling of an issue, that party
has a right to take the decision made as a result on review. That is their residual power
that exists and does not affect the constitutionality of the provisions.
44 Supra at p 249.
46
[99] Mr Tötemeyer further argued that, Regulation 14(1) which allows for an appeal
against the decision of a valuation court on a point of law only and Regulation14 (3)(b)
which allows for an assessment and recovery as if no appeal was pending, curtail access
to justice, violate the rule of law and violate Articles 12(1)(a) and 18 and the third
paragraph of the pre-amble to the Constitution. What both the applicant and Mr Tötemeyer
do not do is to state how these Regulations curtail access to justice or how they violate the
Articles of the Constitution referred to by them.
[100] I again resort to the arguments advanced by Baxter who argues that a right of
appeal can only be claimed if it is provided for by a statute.45 He further argues that
where a tribunal has been chosen to determine the rights and obligations of persons
because of its expertise then an appeal to ordinary courts on the questions of fact is
inconsistent with the reason underlying the existence of the tribunal. He continues and
argues that on the other hand, the need for consistent and authoritative interpretation of
the law and the special expertise of the ordinary courts in this area would seem to
render appeals to the courts on question of law an important safeguard. 46 Under the
principle of the separation of powers the courts regulate and control the exercise of
public power by the other branches of government. It follows that the High Court, in
addition to the power to hear an appeal on a point of law from the valuation court, still
retains its supervisory powers (by way of judicial review) over the valuation court. I
therefore fail to see how Regulation 14(1) is inconsistent with the Constitution.
[101] As regards Regulation 14 (3)(b) Mr. Tötemeyer simply argues that that regulation
curtails the applicant’s right of access to justice. He does not explain how the
applicant’s right of access to justice is curtailed. Regulation 14(3)(b) reads as follows:
‘(3) Despite any law to the contrary, the fact that an appeal against the decision of a
valuation court is pending does not-
(a) interfere with or affect the operation of such decision; or
45 Supra at p 255 also see the case of L & B Holdings (Pvt) Ltd v Mashonaland Rent Appeal Board and Others 1959 (3) SA 466 (SR).
46 At p 254.
47
(b) prevent the land tax from being assessed and recovered on the basis of the
valuation fixed by such decision in like manner as if no appeal was pending.
[102] Regulation14 (3)(b) enacts that the obligation to pay and the right to receive and
recover any land tax chargeable under the Taxation Regulation is not suspended by
'any appeal' to the High Court. What the regulation does is to alter the common-law rule
of practice that generally the execution of a judgment is automatically suspended upon
the noting of an appeal. I doubt whether that common law rule is applicable to a
decision of the valuation court fixing a valuation of agricultural land. What Regulation14
(3)(b) does is thus to explicitly make it clear that the common law does not apply once
the valuation court has fixed the valuation of agricultural land. The requirement to state
clearly the extent to which the common law is altered by a statutory provision is
consonant with the principle of legality and the rule of law. It must be noted that by
being able to note an appeal against a decision of the valuation court, is in itself an
exercise of the right to access justice.
[103] Regulation14 (3)(b) is not concerned with access to a court of law and says
nothing that can be construed as a prohibition against resort to such a court. It also has
nothing to do with judgment on the tax debt; and even less does it have any bearing on
execution of such a judgment. It does not afford any authority to circumvent the courts,
nor any right to levy execution. The regulation is simply not concerned with anything
other than the non-suspension of the obligation to pay the assessed land tax. I therefore
conclude that Regulation14 (3)(b) is not inconsistent with Constitution.
(vii) Regulation 15(b).
[104] In the notice of motion the applicant seeks an order declaring Regulation 15(b)
unconstitutional because it allegedly ignores the principle of legality and thus conflicts
with open justice as enunciated in the South African case of Cape Town City v SA
National Road Authority 47. It precludes further scrutiny of a valuation and the evidence
underlying it. This is exacerbated by the limited ambit of the right of appeal argued Mr.
Tötemeyer.
47 2015 (3) SA 386 (SCA), paras [12] and [13].
48
[105] I propose, in the interests of clarity and for the sake of completeness, to quote
the Rule 15 in its entirety. It reads:
‘15 Validity of main or interim valuation rollA valuation contained in a main or interim valuation roll approved by the valuation court
in terms of regulation 16(1) is not invalid by reason only of-
(a) a mistake or variance in the name of owner, farm name, postal address or
identity number of the owner of any agricultural land; or
(b) an irregularity which occurred during the preparation of such valuation roll.’
(emphasis added)
[106] In the Cape Town City matter, on which Mr. Tőtemeyer relied to argue that
Regulation 15(b) conflicts with open justice, the open justice concept was stated as
follows:
‘[13] The principle of open justice, according to Chief Justice Spigelman, is one of the
most pervasive axioms of the administration of common-law systems. It was from such
origins, so he states —
'that it became enshrined in the United States Bill of Rights and, more recently, in
international human rights instruments such as Article 14 of the International
Covenant on Civil and Political Rights (ICCPR) and Article 6 of the European
Convention for the Protection of Human Rights, as adopted and implemented by
the British Human Rights Act 1998. In both cases the right is expressed as an
entitlement to "a fair and public hearing by an independent and impartial tribunal
established by law.'
The significance of the principle of open justice, he adds —
'is of such a high order that, even where there is no written constitution, or a
written constitution does not extend to the principle, the principle should be
regarded as of constitutional significance'.
49
The tradition of open justice has its origins in England before the Norman Conquest,
when freemen in the community participated in the public dispensing of justice. The
tradition has spread from England, particularly to those parts of the world which have
adopted and retained that common-law heritage, but is also observed and respected in
civil-law societies. The open-court principle was affirmed in England in the strongest
terms by the House of Lords in the case of Scott v Scott [1913] AC 417 (HL), where Lord
Atkinson said (at 463):
'The hearing of a case in public may be, and often is, no doubt, painful,
humiliating, or deterrent both to parties and witnesses, and in many cases,
especially those of a criminal nature, the details may be so indecent as to tend to
injure public morals, but all this is tolerated and endured, because it is felt that in
public trial is to be found, on the whole, the best security for the pure, impartial,
and efficient administration of justice, the best means for winning for it public
confidence and respect.
Later, in R v Legal Aid Board, ex parte Kaim Todner (a firm), Lord Woolf said:
'This is the reason it is so important not to forget why proceedings are required to
be subjected to the full glare of a public hearing. It is necessary because the
public nature of proceedings deters inappropriate behaviour on the part of the
court. It also maintains the public's confidence in the administration of justice. It
enables the public to know that justice is being administered impartially. It can
result in evidence becoming available which would not become available if the
proceedings were conducted behind closed doors or with one or more of the
parties' or witnesses' identity concealed. It makes uninformed and inaccurate
comment about the proceedings less likely. If secrecy is restricted to those
situations where justice would be frustrated if the cloak of anonymity is not
provided, this reduces the risk of the sanction of contempt having to be invoked,
with the expense and the interference with the administration of justice which this
can involve.'
[107] From the above it is clear that the concept of open justice is concerned with the
tradition of hearing disputes in public. Regulation 15 (b) is not concerned with whether
the hearing of the valuation court must take place in public or behind ‘closed doors’ and
50
says nothing that can be construed as a prohibition against conducting hearings in
public. Properly construed Regulation 15 (b) simply states that where the valuation court
has approved a valuation of agricultural land which valuation is contained in a main or
interim valuation roll the valuation is not invalid on the sole ground that an irregularity
occurred during the process of compiling determining the valuation of the agricultural
land concerned.
