Administrative Law: Cases and Materials [1 ed.] 9789991642475, 9789991642468

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to the legal literature on Namibian law. It will contribute significantly to the development of Namibia’s jurisprudence. Experienced author and judge of the Namibian High Court, Dr Collins Parker discusses key principles of administrative law applicable to Namibia under the common law as developed and broadened by article 18 of the Namibian Constitution. To support propositions of law discussed in the text, he presents carefully selected extracts of judgments delivered in important cases. The book offers a rich source of judicial pronouncements as precedent that are not readily available to many students and teachers of law. The selected cases are from the superior courts in Namibia, South Africa, England, and Canada, all common law countries. There are also footnote references to cases from other common law countries like India, Zambia and Zimbabwe. Practitioners of law at the Bar or on the Bench, law researchers and other professionals in public authorities, including parastatals, private companies and other organisations, will find this book useful in the performance of their professional tasks.

approach, given the dearth of material on the subject in Namibia and avoiding heavy reliance on South African sources. Philip Boyce Wanda†, Professor, Faculty of Law, University of Namibia The field of administrative law represents the ‘engine room’ of constitutional law… Administrative law is relevant in the daily lives of most people, since the influence of public

ADMINISTRATIVE LAW

Cases and Materials

Cases and Materials

Its broad base, drawing upon Commonwealth common law jurisdictions is a welcome

ADMINISTRATIVE LAW

Administrative Law: Cases and Materials is an important and comprehensive contribution

Geo Quinot, Professor, Department of Public Law, Stellenbosch University Dr Collins Parker has been a judge of the High Court of Namibia since November 2006 with considerable experience in civil practice and civil proceedings. As a member of the Zambian Bar, he practised as an advocate of the High Court of Zambia. He was Chief: Legal Services and International Cooperation and Coordinator of the SADC Legal Sector in the Ministry of Justice, Namibia. In addition, Parker served as Judge of the Industrial Court of Eswatini and as one of the counsel for Namibia in the Case concerning Kasikili/Sedudu Island at the International Court of Justice at The Hague.

978-99916-42-46-8

Collins Parker

such as Namibia, has truly become pervasive.

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administration on everyone within modern societies governed by law under a constitution,

Collins Parker

9 789991 642468 Administrative Law: Cases and Materials, University of Namibia Press, 2019. ProQuest Ebook Central,

Administrative Law: Cases and Materials

Copyright © 2019. University of Namibia Press. All rights reserved.

Collins Parker

Administrative Law: Cases and Materials, University of Namibia Press, 2019. ProQuest Ebook Central,

Copyright © 2019. University of Namibia Press. All rights reserved.

Printed by

Administrative Law: Cases and Materials, University of Namibia Press, 2019. ProQuest Ebook Central,

CONTENTS

PREFACE ACKNOWLEDGEMENTS

ix

TABLE OF CASES – GENERAL

xi

TABLE OF CASES – SELECTED CASES TABLE OF STATUTES

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v

xxvii xxxiii

INTRODUCTION

1

1.1

What is administrative law?

1

1.2

Subject-matter of administrative law

7

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS

10

2.1

10

Introduction

2.2 Review and appeal distinguished

14

NATURE, SCOPE, PRINCIPLES AND KEY FEATURES OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS

20

3.1

Introduction

20

3.2

Scope of judicial review

21

3.3

Principles and key features of judicial review 3.3.1 Principles of ultra vires and legality 3.3.2 Discretionary power to act and duty to act 3.3.3 Rule of no fettering of discretion of administrative bodies and officials 3.3.4 Principle of locus standi 3.3.5 Finality clauses 3.3.6 Delegation, abdication and surrender of power and external dictation in exercise of power 3.3.7 Requirements of fairness and justice enjoin administrative bodies and officials to give reasons for their administrative actions 3.3.8 No onus on administrative bodies and officials to justify their administrative actions

42 42 49 68 76 90

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90 103 115

GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS

118

4.1

118

4.2 Common-law grounds and constitutional grounds of judicial review of administrative action by administrative bodies and officials

120

KEY ASPECTS IN PROCEEDINGS CONCERNING THE REMEDY OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS

219

5.1

Procedure in terms of Rules of the High Court

219

5.2

Proof of locus standi

232

5.3

Delay in instituting motion proceedings of judicial review of administrative action by administrative bodies and officials 5.3.1 Absence of a statutory time limit within which to institute judicial review proceedings 5.3.2 Existence of a statutory time limit within which to institute judicial review proceedings

5.4

243 243 259

Peremptory for applicant to join and cite correct administrative body or official whose decision applicant attacks by judicial review

274

Record of proceedings required for instituting proceedings in judicial review of administrative action

278

5.6

Discovery and inspection of documents in judicial review proceedings

288

5.7

Doctrine of exhaustion of statutory domestic remedies

295

5.8

Costs in proceedings concerning judicial review of administrative action by administrative bodies and officials

311

CONSEQUENCES OF, AND REMEDIES FOR, UNLAWFUL AND INVALID ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS

317

5.5

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Introductory remarks

6.1

Consequences of unlawful and invalid administrative action by administrative bodies and officials

317

6.2 Remedies for unlawful and invalid administrative action 6.2.1 Setting aside administrative action or setting aside administrative action and correcting it 6.2.2 Declaration 6.2.3 Interdict

333 367 384

BIBLIOGRAPHY

431

INDEX

435

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329

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P R E FA C E The book provides a comprehensive survey of the general principles of administrative law. It also provides an exposition of the general principles that Article 18 of the Namibian Constitution has developed and broadened, the key features that flow from those principles, and the scope of administrative law. It reiterates the principle that the subject-matter of administrative law concerns the role of courts in controlling the exercise of governmental power by administrative bodies and officials (ie public authorities) in the form of administrative action. The field of administrative law has been expanding at a great rate in recent years. For Namibia and other constitutional democracies, administrative law holds a pivotal position in constitutional and democratic governance. This is the case not least because the pursuit of administrative law offers a practical and meaningful realisation of the notion of the rule of law, which is applied in the Namibian Constitution and other democratic constitutions. The discussion of judicial review of the administrative action by administrative bodies and officials occupies the greater part of this book. The reason for this is that judicial review of such administrative action is central to judicial control of governmental power within the contextual framework of the rule of law, which is the subject-matter of administrative law. I have structured the contents of the book in this way: each chapter is divided into numbered sections, and in each such section I have treated the principles of administrative law and key features that flow from the principles in the Text sections (Part A) and relevant precedent in cases within the Cases sections (Part B). Part A (Text) therefore contains discussions on the relevant principles of administrative law under the common law and, with regard to Namibia, under the common law as developed and broadened by art 18 of the Namibian Constitution regarding judicial review of administrative action by administrative bodies and officials. The terms ‘public authorities’, ‘administrative bodies’ and ‘officials’ are used interchangeably where the context allows it. Part B (Cases) contains carefully selected extracts from judicial pronouncements in judgments delivered in important cases that constitute judicial authority or precedent.

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A DM I N IST R AT I V E L AW: C A SE S A N D M AT E R I A L S

Chapter 1 is the introductory chapter and therefore no extracts of cases are used in it; it therefore consists of ‘Part A: Text’ only. The cases that are referred to in this chapter as precedent are cited in the footnotes. The cases are numbered consecutively from [1] (in chapter 2) to [63] (in chapter 6). The first case [1] is in chapter 2, because it is in this chapter that the full treatment of administrative-law principles begins. The selected cases in Part B of chapters 2 to 6 support the propositions of law discussed in the Text sections. I have gathered the selected cases from judgments of the High Court of Namibia and the Supreme Court of Namibia and comparable superior courts of other common-law countries, namely:

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(a) South Africa [Divisions of the Supreme Court (now High Courts) and the Appellate Division (now the Supreme Court of Appeal]; (b) England [County Courts, Court of Appeal, House of Lords (now the Supreme Court of the United Kingdom)]; (c) the Commonwealth (the Privy Council), and (d) Canada (Provincial Supreme Courts, the Federal Court of Appeal and the Supreme Court of Canada). The selected cases show readers not only what is decided but also the manner in which the judicial decisions of the superior courts are reached. I have provided notes to the cases; but my own views are not intended to intrude on the judicial pronouncements, particularly in a country where the common-law principle of stare decisis (precedent) is an unbending constitutional precept so far as Supreme Court decisions are concerned. Indeed, the notes are intended to assist the reader in distilling the facts, the issue or the issues the court dealt with, the application of the law to the particular issue or issues, and the reasoning and decision or decisions of the court in question. The book accordingly combines the text system and the casebook system in a complementary way that contributes to its clarity. It offers invaluable assistance by making available to the reader not only a large number of leading cases containing judicial pronouncements (Part B) – as precedent – but also a treatment of the principles of law for which the cases have been selected as precedent (Part A). A unique and beneficial feature of the book is that the reader has both the principles of administrative law and the relevant illustrative cases in one volume – the reader wins double ‘tote’.

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PR E FACE

Most of the cases are not easily or readily available to many students and teachers of law, law researchers and practitioners of law at the Bar and on the Bench; nor are they to senior public servants and senior management staff of private-sector entities who apply administrative law in the performance of their professional tasks. For this reason, the book will be greatly beneficial to the private sector, too, benefitting both in-house lawyers and the senior management staff of such entities. One reason is that private-sector entities occasionally approach the government for business licences and permits and for immigration permits and visas. Another is that some private-sector entities bid for tenders to supply goods and services to the government. Some of these entities are involved in public–private partnership arrangements concluded to carry out public functions and provide public services. To date, three or so scholarly books containing cases and materials on administrative law have been published in common-law countries in the SADC sub-region. The present book is an addition to the list, but as far as Namibia is concerned it is the only one relevant to the country’s legal regime. And none of the other texts has the aforementioned distinguishing feature: a comprehensive text on principles and cases. Moreover, the book deals with certain crucial and peremptory aspects of procedure in the institution of motion proceedings for the remedy of judicial review in terms of the Rules of the High Court of Namibia. Namibia shares these rules with other common-law countries in the sub-region, in particular Botswana, Kingdom of eSwatini, Lesotho, South Africa and Zimbabwe; however, there are aspects that are, of course, peculiar to Namibia. For instance, in Namibia’s High Court rules, the terms ‘administrative bodies’ and ‘administrative officials’ provided in art 18 of the Namibian Constitution have replaced such terms as ‘boards’, ‘officers’ and ‘public authorities’. Naturally, these terms are generally synonymous. In sum, both lawyers and those who are studying to become lawyers will find in the book a most useful compendium. In addition, it will be both interesting and useful to those who are neither lawyers nor students of law but who, for all manner of professional or official reasons, have an interest in administrative law.

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AC K N OW L E D G E M E N T S The author and publishers gratefully acknowledge the kind permission extended by the authors and publishers of the law reports and books indicated here to reproduce and reprint extracts from them: •

• •

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•

Appeal Cases and King’s Bench and Queen’s Bench Divisions of the Law Reports, by kind permission of the Incorporated Council of Law Reports for England and Wales. Dominion Law Reports, by kind permission of Thomson Reuters Canada Ltd. All England Reports, by kind permission of RELX (UK) Limited, trading as LexisNexis. Namibian Law Reports, the South African Law Reports, an extract from Lawrence Baxter, Administrative Law (1984), and an extract from the South African Law Journal (SALJ), by kind permission of Juta and Company (Pty) Ltd, South Africa.

I have also received a great deal of assistance from the teaching materials of Professor Leo D Barry, Administrative Law: Cases and Materials, Dalhousie Law School, Dalhousie University, Canada. As my supervising Professor, Professor Barry greatly deepened my interest in, and knowledge of, administrative law. I thank Mrs Parker for going beyond her conjugal duties to type the manuscript. Above all, I am immeasurably grateful to UNAM Press for publishing the book; otherwise, I would have been like the farmer who ploughs their field by turning it in their mind.

COLLINS PARKER August 2018

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TA BL E OF C A SE S – GENER AL

Abbott v Sullivan [1952] 1 KB 189 1; All ER 226 Adfin (Pty) Ltd v Durable Engineering Works (Pty) Ltd 1991 (2) SA 366 (C) Administrator, Natal, & Another v Sibiya & Another 1992 (4) SA 532 (A) Administrator, Transvaal & Others v Traub & Others 1989 (4) SA 731 (A) Administrator Transvaal & Others v Zenzile & Others 1991 (1) SA 21 (A) African Realty Trust Ltd v Johannesburg Municipality 1906 TH 179 A-G v Ryan [1980] AC 718 (PC) A-G (Alta) et al v Huggard Assets Ltd and A-G (Can) [1953] 3 DLR 225 Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban & Others 1986 (2) SA 663 (A) AK Gopalan v State of India AIR 1950 SC 27 Alberts v Pretorius 1924 TPD 760 Alexander v Minister of Justice 2009 (2) NR 712 (HC) Alison v Mears 1946 WLD 265 Allinson v General Council Medical Education and Registration [1894] 1 QB 750 Allpay Consolidated Investment Holdings (Pty) Ltd & Others v CEO, South African Social Security Agency & Others 2013 (4) SA 557 (SCA) Amupanda & Others v Swapo Party of Namibia (A215/2015) [2016] NAHCMD 126 (22 April 2016) Copyright © 2019. University of Namibia Press. All rights reserved.

Andrews & Others v Mitchell [1905] AC 78 (HL) Anisminic v Foreign Compensation Commission [1969] 2 AC 147 (HL) Annamunthodo v Oilfields Workers’ Trade Union [1961] AC 945 (PC) Aonin Fishing (Pty) Ltd & Another v Minister of Fisheries and Marine Resources 1998 NR 147 (HC) Arandis Power (Pty) Ltd v The President of the Republic of Namibia (A 26/2016) [2016] NAHCMD 194 (7 July 2016) Ashbridge Investments Ltd v Minister of Housing and Local Government (1965) 1 WLR 130 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 (CA) Attorney-General v Albany Hotel Co [1896] 2 Ch 696 Attorney-General v Cockermouth Local Board [1874] LR 18 Eq 172 Attorney-General v Oxford, Worcester and Wolverhampton Railway Co [1854] 2 WR 330 Attorney-General v Thomas D’Arcy Ryan [1980] AC 143 (PC)

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Attorney-General, Eastern Cape v Blom & Others 1988 (4) SA 645 (A) Attorney-General for NSW, ex al Chopin v North Sydney Municipal Council [1973] 1 NSW LR 186 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd 1965 (4) SA 628 (A) Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC) Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 (HL) Baeck and Co SA (Pty) Ltd v Van Zummeren & Another 1982 (2) SA 112 (W) Bagg’s case [1615] 11 Co Rep 93b Bagnall v Colonial Government 1907 (24) SC 470 Barkhuizen v Napier 2007 (5) SA 323 (CC) Barnard v National Dock Labour Board [1953] 2 QB 18 (CA) Barnett & Others v Minister of Land Affairs & Others 2007 (6) SA 313 (SCA) Barraclough v Brown [1897] AC 615 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) Beaufort West Club v Beaufort West Licensing Court & Others 1928 CPD 317 Bel Porto School Governing Body & Others v Premier, Western Cape & Another 2002 (3) SA 265 (CC) Bengwenyama Minerals (Pty) Ltd & Others v Genorah Resources (Pty) Ltd & Others 2011 (4) SA 113 (CC); 2011 (3) BCLR 229 (CC) Bindura Town Management Board v Desai & Co 1953 (1) SA 358 (AD) Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355; [1926] All ER Rep Ext 714 Black Range Mining (Pty) Ltd v The Minister of Mines and Energy NO & Others Case No A 305/2009 Copyright © 2019. University of Namibia Press. All rights reserved.

Board of Education v Rice [1911] AC 179 (HL) Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) Bozzoli & Another v Station Commander, John Vorster Square, Johannesburg 1972 (3) SA 934 (W) Breen v Amalgamated Engineering Union (now Amalgamated Engineering and Foundry Workers Union) & Others [1971] 1 All ER 1148 (CA) Brisley v Drotsky 2002 (4) SA 1 (SCA) Broadway Mansions (Pty) Ltd v Pretoria City Council 1955 (1) SA 517 (AD) BTR Industries South Africa (Pty) Ltd & Others v Metal and Allied Workers’ Union & Another 1992 (3) SA 673 (A) Burnham v Neumeyer 1917 TPD 630

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TA BL E OF C A SE S – GE N E R A L

Cabinet for the Interim Government of South West Africa v Bessinger & Others 1989 (1) SA 618 (SWA) Cakijana & Others (1908) 29 NLR 193 Cape Provincial Division in Mönnig & Others v Council of Review & Others 1989 (4) SA 866 (C) Cardinal v Director of Kent Institution [1985] 2 SCR 643 Castel NO v Metal & Allied Workers Union 1987 (4) SA 795 (A) Chairperson, Council of the Municipality of Windhoek & Others v Roland & Others 2014 (1) NR 247 (SC) Chairperson of the Immigration Selection Board v Frank 2001 NR 107 (SC) Chairperson, Standing Tender Committee & Others v JFE Sapele Electronics (Pty) Ltd & Others 2008 (2) SA 638 (SCA) Chandra v Minister of Immigration [1978] 2 NZLR 559 Chappelle v The King [1904] AC 127 Chico/Octagon Joint Venture Africa v Roads Authority (HC-MD-CIV-MOT-GEN-2016/000210) [2016] NAHCMD 385 (8 December 2016) Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 (HL) China State Construction Engineering Corporation (South Africa) (Pty) Ltd v Pro Joinery CC 2000 NR 120 (HC) Christian v Metropolitan Life Namibia Retirement Annuity Fund & Others 2006 (2) NR 687 (HC) Christian v Metropolitan Life Namibia Retirement Annuity Fund & Others 2008 (2) NR 753 (SC) Coetser v Henning & Ente NO 1926 TPD 401 Coetzeestrom Estate and GM Co v Registrar of Deeds 1902 TS 216 Coin Security Group (Pty) Ltd v Smith NO & Others 1992 (3) SA 333 (A) Colpitts v Australian Telecommunications Commission & Others 70 ALR 564

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Commissioners of Crown Lands v Page [1960] 2 QB 274 (CA); [1960] 2 All ER 726 (CA) Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369 Compania Romana de Pescuit (SA) v Rosteve Fishing 2002 NR 297 (HC) Congress of Democrats & Others v Electoral Commission 2005 NR 44 (HC) Congreve v Home Office [1976] 1 All ER 697; [1976] QB 629 Cooper v The Wandsworth Board of Works (1863) 14 CB NS 180 Cooper v Wilson [1937] 2 KB 309 (CA) Coopers & Lybrand & Others v Bryant 1995 (3) SA 761 (A) Council of Civil Service Unions & Others v Minister for the Civil Service [1984] 3 All ER 935 (HL) Cronje v Municipal Council of Mariental 2004 (4) NLLP 129 Crossfield & Son Ltd v Crystallizers Ltd 1925 WLD 216 Cunningham v Cole & Others (1982–83) 44 ALR 334, (1985) 59 ALJ 33 (Australia)

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D & DH Fraser Ltd v Waller 1916 AD 494 Dalrymple v Colonial Treasurer 1910 TS 372 Davies v Chairman, Committee of the JSE 1991 (4) SA 43 (A) Dawkins v Antrobus [1881] 17 ChD 615 (CA) Dell v Town Council of Cape Town (1879) 9 Buch 2 Demorest v Midland Railway Co (1883) 10 PR (Ontario) 82 Denman (JL) & Co Ltd v Westminster Corporation [1906] 1 Ch 464 (Ch) DFE Properties Number One (Pty) Ltd v DFE Properties Number Two CC (Case No A 332/2011) [2012] Dimes v Grand Junction Canal [1852] 3 HLC 759 Director of Education, Transvaal v McCagie & Others 1918 AD 616 Director of Hospital Services v Ministry 1979 (1) SA 726 (A) Disciplinary Committee for Legal Practitioners v Makando (A216/2008, A370/2008) [2011] NAHC 311 (18 October 2011) Disposable Medical Products (Pty) Ltd v Tender Board of Namibia & Others 1997 NR 129 (HC) Dlamini & Another v Mavi & Others 1982 (2) SA 490 (W) Doe Dem Murray, Lord Bishop of Rochester v Bridges (1831) 1 B & Ad 847 Donoghue v Stevenson [1932] AC 562 Dowty Boulton Paul Ltd v Wolverhampton Corporation [1971] 2 All ER 277 (Ch) Driver Salesmen v Board of Industrial Relations (1967) 61 WWR (NS) 484 Dumah v Blom, NO and the Klerksdorp Municipality 1950 (1) SA 274 (T) Durayappah v Fernando [1967] 2 AC 337 (Privy Council) Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48; [1956] AC 14 Copyright © 2019. University of Namibia Press. All rights reserved.

Eilo & Another v Permanent Secretary of Education & Others 2008 (2) NR 532 (LC) Electoral Commission of Namibia v Registrar, High Court of Namibia (A322/2015) [2016] NAHCMD 293 (29 September 2016) Ellen Louw v The Chairperson, District Labour Court and J Snyman & Partners (Namibia) (Pty) Ltd Case No LCA 27/1988 Ellis v Desai 1909 TS 576 Ellis v Dubowski [1921] 3 KB 621 Elwood v Belfast Corp (1923) 57 IrLT 138 Engels v Allied Chemical Manufacturers (Pty) Ltd & Another 1992 NR 372 (HC) Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) & Another 1999 (1) SA 104 (SCA) Eskom Holdings Ltd & Another v New Reclamation Group (Pty) Ltd 2009 (4) SA 628 (SCA)

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TA BL E OF C A SE S – GE N E R A L

Estate Amod Jeewa v Kharwa 1911 NPD 371 Everett v Minister of the Interior 1981 (2) SA 453 (C) Ex parte Nell 1963 (1) SA 754 (A) Fadi Ayoub v The Ministry of Justice & Others Case No A 82/2012 Federal Convention of Namibia v Speaker National Assembly of Namibia & Others 1991 NR 69 (HC); 1994 (1) SA 177 (NmH) Federated Trust Ltd v Botha 1978 (3) SA 645 (A) Fellner v Minister of the Interior 1954 (4) SA 523 (A) Findlay v Secretary of State for the Home Department & Other Appeals [1984] 3 All ER 801 (HL) Fisher v Keane (1879) 11 ChD 353 Four Three Five Development Companies (Pty) Ltd v Namibia Airports Company & Others 2017 NR (1) 142 (HC) Francis v Yiewsley and West Drayton Urban District Council [1958] 1 QB 478 Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC) Frankel v Winnipeg (1912) 8 DLR 219; 23 Man R 296 3 WWR 405 Franklin v Minister of Town and Country Planning [1948] AC 87 (HL) Furnell v Whangarei High School [1973] AC 660 Ganes & Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) Golube v Oosthuizen 1955 (3) SA 1 (T) Gool v Minister of Justice & Another 1955 (2) SA 682 (C) Government of the Republic of Namibia v Cultura 2000 1993 NR 328 (SC) Government of the Republic of Namibia v Sikunda 2002 NR 203 (SC) Copyright © 2019. University of Namibia Press. All rights reserved.

Government of the Self-Governing Territory of Kwazulu v Mahlangu 1994 (1) SA 626 (T) Greyling v Estate Pretorius 1947 (3) SA 514 (W) Guaranty Trust Co of New York v Hannay & Co [1915] WN 38, affirmed in CA [1915] 2 KB 536 Gurirab v Minister of Home Affairs and Immigration & Another 2016 (1) NR 37 (HC) Haindongo Shikwetepo v Khomas Regional Council Case No A364/2008 Hamilton v Secretary of State for Scotland 1972 SLT 233 Hanson v Radcliff Urban District Council [1922] 2 Ch 490 Harman v Butt [1944] KB 491 Harry Nkumbula v The Attorney-General (1972) ZR 204 (CA) Hatton v County of Peterborough (1918) 15 OWN 224 Hill v Tothill [1936] WN 126

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Hillman Bros (West Rand) (Pty) Ltd v Van den Heuvel 1937 WLD 41 Hira & Another v Booysen & Another 1992 (4) SA 69 (AD); [1992] 2 All SA 344 (A) HN & Others v Government of the Republic of Namibia 2009 (2) NR 752 (HC) Hocken v Union Trawling Company 1959 (2) SA 250 (N) Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade [1975] AC 295 (HL) Hoveka NO & Others v The Master & Another 2006 (1) NR 147 (HC) HTV Ltd v Price Commission [1976] ICR 170 Hughes et al v Henderson et al (1964) 32 DLR (2d) 742 (Manitoba QB) Immanuel v Minister of Home Affairs & Others 2006 (2) NR 687 (HC) Immigration Selection Board v Frank 2001 NR 107 (SC) Incorporated Law Society v Bukes 1910 TS 150 In re Solicitor [1928] 72 Sol Jo 368 (CA) In re Solicitor [1945] 2 All ER 545 (CA) Inspector General of the Namibia Police & Another v Dausab-Tjiueza 2015 (3) NR 720 (HC) International University of Management v Torbitt & Others 2015 (3) NR 698 (LC) IRC v National of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93; [1982] AC 617 Jabaar & Another v Minister of Interior 1958 (4) SA 107 (T) Jacob Alexander v The Minister of Home Affairs & Others Case No A155/2009 Jacob Alexander v Minister of Justice & Others 2010 (1) NR 328 (SC) Janse van Rensburg v Wilderness Air Namibia (Pty) Ltd 2016 (2) NR 554 (SC) Jockey Club of South Africa v Forbes 1993 (1) SA 649 (SCA)

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Johannesburg City Council v Sohn 1933 TPD 8 Johannesburg City Council v The Administrator of Transvaal & Another (1) 1970 (2) SA 89 (T) Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council 1903 TS 111 John v Rees [1970] Ch 345 Kahuure & Another in re Nguvauva v Minister of Regional and Local Government and Housing and Rural Development & Others 2013 (4) NR 932 (SC) Kameya v The Chief of Namibia Defence Force (A 66/2015) [2015] NAHCMD 92 (16 April 2015) Katjivena v Prime Minister of the Republic of Namibia 2016 (3) NR 903 (HC) Katofa v Administrator-General of Southwest Africa & Another 1985 (4) SA 211 (SWA) Kauaaka & Others v St Phillips Faith Healing Church 2007 (1) NR 276 (HC) Kaulinge v Minister of Health and Social Services 2006 (1) NR 377 (HC) Kettenbach Farms Ltd v Hinkey [1937] 3 WWR 703

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TA BL E OF C A SE S – GE N E R A L

Keya v Chief of Defence Force & Others 2013 (3) NR 770 (SC) Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay & Others 2011 (2) NR 437 (HC) Klymchuk v Cowan (1964) 45 DLR (2d) 587 ((QB) of Manitoba) Kouda v Government of Malaya [1952] AC 322 Koyabe & Others v Minister of Home Affairs & Others 2010 (4) SA 327 (CC) Kruger v Transnamib Ltd (Air Namibia) & Others 1996 NR 168 (SC) Kruse v Johnson [1898] 2 QB 91 Kuiiri & Another v Kandjoze & Others 2007 (2) NR 749 (HC) Kuiiri v Kandjoze 2009 (2) NR 447 (SC) Laker Airways Ltd v Deptment of Trade [1977] 2 All ER 182; [1977] QB 643 Langeni & Others v Minister of Health and Welfare & Others 1988 (4) SA 93 (W) Lapointe v L’Association de Bienfaisance et de Retraite de la Police de Montreal [1906] AC 535 Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 Leech v Parkhurst Prison Deputy Governor; Prevot v Long Larton Prison Deputy Governor [1988] 1 All ER 485 (HL) Leeson v General Council of Medical Education and Registration (1890) 43 ChD 366 Lever Finance Ltd v Westminster (City) London Borough Council [1970] 3 All ER 496; [1971] 1 QB 222 Lewin v Lewin 1949 (4) SA 241 (T) Lewis & Ross v Litnaitzky & Meyerson 1922 TS 128

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LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v LF Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) Lion Match Co Ltd v Paper Printing Wood & Allied Workers Union & Others 2001 (4) SA 149 (SCA) Lisse v The Minister of Health and Social Services 2004 NR 107 (HC) Livestock and Meat Industries Control Board v Garda 1961 (1) SA 342 (A) Lloyd & Others v McMahon [1987] 1 All ER 1118 (HL) Local Government Board v Arlidge [1915] AC 120 (HL) Local Road Transportation Board & Another v Durban City Council & Another 1965 (1) SA 586 (A) Logbro Properties CC v Bedderson NO & Others 2003 (2) SA 460 (SCA); [2003] 1 All SA 424 Lunt v University of Cape Town & Another 1989 (2) SA 438 (C)

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McInnes v Onslow Fane & Another [1978] 3 All ER 211 (Ch) McKerracher v Manufacturers Life Insurance Co and Board of Review [1941] 1 WWR 509 McNabb v United States 318 US 332 (1943) Maharaj v Chairman, Liquor Board 1997 (1) SA 273 (N); (2) BCLR 248 (N) Mahomed v Padayachy 1948 (1) SA 772 (A) Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C); 1973 (4) SA 136 (E) Martineau v Matsqui Institution Disciplinary Board [1980] 1 SCR 602 Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board, & Others 2001 (12) BCLR 1239 (C) Masetlha v President of the Republic of South Africa & another 2008 (1) SA 566 (CC) Mashozhera v The Chairperson of the Immigration Selection Board (A 207/2015) [2016] NAHCMD 38 (25 February 2016) Mbangi & Others v Dobonsville City Council 1991 (2) SA 330 (W) Mbuku v Mdinwa 1982 (1) SA 219 (TkS) MEC for Health, EC, & Another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute 2014 (3) SA 219 (SCA) Messenger of the Magistrate’s Court, Durban v Pillay 1952 (3) SA 678 (A) Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304 (CA); [1969] 1 QB 557 (CA) Meyer v Law Society, Transvaal 1978 (2) SA 209 (T) Minister of Defence and Military Veterans v Motau & Others 2014 (5) SA 69 (CC) Minister of Education v Free Namibian Caterers 2013 (4) NR 1061 (SC) Minister of Environmental Affairs and Tourism & Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA)

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Minister of Environmental Affairs and Tourism & Others v Phambili Fisheries (Pty) Ltd 2003 (6) SA 407 (SCA) Minister of Finance v Merlus Seafood Processors (Pty) Ltd 2016 (4) NR 1047 (SC) Minister of Health and Social Services v Lisse 2008 (2) NR 739 (SC) Minister of Home Affairs v Watchenuka 2004 (4) SA326 (SCA) Minister of Mines and Energy & Others v Petroneft International & Others 2012 (2) NR 781 (SC) Mnisi v Chauke & Others; Chauke v Provincial Secretary, Transvaal, & Others 1994 (4) SA 715 (T) Mokoena & Others v Administrator, Transvaal 1988 (4) SA 912 (W) Molteno Bros v South African Railways 1936 AD 321 Momoniat v Minister of Law and Order & Others; Naidoo & Others v Minister of Law and Order & Others 1986 (2) SA 264 (W) More & Another v Springs Town Council 1965 (3) SA 666 (W) Mostert v Minister of Justice 2002 NR 76 (HC) Mostert v The Minister of Justice 2003 NR 11 (SC)

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Motaung v Mukubela & Another NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O) Mukata v Appolus 2015 (3) NR 695 (HC) Mulligan v Mulligan 1925 WLD 178 Municipal Council of Gobabis v Smith 2015 (1) NR 299 (HC) MW v Minister of Home Affairs 2014 (4) NR 1108 (HC) Mweuhanga v Cabinet of the Interim Government of South West Africa 1989 (1) SA 976 (SWA) Namibia Financial Exchange (Pty) Ltd v The Chief Executive Officer of the Namibia Institutions Supervisory Authority and Registrar of Stock Exchanges 2017 NR (1) 142 (HC) Namibia Grape Growers and Exporters Association & Others v The Ministry of Mines and Energy & Others 2004 NR 194 (SC) Namibian Competition Commission & Another v Wal-Mart Stores Incorporated 2012 (1) NR 69 (SC) National Board (Pretoria) (Pty) Ltd v Swanepoel 1975 (1) SA 904 (W) National Union of Namibian Workers v Naholo 2006 (2) NR 659 (HC) New Era Investment (Pty) Ltd v Roads Authority & Others 2014 (2) NR 596 (HC) Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 SCR 623 Newmarket Fisheries and Provision Stores, Ltd v Holtzkamp 1926 NPD 403 Nguvauva v Minister of Regional and Local Government 2015 (1) NR 220 (HC) Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police [1979] 1 SCR 311 Nienaber v Stuckey 1946 AD 1049 Nkisimane & Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A)

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Noble v Township of Esquesing (1917) 41 DLR 99, 41 OLR 400 Oberholster v Wolfaardt & Others 2010 (1) NR 293 (HC) Ohlthaver & List Finance and Trading Corporation Ltd & Others v Minister of Regional and Local Government and Housing & Others 1996 NR 213 (SC) Old St Boniface Residents Assn Inc v Winnipeg (City) [1990] 3 SCR 1170 Olifantsvlei Township Ltd v Group Areas Development Board 1964 (3) SA 611 (T) Oosterhuis v Lazerson’s Trustee & Another 1916 TS 561 Open Learning Group v Secretary, Ministry of Finance 2006 (1) NR 275 (HC) O’Reilly v Mackman & Others and Other Cases [1982] 3 All ER 1124 (HL) Ormonde v Buirski, Herbstein & Jacobson 1933 CPD 413 Otjozondu Mining v Purity Manganese 2011 (1) NR 298 (HC)

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Otjozondu Mining (Pty) Ltd v Minister of Mines and Energy & Another 2007 (2) NR 469 (HC) Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 22 (SCA) Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL) Pasmore v Oswaldtwistle Urban Council [1898] AC 387 Patel v Witbank Town Council 1931 TPD 284 Patz v Greene and Co 1907 TS 47 Permanent Secretary of the Ministry of Finance & Others v Ward 2009 (1) NR 314 (SC) Personnel Services (Pty) Ltd v the Government of the Republic of Namibia & Others Case No A13/2008 (HC) Peter v Jacobs (A 100-2013) [2016] NAHCMD 11 (28 January 2016) Pietermaritzburg City Council v Local Road Transportation Board 1959 (2) SA 758 (N) Pieters v Administrator van Suidwes-Africa en ’n Ander 1972 (2) SA 220 (SWA) Pillay v Krishna 1946 AD 948 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) Ponisamy & Another v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A) Post Office v Estuary Radio Ltd [1967] 1 WLR 847; [1968] 2 QB 740 Potgietersrust Hospital Board v Simons 1943 TPD 269 Premier Construction CC v Chairperson of the Tender Committee 2014 (4) NR 1002 (HC) President of the Republic of Namibia & Others v Anhui Foreign Economic Construction Group Corporation Ltd & Others 2017 (2) NR 340 (SC) President of the Republic of South Africa & Others v South African Rugby Football Union & Others 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059

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Preston v Inland Revenue Commissioners [1985] 2 All ER 327 (HL) Pretoria City Council v Meerlust Investments (Pty) Ltd 1962 (1) SA 321 (A) Pretoria North Town Council v A1 Electric Ice-Cream Factory (Pty) Ltd 1953 (3) SA 1 (A) Principal Immigration Officer and Minister of Interior v Naravansamy 1916 TPD 274 Pyx Granite Co Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1 (HL) Pyx Granite Ltd v Ministry of Housing and Local Government [1960] AC 260 (HL) R v Barnesley Metropolitan Borough Council, ex parte Hook [1976] 3 All ER 452 R v Bristol Corporation, ex parte Hendy [1974] 1 WLR R v Burnley Justices (1916) 85 LJ (KB) 1565 R v Chondi & Another 1933 OPD 267 R v Dunshealth, ex parte Meredith [1951] 1 KB 127

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R v Environment Secretary, ex parte Ostler [1977] QB 122 (CA) R v Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417 (CA); [1970] 2 All ER 528 (CA) R v Hammersmith and Fulham London Borough Council, ex parte Beddowes [1987] 1 KB 1050 (CA); [1987] 1 All ER 369 R v Huttington District Council, ex parte Cowan [1984] 1 WLR 501 R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1928] AC 617 (HL) R and McDonell v Leong Ba Chai [1954] 1 DLR 401 R v Midland Ry Co (1887) 19 QBD 540 R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338 R v Port of London Authority ex parte Kynoch, Ltd [1919] 1 KB 176 R v Secretary of State for the Environment, ex parte Brent London Borough Council & Others [1983] 3 All ER 321 R v Secretary of State for the Home Department, ex parte Santillo [1981] QB 778 R v Secretary of State for the Home Department, ex parte Ruddock & Others [1987] 2 All ER 518 R v Southampton Port Commissioners (1870) LR 4 HL 339 R v University of Cambridge (1723) 1 Str 557 Radebe v Government of the Republic of South Africa & Others 1995 (3) SA 787 (N) Rally for Democracy and Progress & Others v Electoral Commission of Namibia & Others 2009 (2) NR 793 (HC) Rally for Democracy and Progress v Electoral Commission 2013 (2) NR 390 (HC) Rapholo v State President & Others 1993 (1) SA 680 (T) Ras Behari Lal v King-Emperor (1933) 60 IA 354

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Re A Solicitor 1928 72 Sol Jo 368 (CA) Re A Solicitor [1945] 2 All ER 445 (CA) Re Central Canada Potash Co Ltd, et al v Minister of Mineral Resources of Saskatchewan (1972) 32 DLR (3d) 107 (Court of Appeal) Re Hamilton Dairies Ltd and Town of Dundas (1927) 33 OWN 113 Re HK (an infant) [1967] 2 QB 617 Re Hopedale Developments Ltd and Town of Oakville (1964) 47 DLR (2d) 482 Re Johnston and Committee on Works of Halifax City Council (1962) 46 MPR 345 Re Metro Oil Ltd & Toronto [1935] 2 DLR 208 [affirmed [1935] 3 DLR 303 (Fed CA)] Re North Coast Air Services Ltd v Air Transport Committee of the Canadian Transport Commission (1973) 32 DLR (3d) 695 (Fed CA) Re Pergamon Press Ltd [1971] Ch 388 Re Provincial Board of Health for Ontario and Toronto (1920) 51 DLR 444, 46 OLR 587

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Re Thorold Public Utilities Commission and Thorold [1927] 3 DLR 182 Re Weden [1969] 2 DLR 74 Re West Missouri Continuation School (1912) 1 DLR 252 [affirmed DLR 195] Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 Regina v Brixton Income Tax Commissioners [1913] 29 Times Report LR 712 Regina v Guardians of Lewisham Union [1897] 1 QB 498 Regina v London County Council [1892] 1 QB 190 Regional Magistrate Du Preez v Walker 1976 (4) SA 849 (A) Retail Motor Industry Organization v Minister of Water and Environment Affairs 2014 (3) SA 251 (SCA) Rex v Essex Justices [1927] 2 KB 475 Rex v North, ex parte Oakey [1927] 1 KB 491 Riddle v Riddle 1956 (2) SA 739 (C) Ridge v Baldwin [1964] AC 40 (HL) Road Fund Administration v Government of the Republic of Namibia & Others 2012 (1) NR 28 (HC) Roberts v Hopwood [1925] AC 578 Robertson v Minister of Pensions [1948] 2 All ER 767; [1949] 1 QB 227 Roncarelli v Duplessis 16 DLR (2d) 689 (Supreme Court of Canada) Rooke’s case English Reports, lxxvii, 5 Coke, 100 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) Routh v Reading Corporation, Bar Library Transcript No 492 of 1970 Rowjee v State of Andhra Pradesh AIR 1964 SC 962 Ruch v Van As 1996 NR 345 (HC) Copyright © 2019. University of Namibia Press. All rights reserved.

Russell v Duke of Norfolk [1949] 1 All ER 109 Ruyobeza & Another v Minister of Home Affairs & Others 2003 (5) SA 51 (C); 2003 (8) BCLR (20) S v Baleka & Others 1986 (1) SA 361 (T) S v Bushebi 1998 NR 239 (SC) S v Gwantshu & Another 1995 (2) SACR 384 (E) S v Jones Case No CC 04/2004, 2 November 2005 S v Khan 1993 (2) SACR 118 (N) S v La Kay 1998 (1) SACR 91 (C) S v Le Roux 1988 (2) SA 868 (A) S v Malindi & Others 1990 (1) SA 962 (A) S v Mkhise; S v Mosia 1988 (2) SA 868 (A)

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S v Radebe 1973 (1) SA 796 (A) S v Strowitzki 2003 NR 145 (SC) SA Defence & Aid Fund & Another v Minister of Justice 1967 (1) SA 31 (C) Sacchi v Conway & the AM Que Que 1923 SR 41 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) Sagnata Investments Ltd v Norwich Corporation [1971] 2 All ER 441 (CA) Salomon v Salomon & Co [1897] AC 22 (HL) Saul v Allen 1924 TPD 382 Save Richmond Farmland Society v Richmond (Township) [1990] 3 SCR 1213 Schmidt & Another v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA) Schneider v Robberts 1917 EDL 416 Scott & Others v Hanekom & Others 1980 (3) SA 1182 (C) Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 (HL) Sefatsa & Others v Attorney-General, Transvaal 1989 (1) SA 821 (A) Semena v De Wet & Another 1951 (2) SA 444 (T) Sergeant & Others v Dale (1877) 2 QBD 558 Seneviratne v The President of the Republic of Namibia (A 49/2013) [2015] NAHCMD 14 (5 February 2015) Setlogelo v Setlogelo 1914 AD 221 Shames v South African Railways and Harbours 1922 AD 228 Sharp v Wakefield [1891] AC 173 (HL)

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Shekunyenge v Principal of St Joseph’s Roman Catholic High School Dobra (HC-MD-CIV-MOTGEN-2016/00269) [2016] NAHCMD 308 (6 October 2016) Shifidi v Administrator-General for South West Africa & Others 1989 (4) SA 631 (SWA) Short v Poole Corporation [1926] Ch 66 Sikunda v Government of the Republic of Namibia (3) 2001 NR 181 (HC) Sisulu v State President & Others 1988 (4) SA 731 (T) Skeleton Coast Safaris v Namibia Tender Board & Others 1993 NR 288 (HC) Smith v Day (1882) 21 ChD 421 Smith v East Elloe Rural District Council [1956] AC 736 Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) Sommers v City of Edmonton and Scott 10 AR 48 (Alberta Supreme Court) (1978) South African Defence and Aid Fund & Another v Minister of Justice 1967 (1) SA 263 (A) South African Jewish Board of Deputies v Sutherland NO & Others 2004 (4) SA 368 (W)

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South African Milling Co (Pty) Ltd v Reddy 1980 (3) SA 431 (SE) South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T) South African Motor Acceptance Corporation (Pty) Ltd v Venter 1963 (1) SA 214 (O) South West Africa National Union v Tjozongoro 1985 (1) SA 376 (SWA) Spackman v Plumstead Board of Works LR 10 App Cas 229 Standard Bank v Estate Van Rhyn 1925 AD 266 Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) Stipp & Another v Shade Centre & Others 2007 (2) NR 627 (SC) Stock Exchange 1991 (4) SA 43 (W) Stourcliffe Estates Co Ltd v Corporation of Bournemouth [1910] 2 Ch 12 (CA); [1908–10] All ER Rep 785 Sutter v Scheepers 1932 AD 165 SWA National Union v Tjozongoro & Others 1985 (1) SA 376 (SWA) Swakopmund Airfield v Council of the Municipality 2013 (1) NR 205 (SC) Szilard v Szasz [1955] SCR 3 Tattersall & Another v Nedcor Bank Ltd 1995 (3) SA 222 (A) Telecom Namibia Ltd v Communications Regulatory Authority of Namibia & Others 2015 (3) NR 747 (HC) Tettey & Another v Minister of Home Affairs & Another 1999 (3) SA 715 (D) The Free Press of Namibia (Pty) Ltd v Cabinet of the Interim Government of South West Africa 1987 (1) SA 614 (SWA) The Johannesburg Municipal Council v Maserowitz and Maserowitz 1914 TPD 439 Copyright © 2019. University of Namibia Press. All rights reserved.

The Master v Zick 1958 (2) SA 539 (T) The Namibian Health Clinics CC v The Minister of Health and Social Services (unreported, 10 September 2002) The Queen v Ledgard (1841) 1 QB 616; 113 ER 1268 Theatre de Luxe (Halifax) Ltd v Gledhill [1915] 2 KB 49 Thelma Court Flats (Pty) Ltd v McSwigin 1954 (3) SA 457 (C) Tokwana v Tolibade & Chief Magistrate of Native Territories 1920 EDL 107 Transnamib Ltd v Imcor Zinc (Pty) Ltd (Moly-Copper Mining and Exploration Corporation (SWA) Ltd & Another Intervening) 1994 NR 11 (HC) Transnet Ltd v Robenstein 2006 (1) SA 591 (SCA) Treasure Trove Diamonds Ltd v Hyman 1928 AD 464 Trustco Insurance Ltd t/a Legal Shield Namibia & Another v Deeds Registries Regulation Board & Others 2010 (2) NR 565 (HC)

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Trustco Ltd v Deeds Registries Regulation Board 2011 (2) NR 726 (SC) Tuckers Land Development Corporation (Pty) Ltd v Hovis 1980 (1) SA 645 (A) Tumas Granite CC v the Minister of Mines and Energy & Another 2013 (2) NR 383 (HC) Uffindell t/a Aloe Hunting Safaris v Government of Namibia & Others 2009 (2) NR 670 (HC) Universal Cargo Carriers Corporation v Citati [1957] 2 QB 401; [1957] 2 All ER 70 (QB) University of Ceylon v Fernando [1960] 1 All ER 631 University of the Western Cape & Others v Member of Executive Committee for Health and Social Services & Others 1998 (3) SA 124 (C) Urban Housing Co. Ltd v Oxford Corporation [1940] Ch 70 Uvhungu-Vhungu Farm Development CC v Minister of Agriculture, Water and Forestry 2009 (1) NR 89 (HC) Vaatz v Law Society of Namibia & Others 1996 NR 272 (HC) Van Aswegen v Administrator, Orange Free State, & Others 1955 (3) SA 60 (O) Van Huyssteen & Others NNO v Minister of Environmental Affairs and Tourism & Others 1996 (1) SA 283 (C) Van Woudeberg v Roos 1946 TPD 110 Viljoen v Chairperson of the Immigration Selection Board 2017 NR 132 (HC) Ward v Bradford Corporation (1971) 70 LGR 27 Watchenuka v Minister of Home Affairs 2004 (4) SA 236 (A) Waterberg Big Game Hunting Lodge Otjahawita (Pty) Ltd v Minister of Environment and Tourism 2010 (1) NR 1 (SC)

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Waterfalls Town Management Board v Minister of Housing 1957 (1) SA 336 (SR) Watson v Cobourg [1924] 4 DLR 459 Webster v Michell 1948 (1) SA 1184 (W) Welkom Village Management Board v Leteno 1958 (1) SA 490 (AD) Wells v Minister of Housing and Local Government [1967] 2 All ER 1041; [1967] 1 WLR 1000 Westair Aviation (Pty) Ltd v Namibia Airports Co Ltd 2001 NR 256 (HC) Westeel Rosco v Board of Industrial Relations (1967) 59 WWR 428 White v Northern Insurance Co 1918 WLD 25 Wildlife Ranching Namibia v Minister of Environment and Tourism A 86/2016 [2016] NAHCMD 110 (13 April 2016) Williams v Giddy [1911] AC 381 (Privy Council) Wiswell v Metropolitan Corporation of Greater Winnipeg 1965 51 DLR (2nd) 754

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Witvlei Meat (Pty) Ltd v Agri Bank of Namibia 2016 (2) NR 547 (HC) Wlotzkasbaken Home Owners Assoc v Erongo Regional Council 2007 (2) NR 799 (HC) Wolgroeiers Afslaers (Edms) Bpk v Munispaliteit van Kaapstad 1978 (1) SA 13 (A) Wood v Woad (1874) LR 9 Ex 190 Wood & Others v Ondangwa Tribal Authority & Another 1975 (2) SA 294 (A) Woollett v Minister of Agriculture & Fisheries [1955] 1 QB 103 Yeko v Qana 1973 A (4) SA 735 (A) Yiesley and West Drayton Urban District Council [1960] AC 260 (HL) Yorkshire (WR) Rivers Bd v Linthwaite UDC (1915) 84 LJKB 1610

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Yusuf v Abboobaker & Another 1943 NPD 244

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CHAPTER 2: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS 2.1

Introduction [1] New Era Investment (Pty) Ltd v Roads Authority & Others 2014 (2) NR 596 (HC) [2] Immanuel v Minister of Home Affairs & Others 2006 (2) NR 687 (HC)

2.2

Review and appeal distinguished [3] Ellen Louw v The Chairperson, District Labour Court and J Snyman & Partners (Namibia) (Pty) Ltd Case No LCA 27/1988

CHAPTER 3: NATURE, SCOPE, PRINCIPLES AND KEY FEATURES OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS 3.2

Scope of judicial review [4] Permanent Secretary of the Ministry of Finance & Others v Ward 2009 (1) NR 314 (SC) [5] Disciplinary Committee for Legal Practitioners v Makando (A216/2008, A370/2008) [2011] NAHC 311 (18 October 2011)

3.3

Principles and key features of judicial review

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3.3.1 Principles of ultra vires and legality [6] Skeleton Coast Safaris v Namibia Tender Board & Others 1993 NR 288 (HC) 3.3.2 Discretionary power to act and duty to act [7] Minister of Health and Social Services v Lisse 2008 (2) NR 739 (SC) [8] Trustco Insurance Ltd t/a Legal Shield Namibia & Another v Deeds Registries Regulation Board & Others 2010 (2) NR 565 (HC) [9] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 (CA) [10] Nguvauva v Minister of Regional and Local Government 2015 (1) NR 220 (HC) 3.3.3 Rule of no fettering of discretion of administrative bodies and officials [11] Wlotzkasbaken Home Owners Assoc v Erongo Regional Council 2007 (2) NR 799 (HC) 3.3.4 Principle of locus standi [12] Wood & Others v Ondangwa Tribal Authority & Another 1975 (2) SA 294 (A) [13] Katjivena v Prime Minister of the Republic of Namibia 2016 (3) NR 903 (HC) 3.3.6 Delegation, abdication and surrender of power and external dictation in exercise of power [14] Skeleton Coast Safaris v Namibia Tender Board & Others 1993 NR 288 (HC)

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[15] Road Fund Administration v Government of the Republic of Namibia & Others 2012 (1) NR 28 (HC) 3.3.7 Requirements of fairness and justice enjoin administrative bodies and officials to give reasons for their administrative actions [16] Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC) [17] Minister of Health and Social Services v Lisse 2008 (2) NR 739 (SC) 3.3.8 No onus on administrative bodies and officials to justify their administrative actions [18] Immanuel v Minister of Home Affairs & Others 2006 (2) NR 687 (HC) CHAPTER 4: GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS 4.2

Common-law grounds and constitutional grounds of judicial review of administrative action by administrative bodies and officials Common-law grounds of review: (a) (b) (c) (d) (e) (f)

acting mala fide failure to apply their mind taking into account irrelevant or extraneous facts disregarding relevant facts prompted or influenced by improper motives, or acting against natural justice.

[19] Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC) Constitutional grounds of review: (a) failure to act fairly and reasonably (b) failure to comply with requirements imposed on them by the common law (ie natural justice): (i) audi alteram partem, (ii) legitimate expectation, (iii) disqualifying bias (c) failure to comply with requirements imposed on them by a relevant legislation: error of law and interpretation of statute. Copyright © 2019. University of Namibia Press. All rights reserved.

(a) Failure to act fairly and reasonably [20] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 (CA) [21] Preston v Inland Revenue Commissioners [1985] 2 All ER 327 (HL) [22] Sikunda v Government of the Republic of Namibia (3) 2001 NR 181 (HC) [23] Trustco Insurance Ltd t/a Legal Shield Namibia & Another v Deeds Registries Regulation Board & Others 2010 (2) NR 565 (HC) (b) Failure to comply with requirements imposed on them by the common law (i) natural justice: audi alteram partem [24] New Era Investment (Pty) Ltd v Roads Authority & Others 2014 (2) NR 596 (HC) [25] Minister of Mines and Energy & Others v Petroneft International & Others 2012 (2) NR 781 (SC) [26] Re North Coast Air Services Ltd v Air Transport Committee of the Canadian Transport Commission (1973) 32 DLR (3d) 695 (Fed CA)

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(ii) legitimate expectation [27] Administrator, Transvaal & Others v Traub & Others 1989 (4) SA 731 (A) [28] Minister of Health and Social Services v Lisse 2008 (2) NR 739 (SC) (iii) disqualifying bias [29] BTR Industries South Africa (Pty) Ltd & Others v Metal and Allied Workers’ Union & Another 1992 (3) SA 673 (A) (c) Failure to comply with requirements imposed on them by relevant legislation: (i) error of law, and (ii) interpretation of statute (i) error of law [30] Chairperson, Council of the Municipality of Windhoek, & Others v Roland & Others 2014 (1) NR 247 (SC) (ii) interpretation of statute [31] Compania Romana de Pescuit (SA) v Rosteve Fishing 2002 NR 297 (HC)

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CHAPTER 5: KEY ASPECTS IN PROCEEDINGS CONCERNING THE REMEDY OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS 5.1

Procedures in terms of Rules of the High Court [32] Namibia Financial Exchange (Pty) Ltd v The Chief Executive Officer of the Namibia Institutions Supervisory Authority and Registrar of Stock Exchanges 2017 NR (1) 142 (HC) [33] Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay & Others 2011 (2) NR 437 (HC)

5.2

Proof of locus standi [34] SWA National Union v Tjozongoro & Others 1985 (1) SA 376 (SWA) [35] Otjozondu Mining v Purity Manganese 2011 (1) NR 298 (HC)

5.3

Delay in instituting motion proceedings of judicial review of administrative action by administrative bodies and officials 5.3.1 Absence of a statutory time limit within which to institute judicial review proceedings [36] Namibia Grape Growers and Exporters Association & Others v The Ministry of Mines and Energy & Others 2004 NR 194 (SC) [37] Keya v Chief of the Defence Force & Others 2013 (3) NR 770 (SC) [38] Peter v Jacobs (A 100-2013) [2016] NAHCMD 11 (28 January 2016) 5.3.2 Existence of a statutory time limit within which to institute judicial review proceedings [39] R v Environment Secretary, ex parte Ostler [1977] QB 122 (CA) [40] Katjivena v Prime Minister of the Republic of Namibia 2016 (3) NR 903 (HC)

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5.4

Peremptory for applicant to join and cite correct administrative body or official whose decision applicant attacks by judicial review [41] Premier Construction CC v Chairperson of the Tender Committee 2014 (4) NR 1002 (HC)

5.5

Record of proceedings required for instituting proceedings in judicial review of administrative action Internal process materials [42] Tumas Granite CC v the Minister of Mines and Energy & Another 2013 (2) NR 383 (HC)

5.6

Discovery and inspection of documents in judicial review proceedings [43] Telecom Namibia Ltd v Communications Regulatory Authority of Namibia & Others 2015 (3) NR 747 (HC)

5.7

Doctrine of exhaustion of statutory domestic remedies [44] Namibian Competition Commission & Another v Wal-Mart Stores Incorporated 2012 (1) NR 69 (SC) [45] Four Three Five Development Companies (Pty) Ltd v Namibia Airports Company & Others 2017 NR (1) 142 (HC)

5.8

Costs in proceedings concerning judicial review of administrative action by administrative bodies and officials [46] Hoveka NO & Others v The Master & Another 2006 (1) NR 147 (HC)

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CHAPTER 6: CONSEQUENCES OF, AND REMEDIES FOR, UNLAWFUL AND INVALID ADMINISTRATIVE ACTION BY ADMINISTRATIVE BODIES AND OFFICIALS 6.1

Consequences of unlawful and invalid administrative action by administrative bodies and officials [47] Ridge v Baldwin [1964] AC 40 (HL) [48] Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade [1975] AC 295 (HL)

6.2

Remedies for unlawful and invalid administrative action 6.2.1 Setting aside administrative action or setting aside administrative action and correcting it [49] Minister of Health and Social Services v Lisse 2008 (2) NR 739 (SC) [50] Waterberg Big Game Hunting Lodge Otjahawita (Pty) Ltd v Minister of Environment and Tourism 2010 (1) NR 1 (SC) [51] President of the Republic of Namibia & Others v Anhui Foreign Economic Construction Group Corporation Ltd & Others 2017 (2) NR 340 (SC) 6.2.2 Declaration [52] Skeleton Coast Safaris v Namibia Tender Board & Others 1993 NR 288 (HC) [53] Sommers v City of Edmonton and Scott 10 AR 48 (Alberta Supreme Court) (1978) [54] Cooper v Wilson [1937] 2 KB 309 (CA) [55] Pyx Granite Ltd v Ministry of Housing and Local Government [1960] AC 260 (HL)

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6.2.3 Interdict 6.2.3.1 Prohibitory interdict [56] Webster v Michell 1948 (1) SA 1184 (W) 6.2.3.2 Mandatory interdict (1) Mandamus [57] Nguvauva v Minister of Regional and Local Government 2015 (1) NR 220 (HC) [58] Municipal Council of Gobabis v Smith 2015 (1) NR 299 (HC) [59] Electoral Commission of Namibia v Registrar, High Court of Namibia (A322/2015) [2016] NAHCMD 293 (29 September 2016) [60] Tumas Granite CC v the Minister of Mines and Energy & Another 2013 (2) NR 383 (HC) [61] Hughes et al v Henderson et al (1964) 32 DLR (2d) 742 (Manitoba QB)

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(2) Mandament van spolie (spoliation) [62] Witvlei Meat (Pty) Ltd v Agri Bank of Namibia 2016 (2) NR 547 (HC) [63] Uvhungu-Vhungu Farm Development CC v Minister of Agriculture, Water and Forestry 2009 (1) NR 89 (HC)

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TA BL E OF S TAT U T E S

NAMIBIA Agricultural (Commercial) Land Reform Act, 1995 (Act No 6 of 1995) Airports Company Act, 1998 (Act No 25 of 1998) Communal Land Reform Act, 2002 (Act No 5 of 2002) Communications Act, 2009 (Act No 8 of 2009) Companies Act, 2004 (Act No 28 of 2004) Competition Act, 2003 (Act No 2 of 2003) Constitution of the Republic of Namibia, 1990 Correctional Services Act, 2012 (Act No 9 of 2012) Criminal Procedure Act, 1977 (Act No 51 of 1977) Deeds Registries Act, 1937 (Act No 47 of 1937) Defence Act, 2002 (Act No 1 of 2002) Education Act, 2001 (Act No 16 of 2001) Electoral Act, 1992 (Act No 24 of 1992) Electoral Amendments Act, 1998 (Act No 30 of 1998) Extradition Act, 1996 (Act No 11 of 1996) Finance and Audit Ordinance, No 1 of 1926 Finance and Audit Amendment Ordinance, No 20 of 1970 Foreign Investment Act, 1990 (Act No 27 of 1990) Copyright © 2019. University of Namibia Press. All rights reserved.

High Court Act, 1990 (Act No 16 of 1990) Hospitals and Health Facilities Act, 1994 (Act No 36 of 1994) Immigration Control Act, 1993 (Act No 7 of 1993) Income Tax Act, 1981 (Act No 24 of 1981) Labour Act, 1992 (Act No 6 of 1992) Labour Act, 2007 (Act No 11 of 2007) Legal Practitioners Act, 1995 (Act No 15 of 1995) Marriage Act, 1961 (Act No 25 of 1961) Medical and Dental Professions Act, 1993 (Act No 21 of 1993) Mines and Minerals Act, 1992 (Act No 33 of 1992) Minerals (Prospecting and Mining) Act, 1992 (Act No 33 of 1992) Namibian Competition Act, 2003 (Act No 2 of 2003)

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Nature Conservation Amendment Act, 1996 (Act No 5 of 1996) Nature Conservation Ordinance, No 4 of 1975 Police Act, 1990 (Act No 19 of 1990) Prevention of Organized Crime Act, 2004 (Act No 29 of 2004) (POCA) Public Private Partnership Act, 2017 (Act No 4 of 2017) Public Service Act, 1984 (Act No 111 of 1984) Public Service Act, 1995 (Act No 13 of 1995) Regional Councils Act, 1992 (Act No 22 of 1992) Road Fund Administration Act, 1999 (Act No 18 of 1999) South West Africa Trade Marks Act, 1973 (Act No 48 of 1973) Special Advisers and Regional Representatives Appointment Act, 1990 (Act No 6 of 1990) State-Owned Enterprises Governance Act, 2006 (Act No 2 of 2006) Supreme Court Act, 1990 (Act No 15 of 1990) Traditional Authorities Act, 2000 (Act No 25 of 2000) AUSTRALIA New South Wales Public Service Superannuation Act, 1903 CANADA Administration of Justice Act, 1938 Aeronautics Act RS, 1985 Alcoholic Liquor Possession and Transportation Act RS, 1925 Judicature Act RSA, 1970, c 193 Potash Conservation Regulations, 1969 (OC 1733/69, Sask Reg 287/69)

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Public Utilities Act RSN, 1970 SOUTH AFRICA Constitution of the Republic of South Africa, 1996 Group Areas Development Act, 1955 (Act No 69 of 1955) Internal Security Act, 1982 (Act No 74 of 1982) Native Trust and Land Act, 1976 (Act No 18 of 1936) Promotion of Administrative Justice Act, 2000 (Act No 3 of 2000) Supreme Court Act, 1959 (Act No 59 of 1959) UNITED KINGDOM Acquisition of Land (Authorisation Procedure) Act, 1946 (1946 c 49 (Regnal 9 and 10 Geo 6)) Cinematograph Act, 1909 Crown Proceedings Act, 1947

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Foreign Compensation Act, 1950 Highways Act, 1959 Highways Act, 1971 Income and Corporation Taxes Act, 1970 Malvern Hills Act, 1924 (c xxxvi) Metropolis Local Management Act, 1855 Municipal Corporation Act, 1882 Police Appeals Act, 1927 (17 & 18 Geo 5 c 1 31) Police Pensions Act, 1921 (11 7 12 Geo 5 c 31) Post Office Act, 1969 Regulation of Prices (Tranquillising Drugs) (No 3) Order, 1973 (SI 1973 No 1093) Sunday Entertainments Act, 1932 Town and Country Planning Act, 1947

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Tribunals and Enquiries Act, 1958

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1 I N TRODUC T ION

1.1 What is administrative law?

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A. Text: Discussion of principles Any attempt at defining administrative law should take counsel from the words of Thesiger LJ that definitions are proverbially dangerous.1 Nevertheless, any definition of administrative law should serve the essential purpose of describing its nature and focus; and it should reflect customary usage and an understanding of the area of administrative law as a branch of law. Put simply, administrative law is that branch of law relating to public administration2 or public management, the two terms being used interchangeably: there are no inherent differences between them. It is important, therefore, to direct the enquiry into what public administration is and what its purpose and role are in a country. In this regard, it is important at the outset to discuss in a line or two what politics is. Put simply, politics is concerned with securing State power and exercising that power. In his book, Politics,3 the ancient Greek philosopher, Aristotle, gave the first clear indication of what politics involves: he explained that it is an activity which recognises the different interests and expectations of people living together in the State and tries to deal with those different interests and expectations through a particular system of government. The acquisition and exercise of State power are therefore primarily about dealing with the concerns, interests and aspirations of people living in the State, through a particular system of government.

1 2 3

Bryan A Garner (1995). A Dictionary of Modern Legal Usage (Second edition). New York: OUP. David Foulkes (1986). Administrative Law (Sixth edition). London: Butterworths, p 1. See Collins Parker (2003). A Manual of Public Administration. Windhoek: Aim Publications, p 1. 1

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Politics attempts to find ways and means of safeguarding those interests, meeting those expectations and dealing with those concerns. Since people’s interests, concerns and expectations centre mainly on social and economic issues, it becomes the responsibility and duty of those who have political power to deal with those issues. In doing so, political leaders, that is, the rulers of the State, take important decisions, some of which may constitute public policy. Public administration is a system of organising public (ie State) institutions and processes; its aim is to facilitate the formulation and implementation of public policy. Therefore, public administration is mainly a process concerned with policy formulation and implementation, that is, policies usually made by the political executive organ of State. The political executive organ of the State is the government of the day. The bureaucratic executive consists of the public management or public administration institutions, that is, the public service. It is the primary responsibility of that part of the executive organ to implement those policies. The political executive and the bureaucratic executive constitute the executive organ of State. The other organs of State are the legislature and the judiciary. At times, the organs of State are referred to as ‘organs of government’. The delineation of the structure of the State into the executive, legislative and judiciary follows the trias politica of Montesquieu’s doctrine of the separation of powers,4 which has some relevance today in the distribution of State power under constitutional law. But public administration concerns not only organisation and process: it is used to describe all those methods, activities, institutions and persons involved in the process – the process of policy formulation and implementation. In sum, then, the term ‘public administration’ is used to describe not only the process of policy implementation but also the machinery used in the process (ie departments of State), the persons who operate the machinery (ie public servants), and the methods and procedures they apply. A word about the terminology used in this book. In many Commonwealth countries, such as Namibia, the term ‘public authority’ is used to describe both the public administration machinery and the personnel who operate it. In Namibia, in terms of art 18 of the Namibian Constitution, part of the machinery is referred to in the singular as ‘administrative body’ and the personnel in the singular as ‘administrative official’; and so in this book the term ‘public authority’ is used synonymously with administrative body or official where the context requires or 4

See Mostert v Minister of Justice 2002 NR 76 (HC), at 79E–G.

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permits it. This is important to understanding the discussions in chapter 3 (section 3.2) on the bodies and officials whose administrative actions are amenable to judicial review. Public policy is a course of action laid down by a government and its implementation is intended to deal with the political, social and economic issues and challenges facing a country. Thus, while politics is concerned with the micro activity of policy-making, public administration is concerned primarily with the macro activity of implementing public policy.5 In Namibia, as in other Commonwealth countries, legislation includes an enabling (or empowering) Act and delegated or subordinate legislation: for example, regulations and rules made under a particular enabling Act. Public authorities carry out the implementation of legislation in order to achieve things and control certain activities – the provisions of various pieces of legislation cannot on their own achieve anything or control any activity. The foregoing discussion leads to the following conclusion regarding the purpose and focus of administrative law: administrative law concerns the powers and duties of public authorities; the problems associated with the exercise of those powers and the performance of those duties as they affect the rights and interests of persons; and judicial control of the exercise of the powers and the performance of the duties. In this regard, it is important to underline the principle that the power of a public body in any given situation is traceable only to an enabling Act and any subordinate or delegated legislation made under it. Indeed, as the Supreme Court stated in Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others, the rule of law and the principle of legality require that public officials and institutions may only act in accordance with powers conferred upon them by law.6 This principle is a golden thread that runs through the whole fabric of administrative law: it is fundamental to administrative law. In sum, ‘[t]he role of the court in controlling the operations of these bodies (ie public authorities),’ said Barry, ‘is the subject matter of administrative law.’ 7 It is therefore the role and focus of administrative law that distinguish it from constitutional law. Nevertheless, in Namibia, the Constitution broadens and reinforces common-law principles of judicial review within the contextual 5 6 7

Parker (2003: p 1). 2010(2) NR 487 (SC) at para 23. Leo D Barry (1979). Administrative Law, Cases and Materials (Volume 2). Halifax: Dalhousie University Law School, p 1.

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framework of the notion of the rule of law. That is also the case in many Commonwealth countries – for example, South Africa in the Southern African Development Community (SADC) sub-region. The role and focus of constitutional law, on the other hand, are these: constitutional law concerns the distribution of the powers and functions of the organs of State (being, as we saw previously, the executive, legislature and judiciary), the relationships between these organs of State themselves, and the relationship between each organ of State and persons living in the country. It emerges from the foregoing discussion that the sources of administrative law in Namibia are:

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(1) the common law; (2) the Namibian Constitution, in particular art 18; (3) various pieces of legislation and subordinate legislation, and (4) case law. Case law represents the development of the principles of law and approaches propounded by the High Court of Namibia and the Supreme Court of Namibia and comparable superior courts in foreign countries in the cases involving judicial review of administrative action decided by those courts. As to case law, it is important from the outset to guide the reader – particularly one not legally trained – regarding how to treat and use the judgments from foreign jurisdictions in the Part B sections of the book. In judicial proceedings, counsel (or legal practitioners) on both sides of a suit give the best help they can by referring courts to authorities or precedents. A precedent is a decided case that provides a basis for determining an identical or similar case, or a similar question of law, that may come before the court concerned. Decided cases constitute case law. Case law contains a body of principles of law which judges or courts have discussed and applied in their decisions when adjudicating upon disputes they are dealing with. Case law is therefore the law derived from adjudication. Judges conduct their own researches on principles of law which they wish to apply in deciding cases they are dealing with. The principle of law relied on or applied by a judge (or a court) in arriving at their decision forms the basis of, or the reason for, the decision, that is, the ratio decidendi. The binding force of a decision constitutes the doctrine of precedent, but there may be precedents that have only persuasive force – for example, the case law from jurisdictions external

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I N T RODUC T ION

to Namibia. There are, therefore, both binding precedent and persuasive precedent. The rule of practice of applying precedents to later cases constitutes the doctrine of stare decisis (to stand by things decided). It is through stare decisis that courts afford certainty and finality, which are of the utmost importance in applying the law in the administration of justice. In Namibia, as in many common-law countries, in accordance with the doctrine of stare decisis, the decision laid down by a higher court is binding on a lower court. Article 81 of the Namibian Constitution has given constitutional support to the principle of stare decisis as far as decisions of the Supreme Court are concerned. Article 81 provides:

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Article 81 Binding Nature of Decisions of the Supreme Court A decision of the Supreme Court shall be binding on all other Courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted.

