REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO: A 358/2015

In the matter between:

WESSEL ANDREAS KRUGER APPLICANT

and

MINISTER OF FINANCE OF THE REPUBLIC OF NAMIBIA 1ST RESPONDENT

ATTORNEY-GENERAL OF THE REPUBLIC OFNAMIBIA 2ND RESPONDENT

THE PROSECUTOR-GENERAL OF THE REPUBLICOF NAMIBIA 3RD RESPONDENT

OLD MUTUAL LIFE ASSURANCE COMPANY(NAMIBIA) LIMITED 4TH RESPONDENT

Neutral Citation: Kruger v Minister of Finance of the Republic of Namibia

(A 358/2016) [2020] NAHCMD 138 (27 March 2020).

CORAM: MASUKU J

Heard: 16 June 2019

Delivered: 27 March 2020

Flynote: Constitutional Law – validity of various provisions of the Income

Tax Act, 1981 – Separation of powers among the three Organs of State –

whether Minister of Finance can exercise judicial power – validity of Ministers

appointing dates of commencement of legislation and whether that violates

the principle of separation of powers – Declarators – when issued –

importance to apply to set aside administrative action before a declarator can

be sought - Administrative Law – administrative action – delay in launching

application and effect thereof – Civil Procedure – locus standi – whether

applicant has right to bring the application – need for parties to carefully draft

notices of motion to seek orders that have an immediate and direct bearing to

their rights and interests – need to keep papers and papers within reasonable

limits, appreciating the busy schedule of High Courts - Law of Evidence –

hearsay evidence – inadmissibility thereof – Civil Procedure – prescription in

terms of the Prescription Act, No. 68 0f 1969, (‘the Act’) – Income Tax Law –

service of notices of assessment – address to which notice must be sent

discussed – whether an agent appointed in terms of s 91 can avoid complying

with the Minister’s directive in terms of that provision when the constitutional

validity of the said provision has not been challenged – Law of Costs – the

Bio Watch principle in relation to costs in constitutional matters

Summary: The applicant is a taxpayer in Namibia. He instituted an

application against the Government Respondents, the 1st to 3rd respondents

seeking the setting aside of a number of decisions taken by them and the

setting aside of a number of provisions of the Act, alleging that they are either

invalid or unconstitutional for one reason or the other. The applicant also sued

the 4th respondent for breach of its fiduciary duty by complying with a directive

issued by the Minister in terms of s 91 of the Act. The applicant’s notice of

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motion contained 79 different prayers, a few of which were withdrawn shortly

before the commencement of the hearing.

Held: parties should ensure that when they approach this court, they do so

within the bounds of reasonableness in terms of the relief they seek and the

length of the papers filed in support thereof. Held that this court is a very busy

court that should not be confronted with papers running into hundreds of

pages, as in this case where, for instance, the notice of motion was 46 pages,

long.

Held that: the applicant made reference to actions taken by Dr. Wolf in the

founding affidavit with no confirmatory affidavit. Held that the said allegations

were inadmissible and that evidence must be admissible either in terms of

statute or the common law. It if is hearsay, but has not sanctioned by the

common law or statute, it is inadmissible, as a matter of law and the court has

no discretion to admit and has to be rejected by the court even if the other

side does not object to its admissibility.

Held further that: the applicant, in numerous of the prayers he sought has no

locus standi as he did not specifically plead his locus standi and that in any

event, for most of the prayers he sought, he failed to show how the decisions

or provisions complained of affected or prejudiced his rights or interests

currently or in the future.

Held: for a party to have locus standi, he or she must have an adequate

interest in the subject matter of the litigation, a direct interest that is not too

remote. And the interest must be actual and not abstract or academic – it

must have current interest and not a hypothetical one.

Held that: a declaratory order is an order by which a dispute over the

existence of some legal right or entitlement is resolved. The right can be

existing, contingent or prospective. The applicant in some of the prayers

sought declarators in respect of events that took place a long time ago,

rendering the prayers of academic nature.

Held further that: many of the prayers the applicant seeks are premised on

events that took place a long time ago and there is no proper explanation for

the inordinate delay. In this regard, the delay was objectively viewed on the

facts, unreasonable. The court could not, in that view, exercise its discretion

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to allow the applicant to pursue the prayers give the egregious delay. The

delay ranged from a period of 5 to 20 years.

Held: the applicant, in his application sought declarators without having

applied for the setting aside of the administrative actions complained of. This

was notwithstanding that an administrative order is still capable of legal

consequences and should therefor be set aside by a competent court, which

the applicant did not seek.

Held that: the applicant sought numerous orders in which the court was to

direct the Legislature to take certain steps. This was held to be contrary to the

doctrine of separation of powers, which is enshrined in Art 1 of the

Constitution.

Held further that: in line with Itula v Electoral Commission of Namibia and

Others, s 12(8) of the Act is not unconstitutional for granting the Minister

power to put the law into operation, which is a power delegated by the

Legislature to the Minister.

Held: the applicant’s monetary claims had prescribed after a period of three

years. Held further that the period of prescription of 30 years in s 11(a)(iii) of

the Prescription Act only applies to only to debts owed to the fiscus and does

not include claims for refund by a taxpayer.

Held that: that applicant had given to the Minister addresses of his tax

consultants and to which the notices of assessments were sent. The applicant

could not, in the premises complain of not having had personal notice in the

face of the addresses given by him. The judgment in Esselman v Secretary of

Finance is accordingly not applicable in casu as in that case, the notices were

sent to an agent and not to the executrix of the estate, who had provided her

address.

Held further that: the power vested in the Minister by ss 59, 60 and 61 of the

Act to constitute the Tax Court and to appoint and fire its members, other than

the Judge nominated by the Judge President; to give written notification of the

time and place of the sittings of the Tax Court violates the independence of

the Judiciary and also violates taxpayers’ rights access an independent and

impartial court.

Held that: s 81 of the Act is also unconstitutional for the reason that it allows

the Minister to resort to self-help when he alleges that tax owing has not been

paid by a taxpayer.

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Held further that: the procedure allowed by the Act which allows the Minister

to merely make a statement and certify it and it then becomes a judgment on

mere filing with the Registrar, excludes the exercise of judicial power and

oversight by the courts. It also allows the Minister to exercise judicial power,

which is the sole preserve of the Judiciary in terms of Art 78.

Held: that the applicant, although successful in two of the prayers sought, was

on the whole on the losing side and that considering the prolix nature of the

proceedings, that renders the his application and its prosecution inappropriate

within the meaning of Kabazembi Guest House v Minister of Lands, thus

rendering costs appropriate.

ORDER

1. The Applicant’s application against the First to Third Respondents is

dismissed, save in the respects mentioned in paragraph 2 below.

2. The Applicant’s application challenging the constitutionality of sections

73(3); 73(5)(a) and (b); 73(9) and section 83(1)(b) of the Income Tax Act, 24

of 1981, as amended, is hereby upheld.

3. In respect of the provisions of mentioned in paragraph 2 above, the

declaration of invalidity is suspended for a period of twelve (12) months, to

enable the relevant Respondents and the Legislative Organ of State to attend

to the invalidity declared.

4. The Applicant’s applications against the Fourth Respondent, is dismissed.

5. The Applicant is ordered to pay the costs of the First to Third Respondents,

consequent upon the employment of one instructing and two instructed Senior

Counsel.

6. The Applicant is ordered to pay the costs of the Fourth Respondent.

7. The matter is removed from the roll and is regarded as finalised.

JUDGMENT

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MASUKU J:

Introduction

[1] It is necessary to begin this judgment with a lamentation. This is a

rather unusual matter. Unusual because of the numerous and diverse types of

relief the applicant seeks. His notice of motion consists of 46 pages, which

encapsulates 79 different prayers sought from this court.

[2] Predictably, the papers run into hundreds of pages, with the applicant’s

heads of argument exceeding 500 typed pages. For that reason, the

preparation, both for hearing the matter, considering that it was done middle

of attending to other important matters, and preparation of the judgment, have

not been an easy feat.

[3] In the light of this case, it may well be that time has come for the Judge

President, in the rules of court, to set out limits to the length, particularly of

material, especially heads of argument that a party may file, as is the case

with the Supreme Court. Litigants should be acutely aware that this is a very

busy court that deals with a multiplicity of cases, covering many different

aspects of the law and it sits almost on a daily basis, dealing with motions and

other types of applications.

[4] In this regard, and in complying with the overriding objectives of judicial

case management, cases placed before court must be set down on what are

the real issues in dispute, having regard at the same time to the efficient and

beneficial use of the court’s time and judicial resources. Some issues, which

may be of academic or other interest, no matter how captivating they are, may

have to be sacrificed for the common good.

[5] In this regard, proper regard and appreciation should be given to the

foregoing when parties, who are perfectly entitled to bring their matters to

court as best as they can, prepare their papers and argument. A long-winded

approach should be avoided. In this regard, it may be desirable to include in

the rules of court provisions regarding the need for clear, concise and relevant

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prayers to be set out in the notice of motion, avoiding sending the court go on

a wild goose chase

The parties

[6] The applicant is a Namibian male adult businessman and farmer. He

is, moreover, a tax -payer in this Republic. He resides in Keetmanshoop. The

1st respondent, is the Minister of Finance and is cited in his official capacity as

such. The 2nd respondent, is the Attorney-General of this Republic, with

offices situate at 2nd Floor, Sanlam Centre, Windhoek. The 3rd respondent is

the Prosecutor-General of this Republic, who is appointed as such in terms of

the Constitution of this Republic. It is not immediately clear why the

Prosecutor-General has been cited in this matter, as it does not appear that

there is any significant relief sought from or against that office.

[7] The 4th respondent, on the other hand, is Old Mutual Life Assurance

Company (Namibia) Limited, which is a company duly incorporated according

to the company laws of this Republic. Its place of business is situate at Floor 6

and 7, City Centre Building, Windhoek.

[8] I will, for the purposes of convenience, in this judgment, refer to the

applicant as such. I will refer to the Government respondents as ’the

respondents’. The 4th respondent, in order to distinguish it from the other

respondents, will be referred to as such.

Purpose of the application

[9] The applicant has approached this court seeking various orders that

seek to challenge the constitutionality and/or legality and/or proportionality of

several administrative acts that were allegedly taken by the 1st respondent,

who shall be referred to as such, or simply as ‘the Minister’. It is alleged that

these measures were taken by the Minister in the course of taxing the

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applicant in terms of the Income Tax Act,1 (‘the Act’) and under the provisions

of the Value Added Tax Act.2

[10] In a nutshell, the applicant claims that in 2007, he was a majority

shareholder and managing director of a legal entity known as Oranje

Verspreiders (Pty) Ltd. The company decided to dissolve the pension scheme

of its employees with Old Mutual’s Orion Fund. He alleges that he also made

contributions for his old age pension into the said Fund.

[11] He deposes that when he sought to withdraw the pension benefit to

settle some of his liabilities, the Fund lodged a request to a tax deduction

directive on 24 April 2007. It is his case that the said request was declined a

year and a half later on 11 November 2008, reasoning that his tax returns for

the years 2003 to 2008, were outstanding. He contests this allegation, stating

that he had always filed his returns on time and that his accountant, a Mr.

Chris Lombard of Keetmanshoop was responsible for the filing.

[12] It would also appear, from the applicant’s founding affidavit that he then

caused his tax matters to be dealt with by different entities, which include N.

C. Tromp & Partners, Hamilton & Partners and later Karas Financial Services

(‘Karas’). He accuses Hamilton & Partners of neglecting to file his tax returns,

resulting in him informing the Commissioner of Inland Revenue in Windhoek

by letter dated 8 May 2007 of his decision to disengage Hamilton & Partners

as his tax consultants.

[13] The applicant further depones that the Commissioner of Inland

Revenue (CIR), having refused to issue an earlier tax directive as stated

above, he requested Old Mutual Employee Benefits, through Karas, to lodge

a fresh request pending his completion of his tax returns. This application was

done on 24 November 2008. This took time due what the applicant describes

as a substantial backlog and the need to prepare the tax returns for all the

business entities in which he had an interest before his personal ones could

be completed.

1 Act No. 24 of 1981.2 Act No. 10 of 2000.

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[14] By letter dated 2 April 2009, Old Mutual Employee Benefits advised the

applicant of the declinature once more, by CIR, to issue a tax directive. As a

result, his pension benefit, which he claims stood at N$ 192.599.04 at the

material time, could not be paid out.

[15] Efforts to get the tax returns up to date went on in earnest with the

assistance of a Ms. Isabel Theron from Karas, who later broke away from

Karas and went solo. Up to 2010, Inland Revenue still claimed that the tax

returns from 2003 were still outstanding and that the applicant should visit the

office to sort out the issues theretoanent.

[16] On 18 February 2010 Inland Revenue issued an ‘Employees Tax

Deduction Directive’ to the 4th respondent in Windhoek, instructing the latter to

withhold an amount of N$ 52.001.74 as provisional tax ‘on the remuneration

of the above-named employee’. The following day, the applicant further

states, CIR issued a ‘Notice to Agent/Employer to Pay Taxes’ to the 4 th

respondent and by this document, the CIR instituted recovery proceedings.

[17] It is the applicant’s case that this process was flawed by reason of the

fact that the provisions of s 83 of the Act had not been followed. In this regard,

a total of N$ 145.898.28 was claimed by the CIR and which was payable

before 28 February 2010. This notice was directly sent to the 4 th respondent

without any notice to the applicant or his tax consultants. The applicant claims

that strangely, some interest, which had previously been reversed, was

charged again.

[18] It is the applicant’s case that having been notified of the directive by

CIR, he drafted an e-mail to Mr. Danie van Der Merwe, his insurance broker,

to stop the withdrawal. This was after he had telephonically spoken to the

latter, giving him the same instructions. The instruction was not heeded as a

cheque to the benefit of the CIR was issued in the amount of N$ 144.918.87

on 24 February 2010.

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[19] The applicant complains that the 4th respondent did not, at any time,

inform him of the attachment of his assets at the behest of the 1 st respondent

nor did it seek to substantiate whether the claim had any substance. It was

only once the amount was transferred that the applicant was advised of the

attachment. It is the applicant’s case, upon advice, that the 1st respondent had

no discretionary power to refuse issuing a tax directive for any reason. It is

accordingly claimed that such refusal was ultra vires. Even outstanding tax

returns, so the applicant contends, do not constitute sufficient legal basis for

refusing to issue a tax directive.

