Published by the government of Zimbabwe
Fidelis Munyoro
3 August 2009
Harare — SAFARI operators have launched an appeal at the Supreme Court against a High Court decision compelling them to remit a two percent levy on hunting trophies to the Zimbabwe Tourism Association in designated tourist facilities.
The High Court ruled last week that the safari operators, in terms of the tourism law, were liable to pay levy on trophy fees paid by hunters in designated tourist facilities saying trophies were clearly an intrinsic and inseparable part of the hunting services or facility provided by operators
But in their appeal filed at the Supreme Court soon after judgment was released, the Safari Operators Association of Zimbabwe, an umbrella body of safari operators from across the country, are seeking to reverse the lower court's decision.
Through their lawyer Joseph Mafusire of Scanlen and Holderness, SOAZ in its grounds of appeal, is arguing that the lower court had, in its ruling, ignored existing legislation and "wrongfully and injudiciously" defined trophy to mean something intrinsically linked to "service or facility and therefore leviable".
The lower court, Mr Mafusire argues, overlooked the comprehensive definition of trophy in terms of Section 2 of the Parks and Wildlife Act (Chapter 20:14), which excludes "services rendered" or "facilities" or "amenities".
"Despite making reference to them, the learned judge in court a quo ignored the ordinary and grammatical meanings of the terms facility, facility, service . . . none of which means or can possibly embrace trophy particularly as employed in the relevant legislation," said Mr Mafusire.
In his ruling Justice Patel said tourists should pay for trophies which they would have acquired by dint of the facility provided by the hunting operator.
A hunting trophy, the judge said, constituted a facility as envisaged in the Tourism Act and its Regulations and is therefore subject to the levy.
The judge also noted that access to a trophy by a hunting tourist was analogous to the items provided in so-called mini-bars in hotel rooms.
He said the hotel charged the tourist, a fixed rate for the use of the room, including mini-bars, as part of the facilities provided by the hotel.
"The tourist is at large, should he so desires, to consume items from the mini-bar. If he does so he is required to pay an additional charge for the specific items that he has consumed. A hunting trophy, in my view, is no different," said Justice Patel.
He said to exclude hunting trophies from the service or facility provided by operators would be tantamount to pure artifice.
But Mr Mafusire, argues that while the lower court made reference to the analogous situation of the so-called mini bars in hotels, he failed to appreciate that the consumption of items in the mini-bars was charged separately to the usual facilities such as accommodation, meals and so forth.
The "trophy" is charged separately by the safari operators in much the same way that the other services are charged for in a hotel.
"The verdict of the learned judge . . . is contradictory in that if items in the mini-bar, as in the trophy situation, are intrinsically linked or inseparable from services provided by the hotel or safari operator, then their consumption would not be charged separately," Mr Mafusire argues.
The lawyer also argued the lower court judge misdirected himself when he stated that ZTA, a mere beneficiary under the Tourism Act, is primarily responsible for administering the Act, when in fact it is the Environment and Tourism Ministry to whom the administration of the Act endowed.
In the lower court, the safaris were challenging the legality of the directive by ZTA compelling its members to pay the two percent levy on all hunting trophies in designated tourism facilities.
They accused the tourism body of "grossly prejudicing" them by demanding the levy, when they were remitting a similar tariff to the Parks and Wildlife Management Authority.
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