Court name
High Court Main Division
Case name
Kambazembi Guest Farm CC t/a Waterberg Wilderness v The Minister of Land Reform
Media neutral citation
[2016] NAHCMD 193
Judge
Parker AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 184/2016


DATE:
7 JULY 2016


REPORTABLE


In
the matter between:


KAMBAZEMBI
GUEST FARM CC


t/a
WATERBERG
WILDERNESS
...................................................................................APPLICANT


And


THE
MINISTER OF LAND
REFORM..........................................................FIRST
RESPONDENT


THE
MINISTER OF AGRICULTURE, WATER


AND
FORESTRY..........................................................................................SECOND
RESPONDENT


THE
MINISTER OF
FINANCE.....................................................................THIRD
RESPONDENT


THE
LAND REFORM ADVISORY COMMISSION...............................FOURTH
RESPONDENT


THE
COMMISSIONER FOR INLAND
REVENUE....................................FIFTH
RESPONDENT


THE
ATTORNEY-GENERAL OF
NAMIBIA...............................................SIXTH
RESPONDENT


THE
VALUATION
COURT......................................................................SEVENTH
RESPONDENT


Neutral
citation: Kambazembi Guest Farm CC ta Waterberg Wilderness v The
Minister of Land Reform
(A 184-2016) [2016] NAHCMD 193 (7 July
2016)


Coram:
PARKER AJ


Heard:
23 June 2016


Delivered:
7 July 2016


Flynote:
Applications and motions – Urgency – Requirements for
prescribed by rule 73(4) of the rules of court – Applicant must
set out explicitly the circumstances relating to urgency and reasons
why applicant claims he or she could not be afforded substantial
redress in due course – And applicant must make out a case for
urgency in founding affidavit – Respondents bears no onus, none
at all, to establish the opposite, namely, lack of urgency –
Respondents only need to answer to applicant’s averments that
the application be heard as a matter of urgency – Besides the
court having found disingenuousness on the part of the applicant in
the proceeding court should refuse to come to the aid of the
applicant by granting him the indulgence he craves –
Consequently, application is refused.


Summary:
Applications and motions – Urgency – Requirements for
prescribed by rule 73(4) of the rules of court – Applicant must
set out explicitly the circumstances relating to urgency and reasons
why applicant claims he or she could not be afforded substantial
redress in due course – And applicant must make out a case for
urgency in founding affidavit – Court found that the applicant
failed to satisfy the requirements for urgency prescribed by rule
73(4) of the rules – Court concluded further that the applicant
having been found to be disingenuous in the proceeding court should
refuse to come to the aid of such applicant by granting him the
indulgence he craves – The applicant urged the court to take it
that in the present proceeding the Agricultural (Commercial) Land
Reform Act 6 of 1995 and the regulations made thereunder are
Constitution compliant and valid – Yet applicant has instituted
at least three applications which are still pending in the court in
which the constitutionality and validity of the very Act and the very
regulations are challenged – Court held that either an Act and
regulations made thereunder are valid or they are not and they cannot
be valid on Monday or May and be invalid on Tuesday or June –
Court found applicant’s conduct to be disingenuous and
calculated to delay conclusion of the numerous cases before the court
on the same or similar issues and involving the same parties –
Consequently, application is refused.


ORDER


The
application is refused with costs, including costs of one instructing
counsel and two instructed counsel.


JUDGMENT


PARKER
AJ:


[1]
This application brought on urgency is not like any other urgent
application. The applicant, an agricultural land owner, has not paid
any tax on his land since 2007 as required by the Agricultural
(Commercial) Land Reform Act 6 of 1995 (‘the Act’), and
has instituted not less than six applications in the court, not to
speak of various interspersed interlocutory applications, in all
manner of challenges to the land tax regime and the collection of
land tax.


[2]
As I understand Mr Cassim SC (with him Mr Narib), counsel for first
to sixth respondents (‘the GRN respondents’), the
applicant has instituted these applications and interlocutory
applications at every turn for no other reason but to thwart the
Government’s efforts at land reform, pursuant to the Act, aimed
at redistribution of land fairly in order to redress past practices
of racial discrimination and injustice in land distribution and which
is aimed at concretizing art 23 of the Namibian Constitution.


