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).

9

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

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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:

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(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).

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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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