Court name
High Court Main Division
Case name
Kambazembi Guest Farm CC t/a Waterberg Wilderness v The Minister of Lands and Resettlement and Others
Media neutral citation
[2013] NAHCMD 260
Judge
Hoff J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: A 295/2013








In the matter between:








KAMBAZEMBI GUEST FARM
CC t/a WATERBERG



WILDERNESS
..............................................................................................APPLICANT



and



THE MINISTER OF LANDS
AND RESETTLEMENT .......................1ST
RESPONDENT



THE MINISTER OF
AGRICULTURE, WATER AND



FORESTRY
.......................................................................................2ND
RESPONDENT



THE MINISTER OF
FINANCE ..........................................................3RD
RESPONDENT



THE CHAIRPERSON OF THE
LAND REFORM



ADVISORY COMMISSION
...............................................................4TH
RESPONDENT



THE COMMISSIONER FOR
INLAND REVENUE ............................5TH
RESPONDENT



THE ATTORNEY-GENERAL
OF NAMIBIA .....................................6TH
RESPONDENT



THE VALUATION COURT
................................................................7TH
RESPONDENT













Neutral citation:
Kambazembi Guest Farm CC t/a Waterberg Wilderness v The
Minister of Lands and Resettlement
(A 295/2013) [2013] NAHCMD 260
(18 September 2013)








Coram: HOFF J



Heard: 03
September 2013; 09 September 2013



Delivered: 11
September 2013



Reasons: 18 September
2013















JUDGMENT










HOFF J:








[1] This court on 11
September 2013, subsequent to the hearing of argument in respect of
an urgent application on 9 September 2013, gave the following ruling:








(a) The applicant’s
non-compliance with the forms and service provided for by the Rules
of the above Honourable Court is hereby condoned and this application
is heard as one of urgency as contemplated by Rule 6(12) of the Rules
of this Honourable Court.








(b) The sitting of the
valuation court established in terms of the provisions of Regulation
8 of Government Gazette No. 120 of 2007 (GG No. 3870) dated 3 July
2007 (‘the valuation court’) and scheduled for 30 August
to 13 September 2013 is hereby declared null and void.








(c) The costs of this
application shall be costs in the cause of the main application
served and filed on 22 August 2013 under the above case number.








[2] This court indicated
that reasons would be provided by 20 September 2013. These are the
reasons.








[3] This is an
interlocutory application brought as a matter of urgency in which the
applicant seeks the following relief:








Declaring
that the sitting of the valuation court established in terms of the
provisions of Regulation 8 of Government Notice No. 120 of 2007 (GG
No. 3870) dated 3 July 2007 (“the valuation court”) and
ostensibly scheduled for ‘30 August to 2013 September 2013’
to be null and void;








Alternatively,
suspending the proceedings of the valuation court pending the final
determination of applicant’s application under case number A
295/2013 in the above Honourable Court.








Costs
to be costs in the cause.’








[4] The applicant in the
main application, attacks the constitutional validity of certain
sections of the Agricultural (Commercial) Lands Reform Act, 6 of 1995
and some regulations promulgated in terms of that Act.








[5]
This urgent application is opposed by the first sixth respondents. No
notice of intention to oppose the application was filed by the 7
th
respondent. Mr Joachim Rust on behalf of the applicant
in his founding affidavit in this application referred to a number of
irregularities which apparently preceded the sitting of the valuation
court.








[6] The applicant stated
that a valuation court has been pronounced to commence a sitting on
Friday 30 August 2013 at Windhoek to consider a provisional valuation
roll dated 1 April 2012 and that in a Gazette dated 1 July 2013 the
commencement of the sitting of the valuation court was announced as:



from
30 August 2013 to September 2013’ which renders this
announcement unintelligible and vague and renders the notice invalid.








[7] Ms Lidwina Shapwa,
the Permanent Secretary in the Ministry of Lands and Resettlement,
deposing to an answering affidavit on behalf of respondents on this
point, stated that it was a typing error and that there was proper
publication of the period the valuation court would be sitting in two
newspapers.








[8] The applicant in his
founding affidavit further stated that in terms of the Gazette the
provisional valuation roll would be for inspection during the period
1 July 2013 to 30 July 2013 which is one day short of the period of
the 30 days period within which an objector may object against a
valuation and renders the notice invalid. In addition the Gazette
only became available to members of the public on 5 July 2013.