[20] The applicant further questions the basis of the tax directive as being

incorrect for the reason that it stated that he was an employee from 1 April

2004 to 24 February 2010, which was factually incorrect. It is his case that he

was not employed and the amount so claimed and attached did not constitute

‘gross remuneration’ as claimed in the tax certificate issued. It is the

applicant’s case that the pension benefit was in respect of an insurance

contract and not from operating capital of Old Mutual for services rendered by

him in terms of an employment contract.

[21] In this regard, the applicant claims that the 4 th respondent was not

obliged to have agreed to the attachment of his benefits unless the recovery

process in terms of s 83 had been followed by the 1st respondent. In this

regard, so further contends the applicant, the 4 th respondent would only have

been liable to pay over the amount from his pension as a result of a court

order, which it is common cause, was never obtained in casu. It is accordingly

claimed that the 4th respondent acted illegally in releasing the amount to the

1st respondent.

[22] Another complaint by the applicant is that the tax assessments were

never sent to his postal address but rather to those of his tax consultants. The

applicant claims further that the 1st respondent had his address and to which

his tax assessments should have been sent, as opposed to the addresses of

the tax consultants. In this regard, the applicant claims that the 1st respondent,

at all material times knew that the addresses to which the tax assessments

were sent were not the applicant’s but those of various tax consultants.

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[23] I will not burden the judgment with all the numerous allegations that the

applicant makes in his lengthy founding affidavit. In this part of the judgment, I

intend to deal specifically with selected complaints that the applicant makes

regarding some of the actions by the 1st respondent, which the applicant

claims, are unconstitutional and/or illegal. I do so below:

(a) that the Ministry of Finance invoked Paragraph 11 instead of

Paragraph 17 of Schedule 2 to the Act to deduct provisional tax on

pension;

(b) the constitutionality and legality of the attachment of the applicant’s

pension without the required attachment order being granted by a court

of law, as required by s 83(1)(b) of the Act;

(c) the 4th respondent’s serving as an agent of the 1st respondent did not

have regard for the legality of the attachment of the pension benefits by

the 1st respondent. In this regard, the 4th respondent did not make

enquiries regarding the legal basis for the issuance of a tax directive

and secondly, the 4th respondent willingly participated in the

confiscation of the applicant’s pension, without the required attachment

order of a court of law;

(d) the 1st respondent took a diverse set of administrative acts of which the

applicant was not informed, which served to infringe upon the

applicant’s Article 18 rights under the Namibian Constitution. In this

regard, the applicant claims, certain administrative action was taken

without him being notified, even though the actions taken had a direct

and external effect;

(e) the applicant questions the legality of the assessments made between

1991 and 2000, save the 1990 assessment. The applicant claims that

he was never informed personally about the tax assessments that were

issued in those years. Some were mailed to the applicant’s tax

consultants, some of whom no longer had authority to deal with the

applicant’s tax matters at the time the assessments were issued and

sent. In this regard, the applicant claims, he did not get sufficient notice

to raise objections he may well have had, in terms of s 71 of the Act.

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This was because the 90 day period provided in the Act had long

passed by the time he got copies of the tax assessments;

(f) the legality and constitutionality of the additional tax charged in relation

to the 1995 assessment. The applicant claims in this regard that he

had a legitimate expectation that he could rely on the correctness of

the 1994 assessment in terms of which some farming implements were

set off in 1995. Later, the 1st respondent claimed that the tax levied was

incorrect and impermissibly charged him with additional tax, contrary to

Art 18 of the Constitution. The applicant also challenges the

constitutionality of s 66 of the Act because the measures it authorises

are disproportionate to the object pursued and do not qualify as a valid

limitation of the right to administrative action in terms of Art 22 of the

Constitution;

(g) the applicant claims that he was entitled to tax refunds over several

years, which were however, not paid to him. In this regard, tax refunds

that accrued to him between 2003 and 2009, have not been paid to

him. In this regard, it is contended that the withholding of legitimate

refunds constitutes a further disproportionate and unconstitutional

infringement on his property rights and thus liable to challenge. The

applicant, in this regard, further challenges the discretionary powers

under s 94 of the Act not to pay refunds punctually, which he claims

amounts to a disproportionate limitation of fair administrative

procedures and property rights under Art 22 of the Constitution;

(h) the applicant further challenges the legality and constitutionality of s 79

of the Act, which allows the charging of interest on outstanding tax. He

challenges the charging of interest in his case for the reason that he

had not been informed of the particular taxes in respect of which

interest was charged – how much the tax due was, the interest thereon

and for what periods. The applicant further states that the interest was

charged retrospectively from dates that preceded the dates of

assessment of specific assessed tax debts;

(i) the constitutionality and legality of s 73 of the Act and/or measures

taken in respect thereof were also challenged. In this regard, the

applicant claims that he was advised that his tax appeal lodged on 15

October 1997 would be heard soon, that never happened. He claims

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that the blocking of access to him of the courts infringed his rights

under Art. 12(1)(a) and (b) of the Constitution. The 1st respondent was

in this case accused of manipulating the tax appeal proceedings to his

own advantage by blocking the hearing of the appeal for 15 years;

(j) the constitutionality of measures taken in terms of s 81(1) of the Act. It

is claimed that the provision has been couched in a manner that that

allows scope for non-transparent and dubious bookkeeping practices. It

is argued that the provision is ambivalent in so far as the statutory

duties listed in the first part require a double entry bookkeeping system,

yet the second part suggests a single entry system would suffice; and

(k) interest and penalties charged in respect of outstanding VAT due by

Agriliner Namibia CC, are contested by the applicant because the 1st

respondent blocked the applicant’s access to his pension, which he

had intended to employ in settling the VAT debt in question. It was

argued that a penalty of 10% which could be charged on the principal

amount of outstanding VAT in terms of s 68 and the penalty interest of

20% specified in s 53 of the Act, result in multiple penalising of the tax

payer in relation to the same matter and are thus disproportionate to

the object pursued and thus unconstitutional.

The respondents’ respective cases

[24] It must be mentioned that the respondents opposed the application. In

this regard, it is imperative to point out that the Government respondents,

being the first three respondents, opposed this application and they were duly

represented by the Office of the Government Attorney, which instructed two

Senior Counsel, Mr. Budlender and Ms. Schimming-Chase, to conduct their

opposition.

[25] On the other hand, the 4th respondent, also opposed the application

and it filed its own opposition, limited to the allegations made against it by the

applicant. It was duly represented by Mr. Luvindao. Because the main issue

raised against the 4th respondent is more narrow than those raised against the

Government respondents, it is fitting that I deal with the 4th respondent’s

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bases for opposition, as gleaned from the opposing affidavit filed later. I

presently deal with the respondents’ opposition.

The Government respondents’ case

[26] The answering affidavit for the Government respondents was deposed

to by Mr. Justus Mwafongwe, the Commissioner for Inland Revenue, (‘CIR’).

He deposed that he was authorised to oppose the application on behalf of the

Government respondents, cited as the 1st to the 3rd respondents. I will not

traverse all the allegations raised by the respondents in relation to their

answer and opposition to the applicant’s averments set out in the founding

affidavit. I will touch on some of the respondents’ answers to the applicant’s

allegations.

[27] It was the CIR’s case that based on legal advice he received, it

appears that the applicant attacks are two-fold, namely, on administrative law

grounds and the constitutionality of certain provisions of Act. In relation to the

former, the CIR deposes that he is advised that the applicant has inordinately

delayed in launching the attacks. Furthermore, the CIR states that the

applicant in some of the cases, has internal statutory remedies provided for in

the Act that he could and should have explored but did not. The CIR further

makes some perfunctory remarks about the legislation, tax collection and

related matters that I find unnecessary to repeat in the judgment.

[28] In relation to the provident fund claim, the CIR states that at the time

the notice to the 4th respondent was issued, the applicant was indebted to the

State in the amount of N$ 314,988.75, which was more than the amount that

the 4th respondent held on the applicant’s behalf. It is his case that the amount

sought in the directive, was pursuant to an assessment and cannot, for that

reason, be faulted.

[29] It is denied that the applicant was entitled to a substantial refund in

view of the amount he owed, as stated above. It is the CIR’s case that there

was nothing wrong or untoward regarding the notice to the 4 th respondent to

pay the amount owing by the applicant. This, he states, is authorised by the

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provisions of s 91 of the Act. In this regard, it is stated that when an amount is

owing pursuant to an assessment, the amount is payable even if there is an

objection to the assessment, including cases where an appeal is pending. It is

the respondents’ case that the CIR is entitled to at that stage to appoint an

agent to pay over the amount assessed in terms of s 91 and need not resort

to the proceedings in terms of s 83, to execute in respect of the money due

and owing.

[30] It is the respondents’ further case that the definition given to the word

‘employer’ in the Act, encompasses monies received from a pension fund. In

this regard, so the contention goes, there was nothing untoward in regarding

the 4th respondents as the applicant’s employer, as this is sanctioned by the

Act.

[31] Regarding the refusal to issue a tax directive, it is the respondents’

case that the refusal took place in November 2009. In this connection, it is

argued that the applicant did not lodge an objection thereto and that to raise

the objection so belatedly, constitutes undue delay that the court should not

countenance.

[32] With regard to the appeal that was lodged by the applicant, the CIR

states that he regrets the appeal lodged against the 1994 and 1995

assessments was mislaid and probably archived. In this regard, it was the

view of the CIR that the applicant was at large to seek a mandamus against

the Minister if he seriously intended to pursue his appeal. The CIR undertook,

if the appeal issue is not settled in these proceedings, to revert to the

applicant within 3 months of the date of this judgment in order to have the

appeal finalised.

[33] Regarding the complaint about the communication between the office

of the CIR and the applicant, it is the former’s view that the communications

with the applicant were forwarded to the addresses that the applicant provided

or the last address in the CIR’s records. It is stated that if the applicant had

any issues with the communication, he should have approached the CIR to

have any prejudice suffered by him remedied, which he never did. It is further

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stated that the addresses used in the tax returns were those signed on behalf

of the applicant. The allegation that the CIR should communicate directly or

personally with the taxpayer where the latter has appointed an agent is

denied.

[34] In dealing with the levying of interest, the CIR states that there is no

requirement, as suggested by the applicant, that the taxpayers should be

advised if they will be charged interest in terms of the Act, resulting in interest

not being chargeable if they have not been so told. It is contended that the Act

makes provision for the charging of interest. It is specifically stated on oath

that interest is charged at the rate of 20% in respect of taxes due but not paid

on the due date. The interest so levied, may not, however, exceed the capital,

although it is open to the Minister, in terms of the Act, to prescribe a lesser

rate of interest payable.

[35] In his affidavit, the CIR further contests the applicant’s contention that

the distinction drawn between employees and provisional taxpayers is

unconstitutional. It is in this regard contended that there is a rational basis for

allowing employees a leeway in respect of interest but not for provisional

taxpayers and this is based on the differences in the two categories of

taxpayers and how their assessment is done – the employees’ tax is deducted

by the employer on a monthly basis whereas the provisional taxpayers do

assessment of tax due themselves, based on their own calculations,

predicated on facts peculiarly within their knowledge. It is thus denied that the

differentiation in these types of taxpayers is discriminatory as the applicant

claims.

[36] Turning to s 78 of the Act, it is the respondents’ position that where a

taxpayer lodges an appeal against a tax assessment, that does not suspend

the latter’s liability to pay the tax forming the subject of the appeal. The

applicant was not, in this regard, entitled to have his tax liability suspended

pending the appeal.

[37] The CIR further denied the allegation that s 66 is unconstitutional as

the applicant contended. The respondents further denied that the provisions

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of s 79 infringe any constitutional rights of the applicant, including those in Art

10 and 16. It was further denied that s 12(5) of the Act of 2007 is

unconstitutional. It was specifically denied that the mere fact that the inception

date of an Act of Parliament is left to the discretion of the Minister, results in

unauthorised delegation of legislative power and thus unconstitutional.

[38] The respondents proceeded to deny that the composition of the Tax

Tribunal and Special Court does not pass constitutional muster, regarding the

twin elements of independence and impartiality. It was thus contended that if

any party had a specific issue with the independence and/or impartiality of a

particular member of the Court, then an appropriate application for the recusal

of such a member could be moved by the affected party. In sum, the

respondents took the view that the application is wholly unmeritorious should

be dismissed with costs.

The Fourth Respondent’s case

[39] The 4th respondent filed an affidavit deposed to by Mr. Lionel

Kannemeyer, the Executive Corporate Segment of the 4 th respondent. He

stated that he is in charge of the overall management and supervision of day-

to-day administration of the Pension Fund of the 4 th respondent. In his

affidavit, the deponent stated that he defers to and agrees with what the CIR

had deposed to and aligned himself with the responses provided by the

respondents in relation to the administrative law challenges and the

constitutional challenges as well.

[40] The 4th respondent states that it is subject to the provisions of the

Income Tax Act of 1981, as amended and that as such, once a notice is

issued by the CIR in terms of s 91 of the Act, the 4 th respondent is obliged to

become a representative taxpayer in terms of s 91 of the Act. In this regard, it

was stated that the applicant was aware that any cash amount payable to the

applicant, was liable to be dealt with in accordance with applicable legislation

and that once the applicant chose to withdraw his cash benefit, the 4 th

respondent was entitled to deduct any outstanding tax and by law, to send it

to the CIR.

17

[41] It is the 4th respondent’s contention that the attack by the applicant

against the 4th respondent is misconceived in so far as it relates to the

applicant’s alleged infringement of his administrative rights and the

unconstitutionality of the 4th respondent’s action in complying with the notice

issued by the CIR in terms of the Act. It is denied that the 4 th respondent acted

in conflict of interest as an agent of the Minister and as administrator of the

Fund.

[42] It is the 4th respondent’s case that the amount of N$34 028.64 claimed

against it by the applicant in motion proceedings, is ill conceived, as the claim

has prescribed. It was argued in any event, that the applicant could only lay

claim to the amount in question if the court found that the Government

respondents’ actions were unconstitutional or reviewable.

