Staff Reporter
THE matter in which the Gambling House Association of Namibia (GHAN) and Irmgard Fourty CC have taken the Minister of Environment, Forestry and Tourism and others to court, seeking exemption from paying gambling levies pending the shutdown of all illegal gambling houses, continued in the High Court on 11 July 2024.
The applicants took the matter to court in 2022, challenging the Gaming and Entertainment Control Act 13 of 2018 (GECA), stating that the mushrooming of illegal gambling houses gives an unfair advantage over licensed gambling houses, as they dodge paying levies and taxes and siphon away profits from authentic establishments. Thus, they are challenging the Minister of Environment to exempt them from paying taxes until illegal establishments are uprooted.
In the heads of arguments submitted on behalf of the Environment Minister, the Gambling Board, the Attorney General, and the Chairperson of the Gambling Board, Senior Counsel Vincent Maleka and Eliaser Nekwaya argued that the duty to pay a levy on gambling license holders is imposed by law—GECA itself. “The Minister’s powers are limited to the determination of the rate. The power and duty to collect the levies are vested in the Board,” they argued.
In addition, they argued that the applicants depend on a temporary court order made on 4 June 2020, in which a settlement agreement was reached between GHAN and the Minister. The agreement said that the Minister must appoint sufficient inspectors in terms of Section 42 of the 1994 Act to enforce the Act and that he may not impose any levies on any gambling house duly registered under the Act or any substituting statute until all illegal gambling houses in Namibia have either been legalized or closed, whether under existing or future legislation.
“That settlement agreement was then made, and an order was issued by the Court by consent between the parties. It is, therefore, evident from the text, context, and purpose of the settlement agreement at that time that it was a temporary dispensation while waiting for the drafting of the regulations and GECA to be put into force,” the lawyers argued.
Further, they added that significant progress has been made since the Minister appointed 36 inspectors to conduct the inspection and registration of gambling machines in all fourteen (14) regions across the country, irrespective of whether the gambling machine was licensed or unlicensed.
“From 1 February 2020 until 30 March 2020, the Directorate of Tourism and Gaming in my Ministry conducted an inspection exercise of casinos and gambling houses and the registration of gambling machines. The results of the inspection found: A total of 13,668 gambling machines were registered across all fourteen (14) regions. Out of the registered machines, only 2,451 gambling machines were licensed, while 11,217 gambling machines were not licensed. It was found that most license holders have unlicensed machines in different business types, such as shebeens, bars, cuca shops, and bottle stores, as opposed to the casinos and gambling houses under the 1994 Act,” the lawyers said.
They added that by the time of filing the replying affidavit in the counter-application, the Board reported that it had approved 605 applications for Gambling, Bookmaker, Bar, Shebeen, and Totalizator Licenses, applications for an increase in the number of gambling machines, and removals.
“When tabling the Gaming Bill, the Minister reported in Parliament that there are 260 license holders in the country, of which six are casinos. A total of 189 license holders with a combined total number of 2,266 machines are not represented by the applicants and are accordingly not before this Court. Those 189 license holders do not quarrel with the current regulatory regime. The above notwithstanding, only four license holders are complying with the provisions of GECA and the terms and conditions of their licenses, including payment of their annual license fees in terms of section 61 and annual levies in terms of section 62 of GECA. We submit that it is arbitrary and damaging to the rule of law for the applicants to seek to be exempt from the statutory scheme of GECA in circumstances where the majority of the industry players who hold licenses are complying,” they said.