[9] The applicant refers
to reg 3(3) which provides that the first respondent ‘must by
notice in the Gazette determine the date of valuation and the period
during which any such general or interim valuation must be made’.
This according to the applicant constitutes the commencement of the
valuation process and is important since in determining the value of
any agricultural land a valuer must have due regard to the carrying
capacity of such land at the date of valuation. The applicant stated
that purporting to act in terms of regulation 3 the first respondent
issued a notice which was published in Gazette No. 4966 of 15 June
2012 and failed to determine the period during which the evaluation
must be made.








[10] The applicant refers
in his founding affidavit to reg 6(1) which requires the valuer, upon
the completion of a provisional valuation roll to sign and date a
declaration appended to such a roll and submit it to the Minister.
The provisional valuation, applicant stated, came into existence when
published on 1 July 2013 in the Government Gazette however in terms
of Government Notice of 15 June 2013 for the purposes of Regulation
3(3) the date of valuation is 1 April 2012. It thus appears from the
notice that the date of valuation was back-dated to 1 April 2012
‘creating a fiction’.








[11] The applicant
further deals with reg 6(6) which deals with procedure after
objections have been received and which provides that every objector
must be provided by the first respondent in writing ‘of the
date and time on which and the place at which the valuation court
will be sitting’.








[12] The applicant stated
that a simple calculation indicates on the basis of twelve days
hearing time and allocating six hours per day, on the assumption of
1500 objectors, a hearing of some three minutes per objector will
follow. It is common cause that there are 2760 objectors. This the
applicant avers violates ‘the uniquely caring and humanitarian
quality of the Constitution’, the rules of natural justice,
Article 18 of the Constitution which demands administrative action to
be fair and reasonable, Article 12(1)(a) of the Constitution
which requires a hearing (which would include procedural aspects) to
be fair, and the rule of law which requires rationality.








[13] Mr Henning SC who
appeared on behalf of the applicant when the matter was heard on 3
September 2013 in essence submitted that no valid valuation court was
in existence on 30 August 2013 when the valuation court was due to
hear the objections. It is common cause that one of the four members
of the valuation court (constituted in terms of reg 8(2) ) a Mr
Ipinge from the Ministry of Agriculture, Water & Forestry was
absent. The whereabouts of this member was unknown at that stage.
There was until now never any explanation for his absence.








[14] In terms of reg
8(2)(a) a magistrate designated at the request of the Minister
(of Lands and Resettlement) by the Magistrates Commission established
by s 2 of the Magistrates Act, 3 of 2003 presides over the valuation
court.








[15] Regulation 8(5)
provides that despite subregulation (4), (subregulation (4) deals
with the casting vote of the magistrate in the event of equality of
votes),








if
at any stage during the proceedings before a valuation court a member
of that court dies or is otherwise incapable of acting, the
proceedings must continue before the remaining members of the court,
but –



(a)
only if such remaining members include the magistrate designated
under subregulation (2)(a);



(b)
....



(c)
if the magistrate is for any such reason unable to so act the
proceedings must commence anew before a valuation court constituted
anew in accordance with this regulation.’








[16] It is common cause
that on 30 August 2013 there was an application for the recusal of
the designated magistrate, Mrs Herunga, primarily based on the
unilateral interactions which the valuer, Mr Protasius Thomas, had
with the presiding officer in the days running up to the 30th
of August 2013.








[17] It is further common
cause that the designated officer postponed the proceedings to 2
September 2013 on which date she recused herself as presiding officer
of the valuation court.








[18] The applicant in his
founding affidavit stated that at approximately 12h15 on 2 September
2013 a new presiding officer by the name of Mr Sindano appeared in
the valuation court and introduced a Mr Malima as an additional
member of the valuation court and a replacement for Mr Ipinge.
Counsel for the various objectors made certain submissions whereafter
Mr Sindano adjourned the matter until 14h00. The applicant stated
that at ‘14h00 Mr Sindano indicated that the “court”
was not a properly constituted court; that it was a preliminary court
and that it would only be possible by Monday 9 Monday 2013 to
constitute a court’. According to the applicant certain
‘rulings’ were issued and that it ‘was stressed
that these “rulings" were not given by the valuation
court, because formalities regarding appointments still have to be
complied with’.








[19] This is not denied
by the respondents. In the answering affidavit dealing with this
aspect deponent Ms Lidwina Shapwa stated:








I
take note thereof. There is no prohibition in replacing a presiding
officer if the sitting has not started.’








[20] I agree that in
terms of the regulations that there is no prohibition in replacing a
presiding officer but in such an instance and in terms of reg 8(5)(c)
proceedings must commence anew before a valuation court
constituted anew’
in accordance with Government Gazette No.
120 of 2007 and specifically in terms of the provisions of reg
8(2)(a) – (d) which provides for the establishment and
the composition of the valuation court.



(Emphasis provided).