[43] It was the 4th respondent’s contention that the applicant’s attempts to

withdraw the benefit had failed on numerous occasions because of the

applicant’s outstanding tax returns. It is the 4 th respondent’s case that it acted

in the applicant’s case, strictly in terms of the relevant legislation and its own

rules. The 4th respondent complains also about the lateness of these

proceedings and claims that it is prejudiced in properly dealing with the matter

as the officers who were in its employ at the time and who are au fait with the

case, have long left the 4th respondent’s employ.

[44] It was the 4th respondent’s further case that the applicant, as a member

of the Fund, was subject to the Fund’s rules. A rule on point, in this regard, is

rule 6.2 which provides that ‘the members’ account, less any income tax

which may become payable shall at the Members election either (a) subject to

any legislation governing preservation of pension rights, be paid to the

Member in cash, or (b) subject to Rule 3 be transferred to any Approved

Pension, Provident or Preservation Provident Fund.’

[45] In a nutshell, these are cases presented by the respective parties in the

determination of this matter. It is comely to mention that the applicant, in his

replying affidavit by and large maintained the position that was set out in his

18

founding affidavit, to the extent that his version differed from that of the

respondents.

Abandonment

[46] Shortly before the hearing of the proceedings commenced, the

applicant, of his own free volition, as far as I can tell, although there may have

been other considerations, no least some of the meaty issues raised by the

respondents, decided to abandon the prayers sought in the notice of motion,

namely 8, 10, 39, 40, 46.1, 51, 52, 56.1, 56.4, 56.6, 62 TO 67 and 70-76. For

that reason, there is no need to deal with any of the types of relief sought in

any of these parts of the notice of motion.

Annexure

[47] I should also mention that due to the length of the notice of motion, I

have decided to make the notice of motion an annexure to this judgment, so

as not to burden its body unnecessarily. For the reader who is keen to read

the notice of motion, in part or in its entirety, this will be provided in full as an

attachment as stated.

Determination

[48] The respondents, have in their heads of argument, raised a myriad of

legal issues that they claim should serve to non-suit the applicant in respect of

a good number of the prayers he seeks. In this regard, the following issues

have been raised as potentially dispositive of the applicant’s case, almost in

its entirety. The issues involve:

(a) that some of the declarators sought by the applicant are not of the kind

that courts are minded to make because they contain abstract

pronouncements of what the law is or they are about past events;

(b) lack of locus standi to bring the application and to seek the relief in

respect of some of the prayers sought;

(c) inordinate delay by the applicant in launching the present proceedings,

which should lead to the court refusing to grant the relief sought;

19

(d) the applicant seeks orders striking out certain provisions of the Act

without having first sought and obtained orders declaring same to be

invalid;

(e) the applicant seeks an order in terms of Art 25(1) of the Constitution

requiring the Minister to enact legislation when that function does not

reside with the Minister in view of the hallowed doctrine of separation

of powers enshrined in the Constitution;

(f) that Namibian law and practice are alleged to be unconstitutional

because they, in parts, are inconsistent with German constitutional

law, administrative law and tax law and practice;

(g) the applicant moves this court impermissibly, to hold that the findings

in a judgment of the Supreme Court and the Constitutional Court of

South Africa are incorrect, a proposition that in the hierarchy of courts

is beyond the powers of this court;

(h) the applicant misunderstands the system of payments required by the

Act and particularly when payments have to be made in respect of

provisional tax;

(i) the applicant misinterprets the Esselman judgment of the Supreme

Court, which permeates, for the most part, the foundation of the

applicant’s case and the relief he seeks;

(j) the applicant misinterprets the provisions of s 79(4) of the Act which

confer a discretion on tax authorities, which influences to a large

extent, the relief he seeks;

(k) the applicant seeks to assert monetary claims that have, in terms of

the law prescribed;

(l) the applicant seeks relief based on terms that it would be ‘better’ or

‘more appropriate’ if the Act were worded or structured differently; and

lastly

(m) that the applicant, in some parts of the application, relies on

inadmissible hearsay evidence, which has also been introduced in the

heads of argument.

(n) his failure to review the decisions complained of.

20

[49] I am of the considered view that it would be preferable to deal with the

latter argument first, namely, that of the striking our of inadmissible hearsay

evidence that in part forms the basis of the application. I do so presently.

Inadmissible hearsay evidence

[50] In this regard, the respondents moved that the following paragraphs of

the applicant’s founding affidavit, should be struck out on the basis that they

contain inadmissible hearsay evidence, namely paras 242 to 246 and paras

370 and 371 of the applicant’s founding affidavit. I find it unnecessary, for

purposes of this judgment, to cite the said offensive paragraphs verbatim. It

suffices to mention though, that it is apparent that in these paragraphs, the

applicant makes reference to what Dr. Wolf did or said.

[51] Dr. Wolf eventually argued the matter on the applicant’s behalf but she

did not file an affidavit confirming what the applicant alleges of and concerning

her. I may mention that Dr. Wolf did not seek leave to enter the witness box to

confirm what had been attributed to her in the founding affidavit. I say this in

the unlikely event that this would be legally permissible. It may have been an

option that would in any event, be likely to have been refused, unprecedented

as it is.

[52] In substantiation of this position, Damaseb AJA, said the following in

Mokhosi and Others v Mr. Justice Charles Hungwe and Others3

‘As we have said before, admissibility of evidence is a question of law and not

of judicial discretion. Evidence is admissible either under the rules of the common

law or under statute. Hearsay evidence is no exception. Once an item of evidence

constitutes hearsay, it must either be sanctioned by statute or the common law to be

admissible. If it does not, it remains inadmissible as a matter of law and stands to be

rejected by the court even if not specifically objected to by the opposing party.’

[53] It accordingly follows that all the paragraphs referred to above, are, as

a matter of law, to be struck out for the reason that they contain inadmissible 3 C of A (CIV) No. 38/2019, Cons Case No. 02/2019 , para 55 (a judgment of Full Bench of the Court of Appeal of Lesotho, delivered on 1 August 2019.

21

hearsay evidence. The applicant has not justified their inclusion by reason

either of statute or the common law. I do note that during the hearing, the

applicant stated for the record that no reliance would be placed on these

allegations. The application for the striking out of the said paragraphs is

accordingly granted in favour of the respondents. I should pertinently mention

that the 4th respondent did not deal with this issue at all either in its answering

affidavit or in the heads of argument.

Locus standi in judicio

[54] The respondents take the issue that the applicant should be non-suited

for the reason that he has not shown or alleged that he has the locus standi to

institute these proceedings. It was submitted on the respondents’ behalf that

the applicant does not, anywhere, in his papers, allege, let alone prove that he

has the requisite locus standi, in the sense that his rights or interests are at

stake in respect of the relief that he seeks from the court.

[55] Furthermore, the respondents argue and quite strenuously too, that the

applicant failed to put up any facts that demonstrate that the various matters

which he raises in his papers, currently affect or prejudice him or his rights

and interests, save what appears to be in a hypothetical sense. He further

fails, so the respondents argue, to show additionally that his rights or interests

stand to be affected thereby, in the future.

[56] In response, the applicant denies that he has not established that he

has locus standi to prosecute the application. In this regard, it was submitted

on his behalf that the applicant’s rights were affected in real terms by various

administrative measures and some statutory provisions that are not in line

with the Bill of Rights and thus unconstitutional. It was argued that there is a

long list of infringement of his rights, which flies in the face of the respondents’

argument.

[57] The respondents, relied for their argument on a judgment of this court,4

where in dealing with the issue of locus standi the court said the following:

4 Uvanga v Steenkamp 2016 (2) NR 465, para 20-21.

22

‘[20] It is trite that a litigant instituting or defending proceedings must have a

legal right or recognised interest that is at stake in the proceedings in question. It was

submitted by the defendant that locus standi concerns the sufficiency and directness

of the said person’s interest in the litigation in question. Once established, it duly

qualifies that person to be regarded as a litigant for purposes of the matter in

question.

[22] I also accept without demur the correctness of the defendant’s submission that

the general rule is that the party instituting the proceedings, otherwise referred to as

the dominis litis, should allege and prove that he or she has the necessary locus

standi in the manner described above. The sufficiency of the interest, it must also be

accepted, is a matter that must be determined on a case-by-case basis, and is not

the laws of the Medes and the Persians so to speak. Whether the interest is sufficient

in a case will obviously turn on the facts under scrutiny. It therefore means that what

the court have to determine in this case will obviously turn on the facts under

scrutiny. It therefore means that what we have to determine is whether in view of the

allegations made and the evidence led which has been captured above, it can be

said that the plaintiff has established the right and interest in the case at hand.’

[58] The applicant does not, anywhere in his affidavit, attempt to deal at all

with the issue of locus standi and this is totally unacceptable. This is a very

dangerous non-compliance by the applicant that may court disaster as it may

lead to the court dismissing the proceedings. It is a basic requirement for any

litigant, particularly one who initiates proceedings to deal fully and squarely

with the issue of locus standi, at the initial stages of the affidavit filed in

support of the application.

[59] Without in any manner being perceived to be carving new precedent in

this regard, it appears consonant with fairness, to allow the matter to proceed

and to be considered on the basis of the allegations that the applicant

otherwise makes in the founding affidavit. These will be viewed in the context

of determining whether on an objective basis, the applicant has made out a

case for his rights or interests being infringed or likely to be infringed in the

future. Put differently, the question is, even though the applicant has

admittedly not alleged locus standi in his papers, do the papers prove that he

does have same, though not specifically recorded as such?

23

[60] The respondents argued that properly construed, the applicant, in his

papers, failed to show that his legal rights or interests are at stake. In this

regard, the court was referred to Four Wheel Drive Accessory Distributors CC

v Leshni Rattan NO,5 which deals with the issue of locus standi.

[61] In that judgment, the Full Bench of the SCA stated the following in that

regard:

‘The logical starting point is locus standi – whether in the circumstances the

plaintiff had an interest in the relief claimed, which entitled it to bring the action.

Generally, the requirements for locus standi are these. The plaintiff must have an

adequate interest in the subject matter of the litigation, usually described as a direct

interest in the relief sought; the interest must not be too remote; the interest must be

actual, not abstract or academic; and it must be a current interest and not a

hypothetical one. The duty to allege and prove locus standi rests on the party

instituting the proceedings.’

[62] I align myself with the excerpt quoted above as accurately reflective of

the law in this jurisdiction as well. The question, that having been settled, is

this – considering the prayers sought and the allegations made, can it be said

on a mature consideration, that the applicant has made out a proper case for

the relief he seeks? Are the prayers sought, ones in which he has a direct

interest? Are they not too remote? Are some of them not abstract or

academic? Is the applicant’s interest current and not a hypothetical one?

[63] Mr. Budlender, for the respondent, argued that the applicant’s case

ticks all the above boxes in the sense that the relief sought draws a negative

answer. In this regard, he argued that the only prayers that survive the

debilitating storm of locus standi, are only three in number, namely, the

money claims and the uncompleted appeal.

[64] It would be impracticable to go through all the various remaining

prayers and consider them individually in considering this argument. I have

however, had regard to the various prayers and will, for good measure, refer

to a few, in deciding whether the position adopted by the respondents is

5 (1048/17) [2018] ZASCA 124 (SCA), para 7.

24

correct regarding the proximity, so to speak of the relief sought to the

applicant’s immediate rights and/or interests, thus resulting in him having

locus standi.

[65] It suffices to mention that the applicant just made a general statement

in the heads of argument to the effect that the argument that he has no locus

standi is untenable ‘by any stretch of imagination’ and the infringement of his

rights has been documented meticulously: every notice of assessment that

was sent to tax consultants instead of the Applicant, all the bookkeeping

tricks, the illegal attachment order, the refusal to issue a tax directive, the

delays to give reasons for illegal attachment. He therefore clearly has locus

standi to bring this case’6, he concludes.

[66] I am of the considered view, having regard to the argument advanced

on behalf of the respondents that there is much force to respondents’

contention. In this regard, I will sample a few of the prayers sought by the

applicant. In prayer 1, he seeks an order ‘declaring that administrative action

encompasses, a collection of measures, all of which have the characteristic

that they are taken in the course of exercising executive power conferred

upon such a state organ by way of parliamentary legislation or by way of an

executive regulation, which empowers the state organ to take various

measures in individual instance to create order (e.g. the issuing of mining or

fishing licenses or charging of traffic penalties), clarify a legal status (e.g. the

issuing of identity documents or passports), impose public dues (e.g. the

issuing of tax assessments and charging of import duties), grant state support

(e.g. child support or welfare benefits), exercise state control measures) or

other measures, and should have a direct external effect in relation to the

addressee for the measure to be legally binding’.

[67] By way of further example, the applicant, in prayer 2 seeks a

declaration that Art 5 of the Constitution obliges the legislature, the executive

and judiciary, to respect and uphold the right to administrative justice under

Art 18 of the Constitution, implying that:

6 Para 17 of the Applicant’s revised heads of argument.

25

2.1 when the legislature confers powers upon executive state organs or

officials by way of legislation to take specific administrative action, such

powers must be in conformity with the Constitution and the prescribed

procedure must be fair and reasonable;

2.2 when executive state organs or officials exercise powers that have been

conferred upon it (sic) by legislation they should abide by the law and exercise

any discretionary powers in a reasonable and procedurally fair manner;

2.3 everyone whose rights have been adversely affected by administrative

action has the right to see (sic) redress before a competent court.’

[68] It is plain to see, even from the two examples quoted above that there

is nothing that shows the immediate interest that the applicant has in the relief

sought. This, as stated earlier, is exacerbated by the fact that he did not make

any allegation regarding his locus standi.

[69] By way of last example of the ill-fated journey that the applicant

embarked upon in most of the relief he seeks, is prayer 26 of the notice of

motion. There the applicant prays for an order, ‘Declaring section 12(8) of the

Income Tax (Amendment) Act 5 of 2007 to be unconstitutional insofar as it

delegates a legislative power of the National Assembly under Articles 44 and

63 of the Constitution to the First Respondent to determine when sections 7

and 8 of the foresaid amendment should commence in contravention of the

constitutional separation of powers since the First Respondent is part of the

executive and not the legislature, and consequently, the amendment of

sections 79 and 80 of the Act by the said provisions is invalid and of no legal

force.’

