KUDYA
JA:
[1]
On
8 January 2020, the High Court ordered the appellant to pay to the
first respondent:
1.
the sum of US$877,435 being the outstanding meteorological weather
services fees (Met fees) for the period January 2006 to 30 April
2014;
2.
all and further outstanding Met fees from 1 May 2014 to the date of
final payment;
3.
interest on the above sums at the prescribed rate from the date of
the service of summons to date of final payment; and
4.
costs of suit on a legal practitioner and client scale.
The
appellant appeals against this order.
THE
FACTS
[2]
The appellant is a South African public company registered in terms
of section 4(3) of the South African Airways Act, 2007. It operates
an international airline service with flights to and from Zimbabwe.
The first respondent is the Minister of Environment, Water and
Climate (the Minister). He administers the Meteorological Services
Act [Chapter
13:12]
and its subsidiary legislation, the Meteorological Services (Aviation
Weather Services) Regulations 2005, Statutory Instrument 32/2005. The
second respondent is the Civil Aviation Authority of Zimbabwe (CAAZ).
It is a statutory corporation, established on 1 January 1999, in
terms of section 4 of the Civil Aviation Act [Chapter
13:16].
At the material time, it managed all the airports and aerodromes in
Zimbabwe.
[3]
The Meteorological Services Department (MSD) was established in 1925.
It is mandated by legislation to produce aeronautical weather
services in Zimbabwe for the benefit of the general public and
private players. On 2 April 2004, the Meteorological Services Act
mandated the MSD to charge private players, amongst whom was the
aviation industry, for the provision of these services on a cost
recovery basis. The modalities for implementing the cost recovery
measures were instituted in consultation and by agreement with the
Airline Operators Committee between 13 June 2004 and 15
September 2004. The resultant tariffs were based on the cost and life
span of the equipment used and the cost of providing the service.
These aeronautical weather services were predicated upon the
International Civil Aviation Organization (ICAO) and the World
Meteorological Organization specifications and guidelines. They were
categorized as landing, en-route or over flight and departure fees.
They were to be availed to the aviation industry through CAAZ. The
set tariffs were operationalized on 1 May 2005.
[4]
On 23 June 2006, the MSD concluded an agreement with CAAZ. In terms
of clause 7.1 of the agreement, CAAZ became the collection agent for
the cost recovery fees chargeable to the individual airlines, which
serviced the local air space. Thereafter, CAAZ charged individual
airlines for its own specified services in terms of the Aviation
(Aeronautical Telecommunications and Information Services
Regulations, 2004, Aviation (Air Traffic Services) Regulations 2010,
Aviation (Air Navigation) Regulations, 2004 and Aviation (En-route
Navigation Facilities) (Fees) Regulations, SI 67/1997. It combined
services supplied by the MSD in a composite invoice but under the
single and distinct rubric of “Met fees”.
[5]
The appellant and a few select airlines paid the specified CAAZ fees
but declined to pay for the Met fees. The recalcitrant airlines
sought the resolution of the impasse through the mediation of IATA
and ICAO between 26 July 2006 and 26 July 2010. Notwithstanding, the
breakdown of the fees by type and cost of each respective service by
CAAZ to the mediators, the negotiations failed.
[6]
By an act of State, the MSD was transferred from the Minister of
Transport and Infrastructural Development to the first respondent on
7 February 2014. An adverse audit report by the Auditor-General
prompted the Minister to issue summons against the appellant on 20
August 2014 seeking the payment of the amounts that form the subject
matter of this appeal. The summons was served on 22 August 2014.
[7]
The appellant entered its plea on 9 June 2015. It, inter
alia,
raised a special plea in bar of prescription (in terms of
section 15(c)(ii) of the Prescription Act [Chapter
8:11])
to the claims preceding 22 August 2008. It admitted firstly, in paras
2.2-2.4 of its plea, that CAAZ was a collection agent of the Minister
at all material times and secondly, that it had indeed received the
aeronautical services. It, however, sought to avoid the claims on the
main basis that it had discharged all its obligations. And in the
alternative, that if it was found liable, then it should be
reimbursed the putative judgment debt by CAAZ. At its instance, CAAZ
was, by consent, joined to the proceedings a
quo
as the second defendant, on 8 March 2016.
[8]
On 7 August 2016, CAAZ pleaded that it was enjoined by sections 45,
45(1)(o) of the Civil Aviation Act as read with sections 3(1) and (4)
of SI 67/97 and article 15 of the Chicago Convention on International
Civil Aviation to charge for its own account boarding fees, bussing
fees, parking fees, landing fees and navigation or en
route
fees for the use of its airport facilities and air space. In addition
to these charges, it levied the airlines the similarly named landing,
en
route
and departure fees under the acronym “Met fees” on behalf of the
MSD for the use of the aeronautical weather services provided to the
airlines by the MSD. To wit the appellant averred that the Met fees
levied on the globalized invoice constituted a duplication of the
separate and distinct line items of the same name charged for the
account of CAAZ.