[108] That does not mean that the irregularity in the process of determining the value
of agricultural is immune from judicial scrutiny. When the valuer exercises discretionary
powers conferred upon him or her by the Regulations, the exercise of the discretion
powers constitutes administrative action which is reviewable in terms of the principles of
administrative law. Those principles were described in the matter of Johannesburg
Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 48 and accepted by
our Supreme Court in the matter of Minister of Education and Others v Free Namibia
Caterers (Pty) Ltd49 in the following words:
‘…an application for a review and setting aside an administrative action is intended to
secure justice where there has been a failure of justice. The failure must be a necessary
component of, and intrinsic to, the decision-making process itself. Consequently an
application for review and setting aside must be premised on one of two grounds,
namely gross irregularity or clear illegality in the process of taking the administrative
action concerned. … In other words, the applicant's attack should be based on an
illegality or irregularity intrinsic to the action itself and not on the basis of what happens
either prior or subsequent to the decision-making process. ‘
[109] In the matter of Pharmaceutical Manufacturers Association of SA and Another: In
re Ex parte President of the Republic of South Africa and Others.50 Mr. Justice
Chaskalson argued that with the advent of South Africa’s interim Constitution in 1994
the normative basis of administrative law shifted he said:
'The interim Constitution which came into force in April 1994 was a legal watershed. It
shifted constitutionalism, and with it all aspects of public law, from the realm of common 48 1988 (3) SA 132 (A) at 152A - E.49 2013 (4) NR 1061 (SC) at para [26].50 2000 (2) SA 674 (CC)) at para [45].
51
law to the prescripts of a written constitution which is the supreme law. That is not to say
that the principles of common law have ceased to be material to the development of
public law. These well-established principles will continue to inform the content of
administrative law and other aspects of public law, and will contribute to their future
development. But there has been a fundamental change. Courts no longer have to claim
space and push boundaries to find means of controlling public power. That control is
vested in them under the Constitution, which defines the role of the courts, their powers
in relation to other arms of government and the constraints subject to which public power
has to be exercised.' (Italicized and underlined for emphasis).
[110] I find those words applicable to our situation as well. In 1990 when the
Constitution came into operation the normative basis of administrative law equally
shifted as Courts no longer have to claim space and push boundaries to find means of
controlling public power as that control is vested in them under the Constitution. As I
have observed above the valuer, in exercising the power under Regulation 4, he or she
is clearly implementing legislation and as such the exercise of the Regulation 4 powers
constitutes administrative action and falls within the administrative justice clause of the
Constitution. What Regulation 15 clearly does not do is place any impediment in the
way of any aggrieved person to approach the High Court for review of the valuer’s
exercise of his or her discretionary powers. There is nothing in Regulation 15 to suggest
that the inherent jurisdiction of the High Court to grant appropriate relief is excluded.
The Regulation does not say so expressly nor is such an ouster necessarily implicit in
its terms. I therefore reject the suggestion that Regulation 15(b) is inconsistent with the
Constitution.
(viii) Regulations 4(7)(d)(i) to (vi).
[111] In the notice of motion the applicant seeks an order declaring Regulations 4(7)(d)
(iii) and (vi) unconstitutional because that Regulation is allegedly unreasonable and
inconsistent with the rule of law and the common law. At the hearing of this matter and
in his heads of arguments Mr. Tőtemeyer, however, expanded the scope of the attack to
include Regulations 4(7)(d) (i), (ii), (iv), and (v). I agree with Mr. Gauntlet who submitted
that it is impermissible to seek to expand the constitutional attack beyond the applicant’s
founding papers. See in this regard the comments (I accept those comments as
52
reflecting the correct legal position in our jurisdiction) of Ngcobo J in the matter of Prince
v President, Cape Law Society, and Others51, where he said:
'Parties who challenge the constitutionality of a provision in a statute must raise the
constitutionality of the provisions sought to be challenged at the time they institute legal
proceedings. In addition, a party must place before the Court information relevant to the
determination of the constitutionality of the impugned provisions. Similarly, a party
seeking to justify a limitation of a constitutional right must place before the Court
information relevant to the issue of justification. I would emphasize that all this
information must be placed before the Court of first instance. The placing of the relevant
information is necessary to warn the other party of the case it will have to meet, so as
[to] allow it the opportunity to present factual material and legal argument to meet that
case. It is not sufficient for a party to raise the constitutionality of a statute only in the
heads of argument, without laying a proper foundation for such a challenge in the papers
or the pleadings. The other party must be left in no doubt as to the nature of the case it
has to meet and the relief that is sought. Nor can parties hope to supplement and make
their case on appeal.'
[112] Mr. Gauntlett further argued that the applicant, both in its notice of motion and
the founding affidavit, and Mr. Tőtemeyer, in his heads of arguments do not lay a proper
foundation or place before this court information relevant to the determination with
respect to their allegations that Regulations 4(7)(d)(i) to (vi) are unreasonable or
irrational. It must be remembered that valuation is an art of assessing the value of a
property. It is equally true that the methods of assessing the value of a property will
differ according to the purpose for which a valuation is done. It is therefore pointless to
just allege that the method prescribed by the Regulations is unreasonable without
explaining why that statement is made. I therefore agree with Mr. Gauntlet that there is
no merit in the attack on Regulations 4(7)(d)(i) to (vi) and the individual Taxation
Regulations.
[113] Having concluded that the legislative provisions impugned by the applicant
are not inconsistent with the Constitution I now proceed to consider the reliefs
claimed under paragraphs B to N of the applicant’s notice of motion.
51 2001 (2) SA 388 (CC) at para [22].
53
The relief claimed under paragraphs B to I
[114] The applicant in its notice of motion under paragraphs B, C and F seek orders
under prayers 26, 27 and 30, for the Land Reform Advisory Commission (the fourth
respondent) and the Commissioner of Inland Revenue (the fifth respondent) to show
cause why the annual land tax assessments over the following periods should not be
reviewed and set aside:
(a) The assessment in respect of the period 1 April 2002 to 31 March 2008;
(b) The assessment in respect of the period 1 April 2008 to 31 March 2008.
[115] Under paragraphs D, and E the applicant in its notice of motion seek orders under
prayers 28 and 29, for the Minister responsible for Land Reform to show cause why:
(a) His decision to issue land tax assessment subsequent to 31 March 2013;
(b) His decision to grant exemptions to land owners from paying land tax during the
period 1 period 1 April 2008 to 31 March 2013
should not be reviewed and set aside.
[116] Under paragraphs G, H and I the applicant in its notice of motion seek orders under
prayers 31, 32 and 33:
(a) for the Land Reform Advisory Commission (the fourth respondent) to show cause
why the land tax it has recovered over the period 1 April 2002 to 31 March 2013
should not be reviewed and set aside;
(b) for the Minister responsible for Land Reform to show cause why the imposition of a
rate in terms of 76 (1) of the Act in the Government Gazette of 1 September 2004
( No. 3269 Notice No. 193) should not be reviewed and set aside; and
54
(c) For the repayment to it by the Land Reform Advisory Commission (the fourth
respondent) of all land tax recovered from it during the period 1 April 2002 to 31
March 2013.
[117] In the supporting affidavit, the applicant simply states that the challenge of the
administrative action that I have referred to above in paragraphs [114] to [116] is based
upon the alleged absence of statutory authority, the failure by the functionaries to apply
their minds properly to the decision making, the failure by the functionaries to appreciate
the nature of their statutory powers and duties, the fact that the assessments were issued
by the Ministry of Land Reform and not by the Commissioner of Inland Revenue as
required by Regulations 21(1) and 21(3), the unreasonableness of the assessment in
terms of Article 18 of the Constitution and the absence of rationality in the decision-
making. No other details are provided.
[118] From paragraphs [114] to [116] above, it is clear that some of the administrative
decisions and actions which the applicant challenges date back to the year 2002. This is
more than eleven years ago. The only decision which is not so old is the Minister of Land
Reform’s decision to issue land tax assessment subsequent to 31 March 2013. The
challenge of the decisions that were taken more than nine years ago led Mr Gauntlett to
raise the delay rule, namely that the application for review was not brought within a
reasonable time and submitted that the application should be dismissed on that basis.
[119] In the matter Namibia Grape Growers and Exporters Association and Others v
The Ministry of Mines and Energy and Others52 Strydom ACJ at page 214, stated that:
‘Because no specific time is prescribed for the institution of review proceedings, the
Courts, as part of their inherent power to regulate their own procedure, have laid down
that a review must be brought within a reasonable time. The requirement of a
reasonable time is necessary in order to obviate possible prejudice to the other party,
and because it is in the interest of the administration of justice and the parties that finality
should be reached in litigation. Where the point is raised that there has been
unreasonable delay the Court must first determine whether the delay was unreasonable.