[70] Again, the applicant has failed to show that the relief he seeks meets

the criteria set out in the Four Wheel Drive judgment. Courts’ time and judicial

resources must be occupied by and dedicated to legal issues which have a

real and immediately direct bearing on the parties’ rights and interests and

which interests, are not too remote, as stated earlier. The applicant does not,

anywhere state, how these provisions implicate or affect his rights and

interests in order to justify his invocation of the court’s jurisdiction in the

instant case.

26

[71] As a matter of comment, especially with regard to prayer 1, it seems

odd, if not odious, for the court to be called upon, to declare what the proper

meaning of ‘administrative action’ is. There is no case made out that there is

no definition of what administration action in this jurisdiction is. In any event,

the courts will deal with this aspect on a case-by-case basis, depending on

the facts. To pronounce what administrative action is in this case, based on a

prayer in the notice of motion, would, as contended correctly by the

respondents, run counter to the court’s mandate, which is principally, to

decide disputes and not abstract or hypothetical notions that may

understandably set the mind of an academic on overdrive.

[72] It is perhaps fitting at this juncture, to refer to Gamevest (Pty) Ltd v

Regional Land Claims Commissioner7 where the Supreme Court of Appeal of

South Africa said the following regarding administrative action:

‘What is administrative action for purposes of justiciability? There is no neat,

ready-made definition in our case law, but in Hira and Another v Booysen and

Another 1992 (4) SA 69 (A) Corbett CJ at 93A-B required, for common law review,

the non-performance or wrong performance of a statutory duty or power; where the

duty/power is essentially a decision-making one and the person or body concerned

has taken a decision, a review is available.’

[73] It is, in my considered view, undesirable that the court should be asked

to make an abstract declarator regarding what administrative action is. As

observed above, the law throws up a vagary of new and unprecedented

scenarios that would not have been envisaged when seeking to lock concepts

like administrative action into an open and shut box. The elasticity that

presently exists in what may and may not be administrative action serves a

good purpose in that new situations may be accommodated as and when they

arise, if they fall within the general rubric of what would be regarded as

administrative action.

7 2003 (1) SA 373 (SCA) para 12.

27

[74] It appears to me that the applicant has failed to meet the threshold

stipulated in the Four Wheel Drive matter, namely, that he has an adequate

interest in the subject matter of the litigation. It appears to me that whatever

interest the applicant may be held to have, is too remote. In any event, the

interest he may have, in some of the cases, appears to be academic and

abstract and not advancing his immediate rights and interest in any tangible

manner.

[75] It probably induces a good feeling when as a litigant, you engage in

litigation that has groundbreaking effect on the state or trajectory of the law in

any given country. That should, standing alone, not serve as an incentive for

launching proceedings, if there cannot be established, on the facts, an interest

in the subject matter that is not too remote or merely tangential to the interests

of the particular litigant. The court’s machinery should be engaged to deal with

matters that raise live controversies of the day and not those merely raising

issues for mental or intellectual stimulation and satisfaction only.

[76] The applicant, in the instant case, engaged the services of Dr. Wolf, to

prepare the papers, heads of argument and to represent him in these

proceedings. It appears that Dr. Wolf has written many articles relating to

some of the issues in contention that were raised on behalf of the applicant. It

is also true that in reading of some of the authorities cited, her name features

prominently, as one of the major sources of the arguments advanced on

behalf of the applicant. It may well be that the matters raised, and included in

the notice of motion may be of scholarly interest to Dr. Wolf, but I hold the

view that those issues have not, on the papers, been brought to a position

where they show actual advancement or tangible benefit to the interests of the

applicant.

[77] It is perhaps important and convenient, at this juncture, to also deal

with the declarators that the applicant seeks, which litter many of the prayers

he seeks. One can do no better than to cite with approval the timeless

remarks in Southern Engineering and Another v Council of the Municipality of

Windhoek.8

8 2011 (2) NR 385 (SC) para 48-50.

28

[78] In that judgment, the Supreme Court spoke authoritatively on the

subject and said:

‘A declaratory order is an order by which a dispute over the existence of some

legal right or entitlement is resolved. The right can be existing, prospective or

contingent. A declaratory order need have no claim for specific relief attached to it,

but it would not ordinarily be appropriate where one is dealing with events, which

occurred in the past. Such events, if they gave rise to a cause of action, would entitle

a litigant to an appropriate remedy.’

[79] It is plain that when one has proper regard to the contentions of the

applicant, considered in tandem, where appropriate, with the contents of the

affidavits, that in many of the prayers sought, the applicant refers to certain

conduct or events and their validity or lawfulness. Curiously and pertinently,

this is conduct or events that took place in the past and has no bearing on

current matters in controversy and thus needing the court, of necessity, to cut

the Gordian Knot in relation thereto settling current disputes.

[80] On this leg as well, it is clear that the applicant stands to be non-suited

as declarators are not suitable in the event. Where there is some past conduct

that may be regarded as unlawful, then the applicant can, where the court is

so satisfied, approach the court for other appropriate relief, a declarator

specifically excepted in that regard.

Unreasonable delay

[81] The respondents further contended that the relief sought by the

applicant should largely be dismissed for the reason that the applicant took an

inordinately long time to bring the present proceedings and that in doing so,

he has failed to tender a reasonable and full explanation regarding the cause

of the delay. In particular, the issue of delay is pertinently raised in the

answering affidavit of the CIR.9 It must be added that the 4th respondent also

complains of the delay in relation to the allegations made against it.

9 Page 913, para 2; 921 para 13.10; p 927 para 16.4 and 928, 929 and 935.

29

[82] In reply, the applicant, in his affidavit sought to rely on certain

correspondence between him and the 1st respondent. On my reading of the

papers, the applicant does not fully and squarely engage and address the

respondents’ complaint, adequately, if at all.

[83] The law on this issue is fairly settled in this jurisdiction. In South Africa

Poultry Association v Minister of Trade and Industry,10 (SAPA) the Supreme

Court dealt with the question as follows:

‘[43] In essence a court has to engage in two enquiries. The first is an

objective one and is whether the delay was on the facts unreasonable. The second is

whether the delay should be condoned. As stated in Keya, the first enquiry is a

factual one and does not involve the exercise of a discretion. It entails a factual

finding and a value judgment based upon those facts.

[44] The second enquiry involves the exercise of a discretion. As was correctly

accepted by all the parties, the ambit of an appeal is narrower when directed against

the exercise of this form of discretion. This court would only interfere if the discretion

was not exercised judicially.’

[84] The factual enquiry, in this connection, involves the question whether

there was a delay in this matter, and one, which was unreasonable on the

facts. It is common cause, when one has regard to the applicant’s papers that

the facts giving rise to the claims in this matter, that there was a lengthy delay

for the most part. Mr. Budlender pointed out that the delay was in some cases

quite egregious, ranging from a delay of 5 to 20 years. It was his submission

that the court should not, in the circumstances, come to the applicant’s

assistance as the applicant does not explain the delay convincingly and that in

any event, that the delay is prejudicial to the respondents.

[85] I am in agreement with the respondents that the applicant is guilty of

unreasonable delay on the facts. The minimum period in this regard, is a

period of 5 years, which is a long period by any standards and in litigation, a

10 2018 (1) NR 1 (SC) para 43 and 44.

30

lot may happen in that period. In this case, for instance, the respondents

complain that as a result of the applicant’s delay, they are prejudiced in the

sense that some of the information germane to the case can no longer be

found and more importantly, some of the respondents’ witnesses, in the form

of officers who may have been involved in the applicant’s matter when it

started some 20 years ago, can no longer be located or can no longer recall

accurately, or at all the intimate details and sequence of the events, on

account of the passage of time.

[86] In this regard, for instance, mention is made of Mr. Ralph Strauss, who

was in the employ of the respondents at the time. He is no longer employed

by the respondents, having sought greener pastures elsewhere, it seems. The

respondents accordingly allege that Mr. Waterboer, who although still in the

respondents’ employ, cannot recall the events appertaining to the applicant’s

case.

[87] Recently, the Supreme Court has thrown its weight behind the SAPA

judgment, in Itula v Minister of Urban and Rural Development,11 where the

court said, ‘This court in SAPA held that in the absence of a finding that the

delay is so egregious so as to justify determining condonation without a

consideration of the merits, the criterion of the interest of justice would require

a court to consider the merits.’ The delay in this matter is nothing less than

egregious and for that reason, the court is not required to determine the

application on the merits.

[88] In the premises, I am of the considered view that the respondents’

arguments carry a lot of weight. It is clear that the delay is inordinate and that

there is palpable prejudice to the respondents that results directly from the

applicant’s delay in launching these proceedings. In addition, the applicant

has failed to explain the delay in any meaningful way. In such circumstances,

the court is unable to bring its discretionary machinery of condonation to the

applicant’s aid. In particular, it is not clear as to why the applicant did not,

where applicable, launch appropriate judicial proceedings previously that

would have seen his complaints receive attention from the court in good time. 11 (A1/2019) [2020] NASC (5 February 2020), para 53.

31

No judicial review of actions complained of

[89] The respondents also raised another legal issue that they argued

should serve to non-suit the applicant. This is closely related to the delay in

launching these proceedings considered immediately above. It is their

contention that the applicant has approached this court seeking the

declarators in the absence of any application for the review and setting aside

of the actions complained of.

[90] It has now become settled law that any administrative action taken by

an official, even if unlawful, stands until it is set aside by order of a competent

court. While it stands, it is capable of producing legally valid and binding

consequences.12 In this regard, it becomes clear that the applicant would have

been expected to have approached this court for an order setting aside and

reviewing the administrative action complained of. He inexplicably did not do

so.

[91] In Minister of Finance v Merlus Seafood Processors,13 the Supreme

Court cited with approval the sentiments expressed by Lord Radcliffe in Smith

v East Elloe Rural District14 where the following sentiments are expressed:

‘An administrative order . . . is still an act capable of legal consequences. It

bears no brand of invalidity upon its forehead. Unless the necessary proceedings are

taken at law to establish the cause of the invalidity and to get it quashed or otherwise

upset, it will remain as effective for its ostensible purpose as the most impeccable of

orders.’

[92] What is the net effect of the applicant not having applied at the

appropriate time for the review and setting aside of the said actions that he

complains of, particularly viewed in the context of the declarators sought? Is

that a permissible route for a litigant to follow?

12 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) [2004] 3 AllSA 1.13 2016 (4) NR 1042 (SC) P 1051 para D-E.14 [1956] AC 736 (HL) at 769-70; [1956]1 All ER 855 at 871H; 1956 2 WLR 88).

32

[93] In the Merlus case, the Supreme Court criticised the respondent’s legal

practitioners for abandoning the review of the Minister’s decision, contenting

themselves as they did, with the declarator. In expressing his disagreement

with the line of action chosen by the appellant’s legal practitioners, Mainga JA,

writing for the majority of the court stated as follows:

‘The respondent’s legal practitioners should not have abandoned the review

of the minister’s decision and this is where I disagree with the court below that under

the circumstances/facts of this case it had a discretion to grant the declaratory order.

The declaratory relief was dependent for its survival on the granting of the review

relief. The decision of the minister and the declaratory order by the court below

cannot co-exist on the same issue. The second order on the same issue is invalid.’

(Emphasis added).

[94] It appears, from the foregoing that the applicant is, on this authority, on

sinking sand as he seeks declarators without having applied for the setting

aside of the administrative action he claims is liable to be set aside. It is clear

from the underlined portion of the judgment that the applicant cannot obtain a

declarator whilst the decision of the functionary remains extant. According to

the Merlus judgment, the two cannot co-exist.

[95] The applicant’s counsel argued in reply, that the position adopted by

the respondents in this regard, is fastidious and should not be allowed as it

places technicalities ahead of substantive justice, so to speak. Reliance was

in this regard placed on Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni and

Others.15I am of the considered view that this cannot pass muster as a

technical argument. I say particularly so in view of the strongly expressed

sentiments by Mainga JA in the Merlus case.

[96] It would appear that the applicant has put the cart before the horse, as

it were. In the premises, it accordingly stands to reason that all the declarators

sought in the absence of the successful review of the administrative action

sought to be impugned, cannot be allowed to stand. They fall flat on their

respective faces and are dismissed therefor.

15 [2018] NAHCMD 97 (date???) para 55

33

Prayers related to the Legislative Organ of State

[97] A careful reading of some of the prayers sought by the applicant draws

one’s eyes painfully, to a sorry sight. The applicant, amongst the relief he

seeks, are orders that this court should direct the legislative organ of State as

to how it should exercise its legislative function. In this regard, prayers 8, 10,

17, 28, 38, 45, 55, 60, 64, and 76, there may well be more, seek an order that

this court should order Parliament to take one or the other step in its

legislating function.

[98] The language adopted by the applicant in most of the prayers

mentioned above is for this court to ‘direct and order the First Respondent and

the National Assembly’ to do specified acts complained of in the notice of

motion. It is a historical fact that the Constitution of this country fully

recognises the doctrine of separation of powers, in terms of which each of the

three organs of State, the trias politica, are each required to keep to the lane

of their constitutional mandate and not to veer into or encroach on the

constitutional responsibility of the other. In paying homage to this principle, an

organ of State may not order another to perform certain duties as the

applicant seeks this court to do.

[99] The learned author and Judge, Mr. Justice Key Dingake, in his recent

work entitled ‘In Pursuit of Justice – Examining the Intersection of Philosophy,

Politics and Law’16 states the following about the doctrine of separation of

powers:

‘According to Montesquieu, if one authority exercised executive, legislative

and judicial powers, then that would be the very definition of tyranny. Separation of

powers requires the three arms of the state to keep to their designated mandate and

not to trespass into another’s function’.

16 Oagile Bethuel Key Dingake, In Pursuit of Justice – Examining the Intersection of Philosophy, Politics and Law, Marapa Publications, 2019, p 32.