THE
ISSUES REFERRED TO TRIAL A
QUO
[9]
The court a
quo
was required to determine whether the claims prior to 22 August 2008
had prescribed and whether the appellant was indebted to the Minister
in the amount claimed or in any lesser amount. In determining the
second issue, the court a quo
was enjoined to decide whether there had been any duplication of the
landing, en
route
and departure fees chargeable for the account of CAAZ and the unpaid
Met fees sought by the Minister.
THE
EVIDENCE
[10]
The monthly tax invoices issued to the appellant between 2009 and
2016 show that the Met fees constituted between 4 percent and 7
percent of the similarly named fees charged for the account of CAAZ.
The number of airline operators in Zimbabwe during the 2006 to 2016
period ranged between a minimum of 45 and a maximum of 85 airlines.
An average of 60 percent of the airlines paid the Met fees.
[11]
The appellant produced proof of monthly payments of the fees charged
less the disputed Met fees for the period November 2008 to
January 2017. It declared in its respective remittances that it would
not pay the Met fees until the dispute was resolved.
[12]
The Minister called the oral testimony of his former MSD Fund
Administrator, Morris Vengesai Sahanga. He narrated the consultations
and agreement reached with the airlines for the levying of the Met
fees. He asserted that at the time all the airlines appreciated the
distinction between the similarly named prospective charges sought by
the MSD. The aviation weather services provided to airlines
encompassed temperature, wind direction and speed and atmospheric
pressure forecasts to the airlines flying over, landing in and
departing from Zimbabwe. The information was relayed through CAAZ. He
produced the monthly schedules and the invoices of the amounts
billed, paid and unpaid by the appellant during the period from 1
January 2009 to the date of summons. He asserted that the Met fees
due to the MSD were distinct from those of a similar name charged by
CAAZ for its own account. The Met fees were for the provision of the
aviation weather services that he narrated while those for the
account of CAAZ were for the use of CAAZ's infrastructure and the
Zimbabwe air space. The permanent secretary Grace Tsitsi Mutandiro
testified that the MSD was transferred to the Minister with all its
assets and liabilities. CAAZ
charges were for the use of the local airspace and its landing and
take-off infrastructure and not for the utilization of weather
information.
[13]
The appellant's application for absolution from the instance was
dismissed in a separate judgment issued as HH173/19 on 6 March 2019.
Thereafter, it dispensed with the calling of oral evidence in
preference to the documentary evidence produced by consent at the
commencement of trial. CAAZ declined to participate in the trial,
opting to abide by the order of the court.
THE
CONTENTIONS A
QUO
[14]
It was common cause that the amounts sought for the period January
2006 to 21 August 2008 is in the total sum of US$274,944
consisting of US$104,085 for 2006, US$96,637 for 2007 and US$74,222
for the period commencing 1 January 2008 to 21 August 2008.
[15]
The appellant contended that the claims preceding 22 August 2008
constituted a debt owed to the State, which in terms of section
15(c)(ii) of the Prescription Act, prescribes after 6 years. It
further argued that the claimed Met fees, subsequent to 22 August
2008, duplicated landing and en
route
fees charged for the account of CAAZ, which it discharged in full. It
also argued that the Minister lacked locus
standi
to sue for the fees in question on the following bases. Firstly, that
the claim arose before the MSD was assigned to him. Secondly, that an
unspecified section of the Meteorological Services Act, conferred the
exclusive right to sue or be sued on the Director of the MSD. Lastly,
that sections 6(1)(d), 45(1) and 47 of the Civil Aviation Act, which
came into effect on 1 January 1989, imbues CAAZ with the
sole and exclusive power to provide aeronautical information services
and charts of aerodromes, air traffic control, meteorological
services, hazards to air navigation and the right to levy fees and
charges. In its closing submissions the appellant also argued that
the Minister did not have a cause of action against it.
[16]
Per
contra,
the Minister contended that the Met fees constituted a tax, which in
terms of section 15(a)(iii) of the Prescription Act only
prescribed after a period of 30 years. He also contended that the
appellant did not pay any Met fees, which were demonstrably distinct
from the similarly named fees paid to CAAZ for the use of its own
facilities and infrastructure. In regards to locus
standi
he contended that, as the Minister in charge of the MSD, who assumed
its assets and liabilities on assignment, he had the necessary legal
standing to recover its debt in terms of section 3 of the State
Liabilities Act [Chapter
8:14]
as read with section 39 of the Interpretation Act [Chapter
1:01].
