THE cement import duty which is supposed to serve as an infant industry protection measure for Namibia's only cement manufacturer, Ohorongo Cement, remains in force after a ruling which was given in the High Court in Windhoek this week.
In the latest round of a legal battle over the cement import duty, a close corporation which is importing cement into Namibia, Jack's Trading CC, did not succeed with an attempt to give effect to a previous court order in which the import duty was declared invalid.
An application by Jack's Trading for the previous court order in its favour to be put into effect while an appeal against that judgement remains pending in the Supreme Court was dismissed by Judge Dave Smuts on Monday. Judge Smuts, not pleased with the way that important information had not been provided to the court by the Minister of Finance and the Commissioner for Customs and Excise before his first judgement in the matter was given, ordered the Finance Minister and Commissioner for Customs and Excise to carry the legal costs of Jack's Trading in this latest round in the litigation about the import duty.
Judge Smuts also dismissed an application in which Ohorongo Cement asked him to rescind his previous judgement, based on an argument that it had been erroneously granted.
It was argued on behalf of Ohorongo Cement that the company should have been cited in the case as an interested and affected party, and that it had been an error to ask for the initial court order declaring the import duty invalid because at the time that was done the government notice announcing the duty had not yet been published in the Government Gazette.
Jack's Trading relied on a copy of a government notice, signed by Finance Minister Saara Kuugongelwa-Amadhila and dated July 27, for its application to have the import duty imposed by the Finance Minister with effect from July 27 declared to be of no force and effect.
Judge Smuts first heard arguments in the matter on August 15, and delivered his judgement on August 31. What emerged afterwards, and which he was not informed about with the first hearing of arguments, was that the notice in which the import duty was announced was promulgated in the Government Gazette on August 15, and that the import duty applied with effect from April 18.
In his judgement on Monday, Judge Smuts commented that the inference on the facts before him were inescapable - that the Finance Minister or Commissioner for Customs and Excise or their representatives had misled the court by not disclosing the further notice of August 15 to the court in circumstances where there was a duty on them to inform the court about it.
In view of the subsequent notice after the one signed by the minister on July 27, it would in his view not serve any purpose to grant the application to execute the court's order about the invalidity of the minister's July 27 notice, Judge Smuts added.
However, due to “the very unsatisfactory conduct” of the minister or Commissioner of Customs and Excise or their representatives in failing to disclose the publication of the August 15 notice to the court, the judge decided to order them to pay the legal costs of Jack's Trading.
The Finance Minister imposed an import duty of 60 percent on cement until 2014. In 2015, the import tariff would be lowered to 50 percent, while it would drop further to 42 percent in 2016, 24 percent in 2017, and 12 percent in 2018.
The court has been informed that Ohorongo Cement, which is providing direct employment to 316 people, has invested some N$2,25 billion in Namibia through setting up its cement manufacturing plant near Otavi, with an additional N$500 million invested in other infrastructure.
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