34

[100] Having due regard to the foregoing statement of the law, it becomes as

clear as noon day that the court cannot properly, and in good conscience,

give in to the applicant’s entreaties regarding the orders the court is

importuned to issue to the Legislature. This is an exercise this court will not

embark upon and the prayers sought in the above paragraphs, in so far as

they relate to orders for the Legislature, are in the current context, improper

and they are accordingly refused.

[101] In the event that I may have erred in dealing with some of the prayers, I

find it necessary, as an alternative, to deal with a few matters that arise from

the applicant’s application. This will be dedicated to a few prayers sought by

the applicant and which I find, on account of their importance, it is necessary

to traverse.

Prayer 26

[102] In this prayer, the applicant seeks an order ‘Declaring section 12(8) of

the Income Tax Amendment Act 5 of 2007 to be unconstitutional insofar as it

delegates a legislative power of the National Assembly under Articles 44 and

63 of the Constitution to the First Respondent to determine when sections 7

and 8 of the aforesaid Amendment Act should commence in contravention of

the constitutional separation of powers since the First Respondent is part of

the executive and not the legislature, and consequently, the amendment of

section 79 and 80 of the Act by the said provisions is invalid and of no legal

force.’

[103] The Supreme Court had, in Kabazembi Guest House Farm v Minister

of Lands,17 held that in such cases, whether the principle of separation of

powers has been violated in any case, depends on the language employed,

construed in line with the constitutional values embedded in the Constitution.

It refused the appellant’s entreaties in that case, to the effect that by

determining the rate of land tax, the Minister did not violate the principle as

the Minister determined the rate under the supervision and oversight of the

National Assembly and that the Minister’s function in that regard forms part of 17 2018 (3) NR 800, p 812-813.

35

the administration of the land tax systems based on value and established by

Parliament.

[104] The Supreme Court has recently dealt decisively with the very question

raised by the applicant in Itula.18 In this regard, it must be mentioned, the

Supreme Court concluded the matter in line with the argument advanced by

the respondents in opposition to the applicant’s argument that the Minister

may not properly decide the dates of implementation of legislation as that is

an exclusive legislative function.

[105] In dealing with the doctrine of separation of powers in circumstances

where the Minister in that case had selectively, as the Supreme Court found,

implemented certain provisions of the Electoral Act, that court said:

‘The principle of separation of powers is established in Art 1 of the

Constitution and emphatically reaffirmed in the provisions vesting the legislative

authority in Parliament. Article 44 states that the legislative power is vested in the

National Assembly (to pass laws with the assent of the President and subject to the

power and functions of the National Council). In this instance, the President assented

to the Act in its entirety. The legislature may delegate subordinate legislative powers

(to regulate) to the executive and to put legislation into operation but the legislature

cannot devolve upon the executive any entitlement to select statutory sub-provisions

to implement. It would be for the legislature to amend or repeal an enactment if

minded to do so.’ (Emphasis added).

[106] It is plain from the underlined portion of the excerpt above, that the

Supreme Court has held that it lies within the Legislature’s prerogative, to

delegate its powers to the executive in relation to the dates when legislation is

to be put in operation and this is what has occurred in the instant case. It thus

follows that the impugned provisions cannot be declared unconstitutional in

the instant case for the reason that their dates of coming into force were

stated by the Minister, pursuant to delegation to do so by the legislature.

The monetary claims

18 Ibid, para 70 of the cyclostyled judgment.

36

[107] The applicant, in his papers, has lodged claims for payment of money.

These claim appear in paras 78 and 79 and need not be repeated in the

judgment. The Minister, has taken the legal point that the claims have

prescribed when proper regard is had to the provisions of the Prescription

Act.19 The applicant’s reaction to that legal point, is that the applicable period

of prescription in relation to his claims, is 30 years as provided in s 11(a)(iii),

of the said Act.

[108] Mr. Budlender helpfully referred the court to the judgment of the SCA in

Eskom v Bojanala Platinum District Municipality and Another.20 In that matter,

the question relevant for decision as in this matter, was whether a taxpayer’s

claim for a refund constitutes taxation. This question arose because of the

provisions of s 11(a)(iii) of the Prescription Act (which also applies in this

jurisdiction).

[109] That provisions stipulates the following in respect of the prescription

period:

‘(a) 30 years in respect of –

(iii) any debt in respect of any taxation imposed or levied by or under any law.’

Paraphrased, the provision states that the period of prescription in relation to

imposition of taxation or levy under any law, shall be thirty years.

[110] In dealing with this very issue, the SCA, per Comrie AJA, writing for the

majority, stated the following in the judgment:21

‘It does not necessarily follow, however, that a taxpayer’s claim for a refund of

RSC levies improperly assessed, and therefore not due, also constitutes taxation.

The respondent councils had no power to levy or collect more by way of tax than was

due to them in terms of Act 109 of 1985 and the regulations made thereunder. Such

payments, even if believed to be due at the time, were thus not taxes but something

19 Act No. 68 of 1969.20 2005 (4) SA 31 (SCA) 21 Ibid p 36 para 9.

37

else. Equally, the “debt” underlying the claim for a refund would not be a tax debt

imposed or levied under any law.’

[111] The court accordingly concluded as follows:22

‘I conclude therefore that s 11(a)(iii) of the Prescription Act, properly

interpreted, operates in favour of the taxpayer. Eskom’s claims for refunds of RSC

levies wrongly paid, whether at common law or constitutional, are accordingly subject

to the three-year period of prescription laid down by s 11(d).’

[112] I am in respectful agreement with this judgment, which it must be said,

is of strong persuasive value in this jurisdiction. As indicated earlier, the South

African Prescription Act is in pari materia with ours. It appears to me that the

Legislature, in its wisdom, granted leeway to the State to have debts owed to

it in relation to taxation prescribe after 30 years. This section does not in any

way, shape or form, make reference to money claimed by a taxpayer from the

Minister, even if as a result of a miscalculation by the CIR of what is due by a

taxpayer to the CIR.

[113] Dr. Wolf argued that the reasoning of the SCA on this particular issue

was wrong. I am, however, not persuaded that she is correct in that regard. It

must be mentioned in this particular respect that the challenge launched by

the applicant relating to these claims, was not constitutional. In other words,

she did not question the constitutionality of the Prescription Act insofar as it

stipulates different prescription periods for the fiscus and the taxpayer.

[114] I am of the considered view that the plea of prescription in the instant

case, is correctly made. The applicant’s claims were only lodged in December

2015, well after the period of prescription had expired. The applicant should

have instituted these claims within the period of three years from when the

debt arose.

[115] Properly construed in relation to the Prescription Act, the applicant is

not a person covered by the provisions of s 11(a)(iii) and it is clear that

22 Ibid, para 17.

38

Parliament did not have taxpayers in contemplation as possible beneficiaries,

when it promulgated the said provision. It must be considered that

Government departments are normally huge and the tracking of certain issues

and paperwork relating to tax debtors, may take some time, hence the period

legislated.

[116] This is not the case with an individual taxpayer, who, all things being

equal, has all documents readily with him or her, and can institute any claim

for a refund with minimal difficulty and within a short period of time. It appears

that Parliament may have had this issue in mind in making the difference it did

between the taxpayer and the fiscus in terms of prescription of claims. The

plea of prescription is accordingly good in the instant matter and it is upheld,

resulting in the applicant’s monetary claims being dismissed, as I hereby do.

[117] I should also mention, although this was not raised by the respondents,

it is very unusual and downright dangerous to institute claims for payment of

money on application proceedings. The reasons for this are obvious. It is for

that reason that in practice, claims for payment of money in this jurisdiction,

as is the case in most, are instituted via a summons and not on application.

Where there is no bona fide defence, the rules provide remedies that short-

circuit the period normally taken in action proceedings23.

Service of notices of assessment

[118] To the extent necessary, I will deal with the issue relating to the notice

of the assessment. The applicant contended that he is not liable to pay any of

the assessments made by the respondents for the reason that the notices

were not directed to him but to his tax consultants instead. He claims that he

did not receive the said notices and as such, cannot be properly held liable

therefor.

[119] For the stance the applicant adopted, he relied on Esselman v

Secretary of Finance.24 In that case, the court held that no liability arises

23 Rule 60, relating to summary judgment.24 1990 NR 250 (SC), also reported in 1991 (3) SA 681 (NMS).

39

unless there has been a proper notice given to the taxpayer. The facts in that

case are that the representative taxpayer, who was an executrix of her

husband’s deceased estate, had furnished her personal address as the

address to which the notices of assessment were to be sent. The notices,

were, however, sent to a Mr. Oehl, who was her agent. The court correctly

held that there had been no proper notice in that case.

[120] I am in full agreement with the respondents that this case is not

authority for the proposition that the applicant advances. In the instant case,

the applicant, himself, appointed certain persons as his tax consultants and to

which addressed the notices of assessment were sent. It cannot be correct

that the applicant can seek refuge and claim that he was not served when the

notices were sent directly to the addressed that he had himself provided,

which is a situation markedly different from the Esselman case. I accordingly

find that the applicant had proper notice of the assessments in the instant

case.

The constitutionality of the Tax Court and related matters

[121] In prayers 59, 60 and 61, the applicant challenges the constitutionality

of s 73 of the Act insofar as it does not uphold the doctrine of separation of

powers and further infringes on the right to a fair trial. In this regard, the

applicant contends that ss 73(3) and (4) of the Act confer power on the

Minister to constitute tax courts and this, offends against the Art 12(1)(a) and

Art 78 of the Constitution.

[122] It is further contended that ss 73(5) of the Act confers power on the

Minister to appoint lay members of the Tax Court to act as assessors

assisting the legally trained Judges. This, the applicant further contends, may

compromise the independence of the said courts as the Minister may exert

direct influence on taxation disputes by appointing lay persons who are

favourably disposed to him, thereby infringing the nemo judex in causa sua

principle.

40

[123] A further attack on the Act relates to the lodgement of the notice of

appeal, which in terms of the Act, must be lodged with the Minister. This, is

contended by the applicant, violates the separation of powers doctrine.

Another bone of contention in this regard relates to s 73(9) and (12) of the

Act, which confer power on the Minister to schedule the hearing of tax cases;

issue notices of set down and placing them on the roll and to subpoena

witnesses. It is specifically recorded by the applicant in this regard that the

Minister is a member of the executive branch of Government, and the powers

and duties conferred upon him as stated above, are in contravention of Art

78(2) and (3) of the Namibian Constitution.

[124] The applicant accordingly advocates for the court to direct that the said

provisions be brought in line with the applicable constitutional norms such that

the tax court’s judicial powers are severed, so to speak, from control by the

Minister, to ensure fair trials as envisaged in Art 12 of the Constitution. A

further prayer is made for the declaration that the phrase ‘and at the beginning

of appeals by the special court’, occurring in s 99(1)(d) of the Act is

unconstitutional as it does not clearly separate executive from judicial

functions and does not uphold the doctrine of separation of powers.

[125] It is further contended that the hearing of tax appeals should be

regulated by legislation to secure the independence of the Special Court from

executive interference as envisaged in Arts 12(1) and 78 of the Constitution.

Finally, it is the applicant’s contention that all the aspects of tax appeals

should be regulated in line with Art 78 of the Constitution and that the

Minister, as a member of the executive, should not regulate matters relating to

tax appeals.

[126] I intend to reproduce the provisions complained of verbatim below in an

effort to come to an informed view whether the applicant’s contentions carry

any legal weight.

[127] Section 73(3) of the Act, reads as follows:

41

‘The Minister may, by notice in the Gazette, constitute such court or courts,

and may from time to time by such notice abolish any existing court or courts or

constitute such additional courts as the circumstances require.’

[128] Section 73(5), on the other hand has the following rendering:

‘(a) The members of any such court other than judges shall be appointed by the

Minister by notice in the Gazette, and shall hold office for a period of five years from the date

of the relevant notice: Provided that the appointment of any such member may at any time be

terminated by the Minister for any reason which the Minister considers good and sufficient,

and shall lapse in the event of the abolition of the court in terms of subsection (3). (Emphasis

supplied).

(b) Any person so appointed shall be eligible for reappointment for such further period or

periods as the Minister may think fit.’ (Emphasis added).

[129] The other provision sought to be impugned, is s 73(9), which reads as

follows:

‘At least ten days before the date fixed for the hearing of an appeal the

Minister shall send to the person who made the objection or to his duly authorized

attorney or representative a written notice of the time and place appointed for the

hearing of such appeal.’ (Emphasis added).

[130] As indicated in Itula, quoted in para 98 above, the doctrine of

separation of powers is enshrined in Art 1 of the Constitution. This doctrine

provides that the three organs of State, namely, the Executive, Legislature

and Judiciary, must perform their constitutional mandate independently and

without interference from the other. In this regard, Art 78(1) of the

Constitution, vests judicial power in the Courts of Namibia. Art 78(2) further

declares the independence of the Courts of Namibia, subjecting them only to

the Constitution. It also enjoins the other organs to respect and protect the

independence of the Courts.

[131] It is imperative, in this regard, to determine what is meant by the words,

‘judicial power’ in the Constitution. According to the Oxford Advanced

42

Learner’s Dictionary, the word judicial means ‘connected with a court, a judge

or legal judgment’. The Black’s Law Dictionary, on the other hand, whose

definition I am enamoured to, offers the following definition for judicial power:

‘The authority vested in courts and judges to hear and decide cases and to

make binding judgments on them; the power to construe and apply the law when

controversies arise over what has been done or not done under it.’

[132] In other words, judicial power is the authority reposed in courts by the

Constitution and the law, to make binding legal determinations on issues

concerning the Government, natural and legal persons, regarding inter alia,

questions of judicial review, constitutionality, legal validity of actions or

decisions and liability of persons at law.

[133] The word ‘Judiciary’ is interpreted in the Judiciary Act25 as meaning ‘the

Supreme Court and the High Court referred to in Article 78(1)(a) and (b) of the

Namibian Constitution and Magistrates’ Courts established in terms of the

Magistrates’ Court Act, 1944 (Act No. 32 of 1944)’.