The Minister also contended that he had not only a statutory cause of
action but also a contractual one.
THE
FINDINGS OF THE COURT A QUO
[17]
The court a
quo
found
against the appellant on all the issues that were referred to trial.
It held that the Minister, as the authority assigned to administer
the MSD and its constituent legislation, had the requisite statutory
locus
standi
to sue for the recovery of the debt notwithstanding that some of it
had been incurred when the MSD fell under the auspices of the
Minister of Transport and Infrastructural Development. It further
held that the MSD was neither autonomous nor imbued with legal
capacity but falls under the aegis of the Minister assigned to
administer the Meteorological Services Act when action is instituted.
It reasoned that the provisions of sections 3, 4, 6 and 8 of the
Meteorological Services Act gave Minister a direct and substantial
interest and overarching control in the operations of the MSD. It
also held that the Minister derived his locus
standi
from the common cause fact that CAAZ was an agent of the MSD. It
further found that the Minister's cause of action against the
appellant and his legal right to sue for any debts accrued before the
Meteorological Services Act was assigned to him.
[18]
On prescription, the court held that the debt was in the nature of a
tax and would therefore prescribe after a period of 30 years. It
further held that the essential factors that constitute a tax, which
were enunciated in Nyambirai
v National Social Security Authority & Anor
1995 (2) ZLR 1 (S) at 8B-D, were
fully met. The court a
quo
reasoned, in its judgment, at p899 of the appeal record that:
“In
casu
we are dealing with some levies that the first defendant is obligated
to pay under the relevant enactments, especially the MSA. For that
reason, this is not only a debt due to the State but also levied
under some enactments. It would not be correct to strictly interpret
that the debt is owed to the State only and disregard statutory
obligations. I would therefore agree that the debt in
casu
is also covered under section 15(a) and for that reason part of the
debt is not prescribed.”
THE
GROUNDS OF APPEAL
[19]
The appellant is aggrieved by the findings of the court a quo.
It appeals to this Court on the following grounds.
“1.
The court a
quo
erred and misdirected itself in law in failing to find that the first
respondent's claim in so far as it related to the period prior to
22 August 2014, had prescribed by dint of the provisions of
section 15(c)(ii) of the Prescription Act [Chapter 8:11].
2.
Having found, as it did, that the administration of the
Meteorological Services Act [Chapter
13:21]
was assigned to the 1st
respondent on the 7th February 2014,
the court
a quo
erred
in law in finding as it did that the 1st
respondent had a statutory claim against the appellant
retrospectively, to wit, from January 2006.
3.
The court a
quo
erred and misdirected itself in law in failing to find that by dint
of the provisions of section 6(3) of the Meteorological Services Act
[Chapter 13:21],
the 1st
respondent had no direct statutory nexus with the appellant in
respect of the provisions of the meteorological weather services and
could therefore not sustain a statutory claim against the appellant.
4.
The court a
quo
erred and misdirected itself in failing to find that, by dint of the
provisions of sections 6(1)(d), 45 and 47 of the Civil Aviation Act
[Chapter
13.16],
the statutory duty to provide meteorological services to the
appellant and other airlines exclusively reposed in the Civil
Aviation Authority of Zimbabwe (the second respondent herein).
5.
By extension, the court a
quo
further erred in then failing to find that only the Civil Aviation
Authority of Zimbabwe could institute a claim for meteorological
services against the appellant.
6.
It being common cause that the appellant had, during the material
period, paid the meteorological services to the Civil Aviation
Authority of Zimbabwe (2nd
respondent herein) the court erred in failing to find that the claim
by the 1st
respondent constituted a duplication of the same statutory claim.
7.
Overall, having found as it correctly did, that the disposition of
this matter turned on questions of law only, the court a
quo
erred and misdirected itself at law by failing to determine the
question of the establishment of a cause of action by the 1st
respondent by reference to the applicable statutory provisions.
8.
The court a
quo
erred in granting an order for costs on a legal practitioner and
client scale in situations where there was no basis for such punitive
costs.”
It
seeks the success of the appeal with costs and the setting aside of
the judgment and its substitution with a dismissal of the first
respondent's claim with costs.
THE
ISSUES ON APPEAL
[20]
These eight grounds of appeal raise the following three issues:
1.
Whether or not the respondent had locus
standi
to institute proceedings and had a cause of action against the
appellant.
2.
Whether or not the court a
quo
erred when it held that part of the claim had not prescribed.
3.