This is a factual inquiry depending on the circumstances of each case. Once it is 52 2004 NR 194 (SC). See also – Wolgroeiers Afslaers v Munisipaliteit van Kaapstaad 1978 (1) SA 13 (AD).
55
satisfied that the delay was unreasonable the Court must determine whether it should
condone the delay. In this regard the Court exercises a discretion. Because the
circumstances in each particular case may differ from the next case, what is, or what is
not, regarded in other cases to be an unreasonable delay is not of much help, except to
see perhaps what weight was given to certain factors.
[120] As I have indicated above, in the present matter, the applicant challenges the
validity of certain administrative decisions and actions that were taken as far back as 2002.
A period of nine years is an unreasonable delay in the extreme and it calls for an
explanation from the applicant on oath as to why it took so long before it instituted the
review proceedings. There is not a single sentence or paragraph in the applicant’s affidavit
explaining why it took close to nine years in some and eleven years in other instances, to
challenge the administrative decisions in question. From its failure to provide any
explanation, let alone a reasonable and acceptable one for its delays only one reasonable
inference can therefore be drawn, namely that applicant took no purposive action.
[121] The applicant took its time and thus created the defence of undue delay running the
risk of not complying with the legal requirements. Its conduct shows a high degree of
indifference. I am therefore of the opinion that the delay in this matter is a sufficient ground
on its own to refusing to hear the application for the review of the administrative decision
and actions that I have referred to above in paragraph s [114] to [115] above. As it was
observed in the matter Krüger v Transnamib Limited (Air Namibia) and Others,53 this Court
cannot now be expected in the circumstances of this matter 'to drag a cow long dead out
of a ditch'.
The relief claimed under paragraphs J to K
[122] The applicant in its notice of motion under paragraphs J and K seek orders under
prayers 34, and 35:
(a) Compelling the Minister responsible for Land Reform to disclose the names of the
53 1995 NR 84 (HC).
56
applicants to whom exemption was granted and if s 76B of the Act is valid,
compelling the Minister to recover land tax from applicants all exempted amounts
for the benefit of the Fund;
(b) For the for the Minister responsible for Land Reform to show cause why provisional
valuation published in Government Gazette No. 5235 of 1 July 2013 should not be
reviewed and set aside; and why the decision regarding the sitting of the valuation
court in Government Gazette of 1 July 2013 should not be reviewed and set aside.
[123] It is common cause that the applicant initiated its application during August 2013. At
that time the current Rules of this Court were not yet in operation. The Rule under which
the action decision or action of an administrative official or administrative body could be
reviewed at that time was Rule 53 and where a person sought the discovery of documents
the correct rule was Rule 35. The relief sought in prayer 34 of the applicant’s notice of
motion is therefore not competent under proceedings instituted under Rule 53.
[124] The relief sought in prayer 35 of the applicant’s notice of motion was dealt with in
the judgment of Mr Justice Hoff delivered on 18 September 2013. It follows that the
applicant’s application under case number A 295/2013 must be dismissed and is hereby
dismissed.
THE APPLICATION UNDER CASE NUMBER A 21/2013
[125] During January 2015, the applicant received a notice from the Ministry of Land
Reform that it has been assessed to pay land tax for the period 2013/2014. The notice
of assessment states that the tax was payable on or before 28 February 2015. On 13
February 2015, the applicant, under Case No A 21/2015, applied to this Court to have
that assessment reviewed and set aside. In the alternative, the applicant sought an
order declaring the assessment unconstitutional and invalid.
[126] The grounds on which the applicant challenges the land tax assessment are that:
57
(a) The Minister responsible for Land Reform allegedly failed to comply the rule of
law, constitutional legality including rationality.
(b) The Minister responsible for Land Reform ignored the relevant provisions of the
Act and the necessary jurisdictional facts and the assessment is therefore ultra
vires the empowering legislation in the following respects:
(i) The assessment was not made and served as by the Commissioner for
Inland Revenue as required by Regulations 21(1) and 21(3);
(ii) There is no applicable valuation roll, in terms of Regulation 16(4) as the
previous roll/expired on 31 March 2013 and there was no subsequent
certification of a new valuation roll;
(iii) Regulations are inherently phenomena subject to and expressing
ministerial whim, unacceptable in respect of tax legislation.
(c) The Minister responsible for Land Reform allegedly failed to apply his mind
properly to the matter.
I will now proceed to consider these grounds of review.
The alleged failure of the Minister to comply with the rule of law, constitutional legality
including rationality.
[127] I have, above, emphasized the need for specifics when challenging the
constitutionality or validity of administrative action or decision. Rule 76(3) of this Court’s
Rules reads as follows:
‘(3) The application [i.e. to review and set aside an administrative decision or action]
must set out the decision or proceedings sought to be reviewed and must be
supported by affidavit setting out the grounds and the facts and circumstances on
which the applicant relies to have the decision or proceedings set aside or
corrected.’ (Underlined for Emphasis)
58
[128] The Rule thus directs the minds of litigants (and in particular legal practitioners)
in this Court to focus on specifics. To echo the words of Ackerman J54 the purpose of
the Rule is to bring to the attention of persons (who may be affected by or have a
legitimate interest in the case) the particularity of the decision challenge, and the nature
of the alleged illegality in order that they may take steps to protect their interests. The
allegation that the Minister failed to comply with the rule of law, constitutional legality
including rationality is a hollow statement, it does not tell the Minister or direct this court
to how the assessment (which is sanctioned by law) contravenes the rule of law,
constitutional legality or how the assessment is irrational. It is impossible for me to make
a decision as to the breach of the rule of law or constitutional legality alleged without
having been appraised of the facts on which the allegation is based. The applicant has
thus failed to discharge the onus resting on it to prove that the assessment to pay land
tax for the period 2013/2014 is in breach of the rule of law, constitutional legality or is
irrational.
Is the land tax assessment for the period 2013/2014 ultra vires the empowering
legislation?
[129] Mr. Tőtemeyer argued that, the assessment to pay land tax for the period
2013/2014 is ultra vires the empowering legislation, amongst other things, because the
assessment was not made and served by the Commissioner for Inland Revenue as
required by Regulations 21(1) and 21(3); there is no applicable valuation roll in terms of
Regulation 16(4) as the previous valuation roll expired on 31 March 2013 and there has
been no subsequent certification of an applicable valuation roll by a valuation court in
terms of Regulations 13 (7) and 16. He proceeded to argue that the Regulations
contain extensive provisions constituting jurisdictional facts which were ignored in their
totality. The failure to comply with these statutory prerequisites for validity renders the
assessment a nullity. Particular reference can be made to Regulations 3, 4, 6, 7, 8 to
15 and 16, he argued.
54 In the matter of Shaik v Minister of Justice and Constitutional Development and Others, 2004 (3) SA 599 at para [24] - [25].
59
The alleged absence of a main valuation roll.
[130] In the interests of clarity and for the sake of completeness, I will briefly set out the
legal framework which leads to an agricultural land owner being assessed to pay land
tax. Parliament enacted legislation (s 76, the Act ) empowering the Minister with the
concurrence of the Ministers responsible for agricultural affairs and finance to levy land
tax to be paid for the benefit of the Land Acquisition and Development Fund. In s 77 of
the Act Parliament authorised the Minister to make Regulations that will set out the
details of how the land tax is to be levied and collected. The Minister made the
Regulations and the Regulations were approved by Parliament and made known by
notice in the Government Gazette.55
[131] Regulation 3(1)(a),provides that the Minister must cause general valuation to be
made in respect of all agricultural land. In terms of regulation 3(3), the Minister must, by
notice in the Gazette, determine the date of valuation and the period during which any
general valuation must be made. A valuer is then appointed56, agricultural land is
valued57; objections are called for58, received and submitted to the valuation court59, the
valuation court is established60, and considers the objections61 and approves the
valuation roll.62 Once the valuation roll is certified, the Minister causes a notice to be
published in the Gazette and at least two newspapers informing all persons that the
valuation roll has been completed and certified.63 This process must take place at
interval of five years.