In Namibia, therefore, a decision of the Supreme Court binds absolutely every court. But a decision of the Supreme Court does not absolutely bind the Court itself, and so the Supreme Court may reconsider its own decision if the earlier decision is manifestly wrong and its maintenance would be injurious to justice. That would be a compelling reason for the Supreme Court not to follow its earlier decision. Nevertheless, in the interests of certainty and finality, this power is used only where, as I have said, maintaining the earlier decision would be manifestly wrong and injurious to justice – that is, where there are compelling reasons not to maintain it. By a parity of reasoning, an earlier decision of the High Court binds the High Court unless the earlier decision is considered to be wrong. Whereas a decision of the High Court binds all lower courts and inferior tribunals – for example, arbitration tribunals – a decision of the High Court does not absolutely bind the High Court, and so the High Court may reconsider its previous decision where maintaining the previous decision would be manifestly wrong or injurious to justice. In sum, unless there are compelling reasons to do so, courts are reluctant to depart from their previous decisions so as not to violate the principle of certainty and finality. In Namibia, the two superior courts are the Supreme Court and the High Court, with the former perched at the apex of the judiciary. As is the practice in many common-law countries, as I have said previously, decisions of comparable foreign superior courts, while not being binding upon Namibian courts, have

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persuasive force. The High Court or the Supreme Court may therefore cite such cases with approval. In practice, the Supreme Court accepts as having persuasive force a decision of a comparable superior court in a common-law country, particularly where no equivalent precedent exists in Namibia. By a parity of reasoning, the High Court accepts as having persuasive force a decision of a comparable superior court or a court comparable to or higher than the Supreme Court in such foreign commonlaw country, particularly where no equivalent precedent exists in Namibia. The Supreme Court may accept as having persuasive force a decision of, for example, the following foreign superior courts:

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(a) the United Kingdom Supreme Court (formerly the House of Lords); (b) the Privy Council, which is based in England and which is the highest court of appeal for British Colonies and Dominions; (c) the Supreme Court of Canada; (d) the Supreme Court of the United States of America; (e) the Supreme Court of India; (f) the Constitutional Court and the Supreme Court of Appeal of South Africa; (g) the Supreme Court of Zambia, and (h) the Supreme Court of Zimbabwe. Similarly, the High Court will accept as being of persuasive force decisions of the abovementioned foreign superior courts and decisions of superior courts of the foregoing countries that are comparable to the High Court and comparable to or higher than the Supreme Court. It is for this reason that the cases collected in the Part B sections of this book contain cases not only from Namibia, but also from other common-law countries. Each of those countries, compared to Namibia, has a longer history of the development of the jurisprudence of administrative law (and other branches of law). I have therefore used extracts from judgments in cases from: (a) South Africa: the Divisions of the Supreme Court (now High Courts) of South Africa and the Appellate Division (now the Supreme Court of Appeal of South Africa); (b) England: County Courts, Court of Appeal and the House of Lords (now the United Kingdom Supreme Court); (c) England: the Privy Council (although situated in England, it is the final court of appeal for some Commonwealth countries), and

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I N T RODUC T ION

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(d) Canada: the Provincial Supreme Courts, the Federal Court of Appeal, and the Supreme Court of Canada. Besides these, in the Text sections of the book (ie Part A) I have applied as authority decisions of the Supreme Court of Namibia and the High Court of Namibia and the abovementioned foreign superior courts. In addition, I have applied as precedent decisions of superior courts in the foreign countries that are comparable to the High Court of Namibia. In addition, in the Text sections of the book (ie Part A) I have applied as precedent the decisions of the High Courts and Supreme Courts of India, Zambia and Zimbabwe. It hardly needs saying, therefore, that by studying the decisions of superior courts, a legal practitioner, for example, strengthens their position when called upon to advise a client or to institute proceedings. To bring the discussion closer to home: by studying the cases collected in the Part B sections of the book, legal practitioners put themselves in a sound position when called upon to advise a client in administrative-law matters or to institute proceedings in administrativelaw cases. In the same vein, by studying those cases, administrative bodies and officials are placed on a better footing to determine whether decisions they intend to make will pass legal muster. By a parity of reasoning, the collected cases will also benefit private companies and individuals who have to deal with State institutions on several occasions – for example, when they apply for public licences; when they bid for tenders; and when they apply for immigration status for their employees who are not Namibian citizens. Therefore, by studying those cases, private companies and individuals will place themselves in an advantageous position to make informed decisions as to whether it is worth spending time and money on lawyers to attack by judicial review those decisions made by administrative bodies and officials when such companies or individuals think that they have been aggrieved by such administrative decisions.

1.2 Subject-matter of administrative law A. Text: Discussion of principles Administrative law concerns the common-law principles developed by the courts to control the exercise of governmental power reposed in public authorities by various pieces of legislation for the administration and management of the

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affairs of the State. The principles are designed to promote fairness and justice within the contextual framework of the notion of the rule of law in the exercise of governmental power as it affects the rights and interests of persons. We shall see in due course that in some common-law jurisdictions the common-law principles have been embraced, broadened and strengthened by national constitutions, for example, those of Namibia and South Africa in the Southern African Development Community (SADC) sub-region. For Baxter, administrative law:

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… [S]tipulates a set of common law principles which are designed to promote the effective use of administrative power, to protect individuals and organizations from its misuse, to preserve a balance of fairness between public authorities and those with whom they interact, and to ensure the maintenance of the public interest.8

Wade defines administrative law simply as ‘the law relating to the control of governmental power’.9 One may gather from these definitions that administrative law is concerned with (a) the powers and duties of public authorities and (b) judicial control of the exercise of those powers and the performance of those duties. This is the primary scope of administrative law. The subject-matter of administrative law is therefore public administration because administrative law deals primarily with the problem of the public authorities’ exercise of power and their performance of duty. As the range of governmental duties and activities increases in their extent, so does the ambit of the power of public authorities who are required to carry out the whole gamut of government business. Administrative bodies and officials no longer content themselves with such routine government business as the provision of basic services – for example, mail delivery and the maintenance of law and order, defence and foreign affairs. Nowadays, governmental activities affect every area of the lives of all citizens and residents, whether they like it or not, from the cradle to the grave, and even beyond.10 It has therefore become necessary to control the exercise of the enormous power that public administrative bodies and officials wield. There is, of course, 8 Lawrence Baxter (1984). Administrative Law. Cape Town: Juta & Co, p 3. 9 HWR Wade (1984). Administrative Law (Fifth edition). Oxford: Clarendon Press, p 4. 10 Hugh Corder (2006). ‘Comparing Administrative Justice across the Commonwealth: A First Scan.’ In Hugh Corder (ed). Comparing Administrative Justice across the Commonwealth. Cape Town: Juta & Co, pp 1–22.

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I N T RODUC T ION

political control through the legislature and the machinery of political parties, but this does not offer adequate control: the ultimate and most effective is legal control through the courts. It is this judicial control of the exercise of governmental power that is central to the object and scope of administrative law. It follows that the essence of administrative law is the practical enforcement of the rule of law; that is, it provides the means to ensure that public administrative bodies and officials have the statutory power to act, and to act fairly and reasonably in accordance with natural justice. The jurisprudential basis for this is that, as mentioned previously, every exercise of power by an administrative body or official must be traceable to an enabling Act of parliament or to delegated or subordinate legislation made under an enabling Act; and both of these must be consistent with any provision of the Constitution. In this lies the symbiotic relationship between administrative law and constitutional law. In short, the exercise of public power must comply with the Constitution, which is the supreme law. In Namibia, art 18 of the Constitution encompasses the doctrines of legality and ultra vires, which are considered in chapter 3 (section 3.3). The doctrines of legality and ultra vires form the basis for attacking administrative action by judicial review, a fundamental aspect of administrative law; and what is more, the courts’ control of public power through judicial review is and always has been a constitutional matter. Judicial review of administrative action by administrative bodies and officials (public authorities), therefore, forms the essence of administrative law. In sum, the object of judicial review of administrative action by administrative bodies and officials is judicial control of governmental power. And its aim is to promote good governance, that is, to attain efficient and effective public administration with the contextual framework of rule of law.11

11 See President of the Republic of Namibia & Others v Anhui Foreign Economic Construction Group Corporation Ltd & Others 2017 (2) NR 340 (SC), para 62.

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2.1 Introduction

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A. Text: Discussion of principles The power of the High Court to review the acts and decisions (ie the actions) of administrative bodies and administrative officials is dependent primarily on the inherent power of that Court. In addition, it forms part of the primary function of the Court to adjudicate on civil disputes, including cases that involve the interpretation and application of provisions of the Constitution, particularly the basic human rights provisions.1 It is important to note this crucial point: ‘inherent’ means ‘logically inherent’ rather than ‘inherited’: Dr Taitz has demonstrated that the assumption that the review jurisdiction was inherited from Roman-Dutch law is false.2 In Namibia, the inherent power of the High Court to review the administrative actions by administrative bodies and administrative officials (ie public authorities) is strengthened constitutionally by art 18 of the Constitution. Article 18 is therefore the bedrock of judicial review and that article has both embraced the common law3 and broadened the grounds for judicial review.4 ‘The object of art 18,’ said O’Regan 1 2 3 4

See art 80(2) of the Constitution. See also Lawrence Baxter (1984). Administrative Law. Cape Town: Juta & Co, pp 304–305. See Haindongo Shikwetepo v Khomas Regional Council Case No A364/2008), paras 7–9. Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC). Sikunda v Government of the Republic of Namibia (3) 2001 NR 181 (HC). 10

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AJA, ‘is to ensure that acts and decisions of administrative bodies and officials are lawful, fair and reasonable.’5 Article 18 provides: Article 18 Administrative Justice Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

B. Cases

[1] New Era Investment (Pty) Ltd v Roads Authority & Others 2014 (2) NR 596 (HC) Parker AJ:

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… [14] In our law, broadly speaking, there are four distinct categories of judicial review. The first type of review relates to irregularities and illegalities in the proceedings before a lower court (category 1 review). Section 20 of the High Court Act 16 of 1990 contemplates precisely this type of review. The second category is meant to control proceedings before tribunals (and inferior courts) (category 2 review). The third category is meant to control acts of administrative bodies and administrative officials (category 3 review). The fourth (and last) category comprises reviews provided by legislation (category 4 review). The present is a category 3 review, therefore art 18 of the Namibian Constitution applies. The art 18 principles embrace the common-law principles. They also broaden its ambit to include, for instance, the concept of reasonableness as a ground for review.

5

Minister of Mines and Energy v Petroneft International 2012 (2) NR 781 (SC), para [33].

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Notes 1. The common-law principle concerning the judicial review of administrative action was enunciated more than a century ago in the insightful judgment of Innes CJ in Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111. Innes CJ identified three main categories of review of administrative action. 2. In this case [1], the Court developed the Innes principle and added a fourth category of review relevant to Namibia. 3. The Court stated that it is the third category of review that concerns the High Court’s control of administrative acts by administrative bodies and officials, and the High Court’s power of control is based on the Court’s inherent power. Article 18 of the Constitution has constitutionalised that aspect of the inherent power of the High Court. 4. I have treated the judicial review of administrative action by administrative bodies and officials in chapter 4.

[2] Immanuel v Minister of Home Affairs & Others 2006 (2) NR 687 (HC) Damaseb JP:

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… Purpose of Judicial review [53] Judicial review has two aspects: First, it is concerned with ensuring that the duties imposed on decision-makers by law (which includes the Constitution) are carried out. A functionary who fails to carry out a duty imposed by law can be compelled by the High Court to carry it out. Secondly, judicial review is concerned with ensuring that an administrative decision is lawful, ie that powers are exercised only within their true limits. If a functionary acts outside the authority conferred by law, the High Court can quash his or her decision. This is the doctrine of ultra vires.

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… [54] The applicant’s case is, in reality and substance, a plea for mercy – to be given another chance although she was convicted of theft from her employer. The decision of the respondents not to give her another chance is not subject to review in the absence of any unlawful conduct on their part. The applicant failed to establish that the respondents did not comply with their statutory obligations. The onus rests upon the applicant for review to satisfy the Court that good grounds exist to review the conduct complained of: Davies (supra), at 47G–H. [55] I find no irregularity in the actions of the respondents. [56] This application for review is singularly lacking in merit and is accordingly dismissed with costs.

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Notes 1. Applicant was convicted of theft. A board of inquiry recommended her dismissal. The board could make recommendations to the minister responsible for Namibia Police (NAMPOL) to dismiss a member, and the minister might accept such recommendation where a member appeals to them against a decision of the board of inquiry. 2. The Court held that the Court has the power to quash (ie set aside) proceedings where the board exceeded its authority, because the board’s (ie respondent’s) proceedings were subject to judicial review. But its decision not to give applicant another chance was not subject to judicial review. The Court could review only where applicant could show unlawful conduct on the part of respondents. The Court found that applicant had failed to discharge the onus placed on her to show that respondents had acted unlawfully or unfairly.

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2.2 Review and appeal distinguished

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A. Text It is important to note at the outset that review is not appeal. Review limits the power of the courts to matters involving the legality of administrative action by administrative bodies and administrative officials and whether the body or official in question has acted fairly and reasonably and in compliance with natural justice, as we say in chapter 1 (section 1.2). Without statutory authority, the courts may not enquire into the issue of the merit or wisdom of the act or decision of an administrative body or an administrative official which is in dispute.6 The courts cannot embark upon such an enquiry without usurping the power that the legislature has vested in the administrative body or administrative official concerned to implement provisions of the particular legislation. Unlike a right of appeal, which is always statutory, judicial review is, as was mentioned in section 2.1, the exercise of the inherent power of the court to determine whether an act or a decision by an administrative body or administrative official is lawful and valid and, if not, to grant an appropriate remedy, which is discussed in chapter 6. In that event, the court is merely exercising its power to control the administrative action by an administrative body or official in order to uphold the rule of law. Therefore, where a proceeding is an appeal, the appeal court (or some appeal tribunal) will reconsider the act or decision by the administrative body or administrative official on the merits, and such appeal court may substitute its own decision for that of the administrative body or official when the court allows the appeal. Judicial review is fundamentally different proceedings on that score, because, under review proceedings, as a general rule, the question is whether the act or decision under attack should be allowed to stand or not, that is, whether the administrative action is lawful or unlawful.7 In Attorney-General for NSW, ex el Chopin v North Sydney Municipal Council, Street CJ declared: This court is not hearing an appeal against the desirability or wisdom of the council’s decision. The sole matter falling for decision is whether the council has the power permanently to prevent through traffic passing along a residential road.8 6 7 8

Baxter (1984: p 305). HRW Wade (1984), Administrative Law (Fifth edition). Oxford: Clarendon Press, pp 34–35. [1973] 1 NSW LR 186, at 194.

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B. Cases

[3] Ellen Louw v The Chairperson, District Labour Court and JP Snyman & Partners (Namibia) (Pty) Ltd Case No LCA 27/1998 Hoff AJ:

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… Mr Dicks argued that the primary enquiry was whether applicant should have approached this court by way of review proceedings. He submitted that applicant should have appealed against the costs order of first respondent and Mr Strydom supports him in this regard, and he argued that the present application is bad in law. At this stage, it is appropriate to look at the relevant provisions dealing with reviews and appeals in the Labour Court. Rule 18 of the Labour Court Rules made under the repealed Labour Act, 1992 (Act No 6 of 1992) states that the Labour Court shall have exclusive jurisdiction to review the proceedings of any district labour court brought under review on the grounds, mutatis mutandis, referred to in section 20 of the High Court Act, Act 16 of 1990. Section 20(1) of the High Court Act stipulates that the grounds upon which a person may bring proceedings in any lower court under review are: (a) absence of jurisdiction on the part of the court; (b) interest in the cause, bias, malice or corruption on the part of the presiding officer; (c) gross irregularity in the proceedings; (d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence. Rule 15(1) of the Labour Court sets the period within which a person must institute review application, and the rule reads:

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This rule applies to any application – (a) to review the proceedings of any district labour court; (b) … (c) … (2) An application to which this rule applies shall be made promptly and in any event within three months from the date when grounds for the application first arose.

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Rule 19(2) of the district labour court sets the period within which appeals should be lodged, viz within fourteen days of the date of judgment or order. The order of the magistrate was given on 15 October 1998. Applicant filed her notice of motion for review with the registrar of the High Court on 19 November 1998. It is clear that the filing of the notice of review was within the period required by Rule 15 of the Rules of the Labour Court but if applicant had decided to appeal she would have been out of time in terms of the requirements of [R]ule 19 of the district labour court. It is at this stage apposite to visit the work The Civil Practice of the Supreme Court of South Africa by Herbstein, Van Winsen, Cilliers and Loots9 on a discussion of some of the differences between review proceedings and appeal proceedings and the authorities cited therein. On p 932 the following appears: Where the reason (ie to have the judgment set aside) is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where however the real grievance is against the method of the trial, it is proper to bring the case on review. The … distinction depends, therefore, on whether it is the result only or rather the method of trial which is to be attacked. The giving of a judgment not justified by the evidence would be a matter of appeal and not of review upon this test. [Emphasis added]

See Tokwana v Tolibade & Chief Magistrate of Native Territories 1920 EDL 107. On p 933 appears the following: The second main distinction between procedure on appeal and procedure on review is that in the case of the former, the matter is usually a question of argument on the record alone, whereas in a review the irregularity generally does not appear on the record. In an appeal the parties are absolutely bound by the four corners of the record, whereas in a review it is competent for the parties to travel outside the record to bring extrinsic evidence to prove the irregularity or illegality. 9

J Herbstein, L de V van Winsen, AC Cilliers and C Loots (1997). The Civil Practice of the Supreme Court of South Africa (Fourth edition). Cape Town: Juta & Co.

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An example of this would be where it is alleged that the magistrate was corrupt and extrinsic evidence is needed to prove this corruption it is necessary to move outside the record. In my view there is nothing on record and nothing outside the record to indicate any irregularity on the part of first respondent. On p 934 the following appears: Preventing a party by high handed conduct from having his case heard would render a magistrate’s judgment liable to review, but the fact that the magistrate having exercised his discretion wrongly in a case in which he clearly had discretion can ground only appeal, not review proceedings. [Emphasis added]

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See Coetser v Henning & Ente NO 1926 TPD 401; and Modesi v Mosinga 1929 TPD 150. It has not been argued that the first respondent acted irregularly by requiring that documents be translated into English but it has been argued that he acted irregularly by imposing a costs order and by ordering that applicant pays such costs before the matter can be placed on the roll again. The first respondent has in terms of section 20 of Act 6 of 1992 been given a discretion to make an order as to costs if in his opinion a party acted vexatiously or frivolously and there is also authority in case law that such an order may be given. In White v Northern Insurance Co 1918 WLD 25 Ward J said the following on p 27: In the present case the plaintiff, who is dominus litis sets the case down for a specific day. On that day he is not prepared to go on and obtain a postponement on the grounds of his unreadiness. He asks, and obtains the indulgence of the Court and he naturally has to pay the wasted costs. The question whether he should be barred until he pays those costs must depend a good deal on his course of conduct. If plaintiff takes no steps to prepare for the trial and gives no notice of his intention to apply for a postponement, the court would certainly bar him until he paid the wasted costs. If on the other hand a sudden misfortune befalls him and he is not aware until the morning of the trial that he requires a postponement the court would probably not take that course.

… This clearly spells out that the correctness of the order is attacked by the applicant in spite of the fact that the applicant used the words ‘irregular’ and in the light

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of the aforementioned authorities applicant is in essence appealing against the costs order. I am of the opinion that in the light of the aforementioned findings the applicant in substance appealed against the correctness of the costs order of first respondent and that she therefore could not have approached this court by way of review. I believe that she must have realized that she was out of time in bringing the appeal and the only way to bring her plight to the attention of this court was by way of review proceedings. There is authority that where a matter is appealable, an appeal should be noted within the prescribed time. If the aggrieved party neglects to do so, he or she cannot subsequently take advantage of an irregularity and ask for a review on grounds that would have supported an appeal. See Sacchi v Conway & the AM Que Que 1923 SR 41. … The application by the applicant to review and to set aside first respondent’s decision ordering costs against applicant on an attorney–client scale is accordingly dismissed.

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Notes 1. The distinction between review and appeal was enunciated more than a century ago in the landmark case of Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111. Innes CJ set out the distinguishing features of appeal as opposed to review. 2. In this case [3], the High Court developed the Innes proposition and explained in practical terms the distinguishing features of a judicial review procedure and an appeal procedure. The High Court concluded that where the reason for challenging the impugned decision is that the public authority that took the decision came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. However, where the grievance is against the method of the trial or hearing, it is proper to institute review proceedings. 3. The Court explained further that an appeal is usually a question of argument on the record alone, whereas in a review the irregularity generally does not appear on the face of the record of proceedings of the court or tribunal in

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question. In addition, in a review it is competent for the parties to go outside the record in order to bring extrinsic evidence that proves the irregularity or illegality. 4. Accordingly, the Court held that since applicant sought to challenge the correctness of the costs order of first respondent, she could not approach the Court by way of review.

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3 NAT U R E , S C OPE , PR I NC I PL E S A N D K E Y F E AT U R E S OF J U DIC I A L R E V I E W OF A DM I N I S T R AT I V E AC T IO N BY A DM I N I S T R AT I V E BODIES A ND OFFICI A L S

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3.1 Introduction The principle underlying the grounds of judicial review are primarily commonlaw principles. It is those principles that determine the scope of judicial review of administrative action by administrative bodies and officials; and it is from the principles that the features of judicial review of administrative action by administrative bodies and officials flow. The underlying principles, the scope of judicial review of administrative action by administrative bodies and officials, and the key features of judicial review of administrative action by administrative bodies and officials are the subject-matter of this chapter. Chapter 4, for its part, concerns the grounds of judicial review in administrative law. It follows that with regard to the specific subject of grounds of judicial review of administrative action by administrative bodies and officials, one has to turn to chapter 4. The grounds that an aggrieved person (an applicant) must establish in order to succeed in attacking an administrative action by an administrative body or official by judicial review in proceedings in court are the subject of this chapter. In Namibia, the court of first instance is the High Court. Accordingly, chapter 4 is concerned with the basis upon which the High Court may grant the remedy of judicial review.1 In Namibia, the grounds of judicial review lie either at 1

RJF Gordon (1985). Judicial Review: Law and Procedure. London: Sweet & Maxwell, para 2–01. 20

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common law or in terms of art 18 of the Constitution. Since Namibia’s common law is, as I have said previously, based on the Roman-Dutch common law, the common law is the jurisprudential basis of both the common-law grounds and the constitutional grounds of judicial review. Indeed, Levy J said in Frank & Another (HC) that guidance in the application of art 18 ‘can be obtained by reference to cases in Namibia decided under the common law …’.2 The principles underlying the grounds of judicial review are primarily common-law principles: they determine the limits and extent of judicial review of administrative action by administrative bodies and officials, and the key features of judicial review of administrative action flow from those principles. As I have said, I treat the underlying principles, the scope and key features in the present chapter. Thus, while chapter 3 is concerned with the general principles of judicial review of administrative action by administrative bodies and officials, namely, its scope and key features and the underlying principles, chapter 4 deals with a specific aspect of judicial review, namely, the grounds of judicial review. Naturally, some principles discussed in chapter 3 may also be treated in chapter 4, albeit not in the same light or to the same extent. For instance, ultra vires, legality and discretion are fundamental principles of administrative law with regard to judicial review, but they also feature prominently as grounds of judicial review of administrative action.

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3.2 Scope of judicial review A. Text I mentioned in chapter 2 (section 2.1) that the category of judicial review discussed in this book is judicial review of administrative action by administrative bodies and officials. As I intimated in section 2.1 in relation to administrative bodies and officials, judicial review is a form of judicial control of such bodies and officials in the exercise of their powers and the performance of their duties under particular legislation. At common law judicial review deals with the excess of power based on the ultra vires principle and irregularities based on legality in the decision-making 2

Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC), at 265e–f.

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process. Therefore, in Namibia judicial review is concerned with the lawfulness, fairness and reasonableness of the acts and decisions – commonly referred to as ‘administrative action’ – of administrative bodies and officials. In Namibia a decision that is unreasonable is unlawful. The term ‘administrative action’ embraces both the decision to act and the implementation of the act.3 In Namibia, the target of judicial review in terms of art 18 of the Namibian Constitution is the administrative action by administrative bodies and officials. In this book I therefore use ‘act’, ‘decision’ and ‘action’ interchangeably where the context permits. The Court highlighted the scope of judicial review of administrative action in the landmark case of Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council.4 The principles enunciated there have become trite and courts have applied them repeatedly. For instance, the High Court applied them in New Era Investment (Pty) Ltd v Roads Authority & Others.5 As I mentioned previously, in reviewing an administrative action by an administrative body or official, the Court is concerned only (1) with the lawfulness of the decision complained of and the fairness and reasonableness of the decisionmaking process and (2) whether natural justice was complied with. Thus, ‘review relates to the conduct of the proceeding and not the result of it.’6 The reason is simply this. If the Court went into the merits of the administrative action complained of, it would be substituting itself for the administrative body or official to which or to whom the legislature in its wisdom has given the power to decide, unless the statute granting the power provides otherwise. ‘It is well settled,’ wrote Willis, that where an administrative body is vested by statute with powers of decision the courts cannot, in the absence of express statutory authority, interfere with their exercise; they can only see to it that the body does not exceed its jurisdiction.7 [Emphasis added]

3 4 5 6 7

Lawrence Baxter (1984). Administrative Law. Cape Town: Juta & Co, p 353. 1903 TS 111, at 115. 2014 (2) NR 596 (HC). S v Bushebi 1998 239 NR (SC), at 241F, per Leon AJA. See also Ellis v Dessai 1909 TS 576, at 581. John Willis (1939). ‘Administrative Law and the British American Act’. Harvard Law Review vol 53, pp 1–274 (quoted in Leo D Barry (1978). Administrative Law: Cases and Materials (Volume 1). Halifax: Dalhousie Law School, pp 31, 274).

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Thus, review of the exercise of a statutory power is undertaken mainly on the basis of the principles of ultra vires and legality, which encompass fairness, reasonableness and natural justice.8 Lord Hailsham LC explained the proposition aptly in the following passage: It is important to remember in every case that the purpose [of review]  …  is to ensure that the individual is given fair treatment by the authority to which he has been subjected and it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.9

Nevertheless, as Willis reminds us,10 in review proceedings, the Court may, if permitted to do so by ‘express statutory authority’, substitute its decision for that of the body or tribunal. This principle is discussed fully in chapter 6 (para 6.2.1). From the foregoing discussion, it is clear that an enquiry into the scope of judicial review of administrative action by administrative bodies and officials should include a discussion on the targets of the judicial review. The targets of the judicial review are:

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(a) those State institutions that are administrative bodies; (b) individual functionaries who are administrative officials of State institutions that are administrative bodies, and (c) the administrative actions of those State institutions that are administrative bodies and the administrative actions of functionaries who are administrative officials. To summarise: the institutions in (a), the State functionaries in (b) and the administrative actions in (c) are subject to judicial review in terms of art  18 of the Constitution. In words of one syllable – and this is extremely critical – not every State institution, not every State functionary and not every action of a State institution and of a State functionary is subject to art 18 judicial review. I intimated previously that the institutional targets of judicial review are administrative bodies; the natural person targets are administrative officials; and the conduct target is the administrative action by administrative bodies and

8

Gordon (1985: para 1–01). Rules of natural justice are discussed in chapter 4 (section 4.2). 9 Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, at 1160. 10 Willis (1939: p 274).

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officials. We also saw there that the composite term ‘administrative action’ embraces both the act and the decision of administrative bodies and officials. We saw also in chapter 1 that in terms of Namibia’s structure of government, administrative bodies resort in the bureaucratic executive and that administrative officials are those who operate the bureaucratic executive machinery. However – and this is important – in the public administration system of Namibia certain administrative bodies are established which give administrative support to the legislature and the judiciary: the staff members who run those bodies are administrative officials. Take, for instance, the office of the Speaker of the National Assembly, the Office of the Chairperson of the National Council, and the Office of the Judiciary. Each of these offices is a public administration authority; and an accounting officer, as defined in s 1 of the State Finance Act, heads such an authority.11 The accounting officers and the staff under them are public servants in terms of the Public Service Act.12 They are administrative officials. Another example is this: the Registrar of the High Court, for example, may carry out some quasi-judicial functions; but that does not detract from the fact that the registrar and the other public servants are in terms of Namibia’s public administration system public servants, that is, administrative officials through and through. By a parity of reasoning, whereas a magistrate may carry out some administrative functions at their workplace, that does not detract from the fact that a magistrate is a judicial officer and therefore falls within the judiciary. A magistrate, just like a judge, is not an administrative official: the Namibian Constitution says so. In Namibia, considering whether a particular action is an administrative action or not for the purposes of judicial review involves two critical enquiries. The foremost critical consideration is whether the particular State institution which, or State functionary who, took the action in question is an administrative body or official within the meaning of art 18 of the Constitution. If the State institution or body in question is not an administrative body or the individual is not an administrative official, that is the end of the matter: art 18 can never apply to such body or official. The reason is not far to see: art 18 applies to administrative bodies and administrative officials only. [Emphasis added] If, on the other hand, the Court found that the State institution or body in question is an administrative body and the State functionary is an administrative

11 Act No 31 of 1991. 12 Act No 13 of 1995.

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official,13 the next question that arises is whether the action taken constitutes an administrative action. The reason is that not every action of an administrative body or official constitutes an administrative action.14 It follows as a matter of law and common sense that establishing the identity of the State institution which, or the State functionary who, took the action in question is indubitably the first critical step that one should mount, as I have demonstrated. This two-step enquiry is therefore a categorical imperative in interpreting and applying the terms ‘administrative body’ and ‘administrative official’ in art  18 of the Constitution; and I emphasise the ‘Namibian Constitution’. One must always keep firmly in one’s mental spectacle that the State institutions and State functionaries which the Constitution expressly and specifically mentions in art 18 and which are subject to judicial review are (1) ‘administrative bodies’ and (2) ‘administrative officials’; no more, no less. Article 18 does not mention every State body and every State functionary imaginable or under the sun; and the actions (ie the decisions or acts) of the administrative bodies or officials that aggrieved persons may attack by judicial review by pursuing common-law relief or art  18 relief must be administrative actions; hence the peremptory two-step enquiry proposed previously. For one to hold otherwise is for one to arrogate to oneself a better knowledge of what the makers of the Constitution actually had in mind when they expressed themselves clearly in art 18 and put forward, without justification, the unexpressed intention of the constitution-makers. See Rally for Democracy and Progress v Electoral Commission.15 It follows irrefragably (ie indisputably) that – and this is very important – if X is not an administrative body and Y is not an administrative official, no action of X or Y – no matter how such action is characterised – can be attacked by judicial review in pursuit of vindicating a right under art  18 of the Constitution. The breadth of the wording of art 18 compels this conclusion. Of course, it does not mean that an applicant cannot attack such action on some common-law ground of review,16 for instance, on the basis that the decision-taker took the decision

13 See chapter 1 (section 1.1). 14 Permanent Secretary of the Ministry of Finance & Others v Ward 2009 (1) NR 314 (SC), para 51. 15 2009 (2) NR 793 (HC), para 9. 16 See chapter 3 (section 3.1) and New Era Investment (Pty) Ltd v Roads Authority & Others 2014 (2) NR 596 (HC), para 14, where I have treated the different categories of judicial review.

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without complying with the audi alteram partem rule of natural justice. After all, a decision-taker must ‘in good faith and fairly listen to both sides, for that is the duty cast upon everyone who decides’.17 A good example is Amupanda & Others v Swapo Party of Namibia,18 where the Court set aside a decision to expel the applicants from a political party (first respondent), an unincorporated voluntary association, on the basis that those who had taken the decision had not complied with the requirements of the audi alteram partem rule of natural justice. What, then, is an administrative action? In Namibia, in determining whether a particular action is an administrative action subject to judicial review in terms of art 18 of the Constitution, one should look at the nature and statutory source of the power under which the administrative body or official purported to act. For instance, not every action of a cabinet minister is administrative, albeit that they are the political head of a ministry, an administrative body whose activities they supervise in terms of art 40(a) of the Constitution. A minister may exercise executive power and take executive action in contradistinction to an administrative action.19 To illustrate the point: pursuant to the exercise of power in terms of art 40(a) of the Constitution, Minister Y issues instructions to a parastatal enterprise under Minister Y’s ministry as to the proper way to advertise government tenders widely throughout the country. Issuance of the instructions does not constitute administrative action: Minister Y was not implementing a statute, but was exercising executive power, and so that action is not amenable to judicial review in terms of art 18 of the Constitution. 20 But it does not follow that a court cannot review that decision on some common-law ground of review, as I have shown previously. Accordingly, bodies that are tribunals within the meaning of art 12(1) of the Constitution are not administrative bodies, even though they may be referred to as ‘statutory’ bodies, acquiring the epithet ‘statutory’ solely on account of the fact they were established by statute. I therefore submit that ‘administrative bodies’ are clearly not synonymous with ‘statutory bodies’ within the meaning of art 18 17 Board of Education v Rice [1911] AC 79 (HL), at 180, per Lord Loreburn LC. See also Disciplinary Committee for Legal Practitioners v Makando (A216/2008, A370/2008) [2011] NAHC 311 (18 October 2011), para 25. 18 Amupanda & Others v Swapo Party of Namibia (A215/2015) [2016] NAHCMD 126 (22 April 2016). 19 Minister of Defence v Motau 2014 (5) SA 69 (CC), para 49. 20 Arandis Power (Pty) Ltd v The President of the Republic of Namibia (A26/2016) [2016] NAHCMD 194 (7 July 2016).

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of the Constitution, unless a particular statutory body is also an administrative body. For example, the Disciplinary Committee of Legal Practitioners, established under the Legal Practitioners Act,21 is not an administrative body, but a statutory body established under Act No 13 of 1995.22 It follows irrefragably that parastatals or State-owned enterprises (SOEs) are administrative bodies and are liable to judicial review in terms of art  18 of the Constitution inasmuch as and so long as they derive their authority from an Act of the legislature; for, after all, legislation provides the foundation for administrative control.23 The Supreme Court has proposed a useful – albeit definitely not closed, conclusive or immutable – set of guidelines to assist courts in determining what administrative action is. In this regard, the Supreme Court stated in Minister of Mines and Energy v Petroneft International:

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[34] ‘Administration’, as the Constitutional Court of South Africa has observed, ‘is that part of government which is primarily concerned with the implementation of legislation.’ Cabinet’s primary constitutional tasks include the initiation of Bills for consideration by the National Assembly and the direction, co-ordination and supervision of ministries and parastatals. Cabinet may thus not ordinarily be directly concerned with the implementation of legislation, but when it is implementing legislation as contemplated in art 18, its actions must comply with the requirements of that article. It must be recognised as well that individual cabinet ministers performing their individual portfolios will often be involved with the implementation of legislation in relation to their specific portfolios and may therefore quite often perform tasks that will fall within the scope of art 18. 24

The Supreme Court had, five years earlier, explained what administrative action is for the purposes of judicial review of administrative action by administrative bodies and officials in matters concerning the Permanent Secretary of the Ministry of Finance’s cancelling a contract his ministry had entered into with a private medical practitioner.25 There, the Supreme Court held that the distinction 21 Act No 13 of 1995. 22 Disciplinary Committee for Legal Practitioners v Makando (A216/2008, A370/2009) [2011] NAHC/2011/311 (18 October 2011). 23 Gordon (1985: para 5–02) and the cases there cited. 24 2012 (2) NR 781 (SC), para 34 (per O’Regan AJA). See also chapter 1 (section 1.1) for a discussion of the meaning of ‘administrative bodies’ and ’administrative officials’. 25 Permanent Secretary of the Ministry of Finance & Others v Ward 2009 (1) NR 314 (SC).

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between an action that was administrative and an action that was contractual was dependent not on the functionary but on the function. I make this last point. A court in Namibia should not follow mechanically and blindly the factors to consider when determining whether an action is administrative or executive, as proposed in the South African case of Minister of Defence and Military Veterans v Motau.26 One of the reasons is that in Motau, the South African Court was interpreting and applying the provisions of South Africa’s Promotion of Administrative Justice Act, 27 which does not apply in Namibia; neither is there an equivalent Act on Namibia’s statute book. I have discussed above under the present topic the targets of judicial review of administrative action by administrative bodies and officials and the distinction between administrative action and executive action. That discussion is relevant to the policy of public–private partnership arrangements (which is now in vogue in several developing countries, including Namibia) and its implementation in administrative law. It is a policy by which the government enters into partnership arrangements with some private-sector entities to carry out specified State projects. I submit that such arrangements are in line with one of the non-enforceable principles of State policy that the Constitution provides for in art 98. Sub-article (2) of art 98 provides: The Namibian economy shall be based, inter alia, on the following forms of ownership: …

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(c) joint public-private; …

In order to implement the policy, parliament enacted the Public Private Partnership Act, 2017 (Act No 4 of 2017). The Act provides a legal framework for public–private partnership projects. The Act also regulates public–private partnership projects through the stages of initiation, preparation, procurement, conclusion of public– private partnership agreements and their implementation. Furthermore, the Act defines a public–private partnership agreement as a written contract recording the terms of a public–private partnership project concluded between a public 26 2014 (5) SA 69 (CC). 27 Act No 3 of 2000.

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entity and a private entity in accordance with the provisions of the Public Private Partnership Act. The Act sets out the objects of the Act, chief of which are to promote privatesector participation in the provision of public services through public–private partnership projects and to ensure fairness, transparency, equity and competition in the process of awarding public–private partnership projects. It is worth noting that the Act applies to the initiation, preparation, procurement, management and implementation of public–private partnership projects. Moreover, the Act establishes a committee known as the Public Private Partnership Committee (‘the Committee’). The Committee is the body responsible for implementing the provisions of the Act in order to attain its objects. One key function of the Committee is to provide for transaction approvals in respect of public–private partnership projects. The significant questions that arise in relation to administrative law in this sphere are these. First, is the decision of the government to enter into public– private partnership agreements subject to judicial review under administrative law? Second, are the exercise of powers and the carrying out of functions by the Committee under the Act, including the approval of transactions of public– private partnership projects and the exercise of powers and the carrying out of functions by public servants in terms of the Act, subject to judicial review under administrative law? As to the first question, I submit that a decision by the government to enter into a public–private partnership arrangement is a policy decision within the meaning of art  40 of the Constitution, and therefore an executive action. Such executive acts are not administrative acts. They are therefore not subject to judicial review under administrative law. See Minister of Mines and Energy v Petroneft International Ltd.28 However, any exercise of power and carrying out of functions under the Act by the Committee, including approving transactions in respect of public–private partnership projects, are administrative actions. And so is the exercise of power and the carrying out of functions under the Act by any public servant, including the responsible minister (ie the minister responsible for Finance), an administrative action. The reason is that the Committee, the minister or other public servant would be implementing legislation, namely, the Public Private Partnership Act 28 2012 (2) NR 781 (SC).

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(No 4 of 2017) (see Minister of Mines and Energy v Petroneft International Ltd).29 Therefore, the Committee, the minister and the other public servants must comply with the requirements of art 18 of the Constitution. If they do not, an aggrieved person may institute judicial review proceedings to challenge their decisions. I discuss in chapter 4 the grounds of review that such aggrieved person may rely on in his or her application to the High Court for redress. B. Cases

[4] Permanent Secretary of the Ministry of Finance & Others v Ward 2009 (1) NR 314 (SC) Strydom AJA (Shivute CJ and Chomba AJA concurred) …

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[21] A most important issue, which was raised by the first appellant in his affidavit, was the denial by the first appellant that his decision to cancel the agreement between the parties was reviewable. First appellant said that he acted purely in terms of the agreement between the parties and that in the circumstances the cancellation thereof was the exercise of a contractual right which was not reviewable. [22] I therefore agree with the learned judge a quo that the question whether the decision by the first appellant to cancel the agreement was reviewable or not goes to the crux of the main dispute between the parties. The basis on which this distinction is drawn depends on whether the functionary’s decision amounts to administrative action or, as was alleged in this instance, he acted purely in terms of his contractual rights. To decide whether a decision by a functionary amounts to administrative action is not always easy and a reading of the cases on this issue bears out this difficulty. Certain guidelines have crystallised out of judgments of the courts in Namibia, and also in South Africa, but it is clear that the courts are careful not to lay down hard and fast rules and each case must be judged on its own facts and circumstances. There is also no doubt that in deciding the issue courts 29 Supra.

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must have regard to constitutional provisions which, in certain instances, have broadened the scope of reviewable action. [23] In regard to Namibia art  18 of the Constitution deals with administrative action. The Article provides as follows: Article 18 Administrative Justice Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

[24] Article 18 is not open-ended and does not affect every act by administrative bodies and administrative officials. Apart from the subject with which the Article is dealing, namely administrative justice by administrative bodies and administrative officials, the words ‘such acts’ refer, in the context of the Article, to decisions taken and compliance by such bodies and officials in terms of the common law and relevant legislation and in my opinion denotes administrative acts.

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[25] The Article incorporated the common-law principles of administrative law which have crystallised over many years but are not necessarily limited to those principles. (See Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC).) [26] Also in the Namibian context the Constitution distinguishes between the introducing of statutes, the implementation thereof, policy matters and executive action, which is a clear indication that art 18 therefore deals with decisions taken by officials or administrative bodies exercising administrative action. [27] The duty of administrative bodies and administrative officials to act fairly and reasonably when exercising these functions is, in terms of the provisions of art 18, now constitutionally guaranteed. [28] It was further laid down by this court that the words which enjoin officials and administrative bodies to ‘act fairly and reasonably’ are not restricted to procedure only but also apply to the substance of the decision. (See Minister of Health and Social Services supra, para [25], at 772.) [29] In order to determine whether the first appellant, when he cancelled the agreement with the respondent, did so purely in terms of the agreement or

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whether it was an administrative act, is, as was previously stated, not always easy. The cases suggested various guidelines and principles which, applied on their own or cumulatively with other guidelines and/or principles, may determine on which side of the dividing line a particular decision or action may fall. [30] In the case of President of the Republic of South Africa & Others v South African Rugby Football Union & Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059) (the SARFU case) it was stated that what matters was not the functionary but the function performed by him or her. In the same case it was stated that the implementation of legislation would ordinarily constitute administrative action in contrast to policy matters which would ordinarily not be administrative action. Although this was said in connection with s 33 of the South African Constitution the same would also apply to art 18 of our Constitution. [31] To distinguish between policy matters and implementation of legislation regard should be had to the source of the power, the subject-matter thereof and whether it involves the exercise of a public duty. (See in this regard also Pharmaceutical Manufacturers Association of SA & Another: In re Ex parte President of the Republic of South Africa & Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241); Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC & Others 2001 (3) SA 1013 (SCA) (2001 (10) BCLR 1026) and Chirwa v Transnet Ltd & Others 2008 (4) SA 367 (CC) (2008 (3) BCLR 251); (2008) 29 ILJ 73; [2008] 2 BLLR 97).)

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[32] In the Chirwa case supra, at para 186 Langa CJ stated in regard to whether a function or duty was public as follows: [186] Determining whether a power or function is public is a notoriously difficult exercise. There is no simple definition or clear test to be applied. Instead, it is a question that has to be answered with regard to all the relevant factors, including: (a) the relationship of coercion or power that the actor has in its capacity as a public institution; (b) the impact of the decision on the public; (c) the source of the power; and (d) whether there is a need for the decision to be exercised in the public interest. None of these factors will necessarily be determinative; instead, a court must exercise its discretion considering their relative weight in the context.

(See also Grey’s Marine Hout Bay (Pty) Ltd & Others v Minister of Public Works & Others 2005 (6) SA 313 (SCA) (2005 (10) BCLR 931; [2005] 3 All SA 33).) [33] It further seems that decisions taken in regard to tenders and disciplinary matters are ordinarily regarded as administrative acts which would attract the constitutional

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principles set out in art 18. (See in this regard Administrator, Transvaal, & Others v Zenzile & Others 1991 (1) SA 21 (A) ((1991) 12 ILJ 259) and Logbro Properties CC v Bedderson NO & Others 2003 (2) SA 460 (SCA) ([2003] 1 All SA 424).) [34] The application of these principles, set out above, is also not free from difficulty. For instance the source of power acted upon by a functionary can almost always be traced back to some statutory enactment which, in practical terms, and if applied indiscriminately, will mean that every decision or act by a functionary could be classified as administrative action. If that was correct the burden on the State would be tremendous and would put naught to the State’s freedom to enter into contracts like any private individual. [35] This dilemma was recognised by the learned Judge President in the case of Open Learning Group Namibia Finance CC v Permanent Secretary, Ministry of Finance & Others 2006 (1) NR 275 (HC), where he succinctly stated in para 114 as follows:

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[114] Reading the cases and the literature it becomes very clear that it is important to appreciate the need for the State to be allowed sufficient space (what is sometimes referred to as the ‘freedom of play’ in the joints of the executive) to operate in the business environment and to be governed by the ordinary rules of contract and private law generally, assuming the risks and enjoying the benefits available in private law.

[36] Mr Smuts referred the court to the cases set out hereinbefore and submitted that the cancellation of the agreement by the first appellant was a purely commercial act which did not amount to administrative action. Counsel analysed the agreement between the parties and submitted that the termination of the agreement did not amount to the exercise of public power. However, with reference to the Chirwa case supra counsel pointed out that even if the court should find that the first appellant, in this instance, exercised a public duty, it does not follow that the action whereby the agreement was cancelled amounted to administrative action. [37] In regard to the money claims, belatedly formulated and claimed by the respondent at the time when he filed his replying affidavit, counsel first of all submitted that those claims did not constitute administrative action which could be granted in terms of review proceedings. Counsel furthermore submitted that because of the time of its filing, the appellants had no opportunity to reply thereto. In any event, so counsel submitted, these claims are disputed, as was also found by the court a quo, and the granting of those prayers was therefore not in order.

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… [39] Counsel further submitted that the agreement between the parties was an administrative agreement and thus the first appellant, when he cancelled the agreement, was enforcing a public duty. The cancellation in terms of clause 11.5 was wrong and unwarranted as the tenets of natural justice applied as a result whereof the first appellant should have acted fairly, as required by art 18 of the Constitution, and should have given the respondent an opportunity to be heard. He should also have informed him of any prejudicial information in his possession. … [42] The statutory source of PSEMAS is the Public Service Act 13 of 1995 (the Act). Section 34(1) of the Act, dealing with the mandating of regulations by the Prime Minister, provides in ss (d) for ‘the establishment and management of and control over a medical-aid scheme for the Public Service’.

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[43] Regulations under the Act were promulgated under Government Notice 211 published in the Government Gazette of 1 November 1995 No 1187. Regulation 26 of the regulations provides that the Ministry of Finance shall manage the medicalaid scheme and that its objective shall be to make provision for the granting of assistance to members in defraying expenditure incurred by them in regard to various instances connected with medical care. It did not specifically provide for agreements with service providers or contracts to be concluded, nor did it prescribe in any way how the scheme was to be set up. [44] The medical aid scheme was set up in terms of rules published under Chap IX which in turn was issued in terms of s 35 of the Act. Paragraph 9(5) thereof provided for the following payment options open to members: (a) The contracted service provider claims from PSEMAS at 95% of the agreed tariff. (b) The member settles the account with a non-contracted-in service provider and with proof of receipt claims 95% of the agreed tariff from PSEMAS.

… [45] The above rules applied to and bound members of the medical scheme who are public service employees. The choice whether to become a service provider

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or not was that of the respondent. I accept that there was some coercion to enter into the agreement but this coercion, to a great extent in my opinion, stemmed from the fact that it would have been extremely beneficial to medical practitioners to enter into such an agreement. Patients would choose a medical practitioner who is a service provider over one who is not because they only needed to pay 5% up front of the fees charged. Compare that with the instance where a medical practitioner is not a contracted-in service provider and a patient has to pay 95% of the fees charged. Seen from the side of the service provider all accounts go to one institution, the administrator of the scheme, who, in terms of the agreement, must pay within 30 days, instead of sending accounts to all patients individually and then having to wait until they decide to pay. Last but not least the medical practitioner, who is a service provider, only looks to one institution for payment, namely the administrator of the scheme, who in turn is backed by the Ministry of Finance. All this enabled the respondent to have an income in excess of N$7 million for the year 2004, seemingly without bad debts. The respondent himself stated that he could not afford to practise any other way.

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[46] Those instances where the agreement required of the respondent to perform certain duties such as to determine whether the patient was a member of PSEMAS and to ensure that the patient was issued with a membership card and to determine the identity of the patient were mostly, if not all, measures necessary to combat fraudulent or dishonest claims. Strict compliance with these duties was therefore as much in the interest of the respondent as it was in the interest of the PSEMAS. PSEMAS disavowed specifically liability for claims based on the fraudulent or dishonest use of membership cards by its members or third parties. [47] The agreement also deals with the processing of claims, the validity of claims, fees, the change in the status of the service provider and membership cards. All these subjects contain measures to combat fraud and dishonesty and in my view contain nothing that is out of the ordinary. In my opinion it does not contain anything which would not have formed part of similar agreements if concluded with a private medical scheme. [48] Clause 11 provides for investigations, suspensions and related matters and clause 11.5 is the clause under which the respondent’s agreement was suspended and finally cancelled. The grounds on which suspension and cancellation could follow are fraud, dishonesty, false representations and engagement in dishonest business

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practice. These are all common law grounds for cancellation of an agreement and which could, in any commercial agreement between private individuals, lead to cancellation of the contract summarily, and that without being a specific term of such agreement. [49] In general the provision of suspension may not form part of normal commercial agreements between private individuals, but even that is to the benefit of the service provider, as it allows for a time span during which negotiations could take place, as was indeed the case in this instance. [50] For these reasons I am therefore of the opinion that at most it is doubtful whether the respondent, when he concluded the agreement, acted from an inferior position and, bearing in mind what was said in the Chirwa case supra, para 180, the relative weight of this principle against the overall picture cannot be of great importance. … [52] In order to determine whether a particular action amounts to administrative action, the following was stated in the Cape Metropolitan case supra, in para 17, namely:

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[17] It follows that whether or not conduct is administrative action would depend on the nature of the power being exercised (SARFU, in para [141]). Other considerations which may be relevant are the source of the power, the subjectmatter, whether it involves the exercise of a public duty and how closely related it is to the implementation of legislation (SARFU, in para [143]).

[53] The facts in the Cape Metropolitan case in my view closely resemble the facts in this appeal. In that matter the first respondent was successful in the Cape Provincial Division which set aside a decision by the Metropolitan Council to terminate a contract between the parties. On appeal the decision of the High Court was reversed. The Metropolitan Council was an organ of State created by statute. In terms of its statute it was empowered to enter into agreements with any person in terms of which that person undertook to exercise certain powers, on behalf of the Metropolitan Council, as agreed to between the parties. [54] In terms of the agreement between the parties the first respondent was to register people liable to pay regional services levies and to collect arrear levies. The respondent was paid a commission for its work. After allegations of fraudulent claims were brought to the attention of the Metropolitan Council an investigation

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was launched by it after which the agreement was summarily cancelled. In the letter of cancellation the first respondent was informed that the cancellation was based on a material breach of the agreement. [55] Before the High Court and the Supreme Court of Appeal the argument was that the cancellation amounted to administrative action. The argument raised by the first respondent was very similar to the argument raised before our High Court and before this court in the appeal now before us. [56] In the Cape Metropolitan case it was contended that the decision to terminate the agreement should be set aside on the grounds that the first respondent’s constitutional right to lawful, procedurally fair administrative action which was justifiable in relation to the reasons given for it, was violated by the summary termination of the agreement. As is the case in the appeal before us, the first respondent contended that there should have been full disclosure of the reasons on which the termination was based and that it should have been given a reasonable opportunity to be heard, either orally or in writing. [57] Also in that case the court a quo concluded that the issue was not whether the appellant had sufficient reason to terminate the agreement but rather whether the procedure adopted by the appellant in terminating the agreement was correct.

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[58] Dealing with these issues, the Court of Appeal concluded as follows: [18] The appellant is a public authority and, although it derived its power to enter into the contract with the first respondent from statute, it derived its power to cancel the contract from the terms of the contract and the common law. Those terms were not prescribed by statute and could not be dictated by the appellant by virtue of its position as a public authority. They were agreed to by the first respondent, a very substantial commercial undertaking. The appellant, when it concluded the contract, was therefore not acting from a position of superiority or authority by virtue of its being a public authority and, in respect of the cancellation, did not, by virtue of its being a public authority, find itself in a stronger position than the position it would have been in had it been a private institution. When it purported to cancel the contract it was not performing a public duty or implementing legislation; it was purporting to exercise a contractual right founded on the consensus of the parties in respect of a commercial contract. In all these circumstances it cannot be said that the appellant was exercising a public power.

[59] In the present instance there can be no doubt that the first appellant is a public authority and that the power to enter into the agreement was derived from statute.

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However, the terms of the agreement are not statutorily prescribed, in fact nowhere is there even any direct mention of an agreement. Clause 11.5, in terms whereof the first appellant had cancelled the agreement, contained only common-law grounds on which the agreement could be cancelled. Correctly, in my view, the respondent did not deny the right of the first appellant to cancel the agreement if such grounds in fact existed. These grounds existed in the common law and the fact that they were contained in the agreement did not alter that fact. These were therefore not terms which the first appellant imposed by virtue of one or other superior position in which he found himself vis-à-vis the respondent. In cancelling the agreement the first appellant was also not implementing legislation. [60] Furthermore, the subject-matter of the agreement between the parties was the rendering of medical services to members of the medical-aid scheme. Seen in this context the subject matter of the agreement was a service agreement and purely commercial. [61] For the above reasons I conclude that the first appellant, when he cancelled the agreement, was not performing a public duty or implementing legislation but was acting in terms of the agreement entered into by the parties and that it could not be said that the first appellant, in doing so, was exercising a public power. ….

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Notes 1. Appellants entered into an agreement with respondent doctor in terms of which respondent would provide medical services to members of PSEMAS (a government medical-aid scheme). Appellants cancelled the agreement on the ground that respondent was dishonest. In an application before it, the High Court reviewed and set aside the decision. Appellant minister appealed the decision. Before the Supreme Court, the question on appeal was whether the decision of the minister was an administrative action or contractual. A court could review the decision only if it was administrative; it was not reviewable if contractual. 2. In this case [4] the Supreme Court set out what constitutes administrative action for the purposes of judicial review of administrative action by administrative bodies and officials. The Court stated that the distinguishing feature is dependent not on the State functionary per se but on the function that the

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functionary performed; for instance, a commercial act is not an administrative act and is therefore not subject to art 18 of the Constitution. 3. I submit that in Namibia the function a State functionary, that is, the administrative body or official, performs cannot be the only deciding factor. It should be the second step in the determination. The first determinant step should perforce be whether the State functionary is an administrative body or official. If the State functionary is not an administrative body or official, that is the end of the enquiry: no matter what function that functionary performed, that functionary is not subject to review under administrative law. It is only where at the first step it is found that the functionary is an administrative body or official that one can proceed to see what function the functionary performed in order to determine whether the functionary’s action was an administrative action. For a full discussion of this point, including what administrative bodies are and who administrative officials are in Namibia, see chapter 3, section 3.2 (Text Part A). 4. In that regard, to assist courts in determining what constitutes administrative action for the purposes of judicial review of administrative action by administrative bodies and officials, the Supreme Court proposed the following: the court in question should determine the source of power that the body or official exercised, the nature of the power and whether the administrative body or official was exercising a public duty. An administrative body or official implementing legislation is carrying out an administrative action.

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[5] Disciplinary Committee for Legal Practitioners v Makando (A216/2008, A370/2008) [2011] NAHC 311 (18 October 2011) Parker J (Siboleka J concurring): … [23] I now proceed to consider the constitutional challenge based on Article 18. In Africa Personnel Services (Pty) Ltd v the Government of the Republic of Namibia & Others Case No A13/2008 (HC) the Court observed that the institutional and individual targets that must comply with the administrative justice requirements

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under Article 18 of the Namibian Constitution are only ‘administrative bodies’ and ‘administrative officials’. In my opinion, administrative bodies and administrative officials are State institutions who form the Bureaucratic Executive, which, together with the Political Executive, constitute the Executive organ of State in our system of constitutional governance based on the trias politica of the doctrine of separation of powers; and administrative officials are, as a matter of course, the personnel who man those institutions that fall within the Bureaucratic Executive.

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[24] Bearing this conclusion in mind, I make the following crucial points. The applicant is not part of the Bureaucratic Executive, and a priori, the Executive. The applicant is a tribunal within the meaning of Article 12(1) of the Namibian Constitution, established by the LPA, consisting mainly of members of the second respondent. It is a specialized tribunal, created by the Parliament, to deal with questions of professional duty peculiarly within the knowledge of the profession itself, and for that reason constituted mainly of members of the second respondent and appointed in terms of the LPA. In sum, the purpose and policy of the LPA is indubitably to make legal practitioners as far as possible masters in their own house. (In re Solicitor [1928] 72 Sol Jo 368 (Court of Appeal), approved in In re Solicitor [1945] 2 All ER 545 (Court of Appeal).) [25] Flowing from the above, it is important to signalize the following crucial point that the fact that the applicant is created by statute and in virtue of that fact a statutory body does not ipso facto make it an administrative body. In any event – and this is significant – Article 18 does not use the term ‘statutory bodies’ and this Court is not permitted by any stretch of legal imagination or judicial activism to replace the word ‘statutory’ with ‘administrative’ and from that alteration make conclusions that suit the Court. In sum, in terms of our law, given expression to in Article 18 of the Constitution, the word ‘statutory’ is not synonymous with the word ‘administrative’ as far as Article 18 is concerned. The term ‘administrative tribunal’, as proposed by Mr Khoza, may exist and may have meaning in other jurisdictions, but in Namibia under Article 18 of the Constitution such a term will have no meaning: it is alien to the law of Article 18 of the Namibian Constitution. Thus, a tribunal, like the applicant, is a statutory body in virtue of the fact that it is established by statute, but that does not by that fact alone make it an administrative body within the meaning of Article 18 of the Constitution, as aforesaid. Accordingly, I hold that the applicant is not an administrative body within the meaning of Article 18 of the Namibian Constitution, and a priori, Article 18 does

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not apply to the applicant. I hasten to add that I do not for a modicum of a moment propose that the applicant is not bound to act fairly and reasonably and comply with the requirements of the rules of natural justice and the requirements of the LPA. The Court is not an administrative body but it must, in determining any matter, act fairly and reasonably and comply with the requirements of the rules of natural justice and the requirements of any relevant legislation. In this regard, one must not lose sight of the fact that those noble requirements are not peculiar and exclusive to the application of Article 18 in respect of administrative bodies and administrative officials: they bind courts and other tribunals because, as I say, they are not peculiar and exclusive to Article 18. In the light of the aforegoing reasoning and conclusions, I do not, with respect, find the plethora of authorities referred to us by counsel respecting what is characterized as ‘administrative tribunals’ (whatever that means) of any real assistance on the point under consideration. [26] For all the aforegoing conclusions and reasoning, in my judgment, the first respondent’s constitutional challenge based on Article 18 of the Namibian Constitution, too, has no merit; and so it cannot succeed. [27] The result is that the respondent’s constitutional challenge under Case No A370/2008 is dismissed.

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Notes 1. Applicant instituted proceedings in which it sought an order to remove the name of the respondent, a practising legal practitioner, from the Roll of Legal Practitioners. Almost simultaneously, respondent instituted an application of his own based on art  18 of the Constitution in which he challenged the constitutionality of the Disciplinary Committee of the Law Society in its decision to find him guilty of 14 of the 16 counts of misconduct brought against him. 2. The Court developed the principle that in terms of art 18 of the Constitution, only administrative bodies and officials are subject to judicial review under administrative law. Furthermore, the term ‘statutory bodies’ is not synonymous with the term ‘administrative bodies’ for the purposes of judicial review under administrative law. The Court explained that tribunals are statutory bodies on account of the fact that they are established by statute, but they are not administrative bodies within the meaning of art 18; and so they are not subject to judicial review under administrative law.

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3.3 Principles and key features of judicial review A. Text Principles that courts have developed as tools to apply to cases of judicial review are embedded in the scope of judicial review of administrative action. They are mechanisms that courts apply to control administrative action by administrative bodies and officials, which is to ensure that administrative actions are lawful and valid on the basis that the administrative body or official concerned has acted within the power vested in them by the relevant legislation and has acted fairly and reasonably and in accordance with natural justice. It is therefore the interpretation and application of these principles that are at the centre of judicial review of administrative action.30 I have discussed the principles and key features in the remainder of the present chapter and elsewhere in this book.

3.3.1 Principles of ultra vires and legality

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A. Text It will be recalled that in judicial review of administrative action a court concerns itself with the interpretation and application of common-law principles that the courts have developed for judicial control of administrative action. We saw in chapter 2 (section 2.2) that judicial review of administrative action limits the power of courts to issues involving ultra vires and the legality of administrative action, that is, as a general rule, whether the administrative action is lawful and whether the process involved in taking the action was fair and reasonable and in compliance with natural justice. I submit that ‘the principle of legality’ is ‘the obverse facet of ’ the ubiquitous principle of ultra vires.31 ‘The simple proposition that a public authority may not act outside its powers (ultra vires),’ wrote Wade, ‘might fitly be called the central principle of administrative law.’32

30 Baxter (1984: p 351). 31 Baxter (1984: p 301). 32 HWR Wade (1984). Administrative Law (Fifth edition). Oxford: Clarendon Press, p 38.

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Doubtless, the ultra vires principle is the fountain from which streams of doctrines and other principles concerning judicial review of administrative action (and other categories of judicial review) spring; and so, many of the principles and doctrines of ultra vires and legality overlap and run into each other in complementary modes. I have discussed these principles and doctrines in the remainder of the present chapter. Put simply, ‘ultra vires describes a straightforward excess of public power’, 33 that is, an excess of the power vested by a statute in an administrative body and official. Of course, that is the narrow limit of the doctrine of ultra vires, which would, if that was all, make an administrative action lawful so long as the administrative body or official has acted within the bounds of the power that the relevant legislation has vested in the body or official. But that cannot be all: such a proposition of law overlooks the pivotal role of the principle of legality in administrative law. It is the principle of legality and its facet of the ultra vires principle that form the cornerstone of just, lawful and therefore valid administrative action,34 as intimated earlier on in the present paragraph. The reason is simply this: the narrow doctrine of ultra vires covers only a part of the requirements of just administrative action at common law and in terms of art 18 of the Constitution, namely, the requirement that administrative bodies and officials must comply with the requirements imposed by ‘any relevant legislation’. It is in the principle of legality that the other art 18 requirements – which are the requirements to act fairly, reasonably and in compliance with the rules of natural justice – find meaning and force. Accordingly, as we saw previously in section 3.2, the requirements of art 18 of the Constitution are not restricted to procedure only but also to the substance of the administrative action in question. The ultra vires principle, the principle of legality and the rules that flow from them are intended to limit the wide discretionary powers that Acts confer very freely on administrative bodies and officials.35

33 Gordon (1985: para 2–05). 34 Marinus Wiechers (1985). Administrative Law (translated by Gretchen Carpenter). Durban: Butterworths, pp 174–179. 35 Wade (1984: pp 22–23).

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B. Cases

[6] Skeleton Coast Safaris v Namibia Tender Board & Others 1993 NR 288 (HC) Hannah J: … I now come to the applicant’s contention that the first respondent acted ultra vires in awarding the concession to the third respondent. As already stated, Proclamation 82 of 1971 proclaimed the Skeleton Coast National Park as a game park in terms of the Proclamation. By virtue of s 17(1) of the Nature Conservation Ordinance 1975 the control, management and maintenance of the Park vested in what was then known as the Executive Committee. It is common cause that the successor of that body is the present-day Cabinet. Section 17(2) of the Ordinance provides the powers of the Cabinet in relation to game parks. They are as follows:

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(2) The Executive Committee may within a game park or nature reserve: (a) lay out and construct such roads, bridges, buildings, water installations, fences, breakwaters, seawalls, boathouses, landing stages, mooring places and swimming pools and carry out such other works as it may consider necessary for the control, management or maintenance of the game park or nature reserve; (b) take such steps as will ensure the safety of the animal and plant life and fisheries in the game park or nature reserve and the conservation of the game park or nature reserve and the animals, vegetation and fish therein in a natural state; (c) reserve areas as breeding places for animals or fish or nurseries for trees, shrubs, plants and flowers and set aside zones for such purposes as it may deem necessary or desirable; (d) provide accommodation for visitors to the game park or nature reserve and facilities in connection therewith; (e) provide meals and refreshments to visitors to the game park or nature reserve against payment of the fees determined by the Executive Committee from time to time, tariffs of which shall be displayed at a prominent place at the

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(f) (g) (h)

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(i) (j)

restaurant or other place where such meals and refreshments are provided: Provided that the Executive Committee may so determine different tariffs for different game parks and nature reserves; carry on any business or trade for the convenience of visitors to the game park or nature reserve; supply any other service for the convenience of visitors to the game park or nature reserve; establish, erect, equip and maintain any building, structure, depot or premises required in connection with any matter referred to in para (a), (e), (f) or (g), or let any premises required for such a purpose; make such charges in connection with any such matter as it may determine; authorize any person to carry on, subject to such conditions and the payment of such charges as it may deem fit, any activities which may be carried on by the Executive Committee in terms of para (e), (f) or (g).

Despite Mr Gauntlett’s submissions to the contrary, in my view, the right to operate safaris in a game park properly falls under s 17(2)(f) or (g). It follows that the Cabinet is empowered, in terms of s 17(2)(j), to authorise any person to operate safaris in the Skeleton Coast National Park subject to such conditions and the payment of such charges as it may deem fit. But in the present case the grant of the concession to the third respondent was not made by the Cabinet. It was made by the first respondent following a mandate given by the Ministry of Wildlife, Conservation and Tourism. The first respondent, submitted Mr Gauntlett, therefore purported to exercise a power specifically and exclusively vested in the Cabinet and accordingly acted ultra vires. Mr Hodes sought to meet this submission with the argument that the first respondent is charged by law with the procurement of all supplies and services for and on behalf of the State. The whole scheme of the legislation governing the first respondent, contended Mr Hodes, is designed to ensure that supplies and services for and on behalf of the State are procured by the first respondent and only the first respondent. Accordingly, any grant of a concession to operate safaris in the Skeleton Coast National Park had to be made by the first respondent and the award of the concession to the third respondent was intra vires. There are, in my view, several obstacles in the way of Mr Hodes’ submission, the first of which is that it is based on a misconstruction of the legislation governing the first respondent. The Tender Board Regulations were made pursuant to powers vested in the then Administrator by s 26A of the Finance and Audit Ordinance,

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1926, 36 a section inserted in that Ordinance by Ord 20 of 1970.37 Section 26A provides: 26A. (1) The Administrator may make regulations providing for the establishment, constitution, functions, powers and duties of a board (to be known as the South West Africa Tender Board) charged with the procurement of supplies and services for and on behalf of the Administration and the disposal of stores of the Administration, governing the procedure to be observed by such board in the exercise of its duties, providing that supplies and services shall not be procured for or on behalf of the Administration and stores of the Administration shall not be disposed of except through such board or in such other manner as may be prescribed in or determined in accordance with such regulations, and generally providing for incidental matters. (2) Notwithstanding anything to the contrary in any other law contained, any regulation made in terms of ss  (1) may, in addition to any other remedy prescribed therein, provide for the imposition by such board of a monetary penalty, calculated on such basis, or bases, as may be prescribed therein, on any person to whom such board has awarded a contract on the strength of information furnished by such person which subsequent to the award is shown to have been incorrect information, and may prescribe the manner in which any such penalty may be recovered. (3) Subject to the provisions of the regulations made in terms of this section the South West Africa Tender Board may procure supplies and services for and on behalf of and may dispose of stores of branches of State Departments of the Republic of South Africa serving in the Territory, save the Departments of Defence and Police and the Railways Administration.

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The general powers of the first respondent are to be found in reg 3(1), the material part of which reads: 3.  (1) These regulations govern the procurement of all supplies and services as well as the disposal of stores for and on behalf of the Administration of South West Africa and the Board may also procure supplies and services for and on behalf of and dispose of stores of branches of State Departments of the Republic of South Africa serving in the Territory, save the Departments of Defence and Police and of the South African Railways Administration and may for that purpose: (a) On behalf of the State, conclude an agreement with a person, firm or company within or outside the Republic and/or South West Africa for

36 Finance and Audit Ordinance, No 1 of 1926. 37 Finance and Audit Amendment Ordinance, No 20 of 1970.

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the furnishing of supplies and services to the State or the disposal of State stores ….

Mr Hodes submitted that s  26A should be read as meaning that the regulations must provide for the establishment of a tender board (charged with procuring services to be performed for or on behalf of the State) and that the operation of safaris within the Skeleton Coast National Park must be regarded as services performed for and on behalf of the State. It must follow, so counsel submitted, that the first respondent was not only the body but the only body empowered to grant the concession in question. The first difficulty I have with this submission is that it is confined to the enabling power set out in s 26A whereas I should have thought the proper place to look to ascertain the powers of the first respondent would be the regulations themselves. But putting that aside for one moment, I am of the opinion that the construction Mr Hodes seeks to place on s 26A is incorrect. While I agree that a quick or superficial reading of the section may give the impression that the words ‘for and on behalf of ’ govern ‘supplies and services’ a more considered approach, to my mind, makes it abundantly clear that these words govern the word ‘procurement’. The section empowers the Administrator to make regulations establishing a tender board charged with the duty to procure, for and on behalf of the State, supplies and services. This, in my view, is made even clearer when ss (3) is considered, where reference is made to the tender board procuring supplies and services for and on behalf the State Departments of the Republic of South Africa, save the Departments of Defence and Police and of the Railways Administration. Quite apart from the foregoing, it seems to me wrong to focus attention on the enabling legislation at the expense of the regulations themselves. The powers of the first respondent are to be found in the regulations and reg 3(1) makes it clear that the first respondent is empowered, on behalf of the State, to conclude agreements for the furnishing of supplies and services to the State, not for and on behalf of the State. In my view, it would be curious indeed if the regulations were to provide otherwise because there must be many services which the State might wish to have performed on its behalf, services such as mining and fishing concessions or even, for example, the operation of the State Prison Service. Such matters would hardly be suitable for determination by a board such as the first respondent. In my judgment, therefore, the first respondent was not empowered by reg 3(1) to decide the grant of a concession to operate safaris in the Skeleton Coast National Park. That concession is not a service to the State: It is a service to be performed on behalf of the State, which, through the Cabinet, is vested with the

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control, management and maintenance of the Park and with the exclusive power to carry on business for the convenience of visitors or to supply services for the convenience of visitors. That is not to say that the first respondent has no role to play in connection with game parks. Mr Gauntlett conceded, correctly in my view, that if it were to be decided that roads, for example, were to be built in a game park and that private contractors were to be used, then the award of the contract would have to be determined by the first respondent. That would be a service to the State whereas, as I have been at pains to point out, we are concerned in this case with a service or services on behalf of the State. It is clear that in enacting the Nature Conservation Ordinance 4 of 1975 the legislature was concerned that the control of game parks be placed in the hands of high authority. It determined in s 17 that it be placed in the hands of the Executive Committee, now the Cabinet. It set out in s  17(2) that powers which the Cabinet can exercise in relation to game parks and it singled out which of those powers the Cabinet can authorise other persons to carry on, subject to conditions, which the Cabinet may impose. No evidence has been placed before this Court that the Cabinet became involved at all in the grant of the concession to the third respondent, nor has any such suggestion been made. Indeed, the parties accept that it was not. In these circumstances, the only conclusion that can be arrived at is that the first respondent purported to exercise a power which it did not have. It acted ultra vires. …

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Notes 1. Applicant applied by way of notice of motion for an order that a decision made by first respondent (the Tender Board) to award a concession to third respondent to operate safaris in the National Park be declared null and void; alternatively, that the decision of third respondent be reviewed and set aside. Applicant had been operating safaris in the National Park for some years. At the expiration of applicant’s contract, the Tender Board invited bids for the new period. The Tender Board received tender bids from applicant and third respondent. Third respondent had tendered a higher price than the applicant, which would mean more revenue for the ministry. However, the latter indicated that this was a secondary factor. Third respondent had indicated that it had experts available to assist it in its operations. The Tender Board awarded the tender to third respondent.

