PATEL
J: The
applicant herein is an association that comprises licensed tour and
safari operators and represents their interests. The 1st
respondent is the Zimbabwe Tourism Authority (the Authority) which is
established under the Tourism Act [Chapter
14:20]
and is primarily responsible for administering that Act.
Towards
the end of 2007 the Authority issued Circular No. ZTF/1/2007
addressed to all hunting operators to pay a 2% levy on all trophy
fees received by them.
The
applicant challenges the legality of that directive.
It
seeks a declaratur
that its members are not liable to pay any levy or surcharge on
trophy fees paid by tourist hunters in designated tourist facilities.
It also seeks an order restraining the respondents and their
employees from taking any coercive action to enforce the levy.
Initially,
in its opposing papers, the Authority questioned the locus
standi
of the applicant as well as the propriety of the declaratory order
sought by the applicant. However, at the hearing of this matter,
counsel for the Authority did not persist with these ancillary
issues.
The
sole question for determination herein is whether the levying of the
2% surcharge on trophy fees is intra
vires
the Tourism Act and the regulations made thereunder.
Tourism
Act and Regulations
Section
2 of the Tourism Act defines a “designated tourist facility” to
mean “any service, premises, place or thing which the Minister has
declared to be a designated tourist facility in terms of section
thirty-five”.
Under section 35 of the Act:
“The
Minister, after consultation with the Board, may by statutory
instrument declare that —
(a)
any service whatsoever provided for tourists; or
(b)
any premises or place in or on which a service referred to in
paragraph (a) is provided; or
(c)
any premises, place or thing whatsoever which, in the Minister's
opinion, affords an amenity to tourists;
shall
be a designated tourist facility.”
The
declaration of designated tourist facilities by the Minister was
effected through the Tourism (Designated Tourist Facilities)
(Declaration and Requirements for Registration) Regulations 1996 (SI
106 of 1996).
In
terms of section 3 of the Regulations, “the services, premises or
places specified in the First Schedule are declared to be designated
tourist facilities”. Item (c)(ii) of the First Schedule
specifically lists as designated tourist facilities:
“services
or facilities provided to tourists by …………….. hunting
operators”.
Section
55 of the Act enables the fixing of levies and surcharges and
provides, in its relevant portions, as follows:
“(1)
After consultation with the Minister responsible for finance and the
Board, the Minister may make regulations in terms of section
fifty-seven
prescribing
levies to be paid by any class of registered tourist facilities or
licensed persons.
(2)
In prescribing any levy in terms of subsection (1), the Minister —
(a)
shall prescribe …………………………; and
(b)
may—
(i)
require any person conducting or operating a registered tourist
facility to include in the price of any services rendered by him a
surcharge at such rate as may be prescribed, and may require him to
collect such surcharge;
(ii)
fix any other basis on which the levy shall be calculated.”
The
levy envisaged by section 55 of the Act is prescribed in the Tourism
(Designated Tourist Facilities) (General) Regulations 1996 (SI 107 of
1996).
Section
18 of the Regulations requires the payment of a levy “in respect of
all registered designated tourist facilities”.
Section
19 stipulates that:
“The
levy shall be at the rate of 2 per
centum
of the gross amount, excluding sales tax or any other tax or duty,
charged to that [sic]
tourist making use of any facility provided at the designated tourist
facility concerned.”
Section
20(1) makes the operator of every designated tourist facility
responsible for the payment and collection of the levy.
By
virtue of section 20(2):
“The
operator of a designated tourist facility shall add to the charge for
accommodating each tourist thereat a surcharge equal to the amount of
the levy payable in respect of the tourist concerned.”
Payment
of Fees for Trophies
According
to the applicant, its members charge their clients the stipulated 2%
in respect of all services, facilities and amenities provided,
including hunting operations. Furthermore, the tourist in question is
charged an additional variable amount depending on the size of the
animal to be hunted. Where the tourist fails to hunt any animal, he
or she is refunded the additional amount paid. If the tourist is
successful in hunting the animal, the trophy belongs to him or her
exclusively, and the additional amount paid is retained by the
hunting operator.
In
these circumstances, the applicant's position is that the trophy
per
se
does not constitute a service or facility provided by the operator.
According
to the Authority, the hunting tourist is charged a predetermined
refundable fee for the right to hunt a specified animal, which right
forms part of the facilities and services offered by the hunting
operator. The trophy charge is not separately invoiced but is added
to the daily rate charged to form part of the gross amount realised
by the operator for hunting and all other services rendered to the
tourist.
In
short, the hunting services for which trophy fees are charged cannot
be separated from the other services provided by the operator.
Whether
Trophy Qualifies as Facility
The
central question for determination in
casu
is this: Does a hunting trophy constitute a “facility” within the
meaning of section 35 of the Tourism Act and Statutory Instrument 106
of 1996 so as to attract the levy and surcharge imposed by section 55
of the Act and Statutory Instrument 107 of 1996?
The
word “facility” is defined in Black's
Law Dictionary
(5th
ed.) and in Webster's
New Twentieth Century Dictionary
(2nd
ed.) to mean:
“the
easiness of access, the means by which something can be more easily
done”.
It
is common cause that hunting operations and safaris are facilities as
defined in the legislation. It is also not in doubt that the trophy
fee paid by a tourist to a hunting operator is a sum paid to be able
to hunt through the hunting facilities provided by the operator. It
follows that a hunting operation affords the means by which the
tourist is able to access the trophy.
On
this analysis, the trophy is quite clearly an intrinsic and
inseparable part of the hunting services afforded by the operator. It
cannot, in ordinary usage, be extricated from the service or facility
provided by the operator. To do so would be tantamount to pure
artifice.
As
I perceive it, access to a trophy by a hunting tourist is analogous
to the items provided in so-called mini-bars in hotel rooms. The
tourist is charged a fixed rate by the hotel for the use of the room,
including the mini-bar, as part of the facilities provided by the
hotel. The tourist is at large, should he so desire, to consume items
from the mini-bar. If he does, he is then required to pay an
additional charge for the specific items that he has consumed.
A
hunting trophy, in my view, is no different.
If
the tourist succeeds in hunting an animal, he must pay the additional
charge for his trophy which he has acquired solely by dint of the
facility provided by the hunting operator.
It
follows from the foregoing that a hunting trophy constitutes a
“facility” as envisaged in the Tourism Act and its Regulations
and is therefore subject to the levy and surcharge imposed
thereunder.
In
the result, the applicant is not entitled to the declaratur
and interdict that it seeks and this application must be dismissed
with costs.
Scanlen
& Holderness,
applicant's legal practitioners
Gula-Ndebele
& Partners,
1st
respondent's legal practitioners
