Kambazembi Guest Farm has come out guns blazing in rejecting High Court Judge Collins Parker’s assertion that they launch court proceedings after court proceedings simply to avoid paying land tax.
In an email sent to newspapers by its marketing and public relations manager Sven-Eric Stender after the judgement in which Judge Parker dismissed the urgent application of Kambazembi to declare the court roll null and void, Stender included a statement indicating the company paid funds into a trust account at their lawyers every year since 2007 for land tax.
He further said that the owner of the guest farm, Joachim Rust, could not dispute the statement of the ministry that he did not pay tax as he was far away from his farm where the receipts are kept. Besides, Stender said, the lawyers of Rust were of the opinion that this fact was not relevant in the question of the urgent application.
Acting Judge Parker lambasted Kambazembi for launching application after application, including various interspersed interlocutory applications challenging the land tax regime and the collection of land tax.
He said “the numerous applications and interlocutory applications are to a very large extent on the same or similar cause of action and against almost the same respondents”.
Outlying the various applications the judge said it defies all logic and is inexplicable in law for a litigant to urge a court to take it that in proceedings X the very law and regulations it challenges as unconstitutional and invalid in other similar proceedings are valid and constitutional. He said that according to his understanding of the law, either an enabling Act or regulations made thereunder are valid or not. “They cannot be valid on Monday or in May and be invalid on Tuesday or in June or any other time,” the judge emphasised.
The judge continued: “Without beating about the bush, I should say that applicant’s attitude cannot be described appropriately in any other way than disingenuous.”
He called the attitude of the applicant “self-serving” and said he took the “chicanery” of the applicant into account because it carries immense weight in deciding whether to grant the applicant the indulgence he seeks.
In essence, the judge said, an applicant must satisfy the court that the matter is urgent by providing reasons why he or she could not be afforded substantial redress at a hearing in due course. The only reason the applicant forwarded, the judge said, is a judgment in one of its own cases where Judge Hoff said “it is self-evident that the applicant in the particular circumstances of this case would not be afforded substantial redress in due course”.
According to Judge Parker, Judge Hoff said he came to his conclusion because of “the particular circumstances of the case” and did not enunciate a principle of law applicable to all cases.
He said that he is surprised that the applicant relied on the judgement in support for his prayer that the matter be heard as one of urgency, and that he has no difficulty whatsoever in holding that on the papers the applicant has not satisfied the requirements for urgency. He dismissed the application with costs, including costs for one instructing and two instructed counsel.
Advocate Richard Tötemeyer, SC, appeared for Kambazembi instructed by Lorentz/Angula Inc, and Advocate Nazier Cassim, SC, assisted Advocate Gerson Narib for the Government on instructions of the Government Attorney.