FROM THE LEGAL DESK

NONE By LEGAL COUNCIL 19 June 2015

CASE A 295/2013

To update you on the progress made in the land tax matter, the Kambazembi case, it is first of all necessary to recap, followed by where we are now:

    -2012Withdrawal of valuation roll by the Minister after well motivated

    objections where lodged.

    -2013In case A 295/2013 a review application filed at the High Court in

    which the constitionality of the land tax legislation is questioned, and under the same case A295/2013 on an urgent application the High Court ruled the valuation court to be null and void.

    -2014In terms of High Court Rule 76 (2), where the respondents are required

    to serve on applicant (Kambazembi) a complete record of the proceedings sought to be corrected or set aside together with reasons, a deadlock was reached between the parties in that the respondents refused to disclose further documents and reasons which led to the present dispute on full disclosure required from government (respondents)

    -2015The application brought by applicant to compel disclosure by the

    respondents was struck from the roll by the judge on 5 June 2015 (his judgement appears elsewhere) ruling non compliance with rule 32 (9) and (10) of the High Court Rules. Applicant is now proceeding with an application for leave to appeal against this ruling and the case has been postponed to 20/07/2015.

CASE 21/2015

At the end of 2014, new land tax assessments for the tax year 2013/14 were sent out by the Ministry of Lands and Resettlement, which, after requests were made in writing to the Minister to withdraw the issue of new land tax assessments, led to a new application filed at the High Court seeking an order to have the assessments set aside.

    -13 February 2015 Case A21/2015 served on the same 6 respondents (government) as in Case A295/2013 with the same applicant as in Case A295/2013 (Kambazembi).

    -24 April 2015Similarly as in Case A295/2013 an application was

    brought before the High Court seeking an order that

    1st respondent furnish reasons for his decision to issue land tax assessments and to disclose a complete record.

    -15 June 2015 The High Court ordered that

    respondents shall deliver their answering affidavit on or before 3 July 2015,

    applicant shall deliver its replying affidavit on or before

    17 July 2015,

    whereafter

    the matter was postponed to20 July 2015, together with the application under Case A295/2013 and in order to determine the further procedure in both matters (we will by then have filed our notice for leave to appeal in the latter case).

SUMMARY

In both matters a dispute between the parties has arisen regarding “full disclosure”.

In terms of High Court Rule 76 (2) (b) the respondents must file a complete record of such proceedings sought to be corrected or set aside together with reasons for the decision.

The crucial importance of this procedure is underlined by the Supreme Court of Appeal Judge Ponnan in the City of Cape Town vs SANRAL case (delivered 30 March 2015) in his following words in paragraph 37:

“The production of the administrative record is inherently necessary for a court to undertake the task of determining the regularity of the proceeding sought to be impugned. ‘Without the record a court cannot perform its constitutionally entrenched review function’ (Democratic Alliance vs Acting NDPP 2012(3) SA486 (SCA) paragraph 37.”


We shall periodically as both cases progress, update you on further developments and enlighten you on the partial disclosure made by the first respondent.

Watch this space for further updates.

By Natasha