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2. One of the grounds on which applicant based his review application was that first respondent had acted ultra vires in awarding the concession to third respondent. 3. The Court discussed the policy behind the enactment of the Nature Conservation Ordinance 4 of 1975 (Act No 4 of 1975), which was that the legislature had determined in s  17 of the Ordinance that control of game parks be placed in the hands of the pre-independence Executive Committee, now the Cabinet. The Court found that the parties had not placed any evidence before it that the Cabinet had become involved at all in granting the concession to third respondent. 4. The Court held that an administrative body or official acts ultra vires where they purport to exercise a power which they did not have. 5. Having found that first respondent purported to exercise a power which it did not have, the Court concluded that it had acted ultra vires.

3.3.2 Discretionary power to act and duty to act

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A. Text In an overwhelming number of cases, in carrying out their power under legislation, an administrative body or official exercises discretion. The concept of discretion in administrative law describes the power to act in a certain way, taking into account the existence and nature of surrounding circumstances, that is, ‘the power to make a choice [from] among a number of possibilities.’38 An important distinction recognised by law is that between absolute discretion and guided discretion – Wiechers refers to them as ‘free’ discretion or ‘circumscribed’ discretion.39 An Act vests guided or circumscribed discretion in an administrative body or official when the body or official does not have the free rein as to which circumstances to take into account in exercising its or their discretion: prescribed circumstances or prerequisites that must exist guide them in the exercise of the discretion. The discretionary power granted is therefore not absolute; the statute circumscribes such power. The prescribed circumstances may be referred to as jurisdictional fact. It consists of a fact or a state of affairs which, objectively speaking, must have existed 38 Wiechers (1985: p 220). 39 Ibid, p 221.

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before statutory power could be exercised, that is, the objective existence of the jurisdictional fact as a prelude to the exercise of a statutory discretionary power. Wiechers refers to them aptly as ‘prescribed objectively determined acts’.40 If the jurisdictional fact – that is, the prescribed, objectively determined fact – does not exist, the administrative body or official should not exercise the discretionary power. Any purported exercise of the power would be invalid.41 I hasten to add that in relation to the exercise of discretion, Wiechers’ description of such facts is preferred because it fittingly describes the nature of the circumstances that should exist as a prelude to exercising the discretion.42 Thus, a minister who has granted a mining licence where the circumstances prescribed by the relevant Act (ie the jurisdictional fact) are not present has exercised the discretionary power unlawfully because he or she would not have met the statutory requisite for the exercise of the power. It follows inexorably that discretionary power must be exercised for the purposes for which they were granted; relevant considerations must be taken into account and irrelevant considerations disregarded; they must be exercised in good faith and not arbitrarily or capriciously.43 If the repository of power fails to comply with these requirements, they act ultra vires.44 On the other hand, a statute may enjoin an administrative body or official (ie the public authority) to perform a duty. In that event, the public authority does not exercise discretion: it must carry out the duty imposed by the applicable statute. In that regard, the relevant legislation obliges the public authority to act and to perform the act in a manner that the legislation may specify or prescribe.45

40 Ibid, p 137. 41 SA Defence & Aid Fund & Another v Minister of Justice 1967 (1) SA 31 (C), at 34F–H. 42 See Nguvauva v Minister of Regional and Local Government 2015 (1) NR 220 (HC), para 11. 43 These constitute grounds for judicial review of administrative action, and I have discussed them in chapter 4. 44 I have discussed the principle of ultra vires with reference to judicial review of administrative action in para 3.3.1. 45 Nguvauva v Minister of Regional and Local Government supra, para 11.

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B. Cases

[7] Minister of Health and Social Services v Lisse 2008 (2) NR 739 (SC) O’Linn AJA: … [20] Mainga J in the Court a quo found it necessary to attempt to explain the difficult concept of the exercise of discretion by referring to the dicta of Horwitz J in the case of Van Aswegen v Administrator, Orange Free State, & Others 1955 (3) SA 60 (O), at 71C and 71D–E. Since the enactment of our art 18, the quotations referred to have become even more appropriate and indeed even more helpful. Horwitz J said, inter alia: Discretion must be exercised on grounds based on facts which are obtained in one way or another. Discretion is something more than a gut feeling.

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Mainga J then referred with approval to Halsbury’s Statutes of England 2 ed (1951),46 part 25 at p 16 wherein the learned authors stated: Discretion is a science of understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, not to do according to the will and private affections.

And again: Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done within the rules of reason and justice and not according to private opinion; according to law and not humour. It is to be not arbitrary, vague or fanciful, but legal and regular. [See Van Aswegen, at 71D–E.]

46 Burrows (ed) (1951). Halsbury’s Statutes of England (Volume XXV) (Second edition). London.

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Notes 1. Respondent, a medical practitioner, had applied to the minister for written authorisation, as required by s 17 of the Hospitals and Health Facilities Act 36 of 1994 (Act No 36 of 1994), to use the facilities of the Windhoek State Hospital for the treatment of his private patients. The responsible minister refused his application. The Court a quo, upon his application to review and set aside the decision, had ordered the minister to issue the necessary certificate in terms of s 17 of the Act. The minister appealed against that decision. 2. The Supreme Court approved the High Court’s explanation of the concept of exercise of discretion by administrative bodies and officials. 3. Reference is also made to the English House of Lords case of Sharper v Wakefield [1891] AC 173 (HL), at 179, where Lord Halsbury LC stated: An extensive power is confided to the justices in their capacity as justices to be exercised judiciously; and ‘discretion’ means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion; Rooke’s case (5 Rep 100a); according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to an honest man competent to the discharge of his office ought to confine himself.

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4. The Supreme Court, apparently relying on Sharp v Wakefield, held that when a public authority is to act with discretion, it means the public authority must act within rules of reason and justice and not according to opinion, according to law not humour, and not vague or fanciful, but legal and regular.

[8] Trustco Insurance Ltd t/a Legal Shield Namibia & Another v Deeds Registries Regulation Board & Others 2010 (2) NR 565 (HC) Parker J (Ndauendapo J concurring): … [38] Another important point must be emphasised, viz that the court is not entitled to hold that just because the second applicant thinks that the hourly-based

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rate of tariff of fees better serves his self-serving purposes than the ad valorembased rate of tariff of fees and so therefore in prescribing the latter tariff the first respondent acted unreasonably. It is worth noting that the art  18 requirement that administrative bodies and administrative officials must act reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the administrative body or administrative official that the Legislature in its wisdom and within its constitutional power appointed to act (see Wade, Administrative Law, 5 ed (1984), at p 362). As Mr Gauntlett reminded the court more than once, in these proceedings, the court is not a court of appeal; it is therefore not for this court to substitute any decision in the place of that of the first respondent but merely, upon the moving of the second applicant, to decide whether the Deeds Registries Act (as amended), particularly s 10(1), has been administered reasonably. (See Seervai, Constitutional Law of India: A Critical Commentary, 4 ed (1999), p 1520 fn 30.47) I will say administered ‘reasonably and fairly’; for, as Levy AJ said in Frank & Another v Chairperson of the Immigration Selection Board supra, at 265E, ‘an unreasonable decision would always be unfair’; a priori, by a parity of reasoning, a reasonable act would always be a fair act. [39] Furthermore, in this regard, one must not lose sight of the fact that the very concept of administrative discretion always involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred (Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 (HL), at 1064): the true and overriding question must always be whether the statutory power has been exceeded (Wade, Administrative Law ibid, at 365); and I have held above that in making the Regulations and the Schedules, the first respondent did not exceed their statutory power; neither did the third respondent when the third respondent approved the Regulations. Thus, it cannot be argued that in making the Regulations and the Schedules the first respondent did act unreasonably and unfairly merely because particular judges may think that the Regulations and the Schedules go further than is prudent or necessary or convenient, or because it is not accompanied by a qualification which some judges may think ought to be there (Kruse v Johnson [1898] 2 QB 91, at 99–100). 47 HM Seervai (1999). Constitutional Law of India: A Critical Commentary (Fourth edition). Reprinted Mumbai: FH and NH Seervai.

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Accordingly, I do not, with the greatest deference, find the views expressed in Vaatz v Law Society of Namibia & Others 1996 NR 272 (HC), at 278H–I, referred to me by counsel, of any real assistance on the point under consideration. Neither can it be argued that in making the Regulations and the Schedules the first respondent did act unreasonably and unfairly merely because the second applicant thinks he would not make a great deal of money as a conveyancer if the Regulations and the Schedules were allowed to remain on the statute books. [40] For the aforegoing, I come to the inevitable conclusion that the second applicant has failed to establish that in making the Regulations and the Schedules, prescribing the said ad valorem-based rate of tariff of fees and charges, and in approving them, the first respondent and the third respondent, respectively, did not ‘act fairly and reasonably’ within the meaning of art 18 of the Namibian Constitution. I, therefore, hold that the second applicant has failed to establish that art 18 of the Namibian Constitution has been infringed in relation to him in virtue of the making, and approving, of the Regulations and the Schedules. Having so held, I find that as respects the art 18 challenge, too, the interpretation and application of arts 21(2) and 22 of the Constitution do not arise in these proceedings. …

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Notes 1. First applicant, a short-term insurer, had entered into an oral agreement with second applicant, a firm of legal practitioners, in terms of which second applicant agreed to perform conveyancing services for first applicant’s members at a price based on an hourly rate. However, in terms of regulations promulgated under the Deeds Registries Act, 1937 (Act No 47 of 1937), the fees prescribed for conveyancers were based on the value of the immovable property, the so-called ‘ad valorem fees’. 2. One of the issues the Court was to determine was whether the regulations made under the Deeds Registries Act, 1937 (Act No 47 of 1937) constituted an unfair administrative act. In determining the issue, the Court found it necessary to consider aspects of the concept of discretion, particularly whether respondents exercised their discretion properly when they made the regulations. 3. The Court held that a requirement that administrative bodies and administrative officials must act reasonably has to be reconciled with the no less important

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doctrine that the Court must not usurp the discretion of the administrative body or administrative official that the legislature in its wisdom and within its constitutional power has given the power to act. 4. The Court held further that the concept of administrative discretion always involves the right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.

[9] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 22 (CA) Lord Green MR:

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… The actual words in question here are to be found in s 1, sub-s 1, of the Act of 1932. [His Lordship read the sub-section.] The power to impose conditions is expressed in quite general terms. The sub-section goes on to refer to certain conditions which must be imposed, but with those we are not concerned. In the present case, the defendants imposed the following condition in their licence: ‘No children under the age of fifteen years shall be admitted to any entertainment, whether accompanied by an adult or not.’ Mr Gallop, for the plaintiff, argued that it was not competent for the Wednesbury Corporation to impose any such condition and he said that if they were entitled to impose a condition prohibiting the admission of children, they should at least have limited it to cases where the children were not accompanied by their parents or a guardian or some adult. His argument was that the imposition of that condition was unreasonable and that in consequence it was ultra vires the corporation. … What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court,

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whenever it is alleged that the local authority has contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of cases. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters. There have been in the cases expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty – those, of course, stand by themselves – unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word ‘unreasonable’. It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person

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entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch 66, at 90, 91 gave the example of a red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another. In the present case, it is said by Mr Gallop that the authority acted unreasonably in imposing this condition. It appears to me quite clear that the matter dealt with by this condition was a matter which a reasonable authority would be justified in considering when they were making up their mind what condition should be attached to the grant of the licence. Nobody, at this time of day, could say that the well-being and the physical and moral health of the children is not a matter which a local authority, in exercising their powers, can properly have in mind when those questions are germane to what they have to consider. Here Mr Gallop did not, I think, suggest that the council were directing their mind to a purely extraneous and irrelevant matter, but he based his argument on the word ‘unreasonable’, which he treated as an independent group for attacking the decision of the authority; but once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted, Mr Gallop is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that the ultimate arbiter of what is and what is not reasonable is the court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority is entrusted by parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming,

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and, in this case, the facts do not come anywhere near anything of that kind. I think Mr Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authorities that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere. This case, in my opinion, does not really require reference to authority when once the simple and well-known principles are understood on which alone the court can interfere with something prima facie within the powers of the executive authority, but reference has been made to a number of cases … Then he goes on to deal with the question of reasonableness. That was a case in which the decision, in my opinion, is unassailable. There are two other cases relied upon. One is R v Burnley Justices 85 LJ (KB) 1565, and another not dissimilar case on one point, Ellis v Dubowski [1921] 3 KB 621. Those were the cases where the illegal element which the authority had imported into the conditions imposed consisted of a delegation of their powers to some outside body. It was not that the delegation was a thing which no reasonable person could have thought was a sensible thing to do. It was outside their powers altogether to pass on this discretion which the legislature had confided to them to some outside body. Another case on which Mr Gallop relied is Roberts v Hopwood [1925] AC 578 (HL). That was a totally different class of case. The district auditor had surcharged the members of a council who had made payments of a minimum wage of 4l [£4] a week to their lowest grade of workers. That particular sum had been fixed by the local authority not by reference to any of the factors which go to determine a scale of wages, but by reference to some other principle altogether, and the substance of the decision was that they had not fixed 4l a week as wages at all and that they had acted unreasonably. When the case is examined, the word ‘unreasonable’ is found to be used rather in the sense that I

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mentioned a short while ago, namely, that in fixing 4l they had fixed it by reference to a matter which they ought not to have taken into account and to the exclusion of those elements which they ought to have taken into consideration in fixing a sum which could fairly be called a wage. That is no authority whatsoever to support the proposition that the court has power, a sort of overriding power, to decide what is reasonable and what is unreasonable. The court has nothing of a kind.

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… I do not find in the language that he used any justification for thinking that it is for the Court to decide on the question of reasonableness rather than the local authority. I do not read him as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, would have decided to impose … In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarize once again the principle applicable. The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority has kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority has contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs. Somervell LJ: I agree that the appeal must be dismissed for the reasons which have been given by the Master of Rolls, and I do not desire to add anything.

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Notes 1. The Sunday Entertainments Act, 1932, empowered local authorities to license theatres for Sunday opening, ‘subject to such conditions as the authority think fit to impose.’ Respondent corporation issued a licence to the appellant theatre proprietor subject to a condition that ‘no children under the age of 15 years shall be admitted whether accompanied by an adult or not’. Appellant sought a declaration that the condition was unreasonable and, in consequence, ultra vires. 2. The Court discussed the need to reconcile the requirement of reasonableness with the principle of exercise of discretion. 3. The Court enunciated the principle that it is the responsibility of the depository of discretionary power to decide what is reasonable, not the courts; the Court may interfere with the public authority’s exercise of discretion only based on unreasonableness, that is, if the public authority came to a conclusion so unreasonable that no reasonable public authority could ever have come to it. 4. The requirement that administrative bodies and officials must act reasonably and fairly is discussed fully in chapter 4 (section 4.2).

[10]

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Nguvauva v Minister of Regional and Local Government 2015 (1) NR 220 (HC) Parker AJ: … [9] According to the Act the designation of a chief of a community is primarily in accordance with the customary law of the community in question, and the designation is regulated by the Act. See Kahuure, para  20. And s  5 of the Act concerns approval to make such designation. It is supremely important to note that there are two diametrically opposed schemes of approval. The two schemes are absolutely unconnected, and they cannot be conflated, as Mr Marcus appeared to do. The first scheme relates to approval by the minister, and the second by the President. On the facts of the instant case the presidential scheme of approval, which is governed primarily by ss (1), (3), (4), (5), (6) and (7) of s 5 of the Act, does

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not apply in this proceeding. It is the ministerial scheme of approval that applies, and it is governed primarily by ss (1), (2) and (7) of the Act. It is, as I have intimated earlier, an absolute imperative that the two schemes are kept strictly apart. This reality is further buttressed by s 5(7) of the Act. Section 5(1), (2) and (7) provides: 5. (1) If a traditional community intends to designate a chief or head of a traditional community in terms of this Act: (a) the Chief ’s Council or the Traditional Council of that community, as the case may be; or (b) if no Chief ’s Council or Traditional Council for that community exists, the members of that community who are authorised thereto by the customary law of that community, shall apply on the prescribed form to the minister for approval to make such designation, and the application shall state the following particulars: (i) (ii) (iii) (iv) (v)

the name of the traditional community in question; the communal area inhabited by that community; the estimated number of members comprising such community; the reasons for the proposed designation; the name, office and traditional title, if any, of the candidate to be designated as chief or head of the traditional community; (vi) the customary law applicable in that community in respect of such designation; and (vii) such other information as may be prescribed or the Minister may require.

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(2) On receipt of an application complying with subsection (1), the Minister shall, subject to subsection (3), in writing approve the proposed designation set out in such application. … (7) On receipt of any written approval granted under subsection (2) or (6), the Chief ’s Council or Traditional Council or, in a situation contemplated in subsection (1)(b), the members of the traditional community, as the case may be, shall in writing give the Minister prior notification of the date, time and place of the designation in question, whereupon the Minister or his or her representative shall attend that designation, and shall: (a) witness the designation of the chief or head of the traditional community in question; and (b) satisfy himself or herself that such designation is in accordance with the customary law referred to in paragraph (vi) of subsection (1).

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[10] Doubtless, s  5(2) of the Act is critical in the determination of the instant application. Upon receiving an application to approve the designation of a chief the minister must apply his or her mind to such application and in doing so he or she must satisfy himself or herself that the application he or she has received complies with the requirements in paras (i) to (vii) of s 5(1) of the Act. I should note that para (vii) has no relevance in this proceeding: it comes into play only if the minister has ‘prescribed’ or ‘required’ ‘other information’ (to use the words of the Act). There is nothing on the papers tending to show that there is some information which the minister had ‘prescribed’ or ‘required’ in the instant matter.

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[11] It follows reasonably and irrefragably that in the instant matter what the minister had to be satisfied with when he received the applications in respect of Keharanjo and in respect of Kilus are the requirements in paras (i) to (vi) of ss (1) of s  5 of the Act. They are what Marinus Wiechers in his work, Administrative Law (1985),48 at p 137 refers to as ‘prescribed objectively determinable facts’. Thus, in considering the two applications that he had received, the minister was to be satisfied that those ‘prescribed objectively determinable facts’ in s  5(1)(i) to (vi) of the Act existed before deciding to act or not. That is the only discretion the minister has in the ministerial approval scheme under s  5(1) of the Act. As I shall demonstrate in due course, the minister has no discretion under s  5(2) of the Act. This legal reality must not be missed. As HWR Wade wrote in his work, Administrative Law 5 ed (1984), at p 623: Public authorities have a great many legal duties, under which they have an obligation to act, as opposed to their legal powers, which give them discretion whether to act or not.

[12] In the instant matter, the minister has a legal power – discretionary power – whether to act or not in terms of s 5(1) of the Act, but he has an obligation to act – duty to act – in terms of s 5(2) of the Act. The minister’s obligation to act under s 5(2) of the Act is opposed to his legal power to act or not under s 5(1). And the two legal duties have never been conflated and taken as one in our law, as Mr Marcus appears to do.

48 Marinus Wiechers (1985). Administrative Law (translated by Gretchen Carpenter). Durban: Butterworths.

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[13] Thus, if in the opinion of the minister, those statutorily prescribed objectively determinable facts in s 5(1) of the Act did not exist in respect of the application relating to Kilus or Keharanjo, the minister was obliged to inform the traditional authority that the application of one, or both of them, as the case may be, did not comply with s 5(1) of the Act. And that would have been the end of those applications or one of them, as the case may be, as far as the minister was concerned. But if, in the opinion of the minister the applications or one of them complied with s 5(1) of the Act, then, as a matter of law, the minister was ‘simply compelled to execute its (his) ministerium or prescribed task’. (See Marinus Wiechers, Administrative Law, loc cit.) And the prescribed task is to approve the designation of Keharanjo and Kilus in terms of s 5(2) of the Act.

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[14] From what I have said previously, the conclusion is inescapable that in terms of s 5(1) of the Act the minister has a discretion in determining whether in respect of an application to approve a designation the prescribed objectively determinable facts in s 5(1) of the Act exist, that is whether the application has complied with s 5(1) of the Act. And if, in the opinion of the minister, an application has complied with s 5(1), he has no discretion – not even a modicum of it – to decide whether he should approve a designation. As Wiechers says, the minister ‘is simply compelled to execute his ministerium or prescribed task’. And the prescribed task, as I have said more than once, is to approve the designation. The minister must then simply carry out his statutory duty. [15] The question that now arises is this: did the minister inform Keharanjo or Kilus – directly or indirectly – that, in his opinion, his application did not comply with s 5(1) of the Act? On the papers it is undisputed that there is nothing – nothing at all – which shows that the minister informed the authority (or, indeed, Keharanjo or Kilus) that the application of Kilus or Keharanjo, or both of them, did not comply with s 5(1) of the Act. The only undisputed factual finding is accordingly this: the minister did not inform the authority that the application of Keharanjo or Kilus, or the applications of both of them, did not comply with s 5(1) of the Act. … [17] The question may be asked rhetorically; if the minister had not decided that Keharanjo’s application complied with s  5(1), how could the minister have resolved, that is, decided that Keharanjo should become the successor to his late father Nguvauva II (Munjuku)? And if the minister had not decided that Kilus’s

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application complied with s  5(1), how could the minister have decided that the community should go for elections in order ‘to choose’ between Kilus and Keharanjo, the only persons whose applications the minister had pending before him, and who were the only two contenders, as ‘the right successor to the late Chief Munjuku II’? [18] By virtue of the aforegoing factual findings and the reasoning and conclusions, I respectfully reject the submission by Mr Marcus that the minister has not decided that the application of Kilus and the application of Keharanjo complied with s 5(1) of the Act. The minister did decide in 2010 that both applications complied with s 5(1) of the Act. I, therefore, accept Mr Frank’s submission on the point. With the greatest deference to Mr Marcus, I should say this. Having bypassed the fifth and sixth signposts, Mr Marcus was apt to miss the essentiality of the interpretation and application of s 5(1) and (2) of the Act, leading counsel to arrive at the argument he made, which, as I say, has no merit.

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[19] The aforegoing reasoning and conclusions concern the minister’s exercise of discretionary power under s 5(1) of the Act and they establish the basis upon which, in my judgment, the relief sought in para 2 of the notice of motion should be granted. The next level of the enquiry concerns the minister’s obligation under s 5(2) of the Act. [20] By 20 May 2010, the minister had decided that the application for approval to designate Kilus and Keharanjo complied with s 5(1) of the Act. In other words, in the opinion of the minister, the prescribed objectively determinable facts existed as regards the application of Kilus and of Keharanjo. In that event, as Wiechers says, the minister is simply compelled to execute his ministerium or prescribed task. The prescribed statutory task is to approve the applications in terms of s 5(2) of the Act, as I have said ad nauseam; and, a fortiori, the ipsissima verba of s 5(2) say so clearly and unambiguously thus: On receipt of an application complying with subsection (1), the Minister shall … in writing approve the proposed designation set out in such application.

… [23] Flowing from all the aforegoing factual findings and reasoning and conclusions, I should signalise these important and undisputed points which, with the greatest deference to the honourable minister, the minister missed, or about

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which, I dare say, the minister was wrongly advised. They are the following. As far as the law is concerned, the minister has only two pending statute compliant applications still waiting on his desk, that is, the applications relating to Kilus and Keharanjo. The latter’s application, with the greatest respect to the dead, has fallen off the minister’s desk permanently. It follows inevitably and reasonably that, as I have said more than once, the minister has only the designation of Kilus to approve in terms of s 5(2) of the Act. That is the only task the minister must be compelled to execute; it is, in this proceeding, the minister’s ministerium or prescribed task, to use the words of Wiechers. Thus, Kilus has acquired a right to have his designation approved. In this regard, I should say in parentheses that I take no cognisance of the intervening application involving Aletha, which, in any case failed. The intervening application has no relevance and is of no assistance on the issues under consideration in this proceeding. [24] As I say, the Minister has a duty to execute his ministerium or prescribed task, which is to approve the designation of Kilus. Writing about public duties in his work Administrative Law, ibid, at p 623, HWR Wade states:

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Public duties As well as illegal action, by excess or abuse of power, there may be illegal inaction, by neglect of duty. Public authorities have a great many legal duties, under which they have an obligation to act, as opposed to their legal powers, which give them discretion whether to act or not.

The minister has an obligation to act, which is, carry out his prescribed duty under s 5(2) of the Act. As I have held previously, s 5(2) does not give the minister legal power, which would give him the discretion whether to act or not. The minister has a bounden obligation to act in terms of s 5(2) of the Act; and it is to approve Kilus’s designation as set out in such application (to borrow the words of s 5(2) of the Act); no more, no less. A learned judge once said: Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. [Doe Dem Murray, Lord Bishop of Rochester v Bridges (1831) 1 B & Ad 847, at 859; per Lord Tenterden CJ (quoted in HWR Wade, ibid, at p 627).]

[25] In the instant case, the minister cannot, and should not, perform his obligation under s 5(2) in any other manner. He can only approve the designation of Kilus as set out in Kilus’s application, or application concerning Kilus. And for the

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court, the one effective remedy available to compel the minister’s performance is mandamus; a remedy used ‘to prevent breach of duty and injustice’. (HWR Wade, Administrative Law, ibid, at p 633.) In sum, I hold that Kilus has succeeded in persuading this court to exercise its discretion in favour of granting mandamus. By a parity of reasoning, I hold also that Kilus has established, as I have found previously, an existing right which must be protected by declaratory order. The aforegoing reasoning and conclusions impel me to reject Mr Marcus’s submission that ‘there is no evidence that the Minister has considered the application for designation’. As I have demonstrated, Mr Marcus, with respect, misreads the relevant provisions of s 5 of the Act. For instance, counsel brings in s 5(6) of the Act which does not concern the ministerial scheme of approval of designation under the Act: it concerns the presidential scheme. I, therefore, conclude that Mr Marcus’s submission cannot take the first respondent’s case any further in this proceeding.

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Notes 1. The present proceedings were part of a series of proceedings in respect of a protracted dispute over the chieftaincy of the Ovambanderu Community that had arisen on the death of Chief Munjuku II Nguvauva in January 2008. The late chief had two sons, one born in wedlock (Keharanjo) and one out of wedlock (Kilus, third respondent). Both sons had their supporters, who each made an application to first respondent, the Minister of Regional and Local Government and Housing and Rural Development (the minister), to approve the designation of their choice as chief of the community in terms of the Traditional Authorities Act 25 of 2000 (Act No 25 of 2000, ‘the Act’). 2. The minister appointed a Ministerial Investigating Committee (the Committee) to investigate the dispute. The Committee held public hearings, after which it concluded that, according to the customary rules of the community, a child born of a chief ’s marriage was senior for purposes of succession to one born out of wedlock. On this basis Keharanjo was the senior son, even though he was younger in age. 3. The minister accepted this recommendation and made this clear in a letter to Keharanjo’s legal practitioners. The minister later changed his mind and opted for the committee’s alternative recommendation, namely, that an election be held to determine the late chief ’s successor. Unfortunately, before the election

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4.

5.

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6.

7.

8.

could take place, Keharanjo died. In the present main proceedings, which were brought before his death, Keharanjo sought an order that his appointment as the chief of the Ovambanderu Traditional Community was valid. He also sought an order reviewing, correcting and/or setting aside the minister’s subsequent decision to hold an election to determine the question of a successor to the chieftaincy. The traditional authority and Kilus opposed the main application; they simultaneously brought the present counter-application in which they sought an order referring the designation of chief back to first respondent and declaring that Kilus had been duly designated as chief of the community. Case [10] is the first case where the High Court considered the jurisprudential distinction between the legal duty of administrative bodies to act and their discretionary power in administrative law. Relying on textual authority from the ground-breaking work Administrative Law (1985) by Marinus Wiechers and case-law authorities, the High Court discusses that distinction. Public authorities have a great many legal duties under which they have an obligation to act, as opposed to their legal powers, which give them a discretion whether to act or not. Public authorities have a great many legal duties, under which they have an obligation to act, as opposed to their legal powers, which give them a discretion whether to act or not. The Court explained the phrase ‘prescribed objectively determinable facts’ (a coinage of Marinus Wiechers) whose existence impose a legal duty on the public authority concerned to carry out its ministerium or prescribed task. The existence or non-existence of the prescribed objectively determinable facts determines whether the public authority concerned has a legal duty – as opposed to a discretion – to act. Where in the exercise of discretion the administrative body or official must be satisfied that certain prescribed objectively determinable facts existed, those facts must in fact exist before the body or official could exercise the discretion. Where an Act creates an obligation and enforces the performance in a specific manner, the general rule is that the public authority cannot enforce performance in any other manner. The Court held that in the instant matter, what the minister had to be satisfied with when he received the two separate applications in respect of both contenders were the requirements in paras (i) to (vi) of s 5(1) of the Act, which were the prescribed objectively determinable facts. In considering the two applications,

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the minister had to be satisfied that those facts existed before deciding to act or not. That was the only discretion the minister had in the ministerial approval scheme under s 5(1) of the Act. If in the opinion of the minister an application complied with the section, he had not even a modicum of discretion to decide whether he should approve a designation of the applicant concerned. He had a legal duty to act, that is, to carry out his ministerium or the prescribed task.

3.3.3 Rule of no fettering of discretion of administrative bodies and officials

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A. Text In administrative law, the concept of fettering discretion applies to two distinct circumstances. In one set of circumstances, the concept becomes relevant when an administrative body or official lays down for itself a general policy to guide its action-taking.49 Thus, an administrative body or official may apply principles of general policy in exercising its discretion.50 I submit that an administrative body or official may make general policy and may decide on its own procedure in taking any action, unless the relevant legislation has laid down a procedure the body or official should follow, so long as the body or official satisfies the common-law and constitutional-law requisites for just, reasonable and fair administrative action.51 In the other set of circumstances, the concept becomes relevant when administrative bodies or officials incur contractual obligations in private law and they set up the argument that they are constrained to act in a particular way that would enable them to perform their obligations under the contract.52 Thus, the general rule is that contracts may be inconsistent with the proper exercise of power by an administrative body or official and the body or official may not through contracts fetter themselves so as to disable themselves from exercising the discretion granted by legislation. Nevertheless, the legislation that grants discretion may give the administrative bodies or officials concerned the power to enter into contracts in the exercise of their powers and in the performance of their functions under the legislation. This 49 50 51 52

Sagnata Investments Ltd v Norwich Corporation [1971] 2 All ER 1141 (CA). Wiechers (1985: p 144 fn 185). See chapter 4. Gordon (1985: para 2–09).

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is particularly so in the case of local authority councils and parastatal enterprises. In any case, generally, contracts fetter a party’s freedom of action in some way; and so the question that arises is how far administrative bodies and officials may legally bind themselves in future.53 According to Birkdale District Electric Supply Co Ltd v Southport Corporation, 54 it is a well-established principle of law that if the legislature entrusts a public authority with certain powers and duties expressly or impliedly for public purposes, that public authority cannot divest itself of those powers and duties. They cannot enter into contracts or take actions incompatible with the due exercise of their powers or the discharge of their functions. B. Cases

[11] Wlotzkasbaken Home Owners Assoc v Erongo Regional Council 2007 (2) NR 799 (HC) Parker J:

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… [18] I pass to deal with the merits of the present application. The pith and marrow of the application is that, in sum, the applicants seek to enforce the court order of 20 November 2006, incorporating the 2006 agreement: the terms of that agreement are set out in extenso above. Therefore, logically, it is to the interpretation and application of the 2006 agreement that I must address myself. [19] As I see it, despite the fact that this case has been argued extensively and I have been referred to quite a number of authorities, in my view, it falls within an extremely short and narrow compass. It is this: what does the 2006 agreement, read with the 2000 agreement, say? [20] Mr Smuts submitted that the essence of the applicant’s application is rooted in upholding the principle of rule of law, which finds expression in art  1 of the 53 Wade (1984: pp 335–336). 54 [1926] AC 355, at 364.

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Namibian Constitution. In short, he argued, there is the 2006 agreement, which was elevated to the status of a court order, and the rule of law expects that court orders be obeyed. The second fundamental premise on which the application stands is the well-tested principle of pacta sunt servanda, which requires that contracts must be enforced. (Christie, The Law of Contract in South Africa, 5 ed, at p 199;55 Barkhuizen v Napier 2007 (5) SA 323 (CC), at 341B–D.) Mr Oosthuizen submits that the first respondent differs with the applicants’ categorisation that the application has its roots in, and is directed at, upholding the rule of law: the categorisation is an oversimplification, he says. But he does not deal with the principle of pacta sunt servanda. …

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[30] On behalf of the first respondent, Mr Oosthuizen submitted that the central and decisive issue for consideration is whether the first respondent’s statutory power and discretion to lease the erven situated at Wlotzkasbaken, apart from and excluding those erven in respect of which the first applicant’s members have pre-emptive and renewal rights, may be fettered by the 2006 agreement. [31] Mr Oosthuizen’s submission calls for an inquiry into the applicability of the general principle of contractual fetters on discretion or the rule of ‘no fettering of discretion’. The general principle is that ‘an authority may not by contract fetter itself so as to disable itself from exercising its discretion as required by law’ (Wade and Forsyth, Administrative Law by Sir William Wade, 7 ed, at p 36656). (See also De Smith et al, Principles of Judicial Review, chap 10;57 Baxter, Administrative Law, at pp 419–424.) The general principle has been stated, developed and refined in a number of cases, for example Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 (HL); Denman (JL) & Co Ltd v Westminster Corporation [1906] 1 Ch 464 (CA); Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355 ([1926] All ER Rep Ext 714); Stourcliffe Estates Co Ltd v Corporation of Bournemouth [1910] 2 Ch 12 (CA) ([1908–10] All ER Rep 785); Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500; Sachs v Donges NO 1950 (2) SA 265 (A); Waterfalls Town 55 RH Christie (2006). The Law of Contract in South Africa (Fifth edition). LexisNexis/ Butterworths. 56 W Wade and C Forsyth (1994). Administrative Law (Seventh edition). Oxford: Clarendon Press. 57 SA de Smith, Lord Woolf and J Jowell (1995). Judicial Review of Administrative Action (Fifth edition). Sweet & Maxwell.

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Management Board v Minister of Housing 1957 (1) SA 336 (SR); R v Hammersmith and Fulham London Borough Council, Ex parte Beddowes [1987] 1 KB 1050 (CA) ([1987] 1 All ER 369); Fellner v Minister of the Interior 1954 (4) SA 523 (A); President of the Republic of South Africa & Others v South African Rugby Football Union & Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059); Dowty Boulton Paul Ltd v Wolverhampton Corporation [1971] 2 All ER 277 (Ch); Rapholo v State President & Others 1993 (1) SA 680 (T), at 693; Barkhuizen v Napier supra. [32] In my view, the general principle is as refined and succinctly set out in the following passage from Birkdale District Electricity Co Ltd, supra, at 364, per Lord Birkenhead:

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…  [it is the] well-established principle of law, that if a person or public body is entrusted by the Legislature with certain powers and duties expressly or implied for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties.

[33] All the authorities adumbrated above state correctly the general principle but only a handful of them are directly in point and apropos to the facts of the present case. For instance, the Amphitrite case supra which was approved in Sachs supra concerns English Crown prerogative powers; and Sachs concerns the power of the Crown to revoke a passport, and Fellner supra the Crown’s power not to renew a passport. What about Waterfalls Town Management Board supra, which is referred to in the Amphitrite case, Sachs and Fellner? In Waterfalls Town Management Board, Murray CJ found (at 342B–C) that there was no evidence that the respondent Minister of Housing granted a servitudal right, and it was even uncertain whether the servitude was intended for the benefit of the applicant board; but, more important, the court there found that the board had a political, not a judicial, remedy. It follows that this case, too, is not much of assistance, considering the facts of the matter at hand. [34] From the relevant authorities, I form the opinion that before this court can conclude that the implementation or enforcement of the 2006 agreement is incompatible with the due exercise of the first respondent’s powers or the discharge of its duties, I must answer two immensely crucial questions. First, did the respondent possess the macro-authority to enter into the agreement? In other words, was the concluding of that agreement ultra vires the first respondent? This

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overall issue is essentially a question of legality, as Mr Smuts correctly submitted. Baxter put it neatly thus in his Administrative Law ibid, p 421: There is no need to elevate the principle to such levels of mysticism: it is simply an expression of the principle of legality in that failure to exercise conferred powers constitutes an abdication of that power, which is not in the public interest. It is akin to the principle that no one may waive a right or power which has been enacted for the public benefit.

In other words, a public authority like the first respondent offends against legality by failing to use its powers in the way they were intended, namely to employ and to utilise the discretion conferred upon it (De Smith et al, Principles of Judicial Review ibid, at 395. See also Stourcliffe Estates Co Ltd supra, at 18, 22; R v Hammersmith and Fulham London Borough Council, Ex parte Beddowes supra, at 1064E). Second, this large and fundamental issue of legality leads to the micro-issue: the microissue raises a question of public policy. The issue of public policy was canvassed by Mr Oosthuizen.

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[35] It seems to be clear and incontrovertible that in concluding the 2006 agreement (and, indeed, the 2000 agreement) the first respondent did not act ultra vires. As a juristic person the first respondent has the power to enter into contracts necessary for the exercise of its powers and the performance of its functions (see, for example, the prohibitions regarding contracts a regional council enters into or has entered into under s 16 of the Regional Councils Act). [36] In R v Hammersmith and Fulham London Borough Council, Ex parte Beddowes supra, Sir Denys Buckley of the Court of Appeal made the following pithy observation on the application of the rule of ‘no fettering of discretion’ thus: I am clearly of the opinion that, if a statutory authority acting in good faith in the proper and reasonable exercise of its statutory powers undertakes some binding obligation, the fact that such obligation may thereafter preclude the authority from exercising some other statutory power, or from exercising its statutory powers in some other way, cannot constitute an impermissible fetter on its powers. Any other view would involve that the doctrine against fettering would itself involve a fetter on the authority’s capacity to exercise its powers properly and reasonably as it thinks fit from time to time. So, in my view, the decision of the present case depends primarily upon whether the council was acting properly and reasonably in proposing to covenant with Barratts in the terms of the second schedule covenants.

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I respectfully adopt Sir Denys’s dictum as a correct statement of the application of the rule, as now developed and refined. Indeed, in my view, that dictum conduces to the principle of pacta sunt servanda, which as Ngcobo J stated in the South African Constitutional Court case of Barkhuizen supra is informed by the Constitution. The learned judge of the Constitutional Court observed in para 57 at 341B–C: … [P]ublic policy, as informed by the Constitution, requires in general that parties should comply with contractual obligations that have been freely and voluntarily undertaken. This consideration is expressed in the maxim pacta sunt servanda, which, as the Supreme Court of Appeal has repeatedly noted (eg Brisley v Drotsky 2002 (4) SA 1 (SCA)), gives effect to the central constitutional values of freedom and dignity. Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. The extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity.

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In my view, the constitutional principle enunciated by Ngcobo J in Barkhuizen must apply with equal force to Namibia’s constitutional milieu. [37] For all the above, I find that regarding both the macro-question of legality and the micro-question of policy, the first respondent has no legal leg to stand on in refusing to be bound by the 2006 agreement and to act in a manner that frustrates the implementation of the 2006 agreement in a reasonable time. In my view, in concluding that agreement, the first respondent acted in good faith in the proper and reasonable exercise of its statutory powers under the Regional Councils Act: the fact that the obligation to sell all the 258 erven may thereafter preclude the first respondent from exercising its statutory power in some other way (for example by leasing some of the 250 erven in the interim, ie before the sale) cannot constitute an impermissible fetter on its power under s 28 of the Regional Councils Act, or any statutory provision for that matter. Relying on authority in Commissioners of Crown Lands v Page [1960] 2 QB 274 (CA) ([1960] 2 All ER 726 (CA)), per Devlin J, Wade wrote in Administrative Law, 5 ed (at p 339): It would be quite wrong to conclude that a public authority can escape from any contract which it finds disadvantageous by saying that it never promised to act otherwise than for the public good. There will often be situations where a public authority must be at liberty to bind itself for the very purpose of exercising its powers effectively.

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[38] Thus, in my view, the first respondent cannot escape its obligation under the 2006 agreement because it finds it disadvantageous. Above all, what marks the present case most distinctively is the fact that the 2006 agreement (like the 2000 agreement) was made an order of this court: this is superlatively significant. The 2006 agreement between the parties who are also parties to the proceedings before the court approached the court to make their agreement an order of the court; and it must be remembered, the parties were legally represented in both the drawing up of that agreement and in the application to make it an order of the court. In practice, in my opinion, what the first respondent is asking the court to do is to rule against its own order. That, this court cannot do, in the absence of an application before it.

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[39] In the way I have interpreted and applied the 2006 agreement (as influenced by the interpretation of the 2000 agreement) and considering the conclusion I have reached concerning the applicability of the rule of ‘no fettering of discretion’ to the present case, I cannot, with the greatest deference, accept the first respondent’s contention that they are entitled to do what they wish to the sites over which the first applicant’s members have no pre-emptive and renewable rights, for example lease them before selling them at an indefinite time in the future. [40] One should also not lose sight of this exhibition of bad faith on the part of the first respondent. The 2006 agreement was concluded on 10 November 2006 and made an order of the court on 20 November 2006, as aforesaid. The first respondent’s evidence is that the proclamation of Wlotzkasbaken as a township to enable the council to sell all the 258 erven will take between eight and 12 months to complete. Some eight months after the 2006 agreement was made an order of the Court, the first respondent decides to put on hold (put on hold it is, in my view, because according to first applicant the proclamation of Wlotzkasbaken as a township is not a priority) the process which was to be completed in four months’ time from July 2007 (by the first respondent’s own reckoning) when they placed the advertisement to lease the remainder of the 258 erven, ie the 148 or so sites. The first respondent’s conduct amounts to hiding behind the rule of ‘no fetter of discretion’ and ‘public policy’ to frustrate the implementation of the 2006 agreement, which as I have held, binds the first respondent. This, to my mind, is an attempt to undermine the 2006 agreement; and I do not think this court should lend the first respondent a hand in doing what is wrong and inequitable; if it did that, the court would be stultifying and subverting the principle of the rule of law,

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which is firmly embedded in Namibia’s constitutionalism, and the principle of pacta sunt servanda, which, as I have said, is a factor of public policy that forms a part of our constitutional way of life. [41] For all the above, in my judgment, I hold that the first respondent cannot run away from its obligation to sell all the 258 erven within a reasonable time and to ensure the proclamation of Wlotzkasbaken as a township, also within a reasonable time, to enable the implementation of that obligation; and so, therefore, in my judgment the first respondent is not entitled to lease the part of Wlotzkasbaken that the first applicant’s members have no pre-emptive or renewability rights. …

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Notes 1. This is an application for an interdict and for enforcing a settlement agreement which by agreement of the parties the Court had made an Order of Court. 2. First applicant consisted of the lessees of erven in a holiday resort, known as W. The parties entered into an agreement of settlement in 2006, which the Court had made an Order of Court. During July 2007 first respondent had placed an advertisement, advertising the leasing of erven in W. The purpose of the present application was to interdict first respondent from leasing erven in W and to enforce the 2006 agreement. 3. The issue was whether the 2006 agreement constituted a ‘fettering of discretion’. 4. The Court held that the general principle was that a public authority may not by contract fetter itself so as to disable itself from exercising its discretion as required by law. However, to answer the question of ‘fettering discretion’, the Court has to have regard to the legality of the agreement and the question of public policy. 5. The view of the Court was that in concluding the 2006 agreement (and, indeed, the 2000 agreement) first respondent had not acted ultra vires. As a juristic person, the first respondent had the power to enter into contracts necessary to exercise its powers and perform its duties. The Court concluded that, looking at the question of public policy as informed by the Constitution, it should apply the principle of pacta sunt servanda (treaties shall be complied with). Consequently, regarding both the question of legality and the question of policy, first respondent had no legal leg to stand on to refuse being bound by

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the 2006 agreement and to act in a manner that frustrated the implementation of the 2006 agreement in a reasonable time. 6. The Court concluded that, in concluding that agreement, first respondent had acted in good faith in the proper and reasonable exercise of its statutory powers under the Regional Councils Act, 1992 (Act No 22 of 1992). The fact that the obligation to sell all the 258 erven might thereafter preclude first respondent from exercising its statutory power in some other way (for example, by leasing some of the 250 erven in the interim, that is, before the sale) could not constitute an impermissible fetter on its power under s 28 of the Regional Councils Act, or under any statutory provision, for that matter.

3.3.4 Principle of locus standi A. Text

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I mentioned in chapter 2 (section 2.1) that in Namibia art 18 of the Constitution is the bedrock of judicial review. Article 18 guarantees one’s constitutional right to administrative justice, and art  25(2) one’s right to approach the Court for appropriate redress if one’s art  18 right (or any other right guaranteed by the Constitution) is violated or if violation of the right is threatened. Article 18 provides: Administrative Justice Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

In addition, art 25 provides: Enforcement of Fundamental Rights and Freedoms … (2) Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom, and may approach the Ombudsman to provide them with such legal assistance or advice as they require, and the Ombudsman shall have the discretion in response thereto to provide such legal or other assistance as he or she may consider expedient.

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(3) Subject to the provisions of this Constitution, the Court referred to in Sub-Article (2) hereof shall have the power to make all such orders as shall be necessary and appropriate to secure such applicants the enjoyment of the rights and freedoms conferred on them under the provisions of this Constitution, should the Court come to the conclusion that such rights or freedoms have been unlawfully denied or violated, or that grounds exist for the protection of such rights or freedoms by interdict.

… Thus, if X desires to institute an application to vindicate X’s right, X must be an aggrieved person for X to attack by review the administrative decision in question. This raises the issue of locus standi in judicio (locus standi for short) or standing. The Court should be satisfied that the person applying for review has standing. The Court should be so satisfied in order to prevent abuse by busybodies, cranks and other mischief-makers.58 In this regard, it is important to note this: the Supreme Court held in Trustco Ltd v Deeds Registries Regulation Board:

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In a constitutional State, citizens (and other inhabitants) are entitled to exercise their rights and they are entitled to approach courts, where there is uncertainty as to the law, to determine their rights.59

Furthermore, where the liberty of, say, X is concerned, any person who stands in some clearly identifiable relationship with X may approach the Court to vindicate X’s right where, on good cause shown, X is incapable of instituting the application himself or herself – for example, where X is held in police custody or is held incommunicado.60 It is worth noting that in motion proceedings where applicant B is not an individual natural person, an individual person Y who institutes proceedings on behalf of such non-natural person B must have locus standi to institute the proceedings. Y must prove Y’s authority to institute the proceedings on behalf of B. One must distinguish this from a situation where Y does not institute proceedings on behalf of B but deposes to a founding affidavit in the proceedings. In that event, B need not authorise Y to depose to the affidavit.61

58 R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Ltd [1928] AC 617 (HL). 59 2011 (2) NR 726 (SC), para 18. 60 Woods & Others v Ondangwa Tribal Authority & Another 1975 (2) SA 294 (A). 61 Wlotzkasbaken Home Owners Assoc v Erongo Regional Council 2007 (2) NR 799 (HC), where the authorities are gathered.

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B. Cases

[12] Wood & Others v Ondangwa Tribal Authority & Another 1975 (2) SA 294 (A) Rumpff CJ (Botha JA, Trollip JA and Corbett JA concurring): … The Court a quo, in its judgment, held that an individual is not entitled to institute an action in the interests of the general public. For this it relied on a passage in the judgment of Director of Education, Transvaal v McCagie & Others 1918 AD 616, at 621. The passage is part of the following extract of the judgment of Innes, CJ, at 621: The popularis actio of the Roman law is not recognized in our procedure. It became obsolete in Holland more than two centuries ago: Bagnall v Colonial Government, 24 SC 470, Dalrymple v Colonial Treasurer, 1910 TS 372. The principle of our law is that a private individual can only sue on his own behalf, not on behalf of the public. The right which he seeks to enforce, or the injury in respect of which he claims damages, or against which he desires protection, will depend upon the nature of the litigation. But the right must be available to him personally, and the injury must be sustained or apprehended by himself.

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In the Bagnall case De Villiers C.J stated the position to be as follows: The truth, however, is that the popularis actio became wholly obsolete in the Dutch practice. Groenewegen,62 in his comment on the title of the Digest just cited, says: This title is nowhere observed, for no private person prosecutes popular actions so far as the public interest is concerned. For his own interest, however, it is permitted to everyone to bring an action either by himself or by attorney.

62 Groenewegen van der Made, Simon van (1974). ὰ Tractus de Legibus Abrogatis et Inusitas in Hollandia Vicinisque Regionibus (1969). Translated in part by B Beinart (Volumes sub nom A Treatise on the Laws Abrogated and No Longer in Use in Holland and Neighbouring Regions). Johannesburg: Lex Patria.

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Voet also, in his commentary on the same title (47.23),63 after stating that the popular action could be brought by anyone ex populo who had the right to proceed by action, added that in his time a private person could not bring the popular action, but could only proceed for his own private interest. In the Dalrymple case, Innes CJ, at 380 referred to the right of the private citizen to act in the interest of the public as follows: The popularis actio of the Roman law certainly did recognize the right of a private citizen to champion the cause of the public, even though there had been no special injury to himself. But that was an action very limited in its scope – an action which in its original form would not have met a case like the present, and the authorities are clear that it became obsolete in Holland in the sixteenth century. In addition to the authorities cited in Bagnall’s case, Christinaeus (Vol 2, dec 194, sec 41)64 reports a decision of the Court of Mechlin – which, as pointed out in Wessels, History of the Roman-Dutch Law,65 was then the supreme court of appeal for the whole of Netherlands – to the effect that the title of the Digest (27.23) constituting the popularis actio was no longer recognized as of force in the Dutch law. And from that time onward – the decision was given in 1578 – the doctrine was firmly established that the right of a private person was limited to prosecuting actions in his own interest; he had no title to institute them in the interest of the public. At the same time our law did not require that the interest of the person suing should be greater or more special than that of the other members of the public. Provided only that some right which he was personally entitled to exercise was interfered with, or that he was personally injured by the act complained of, it made no difference that his right or his injury were no greater than those of other members of the public. He had a locus standi, and could set in motion the machinery of the law. Thus, if a highway were interfered with, any member of the public could sue, no matter what rights his neighbours had: he had a right personally to travel upon the highway (Voet, 43.8.166). And this principle was, in Dell v Town Council of Cape Town, 1879 Buch 2, applied to proceedings for abatement of a public nuisance caused by the deposit of rubbish. The applicant’s personal comfort and health was interfered with by the stench which ensued, and he was held to have locus standi, though other members of the public might have suffered in an equal, or even a greater degree.

63 J Voet (1829/1955). Commentarius ad Pandectas (1698–1704). Translated in part by Percival Gane sub nom The Selective Voet, being the Commentary on the Pandects [Paris] (ed 1829). Butterworths. 64 P Christinaeus (1671). Practicarum questionum rerumque in Supremus Belgarum Curiis actarum et observatorum decisiones (ed Antwerp). 65 JW Wessels (1908). History of the Roman-Dutch Law. African Book Co. 66 Voet ibid.

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Wessels, J, in his judgment in the Dalrymple case, also refers to the fact that the popularis actio has become obsolete and states, inter alia, at 390: The person who sues must have an interest in the subject-matter of the suit, and that interest must be a direct interest. In a wide sense every individual has an interest in every suit that is pending, for he may be placed tomorrow in the position of either plaintiff or defendant in a case in which the same principle may be involved. Courts of law, however, are not constituted for the discussion of academic questions, and they require the litigant to have not only an interest, but also an interest that is not too remote. Whether the interest is remote or not depends upon the circumstances of the case, and no definite rule can be laid down.

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Dealing with the submission that, where the liberty of an individual is at stake, the Court will allow a relation or a friend to approach the Court for assistance, the Court a quo mentioned three cases to which it had been referred, Bozzoli & Another v Station Commander, John Vorster Square, Johannesburg 1972 (3) SA 934 (W); Patz v Greene and Co 1907 TS 47; In re Cakijana & Others (1908) 29 NLR 193. In the judgment of the Court a quo it is said that Snyman, J, in the Bozzoli case indicated that the judgment in the Patz case was no authority that the actio popularis still exists in our law. The Court a quo agreed with this. It then stated that in Cakijana’s case an application de libero homine exhibendo was made by a friend, and it referred to p 201 of the report, where Bale, CJ, said the following: Lord Trayner, in his Latin Maxims and Phrases,67 at p 140, dealing with the writ de libero homine exhibendo, says that the application to the Judge (the praetor) for production of the person detained was one of the class actio popularis, and could be brought by any citizen, whether immediately interested or not, and he refers to the analogy between it and the writ habeas corpus in England. Voet, also (43.29),68 says, ‘Et favore libertatis datur cuivis ex populo … Contra eum, qui hominem librum supprimit ac detinet dolo malo ine justa cusa, licet detentus ipse suum statum ignoret.’ Although it would appear that this interdict had reference more particularly to persons who had been detained as slaves, yet its principles appear to have been extended to cases like the present.

The Court a quo then said that, if what Lord Trayner stated is correct, it must inevitably follow that a writ de libero homine exhibendo cannot be applied for by 67 Lord Trayner (1894). Latin Maxims and Phrases: Collected from the Institutional Writers on the Law of Scotland and Other Sources: with Translations and Illustrations. W Green. 68 Ibid.

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any member of the public because the actio popularis has long since fallen into disuse. The Court a quo said that that was the view of Snyman, J, in Bozzoli’s case, and it agreed with it. The Court a quo also quoted the following portion of the judgment in Bozzoli’s case [supra] in which the principal of a university applied for a writ de homine in connection with a number of students who had been arrested: It seems to me that, however urgent applications of this nature are, for they concern the liberty of a citizen, it must be by some interested person, such as a relative or friend, or some person who has a special interest, and I want to make the point, an interest above that of the ordinary member of the general public; in other words, not just a member populus but some person who has a special interest in regard to that person who has been deprived of his freedom.

The judgment of the Court a quo proceeds along the following lines: even if it be accepted, for purposes of argument, that the applicants in the present case have a special interest in the people they represent, it will be noticed that there is a difference between the present case and Bozzoli’s case. In Bozzoli’s case the students were arrested and detained. The object of the application in Bozzoli’s case was to compel the police to bring the students before court and to lay a charge against them. In the present case all the persons whom the applicants purport to represent are free. There is nothing to prevent them or the political organizations to which they belong from approaching the Court for relief. Bozzoli’s case does not help the applicants and the principle referred to in McCagie’s case applies. The applicants therefore, have no locus standi.

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… I propose to deal with the decision of the Court a quo that, because the actio popularis is not part of our law, the applicants have no locus standi. In Roman law there were various actiones populares. In his Praelectiones ad Jus Criminale, Van der Keessel makes the following observations in 47.23 (translation Beinart and Van Warmelo):69 There are moreover three kinds of actiones populares. Some are ordinary actions, that is, actions claiming a right. Some are possessory remedies. Others arise from extraordinary offences. Examples of the first occur in the action for damaging

69 DG van der Keessel (1972). Praelectiones ad Jus Criminale: Lectures on Criminal Law. (Edited and translated by B Beinart and P van Warmelo). Cape Town: Juta & Co Ltd and London: Sweet & Maxwell Ltd.

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the praetor’s album, the action in respect of articles thrown down or poured out (de dejectis et effusis) where a free man has been killed, the action in respect of articles placed and suspended dangerously, and several other actions enumerated in Meier, Collegium Juridicum, ad D 47.23, num 3.70 Examples of the second class occur in the interdict concerning public places and public ways, the interdict against something being done in a public river which may hamper navigation, the interdict for production of a free man, and others listed in the above-mentioned Collegium Juridicum, num 4. Finally, for prosecuting extraordinary crimes there is available the action popularis for violation of a tomb: D 47.12.3.12, for moving boundaries in terms of the Agrarian law of Caesar: D 47.21.3 pr. See the said Collegium Juridicum, num 5.

In Bagnall’s case there is a reference, supra, to Groenewegen’s71 observations that no private person prosecutes populares actiones so far as the public interest is concerned, but that, for his own interest, however, it is permitted to everyone to bring an action either by himself or by attorney, and to Voet, 47.23.72 Gane’s translation quotes Voet as saying:73 By our customs, however, no private person can proceed by a popular action as such though he can certainly proceed for his private interest.

In Voet, 43.29, the interdict de homine libero exhibendo is described in an unnumbered section. …

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Gane has translated this as follows: Of course an interdict as to the production of a free person embraces neither the cause of possession or of proprietorship, since it was only brought in with the object of protecting freedom, and is set in motion as a matter of duty.

This is clearly based on D 43.1.2.1, where, inter alia, it is said (Scott’s translation): The interdict requiring the production of a freeman in court is an example of one to compel the performance of an official duty.

The translation of the word ‘officium’ as ‘duty’ is correct …

70 71 72 73

Justus Meier [1616]. ‘Collegium Juridicum’, Digesta. ad D 47.23. Ibid. Ibid. Ibid.

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… The cases are Dalrymple & Others v Colonial Treasurer, supra: Director of Education, Transvaal v MacCagie & Others, supra: Bagnall v Colonial Government, supra. Although the position is that in Roman-Dutch law no private person can proceed by a popular action as such, it is clear that the interdict de libero homine exhibendo is part of our law, and it only remains to be considered at whose request a Court will issue the interdict. Basically, the cause of action is sui generis because not only was the right to freedom protected by it but ‘it is set in motion as a matter of duty’. In this respect it would appear to be distinguishable from any of the other actiones populares. Voet, 43.29, says that in the favour shown to freedom the interdict is granted to anyone among the people (cuivis ex populo). That indicates, in my view, that he had in mind the actio popularis. Nevertheless, I think it follows, from what I have said above, that although the actiones populares generally have become obsolete in the sense that a person is not entitled ‘to protect the rights of the public’, or ‘champion the cause of the people’ it does not mean that when the liberty of a person is at stake, interest of the person who applies for the interdict de libero homine exhibendo should be narrowly construed. On the contrary, in my view it should be widely construed because illegal deprivation of liberty is a threat to the very foundation of a society based on law and order. As is stated in the Utrechtse Consultatien XCIII, 3,74 in relation to the arrest of a debtor: … …

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In regard to the habeas corpus of the English law, Halsbury, Laws of England, 3rd ed, Vol 11, p 37,75 inter alia, states the following: Any person is entitled to institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment, and any person who is legally entitled to the custody of another may sue out the writ in order to regain that custody. In any case where access is denied to a person alleged to be unjustifiably detained, so that there are no instructions from the prisoner, the application may be made by any relation or friend on an affidavit setting forth the reasons for its being made. 74 Laurens van Lanckeren (1684/1700). Utrechtsche consultatien, dat is Decisoire, ende andere advisen [...] gemaakt by de vermaardste rechtsgeleerden [...]. Het derde deel. Utrecht: R van Zyll/A Schouten. 75 Halsbury’s Laws of England (Volume 11: Habeas Corpus). (Third edition, 1979). General editor Lord Simons.

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A mere stranger or volunteer, however, who has no authority to appear on behalf of a prisoner or right to represent him will not be allowed to apply for habeas corpus. I do not wish to deal with the definition of a ‘friend’ in our law. It would seem to me, however, that if a person who has neither kith nor kin in this world is illegally deprived of his liberty, and a person who comes to hear of this were to apply for an interdict de libero homine exibendo, he could hardly fail to be considered the prisoner’s friend, unless, of course, one holds the view that the good Samaritan did not have the attributes of a friend. It is useful, perhaps, to compare the position in our law with that in the American law. According to American Jurisprudence, 2nd ed, Vol 39,76 the habeas corpus laws should receive a liberal construction, in disregard, if need be, of the technical language used and should always be construed in favour of the liberty of the citizen (para 4).

In para 11 it is stated: The writ is not and never has been a static, narrow, formalistic remedy. Its scope has grown to achieve its purpose – the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty.

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In para 117 there are the following remarks: As a general rule a person who applies for a writ to secure the release of another must show some interest in the person or some authorisation to make the application. According to some authority a mere stranger, or volunteer, having no authority derived from the person detained or the legal right to the custody of such person, has no right to a writ habeas corpus to obtain the discharge of such person from custody, but there are cases in which the writ has issued on the application of a stranger or volunteer who bore no legal relation to the person in custody, or who was actuated solely from humanitarian motives.

Para 117 also contains the following: But it has been said that a person may apply for habeas corpus for another if he sets forth in the application a reason or explanation satisfactory to the Court showing why the detained person does not make the application himself.

76 American Jurisprudence (Volume 39) (Second edition, 1962). Eagan: West Publishing Company.

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This approach, to my mind, is based on sound reason and is in accordance with our law. In such a case the applicant would not purport to act ‘on behalf of the public’ and would not, therefore, institute what in Roman law was an actio popularis. He would be allowed to act on behalf of a detained person because he would satisfy the Court that the detained person could not make the application himself. This procedure would preserve what in Roman law was already considered of the highest value and no less regarded in Roman-Dutch law. The Court would, of course, require to be satisfied that the applicant had good reason for making the application and that that detained person would have made the application himself if it had been in his power to do so. In this sense, an applicant would act in a way not dissimilar to the way in which a negotiorum gestor would act in our law, or a person would be permitted to act as a curator ad litem to an unknown, absent, or inaccessible person (cf, for example, Abrams v Minister of Railways and Harbours, 1917 WLD 51), except that he would attempt to protect something far more precious than property. That applies a fortiori where the purpose of the unlawful detention is, as is manifest in the present case, to facilitate the infliction of serious and humiliating assaults on the detainees.

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… There is, in any event, in my view, another ground for holding that the applicants have locus standi. I have already suggested that for the sake of the preservation of liberty the interest which an applicant is require to have, should be widely construed. For that reason I think that the interest that a person may have in the liberty of another may arise not only through family relationship or personal friendship but also through the relationship that may bind the two persons by reason of an agreement, express or implied, relating to a matter of common interest. I am thinking here of a partnership, or society, or a church, or a political party. Any member of such a society or body would, in my view, have an interest in the personal liberty of a co-member. In the present matter, the allegation by the first appellant that both Swapo and Demkop are legal organisations is not denied. The first appellant states that members of his church and of the Lutheran Church are in fear of being illegally arrested and that he has been requested by numerous people to seek the Court’s intervention. The second appellant, as president of the Lutheran Church, has associated himself with the first appellant. The first and second respondents have not denied this. The third appellant states that he is the secretary of the Swapo

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organisation and was authorised to bring the application on behalf of some members. This is also not denied by the first and second respondents. … The above statement must, of course, be looked at in its proper perspective and having regard to the facts of the case, but it does indicate what the effects of illegal deprivation of liberty may be in certain circumstances. In the present matter, for the reasons set out above, I am of the opinion that the appellants did have locus standi to apply for a prohibitory interdict.

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Notes 1. This is a leading authority on locus standi in judicio, and it has been followed since it was propounded more than four decades ago. 2. First appellant stated that members of his church and of the Lutheran Church are in fear of being illegally arrested and that he had been requested by numerous people to seek the Court’s intervention. Second appellant, as president of the Lutheran Church, associated himself with first appellant. First and second respondents did not deny that. Third appellant stated that he was the secretary of the Swapo organisation and was authorised to bring the application on behalf of some members. That was also not denied by first and second respondents. 3. This was an appeal from a decision of the erstwhile South-West Africa Division of the Supreme Court of South Africa. The issue before the appeal court was this: Is the Roman law of actio popularis part of the law of South-West Africa (Namibia)? 4. The Court held that no private person is entitled to institute popular actions by championing the cause of the public; this is so because the Roman law of actio popularis is not part of our law. Nevertheless, where, for instance, a person was illegally detained, a third person who stands in some close identifiable relationship with the detainee may apply for an interdict de libero homine exhibendo (see chapter 6 (section 6.2.3.2) where applicant satisfies the Court that he or she has good reason to make the application. Applicant may establish a good reason if they show that the detainee on whose behalf they had brought the application for some good reason cannot make the application themself. 5. In such a case, the Court decided that applicant would not be purporting to act on behalf of the public and would not be instituting actio popularis. The

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reasoning and approach of the appeal court are sound. The principle enunciated in the case is in accordance with the constitutional milieu in Namibia.

[13] Katjivena v Prime Minister of the Republic of Namibia 2016 (3) NR 903 (HC), para 1 … Parker AJ:

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[1] In April 2010 the Namibia Correctional Service (whose Commissioner General is the third respondent) would see a new organizational structure. This would necessitate an approved ‘revised salary scales. Salary notches and increments attached to the grades of the new job category: Correctional Officer with effect from 1 December 2009.’ The approval was the decision of the then Prime Minister contained in a letter dated 25  January 2010 (annexed to the founding affidavit) (‘the Prime Minister’s letter’). Pursuant to the approved revised remuneration, third respondent issued a notice whereby third respondent informed each applicant about each applicant’s new rank and the remuneration such rank carried with effect from 1 December 2009. As a result, applicants received backdated salaries, with effect from 1 December 2009. Respondents made the payments in April and May 2010. [2] It was the respondents’ view that the payments were made not in accordance with the decision of the Prime Minister found in the Prime Minister’s letter. Consequently, the respondents decided to deduct various amounts of money from the salaries of applicants in their effort to recover the alleged unauthorized payments; and, according to the respondents, this was done in terms of the Public Service Act 13 of 1995. I use the adjective ‘alleged’ advisedly. It is for a good reason, as I shall demonstrate in due course. [3] Aggrieved by the decision to make the deductions, which are continuing, applicants brought the instant application by notice of motion in which they seek the relief set out in the notice of motion. Applicants are represented by Mr Rukoro. [4] The respondents have moved to reject the application; and are represented by Mr Kashindi. … …

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[9] On these grounds alone I find that the point in limine on locus standi in judicio is not properly before the court; and so, the point falls to be rejected. The point should be rejected on another basis, that is, on the basis of substance. It is not disputed that the Roman law actio popularis is not part of our law. In our law no private person can proceed by actio popularis. What this means is that the general principle of our law is that: A private individual can only sue on his own behalf not on behalf of the public. The right which he seeks to enforce, or the injury in respect of which he claims damages, or against which he desires protection, will depend upon the nature of the litigation. But the right must be available to him personally, and the injury must be sustained or apprehended by himself. [Wood & Others v Ondangwa Tribal Authority & Another 1975 (2) SA 294 (A), per Rumpff CJ, at 305F–G, approving Innes CJ in Director of Education, Transvaal v McCagie & Others 1918 AD 616, at 621.]

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[10] As Mr Rukoro submitted – and correctly so, I should say – Anna-Rosa Katjivena (first applicant) has not brought the application on behalf of the public, that is, ‘the community in general, or a section of the community having a particular interest’. (Concise Oxford Dictionary, 11th ed.77) The right which she seeks to enforce is available to her personally and to the rest of the applicants, and not an amorphous entity. Ms Katjivena is therefore not some busybody bystander who has decided on her own to bring the application on behalf of the public. She is not acting, as Mr Rukoro put it, ‘on behalf of some passive others’. Ms Katjivena is not populariter agere. [11] Based on these reasons, I do not find that Ms Katjivena has brought an actio popularis. The respondents’ point in limine on locus standi in judicio is therefore rejected. It has no merit. I now proceed to consider and determine the point in limine on prescription. Notes 1. In April 2010 the Namibia Correctional Service (whose Commissioner General is third respondent) would see a new organisational structure implemented. This would necessitate approved ‘revised salary scales. Salary notches and increments attached to the grades of the new job category: Correctional Officer 77 Concise Oxford Dictionary (Eleventh edition, 2008). Oxford: Oxford University Press.

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2.

3.

4.

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5.

6.

with effect from 1 December 2009’. The approval was the decision of the then Prime Minister contained in a letter dated 25  January 2010 (annexed to the founding affidavit; ‘the Prime Minister’s letter’). Pursuant to the approved revised remuneration, third respondent issued a notice by which third respondent informed each applicant about each applicant’s new rank and the remuneration such rank carried with effect from 1 December 2009. As a result, applicants received backdated salaries, with effect from 1  December 2009. Respondents made the payments in April and May 2010. It was respondents’ view that the payments had not been made in accordance with the decision of the Prime Minister found in the Prime Minister’s letter. Consequently, respondents had decided to deduct various amounts of money from the salaries of applicants in their effort to recover the allegedly unauthorised payments; and, according to respondents, this had been done in terms of the Public Service Act 13 of 1995 (Act No 13 of 1995). I use the adverb ‘allegedly’ advisedly. It is for a good reason, as I shall demonstrate in due course. Aggrieved by the decision to make the deductions, which are continuing, applicants brought the instant application by notice of motion in which they sought the relief set out in the notice of motion. In her founding affidavit, first applicant stated that she was bringing the application for an interdictory order and declaratory orders on her behalf and on behalf of the other applicants. Respondent challenged the locus standi of first applicant. The Court confirmed that the Roman-law principle of actio popularis is not part of Namibian law. See case [12]. However, on the facts and in circumstances of the instant case, the Court found that the present application did not constitute actio popularis. Consequently, the Court rejected respondents’ point in limine on applicant’s locus standi. The Court reasoned that the other applicants had confirmed first applicant’s authority for instituting proceedings on their behalf by means of confirmatory affidavits. The Court found that all the applicants had the same interest and that that was based on the same set of facts and the same statutory provision. The Court found further that it is commonplace in the practice of the Court for one applicant to bring an application on their own behalf and on behalf of other applicants who have the same interest. This happens particularly where: (a) an applicant has laid a foundation of their authority in the founding affidavit and the other applicants have confirmed it by their confirmatory affidavits, and

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(b) the same facts and statutory provisions and principles of law apply to all the claims. 7. In that event, such application would not constitute the Roman law of actio popularis. Consequently, the Court rejected respondents’ preliminary objection to first applicant’s locus standi.

3.3.5 Finality clauses A. Text

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There is a firm judicial policy against allowing the rule of law to be undermined by weakening the power of the Court to control administrative action by finality (or privative) clauses. Finality clauses are designed to oust judicial review. If finality clauses were to be enforced, it would give uncontrollable power to administrative bodies and officials to do as they wish freely.78 As Lord Atkin said in Ras Behari Lal v King-Emperor (1933) 60 IA 354, at 361, ‘Finality is a good thing but justice is a better (thing).’79 It serves no purpose to treat in detail finality clauses for the purposes of judicial review because they are largely in disuse; and, more importantly, in Namibia judicial review of administrative action by administrative bodies and officials is a basic human right guaranteed by art  18 of the Constitution. For this reason, no legislative provision in the form of finality clauses can lawfully take away that right.