[3]
In this regard it ought to be remembered that the present situation
which the Act aims at curing ‘has its origins in the European
colonization which alienated nearly all the arable and grazing land
on the southern plateau and most of the productive land in the
country to the minority whites’. (United Nations Institute for
Namibia,
Namibia: Perspectives for
National Reconstruction and Development

(1986), p 112)


[4]
Mr Cassim reminded the court that the efforts of the Government at
land reform is aimed at preventing land invasions by the landless
majority that are commonplace in some jurisdictions in the Region.
Counsel submitted that all these various applications and
interlocutory applications are efforts aimed at refusing to pay land
tax according to the law. Mr Cassim characterized these efforts as
dishonest. I will epithetize the efforts as disingenuous, as I
demonstrate.


[5]
The numerous applications and interlocutory applications are to a
very large extent on the same or similar cause of action and against
almost the same respondents as shown in the next seven paragraphs.


[6]
In Case No.: A 295/2013 the applicant seeks an order to have the
provisions of sections 76 to 80 of the Act, declared inconsistent
with the provisions of arts 63(2), 8, 10, 12(1)
(a),
18 and 22 of the Namibian Constitution. The applicant further seeks
to have the regulations published in Government Gazette No. 2678 of
29 December 2001 declared invalid on the basis that such regulations
are published under the impugned provisions and further challenges
the regulations on various further grounds which are set out in the
notice of motion in those proceedings. Under this application, two
interlocutory applications were brought.


[7]
In Case No.: A 21/2015 the applicant seeks to have the land tax
assessment for the 2013/2014 financial year, and which was payable on
28 February 2015, reviewed and set aside; and in the alternative, to
have the decision to assess such taxes to be declared null and void
or to be declared unconstitutional and invalid. That application was
struck from the roll (ie
Kambazembi
Guest Farm CC t/a Waterberg Wilderness v The Minister of Lands and
Resettlement
(A 21/2015) [2016] NAHCMD
118 (21 April 2016)).


[8]
In Case No.: A 197/2015 the applicant challenges the 2014/2015 land
tax assessment, which was due for payment on 30 August 2015 on the
basis that the assessment was not made and served by the Minister of
Land Reform as required by regulations 21(1) and 21(3). The matter
has been heard and judgement was to be delivered on 27 June 2016.


[9]
In Case No.: A 234/2015 the applicant seeks to have the amendment to
regulation 17(3) of the Land Valuation and Taxation Regulations made
under the Act and published in terms of Government Notice No. 185 of
17 August 2015, declared null and void. This application was to be
heard on 23 June 2016.


[10]
In Case No.: A 158/2016 the applicant first seeks to have the
amendment to regulation 17(3) of the Land Valuation and Taxation
Regulations: Agricultural (Commercial) Land Reform Act, 1995 of 03
July 2007, published in terms of Government Notice No. 185 of 17
August 2015, declared null and void, and secondly seeks to have the
2015/2016 land tax assessment declared null and void. The notice to
oppose was filed on 16 June 2016. The answering papers were to be
filed within 21 days from that date.


[11]
In Case No. 160/2016 applicant seeks various relief:


(a)
An order prohibiting the Minister of Land Reform from imposing land
tax pending the final determination of pending litigation in -


(i)
Case No.: A 295/2013


(ii)
Case No.: A 21/2015


(iii)
Case No.: A 197/2015


(iv)
Case No.: A 234/2015


(v)
Case No.: A 158/2016


(b)
An order prohibiting the Minister of Agriculture and the Minister of
Finance and the land Advisory Commission from participating in the
imposition and collection of the land tax. Lastly, declaring that the
orders referred to above apply to all land owners who received
assessment for the 2015/2016 tax year. This application was equally
opposed on 16 June 2016. Opposing papers were to be filed with 21
days from that date.


[12]
In the instant application, ie Case No. A 184/2016, the applicant
prays the court to hear the matter on the basis of urgency. The
respondents have moved to reject the application being heard on the
basis of urgency.


[13]
The applicant, through his counsel, Mr Tötemeyer SC, tells the
court that for the purposes of the instant application the court
should assume that the Act and the regulations made thereunder are
Constitution compliant and valid. And yet, in Case No. A 295/2013 the
applicant seeks to challenge the constitutionality of certain
provisions of the selfsame Act. And yet, again, in Case No. A 21/2015
the applicant seeks to challenge the validity of the amendment of
regulation 17(3) of the Land Valuation and Taxation Regulation made
under the Act.