[134] It therefore appears to me that it cannot be constitutionally appropriate

and in keeping with the doctrine of separation of powers, for a member of the

Executive, to constitute courts as the Minister is empowered to do by s. 73(3),

quoted above. There is, in my considered view, no debate or doubt that the

courts envisaged in s. 73 exercise judicial power, that is exclusively vested by

the Constitution, in the Judiciary. It would be something of an anathema

therefor for the constituting and functioning of a court to be left exclusively to a

member of the executive branch to man. That violates the principle of

separation of powers, as we know it.

[135] In this regard, it would also follow that save the members of the Tax

Court not nominated by the Judge President, the rest are appointed by the

Minister directly. It would appear that the mode of appointment is not akin to

that of the appointment of Judges in the sense that the President, in making

appointments, does so on the advice of an independent constitutional body.

25 Act No. 11 of 2016.

43

[136] In terms of s 73(5), the members of the court are appointed by the

Minister and he may remove them for reasons that he alone considers good

and sufficient. Furthermore, the Minister may reappoint them for further

periods that he thinks fit. An English saying that he who pays piper plays the

tune, would ring true in the instant case.

[137] I am of the considered view that there is no doubt that those members

of the court appointed by the Minister, exercise judicial power as they sit in

judgment as part of the panel. The Minister is the official responsible for

running tax affairs in the Republic and has an official interest in every aspect

of the tax regime in this Republic. It is therefor unseemly that he should have

such a direct and at times decisive influence on the composition of this court,

the places where it sits and issues notices of its sittings.

[138] It must be mentioned in this regard that when reference is made to the

independence of the judiciary, it does not only appertain to the adjudicative

and functional independence of the court. An important aspect of

independence also relates to the appointment procedure and terms and

conditions of service of the judicial officers as well. As mentioned, the Minister

also literally controls the appointment and dismissal of the other members of

the court, with the legislation leaving the members to serve at his pleasure. I

say so because no reasons are outlined which may qualify them for possible

removal by the Minister.

[139] I also consider it improper, if we are to pay true homage to the doctrine

of separation of powers to leave the running of the court, the issuance of

notices in respect of appeals to the appellants to the Minister. A registry must

be created in terms of the law that will be responsible for receiving appeals,

scheduling hearings and issuing relevant notices. It is unseemly that these

powers should remain with the Minister.

[140] In this regard, the Constitution of Namibia, in Art. 12, guarantees all

persons, (including the applicant), in the determination of their civil rights, a

fair and public hearing by an independent, impartial and competent Court or

44

Tribunal established by law. It is apparent from what is discussed above, that

the involvement of the Minister, in the respects mentioned above, violates the

notions of a fair, independent and impartial Court guaranteed by the

Constitution. This renders the said provisions liable to be declared

unconstitutional therefor.

[141] It is imperative to mention in this regard that there are no complaints

before me regarding what may be regarded as any untoward behaviour, bias

or influence exerted by the incumbent Minister on the tax court. The issues

are raised in the spirit of good constitutional citizenship and in obedience to

the foundational principles that underpin the Constitution of this Republic and

which bind all of us.

[142] In my recollection, Mr. Budlender expressed the view that the applicant

was correct in most of his contentions in this regard. He correctly, in my view,

supported the case for the proper respect to be accorded the doctrine of

separation of powers. The Minister runs a big and very important ministry. It

would alleviate his burden to shed responsibilities relating to the tax courts to

authorities that are au fait with running courts, which will also serve to

enhance the independence and impartiality of the tax court in the eyes of the

court users.

[143] I am, for the foregoing reasons, of the considered opinion that the

applicant has made a case and in respect of which he has shown that he has

a direct interest, seeing as his matter is pending before the tax court. In this

regard, the provisions stated above are, in the respects mentioned above,

declared unconstitutional and not properly aligned to constitutional

imperatives of this Republic. The appropriate remedy will be dealt with when

the appropriate orders are issued towards the end of the judgment.

Constitutionality of section 81 of the Act and related provisions

[144] The applicant further challenges the constitutionality of sections 81, 83,

83A and s 92. In the main, the applicant alleges that the Minister resorts to

what she terms are ‘self-help measures’ to attach tax that is claimed to be

45

due. Before dealing with these provisions and the argument related thereto, in

argument, it was contended on behalf of the applicant that the Act is not user-

friendly and that certain provisions would have been better placed elsewhere

within the scheme of the Act.

[145] This is not a matter for the court to declare upon. I am certain that the

Minister’s doors are not closed to those circumstanced as the applicant, who

may wish to make recommendations regarding proposals to the structure and

content of the Act. The applicant does not state part of his case as being that

he approached the Minister who refused to consider or deal with his

observations in that regard.

[146] In order to deal with the contentions of the applicant, and to decide on

their sustainability or otherwise, in a logical fashion, it is imperative to first

have regard to the provisions sought to be impugned. Section 81, reads as

follows:

’81 (1) Where any taxes as defined in subsection (3) are owing by the

taxpayer in respect of more than one year of assessment or more than one of such

taxes are owing by the taxpayer, whether for one or more years of assessment, the

Minister shall not be required to maintain a separate account in respect of each year

of assessment or each of such taxes, but may maintain one tax account for the

taxpayer recording details of the assessed amounts of the said taxes and the interest

payable in respect of such taxes in terms of section 79 for which the taxpayer has

from time to time become liable, the amounts of the payments made in respect of

such taxes or interest (excluding payments made by way of provisional tax in terms

of Schedule 2), any credit in respect of any amount of employee’s tax or provisional

tax which the taxpayer is under that Schedule entitled to have set off against his

liability for such taxes and such other details as may be required to establish the total

amount owing by the taxpayer from time to time in respect of such taxes or interest,

and any such payment or credit shall be deemed to have been made or to have

accrued in respect of the total amount reflected in such tax account as owing by the

taxpayer at the time such payment is made or such credit is passed.

(2) The total amount owing by the taxpayer after the deduction of the relevant

payments or other credits in respect of any taxes as defined in subsection (3) and of

46

interest in respect of such taxes payable by the taxpayer in terms of section 79 shall

for the purposes of any proceedings for recovery (including proceedings under

section 83) be deemed to be a debt due to the Government of Namibia, and in any

such proceedings the Minister shall not be required to furnish particulars of the

amount claimed: Provided that the Minister shall, at the request of the taxpayer

furnish the taxpayer with copies of any notices of assessment relating to the taxpayer

as the taxpayer may require.

(3) For the purposes of this section “taxes” means the taxes comprehended in the

definition of “tax” in section 1, excluding non-resident shareholders’ tax and

undistributed profits tax.’

[147] Section 83, on the other hand, headed ‘Recovery of tax’, has the

following rendering:

‘(1) (a) Any tax or any interest payable in terms of section 79 shall, when such

tax or interest becomes due or is payable, be deemed to be a debt due to the

Government of the Republic of Namibia and shall be payable to the Minister in the

manner and at the place prescribed.

(b) If any person fails to pay any tax or interest payable in terms of section 79 when

such tax or interest becomes due or is payable by him, the Minister may file with the

clerk or registrar of any competent court a statement certified by him as correct and

setting forth the amount of the tax or interest so due or payable by that person, and

such statement shall thereupon have all the effects of, and any proceedings may be

taken thereon as if it were, a civil judgment lawfully given in that court in favour of the

Minister for a liquid debt of the amount specified in the statement.

(c) The Minister may by notice in writing addressed to the aforesaid clerk or registrar,

withdraw the statement referred to in paragraph (b) and such statement shall

thereupon case to have any effect: Provided that, in the circumstances contemplated

in the said paragraph, the Minister may institute proceedings afresh under that

paragraph in respect of any tax or interest referred to in the withdrawn statement.

(d) The Minister may institute proceedings for the sequestration of the estate of any

taxpayer and shall for the purposes of such proceedings be deemed to be the

creditor in respect of any tax due by such taxpayer or any interest payable by him in

terms of section 79.’

47

[148] Section 83A reads as follows:

‘Despite anything to the contrary in this Act, but subject to section 4, the

Minister, if he or she considers it necessary, may make arrangements with any

person to recover outstanding tax, penalty or interest on behalf of the Minister on

such terms and conditions as agreed upon between the Minister and such person.’

[149] The last provision under attack in this leg, is s 92. Its heading, reads

‘Remedies of Minister against agent or trustee’ and has the following

rendering:

‘The Minister shall have the same remedies against all the property of any

kind vested in or under the control or management of any agent or trustee as he

would have against the property of any person liable to pay tax and in full and ample

manner.’

[150] Another provision, which has not been mentioned, but which appears

from all indications, to have a bearing on the question at hand, is s 91. This

appears from the argument of the respondents, which will be adverted to

below. For that reason, it is convenient that the provision be quoted at this

juncture as well. It reads as follows:

‘The Minister may, if he thinks necessary, declare any person to be the agent

of any other person, and the person so declared an agent shall be the agent for the

purposes of this Act and may be required to make payment of any tax due from

moneys, including pensions, salary wages or any other remuneration, which may be

held by him for or due by him to the person whose agent he has been declared to

be.’

[151] The issue raised by the applicant, in which he attacks the

constitutionality of the 81(3)(b), entitling the Minister to obtain an attachment

without following due process, is not serving before our courts for the first

time, although the issue came as an afterthought, as it were. I say this

because form a reading of the judgment, it seems that the issue arose mid-

48

stream and the Supreme Court granted an indulgence to the appellant and

extra papers were filed by the parties on the constitutionality issue.

[152] This was in Hindjou v The Government of the Republic of Namibia.26

The Supreme Court, per Dumbutshena AJA held that the above provision ‘has

nothing to do with art 78 of the Constitution. The attack by the appellant on

the income tax collecting mechanism in ss 83(1)(b) and 34 on the ground that

these sections are unconstitutional is ill conceived. The appellant should have

attacked the various assessments if he felt that they were wrong. The

provisions of ss 83(1)(b) and 84 have nothing to do with the assessment of a

taxpayer’s tax liability. If the appellant was dissatisfied with the manner in

which the judgment was entered, it was open to him to apply to the Court to

set aside the judgment on the ground that it was entered in his absence.’27

[153] A somewhat similar issue has recently been decided in Zimbabwe in

Murowa Diamond (Pvt) Limited v Zimbabwe Revenue Authority & Another.28

In that case, the appellant, a taxpayer, sued the respondent in the matter,

challenging the constitutional validity of s 58 of the Income Tax Act, Cap

23:06, as being in contravention of the Bill of Rights of Zimbabwe, insofar as it

permits the respondent to resort to extra-judicial self-help in the recovery of

bona fide disputed tax liabilities. It was therefor contended that the said

provision stands in conflict with rights guaranteed in the Bill of Rights, namely,

the right to equal protection of the law, non-discrimination and the right to

administrative justice.

[154] I digress to mention, that the Murowa judgment, was brought to my

attention, shortly before this judgment was due, by Mr. Mafukidze, who

argued for the applicant in that case. This was merely fortuitous and a sheer

coincidence. I did not have the time to request the parties to refer to it by way

of additional heads of argument. I will consider the case for what it is worth

but it will not in any way, shape or form, inform the judgment of the court, in

line with the Kauesa29 principle. I will still have regard to the argument made 26 1997 NR 112. 27 Ibid p119 A-B.28 HH 125-20, HC 156/2018 (Delivered by Mafusire J on 20 January 2020).29 Kauesa v minister of Home Affairs (SA 5/1994) [1995] NASC 3 (11 October 1995).

49

by the parties, including the cases to which they referred the court, in arriving

at a decision in this particular regard.

[155] It is perhaps important to mention that the provision in question, which

was sought to be impugned, is the equivalent to s 91, which is quoted in full

above. The Zimbabwean provision though similar in many respects, is more

comprehensive in respects that are not material for present purposes.

[156] After first dealing with the issues of ripeness and avoidance in Murowa,

which were ultimately determined in favour of the applicant, the court

dismissed the constitutionality argument. After referring to the Biblical Caesar

and the payment of taxes as recorded in Scripture, namely, ‘Render to Caesar

what belongs to Caesar and to God what belongs to God,’30 the court, in a

well-written judgment, with a wonderful turn of phrase, held that ‘Public policy

demands that revenue inflows to the fiscus should not be interrupted by

frivolous objections. An efficient tax collection regime is the life blood of all

modern societies the fiscal wheels of which must continue turning.31

[157] Regarding the equality argument, the court reasoned as follows in

dismissing the applicant’s argument:

‘I find the applicant’s argument flawed. Caesar is not equal to his subjects.

The applicant and the first respondent may be two parties to a dispute. But that is as

far as the equality goes. The respondent must collect tax due to the fiscus.

Government business must not grind to a halt by reason of glitches in the recovery of

tax. It must be equipped with powers and instruments to overcome roadblocks in its

collection mandate. The first respondent is an administrator. It cannot be equal to the

taxpayer. Section 56 of the Constitution does not apply.’

[158] I do not sit as a court of appeal but I should express my respectful

disagreement with the line of reasoning adopted by the learned Judge on this

matter. The disagreement is especially on the issue of equality, as the sum

total of the judgment, is that the respondent in that case is not subject to the

law and is not equal to other litigants by virtue of its position and work it does. 30 Matthew 22:21 (KJV).31 Ibid para 37, last sentence.

50

I will say no more on this judgment save to quote the last portion where the

court deals with the issue of disproportionality of the protection afforded the 1st

respondent in law.

[159] The learned Judge, again in impressive language said:32

‘Secondly, and more importantly, tax legislation is complex. It is intricate. The

provisions are interrelated. They are interdependent. The whole tax regime is

designed to achieve one purpose: the efficient recovery of outstanding taxes

unhindered by disruptive and interruptive objections and legal processes. This stems

from public policy. Tax legislation is like a gear with several cogs, a wheel with

spokes. It makes no sense to me to seek to knock down one cog or one spoke. All

what that will do is to impede the flawless function of the gear or the wheel.’

[160] It appears that the learned Judge is of the view that there can be no

application brought to challenge the constitutionality of a provision of the Act

because of the interrelated nature of the provisions of the piece of legislation,

and this it would seem is so, even in the face of some unconstitutional aspect.

It further seems that His Lordship takes the view that tax collection, because

of its importance, should not be subject to the rule of law and constitutionality

and that any challenge thereto, is disruptive and interruptive, regardless, it

would seem, of the merits. I do not share those sentiments, particularly for a

country like Namibia, where all are equal before the law, and in this case, the

Minister included.