[132] It is common cause that the first main valuation roll for the period 31 March 2002
to 1 April 2007 in respect of agricultural land in Namibia was considered and approved
during August 2004 and the second main valuation roll for the period 31 March 2007 to
1 April 2013 was approved by the valuation court during 2008. The third main valuation
55 See Government Notice No. 120 of 2007 in Government Gazette No. 3870 OF 3 July 2007.56 Regulation 4.57 Regulation 4(6).58 Regulation 6(4)(c).59 Regulation 7.60 Regulation 8.61 Regulation 12(1).62 Regulation 12(3).63 Regulation 16(3).
60
roll for the period 31 March 2013 to 1 April 2018 was, at time this judgment was still
under preparation, still under consideration by the valuation court. This means that for
the period commencing 1 April 2013 the provisional valuation roll had not been
approved by the valuation court. Despite the fact that the valuation roll has not been
approved by the valuation court the Ministry of Land Reform, using the 2007 to 2013
valuation roll still caused land tax to be assessed and notified the owners of agricultural
land (including the applicant) to pay the assessed land tax for the period 2013/2014 on
or before 28 February 2015. This is what the applicant argues is illegal and the Ministry
cannot do.
[133] Before I deal with the contentions of the parties, I find that a reminder of how we
must approach statutory interpretation appropriate. In the matter of Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others64 Ngcobo J explains the proper
approach to statutory interpretation as follows:
'The emerging trend in statutory construction is to have regard to the context in which
the words occur, even where the words to be construed are clear and unambiguous.
Recently, in Thoroughbred Breeders' Association v Price Waterhouse 2001 (4) SA 551
the SCA has reminded us that:
''The days are long past when blinkered peering at an isolated provision in a statute
was thought to be the only legitimate technique in interpreting it if it seemed on the
face of it to have a readily discernible meaning. As was said in University of Cape
Town v Cape Bar Council and Another 1986 (4) SA 903 (A) at 914D - E:
'I am of the opinion that the words of s 3(2)(d) of the Act, clear and unambiguous
as they may appear to be on the face thereof, should be read in the light of the
subject matter with which they are concerned, and that it is only when that is
done that one can arrive at the true intention of the Legislature.'
[134] Mr. Gauntlett argued that the applicant’s contention rest on a legal
misconception, namely that the failure to perform an administrative function within a
stipulated time divests an administrative official of a legal power or duty. He continued
64 2004 (4) SA 490 (CC) at para [90].
61
and argued that the correct position is that time periods imposed on public bodies are
generally not intended to vitiate the exercise of public power. There is merit in Mr.
Gauntlett’s submissions. I say so because Mr. Gauntlett cited as authority for his
argument the case of Volschenk v Volschenk65 where Malan J said:
‘I am not aware of any decision laying down a general rule that all provisions with
respect to time are necessarily obligatory, and that failure to comply strictly therewith
results in nullifying all acts done pursuant thereto. The real intention of the legislature
should in all cases be enquired into and the reasons ascertained why the legislature
should have wished to create a nullity.
[135] I am aware of at least four cases decided by South African Courts in which there
was a failure to comply strictly with the provisions of an enactment and in which the
failure to perform an administrative function within a stipulated time did not render the
performance of an administrative decision outside the time set a nullity, but the objects
of the Legislature had to be considered first, these are the cases of Pio v. Franklin, N.O.
and Another66, Crawford and Others v. Borough of Eshowe and Another67,
Motorvoertuigassuransiefonds v Mavundla68, and Charlestown Town Board v.
Vilakazi,69 In the Charlestown Town Board v. Vilakazi case, Schreiner, J.A., expressed
himself as follows:
‘Though provisions as to time are sometimes dealt with as if they formed a special
category in this connection, it seems clear that such enactments too must be dealt with
in the light each of its own language, scope and object and the consequences in relation
to justice and convenience of adopting one view rather than the other.’
[136] From the above statement it is clear that what is required in regard to
considerations of the effects of non-compliance with time limits set in a statutory
provision is an evaluation of all relevant factors such as language, scope, objects of the
65 1946 TPD 486 at 490.66 1949 (3) S.A. 442 (C) at pp. 451-453.67 1956 (1) SA 147 (N) at p. 153:68 1989 (1) SA 558 (T) at p 564.69 1951 (3) SA 361 (AD) at p 370.
62
statutory provision, with justice and fair play being crucial considerations.70. This ties in
with the suggestions made by Malan J in the Volschenk case71 when he said:
‘An important consideration should be whether by failure to adhere to a strict
compliance with the time provision substantial prejudice would result to persons or
classes of persons intended to be protected and if prejudice may result whether it is
remediable or whether it may be cured by allowing an extension of time.’
[137] In the present matter Regulation 2 (1) stipulates that there must, in respect of
each financial year, be paid by every owner of agricultural land for the benefit of the
Fund land tax based on the land value (also to be known as the unimproved site value)
of that land as shown on the main or interim valuation roll. As I have indicated above the
valuation roll is prepared as contemplated in Regulations, 3, 4, 6 7, 8 12 and 16. The
purpose of the valuation roll is clear, it provides the “V” variable required for the
calculation of the land tax in terms of the formula set out in section 76(1)(a) of the Act.
Regulation 16 provides that when the valuation court has completed its consideration of
the provisional valuation roll the presiding officer must certify the valuation roll72 and the
Minister must cause a notice to be published in in the Gazette and at least two
newspapers wildly circulating in Namibia informing all person that the valuation roll has
been completed and certified in terms of the regulations and that on coming into
operation the main valuation roll supersedes any previous main or interim valuation
rolls.73 Regulation 17(3)74 provides that the valuation roll is valid for a period of five years
from the date it comes into operation.
[138] If we accept the interpretation contended for by the applicant it means that once
a valuation roll has come into force that roll remains valid for a period of five years and if
70 See for example the case of Suidwes-Afrikaanse Munisipale Personeel Vereniging v Minister of Labour and Another 1978 (1) SA 1027 (SWA) where Hart A JP said:
‘…the principle in my opinion has now been firmly established that, in all cases of time limitations, whether statutory or in terms of the Rules of Court, the Supreme Court has an inherent right to grant condonation where principles of justice and fair play demand it to avoid hardship and where the reasons for strict non-compliance with such time limits have been explained to the satisfaction of the Court.’
71 Supra footnote 62 at p 490.72 Regulation 16(1).73 Regulation 16(3)(a).74 Prior to it being amended during August 2015.
63
no other main valuation roll succeeds that roll the Ministry of Land Reform cannot levy
land tax because the basis (i.e. the valuation roll) for levying land tax is absent. But how
does one first, reconcile that interpretation with the obligation imposed on the
agricultural land owners to pay land tax in respect of each financial year and the
provision in Regulation 16(3) that the existing valuation roll is only succeeded by a
valuation roll which has been approved by the valuation court? The interpretation
contended for by the applicant clearly leads to an absurdity and impossibility.
[139] The authorities that I have referred to above in paragraphs [117] and [118] clearly
postulate a value-coherent and teleological theory of interpretation involving a balancing
of the interest and values concerned. It is furthermore by now trite that not only the
empowering provision of the Constitution but also of the Act must be understood
purposively because it is remedial legislation umbilically linked to the Constitution.
Therefore, in construing Regulation 17(3) in its setting of s 76 of Act, we are obliged to
scrutinise its purpose. The purpose of the Act and the Taxation Regulations is to
facilitate land reform in Namibia which, in my opinion, reflects the ‘uniquely caring and
humanitarian quality of the Namibian Constitution.’
[140] In my view the interpretation contended for by the applicant, apart from the fact
that it does not accord with the purpose of the Act and the Regulations, is not the only
possible interpretation. It is also possible to interpret the Regulations as providing for a
valuation roll which was approved by the valuation court to remain valid beyond the five
year period set out in the Regulations until it is superseded (the synonym for
superseded is succeeded) by another main valuation roll approved by the valuation
court. If the interpretation contended for by the applicant is accepted how will a
valuation roll that has ceased to be valid be succeeded?
[141] The questions that must be answered is whether such an interpretation (i.e. that
a valuation roll which was approved by the valuation court to remain valid beyond the
five year period set out in the Regulations until it is superseded by another main
valuation roll) will result in justice and fairness to the persons or class of persons
intended to be protected by the requirement that the valuation roll must be valid for five
years and whether extending the lifespan of the valuation roll beyond the five years
64
period until another valuation roll is approved will prejudice agricultural land owners.