3.3.6 Delegation, abdication and surrender of power and external dictation in exercise of power A. Text The general principle is that a repository of discretionary power in terms of legislation must act itself or him- or herself. The administrative body or official in question is not competent to delegate the exercise of the power to another body or official. The general principle is expressed in the maxim delegatus non potest

78 Wade (1984: pp 598–599). 79 Quoted in Wade, loc cit.

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delegere (ie no delegated powers can be further delegated, except with express or implied authority). Nevertheless, the Act granting the power may also expressly authorise another administrative body or official to exercise the power. In the absence of such express authorisation, however, the administrative body or official not so authorised acts ultra vires, and its or their action is unlawful and of no consequence, because ex nihilo nihil fit.80 The principle of unauthorised delegation of exercise of discretion extends to situations where a person, not being a member of an administrative body, participates in the decision-making of that body.81 It has been said that while the repository of power may delegate clerical and routine functions involving no exercise of discretion, courts will not allow the delegation of functions if they involve an exercise of discretion.82 For example, the Medical Board established under the Medical and Dental Professions Act83 must exercise its disciplinary power over medical practitioners and cannot delegate that power to the Board’s disciplinary committee. This is the case even though the Act gives the Board the power to delegate to ‘any committee such of its powers, in addition to the powers conferred upon such committee by subsection (3) (of s 10)’ for the purpose of its functions under the Act. Another important aspect of the authorised delegation of power is that the administrative body or official which or who has lawfully delegated its, his or her power is not divested of any power so delegated. Akin to the unauthorised delegation of discretionary power is the principle of surrender of such power. The surrender of power occurs where the power vested in an administrative body or official is exercised by a body or official other than the repository of the power in question. On that score, the unauthorised delegation of power is hardly distinguishable from the surrender of power. Just as in unauthorised delegation, in the surrender of power, too, the resulting action is ultra vires and therefore unlawful and invalid. By a parity of reasoning, the abdication of power is scarcely distinguishable from the surrender of power. When an administrative body or official surrenders its, his or her power, the body or official has in effect abdicated that power; and so under such arrangement the resulting action is also ultra vires and unlawful. 80 81 82 83

Watchenuka v Minister of Home Affairs 2004 (4) SA 236 (A), at 242A. Ward v Bradford Corporation (1971) 70 LGR 27. Wade (1984: p 324). Act No 21 of 1993.

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Lastly, unlawful dictation occurs where another administrative body or official interferes with the exercise of power by the repository of power, in most cases for political reasons. For instance, unlawful dictation occurs where a Minister suspends the decision-making process of an administrative body and instructs the board of that administrative body to act in a particular way dictated by the minister.84 In Eilo & Another v Permanent Secretary of Education & Others85 first respondent accepted the recommendation of a regional education committee which, in terms of the Education Act, had no power to recommend candidates for appointment to the post of principal.86 The Court found that first respondent had acted on unlawful dictation by the regional education committee. Accordingly, the Court held that first respondent’s action was unlawful and invalid. B. Cases

[14] Skeleton Coast Safaris v Namibia Tender Board & Others 1993 NR 288 (HC) Hannah J:

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… I now come to the applicant’s contention that first respondent acted ultra vires in awarding the concession to the third respondent. As already stated, the Skeleton Coast National Park was proclaimed as such by Proc 82 of 1971. By virtue of s 17(1) of the Nature Conservation Ordinance 1975 the control, management and maintenance of the Park vested in what was then known as the Executive Committee. It is common cause that the successor of that body is the present-day Cabinet. Section 17(2) of the Ordinance sets out the powers of the Cabinet in relation to game parks. …

84 Arandis Power (Pty) Ltd v The President of the Republic of Namibia (A 26-2016) [2016] NAHCMD 194 (7 July 2016). 85 2008 (2) NR 532 (LC). 86 Act No 16 of 2001.

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Despite Mr Gauntlett’s submissions to the contrary, in my view, the right to operate safaris in a game park properly falls under s 17(2)(f) or (g). It follows that the Cabinet is empowered, in terms of s 17(2)(j), to authorize any person to operate safaris in the Skeleton Coast National Park subject to such conditions and the payment of such charges as it may deem fit. But in the present the grant of the concession to the third respondent was not made by the Cabinet. It was made by the first respondent following a mandate given by the Ministry of Wildlife, Conservation and Tourism. The first respondent, submitted Mr Gauntlett, therefore purported to exercise a power specifically and exclusively vested in the Cabinet and accordingly acted ultra vires. Mr Hodes sought to meet this submission with the argument that the first respondent is charged by law with the procurement of all supplies and services for and on behalf of the State. The whole scheme of the legislation governing the first respondent, contended Mr Hodes, is designed to ensure that supplies and services for and on behalf of the State are procured by the first respondent and only the first respondent. Accordingly, any grant of a concession to operate safaris in the Skeleton Coast National Park had to be made by the first respondent and the award of the concession to the third respondent was intra vires. There are, in my view, several obstacles in the way of Mr Hodes’ submission, the first of which is that it is based on misconstruction of the legislation governing the first respondent. The Tender Board Regulations were made pursuant to powers vested in the then Administrator by s 26A of the Finance and Audit Ordinance, 1926, a section inserted in that Ordinance by Ord 20 of 1970. Section 26A provides: 26A (1) The Administrator may make regulations providing for the establishment, constitution, functions, powers and duties of a board (to be known as the South West Africa Tender Board) charged with the procurement of supplies and services for and on behalf of the Administration and the disposal of stores of the Administration, governing the procedure to be observed by such board in the exercise of its duties, providing that supplies and services shall not be procured for or on behalf of the Administration and stores of the Administration shall not be disposed of except through such board or in such other manner as may be prescribed in or determined in accordance with such regulations, and generally providing for incidental matters. (2) Notwithstanding anything to the contrary in any other law contained, any regulation made in terms of ss  (1) may, in addition to any other remedy prescribed therein, provide for the imposition by such board of a monetary penalty, calculated on such basis, or bases as may be prescribed therein, on any person to whom such board has awarded a contract on the strength of information furnished by such person which subsequent to the award is

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shown to have been incorrect information, and may prescribe the manner in which any such penalty may be recovered. (3) Subject to the provisions of the regulations made in terms of this section the South West Africa Tender Board may procure supplies and services for and on behalf of and may dispose of stores of branches of State Departments of the Republic of South Africa serving in in the Territory, save the Departments of Defence and Police and the Railways Administration.

The general powers of the first respondent are to be found in reg 3(1), the material part of which reads: These regulations govern the procurement of all supplies and services as well as the disposal of stores for and on behalf of the Administration of South West Africa and the Board may also procure supplies and services for and on behalf of and dispose of stores of branches of State Departments of the Republic of South Africa serving in the Territory, save the Departments of Defence and Police and of the South African Railways Administration and may for that purpose:

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(a) On behalf of the State, conclude an agreement with a person, firm or company within or outside the Republic and/or South West Africa for the furnishing of supplies and services to the State or the disposal of State stores ….

Mr Hodes submitted that s  26A should be read as meaning that the regulations must provide for the establishment of a tender board (charged with procuring services to be performed for or on behalf of the State) and that the operation of safaris within the Skeleton Coast National Park must be regarded as services performed for and on behalf of the State. It must follow, so counsel submitted, that the first respondent was not only the body but the only body empowered to grant the concession in question. The first difficulty I have with this submission is that it is confined to the enabling power set out in s 26A whereas I should have thought the proper place to look to ascertain the powers of the first respondent would be the regulations themselves. But putting that aside for one moment, I am of the opinion that the construction Mr Hodes seeks to place on s 26A is incorrect. While I agree that a quick or superficial reading of the section may give the impression that the words ‘for and on behalf of ’ govern ‘supplies and services’ a more considered approach, to my mind, makes it abundantly clear that these words govern the word ‘procurement’. The section empowers the Administrator to make regulations establishing a tender board charged with the duty to procure, for and on behalf of the State, supplies and services. This, in my view, is made even clearer when ss (3)

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is considered, where reference is made to the tender board procuring supplies and services for and on behalf the State Departments of the Republic of South Africa, save the Departments of Defence and Police and of the Railways Administration. Quite apart from the foregoing, it seems to me wrong to focus attention on the enabling legislation at the expense of the regulations themselves. The powers of the first respondent are to be found in the regulations and reg 3(1) makes it clear that the first respondent is empowered, on behalf of the State, to conclude agreements for the furnishing of supplies and services to the State, not for and on behalf of the State. In my view, it would be curious indeed if the regulations were to provide otherwise because there must be many services which the State might wish to have performed on its behalf, services such as mining and fishing concessions or even, for example, the operation of the State Prison Service. Such matters would hardly be suitable for determination by a board such as the first respondent. In my judgment, therefore, the first respondent was not empowered by reg 3(1) to decide the grant of a concession to operate safaris in the Skeleton Coast National Park. That concession is not a service to the State: It is a service to be performed on behalf of the State, which, through the Cabinet, is vested with the control, management and maintenance of the Park and with the exclusive power to carry on business for the convenience of visitors or to supply services for the convenience of visitors. That is not to say that the first respondent has no role to play in connection with game parks. Mr Gauntlett conceded, correctly in my view, that if it were to be decided that roads, for example, were to be built in a game park and that private contractors were to be used, then the award of the contract would have to be determined by the first respondent. That would be a service to the State whereas, as I have been at pains to point out, we are concerned in this case with a service or services on behalf of the State. It is clear that in enacting the Nature Conservation Ordinance 4 of 1975 the legislature was concerned that the control of game parks be placed in the hands of high authority. It determined in s 17 that it be placed in the hands of the Executive Committee, now the Cabinet. It set out in s  17(2) that powers which the Cabinet can exercise in relation to game parks and it singled out which of those powers the Cabinet can authorize other persons to carry on subject to conditions which the Cabinet may impose. No evidence has been placed before this Court that the Cabinet became involved at all in the grant of the concession to the third respondent, nor has any such suggestion been made. Indeed, the parties accept that it was not. In these circumstances, the only conclusion that can be arrived at is that the firs respondent purported to exercise a power which it did not have. It acted ultra vires.

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… For the foregoing reasons, I am satisfied that the applicant has made out a case for the relief sought in para 1 of the notice of motion. … Accordingly, the following orders are made: (1) It is declared that the purported award by the first respondent to the third respondent on 21 May 1993 of a concession to operate safaris in the Skeleton Coast National Park is null and void. (2) The third respondent is ordered to pay the costs of the applicant, such costs to include the costs of two counsel. Frank J concurred.

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Notes 1. One of the issues determined concerns the doctrines of the delegation, abdication or surrender of power by administrative bodies and officials and external dictation to administrative bodies or officials in the exercise of their power. 2. Applicant applied by way of notice of motion for an order that a decision made by first respondent (‘the Tender Board’) to award a concession to third respondent to operate safaris in the National Park be declared null and void; alternatively, that the decision of third respondent be reviewed and set aside. Applicant had been operating safaris in the National Park for some years. At the expiration of applicant’s contract, the Tender Board invited bids for the new period. The Tender Board received tender bids from applicant and third respondent. Applicant possessed a great deal of knowledge and expertise regarding the sensitivity of the ecosystem in the National Park. The Ministry of Wildlife, Conservation and Tourism, which had placed the awarding of safari concessions in the hands of the Tender Board, stressed that such knowledge and expertise were important. Third respondent had tendered a higher price than applicant, which would mean more revenue for the ministry. However, the ministry indicated that this was a secondary factor. Third respondent had indicated that it had experts available to assist it in its operations. The Tender Board awarded the tender to third respondent.

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3. Applicant based his review application on two grounds. The first is that first respondent had acted ultra vires in awarding the concession to third respondent. 4. The Court found that first respondent was not empowered by reg 3(1) of the Regulations to the Nature Conservation Ordinance, No 4 of 1975 to grant concessions to operate safaris in the Skeleton Coast National Park. That concession was not a service to the State. Cabinet was the only public authority empowered by the Ordinance to grant such concessions, and there was no evidence that Cabinet had become involved at all in the grant of the concession to third respondent. 5. The Court held that where an administrative body or official – the repository of power – fails or refuses to act and another administrative body or official purportedly exercised that power, the last named administrative body or official acts ultra vires and any administrative action they take is unlawful and invalid.

[15] Road Fund Administration v Government of the Republic of Namibia & Others 2012 (1) NR 28 (HC) Miller AJ:

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… [8] …  The legislation envisaged the establishment of a board of directors of the applicant in s 4 of the Road Fund Administration Act.87 Section 4(1) provides as follows: There shall be a board of directors of the administration which shall, subject to this Act, be responsible for the policy, control and management of the administration. …

[9] Section 2 of the Road Fund Administration Act provides that the applicant once established will be a juristic person which implies that it is a body corporate in some sense or another of the word. [10] The Act further provides for the appointment of a chief executive officer and 87 Act No 18 of 1999.

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s  7 of that Act provides for the vacation of the office of the directors appointed and in ss  (2) thereof, the removal of a director in certain circumstances. These are the incapacitation of a director by virtue of physical or mental illness, or if the minister after giving the director an opportunity to be heard is satisfied that such director for any good reason is unable or unfit to discharge the functions of a director. [11] In so far as the State-Owned Enterprises Governance Act No 2 of 2006 is concerned, it is relevant to have regard to the provisions of s 15 and s 17 of that Act, as well as s 18. Section 15 provides for the procedure for the appointment of board members and alternate board members of State-owned enterprises of which the applicant is one. Section 17 makes provision for the conclusion of a governance agreement with the board and provides that the State-Owned Enterprises Governance Council must within one month of being constituted, enter into a written governance agreement with the board of the State-owned enterprises in relation to a number of factors provided for in that particular section. Section 18 of the Act provides that the minister must enter into a performance agreement with directors appointed in terms of that Act. …

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[13] It follows from what I have indicated that the relationship between the first, second and third respondents and the applicant is governed to a large extent, not only by the Road Fund Administration Act but also by the State-Owned Enterprises Act. These regulate relationship between the board of State-owned enterprises such as the applicant and the Government. … [20] The issue before me which, as I have indicated, concerns the authority and power of the first, second and third respondents to make the orders and directives that they did. In essence the stance adopted by the applicant is the following: firstly, the applicant contends that the board of the applicant is an independent body. That it is the board of the applicant which has the power and the sole power to order the suspension of its employees and to institute disciplinary proceedings where appropriate. This point although opposed on the papers was conceded in argument by Mr Semenya. He in fact conceded that the decisions by the board of the applicant to suspend the sixth, seventh and eighth respondents and to institute

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disciplinary proceedings against them did not require the prior consent or the subsequent approval of the third respondent who is the Minister of Finance. This concession which in my view was rightly made clearly impacts on the relief claimed by the applicant both in so far as its entitlement thereto and the urgency of seeking the relief is concerned. [21] In so far as the first, second and third respondents contend that the instructions issued to the applicant fall within the powers of the third respondent as well as the first and second respondent, reliance is placed on arts 40 and 41 of the Constitution. It was within the power of the first, second and third respondents to override as it were the decisions of the board of the applicant and to issue different instructions which required compliance by the applicant. To place this in context one needs to consider the type of instructions issued. These instructions will to a large extent, if given effect to, substantially delay the process instituted by the applicant to suspend and discipline by way of disciplinary action, the sixth, seventh and eighth respondents.

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[22] Firstly, it was conveyed to the applicant that the first and second respondents resolved that the Auditor-General conduct an audit into the applicant in order to establish the accuracy of the allegations and conclusions made in respect of certain reports commissioned by the applicant and to advise the first respondent on the appropriate measures to address the identified problems and for the Auditor-General to advise the first respondent on which employees would need to be suspended so that the applicant gives way for an investigation to take place. [23] It is apparent from these instructions that the validity of the decision by the board of the applicant to suspend its employees was put in issue. This particular decision was extended by further decisions conveyed in a letter date 13 June 2011 in which the board of the applicant was directed to await the conclusion of the Auditor-General’s audit before undertaking disciplinary proceedings against the sixth, seventh and eighth respondents. A further direction to the board was that any disciplinary action against the sixth, seventh and eighth respondents be based on the Auditor-General’s audit. The board was further directed to comply with the directive of the second respondent, which is the Cabinet, concerning the suspensions of staff members and a further instruction that the board be directed to seek the opinion of the third respondent before taking any disciplinary action in respect of the sixth, seventh, and eighth respondents.

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[24] I indicated earlier that Mr Semenya in argument before me conceded that the decision to suspend and take disciplinary action against the sixth, seventh and eighth respondents was a decision solely within the powers of the applicant and its board. I also indicated that such concession resonates in relation to the decisions taken by the first, second and third respondents concerning the institution of disciplinary proceedings and suspension of the sixth, seventh and eighth respondents. The concession if correctly made has in its wake the fact that any decision taken by the first, second and third respondents regarding the institution of disciplinary proceedings and the prerequisites which must be met or otherwise before such action can be instituted, is ultra vires the powers of the first, second and third respondents at least on a prima facie basis as I will indicate during the course of the judgment.

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[25] Despite the fact that the concession was made I am in any event of the view that the reliance by the respondents on arts  40 and 41 of the Constitution is misplaced. Article 41 of the Constitution deals only with the accountability of ministers for the administration of their ministries and does not deal at all with the powers and functions of ministers and duties of ministers in relation to parastatal organisations like the applicant. In so far as parastatals are concerned art 40(a) of the Constitution provides: The members of Cabinet shall have the following functions: to direct, coordinate and supervise the activities of Ministries and local departments including parastatal enterprises, and to review and advise the President and the National Assembly on the desirability and wisdom of any prevailing subordinate legislation, regulations and orders pertaining to such parastatal enterprises, regard being had to the public interest. …

[26] I do not interpret art 40(a) of the Constitution as giving the Cabinet the power to make executive decisions in relation to the affairs of parastatals. Their duty is plainly to direct, supervise and control. The making of executive decisions where Parliament had enacted provisions for the establishment of an independent board is as far as the executive functions are concerned first and foremost and exclusively, the functions of the board. [27] Some argument was placed before me by the respondents relating to corporate governance and the functions of the first, second and third respondents in relation to corporate governance. Admittedly the applicant is not a corporate entity as created in terms of the Companies Act. It does not have articles of association.

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Instead, s 15 of the State-Owned Enterprises Act seems to provide some mechanism in terms of which the relationship between the minister, government and the board are governed.

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[28] But given the fact that the applicant is not a commercial enterprise it is nonetheless my view that the centre piece of corporate governance and corporate entities is the fact that a board must be independent and must not be subject to the dictates of shareholders or in this particular instance cabinet ministers. The remedies provided for the minister and government are to be found in those provisions relating to the removal and disqualification of board members in the event that it is considered that the board members and the board do not function in a manner suitable to the achievement of the objects of the enterprise thus created. [29] I have indicated that I am not called upon finally to determine these issues. I need only to be satisfied that as one leg of the enquiry the applicants have established on a prima facie basis that they have a right and entitlement to relief. What I have stated in relation to the duties and functions of the board on the one hand and government on the other are prima facie views and in my view there is much to be said for the argument at least prima facie that the decisions taken by the first, second and third respondents were decisions that were not within their power to make. As I have indicated the final determination of these issues is best left for determination by the court hearing the main application seeking final declarations in that regard. I need also mention that in my view the relationship between ministers and Cabinet on the one hand and State-owned enterprises on the other differ from the relationship between ministers on the one hand and State departments and ministries on the other hand. [30] It would seem to me that it is for that reason that the Constitution deals with these two matters separately and makes specific provision in art  41 for ministerial accountability as far as ministries are concerned. As far as ministries are concerned the minister is for all practical purposes the head of that particular ministry and the minister certainly has the power to issue executive orders and directions, in so far as that ministry is concerned and that is so in view of the fact that the minister is finally accountable to cabinet for the affairs of that particular ministry. [31] In the case of parastatals where legislation makes provisions for the establishment of a board different considerations apply. The board is established

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to make the executive decisions. It is not in my view within the powers of the minister to assume the functions of the board and to make executive decisions which are reserved for decision and determination by the board.

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Notes 1. This case is significant because it not only treats the doctrines of the delegation, abdication or surrender of power by administrative bodies and officials and external dictation to administrative bodies or officials in the exercise of their power (see Case [14]), but it also treats the doctrines against the backdrop of the administrative action–executive action distinction. (See section 3.2 (Text Part A) above.) 2. Applicant, a parastatal, had suspended its chief executive officer and two other employees, who were the sixth, seventh and eighth respondents respectively. Applicant appointed a firm of independent auditors to conduct an investigation. Subsequently, applicant instituted disciplinary proceedings against sixth respondent. 3. First respondent, via the Cabinet and the minister (second and third respondents respectively), had issued a directive that the suspension be lifted pending investigations by the Auditor-General. 4. Applicant sought an order interdicting first, second and third respondents from ‘interfering’ with applicant. 5. Referring to art 41 of the Constitution, the Court remarked that a minister is for all practical purposes the head of a particular ministry under his or her portfolio, and that a minister certainly has the power to issue executive orders and directions, insofar as her or his ministry is concerned, because a minister is finally accountable to the Cabinet for the affairs of his or her ministry. 6. However, with regard to a parastatal, where legislation has made provisions for the establishment of a board for the parastatal, different considerations apply. The board is established to take the executive decisions and so it is not within the powers of the minister under whose ministry a parastatal resorted to assume the functions of the board and take executive decisions. Such decisions are reserved for determination and decision by the board of the parastatal in question.

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3.3.7 Requirements of fairness and justice enjoin administrative bodies and officials to give reasons for their administrative actions

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A. Text The House of Lords held so many years ago in England that a public authority should give reasons for its decision, and the public authority must give the reasons if requested to do so. If the public authority did not do so, the court may infer that the public authority has no good reason. [Emphasis added] That was in the famous case of Padfield v Minister of Agriculture, Fisheries and Food,88 one of the landmark cases that took the development of administrative law in England to greater heights. In Congreve v Home Office 89 the public authority issued a man with a television licence for a year. Although the minister had the power to revoke the licence, the Court of Appeal, per Lord Denning MR, held that it would be a misuse of power if the minister revoked it without giving reasons or for no good reason. The House of Lords confirmed the principle in Preston v Inland Revenue Commissioners.90 In Namibia, it was in 1999 that the High Court held that administrative bodies and officials must give reasons for their administrative actions, as they are obliged to do by art 18 of the Constitution. That was in Frank & Another v Chairperson of the Immigration Selection Board.91 Some six years later, the High Court held that the reasons should not be fanciful. That was in Kaulinge v Minister of Health and Social Services.92 Considering the right to administrative justice in Namibia in terms of art 18 of the Constitution, I submit that if the administrative body or official has no reason for its, his or her action then the inference is strong that the body or official had made the decision arbitrarily. In that case, the conclusion would be inescapable that the administrative body or official had not acted fairly, in violation of art 18 of the Constitution. The conclusion would then be inescapable that there had been want of justice. The law of art 18 of the Constitution says so. In that regard, O’Linn AJA stated aptly that not to disclose all the reasons for an administrative action: 88 89 90 91 92

[1968] AC 997 (HL). [1976] 1 All ER 697; [1976] QB 629. [1985] 2 All ER 327 (HL). 1999 NR 257 (HC). 2006 (1) NR 377 (HC), at 385H.

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… is an abrogation of the principles relating to administrative fairness and justice, required by art 18 of the Namibian Constitution …93 [Emphasis added]

I submit: if there has been ‘an abrogation of the principles relating to administrative fairness and justice, required by art  18 of the Namibian Constitution’, then it follows inexorably, as a matter of the law of art 18, that the decision is unlawful and invalid. In that regard, I submit that the abrogation of fairness and justice is an illegality ‘intrinsic to the decision-making process itself ’.94 Indeed, as the High Court held in Kaulinge v Minister of Health and Social Services.95 (per Mainga J), fairness involves the right to be heard and being given reasons for an action. Baxter, in his authoritative work, Administrative Law, states categorically:

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Whatever might be implied from detailed application of the audi alteram partem principle, the strongest case for arguing that natural justice implies a right to reasons is the fact that an unreasoned decision is arbitrary and unfair. In this respect the principles of fairness and reasonableness overlap.96

The law requires an administrative body or official to give reasons for its, his or her administrative action. This proposition of the law answers to common sense. If the body or official is not bound to give reasons for its, his or her action, upon what grounds can a person aggrieved by such administrative action meaningfully and really vindicate his or her right to administrative justice by pursuing his or her right under art 25(2) of the Constitution?97 If the body or official were not bound to give reasons, then, it is submitted, the basic human right in arts 18 and 25(2) would be a lofty ideal, to be admired and not enjoyed, like the biblical forbidden fruit. Levy J aptly ventilated the inherent logic and common sense in the proposition of law when he stated in Frank & Another v Chairperson of the Immigration Selection Board: An unfair or unreasonable decision entitles an aggrieved person to redress by the Court but the Court cannot judge what is reasonable or unreasonable unless the

93 94 95 96 97

Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC), at 744D. Minister of Education v Free Namibia Caterers 2013 (4) NR 1061 (SC), para 26. 2006 (1) NR 377 (HC). L Baxter (1991) Administrative Law (Third edition). Juta & Co, p 569. See Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC), at 265D–E.

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administrative body (or official) gives its (or his or her) reasons for arriving at its (or his or her) decision.98

In that case (Frank & Another),99 Levy J’s response to a statement in the answering affidavit of the deponent of the affidavit (Mr Simenda) that he was ‘advised that the applicant is not in law entitled to be furnished with reasons for the decision of the Board’, was this: Mr Simenda does not say who gave the respondent this very bad advice. It is clear that respondent has acted on this bad advice for some time. In fact, respondent is obliged to give reasons where such exist. [Emphasis added]

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When the matter went on an appeal in the Supreme Court, Strydom CJ put it forthrightly thus in a minority judgment in Chairperson of the Immigration Selection Board v Frank: Furthermore, it seems to me that it is implicit in the provisions of art 18 of the Constitution that an administrative organ exercising a discretion is obliged to give reasons for its decision. There can be little hope for transparency if an administrative organ is allowed to keep the reasons for its decision secret. The Article requires administrative bodies and officials to act fairly and reasonably. Whether these requirements were complied with can, more often than not, only be determined once reasons have been provided. This also bears relation to the specific right accorded by acts 18 to persons to see redress before a competent Court or Tribunal where they are aggrieved by the exercise of such acts or decisions. Article 18 is part of the Constitution’s Chapter on fundamental rights and freedoms and should be interpreted ‘… broadly, literally and purposively …’ to give to the article a construction which is ‘… most beneficial to the widest possible amplitude’. (Government of the Republic of Namibia v Cultura 2000 1993 NR 328 (SC), at 340B–D.) There is therefore basis to interpret the Article in such a way that those who want to redress administrative unfairness and unreasonableness should start off on an unfair basis because the administrative organ refuses to divulge reasons for its decision.100

Baxter states further that in the (British) Commonwealth and America many law reform commissions have recommended a general statutory duty to give reasons for administrative action. The exercise of giving reasons for their decisions nudges 98 Ibid. 99 At 264I–265A. 100 2001 NR 107 (SC), at 174I–175C.

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administrative bodies and or officials to bring their minds to bear on the relevant factors that they must take into account and reject extraneous and irrelevant matters in order to arrive at just and fair decisions.101 The exercise assists them in exercising their discretion fairly and reasonably. If administrative bodies and official are not bound to give reasons for their acts and decisions,102 then one cannot question their decisions; so why does it matter if an administrative body or official gives bad or fanciful reasons,103 or gives no reasons.104 I respectfully submit that any proposition of law that states the opposite is palpably wrong. It would clearly be offensive of art  18, which guarantees the basic right to administrative justice, and an affront to art 25(2), which guarantees to a person aggrieved by an alleged violation or threatened violation of a right guaranteed by the Constitution to approach the court for redress. In sum, the requirement of fairness and justice enjoins administrative bodies and officials to give reasons for their administrative actions. One last important point: as discussed in para 3.3.8 of the present chapter, in English language giving reasons for one’s action does not do violence to, and does not contradict, the principle that administrative bodies and officials bear no onus to justify their actions.105 Administrative bodies and officials’ giving reasons for their administrative actions goes to the root of the right to administrative justice guaranteed to persons by art 18 of the Constitution and also the right to attack an administrative action by judicial review. To sum up, ‘natural justice (which is a requirement of art 18 of the Constitution) implies a right to reasons’.106 If no reasons are given for an administrative action, that is an abrogation of art 18 of the Constitution.107 The inevitable inference is that the administrative body which, or the administrative official who, took the action acted unfairly, unjustly and unreasonably; and so the action must be unlawful and invalid. The requirement that administrative bodies and officials must give reasons for their administrative actions answers to common sense, apart from the law. It offers a platform on which a court may stand in order to determine whether

101 Baxter (1984: p 227). 102 Minister of Education v Free Namibia Caterers 2013 (4) NR 1061 (SC), paras 26–27. 103 Kaulinge v Minister of Health and Social Services 2006 (1) NR 377 (HC). 104 Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC). 105 I discuss it fully in para 3.3.8. 106 Baxter (1991: p 569). 107 Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC).

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when the bodies and officials have abused their discretion by, for instance, acting in bad faith or from improper motives or on extraneous considerations or under a view of the facts or the law which could not reasonably be entertained.108 Furthermore, one must not lose sight of the fact that giving reasons for administrative action is peremptory in terms of rule  76(2)(b) of the Rules of Court. One cannot seriously argue that that provision is aleatory (ie random) or insignificant. Not at all: that could not have been the intention of the rule-maker; and, what is more, rule 76(2)(b) of the rules conduces to the practical realisation of the requirement of natural justice under art 18 of the Constitution. It is implicit in the provisions of art 18 of the Constitution that an administrative organ exercising discretion is obliged to give reasons for its decision: there can be little hope of transparency if an administrative organ is allowed to keep the reasons secret. Article 18 requires administrative bodies and officials to act fairly and reasonably, and whether an administrative body or official has complied with those requirements can more often than not be determined only once the body or official concerned has provided reasons. Therefore, for the body or official not to disclose all the reasons for the administrative action is an abrogation of the principles relating to administrative fairness and justice required by art 18 – for natural justice implies a right to reasons – rendering the administrative action in question unlawful and invalid. B. Cases

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[16] Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC) Levy AJ: … In respect of first applicant’s statement that the respondent has consistently refused to give reasons for respondent’s refusal to grant her permanent residence, 108 I discuss them as grounds of judicial review of administrative action by administrative bodies and officials in chapter 4 (section 4.2).

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Mr Simenda replied as follows: I am advised that the applicant is not in law entitled to be furnished with reasons for the decision of the Board.

Mr Simenda does not say who it was that gave the respondent this very bad advice. It is clear that respondent has acted on this bad advice for some time. In fact, respondent is obliged to give reasons where such exist. In art 18 of the Namibian Constitution which respondent cannot ignore, the following is provided:

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Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or tribunal.

Respondent is an administrative body and its proceedings and decisions are therefore subject to art 18. Considerations as to what is ‘fair’ and what is ‘reasonable’ differ. An administrative body may arrive at a decision in a fair manner but its decision may nevertheless be unreasonable. On the other hand an unreasonable decision would always be unfair. An unfair or unreasonable decision entitles an aggrieved person to redress by the Court but the Court cannot judge what is reasonable or unreasonable unless the administrative body gives its reasons for arriving at its decision. The section does not repeal the common law. In fact it embraces it. Accordingly, guidance in the application of this article can be obtained by reference to cases in Namibia decided under the common law which had to be evoked before the Constitution was adopted, in order to review decisions of public officials. In the case of Katofa v Administrator-General of Southwest Africa & Another 1985 (4) SA 211 (SWA), the Court had to consider whether the Administrator-General could be compelled to give reasons for the arrest and detention of Mr Katofa. The statutory provision required the Administrator-General to be ‘satisfied’ that Mr Katofa had ‘committed or attempted to commit or in any manner promoted the commission of the violence or intimidation’ referred to in s 2(1)(a) and (c) of the relevant statute. The Administrator-General refused to give those reasons. The Court held that (at 221I–J): To be ‘satisfied’ the Administrator-General must have reason to be satisfied. In other words objective reasonable grounds must exist to make him satisfied and he must apply his mind to a consideration thereof.

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Accordingly, the Administrator-General was ordered to place such grounds before the Court, failing which, Katofa would be liberated. The Administrator-General failed to comply with the order and Katofa was liberated. In Federal Convention of Namibia v Speaker National Assembly of Namibia & Others 1991 NR 69 (HC); 1994 (1) SA 177 (Nm) this Court was called upon to set aside a decision of the Speaker of the National Assembly. The Court (at 89C–D (NR); 197G–H (SA)) quoted the common-law principles relevant to such review and referred to certain cases dealing with the same principles. There it was said:

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… where there is a statutory duty on a public officer and, in giving his decision or acting in pursuance thereof, he acts mala fide or fails to apply his mind or takes into account irrelevant or extraneous facts or is prompted or influenced by improper or incorrect information or motives, the High Court of Namibia has inherent jurisdiction (see art 78(4) of the Namibian Constitution) to review the decision or ruling, to set it aside and to return the matter to the public officer or simply to correct it. The Free Press of Namibia (Pty) Ltd v Cabinet of the Interim Government of South West Africa 1987 (1) SA 614 (SWA), at 625A–D, 626B–I; Shifidi v Administrator-General for South West Africa & Others 1989 (4) SA 631 (SWA), at 646, 647–648; Mweuhanga v Cabinet of the Interim Government of South West Africa 1989 (1) SA 976 (SWA), at 990D–E; Cabinet for the Interim Government of South West Africa v Bessinger & Others 1989 (1) SA 618 (SWA), at 627.

Accordingly, I have no doubt that in the present case respondent was obliged to act fairly and reasonably and to apply its collective mind and could not take into account irrelevant or extraneous facts and could not be prompted or influenced by improper or incorrect information or motives. Although Mr Simenda incorrectly stated that the respondent was not obliged to give reasons for its decisions he in fact purported to give such reasons. I firstly draw attention to para 9.2 of his affidavit where he says: 9.2 There was also no specific information before the board that adversely affected the applicant’s application.

From this it is apparent that there were no grounds whatsoever for refusing the applicant. This statement of Mr Simenda is sufficient to justify this Court setting aside the board’s decision without any further ado. Mr Simenda, however, subsequently in his affidavit set out a reason similar to those given by Mr Taapopi and which he says motivated the respondent in this decision. …

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It would appear that respondent believed that in refusing first applicant a permanent residence permit it was acting (although it had no specific information) in terms of s 26(3)(e) of the Immigration Control Act 7 of 1993. … In terms of the common law, where a public official or a board in arriving at a decision takes into account an incorrect factor (eg future graduates or volunteers and not those ‘already’ in the labour market) even if some factors which the official or board considered are true, correct and relevant, the ultimate decision is bad because one does not know what part those incorrect factors played in making the decision. I can do no better than to quote what was said in The Free Press of Namibia (Pty) Ltd v Cabinet, Interim Government of South West Africa 1987 (1) SA 614 (SWA), at 626B–D: In Administrative Law by Baxter, the learned author says (at p 521):

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Where it is impossible to distinguish those reasons which were decisive from those which were not, and one or more of the reasons are bad, the Court has no choice but to set the decision aside. (See also Beaufort West Club v Beaufort West Licensing Court & Others 1928 CPD 317; Patel v Witbank Town Council 1931 TPD 284; Johannesburg City Council v Sohn 1933 TPD 8; Jabaar & Another v Minister of Interior 1958 (4) SA 107 (T); More & Another v Springs Town Council 1965 (3) SA 666 (W).)

It is not possible to distinguish these sound reasons which could have been decisive from the irrelevant matter which influenced respondent and the Court accordingly has no choice but to set the decision of respondent aside. It is unnecessary for me to decide whether in terms of Act 7 of 1993, the respondent has the power to reconsider an application. The Court orders that: (a) The decision of the Immigration Selection Board of 29  July 1997 refusing a permanent residence permit to Erna Elisabeth Frank is reviewed and set aside. (b) The Immigration Selection Board is directed to authorise the issue to Erna Elisabeth Frank a permanent residence permit within thirty days of the date of the order of this Honourable Court.

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Notes 1. This is an application to review and set aside respondents’ refusal to issue a permanent residence permit to first applicant. First applicant, a German national, had been resident in Namibia since 1990. She had been employed, had worked as a volunteer in various capacities and was active in educational and other fields of research. She was highly thought of in ministerial and government circles. It appeared from the papers that first applicant, who had been living with second applicant and her son as a family, had a lesbian relationship with second applicant. 2. During 1997, first applicant applied for a permanent residence permit. Respondent refused her application. First applicant had requested reasons for this decision but respondent refused to give her any. Respondent contended that it was not compelled to furnish reasons for its decisions. But in its opposing papers respondent averred that it had based its refusal of first applicant’s permanent residence permit on the fact that several Namibians were qualifying in first applicant’s field and that it would be hard enough to find employment for them. Moreover, volunteers from overseas were offering their services from time to time. Respondent also averred that first applicant’s lesbian relationship had not been a factor but added that the law did not recognise first and second applicants’ relationship. 3. The Court considered applicants’ right to reasons for administrative acts. 4. The Court reasoned that an unfair and unreasonable decision entitled the aggrieved person to seek redress in a competent court but the Court could not judge what was reasonable or unreasonable, fair or unfair, unless the administrative body or official gave reasons for arriving at its decision. The Court’s reasoning and conclusion is logical and satisfies the requirement that administrative bodies and officials must act fairly and reasonably. 5. As the British Columbia (Canada) Supreme Court held, reasons can be demanded as part of that which is necessary for fundamental justice (see the Canadian case of Re D and H Holdings Ltd v City of Vancouver & Others) British Columbia Supreme Court (1985), 64 BCLR 102, 21 DLR (4th) 231 (BCSC)). 6. The questions that arise are these: if administrative bodies and officials are not bound to give reasons for their acts and decision, as the Supreme Court appeared to hold in Minister of Education v Free Namibia Caterers 2013 (4) NR 1061 (SC), then (a) why does it matter if administrative bodies or officials

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give bad or fanciful reasons for their actions? See Preston v Inland Revenue Commissioners [1985] 2 All ER 327 (HL); Kaulinge v Minister of Health and Social Services 2006 (1) NR 377 (HC); Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL). (b) What grounds can a party aggrieved by such decisions stand on to challenge the impugned decision? 7. Indeed, in an earlier decision by the Supreme Court in Minister of Health and Social Services v Lisse (Case [17]), O’Linn AJA went further to say that a refusal by the administrative bodies and officials to give reasons for their administrative actions is an abrogation of art 18 of the Constitution. 8. I respectfully submit that on the basis of the welter of authorities, the decision in Minister of Health and Social Services v Lisse (Case [17]) is preferred. 9. Therefore in this case [16], the High Court held that where an administrative body or official has acted unfairly and unreasonably, a person aggrieved by the administrative action is entitled to approach the Court for redress. However, the Court cannot judge what is reasonable and what is fair and whether there has been an abuse of discretion unless the administrative body or official has given reasons for the decision.

[17] Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC)

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O’Linn AJA: … [9] The reasons for the Minister’s decision were only supplied subsequent to her final decision and only when requested to do so by Dr Lisse and/or his legal representatives. [10] The first set of reasons was supplied by Mr Khupe, purportedly acting for the Government Attorney, in a letter on the letterhead of the Attorney-General dated 7 April 2004.

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Mr Khupe not only wrote the letter, but also appeared for the Minister in this matter in the High Court, as well as before us. The letter reads as follows: Re: non-authorisation: Dr E Lisse Please note that the Ministry of Health and Social Services has referred the above matter to us with instructions that we respond to your letter to them dated 7 April 2004. Our client’s instructions are as follows: 1. your client’s application has not been approved by the Minister and that decision has been communicated to him. Your client is free to appeal against the decision if he wishes to in the normal course; 2. your client knows the reasons for the non-approval but suffice to say that they include, inter alia: 2.1 his commencing to practise at the Windhoek Central Hospital without the prior authorisation from the Minister, 2.2 the numerous complaints levelled at your client by medical personnel at the Windhoek Central Hospital and which complaints your client refused to address when asked to do so; 3. there is no urgency in the matter (arising from the Minister’s rejecting his application) as your client can always make alternative arrangements for his ‘schedule commitments’. Your client has always known of the complaints against him and the possibility of the Minister not approving his application; 4. your client must respect and abide by the Minister’s decision and forthwith cease to practise at the aforesaid hospital as the Ministry will not allow it.

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Those are our instructions at this stage and we must mention that we still are yet to obtain the full instructions from our client on this matter.

[11] These reasons were not supplemented by or on behalf of the Minister in accordance with the provisions of rule 53(1)(b) of the Rules of the High Court and she only attempted to justify these reasons and other new ones in her answering affidavit. [12] The letter by Mr Khupe had some strange, unsatisfactory and unacceptable features. I need to mention the following: (a) In the first sentence it states that the matter has been referred to the attorneys by the Ministry of Health and Social Services with instructions to respond given by the Ministry. It is not alleged in this letter that the Minister gave the instructions and that these are the Minister’s instructions.

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There is a clear legal distinction between the concept ‘Minister’ and ‘Ministry’. It is therefore important and indeed necessary for parties in litigation and their legal representatives to keep the distinction in mind to avoid confusion. The ‘Ministry’ can be defined as a department of State under a Minister: when a law provides that a Minister shall decide or act, the decision or act will be ultra vires and of no force and effect if performed by the Ministry. (b) In the following paragraph marked ‘1’, it is stated, inter alia: ‘Your client is free to appeal against the decision if he wishes to in the normal course.’ Whether it is meant to be an ‘appeal’ to the Minister or some other entity or an appeal merely existing in the imagination of the writer is not disclosed. (c) Paragraph 2 starts off with the allegation: ‘Your client knows the reasons for the non-approval but suffice to say that they include, inter alia …’ On what ground it is bluntly stated that ‘[y]our client knows the reasons’, is not disclosed. If it was meant to suggest that those reasons were the complaints by staff, received by Dr Vries, it makes no sense because at no stage prior to the decision was Lisse informed or otherwise aware that the said complaints by staff would be submitted to the minister and would become a decisive reason for the rejection of his application. To go further and suggest that there are reasons other than those expressly stated in the letter, without disclosing those other reasons, is an abrogation of the principles relating to administrative fairness and justice, required by art 18 of the Namibian Constitution, especially where this attitude is further demonstrated by the last sentence which reads: ‘Those are our instructions at this stage and we must mention that we still are yet to obtain the full instructions from our client on this matter.’ [Emphasis added] It appears from this reservation that the Minister and the Government Attorney representing her wished to use this stratagem to keep the door open for other undisclosed reasons, as they may become necessary to bolster the case of the Minister. This attitude is also in conflict with the principles and policy of transparency to which the Minister, the Attorney-General and Government Attorney are bound. The reasons, qualified in this manner and the attitude disclosed thereby, are also unacceptable to this Court, particularly when, as in this case, no effort was made to supplement and/or correct the reasons in terms of the aforesaid rule 53(1)(b).

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Notes 1. Respondent, a medical practitioner, had applied to the minister, as required by s 17 of the Hospitals and Health Facilities Act, 1994 (Act No 36 of 1994), for written authorisation to use the facilities of the Windhoek State Hospital for the treatment of his private patients. The responsible minister refused his application. The Court a quo, upon his application to review and set aside the decision, had ordered the minister to issue the necessary certificate in terms of s 17 of the Act. The minister appealed against that decision in the present case. 2. According to the Court, implicit in the provisions of art 18 of the Constitution is that a public authority exercising discretion is obliged to give reasons for its decision. The Court remarked that there can be little hope for transparency if the law allowed a public authority to keep secret the reasons for its decision. Article 18 requires administrative bodies and officials to act fairly and reasonably. Whether these requirements were complied with can, more often than not, be determined only once the public authority concerned has provided reasons for its decision. 3. Compare this earlier decision of the Supreme Court (Case [17]) with the Court’s later decision in Minister of Education v Free Namibia Caterers (supra). See Notes under Case [16].

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3.3.8 No onus on administrative bodies and officials to justify their administrative actions A. Text The principle that there is no onus on an administrative body or official to justify its, his or her administrative action is predicated on a well-tested and age-old principle. The principle is that he or she who asserts proves, and not he or she who denies,109 and on the presumption that an administrative action by an administrative body or official is properly made, a presumption sometimes expressed in the maxim omnia praesumuntur rite esse acta (ie all things are presumed to be done in due form). Of course, this is a presumption of fact; and it does not follow that an invalid administrative action is irrebuttably presumed to be valid.110 109 Pillay v Krishna 1946 AD 948, at 952. 110 Baxter (1984: p 157).

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As we intimated in para 3.3.7 in the present chapter, being bound to give reasons for an action taken is not the same as being bound to justify the action taken. The fact that an administrative body or official is bound in judicial review proceedings to give reasons for its, his or her action, as the law says, does not, by any stretch of the legal imagination or as a matter of language mean that the administrative body or official is being asked to justify its, his or her administrative action.111 To give reasons for an action – that is, good and not fanciful reasons112 – is to give a good and satisfactory explanation for the action; and to justify an action is to prove that you are right.113 Doubtless, the two acts are polar different. It follows that the principle that an administrative body or official bears no onus to justify its or their administrative action114 does not absolve it or them from giving reasons for the action.115 The administrative body or official is not bound to prove that it or they were right; however, the body or official is bound to give reasons – not fanciful reasons – for its or their action. As I have said previously, the two exercises cannot be the same in law, logic or language. B. Cases

[18] Immanuel v Minister of Home Affairs & Others 2006 (2) NR 687

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Damaseb JP: …

111 Minister of Education v Free Namibian Caterers 2013 (4) NR 1061 (SC), paras 26–27, appears to imply that. 112 See Kaulinge v Minister of Health and Social Services 2006 (1) NR 377 (HC), at 385H–I. 113 Concise Oxford Dictionary (Eleventh edition, 2008). Oxford: Oxford University Press. 114 New Era Investment v Roads Authority 2014 (2) 596 (HC); Immanuel v Minister of Home Affairs & Others 2006 (2) NR 687 (HC); Christian v Metropolitan Life Namibia Retirement Annuity Fund & Others 2006 (2) NR 687 (HC); Christian v Metropolitan Life Namibia Retirement Annuity Fund & Others 2008 (2) NR 753 (SC). 115 See para 3.3.7 above.

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Purpose of judicial review [53] Judicial review has two aspects: First, it is concerned with ensuring that the duties imposed on decision-makers by law (which includes the Constitution) are carried out. A functionary who fails to carry out a duty imposed by law can be compelled by the High Court to carry it out. Secondly, judicial review is concerned with ensuring that an administrative decision is lawful, ie that powers are exercised only within their true limits. If a functionary acts outside the authority conferred by law, the High Court can quash his or her decision. This is the doctrine of ultra vires. … [54] The applicant’s case is, in reality and substance, a plea for mercy – to be given another chance although she was convicted of theft from her employer. The decision of the respondents not to give her another chance is not subject to review in the absence of any unlawful conduct on their part. The applicant failed to establish that the respondents did not comply with their statutory obligations. The onus rests upon the applicant for review to satisfy the Court that good grounds exist to review the conduct complained of: Davies (supra), at 47G–H. [55] I find no irregularity in the actions of the respondents.

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[56] This application for review is singularly lacking in merit and is accordingly dismissed with costs.

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4.1 Introductory remarks

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A. Text I discussed previously in chapter 2 (section  2.1) that the whole basis of judicial review is normally the inherent power of the High Court. Moreover, when it comes to judicial review of administrative action, art 18 of the Constitution strengthens the High Court’s inherent power to review actions of administrative bodies and officials. A person aggrieved by an administrative action of an administrative body or official is entitled in terms of art 25(2) of the Constitution to approach the seat of judgment of the court for redress. We saw in chapter 3 (para 3.3.8) that an administrative body or official bears no onus to justify its, his or her administrative action. The person who attacks the action by judicial review bears the onus of satisfying the court that good grounds exist to review the action in question.1 I have also shown in chapter 3 (para 3.3.1) that the grounds of judicial review of administrative action find their doctrinal foundation in the principles of ultra vires and legality, and that these principles therefore encompass the grounds of review. It is important to note that the various common-law grounds and the constitutional grounds are not rigidly compartmentalised: they complement and 1

Immanuel v Minister of Home Affairs & Others 2006 (2) NR 687 (HC); Christian v Metropolitan Life Namibia Retirement Annuity Fund & Others 2008 (2) NR 753 (SC). 118

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run into each other and overlap. For example, in Preston v IRC2 the House of Lords, per Lord Templeman, affirmed the Court of Appeal’s decision in Congreve v Home Office3 that the decision of the minister was unfair and unreasonable because the minister was actuated by an ‘irrelevant motive’. Irrelevant motive is traditionally a common-law ground of review of administrative action, but a court may find that acting unfairly and unreasonably (which are constitutional grounds of review) may be actuated by an ‘irrelevant motive’. Furthermore, acting unreasonably might also warrant the inference that the administrative action in question is tainted by one of the heads of abuse of power, which is traditionally a common-law ground of review. Mureinik wrote that the recognised heads of abuse of discretion are expressed ‘in the form of a trilogy: bad faith, ulterior motive and failure on the part of the repository of the discretion to apply his mind to the question before him’.4 Moreover, there is a close relationship between the notion of natural justice and fairness. In addition, acting fairly and reasonably is practically inseparable, and the requirement relates to substance, not procedure per se. Levy J observed in Frank & Another v Immigration Selection Board 5 that art 18 does not repeal the common law; it embraces it. In addition, Mainga J observed in Sikunda v Government of the Republic of Namibia (3) 6 that at common law courts are not competent to review acts of administrative bodies and officials based on unreasonableness. Article 18 of the Constitution introduced into Namibia’s administrative law reasonableness as a ground of judicial review of administrative action by administrative bodies and officials. Lord Green MR opined: I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty – those, of course, stand by themselves – unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been refereed to, according to the facts 2 3 4 5 6

[1985] 2 All ER 327 (HL), at 340b–e. [1976] 1 All ER 697, [1976] QB 629. Etienne Mureinik (1988). ‘Administrative Law in South Africa’. SALJ, Vol 103, pp 615–628. 1999 NR 257 (HC), at 265E. 2001 NR 181 (HC). The Supreme Court in Minister of Health and Social Services v Lisse (Case [28]) set out the common-law grounds of review in para 24.2.

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of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent.7

In virtue of the interconnectivity and overlapping of the various common-law grounds and constitutional grounds of review, it is not practicable to treat them under separate headings: common-law grounds and constitutional grounds. Indeed, it would be artificial and purposeless to do so. It is for these reasons that I have discussed both sets of grounds together in the present chapter, but pointing out as the enquiry continues grounds that are traditionally common-law and those that are constitutional. In sum, an application for judicial review of administrative action is based on one or more grounds of review within the foundational principles of ultra vires and illegality, and the grounds must be good grounds. In sum, the common-law grounds and the constitutional grounds both have their doctrinal basis in the ultra vires principle and the principle of legality.

4.2 Common-law grounds and constitutional grounds of judicial review of administrative action by administrative bodies and officials

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A. Text It will be recalled that the point was made in the introductory remarks to this chapter (section 4.1) that the grounds for judicial review of administrative action, that is, common-law grounds and constitutional grounds, are so intertwined that it would be artificial and purposeless to consider them separately and in isolation. I intimated then that it made sense to consider both sets of grounds together but to indicate which grounds are traditionally common-law and which are constitutional. With regard to constitutional grounds of judicial review of administrative action by administrative bodies and officials, the signpost to look at is art 18 of the Namibian Constitution: Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by 7

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (CA), at 229.

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common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or tribunal.

The Supreme Court laid down in Minister of Health and Social Services v Lisse 8 that the requirement (in art 18) that administrative bodies and officials must ‘act fairly and reasonably’ is not restricted to procedure only but also applies to the substance of the decision. I discuss below the following requirements as the constituent grounds of judicial review of administrative action by administrative bodies – on procedure (ie procedural fairness) and substance (ie substantive fairness): (a) (b) (c) (d) (e) (f)

audi alteram partem rule of natural justice qualifying bias legitimate expectation ‘to act fairly and reasonably’ compliance with requirements imposed by any relevant legislation, and abuse of discretion.

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Some of these items are clearly on procedure, for example items (a), (b) and (c); others are clearly on both procedure and substance, for example item (d). The rest, because of their close connection with the other items, may be on procedure alone, on substance alone, or on both procedure and substance. One could argue that because the public authority abused its discretion in making the decision in question, it acted unfairly and unreasonably, making the decision one which no reasonable public authority would have made. This is a ground of review on substance. (a) Audi alteram partem rule of natural justice One of the most important common-law grounds of review principles is natural justice. In addition, it finds expression in art 18 of the Constitution, too. It is one of the common-law requirements which administrative bodies and officials must satisfy in taking any administrative action.9 It is undoubtedly the touchstone of the doctrine of legality. The two elements of natural justice are the audi alteram partem rule and the rule against bias. I discuss the rule against bias, that is, disqualifying bias, in paragraph (c) below. 8 9

2006 (2) NR 739 (SC). Ridge v Baldwin [1964] AC 40 (HL).

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I hasten to add that natural justice is a flexible doctrine whose content may vary according to the nature of the power exercised and the circumstances of the case.10 Natural justice is a body of judge-made rules of English common-law origin but the universality of its application as a right has not been doubted. By developing the principles of natural justice, the courts have laid down requirements of fair and just administrative action.11 The general requirement of the natural justice rule of hearing – or, better still, fair hearing – has two main heads. First, it places an onus on the action-taker to disclose to the party affected sufficient notice of what another person has proposed against them so that they might be in a position to prepare their case in order to answer the case they have come to meet.12 Secondly, it requires the action-taker to give the party affected an opportunity to correct an impression or contradict any evidence that has been gathered against them.13 The requirement is expressed in the maxim audi alteram partem, or simply audi. The requirement, expressed simply as a general rule, is that in taking any administrative action, the administrative body or official should hear the other party before acting. The court will find the decision-making process to be unfair and unreasonable where the other party is denied audi, that is, a hearing. In that regard, it is important to make this point. A party was as a matter of law entitled to a hearing or they were not. If they were so entitled, the reason for the failure to give them a hearing is completely immaterial. It is also a denial of audi, and therefore unreasonable, where an administrative body or official takes a decision in contravention of a statutory procedure for giving notice. Accordingly, the House of Lords held in the English case of Andrews v Michell,14 and the Supreme Court of Canada held in the Canadian case of Re Weden,15 that the giver of the notice must observe strictly a statutory period of notice. In addition, the administrative body or official should also observe its own procedure with regard to the period separating the time for giving the notice and the time for hearing the case.16

10 New Era Investment v Roads Authority 2014 (2) NR 596 (HC). 11 HWR Wade (1984). Administrative Law (Fifth edition). Oxford: Clarendon Press, p 413. 12 Minister of Health and Social Services v Lisse 2008 (2) NR 739 (SC). 13 Ibid. 14 1965 AC 40 (HL). 15 (1969) 2 DLR (3rd) 74. 16 Wiswell v Metropolitan Corporation of Greater Winnipeg (1965) 51 DLR (2nd) 754.

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The critical importance of giving a person a hearing and affording them an opportunity to correct or contradict any evidence is demonstrated in the following passage in the case of Amupanda v Swapo Party of Namibia: [32] As the learned Hoexter JA stated in Administrator, Transvaal & Others v Zenzile & Others 1991 (1) SA 21 (A), at 37C–E, which concerned an errant employee but which should apply with equal force to an errant member of a political party – It is trite, furthermore, that the fact that an errant employee may have little or nothing to urge in his own defence is a factor alien to the inquiry whether he is entitled to a prior hearing. Wade (Administrative Law (Sixth edition)) puts the matter thus at pp 533–534: Procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. The learned author goes on to cite the well-known dictum of Megarry J in John v Rees [1970] Ch 345, at 402:

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As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determination that, by discussion, suffered a change.17

Furthermore, with regard to affording an opportunity to correct or contradict any evidence gathered, it was settled in the well-known English case of Local Government Board v Arlidge,18 and the landmark Indian case of AK Gopalan v State of India,19 that this requirement does not necessarily imply a right to an oral hearing. In Arlidge, one of the arguments canvassed on behalf of the respondent was that since the Board had not given the respondent an oral hearing before it discussed his appeal, the principle of natural justice had been breached. The House of Lords rejected that argument and held that the Board was not bound to hear the respondent orally, provided it gave him the opportunity of presenting his case, which the Board had, because the respondent had made a written representation.

17 (A215/2015) [2016] NAHCMD 126 (22 April 2016), para 32. 18 1915 AC 120 (HL). 19 AIR 1950 SC 27.

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Thus, in many cases written submissions to the administrative body or official in question would satisfy the requirements of audi alteram partem. Indeed, one cannot discount the fact that in some cases oral hearings would not be practicable, particularly where the matter involves so many people who reside in different places.20 Strydom CJ put it clearly and forthrightly: In the absence of any prescription by the Act, the appellant is at liberty to determine its own procedure, provided of course that it is fair and does not defeat the purpose of the Act (Baxter).21 Consequently the Board need not, in each instance, give an applicant an oral hearing, but may give an applicant an opportunity to deal with the matter in writing.22

From the authorities, it emerges clearly that what a hearing entails and how a hearing may be afforded to an interested party depend, barring statutory prescriptions, largely on the facts and circumstances of the particular case.

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(b) Doctrine of legitimate expectation A principle that courts have developed as an offshoot of the audi alteram partem rule of natural justice is the principle of legitimate expectation as a ground of judicial review to protect procedural or substantial interest when an administrative body or official rescinds from a representation – by words or conduct – made to a person. The principle is based on the rules of natural justice and fairness, and it seeks to prevent administrative bodies or officials from abusing power and acting unfairly and unreasonably. As I have said previously, the legitimate expectation doctrine is an offshoot of the audi alteram partem principle of natural justice. In terms of the principle, when a statute empowers a public official or body to give a decision prejudicially affecting an individual in their liberty or property or any other rights, the latter has a right to be heard before the decision is taken (or, in some instances, thereafter), unless the statute expressly or by implication indicates the contrary. However, since about 1950, as a result of a series of judicial decisions in the House of Lords and in the Court of Appeal in England, there has been ‘a dramatic and, indeed, radical change in the scope of judicial review’, which has been described ‘by no means critically as an upsurge of

20 Lawrence Baxter (1984). Administrative Law. Cape Town: Juta & Co, p 552. 21 Ibid, p 545. 22 Chairperson of the Immigration Selection Board v Frank & Another 2001 NR 107 (SC), at 174H.

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judicial activism’. One aspect of this change in the scope of judicial review was the evolution of the legitimate expectation principle. Moreover, it evolved in the social context of the age in order to make the grounds of interference with the decisions of public authorities that adversely affect individuals co-extensive with notions of what is fair and what is not fair in the particular circumstances of the case. Courts in Australia and New Zealand have therefore found it necessary, or at any rate desirable, to extend the scope of judicial review to include cases of legitimate expectation. A similar need was felt and satisfied in Namibia, as I discuss below in the present paragraph. There are many cases that one can visualise in this sphere: for example, where adherence to the formula of basic human rights and other rights would fail to provide a legal remedy when the facts cry out for one, resulting in the public authority’s having made a decision by a procedure that was clearly unfair but immune from review. The law should be able to reach out and come to the aid of the persons thus aggrieved. In England, the legitimate expectation principle is sometimes expressed in terms of some substantial benefit, advantage or privilege that the person concerned could reasonably expect to acquire or retain and which it would be unfair to deny such person without prior consultation or a prior hearing before some decision adverse to the person concerned is taken. In practice, the two forms of expectation are interrelated and even tend to merge. Therefore, the person concerned may have a legitimate expectation that the public authority will give them a fair hearing.23 Lord Denning MR used the term ‘legitimate expectation’ for the first time in the English case of Schmidt & Another v Secretary of State for Home Affairs.24 In South Africa, the leading case in the development of the principle is Administrator, Transvaal & Others v Traub & Others.25 In Namibia, the High Court recognised the principle of legitimate expectation for the first time in Westair Aviation (Pty) Ltd v Namibia Airports Co Ltd, 26 followed by the same Court some three years later in Lisse v The Minister of Health and Social Services, 27 and confirmed by the Supreme Court in Minister of Health and Social Services v Lisse.28 23 24 25 26 27 28

Administrator, Transvaal, & Others v Traub & Others 1989 (4) SA 731 (A). [1969] 1 All ER 904. 1989 (4) SA 731 (A). 2001 NR 256 (HC). 2004 NR 107 (HC). 2006 (2) NR 739 (SC).

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In Lisse v The Minister of Health and Social Services, Silungwe J stated: The doctrine of legitimate (or reasonable) expectation has been recognized in this jurisdiction: Westair Aviation (Pty) Ltd v Namibia Airports Co Ltd 2001 NR 256 (HC), at 264C–E. This doctrine is but one aspect of imposing upon administrative decision-makers a general duty to act fairly. It signifies a broad judicial effort to promote administrative fairness. In applying the doctrine of legitimate expectation, it is necessary to exercise care in order to maintain a balance between protecting the individual from decisions unfairly arrived at, and avoiding undue judicial interference in the administration of affairs by public authorities. 29

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(c) Rule of disqualifying bias The other rule of natural justice – namely, that a person should not be a judge in his or her own cause (expressed as nemo iudex in causa sua), ie the rule against bias – may have found only limited application in relation to the exercise of administrative power. The reason for this is that in modern public administration there are many instances where an administrative body or administrative official may be both the decision-maker and the judge in the same matter, so to speak. What the natural justice rule against bias seeks to prevent is personal bias and not, it would appear, ministerial or agency bias where the body or official in question is enforcing policies of the administrative body in question.30 In England, disqualifying bias is based on the formulation of the test in terms of ‘real likelihood of bias’.31 However, in South Africa and Namibia, the existence of a reasonable suspicion of bias satisfies the test; and that an apprehension of a real likelihood that the decision-maker would be biased is not a prerequisite for disqualifying bias. Thus, in South Africa and Namibia, ‘provided the suspicion is one which might reasonably be entertained, the possibility of bias where none is to be expected serves to disqualify the decision maker.’32

29 2004 NR 107 (HC), at 114B–D. 30 R v Barnesley Metropolitan Borough Council, ex parte Hook [1976] 3 All ER 452. A leading Indian case on the question of bias is Rowjee v State of Andhra Pradesh AIR 1964 SC 962. 31 See Metropolitan Properties Co (FGC) Ltd v Lannon & Others [1968] 3 All ER 304 (CA), at 310A–D. 32 BTR Industries South Africa (Pty) Ltd & Others v Metal and Allied Workers’ Union & Another 1992 (3) SA 673 (A), at 694A.

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The courts would therefore set aside a decision as constituting a breach of the rule against bias where the decision-maker has a pecuniary33 or another interest in the result of the decision. Even where the evidence points strongly to the inference that an administrative body or official was in fact biased, the courts demand proof of at least a possibility of bias. (d) Principles of fairness and reasonableness Article 18 also enjoins administrative bodies and administrative officials to ‘act fairly and reasonably’. I have said in the introductory remarks to the present chapter that the constitutional requirement to ‘act fairly and reasonably’ is not restricted to procedure only but also applies to the substance of a decision. The requirement to act fairly and the requirement to act reasonably are in practice inseparable. Indeed, the Constitution treats them as such under art 18. Be that as it may, I shall discuss the requirement to act fairly first. This idea of fairness, that is, the duty to act fairly, made an appearance in England as long ago as 1911 in the important English case of Board of Education v Rice, where Loreburn LC said:

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I need not add that in doing either they must in good faith and fairly listen to both sides, for that is a duty upon everyone who decides anything.34

Since then the principle of fairness has been further defined and expounded in a number of cases.35 Indeed, the requirement that an administrative body or an administrative official should act fairly primarily implies acting in compliance with the rules of natural justice, that is, giving an interested party an opportunity to be heard before a decision is made and the decision-maker being unbiased. As Lord Morris of Borth-y-Gest observed in Furnell v Whangarei High School, there is a close relationship between the notion of natural justice and fairness. 36 The principle of fairness is a useful tool of judicial review in instances where the strict application of natural justice may not be practical or possible. In the Canadian case of Re Johnston and Committee on Works of Halifax City Council, 37

33 Dimes v Grand Junction Canal [1852] 3 HLC 759. 34 [1911] AC 179, at 182. 35 See, for example, Re HK (an infant) [1967] 2 QB 617, and R v Gaming Board for Great Britain, ex parte Benian and Khaida [1970] 2 QB 417. 36 [1973] AC 660, at 679. 37 (1962) 46 MPR 345.

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MacDonald J stated: ‘The concept of natural justice has been described by the Privy Council as consisting of “elementary and essential principles of fairness” (University of Ceylon v Fernando [1960] 1 All ER 631, at 639 (PC)).’ Doubtless, the principles of natural justice and fairness, which constitute procedural legal methods of controlling the exercise of administrative action, are not a matter of secondary importance because, ‘as governmental powers continually grow more drastic, it is only by procedural fairness that they are made tolerable.’38 Natural justice and fairness are concerned with procedure. They are the basis upon which courts control essentially the procedure followed by administrative bodies and officials in deciding or acting. The following famous words which Frankfurter J uttered in the landmark United States of America case of McNabb v United States still ring with overwhelming force and true relevance whenever rules of natural justice are under consideration. The reason is that rules of natural justice ‘fulfil, by and large, the same functions as does the “due process” clause in the Constitution of the United States of America’:39 The history of liberty has largely been the history of observance of procedural safeguards.40

Frankfurter J’s words have greater meaning and practical relevance if one has regard to the famous dictum of Megarry J in John v Rees:

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As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determination that, by discussion, suffered a change.41

In the South African case of Meyer v Law Society, Transvaal, Nicholas J explained the law on natural justice as follows: The principles of natural justice which have been recognised by the South African courts require a domestic tribunal to adopt a procedure which would afford the person charged a proper hearing by the tribunal, and a proper opportunity of producing his evidence and of stating his contentions, and of correcting or 38 Wade (1984: p 413). 39 Leo D Barry (1979). Administrative Law: Cases and Materials (Volume 1). Halifax: Dalhousie Law School, p 349. 40 318 US 332 (1943), at 347. 41 [1970] Ch 345, at 402.

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contradicting any prejudicial statements or allegations made against him; to listen fairly to both sides and to observe the principles of fair play to discharge its duties honestly and impartially; and to act in good faith ….42

We should not lose sight of the fact that the ‘duty to act fairly’ is not a rigid principle imposing specific obligations upon administrative bodies and officials in an inflexible, invariable way.43 I now proceed to discuss the requirement to act reasonably. The first important point to make is that the requirement to act reasonably was alien to the common law. Under the common law, courts have no power to review decisions on grounds of unreasonableness. Article 18 of the Constitution introduced the requirement of unreasonableness into Namibian law as a ground of judicial review.44 The second point to make is that what is fair and what is reasonable differ. An administrative body or official may arrive at a decision in a fair manner but its decision may nevertheless be unreasonable. Conversely, though, an unreasonable decision would always be unfair.45 Herein lays the closeness and the inseparability of the requirements of fairness and reasonableness for the purposes of judicial review. As to the meaning of reasonableness, in Re A Solicitor 46 [1945] 1 All ER 445 (CA), at 446H, Scott LJ stated:

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The word ‘reasonable’ has in law the prima facie meaning of reasonableness in regard to those existing circumstances of which the actor called upon to act reasonably, knows or ought to know.

An applicant alleging that the administrative body or official failed to ‘act reasonably’ must show that the administrative action was so unreasonable that no reasonable body could have taken such action (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation).47 There, the English Court of Appeal gave three conditions on which it would intervene to quash (that is, set aside) an unlawful and invalid administrative action, including on grounds of its unreasonableness in the special sense articulated in Council of Civil Service Unions & Others v Minister for the Civil Service by Lord Diplock, namely, that the decision was:

42 43 44 45 46 47

1978 (2) SA 209 (T), at 212H. Minister of Mines and Energy Petroneft International 2012 (2) NR 781 (SC), para 38. Sikunda v Government of the Republic of Namibia (3) 2001 NR 181 (HC). Frank & Another v Immigration Selection Board 1999 NR 257 (HC), at 265D–E. [1945] 1 All ER 445 (CA), at 446H. [1948] 1 KB 223 (CA), at 230.

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so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.48

The test is therefore this: Is the decision in question one that no reasonable decisionmaker could have reached, as the Supreme Court laid down in Janse van Rensburg v Wilderness Air Namibia (Pty) Ltd?49 The Court propounded the principle in a case which involved the issue whether the appellant had established that a question of law existed under the Labour Act50 where an appellant can appeal a decision of an arbitrator on a question of law only. Nevertheless, I can see no good reason why the principle enunciated in Janse van Rensburg cannot apply with equal force to the requirement that administrative bodies and officials must act reasonably under art 18 of the Constitution. Furthermore, the Court may find that the administrative bodies and officials did not act fairly and reasonably if they failed to apply their mind, took into account irrelevant or extraneous matters and neglected or refused to take into account relevant matters, and were prompted or influenced by improper or incorrect information or motives.51 In his Administrative Law52 (1984), at p  496, Baxter writes that when one is called upon to judge whether a decision is unreasonable, the decision might be viewed from various perspectives. For convenience, these have been grouped into three categories that are not rigidly compartmentalised; they run into each other and overlap to a great extent:

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•

•

The first category is the basis of the decision; that is, if a decision is entirely without foundation, it is generally accepted to be one to which no reasonable person could have come. The second category is the purpose of, and motive for, the decision. It is considered unacceptable for an administrative body and an administrative official to use its, his or her powers dishonestly.

48 49 50 51

[1984] 3 All ER 935. Janse van Rensburg v Wilderness Air Namibia (Pty) Ltd 2016 (2) NR 554 (SC). Act No 11 of 2007. Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 22 (CA). 52 Op cit.

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•

The third category is the effect of the decision. Reasonable persons do not take decisions that would lead to harsh, arbitrary, unjust or uncertain consequences.

In sum, the word ‘unreasonableness’ has been used as a general description of the things that must not be done. For instance, a public authority entrusted with a discretion must direct itself properly in law. It must call its own attention to the matter, which it is bound to consider. The public authority must exclude from its consideration matters that are irrelevant to what it has to consider. If it fails to do that, it acts ‘unreasonably’. Similarly, there may be an act so absurd that no sensible person could ever dream that it lay within the powers of the public authority to do. Warrington LJ, in Short v Poole Corporation, 53 gave the example of a redhaired teacher who was dismissed because she had red hair. That is unreasonable in one sense. In another sense, it is taking into consideration extraneous matters. In that case, the dismissal would be so unreasonable that it could be described as having been done in bad faith. In fact, all these prohibitions run into one another. 54 It is worth making this important point: a person aggrieved by an unfair or unreasonable decision is entitled to seek redress in the court, but the court cannot judge what is reasonable or unreasonable unless the administrative body or official in question gives their reasons for having arrived at the decision.55 One last point on the issue under consideration: it must be remembered – and this is crucial – that the very concept of administrative discretion always involves a right to choose between more than one course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. On this point, see Secretary of State for Education and Science v Thameside Metropolitan Borough Council.56 The true and overriding question must always be whether the public authority in question has been exceeding its statutory power;57 and whether the decision is so outrageous in its defiance of logic or accepted moral standards 53 [1926] Ch 66. 54 See Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (CA). 55 Ibid. See chapter 3, section 3.3.7 where the requirement of giving reasons is discussed in full. 56 [1977] AC 1014 (HL), at 1064. 57 Wade (1984: p 365); Trustco Insurance v Deeds Registries Regulation Board 2010 (2) NR 565 (HC), para 39.

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that no sensible person who had applied their mind to the question to be decided could have arrived at it.58

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(e) Compliance with the requirements imposed by any relevant legislation We saw in chapter 2 (section 2.1) that the requirement that administrative bodies and officials ‘shall comply with the requirements imposed  …  by any relevant legislation’ strikes at the very root of the object of administrative law. The reason is that administrative law, as I noted in chapter 1, is the law relating to the control of the exercise of governmental power, that is, the power of administrative bodies and officials. The constitutional requirement reinforces the notion that all administrative power is traceable to legislation and subject to legislative limitations (and, of course, to other legal limitations). Furthermore, it reaffirms the caution that the exercise of such power should be within the four walls of the particular legislation that granted the discretionary power. We mentioned in chapter 3 (para  3.2.1) that the central principle of administrative law is that a public authority may not act outside its powers, that is, those powers granted to it by the legislature. That constitutes the primary focus of the ultra vires principle. In determining whether an administrative body or official has acted beyond the power granted by the legislature, courts undertake an interpretation of the provisions of the legislation in question by calling in aid the rule of construction of statutes, and approaches to it. I do not intend to discuss those rules and approaches here; the reader should refer to standard works on the subject of statutory interpretation. Suffice to discuss, for our purposes, three important aspects that are crucial in the exercise of power and the performance of duty by administrative bodies and officials in terms of various statutes. They are: (a) the concept of the intention of the legislature in statutory interpretation; (b) the interpretation and application of words ‘may’ and ‘shall’ or ‘must’, which are critical when administrative bodies or officials are determining what the Legislature intended to be done in terms of various statutes that they are called upon to administer, and (c) error of law by administrative bodies and officials.