Whether or not the court a
quo
could properly impose costs on a higher scale.
THE
SUBMISSIONS BEFORE THIS COURT
[21]
Mr Moyo,
for the appellant submitted that the question of whether or not the
Minister had established a cause of action as against the appellant
could be dispositive of the appeal. In this regard, he contended in
the main that notwithstanding that the MSD was the ultimate source of
the meteorological services, CAAZ, and not the Minister, had in terms
of sections 6(1)(d), 45 and 47 of the Civil Aviation Act the
exclusive statutory duty to provide meteorological services to the
appellant. He also took the alternative point that such a statutory
duty could possibly fall on the director of the MSD and not his
Minister. He premised the alternative contention on the provisions of
section 6(3) of the Meteorological Services Act, which reposes on the
director the power to make suitable financial arrangements for the
provision of meteorological services with other State entities. He
resultantly conceded the validity of the agreement executed between
the MSD and CAAZ on 23 June 2006. He however contended, tongue in
cheek, that the effect of that agreement was that the MSD could only
seek recompense from CAAZ and not the appellant. He, therefore,
nailed his contentions on the mast of the Civil Aviation Act and
submitted that as the Meteorological Services Act did not expressly
confer the Minister with the requisite right of action as against the
appellant, it was remiss of the court a
quo
to find that he had both the
locus standi
and the concomitant cause of action to sue the appellant.
[22]
Regarding the question of prescription, he submitted that it was not
necessary for the appellant to lead evidence to establish the
existence of prescription. This was because the facts from which the
issue of prescription could be determined were correctly found by the
court a
quo
to have been common cause. He, therefore, contended that the claims
prior to 22 August 2008 had been extinguished by prescription.
He strongly argued that these claims constituted an ordinary debt
owed to the State and were not in the nature of a tax. They had,
thus, prescribed after a period of six years and would not do so
after thirty years.
[23]
Mr Nyamakura,
for the Minister, made the contrary contentions, which we summarize
in this paragraph and in paras [24] and 25]. The failure by the
appellant to lead evidence on the existence of prescription or the
prescribed amounts was fatal to its special plea. The requirement to
lead evidence to establish a special plea is enunciated in Van
Brooker v Mudhanda & Anor and Pierce v Mudhanda & Anor
SC 5/2018 at p14 and in Herbstein
and Van Winsen: The Civil Practice of the High Courts of South
Africa,
5th
ed at p600.
[24]
The question of the Minister's entitlement to sue for the debt owed
to the MSD was asserted in paragraphs 3 to 5 of his declaration. It
was not disputed by the appellant in parag 3.2 of its plea, which was
never subsequently amended. It is therefore taken to have been
admitted. The appellant also expressly admitted that CAAZ was the
Minister's duly authorized collecting agent to whom it had paid the
claimed amounts. It could, therefore, not properly argue against the
Minister's causa
or locus standi
without amending its pleadings or leading any evidence.
[25]
The date of assignment to the Minister could not and did not
retrospectively affect the existence of the cause of action nor his
legal capacity to claim the debt. The assignment of functions did not
create a new law nor extinguish extant obligations that arose before
the assignment. This position is codified by section 39 of the
Interpretation Act [Chapter
1:01],
which in essence equates an assignment with a cession.
The statutory cause of action is to be found in the Meteorological
Services Act and the Meteorological (Aviation Weather Services)
Regulations SI 32/2005. These two pieces of legislation impose an
obligation upon the appellant to pay for the services that it enjoys
when its aeroplanes use Zimbabwean's airspace and airports. These
extant pieces of legislation and the administrative acts made under
them enjoy a presumption of validity, remain lawful and binding,
bidding obedience from all subjects of the law, inclusive of the
appellant.
ANALYSIS
[26]
The second, third, fourth and fifth grounds of appeal raise the sole
issue of whether or not the Minister had the legal standing to sue
the appellant in respect of the provision of the aeronautical weather
services. The seventh ground of appeal deals with the question of
whether he had a cause of action as against the appellant. Aligned to
it is the sixth ground, which relates to the duplication between the
claimed “Met fees” and the landing and over flight fees paid to
CAAZ. The first ground deals with the issue of prescription, while
the last ground questions the propriety of the court a
quo's
costs order.
WHETHER
OR NOT THE MINISTER HAD THE REQUISITE LOCUS
STANDI
TO SUE THE APPELLANT
[27]
Mr Moyo,
for the appellant, attacked the Minister's legal standing to claim
for the aeronautical weather services on the main basis that he
lacked a statutory basis to sue the appellant. In the alternative,
counsel contended that the Minister could not properly sue for debts
incurred before 7 February 2014, which was the date on which the
administration of the Meteorological Services Act was assigned to
him. Per
contra,
Mr Nyamakura,
for the first respondent, argued that the Minister had the requisite
legal standing to sue in the two impugned instances.
