Trustco loses N$593m tax case against NamRA
Court vindicates tax agency's stance
The tax authority walked away from the High Court unscathed after a legal onslaught from the local financial services company.
The High Court of Namibia has dismissed Trustco Group Holdings’ attempt to exclude elements of the Namibia Revenue Agency’s (NamRA) case in a major tax dispute involving N$593 million in alleged unpaid taxes.
Trustco, represented by senior counsel Reinhard Tötemeyer, launched an offensive, challenging NamRA’s 2022 decision to revoke prior payment arrangements and demand immediate tax settlement.
Tötemeyer contended that NamRA’s conduct was procedurally unfair, irrational and constitutionally deficient.
He argued that the agency violated Article 18 of the Namibian Constitution, which guarantees lawful and fair administrative action. According to Tötemeyer, Trustco had been issued “good standing” tax certificates and was never afforded a proper opportunity to be heard before the abrupt shift in NamRA’s approach, a breach of the audi alteram partem principle (the right to a fair hearing).
Tötemeyer also took aim at section 91 of the Income Tax Act and section 36 of the VAT Act, alleging these laws unjustifiably infringed on Trustco’s rights under Article 12 (access to courts) and Article 16 (protection of property).
He described the laws as granting NamRA excessive powers to enforce tax collection without sufficient judicial oversight. Furthermore, he invoked the functus officio principle, arguing that NamRA had no legal authority to revisit and revoke finalised decisions regarding repayment agreement.
Tax authorities fight back
Advocate Emmerentia Leonard, appearing for NamRA, firmly rejected the allegations, defending the agency’s conduct as lawful, necessary and constitutionally sound.
She argued that Trustco had persistently failed to comply with multiple payment plans and that NamRA’s decision to demand immediate settlement was a justified and proportionate response to escalating arrears, which grew from N$238 million in mid-2021 to nearly N$593 million by December 2023.
Leonard noted that Trustco had not been denied procedural rights, noting that the statutory framework allowed taxpayers to object to assessments, appeal to the Special Court, and seek review by the High Court – all of which Trustco had actively done.
She dismissed the constitutional arguments as overstated, arguing that the legal provisions in question were consistent with international tax norms and did not exclude judicial review.
Constitutional arguments
Supporting NamRA’s position, attorney general Festus Mbandeka and former finance minister Iipumbu Shiimi defended the constitutionality of the legislation. Mbandeka pointed out that comparable statutory powers have been upheld in other democratic jurisdictions, reinforcing their legal soundness.
Justice Sibeya ruled that Trustco’s application to strike out parts of NamRA’s case lacked merit, stressing that exclusion of factual material from court proceedings is a drastic remedy that must be applied only when irrelevance is “clearly beyond doubt”, a threshold Trustco had not met.
The court further clarified that while the special court is designated for tax matters, it does not preclude the High Court from exercising its inherent jurisdiction to provide ancillary relief – preserving constitutional safeguards while upholding the legislative framework.
Having dismissed the strike-out application, the court also ordered Trustco to pay the legal costs of all four respondents, dealing a financial and legal blow to the company even before the substantive tax claims are adjudicated.
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Trustco, represented by senior counsel Reinhard Tötemeyer, launched an offensive, challenging NamRA’s 2022 decision to revoke prior payment arrangements and demand immediate tax settlement.
Tötemeyer contended that NamRA’s conduct was procedurally unfair, irrational and constitutionally deficient.
He argued that the agency violated Article 18 of the Namibian Constitution, which guarantees lawful and fair administrative action. According to Tötemeyer, Trustco had been issued “good standing” tax certificates and was never afforded a proper opportunity to be heard before the abrupt shift in NamRA’s approach, a breach of the audi alteram partem principle (the right to a fair hearing).
Tötemeyer also took aim at section 91 of the Income Tax Act and section 36 of the VAT Act, alleging these laws unjustifiably infringed on Trustco’s rights under Article 12 (access to courts) and Article 16 (protection of property).
He described the laws as granting NamRA excessive powers to enforce tax collection without sufficient judicial oversight. Furthermore, he invoked the functus officio principle, arguing that NamRA had no legal authority to revisit and revoke finalised decisions regarding repayment agreement.
Tax authorities fight back
Advocate Emmerentia Leonard, appearing for NamRA, firmly rejected the allegations, defending the agency’s conduct as lawful, necessary and constitutionally sound.
She argued that Trustco had persistently failed to comply with multiple payment plans and that NamRA’s decision to demand immediate settlement was a justified and proportionate response to escalating arrears, which grew from N$238 million in mid-2021 to nearly N$593 million by December 2023.
Leonard noted that Trustco had not been denied procedural rights, noting that the statutory framework allowed taxpayers to object to assessments, appeal to the Special Court, and seek review by the High Court – all of which Trustco had actively done.
She dismissed the constitutional arguments as overstated, arguing that the legal provisions in question were consistent with international tax norms and did not exclude judicial review.
Constitutional arguments
Supporting NamRA’s position, attorney general Festus Mbandeka and former finance minister Iipumbu Shiimi defended the constitutionality of the legislation. Mbandeka pointed out that comparable statutory powers have been upheld in other democratic jurisdictions, reinforcing their legal soundness.
Justice Sibeya ruled that Trustco’s application to strike out parts of NamRA’s case lacked merit, stressing that exclusion of factual material from court proceedings is a drastic remedy that must be applied only when irrelevance is “clearly beyond doubt”, a threshold Trustco had not met.
The court further clarified that while the special court is designated for tax matters, it does not preclude the High Court from exercising its inherent jurisdiction to provide ancillary relief – preserving constitutional safeguards while upholding the legislative framework.
Having dismissed the strike-out application, the court also ordered Trustco to pay the legal costs of all four respondents, dealing a financial and legal blow to the company even before the substantive tax claims are adjudicated.
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