58 Council of Civil Service Unions & Others v Minister for the Civil Service [1984] 3 All ER 935.

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In construing a provision of a statute, undoubtedly the primary task of the court or any person is to ascertain the intention of the legislature, 59 and, as stated the Court in Wildlife Ranching Namibia v Minister of Environment and Tourism: It is trite that the intention of the Legislature can be gathered from the words of the particular legislation only.60

The intention of the legislature is another way of referring to the social policy behind the Act.61 In this regard, it should be remembered that: What the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.62

The question is therefore not what may be supposed to have been intended, but what has been said.63 In that regard, Lord Parker LCJ said in Social Fertility Ltd v Breed: Where a word is used in legislation, the scope and purpose of that legislation is of great importance. ‘Parcel’ is nowhere defined … It may be that the legislation is deliberately vague in the matter, in order that common sense should prevail according to the circumstances of every case.64

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In that regard, in interpreting a statute, it is crucial to consider not only the words used in formulating the provisions, but also the syntax of the words contained in a sentence, that is, the grammatical arrangement of words, showing their connection and relationships.65 It is of critical importance to consider the meaning of words contextually with the rest of the words that are in close proximity. After all, no one needs Maxwell, Craies or Du Plessis to tell one that words, like a chameleon, take their colour from their surroundings.66 59 The Rt Hon Lord Denning MR (1979). The Discipline of Law. London: Butterworths, pp 9–10. 60 CA 86/2016 [2016] NAHCMD 110 (13 April 2016). 61 John Willis (1938). ‘Statutory Interpretation in a Nutshell’. Canadian Bar Review vol 16 pp 1–16 (quoted in Leo D Barry (1978). Administrative Law: Cases and Materials (Vol 1). Halifax: Dalhousie Law School, p 31). 62 Salomon v Salomon & Co (1897) AC 22 (HL), at 38, per Lord Watson. 63 Rally for Democracy and Progress v Electoral Commission 2009 (2) NR 793 (HC), para 9. 64 [1968] 3 All ER 193, at 196. 65 See Wildlife Ranching Namibia v Minister of Environment and Tourism (A86/2016) [2016] NAHCMD 110 (13 April 2016). 66 See Willis (1938: p 4); du Plessis (1986); Greenberg (2018); Langan and Maxwell (1969).

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As regards the use of the words ‘may’ and ‘shall’ or ‘must’ in statutes (nowadays Namibian statutes use only ‘must’ in place of ‘shall’ where peremptoriness of the action in question is intended);67 the general rule is that ‘shall’ or ‘must’ has mandatory and peremptory meaning and effect, and if ‘may’ is used, ‘may’ has permissive or directory meaning.68 On the use of ‘may’ and ‘shall’ or ‘must’ in legislation Maritz J states with great learning in Compania Romana de Pescuit (SA) v Rosteve Fishing thus:

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The general rule notwithstanding, a Court cannot decide the legal status of such an act simply by reference to the ‘peremptory’ or ‘directory’ labels that may be attached to the legislative formulation of the enactment. It is compelled in every instance to seek the intention of the Legislature in the ‘language’, scope and purpose of the enactment as a whole ….69

The last aspect is error of law due to misinterpretation of the relevant provisions of the legislation in question, which I proceed to discuss next. It has been said that the courts are inclined to be tolerant when reviewing decisions of public authorities (ie administrative bodies and officials), provided they have not misdirected themselves on the facts or gone wrong in law, in the sense that they have misinterpreted the legislation in question.70 Besides, if reasons are insufficient to satisfy the requirements of the legislation in question, that in itself is an error on the face of the record which the court can quash.71 Thus, where an administrative body or official commits an error of law by misconstruing the legislation in question, that is, where an administrative official’s ‘interpretation is so much at odds with the ordinary meaning of a provision’, the court may interfere with his or her decision.72 Another important point about the interpretation of statute in judicial review of administrative action proceedings is this: in Chairperson, Council of the Municipality of Windhoek, & Others v Roland & Others,73 the Supreme 67 International University of Management v Torbitt (2015 (3) NR (HC) 698, para 4. 68 GC Thornton (1987). Legislative Drafting (Third edition). London: Butterworths, pp 90, 241, on peremptory and directory status of statutory provisions. 69 2002 NR 297 (HC), at 301H–I. 70 See Wade (1984: pp 285–286). 71 Ibid, p 285. 72 Chairperson, Council of the Municipality of Windhoek, & Others v Roland & Others 2014 (1) NR 247 (SC), para 55. See also R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, at 353. 73 2014 (1) NR 247 (SC).

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Court held that courts would pay respect to the interpretation of legislative provisions by experienced and skilled town planners in their field of expertise. However, there were limits to the respect that courts will pay such officials where interpretation of a statutory provision is so much at odds with the ordinary meaning of a provision that it would not be appropriate for the courts to respect that interpretation. In that event, courts would review the decision so made by the administrative official upon the misinterpretation of the statutory provision in question. In sum, in Namibian law, error of law by an administrative body or official is reviewable74 on the basis, I submit, of the requirement in art 18 of the Constitution that administrative bodies and official must ‘comply with the requirements imposed by any relevant legislation’. (f) Abuse of discretion

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The abuse of discretionary power by an administrative body or official may be inferred where the body or official vested with the power ‘acted in bad faith or from improper motives or on extraneous considerations or under a view of the facts or the law which could not reasonably be entertained’.75 South African courts have recognised three heads of abuse of power by an administrative authority. In his review article of Baxter’s Administrative Law,76 Etienne Mureinik wrote: Our (South African) courts are fond of expressing the answer (to the question as to what are the recognized heads of abuse of discretion) in the form of a trilogy: bad faith, ulterior purpose;77 and a failure on the part of the repository of the discretion to apply his mind to the question before him, or, to translate the last part from lawyerese to English, a failure to consider the question.78

A failure on the part of a repository of discretionary power to apply their mind to the question before them or failure to consider the question is proved where the repository of discretionary power took into account matters that they ought not 74 Chairperson, Council of the Municipality of Windhoek & Others v Roland & Others 2014 (1) NR 247 (SC), para 55. 75 Harry Nkumbula v The Attorney-General 1972 ZR 204, at 209. 76 Op cit. 77 African Realty trust Ltd v Johannesburg Municipality 1906 TH 179, at 182. 78 Etienne Mureinik (1986). ‘Administrative Law in South Africa’. SALJ, Vol 103, pp 615–645.

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to have taken into account or, conversely, where they neglected or refused to take into account matters that they ought to have taken into account.79 That constitutes primarily a common-law ground of review. Nevertheless, it need hardly be said that the unreasonableness of an administrative action ‘may warrant the inference that the decision is tainted by one of the heads of abuse of discretion’80 and therefore invalid. I mentioned at the beginning of the present chapter that unreasonableness is not a common-law ground of review. Mureinik’s proposition of the law goes to show in no small measure that, as was shown earlier in this chapter, the commonlaw grounds of review and constitutional grounds of review complement, run into one another and overlap. B. Cases

[19] Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC) Levy AJ:

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… First applicant alleges in her affidavit in the instant proceedings that her attorney addressed a letter to respondent wherein he inter alia asked for reasons for the Board’s decision and that first applicant be given an opportunity to appear before the respondent to answer queries or to deal with any information the Board may have which information had adversely affected her application. These requests were not granted and no reason for so doing was ever submitted to first applicant. She says she is completely in the dark. …

79 Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223; Federal Convention of Namibia v Speaker, National Assembly of Namibia & Others 1994 (1) SA 177 (NmH), at 197G; Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC). 80 Mureinik (1988: pp 615–645).

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I have already referred to the statement of first applicant that both she and subsequently her attorney Mr Light requested reasons for the refusal by respondent of her application and that first applicant requested an opportunity to appear before the respondent to answer questions and if necessary place additional information before the respondent. … In respect of first applicant’s statement that the respondent has consistently refused to give reasons for respondent’s refusal to grant her permanent residence, Mr Simenda replied as follows: I am advised that the applicant is not in law entitled to be furnished with reasons for the decision of the Board.

Mr Simenda does not say who it was that gave the respondent this very bad advice. It is clear that respondent has acted on this bad advice for some time. In fact, respondent is obliged to give reasons where such exist. In art 18 of the Namibian Constitution, which respondent cannot ignore, the following is provided:

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Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or tribunal.

Respondent is an administrative body and its proceedings and decisions are therefore subject to art 18. Considerations as to what is ‘fair’ and what is ‘reasonable’ differ. An administrative body may arrive at a decision in a fair manner but its decision may nevertheless be unreasonable. On the other hand an unreasonable decision would always be unfair. An unfair or unreasonable decision entitles an aggrieved person to redress by the Court but the Court cannot judge what is reasonable or unreasonable unless the administrative body gives its reasons for arriving at its decision. The section does not repeal the common law. In fact it embraces it. Accordingly, guidance in the application of this section can be obtained by reference to cases in Namibia decided under the common law which had to be evoked before the Constitution was adopted, in order to review decisions of public officials. In the case of Katofa v Administrator-General of Southwest Africa & Another 1985 (4) SA 211 (SWA), the Court had to consider whether the Administrator-General

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could be compelled to give reasons for the arrest and detention of Mr Katofa. The statutory provision required the Administrator-General to be ‘satisfied’ that Mr Katofa had ‘committed or attempted to commit or in any manner promoted the commission of the violence or intimidation referred to in s 2(1)(a) and (c) of the relevant statute’. The Administrator-General refused to give those reasons. The Court held that (at 221I–J): To be ‘satisfied’ the Administrator-General must have reason to be satisfied. In other words objective reasonable grounds must exist to make him satisfied and he must apply his mind to a consideration thereof.

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Accordingly, the Administrator-General was ordered to place such grounds before the Court, failing which, Katofa would be liberated. The Administrator-General failed to comply with the order and Katofa was liberated. In Federal Convention of Namibia v Speaker National Assembly of Namibia & Others 1991 NR 69 (HC); 1994 (1) SA 177 (Nm) this Court was called upon to set aside a decision of the Speaker of the National Assembly. The Court (at 89C–D (NR); 197G–H (SA)) quoted the common-law principles relevant to such review and referred to certain cases dealing with the same principles. There it was said: … where there is a statutory duty on a public officer and, in giving his decision or acting in pursuance thereof, he acts mala fide or fails to apply his mind or takes into account irrelevant or extraneous facts or is prompted or influenced by improper or incorrect information or motives, the High Court of Namibia has inherent jurisdiction (see art 78(4) of the Constitution of Namibia) to review the decision or ruling, to set it aside and to return the matter to the public officer or simply to correct it. (The Free Press of Namibia (Pty) Ltd v Cabinet of the Interim Government of South West Africa 1987 (1) SA 614 (SWA), at 625A–D, 626B–I; Shifidi v Administrator-General for South West Africa & Others 1989 (4) SA 631 (SWA), at 646, 647–8; Mweuhanga v Cabinet of the Interim Government of South West Africa 1989 (1) SA 976 (SWA), at 990D–E; Cabinet for the Interim Government of South West Africa v Bessinger & Others 1989 (1) SA 618 (SWA), at 627.)

Accordingly, I have no doubt that in the present case respondent was obliged to act fairly and reasonably and to apply its collective mind and could not take into account irrelevant or extraneous facts and could not be prompted or influenced by improper or incorrect information or motives. Although Mr Simenda incorrectly stated that the respondent was not obliged to give reasons for its decisions he in fact purported to give such reasons. I firstly draw attention to para 9.2 of his affidavit where he says:

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9.2 There was also no specific information before the board that adversely affected the applicant’s application.

From this it is apparent that there were no grounds whatsoever for refusing the applicant. This statement of Mr Simenda is sufficient to justify this Court setting aside the board’s decision without any further ado. Mr Simenda, however, subsequently in his affidavit set out a reason similar to those given by Mr Taapopi and which he says motivated the respondent in this decision. … It would appear that respondent believed that in refusing first applicant a permanent residence permit it was acting (although it had no specific information) in terms of s 26(3)(e) of the Immigration Control Act 7 of 1993. … In terms of the common law, where a public official or a board in arriving at a decision takes into account an incorrect factor (eg future graduates or volunteers and not those ‘already’ in the labour market) even if some factors which the official or board considered are true, correct and relevant, the ultimate decision is bad because one does not know what part those incorrect factors played in making the decision. I can do no better than to quote what was said in The Free Press of Namibia (Pty) Ltd v Cabinet, Interim Government of South West Africa 1987 (1) SA 614 (SWA), at 626B–D:

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In Administrative Law by Baxter, the learned author says (at 521):81 Where it is impossible to distinguish those reasons which were decisive from those which were not, and one or more of the reasons are bad, the Court has no choice but to set the decision aside. [See also Beaufort West Club v Beaufort West Licensing Court & Others 1928 CPD 317; Patel v Witbank Town Council 1931 TPD 284; Johannesburg City Council v Sohn 1933 TPD 8; Jabaar & Another v Minister of Interior 1958 (4) SA 107 (T); More & Another v Springs Town Council 1965 (3) SA 666 (W).] It is not possible to distinguish these sound reasons which could have been decisive from the irrelevant matter which influenced respondent and the Court accordingly has no choice but to set the decision of respondent aside.

81 Op cit.

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The decision to refuse first applicant permanent residence was for the reasons set out above motivated by several factors which should not have been taken into account while some relevant factors were not taken into account at all. For all these reasons the decision of 29 July 1997 refusing first applicant permanent residence is reviewed and set aside. Mr Coetzee asked that if the Court should set the decision aside the Court should return the matter to the respondent for reconsideration. It is unnecessary for me to decide whether, in terms of Act 7 of 1993, the respondent has the power to reconsider an application. … The Court orders that: (a) The decision of the Immigration Selection Board of 29 July 1997 refusing a permanent residence permit to Erna Elisabeth Frank is reviewed and set aside. (b) … Notes

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1. For our present purposes, this case [19] is important for several reasons: (a) It discusses the grounds at common law upon which the High Court in the exercise of its inherent jurisdiction can review. (b) It discusses the principle that the constitutional grounds of review on the requirements of what is fair and what is reasonable and the close affinity between these requirements and their intertwinement. (c) More importantly, it discusses the point that the common-law grounds of review and constitutional grounds of review run into one another and they overlap. 2. The test of reasonableness is set out in Associated Provincial Picture Houses Limited v Wednesday Corporation [20].

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B. Cases

[2 0] Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (CA) Lord Greene MR:

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… What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of cases. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which the discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising it, it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.

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There have been in the case expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty – those, of course, stand by themselves – unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word ‘unreasonable’. It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch 66 gave the example of a red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another. … This case, in my opinion, does not really require reference to authority when once the simple and well known principles are understood on which alone the court can interfere with something prima facie within the powers of the executive authority, but reference has been made to a number of cases. I can deal, I think, quite shortly with them. First, Henn Collins J followed a decision of Atkinson  J in the case I have mentioned of Harman v Butt [1944] KB 491. In that case a condition of

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this character had been imposed and I think the only difference between the two cases is that in Harman v Butt, the licence to open on Sundays originated in a representation by the commanding officer of forces stationed in the neighbourhood. Atkinson J dealt with the matter thus (supra at 499):

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I am satisfied that the defendants were entitled to consider matters relating to the welfare, including the spiritual well-being, of the community and of any section of it, and I hold that this condition that no child under the age of sixteen should be admitted to this cinematograph theatre on Sunday is not ultra vires on the ground that it is not confined to the user of the premises by the licensee, but related to the interest of a section of the community.

Then he goes on to deal with the question of reasonableness. That was a case in which the decision, in my opinion, is unassailable. There are two other cases relied upon. One is R v Burnley Justices (85 LJ (KB) 1565), and another not dissimilar case on one point, Ellis v Dubowski ([1921] 3 KB 621). Those were the cases where the illegal element which the authority had imported into the conditions imposed consisted of a delegation of their powers to some outside body. It was not that the delegation was a thing which no reasonable person could have thought was a sensible thing to do. It was outside their powers altogether to pass on this discretion which the legislature had confided to them and not to some outside body. Another case on which Mr Gallop relied is Roberts v Hopwood ([1925] AC 578 (HL)). … When the case is examined, the word ‘unreasonable’ is found to be used rather in the sense that I mentioned a short while ago, namely, that in fixing 4l. [£4] they had fixed it by reference to a matter which they ought not to have taken into account and to the exclusion of those elements which they ought to have taken into consideration in fixing a sum which could fairly be called a wage. That is no authority whatsoever to support the proposition that the court has power, a sort of overriding power, to decide what is reasonable and what is unreasonable. The court has nothing of the kind. … Once the local authority have properly taken into consideration a matter of public interest such as, in the present case, the moral and physical health of children, there is, it seems to me, nothing in what Atkin J says to suggest that the court could interfere with a decision because it took a different view as to what was in the public interest. It is obviously a subject on which different minds may have different views. I do not read him as saying any more than that the

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local authority can and should take that matter into account in coming to their decision. In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarize once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs.

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Notes 1. The Sunday Entertainments Act, 1932, empowered local authorities to license theatres for Sunday opening, ‘subject to such conditions as the authority think fit to impose.’ The respondent corporation issued a licence to the appellant theatre proprietor subject to a condition that ‘no children under the age of 15 years shall be admitted whether accompanied by an adult or not’. The appellant sought a declaration that the condition was unreasonable, and in consequence ultra vires. 2. This case is important because it sets out the test for reasonableness in judicial review proceedings with regard to exercise of administrative discretion. The test for determining whether the public authority has acted reasonably is whether: (a) the public authority took into account any matter that ought to be disregarded or matters that ought to be taken into account, and (b) whether the public authority has contravened the law by acting in excess of its power.

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3. The requisite in (a) is also a common-law ground of review, for which see Frank & Another v Chairperson of the Immigration Selection Board [19]; Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111. 4. It is noted that the requirement of reasonableness is not a common-law ground of review but a constitutional ground of review. See Sikunda v Government of the Republic of Namibia (3) [22].

[21] Preston v Inland Revenue Commissioners [1985] 2 All ER (HL) Lord Templeman: My Lords, this is an appeal in judicial review proceedings whereby the appellant, Mr Preston (the taxpayer), seeks a declaration that the respondent Inland Revenue Commissioners are not entitled to exercise and perform their statutory powers and duties under Part XVII of the Income and Corporation Taxes Act 1970 by counteracting a tax advantage alleged to have been obtained by the taxpayer by his dealings in the shares of Gymboon Ltd.

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… The court can only intervene by judicial review to direct the commissioners to abstain from performing their statutory duties or from exercising their statutory powers if the court is satisfied that ‘the unfairness’ of which the applicant complains renders the insistence by the commissioners on performing their duties or exercising their powers an abuse of power by the commissioners. In most cases in which the court has granted judicial review on the grounds of ‘unfairness’ amounting to abuse of power there has been some proven element of improper motive. In the leading case of Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 (HL) the minister abstained from exercising his statutory discretion to order an investigation because he feared the consequences of the investigation might be politically embarrassing. In Congreve v Home Office [1976] 1 All ER 697, [1976] QB 629 the minister exercised his power to revoke television licences because he disapproved of the conduct of the licence holders, albeit they

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had acted lawfully. In Laker Airways Ltd v Dept of Trade [1977] 2 All ER 182, [1977] QB 643 the minister exercised his statutory discretion to give directions with regard to civil airways with the ulterior motive of making it impossible for one of the airlines to pursue a course of which the minister disapproved. In these cases judicial review was granted because the ministers acted ‘unfairly’ when they abused their powers by exercising or declining to exercise those powers in order to achieve objectives which were not the objectives for which the powers had been conferred. The question of ‘fairness’ was considered in HTV Ltd v Price Commission [1976] ICR 170. In that case the Price Commission misconstrued the counter-inflation price code and changed its mind as to the treatment of Exchequer levy as an item in the costs of television companies allowable for the purpose of increasing their advertising charges within the limits prescribed by the code. The effect of the change of mind of the Price Commission was to deprive the companies of an increase of advertising charges which they were plainly intended to enjoy and which they badly needed in order to remain viable. Lord Denning MR said (at 185–186): It has often been said, I know, that a public body, which is entrusted by Parliament with the exercise of powers for the public good, cannot fetter itself in the exercise of them. It cannot be estopped from doing its public duty. But that is subject to the qualification that it must not misuse its powers: and it is a misuse of power for it to act unfairly or unjustly towards a private citizen where there is no overriding public interest to warrant it. So when an Army officer was told that his disability was accepted as attributable to war service, and he acted on it by not getting his own medical opinion, the Minister was not allowed to go back on it: see Robertson v Minister of Pensions ([1948] 2 All ER 767, [1949] 1 QB 227). And where an owner, who was about to build on his land, was told that no planning permission was required, and he acted on it by erecting the building, the Minister was not allowed to go back on it: see Wells v Minister of Housing and Local Government ([1967] 2 All ER 1041, [1967] 1 WLR 1000) and Lever Finance Ltd v Westminster (City) London Borough Council ([1970] 3 All ER 496, [1971] 1 QB 222). Very recently where a man was issued with a television licence for a year, then, although the Minister had power to revoke it, it was held that it would be a misuse of that power if he revoked it without giving reasons or for no good reason: see Congreve v Home Office ([1976] 1 All ER 697, [1976] QB 629).

In the first three cases cited by Lord Denning MR the authorities acted in a manner for which, if the authorities had not been emanations of the Crown, the applicants would have enjoyed a remedy by way of damages or an injunction for

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breach of contract or breach of representations. In the third case, Congreve, as I have indicated, the decision was ‘unfair’ because the minister was actuated by an irrelevant motive. In the HTV case [1976] ICR 170, at 189 Scarman LJ said: Agencies, such as the Price Commission, must act fairly. If they do not, the High Court may intervene either by prerogative order to prohibit, quash or direct a determination as may be appropriate, or, as is sought in this case, by declaring the meaning of the statute and the duty of the agency … It is a commonplace of modern law that such bodies must act fairly … It is not really surprising that a code must be implemented fairly, and that the courts have power to redress unfairness.

Scarman LJ, after considering the Price Commission’s change of mind, said (at 192):

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… the commission’s inconsistency has already resulted in unfairness, and, unless corrected, could cause further injustice. First, it gives rise to a real possibility of an erosion of profit margin …

In the HTV case, the ‘unfairness’ of the decision was due not to improper motive on the part of the Price Commission but to an error of law whereby the Price Commission misconstrued the code it was intending to enforce. If the Price Commission had not misconstrued the code, it would not have acted ‘inconsistently and unfairly’. Of course the inconsistent and unfair results to which Scarman LJ drew attention were themselves powerful support for the contention that the Price Commission must have misconstrued the code. In principle I see no reason why the taxpayer should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the taxpayer because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power for which in the present case judicial review is the sole appropriate remedy. There may be cases in which conduct which savours of breach of conduct or breach of representation does not constitute an abuse of power; there may be circumstances in which the court in its discretion might not grant relief by judicial review notwithstanding conduct which savours of breach of contract or breach of representation. In the present case, however, I consider that the taxpayer is entitled to relief by way of judicial review for ‘unfairness’ amounting to abuse of power if the commissioners have been guilty of conduct equivalent to a breach of contract or breach of representation on their part.

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Notes 1. In April 1974 Preston (the taxpayer) acquired half the share capital of a company, which he later sold in two stages in February 1975 and January 1977. In May 1978 an inspector of the Inland Revenue requested a meeting with the taxpayer to discuss his returns for the years 1975–1976 to 1977–1978 and in particular his claim for relief in respect of certain losses and interest payments and also his transactions in the shares of the company. In answer to a request by the inspector for full details of his acquisition and disposal of the shares in the company, the taxpayer furnished bare details of the transactions. After an exchange of correspondence, the taxpayer offered to withdraw his two claims for relief if the Inland Revenue settled his tax affairs for the years in question and raised no further enquiries into, inter alia, the acquisition and disposal of the shares. 2. In July 1978, the inspector informed the taxpayer that if the taxpayer formally withdrew his claim for relief he would not raise any further enquiries into his tax affairs. The taxpayer then withdrew his claims for relief and discharged a liability to capital gains tax in respect of the shares. In October 1979 the Inland Revenue received information which led them to suspect that the taxpayer’s shares had been sold in the course of a tax avoidance scheme and that the sale price had been calculated on the basis of gross profits and not net profits, as it would have been had there been no tax avoidance scheme, thereby giving the taxpayer a tax advantage. In July 1982, by which time it was too late for the taxpayer to make his two claims for relief, the Inland Revenue issued a notice under s  465 of the Income and Corporation Taxes Act 1970 requiring the taxpayer to furnish information relating to the sale of his shares. The taxpayer supplied further information but pointed out that he considered that the Inland Revenue was bound by the 1978 arrangement. In September the Revenue issued a notice under s  460 of the 1970 Act cancelling the tax advantage gained by the taxpayer. 3. The taxpayer applied for judicial review of the Inland Revenue’s action, seeking, inter alia, a declaration that the Inland Revenue were not entitled further to assess or to attempt to assess him in respect of the sale of the shares. The judge granted the application on the ground that the Inland Revenue had not considered facts which they ought to have considered, that is, the 1978 arrangement, before initiating the s 460 procedure and that in any event their

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decision to proceed, which was an exercise of discretion, was unreasonable. The Inland Revenue appealed to the Court of Appeal, which allowed the appeal. The taxpayer appealed to the House of Lords. 4. This landmark case [21] is important for the significant proposition of law, namely, that for the purposes of judicial review, abuse of power included the unfair exercise of statutory power. The proposition of law shows that the requirement of unfairness is not restricted to procedural unfairness. See Text (Part A) of chapter 4, section 4.2, where the issue of substantive and procedural fairness is discussed. What is more, it shows the interconnection of the various grounds of review under administrative law. 5. The House of Lords considered what constitutes unfairness and unreasonableness on the part of public authorities in the exercise of power and the performance of their functions. 6. The House of Lords held that the Court could grant judicial review of a decision of the Inland Revenue Commissioners at the instance of a taxpayer if the commissioners failed to discharge their statutory duty to the taxpayer or if they abused or exceeded their powers. For the purposes of judicial review, abuse of power included the unfair exercise of a statutory power. The House of Lords affirmed the decision of the Court of Appeal, sub nom R v IRC, ex parte Preston [1984] 3 All ER 625 and dismissed the appeal.

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[22] Sikunda v Government of the Republic of Namibia (3) 2001 NR 181 (HC) Mainga J (Hoff J concurring): … From this background, three issues arise. … 2. Whether the decision of the Minister to declare Sikunda a persona non grata without affording him the opportunity to make representations is valid.

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… On the background of this matter and the relief sought by the applicant I do not find it necessary to consider that point. The rule can be confirmed or discharged on a single question of whether the decision taken by the respondent pursuant to s 49 is consistent with the principle of natural justice and in particular of the respondent’s failure to afford the applicant’s father the right to be heard as it is embodied in the maxim audi alteram partem. The nature of the maxim audi alteram partem was authoritatively summarised in the matter of Administrator, Transvaal & Others v Traub & Others 1989 (4) SA 731 (A), a matter Mr Smuts referred this Court to, by Corbett CJ at 748G as follows: The maxim expresses a principle of natural justice which is part of our law. The classic formulations of the principle state that, when a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights the latter has a right to be heard before the decision is taken ..., unless the statute expressly or by implication indicates the contrary.

…

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The right to be heard in Namibia is not only a common-law principle of natural justice but a fundamental right which should be observed at all times when the civil rights and responsibilities of an individual are determined. In Aonin Fishing (Pty) Ltd & Another v Minister of Fisheries and Marine Resources 1998 NR 147 (HC), at 150H, O’Linn AJ said the following: There can be no doubt that art  18 of the Namibian Constitution pertaining to administrative justice requires not only reasonable and fair decisions, based on reasonable grounds, but inherent in that requirement fair procedures which are transparent. Even more important is art 12 of the Namibian Constitution which requires as a fundamental right, not only fair trials in criminal matters, but fair and public hearings by an independent, impartial and competent Court or Tribunal established by law, when determining the civil rights and responsibilities of any person.

… Mr Frank submitted that a Court will not set aside a decision merely because it disagrees with it but will only do so if important provisions of the enabling statute are disregarded, a gross irregularity took place or there was an illegality in the

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performance of the duty. This argument cannot be sustained. The traditional common-law approach regarding unreasonableness as a reasonable ground for review, was that the Courts will not interfere with the exercise of a discretion on the mere ground of its unreasonableness. Article 18 constitutes a departure from the traditional common-law grounds of review. A Court of law will examine the discretionary power to determine whether it is fair and reasonable. If it does not meet those requirements the Court will strike down the discretionary power as repugnant to the Constitution. In Maharaj v Chairman, Liquor Board 1997 (1) SA 273 (N), at 277E–F; 1997 (2) BCLR 248 (N), at 251F, Nicholson J said the following: Section 24(b) (which is equivalent to art 18) of the Constitution provides that every person shall have the right to procedurally fair administrative action. This is more than just the application of the audi alteram partem and the nemo iudex in sua causa rules and involves the principles and procedures which in the particular situation or set of circumstances are right and just and fair. (See Van Huyssteen & Others NNO v Minister of Environmental Affairs and Tourism & Others 1996 (1) SA 283 (C), at 305C–D.)

…

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Notes 1. Applicant’s father had been detained in terms of s  49 of the Immigration Control Act 7 of 1993. It had been alleged that he was a Unita (of Angola) collaborator. The Minister of Home Affairs had done certain investigations and then recommended to the Security Commission, established in terms of art  114 of the Namibian Constitution, to declare applicant’s father to be persona non grata. The Commission heeded the minister’s recommendation. The authorities subsequently detained applicant’s father. The parties agreed that the Commission had consisted of four members, whereas art 114 provided that there should be six. The two should be members of parliament, but two members who had made up the number were no longer members of parliament, causing the vacancies in the Commission. 2. In the present application, applicant sought the release of his father. 3. The Court was of the view that the fundamental question was whether the decision of the Security Commission had complied with the rules of natural justice, among other requirements; and so the Court considered the

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requirements of the audi alteram partem rule of natural justice, that is, the right to be heard before a decision affecting one is made. 4. Another principle enunciated in this case [22] is that the requirement of reasonableness is unknown to the common law. It is a constitutional ground of review in terms of art 18 of the Namibian Constitution. 5. Note that the requirement of reasonableness is not the same as the requirement of rationality – see the notes to case [21]. 6. The decision of the Minister of Home Affairs ordering the removal of José Domingo Sikunda, applicant’s father, from Namibia and declaring him persona non grata was set aside. The Minister of Home Affairs and his officials were restrained from unlawfully detaining and harassing José Domingo Sikunda.

[23] Trustco Insurance v Deeds Registries Regulation Board 2010 (2) NR 565 (HC) Parker J (Ndauendapo J concurring):

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… [26] The other constitutional ground upon which the second applicant attacks the Regulations and the Schedules is based on art 18 of the Namibian Constitution. I now proceed to consider that attack. Has the second applicant’s right to administrative justice under art 18 of the Namibian Constitution been infringed, as the second applicant alleges? In other words, has art  18 of the Constitution been infringed in relation to the second applicant in virtue of the making and approving of the Regulations and the Schedules? Article 18 provides: Administrative bodies and administrative officials shall act (1) fairly and (2) reasonably and (3) comply with the requirements imposed upon such bodies and officials by (3a) common-law and (3b) any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal. [Numbering of components added]

[27] As respects art  18; in order for the second applicant to succeed, the second applicant must show that he has been aggrieved by an act of an administrative body or an administrative official because of non-compliance by the administrative

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body or administrative official with any of the requirements expressed in art 18, that is (1), (2), (3a) and (3b) (as indicated in the above quotation for clarity). As I see it, (1), (2), (3a) and (3b) are the art  18 requirements which administrative bodies and administrative officials must comply with when they ‘act’ in order for such of their acts to be adjudged consistent with the Constitution. And I must add; the aforementioned list of the art  18 requirements is exhaustive. It is not just enough for a person to approach the court and allege simply and in general terms – without more – that his or her right guaranteed to him or her by art 18 of the Constitution has been infringed. Such a person bears the burden of establishing to the satisfaction of the court as to what particular requirement or requirements under art  18 has or have not been complied with by the ‘act’ of a named administrative body or administrative official and in which respect such act has infringed or threatened an infringement of that person’s art 18 right (see Uffindell t/a Aloe Hunting Safaris v Government of Namibia & Others supra, at 39). If the applicant fails to so establish the art 18 requirement or requirements that has or have not been complied with in relation to the applicant, the applicant shall be out of court. That is the manner in which I approach the second applicant’s constitutional attack on the making of the Regulations and the Schedules based on art 18 of the Namibian Constitution. [28] It is not in dispute that the first respondent is an administrative body and so it is subject to the application of art 18; and so the only single question that I must decide on the papers is this: in the founding affidavit, which art 18 requirement or requirements does the second applicant allege has not been complied with by the first respondent and the third respondent in relation to him when the first respondent made the Regulations, annexing the Schedules, and the third respondent approved them? Thus, the only issue that I must now determine is this: What art 18 requirement or requirements does the second applicant allege has or have not been complied with by the first respondent and the third respondent in relation to him and in which respect the aforementioned acts of the first respondent and the third respondent, respectively, have infringed the first applicant’s right under art 18? It appears to me that the second applicant alleges that in making the Regulations, annexing the Schedules, the first respondent did not act reasonably (ie requirement (2) in my illustration above). Accordingly, the question that arises for decision as respects the constitutional challenge based on art  18 is whether the first respondent, in prescribing the ad valorem-based tariff of fees did ‘act

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reasonably’ within the meaning of art 18 of the Namibian Constitution? That is the way in which I approach the determination of the constitutional challenge based on art  18 because that is what the second applicant relies on in the applicants’ founding affidavit, apart from his attack based on art 21(1)(j), which I have already decided to be without merit.

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[29] As I understand the second applicant’s contention in this regard, the second applicant says the first respondent and the third respondent did not act reasonably because the ad valorem-based tariff of fees is ‘invariably exorbitant, excessive and unreasonable’, or ‘grossly unreasonable and excessive and indeed exorbitant to clients and end-users’. It is worth noting that the second applicant’s contention is put forth argumentatively that because the absolute and compulsory ad valorembased rate of tariff of fees is ‘invariably exorbitant, excessive and unreasonable’ or ‘grossly unreasonable and excessive and indeed exorbitant to clients and end-users’, ergo, the first respondent and the third respondent must have acted unreasonably. And why does the second applicant say the ad valorem-based rate of tariff of fees is ‘unreasonable’ or ‘grossly unreasonable’? I do not find much from either the founding affidavit or the written submission of counsel in which respect the second applicant really contends that the ad valorem-based rate of tariff of fees is ‘unreasonable’ or ‘grossly unreasonable’. As Mr Gauntlett submitted, the ‘[A]pplicants’ attack (based) on art  18  …, although relied upon in the founding papers, finds little support in the heads of argument’. The only reason that is prominent to find on the second applicant’s papers is that, according to the second applicant, between the ad valorem-based rate of tariff of fees and the hourly-based rate of tariff of fees, the latter is reasonable because it is related to actual work done. [30] Be that as it may, the GRN respondents contend contrariwise. On their behalf Mr Marcus submitted that the first respondent did act reasonably because its act (or decision) ‘is not one that a reasonable decision-maker’ would not make, ‘when regard is had to the factors considered by the board (ie the first respondent)’ and, therefore, as I understood Mr Marcus, the first respondent exercised its discretion fairly and properly. And on behalf of the fifth respondent, Mr Gauntlett submitted that the ad valorem-based rate of tariff of fees is in tune with ‘the rational link between the empowering statute and the imposition of compulsory tariffs’, and further that that tariff ‘achieves further legitimate government purposes’. [31] In In re Solicitor [1945] 1 All ER 445 (CA), at 446H, Scott LJ stated:

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The word ‘reasonable’ has in law the prima facie meaning of reasonableness in regard to those existing circumstances of which the actor called upon to act reasonably, knows or ought to know.

And in his authoritative work Administrative Law (1984) 496, Baxter82 writes that when one is called upon to judge whether a decision is unreasonable, the decision might be viewed from various perspectives. For convenience these have been grouped into three categories that are not rigidly compartmentalised: they run into each other and overlap markedly. The first category is the basis of the decision; that is, if a decision is entirely without foundation it is generally accepted to be one to which no reasonable person could have come. The second category is the purpose of, and motive for, the decision; that is, it is considered unacceptable for an administrative body and an administrative official to use its or his or her powers dishonestly. The third category is the effect of the decision; that is, reasonable persons do not advocate decisions which would lead to harsh, arbitrary, unjust or uncertain consequences. (See Baxter op cit.)

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[32] I respectfully accept Baxter’s exposition on ‘reasonableness’ (the Baxter categories) as apropos to the enquiry presently being undertaken and so I adopt his exposition; that is to say, in my opinion, Baxter’s explanation of the term ‘reasonable’ is a correct interpretation and application of the requirement of ‘act reasonably’ in art 18 of the Namibian Constitution. [33] Having carefully considered the Baxter categories on ‘reasonableness’ and the meaning of ‘reasonableness’ proposed by the English Court of Appeal in Re Solicitor supra against the backcloth of the evidence presented on the papers, I come to the conclusion that the second applicant has failed to establish that the act of the first respondent and of the third respondent complained of is unreasonable within the meaning of art 18 of the Namibian Constitution. I have so concluded for the following reasons. [34] In the respondents’ papers it is clearly and extensively explained the factors that the first respondent took into account when it made the Regulations and the Schedules, prescribing the aforesaid tariff of fees and charges under the applicable legislation referred to in the notice of motion. I have no good reason to reject the first respondent’s evidence that they took into account those factors before acting;

82 Op cit.

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and I do not find any credible evidence on the papers tending to show that the first respondent did not act in the manner averred. In this regard, I do not see the first respondent’s statements on the factors they took into account when they made the aforementioned regulations to be ‘ex post facto explanations’, as Mr Smuts submitted. If an administrative body or an administrative official carried out an act and it was alleged in a founding affidavit that that act was unreasonable in terms of art 18 of the Namibian Constitution, the first opportunity open to such administrative body or administrative official to contradict any such allegation is for that administrative body or administrative official to explain in an answering affidavit the factors that such official or such body took into account in carrying out the act. In that case, it may be said that that administrative body or administrative official was entitled to put forth such factors in an answering affidavit. That is what the second respondent, the chairman and executive officer of the first respondent, has done in these proceedings. And more important and apropos the requirement of reasonableness, I do not find – and neither has the second applicant claimed – that in taking into account those factors the first respondent acted from improper motives or on irrelevant or extraneous considerations (Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC), at 266A–C; Mureinik, ‘Administrative Law in South Africa’, 1988 SALJ, Vol 103, pp 615–628, at p 628). [35] Furthermore, it is my view that those factors constituted the existing circumstances that the first respondent knew or ought to have known existed when they made the Regulations, annexing the Schedules (In re Solicitor supra, ibid). It cannot, therefore, be argued that the act of the first respondent complained of has no foundation. Accordingly, I do not find any evidence on the papers tending to prove that the first respondent used their power under the relevant legislation dishonestly. Has it been shown that the ad valorem-based rate of tariff of fees is harsh, arbitrary, and unjust or that it leads to uncertain consequences? I do not think so. In this regard, the peg on which the second applicant hangs his constitutional challenge is this. According to the second applicant, the ad valorembased rate of tariff of fees has no correlation to the time spent on the work and is invariably exorbitant and unreasonable and that the hourly-based rate of tariff of fees, which the second applicant prefers and is enamoured with, is what the first respondent ought to have prescribed. The second applicant’s reason for so contending is that the hourly-based rate of tariff of fees can be taxed but the ad valorem-based rate of tariff of fees cannot

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be taxed. That being the case, so the second applicant argues, the ad valorembased rate of tariff of fees offends of s  10(1)(c) of the Deeds Registries Act 1937, under which the said reg 65 was made, because while the hourly-based rate can be subjected to taxation, the ad valorem-based rate cannot. Section 10 provides: (1) The board established under s 9 may make regulations prescribing: … … (c) the fees and charges of conveyancers and notaries public in connection with the preparation, passing and registration of deeds or other documents registered or filed or intended for registration or filing in a deeds registry and the fees or charges of any other legal practitioners in connection with the preliminary work required for the purpose of any such deed or other document and the fees and charges in connection with the taxation of any such fees or charges; …

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[36] I do not read s 10(1)(c) to be providing in peremptory terms – I so emphasise ‘peremptory’ – that any tariff of fees and charges that the first respondent prescribes in a regulation must be subjected to taxation. I am fortified in my view by the following factorisation and interpretation of the provisions of s 10(1)(c). To start with – and this is significant – in the chapeau of s 10(1), the first respondent is given absolute discretion to make regulations prescribing fees and charges ‘in connection with’ three distinct and separable items, and the section does not say the first respondent must without any allowance whatsoever prescribe all the three items; that is to say: (1) ‘preparation, passing and registration of deeds or other document  …’ (by conveyancers and notaries public); (2) ‘the preliminary work required for the purposes of  …’ (by other legal practitioners); and (3) ‘the taxation of any such fees or charges’.

[37] For the aforegoing interpretation and application of s 10(1)(c), as I have said previously, and I accept Mr Gauntlett’s submission on the point, I do not read the language of s 10(1)(c) as making it mandatory for the first respondent to prescribe all the three items (ie (1), (2) and (3) in my illustration above) in any regulation they may make (‘may make’ is italicised for emphasis). I cannot therefore, with respect, accept the submission by Mr Smuts that the aforementioned act of the first respondent is ultra vires s 10(1)(c) of the said Deeds Registries Act, 1937 (as

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amended) just because, according to him, the ad valorem-based rate cannot be subjected to taxation. Besides, I do not find any credible evidence on the papers that the ad valorem-based rate of tariff of fees leads to harsh, arbitrary, unjust or uncertain consequences.

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[38] Another important point must be emphasised, viz that the court is not entitled to hold that just because the second applicant thinks that the hourly-based rate of tariff of fees better serves his self-serving purposes than the ad valorembased rate of tariff of fees and so therefore in prescribing the latter tariff the first respondent acted unreasonably. It is worth noting that the art  18 requirement that administrative bodies and administrative officials must act reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the administrative body or administrative official which the legislature in its wisdom and within its constitutional power appointed to act (see HWR Wade (1984) Administrative Law 5 ed, at p 362). As Mr Gauntlett reminded the court more than once, in these proceedings the court is not a court of appeal; it is therefore not for this court to substitute any decision in the place of that of the first respondent but merely, upon the moving of the second applicant, to decide whether the Deeds Registries Act (as amended), particularly s 10(1)(c), has been administered reasonably. (See HM Seervai (1999), Constitutional Law of India: A Critical Commentary 4 ed, at p 1520 fn 30.) I will say administered ‘reasonably and fairly’; for, as Levy AJ said in Frank & Another v Chairperson of the Immigration Selection Board supra, at 265E, ‘an unreasonable decision would always be unfair’; a priori, by a parity of reasoning, a reasonable act would always be a fair act. [39] Furthermore, in this regard, one must not lose sight of the fact that the very concept of administrative discretion always involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred (Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 (HL), at 1064): the true and overriding question must always be whether the statutory power has been exceeded (Wade Administrative Law ibid, at p 365); and I have held above that in making the Regulations and the Schedules, the first respondent did not exceed their statutory power; neither did the third respondent when the third respondent approved the Regulations. Thus, it cannot be argued that in making the Regulations and the Schedules the first respondent did act unreasonably and unfairly merely because particular judges may think

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that the Regulations and the Schedules go further than is prudent or necessary or convenient, or because it is not accompanied by a qualification which some judges may think ought to be there (Kruse v Johnson [1898] 2 QB 91, at 99–100). Accordingly, I do not, with the greatest deference, find the views expressed in Vaatz v Law Society of Namibia & Others 1996 NR 272 (HC), at 278H–I, referred to me by counsel, of any real assistance on the point under consideration. Neither can it be argued that in making the Regulations and the Schedules the first respondent did act unreasonably and unfairly merely because the second applicant thinks he would not make a great deal of money as a conveyancer if the Regulations and the Schedules are allowed to remain on the statute books. [40] For the aforegoing, I come to the inevitable conclusion that the second applicant has failed to establish that in making the Regulations and the Schedules, prescribing the said ad valorem-based rate of tariff of fees and charges, and in approving them, the first respondent and the third respondent, respectively, did not ‘act fairly and reasonably’ within the meaning of art 18 of the Namibian Constitution. I, therefore, hold that the second applicant has failed to establish that art 18 of the Namibian Constitution has been infringed in relation to him in virtue of the making, and approving, of the Regulations and the Schedules. Having so held, I find that as respects the art 18 challenge, too, the interpretation and application of arts 21(2) and 22 of the Constitution do not arise in these proceedings. …

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Notes 1. First applicant, a short-term insurer, had entered into an oral agreement with second applicant, a firm of legal practitioners, in terms of which second applicant agreed to perform conveyancing services for first applicant’s members at a price based on an hourly rate. However, in terms of regulations promulgated under the Deeds Registries Act No 47 of 1937, the fees prescribed for conveyancers were based on the value of the immovable property, the so-called ‘ad valorem fees’. Applicants averred that the prescription of fees was unconstitutional on the basis that it was contrary to art  21(1)(j) of the Constitution, which guaranteed the freedom to practise any profession, trade or business. In addition, it was a violation of art  18, which guaranteed fair administrative justice.

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2. One of the issues the Court was called upon to determine was whether the regulations made under the Deeds Registries Act No 47 of 1937 constituted an unfair administrative act. In determining the issue, the Court found it necessary to consider the aspects of the concept of discretion (see chapter 3, Text (Part A), para 3.3.2), particularly whether the respondents exercised their discretion fairly and reasonably when they made the regulations. 3. The Court explained not only the meaning but also the scope of the constitutional requirement to act fairly and reasonably and the fact that the two requirements are not easily severable. In doing so, the Court relied on authorities, that is, In Re A Solicitor [1945] 1 All ER 445 (CA); Frank & Another v Chairperson of the Immigration Selection Board [19]; and Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 (HL); Seervai, Constitutional Law of India: A Critical Commentary;83 Baxter Administrative Law;84 and Wade, Administrative Law.85 B. Cases

[2 4] New Era Investment v Roads Authority 2014 (2) NR 596 (HC)

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Parker AJ: … [13] … I now proceed to consider the merits of the case, which is judicial review of the decision of the first respondent to award the tender to the fifth respondent, as I have mentioned previously. [14] In our law, broadly speaking, there are four distinct categories of judicial review. The first type of review relates to irregularities and illegalities in the proceedings before a lower court (category 1 review). Section 20 of the High Court 83 Op cit. 84 Op cit. 85 Op cit.

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Act 16 of 1990 contemplates precisely this type of review. The second category is meant to control proceedings before tribunals (and inferior courts) (category 2 review). The third category is meant to control acts of administrative bodies and administrative officials (category 3 review). The fourth (and last) category comprises reviews provided by legislation (category 4 review). The present is a category 3 review, therefore art 18 of the Namibian Constitution applies. The art 18 principles embrace the common-law principles. They also broaden its ambit to include, for instance, the concept of reasonableness as a ground for review.

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[15] In determining this application I must keep it firmly in my mind’s eye the core principle that there is no onus on the first respondent whose conduct is the subject matter of the review to justify its conduct. On the contrary, the onus rests on the applicant for review to satisfy the court that good, that is, cogent and relevant, grounds exist to review the conduct complained of. (See eg Davies v Chairman, Committee of the Johannesburg Stock Exchange 1991 (4) SA 43 (W), approved by the court.) [16] The burden of this court is, therefore, to determine whether the applicant has established that good grounds exist to review the first respondent’s decision to reject the applicant’s tender and award the tender to the fifth respondent. In this regard, I should signalise the crucial point that such grounds should have been set out in the founding affidavit because that is the case the applicant has brought to court and which the opposing parties have been called upon to meet, and not grounds put forth or as sanitised by counsel in their submission from the bar or in their written submission. In addition, there should be grounds of review based on the art  18 principles which have embraced and expanded the common-law grounds of review. It is, therefore, to the founding affidavit that I now direct my attention. … [17] On the papers, the applicant says that the purpose of the application is to review and correct or review and set aside a decision by the board of the first respondent that was taken on 3 December 2013 to award tender No RA/CA-04 to the fifth respondent. It is the applicant’s contention that the tender should have been awarded to the applicant and so the court should direct the first respondent to award the tender to the applicant. In the alternative, the applicant says, the award of the tender to the fifth respondent should be set aside and the tender be referred

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back to the first respondent for reconsideration together with such directives as the court may impose. Furthermore, according to the applicant, the applicant’s bid was the lowest in terms of price while the fifth respondent’s bid was the highest in terms of price. Indeed, all this represents the applicant’s contention and forms the basis of the application.

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[18] From the founding affidavit I am able to glean the following as constituting the applicant’s grounds of review, that is, the first respondent’s – (a) failure to act fairly and reasonably (ground 1), (b) failure to comply with the common-law rule (of natural justice) against bias (ground 2), (c) failure to comply with the commonlaw rule of audi alteram partem (audi) (grounds 3a and 3b), and (d) failure to apply its mind or the first respondent taking into account irrelevant or extraneous facts or considerations (ground 4). [19] I now proceed to consider the grounds. As to ground 4; the applicant says that relevant information that is favourable to the applicant was given ‘less consideration’ (I take it less weight), and that which was not favourable to the applicant was given high and undue weight (I take it great weight). This contention does not add any weight to the applicant’s case. In my opinion, it is up to a decision maker who knows what he or she desires to achieve to decide what information or facts to collect and what weight of importance and relevance to put on each information or facts placed before it when deciding. It would be unjustifiably presumptuous for anyone else, including the court, to prescribe to the decision maker what information to collect in the decision-making process and what weight of importance and relevance to place on each piece of information collected. If it did that, the court would be overstretching – without justification – the court’s power to control administrative decision making. [20] In the instant case, I find that the pre-qualification selection was carried out by the first respondent after applying certain criteria at the close of which two tenderers were weeded out of the competition, leaving four tenderers, including the applicant, still standing. I did not hear the applicant complain about less weight being put on information that was to his favour and great weight on information that was not to its favour. Neither was it heard to complain about the criteria used. The tenderers did not prescribe to the first respondent what criteria, and the weight of each criterion, that the first respondent should apply in selecting the tenderers that qualified. I fail to see how at the final stage of the tender selection process the

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applicant or the court can prescribe to the first respondent what criteria to apply and what weight to place on individual criteria. [21] In the pre-qualification selection process the first respondent applied certain criteria. At the subsequent stage when the award was to be made the first respondent also applied certain criteria in assessing the information and facts placed before it. It was, thus, entitled to consider all the relevant facts and information placed before it, including information and facts pertaining to skills transfer and programmes that support the socio-economic development of formerly disadvantaged persons. By a parity of reasoning, the first respondent was entitled to put great weight on technical and financial evaluations in comparison with other factors. The same goes for what information and facts to collect and what weight of importance or relevance it would collect, which is discussed in paras [24]–[27] of this judgment.

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[22] The test, in my opinion, is not what particular factors the first respondent could apply and what weight it could put on each factor; it is whether the first respondent applied the factors and weights equally to the entire competition. It is as clear as day that the tenderers themselves submitted information in their bids to the first respondent and the first respondent did not arbitrarily give marks for individual factors. It considered the information before it against those factors in equal measures. It could be said that the first respondent did not thumb suck the marks scored by the tenderers. [23] The basis of the scores gained by individual tenderers is clear for all to see; and what is more, I find that the first respondent’s rejection of the applicant’s tender in terms of technical and financial evaluation is based on sound and rational considerations. For instance, I accept that a tender price below a certain benchmark, in the present case 15%, may result in serious prejudice to the first respondent. For instance, it may result in financial strain or insolvency in respect of the particular tenderer. That may in turn result in that tenderer defaulting to carry out the works and the first respondent resorting to the appointment of third parties to complete the works. Additionally, such low tender price may lead to the tenderer cutting corners during the carrying out of the works, resulting in poor workmanship or non-compliance with specifications. Regarding this aspect, I accept the first respondent’s evidence and Mr Maleka’s submission thereanent. Besides, the first respondent contends that it is a well-established practice in the construction industry to use a benchmark of 15%; which means that if a tenderer

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submits a nett tender price which is more than 15% below the first respondent’s cost estimate for the project, this should count against the particular tender. In the case of the applicant’s tender the variance is 17,76%. That this policy is only in the Ministry of Works and Transport (MW&T) policy is of no import, as I demonstrate. [24] The issue of the first respondent applying policy considerations or factors in the selection process that are not found in the first respondent’s procurement policy, procurement regulations and procurement and tender procedures manual (the RA policy, regulations and procedures) but the Ministry of Works and Transport policy (the MW&T policy) appears to straddle all the grounds, that is, grounds 1, 2, 3 and 4.

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[25] It is worth noting at the outset that the first respondent is a State-Owned Enterprise (SOE), as I have mentioned previously, and in terms of the system of Namibia’s public administration at the central government level, the ministry that controls the first respondent on behalf of the central government is the MW&T. I, therefore, see no good reason why the policy of MW&T cannot be applied by an SOE that it controls on behalf of the central government. Not one iota of evidence was placed before the court tending to show that in the administration of the tender the first respondent was restricted – without any allowance – to the application of the RA policy, regulations and procedure only. [26] As noted previously the first respondent is an SOE, a public authority; and I see no good reason why a public authority cannot, in the carrying out of its duties, apply policy considerations that, in its opinion, is conducive to the proper administration of any tender that is under its charge. A different consideration would arise if the MW&T policy is against public policy or morality or it is offensive of the Namibian Constitution or is expressly prohibited by legislation. The applicant does not say it is. Besides, the applicant might have a point if the MW&T policy was applied to the applicant only, while the RA policy, regulations and procedures were applied to the rest of the tenderers. The applicant does not say that the MW&T policy and the RA policy, regulations and procedures were so applied. [27] In sum I find that the MW&T policy on the benchmark is a well-established practice; and it is sound and is based on rational considerations. Accordingly, I conclude that the first respondent’s decision rejecting the applicant’s bid in terms of the MW&T policy and on such factors as the 15% benchmark is based on rational principles and standards. (See Lawrence Baxter, Administrative Law (1984), at

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p 522, and the cases there cited.) Accordingly, I conclude that the first respondent’s decision to reject the applicant’s tender (and the tenders of the rest of the tenderers that were unsuccessful) was based on the factors that the first respondent took into account, including policy considerations in the MW&T policy, and that does not amount to a ‘purposeless irrationality of capricious or arbitrary action’. (Baxter, ibid, at p 521, and the cases there cited.) These conclusions, in turn, impel me to the inescapable conclusion that the applicant has failed to establish that the first respondent acted unfairly and unreasonably (ground 1), or that the first respondent did not apply its mind, and furthermore I do not find that it took into account irrelevant and extraneous considerations when it rejected the applicant’s tender (ground 4). Based on these reasons I also find that the applicant has not established bias or likelihood of bias on the part of the first respondent in rejecting the applicant’s tender (ground 2). Accordingly grounds 1, 2 and 4 are rejected.

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[28] The matter does not rest there. The applicant contended that ‘[t]he process was flawed in that the applicant was not given audi in respect of (a) the adverse comments relating to the quality of its (ie the applicant’s) work (ground 3a), or (b) any of the adverse consequences apparently flowing from the policy’ (I take the ‘policy’ to be the MW&T policy) (ground 3b). Thus, I see two elements in this contention about audi, that is, ground 3a and ground 3b. [29] I did in a way consider aspects of ground 3b when I considered grounds 1, 2 and 4. It serves no good purpose to rehearse here all the reasoning and conclusions regarding grounds 1, 2 and 4. It is enough to note the following additional reasoning and conclusions. In my view, the applicant’s contention (ground 3b) boils down really in the end to this, that is, according to the applicant, the first respondent pored over the MW&T policy, selected those factors contained therein which the first respondent knew will wreak adverse consequences for the applicant, and applied those factors against the applicant only and therefore the applicant should have been given audi before applying the factors. I fail to see in what manner the first respondent’s application of the MW&T policy violates the applicant’s right to the audi alteram partem rule. [30] The applicant has not placed any evidence – not even a phantom of it – before the court tending to show that the first respondent took the time to deliberately select those factors in the MW&T policy that the first respondent knew will occasion adverse consequences to the applicant and then applied just those factors. Such contention

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is, with respect, not only preposterous, it is also absurd. I have said previously that the first respondent was entitled to apply any policy consideration for reasons I gave then. If such policy considerations or factors that were applied to all the tenders alike did not work in the applicant’s favour, the applicant cannot seriously argue that it alone was entitled to be told that such and such factor, carrying such and such weight, would be applied in the tender selection process. The applicant does not contend that the other tenderers were told which policy considerations or factors, carrying what weight, would be applied in the tender selection process. Accordingly, I find that the applicant’s contention in ground 3b that the first respondent should have given audi to the applicant before applying those factors does not even begin to get off the starting blocks. Based on these reasons, I feel confident in rejecting the applicant’s ground 3b. These reasons also support my rejection of applicant’s ground 2 based on bias on the part of the first respondent when it rejected the applicant’s tender. (See para [25] of this judgment on bias.)

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[31] I now proceed to consider ground 3a, also based on audi alteram partem. The applicant contends that it ‘was not given audi in respect of the adverse comments relating to the quality of its work’. It must be remembered that natural justice (of which audi alteram partem is one of the rules) is a flexible doctrine whose content may vary according to the nature of the power exercised and the circumstances of the case (Re Pergamon Press Ltd [1971] Ch 388, at 399). In the words of Lord Denning MR, ‘the rules of natural justice – or of fairness – are not cut and dried. They vary infinitely.’ (R v Secretary of State for the Home Department, ex parte Santillo [1981] QB 778.) Baxter throws in his authoritative statement thus: The principles of natural justice are flexible. The range and variety of situations to which they apply is extensive. If the principles are to serve efficiently the purposes for which they exist, it would be counterproductive to attempt to prescribe rigidly the form the principles should take in all cases.

Baxter refers to the dictum of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 for support where the Lord Justice stated: The requirement of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, so forth.

Baxter concludes that these words have frequently been approved by South African courts. (Baxter, ibid, at p 541)

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[32] Generally, it conduces to fairness for the administrative body or administrative official to give a person affected by information it has at its or his or her disposal a fair opportunity to correct or contradict any relevant statement or information prejudicial to the case he is seeking to establish by bringing such information to that person. But a careful distinction should be drawn between the information and evaluation thereof during the process of the decision itself. (Baxter, ibid, at p 548.) The present is not a case where in evaluating the information received the decision maker relies solely on the prejudicial information received in order to take a decision that is not in favour of the subject of the information. To illustrate the point: X (an alien) applies for permanent residence status, Y, a neighbour who knows X, writes to the Ministry of Home Affairs and Immigration that X is not a fit and proper person and mentions that in X’s own country, X had been convicted of crimes of sexual nature against girls. It is clear that the ministry rejected X’s application solely on the basis of the information received from Y. The ministry did not consider any other attributes of X. Such a decision would be unfair. In the instant case, it seems to me clear that the prejudicial information about the applicant’s previous ‘unsatisfactory’ work respecting a Ministry of Finance project and UNAM project was evaluated but that was not the factor that led to the rejection of the applicant’s tender in favour of the fifth respondent.

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… [36] I have observed previously that fairness in the shape of the audi principle (or the bias principle) is a variable concept. It would, therefore, not be in the interests of justice to prescribe a one-size-fit-all formula for it. (See Hoexter, Administrative Law in South Africa (2007), at p  328,86 and the cases there cited.) In the circumstances, and on the facts of the case, coupled with the aforegoing reasoning and conclusions, I decline to hold that there has been a failure of fairness in the shape of audi just because the first respondent failed to disclose the information to the applicant and give the applicant an opportunity of dealing with it. It follows that ground 3a also fails, and it is rejected. [37] Having rejected all the applicant’s grounds of review, I make the following order: (a) The application is dismissed with costs … 86 C Hoexter (2007). Administrative Law in South Africa. Cape Town: Juta & Co.

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Notes 1. Applicant was the unsuccessful tenderer in a tender for construction of works put out by first respondent, that is, the employer. First respondent awarded the tender to fifth respondent. Aggrieved by the failure to be awarded the tender having offered the lowest price, applicant applied on an urgent basis for the review of the decision of first respondent. 2. One of the issues the Court was called upon to determine was applicant’s contention that first respondent had, inter alia, failed to apply the audi alteram partem rule in that it had not given applicant an opportunity to comment on the various factors and the weight accorded to such factors in the tender selection process and the opportunity to comment on certain adverse comments relating to the quality of its previous work. 3. The Court applied the principle enunciated in Immanuel v Minister of Home Affairs & Others (Case [18]) that there was no onus on first respondent (the administrative body) whose conduct was the subject of the review to justify its conduct. On the contrary, the onus rested on applicant for review to satisfy the Court that cogent and relevant grounds existed to review the conduct complained of. 4. On the issue of failure to apply the audi alteram partem rule of natural justice, the Court observed that the rule is not inflexible, and that if the principle were to serve efficiently the purpose for which it exists, it would be counterproductive to attempt to prescribe rigidly the form the rule should take in all cases, irrespective of the differing circumstances. 5. The Court stated that the content of the rules of natural justice in a particular case depends on: (a) (b) (c) (d)

the circumstances of the administrative action in question; the nature of the enquiry; the rules under which the administrative body or official is acting, and the subject-matter that is being dealt with, and so forth. [Russel v Norfolk (Duke) [1949] 1 All ER 109 (CA), at 118, approved by the Supreme Court of Canada, per Estey J, in Inuit Tapirisat of Canada [1980] 2 SCR 735, at 747.]

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[25] Minister of Mines and Energy & Others v Petroneft International Ltd & Others 2012 (2) NR 781 (SC) O’Regan AJA (Shivute CJ and Maritz JA concurring): … [1] This appeal against a judgment of the High Court primarily concerns the question whether the Cabinet of the Government of the Republic of Namibia acted lawfully in October 2010 when it revoked the mandate of the National Petroleum Corporation of Namibia (Pty) Ltd (Namcor) to import 50% of Namibia’s annual requirement of petroleum products. … [18] The Minister of Mines and Energy, as well as the permanent secretary of his ministry and the Government of the Republic of Namibia, are appealing against this order.

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… [25] On the merits of the application, the respondents argued that the decisions taken which revoked and terminated the mandate were unlawful because: • there was no legal basis for the decisions; • a fair procedure was not followed prior to the decisions being taken; • the decisions were unfair, unreasonable, arbitrary and irrational, and • the decisions were taken for improper purposes, and were mala fide and biased. (a) Issues for decision [26] As mentioned above, during oral argument, the appellants indicated that they did not wish to pursue any of their preliminary arguments, if the consequence would be to refer the matter back to the High Court. For reasons of convenience, therefore, this judgment shall commence by considering the merits of the case, without first considering the preliminary issues raised. On the merits, the following questions arise:

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•

•

•

was the decision by cabinet to revoke the mandate of Namcor to import 50% of Namibia’s annual petroleum product requirements taken unlawfully, either because there was no legal basis for the decision, or because a fair process was not followed, or because it was unreasonable or arbitrary; did cabinet, or the minister, unlawfully interfere in the contractual relationship between Namcor and Namcor International Trading Ltd either by instructing Namcor to terminate its relationship with Namcor International Trading Ltd or in any other way, and was the decision taken by the minister to alter the terms of the licences issued to Namcor and the local oil companies to give effect to this decision unlawful, unfair or unreasonable.

Each of these questions shall be considered in turn. … (b) Applicability of art 18

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[32] Respondents’ counsel then argued that the decision was unlawful because a fair process was not followed and the decision was arbitrary or unreasonable. These arguments are based on the proposition that cabinet’s decision to revoke the mandate constituted a decision that fell within the scope of art  18 of the Constitution. Article 18 provides: Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common-law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

[33] The object of art 18 is to ensure that acts and decisions of administrative bodies and officials are lawful, fair and reasonable. Article 18 seeks to regulate the acts and decisions of administrative bodies and officials. What is ‘administrative’ is better defined by a focus on the relevant function rather than on the functionary. For some acts or decisions of bodies or officials, ordinarily considered to be administrative bodies or officials, may not be administrative at all. While some acts or decisions of bodies not ordinarily considered to be administrative bodies may sometimes be administrative.

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[34] ‘Administration’, as the Constitutional Court of South Africa has observed, ‘is that part of government which is primarily concerned with the implementation of legislation.’ Cabinet’s primary constitutional tasks include the initiation of Bills for consideration by the National Assembly and the direction, co-ordination and supervision of ministries and parastatals. Cabinet may thus not ordinarily be directly concerned with the implementation of legislation, but when it is implementing legislation as contemplated in art 18, its actions must comply with the requirements of that article. It must be recognised as well that individual cabinet ministers performing their individual portfolios will often be involved with the implementation of legislation in relation to their specific portfolios and may therefore quite often perform tasks that will fall within the scope of art 18. [35] For the reasons that follow, it is not necessary to decide in this case if cabinet’s decision to revoke the mandate fell within the purview of art 18. I shall proceed on the assumption that it did. (c) Fair process

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[36] Turning first to the question of fairness, the decision to revoke the mandate affected Namcor directly. If the decision to revoke the mandate did fall within the scope of art  18, it is Namcor that was primarily affected by it, and Namcor who would, in the first place, have been entitled to assert the requirement of fair process. Yet, in an affidavit filed in the High Court, the deputy chairperson of Namcor stated that Namcor was not aggrieved by the fourth respondent’s decision because ‘sufficient and fair consultation’ had taken place before the decision was taken. [37] The respondents assert that as Namcor International Trading Ltd had entered into a contract with NPTD to supply 50% of Namibia’s fuel requirements, and as Petroneft was a joint owner of Namcor International Trading with Namcor, either Namcor International Trading Ltd and/or Petroneft were also entitled to be consulted by cabinet before the decision to revoke was taken. The respondents also suggested that Glencore Energy was entitled to be consulted, but as it had no direct contractual relationship with NPTD, Namcor International Trading Ltd or Petroneft, this argument cannot be accepted. I proceed on the basis that Petroneft, as a 50% shareholder in Namcor International Trading Ltd, had standing to raise these issues. As will become clear from what follows, it is not necessary to decide whether this assumption is legally correct or not.

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[38] The duty to act fairly is not a rigid principle imposing specific obligations upon administrative bodies and officials in an inflexible, invariable way. It is better understood, as it has been described by the South African Supreme Court of Appeal, as an ‘ever-flexible’ concept. As Lord Mustill’s widely quoted dictum explains: ‘What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.’

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[39] The question of the requirements of fairness in the context of contractual relationships is particularly vexed. At times in the past, courts have taken the view that the existence of a contract between a public authority and a third party results in the relationship between the public authority and third parties being regulated by the law of contract only. This approach is no longer widely accepted. It is now generally recognised that the existence of a contract does not automatically release the public authority from its duty to act fairly. Nevertheless, the circumstances in which the public authority will be released from the duty to act fairly, and the content of the duty to act fairly in the field of contractual relations, remain two difficult and contested areas of the law. [40] For the purposes of argument in this case, let us assume that respondents’ counsel is correct in asserting that cabinet was under a duty to act fairly in relation to Namcor International Trading Ltd and/or Petroneft before revoking Namcor’s mandate. It must be emphasised that this assumption may well not be correct. But if cabinet was under such a duty, the question would be what fairness required of it in the circumstances. There are three main considerations that suggest that cabinet would not have been required to afford a hearing to either Namcor International Trading Ltd or Petroneft. [41] The first relates to the fact that the supply agreement itself regulated the consequences of the termination of the mandate. It is clear from the terms of the supply agreement that both parties to the agreement contemplated the possibility of the termination of Namcor’s mandate at some future time, and that possibility was regulated in the contract, on the basis that the supply agreement would terminate 90 days after the mandate terminated. [42] The second relates to the relative bargaining power of the parties. Namcor International Trading Ltd was jointly owned by Namcor and Petroneft. Petroneft is, in turn, half-owned by Glencore International AG, a very large multinational corporation. It cannot be said, in the circumstances, that the supply agreement

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was characterised by inequality of bargaining power between the parties. Petroneft was, in effect, ‘a major commercial undertaking’ and not in a position of inferiority or vulnerability vis-à-vis Namcor when it entered into the supply agreement. There is no reason to conclude that the terms of the supply agreement represent anything other than the genuine consensus of the parties. If that is so, it must be assumed that the parties to the supply agreement will have arranged their affairs in the light of that consensus. [43] The third and related consideration is the need to take care not to unduly restrict the ability of government to act efficiently and effectively in carrying out the task of government. Were government to be required in all circumstances to give parties with whom it has contracted an opportunity to be heard before terminating a contract, regardless of the fact that the contract itself permitted termination in the applicable circumstances, and where there was no suggestion that the contract related to the provision of services to citizens, the work of government would become unduly burdened. These three interrelated considerations all indicate that in this case, even if cabinet’s decision to terminate the mandate was a decision within the purview of art 18, government would not have been required to afford either Namcor International Trading Ltd or Petroneft an opportunity to be heard before terminating the contract. …

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(d) Unreasonable or arbitrary? [46] The final argument made by respondents’ counsel was that the termination of the mandate was unreasonable or arbitrary. As mentioned above, the basis upon which the decision to terminate was made was the acute financial difficulties faced by Namcor, arising from the fact that it was not able to recover the costs of importation that arose under the supply agreement. It may well be that there were other ways to resolve the financial difficulties of Namcor, but the fact that there were other ways to address the issue, is not the question this court must consider. The question this court must answer is whether it was irrational or arbitrary for cabinet to have sought to rectify the situation in the manner it did. It seems clear on the evidence before us that the termination of the mandate would ease Namcor’s financial difficulties. In the circumstances, it cannot be said that the decision was either unreasonable or arbitrary.

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Did cabinet or the minister unlawfully interfere with the contractual relationship between Namcor and Namcor Trading International Ltd? [47] Counsel for the respondents argued that in deciding to revoke the mandate, cabinet and/or the minister required Namcor to terminate its contractual relationship with Namcor International Trading Ltd and in so doing interfered unlawfully with the contractual relationship between Namcor and Namcor International Trading Ltd. In substantiation of this argument, counsel pointed to the letter sent to Namcor informing it of cabinet’s decision to revoke its mandate. The letter stated: The Ministry of Mines and Energy would like to inform you about the Cabinet resolution … as follows: 1.