[28]
Mr Moyo's
main
argument that CAAZ and not the Minister had the sole and exclusive
locus
standi
to sue the appellant was predicated on the provisions of sections
6(1)(c) and (d), 45(1)(a) to (d) and (o) and 47(1), (2) and (3) of
the Civil Aviation Act. These sections provide the following.
“6
Functions of Authority
(1)
Subject to this Act, the functions of the Authority shall be —
(c)
to provide aviation meteorological services in relation to Zimbabwe;
(d)
to
provide aeronautical information services with respect to aerodromes,
air traffic control and facilities, meteorological services, hazards
to air navigation and such other matters relating to air traffic as
may be prescribed or as the Authority may consider appropriate;
45
Aeronautical information services and publications
(1)
The Authority shall provide aeronautical services, which shall
comprise the collection and dissemination of aeronautical information
and instructions with respect to —
(a)
aerodromes;
and
(b)
air
traffic control services and facilities; and
(c)
communication
and air navigation services and facilities; and
(d)
meteorological
services and facilities; and
(o)
fees
and charges.
47
Meteorological services
(1)
The Authority shall be responsible for providing aviation
meteorological services in Zimbabwe.
(2)
The Authority shall ensure that information concerning weather
conditions is provided to all aircraft in Zimbabwean airspace in a
timely and orderly fashion.
(3)
The Minister shall ensure that the State provides meteorological
information to the Authority on terms and conditions agreed between
the State and the Authority.”
[29]
On the other hand, Mr Nyamakura
relied on the provisions of section 3 of the State Liabilities Act
[Chapter
8:14]
and sections 4(1)(a) and (e), 6(1)-(4), 7, 8 and 11 of the
Meteorological Services Act for his contrary contention. Section 3 of
the State Liabilities Act provides that:
"3
Proceedings to be taken against Minister of department concerned
In
any action or other proceedings which are instituted by virtue of
section two,
the plaintiff, the applicant or the petitioner, as the case may be,
may make the Minister to the headship of the Ministry or department
concerned has been assigned nominal defendant or respondent:
Provided
that, where the headship of the Ministry or department concerned has
been assigned to a Vice-President, he may be made nominal defendant
or respondent.”
The
sections of the Meteorological Services Act cited by Mr Nyamakura
provide that:
“4
Functions of the Department
(1)
Subject to this Act, the functions of the Department shall be to —
(a)
construct,
establish, acquire, maintain and operate seismological and
meteorological undertakings;
(e)
provide
specific operational meteorological services to major users such as
the aviation, agriculture, energy, defence, tourism and water
resources industries;
(2)
The Department shall have the power to —
(b)
do
or cause to be done, with the approval of the Minister and the
Minister responsible for finance, either by itself or through its
agents, any of the things specified in the First Schedule.
“6
Charges, levies and fees
(1)
The Director shall have power, subject to any directions of the
Minister and in consultation with the Minister responsible for
finance, to charge and levy fees for the services specified in Part I
of the Second Schedule.
(2)
No charges or fees shall be levied for the services specified in Part
II of the Second Schedule.
(3)
The Director shall, subject to the approval of the Minister, enter
into financial arrangements with other State departments for payment
in respect of specialised services provided to them by the
Department.
(4)
The Minister, with the approval of the Minister responsible for
finance and in consultation with the Director, may by statutory
instrument prescribe the amounts of levy to be paid by persons or
associations who obtain for their own or collective use,
meteorological products and services provided by the Department.”
Part
I of the Second Schedule reads as follows:
“SECOND
SCHEDULE (Section 6)
SERVICES
OFFERED BY THE DEPARTMENT
PART
I
SERVICES
OFFERED ON A COST RECOVERY BASIS
1.
Aeronautical services to the aviation industry at all airports.
2.
Special weather and climate-related publications for specific users.”
Section
3 of the same Act creates the MSD while section 5 places the day to
day control and management of the MSD under a director, who in turn
operates under the control and direction of the Minister assigned to
administer the Act. In terms of section 7 “all
moneys received by the Department (from) the fees and
charges payable for services and facilities provided by the
Department levied in terms of section six”
fall under the auspices of the
Meteorological Services Fund, which at the material time was
regulated by a constitution drawn up in terms of section 30 of the
Audit and Exchequer Act [Chapter
22:03].
Section 8 gives the Minister overarching powers over the Director,
relating to policy which the Minister considers to be necessary in
the national interest, which the Director is obliged to obey.