The answer in my view is that it will be fair and just to extend the lifespan of the
valuation roll. I say so because it is common cause that land value increases with time
and being assessed on the 2007 to 2013 valuation roll surely means that the land
owners are being assed at a value which does not reflect the true or real value of the
land at present.
[142] Secondly the applicant has not contend or placed any evidence before us of the
prejudice it will suffer if the 2007 to 2013 valuation roll is used (until another valuation
roll supersede it) as a basis for the assessing of the land tax which the owners of
agricultural land must, in terms of Regulation 2(1) pay in respect of each financial year. I
therefore do not agree that the Ministry acted ultra vires the Act when it used the 2007
to 2013 valuation roll to assess the land tax which the applicant had to pay in respect of
the 2013/2014 financial year.
The assessment was not done and served by the Commissioner of Inland Revenue.
[143] The second leg of the applicant’s assault on the assessment in respect of the
2013/2014 is the allegation that the assessment was not made and served by the
Commissioner for Inland Revenue as required by Regulations 21(1) and 21(3). The
powers were according to the applicant and Mr. Tőtemeyer performed by the wrong
author which renders the exercise of the power a nullity.
[144] It is correct that the principle, that a discretionary power vested in one
administrative official may not be usurped by another, is now well established in our
public law. If an official in whom the power to act is vested fails to do so and any other
person or body makes the decision; such decision flowing therefrom is unlawful and a
nullity and qualifies to be reviewed and set aside.75 Mr. Gauntlett however, argued that
in this matter the correct position is that the Commissioner of Inland Revenue is a
supernumerary for whose involvement the Act itself nowhere provides for. Both Mr.
Gauntlett and Mr. Cassim (who argued in the Case No. A 197/2015) submitted that s
75 L Baxter Administrative Law: 1984 Juta at 442. Also see the unreported judgment of Former Members of the Rössing Pension Fund v Rössing Pension Fund & Other (A 234/2014) [2016] NAHCMD 155b (1 June 2016).
65
76(1)(a) of the Act, vests the power and the discretion to impose land tax in the Minister
and that Regulation 21(1) does not, in any way detract or take away and cannot at law
take away the power of the Minister to impose land tax, including the power to issue the
land tax assessment.
[145] I find it appropriate to commence my evaluation of the applicant’s contention by
stating that Baxter has argued that in legal parlance power means lawfully authorized
power. He proceeds and argue that public authorities possess only so much power as is
lawfully authorised, and every administrative act must be justified by reference to some
lawful authority for that act.76 I have observed above that in modern democracies
original power derives from the political authority of elected legislatures. It thus follow
that all the authority for administrative actions emanates from legislation (both primary
and subordinate legislation). It is quite possible that different legislative enactments
might create empowering provision which appear to conflict with each other. In the
matter of Komani NO v Bantu Affairs Administration Board, Peninsula Area77 the
Appellate Division (the forerunner of the Supreme Court of Appeal) held that where a
subordinate legislation purports to limit the powers conferred by a parent Act, the sub
ordinate legislation will to that extent be invalid.
[146] In the present matter I agree with both Mr. Gauntlet and Mr. Cassim that s 76(1)
(a) of the Act empowers the Minister to, with the concurrence of the Minister responsible
for agriculture, and the Minister responsible for finance, for the benefit of the Fund by
regulations made under section 77, impose a land tax to be paid by every owner of
agricultural land on the value of such land. It is also correct that the Taxation
Regulations empower the Commissioner of Inland Revenue to, from the valuations
supplied by the Minister, cause assessments to be made of land tax payable by owners
of agricultural land, and Regulation 21(3) stipulates that the Commissioner of Inland
Revenue must serve the notice assessment on the owner of agricultural land
concerned. In my view, firstly Regulation 21 (1) does not in any way restrict the power
conferred by s 76(1)(a) on the Minister, if it did, it would in any event be void. Secondly
Regulation 21(1) does not state that the Commissioner of Inland Revenue herself or
76 Supra at 384.77 1980 (4) SA 448 (A)
66
himself must assess the land tax, all it says is that the Commissioner must cause land
tax to be assessed but does not say by whom, so in my view there is therefore nothing
ultra vires the Act if the assessment for land tax was done by the Ministry of Land
Reform.
[147] As regards the service of the assessment I am equally of the view that
Regulation 21(3) in no way detracts from the power of the Minister to serve the land tax
assessment. Both the making and service of land tax assessments are merely incidents
of the imposition of the land tax, which power always remains vested in the Minister. I
therefore also find that the Minister did not act ultra vires the Act when his officers
served the land tax assessment on the applicant.
[148] In passing both the applicant and Mr. Tőtemeyer made the statement that
Regulations are inherently phenomena subject to and expressing ministerial whim,
unacceptable in respect of tax legislation. That statement is misleading. I say so
because it is now well established that in public law powers are conferred for many
different reasons, but whatever their purpose they are designed to serve the public
interest. Unlike the case where individuals enjoy certain powers, which may be used to
advance their private interest, public powers may not be used or abused at the personal
whim of the official or body upon whom they have been conferred, they must be used to
advance the public and private interest for which they have been conferred. This
principle was stated as follows by Schreiner JA in his dissenting judgment in the matter
of Mustapha and Another v Receiver of Revenue, Lichtenburg and Others.78
‘The powers of fixing the terms of the permit and of acting under those terms are all
statutory powers. In exercising the power to grant or renew, or to refuse to grant or
renew, the permit, the Minister acts as a state official and not as a private owner, who
need listen to no representations and is entitled to act as arbitrarily as he pleases, so
long as he breaks no contract. For no reason or the worst of reasons the private owner
can exclude whom he wills from his property and eject anyone to whom he has given
merely precarious permission to be there. But the Minister has no such free hand. He
receives his powers directly or indirectly from the Statute alone and can only act within
its limitations, express or implied. If the exercise of his powers under the sub-section is
78 1958 (3) SA 343 (A) at p 347.
67
challenged the Courts must interpret the provision, including its implications and any
lawfully made regulations, in order to decide whether the powers have been duly
exercised.’
[149] It is thus clear that the power conferred on the Minister by s 76 read with s 77 is
designed to serve the public interest namely to facility land reform in Namibia and the
use of the power is subject to the control by courts. In my view there are no merits in the
application brought under Case Number A 21/2015 and that application must also be
dismissed.
THE APPLICATION UNDER CASE NUMBER A 197/2015.
[150] On the 3rd of August 2015, the applicant received an assessment (which was
dated the 1st of April 2015) from the Ministry of Land Reform for payment of land tax for
the financial year 2014/2015. In terms of that assessment the applicant had to pay the
land tax on or before 30 August 2015. Less than a day (that is, on 04 August 2015)
after the applicant received the assessment it, on an urgent basis, launched an
application (setting down the hearing of that application for 18 August 2015) in this court
in terms of which it, amongst other reliefs it seeks, sought an order declaring the
assessment served on it on 03 August 2015 (in respect of the financial year 2014/2015),
as illegal and null and void. In the alternative the applicant seeks an order declaring the
assessment to be unconstitutional and thus invalid.
[151] The Ministry of Land Reform opposed the application and as a result the parties
agreed to a time period within which to exchange papers and the matter was ultimately
set down for hearing on 17 September 2015. I heard arguments in respect of that
application on that day and at the conclusion of hearing the application I promised to
deliver judgment on 28 January 2016. I have above also set out the reasons why I did
not deliver the judgment as promised during January 2016.
[152] The assessment dated 1 April 2015 for payment of land tax on 30 August 2015
for the 2014/2015 tax year was challenged on the same basis as in A 21/2015 namely
that:
68
(a) The Minister responsible for Land Reform allegedly failed to comply the rule of
law, constitutional legality including rationality.
(b) The Minister responsible for Land Reform ignored the relevant provisions of the
Act and the necessary jurisdictional facts and the assessment is therefore ultra
vires the empowering legislation in the following respects:
(i) The assessment was not made and served as by the Commissioner for
Inland Revenue as required by Regulations 21(1) and 21(3);
(ii) There is no applicable valuation roll, in terms of Regulation 16(4) as the
previous roll/expired on 31 March 2013 and there was no subsequent
certification of a new valuation roll;
(iv) Regulations are inherently phenomena subject to and expressing
ministerial whim, unacceptable in respect of tax legislation.