That Cabinet approves the revocation of Namcor’s current mandate of importation of 50% petroleum products. This revocation will take effect from 1 February 2011. 2. That Cabinet directs the Auditor General to conduct an audit in order to ascertain the extent of Namcor’s debt amounting to approximately N$268 million, owed to Glencore and the Company’s technical insolvency before the Government releases fund from the National Energy Fund (NEF) to bail out Namcor.

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Therefore Namcor is required to clear all its current obligations and commitments with its supplier before the 1 February 2011. A levy of 7,6 cents per litre from NEF was also approved by cabinet to cater for the company monthly expenditures. [48] The appellants argued that neither cabinet nor the minister required the termination of the supply agreement, which terminated of its own accord, in accordance with a contractual term agreed to between the parties. Accordingly, they denied that cabinet or the minister had interfered with the contractual relationship between the parties. [49] It is clear that one of the effects of the revocation of the mandate by cabinet was the termination of the supply agreement. This effect, of course, followed from the agreed terms of the contract, which stipulated that the supply agreement would, in the event that Namcor’s mandate was revoked, terminate 90 days later. As a matter of fact, neither cabinet nor the minister instructed Namcor to terminate the agreement. The agreement terminated because the contracting parties had foreseen the possibility of cabinet terminating Namcor’s mandate, and had provided that such a termination would result in the termination of the supply

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agreement. Accordingly, it cannot be said that cabinet unlawfully interfered with the contractual arrangements between the parties by revoking the mandate. The revocation did have an effect on the contract, but that effect was foreseen and provided for in the contract itself. In these circumstances, the argument that the decision constituted an unlawful interference with the contract cannot be sustained. The amendment of the licences by the minister

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[50] Once cabinet decided that the mandate should be revoked, the minister amended both Namcor’s wholesale licence to import fuel in terms of the Act, as well as the wholesale licences of the other local oil companies. The amendment of the licences may well have been action that falls within the scope of art  18 with the consequence that the minister would be required to act fairly and reasonably. Namcor, however, does not suggest that the minister acted unlawfully or unreasonably towards Namcor in terminating the mandate. On the contrary, Namcor asserts that it considered that the decision had been lawfully taken. [51] Petroneft and Glencore Energy, of course, assert that the minister acted unlawfully and unreasonably in amending the licences. It is clear that the decision to amend the licences followed upon cabinet’s decision to revoke Namcor’s mandate. Even assuming that Petroneft and Glencore Energy have standing to challenge this decision, the decision was neither unfair nor unreasonable for the reasons given in paras  [34]–[46] above. As those paragraphs make plain, it was not unfair for cabinet not to have consulted Petroneft and Glencore Energy before terminating the mandate, given the terms of the supply agreement, the relative bargaining strength of the parties to the supply agreement, and the fact that no representation had been made stating that Namcor Trading International Ltd, or Petroneft or Glencore Energy, would be given a hearing before the mandate was revoked. For the same reasons it was not unfair for the minister not to have consulted Namcor International Trading Ltd, Petroneft or Glencore Energy before amending the licences. [52] Similarly, just as cabinet’s decision to terminate the mandate was neither arbitrary nor unreasonable, nor was it arbitrary or unreasonable for the minister to have amended the licences. The argument that the minister’s action was therefore unlawful must also fail.

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[53] All the arguments on the merits raised by counsel for the respondents must fail. Given this conclusion, it is not necessary to consider any of the preliminary arguments raised by the appellants. The appeal must therefore succeed and the order of the High Court must be set aside. … [55] The following order is made: 1. The appeal succeeds. 2. The order of the High Court is set aside and replaced with an order stating: The application is dismissed. The applicants are ordered to pay the costs of the first, second and third respondents, including the costs of one instructed and one instructing counsel, jointly and severally, the one paying the other to be absolved.

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Notes 1. During 2004 Namcor, a parastatal, had been granted a mandate to import 50% of Namibia’s petroleum products. Namcor had entered into a joint venture agreement, inter alia, with first respondent. During October 2010 the government revoked this mandate and required Namcor to terminate its contractual obligations to the joint venture company. Respondents launched an application in the High Court challenging the validity of the revocation of the mandate. The High Court upheld the application, holding, inter alia, that first and second respondents should have been given notice of the revocation and that the revocation constituted an administrative action in terms of art 18 of the Constitution. The High Court reasoned that respondents had a legitimate expectation that they would be granted an opportunity to make representations, since the revocation affected their contractual rights. The High Court set aside the decision of the government. The present appeal was against that decision. 2. The Supreme Court held that as with the duty to comply with natural justice, the duty to act fairly is not a rigid principle imposing specific obligations on administrative bodies and officials in an inflexible and invariable way. 3. The Court held further that what fairness demands is dependent on the context of the decision and that is to be taken into account in all its aspects.

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[2 6] Re North Coast Air Services Ltd v Air Transport Committee of the Canadian Transport Commission (1973) 32 DLR (3d) 695 (Fed CA) Jackett CJ: … The provisions of the Aeronautics Act87 that bear directly on the Commission’s powers to make the order here in question are: 9(1) In this Part

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‘commercial air service’ means any use of aircraft in or over Canada for hire or reward; 16(1) The Commission may issue to any person applying therefor a licence to operate a commercial air service in the form of the licence applied for or in any other form. (3) The Commission shall not issue any such licence unless it is satisfied that the proposed commercial air service is and will be required by the present and future public convenience and necessity. (6) In issuing any licence, the Commission may prescribe the routes that may be followed or the areas to be served and may attach to the licence such conditions as the Commission may consider necessary or desirable in the public interest, and, without limiting the generality of the foregoing, the Commission may impose conditions respecting schedules, places of call, carriage of passengers and freight, insurance, and, subject to the Post office Act, the carriage of mail. (8) The Commission may suspend, cancel or amend any licence or any part thereof where, in the opinion of the Commission, the public convenience and necessity so required. (17)(1) No person shall operate a commercial air service unless he holds a valid and subsisting licence issue under section16.

…

87 RSC, 1985, c A-2.

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In my view, therefore, the condition under attack is one that can be attached to a charter licence, under s 16(6), when it is being issued, if the Commission considers it necessary or desirable in the public interest to do so. Furthermore, in my opinion, if the condition is one that can be attached to a licence when it is being issued, it may be attached to the licence by amendment, in the exercise of the Commission’s powers under s 16(8), ‘where, in the opinion of the Commission, the public convenience and necessity so requires’. I can find nothing in the words used in the statute, or in the scheme of the statute, that makes the result that can be achieved by amendment under s 16(8) something less than what could have been done when the licence was being issued, assuming that in the opinion of the Commission that is required by public convenience and necessity.

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… If the Commission had authority to enact a general prohibitory order, it would have created a legal prohibition regardless of the circumstances existing in any particular case. It had no authority to enact any such regulation. (I am not overlooking that, under s  14(1)(b), the Commission may make regulations ‘prescribing the terms and conditions to which licences issued under this Part shall be subject’. There is no attempt to exercise this power before us and, in any event, I doubt that such a regulation would apply to a licence that was issued before the regulation was made: compare Chappelle v The King, [1904] AC 127, and A-G (Alta) et al v Huggard Assets Ltd and A-G (Can) [1953] 3 DLR 225, 8 WWR (NS) 561, [1953] 2 All ER 951.) On the other hand, the Commission has express authority to attach to an individual licence a condition that would impose such a prohibition on the particular licensee, if the Commission considers it ‘necessary or desirable in the public interest’ (s 16(6)) or ‘where, in the opinion of the Commission, the public convenience and necessity so requires’ (s  16(8)). This involves the Commission addressing itself to the requirements of the particular situation in respect of each licence in the light of such general policy principles as it may have adopted. If, having done so, the Commission reaches, by a proper process of reasoning, the same result in every case, the final result is a valid exercise of its powers even though, in effect, it is the same as the result it tried, at an earlier stage, to achieve by an exercise of a regulation-making power that it did not have. In the one case it will have done what Parliament authorized it do so. In the other case it tried to do what it was not authorized to do. …

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There are two serious questions in this case that have to be faced, as I appreciate the matter, in considering whether it can be said that the commission did afford to the appellant a fair opportunity for correcting or contradicting any relevant statement prejudicial to the appellant’s position before reaching its decision that the public convenience and necessity required that the conditions in question be attached to the appellant’s licence. These questions are: (3) Did the Commission make a final decision that public convenience and necessity required that the conditions be attached to the appellant’s licence before writing the letter of August 10, 1970, giving the appellant an opportunity to make representations? And …

… With reference to the first question – ie, whether the Commission had finally decided that public convenience and necessity required that the conditions be attached to the appellant’s licence before writing the letter of August 10, 1970 – it is necessary to look at the letter of August 10th. That letter stated, without qualification, Public convenience and necessity requires that routes served by Class 1 and Class 2 air carriers should be protected against the operation by Class  4 air carriers of charters between points named in any one licence of such Class 1 and Class 2 air carriers except as set out in the attached Schedule.

It is true that it also says that

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Each Class 4 licence under consideration is being dealt with on its own merits’ and that it concludes by inviting ‘representations, if any, as to why such conditions should not be attached to your licence.

Nevertheless, the statement of the previously determined requirement of public convenience and necessity is so categorical as to appear to leave no possible room for any meaningful representations. If the matter had been left there, I doubt that I should have been able to escape the view that the Commission had taken its final decision without giving any opportunity for representations. However, the Commission did subsequently clarify its intention when it wrote to the appellant’s solicitors on October 19th, 1970, and said: There would appear to be some misunderstanding on your part as to the intent and purpose of the Committee’s letter of August 10, 1970. Briefly, the letter expresses the Committee’s intent to examine on its merits the Class 4 licence of your client with a view to ascertain whether the licence, which was issued in 1959 pursuant to

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section 15 of the Act, still meets the requirements of the Aeronautics Act as they exist today. The examination is not initiated for the purpose of singling out your client, as all Class 4 licences are being examined. The purpose of our sending to all Class 4 carriers our letter dated August 10th was to obtain their views on our proposal, canvass their submissions with a view to determine if there was reason to alter our proposal – not with a view to introduce nor approve regulations respecting route and base protection.

While the appellant had in the meantime filed its representations, there was plenty of time after this letter for it to have made further representations before the order was finally made on October 20, 1971, if it had been misled by the dogmatic way in which the letter of August 10, 1970, had been framed. In the circumstances, it appears to me that the course taken by the Commission falls on the right side of the line drawn by Bankes, LJ, in R v Port of London Authority Ex p Kynoch, Ltd, [1919] 1 KB 176, at p 184, where he stated:

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There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.

This approach was referred to with approval in Re Hopedale Developments Ltd and Town of Oakville (1964), 47 DLR (2d) 482, at pp 486–487; [1965] 1 OR 259, by McGillivray, JA, giving the judgment of the Ontario Court of Appeal, where he refers to other cases applying the same principle: I might add on this aspect of the matter that I do not find it too surprising that, of over 400 charter carriers affected, only some 58 filed representations and that none of them persuaded the Commission to change the policy. We must assume that the Commission had given care to working out a policy that met all problems. The mere fact that a general rule is enunciated or a general principle formulated before the appellant is heard as to why an exception should be made in this case is not in itself objectionable provided he is given an opportunity to be heard. This was clearly stated by Bankes, LJ, in R v Port of London Authority Ex p Kynoch, Ltd,

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[1919] 1 KB 176, at 184 (referred to in Re Hopedale Developments Ltd and Town of Oakville (1964), 47 DLR (2d) 482, at 486–7; [1965] 1 OR 259), where he states: There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes. …

The findings of the Commission on ‘public convenience and necessity’ are not subject to review on the merits by this Court, being within the sole jurisdiction of the Commission, but the principle of natural justice entitles the Court to inquire whether it appears that there was any evidence on which the conclusions of the Commission could have been reached. In the present case two decisions were involved:

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(1) The decision of the Commission that public convenience and necessity requires protection from class 4 carriers of routes served by class 1 and class 2 carriers; and (2) The decision of the Air Transport Committee that no exception should be made in the case of the appellant from the application to its licence of the conditions proposed to be attached to each individual class 4 licensee. … The decision by the Commission on the question of general policy was presumably based on studies made over a period of many years going back to the early days of commercial aviation in Canada, and would fall within the dictum of Lord Loreburn LC, in Board of Education v Rice, [1911] AC 179, at p 182, where he states in commenting on the duties of boards in general: They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.

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I do not believe that in the present case it can be said that the appellant was not given an opportunity to be heard. On the contrary, it made submissions as to why the proposed amendment to its licence should not be made. The more difficult question is the second one, namely, whether due consideration was given to its representations before it was decided that no such exception should be made. This is the decision which appellant is really seeking to have set aside. It made serious representations indicating that despite its activities its class 1 and class 2 competitors had prospered and expanded their business greatly in the preceding three years, that if base protection were imposed there would be very few places to which it would fly since all main points in its area were already assigned to its competitors, that the services it was providing were not really competitive with those of the class 1 and class 2 carriers in the area, and so forth … The Committee states that it has considered appellant’s representations and there is certainly no reason to doubt that this is so, but neither the appellant nor the Court is given any indication of the nature of the other evidence before it, if any, relating to the specific economic situation of appellant’s competitors in the area, of any traffic studies made there, or anything to indicate that the decision was made otherwise than on the basis of general policy applicable to all class 4 licensees in Canada. The wording of the order amending appellant’s licence is identical with the wording of the orders relating to all other class 4 licences. The wording of the letter of August 10, 1970, setting out the reasons for and terms of the proposed amendments, the wording of Mr Pickersgill’s letter and the wording of Commissioner Clark’s letter all indicate an intention to amend the licences as indicated, although referring to the opportunity to be given to the licensee to make representations. The fact that no exceptions were made in favour of any of the 58 licensees who made representations might seem to indicate, as appellant contends, the application of a general policy to all class 4 licences in the interest of public convenience and necessity rather than an individual separate examination of the case of each licensee such as is required by s 16(8). … While the jurisprudence requires that a party must be faxed with (informed in writing of) the facts on which a decision affecting him is to be made and given an opportunity of answering them, it appears doubtful whether it goes so far as to say that when he has made submissions or representations he must then be confronted with whatever facts have been presented in rebuttal of what he has

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alleged and be given a further opportunity to answer such evidence. In order to conclude that the Commission, in deciding to amend appellant’s licence, did not consider any evidence relating specifically to it as opposed to evidence relating to class 4 air carriers generally, it would be necessary to base this on an assumption that this must be deduced from the fact that no exceptions have been made to date for any class 4 licensees. I do not believe such an assumption can be made in the face of the positive statement in the order that ‘all matters relevant to the proposed amendment’ (ie, the amendment to appellant’s licence) have been considered. It appears that the Commission considered that the exceptions made in the amendment were sufficiently flexible to be applicable on grounds of ‘public convenience and necessity’ to all class 4 licensees and that despite submissions made by 58 of them they could all be fitted within the framework of the amendment. While I have reached this conclusion not without considerable hesitation, it would appear that the Commission did not infringe the rules of natural justice in the decision made with respect to appellant’s licence, since there is no positive evidence of which a finding can be made that due consideration was not given to its submissions. I believe that the judgment of Bankes, LJ, in R v Port of London Authority, Ex p Kynoch, Ltd, [1919] 1 KB 176, is directly in point. The Committee cannot be said to have refused to hear appellant’s submissions, but it has merely decided against it on the basis that there is nothing exceptional in its case to justify a departure from the policy of inserting an amendment in its licence on the same terms as that inserted in the licences of all other class 4 carriers. This is a decision which the Committee was entitled to make. … I would dismiss the present appeal, without costs. Notes 1. It was the policy of the Air Transport Committee of the Canadian Transport Commission (CTC) to protect the routes flown by scheduled air carriers, required to maintain regular service regardless of profitability, from undue competition from carriers not so required. Accordingly, an Order (legislative in nature) was made by the Committee prohibiting class  4 carriers from

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2.

3.

4.

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5.

carrying traffic on routes served by class  1 and class  2 carriers, save in exceptional circumstances. Fifty-eight out of more than four hundred class 4 carriers submitted representations, but in every case the Commission made the proposed amendment. Applicant company sought to have the Air Transport Committee’s decision amending its licence set aside by the Federal Court of Appeal as being ultra vires. As an extension of the principle of law that the content of natural justice and the duty to act fairly are not rigid principles (see notes to Case [25]) is the following principle. Public authorities are entitled to lay down for themselves a general policy to guide their decisions; except that it must be a reasonable policy that is also fair to apply. More importantly, the public authority concerned ought not to apply the policy so rigidly as to reject an applicant without hearing the applicant, that is, without granting them the right to audi. Lord Denning MR propounded the same principle in the English case of Sagnata Investments Ltd v Norwich Corporation [1971] 2 All ER 1141 (CA). There the learned Master of the Rolls stated that an administrative body which may have to consider numerous applications of a similar kind is entitled to lay down a general policy which it proposes to follow in coming to decisions on individual applications, provided always that it is a reasonable policy and is applied fairly and justly. Once such a policy is laid down, the administrative body is entitled to apply it in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what they have to say. It must not ‘shut its ears to an applicant’. The applicant is entitled to put forward reasons urging that the policy should be changed in relation to them or saying that in any case it should not be applied to them. But, so long as the administrative body is ready to hear them and consider what they have to say, it is entitled to apply its general policy to them as to others.

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B. Cases

[27] Administrator, Transvaal, & Others v Traub & Others 1989 (4) SA 731 (A) Corbett CJ:

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… In the founding affidavit and in the replying affidavit it was alleged by the respondents that they were all properly qualified, committed and highly competent doctors; and that, in accordance with a practice which had existed ‘for decades’, they were selected on merit, from a large pool of applicants, for the position of Senior House Officer by the heads of the departments concerned, who recommended their appointment to the second appellant. This is not disputed. It was also alleged that in the past it had long been the practice for second appellant to approve the appointment of persons so recommended ‘as a mere matter of course’. It was pointed out that second appellant did not know applicants personally or what their prospects, plans or preferences were, whereas the head and members of the relevant department did. Accordingly, second appellant understandably had always acted formally to confirm an appointment effectively catalysed and perfected by the university authorities. Indeed, members of the medical faculty could not remember a single instance of an application, duly recommended by the department head, which had not been so confirmed, save for cases of formal defects in an application, which could be remedied. Save for the occasion giving rise to the present litigation (as far as first and fifth respondents are concerned), this practice had never been departed from. This, too, is not disputed. In the respondent’s replying affidavit it was also pointed out (and this is not in dispute) that the appointments sought by the respondents ...  were not simply casual appointments. They are appointments forming part of the permanent structure of medical administration in South Africa, and are essential components in an evolutionary and hierarchical development of professional graduation in the Provincial Administration pertaining to hospitals. A medical student acquires an academic degree in the expectation and with the object of first obtaining employment, experience and skill as a senior house officer, thereafter graduating to the status of a registrar, and thereafter further

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graduating to the status of a specialist. This kind of progression is carefully structured by the university concerned acting in close co-operation with the hospital administration. No medical student would ever embark upon a medical course of six years on the risk that upon his graduation the question as to whether he would ever get a position as an intern, and ever qualify as a medical practitioner, would be dependent entirely on the arbitrary discretion of the second (appellant).

… I return now to the question as to what the scope of application of the audi principle is. As I have stated, the classic formulations of the principle refer to decisions prejudicially affecting an individual in his liberty, property or existing rights. In the present case, obviously, the question of liberty does not arise. Nor is it suggested that second appellant’s decision not to approve respondents’ appointments affected their property. In the Court a quo, however, it was held that the decision undoubtedly prejudicially affected the rights of the respondents (see reported judgment at 400I), Goldstone J adding:

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Not only does the decision deny their appointments, but it also could prejudicially affect their professional careers. A decision that a professional person is unsuitable for a post is potentially of the utmost importance and will, if it remains, be a permanent blot on his good name.

Later in his judgment the learned judge stated that where the suitability of an applicant was in issue and an adverse decision had serious consequences to the person concerned, both in relation to his application and in relation to his career, then, in the absence of a clear provision to the contrary in the statute, fairness demanded that he be entitled to be heard before he was made to suffer such an adverse decision. Goldstone J further found that the Act did not contain any such provision to the contrary (see reported judgment at 401C–E). With reference to the principle of ‘legitimate expectation’ (upon which I will elaborate later), Goldstone J said (reported judgment at 402C): In the present case s 10 of the Act obliged the second respondent to have regard, inter alia, to the suitability of the applicants. Their claim to a hearing, before being adversely held unsuitable, arises therefore from a statutory duty and not from a legitimate expectation.

I am not persuaded, with respect, that the second appellant’s decision could be said to have prejudicially affected the respondents in their existing rights. Clearly they

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had no right to be appointed to the posts applied for by them. No doubt, provided that they qualified for the appointment, the second appellant was under a statutory duty, in terms of s 10(1) of the Act, to consider their applications without favour or prejudice and in the light of the criteria laid down, viz their qualifications, level of training, relative merit, efficiency and suitability; and there was vested in the respondents a correlative statutory right that their applications be so considered. But that, in my view, is as far as it goes. Second appellant’s refusal to appoint them, as such, did, therefore, not affect an existing right. This brings me to the concept of a legitimate expectation. The phrase ‘legitimate expectation’ was evidently first used in this context by Lord Denning MR in the English case of Schmidt & Another v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA), at 909C and F. The case concerned a decision by the Home Secretary not to extend the study permits of two aliens who were studying in the United Kingdom. It was contended, inter alia, that the Home Secretary had failed to observe the precepts of natural justice in that he had not given the students a hearing before taking this decision. The contention failed. Lord Denning referred to the decision of the House of Lords in Ridge v Baldwin & Others [1963] 2 All ER 66 (HL) (which has proved to be a veritable watershed in modern English administrative law) and stated that the speeches in that case show:

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… that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.

In the case before the Court Lord Denning held that the students concerned had not had any right, or indeed any legitimate expectation, of being allowed to stay once their permits had expired. Although in Schmidt’s case it was found that there was no scope for the application of the concept of a legitimate expectation, there have been a large number of subsequent decisions in England (including some of the House of Lords) accepting the concept as an integral part of the rules relating to the audi principle. In some of these cases the party claiming the benefit of the principle has been held to have had such a legitimate expectation, in others not. A useful and comprehensive overview and analysis of the relevant decisions is to be found in an article by Robert E Riggs, published in (1988) American Journal of Comparative

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Law, Vol 36, at pp  395ff.88 In an epitomical first paragraph to his article Riggs states:

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Since the landmark decision of Ridge v Baldwin, handed down by the House of Lords in 1963, English Courts have been in the process of imposing upon administrative decision-makers a general duty to act fairly. One result of this process is a body of case law holding that private interests of a status less than legal rights may be accorded procedural protections against administrative abuse and unfairness. As these cases teach, a person whose claim falls short of legal right may nevertheless be entitled to some kind of hearing if the interest at stake rises to the level of a ‘legitimate expectation’. The emerging doctrine of legitimate expectation is but one aspect of the ‘duty to act fairly’, but its origin and development reflect many of the concerns and difficulties accompanying the broader judicial effort to promote administrative fairness. As such, it provides a useful window through which to view judicial attempts to mediate between individual interests and collective demands in the modern administrative state.

This appears to be a fair summing up of the situation. In order to illustrate the nature and scope of ‘the doctrine of legitimate expectation’, as it is sometimes now called (see eg R v Secretary of State for the Home Department; Ex parte Ruddock & Others [1987] 2 All ER 518 (QB), at 528h), I shall refer briefly to some of the more pertinent and authoritative decisions of the English Courts. The first of these is Breen v Amalgamated Engineering Union (now Amalgamated Engineering and Foundry Workers Union) & Others [1971] 1 All ER 1148 (CA). The appellant in that case had been elected by his fellow workers as their shop steward for the ensuing year. By the rules of the respondent trade union the election was subject to approval by the district committee of the union. The latter held a meeting at which it was decided to refuse such approval. The appellant was not invited to the meeting, nor were reasons given for the committee’s decision. The appellant brought an action against the respondent for an order declaring the decision to be invalid. The action failed; and on appeal the decision of the trial judge was affirmed by a majority. The case is of importance and interest for the exposition of the legal principles evolved by Lord Denning MR, who gave the dissenting judgment in the Court of Appeal. On the question as to whether the decision of the committee was reviewable he said (at 1153h–j):

88 RE Riggs (1988). ‘Legitimate Expectation and Procedural Fairness in English Law’. American Journal of Comparative Law, vol 36(3), at pp 395ff.

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It is now well settled that a statutory body, which is entrusted by a statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will. Still it must act fairly. It must, in a proper case, give a party a chance to be heard ....

He held further that the same principle applied to certain domestic bodies, which had quite as much power as statutory bodies. He then proceeded (at 1154f–h): Then comes the problem: ought such a body, statutory or domestic, to give reasons for its decision or to give the person concerned a chance of being heard? Not always, but sometimes. It all depends on what is fair in the circumstances. If a man seeks a privilege to which he has no particular claim – such as an appointment to some post or other – then he can be turned away without a word. He need not be heard. No explanation need be given: see the cases cited in Schmidt v Secretary of State for Home Affairs. But, if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand.

Referring to the appellant’s case, Lord Denning said (at 1155b–c):

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Seeing that he had been elected to this office by a democratic process, he had, I think, a legitimate expectation that he would be approved by the district committee, unless there were good reasons against him. If they had something against him, they ought to tell him and give him a chance of answering it before turning him down. It seems to me intolerable that they should be able to veto his appointment in their unfettered discretion.

The concept of a legitimate expectation, as giving a basis for challenging the validity of the decision of a public body on the ground of its failure to observe the rules of natural justice was given the stamp of approval by the House of Lords in O’Reilly v Mackman & Others and Other Cases [1982] 3 All ER 1124 (HL), at 1126j–1127a (see also Findlay v Secretary of State for the Home Department and Other Appeals [1984] 3 All ER 801 (HL), at 830b–c; Council of Civil Service Unions & Others v Minister for the Civil Service [1984] 3 All ER 935 (HL), at 944a–e, 949f–j, 954e–h; Leech v Parkhurst Prison Deputy Governor; Prevot v Long Larton Prison Deputy Governor [1988] 1 All ER 485 (HL), at 496d) and by the Judicial Committee of the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC).

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It is clear from these cases that in this context ‘legitimate expectations’ are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis (Attorney-General of Hong Kong case supra, at 350c). The nature of such a legitimate expectation and the circumstances under which it may arise were discussed at length in the Council of Civil Service Unions case supra. The following extracts from the speeches of Lord Fraser and Lord Roskill are of particular relevance: But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Courts will protect his expectation by judicial review as a matter of public law  ...  Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue ....

per Lord Fraser, at 943j–944a. The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had ‘a reasonable expectation’ of some occurrence or action preceding the decision complained of and that that ‘reasonable expectation’ was not in the event fulfilled.

per Lord Roskill, at 954e.

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After indicating that the phrases ‘reasonable expectation’ and ‘legitimate expectation’ were to be equated and having expressed a preference for the latter, Lord Roskill continued (at 954g): The principle may now said to be firmly entrenched in this branch of the law. As the cases show, the principle is closely connected with ‘a right to be heard’. Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations ....

The reference in Lord Fraser’s speech to ‘a regular practice’ is illustrated, for example, by O’Reilly’s case supra, in which it was stated by Lord Diplock that, although under prison rules remission of sentence was not a matter of right but of indulgence, a prisoner had a legitimate expectation based upon ‘his knowledge of what is the general practice’ that he would be granted the maximum remission of one-third if by that time no disciplinary award of forfeiture of remission had been made against him. In public law, said Lord Diplock (see at 1126–1127),

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...  such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted out with the powers conferred on it by the legislation under which it was acting; and such grounds would include the board’s failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it.

In the case of McInnes v Onslow Fane & Another [1978] 3 All ER 211 (Ch) (an application for a boxer’s manager’s licence, which was refused by the boxing board of control) Megarry V-C distinguished three types of decisions which may be encountered when the Court is asked to intervene: (1) decisions in forfeiture cases, ie where the decision takes away some existing right or position, as where a member of an organisation is expelled or a licence is revoked; (2) decisions in application cases, ie the decision merely refuses to grant the applicant the right or position that he seeks, such as membership of the organisation or a licence to do certain acts; and (3) decisions in expectation cases, which differ from the application cases only in that the applicant ...  has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence-holder applies for a renewal of his licence, or a person already elected or appointed to some position seeks confirmation from some confirming authority ....

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[at 218c] Megarry V-C continued (at 218d–f): It seems plain that there is a substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases, there is a threat to take something away for some reason; and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges (which, in Ridge v Baldwin, Lord Hodson said were three features of natural justice which stood out) are plainly apt. In the application cases, on the other hand, nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges. Instead, there is the far wider and less defined question of the general suitability of the applicant for membership or a licence. The distinction is well recognised, for in general it is clear that the Courts will require natural justice to be observed for expulsion from a social club, but not on an application

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for admission to it. The intermediate category, that of the expectation cases, may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable. [See also R v Secretary of State for the Environment; Ex parte Brent London Borough Council & Others [1983] 3 All ER 321 (QB), at 354f–h.]

As these cases and the quoted extracts from the judgments indicate, the legitimate expectation doctrine is sometimes expressed in terms of some substantive benefit or advantage or privilege which the person concerned could reasonably expect to acquire or retain and which it would be unfair to deny such person without prior consultation or a prior hearing; and at other times in terms of a legitimate expectation to be accorded a hearing before some decision adverse to the interests of the person concerned is taken. As Riggs puts it in the article to which I have referred (at 404):

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The doctrine of legitimate expectation is construed broadly to protect both substantive and procedural expectations.

In practice the two forms of expectation may be interrelated and even tend to merge. Thus, the person concerned may have a legitimate expectation that the decision by the public authority will be favourable, or at least that before an adverse decision is taken he will be given a fair hearing. And, in passing, I must say, with respect, that I do not agree with the statement of Goldstone J in Mokoena & Others v Administrator, Transvaal 1988 (4) SA 912 (W), at 918E to the effect that legitimate expectation refers to the rights sought to be taken away and not to the right to a hearing. A frequently recurring theme in these English cases concerning legitimate expectation is the duty on the part of the decision-maker to ‘act fairly’. As has been pointed out, this is simply another, and preferable, way of saying that the decisionmaker must observe the principles of natural justice (see O’Reilly’s case supra, at 1126j–1127a; Attorney-General of Hong Kong case supra, at 350g–h; Council of Civil Service Unions case supra, at 954a–b). Furthermore, as Lord Roskill explained in the last quoted case, the phrase, ‘a duty to act fairly’, must not be misunderstood or misused. It is not for the Courts to judge whether a particular decision is fair. The Courts are only concerned with the manner in which the decisions were

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taken and the extent of the duty to act fairly will vary greatly from case to case. Many features will come into play including the nature of the decision and the relationship of those involved before the decision was taken (see at 954b–c); and a relevant factor might be the observance by the decision-maker in the past of some established procedure or practice. It is in this context that the existence of a legitimate expectation may impose on the decision-maker a duty to hear the person affected by his decision as part of his obligation to act fairly. (See at 954e; cf Lloyd & Others v McMahon [1987] 1 All ER 1118 (HL), at 1170f–g.)

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… I turn now to our law. In recent years there have been a number of cases in Provincial Divisions in which the traditional scope of the principles relating to the observance of natural justice (in particular the precept audi alteram partem) has been extended to decisions affecting a person who has no existing right, but merely a legitimate expectation (see Everett v Minister of the Interior 1981 (2) SA 453 (C), at 456–7; Langeni & Others v Minister of Health and Welfare & Others 1988 (4) SA 93 (W), at 96B–98A; Mokoena’s case supra, at 918C–920B; Lunt v University of Cape Town & Another 1989 (2) SA 438 (C), at 447D–448D; cf Sisulu v State President & Others 1988 (4) SA 731 (T), at 737G–H). This extension has taken place on the persuasive authority of the English decisions referred to above. In the matter of Castel NO v Metal & Allied Workers Union 1987 (4) SA 795 (A) this Court had occasion to discuss the legitimate expectation principle. The case concerned the refusal by the chief magistrate of Durban to grant permission, in terms of s 46(3) of the Internal Security Act 74 of 1982, for the holding of an open-air gathering. The decision was attacked by the applicant (a trade union) on the ground, inter alia, that the chief magistrate had failed to observe the audi principle. This Court held that the decision did not affect any right of the applicant’s, nor did it entail legal consequences to it, and that accordingly, on the authority of the majority judgment in Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A), the audi principle did not apply. The Court (per Hefer JA) went on to consider an argument based on legitimate expectation (at 810E–811A): By urging upon us the great inequity which the principle in Laubscher’s case may, in his submission, bring about (and has brought about in later cases) and the pressing need for legal reform, applicant’s counsel invited us to extend the principle in order that relief may be granted in cases where an administrative decision, which does not affect a person’s rights but nevertheless involves

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serious consequences to him, is taken without observance of the audi alteram partem rule. Such a result may be achieved, it was suggested, by adopting the approach presently in vogue in the Courts in England and certain other countries which affords relief in cases where there is no pre-existing right but the person concerned has what is sometimes referred to as a ‘legitimate expectation’. (Wade, Administrative Law, 5th ed, at pp 464–465. An illustrative discussion of the topic appeared in 1987 SALJ p  165 in an article ‘Legitimate Expectation and Natural Justice: English, Australian and South African law’ by John Hlophe.89)

Counsel’s invitation must be declined. The majority judgment in Laubscher’s case has been consistently followed and applied in a long line of decisions, including several in this Court. I am not unmindful of the serious and, in certain respects, justified criticism which has been levelled at some of the decisions and at the principle involved. (See, eg, Baxter, Administrative Law, at pp  577 et seq; John Hlophe’s article op cit; Taitz, ‘The Application of the audi alteram partem Rule in South African Administrative Law’ 1982 THRHR, p 254.90) It may well be that there is indeed a need for legal reform. But it would be idle to explore the possibility of reform in the present case. Even if the ‘legitimate expectation’ approach were to be adopted, there is no room for its application here. Applicant’s counsel submitted that the applicant had a legitimate expectation that it would receive a fair hearing, and that its application would not be refused on grounds which it had not been afforded an opportunity to refute. There is, however, no factual basis for such a submission. Unlike the English and Australian cases on which counsel relied, nothing had happened before the application for authority was submitted and nothing happened thereafter which could have caused the applicant to entertain such an expectation; there is not even an allegation in its affidavits that it in fact did entertain it. I am by no means sure that this case would in England be classified as a ‘legitimate expectation’ case. There is nothing in the case which calls for an extension of the accepted principle. I do not read these remarks as closing the door upon an extension of the existing grounds for applying the audi principle to include the case where a legitimate 89 HWR Wade (1985). Administrative Law (Fifth edition). Oxford: Clarendon Press; J Hlope (1987). ‘Legitimate Expectation and Natural Justice: English, Australian and South African Law’ SALJ, vol 104, pp 165–185. 90 Baxter (1984: pp 577 et seq); J Taitz (1982). ‘The Application of the audi alteram partem Rule in South African Administrative Law’ THRHR, vol 45, p 254; see also J Taitz (1984) ‘The Inherent Review Jurisdiction of the Supreme Court’. LLD Thesis, University of Cape Town.

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expectation is shown to have existed. As the above-quoted passage from the judgment emphasises, there was in that case no factual basis for such a legitimate expectation. Nor do I think that Laubscher’s case supra poses an insuperable obstacle to such extension. In that case, which was decided on exception, the appellant had been refused the written permission which in terms of s 24(1) of the Native Trust and Land Act 18 of 1936 he required to enter upon Trust property. He challenged the validity of the refusal, inter alia, on the grounds that the authority concerned had failed to observe the audi principle. This ground was ordered to be struck out by the Judge of first instance and his decision was upheld on appeal. Schreiner JA, delivering the majority judgment, said of the appellant (at 549E–F):

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He clearly had no antecedent right to go upon the property and the refusal did not prejudicially affect his property or his liberty. Nor did it affect any legal right that he already held. It can be said to have affected his rights only in the sense that it prevented him from acquiring the right to go on to the property; to the same extent but no further it may be said to have involved legal consequences to him.

The question as to whether a person who had no antecedent right, but an antecedent legitimate expectation, could lay claim to the benefit of the audi principle did not arise for decision. This is not surprising seeing that at that stage the doctrine of legitimate expectation had not yet been conceived in the land of its birth. Moreover, since the case was decided on exception, it is not possible to say whether the facts would have justified the application of this doctrine, as it has been developed in English law. The question which remains is whether or not our law should move in the direction taken by English law and give recognition to the doctrine of legitimate expectation, or some similar principle. The first footsteps in this direction have already been taken in certain Provincial Divisions (see the case quoted above). Should this Court give its imprimatur to this movement; or should it stop the movement in its tracks? In the Council of Civil Service Unions case supra, at 953h Lord Roskill observed that since about 1950 as a result of a series of judicial decisions in the House of Lords and in the Court of Appeal there had been ‘a dramatic and, indeed, radical change in the scope of judicial review’; and that this change had been described ‘by no means critically, as an upsurge of judicial activism’. One aspect of this change in the scope of judicial review was, of course, the evolution of the legitimate expectation principle. And it was evolved, as I read the cases, in the social context of the age in order to make the grounds of interference with the decisions of

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public authorities which adversely affect individuals co-extensive with notions of what is fair and what is not fair in the particular circumstances of the case. And it is of interest to note that likewise in Australia (see Cunningham v Cole & Others (1982–83) 44 ALR 334, where the judgment contains an extensive review of the authorities; and the discussion in (1985) 59 ALJ 3391) and New Zealand (see Chandra v Minister of Immigration (1978) 2 NZLR 559) it has been found necessary, or at any rate desirable, to extend the scope of judicial review to include cases of legitimate expectation. In my opinion, there is a similar need in this country. There are many cases where one can visualise in this sphere – and for reasons which I shall later elaborate I think that the present is one of them – where an adherence to the formula of ‘liberty, property and existing rights’ would fail to provide a legal remedy, when the facts cry out for one; and would result in a decision which appeared to have been arrived at by a procedure which was clearly unfair, being immune from review. The law should in such cases be made to reach out and come to the aid of persons prejudicially affected. At the same time, whereas the concepts of liberty, property and existing rights are reasonably well defined, that of legitimate expectation is not. Like public policy, unless carefully handled it could become an unruly horse. And, in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the Courts will, no doubt, bear in mind the need from time to time to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration. In general, it is probably correct to say that a person who applies for appointment to a post is not entitled to be heard before the authority concerned decides to appoint someone else or to make no appointment. The present case, however, exhibits certain distinctive features which, in my view, take it out of the general rule. The first feature is that this is no ordinary appointment. As the evidence indicates, the appointment of a young doctor to the post of SHO is a rung, and an essential one at that, in the ladder of professional progress in the hospital hierarchy. Refusal to appoint an applicant to such a post constitutes a set-back to his professional career; and, where the ground of refusal is unsuitability, also an impugnment of his professional reputation. The second, and perhaps more significant, feature is 91 K Mackie (1985). ‘Expectations and Natural Justice’ ALJ, vol 59, p 33.

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the practice which had existed for decades and in terms of which an application for the post of SHO carrying the recommendation of the departmental head had invariably, and as a matter of mere formality, been granted by the Director of Hospital Services. And in the case of first and fifth respondents there is the further feature that the practice had always been to extend automatically the incumbency of a post as SHO, when applied for. (I shall, however, leave out of account the question of pension rights.) These features, taken in conjunction with one another, constituted good ground, in my opinion, for each of the respondents having a legitimate expectation that, once his or her application for the post of SHO had been recommended by the departmental head concerned, second appellant’s approval of the appointment would follow as a matter of course; and/or a legitimate expectation that in the event of second appellant contemplating a departure from past practice, in the form of a refusal to make the appointment for a particular reason – especially where that reason related to suitability – the second appellant would give the respondent a fair hearing before he took his decision. In other words, the audi principle did apply. Second appellant denied respondents their appointments as SHO because of their signature of annexure M. I shall assume, in appellants’ favour, that his decision was taken pertinently with reference to the criterion of suitability and was not a punitive action. Nevertheless because he ignored the audi principle second appellant’s decision was, in my opinion, fatally flawed. In the circumstances of this case his omission to give the respondents a hearing and to apprise them of the ground upon which he was contemplating a rejection of their applications constituted a failure on his part to observe the precepts of natural justice or, in other words, a failure to act fairly. … The appeal is dismissed with costs, including the costs of two counsel. Notes 1. Respondents, all of whom were medical doctors, had applied to second appellant (the Director of Hospital Services) (the director) to be appointed or reappointed to the position of Senior House Officer (‘SHO’) at the hospital of which third appellant was the superintendent. In accordance with the existing practice, they forwarded their applications to the head of the hospital departments

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concerned, who submitted them with favourable recommendations to the director, whose function it was, under delegated powers, to make such appointments. Section 10(1) of the Public Service Act No 111 of 1984 regulated the power of the director to make the appointments. Second appellant did not approve the application of each of the respondents. It was common cause that the public authority rejected the applications because respondents had signed a letter published in a medical journal in which they severely criticised the Provincial Administration for its attitude towards the conditions in the medical wards at the hospital. 2. Respondents thereafter successfully applied to a Local Division for an order setting aside the director’s decision. In an appeal against the decision of the Local Division, appellants contended that:

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(a) respondents had been given a fair hearing in that the Medical Advisory Committee of the hospital (the MAC) had, at a meeting with the director, requested the latter to reconsider his decision, and (b) in any event, respondents were not entitled to a hearing. 3. The doctrine of legitimate expectation was first used in England by Lord Denning MR in Schmidt & Another v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA). In South Africa the leading case is this selected case [27]. 4. The doctrine of legitimate expectation was accepted as being an integral part of the audi principle. Therefore, like the audi principle, the doctrine of legitimate expectation is an aspect of the duty to act fairly. 5. Legitimate expectation establishes that private interests of a status less than legal rights may be accorded procedural protection against abuse and unfairness on the part of public authorities. An administrative body or official may, in a deserving case, be bound to give a person who is affected by their decision an opportunity of making representations. It depends on whether such person has some right or interest or some legitimate expectation of which it would be not fair to deprive them without hearing what they have to say. 6. More importantly, the Court held that the doctrine of legitimate expectation is construed broadly to protect both substantive and procedural expectations.

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[2 8] Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC) O’Linn AJA (Chomba AJA and Gibson AJA concurring): … III The law applicable [23.2] Whatever may have been the position prior to the coming into force of the Namibian Constitution on 21 March 1990 in conflict with art 18, has been swept away by art  18 of the Namibian Constitution which deals with ‘Administrative Justice’. This article reads as follows: 18. Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

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[24.1] There are some other fundamental changes brought about by the enactment of art 18 which needs to be emphasised. [24.2] So, for example, prior to the implementation, administrative decisions could only be brought on review in terms of the specific provision of the statute providing for such review or on the grounds provided for in our common law. These grounds are: (a) (b) (c) (d)

lack of jurisdiction; failure to follow any procedure required by the empowering statute; failure by the decision-maker to apply his or her mind; when the decision-maker’s action was mala fide, arbitrary or grossly unreasonable; (e) when the decision-maker failed to apply the audi alteram partem rule, when in certain situations reason and/or practice dictates that the rule should apply. The following two situations are clear examples of the last ground:

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(i) Where the decision-maker is privy to certain relevant information of which the applicant is ignorant and the said information is used against the applicant, the applicant must be informed by or on behalf of the decision-maker of such information. (Chairperson of the Immigration Selection Board v Frank & Another 2001 NR 107 (SC).) (ii) When circumstances are such that the applicant would have a reasonable expectation or legitimate expectation of succeeding in the application, the audi alteram partem rule must be applied. I agree with the manner in which Mainga J set out the law relating to this principle, part of which I repeat: In Administrator, Transvaal & Others v Traub & Others 1989 (4) SA 731 (A), at 756E–757C, Corbett CJ said the following concerning legitimate expectation:

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The concept of a legitimate expectation, as giving a basis for challenging the validity of the decision of a public body on the ground of its failure to observe the rules of natural justice was given the stamp of approval by the House of Lords in O’Reilly v Mackman & Others and Other Cases [1982] 3 All ER 1124 (HL), at 1126j–1127a.

It is clear from these cases that in this context ‘legitimate expectations’ are capable of including expectations which go beyond enforceable legal rights; provided they have some reasonable basis (Attorney General of Hong Kong case supra, at 350c). The nature of such a legitimate expectation and the circumstances under which it may arise were discussed at length in the Council of Civil Service Unions case supra. The following extracts from the speeches of Lord Fraser and Lord Roskill are of particular relevance: But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Courts will protect his expectation by judicial review as a matter of public law  …  Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.

[per Lord Fraser, at 943J–944A.] The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had ‘a reasonable

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expectation’ of some occurrence or action preceding the decision complained of and that that ‘reasonable expectation’ was not in the event fulfilled.

[per Lord Roskill, at 954e.] After indicating that the phrases ‘reasonable expectation’ and ‘legitimate expectation’ were to be equated and having expressed a preference for the latter. Lord Roskill continued (at 954g): The principle may now be said to be firmly entrenched in this branch of the law. As the cases show, the practice is closely connected with ‘a right to be heard’. Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations.

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See also Tettey & Another v Minister of Home Affairs & Another 1999 (3) SA 715 (D), at 726C–D. [25] Article 18 does not restrict the duty of administrative bodies or administrative officials to act fairly and reasonably only in regard to procedure. It must be inferred that this requirement also applies to the substance of the decision. This inference is strengthened by the last part of the article, which provides that persons, aggrieved by the exercise of such acts and decisions, shall have the right to seek redress before a competent Court or tribunal. This view has been laid down in my decision in Aonin Fishing (Pty) Ltd & Another v Minister of Fisheries and Marine Resources 1998 NR 147 (HC) and confirmed by this Court in Chairperson of the Immigration Selection Board v Frank & Another (supra), at 109E–110B, 116F–121G, 170F–176I; Government of the Republic of Namibia v Sikunda 2002 NR 203 (SC), at 226G–229F. See also High Court decision in Sikunda v Government of the Republic of Namibia (3) 2001 NR 181; Mostert v Minister of Justice 2003 NR 11 (SC), at 22J–28H; Cronje v Municipal Council of Mariental 2004 (4) NLLP 129, at E175–182; Bel Porto School Governing Body & Others v Premier, Western Cape, & Another 2002 (3) SA 265 (CC), at 291C–295H, 300C–316E. In South Africa, the Constitutional Court has expressed itself on item 23(2)(b) of Schedule 6 to the South African Constitution, which deals with administrative justice in South Africa. The said item 23(2)(b) reads as follows: Every person has the right to: (a) lawful administrative action where any of their rights or interests is affected or threatened;

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(b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened; (c) be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action had been made public; and (d) administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.

Article 18 of the Namibian Constitution, on the other hand, reads: Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

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Whereas Chaskalson CJ, who wrote the majority judgment, held that the aforesaid subpara (b), read with subparas (a), (b) and (c), did not extend the existing grounds for interference to include substantive fairness, the minority held that it did. Chaskalson CJ in Bel Porto School Governing Body (supra), at 291G–H said that if such extension ‘had been the purpose of item 23(2)(b), subpara (b) would not have confined itself to procedurally fair administrative action, but would have referred generally “to fair administrative action”’. [Emphasis added] But this is precisely what art 18 of the Namibian Constitution did by not confining itself to ‘procedurally fair administrative action’, but provided generally that: Administrative bodies and administrative officials shall act fairly and reasonably  …  and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

[26] The general principle of a duty to act fairly and reasonably supplements the common law and any relevant statute, but obviously any common law or statute in conflict with this provision will be unconstitutional. [27] The principle of legitimate or reasonable expectation has been overtaken by the aforesaid general principle in art 18, but remains a specific concept which can and should be used as a tool in the implementation of the aforesaid wide and undefined principle of acting fairly and reasonably. The same applies to the principle of the common law discussed above, that the audi alteram partem rule should be applied when an administrative tribunal or official is privy to information of which an applicant would probably not have knowledge. The concept also applies when the

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administrative institution or official adopts a new policy of which the applicant is unaware. Notes 1. The facts of this case [28] are set out briefly in Case [7]. 2. The Supreme Court approved the doctrine of legitimate expectation, which had been recognised by the High Court in Westair Aviation (Pty) v Namibia Airports Co Ltd 2001 NR 256 (HC). 3. The doctrine of legitimate expectation and the audi alteram partem principle are aspects of the duty to act fairly. 4. This ground of review may be put forth when the decision-maker failed to apply the audi rule in situations where reason alone or reason and practice dictate that a party ought to be heard. The expectations are capable of including expectations that go beyond enforceable legal rights, so long as they have some reasonable basis. 5. Legitimate expectation may take many forms. It may be an expectation of prior consultation before a decision is made. Another form may be an expectation of being allowed time to make representations before a decision is made. B. Cases

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[29] BTR Industries South Africa (Pty) Ltd & Others v Metal and Allied Workers’ Union & Another 1992 (3) SA 673 (A) Hoexter JA (Milne JA, Kumleben JA, Grosskopf JA, and Goldstone JA concurring): … The review proceedings came before Didcott J. The argument addressed to the Court a quo fell into two main compartments. They are conveniently summarised thus in the judgment of Didcott J: The one I shall call the recusal compartment. The other is that huge compartment that encompasses what I shall call the merits of the case.

…

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Against the background of the facts sketched above it is convenient to deal with the merits of the appeal before us by considering (a) the precise nature of the complaint levelled by MAWU against the second appellant in support of the application for his recusal at the trial; (b) what legal principles govern an application for recusal of such a nature; and (c) whether, in the light of the relevant legal principles, the Court a quo came to the correct conclusion on the facts before it. Each inquiry will be dealt with in turn. (a) The nature of MAWU’s complaint against the second appellant In South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T) the judgment of the Full Court was delivered by Joubert J. The history of the exceptio suspecti judicis is there traced from Roman times to modern South African law.

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… In the light of these authorities it is clear that the complaint on which MAWU relied in seeking the recusal of the second appellant belongs to a category well recognised by our common law. The suspicion of bias assailing the minds of the members of MAWU was simply that, in all the circumstances of the case, by attending and addressing the seminar held on 26 May 1987, the second appellant had so associated himself with one of the parties to the trial being heard by him as reasonably to create an impression of a leaning or inclination on his part towards one side in the dispute; an impression of a predisposition to favour one of two opposing viewpoints. Manifestly that was the causa suspiciendi. By way of practical illustration there may be used the following example cited by counsel for the respondents of a situation which might arise during the proceedings at the seminar. It was said that during a break for lunch or tea, and in the hearing of the second appellant, a delegate could make a pointed remark bearing upon the very issues in the IC proceedings over which the second appellant was then presiding; and that, albeit subconsciously, he could be influenced thereby. There is no evidence to indicate the tenor of the informal discussions at the seminar to which the second appellant might have been privy, and the example is a purely speculative one. It seems to me, nevertheless, that an outsider with knowledge of the nature of the seminar and the second appellant’s participation therein might not unreasonably harbour the suspicion of the occurrence of some such incident.

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(b) The relevant legal principles Neither at the trial nor during the review proceedings in the Court a quo was it suggested by counsel for MAWU that the second appellant had displayed actual bias in the sense that he had approached the issues before him with a mind which was in fact prejudiced or not open to conviction. Any such allegation was specifically disavowed. This case is concerned, not with actual bias, but with the outward appearance of bias. For present purposes there may be adopted the definition of ‘bias’ stated in the House of Lords by Lord Thankerton in Franklin v Minister of Town and Country Planning [1948] AC 87 (HL), at 103. It was there said that the proper significance of the word … is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office …

For many years the decisions of the Courts, both in South Africa and in England have reflected a difference of judicial opinion in regard to the proper test to be applied in recusal cases involving the appearance of bias. In R v Liverpool City Justices: Ex parte Topping [1983] 1 All ER 490 (QB) the problem is thus succinctly stated (at 494e–f) by Ackner LJ:

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Must there appear to be a real likelihood of bias? Or is it enough if there appears to be a reasonable suspicion of bias?

A moment’s reflection must show, so I consider, that these two tests involve very different criteria. The essential connotation of the word ‘likelihood’ is that of probability. In the present context the word signifies that there is a stronger than 50 per cent prospect that the contemplated state of affairs will eventuate. The phrase ‘real likelihood’ reinforces that meaning. On the other hand, the criterion of a ‘reasonable suspicion’ necessarily imports a less exacting test. In Duncan v Minister of Law and Order 1986 (2) SA 805 (A) this Court (at 819H–I) approved the following remarks by Lord Devlin in Shaaban Bin Hussien & Others v Chong Fook Kam & Another [1969] 3 All ER 1626 (PC), at 1630: Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect, but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. [See, further, Francis George Hill Family Trust v South African Reserve Bank & Others 1990 (3) SA 704 (T), at 711F–G.]

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Notwithstanding these logical considerations, the inherent difference between the two tests has not always been observed by the Courts. A discussion of this problem is to be found in a recent judgment of a Full Court (Friedman, Howie and Conradie JJ) of the Cape Provincial Division in Mönnig & Others v Council of Review & Others 1989 (4) SA 866 (C). This judgment (to which reference will hereafter be made as ‘the Full Court judgment’) was delivered by Conradie J. The confusion in judicial thought betrayed by a failure to distinguish between the ‘real likelihood of actual bias’ test on the one hand and the ‘reasonable suspicion of bias’ test on the other hand is summarised by Conradie J (at 877H) in the following words: Both in England and in South Africa these two tests for bias were sometimes clearly perceived by the Courts to be essentially different, sometimes dimly perceived to be different and sometimes thought to be reconcilable and thus not essentially different at all.

I am unable to improve upon the instructive review undertaken (at 876B–879G) by Conradie J in which the South African and the English decisions in point are subjected to critical analysis. Suffice it to record my general agreement with the comments of the learned Judge; and, more in particular, to indicate my respectful endorsement of his view that the oft-quoted passage from the judgment of Lord Denning in Metropolitan Properties Co (FGC) Ltd v Lannon & Others [1968] 3 All ER 304 (CA), at 310A–D; [1969] 1 QB 577 (which passage is cited at 878A–C of the Full Court judgment):

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… [It] mixes up terminology appropriate to the ‘real likelihood of bias in fact’ test with that usually employed in expressing the ‘reasonable suspicion’ test.

It is necessary, however, to set forth at some length the conclusion to which Conradie J was impelled by his survey of the authorities (at 878H–879E): Baxter, Administrative Law, at 56092 suggests that the ‘real likelihood’ element of the test is ‘a qualification designed to exclude fanciful suspicions …’, and that the test for South African law could be formulated as follows: Disqualifying bias will be found to exist where the reasonable lay observer would gain the impression that there is a real likelihood that the decision maker will be biased.

92 Op cit.

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I do not believe that this test correctly states the present South African law. Our Courts have not, in the last 20 years or so, regarded it as necessary for disqualifying bias to exist that a reasonable observer should suspect that there was a real likelihood of bias; provided the suspicion is one which might reasonably be entertained, the possibility of bias where none is to be expected serves to disqualify the decision maker. Rumpff CJ in S v Radebe 1973 (1) SA 796 (A), at 812A was content to adopt Lord Denning’s formulation of the test for bias as correctly stating the English law. He did not, as I read the judgment, approve that formulation for South African law. The learned Chief Justice’s investigation into the Roman-Dutch law of recusal shows that system to be free from the semantic difficulty created by the ‘real likelihood’ formulation or the ‘reasonable suspicion’ test: a Judge should recuse himself if there is reason to fear partiality on his part (at 812B–C). … Our Courts have not in recent times applied the ‘real likelihood of bias’ test. Since Lannon’s case was decided, the passage from Lord Denning’s judgment which I have cited above has been quoted in South African Courts with approval; but it is the expression of policy therein which our Courts have approved, not the formulation of test in terms of a ‘real likelihood of bias …’. [The reference to Mr Justice Rumpff in connection with the Radebe judgment should read ‘Rumpff JA’.] In due course the Full Court judgment came before this Court on appeal. The judgment of this Court (‘the AD judgment’) was delivered on 15  May 1992 by Corbett CJ  …  Certain passages in the AD judgment bear directly on the issue hereunder discussed. In order to put them in perspective a brief summary of the essential facts in that case as well as of the ratio of the Full Court judgment is necessary. … For present purposes the reasoning adopted by the Full Court appears sufficiently from the following three passages in the judgment of Conradie J. At 880E–G the learned Judge said: Since the appearance of impartiality has to do with the public perception of the administration of justice, it is only to be expected that some tribunals will be more vulnerable to suspicion of bias than others. The most vulnerable, I venture to suggest, are tribunals – other than courts of law – which have all the attributes of a court of law and are expected by the public to behave exactly as a court of law does. The court martial is, of course, such a tribunal. In fact it is the only tribunal

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I know of, apart from a court of law, which is competent to impose criminal sanctions. It is, to all intents and purposes, a court which may be presided over by laymen.

Having outlined the accused’s defence, Conradie J remarked (at 881D–E): What would an informed independent observer – or a litigant himself – reasonably think about the impartiality of the court martial? I consider that such an observer would think to himself that the tribunal – composed as it was of high-ranking senior SADF officers – was being placed in an intolerable situation. It was being asked to pronounce upon the propriety of a highly sensitive project, which had been initiated and was being directed by top Defence Force officers (among them the second respondent).

And again at 881H–I: Moreover, bias is not only conscious but also subconscious, and in my view a reasonable person in the position of second applicant could reasonably have thought that the risk of an unfair determination on an issue such as this was unacceptably high.

The appeal against the Full Court judgment was dismissed with costs by this Court. Of significance in the determination of the issue now under discussion are the following passages in the judgment of Corbett CJ at 14–16 of the typewritten judgment:

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In S v Malindi & Others 1990 (1) SA 962 (A), at 969G–I, this Court summed up the rule as to recusal, as applied to a judicial officer, as follows: The common-law basis of the duty of a judicial officer in certain circumstances to recuse himself was fully examined in the cases of S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T). Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important. It may be that this formulation requires some elucidation, particularly in regard to the meaning of the word ‘likelihood’: whether it postulates a probability or a mere possibility. Conceivably it is more accurate to speak of ‘a reasonable suspicion of

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bias’. Suspicion, in this context, includes the idea of the mere possibility of the existence, present or future, of some state of affairs (The Oxford English Dictionary sv ‘suspicion’ and ‘suspect’93); but before the suspicion can constitute a ground for recusal it must be founded on reasonable grounds. It is not necessary, however, to finally decide these matters for, whatever the correct formulation may be, I am satisfied that the Court a quo was correct in holding that the court martial did not pose the correct test when deciding the recusal issue (see reported judgment at 875J–876B); and that the circumstances were such that a reasonable person in the position of second respondent could reasonably have thought that: …  the risk of an unfair determination on an issue such as this was unacceptably high. [See reported judgment at 881H–I.]

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As will appear from what is said under the last heading in this judgment, on my view of the facts it is necessary for the purposes of this appeal to decide what the proper formulation of the test is for disqualifying bias. For the reasons which follow I conclude that in our law the existence of a reasonable suspicion of bias satisfies the test; and that an apprehension of a real likelihood that the decision maker will be biased is not a prerequisite for disqualifying bias. In my opinion the statement in the Full Court judgment (at 879A–B) that …  provided the suspicion is one which might reasonably be entertained, the possibility of bias where none is to be expected serves to disqualify the decision maker … And fairly reflects the recent trend in South African judicial thought, and I would approve it. It seems to me further that the test so enunciated is logical and fully in accord with sound legal policy. I consider that those very objects which the ‘reasonable suspicion test’ is calculated to achieve are frustrated by grafting onto it the further requirement that the probability of partiality must be foreseen. A cogent argument against the ‘nested test’ propounded by Baxter, Administrative Law, at 560 is advanced by E Mureinik in a note (1989 Annual Survey of SA Law 494, at pp 504–505)94 on the Full Court judgment. The learned author writes: To investigate the probability of bias, even though governed by the requirement of reasonable apprehension, would take the Courts back into

93 Oxford English Dictionary (Eleventh edition) (2008). Oxford: Oxford University Press. 94 Baxter op cit; E Mureinik (1989) ‘Administrative Law’. Annual Survey of South African Law. Cape Town: Juta & Co, pp 494–535.

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the kind of speculative inquiries that the focus on appearance is calculated to obviate. If the party challenging the decision-maker claims to have a reasonable apprehension of bias, the question arises, under the nested test, whether the bias apprehended is merely possible or really probable. To answer that question may well take the Court directly into the mind of the decision-maker, and compel it to make judgments about his or her probity, and his or her willingness and ability to exclude the influence of interest or prejudice from the operative thought processes. These are precisely the kinds of judgments that an appearance-orientated approach is designed, and wisely designed, to spare the Court. If the point of the nested test is to exclude trivial objections that are achieved perfectly adequately in the reasonable apprehension test by the requirement of reasonableness.

As a matter of policy it is important that the public should have confidence in the Courts. Upon this social order and security depend. In R v Chondi & Another 1933 OPD 267 Krause JP made the following observations (at 271) which in this country are as pertinent now as they were some 60 years ago:

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It is a matter of the gravest public policy that the impartiality of the Courts of Justice should not be doubted, or that the fairness of a trial should not be questioned; otherwise, the only bulwark of the liberty of the subject, in these times of revolutionary tendencies, would be undermined.

It is the right of the public to have their cases decided by persons who are free not only from fear but also from favour. In the end the only guarantee of impartiality on the part of the courts is conspicuous impartiality. To insist upon the appearance of a real likelihood of bias would, I think, cut at the very root of the principle, deeply embedded in our law, that justice must be seen to be done. It would impede rather than advance the due administration of justice. It is a hallowed maxim that if a judicial officer has any interest in the outcome of the matter before him (save an interest so clearly trivial in nature as to be disregarded under the de minimis principle) he is disqualified, no matter how small the interest may be. See in this regard the remarks of Lush J in Sergeant & Others v Dale (1877) 2 QBD 558, at 567. The law does not seek, in such a case, to measure the amount of his interest. I venture to suggest that the matter stands no differently with regard to the apprehension of bias by a lay litigant. Provided the suspicion of partiality is one which might reasonably be entertained by a lay litigant a reviewing Court cannot, so considered, be called upon to measure in a nice balance the precise extent of the apparent risk. If suspicion is reasonably apprehended, then that is an end to

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the matter. I find myself in complete agreement with what was forcibly stated by Edmund Davies LJ in the Metropolitan Properties case supra, at 314C–D: With profound respect to those who have propounded the ‘real likelihood’ test, I take the view that the requirement that justice must manifestly be done operates with undiminished force in cases where bias is alleged, and that any development which appears to emasculate that requirement should be strongly resisted.

…

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Notes 1. The case concerns the issue of the recusal of a decision-maker on grounds of appearance of bias. The Court held that applicant for recusal is required to show existence of reasonable suspicion of bias on the part of the decisionmaker and that the real likelihood of bias is not a prerequisite for disqualifying bias. Furthermore, an application for recusal requires objective scrutiny of evidence. A court ought not to apply the test of bias in vacuo. The notion of the reasonable man ought to be envisaged in circumstances of the complainant who has charged bias on the part of the decision-maker; and the notion of the reasonable man cannot vary according to individual idiosyncrasies, superstitions, or intelligence of particular complainants. 2. The rule against bias is the other rule of natural justice; yet another is the audi alteram partem rule [22], and it is therefore connected to the duty to act fairly [21]; [23]. 3. Disqualifying bias is proved where there is a reasonable suspicion of bias. The existence of a reasonable suspicion of bias satisfies the test, that is, provided the suspicion is one which might reasonably be entertained, the possibility of bias where none is to be expected serves to disqualify the decision-maker. 4. The English test of apprehension of a real likelihood that the decision-maker will be biased is not a prerequisite for disqualifying bias. Thus, the courts have not applied the ‘real likelihood of bias’ test in Nambian law. Accordingly, the rule requires a decision-maker to be actually unbiased. Furthermore, the rule prescribes that there should not be any reasonable suspicion of bias. 5. The test involves the legal fiction of a ‘reasonable man’ or a ‘reasonable woman’.

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B. Cases

[3 0] Chairperson, Council of the Municipality of Windhoek, & Others v Roland & Others 2014 (1) NR 247 (SC) O’Regan AJA (Strydom AJA and Chomba AJA concurring): … [50] The question that now arises is whether, given that the council erred in its construction of clause 21(3), it is appropriate for that decision to be set aside on review. The error lay in the town planning officer’s assertion that addressing the question posed by clause 21(3) – whether a building comprised more than two storeys – required him to apply the definitions in reg 29B of the Building Regulations.

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[51] The question whether an error of law is reviewable has been a contested and vexed one, not only in southern Africa but also throughout the Commonwealth. In South Africa it was considered for many years that an error of law would not render a decision reviewable unless the error went to the jurisdiction of the administrator. That changed in Hira & Another v Booysen & Another, where Corbett CJ adopted a different, more nuanced approach. But that approach, too, has to some extent been overtaken by constitutional developments in both South Africa and Namibia. [52] In determining the circumstances in which an error of law will render a decision reviewable, the starting point in Namibia must now be art  18 of the Constitution, which provides that: Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

[53] Article 18 imposes an obligation upon administrative officials to comply with the requirements of relevant legislation. Material non-compliance with governing legislation will thus often ground a cause of action for an aggrieved person. When courts consider such review applications, however, they must acknowledge that

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legislative provisions are often capable of bearing more than one meaning. In deciding whether a meaning adopted by an administrative official or body that has interpreted a legislative provision, is the proper meaning of the provision, a court should take into account the following considerations: (a) the text and context of the legislative provision, (b) its range of possible meanings, (c) the materiality of the interpretation of the provision to the decision taken and to the interests of the aggrieved applicant, (d) the nature of the administrative power conferred upon the decision-maker, (e) the nature and character of the decision-maker, and (f) whether the legislative scheme implies that respect should be paid to the interpretation adopted by the administrative decision-maker.

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[54] In this case, the relevant legislative text is clause 21(3). Its language is relatively clear. It provides that in an area zoned ‘residential’, a building may not have more than two storeys unless the council authorises additional storeys after considering certain stipulated criteria. The council is the administrative body tasked with the implementation of clause  21(3) and the scheme generally. In this case, the town planning officer, and consequently the council, interpreted clause 21(3) (as described above) in a manner not consistent with its language, by reliance on a definition in a different set of regulations that expressly curtailed the application of that definition to the clause within which it appeared. [55] A court will ordinarily pay respect to the interpretation of legislative provisions by experienced and skilled town planners in their field of expertise but there are limits to the respect that will be paid. A town planning scheme creates rights and obligations in landowners in the area of the scheme and landowners are entitled to expect that the ordinary language of the scheme will be implemented by the officials responsible for its implementation. The meaning attached to clause 21(3) by the council is so at odds with the ordinary meaning of the provision that it would not be appropriate for a court to respect that interpretation. Accordingly it cannot be accepted. Respondents’ submissions that clause 21(3) was of application to the third appellant’s building plans must be upheld, and the consequence is that the building plans were not passed consistently with the requirements of clause 21(3). [56] In this regard, one more comment should be added. It was submitted on behalf of first and second appellants that the High Court erred in purporting to ‘read in’ the word ‘any’ to reg 29B(1)(c) of the Building Regulations. It is clear from what has gone before that reg 29B(1)(c) should not have been relied upon at all in

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order to determine whether the building plans in question were consistent with clause 21(3) of the scheme. Accordingly, the High Court erred in its assumption that reg 29B did govern the meaning of clause 21(3). … What is the relevance, if any, of reg 29B(6) to the approval of the building plans? [58] First and second appellants also argued that reg  29B(6) of the Building Regulations was of application to this case. Regulation 29B(6) provides that:

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In any dispute in connection with the position of the ground level the decision of the Council shall be decisive.

[59] It was argued that reg 29B(6) affords the council the final say in the determination of what constitutes a ground level, and that a court should accordingly defer to the council on this question. Regulation 29B(6), however, like reg 29B(1), is concerned with the question of the ‘coverage’ of a building. Regulation 29B provides rules for determining the ‘coverage’ of a building, and one of the determining considerations is the ‘ground level’ on any erf. The dispute in this case does not concern ‘coverage’, nor does it concern the ‘ground level’ of the erf, it concerns the question of the permissible number of storeys of a building. Whatever the precise import of reg  29B(6), therefore, it cannot materially affect the proper interpretation of clause 21(3) of the scheme and the question whether the building plans lodged by the third appellant in this case were consistent with clause 21(3). The scheme does not import the definitions or provisions of the Building Regulations, which accordingly cannot be used to determine the meaning of clause 21(3). This argument of the first and second appellants accordingly cannot be accepted. Did the council decision of 30 November 2011 cure any defect in the earlier decision to approve the building plans? [60] As set out above in paras 8–11, after the High Court had granted an interim interdict restraining the continuation of the construction of the building on third appellant’s erf, but before the review application had been argued, the council placed an advertisement in a newspaper calling attention to the council’s approval of the third appellant’s building plans. The advertisement stated that the City intended to ‘reconsider’ the application, stated that the plans were open for inspection, and called upon anyone who objected to the building to lodge an objection in writing within 14 days of the publication of the advertisement.

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[61] On 30  November 2011, the council adopted a resolution that ‘supported’ the development, ‘condoned’ the approval of the building plans, and approved the height of the building as posing no danger, threat or negative effect to the adjacent neighbours and those across the street. The council resolution also stated that clause 21(3) of the scheme was not applicable to the relevant building and stated that aggrieved objectors could lodge an appeal to the Ministry of Regional and Local Government, Housing and Rural Development within 28 days of being notified of the resolution. [62] Although first and second appellants did not suggest that this ‘reconsideration’ by council was sufficient to address any defects in the original decision, it was argued on behalf of third appellant that this ‘reconsideration’ did indeed address any earlier defect. In this regard, it should be noted that the ‘reconsideration’, like the earlier decision of the council in approving the plans, was mistakenly based on the conclusion that the building plans related to a building containing only two storeys, and that, therefore, clause 21(3) had no application to the building plans in question. It is clear from what has gone before that the ‘reconsideration’ by council was thus vitiated by the same error of law that had marred the earlier decision to approve the building plans. … [64] Given that none of the arguments raised by appellants have been successful, it follows that the appeal must fail.

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Notes 1. When first three respondents noticed that the construction on their neighbour’s (third appellant’s) property was going to exceed the two-storey limit prescribed by clause 21(3) of the town planning scheme, they applied to the High Court on an urgent basis for an order halting further construction on the site. The Court granted the order. Shortly after the order was granted, second appellant (the municipality) published a notice indicating that it was going to reconsider the building plans in respect of the property in the light of the confusion as to whether the plans provided for a two- or a three-storey building. The property in question was situated on a steep slope and was bounded by three different roads. The lowest storey was sometimes well below the adjoining pavement and at other times not. Respondents contended that the building plans provided for a three-storey building but appellants contended that the lower level was in fact a basement storey. At its

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2.

3. 4.