Lastly, section 11 imbues the Minister with wide powers to amend the
First and Second Schedules to the Act.
[30]
In both his oral and written submissions, Mr Moyo
conceded that while the Civil Aviation Act was promulgated before the
Meteorological Services Act, both statutes were extant. Mr Nyamakura
also
conceded that the latter promulgation of the Meteorological Services
Act neither expressly nor impliedly repealed the earlier provisions
of the Civil Aviation Act that dealt with the provision of
aeronautical weather services to the aviation industry and the
concomitant levying of the requisite fees. Both counsel correctly
agreed that there exists in our law the presumption of validity of
legislation, until declared otherwise by a competent court. See
Econet
Wireless (Pvt) Ltd v Minister of Public Service & Ors
2016 (1) ZLR 1066 (S) at 1071B. Further, that our courts are required
to construe legislative provisions, be it in disparate Acts or the
same Act in conformity with each other, so as to give effect to each
provision.
[31]
It is pertinent to note that Mr Moyo
did not impugn the validity of the above cited provisions of the
Meteorological Services Act. A clear reading of those provisions
places the MSD and its director under the control and direction of
the Minister. Neither the MSD nor its director are vested with the
legal capacity to sue or be sued. Indeed, the MSD is not an
autonomous department. The position is settled in our law that a
statutory body can only sue or be sued if it is imbued with the legal
capacity to do so. See Privatization
Agency of Zimbabwe & Anor v Ukubambana Kubatana
Investments (Pvt) Ltd & Anor
SC 9/2003 at pp4 and 7.
In
casu,
had the Legislature intended the MSD to have the legal capacity to
sue or be sued it would have expressly said so, as it expressly did
in respect of CAAZ in section 4 of the Civil Aviation Act. The
very fact that the MSD is a department under the control and
direction of the Minister accords him with the legal capacity to sue
and be sued in its place. We, therefore, agree with Mr Nyamakura
firstly,
that the Minister is reposed by the Meteorological Services Act with
the statutory direct and substantial interest to sue and be sued on
behalf of the MSD. Secondly, that section 3 of the State Liabilities
Act, by making a Minister a nominal defendant or respondent in any
suit launched against his or her department, accords to him or her
the correlative power to be an applicant or plaintiff in cases such
as the present one. Thus, the fact that CAAZ could have sued the
appellant in its own right under the provisions of the Civil Aviation
Act does not detract from the power of the Minister to do so under
the Meteorological Services Act.
[32]
There is a further basis upon which Mr Moyo's
main submission may be dismissed. In its plea, the appellant made the
fatal judicial admission that CAAZ was a collecting agent of the
Minister. It correctly recognized the validity of the agreement that
was concluded between the MSD and CAAZ on 23 June 2006.
Coincidentally, at the time the agreement was consummated, the two
Acts were administered by the Minister of Transport and
Infrastructural Development. The validity of the agreement is
confirmed by the provisions of section 47(3) of the Civil Aviation
Act, which allows the Minister, on behalf of the State to execute an
agreement such as the one concluded by the MSD and CAAZ on
23 June 2006. In addition, section 6(3) of the
Meteorological Services Act, also allows the Minister to consummate
similar agreements with other statutory bodies. After all, he is
empowered in the preamble of the Act to provide “the
legal framework for the levying of commercial rates for the
Department's services to allow it to operate on a cost recovery
basis” and by section 6(4)
thereof to “by
statutory instrument prescribe the amounts of levy to be paid by
persons or associations who obtain for their own or collective use,
meteorological products and services provided by the Department”.
In
any event, in our law, a principal has the legal standing to sue or
be sued for the acts of his or her or its agent. See Ziswa
& Anor v Chadwick & Anor
SC 92/22 at p20. The main submission by the appellant that the
Minister lacks the legal standing to sue the appellant is therefore
devoid of merit.
[33]
The alternative argument that CAAZ possessed the exclusive locus
standi
to sue the appellant also lacks merit for the reasons already
adverted to in paras [31] and [32] above. It was an agent of the MSD,
a non-autonomous department without the legal capacity to sue or be
sued, which falls under the purview of the Minister. In the
circumstances of this case, CAAZ did not have the sole prerogative to
sue the appellant. The further alternative argument that the power to
sue reposed in the MSD is also devoid of merit and falls to be
dismissed for the reasons already adverted to in the preceding three
paragraphs.