[21] In fact in the
answering affidavit respondents acknowledged that the 7th
respondent was not in session on 30 August 2013 ‘due to various
reasons which inter alia included that the members were not sworn in
and that there was no quorum’.








[22] In terms of reg 9 ‘a
member of the valuation other than the presiding officer may not
perform any function as such a member, unless he or she has taken an
oath or made an affirmation before a magistrate ...’








[23] Respondents thus
stated that an incompetent relief is being sought by the applicant to
declare the sitting of the 7th respondent null and void if
the 7th respondent itself has not come into existence at
all.








[24] Mr Tötemeyer
who appeared on behalf of the applicant on 9 September 2013 submitted
that even though the valuation court did not come into existence as
provided for in the regulations the factual order had to be set aside
since there was a dogged persistence to proceed with the illegal
process of a valuation court.








[25] This is apparent in
view of the fact that the designated magistrate, in spite of a lack
of a quorum on 30 August 2013, postponed the sitting of the court
until 2 September 2013. After the recusal of the designated
magistrate the replacement magistrate postponed the proceeding
further until 9 September 2013 in order to constitute a court. The
respondents in their founding affidavit made no attempt to deal with
the reconstitution of a new court in view of the fact that the
designated magistrate had recused herself. It must also be accepted
that Mr Ipinge who had been designated by the Minister of
Agriculture, Water and Forestry was still a member of the valuation
court established in terms of the Government Gazette dated 1 July
2013 since there is no confirmation that he died or is otherwise
incapable of acting as a member of the valuation court.








[26] Constituting a court
anew as provided for in reg 8(5)(c) by necessity includes the
provisions of reg 6(4) which provides that the Minister (first
respondent) ‘must cause a notice to be published in the Gazette
and in at least two newspapers widely circulating in Namibia on a
date not earlier than 60 days before the date determined by the
Minister for the commencement of the sitting of the valuation court
-’








[27] Therefore in my view
recusal of the designated magistrate was a pivotal moment in the
determination of the legality of the valuation court. The Minister
must in terms of the Government Notice not only reconstitute the
court but must in terms of reg 6(4) cause a notice to be published
not earlier than 60 days before the date to be determined for the
sitting of the valuation court. It follows in my view that no
replacement magistrate could have been appointed during the period 2
September 2013 until 13 September 2013 since to do so would violate
the ‘not earlier than 60 days’ requirement prescribed in
reg 6(4). In my view the magistrate correctly recused herself in view
of the perception of bias.








[28] This court has a
discretion, which must be exercised judicially, in considering
whether or not to grant a declaratory order. In Reinecke v
Incorporated General Insurance Ltd
1974 (2) SA 84 AD at 95B–C
it was held that ‘though it might be competent for a court to
make a declaratory order in any particular case, the grant thereof is
dependent upon the judicial exercise by that court of its discretion
with due regard to the circumstances of the matter before it.








[29] A declaratory order
will not be granted if the issue before is hypothetical, abstract and
academicals. Considerations of public policy may also come into play
when a court has to determine whether it should exercise its
discretion in favour of a declaratory order or not. (See Family
Benefit Friendly Society v Commissioner for Inland Revenue and
Another
1995 (4) SA 120 TPD at 125D-E and 126B-C; Mushwena v
Government of the Republic of Namibia
(2) 2004 NR 94 at 102H-I).








[30] In my view the issue
before court is not hypothetical, abstract or academic. It has
practical implications ie an intention to continue with the sessions
of the valuation court in spite of the fact that the valuation court
was never constituted as prescribed in the regulations, and admitted
as such by the respondents.








[31] Mr Boonzaier on
behalf of the first six respondents submitted that a distinction
should be drawn between the functions and duties of the Minister
(first respondent) and that of the 7th respondent, the
valuation court. It was submitted that if this court intervenes in
the proceedings pending in the valuation court this Court would, in
conflict with the doctrine separation of powers, restrain the
Minister from exercising its powers and functions in terms of ss 76
and 77 of the Act which empower the Minister to impose land tax (to
be paid by owners of agricultural land) and to make regulations in
relation thereto.








[32] In support of this
submission this court was referred to the matter of Gool v
Minister of Justice and Another
1955 (2) SA 682 OPD. In this
matter the applicant sought relief in the form of a rule nisi
operating as an interim interdict restraining the first
respondent (the Minister of Justice) from issuing, pending the
determination of the action commenced by applicant’s summons,
any notice against her pursuant to the provisions of s 5 of Act 44 of
1950 as amended (Suppression of Communism Act). This was in essence
an application for an interdict restraining the possible future
exercise of statutory powers by the Minister.








