- October 6, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicants are Namibian individuals some of whom are employed by various institutions. They were issued with refunds by the tax authorities which are now suspected to have been fraudulent. The Namibia Revenue Authority (Namra), in pursuance of the provisions of the Act, called upon the applicants to provide documents in support of the refund, which it is claimed the applicants failed to provide. This culminated in Namra assessing the applicants’ liability and issuing instructions to the employers of the applicants to effect deductions from the applicants’ salaries and emoluments.
The applicants lodged a constitutional application challenging some of the provisions of the Act which application is to be heard in due course. In the interim, they applied for an order temporarily staying the implementation of certain provisions of the Act, pending the constitutional challenge. The applicants further sought an interim order compelling Namra to cease further deductions from their salaries and to also refund all the money it has deducted from the applicants in terms of the Act pending the constitutional challenge. The respondents opposed the application, chiefly stating that they complied with the provisions of the Act and that it would appear, and they allege that the applicants received money as tax refunds to which they were not entitled, thus entitling Namra to invoke the appropriate provisions of the law, which they did.
Determination
Masuku J:
[21] The difficulty that faces the court, in dealing with this matter, is that it is required, understanding the perilous position in which the applicants depose they find themselves, to stay the implementation of legislation, which is, at this moment valid before the determination regarding the constitutional invalidity has been decided. It places the court in a rather precarious position to order Namra not to enforce provisions of the Act, which as we speak, remain valid and enforceable.
[22] It would appear to me that the court would be placing the proverbial cart before the horse if it were to incline towards what the applicants importuned. I say so for the reasoning of the Supreme Court in Minister of Finance v Hollard Insurance Company of Namibia 2020 (1) NR 60 (SC), where the court reasoned as follows:
‘[87] I am fortified in that view by the appellants’ correct foundational premise that a duly enacted law must be complied with until it is set aside in terms of the Constitution. Once a law is enacted, has been assented to, and comes into force, it unquestionably represents the law of the land on the subject it covers.’
[23] When proper regard is given to the above quotation, it makes it immediately plain that the Act remains in force and that it must, until set aside by a competent court, in appropriate proceedings, be enforced by this court. This renders the interim relief that the applicants seek, an invasion by the court into realms that it should not venture into at this juncture. This is so because the proceedings sought to impugn the relevant provisions have not yet been decided. To grant the interim relief at this stage, would thus be tantamount to second-guessing the ultimate finding in Part B that the provisions relied on by the respondents are unconstitutional but before that question fully and properly serves before the court.
[24] Having said this, the main question that lingers and cries for determination, is whether the applicants do, in the instant case, have a right to the order they seek before the provisions they seek to impugn, are set aside as unconstitutional. It appears to me that the validity of the provisions cited remains. Once that position stands, it would appear that the court cannot, in the circumstances, properly grant the interdictory relief sought by the applicants.
[25] It therefore appears that the applicants have not, in the premises, satisfied the first requirement, namely, that they have a prima facie right, although open to some doubt. I say so because the Government respondents claim that their actions are in line with the current statutory regime in place. It is only once the provisions are held to be unconstitutional that the court can be properly placed to grant the relief sought by the applicant.
[26] The learned author C B Prest Interlocutory Interdicts, Juta & Co, 1993, states the following, where he deals with the prima facie right in granting an interim interdict:
‘The applicant for an interlocutory interdict must show a right which is being infringed or which he apprehends will be infringed, and if he does not do so, the application must fail. An applicant must establish “some just right”. It must not be a mere moral right; it must be a strict legal right.’
[27] In view of the foregoing, I am of the considered view that the applicants have not, in the instant case, been able to establish a prima facie right as required. The application, must, for that reason fail. I find it unnecessary, in the circumstances, to deal with the rest of the requirements of the interim interdict, considering that the applicants have, in my judgment, failed at the first hurdle.
[28] Having said this, I must mention that I am not insensitive to the plight of the applicants, regarding the harsh effects the decisions made by Namra have on them and their families. The court can, however, only intervene in terms of the law. The instant case would therefore call for the declaration of unconstitutionality in the applicants’ favour before the court could have the right to interfere with the respondents’ exercise of their powers and functions under the Act.
Conclusion
[29] In view of the discussion and conclusions reached above, I come to the considered opinion that the application for the granting of an interim order must fail. As indicated, the fact that the court may sympathize or empathize with the applicants does not constitute a valid reason in law to grant the order they seek. All that can be done, is to speed up the hearing of the constitutional case in Part B of the application so that the applicants know the fate of their application at the earliest possible time.
Costs
[30] The ordinary rule that applies is that costs should follow the event. That said, the court however retains discretion in issues of costs. I consider that the matter is not at a final end. I will, for that reason, reserve the determination of the costs of this application. They will be determined together with the costs of the constitutional application.
Wherefore the court held the following:-
a) That an applicant for the granting of an interim interdict must show that he or she has (i) a prima facie right although open to doubt; (ii) a well-grounded apprehension of harm if the relief is not granted; (iii) that the balance of convenience favours the granting of interim relief and (v) that the applicant has no other satisfactory remedy.
b) In the instant case, Namra is following the provisions of the Act which have not yet been held to be unconstitutional. For that reason, the applicants are not entitled to an interim interdict, the effect of which is to stop Namra from following the provisions of legislation that is binding.
c) Because Namra was following the provisions of the Act which remain binding and enforceable, until set aside, the applicants had failed to establish a prima facie right and such the application for the relief sought must be refused.
d) That it would only be once the provisions sought to be impugned have been held to be unconstitutional that Namra can be properly prevented from applying the unconstitutional provisions, as found by the court.
As a result, the application for the stay of the decision made by the first respondent and that the Namibia Revenue Authority be interdicted and restrained from implementing its decisions was refused