5.

council meeting at the end of that month the municipality ‘condoned’ the approval of the plans and stated that clause 21(3) was not applicable to the property. On the return day of the application, appellants contended that reg 29B(1)(c) of the Municipality of Windhoek Building Regulations provided the definition of ‘a ground storey’. Appellants contended that in terms of that regulation, no storey of which the upper surface of the floor was more than four feet below the level of the adjoining pavement would be considered a ground storey. The High Court held that it needed to ‘read into’ reg 29B(1)(c) the word ‘any’ so that the building was a three-storey building. The Court accordingly set aside the approval of the building plans. On appeal, the main question that arose was whether an error of law was reviewable in Namibia. The Court held that the starting point was art  18 of the Constitution, which imposed an obligation upon administrative officials to comply with the requirements of relevant legislation. A court would ordinarily pay respect to the interpretation of legislative provisions by experienced and skilled town planners in their field of expertise, but there were limits to the respect that would be paid. The meaning attached to clause 21(3) by the municipality was so at odds with the ordinary meaning of the provision that it would not be appropriate for a court to respect that interpretation. The consequence was that the building plans did not comply with the requirements of clause 21(3). The council’s decision was vitiated by an error of law and, accordingly, reviewable.

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B. Cases

[31] Compania Romana de Pescuit (SA) v Rosteve Fishing 2002 NR 297 (HC) Maritz J: … The Rules of Court contemplate that process of court must be signed either by a litigant personally or by his/her/its counsel. That much is apparent from the forms prescribed by the Rules. So, for instance, Rule 6(5)(a) stipulates that ‘every

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application ... shall be brought on notice of motion as near as may be in accordance with Form 2(b) of the First Schedule  ...’. Form 2(b) expressly provides for the signature of the ‘applicant or his or her counsel’. ... It is with these considerations and provisions in mind that one must assess the legal effect, if any, of the ‘Notice of Application’ that Dickenson issued in the name of the applicant ….

The language used in the section is of an imperative nature. As Van den Heever JA remarked in Messenger of the Magistrate’s Court, Durban v Pillay 1952 (3) SA 678 (A), at 683D–E with reference to the use of the word ‘shall’ in an enactment: If a statutory command is couched in such peremptory terms it is a strong indication, in the absence of considerations pointing to another conclusion, that the issuer of the command intended disobedience to be visited with nullity.

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Limited semantic support for that inference may also be found in the negative or prohibitory form in which the provision has been couched (see Sutter v Scheepers 1932 AD 165, at 173). The legislative purpose behind the section is clear: it seeks to protect the public against charlatans masquerading as legal practitioners who seek to prey on the misery and money of its members; it serves the public interest by creating an identifiable and regulated pool of fit, proper and qualified professionals to render services of a legal nature and it is aimed at protecting, maintaining and enhancing the integrity and effectiveness of the legal profession, the judicial process and the administration of justice in general. … Given the compelling policy considerations behind s 21(1) of the Legal Practitioners Act 15 of 1995 and the formulation, scope and object of the section, I am of the view that the legislature intends that if a person, other than a legal practitioner, issues out any process or commences or carries on any proceeding in a court of law in the name or on behalf of another person, such process or proceedings will be void ab initio. The view I have taken corresponds with the rules of practice in this Court. Any ‘looseness’ in the enforcement of the well-established practice and of the Rules of Court in that regard is likely to bring the administration of justice into disrepute, erode the Court’s authority over its officers and detrimentally affect the standard of litigation.

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… Notes

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1. Applicant filed a ‘notice of application’ signed by one D. It appeared that D was not a legal practitioner admitted to practise in terms of the Legal Practitioners Act, 1995 (Act No 15 of 1995). The respondents raised a point in limine to the effect that the notice was null and void. The Court observed that the Rules of Court contemplated that process of Court must be signed either by a litigant personally or by their counsel. That much was apparent from the forms prescribed by the rules. For instance, rule  6(5)(a) stipulated that ‘every application ... shall be brought on notice of motion as near as may be in accordance with Form 2(b) of the First Schedule …’. Form 2(b) expressly provided for the signature of the ‘applicant or his or her counsel’. 2. In interpreting a statutory provision, the primary task of the court is to find the intention of the legislature, and the intention can be gathered from the wording of the particular legislation (Wildlife Ranching Namibia v Minister of Environment and Tourism [2016] NAHCMD 110 (13 April 2016)). 3. In that regard, in this landmark case [31], the Court propounded the principle that when considering a statutory provision that appears to be couched in peremptory terms, it is important to have regard to the intention of the legislature. It is the intention of the legislature, not merely the use of the word ‘may’ or ‘shall’, that determines whether that statutory provision is pre-emptory or directory (or permissive).

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5 K EY ASPEC TS I N PROCEEDI NGS C ONC E R N I NG T H E R E M E DY OF J U DICI A L R EV IEW OF A DM I N I S T R AT I V E AC T IO N BY A DM I N I S T R AT I V E B ODI E S A N D OFFICI A L S

5.1 Procedure in terms of Rules of the High Court

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A. Text In terms of Namibia’s rule of practice, an applicant for judicial review of administrative action by administrative bodies and officials must institute proceedings in terms of, without any allowance, rule 76 of the Rules of the High Court. In that event, applicant may wish to attack an administrative action by judicial review and at the same time seek an interim interdict to stay the implementation of the administrative action in question pending the finalization of the review application. In such a situation, applicant will do well to institute in the same notice of motion a review application in terms of rule 76 and an application for a temporary interdict under rule 65 in which they pray the Court to hear the application for interim relief based on urgency in terms of rule 77. If that application succeeds, the Court will order the status quo to remain undisturbed pending the finalisation of the review application under rule 76. The respondent who wishes to oppose such review application must proceed in terms of rule 77 of the Rules of the High Court. They may also oppose the urgent application and urge the Court not to hear the matter on urgent basis. The practice by which applicants divide a notice of motion for judicial review into two parts has become commonplace; that is, they divide the notice of motion 219

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into Parts A and B, where in Part A applicant prays for an interim interdictory order pending finalisation of the review application in Part B. Damaseb JP put it in this way about the practice: It is a common practice in this court for a party who feels aggrieved by administrative decision-making and desires immediate relief to protect its ‘immediate interest’ while intending to have such decision-making reviewed and set aside to seek an urgent interdict pendente lite.1

There are important aspects that are relevant to the institution of judicial review applications. I have treated the key aspects in the present chapter. They are: (1) locus standi (ie standing of applicant); (2) delay in instituting motion proceedings, which I have discussed under two heads, namely: (a) where there is a statutory time limit within which to institute proceedings, and (b) where there is no such statutory time limit within which to institute proceedings;

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(3) the mandatory requirement that an applicant must cite as respondent the correct administrative body or official whose administrative action is sought to be attacked by judicial review; (4) the need – at times – to obtain a record of the decision-making process, if there is one, for the purpose of preparing and filing papers with the Court; and (5) exhaustion of statutory domestic remedies before one approaches the Court for relief.

1

Kleynhans v Chairperson of the Council of the Municipality 2011 (2) NR 437 (HC), para 56.

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B. Cases

[32] Namibia Financial Exchange (Pty) Ltd v The Chief Executive Officer of the Namibia Institutions Supervisory Authority and Registrar of Stock Exchanges 2017 NR (1) 142 (HC) Parker AJ:

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[1] Before us is a rule 61 application in which the following order is sought: (a) That the application brought by the applicant under Case No 2016/00233 constitutes an irregular proceeding as envisaged in terms of rule 61 read with [rules] 76 and 77 of the Rules of this Honourable Court; (b) That the purported application be struck and set aside; (c) In the alternative to prayer 2, that the applicant be ordered to amend its notice of motion to comply with rule 76 read with 77 of the Rules of this Honourable Court; (d) That the applicant be ordered to pay the costs of this application; and (e) Further and/or alternative relief. [2] The rule 61 application arises from an application under Case No 2016/00233 (main application) brought by Namibia Financial Exchange (Pty) Ltd (NFE) (as applicant) to review certain decision of the Chief Executive Officer of the Namibian Financial Institutions Supervisory Authority and Registrar of Stock Exchanges (CEO & Registrar) (first respondent). The Namibia Financial Institutions Supervisory Authority (NAMFISA) is the second respondent. There are other public authorities cited as third to fifth respondents. [3] The rule 61 application has been instituted by the CEO & Registrar (first respondent) and NAMFISA (second respondent), and are represented by Mr Coleman (with him Ms Bassingthwaighte). NFE (applicant) has moved to reject the rule 61 application, and is represented by Mr Maleka SC. To avoid confusion and for the sake of clarity, I shall refer to the parties as they are cited in the main application.

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[4] Despite the fact that the application was argued extensively and a bevy of authorities were thrown at the court, the determination of the rule 61 application – as usual – turns on a very short and narrow compass. In the instant case it turns solely on the interpretation and application of rule 76(1) of the Rules of Court.

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[5] It must be remembered; after all, what the applicant seeks to do is to attack an administrative action of an administrative body and official. The important issue that arises in the application of rule 76 may be explained with the following illustration. X, an applicant aggrieved by administrative action of an administrative body or official, wishes to attack that action by judicial review in order to vindicate his rights. Has X the choice to institute proceedings under either (a) rule 65 or (b) rule 76 of the rules of court? In other words, is X restricted to proceed under rule 76, so that if X instituted proceedings under rule 65, as the applicant has done in the instant proceeding, then X’s application was doomed to fail at the starting blocks, rendering it a nullity? That is the contention of the first and second respondents in the instant proceeding. [6] In order to answer the question, it is important to start from the basics, that is, the interpretation of rule 76(1), while at the same time keeping in my mind’s eye rule 65. While rule 65 is entitled ‘Applications’, which means it regulates all applications. [Emphasis added] Rule 76 is entitled ‘Review application’, which means it concerns only review applications. In order to interpret rule 76(1) one ought to start from identifying the intention of the rule maker in making rules for ‘every application’ (rule 65) and at the same time making separate rules specifically for ‘all proceedings to bring under review the decision or proceedings of an … administrative body or administration official’. And it must be remembered that the intention of the rule maker can be gathered from only the words of the rule itself, ie rule 76. See Wildlife Ranching Namibia v Minister of Environment and Tourism (A86/2016) [2016] NAHCMD 110 (13 April 2016), para 12. And in Compania Romana de Pescuit (SA) v Rosteve Fishing 2002 NR 297 (HC), at 301H–I Maritz J put forth the following insightful proposition of law regarding when a statutory provision should be considered as peremptory or directory (ie permissive): The general rule notwithstanding, a Court cannot decide the legal status of such an Act simply by reference to the ‘peremptory’ or ‘directory’ labels that may be attached to the legislative formulation of the enactment. It is compelled in every instance to seek the intention of the Legislature in the ‘language scope and purpose of the enactment as a whole’ (per Trollip JA in Nkisimane & Others v

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Santam Insurance Co Ltd 1978 (2) SA 430 (A), at 434A. Compare also Standard Bank v Estate Van Rhyn 1925 AD 266, at 274).

[7] The ‘general rule’ Maritz J mentioned is the rule that when ‘must’, ‘shall’ or words to that effect are used in legislation, the provision is considered peremptory, and when ‘may’ is used, the provision is considered to be directory or permissive. [8] In rule 76(1) neither ‘must’ and ‘shall’ nor ‘may’ is used. The verb ‘are’ is used rather in the main clause ‘All proceedings … are by way of …’. ‘“All” is frequently used unnecessarily to give a spurious kind of emphasis’. (GC Thornton (1987). Legislative Drafting (Third edition), London: Butterworths, p 86.)

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[9] I have given the words in the main clause ‘All proceedings  …  are by way of ’ ‘their literal meaning, but literal meaning in total context’ (see Rally for Democracy and Progress v Electoral Commission 2009 (2) NR 79, at para 9). I have also considered the intention of the rule maker as discussed previously, I have also taken into account the canon of construction of statutes that in interpreting statutory provisions ‘regard should be had to the enactment’s “other text”’. (Laurens M du Plessis (1986). The Interpretation of Statutes. Durban: Butterworths, para 17.3.2, pp  37–38.) I have, accordingly, read rule 76(1) intertextually with rule 65 on applications in general, rule 79 on applications in terms of POCA (ie Prevention of Organized Crime Act, 2004 (Act No 29 of 2004)) and rule 78 on election applications. Having done all that, I conclude that the language used in rule 76(1) ‘is of an imperative nature’. (Compania Romana de Pescuit (SA) v Rosteve Fishing 2002 NR 297 (HC) at 301I.) [10] The purpose behind rule 76(1) is clear, if regard is had to rule 65, rule 78 and rule 79. It seeks to delineate separate procedures for the various forms of applications which come before the High Court, and has decided to make separate rules for the different forms of applications; and in that behalf, the rule maker has made rules for (a) every application other than a review application (b) an election application, and (c) an application under POCA, for example. To bring (a), (b) and (c) applications under rule 65 would undoubtedly go against the intention of the rule maker and defeat the purpose of making separate rules for the different forms of applications that come before the court. That could never have been the intention of the rule maker. It should be remembered that the contents of the separate rules for the separate forms of applications are carefully crafted so as to take into account the nature, scope and purpose of a specified form of application that comes to the

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court. Ueitele J put it this way in Inspector General of Namibia Police & Another v Dausab-Tjiueza 2015 (3) NR 720 (HC), para 19: ‘… The differences between rule 65 and rule 76 are not simply incidental and minor; they are diverse and substantial.’ Another crucial consideration we must not overlook is that rule 76(1), in material part and for our present purposes, concerns all proceedings ‘to bring under review the decisions or proceedings of an administrative body or an administrative official’, that is, every judicial review.

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[11] Having sought and identified the intention of the rule maker ‘in the language, scope and purpose’ of rule 76(1), read with the relevant parts of the rules as a whole (see Compania Romana de Pescuit (SA) v Rosteve Fishing 2002 NR 297, at 301H–I; and Du Plessis op cit, p 127), it is clear that there is a strong indication – in the absence of any considerations pointing to a contrary conclusion – that the maker of rule 76(1) ‘intended disobedience to be visited with nullity’. [12] We should not lose sight of the fact that while the chapeau of rule 53 of the repealed rules is equivalent to the chapeau of subrule (1) of rule 76 and subrule (1) of rule 6 of repealed rules is equivalent to subrule (1) of rule 65, there is no rule in the repealed rules which is equivalent to rule 78 and 79, standing apart from rule 6. The rule maker of rule 53 may not have intended to restrict an applicant seeking review to rule 53. But where the rule maker of the present rules of court has gone to great lengths to provide separate rules for certain separate forms of applications, eg review of administrative action of administrative bodies and officials, it would be wrong to paint rule 53 (of the repealed rules of court) and rule 76 (of the present rules of court) with the same brush and treat them as equivalent in their interpretation and application. [13] Based on these reasons, it is held that the South African authorities, textual and case law, which deal with the interpretation and application of rule 53(1), and which is equivalent textually to rule 53(1) of the repealed Namibia’s rules of court, cannot be of assistance on the point under consideration. [14] Ueitele J held in Inspector General of the Namibian Police & Another v DausabTjiueza that the proceeding brought under rule 65 procedure to review the decision of the Inspector General of the Namibian Police by the applicant was irregular. On the principle of stare decisis, that decision binds me unless I am satisfied that Dausab-Tjiueza was wrongly decided. (GE Devenish, Interpretation of Statutes.

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2nd ed, 2nd imp (1996), p 273.)2 Indeed, as I have said, Dausab-Tjiueza supports the holding I have made in the instant proceeding. In my judgment, therefore, rule 76(1) should be understood to be prescribing in peremptory terms that every application to review the administrative action of an administrative body or official must be brought under rule 76, failure to do that renders the application a nullity, that is, disobedience must be visited with nullity.

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[15] I accept Mr Coleman’s submission that irregular proceedings come in different forms. Dausab-Tjiueza held that bringing the application there under rule 65 instead of rule 76 is one such form. There, Ueitele J held at para 20 that ‘the procedure adopted by the respondent to bring under rule 65 the application to review and correct or set aside the Inspector-General of the Namibia Police’s decision to transfer the respondent is irregular’. It matters tuppence that what the applicant seeks in Case No 2016/00233 is a declaratory order. One of the remedies available to an applicant for judicial review is not only the setting aside of the administrative action but also declaration, mandamus and prohibitory interdict. (RJF Gordon (1985). Judicial Review: Law and Procedure, chap 3 passim.3) The applicant did not bring proceedings under Case No 2016/00233 to vindicate some private law right: It seeks to attack an administrative action by an administrative official in the main application. [16] In sum, I hold that an application to institute judicial review must be brought under rule 76. Any such application not brought under rule 76 is a nullity. (Kameya v The Chief of Namibia Defence Force (A66/2015) [2015] NAHCMD 92 (16 April 2015).) Accordingly, I find that there has been an irregular step as Ueitele J found in Inspector General of Namibia Police & Another v Dausab-Tjiueza at para 20. Upon the authority of Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC), I must now proceed to determine if the first and second respondents are prejudiced. [17] As I see it, the prejudice the respondents have suffered is that their right to legitimate expectation that, they, being administrative bodies and officials, will be dragged to court by the vehicle of only rule 76 in the review matter, has been violated by the applicant. The manner they have been dragged to court is not in 2 3

GE Devenish (1996). Interpretation of Statutes (Second impression). Cape Town: Juta & Co. RJF Gordon (1985). Judicial Review: Law and Procedure. London: Sweet & Maxwell.

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compliance with the peremptory rule 76 of the rules governing judicial review. The respondents are denied the advantages and facilities that rule 76 – and not rule 65 – provides, as set out by Ueitele J in Dausab-Tjiueza, at para 20. In that regard, it is important to signalise the point that the respondents have not been dragged to court by the applicant on some private law cause in which the applicant seeks to vindicate some private law rights. This conclusion is crucial in all this. And what is more; the applicant has not shown any good cause, or at all, for the court to condone applicant’s non-compliance with rule 76. See China State Construction Engineering Corporation (South Africa) (Pty) Ltd v Pro Joinery CC 2000 NR 120 (HC). [18] Of the view I have taken of the rule 61 application, I should not consider the question of delay in instituting the proceedings in Case No 2016/00233. … [20] Based on these reasons the rule 61 application succeeds; whereupon, I make the following order:

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(a) The rule 61 application is granted. (b) The application under Case No 2016/00233 is struck and set aside. (c) The applicant, ie Namibia Financial Exchange (Pty) Ltd, is ordered to pay costs of the rule 61 application, and the costs shall include costs of one instructing counsel and two instructed counsel. (d) … Notes 1. Applicant in the main application instituted proceedings attacking the administrative action of an administrative official (the second respondent). Applicant instituted the application under rule 65. The Court found that that was irregular in terms of rule 61: applicant should have (without a choice) instituted proceedings under rule 76, which is crafted specially to govern specifically all judicial review applications. 2. The Court held that from the intention of the legislature identified in the language, scope and purpose of rule 76 of the Rules of the High Court, read with other relevant parts of the rules as a whole, the following were clear:

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(a) that motion proceedings to review decisions of administrative bodies and officials must – without any allowance – be brought in terms of rule 76; (b) that the maker of the rules intended disobedience to be visited with a nullity. 3. The Court held further that any South African authorities – textual or case law – that deal with the repealed rule 53(1) of South Africa’s Uniform Rules (the precursor of rule 76) – are not of any assistance in the interpretation and application of rule 76 and the fact that rule 76 is peremptory. 4. It followed that if such motion proceedings were brought under rule 65 instead of rule 76, such proceedings constituted irregular proceedings within the meaning of rule 61 of the Rules of the High Court, and stood to be struck off the Roll. 5. The court had come to a similar conclusion – although by a different analysis and reasoning – in Inspector General of the Namibian Police & Another v Dausab-Tjiueza 2015 (3) NR 720 (HC).

[33] Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay & Others 2011 (2) NR 437 (HC) Damaseb JP: Copyright © 2019. University of Namibia Press. All rights reserved.

… [48] The following is clear from the above letter: That the applicant knew two residential units were being constructed on Erf 95 contrary to the TPS; that remedial steps were required within seven days, failing which urgent interdictory relief and a mandamus were contemplated. [49] The municipality replied to the letter of 17 June 2008 on 30 June 2008 …. [50] The letter does, in my view, provide both the factual background and the legal basis (as the municipality saw it) on which the construction work on Erf 95 was taking place – the very construction work that irked the applicant and which she was determined to have stopped by means of urgent relief. What is clear in

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particular is the following: the municipality granted building plan approval to the second respondent in respect of Erf 95 that involved the construction of two dwellings initially on 30 May 2005 and renewed it on 18 March 2008. It is also clear that no ‘special consent’ was granted for the construction of the second dwelling and that the municipality took the view that it was not required. These facts form the core basis for the present review application, except for the grounds founded on the technical violations. [51] No urgent interdictory relief was sought by the applicant upon receipt of this rather detailed letter setting out, as I said, the factual and legal bases for the construction work taking place on Erf 95. If the applicant needed more information before doing so, her founding papers do not say what information and for what purpose. What the applicant also does not spell out in the founding papers is what state of progress the construction work on Erf 95 had reached at this stage. The papers are also silent on whether the second respondent was aware of the exchange of letters between the first respondent and the applicant at this stage. What we do know is that on 6 July 2008 the applicant demanded from the second respondent to cease the construction work and to give an undertaking within seven days.

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… [54] It is common cause that even at this stage the applicant did not seek any interdictory relief on an urgent basis but instead, some 16 days after the second respondent’s reply and 30 days after the letter of the first respondent, asked for information from the first respondent about the construction work on Erf 95. The applicant’s papers are again silent on what state of progress the construction work on Erf 95 had reached on 30 July 2008 when she caused to be written this letter asking for information. The letter did not set any deadline by which the municipality should provide the information asked for. In view of the second respondent’s attitude as reflected in the letter of 14 July 2008, it is reasonable to assume that even as at 30 June 2008 and beyond, the construction work had not ceased on Erf 95. The applicant is silent on what she did between 30 June 2008 and 27 August 2008, the latter being the date on which she received the information from the first respondent in her letter of 30 July 2008. What is clear is that she did not, although entitled to, seek any urgent interdictory relief to arrest the progress of the construction work on Erf 95.

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[55] Although the first respondent took close to a month to provide the applicant with the information she asked for, the question remains: Was it necessary and reasonable for her to wait as long as she did to bring the review application and what militated against seeking urgent relief based on the facts that were known to her as demonstrated in her letters of demand and at the latest after she got a full explanation from the municipality on 30 June 2008? Between 30 June 2008 and the date of the launching of the application, I cannot find any factual basis for the conclusion that the municipality and/or the second respondent did anything that frustrated the applicant in seeking urgent relief to arrest the construction taking place on Erf 95.

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[56] An inference of unreasonable delay may be drawn from a failure to take appropriate steps to seek urgent relief to maintain the status quo when that is not only possible but also the most effective remedy. It is a common practice in this court for a party who feels aggrieved by administrative decision-making and desires immediate relief to protect its ‘immediate interest’ (Safcor infra4) while intending to have such decision-making reviewed and set aside to seek an urgent interdict pendente lite. In the present case, the moment that happened, the applicant would have been provided with the record of the proceedings from which the additional grounds on which she relies would have been obvious. On the facts before me, review relief, coupled with a declaratory relief (which is a discretionary remedy) are meaningless unless the ultimate objective is the demolition of the physical structure which the applicant maintains was built, in breach of the municipality’s TPS. The applicant’s failure to seek urgent interdictory relief has created a certain reality: the buildings have been completed. [57] No doubt if what I am here concerned with merely related to whether or not demolition relief should be granted, the fact that the second respondent was warned that he carried on further construction work at own risk was going to be a very important consideration, perhaps decisive. The issue is however broader than demolition relief and extends to whether or not the building plan approval by the municipality should be reviewed and set aside. That issue ineluctably involves consideration of whether there was reasonable delay in bringing the review application. Considering that the applicant was alive to the need for urgent

4

Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A), at 674H, 675C–D.

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interdictory relief against the second respondent and further urgent relief for a mandamus against the first respondent to enforce the TPS, her failure to say even as much as a word in the founding papers why such action was not pursued to protect her ‘immediate interests’ when it became quite apparent on 30 June 2008 (in the case of the first respondent) and 14 July (in the case of the second respondent) that the construction work would not cease, is a factor that counts against the applicant in light of the allegations of unreasonable delay. [58] In dealing with the applicant’s assertion that she had first to consult with lawyers as the matter was complex, Mr Cohrssen for the first respondent argues that the municipality’s letter of 30 June 2008 told the applicant all she needed [to do was] to go to court. He further submitted that there is no explanation whatsoever by the applicant of the steps she took since the attitude of the municipality and second respondents became clear and why it took her 4 months to bring the review application since she became aware of the construction on Erf 95. I must agree. The application lodged in October 2008 is essentially, excepting the grounds based on the coverage restrictions, setback provisions and plurality of storeys, a restatement of the issues raised by the applicant in her letters to the municipality and second respondent of 17 June 2008 and 7 July 2008, respectively. That being the case, she has failed to demonstrate that it was reasonable and necessary on her part not to seek urgent relief when that was possible and was in fact contemplated by her and, in the circumstances, constituted the most effective remedy to protect her ‘immediate interests’. She has also failed to demonstrate the specific steps she had to take between 30 June 2008 – when she received the municipality’s unequivocal reply – and the date she launched the application. In addition, she failed to demonstrate that those steps were reasonable and necessary in the circumstances, if one has regard to the fact that it is based, substantially, on the same grounds set out in her letter of 16 June 2008. [59] As I earlier stated, when unreasonable delay becomes an issue in a review application, the applicant must show that the steps taken in furtherance of the litigation which delayed the bringing of the application were reasonable and necessary. I am satisfied that as at 30 June 2008 the applicant had all the information she needed to seek urgent relief in the terms threatened in her letter of 16  June 2008 or to file a review application at once, subject to her right to amplify in terms of rule 53(4), and in any event in that way have required the first respondent to produce the record that would have disclosed the basis for the 18  March 2008

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approval of the construction on Erf 95. Similar considerations applied in the Kruger case5 supra, at 176E–G: From the time he received his final opinion it still took him nearly four months before bringing his application. There is nothing on record to suggest he was still labouring under financial constraints. Here it must be borne in mind that, in essence, appellant’s final case was a repeat of what his attorney already mentioned in his correspondence at the end of 1992. Furthermore, any relevant documents could be obtained by launching of the review in which case the provisions of Rule 53 of the High Court Rules would have compelled first respondent to furnish the records of proceedings and the same rule would have allowed appellant to amend his grounds of review, would he have so wished, after receipt of the said copies.

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[60] I have next to consider if I should grant condonation. The critical factor that militates against the granting of condonation is the efficacy at this stage of the declarator and the review relief, considering that the second dwelling complained about had already been completed because no urgent relief was sought suspending it; and the applicant’s concession that the demolition relief not be granted subject to the court referring the matter back for ‘regularisation’ – the exact scope of which is not defined. Granting a declarator and review relief has become of mere academic interest at this stage in the way the litigation has evolved: Just how regularisation would take place in respect of a completed building – giving full effect to the applicant’s right of objection – is a mystery. [61] The applicant concedes that demolition is a discretionary remedy and in fact asks that the court refer the matter back to the first respondent for ‘regularisation’ subject to the applicant’s right to object. Had urgent interdictory relief been sought and obtained at the time that the buildings on Erf 95 were in the beginning stage; demolition would at this stage have been a very viable remedy. Should the first respondent’s ‘regularisation’ (after referral) be not to the applicant’s satisfaction, what happens? The position we are at now – created by the applicant’s inaction at the appropriate moment – therefore creates an unacceptable measure of uncertainty and does violence to the need for finality of the municipality’s decision-making – and therein lies the rationale against granting condonation for the unreasonable delay. ….

5

Kruger v Transnamib Ltd (Air Namibia) & Others 1996 NR 168 (SC), at 170H, 172A.

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Notes 1. Applicant sought an order to review and set aside a decision of first respondent to allow the erection of two dwelling houses on one erf, alleging that it was contrary to the municipality’s town planning scheme (TPS). First respondent had approved the plans in March 2008 and applicant had become aware of the erection of the houses in June 2008, when she had addressed a letter to first respondent in this regard. She eventually launched review proceedings in October 2008. Respondents raised several points in limine; one of them was that by the time the matter came before the Court, the construction of the houses had been completed; and so there has been an unreasonable delay in bringing the review application. 2. The Court noted: (a) A party aggrieved by administrative action and who desires immediate relief ought to protect his or her immediate interest while intending to have that administrative action reviewed. The party will do well to seek an urgent interdict pendente lite. In that event, it is always prudent and efficacious for applicant to apply for interdictory relief and the judicial review relief together in the same composite proceedings. (b) There is a danger, where an applicant fails to seek urgent interdictory relief, to maintain the status quo pending the hearing of the review application.

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5.2 Proof of locus standi A. Text I have discussed the concept of locus standi (standing) as a key feature in the remedy of judicial review in chapter 3 (para 3.2.5). It serves no purpose to rehearse the discussion here. The present chapter deals with the procedure concerning the institution of judicial review proceedings; and so I discuss in the present section the method of proof of locus standi in motion proceedings. In that regard, it is important to make the following points. An applicant for judicial review must establish in the founding affidavit their standing to institute the application.6 If the applicant is not a natural person but an 6

Stipp & Another v Shade Centre & Others 2007 (2) NR 627 (SC).

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artificial (or legal) person, for example an incorporated entity, a natural person who institutes the proceedings purportedly on behalf of such applicant must establish their authority to institute the application on behalf of the artificial person. In that regard, Strydom J stated aptly: In all these cases  …  the courts concluded that in motion proceedings by an artificial person, although prudent, it is not always necessary to attach to the application the resolution authorising the institution of proceedings and that a deponent’s allegation that he was duly authorised would suffice in the absence of challenge to his authority.7

Where the applicant was challenged as to their authority to institute proceedings on behalf of the artificial person, it has been said: [53] It is now trite that the applicant need do no more in the founding papers than allege that authorization has been duly granted. Where that is alleged, it is open to the respondent to challenge the averments regarding authorisation. When the challenge to the authority is a weak one, a minimum of evidence will suffice to establish such authority …8

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In that case, annexing a resolution in the replying affidavit as proof of authority to institute proceedings when such authority was challenged by the respondent in the answering affidavit does not constitute the introduction of new material.9 In all this, it must be remembered that one’s authority to institute proceedings is totally distinct from one’s competence to depose to an affidavit. After all, it is trite that any legally competent witness may give evidence on matters within his or her personal knowledge. It is therefore ‘the institution of the proceedings and the prosecution thereof which must be authorized’.10

7 8 9

South West Africa National Union v Tjozongoro 1985 (1) SA 376 (SWA), at 381E. Otjozondu Mining v Purity Manganese 2011 (1) NR 298 (HC), para 53, per Damaseb JP. Wlotzkasbaken Home Owners Assoc v Erongo Regional Council 2007 (2) NR 799 (HC), relying on South West Africa National Union v Tjozongoro 1985 (1) SA 376 (SWA). 10 Wlotzkasbaken Home Owners Assoc v Erongo Regional Council supra, para 13, relying on Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA).

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B. Cases

[3 4] SWA National Union v Tjozongoro & Others 1985 (1) SA 376 (SWA) Strydom J: … In order to prevent the holding of a congress of the applicant on 1 and 2 September 1984, the central committee on 28 August 1984 took the following resolution:

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3. Taking note of the possible damage and confusion which may arise from the dissidents’ actions, the central committee is authorising its president, Moses Katjiuongua, to stop this illegal congress by way of an interdict.

Although, from the resolution taken, Katjiuongua was given authority to stop the congress, the method of obtaining orders against the persons of first and second respondents only restrained them from performing certain acts but left the field open to anyone else to take over from them and this gap was taken by third respondent, necessitating the applicant again to approach the Court for a further order against third respondent. This order was served on third respondent the same day. Precisely when it was so served is not clear and whether he acted as chairman at the meeting is also not clear. Certainly the meeting was not called at his behest only. Third respondent did not file any answering affidavit but neither is it alleged by applicant that he in fact acted as chairman, or that someone acted under his authority as such at the meeting which was held on 1 and 2 September 1984. In regard to the locus standi of the president to bring this application on behalf of the applicant, it was firstly argued by Mr Gauntlett that authority was given to stop the congress and that there existed no authority to obtain orders against the respondents individually. Secondly, and if the resolution authorised the obtaining of orders against the respondent individually, then, except for para  1(b) and perhaps 1(f), the orders obtained fell outside the scope of the authority given and should be discharged. Mr Johnstone, on behalf of the applicant, countered this argument by referring to the constitution and submitted that in terms thereof the president has wide and

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sweeping powers. Furthermore, that the Court in interpreting the resolution must consider the background and history of the matter. Counsel also submitted that the orders were covered by the president’s allegation that he was duly authorized to make the affidavit and that, where the relief claimed was substantiated by allegations in the affidavit that would justify the conclusion that the application was authorized. In support of his last contention set out above Mr Johnstone referred the Court to Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C); 1973 (4) SA 136 (E); Thelma Court Flats (Pty) Ltd v McSwigin 1954 (3) SA 457 (C) and Hocken v Union Trawling Company 1959 (2) SA 250 (N). In all of these cases the Courts concluded that in motion proceedings by an artificial person, although prudent, it was not always necessary to attach to the application the resolution authorising the institution of proceedings and that a deponent’s allegation that he was duly authorized would suffice in the absence of a challenge to his authority. However, where, as in this case, the resolution authorizing the president to institute proceedings and setting out the powers given to him, is attached, the Court, in deciding whether the president acted within his authority, can in my opinion only interpret the resolution for this is the very foundation on which he based his allegation that he was duly authorized. (Vide para 2 of Katjiuongua’s founding affidavit.) Apart from an allegation that he also derived his powers from the constitution, there is no allegation that further powers were given to him other than those set out in the resolution of the central committee dated 28 August 1984. Regarding the constitution, I agree with Mr Gauntlett that there is no express or implied power given to the president to institute on his own proceedings in a court of law. According to art  4 of the constitution of the appellant, the organizational principle of the applicant is ‘democratic centralism’ and art 4(a)(ii) provides that ‘all decisions will be taken in accordance with the principle of majority and on the basis of a free and unconstrained discussion ...’; the national congress is the highest organ of the applicant and must be convened every three years (art 8(a)). When congress is not in session the central committee ‘directs all SWANU’s work and carries out the decisions of the national congress’ (art 9(a)). When the central committee is not in session the political bureau (consisting of certain members of the central committee) ‘carries out the day to day work of SWANU and convenes the plenary sessions of the central committee. That is,

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whereas the central committee is the “parliament” of SWANU, the political bureau is the “government” of SWANU’ (art 10(b)). The president of SWANU is also the chairman of the central committee and the political bureau and, from the above excerpt from the constitution, even the day to day work of the applicant is taken care of by organs created by the constitution which leaves little or no room for the president to act entirely on his own. This conclusion is fortified by art 11(c)(1) where the functions of the president are set out. As regards these functions the following is stated: As the leader of the organization, the primary responsibility of the president is to see to it that the work of the whole organization is well co-ordinated, that all decisions are carried out, and that SWANU is the fighting organization it is supposed to be. To this end, the president has two crucial functions to perform, namely to provide direction and to exercise control.

… The question is now on what basis must the Court construe the resolution. In the case of D & DH Fraser Ltd v Waller 1916 AD 494 the Appellate Division considered the meaning of the words ‘to proceed to the final end and determination’ which appeared in a power of attorney to a suit in a magistrate’s court and who, on the strength thereof, noted an appeal. At 498 Innes CJ said the following:

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... it has not been the general practice in South African Courts to apply a rigid interpretation to documents like the one before us.

This attitude was also adopted by Centlivres JA in the case of Mahomed v Padayachy 1948 (1) SA 772 (A) in construing an authority given by a principal to his agent. See also National Board (Pretoria) (Pty) Ltd v Swanepoel 1975 (1) SA 904 (W), where the following is stated by Cillié JP at 911D: I considered the power of attorney keeping in mind that in construing a general power of attorney the extent of the agent’s authority is restricted to the powers expressly conferred on him or necessarily incidental to them for the due performance of his mandate, but that the powers must be given a reasonable interpretation.

In my opinion the resolution authorizing the president to obtain an interdict to stop the congress is a document empowering an agent to represent the party in a court of law and must be construed on the same principles as set out in the cases referred to.

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Bearing in mind the above principles, Mr Gauntlett’s contention that the president was not authorized to institute proceedings against the respondents personally is, in my opinion, giving too rigid an interpretation to the resolution taken by the central committee. It is, after all, common cause that all three of the respondents are part of the group that is dissatisfied with the course taken by the applicant under the leadership of the president, and that at least first and second respondents were actively involved in steering the applicant-party away from the MPC and closer to SWAPO. Both first and second respondents are or were leaders within the party, the former a member of the central committee and the latter the vice-president of the party. This is further evidenced by the notices given to the magistrate of Windhoek informing him of the extraordinary congress to be held on 1 and 2  September 1984. In both these letters second respondent was the chairman designate of the congress. Of significance is the notice given by first respondent on 8 August 1984. This was before the central committee’s so-called postponement of the congress on 11 August 1984. At this time, first respondent was surely aware of the fact that second respondent was expelled from the party by the central committee. Whether this expulsion was valid or not is in the present inquiry beside the point; what is in point is that first respondent was willing to fly in the face of the committee’s decision. As far as the third respondent is concerned, the allegations against him stand undisputed and, in so far as the orders obtained against him are aimed at stopping the congress, they fall within the scope of the resolution. Notes 1. In order to prevent the holding of a congress of applicant (a political party) on 1 and 2 September 1984, the central committee on 28 August 1984 took the following resolution: Taking note of the possible damage and confusion which may arise from the dissidents’ actions, the central committee is authorising its president, Moses Katjiuongua, to stop this illegal congress by way of an interdict.

2. Although, from the resolution taken, the president was given authority to stop the congress, the method of obtaining orders against the persons of first and second respondents only restrained them from performing certain acts but left

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3.

4.

5.

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6.

the field open to anyone else to take over from them and this gap was taken by third respondent, necessitating the applicant again to approach the Court for a further order against third respondent. This order was served on third respondent the same day. Certainly the meeting was not called at his behest only. Respondents raised points in limine challenging the authority (ie the locus standi) of the president to institute motion proceedings on behalf the party and the extent of the power granted by the resolution. The Court accepted the resolution as authorising the president to institute proceedings on behalf of applicant political party. A remarkable principle of law propounded by the Court was this: the resolution, being a document empowering an agent to represent a party in proceedings in a court of law, had to be construed in the same way as a power of attorney would be construed. Accordingly, the Court concluded that while the extent of the deponent’s authority was restricted to powers expressly conferred upon him or necessarily incidental to them, courts should give a reasonable rather than a rigid interpretation of such powers. Accordingly, the court rejected the South African case of Director of Hospital Services v Ministry 1979 (1) SA 276 (A) as being of no real assistance on the point under consideration. Two further important aspects of such challenge are these: (a) It is not always necessary to attach to the notice of motion the resolution authorising the institution of proceedings and that a deponent’s allegation in the founding affidavit that he or she was duly authorised would suffice in the absence of a challenge to his authority. But if the authority is challenged, it is sufficient for the person whose authority is challenged to file with the Court a resolution proving such authority. And in Wlotzkasbaken Home Owners Association & Another v Erongo Regional Council & Others (Case [11]) the Court held that there is no rule of practice preventing the deponent from proving such of their authority by annexing the resolution authorising the institution of proceedings to their replying affidavit. If deponent did that, they were not extending the issue by raising new matters in the replying affidavit, which is not allowed by the Rules of Court. (b) The deponent of an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution of the proceedings that must be authorised. See case [35].

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[35] Otjozondu Mining (Pty) Ltd v Purity Manganese 2011 (1) NR 298 (HC) Damaseb JP: … Respondent’s challenge to Shimwino’s authority to bring application [45] The respondent asks for the striking out of Shimwino’s affidavit. The case for striking out is based on the failure by Shimwino to produce a resolution by the applicant, a corporate body, authorising Shimwino to bring these proceedings. In the opposing affidavit of Eretz the issue was raised in the following terms: Shimwino fails to attach a resolution authorising him to depose to the founding affidavit. I, accordingly, deny that Shimwino is duly authorised to depose to the founding affidavit on behalf of the applicant and put Shimwino to the proof thereof.

[46] In the founding affidavit Shimwino had stated: I am a director of applicant and duly authorised, in such capacity, to depose to this affidavit and launch these proceedings on behalf of applicant.

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[47] In reply Shimwino did not produce a resolution. He stated as follows in reply: [T]he bold, unsubstantiated and sweeping denial of my authority does not, I submit, carry sufficient weight for the purposes of constituting any denial to which I have to respond.

[48] Although at the onset of oral argument Mr Bava submitted that lack of authority is not being raised as a point in limine, it remains a relevant issue because it is sought to be relied upon as a basis for seeking a special costs order against the applicant. [49] The respondent takes the view that where, as here, the authority of the person launching an application is questioned, a resolution must be furnished. Mr Bava, on behalf of the respondent, cites authority in support of the position adopted by the respondent. The first line of authority is to the effect that a company involved in litigation can only act through agents and can only take decisions by passing

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resolutions. (See Pretoria City Council v Meerlust Investments Ltd 1962 (1) SA 321 (A), at 325D; South African Milling Co (Pty) Ltd v Reddy 1980 (3) SA 431 (SE); Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C), at 351H; and Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA), at 625G–H.) [50] The second line of authority is in support of the proposition that once authority is challenged, the party challenged must produce proof of authority. Mr Bava cites the following cases: Baeck and Co SA (Pty) Ltd v Van Zummeren & Another 1982 (2) SA 112 (W); and Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA).

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[51] I don’t think anyone can possibly fault Mr Bava’s propositions as applicable principles of law in our jurisprudence when it comes to corporate entities engaging in litigation. All that the cases demonstrate, however, is the established principle that a company has no soul of its own and acts through human beings who must be authorised to act on its behalf; and, secondly, if there is undisputed evidence that no such authority existed, the purported actions by persons purporting to act on its behalf are invalid. The latter gives rise to the principle that where there is a challenge to authority, those relying on it must prove it. But it is not any challenge; and that is where Mr Bava misses the point: I apprehend, the question is not so much whether in the face of a challenge to authority and being afforded the opportunity to prove it, Shimwino failed to produce a resolution authorising him; rather it is this: was the respondent, on the facts of this case, justified to question the indubitably necessary allegation by Shimwino that he was duly authorised to act on behalf of the applicant in launching this application? [52] It is now settled that in order to invoke the principle that a party whose authority is challenged must provide proof of authority, the trigger-challenge must be a strong one. It is not any challenge: Otherwise motion proceedings will become a hotbed for the most spurious challenges to authority that will only protract litigation to no end. This principle is firmly settled in our practice. It was stated as follows in Scott & Others v Hanekom & Others 1980 (3) SA 1182 (C), at 1190E–G: In cases in which the respondent in motion proceedings has put the authority of the applicant to bring proceedings in issue, the Courts have attached considerable importance to the failure of the respondent to offer any evidence at all to suggest that the applicant is not properly before the Court, holding in such circumstances that a minimum of evidence will be required from the applicant. This approach is adopted despite the fact that the question of the existence of authority is often peculiarly within the knowledge of the applicant and not his opponent. A fortiori

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is this approach appropriate in a case where the respondent has equal access to the true facts. [Emphasis added (footnotes omitted)]

[53] It is now trite that the applicant need do no more in the founding papers than allege that authorisation has been duly granted. Where that is alleged, it is open to the respondent to challenge the averments regarding authorisation. When the challenge to the authority is a weak one, a minimum of evidence will suffice to establish such authority: Tattersall & Another v Nedcor Bank Ltd 1995 (3) SA 222 (A), at 228J–229A. [54] The Ganes case supra Mr Bava relies on states clearly (at 624F–H, para 19):

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In the founding affidavit filed on behalf of the respondent Hanke said that he was duly authorised to depose to the affidavit. In his answering affidavit the first appellant stated that he had no knowledge as to whether Hanke was duly authorised to depose to the founding affidavit on behalf of the respondent, that he did not admit that Hanke was so authorised and that he put the respondent to the proof thereof. In my view, it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised.

[55] I have shown the way in which the respondent challenged Shimwino’s authority. It is indeed a weak challenge. Eretz does not challenge or deny Shimwino’s allegation that he was duly authorised to bring the present application – only that he was not authorised to depose to the affidavit. Ganes supra tells us that is a worthless challenge. In reply Shimwino reiterated he had authority. I am satisfied that the averments meet the minimum-evidence requirement. The challenge to Shimwino’s authority is a bad one and I reject it. In fact, in light of especially the dicta in Ganes, a case also relied on by Mr Bava, the challenge borders on the frivolous.

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Notes 1. Applicant sought an interdict against respondent, restraining it from carrying out certain mining operations. Applicant had alleged that respondent had been carrying out mining operations within the area of applicant’s exclusive prospecting licence (EPL) and contrary to the terms of respondent’s mining licence. 2. Respondent challenged the application on two main issues. It challenged the authority of deponent to applicant’s founding affidavit to institute the proceedings and to depose to the affidavit, and thus the locus standi of the applicant. 3. This case is remarkable for the following principles:

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(a) In order to invoke the principle that a party whose authority was challenged must provide proof of authority, the trigger-challenge has to be a strong one. It was not any challenge; otherwise, motion proceedings would become a hotbed for the most spurious challenges to authority that was likely to protract litigation to no end. (b) It is now trite that applicant whose authority is challenged need do no more in the founding papers than allege that authorisation had been duly granted. Where that was alleged, it was open to respondent to challenge the averments regarding authorisation, and when the challenge to the authority was a weak one, a minimum of evidence would suffice to establish such authority.

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5.3 Delay in instituting motion proceedings of judicial review of administrative action by administrative bodies and officials A. Text The general rule is that there is no time limit within which an aggrieved person may institute motion proceedings for judicial review.11 In judicial review of administrative action by administrative bodies and officials, the general rule, of course, applies only where the applicable legislation has not prescribed a time limit within which to institute judicial review proceedings. I shall consider delay in instituting judicial review proceedings under two heads: (a) where there is an absence of a statutory time limit, and (b) where the applicable statute prescribes a time limit. I now proceed to discuss item (a) in para 5.3.1 and item (b) in para 5.3.2.

5.3.1 Absence of a statutory time limit within which to institute judicial review proceedings

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A. Text Where no time limit is prescribed for instituting judicial review proceedings, the law expects a person who seeks to attack by judicial review an administrative action by an administrative body or official to institute proceedings with reasonable speed and promptness, depending, of course, on the circumstances of the case. Where a party contends that there has been delay in instituting judicial review proceedings, the Court must make a factual enquiry to determine whether the delay is in fact unreasonable. Where the Court determines that the delay was in fact unreasonable, the Court has a discretion to condone the delay. However, where the Court finds that there has been unreasonable delay and the applicant has not placed any evidence before the Court to explain the delay to the satisfaction of the

11 Kruger v Transnamib Ltd (Air Namibia) & Others 1996 NR 168 (SC).

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Court, ‘in those circumstances it would be unjudicial, unjust and unreasonable for this (the) court to condone the unreasonable delay in launching the application.’12 The following are some useful considerations that courts may take into account in considering whether to condone a delay on the part of applicant to institute proceedings: (a) There must be some evidential basis for the exercise of the discretion: the Court does not exercise the discretion based on an abstract notion of equity and the need to do justice between the parties. (b) An applicant seeking review is not expected to rush to court there and then upon the cause of action arising. The applicant is entitled first to ascertain the terms and effect of the decision they wish to challenge. They must consider the reasons for the decision. Applicant should obtain the relevant documents and seek legal and other expert advice where necessary. They may wish to attempt to reach an amicable solution, if that is possible.13 They may wish to consult with persons who may depose to affidavits in support of the relief, some of whom may be living abroad.14 (c) Applicant may have to consider other preparatory steps they may wish to follow before instituting proceedings, particularly where the issues are complex.15 In each case, the Court should be satisfied that the steps taken are necessary and reasonable.16 (d) Any conduct attributed to another administrative body or official (not being the repository of the power to act in terms of the applicable statute) and on which applicant wishes to rely to explain the delay must not itself be unlawful and invalid conduct. In Arandis Power (Pty) Ltd v The President of the Republic of Namibia17 the Court refused to accept the ultra vires and unlawful conduct of the second respondent (the Minister) and other members of the Executive 12 Peter v Jacobs CA 100-2013) [2016] NAHCMD 11 (28 January 2016), para 16. 13 See Keya v Chief of the Defence Force & Others 2013 (3) NR 770 (SC). 14 See Petroneft International & Another v The Minister of Mines and Energy 2012 (2) NR 781 (SC). 15 Ibid. 16 See Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay & Others 2011 (2) NR 437 (HC), para 41, where Damaseb JP proposes a number of considerations, most of which are adopted here. 17 (A26-2016) [2016] NAHCMD 194 (7 July 2016), para 23.

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as legitimate and sufficient ground or explanation for the unreasonable delay in instituting the review proceedings. Where it finds that there has been an unreasonable delay in instituting proceedings, the Court may condone the delay, as mentioned previously. In that event, O’Regan AJA in Keya v Chief of the Defence Force enunciated the proper approach to follow:

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[21] This court has held that the question of whether a litigant has delayed unreasonably in instituting proceedings involves two enquiries: the first is whether the time that it took the litigant to institute proceedings was unreasonable. If the court concludes that the delay was unreasonable, then the question arises whether the court should in the exercise of its discretion grant condonation for the unreasonable delay. In considering whether there has been unreasonable delay, the High Court has held that each case must be judged on its own facts and circumstances so what may be reasonable in one case may not be so in another. Moreover, the enquiry as to whether a delay is unreasonable does not involve the exercise of the court’s discretion.18

In an earlier decision, the Supreme Court held, per Strydom ACJ, that ‘prejudice is not a prerequisite before an application can be dismissed on the grounds of unreasonable delay’, but that ‘[p]rejudice is a relevant consideration’,19 and in that regard ‘the existence of prejudice will be material if established’.20 The Supreme Court has also held that ‘the issue of unreasonable delay may also be raised mero motu by the Court’.21 A critical consideration is that where there has been an unreasonable delay to bring the review application and applicant has failed or refused to explain the delay, the court should not come to the aid of applicant by looking to see if the unreasonable delay has prejudiced the respondent.22

18 2013 (3) 770 (SC), para 21. 19 Namibia Grape Growers and Exporters Association & Others v The Ministry of Mines and Energy & Others 2004 NR 194 (SC), at 214H–I. 20 Keya v Chief of the Defence Force & Others 2013 (3) NR 770 (SC), para 22. 21 Namibia Grape Growers and Exporters Association & Others v The Ministry of Mines and Energy & Others 2004 NR 194 (SC), at 214H–I. 22 Electoral Commission of Namibia v Registrar of the High Court of Namibia (A322/2015) [2016] NAHCMD 239 (29 September 2016).

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B. Cases

[3 6] Namibia Grape Growers and Exporters Association & Others v The Ministry of Mines and Energy & Others 2004 NR 194 (SC) Strydom ACJ (O’Linn AJA and Shivute AJA concurring): …

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B. Review of the renewal of the licence in 1998 The second ground of appeal concerns the finding by the Court a quo that the review, brought by the appellants, was not within a reasonable time. The learned Judge further found that there were also no valid grounds on which the Court could relax the rule, with the result that the Court dismissed the application for a review. Because no specific time is prescribed for the institution of review proceedings, the courts, as part of their inherent power to regulate their own procedure, have laid down that a review must be brought within a reasonable time. The requirement of a reasonable time is necessary in order to obviate possible prejudice to the other party, and because it is in the interest of the administration of justice and the parties that finality should be reached in litigation. Where the point is raised that there has been unreasonable delay the Court must first determine whether the delay was unreasonable. This is a factual inquiry depending on the circumstances of each case. Once it is satisfied that the delay was unreasonable the Court must determine whether it should condone the delay. In this regard the Court exercises discretion. Because the circumstances in each particular case may differ from the next case, what is, or what is not, regarded in other cases to be an unreasonable delay is not of much help, except to see perhaps what weight was given to certain factors … In the case of Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A), the South African Appeal Court decided that prejudice to the other party was not a prerequisite before an application can be dismissed on the ground of unreasonable delay. Prejudice is, however, a relevant consideration in

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such matters. It is further clear that the issue of unreasonable delay may also be raised mero motu by the Court … …  The period of delay before institution of the review proceedings was therefore at least two years. Mr Barnard, although conceding that this was a long delay, submitted that it was not unreasonable. Counsel based this submission mainly on two factors. The first was a letter from the office of the President in terms of which certain undertakings were given and a clause in the old, as well as the new ‘surface owners agreement’, still under negotiation, was set out concerning the Green River Project and the undertaking by the third respondent to, wherever possible, fully co-operate in this project. Counsel submitted that the sixth appellant, armed with these documents, could reasonably conclude that his agricultural activities were safeguarded from interference from prospecting activities planned by the third respondent. The letter from the Permanent Secretary to the President was dated 9 March 1995 and the relevant part reads as follows: The President said that contact shall be made with the relevant ministries to avoid co-existence of intensive agricultural and mining development on the same land. He further instructed me to assure you that the Orange River Irrigation Project will continue as planned and your plantings as well as your agricultural expansion will not be affected.

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… Both factors argued by Mr Barnard were, on the documents, not directly linked to the question of the delay for instituting review proceedings. When challenged by the first respondent in connection with the delay, the sixth appellant explained that it was following cheaper avenues, knowing that the third respondent could not come onto the property without permission granted in terms of s  52, and that it would eventually have to approach the second respondent for relief if by negotiation a ‘surface owners agreement’ did not materialise. During all this the option of a review remained open to the sixth appellant if all else should fail. No mention was made of the fact that it felt itself secure by the undertaking of the office of the President. That reliance at this late stage on this factor was in all likelihood an afterthought seems to me to be supported by the chain of events that took place. From the letter annexure ‘DV1.1’ it must have been clear to the appellant that it was the intention of the third respondent to increase substantially their efforts to prospect for diamonds. It was mentioned in the letter that the third respondent

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would now start with bulk sampling and that it intended to spend a further N$23 million in this regard. As was stated by Mr Barnard, the situation became problematical early during 1998. All along during this time serious negotiations, at least as far as the third respondent was concerned, were under way in an attempt to break the impasse. When negotiations were not successful the third respondent applied to the Ancillary Rights Commission for relief and the parties went through a full-fledged, albeit futile, hearing. At no stage did the sixth appellant rely on this undertaking or call upon those who gave the undertaking to come to his aid. When asked by the Court why that was so, we were informed that counsel had no instructions in this regard. As far as reliance was placed on the clause in the ‘surface owners contract’, the fact of the matter is, of course, that no such contract came into being and no assurance could therefore be placed on it. In this regard the third respondent alleged that the sixth appellant at least further contributed to the fact that no agreement could be reached between the parties by insisting on certain guarantees over which the third respondent had no control. In deciding whether the delay was unreasonable it seems to me that the time during which the right of the third respondent endures, must also play a role. As previously pointed out, the renewal was for a period of two years until 25 April 2000. The delay to take the matter on review spanned this whole period. This by itself puts a limit on the delay as an applicant may find that, once the right has run its course, the application for review may have become academic. In all the circumstances I am of the opinion that the finding of the Court a quo that the delay was unreasonable was correct. The question then is whether the Court should have condoned the delay. This, as previously pointed out, required the Court to exercise discretion. In this regard the Court a quo came to the conclusion that there was no valid ground on which it should do so. I am not persuaded that this Court should hold differently. In my opinion the third respondent was prejudiced by the delay to bring the matter on review. Mr Barnard conceded that there was inherent prejudice in a situation where a company is prevented from prospecting, but he countered that by saying that it was shown by the appellants that there were no viable deposits of diamonds. This is begging the question. The evidence in this regard was mostly theoretical and, where there were previously unsuccessful attempts to find diamonds, the scale on which these attempts were made may not have been as intensive as that now intended by the third respondent. In any event, by

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further prospecting third respondent would be able to determine this question. Its willingness to spend a further N$23 million seems to contradict the expectations of the appellants. Mr Chaskalson also pointed out that the explanation given, namely, that the sixth appellant kept the review in abeyance for use if the negotiations for a surface owners’ contract were not to its liking, meant that the third respondent was led up the garden path without any idea that the respondent would still confront it with a major legal stumbling block. If the review was brought within a reasonable time and was successful, third respondent could then go somewhere else instead of wasting time in negotiations which were destined to lead nowhere or to embark on proceedings before the second respondent which, if in its favour, would trigger a review application. I think there is merit in this submission. It further seems to me that the right granted to the third respondent has lapsed through the effluxion of time and that the whole issue may have become academic. If not, then it constitutes further prejudice which should be considered in deciding whether condonation should be granted. In the case of Kruger v Transnamib Ltd (Air Namibia) & Others supra, at 173ff, this Court discussed the nature of the discretion exercised by the Judge a quo, and came to the conclusion that the Court of Appeal would interfere only in circumstances where the discretion was not judicially exercised. For the reasons set out above it cannot be said that the Judge did not exercise his discretion judiciously or that he acted capriciously or on a wrong principle and this point of appeal must also be rejected.

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…. Notes 1. In this case [36], appellants (applicants in the Court a quo) instituted review proceedings challenging a decision of first respondent. The Court a quo found that there had been an unreasonable delay in instituting the proceedings, and declined to condone the delay and dismissed the application. Appellants appealed from that decision. The second ground of appeal concerned the finding by the Court a quo that appellants had not brought the review application within a reasonable time. 2. The Supreme Court considered the common-law rule against delay in instituting review proceedings and put forth the reasons why review proceedings should be instituted without delay.

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3. The Court laid down the principle that where no specific time is prescribed for the institution of review proceedings, the courts, as part of their inherent power to regulate their own procedure, have laid down that review must be brought within a reasonable time. 4. Furthermore, the Court proposed the two steps that a court ought to follow in determining a point raised that there has been delay in instituting review proceedings. 5. Moreover, the Court considered what role prejudice to the party raising the issue of delay should play in determining the issue of delay. On that point, the Court developed the principle enunciated by the South African Appellate Division in Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) that prejudice to the other party was not a prerequisite before an application could be dismissed on the ground of unreasonable delay. Prejudice is, however, a relevant consideration in such matters. 6. The Court propounded further the important principle that the issue of unreasonable delay may be raised by a court mero motu. B. Cases

[37]

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Keya v Chief of Defence Force & Others 2013 (3) NR 770 (SC) O’Regan AJA (Mainga JA and Strydom AJA concurring): … Issues on appeal [20] The key issue for determination on appeal is whether the High Court was correct in concluding that the review application should be dismissed because it was instituted after an unreasonable delay. Proper approach to the question of unreasonable delay [21] This court has held that the question of whether a litigant has delayed unreasonably in instituting proceedings involves two enquiries: the first is whether

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the time that it took the litigant to institute proceedings was unreasonable. If the court concludes that the delay was unreasonable, then the question arises whether the court should, in an exercise of its discretion, grant condonation for the unreasonable delay. In considering whether there has been unreasonable delay, the High Court has held that each case must be judged on its own facts and circumstances, so what may be reasonable in one case may not be so in another. Moreover, that enquiry as to whether a delay is unreasonable or not does not involve the exercise of the court’s discretion.

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[22] The reason for requiring applicants not to delay unreasonably in instituting judicial review can be succinctly stated. It is in the public interest that both citizens and government may act on the basis that administrative decisions are lawful and final in effect. It undermines that public interest if a litigant is permitted to delay unreasonably in challenging an administrative decision upon which both government and other citizens may have acted. If a litigant delays unreasonably in challenging administrative action, that delay will often cause prejudice to the administrative official or agency concerned, and also to other members of the public. But it is not necessary to establish prejudice for a court to find the delay to be unreasonable, although of course the existence of prejudice will be material if established. There may, of course, be circumstances when the public interest in finality and certainty should give weight to other countervailing considerations. That is why once a court has determined that there has been an unreasonable delay, it will decide whether the delay should nevertheless be condoned. In deciding to condone an unreasonable delay, the court will consider whether the public interest in the finality of administrative decisions is outweighed in a particular case by other considerations. Was the delay unreasonable? [23] In this case, the High Court concluded that the delay was unreasonable. In reaching this conclusion, the High Court noted, amongst other things, that the appellant had provided no explanation for the delay in instituting proceedings between 4 July 2007 and 13 February 2008, despite the respondents’ raising the issue in limine in their answering affidavits. The appellant asserts that the High Court erred in this conclusion, though as mentioned above, in written argument on behalf of the appellant this issue was not fully addressed. [24] As set out above, the relevant delay in this case was from 4 July 2007, when appellant was informed that he had been discharged from the Defence Force with

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immediate effect, until 13 February 2008, when these proceedings were instituted in the High Court. As the High Court reasoned, the delay should be seen against the background of the fact that in the period immediately before the appellant was informed of his discharge, he was represented by a legal practitioner who was communicating with the respondent in relation to the question of his discharge. The same legal practitioner represents the appellant in these proceedings. Indeed, the appellant’s legal practitioner had threatened as early as March 2007 to launch High Court proceedings in relation to the appellant’s discharge from the Namibian Defence Force and annexed to the appellant’s founding affidavit is a draft notice of motion dated 31 May 2007. [25] Given these facts, it is clear that when the appellant received the notice of discharge on 4 July 2007, he had already briefed his legal practitioner in relation to the question of his threatened discharge and counsel was fully aware of the issues surrounding the discharge. Yet no letter was written to the respondents challenging the decision or threatening legal action. Given the active engagement of a legal practitioner prior to 4 July 2007, this failure to act was surprising. Nor was any explanation for the inactivity and delay provided in the founding papers. Moreover, when the respondents raised the issue of unreasonable delay in their answering affidavit, the appellant chose not to deal with it in reply. Instead, he stated that the point was ‘baseless’. No clear explanation was provided as to why he waited seven months to launch these proceedings. From the Bar, counsel sought to suggest that the appellant may have had financial difficulties in pursuing the appeal, but this allegation was not made on the affidavits and cannot be taken into account. There is no suggestion on the record that attempts at a resolution of the dispute between the parties were taking place or that any other relevant steps were taken that would explain the delay. [26] Appellant’s counsel sought to suggest that seven months was a reasonable delay by referring to s 24 of the Labour Act 6 of 1992, which requires litigation arising from employment disputes to be initiated within 12 months, and s  73(1) of the Defence Act 1 of 2002, which provides that litigation in terms of the Defence Act must be instituted within two years. Neither of these time limitations is applicable to these proceedings. It may well be that these time periods provide some guidance as to what the legislature would consider to be appropriate time periods, but they cannot be determinative of the question of ‘unreasonable’ delay, which must turn on the facts and circumstances of each case.

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[27] On the facts of this case, it is clear that the appellant’s legal practitioner was fully briefed in relation to the appellant’s threatened dismissal from the Namibian Defence Force. There is no suggestion that it took the appellant some time to appreciate the implications of the letter of 4 July, or that it took him time to find legal advice. On the contrary, a copy of the letter of 4 July 2007 was sent to the appellant’s legal practitioner. Nor is there any suggestion that there were any attempts to resolve the dispute between the appellant and the respondents. Indeed, there is no explanation at all for the delay. [28] Given the absence of any explanation from the appellant as to the reason for the seven-month delay despite the matter being pertinently raised in the answering affidavit, the High Court cannot be faulted for concluding that the appellant had delayed unreasonably in launching these proceedings. The next question that arises is whether that delay should be condoned. In the absence of any explanation for the delay, it is not possible to conclude that this is a case in which the unreasonable delay should be condoned. For these reasons, therefore, the appeal must be dismissed. …

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Notes 1. Appellant had instituted review proceedings seven months after he had been dismissed from the Defence Force. At all material times, he had been legally represented. Respondents had raised the point in their answering papers that the delay had been unreasonable. Appellant had offered no explanation for the delay in the Court a quo; and so that Court was not prepared to condone the delay and it dismissed the application, without dealing with the merits. 2. Thus, the issue of delay came up for determination before the Supreme Court once more in the present case [37]. Appellant had instituted review proceedings in the High Court seven months after he had been dismissed from the Defence Force. The High Court had concluded that Appellant had delayed unreasonably in instituting the proceedings. Appellant appealed against the decision of the High Court. 3. The High Court had also found that appellant had not provided any reasons for his delay and so it could not condone the delay and, accordingly, dismissed his application.

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4. The reasoning and conclusions in the earlier case [36] and in this case [37] are the same in material respects, including the two-step approach and the question whether prejudice must be proved before an application can be dismissed on the ground of unreasonable delay, except for the little difference in details, namely, that in [36] the Supreme Court held that while prejudice is not a prerequisite, it is a relevant consideration, and in [37] the Supreme Court went further than that and held that while prejudice is not a prerequisite, the existence of prejudice will be material if established. 5. In this case [37], the Supreme Court upheld the decision of the High Court that it could not condone the unreasonable delay in bringing the application. The fact that appellant had offered no explanation and that he had been legally represented long before the review proceedings had been instituted, militated against the condonation of the delay. B. Cases

[38] Peter v Jacobs (A100-2013) [2016] NAHCMD 11 (28 January 2016), para 1 …

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Parker AJ: [1] On 9 December 2010 the applicant launched an application by notice of motion and prayed the court to grant the relief set out in the notice of motion. On 6 July 2012, the applicant’s legal representatives filed a ‘Notice of Withdrawal of Action’ in the following terms: BE PLEASED TO TAKE NOTICE that, Applicant hereby withdraws his review application in this matter set down for hearing on the 10th of July 2012.

[2] Thus, barely four days before the hearing of the application the applicant withdrew the application. That application is the review application under Case No A379/2010. Since no consent to pay costs by the applicant was embodied in the Notice of Withdrawal of the application, the respondents brought an application in terms of rule 42(1)(c) of the repealed rules of court; now, rule 97(3) of the Rules

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of Court. The respondent’s rule 41(1)(c) application was successful; and so, the court granted the following order: 1.

That the respondents’ rule 42(1)(c) application is granted with costs on a party and party scale. 2. That the applicant shall pay the respondents’ costs in the main application on a party and party scale.

[3] To date, as Mr Ncube, counsel for the respondents submitted, the applicant has not paid the taxed costs. That is not the end of the unfair and unreasonable treatment that the applicant has subjected the respondents to in this matter. By his legal representatives the applicant on 15 April 2013 launched selfsame application – this time under Case No A100/2013 when the applicant was aware that he had not paid the respondents’ taxed costs. The applicant is belabouring under the warped view that the application under case No A100/2013 has absolved him from paying the taxed costs. He is palpably wrong. [4] The chicanery of the applicant is laid bare when one considers the fact that the relief sought in Case No A379/2010 is the same as the relief sought in the present case, ie Case No A100/2013.

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[5] It is not indicated in the papers if the fact of the sameness of the relief in Case No A379/2010 and the relief in Case No A100/2013 and the fact that the applicant had not paid the taxed costs in Case No A379/2010 were brought to the attention of the managing judge who managed the case before the file was transferred to me. These facts should surely have led to an order that Case No A100/2013 could not be heard unless and until the taxed costs were paid in full. [6] Be that as it may, I now proceed to consider the instant application which is a review application, that is, an application to review the decision of the fifth respondent (an administrative official) within the meaning of art 18 of the Namibian Constitution. [7] It is important to make this point which ordinarily ought to have a bearing on the issue of costs. In a letter dated 10 May 2013, the Government Attorney qua respondents’ legal representatives wrote a letter to Mbaeva & Associates, legal representatives of the applicant, drawing the attention of the latter to the fact that there has been an unreasonable delay in the launching of the application, citing authority for their view. The relevant paragraphs of the letter read verbatim as follows:

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Please be advised that not only is your Application misplaced, but is also an abuse of court process. It is in our view a frivolous and vexatious application and we are thus giving to ask the court for order of costs de bonis propriis against you for the following reasons if you do not withdraw your Application: There is an unreasonable delay in the application. The authorities are clear on that aspect. Your review application seeks to review a decision that was taken in 2006, 7 years after, and that cannot stand in a court of law. See: Ebson Keya matter similar judgment, Thomas Kanime matter (a magistrate who brought a review after 11 months and it was held as an unreasonable delay). We therefore demand that within seven (7) days you withdraw your Application failing which we shall pray for costs to de bonis propriis and in addition costs on an attorney/client scale for abuse of court process. We advise accordingly.

[8] The respondents’ position articulated by Mr Ncube, counsel for the respondents, in his submission is that there has been an unreasonable delay in the bringing of the present application. The respondents’ view rests upon the authority of Keya v Chief of Defence Force & Others 2013 (3) NR 770 (SC). [9] Mbaeva & Associates brushed aside the advice and warning without as much as reverting to the Government Attorney on the point. And in his submission Mr Mbaeva puts forth this Delphic response: D. MISCONCEPTION ON DELAY:

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40. The withdrawn case which Counsel for the Respondents annoyingly keeps referring to was based on the fact that the two witnesses who testified at the hearing lied under oath. The date of dismissal was therefore a factor in that Application; 41. It is therefore Counsel for Respondents who labours under the misconception that the present case before Court is founded on the same grounds as the withdrawn one which served before a different Court; and is deliberately trying to confuse this Court with irrelevant issues, thus wasting the Court’s valuable time.

[10] Mr Mbaeva does not even begin to get off the starting blocks in his attempt to respond to the position of the respondents and the respondents’ counsel’s submission that there has been an unreasonable delay in the launching of the application. [11] In all this the irrefragable facts that remain are inevitably that (a) the decision to dismiss the applicant was communicated to the applicant on 28 March 2007, and (b) the applicant launched the present review application on 15  April 2013, that is, some six years later.

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[12] Keya supra, para 21, per O’Regan AJA, tells us that: [21] This court has held that the question of whether a litigant has delayed unreasonably in instituting proceedings involves two enquiries: the first is whether the time that it took the litigant to institute proceedings was unreasonable. If the court concludes that the delay was unreasonable, then the question arises whether the court should, in an exercise of its discretion, grant condonation for the unreasonable delay.

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[22] The reason for requiring applicants not to delay unreasonably in instituting judicial review can be succinctly stated. It is in the public interest that both citizens and government may act on the basis that administrative decisions are lawful and final in effect. It undermines that public interest if a litigant is permitted to delay unreasonably in challenging an administrative decision upon which both government and other citizens may have acted. If a litigant delays unreasonably in challenging administrative action, that delay will often cause prejudice to the administrative official or agency concerned, and also to other members of the public. But it is not necessary to establish prejudice for a court to find the delay to be unreasonable, although of course the existence of prejudice will be material if established.

