‘Unreportable’

CASE NO.: A 228/2011

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

RENATE BRITZ
…............................................................................................Applicant

and

THE MINISTER OF
FINANCE
…..................................................................Respondent

CORAM:
PARKER J

Heard on: 2012 April 25

Delivered on: 2012 June 5

_________________________________________________________________

JUDGMENT

_________________________________________________________________

PARKER
J: [1] The applicant has brought an application on notice of
motion in which she prays for the following relief:

1. ordering
   the respondent (in the form of the Receiver of Revenue) to furnish
   applicant with a meaningful reply to the letters addressed to the
   Respondent by the applicant’s legal representative dated 25
   February 2011, 5 April 2011 and 18 July 2011 and in such reply to
   deal comprehensively with issues raised in the letters.

   
   

2. ordering
   the respondent to pay the costs of this application.

   
   

3. further
   and alternative relief or alternative relief.

   
   

[2]
It is crucial in the present proceedings to signalize the point that
the founding affidavit is made by Mr Andreas Vaatz, ‘the legal
representative of the Applicant’, who has filed a confirmatory
affidavit. The respondent has moved to reject the application, and Mr
Alfred Forbes, the Receiver of Revenue for the Southern Regional
Office, has filed an answering affidavit.

[3]
I must make the initial point that despite the fact that this
application has been argued extensively and a number of authorities
have been referred to me it seems to me that this application falls
within an extremely short, narrow and simple compass and also that
the decision I make should be reasonable and fair in the sense that
such decision ought to be proactive and practical in the
circumstances of the case.

[4]
The pith and marrow of the relief applicant prays for, as I see it,
is the following. It is not only that the respondent should be
compelled to reply to certain letters addressed to the respondent by
the applicant but also that the applicant’s response should be
(1) ‘meaningful’ and (2) should ‘deal
comprehensively with the issues raised in the letters’. It
follows, in my view, that the essence of the present case is polar
apart from, for instance, a case where an applicant approaches the
Court for an order compelling a respondent (1) to discover a certain
document, (2) to give reasons for a decision made by the respondent,
or (3) to produce the record of a decision-making proceeding. That
being the case, I do not think the cases referred to me by counsel
are of any real assistance on the point under consideration.

[5]
In the instant case, from the papers filed of record, the respondent
says her representatives ‘gave replies to each and every
letter’ that was sent to them by the applicant, even though
there may have been ‘some delay’ in giving such replies.
The respondent agrees that the respondent’s representatives did
reply to the letters from the applicant; and so what the applicant
takes issue with is the respondent ‘[N]ot promptly replying to
my letters’; it is not the respondent ‘not replying to my
letters’. Without a doubt, there is a thick shade of difference
between ‘not replying to my letters’ and ‘not
promptly replying to my letters’. As I have said previously the
issue, as I see it, is not that the respondent did not reply to the
applicant’s letters; the issue is rather that the respondent
did not reply to the letters promptly to the applicant’s liking
and also that, as far as the applicant is concerned, the contents of
the replies are not ‘meaningful’ and they do not ‘deal
comprehensively with the issues raised in the letters’. And I
gather from the respondent’s papers that as far as the
respondent is concerned, the contents of the replies, pace the
applicant, have meaning and they deal with all aspects of the issues
raised by the applicant. The respondent does not end there. The
respondent states further:

‘6.16
I want to emphasise that the Respondent has an open-door policy. If
any taxpayer is not satisfied with whatever issue, they are welcome
to attend to the office of the Respondent to discuss their issues. We
must all appreciate the fact that everything cannot always be solved
in writing and in person consultation becomes necessary at times.
This is proven by the unfortunate situation that the Applicant finds
herself in.

6.17
The Applicant was free to attend to the office of the Respondent to
find clarity on issues that remained unresolved, yet chose to write
repeated letters which seemed to be leading nowhere.’