(iii) The Minister responsible for Land Reform allegedly failed to apply his
mind properly to the matter.
[153] In the application under case number A 197/2015 the applicant further pointed
out that the assessment dated 1 April 2015 for payment of land tax on 30 August 2015
in respect of the 2014/2015 financial year could also not have been affected by the
amendment of regulation 17(3) which is challenged in the application under case
number A 234/2015, because the 2014/2015 assessment was already received on 3
August 2015. The amended Regulation is dated 17 August 2015. I will deal with the
challenge in respect of the amendment of Regulation 17(3) when I deal with the
application under case number A 234/2015. The reasoning and the findings I made in
respect of the application brought under Case Number A 21/2015 are applicable to the
application brought under case number A 197/2015. In my view there are, equally, no
merits in the application brought under Case Number A 197/2015 and that application
must also be dismissed.
69
THE APPLICATION UNDER CASE NUMBER A 234/2015
[154] The Minister responsible for Land Reform, on 17 August 2015, gave notice by
means of Government Notice number 185 of 2015 published in Government Gazette
Number 5809 of the amendment of Regulation 17(3) of the Taxation Regulations. The
amendment reads as follows:
‘Amendment of regulation 17 of Regulations
2. Regulation 17 of the Regulations is amended by the substitution for
subregulation (3) of the following subregulation:
“(3) The valuation roll is valid from the date it comes into operation until it is
replaced by a new valuation roll.” ’
[155] The applicant alleges that:
(a) The amendment creates a new regime which can endure indefinitely and it is
destructive to the existing regime, is inherently illegally retrospective, takes away
limited existing rights, makes the imposition of the tax even more unpredictable;
(b) The amendment is in conflict with the rule of law and Article 18 of the
Constitution which provides for fairness, Article 12(1)(a) of the Constitution which
determines dispute resolution, Article 8 of the Constitution which entrenches
human dignity, open justice demanded by the rule of and openness and
accountability required by the rule of law.
(c) The amendment is further ultra vires sections 76(2)(a) and 77 of the Act.
On the above grounds the applicant seeks an order declaring the amendment of
regulation 17(3) of the Taxation Regulations null and void.
70
[156] In support of the applicant’s contentions Mr. Tőtemeyer argued that the new
Regulation 17(3) is an ultra vires and impermissible attempt to breathe life into a
valuation roll which had lapsed more than two years earlier and was an attempt at
extending its life indefinitely. Mr. Gauntlett on the other hand argued that the correct
legal position is that the Minister’s power to prescribe regulations includes the power to
prescribe regulations includes the power to amend Regulation 17(3) and that the correct
factual position is that the respondents’ pleaded case is that all that the amendment
intends to achieve is legal certainty. It is to these opposing arguments that I now turn.
Does the amendment of Regulation 17(3) create a new regime which endures
indefinitely and which is destructive to the existing regime and which is inherently
illegally retrospective?
[157] The applicant insists on its interpretation that the terms of Regulation 17(3) as it
stood before its amendment meant that a valuation roll evaporates five years after its
inception. I have found that if the regulations are contextually interpreted the valuation
roll only lapses when it is succeeded by a valuation roll approved by the valuation court.
The interpretation I have placed on Regulation 17(3) accords with the amendment
introduced by the Minister on 17 August 2015. Regulation 17(3) does not affect
Regulation 3, which requires the Minister to cause agricultural land to be valued at
intervals of five years, it also does not affect Regulations 4, 6, 7, 8 and 16 which deal
with the process of determining the unimproved site value of agricultural. All that
Regulation 17(3) does is to make it clear that if the process of determining the
unimproved site value of agricultural land within the interval of five years, a valuation roll
that has been approved by the valuation court remains valid until the when the process
of validation of the valuation roll is completed. This does not create a new regime of
taxation or destruct the existing taxation regime as contended for by the applicant.
[158] It is true that there is at common law a prima facie rule of construction that a
statute (or any amendment or legislatively authorised alteration thereto) should not be
interpreted as having retrospective effect.79 The presumption against retrospectivity
79 National Iranian Tanker Co v MV Pericles GC 1995 (1) SA 475 (A) at 483H; Protea International (Pty) Ltd v Peat Marwick Mitchell & Co 1990 (2) SA 566 (A) at G 570B—C.
71
arising from this rule may be rebutted, either expressly or by necessary implication, by
provisions or indications to the contrary in the enactment under consideration.80 In the
Lek v Estate Agents Board matter the court held that the presumption against
retrospectivity does not apply when it must be inferred from the provisions of the Act
that the Legislature intended the Act to be retrospective. Such an inference can be
drawn when the consequences of holding an Act to be non-retrospective would lead to
an absurdity or practical injustice.81
[159] In the matter of Ex parte Christodolides82, it was held that a statute, which deals
with a topic or subject which has been subject of some doubt and which is intended to
clarify and settle that doubt operates retrospectively. The court said ‘the retroactive
operation of such a purely declaratory provision is recognised for the very reason that it
merely interprets the already existing law without amending it’. If Regulation 17(3) is
given retrospective effect as, in my view, it should be given, the result is that, only in
that event will the Minister be in the position to carry out the purpose of the Act. To
interpret Regulation 17(3) otherwise, would lead to an absurdity which could never have
been intended by the Legislature. For these reasons I hold that the amendment of
Regulation 17(3) is valid.
Is the amendment of Regulation 17(3) in conflict with the rule of law and Articles, 8,
12(1)(a) and 18 of the Constitution ?
[160] Both the applicant and Mr. Tőtemeyer do not substantiate, the simple assertions
that the amendment of Regulation 17(3) violates the rule of law, Articles 8, 12(1)(a), and
18 of the Constitution, open justice demanded by the rule of and openness and
accountability required by the rule of law. As I have indicated earlier on in this judgment
a litigant challenging the constitutionality of administrative actions or decision is required
to set out the grounds and facts on which the challenge is based. The applicant has not
done so and I therefore agree with Mr. Gauntlet that the applicant’s challenge is in those
circumstances, is legally misconceived.
80 Lek v Estate Agents Board 1978 (3) SA 160 (C) at 169F--G.81 Ibid.82 1959 (3) SA 838 (T) at p. 841 also see the case of Parity Insurance Co Ltd v Marescia and
Others 1965 (3) SA 430 (A).
72
Is the amendment of Regulation 17(3) ultra vires sections 76(2)(a) and 77 of the Act?
[161] My comments with regard to the substantiation of a litigant’s assertions that
administrative actor decision is invalid apply with equal force to the assertion that the
amendment of Regulation 17(3) is ultra vires the Act. The applicant is required to do
more that the simple assertion that the amendment of Regulation17 (3) is ultra vires s
76(2) (a) and 77 of the Act. Section 76(2)(a) of the Act stipulates that for the purpose of
imposing land tax the Taxation Regulations may provide for the method of calculating
land tax and the due date for the payment and manner of collection and recovery of the
land tax (including interest on the land tax). The amended Regulation 17(3) does not in
any way interfere with the due date of paying land tax. The due date for paying land tax
is dealt with by Regulation 21(3) which provides that when assessment for the payment
of land tax has been made the Commissioner of Inland revenue must serve a notice of
assessment on the owner of agricultural land stating the amount of land tax payable and
the date on which the land tax is due and payable. The argument that Regulation 17(3)
is ultra vires s 76(2)(a) is therefore fallacious.
[162] Section 177 simply empowers the Minister to make regulation in respect of
matters stated in that section namely, the forms to be used for the purpose of the Act,
the procedures for making an application under the Act, the procedure for applying for
any consent to any transaction relating to or affecting land under the Act and any matter
required or permitted to be prescribed by regulation under the Act. Section 76(2)(d)
empowers the Minister to make regulations which provide for the preparation of a
valuation roll, the contents of a valuation roll and the manner in which objections against
such a roll may be lodged. I agree with Mr. Gauntlett’s argument that s 76 or 77 for that
matter does not empower the Minister to impose an automatic termination date on the
validity of the valuation roll. I therefore do not see how the amended Regulation 17(3) is
ultra vires the Act.
