Kruger v Minister of Finance (A 358-2016) [2020] …



REPORTABLEREPUBLIC OF NAMIBIAHIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEKJUDGMENTCASE NO: A 358/2015In the matter between:WESSEL ANDREAS KRUGER APPLICANTandMINISTER OF FINANCE OF THE REPUBLIC OF NAMIBIA 1ST RESPONDENTATTORNEY-GENERAL OF THE REPUBLIC OFNAMIBIA 2ND RESPONDENTTHE PROSECUTOR-GENERAL OF THE REPUBLICOF NAMIBIA 3RD RESPONDENTOLD MUTUAL LIFE ASSURANCE COMPANY(NAMIBIA) LIMITED 4TH RESPONDENTNeutral Citation:Kruger v Minister of Finance of the Republic of Namibia (A 358/2016) [2020] NAHCMD 138 (27 March 2020).CORAM:MASUKU JHeard:16 June 2019Delivered: 27 March 2020Flynote: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 mattersSummary: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 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 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.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. ORDER1. 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.JUDGMENTMASUKU 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 prayers to be set out in the notice of motion, avoiding sending the court go on a wild goose chaseThe 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 applicant in terms of the Income Tax Act, (‘the Act’) and under the provisions of the Value Added Tax Act.[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.[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 4th 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 4th 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.[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 1st 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 4th 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 4th 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. [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:that the Ministry of Finance invoked Paragraph 11 instead of Paragraph 17 of Schedule 2 to the Act to deduct provisional tax on pension;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;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;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;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. This was because the 90 day period provided in the Act had long passed by the time he got copies of the tax assessments;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;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;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;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 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;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; andinterest 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 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 4th respondent to pay the amount owing by the applicant. This, he states, is authorised by the 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 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 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 4th 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 4th 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 4th 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 4th respondent was entitled to deduct any outstanding tax and by law, to send it to the CIR.[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 4th 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 4th 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 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: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; lack of locus standi to bring the application and to seek the relief in respect of some of the prayers sought;inordinate delay by the applicant in launching the present proceedings, which should lead to the court refusing to grant the relief sought;the applicant seeks orders striking out certain provisions of the Act without having first sought and obtained orders declaring same to be invalid;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;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;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;the applicant misunderstands the system of payments required by the Act and particularly when payments have to be made in respect of provisional tax;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;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;the applicant seeks to assert monetary claims that have, in terms of the law prescribed;the applicant seeks relief based on terms that it would be ‘better’ or ‘more appropriate’ if the Act were worded or structured differently; and lastlythat the applicant, in some parts of the application, relies on inadmissible hearsay evidence, which has also been introduced in the heads of argument.his failure to review the decisions complained of.[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 Others‘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 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, where in dealing with the issue of locus standi the court said the following:‘[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? [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, 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 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’, 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: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.[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 Commissioner 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. [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.[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. It must be added that the 4th respondent also complains of the delay in relation to the allegations made against it.[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, (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 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, 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. 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. 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, the Supreme Court cited with approval the sentiments expressed by Lord Radcliffe in Smith v East Elloe Rural District 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?[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.I 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.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’ 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’. [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, 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 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. 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[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. 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. 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:‘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 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:‘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 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 proceedings.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. In that case, the court held that no liability arises 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.[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:‘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 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 Act 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.[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 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 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 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.’[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-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. 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.’[153]A somewhat similar issue has recently been decided in Zimbabwe in Murowa Diamond (Pvt) Limited v Zimbabwe Revenue Authority & Another. 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 Kauesa principle. I will still have regard to the argument made 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,’ 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. [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. 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: ‘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 4th 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 Ltd on which the respondents 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 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 behalf of the taxpayer. 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.[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.[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 heard. 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, 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. [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, 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 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 SARS 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.’[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. [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 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 Zimbabwe 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 Commonwealth of the Bahamas v Ryan 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:‘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 Government 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 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 caseApplication for condonation[201]Before dealing with the main case between the applicant and the 4th 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 default and that he or she has reasonable prospects of success. 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 4th 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.[205]I have no doubt as well, having considered the papers and the submissions filed on this issue and the main case, that the 4th 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 concerned. I accordingly proceed to consider the 4th respondent’s case forthwith.4th 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 4th 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 4th 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 4th 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.[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 4th respondent’s actions, within a reasonable time. It is submitted that the 4th 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 4th 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 4th 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 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 Kabazembi 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 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.OrderThe Applicant’s application against the First to the Third Respondents is dismissed, save in the respects mentioned in paragraph 2 below.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.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.The Applicant’s application against the Fourth Respondent, is dismissed.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.The Applicant is ordered to pay the costs of the Fourth Respondent.The matter is removed from the roll and is regarded as finalised.____________T.S. MasukuJudgeAPPEARANCES ApplicantDr. Wolf, with her, F. BeaukesInstructed by:Metcalfe Legal Practitioners, Windhoek.First to Third Respondents G. M. Budlender SC, with him E. M. Schimming-Chase SCInstructed by:Office of the Government Attorney, Fourth Respondent T. Luvindao, Of Dr. Weder, Kauta & Hoveka Inc, Windhoek ................
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