[161] I should perhaps point out and pertinently too, that the applicant, in this

matter, as correctly pointed out by the respondents, has not challenged the

constitutional validity of s 91 of the Act. I am of the considered view that that

very fact, it appears to me, renders the applicant’s case against the 4 th

respondent unsustainable. I will deal with that issue at the appropriate

juncture later in the judgment.

[162] I now turn to s 83(1)(b), regulating the attachment or execution of the

tax allegedly owing. I have considered the cases referred to me by the parties,

including Hindjou and Hindry v Nedcor Bank Ltd33 on which the respondents 32 Ibid para 41,33 1999 (2) SA 757 (WLD) Per Wunsh J).,

51

laid a lot of store and implored the court to follow. In a broadside, the

applicant’s legal practitioner appeared to cast aspersions on the Hindry

judgment, referring to it as an ‘obscure’ judgment from the W.L.D.

[163] I do not share that criticism. This is so because this is a judgment that

is reported both in the South African Law Reports and the All South African

Law Reports as well, to underscore its importance and cutting edge on the

issue. Furthermore, a reading of it shows that it traverses a number of

jurisdictions on the issue of attachment of tax allegedly owing. The fact that I

disagree with the aspersions cast on it on behalf of the applicant, does not

however, translate to this court aligning itself with the reasoning in the entire

judgment.

[164] I would like to deal first with Hindjou. I have read the judgment and am

in law bound by judgments of the Supreme Court in the true traditions of stare

decisis. There is absolutely no question about that. What I have, however

observed from reading the said judgment closely, is that the issue of

constitutionality was not raised initially on behalf of the appellant and was

allowed midstream.

[165] One, unfortunately does not, however, have the papers or submissions

filed on behalf of the parties in that matter. For that reason, I am of the

considered view that the Supreme Court was well within its rights to hold, on

the facts of the case before it, that the issue raised then, had nothing to do

with Art 78.

[166] I do not, however, understand the Supreme Court to have stated in

language that can be said to be that of the law of the Medes and the Persians,

that a party can never raise the constitutionality of the provision in question,

when one views it in contradistinction with Art 78, which has been quoted

elsewhere above. I understand the excerpt quoted in para [152] above, to

have been confined to the facts of the Hindjou case.

[167] I am accordingly of the view that in the instant case, the applicant has

made out a case for arguing that the provisions of s 83 of the Act do

52

constitutionally implicate Art 78. Whether the applicant would ultimately

succeed, is a different question altogether, in my considered view. It would, be

beneficial for taxpayers and the Minister to have this issue revisited and if

need be and maybe preferably, that it be placed before the Supreme Court for

determination, regard had to the issues raised on behalf of the applicant in the

current matter.

[168] What is clear is that s 83(1)(b) entitles the Minister, where a person

fails to pay tax, or interest, as the case may be, to file a statement certified by

him, which then assumes the character and effect of a civil judgment lawfully

given in a court of law. The applicant cries foul and alleges that that process

amounts to self-help by the Minister and should, for that reason, not be

countenanced by the court.

[169] The issue that arises, in this regard, is that the Minister is given, what

appears to be judicial power to obtain a civil judgment without any hearing or

notice to the taxpayer concerned. In this regard, the Minister’s certificate,

through some legal metamorphosis, once merely filed with the registrar,

becomes a civil judgment at the end of the day. It appears that the filing of the

certificate starts and completes the metamorphosis process, leading to it

becoming a fully-fledged civil judgment.

[170] The judgment in Hindry, which I should mention, was cited with

approval in Murowa, traversed many a jurisdiction, as intimated earlier. This

included the United States of America and India, in considering the regimes

where a similar process afforded the Minister to pursue in Namibia, is allowed.

It would appear that the main conclusion to be deduced from Hindry, is that to

allow a taxpayer to litigate their tax liabilities would compromise the

Government’s financial security and that it is in the public interest to resort to

the current procedure provided in the Act.

[171] There are some interesting academic treatises regarding the legality of

allowing the Minister to appoint an agent to collect tax on his behalf. It is

argued in this regard that the provisions of s 91 break the ‘causal link’

between the taxpayer and the fiscus by allowing third parties to pay tax on

53

behalf of the taxpayer.34 I do not have to consider these arguments captivating

and interesting they may be. This is because as mentioned earlier, the legality

and/or constitutionality of s 91 has not been challenged in this matter.

[172] There are a few curious issues that arise from Hindry, in my considered

view. First, before dealing with these, it must be mentioned that the statutory

regime, as earlier mentioned, allows the Minister to obtain judgment without

following any due process. The oversight that the judicial process, together

with the oversight court procedures afford litigants, is completely excised.

Furthermore, no notice whatsoever, is afforded to the taxpayer, regarding the

amount alleged to be owed and seeking any representations from the

taxpayer before the judgment is issued.

[173] It appears to me that the Minister, who has an official interest in

matters of tax collection, becomes a litigant, lawyer and arbiter in the matter.

The Minister ultimately obtains a civil judgment without following due process,

as mentioned earlier. To this extent, he appears to be exercising judicial

power for the reason that the process that he initiates, without any enquiry or

hearing or consideration by the court, save mere filing his certificate, becomes

a civil judgment sounding in money without more. The court is not even

required to endorse the order by reading the papers or requesting

clarifications, where appropriate. The registrar of the competent court is

literally faced with a fait accompli.

[174] The present scenario would, for purposes of argument, be juxtaposed

with the situation in arbitral awards in labour cases. In terms of the Labour

Act, 2007, an award may be registered with the Registrar of the Labour Court

and upon registration, becomes an order of the court. It is important to

mention in this regard, that the process followed before the registration is

made, is markedly different. This is because the registration will have been

preceded by a full hearing before the arbitrator, where all the protagonists

have their say and day in court as it were.

34 C. Keulder & T. Legwala, “The Constitutionality of Third Party Appointments – before and after Tax Administration Act, 2014, THRHR, vol 77, 53-77.

54

[175] In the case of the Minister, the case is completely different. He initiates

the proceedings without notice and by filing the certificate, he obtains a civil

judgment with no pleadings, no service and notice whatsoever on the

taxpayer. I am of the considered view that this practice is constitutionally

objectionable and is not justifiable as it allows the obtaining of a judgment

without resort to the courts of law and without notice to the person alleged to

be owing. Constitutions often frown upon the violation of the right to be heard

when an adverse order, like the attachment of your property is sought to be

made.

[176] From reading some of the cases, the argument is that if a party was to

be given notice of the Minister’s intention, he or she would be tempted to spirit

the money away beyond the reach of the Minister and before he strikes, so to

speak. I am of the view that this argument does not hold water in this day and

age, for the reason that there are modern legal mechanisms at the disposal of

the Minister to apply ex parte for the preservation of the property whilst the

legal processes are in motion.

[177] This mechanism has been effective for instance, in proceedings related

to the Prevention of Organised Crime Act, 2004. It is a serious matter for a

party to resort to self-help and in a matter where he or she has an interest,

thus not only assuming judicial power, but also playing all the other roles,

save execution. Our Constitution, it seems to me, does not and should not be

construed to permit such an enterprise.

[178] I am of the considered view also that weight should not be attached to

the argument that it may be costly for the Minister to approach the courts in

this instance. It must be considered that the legal process allows a process of

a successful litigant recovering its costs in the event it succeeds. In this

regard, the law may be redrafted such that the Minister is not out of pocket as

a result of instituting the proceedings. To allow him to obtain judgment in the

present scenario, certainly leaves a bitter after-taste in my judicial palate. I

say this with respect.

55

[179] In Hindry, the court, when dealing with the right to be heard and

notified, commented that the applicant in the matter had no defence to the

claim that he would have raised, even if he had been afforded a hearing. I am

of the view that this reasoning should not carry the day for the reason that a

person does not need to have a good or a bona fide defence to be entitled to

be served with and notified of proceedings against him or her. By parity of

reasoning, he or she should not have a solid or stonewall defence in order to

oppose or defend same. Some defences may be borderline.

[180] In any event, the issue of the strength or frivolity of the defence, is for

the court to determine but may not be a means of excluding a litigant from

accessing the portals of justice. If that were the case, it would be difficult to

deal with cases because what may at first blush appear to be a hopeless

case, may prove to be different, once the person has been heard35. Even if

the person does not have a good defence, he or she must still be heard and

satisfied that he his had his or her day in court.

[181] The court in Hindry,36 referred to process that the Minister follows, as a

garnishee procedure, which is recognised in other countries. In our civil

procedure, as I understand it, garnishee proceedings follow the issuance of a

court order and in which the person against whose money the proceedings

are issued, will have had his or her day in court or would have decided not to

defend the proceedings in question. As such, he or she and would be aware

of the debt he or she owes. That your property may be taken now and you are

heard later, may be cold comfort as argued in the Murowa case, where a

company may be liquidated as a result of the attachment and by the time the

issue is addressed, it has become moribund and the assets may not be

returned but credited to the future tax liability of the taxpayer.

35 John v Rees [1970] Ch 345, 402, where Sir Robert Megarry said the following in deciding a case about a Labour Party meeting that had been abandoned in disorder, ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’ 36 Ibid p 782 A.

56

[182] It is quite understandable that tax must be collected and at times in a

robust manner. That robust manner, should not, however, exclude the proper

and usual role and function of the court and the concomitant and unavoidable

application the rules of natural justice, which have found their way into the

constitutional texture of this Republic.

[183] The impugned provision allows for the usurpation of judicial power, and

further allows a party acting in a matter where it has an interest – denying the

other a hearing and does not notify the other party of its intentions. To make

matters worse, there is no rule nisi issued that the other party can respond to

while the property remains attached for preservation purposes only and which

may be discharged in appropriate cases on the return date.

[184] I am drawn to certain remarks of Mokgoro J, in Lesapo v West

Agricultural Bank,37 where the learned Judge admittedly dealt with a different

scenario, which involved the attachment and sale of debtors’ property by the

Bank without any judicial oversight. In dealing with that issue, the court

expressed sentiments that commend themselves as eminently apposite in

casu. The court stated as follows:

‘[10] Without any judgment or order from any court and without any of the

statutory or other safeguards applicable to the attachment and sale in execution of a

judgment debt, section 38(2) authorises the Bank itself to by pass the courts and

these and other safeguards and to seize and sell the debtor’s property of which the

debtor was in lawful and undisturbed possession. This is so even where, under

section 38(2), the messenger of the court is required by the Bank to seize and sell

the property because under the subsection the messenger can only be acting as the

Bank’s agent and not as is normally the case, as an officer of the court. His

instructions and authority emanate solely from the Bank and not from any court or

court order.’

[185] At para 11 and 13, the learned Judge proceeded and said:

‘[11] A trial or hearing before a court or tribunal is not an end in itself. It is a

means of determining whether a legal obligation exists and whether the coercive

37 2000 (1) SA 409 (CC) para 10.

57

power of the state can be invoked to enforce an obligation, or prevent an unlawful act

being committed. It serves other purposes as well, including that of institutionalising

the resolution of disputes, and preventing remedies being sought through self-help.

No one is entitled to take the law into his or her own hands. Self-help, in this sense,

is inimical to a society in which the rule of law prevails . . .

[13] An important purpose of section 34 is to guarantee the protection of the

judicial process to persons who have disputes that can be resolved by law. Execution

is a means of enforcing a judgment or order of court and is incidental to the judicial

process. It is regulated by statute and the rules of court and is subject to the

supervision of the court which has inherent jurisdiction to stay the execution if the

interests of justice so require.’

[186] I pause to mention that in the instant case, the Minister does not lodge

a dispute with the court against a taxpayer for the resolution thereof by the

court. He computes what is in his opinion owing, certifies it and then files his

certificate. Upon filing, through some fiction, the certificate – not an application

or a summons – filed by the Minister, becomes a court order, which can be

executed without more.

[187] I am aware of the sentiments expressed in Metcash v Commissioner of

Inland Revenue for SARS38 where the Constitutional Court of South Africa,

dealing with execution by the Commissioner in similar circumstances with

those complained of in the case and after being referred to Hindry. The court

said:

‘The execution process . . . specifically goes via the ordinary judicial

institutions. It requires the intervention of the court officials and procedures. The

subsection, by saying that once the Commissioner’s statement has been filed it has

“all the effects . . . of a civil judgment”, quite unequivocally includes by reference the

whole body of legal rules relating to execution. Filing the statement sets in train the

ordinary execution processes of the particular court. . . The substance of the matter

is that the ordinary civil process of execution is not authorised to usurp any judicial

functions.’

38 2001 (1) SA 1109 (CC) para 52.

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[188] It will have been apparent from what is said elsewhere above, that it is

with the greatest respect, in my considered view, incorrect to say that judicial

powers are not usurped in the process the Minister is allowed to adopt. I say

so because as mentioned earlier, the court officials, who are not judicial

officers in any event, although engaged, do nothing to the papers probably

save assisting in completing the filing formalities.

[189] That, with respect, does not amount to a judicial function but an

administrative one, exclusively within the realms of the court’s structures. It

must be mentioned that the Registrar of a court does not perform judicial

functions as these reside exclusively in judicial officers properly so-called. It is

for that reason that Rule 108 was introduced to give judicial oversight on

attachment and sale of properties, which was previously done by Registrars of

court, that the court found, was unconstitutional.39

[190] It must be mentioned in this regard, that the Hiskia judgment followed

upon the amendment of the High Court Rules, which departed from previous

rules which allowed the Registrar of this Court to declare immovable property

executable, without judicial supervision. As a result, Rule 108 of the High

Court Rules, was promulgated in order to cure the complaint, which was

justified, as the Registrar exercised judicial power specially reserved by the

Constitution, for the Judiciary. In my view, what is sauce for the goose, must

be sauce for the gander – and this applies to the Minister as well and with

equal force in this regard.

[191] It can also not be correct that the rights of a party to a proper judicial

hearing can be incorporated by reference when that reference does not in

actual fact deliver a fair and proper hearing and notification to the party

against whom the execution process is to ensue.