THE APPLICATION UNDER CASE NUMBER A 158/2016
73
[163] On 11 April 2016, the applicant received an assessment (which was dated the 1 st
of April 2016) from the Ministry of Land Reform for payment of land tax for the financial
year 2015/2016. In terms of that assessment the applicant had to pay the land tax on or
before 29 July 2016. On 22 May 2016 the applicant launched an application, under
case number 158/2016, in this court in terms of which it, sought an order declaring the
amendment of Regulation 17(3) of the Taxation Regulations and the assessment
served on it on 11 April 2016 (in respect of the financial year 2015/2016), null and void.
[164] The validity of the amendment of Regulation 17 (3) was challenged on exactly
the same basis as in the application under case A 234/2015, and the assessment dated
1 April 2016 for payment of land tax on 29 July 2016 in respect of the financial year
2015/2016 was challenged on exactly the same basis as in application number A
21/2015.
[165] The reasoning and the findings I made in respect of the applications brought
under Case Number A 21/2015 and case number A 234/2015 are applicable to the
application brought under case number A 158/2016. In my view there are, equally, no
merits in the application brought under Case Number A 158/2016 and that application
must also be dismissed.
THE APPLICATION UNDER CASE NUMBER A 184/2016
[166] On 1 June 2016, the Minister responsible for Land Reform, acting in terms of
Regulation 6(4) issued a notice, Government Notice in the Government Gazette No 6023
of 1 June 2016. In that notice the Minister among other things, notified the public that:
(a) The provisional valuation roll and the Iso –value map laid open for inspection during
office working hours at place set out in Column 1 of that notice;
(b) The valuation court would commence its sitting on 1 August 2016 to consider the
valuations contained in the provisional valuation roll;
74
(c) Every owner of agricultural land in respect of which a valuation is contained in the
provisional valuation roll and who wishes to object to the valuation must do so not
later than thirty days from the date of the notice.
[167] On 13 June 2016, the applicant on an urgent basis launched this application,
amongst other things seeking an order declaring the notice issued by the Minister of Land
Reform, on 1 June 2016 a nullity. The basis on which the applicant seeks the declaratory
order is the contention that ss 76 and 77 of the Act and the Taxation Regulations are
inconsistent with Constitution. The applicant furthermore basis the relief it seek on the
following allegations namely that:
(a) the Minister failed to invoke Regulation 3;
(b) the Commission did not nominate a valuer as is required by the regulation 4(1);
(c) the valuer was not appointed as is required by the regulation 4;
(d) the valuer did not make a declaration as required by regulation 6(1) and 6(2).
[168] In order to appreciate the allegations that the jurisdictional facts set out in
Regulations 3, 4 and 6 were not complied with, I will briefly set out the background against
which the allegations are made. I have indicated above that the first main valuation roll for
the period 2002 to 2007, was approved by the valuation court during 2004 and the second
main valuation roll for the period 2007 to 2013 was approved by the valuation court during
the year 2008. Prior to the expiration of the second main valuation roll, the Minister of Land
Reform set in motion the process contemplated in the Taxation Regulations for the
certification of the third main valuation.
[169] The process culminated in the Minister of Land Reform giving notice by
Government Notice No. 175 of 2013 published in Government Gazette Number 5235 of
1 July 2013 amongst other things that:
(a) The provisional valuation roll and the Iso –value map laid open for inspection during
75
office working hours at the places specified in the schedule to that notice during the
period 1 July 2013 to 30 July 2013;
(b) The valuation court would commence its sitting at ‘10h00 from 30 August to 2013
September 2013’ to consider the valuations contained in the provisional valuation
roll; and
(c) Every owner of agricultural land in respect of which a valuation is contained in the
provisional valuation roll and who wishes to object to the valuation must do so not
later than thirty days from the date of the notice.
[170] On 9 September 2013 the applicant launched an urgent out of this court in terms
of which it sought an order ‘Declaring that the sitting of the valuation court established in
terms of the provisions of Regulation 8 of Government Notice No. 120 of 2007 (GG No.
3870) dated 3 July 2007 (“the valuation court”) and ostensibly scheduled for ‘30 August
to 2013 September 2013’ to be null and void;’ Alternatively, suspending the proceedings
of the valuation court pending the final determination of applicant’s application under
case number A 295/2013 in the above Honourable Court.’
[171] On 18 September 2013 this Court per Mr. Justice Hoff amongst other things
made the order that ‘The sitting of the valuation court established in terms of the
provisions of Regulation 8 of Government Gazette No. 120 of 2007 (GG No. 3870)
dated 3 July 2007 (‘the valuation court’) and scheduled for 30 August to 13 September
2013 is hereby declared null and void.’ Relying on the judgment by Mr. Justice Hoff the
applicant’s argument appears to be that the whole process of preparing a provisional
valuation roll (that is, commencing with the valuation of agricultural land as envisaged in
Regulation 3, the recommendation and appointment of a valuer as envisaged in
Regulation 4 and the giving of notice as envisaged in Regulation 6) must start de novo.
[172] The argument that the process of preparing a provisional valuation roll must start
afresh is untenable. I say so for the following reasons, the application that served before
Mr. Justice Hoff did not impugn the process of preparing the provisional valuation roll
76
nor the provisional valuation roll itself. In the matter of Black Range Mining (Pty) Ltd v
Minister of Mines and Energy and Others NNO83, the Supreme Court said:
‘… this court observed in Rally for Democracy and Progress and Others v Electoral
Commission of Namibia and Others 2010 (2) NR 487 (SC) in para 23, the rule of law is
one of the principles upon which our state is founded. The principle of legality is one of
the incidents that flows from the rule of law. It follows then that, by virtue of the
presumption of regularity, administrative acts — even those that may later be found to
have been invalid attract legal consequences until they are set aside or avoided.’
[173] I am of the view that, because the provisional valuation has not been set aside by
a court of law, that roll is and remains valid. There is therefore no logic that the process
of compiling the provisional valuation roll must start afresh. Mr. Justice Hoff also did not
state that the process of compiling a provisional roll must start afresh what he
envisaged to start afresh is the process contemplated in Regulation 8(5)(c) and
Regulation 6(4). He said:
‘[26] Constituting a court anew as provided for in reg 8(5)(c) by necessity includes the
provisions of reg 6(4) which provides that the Minister (first respondent) ‘must cause a
notice to be published in the Gazette and in at least two newspapers widely circulating
in Namibia on a date not earlier than 60 days before the date determined by the Minister
for the commencement of the sitting of the valuation court -’
[27] Therefore in my view recusal of the designated magistrate was a pivotal moment
in the determination of the legality of the valuation court. The Minister must in terms of
the Government Notice not only reconstitute the court but must in terms of reg 6(4)
cause a notice to be published not earlier than 60 days before the date to be determined
for the sitting of the valuation court. It follows in my view that no replacement magistrate
could have been appointed during the period 2 September 2013 until 13 September
2013 since to do so would violate the ‘not earlier than 60 days’ requirement prescribed in
reg 6(4). In my view the magistrate correctly recused herself in view of the perception of
bias.’
83 2014 (2) NR 320 (SC).
77
[174] I have already found that ss 76 and 77 of the Act and the regulations
promulgated thereunder are not inconsistent with the Constitution. I therefore conclude
that the application launched under case number A 184/2016 is misconceived and must
be dismissed.
The costs
[175] I now turn to the issue of costs. The basic rule is that, except in certain instance
where legislation otherwise provides, all awards of costs are in the discretion of the
court.84 It is trite that the discretion must be exercised judiciously, with due regard to all
relevant considerations. The court's discretion is a wide, and an equitable one.85 There
is also, of course, the general rule, namely that costs follow the event, that is, the
successful party should be awarded his or her costs. This general rule applies unless
there are special circumstances present.