[33] The court held (at
689B) that the court should only grant an interdict such as sought by
the applicant upon a strong case being made out for that relief.








[34] In the present
application the relief sought is not intended to restrict the first
respondent from exercising any statutory powers. On the contrary, the
Minister had already exercised the prescribed statutory powers and in
this regard this application is distinguishable from the relief
sought in the Gool matter.








[35] In my view therefore
the submission that this court, should it intervene in the pending
proceedings in the valuation court, would interfere with the
functions and duties of the executive branch of the State (ie the
Minister/first respondent), is without substance.








[36] The indisputable
fact is that the absence of a properly constituted valuation court
was due to circumstances beyond the control of the Minister (first
respondent) and beyond the control of any of the other respondents.








[37] The submission by Mr
Boonzaier that although the valuation court was not properly
constituted on 30 August 2013 such a court may still be constituted
until 13 September 2013 loses sight of the provisions of reg 8(5)(c)
and 6(4) referred to (supra). Any attempt to do so would be ultra
vires
.








[38] It was further
submitted by Mr Boonzaier that should any objector be dissatisfied
with the decision of the valuation court such objector has remedies
in terms of the regulations (which provides for an appeal to this
Court on a point of law). This certainly is true but only where a
valid and properly constituted valuation court has considered the
valuation of land contained in the provisional valuation roll. This
is not the case in the present application.








[39] This Court was also
with reference to the case of International Trade Administration
Commission v SCAW South Africa (Pty) Ltd
2012 (4) SA 618 (CC)
reminded that the courts may not usurp the function of the executive
branch of the State in order to frustrate the balance of power. In
this matter the Constitutional Court in South Africa found that
interdicts granted by the High Court had the effect of curtailing
executive power to formulate and implement trade policy and had in
this way encroached onto the domain of the executive branch, thus
violating the constitutional doctrine of separation of powers.








[40] In my view, based on
the particular facts and circumstances which prompted the applicant
to launch this application seeking a declaratory order nullifying the
sitting of a valuation court, it cannot be argued at all that to
grant the relief prayed for would encroach onto the domain of the
executive branch of government.








[41] Mr Boonzaier further
submitted that should this Court be inclined to grant the relief
sought by the applicant the order should be that the proceedings in
the valuation court may not proceed against only the applicant’s
objection and that the valuation court should proceed to hear all the
other objections before it. Since it is commonly accepted that the
valuation court was a nullity from its inception and that no legal
consequences or valid pronouncements can flow from such an entity, in
my view the other objectors would be before an irregularly
constituted court. It would be a futile exercise and this Court in
the exercise of its discretion may in the circumstances prevent the
perpetuation of an illegality.








Urgency








[42] The applicant in his
founding affidavit stated that ss 76 and 77 of the Act and the
regulations are invalid because they are inconsistent with the
constitutional principle that taxation is reserved for the
legislature, not the executive.








[43] The applicant stated
that if it is assumed that the regulations are intra vires the
Act and the Constitution, the statutory functionaries failed to apply
statutory provisions, substantially deviated from prescriptions,
acted unfairly and unreasonably, and failed to act rationally which
resulted in illegality. The applicant further stated that the
objectors faced a valuation court where they have to be available for
11 or 15 days. This is unreasonable and a denial of the dignity
enshrined in Article 8 of the Constitution which the public
functionaries are obliged to respect and uphold.








[44] The applicant
further stated that confronting the objectors at the hearing of the
valuation court are regulations which are unconstitutional because
they are unreasonable, unjust and offensive to Article 12(1)(a)
of the Constitution, for example, reg 13(1) which prescribes an
unpredictable procedure in the valuation court; reg 14(1) limiting
the right of appeal (only on a point of law); reg 14(3) which
requires that land tax be paid in spite of a pending appeal; reg
12(1)(b) limiting the jurisdiction of the valuation court
severely; reg 12(1)(e) which is vague; and reg 8 creating a
‘court’ which lacks the appearance of independence. The
applicant continued to state that a valuer appointed in terms of the
regulations may appoint assistants who have important jurisdiction.
This applicant stated, is ultra vires the Act, in conflict
with the principle delegatus delegare non potest
(derivative authority cannot be delegated), unjust and unreasonable,
and all actions by assistants are nullities.