[34]
The appellant also argued that the Minister lacked the locus
standi
to assume action for the claims that accrued before the
Meteorological Services Act was assigned to him on 7 February
2014. That argument overlooked two important factors. The first
related to the provisions of section 39 of the Interpretation Act. It
reads:
“39
Validity of acts done before assignment or transfer of functions
Where
a function conferred or imposed on any person by any enactment is
assigned or transferred to another person, whether in terms of this
Act or any other enactment, any statutory instrument or other
thing made or done before the date
of the assignment or transfer and in force on that date shall
be deemed to have been made or done by the person to whom the
function has been assigned or transferred, and may be amended or
repealed accordingly.”
(my emphasis)
The
acts done by the MSD at the time the relevant Act and its regulations
were assigned to the Minister of Transport and Infrastructural
Development on assignment to the Minister on 7 February 2014 were
deemed to have been performed by him. The second, is that a statutory
assignment is equivalent to a common law cession, which gives
retrospective powers of substitution to the cessionary. The argument
on the absence of locus
standi
and concomitant causa
to
the claims prior to the date of assignment also lacks merit and must
therefore fail.
[35]
The determination of the absence of a cause of action argument is
closely aligned to the decision on locus
standi.
The finding that the acts of the MSD are statutorily deemed to be the
acts of the Minister disposes of this argument. In any event, that
the Minister had the requisite cause of action was properly
articulated by the court a
quo
in its judgment on the dismissal of the appellant's application for
absolution from the instance in judgment no. HH 173/19. It correctly
held on the authority of Amler's
Precedents of Pleadings
8th
ed (2015) p352, McKerron in Law
of Delict
7th ed
p276 and Lascon
Properties (Pty) Ltd v Wadeville Investment Company (Pty) Ltd &
Anor
1997 (4) SA 578 (W) at 580G-I, that statutory breach founds a cause
of action. The
seventh ground of appeal was therefore misplaced and ought to fail.
WHETHER
THE CLAIMS PRIOR TO THE DATE OF SERVICE OF SUMMONS ON 22 AUGUST 2016
HAD PRESCRIBED
[36]
Mr Moyo
strongly
submitted that all the claims, which were made some six years prior
to the service of summons on 22 August 2014 were afflicted by
prescription in terms of section 15(c)(ii) of the Prescription
Act. Per
contra, Mr Nyamakura
argued that the claims had not prescribed as they constituted a tax,
which in terms of section 15(a)(iii) of the same Act, would only
prescribe after a period of 30 years. The court a
quo
held that the claims were in the nature of a tax and as 30 years had
not passed, had not prescribed.
[37]
What constitutes a tax was determined by this Court in Nyambirai
v National Social Security Authority & Anor, supra
and confirmed by the Constitutional Court in
Benard
Wekare v The State & Ors; Musangano Lodge (Pvt) Ltd t/a Musangano
Lodge v The State and Anor
CCZ 9/16 at p11-13. The essential elements of a tax outlined in
these two cases are the following:
“(i)
it is a compulsory and not an optional contribution,
(ii)
imposed by the legislature or other competent public authority,
(iii)
upon the public as a whole or a substantial sector thereof;
(iv)
the revenue from which is to be utilized for the public benefit and
to provide a service in the public interest.”
[38]
It is apparent from the facts of this case that the disputed fees
constitute a compulsory and not optional contribution by the aviation
industry. They were imposed by the Minister in his official capacity.
He is therefore a competent authority.
[39]
The revenue raised is, undoubtedly, utilized to provide aeronautical
weather services which are for the benefit of the public and in the
public interest to the flying public and the public as a whole. These
services guarantee the safety and protection of a vast array of
people and passengers who come into contact with the appellant's
aeroplanes from the dangers associated with their landing in,
departure from and flight over Zimbabwe. The fees therefore inure for
the benefit of the public as a whole or a specific sector of the
public. The public herein must per force consist of the passengers
and crew who fly the appellant's aeroplanes, the passengers and
crew of the other airlines who come into proximity with the
appellant's aeroplanes, airport workers and visitors and all those
who reside and work under the flight path of the appellant's
aeroplanes.
[40]
The question that has exercised the court's mind is whether the
third element of what constitutes a tax is met. The crisp question
for determination is therefore whether the Met fees were imposed
“upon
the public as a whole or a substantial sector thereof”. It
was common cause that the fees in
casu
were imposed on a maximum of 85 entities during the impugned period.
[41]
Mr
Moyo
argued that the airline industry did not constitute the public as a
whole or a substantial sector thereof. He contended that the
insignificant numbers the targeted airline industry could not
conceivably be regarded as constituting a substantial or large
portion of the public. He submitted that, the Met fees would not, for
that reason, fall into the ambit of a tax.
[42]
Per
contra,
Mr Nyamakura
contended that the phrase under consideration did not connote the
size of the public but its classification or categorization as an
identifiable or a distinctive or specific section of the public.