[14]
This is significant: It defies all logic and is inexplicable in law
for a litigant to urge a court to take it that in proceeding X the
very law and regulations, which that party challenges as
unconstitutional and invalid in other similar proceedings, are
constitutional and valid in proceeding X. As I understand the law,
either an enabling Act or regulations made thereunder are valid or
they are not. They cannot be valid on Monday or in May and be invalid
on Tuesday or in June or any other time. An enabling Act and
regulations made thereunder are not facts whose existence may be
assumed in proceedings.


[15]
Without beating about the bush, I should say that applicant’s
attitude cannot be described appropriately in any other way than
disingenuous. And I shall take this self-serving chicanery of
applicant’s into account, because it carries immense weight, in
deciding whether I should grant the indulgence the applicant seeks,
apart from the requirements of rule 73(4).


[16]
As respects the prayer that an application should be heard on the
basis of urgency; this court stated in
Fuller
v Shigwele
(A 336/2014) [2015] NAHCMD
15 (5 February 2015), para 2 thus:


Urgent
applications are now governed by rule 73 of the rules of court (ie
rule 6(12) of the repealed rules of court), and subrule (4) provides
that in every affidavit filed in support of an application under
subrule (1) the applicant must set forth explicitly the circumstances
which he or she avers render the matter urgent (first requirement)
and the reasons why he or she claims he or she could not be afforded
substantial redress at a hearing in due course (second requirement).
Indeed, subrule (4) rehearses para (b) of rule 6(12) of the repealed
rules. The rule entails two requirements: first, the circumstances
relating to urgency which must be explicitly set out, and second, the
reasons why an applicant claims he or she could not be afforded
substantial redress in due course. It is well settled that for an
applicant to succeed in persuading the court to grant the indulgence
sought, that the matter be heard on the basis of urgency, the
applicant must satisfy both requirements. And
Bergmann
v Commercial Bank of Namibia Ltd and Another

2001 NR 48 tells us that where urgency in an application is
self-created by the applicant, the court should decline to condone
the applicant’s non-compliance with the rules or hear the
application on the basis of urgency.’


[17]
What has the applicant – not Mr Tötemeyer – placed
before the court in his papers in his effort to satisfy the twin
requirements in rule 73(4)? Only this. Applicant says that Hoff J
stated in a case Hoff J was seized with, that is,
Kambazembi
Guest Farm CC t/a Waterberg Wilderness v The Minister of Lands and
Resettlement
(A 295/2013) [2013] NAHCMD
260 (18 September 2013) (another one of applicant’s cases) that
-


In
my view it is self-evident that the applicant in the particular
circumstances of this case would not be afforded substantial redress
in due course.’


(para
53)


and,


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.’


(para
54)


[18]
It need hardly saying that Hoff J says himself that the conclusion he
made then emerged from ‘
the
particular circumstances of this case
,
ie the case he was seized with. (Underlined and italicized for
obvious emphasis) How then can it be seriously argued that Hoff J was
enunciating a principle of law applicable to all cases, including the
instant application? I am surprised the applicant relies on Hoff J’s
judgment in support of his prayer that the instant matter be heard on
urgent basis. I have no difficulty – not a modicum of
difficulty – in holding that on the papers applicant has not
satisfied the requirements of rule 73(4), apart from, as Mr Cassim
submitted, complaining about ‘illegalities and nullities’
in the valuation process. The applicant bears the onus of
establishing urgency; and it has failed to do so. In this regard, as
I said in
Inter-Africa Security Services
CC v Transnamib Holdings Limited
(A
236/2015) [2015] NAHCMD 276 (17 November 2015), para 5, a respondent
bears no onus – none at all – to establish the opposite,
that is, the lack of urgency.


[19]
Apart from the fact that applicant has failed to satisfy the
requirements of urgency, I hold that in the circumstances of this
case where the court has found disingenuousness on the part of the
applicant in this proceeding to exist, the court should not come to
the aid of the applicant by granting him the indulgence he cravers,
that is, hear the matter as one of urgency. On this aspect, I accept
Mr Cassim’s submission.


[20]
Based on these reasons, the application is refused with costs,
including costs of one instructing counsel and two instructed
counsel.


C
Parker


Acting
Judge


APPEARANCES


APPLICANT:
R Tötemeyer SC


Instructed
by ENSafrica (Incorporated as LorentzAngula Inc., Windhoek


RESPONDENTS:
N Cassim SC (assisted by G Narib)


Instructed
by Government Attorney, Windhoek