[45] The applicant then
continued to narrate the events on 30 August 2013, the first day of
the sitting of the valuation court, where one of the members of the
valuation court Mr Ipinge simply failed to appear which result in the
fact that the court was not properly constituted. On the same date
legal representatives informed the designated magistrate, Mrs
Herunga, that they would bring an application for her recusal on the
basis of a perception of bias insofar that the valuer who is a
witness in the proceedings before the valuation court had
unilaterally access to her days prior to the scheduled sitting of the
court. The designated magistrate initially refused to recuse herself
postponing the case to Monday 2 September 2013 when she announced her
recusal. Shortly afterward a replacement magistrate Mr Sindano
appeared and introduced a Mr Malima as ‘additional member’
and the replacement for Mr Ipinge. Mr Sindano then postponed the
proceedings to 9 September 2013 because the formalities regarding the
appointments of members of the court still have to be complied with
ie to reconstitute the valuation court.








[46] There had been
exchange of correspondence between the legal representatives of
objectors and the Permanent Secretary of the first respondent which
highlighted certain difficulties and alleged illegalities in
connection with the sitting of the valuation court which evoked a
reply from the Government Attorney as follows:








It
is our further instruction that your clients have ample substantial
redress before the valuation court in due course, as such; any
alleged procedural irregularity thereof should be raised before the
presiding officer in the valuation court on the date of hearing.’








The applicant stated that
this door has now been closed.








[47] In the answering
affidavit deposed to on behalf of the respondents it is stated that
the applicant is merely regurgitating the allegations he advances
regarding the merits of the application as grounds for urgency and
fails to show good cause as to why substantial redress cannot be
afforded at a hearing in the normal time frame. The respondents
further in the answering affidavit stated that the applicant had been
aware that alleged unconstitutional and invalid regulations would be
used during the proceedings before the valuation court and that
objections by the applicant were advanced in his letter dated 21
August 2013 and annexed to his founding affidavit. It was further
stated that there is no explanation advanced by the applicant what
transpired from 21 August 2013 to 3 September 2013 to suddenly render
the alleged infringements urgent.








[48] The submission by Mr
Tötemeyer in this regard was that the applicant was coerced into
an illegal process and is entitled to resist that on the basis of the
illegality thereof. I agree with this submission.








[49] It is common cause
that there was an exchange of correspondence between the parties
regarding alleged irregularities resulting in the applicant inter
alia
being informed to raise those issues with the valuation
court. It is further common cause that the valuation court never came
into being therefore those matters intended to be raised with the
valuation court could not be ventilated. However, and this is not
disputed, there were attempts to resurrect this stillborn
(figuratively) valuation court by way of postponements despite
submissions (correctly made) to the presiding officers that the
‘valuation court’ could not make valid orders, for
example postponements.



[50] It was this attempt
of resurrection and to continue to hear objections which constituted
the urgency and the subsequent urgent applicant to obtain a court
order to declare valuation court null and void. That there was a
‘dogged persistence’ to get this nullity functional as a
valuation court and to continue to hear the objections is underlined
by the fact that even in this court it was submitted on behalf of the
respondents that the non-existent valuation court may still be
reconstituted before 13 September 2013. I have indicated that due to
the time lines prescribed in the regulations this simply could not
have been done.








[51] The matter for the
afore-mentioned reason became urgent and the applicant was within his
rights to approach the court on a urgent basis.








[52] Rule 6(12)(b)
requires of an applicant to state explicitly the circumstances which
render the matter urgent and the reasons why the applicant claims
that he or she could not be afforded substantial redress at a hearing
in due course.








[53] In my view it is
self-evident that the applicant in the particular circumstances of
this case would not be afforded substantial redress at a hearing in
due course.








[54] Furthermore it is
self-evident that the balance of convenience favours the granting of
the relief sought by the applicant since the applicant (as well as
the other objectors) should not be subjected to an illegal court
process.








[55] A matter which was
also raised as a ground for opposing the granting of the relief
prayed for in this urgent application was that of non-joinder. It was
stated in the answering affidavit that the 2759 other objectors have
a direct and substantial interest in the subject matter as well as
the outcome of these proceedings and ought to have been joined, the
failure of which would result in the application being struck.








[56] It is not disputed
that all the objectors have in common a challenge to the valuation
roll which challenge was to be addressed at the valuation court which
failed to commence and function as a court. Since it is common cause
that the valuation court was a nullity it is a fallacious argument
that the other objectors would have obtained justice before an
extention of the ‘valuation court’.








[57] In my view it is
certainly in the interest of the other objectors not to be exposed to
or to participate in proceedings before a non-existent court. In
these circumstances the non-joinder of the other objectors becomes
irrelevant.








----------------------------------



E P B HOFF



Judge


















APPEARANCES








APPLICANT : R Tötemeyer
SC (with him J Schickerling)



Instructed by Francois
Erasmus & Partners, Windhoek













RESPONDENTS: M G
Boonzaier (with him E Nekwaya)



of
Government Attorney, Windhoek