[43]
The context in which the third element was derived in the Nyambirai
case, supra,
was premised on legislative provisions, which targeted “all
employees or such classes of employees
as the Minister might specify
by notice in a Government Gazette”. In coming up with the third
essential element of a tax in the Nyambirai
case, supra,
this Court relied, amongst other foreign cases, on the Australian
case of Leake
v CoT (State)
(1934) 36 WALR 66 at 67 where the relevant tax target was identified
as “the
general body of subjects or citizens, as distinguished from
individual levies on individuals."
(my underlining for emphasis in both instances)
The
underlined words clearly identify the target of a tax as a group,
either of the public as a whole or a distinct or identifiable portion
of the public.
[44]
It is also noteworthy that one of the many synonyms of “substantial”
that is found in the Merriam-Webster
dictionary, Thesaurus.com
dictionary and the Collins
English Dictionary
is “being of substance”. The Collins
English Dictionary
further defines the words 'being of substance' as 'having
independent existence.' The other synonyms of the word provided in
these dictionaries are “material, consequential, distinctive,
significant, important, essential, large, considerable, essential,
and sizable”.
[45]
The definition of “substantial” provided in the Collins
English Dictionary
resonates with the tax regime in Zimbabwe. The lived reality in this
country is that Parliament
has the legislative power to impose a tax on the generality of the
public or on any distinctive section of the public. It is in this
context that the phrase “upon the public as a whole or a
substantial portion thereof” should also be construed.
The targeting is therefore not premised on the number of the
individual prospective taxpayers who constitute the group.
[46]
The submission by Mr Moyo
that the phrase “upon the public as a whole or a substantial
portion thereof” refers to the number of prospective taxpayers in
the targeted group is therefore incorrect. We agree with Mr Nyamakura
that it refers to a targeted class of prospective taxpayers. It
therefore relates to the classification of prospective taxpayers into
a specific sector.
[47]
In casu,
the airline industry falls into the category of a substantial or
specific or distinctive or identifiable sector of the public.
It therefore falls squarely into the ambit of the third essential
element of a tax.
[48]
In
the circumstances, the Met fees imposed by the Minister
constituted a tax. The finding a
quo
that it was a tax, which would prescribe after a period of 30 years,
was therefore correct. The first ground of appeal is unmeritorious
and must, therefore, fail.
[49]
Regard being had to the consultative process undertaken between the
MSD and the Airlines Operating Committee, in which the appellant was
fully represented and the subsequent agreement reached between them,
we are satisfied that the appellant clearly understood the
distinction between the Met Services invoiced by CAAZ on behalf of
the MSD and the landing and overflight fees charged by the CAAZ for
its own account. The former was for the use of the aeronautical
weather services and the latter for the use of CAAZ's
infrastructure and facilities and the local airspace. There was,
therefore, no duplication of the invoiced Met fees. The sixth ground
of appeal accordingly is devoid of merit and falls to be dismissed.
WHETHER
COSTS ON THE HIGHER SCALE WERE APPROPRIATE A
QUO
[50]
The imposition of costs is always in the discretion of a court seized
with the matter. The court a
quo
did not justify the imposition of costs on the higher scale. The
failure constitutes a misdirection. See Barros
v Chimphonda
1999 (1) ZLR 58 (S) and PG
Industries (Zimbabwe) Ltd v Mark Bvekerwa & Ors
SC 53/16 at p5. We
are therefore at large. We take the view that the issues raised a
quo
were neither frivolous nor vexatious. They did not constitute an
abuse of court process but raised important legal issues concerning
the Minister's legal standing in the light of the provisions of
both the Civil Aviation Act and the Meteorological Act, and the
determination of
whether
or not the fees constituted a tax. In our view, the suitable order
for costs a
quo
should have been on the ordinary scale. The last ground of appeal is
meritorious and must succeed.
COSTS
IN THIS COURT
[51]
In this Court, the Minister has substantially succeeded. There is no
reason why costs should not follow the result.
DISPOSITION
[52]
The following order shall issue.
1.
The appeal be and is hereby allowed in part.
2.
The judgment of the court a
quo
be and is hereby amended in para 4 to read:
“The
first defendant shall pay the plaintiff's and the second
defendant's costs of suit on the ordinary scale.”
3.
The appellant shall pay the first respondent's costs on the
ordinary scale.
MATHONSI JA:
I
agree
MUSAKWA
JA: I
agree
Kantor
and Immerman,
the appellant's legal practitioners
Chinamasa,
Mudimu & Maguranyanga,
1st
respondent's legal practitioners
Mhishi
Nkomo Legal Practice,
2nd respondent's legal practitioners
