Land tax constitutional
The Supreme Court has ruled the provisions of the Act are aimed at achieving reform and transformation in ownership and access to agricultural land.
31 July 2018 | Local News
The appeal by Kambazembi Guest Farm cc, trading as Waterberg Wilderness, sought to strike down sections 76 to 80 of the Act as unconstitutional, on the basis that the imposition of the tax was impermissibly delegated by the legislature to the agriculture minister as part of the executive, which is in conflict with the fundamental principle of separation of powers.
The regulations challenged set out how the land tax is to be administered. They provide for the valuation of agricultural land, the appointment, powers and duties of a valuator and the process of valuation, against values included in the provisional valuation roll.
They also provide for the establishment, powers and duties of the valuation court, appointed to consider and determine objections against the valuation roll and alterations to it. They also provide for the furnishing of returns and assessments on land tax, as well as rebates and interest on tax, its recovery and the serving of notices.
“The appellant failed to show how each of these impugned regulations offended against the constitutional provisions and principles relied upon or common law. The challenges were found to be without merit and the approach of the High Court is upheld,” the Supreme Court ruled last week.Kambazembi sought to have the legality of the regulations made under the Act, in Government Notice 120 of 18 June 2007, declared inconsistent with articles 63(2), 8, 10, 12(1)(a), 18 and 22 of the Namibian constitution declared invalid.
It argued that the provisions impermissibly delegate plenary legislative powers to the executive and that it is a wide and unlawful delegation.
The Supreme Court concurred with earlier ruling of the High Court on matter that the provisions are not in conflict with the constitutional principles of separation of powers and 63(2)(b), which accords the National Assembly its own power to provide for revenue and taxation. The Supreme Court bench consisted of judges Sylvester Mainga and Dave Smuts, as well as former South African Constitutional Court judge, Yvonne Mokgoro. The bench ruled the provisions of the Act are aimed at achieving reform and transformation in ownership and access to agricultural land. The respondents in the matter were the ministries of land reform, agriculture, water and forestry and finance, as well as the chairperson of land reform advisory commission, the inland revenue commissioner, the attorney-general and the valuation court. Kambazembi had further argued that section 76(b), which authorises the minister to grant exemptions from paying land tax, constitutes an impermissible delegation of a discretion upon the minister to execute a law enacted by the legislature and that it is also inconsistent with article 22 of the constitution.
The High Court had found that the land tax imposed under these sections satisfied the constitutional requirement. Kambazembi had appealed this finding. The Supreme Court found the statutory scheme and constitutional imperative for land reform in Namibia must be seen within the context of “the ravages of inequality brought about by Namibia's colonial past”.
It ruled there was wide consultation by government during the in the first national land conference in 1991, so much so that the resulting Act aimed to bring about reform in ownership and access to agricultural land in Namibia in 1995. Amendments to the Act in 2000 and 2001 established the Land Acquisition and Development Fund and land tax, respectively, as a means to fund the land reform and transformation process. The Supreme Court ruled further that the history of land deprivation and dispossession and the resultant profound inequality in land ownership is set out in some detail in the judgment of the High Court.
The High Court stated that the colonial dispossession by removing indigenous people from their land created farms for successive waves of first German and then South African settlers.
It further stated that in ending colonialism and apartheid, upon independence, the constitution's preamble recognised the need to protect the gains of the liberation struggle and constitute Namibia as a democratic unitary state, securing to all citizens justice, liberty and equality. The respondents had argued that Kambazembi's approach had failed to take into account article 63(2)(b) properly into account and the nature of the tax scheme imposed under the Act. “What was left to be determined by the minister was the rate within the formula which was to be approved by way of a resolution by the National Assembly,” Advocate Vincent Maleka, appearing for the respondents, argued.
Supreme Court ruled that section 76 does not conflict with the constitutional principle of separation of powers and article 63(2)(b), which accords the National Assembly the power “to provide for revenue and taxation”.
“The National Assembly exercised its own powers and provided for land tax in the section, which the article expressly authorised it to do so. The tax is based upon the unimproved site value of agricultural land multiplied by a rate. The minister only determines the rate in the formula, subject to approval by a resolution of the National Assembly. The unimproved site value is to be determined in accordance with a procedure set out by the minister in the regulations,” the Supreme Court emphasised.
The court concluded that parliament cannot be expected to deal with all the details of implementing legislation and involve itself in the minute details of the tax. It said there was nothing in the constitution which prohibits parliament from delegating subordinate regulatory authority to the minister to address the administration and collection of the tax.