[192] I also and accordingly, but with respect, do not agree that it is the

ordinary process of execution that is brought into effect by the filing of the

Minister’s statement, but starkly absent the procedural rights that a person

39 Hiskia v The Body Corporate of Urban Space (HC-MD-CIV-MOT-GEN-2017,00143 (NAHCMD 279 (31 August 2019).

59

has in law and before a court of law, which should precede the execution

procedures. From the foregoing, it does still seem to me that the Registrar of

the court, but not the court itself, is faced with a fait accomplii as stated

earlier. Figuratively speaking, the Registrar’s hands, and not those of the

court, are tied. The Registrar cannot reject or question the amount or any

aspect of the statement filed. In this enquiry, the court, that is the only entity

empowered by the Constitution to exercise judicial power in this Republic,

does not at all feature.

[193] Properly considered and in context, all that the court does, in terms of

the law, is, through the instrumentality of it’s registrar, bring its execution

processes and mechanisms to bear on the statement filed by the Minister.

Clearly, this precludes the court itself, from being engaged and bringing to

bear its curial skills, judicial sagacity and mechanisms, to bear on the

statement filed before the execution eventuates. There can, in my respectful

view, be no better case of the usurpation of the judicial power vested in the

court than the provisions under scrutiny.

[194] To illustrate the point further, in Tembani v Zimbabwe40 decided by the

now defunct SADC Tribunal, the applicant, Mr. Tembani, a Zimbabwean, took

Zimbabwe to the Tribunal, challenging the constitutionality of a clause in the

contract of the Agricultural Bank of Zimbabwe, which allowed the said Bank,

where the borrower commits a breach of the terms and conditions of the

agreement, to ‘without recourse to a court of law’, enter upon the property

hypothecated and to take possession thereof, and sell and dispose of same in

whole or in part. The said procedure was sanctioned by section 16(7)(d) of

the Zimbabwean Constitution.

[195] The Tribunal, concluded that the said provision, together with the

permitting section 16(7)(d) of the Zimbabwean Constitution, were in breach of

principles of international law, by preventing access to the courts. Zimbabwe

was held to have been in breach of her obligations under Article 4(c) and 61

of the SADC Treaty. The sale and transfer of the said property, was adjudged

to be null and void. In part, the Tribunal, relied on Attorney-General of the 40 (SADC (T) 07/2008 [2009] SADCT 3 (14 August 2009).

60

Commonwealth of the Bahamas v Ryan41 where it was held that, ‘It has long

been settled that a decision affecting the legal rights of an individual which is

arrived at by a procedure which offends against the principles of natural

justice is outside the jurisdiction of the decision-making authority.’

[196] Dealing with some of what may be considered as inconveniences and

delays with following court procedures, as reiterated in the Murowa judgment,

regarding tax cases, O’Regan AJA, dealt with the complaint as follows, in

Shaanika and Others v The Windhoek City Police and Others, where

landowners demolished illegal structures and evicted persons thereat, without

recourse to the courts:42

‘Moreover, in most circumstances, access to court does introduce some

delay, the cost of which might be troubling to landowners and local government, but

the very purpose of access to courts is to ensure that there is impartial and

independent determination of the legal question before the harmful process of

demolition and eviction takes place.’

[197] This judgment, by our very Supreme Court, provides a full answer to

the argument regarding the time consuming and costly exercise court

proceedings result in, which appears to be argument for the procedure

adopted by the Minister in the instant case. There should be no cutting of

corners and avoiding the courts by resorting to easy, convenient and

straightforward processes but deprive the parties on the other side,

constitutional processes and protections.

[198] Last, but by no means least, in Zondi v MEC for Traditional and Local

Government43 the Constitutional Court of South Africa stated the following

trenchant remarks:

‘The right of access to courts is an aspect of the rule of law. And the rule of

law is one of the foundational values on which our democracy has been established.

In a constitutional democracy founded on the rule of law, disputes between the state

41 (1980)AC 718.42 2013 (4) NR 1106, at 1125I-H, to 1126A.43 2005 (3) SA (CC) para 82.

61

and its subjects, and amongst its subjects themselves, should be adjudicated upon in

accordance with the law. The more potentially divisive the conflict is, the more

important that it be adjudicated upon in court. That is why a constitutional democracy

assigns the resolution of disputes to “a court or where appropriate, another

independent and impartial tribunal or forum”. It is in this context that the right of

access to courts is guaranteed by section 34 of the Constitution must be understood.

[199] The above poignant remarks, are in my considered view, apposite and

quite applicable in a constitutional democracy such as we have in Namibia.

The exclusion of the courts by the provisions of the Act, under scrutiny, is, in

my view not justifiable in this democratic dispensation.

[200] This provisions under scrutiny in this matter, accordingly violate the

provisions of Art 78 and serve to deny the applicant and similarly

circumstanced individuals, of their procedural rights before an adverse

judgment can be issued against them. This is also contrary to Art 12, and

eventually leads to execution procedures against their property, in respect of

which there is no justification, in my view. I am accordingly of the considered

opinion that the applicant’s application in this regard should succeed.

The Fourth Respondent’s case

Application for condonation

[201] Before dealing with the main case between the applicant and the 4 th

respondent, it is necessary to first deal with an application for condonation,

filed by the 4th respondent during the hearing, for the late filing of its heads of

argument, which was opposed by the applicant. I decided to allow the

application to proceed on the merits as well and intimated that a decision on

the application for condonation would follow together with the main judgment.

That decision now follows.

[202] It is trite that in an application for condonation, an applicant therefor

must allege and prove that he or she has a reasonable explanation for the

62

default and that he or she has reasonable prospects of success44. Mr.

Luvindao, in his application, argued that the delay in this matter was due to an

administrative oversight and not due to a wilful disregard of the rules of court.

[203] He argued that it is a fact that the delay in filing the heads of argument

was by period of three days and that this delay did not occasion any real or

substantial prejudice to the applicant that cannot be cured by an appropriate

order for costs. He also submitted, by reference to the papers, that the

applicant had glowing prospects of success in the matter.

[204] I have read the papers filed of record and I am satisfied that the 4 th

respondent has given the court a full and accurate explanation for the delay.

Even if the explanation may not have been convincing, which I find it is not,

the period of delay was very minimal and would hardly have occasioned real

or substantial prejudice to the applicant and the court in particular. I say so

because the heads of argument were filed on 13 September 2018, long

before the matter was due to be heard and the applicant has not shown or

demonstrated what prejudice he suffered if the application was allowed.45

[205] I have no doubt as well, having considered the papers and the

submissions filed on this issue and the main case, that the 4 th respondent,

appears to have very bright prospects of success on the merits. I say so

considering the issues raised by it, especially the fact that the applicant did

not, in his papers, challenge the validity and/or constitutionality of s 91 of the

Act and in terms of which the 4th respondent was obliged to act in terms of the

Act.

[206] The application for condonation is accordingly granted and the court is

at large to fully consider the 4th respondent’s case as raised in its papers and

the heads of argument. I should also mention that this is an important matter

in respect of which the court would be ill at ease to deny condonation in even

worse circumstances than those attendant to it insofar as the 4th respondent is

44 Telecom Namibia v Nangolo (SA 62/2012) [2014] NASC 23 (25 November 2014).45 Standard Bank Namibia Limited v Silas Hafeni Nekwaya (HC-MD-CIV-ACT-CON-2017/01164 [2018] NAHCMD 172 (15 June 2018), para 15.

63

concerned. I accordingly proceed to consider the 4 th respondent’s case

forthwith.

4 th respondent’s argument on main case

[207] Mr. Luvindao, in his address, brought to the court’s attention a fact that

the respondents, as mentioned earlier, had mentioned, namely, that the

applicant has not, anywhere in his papers, sought to challenge the legal

validity and/or constitutionality of the provisions of s 91, under which the 4 th

respondent was obliged to act.

[208] Not only that, once that power reposed in the Minister is not

challenged, it seems to me, there can be no question about the lawfulness of

the actions that the 4th respondent may have taken in pursuance of the

obligations imposed on it by s 91. Regardless of whatever fiduciary duty it

may have had in relation to the applicant, the 4th respondent was under a

statutory obligation, to comply with the direction given by the Minister in terms

of s 91. The relevant section does not afford the 4th respondent any discretion

regarding the Minister’s directive.

[209] It is my considered view that if there was any fiduciary duty that the 4 th

respondent may have owed to the applicant, it was based on the dictates of

the common law. To the extent that the legislature permitted a party in the 4 th

respondent’s shoes to act as an agent and to remit whatever monies it had

belonging to a third party, it would seen to me that the legislature thereby

amended the common law and to that extent, the applicant had an obligation

to comply with the Minister’s directive, regardless of the consequences

thereof to the client.

[210] All I can say in this regard, although this may be obiter, in the

circumstances, it is in my considered view proper that the Minister’s agent in

terms of s 91, should inform the client of the Minister’s directive and the fact

that he or she is obliged to comply with it and do so accordingly. He or she

cannot refuse or wait for instructions from the client as a refusal or failure to

comply with s 91, is unlawful.

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[211] I also consider favourably Mr. Luvindao’s point that the objection raised

by the applicant, is raised about 9 years after the fact. In this regard, besides

its legal obligation to comply with the Minister’s notice, it behoved the

applicant to have brought whatever compunctions it had with the 4 th

respondent’s actions, within a reasonable time. It is submitted that the 4 th

respondent’s employees who have the institutional memory relating to the

applicant’s case, have left the institution, to the 4th respondent’s prejudice.

[212] I certainly agree entirely with Mr. Luvindao in this argument. No sound

or compelling reasons are proffered by the applicant for this inordinate delay.

The prejudice that the 4th respondent has suffered as a result of the late

launching of these proceedings, is in my considered view manifest and the

applicant should not be allowed to profit therefrom. In the premises, the court

finds against the applicant in this regard.

[213] The applicant also claimed an amount of N34 028.64 against the 4 th

respondent as a result of the 4th respondent having unreasonably paid over to

the CIR the amount claimed in terms of the directive under s 91. The latter put

up the defence of prescription, stating that the amount claimed cannot be paid

to the applicant because the claim has prescribed, the claim having arisen in

February 2010. I agree and the observations made in respect of the monetary

claims against the respondents, apply mutatis mutandis in this matter.

[214] It is also a matter of comment that the applicant adopted the wrong

procedure in making the claim, as monetary claims, unless otherwise

authorised, should be initiated by summons and not on motion, as the

applicant purported to do. The applicant’s application against the 4 th

respondent is thus dismissed.

Outstanding appeal

[215] I must mention that it is totally unacceptable that the appellant’s appeal

has not seen the light of day after so many years due to administrative

bungling within the CIR. It must not be forgotten that the issue on appeal is

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intimately interwoven with the applicant’s rights and the adage justice

delayed, is justice denied, ever rings so true. The applicant deserves his day

in court and this court should not mince its words in saying the delay is totally

deplorable and a serious negation of the applicant’s rights to a fair hearing.

[216] Court documents must be properly kept and availed when needed. The

situation that has arisen in this case may serve to reinforce my earlier

observation about creating an independent office that will have a separate

registry to deal with matters related to income tax appeals. The fact that the

applicant could have moved a mandamus regarding the hearing of the appeal

does not absolve the respondents from ensuring that the appeal was heard

and on time as there is no complaint that it was not filed on time.

[217] Happily, the CIR undertook to attend to this matter with deliberate

haste after deliver of the judgment. Depending on how that matter pans out, it

may be necessary to await the amendments that deal with the appointments

and constitution of the Tax Court, which have been held to be

unconstitutional, or any appeal that may be lodged.

Costs

[218] The respondents applied that the court should mulct the applicant in

costs in this matter. This, it was argued, should be the result of the manner in

which the applicant prosecuted this matter as demonstrated by the opening

lamentations in this judgment. The applicant, was unnecessarily prolix. It is

also true that the respondents read and prepared for argument, only for the

applicant, at the eleventh hour, to abandon a number of the prayers initially

sought.

[219] The application was overbroad and was, for the most part met with

successful resistance by the respondents. In Kabazembi46 the Supreme Court

stated that the general rule, that a private party who unsuccessfully seeks to

assert a constitutional right against the government would result in the court

ordering each party to bear its own costs, is not unqualified or risk-free. ‘If the 46 (Supra) at para124 A-B.

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application is frivolous or vexatious or in anyway inappropriate, the applicant

should not expect that the worthiness of its cause will immunise it against an

adverse costs award,’ the court concluded.

[220] I am of the view that the application in this matter, for the manner in

which it was drafted, resulting in unnecessarily bloating the papers, running

into thousands, and seeking a multiplicity of overbroad orders, falls within the

realms of the inappropriate, within the meaning of Kabazembi.

[221] Having said this, it is true that the applicant has had a measure of

success in that a few of his prayers were granted but these pale into

insignificance if one considers the rest of the prayers that were dismissed for

one reason or the other, in the respondents’ favour. To that extent, it is fair to

say that the respondents have had more than a fair share of success. That

should entitle them to recovery of their costs in the circumstances.

Order

1. The Applicant’s application against the First to the Third Respondents

is dismissed, save in the respects mentioned in paragraph 2 below.

2. The Applicant’s application challenging the constitutionality of sections

73(3); 73(5)(a) and (b); 73(9) and section 83(1)(b) of the Income Tax

Act, 24 of 1981, as amended, is hereby upheld.

3. In respect of the provisions mentioned in paragraph 2 above, the

declaration of invalidity is suspended for a period of twelve (12)

months, to enable the relevant Respondents and the Legislative Organ

of State to attend to the invalidity declared.

4. The Applicant’s application against the Fourth Respondent, is

dismissed.

5. The Applicant is ordered to pay the costs of the First to Third

Respondents, consequent upon the employment of one instructing and

two instructed Senior Counsel.

6. The Applicant is ordered to pay the costs of the Fourth Respondent.

7. The matter is removed from the roll and is regarded as finalised.

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____________

T.S. Masuku

Judge

APPEARANCES

Applicant Dr. Wolf, with her, F. Beaukes

Instructed by: Metcalfe Legal Practitioners, Windhoek.

First to Third Respondents G. M. Budlender SC, with him E. M.

Schimming-Chase SC

Instructed by: Office of the Government Attorney,

Fourth Respondent T. Luvindao,

Of Dr. Weder, Kauta & Hoveka Inc,

Windhoek

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