Safari operators accuse ZTA of gross prejudice

By Fidelis Munyoro

From The Herald
July 13, 2009

Safari operators have accused the Zimbabwe Tourism Authority of "grossly prejudicing" them by demanding a levy on hunting trophies when the Parks and Wildlife Management Authority charges a similar tariff.

The dispute, which has spilled into the High Court, comes after the ZTA in 2008 demanded payment of a two percent levy on hunting trophies by all safari operators.

In terms of the Tourism Act, a two percent daily rate is charged on all services provided by safari operators and must be remitted to the ZTA.

The Safari Operators Association of Zimbabwe, an umbrella body of safari operators from across the country, is resisting the directive on the basis that operators are already remitting the same two percent levy to the Parks Authority.

The safari operators said they found it "strange" that the levy was being demanded now and yet in the 12 years since the Tourism Act became law they had never been required to pay it.

SOAZ, through their lawyer Advocate Happias Zhou instructed by Mr Joseph Mafusire of Scanlen and Holderness, has applied for a declaratory order at the High Court to stop the ZTA from receiving the money.

In their application, the safari operators requested the court to interpret the relevant Act to determine its meaning and clarify whether or not there was by law such a levy prescribed and payable to the ZTA.

Adv Zhou argued that trophies were not within the contemplation of "designate tourist facilities" for which the respective minister could in terms of the Act make regulations, including regulations to charge levies.

In Statutory Instrument 106 of 1996 the minister listed "designated tourists facilities" as accommodation, car hire, hunting tours, fishing, photographic tours, sight-seeing, canoeing, and horse riding among others.

In another Statutory Instrument a two percent levy was imposed on all such designated tourist facilities.

The list does not include a trophy.

The question the court has to deal with is whether a trophy is a "facility".

The safari operators are contending that a trophy cannot be a "facility" that is provided and that it is a "prize derived from enjoying the facility".

"A two percent levy is charged and remitted to ZTA, but this is only on the enjoyment of the facility, which is what the law requires, as opposed to the fruits of such enjoyment.

"The fact that trophy fees had not been collected for 12 years bears testimony to the understanding that it was not chargeable and remittable to ZTA, and that it was only demanded for now was quite curious," said Adv Zhou.

In response ZTA lawyer Advocate Obert Takaindisa was adamant 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.

Adv Takaindisa, argued that the levy was previously not collected due to an oversight on ZTA’s part and which they now intended to rectify. 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 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. Presiding judge Justice Bharat Patel reserved judgment to consider submissions made by both parties’ lawyers.

Published by the government of Zimbabwe

Zimbabwe: Trophy Levy - Safari Operators Go to Supreme Court
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.