[176] Mr Tőtemeyer, relying on the South African Constitutional Court case of Bio Watch
Trust v Registrar of Genetic Resources and Others86, simply submitted that ‘if the
respondents fail they are liable for payment of costs. If the applicant fails no order as to
costs should be made’. Mr Gauntlett, on the other hand, argued that ‘the applicant’s
application has been instituted and pursued in a vexatious manner, intent on frustrating
land reform. It was founded on deliberate factual misrepresentations. And it sought
extensive, relief much of which was manifestly inappropriate and received no support even
in the applicant’s own heads of argument. It is inequitable that the respondents’ defence of
this case should be funded by public money intended to be used for the type of reforms
the applicant sought to stymie.’
[177] The difficulty I have with Mr Tőtemeyer’s submission is simply this, he has referred
me to no authority of this Court or of the Supreme Court where the general rule stated in
Bio Watch Trust case was accepted as part of our law. I have perused at least four cases
involving constitutional litigation in our courts and none of these cases adopted the general
84 Hailulu v Anti-Corruption Commission and Others 2011 (1) NR 363 (HC) and China State Construction Engineering Corporation (Southern Africa) (Pty) Ltd v Pro Joinery CC 2007 (2) NR 674.
85 See Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045.86 2009 (6) SA 232 (CC) para [23].
78
rule propounded in the Bio Watch Trust case. The cases are Minister of Health and Social
Services and Others v Medical Association of Namibia Ltd and Another 87,Cultura 2000
and Another, v Government of the Republic of Namibia and Another88 Frank and Another v
Chairperson of the Immigration Selection Board 89 Africa Labour Services (Pty) Ltd v The
Minister of Labour and Social Welfare and Another90 Africa Personnel Services (Pty) Ltd v
Government of the Republic of Namibia and Others.91 In the Frank matter and the Africa
Labour Services (Pty) (Ltd) matter the State successfully warded off constitutional
challenges and was awarded cost in those matter, except that in the Frank case the
State was denied its costs not because it was a constitutional litigation but because the
Court found that one of the officers who deposed to the opposing affidavit on behalf of the
state was dishonest.
[178] Despite what I have said in the preceding paragraph, because of the principle in our
law that every case must be decided on its own merits and the basic rule that, except in
certain instance where legislation otherwise provides, all awards of costs are in the
discretion of the court, I do not consider that we are inhibited by the decisions in the Frank
and Africa Labour Services (Pty) Ltd to consider whether we can adopt the general rule
propounded in the Bio Watch Trust case.
[179] The general principle referred to in the Bio Watch Trust matter was set out in the
case of Affordable Medicines Trust and Others v Minister of Health and Others92 where Mr
Justice Ngcobo said:
‘The award of costs is a matter which is within the discretion of the Court considering the
issue of costs. It is a discretion that must be exercised judicially having regard to all the
relevant considerations. One such consideration is the general rule in constitutional
litigation that an unsuccessful litigant ought not to be ordered to pay costs. The rationale for
this rule is that an award of costs might have a chilling effect on the litigants who might wish
to vindicate their constitutional rights. But this is not an inflexible rule. There may be
87 2012 (2) NR 566 (SC).88 1993 NR 328 (SC).89 2001 NR 107 (SC).90 2013 (4) NR 1175 (HC).91 2009 (2) NR 596 (SC).92 2006 (3) SA 247 (CC) at para 138-139.
79
circumstances that justify departure from this rule such as where the litigation is frivolous or
vexatious. There may be conduct on the part of the litigant that deserves censure by the
Court which may influence the Court to order an unsuccessful litigant to pay costs. The
ultimate goal is to do that which is just having regard to the facts and circumstances of the
case. In Motsepe v Commissioner for Inland Revenue this Court articulated the rule as
follows:
'(O)ne should be cautious in awarding costs against litigants who seek to enforce
their constitutional right against the State, particularly where the constitutionality of
the statutory provision is attacked, lest such orders have an unduly inhibiting or
''chilling'' effect on other potential litigants in this category. This cautious approach
cannot, however, be allowed to develop into an inflexible rule so that litigants are
induced into believing that they are free to challenge the constitutionality of statutory
provisions in this Court, no matter how spurious the grounds for doing so may be or
how remote the possibility that this Court will grant them access. This can neither
be in the interests of the administration of justice nor fair to those who are forced to
oppose such attacks.'
[180] In the Bio Watch Trust matter Mr Justice Sachs justified the general rule that an
unsuccessful litigant ought not to be ordered to pay costs as follows:
‘[23] The rationale for this general rule is threefold. In the first place it diminishes the
chilling effect that adverse costs orders would have on parties seeking to assert
constitutional rights. Constitutional litigation frequently goes through many courts and the
costs involved can be high. Meritorious claims might not be proceeded with because of a
fear that failure could lead to financially ruinous consequences. Similarly, people might be
deterred from pursuing constitutional claims because of a concern that even if they
succeed they will be deprived of their costs because of some inadvertent procedural or
technical lapse. Secondly, constitutional litigation, whatever the outcome, might ordinarily
bear not only on the interests of the particular litigants involved, but also on the rights of all
those in similar situations. Indeed, each constitutional case that is heard enriches the
general body of constitutional jurisprudence and adds texture to what it means to be living
in a constitutional democracy. Thirdly, it is the State that bears primary responsibility for
ensuring that both the law and State conduct are consistent with the Constitution. If there
should be a genuine, non-frivolous challenge to the constitutionality of a law or of State
conduct, it is appropriate that the State should bear the costs if the challenge is good, but if
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it is not, then the losing non-State litigant should be shielded from the costs consequences
of failure. In this way responsibility for ensuring that the law and State conduct are
constitutional is placed at the correct door.
[24] At the same time, however, the general approach of this court to costs in litigation
between private parties and the State, is not unqualified. If an application is frivolous or
vexatious, or in any other way manifestly inappropriate, the applicant should not expect that
the worthiness of its cause will immunise it against an adverse costs award. Nevertheless,
for the reasons given above, courts should not lightly turn their backs on the general
approach of not awarding costs against an unsuccessful litigant in proceedings against the
State, where matters of genuine constitutional import arise. Similarly, particularly powerful
reasons must exist for a court not to award costs against the State in favour of a private
litigant who achieves substantial success in proceedings brought against it.
[25] Merely labelling the litigation as constitutional and dragging in specious references
to sections of the Constitution would, of course, not be enough in itself to invoke the
general rule as referred to in Affordable Medicines. The issues must be genuine and
substantive, and truly raise constitutional considerations relevant to the adjudication. The
converse is also true, namely, that when departing from the general rule a court should set
out reasons that are carefully articulated and convincing. This would not only be of
assistance to an appellate court, but would also enable the party concerned and other
potential litigants to know exactly what had been done wrongly, and what should be
avoided in the future.’
[181] The reasons advanced by Sachs J are sound, irrefutable and persuasive. I will
therefore accept that in exercising my discretion with respect to costs, I will take into
consideration the general rule applied by the South African Constitutional Court namely
that in constitutional litigation an unsuccessful litigant ought not to be ordered to pay costs.
In this consolidated matter the only application which involved genuine and substantive
constitutional considerations is the application brought under case number A 295/2015.
The remaining five applications did not, in my opinion, involve constitutional matters. We
were not referred to any special circumstances in respect of the other five applications why
the applicant should not be ordered to pay the respondents costs. For that reason, I will
order the applicant to pay the respondents’ costs in respect of the other five applications.
Such costs to include the costs of one instructing counsel and two instructed counsel.
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Order
[182] For the avoidance of any doubt we make the following orders:
1 The application launched under case number A 295/2013 is dismissed and we
make no order as to costs in respect of the application.
2 The application launched under case number A 21/2015 is dismissed with costs.
3 The application launched under case number A 197/2015 is dismissed with costs.
4 The application launched under case number A 234/2015 is dismissed with costs.
5 The application launched under case number A 158/2016 is dismissed with costs.
6 The application launched under case number A 184/2015 is dismissed with costs.
7 The costs referred to in paragraphs 2 to 6 of this order is to include the costs of one
instructing counsel and two instructed counsel.
---------------------------------SFI Ueitele
Judge
I agree.
_____________________TS Masuku
Judge
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APPEARANCES
APPLICANT: R TÖTEMEYER SC
Instructed by ENSafrica (Incorporated as
LorentzAngula Inc., Windhoek
RESPONDENTS: J J GAUNTLETT SC (assisted by FB PELSER)
Instructed by Government Attorney, Windhoek
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