Safaris lose trophy levy case

By Fidelis Munyoro and Rumbidzai Mashayahanya

From The Herald
July 28, 2009

The High Court has dismissed with costs an application by safari operators seeking an order restraining the Zimbabwe Tourism Authority from demanding a payment of two

percent levy on hunting trophies in designated tourist facilities.

Through the Safari Operators Association of Zimbabwe, an umbrella body of safari operators from across the country, the safari operators had sued the ZTA accusing it of "grossly prejudicing" them by demanding a levy on hunting trophies when the Parks and Wildlife Management Authority charges a similar tariff.

However, Justice Bharat Patel ruled that the safari operators, in terms of the tourism law, were liable to pay levy on trophy fees paid by tourist hunters in designated tourist facilities.

He said trophies were clearly an intrinsic and inseparable part of the hunting services and could not be extricated from the service or facility provided by operators.

Justice Patel said if a tourist succeeds in hunting an animal, he must pay the additional charge for his trophy which he would have acquired solely by dint of the facility provided by the hunting operator.

". . . 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 declarator and interdict that it seeks and this application must be dismissed with costs," said Justice Patel.

The judge, in his view, noted that access to a trophy by a hunting tourist was analogous to the items provided in so-called mini-bars in hotel rooms.

The hotel, he added, 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.

In their application, the safaris were challenging the legality of the directive by ZTA compelling its members to pay two percent levy on all hunting trophies in designated tourism facilities.

The question the court had to deal with was whether a trophy is a "facility" or not.

The safari operators were arguing that a trophy could not be described as "facility" saying this "prize derived from enjoying the facility".

But Advocate Obert Takaindisa who represented ZTA argued that a trophy fell within the contemplation of designated services and therefore a two percent levy was to be charged and remitted to the tourism body.

He argued that ZTA, in accordance with

the provisions of the Act, has a right to

charge a levy payable to them as the tourism authority.

"The first respondent is authorised to charge and collect from all designated tourist facility operators a levy of two percent on the total amount that the operators make in the conduct of their business as operators of designated facilities," he said.

Adv Takaindisa further argued that the amount payable to ZTA included the fee paid by tourists for the use of the hunting services provided on the operators’ property.

ZTA chief executive Mr Karikoga Kaseke has welcomed the court decision saying he was happy that justice has prevailed after a protracted legal wrangle that started in 2007.

"When we are enforcing the collection of the levy, it is our responsibility and duty to enforce the provisions of the Act."

"Some will recall that numerous media reports were calling us all sorts of names to an extent that some described us as unsuitable to lead ZTA, for enforcing the provisions of the Act in line with the mandate provided to us by the same Act."

Mr Kaseke said SOAZ dragged ZTA to court challenging the legality of the tourism body’s directive.

"We did not take them to court but SOAZ

did and those who decided to lead others decided to say the application was based on the legal propriety which we dismissed," said Mr Kaseke.

He said in this regard operators who were not remitting the levies they collected on behalf of ZTA were prejudicing operations.

"We never sought, we are not and will never seek two percent levy from safari operators, we levy the hunter and they just collect the levy on our behalf," he said.

Mr Kaseke said media reports had been misleading that they were required to pay a two percent levy, but instead on whatever they charged per hunter they were supposed to collect two percent on behalf of ZTA.

Advocate Happias Zhou instructed by Mr Joseph Mafusire of Scanlen and Holderness acted for SOAZ.