[6]
I accept what the respondent states as sensible and reasonable. As I
have said previously, the present application is not about the Court
being asked by an applicant to make an order to compel a respondent
to discover documents, to give reasons for his or her or its
decision, or to provide the record of a decision-making proceeding. I
note that it behoves this Court to grant orders that are not only
fair and reasonable, but also proactive and practical; otherwise the
orders become purposeless in the sense that they do not really do
justice to the parties on the basis that the orders do not solve the
disputes between the parties. That being the case, I think it would
not meet the justice of the present case if the Court granted an
order to compel the respondent to respond to the letters; only for
the respondent to be told by the applicant that the reply is not
‘meaningful’ or that the reply does not ‘deal
comprehensively with the issues raised in the letters’,
particularly where it is not part of the function of the Court to
prescribe to public servants in what particular manner and in what
particular form they should answer queries and concerns raised by
their clientelé on any issue they are seized within in the
administration of a particular statute.

[7]
In the instant matter, what the applicant seeks is explanation and
clarity respecting the issues that have remained unresolved,
according to her. In this regard I accept the respondent’s
averment that the repeated toing and froing of letters between the
applicant and the respondent will not bring clarity. Additionally, I
find that the repeated toing and froing of letters is bound to
continue to create more heat than light and will not attain closure;
and this Court – I must emphasize – should not be a part,
or be seen to be a part, of the perpetuation of such unsavoury and
purposeless exercise. And respecting the issue of costs; in the
nature of this matter and the view I have taken of it and after due
consideration of the facts at play, I come to the conclusion that in
the circumstances, this is a proper case where it would be fair and
reasonable for the parties to pay their own costs. It would seem both
the applicant and the respondent’s representatives have not
seen the efficacy of tête-á-tête between public
servants and their clientelé in situations as the present. I
do not find any firm communication from the representatives inviting
the applicant to call at their offices in order to deal with her
queries and concerns in a one-on-one discussion, albeit I note that
the respondent’s representatives have not shut their official
door in the face of the applicant.

[8]
In sum, in my view, the material issue is certainly not whether the
respondent’s representatives have responded to the applicant’s
queries and concerns or responded to them within a reasonable time.
Surely, the material issue must be whether the representatives have
given the applicant a reasonably satisfactory explanation to her
queries and concerns. And so, therefore, there is, in my opinion, the
sheer sensibleness and reasonableness in the applicant and the
respondent’s representatives meeting face to face so that the
applicant can be given in a language she understands not only
explanation but also clarification and elucidation in respect of any
queries and concerns she may have. Such explanation, clarification
and elucidation have not been undertaken and cannot be undertaken
through the otiosely endless exchange of letters. I have no doubt in
my mind that the order appearing, hereunder, is a purposeful and
efficacious alternative relief and it is, in the circumstances of the
case, a ‘necessary and appropriate’ order that secures,
within the meaning of Article 25(2) of the Namibian Constitution, the
interests of the applicant or any right she may have.

[9]
Whereupon, for all the aforegoing considerations, I make the
following order:

1. The
   application is dismissed.

   
   

2. The
   applicant must attend at the offices of the Receiver of Revenue for
   the Southern Regional Office (of the Respondent), Inland Revenue
   Building, Hampie Plichta, Keetmanshoop, at a reasonable time, on or
   before 29 June 2012, to be arranged with the Receiver of Revenue for
   the Southern Regional Office, and the said Receiver of Revenue or
   any authorized person acting in the post of Receiver of Revenue for
   the Southern Regional Office must personally attend to the applicant
   in order to explain, clarify and elucidate any issues, in a language
   the applicant understands, that she has raised in all the letters
   that the applicant has as at the date of the bringing of the present
   applicant sent to the Receiver of Revenue of the Southern Regional
   Office and referred to in the papers before this Court in this
   application.

   
   

3. There
   is no order as to costs.

   
   

________________

PARKER J

COUNSEL ON BEHALF OF
THE APPLICANT: Mr A Vaatz

Instructed by: Andreas
Vaatz & Partners

COUNSEL ON BEHALF OF
THE RESPONDENT: Ms L Frederick

Instructed by:
Government Attorney