Roland Routh WINDHOEK - Three Judges of the Supreme Court reversed a decision by the Windhoek High Court to award Skorpion Mining Company two claims it submitted to the Road Fund Administration in relation to a scheme that refunds consumers that do not use petroleum products on public roads. The Road Fund Administration (RFA) is allowed by its Act to collect road user charges, including a levy on every litre of petrol and diesel sold at any point in Namibia and is also responsible for refunding consumers that do not use public roads. The claims are however to be submitted with original VAT invoices and must be submitted within three calendar months of the purchases. Skorpion Mining submitted two claims in July 2012 and February 2013 respectively for N$743 054 and N$322 599, both of which were rejected by the RFA. Claim 1 was rejected because it was not accompanied by original invoices and claim 2 because it was lodged outside the three calendar month stipulation. Not satisfied with the rejection of the claims, the mining company approached the High Court and was successful in its application. In its application in the High Court, the mining company asserted that claim 1 was indeed accompanied by original invoices and that even though claim 2 was submitted late, it was unfair and unreasonable and contrary to Article 18 of the Namibia Constitution, to reject the claim without affording Skorpion the opportunity to satisfy the RFA that the claim was proper and that there was good reason the claim was late. In response the RFA claimed that the provisions of the scheme were rigid and could not be relaxed. The High Court reasoned that since the RFA is collecting such levies on behalf of consumers such as the mine, it has the duty to hear a claimant before rejecting such claim. It further found that this allows the RFA to make inquiries and ask for documentary proof to test the authenticity of a claim and to lean more in favour honouring such claim than rejecting it. It found that the RFA’s inflexible enforcement of the requirements of the scheme was in breach of Article 18 and that Skorpion was indeed entitled to the claims. Not so, said the Supreme Court. According to Deputy Chief Justice, Petrus Damaseb who wrote the judgment in agreement with Judges of Appeal Dave Smuts and Elton Hoff, the High Court misdirected itself when it made that finding. “It is a misdirection for the court a quo (trial court) to have resorted to the Constitution without considering if the matter could not be resolved by applying common law; that the two claims had to be considered separately in order to establish if Skorpion had discharged the onus in respect of each of them”, he said. According to the appeal judges, claim 1 involved mutually destructive versions and the trial court should have made credibility findings to consider where the probabilities lie, and that since Skorpion’s claim that the claim was submitted with the original invoices was not proved, the claim should have been dismissed on that basis alone. With regards to claim 2, the judges said, the finding by the trial court that as an administrative actor in terms of Article 18, the RFA could have relaxed the three-month deadline is wrong as only the legislative could have given them the power to do so. They said that since the scheme was couched in mandatory language which left no basis for non-compliant claims to be considered, it would have been beyond the RFA’s competence to relax the provisions or investigate late claims. The Road Fund Administration was represented by Advocate Vincent Maleka assisted by Advocate Deon Obbes instructed by Koep and Partners, Windhoek and Skorpion Mine by Advocate Gary Coleman instructed by Theunissen, Louw and Partners, Windhoek.
New Era Reporter
2018-07-24 09:21:13 6 months ago