[13] As I have said previously, the relevant delay in the instant case was from 28 December 2007, when the applicant was informed that he has been dismissed as a magistrate, until 15 April 2013, when the instant proceeding was instituted. It should be remembered that the applicant, at all material times, including the period of the internal disciplinary hearing involving the applicant, has been represented by as many as five different legal representatives at various times. It is, therefore, not a case where the applicant did not know what to do when allegedly aggrieved by the decision of the fifth respondent; and a fortiori, there is no suggestion on the papers that genuine attempts were being made at a resolution of the dispute between the applicant and the respondents outside the surrounds of the court. (See Keya supra, para 25.) [14] From all the aforegoing, I find that there has been an unreasonable delay in launching of the application. Having so found, I should, upon the authority of Keya, consider whether, in the exercise of my discretion, I should grant condonation for the unreasonable delay. [15] The applicant has not applied to the court to condone the unreasonable delay in bringing the application. In any event, it should be remembered that barely one month after launching the application, as I have mentioned previously, the

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Government Attorney, representing the respondents, not only drew the attention of the applicant’s legal representatives to the fact that there had been an unreasonable delay in launching the application, but also referred the legal representatives to the highest authority in Keya on the issue of unreasonable delay in bringing review applications. And, as I have found previously, the applicant’s legal representative simply ignored the advice and warning, and stuck by his guns, although there was no ammunition available, making his sticking by his guns a futile exercise. [16] On these facts and in those circumstances it would be unjudicial, unjust and unreasonable for this court to condone the unreasonable delay in launching the application. Given the absence of any explanation for the unreasonable delay of over five years and applicant’s legal representatives’ ignoring of the Government Attorney’s advice and warning, there is no consideration placed before the court that could possibly outweigh ‘the public interest in the finality of (the) administrative decision’. (Keya supra, para 22.) In words of one syllable: there is simply no condonation application to consider. The result is that the application falls to be dismissed; and it is dismissed. For this circus, the ring master’s circus has come to an end! …

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Notes 1. Applicant instituted review proceedings challenging his dismissal as a magistrate despite the long delay of some five years since his dismissal. Respondents’ legal representatives drew the attention of applicant’s legal representatives to that fact. But applicant’s legal practitioner brushed aside the advice and warning without as much as reverting to the Government Attorney on the point, and instituted proceedings. 2. In this case [38], the High Court made the crucial remarks that where the Court finds that there has been an unreasonable delay in the institution of proceedings, the Court is not entitled to condone the delay it has found to be unreasonable if there is no application to condone it, because there would be no explanation before the Court for it to consider in deciding whether to condone the unreasonable delay. In that event, it would be unjudicial, unreasonable and unjust for the Court to condone the unreasonable delay.

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3. On the same issue of unreasonable delay in instituting review proceedings, in Arandis Power (Pty) Ltd v The President of the Republic of Namibia (Case No A26/2016) [2016] NAHCMD 194 (7 July 2016), the High Court held that the explanation a party gives for the delay in instituting review proceedings should not be based on some unlawful and invalid act of the applicant who has delayed, or on the part of any other person whose conduct the applicant relies on in his or her explanation for the delay.

5.3.2 Existence of a statutory time limit within which to institute judicial review proceedings

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A. Text It is commonplace to find a provision in a statute that provides that an applicant for judicial review of an act or decision of an administrative body or official to bring the application within a prescribed time limit. They ‘are … of great importance in administrative law’.23 I cannot emphasise it enough that the provision of statutory time limits within which to attack an administrative action by judicial review is not the same as the doctrine of finality clauses. Finality clauses deny a person the right to bring under review some administrative action.24 We saw in chapter 3 (para 3.3.5) that finality clauses cannot be, and are not, part of Namibian law simply because any statutory provision which aims at insulating an administrative action by an administrative body or official from judicial review will be offensive to art 18 of the Constitution. As I said previously, time-limit clauses stand in contradistinction to finality or privative clauses. Baxter calls time-limit clauses ‘limitation clauses’. A limitation clause merely restricts judicial review ‘by imposing a time limit within which the matter must be brought to court’.25 They do not prevent the aggrieved from vindicating their rights in a court of law. Where a person does not bring proceedings within the statutorily prescribed time limit, the Court has no power – not even an inherent power – to condone the failure to bring the proceedings within the statutory time limit, and extend the 23 HWR Wade (1984). Administrative Law (Fifth edition). Oxford: Clarendon Press, p 609; R v Environment Secretary, ex parte Ostler [1977] QB 122 (CA). 24 R v Environment Secretary, ex parte Ostler [1977] QB 122 (CA). 25 Lawrence Baxter (1984). Administrative Law. Cape Town: Juta & Co, p 733.

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time prescribed by the Act for bringing judicial review proceedings, unless the Act gives to the Court such power. After all, the Court cannot have an inherent power that would entitle it to act contrary to the express provisions of an Act.26 Limitation clauses are found, for instance, in the Public Service Act 27 and the Correctional Service Act.28 This is an important justification for limitation clauses: they are to ensure that proceedings are brought while the administrative officials responsible for the action sought to be impugned can still be identified and they are still administrative officials and while evidence is still fresh in the mind of the responsible officials and easily adducible.29 I submit that the legislature intended that provisions on such time limits be peremptory; otherwise they serve no useful purpose. It could not have been the intention of the legislature that the statutory limits within which to bring review proceedings (and other legal proceedings) be disregarded. If a person fails to bring review proceedings within the statutory time limit, that is the end of the matter: they are ‘barred by the statute from now questioning’ the action of the administrative body or official.30 Thus, any application filed after the expiration of the applicable time limit would not be properly before the Court; and so the Court would not be entitled to adjudicate on the matter. It follows inevitably that failure to bring review proceedings within the time limit disentitled the applicant to relief.31 Section 33 of the Public Service Act, 1995 entitled ‘Limitation of legal proceedings’ provides: 33. (1) No legal proceedings of whatever nature shall be brought in respect of anything done or omitted in terms of this Act unless such proceedings are brought within 12 calendar months from the date on which the claimant had knowledge or might reasonably have been expected to have knowledge of that which is alleged to have been done or omitted, whichever is the earlier date. (2) No such legal proceedings shall be commenced before the expiry of 30 days after written notice of intention to bring such proceedings, containing 26 S v Strowitzki 2003 NR 145 (SC), at 161b, approving Sefatsa & Others v AttorneyGeneral, Transvaal 1989 (1) SA 821 (A) at 385J–839A–C. 27 Section 33 of Act No 13 of 1995. 28 Section 133 of Act No 9 of 2012. 29 See Baxter (1984: pp 734–735). 30 Smith v East Elloe Rural District Council [1956] AC 76 (HL). 31 See R v Environment Secretary, ex parte Ostler [1977] QB 122 (CA), where the relevant authorities are gathered.

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full particulars as to that which is alleged to have been done or omitted, has been served on the defendant.

And s 133 of the Correctional Service Act, 2012 entitled ‘Indemnity and limitation of actions’ provides: (3) No civil action against the State or any person for anything done or omitted in pursuance of any provision of this Act may be entered into after the expiration of six months immediately succeeding the act or omission in question, or in the case of an offender, after the expiration of six months immediately succeeding the date of his or her release from correctional facility, but in no case may any such action be entered into after the expiration of one year from the date of the act or omission in question. (4) Notice in writing of every such action, stating the cause thereof and the details of the claim, must be given to the defendant at least one month before the commencement of the action.

B. Cases

[39] R v Environment Secretary, ex parte Ostler [1977] QB 122 (CA), at 131 …

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Lord Denning MR: We are here presented with a nice question. Is Smith v East Elloe Rural District Council [1956] AC 736 a good authority or has it been overruled by Anisminic v Foreign Compensation Commission [1969] 2 AC 147 (HL)? ... The first inquiry (as to the trunk road itself) was held in September 1973. A firm of wine merchants called George Bateman & Sons Ltd. lodged objection on the ground that it would cut off the access to their yards. Now, in order to overcome that objection it is alleged that a secret assurance was given to Batemans by an officer of the Department of the Environment. Batemans were assured that at the second stage access would be given for the lorries by means of a lane called Craythorne Lane. This was a narrow lane leading out of the market place.

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Batemans were assured that at the second stage this lane would be widened so as to take their lorries. On getting that assurance, Batemans withdrew their objection at the first inquiry. That was a secret assurance, not known to the public at large. Now, there was another trader, Mr Ostler, who was interested. He was a corn merchant. His premises were at a corner of the Market Place where Craythorne Lane led out of it. He had no idea that Craythorne Lane was going to be widened. If it was to remain a narrow lane (as he thought) his business would not be affected by the proposed road. So he did not lodge any objection to it. The inquiry was held on the 11th and 12th September, 1973. The proposed new road was approved. It was followed by an order dated March 28, 1974, under the Highways Act 1959, for the stopping up of highways and constructing new ones: and an order dated May 9, 1974, for the compulsory purchase of property needed in order to construct the proposed new road. Now Mr Ostler makes this point. He did not know of the secret agreement with Batemans. If he had, he would have lodged objection at the first stage. But not knowing of it, he made no opposition. So the orders were made in his absence. Now we come to the next item. In July 1974 the local authority made a supplementary order under which they proposed to widen Craythorne Lane itself. Mr Ostler did object to this. He thought that the widening of Craythorne Lane would injuriously affect his premises and his business: because they were at the corner of Craythorne Lane. This second stage was the subject of another inquiry. It was held in December 1974 for four days. Mr Ostler instructed solicitors to object on his behalf. He gave evidence. He sought to refer to the past history. In particular he wanted to say that he would have objected at the first stage if he had known that the whole project would affect his property. But he was not allowed to go into it. The Inspector said: ‘Mr Ostler, I can’t allow that evidence. We are here to discuss the Craythorne Lane scheme only.’ So his evidence was excluded on that point. The Inspector made his report, recommending the widening of Craythorne Lane. The Minister confirmed the Order in July 1975. Two or three months later Mr Ostler got to know of the secret agreement with Batemans which had been made before the first inquiry. So in December 1975 he applied to the Queen’s Bench Divisional Court to quash, not the latest order in July 1975 about Craythorne Lane, but the earlier orders about the line of the trunk road and the acquisitions in consequence of it. He said that they were invalid. His

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case is that there was a want of natural justice and, further, that there was a want of good faith because of the secret agreement. The Divisional Court thought that the authority of Smith v East Elloe Rural District Council [1956] AC 736 (HL) might have been shaken by the Anisminic case [1969] 2 AC 147 (HL). So they thought that there should be further evidence before them, such as evidence about the secret agreement and evidence as to whether or not there had been any lack of good faith or any want of natural justice. The Department felt that this taking of evidence would involve delay and hold up the work. So Mr Woolf has come to this Court by way of appeal. ... Now it is quite clear that if Mr Ostler had come within six weeks, his complaint could and would have been considered by the Court. The relevant provision is contained in Schedule 2 to the Highways Act 1959. Paragraph 2 says:

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If a person aggrieved by a scheme or order to which this Schedule applies desires to question the validity thereof, or of any provision contained therein, on the ground that it is not within the powers of this Act or on the ground that any requirement of this Act or of regulations made thereunder has not been complied with in relation thereto, he may, within six weeks from the date on which the notice required by the foregoing paragraph is first published, make an application for the purpose to the High Court.

That is a familiar clause which appears in many statutes or schedules to them. Although the words appear to restrict the clause to cases of ultra vires or noncompliance with regulations, nevertheless the courts have interpreted them so as to cover cases of bad faith. On this point the view of Lord Radcliffe has been accepted (which he expressed in Smith v East Elloe Rural District Council [1956] AC 736, at 769). In addition this Court has held that under this clause a person aggrieved – who comes within six weeks – can upset a scheme or order if the Minister has taken into account considerations which he ought not to have done, or has failed to take into account considerations which he ought to have done, or has come to his decision without any evidence to support it, or has made a decision which no reasonable person could make. It was so held in the Ashbridge Investments Ltd v Minister of Housing and Local Government (1965) 1 WLR 130 and the Minister did not dispute it. It has been repeatedly followed in this Court ever since and never disputed by any Minister. So it is the accepted interpretation. But the person aggrieved must come within six weeks. That time limit has always been applied.

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That paragraph is succeeded by the next but one paragraph, paragraph  4, which is complementary to it: Subject to the provisions of the last foregoing paragraph, a scheme or order to which this Schedule applies shall not, either before or after it has been made or confirmed, be questioned in any legal proceedings whatever, and shall become operative on the date on which the notice required by paragraph 1 of this Schedule is first published, or on such later date, if any, as may be specified in the scheme or order.

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So those are the strong words, ‘shall not ... be questioned in any legal proceedings whatever’. They were considered by the House of Lords in Smith v East Elloe Rural District Council [1956] AC 736. A lady brought an action to set aside an order for compulsory purchase. The six weeks had long since expired. She said the order was induced by the fraud of the clerk to the local council. The majority of the House held that her claim should be struck out against the council, but they allowed it to go on as against the clerk. Mr Payton told us that afterwards she even failed to prove any fraud against the clerk. So the decision of the House itself was based on a hypothesis which turned out to be unfounded – just like Donoghue v Stevenson [1932] AC 562. But even so it is a decision that the paragraph does bar an action to quash an order for compulsory purchase even though it is put on the ground of fraud – if it is brought after the six weeks. Thirteen years later the House had to consider the Anisminic case, [1969] 2 AC 147. It was on a very different provision. The Foreign Compensation Act 1950, section 4(4) said: The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.

The House held that that clause only applied to a real determination. It did not apply to a purported determination. They held that there had been no determination, properly so called by the Commission. So their decision could be called in question. Some of their Lordships seem to have thrown doubt on Smith v East Elloe Rural District Council [1956] AC 736: see what Lord Reid said at [1969] 2 AC 147, at 170–171. But others thought it could be explained on the ground on which Browne J explained it. Lord Pearce said, at 201: ‘I agree with Browne J that it is not a compelling authority in the present case’; and Lord Wilberforce said, at 208: After the admirable analysis of the authorities made by Browne J ... no elaborate discussion of authority is needed.

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I turn therefore to the Judgment of Browne J. His judgment is appended as a note to the case supra, at 223 et seq. He put Smith v East Elloe Rural District Council supra, at 224, as one of the ‘Cases in which the inferior tribunal has been found guilty of bias, or has acted in bad faith, or has disregarded the principles of natural justice’. He said of those cases: It is not necessary to decide it for the purposes of this case, but I am inclined to think that such decisions are not nullities but are good until quashed (cf the decision of the majority of the House of Lords in Smith v East Elloe Rural District Council [1956] AC 736, that a decision made in bad faith cannot be challenged on the ground that it was made beyond powers and Lord Radcliffe’s dissenting speech …).

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In these circumstances, I think that Smith v East Elloe Rural District Council must still be regarded as good and binding on this Court. It is readily to be distinguished from the Anisminic case (1969) 2 AC 147. The points of difference are these: First, in the Anisminic case the Act ousted the jurisdiction of the Court altogether. It precluded the Court from entertaining any complaint at any time about the determination. Whereas in the East Elloe case the statutory provision has given the Court jurisdiction to inquire into complaints so long as the applicant comes within six weeks. The provision is more in the nature of a limitation period than of a complete ouster. That distinction is drawn by Wade, Administrative Law, 3rd ed (1971), pp 152–153, and by De Smith in the latest edition of Halsbury’s Laws of England, 4th ed, Vol 1 (1973), para 22 fn 14. 32 Second, in the Anisminic case, the House was considering a determination by a truly Judicial body, the Foreign Compensation Tribunal, whereas in the East Elloe case the House was considering an order which was very much in the nature of an administrative decision. That is a distinction which Lord Reid himself drew in Ridge v Baldwin, [1964] AC 40, at 72. There is a great difference between the two. In making a judicial decision, the tribunal considers the rights of the parties without regard to the public interest. But in an administrative decision (such as a compulsory purchase order) the public interest plays an important part. The question is, to what extent are private interests to be subordinated to the public interest. Third, in the Anisminic case the House had to consider the actual determination of the tribunal, whereas in the Smith v East Elloe case the House had to consider the validity of the process by which the decision was reached.

32 W Wade (1971). Administrative Law (Third edition). Oxford: Oxford University Press; Lord Simons (ed) (1973). Halsbury’s Laws of England (Volume 1) (Fourth edition).

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So Smith v East Elloe Rural District Council [1956] AC 736 must still be regarded as the law in regard to this provision we have to consider here. I would add this: If this order were to be upset for want of good faith or for lack of natural justice, it would not to my mind be a nullity or void from the beginning. It would only be voidable. And as such, if it should be challenged promptly before much has been done under it, as Lord Radcliffe put it forcibly in Smith v East Elloe Rural District Council [1956] AC 736, at 769–770:

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But this argument is in reality a play on the meaning of the word nullity. An order – and he is speaking of an order such as we have got here – even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. And that brings us back to the question that determines this case: Has Parliament allowed the necessary proceedings to be taken? The answer which he gave was ‘No’. That answer binds us in this Court today.

Since the Anisminic case the Court considered the position in Routh v Reading Corporation, December 2, 1970 Bar Library Transcript No 472 of 1970. Salmon LJ, supported by Karminski and Cairns LJJ, held that Smith v East Elloe Rural District Council was of good authority, even after the Anisminic case. In Scotland, too, it has been applied, in Hamilton v Secretary of State for Scotland, 1972 SLT 233. Looking at it broadly, it seems to me that the policy underlying the statute is that when a compulsory purchase order has been made, then if it has been wrongly obtained or made, a person aggrieved should have a remedy. But he must come promptly. He must come within six weeks. If he does so, the Court can and will entertain his complaint. But if the six weeks expire without any application being made, the Court cannot entertain it afterwards. The reason is because, as soon as that time has elapsed, the authority will take steps to acquire property, demolish it and so forth. The public interest demands that they should be safe in doing so. Take this very case. The inquiry was held in 1973. The orders made early in 1974. Much work has already been done under them. It would be contrary to the public interest that the demolition should be held up or delayed by further evidence or inquiries. I think we are bound by Smith v East Elloe Rural District Council (1956) AC 736 to hold that Mr Ostler is barred by the statute from now questioning these orders. They ought to be stopped at this moment. I would allow the appeal accordingly.

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Goff LJ:

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I agree. … In the Smith v East Elloe Rural District Council [1956] AC 736 the relevant provisions were in fact in paragraphs 15 and 16 of Schedule I to the Acquisition of Land (Authorisation Procedure) Act 1946, but with one odd little exception they are identical with those to be found in Schedule 2 to the Highways Act 1959, which applies in this case – paragraphs 2, 3 and 4. The oddity to which I have referred is that what is now contained in paragraphs 2 and 3 was combined in the old paragraph 15, and paragraph 16 opened with the words ‘Subject to the provisions of the last foregoing paragraph’. Those words have been taken into paragraph 4 of the Act of 1959, although the preceding provisions are now split up into two paragraphs, and the reference should really be to paragraph 2, not paragraph 3, or, at any rate, to both of them. But I think it must be construed as applying to paragraphs 2 and 3, and, therefore, the provisions considered in Smith v East Elloe Rural District Council are identical for all practical purposes with those in the Highways Act of 1959. In my judgment, in Smith v East Elloe Rural District Council the majority did definitely decide that those statutory provisions preclude the order from being challenged after the statutory period allowed, then by paragraph 15 and now by paragraph 2, and we are bound by that unless Anisminic Ltd v Foreign Compensation Commission [1959] 2 AC 147 has to cut across it that we are relieved from the duty of following Smith v East Elloe Rural District Council and, indeed, bound not to follow it. Nevertheless, despite those difficulties, I think there is a real distinction between the case with which the House was dealing in Anisminic and the case of Smith v East Elloe Rural District Council on the ground that in the one case the determination was a purported determination only, because the tribunal, however eminent, having misconceived the effect of the statute, acted outside its jurisdiction, and indeed without any jurisdiction at all, whereas here one is dealing with an actual decision made within jurisdiction though sought to be challenged. It cannot be gainsaid that some of the speeches in Anisminic do appear to cast doubts upon the correctness of the decision in Smith v East Elloe Rural District Council, but it certainly was not expressly overruled, nor did any of their Lordships, as I see it, say that it was wrong. There are substantial differences, such as Lord Denning MR and I have indicated, between the two cases, and it seems to

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me that Smith v East Elloe Rural District Council stands, is binding on this Court, and is a decision directly in point. I would therefore allow the appeal on that ground, and I am fortified in this conclusion by what Cairns LJ said in Routh v Reading Corporation, Bar Library Transcript No 492 of 1970, p 12: It is a harsh rule, but it is expressly laid down in paragraphs 15 and 16 of Schedule I to the Acquisition of Land (Authorisation Procedure) Act, 1946 and those paragraphs have been strictly interpreted by the House of Lords in the East Elloe case. By that decision we are bound, and the language of their Lordships in that case is, in my view, sufficient to cover the present case. A suggested possible loophole did emerge, not, I must say, from Mrs Routh’s submissions, but from Mr Glover, who suggested that a possible distinction that Mrs Routh might be seeking to make was between a void and a voidable order. I think that the language of the Members of the House of Lords in the East Elloe case does cover both situations; and if further confirmation is needed it is to be found in the passage from the Judgment of Jenkins LJ, in Woollett v Minister of Agriculture & Fisheries [1955] 1 QB 103 to which Salmon LJ, has referred.

…

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Shaw LJ: I agree that this appeal should succeed, and I would respectfully adopt the reasons given by Lord Denning MR. The present case falls fairly and squarely within the decision determined by the majority opinion of the House of Lords in Smith v East Elloe Rural District Council [1956] AC 736. If that decision survives notwithstanding what was said in Anisminic [1969] 2 AC 147, it follows that the restriction or limitation imposed by paragraphs 2 to 4 of Schedule 2 to the Highways Act 1959, and paragraphs 15 and 16 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946 precludes any resort to the Court, whether by way of certiorari or otherwise, with the object of challenging the validity of the order in question on any ground whatsoever after the prescribed period of six weeks has expired. It seems to me that Anisminic v Foreign Compensation Commission [1969] 2 AC 147 can be distinguished on two or perhaps three grounds: first, that the statutory order considered in that case, namely, the Foreign Compensation Order, prescribed the basis on which the Foreign Compensation Commission were to found a determination as to whether the substance of a claim was to be treated as established. This rendered the question of whether or not there had been a valid

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determination at all open to review in circumstances where it could be shown that the Commission proceeded on a wrong view of the law. Secondly, the determination considered in Anisminic could not in any circumstances have been a valid determination so that it was void ab initio, while the order in the present case, as in East Elloe, was one which could be arrived at as a proper order. Lastly, in the East Elloe case it was the validity of the compulsory purchase order that was in question and not any ultimate question of payment of compensation, which, in the last resort, remains as a means of affording redress to a person who has been dispossessed against his will. I would hold that the respective provisions of the Schedules to the Highways Act 1959, and the Acquisition of Land (Authorisation Procedure) Act 1946 operate to make that order wholly immune from any challenge whatsoever save within the limited period prescribed, and accordingly I would allow the appeal.

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Notes 1. The cases in [36], [37] and [38] concern the common-law rule against delay in instituting review proceedings where no time limit is prescribed within which to institute review proceedings. The present case [39] and the following case [40] concern the existence of statutory time limits within which to institute review proceedings; the so-called ‘limitation clauses’. 2. In the instant case applicant, a cord merchant with business premises in the market square of an old town, applied in December 1975 to the Queen’s Bench Divisional Court for leave to move for an order of certiorari to quash (ie set aside) a road scheme order made under the Highways Act 1959 and a compulsory purchase order made under the Acquisition of Land (Authorisation Procedure) Act 1946. Both orders were made to carry out a road scheme to relieve traffic congestion in the town centre, and Secretary of State for the Environment confirmed both orders on 8 May 1974. 3. In support of his application, applicant claimed that he had not objected to the original proposals when they were published in 1972, because they appeared not to touch his premises. For that reason, he had not attended the first public inquiry in September 1973. However, after the orders had been confirmed, a supplementary proposed order was published which would, if carried out, affect his premises.

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4. Counsel took a preliminary objection on behalf of the Secretary of State. One was that any attack on the validity of the confirmed orders was barred in any legal proceedings whatever because the prescribed six-week period under Schedule 2 to the Act of 1959 and para 15 of Schedule 1 of the Act of 1946 for questioning them had expired. 5. The Divisional Court, after considering whether certain speeches in the House of Lords in a later decision had undermined the earlier authority, at first adjourned the application to go into the merits, and a few days later granted the Secretary of State leave to appeal on the preliminary point of law. 6. The Court of Appeal held that such statutory limitations do not have the effect of ousting the jurisdiction of the court: It precludes the administrative action concerned from being challenged after the statutory period allowed has elapsed. 7. On the authorities, I submit that such such limitation clauses are Constitutioncompliant. What is unconstitutional are finality or privative clauses by which a decision by an administrative body is considered final and not subject to judicial control by way of review or at all. See a discussion of statutory finality or privative clauses in chapter 3, para 3.3.5 (Part A. Text). 8. The difference between a limitation clause and a finality clause is that a limitation clause prescribes a limitation period within which a person may institute proceedings, whereas a finality clause bars altogether the institution of proceedings. B. Cases

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[4 0] Katjivena v Prime Minister of the Republic of Namibia 2016 (3) NR 903 (HC) Parker AJ: [1] In April 2010 the Namibia Correctional Service (whose Commissioner General is the third respondent) would see a new organizational structure. This would necessitate approved ‘revised salary scales, in terms of which new salary notches and increments applied, with effect from 1 December 2009, to the grades of the job category, namely, Correctional Officer. The approval was the decision of the then Prime Minister contained in a letter dated 25  January 2010 (annexed to

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the founding affidavit) (‘the Prime Minister’s letter’). Pursuant to the approved revised remuneration, third respondent issued a notice whereby third respondent informed each applicant about each applicant’s new rank and the remuneration such rank carried with effect from 1  December 2009. As a result, applicants received backdated salaries, with effect from 1 December 2009. The payments were made in April and May 2010. [2] It was the respondents’ view that the payments were made not in accordance with the decision of the Prime Minister found in the Prime Minister’s letter. Consequently, the respondents decided to deduct various amounts of money from the salaries of applicants in their effort to recover the alleged unauthorized payments; and, according to the respondents, this was done in terms of the Public Service Act 13 of 1995. I use the adjective ‘alleged’ advisedly. It is for a good reason, as I shall demonstrate in due course. … [12] Mr Kashindi says that the prescription objection is based on s 33 of the Public Service Act and s 133(3) of the Correctional Service Act 9 of 2012. On the facts and in the circumstances of the instant case, in terms of both statutes the limitation period is 12 months. And Mr Kashindi submits that ‘between May and November 2012’

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the applicants had knowledge or might reasonably have been expected to have knowledge that they were overpaid and that deductions will be made from their salaries. This is evidenced by various memos and letters dated 21  May 2012, 29 May 2012, 16 November 2012, 7 November 2012, 6 November 2012, 16 October 2012, 31 October 2012, respectively, that were sent to the applicants.

And so, for Mr Kashindi, the cause of action arose during May and November 2012. Sadly, applicants only filed their application with the Registrar of the Honourable Court on the 30th of September 2014 and served same on the respondents’ legal representatives on the 2nd of October 2014. That is more than twelve (12) calendar months after the date on which the cause of action arose (a delay of about seventeen months). There is no explanation on record for the delay.

[13] Based on the aforegoing argument of his, Mr Kashindi submits in peroration that in the premises and circumstances of this case, the applicants’ claim has prescribed in terms of section 33 of the Public Service Act and section 133(3) of the Correctional Service Act.

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[14] The argument on the other side by Mr Rukoro is that the applicants’ claim has not prescribed for two reasons. First, the deductions complained of commenced on 30 September 2013, and that is when the debt the applicants are suing on arose. And second, upon the authority of Barnett & Others v Minister of Land Affairs & Others 2007 (6) SA 313 (SCA) the wrongful act of the respondents (the deductions) constitutes continuous wrong rather than a single wrongful act in the past because it is ‘still in the course of being committed and is not wholly in the past’. (Barnett & Others supra, para 21.) Thus, for Mr Rukoro, on the authority of Barnett & Others, since the deductions are continuing, the claim has not prescribed.

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[15] I accept Mr Rukoro’s argument based on the two grounds. I find that the cause of action arose ‘in the past’ on 30 September 2013, and not between May and November 2012, and the wrongful act is continuing. With the greatest deference to Mr Kashindi, Mr Kashindi’s argument is weak in the extreme for the following reasons. The applicants could not have been aggrieved by a wrong which may or may not be committed. Put simply, between May and November 2012 the respondents had not ‘done or omitted’ to do anything, within the meaning of s 33 of the Public Service Act or s 133(3) of the Correctional Service Act. One cannot complain about ‘anything’ which has not been ‘done’ or ‘omitted’ to be done in relation to him or her. The applicants could not lay claim for payment of debt in May to November 2012 when no debt existed, that is, when no deductions from their salaries had taken place. That is common sense, apart from the law. [16] According to the applicants – and I agree – the wrongful deductions constitute the debt and no deductions had taken place in May to November 2010, that is, at that time, as I have said more than once, the respondents had not ‘done anything’ or ‘omitted’ to do anything in May to November 2010, within the meaning of s 33 of the Public Service Act and s 133(3) of the Correctional Service Act, which provisions Mr Kashindi is so much enamoured with and which is the talisman on which Mr Kashindi hangs his contention. [17] Mr Kashindi’s argument that the applicants should have brought an application for interdictory relief to stop the deductions carries no weight – none at all. It cannot take the respondents’ case any further. Probably, such approach would commend itself to Mr Kashindi, but it does not to the applicants. The applicants have chosen a route permitted by the law and the rules of court that answer to their claim that moneys have been taken from them unlawfully, that is, ‘anything

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done’ by the respondents (see s  33 of the Public Service Act and s  133(3) of the Correctional Service Act), by which they now seek redress. .

[18] Thus, upon the interpretation and application of s 33 of the Public Service Act and s 133(3) of the Correctional Service Act and upon the authority of Barnett & Others v Minister of Land Affairs & Others, I accept Mr Rukoro’s submission and reject Mr Kashindi’s. It follows that the point in limine on prescription also fails; and, it is rejected.

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Notes 1. In April 2010 the Namibia Correctional Service (whose Commissioner General is the third respondent) would see a new organisational structure. This would necessitate approved revised salary scales, in terms of which new salary notches and increments applied, with effect from 1  December 2009, to the grades of the job category, namely, Correctional Officer. The approval was the decision of the then Prime Minister contained in a letter dated 25 January 2010 (annexed to the founding affidavit) (‘the Prime Minister’s letter’). Pursuant to the approved revised remuneration, third respondent issued a notice by which third respondent informed each applicant about each applicant’s new rank and the remuneration such rank carried with effect from 1  December 2009. As a result, applicants received backdated salaries, with effect from 1 December 2009. The payments were made in April and May 2010. 2. It was respondents’ view that the payments were made not in accordance with the decision of the Prime Minister found in the Prime Minister’s letter. Consequently, respondents decided to deduct various amounts of money from the salaries of applicants in their effort to recover the alleged unauthorised payments, and, according to the respondents, this was done in terms of the Public Service Act 13 of 1995. 3. This case is significant for one good reason: it confirms that the application of statutory limitation clauses is Constitution-compliant in Namibia. 4. It is also significant for this reason. On the authority of the landmark South African case of Barnett & Others v Minister of Land Affairs & Others 2007 (6) SA 313 (SCA), the Court held that where the impugned administrative action is continuing and is not in the past, it cannot be successfully argued that the claim has prescribed in terms of the limitation clauses of the applicable Acts, for example, the Public Service Act, 1995 (Act No 13 of 1995), s 33; and the Correctional Service Act, 2012 (Act No 9 of 2012), s 133.

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The reason is that if the wrong complained of was continuing, it is impossible to determine the time from which a calculation should be made for the purposes of determining whether the time within which to institute review proceedings has elapsed.

5.4 Peremptory for applicant to join and cite correct administrative body or official whose decision applicant attacks by judicial review

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A. Text The rationale for the requirement that an applicant who wishes to bring judicial review proceedings must cite the correct respondent is that it is a particular action of a particular administrative body which or official whom the applicant wishes to attack by judicial review. What is more, that particular administrative body or official must answer to the applicant’s averments. In this regard, rule 76(1) of the Rules of Court is of great assistance. I submit that where it is not clear on the papers as to the identity of the particular administrative body or official whose act applicant seeks to challenge by judicial review, there would be no application properly before the Court. The Court would be entitled to refuse such application. If the application were to be entertained, the intractable problem that would arise is whose decision applicant seeks to challenge and who ought to answer to the averments made by applicant in the founding affidavit. These considerations must carry considerable weight in favour of refusing to entertain such application. In sum, non-joinder of the correct administrative body or official or the incorrect citing of the correct administrative body or official whose act applicant prays the Court to review and set aside should be fatal. 33 Indeed, in judicial review proceedings, applicant has no good reason – none at all – to fail to cite or join the right administrative body or official whose decision he or she attacks by judicial review. The reason for this is that applicant is entitled to the record of the decisionmaking process, if there is any such record, and any documents that are relevant to the issues at hand,34 as well as to reasons for the decision. 33 Premier Construction CC v Chairperson of the Tender Committee 2014 (4) NR 1002 (HC). 34 R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (HL), at 654.

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The peremptory requirement that an applicant must join and cite the correct administrative body or official becomes necessary also when the Court is determining the questions of: (a) unreasonable delay in instituting review proceedings;35 (b) the issue of exhaustion of statutory domestic (or internal) remedies before approaching the Court for redress.36 We saw at the beginning of section 5.1 that judicial review must be brought in terms of rule 76 of the Rules of the High Court, and that that rule prescribes that such application must be directed and delivered to ‘the chairperson of the administrative body or official’ whose decision is attacked by the judicial review application. Rule 76 provides: (1) All proceedings to bring under review the decision or proceedings of an inferior court, a tribunal, an administrative body of administrative official are, unless the law otherwise provides, by way of application directed and delivered by the parry seeking to review such decision or proceedings to the magistrate or presiding officer of the court, the chairperson of the tribunal, the chairperson of the administrative body or the administrative official and to all other parties affected.

B. Cases

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[41] Premier Construction CC v Chairperson of the Tender Committee 2014 (4) NR 1002 (HC) Parker AJ: … [4] Part A (of the notice of motion), as I have said, is not the burden of this court in the present proceeding; Part B (of the notice of motion) is …

35 See para 5.3.1, where I have discussed the law. 36 See section 5.7, where I have treated the doctrine of exhaustion of statutory domestic remedies.

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…

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[7] As regards para  3 of the notice of motion; the first issue is this: have the respondents been properly cited? The respondents contend that they have not. I agree with the respondents. The applicant is of two minds as to whom the first respondent, the second respondent or the third respondent is. The applicant relies on art 18 of the Namibian Constitution for the review application (part A of the notice of motion). In that event, if art 18 of the Constitution is read with rule 76 of the rules of court, it is clear that the first respondent is an administrative official, so is the second respondent, and the third respondent is an administrative body within the meaning of art 18 of the Namibian Constitution. But it cannot seriously be argued that the decision sought to be reviewed and set aside is that of the first respondent or second respondent. Doubtless, it is that of the third respondent. [8] It is inexplicable why the first and second respondents have been joined as parties at all. In this regard, for Mr Hinda there is no good reason as to why they have been joined and for such misjoinder of parties the notice of motion is doomed to fail unless it is amended. I accept Mr Hinda’s submission because it is sound. In all this it is worth noting that it is critical that a party, who desires to bring an application under review and the setting aside a decision of an administrative body or an administrative official, must be clear in his or her own mind which administrative body or administrative official he or she is dragging to court. I have said previously that on the facts it can only be the decision of the third respondent that may be reviewed and set aside. The first respondent is the chairperson of a committee of the third respondent; and, in that case, the committee could have played a recommending role only in the award of the tender. And as to the second respondent; she is an administrative official, but she could not have taken the decision as to whom the third respondent should award the tender. [9] In my opinion, where a party who prays the court to review and set aside the decision of an administrative body or an administrative official is not clear in its own mind whose decision it has approached the court to review and set aside, there should be fatal consequences for such a party. In the present proceeding and at this juncture I should say that such fatal consequence (I shall refer to others in due course) is this. As the papers stand, the review application is doomed to fail for the reasons I have given previously. It cannot even begin to take off from the starting blocks. The result would undoubtedly be this. There would be only a defective

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application filed with the court. But nothing could come out of such defective application: ex nihilo nihil fit. The result, I should say, would be that in effect there would be no proper review application pending finalisation of which the interim relief is sought in the instant proceeding. For these reasons and conclusions, I hold that it would be unjust, unfair and unreasonable to grant the relief sought in para 3 of the notice of motion ….

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Notes 1. Applicant failed to win a tender. The employer (Namibia Power Corporation) awarded the tender to fourth respondent. In the present proceedings, applicant applied on an urgent basis for an order interdicting the first to third respondents from implementing or giving effect to the tender pending a review of the awarding of the tender. Respondents opposed the application. In its application the applicant cited the Chairperson of the Tender Committee of the Namibia Power Corporation Board of Directors as the first respondent, the Chairperson of Namibia Power Corporation as second respondent and the Namibia Power Corporation as third respondent, as well as the successful tenderer as fourth respondent. Applicant contended that it was seeking urgent interim relief, on the basis that there had been a prima facie infringement of its rights under art 18 of the Constitution. 2. The High Court found that in virtue of rules that repealed the old rules, which were a carbon copy of the Uniform Rules of Court of South Africa, it has become peremptory in terms of rule 76 (equivalent to rule 53 of the Uniform Rules), read with art 18 of the Namibian Constitution, for an applicant to cite as respondent the correct administrative body or official whose act applicant attacks by review and the founding affidavit must indicate clearly that particular administrative body or official concerned. 3. In this case [41], applicant did not indicate clearly in the founding affidavit whose decision applicant was challenging. The Court held that where a party who prayed the Court to review and set aside the decision of an administrative body or an administrative official was not clear in its own mind whose decision it had approached the Court to review and set aside, there should be fatal consequences for such application. As the papers stood, the Court concluded that the review application was doomed to fail on that ground alone, and it failed.

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4. The Court explained why the application constituted a defective application which stood to be refused.

5.5 Record of proceedings required for instituting proceedings in judicial review of administrative action

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A. Text This paragraph discusses ‘record of proceedings’ within the meaning of rule 76 of the Rules of the High Court. I shall therefore consider the interpretation and application of rule 76 of the Rules of Court with regard to ‘record of proceedings’. The starting point is this. There is no rule of law which prescribes that every administrative official should act or decide (ie take administrative action) only after conducting proceedings. Most invariably, the taking of administrative action by administrative officials does not involve proceedings of any shape or hue. For instance, the registrar of trademarks does not conduct any proceedings when he or she decides whether to register a trademark in terms of the South West Africa Trade Marks Act.37 Another example: the administrative official authorised by the Income Tax Act38 to impose income tax on taxpayers does not take a decision on the amount of tax payable after conducting proceedings. A third example is this: in terms of s 47(1) of the Nature Conservation Ordinance,39 the Minister of Environment and Tourism is authorised to grant an exemption to a deserving owner or lessee of a farm which is enclosed by a game-proof fence to sell any game or game meat or any such skins originating from that farm.40 When deciding whether to grant an exemption or not, the decision-making process does not involve proceedings. Yet again: in terms of s  9(2) of the Marriage Act, 1961,41 the Minister of Home Affairs and Immigration may set aside any decision taken by an administrative official in his or her ministry in the implementation of any provision of the Act. When deciding whether to set aside any decision of an

37 38 39 40

Act No 48 of 1973. Act No 24 of 1981. Ordinance No 75 of 1975. See Gurirab v Minister of Home Affairs and Immigration & Another 2016 (1) NR37 (HC). 41 Act No 25 of 1961.

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official in his or her ministry, the minister does not do so in any proceedings. The examples are endless. As I have said previously, the word ‘proceedings’ is used in law to describe ‘the business done by tribunals of all kinds’.42 ‘Piece of paper’, a ‘piece of information’ or a ‘document’43 cannot be a ‘business done by tribunals of all kinds’. The only way ‘a piece of paper’, ‘a piece of information’ or ‘a document’ can form part of judicial or other tribunal proceedings is for that piece of paper, that piece of information or that document to be admitted as evidence in the judicial or other tribunal proceedings in question. It is worth noting that, significantly, the rule-maker uses the phrase ‘a record of proceedings’ and the word ‘decision’ disjunctively in rule 76(1); and so, as a matter of law and language, that phrase and that word cannot mean the same thing. Indeed, rule 76 uses these phrases: ‘decision or proceedings’ (subrule (1)); ‘such decision or proceedings’ (subrule 2(a)); and ‘decision or proceedings’ (subrule (3)). [Emphasis added.] Rule 76 envisages situations where what the applicant seeks to review may be either a ‘decision’ or ‘proceedings’, indicating clearly that ‘decision’ stands in contradistinction to ‘proceedings’. I submit that it is not insignificant, neither is it aleatory that rule 76 uses the words ‘decision’ and ‘proceedings’ disjunctively. In this regard, one should not lose sight of the fact that rule 76 does not concern administrative bodies and officials only; it also concerns lower courts and tribunals. While the decisions of administrative bodies and officials may not be taken in the course of proceedings, the decisions of lower courts and tribunals are taken in ‘proceedings’; accordingly, the law expects lower courts and tribunals to keep ‘record of proceedings’. This is not the case so far as administrative officials are concerned. Moreover, administrative bodies – for example, the Immigration Selection Board created by the Immigration Control Act44 – on the other hand, do take decisions in meetings attended by those who are members of such administrative bodies. O’Linn J observed in Aonin Fishing v Minister of Fisheries and Marine Resources that: 42 Bryan A Garner (1995). A Dictionary of Modern Legal Usage (Second edition). New York: Oxford University Press. 43 See Aonin Fishing (Pty) Ltd & Another v Minister of Fisheries and Marine Resources 1998 NR 147 (HC) at 150C. 44 Act No 7 of 1993.

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the analogy of a court record is difficult to apply when the decision in the review matter was arrived at behind the scenes via the participation of a chain of participants varying from individuals or committees contributing some expertise in the form of facts, recommendations and opinions to even final decisions taken in secret by the Cabinet.45

Granted, in the examples above the minister or officials will call for all kinds of information, usually supplied on prescribed forms, which an applicant must complete and submit to the administrative body or official in question. Supporting documents usually accompany such forms. In some cases, one may apply through a letter under one’s hand to an administrative body or official for their decision. It would be doing violence to the English language and damage to the law for one to characterise such letters, such information and such documents as ‘record of proceedings’ in terms of rule 76 of the Rules of Court. Such information, such application form, such letter, such pieces of paper and such documents cannot constitute ‘record of proceedings’ within the meaning of rule 76 of the Rules of Court, as has been demonstrated. They constitute materials relied on by the administrative body or official concerned in taking the ‘decision’ in question. They will form part of the record if they are admitted as part of the record in terms of the rules of the tribunal or the lower court concerned. I repeat what I have said previously: one should not lose sight of the fact that rule 76 does not concern administrative bodies and officials only; it also concerns lower courts and tribunals. In addition, it should be stressed that an administrative body or official is not and cannot be a tribunal within the meaning of art 12(1) of the Constitution. In Aonin Fishing v Minister of Fisheries and Marine Resources O’Linn J accepted, relying on the authorities he refers to, that: The words ‘record of proceedings’ cannot be otherwise construed, in my view, than as a loose description of the document, evidence and arguments and other information before the tribunal relating to the matter under review, at the time of the making of the decision in question. It may be a formal record and dossier of what has happened before the tribunal but it may also be a disjointed indication of the material that was at the tribunal’s disposal.46

45 1998 NR 147, at 149G–H. 46 Ibid, at 150C.

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The principles enunciated by Marais J in Johannesburg City Council v The Administrator of Transvaal & Another (1)47 were followed by Hoexter J in Pieters v Administrator van Suidwes-Africa en ’n Ander.48 O’Linn J relied on those cases in Aonin Fishing. Indeed, Johannesburg City Council and Pieters, the primary sources of those authorities, concern tribunals, not administrative bodies or officials. Doubtless, the decision-making process of an administrative body may, as I have said previously, yield a record in the form of minutes of deliberations of the meeting of the administrative body in question and those minutes are relevant because they form the record of the decision-making process. Nevertheless, it should be said that the form and content of a ‘record of proceedings’ differs depending upon whether one is dealing with ‘an inferior court’, ‘a tribunal’ or ‘an administrative body’. The ‘record’ mentioned in rule 76 of the Rules of the High Court cannot therefore be a one-size-fits-all item. What is the situation regarding the decision-making process of administrative officials? I submit that there cannot always be a ‘record of proceedings’ or minutes of meeting in the decision-making process involving administrative officials. With an administrative official, what is subject to review is the decision-making process leading to the ‘decision’ sought to be reviewed, and it cannot always involve ‘proceedings’ or minutes of meetings, as described previously. I have said more than once that, when an administrative official is taking a decision, the decisionmaking process does not involve a meeting or proceedings. Administrative officials do not take decisions in meetings or in proceedings, unlike administrative bodies that must take decisions during meetings attended by members of the bodies. The decision-making process with regard to administrative bodies also differs from the decision-making process with regard to inferior courts, which involves judicial proceedings, and from the decision-making process of tribunals, which involve tribunal proceedings, for example arbitral proceedings. When it comes to tribunals and inferior courts, what a record of proceedings should contain is not difficult to fathom. The same goes for the minutes of meetings of administrative bodies; not so the decision-making process involving an administrative official, since, as I have described previously, an administrative official usually takes decisions without going through any kind of proceedings – properly so called. For this reason, regarding an administrative official, what would

47 1970 (2) SA 89 (T). 48 1972 (2) SA 220 (SWA).

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be available to be disclosed to an applicant for judicial review is the administrative action that such official has taken, the reason for it, and any official documents, for example on policy, that the administrative official may have referred to. However, it does not include – it must be emphasised – every piece of paper containing internal memos from other administrative officials within the administrative body in question and external memos that are obtained from administrative officials external to the administrative body in question and other legitimate sources external to that administrative official.49 Such advisory notes and memos cannot answer to the meaning of ‘record of proceedings’ in language or common sense, or in human experience. I emphasise the point that a decision of an administrative official is not taken in any proceedings or during a meeting. After all, as a matter of law, one person on their own cannot constitute a meeting: ‘there must be a plurality of persons’. 50 Thus, where an administrative official has taken a decision, it would be unreasonable and unfair for an applicant for review to insist on being given the same kind of ‘record of proceedings’ applicant would expect from an inferior court or a tribunal or a ‘record of proceedings’ in the form of minutes one would expect from an administrative body. In all this, one should not lose sight of these facts that emerge inevitably from the interpretation and application of rule 76 undertaken previously: (a) the rule concerns lower courts, tribunals, administrative bodies and officials, and (b) what is more, the rule draws a distinction between ‘decisions’ and ‘proceedings’, acknowledging the fact that the decision-making process involving an administrative official may be just ‘decisions’, not ‘proceedings’ or meetings. ‘Decisions’ and ‘proceedings’ are therefore not intended by the rule-maker to be lumped together in an interchangeable mode as if ‘decisions’ and ‘proceedings’ for the purposes of rule 76 are synonymous. Four important considerations emerge clearly from the interpretation and application of the provisions of subrules (1) and (2) of rule 76 of the Rules of the High Court: 49 See Tumas Granite CC v the Minister of Mines and Energy & Another 2013 (2) NR 383 (HC). 50 Rt Hon Sir Sebag Shaw & Judge E Dennis Smith (1979). The Law of Meetings (Fifth edition). Estover: MacDonald and Evans, p 53, and the cases cited there.

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(a) The first is that the ‘record of proceedings’ referred to in those provisions is the ‘record of proceedings’ involved in the decision-making process of (a) an inferior court and (b) a tribunal. (b) The second is that as far as administrative bodies are concerned, the ‘record of proceedings’ means the minutes of meetings of the bodies and any official policies that were applied. (c) The third is that the nature and content of ‘the record of proceedings’ of (i) an inferior court and (ii) a tribunal are polar different from the minutes of meetings of administrative bodies. (d) The fourth is that in the case of administrative officials there can be no ‘record of proceedings’ involved in their decision-making process: it should merely be the manner in which the decision complained of was taken, the reason or reasons for the decision and any written official policies that the administrative officials applied. I hasten to emphasise the point that I do not suggest that administrative bodies need not give reasons for their acts and decisions.51 The reasons for a body’s decision must form part of the minutes of the meeting at which the body decided. These four considerations are usually overlooked by many an applicant, resulting in their insisting unreasonably on being provided with all manner of ‘records of proceedings’ imaginable. They do so even where it is the ‘decision’ of an administrative official that is the subject of the review application. I should make one last point. From the foregoing analysis, the conclusion is inescapable that, as a rule, an applicant may institute judicial review proceedings even if there is no ‘record of proceedings’. The reason is that rule 76(2)(b) is intended to operate in favour and to the advantage of the applicant; consequently, the applicant is at liberty to waive the requirement in rule 76(2)(b).52 Nevertheless, applicants will be well advised of the danger they face, if they were to pursue that route. If there are records of proceedings but an applicant decides to institute proceedings without the record, the Court will not have all the evidence before it upon which to decide: (a) whether, for instance, the administrative body in question acted fairly or unreasonably; 51 I have discussed fully in chapter 3 (para 3.3.7) the duty and peremptoriness of administrative bodies and officials to give reasons for their administrative actions. 52 EJ Erasmus (1994). Superior Court Practice. Cape Town: Juta & Co, p B1–385, and the cases there cited.

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(b) whether the body brought its mind to bear on the question before it, and (c) whether the body took into account extraneous matters that it ought to have disregarded or it disregarded matters that it ought to have taken into account.53 B. Cases

[4 2] Tumas Granite CC v the Minister of Mines and Energy & Another 2013 (2) NR 383 (HC) Parker J:

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… [6] …  Thus, I make this third point merely to demonstrate this: In my opinion, there is no requirement under the Namibian Constitution which enjoins an administrative official (or administrative body) to share with any member of the public every document, including every minute, every written advice, every submission and every recommendation that were put at the disposal of the administrative official (or administrative body) in order to enable him or her to act in a matter. It matters not if the member of the public has a direct and substantial interest in the action that the administrative official (or administrative body) is to take. I do not read Kaulinge v Minister of Health and Social Services 2006 (1) NR 377 (HC) to create any such right; neither would the court have been entitled to create such right (see Trustco Insurance v Deeds Registries Regulation Board loc cit). Indeed, any attempt to create such right would be tantamount to extending the operation of s 32 of the South African Constitution to Namibia. [7] In this regard, it is important to note that in taking a particular action the administrative official (or administrative body) would seek advice before taking the action. Thus, it is not unreasonable for an administrative official in the high capacity of a Minister, as is in the present case, to seek and obtain advice from other administrative officials in his Ministry or elsewhere in the Public Service, 53 See Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (CA).

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other administrative bodies and, indeed, from any other legitimate source. And in the process of seeking and obtaining such advice there will come into existence all manner of documents, including minutes, series of written advice, written submissions and written recommendations, etc. (I will now call them internal process materials.) All that the law requires of the administrative official (or administrative body) is that he or she must bring his or her mind to bear on all relevant considerations, consider the matter at hand and act himself or herself, without abdicating his or her statutory power to act, and in so acting satisfy the requirements of Article 18 of the Namibian Constitution and give reasons for his or her action. That is the legal burden such administrative official bears in terms of the Namibian Constitution. Other requirements under the South African Constitution are irrelevant, and so it will be wrong for this court to rely on the South African authorities, which interpret and apply s 32 and s 33 of the South African Constitution, and apply them to this case when there is nothing similar to s 32 in the Namibian Constitution, and the provisions of s 33 and Article 18 are not the same, as aforesaid. [8] I know of no rule of law based on Article 18 or other Articles of the Namibian Constitution or, indeed, any other law that entitles a member of the public who has direct and substantial interest in the outcome of the expected action of the administrative official (or administrative body) to be given every document, including every minute, every written advice, every submission and every recommendation used by the administrative official, and which would in turn entitle the court to order the administrative official (or administrative body) to give to such member of the public every such internal process material placed at the disposal of the action-taker before the action-taker takes action. The court would be setting a very dangerous precedent – without any legal justification – if the court were to make such order in the circumstances and on the facts of the instant case. [9] I hasten to add this. It is different where, for example, X applies for Namibian citizenship, and in giving its reasons for refusing the application, the Immigration Board mentions that the Board had relied on a letter from the University of Namibia in which an official of the University states that X, a Lecturer at the University, was a dishonest person because he sexually harasses lady students of his and gives examination marks to certain ladies in his class in return for sexual favours. In such a situation, the Board ought to have brought to the attention of

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X such new information to enable X to challenge the facts unknown and adverse to X before the board took the decision. Such scenario is at the root of the ratio decidendi of Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment and Tourism 2010 (1) NR 1 (SC) on the facts of that case. If the Board failed to communicate to X such unknown and adverse fact, the decision that the Board made on X’s application would be procedurally unfair: the Board would not have satisfied the requirement of the audi alteram partem rule of natural justice; and so the Board would not have complied with an Article 18 requirement. In the instant case there is not one iota of evidence on the papers that tends to establish that the applicant was not heard before the first respondent took the decision to refuse its application. … In sum, Waterberg Game Hunting Lodge Otjahewita (Pty) Ltd was decided on the facts of the case …. [10] It seems to me clear that in the instant proceeding the only reason why the applicant wants to be given every internal process material is for the applicant to find out whether a decision had been taken on his application and to see the reason why the application was refused. That cannot be a sufficient reason that entitles the applicant to look at every internal process material, as the applicant seeks; for, I accept the fact that on the papers it is irrefragable and indisputable that the applicant has been aware of the decision to refuse its application as far back as 2007 when the applicant was informed of the first respondent’s decision by a letter dated 9  October 2007; and the reasons for refusing the application are in the last paragraph of that letter. The contents of the letter are as clear as day: it is not double talk. It contains a complete decision and the reasons for it. If the applicant was aggrieved by the decision it could have brought the necessary proceedings for redress. The fact that at a later date efforts – either at the initiative of the applicant or the GRN respondents, it matters the least – were made or about to be made aimed at a possible reconsideration of the decision is irrelevant on any count. The irrefragable facts that remain – as I say – are that complete, clear, unambiguous and unequivocal decision was made; the decision and the reasons for it were communicated to the applicant; and the applicant acknowledges receipt of the decision. Thus, even if, in the instant case, an impression was given to the applicant by any of the GRN respondents that the first respondent was minded to reconsider the decision that had been made in 2007 (if he could lawfully do that), that does not detract from the conclusion I have reached previously that there is no legal basis under the Namibian Constitution or any other law which would entitle

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the court to grant the relief sought in para 1 of the notice of motion. Furthermore, since I have found that a decision was taken and it was communicated to the applicant, together with reasons for it, the applicant is not entitled to the relief sought in para 2. It follows that the application fails as respects the relief in paras 1 and 2 of the notice of motion.

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Notes 1. In an application to bring a decision of the first respondent (the minister) under review, applicant brought an interlocutory application in which applicant sought relief that it be given copies of all documentation, including internal minutes of exchanges between officials of the first respondent’s ministry, written advice received, written submissions and recommendations (ie the internal process materials), which first respondent (the minister) used when he took a decision on applicant’s Exclusive Processing Licence (EPL) application. 2. The Court held that an applicant for judicial review in motion proceedings is not entitled to every internal process material imaginable that the body or official used in arriving at their decision. 3. It is important to note that this proposition of law stands in contradistinction to the proposition of law that if a public authority is considering an application from a party and it has something against that party, the public authority ought to tell the party and give them a chance of answering it before turning them down (see Administrator, Transvaal & Others v Traub & Others 1989 (4) SA 731 (A) (case [27])). The authorities do not say that such party has a right to have sight of every internal process material imaginable. The Court in the present case [42] explained why the requirements in art 18 of the Constitution do not include any such entitlement. 4. Thus, different considerations arise where the decision-maker ought to hear the applicant on new facts that are unknown to applicant and which the decisionmaker would like to rely on in order to make a decision. Such considerations existed in Waterberg Big Game Hunting Lodge Otjahawita (Pty) Ltd v Minister of Tourism [50]. On the facts in Waterberg Big Game Hunting Lodge Otjahawita (Pty) Ltd, the Court in the instant case [42] accordingly ruled that that Supreme Court case was distinguishable and therefore not applicable.

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5.6 Discovery and inspection of documents in judicial review proceedings

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A. Text Akin to the ‘record of proceedings’ contemplated in rule 76 of the Rules of Court is the discovery and inspection of documents. In action proceedings, the discovery of documents is commonplace; not so in motion proceedings. The reason is that in motion proceedings the affidavits constitute both the pleadings and the evidence.54 Nevertheless, it may occur in exceptional circumstances that because of certain averments made in the founding affidavit, respondent may want certain documents discovered for the purposes of filing an answering affidavit to counter those averments. Similarly, in virtue of certain issues raised in the answering affidavit, the applicant may want certain documents discovered for the purposes of filing a replying affidavit. If the requested party refuses to make discovery, the requesting party may bring an application, that is, an interlocutory application, to compel the requested party to make discovery. An applicant in motion proceedings (main application) who brings an application (interlocutory application) to compel respondent to discover, and provide applicant with, documents must show exceptional circumstances in order to succeed.55 Any document sought should be relevant to the matter in question and it should be proportionate to the needs of the case within the meaning of rule 28(1). Apart from rule 28(1), rule 70(1), (2) and (3) of the Rules of Court are relevant in such proceedings, and they are peremptory. One should therefore read those provisions together, interpret them intertextually, and apply them together.56 Rule 28 provides: (1) A party must, without the necessity of being requested by any other party to make discovery, identify and describe all documents, analogues or digital recordings that are relevant to the matter in question and are proportionate to the needs of the case and in respect of which no privilege may be claimed and further identify and describe all documents that the party intends or expects to introduce at the trial.

54 Transnet Ltd v Robenstein 2006 (1) SA 591 (SCA), para 28, per Cloete JA. 55 Telecom Namibia Ltd v Communications Regulatory Authority of Namibia & Others 2015 (3) NR 747 (HC), paras 2–8. 56 Loc cit.

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In addition, rule 70 provides: (1) Despite rules 65 to 69, interlocutory and other applications incidental to pending proceedings may be brought on notice supported by such affidavits as the case may require and, if the application is contemplated in a case management report referred to in rule 24, it must be heard as directed by the managing judge. (2) Rules 40, 41, 48, 50 and 64 apply with the necessary modification required by the context to all applications. (3) The provisions relating to discovery apply to applications subject to such modifications required by the context or they may apply to such an extent as the court may direct.

One last crucial point: since an application to compel discovery is an interlocutory application, the applicant must satisfy the requirements of rule 32(9) and (10). Where an applicant fails to comply with the peremptory provisions of rule 32(9) and (10) of the Rules of Court, the applicant’s application falls to be struck from the roll.57 Rule 32 of the Rules of Court provides:

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32. (1) The managing judge must give directions in respect of an interlocutory proceeding which a party has initiated or intends to raise with regard to the date and time of hearing of the matter, times for filing of heads of argument and generally the speedy finalisation thereof. … (9) In relation to any proceeding referred to in this rule, a party wishing to bring such proceeding must, before launching it, seek an amicable resolution thereof with the other party or parties and only after the parties have failed to resolve their dispute may such proceeding be delivered for adjudication by the court. (10) The party bringing any proceeding contemplated in this rule must, before instituting the proceeding, file with the registrar details of the steps taken to have the matter resolved amicably as contemplated in subrule (9), without disclosing privileged information.

57 See Mukata v Appolus 2015 (3) NR 695 (HC).

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B. Cases

[4 3] Telecom Namibia Ltd v Communications Regulatory Authority of Namibia & Others 2015 (3) NR 747 (HC), para 1 … Parker AJ:

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[1] The instant proceeding is an interlocutory proceeding in relation to an application that the applicant launched on 9  December 2013 in which it seeks relief in terms of the notice of motion (main application). The interlocutory application that was launched by ‘notice of application’ on 13 March 2014 seeks the relief set out in the ‘notice of application’. It is an application to compel the first respondent, a statutory regulatory body, to discover and provide the applicant with the documents listed in para 1 of the notice of application. The applicant prays the court to compel discovery and inspection of the documents to enable it to file a replying affidavit in the main application. The first respondent is a state-owned enterprise (SOE), and it has moved to oppose the application. At the commencement of his submission Mr Heathcote SC (with him Ms Van der Westhuizen), counsel for the applicant, informed the court that the applicant was not pursuing discovery of some of the documents. [2] In his submission, Mr Coleman (with him Mr Maasdorp), counsel for the first respondent, submitted that the instant application ‘is an application where the applicant has to show extraordinary circumstances’. I shall come to this submission in due course. Counsel also asks the court ‘to make a ruling on which discovery rules are now applicable in the light of the provisions of rule 138 of the rules of court that came into operation on 16 April 2014’. In that regard Mr Coleman argues that rule 28 ‘does not contain an equivalent of the old rule 35(12) and, therefore, the old rule should not apply’. I do not agree. [3] I note that rule 35(12) of the repealed rules contains two sentences. The essence and materiality of the first sentence have been captured in the formulation of subrule (1) of rule 28, and the other sentence has been rehearsed in subrule (2) of rule 28 of the rules. Furthermore, rule 35(13) of the repealed rules has been rehearsed in rule 70(3) of the rules.

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[4] Rule 138, which Mr Coleman referred to in his submission, should not be read in isolation. It is an aspect of the canons of interpretation of legal instruments that individual provisions of a particular legislation, for example, should not be read in isolation. An individual provision should be read intertextually with other relevant provisions of the particular legislation in order to arrive at the correct interpretation of the individual provision. Therefore, in the instant proceeding, rule 138 should be read intertextually with rule 3(6) and rule 70(3) of the rules.

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[5] The interlocutory application to compel discovery was issued from the office of the registrar on 13 March 2014, as I have said previously, and the rules of court came into operation on 16  May 2014. Reading rule 3(6) intertextually with rule 138(a), as I should, and recalling what I have said in para [3], above, concerning rule 35(12) and (13) of the repealed rules and rule 28(1) and (2) and rule 70(3) of the rules, I rule in words of one syllable that the discovery rules applicable in the instant proceeding is rule 28 of the rules. Rule 28 provides for discovery rules generally and rule 70(3) makes rule 28 applicable to discovery in motion proceedings; but in motion proceedings an applicant must satisfy the court that exceptional circumstances exist. (Kauaaka & Others v St Phillips Faith Healing Church 2007 (1) NR 276 (HC).) I, accordingly, accept Mr Coleman’s submission on the point. In addition to that, the applicant must satisfy the twin requirements prescribed in rule 28(1), namely, that the documents required are documents ‘that are relevant to the matter in question’ and ‘[that] are proportionate to the needs of the case’. [Emphasis added] [6] In this regard it is important to note that unlike the provision in the repealed rule 35(1) where the document sought should be a document merely ‘relating to any matter in question in such action [or motion]’; in rule 28(1) the provision is that the document sought should be ‘relevant to the matter in question’ and it should be ‘proportionate to the needs the case’. There is a wide and deep yawning gap between the requirements in the repealed rules and the rules of court. A greater burden is now placed on the applicant, who must establish that the documents he or she requires are documents ‘that are not only relevant to the matter in question’ but also ‘(they) are proportionate to the needs of the case’, and not merely that they are documents ‘relating to any matter in question’. These are onerous and peremptory requirements, as aforesaid.

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[7] All this leads inevitably to the conclusion that the authorities in South African cases on rule 35(1) of the repealed rules as to the requirements mentioned therein are of no assistance when interpreting and applying rule 28(1) of the Rules of Court. [8] On the meaning of ‘relevance’ GD Nokes in his work An Introduction to Evidence 4 ed (1967), 58 at 82 states: Thayer (A Treatise on the Law of Evidence, 12 ed Reprinted 194859) asserted that the law furnishes no test for of relevancy; and more than half of a century later framers of a draft code in the United States declared that relevant evidence means evidence having any tendency in reason to prove any material fact.  …  These American pronouncements can be adopted.

Having adopted these pronouncements, I hold that the words ‘relevant to the matter in question’ in rule 28(1) of the rules denote documents having any tendency in reason to establish the matter in question.

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[9] In the instant case, the matter which the applicant has called on the first respondent (and the rest of the respondents) to meet is what is set out in the notice of motion. In this regard, it is trite that an applicant must make out his or her case in its founding papers and that such papers are a combination of pleadings and evidence; and an applicant cannot merely set out a skeleton case in the founding papers and then fortify this in reply. (Transnamib Ltd v Imcor Zinc (Pty) Ltd (MolyCopper Mining and Exploration Corporation (SWA) Ltd & Another Intervening) 1994 NR 11 (HC).) [10] Thus, in the instant proceeding the matter in question is, as I have said previously, as set out in the notice of motion in the main application …. [11] Paragraph 1 of the notice of motion is a constitutional challenge aimed at impugning the constitutionality of a statutory provision. There are two alternative prayers to para  1: the first (in para  (i)) seeks an order declaring that the aforementioned regulations do not operate retrospectively; and the second seeks an order declaring that the regulatory levies imposed by the aforementioned

58 GD Nokes (1967). An Introduction to Evidence. (Fourth edition). London: Sweet & Maxwell. 59 James B Thayer (1898). A Preliminary Treatise on Evidence at the Common Law. Boston: Little Brown.

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regulations can only be imposed against the applicant in respect of turnover generated by the applicant – significantly, not by the first respondent – from 13 September 2012 and beyond. This is the sum total of ‘the matter in question’ in the main application. [12] Considering the matter, with respect, I fail to see how the requirements of art  18 are invoked in support of the interlocutory application where maybe the matter does not concern an application to review the acts of the first respondent, and, in which event, the applicant would have been entitled to the records relating to the doing of such acts, as Mr Coleman submitted. For this reason, I do not think the Basu ‘doctrine of gradual and stealthy encroachment’ on constitutional rights (see Acharya Dr Durga Das Basu et al, Commentary on the Constitution of India, 8 ed (2007), p 901),60 referred to the court by Mr Heathcote, is of any assistance on the point under consideration.

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[13] The applicant says the documents are relevant; the first respondent says they are not and that the applicant requires the documents not to enable it to reply to the answering affidavit but to make an alternative case. I must signalise the point that the first respondent bears no onus to show that the documents are irrelevant. It is the applicant which must establish to the satisfaction of the court three things, namely, that the documents are relevant to the matter in question, that they are proportionate to the needs of the case and also that exceptional circumstances exist for the rule on discovery to apply in this motion proceeding. In the absence of such satisfaction the applicant cannot succeed. [14] I have carefully considered the matter, which I have indicated previously, I have also pored over the founding papers and the answering papers (in the main application). Having done that, I come to the inevitable conclusion that the applicant has failed to establish that the documents required have ‘any tendency in reason to prove any material fact’ in the matter in question, or that they have ‘appreciable probative value’ in the determination of the matter in question (see Black’s Law Dictionary 3rd Pocket ed).61 By a parity of reasoning, I also find that the applicant has failed to establish to the satisfaction of the court that the documents 60 Durga Das Basu Acharya et al (2007). Commentary on the Constitution of India (Eighth edition). Mumbai: LexisNexis India 61 Bryan A Garner (ed). Black’s Law Dictionary (Pocket). (Third edition, 2006). St Paul: Thomson/West.

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required are proportionate to the needs of the case which, as I have said more than once, is primarily a challenge that certain provisions of the legislation and the subordinate legislation are not Constitution-compliant, and, in the alternative, declaratory orders. The needs of the case are what are required to make a case, considering the nature of the matter and the circumstances of the case, that is, the exigencies of the case. [15] In the instant case, as I have said previously, the applicant does not require any of the documents to be able to show that certain provisions of the legislation or the subordinate legislation (ie the regulations) made thereunder are unconstitutional or in order to persuade the court to declare that the aforementioned regulations should not operate retrospectively or to declare that the regulatory levies imposed by the aforementioned regulations can only be imposed against the applicant in respect of turnover generated from 13 September 2012 and beyond by the applicant. On this basis, I conclude that the documents required are not proportionate to the needs of the case. By a parity of reasoning, I do not find that exceptional circumstances exist, and none was shown by Mr Heathcote to exist, which would call for discovery in the present motion proceeding, that is, for rule 70(3) of the rules to apply. [16] Based on these reasons, I conclude that it is reasonable and safe to refuse the interlocutory application on the basis that the applicant has failed to discharge the onus cast on it in order to succeed.

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… [19] In the result, I make the following order: The application is dismissed with costs, including costs of one instructing counsel and two instructed counsel. Notes 1. In a pending application challenging the constitutionality of certain provisions of the Communications Act, 2009 (Act No 8 of 2009) and regulations made under it, applicant brought an interlocutory application to compel first respondent, a regulatory body, to discover certain documents. 2. The Court explained what an applicant for discovery and inspection of documents in motion proceedings must establish in terms of the applicable rules, namely, rules 6(3), 28(1) and 70(3) of the Rules of the High Court.

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3. The Court found that there were two interconnected requisites in rule 28(1) and explained the meaning and content of the two intertwined requisites. 4. After reviewing the authorities, the Court concluded that the authorities in the South African cases that counsel referred to the Court on rule 35(1) of the repealed rules on the requirements relating to discovery of documents in motion proceedings were of no assistance when interpreting and applying rule 28(1) of the current Rules of the High Court. This is because the present rules differ in material respects from the repealed rules, which in turn were the same as the South African rules.

5.7 Doctrine of exhaustion of statutory domestic remedies A. Text Where the Court considers that it is legally more convenient to pursue statutory domestic remedies provided by an applicable Act, the Court may refuse judicial review unless and until applicant has pursued and exhausted those statutory domestic remedies. The convenience in exhausting such remedies is dictated not only for the parties but also in the public interest.62 This is the doctrine of exhaustion of statutory domestic remedies. Nevertheless, it has been said that:

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The mere fact that the Legislature has provided an extra-judicial right of review or appeal is not sufficient to imply an intention that recourse to a Court of law should be barred until the aggrieved person has exhausted his statutory remedies.63

Moreover, in the English case of Pyx Granite Ltd v Ministry of Housing and Local Government [1960] AC 260 Viscount Simonds stated: The question is whether the statutory remedy is the only remedy and the right of the subject to have recourse to the courts of law is excluded. Obviously it cannot altogether be excluded; for, as Lord Denning has pointed out, if the subject does what he has not permission to do and so-called enforcement proceedings are taken against him, he can apply to the court of summary jurisdiction under section 23 of the Act and ask for the enforcement notice to be quashed, and he can thence go to the High Court upon case stated. But I agree with Lord Denning and Morris LJ in thinking that this circuity is not necessary. It is a principle, not by any means 62 R v Huttington District Council, ex parte Cowan [1984] 1 WLR 501. 63 Golube v Oosthuizen 1955 (3) SA 1 (T), at 4, per De Wet J.

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to be whittled down, that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words. That is, as McNair J called it in Francis v Yiewsley and West Drayton Urban District Council, a ‘fundamental rule’ from which I would not for my part sanction any departure. It must be asked, then, what is there in the Act of 1947 which bars such recourse. The answer is that there is nothing except the fact that the Act provides him with another remedy. Is it, then, an alternative or an exclusive remedy? There is nothing in the Act to suggest that, while a new remedy, perhaps cheap and expeditious, is given, the old one, as we seek redress in her courts, is taken away.64

Statutory domestic remedies represent a separate form of control from that of the courts of law. A statutory domestic remedy may take the form of an appeal to an internal appeal body of the administrative body concerned and other forms of internal control over administrative action,65 where the Act in question gives a higher authority, for example a minister, discretionary power to set aside the decision made by an administrative official within the minister’s ministry. For example, in terms of s  9(1) of the Marriage Act,66 the minister may authorise an administrative official to revoke in writing the designation of a person as a marriage officer or the authority to solemnise marriages under the Marriage Act on the ground of misconduct on the part of that marriage officer or for any other good reason. In addition, s 9(2) enacts that the minister may set aside any steps taken by the administrative official acting in terms of s 9(1). In that case, it is convenient on the grounds of public policy that a person aggrieved by any steps taken by an authorised administrative official should approach the minister to exercise their discretion under s 9(2) of the Act before approaching the Court to review and set aside any such steps.67 In considering whether to refuse to hear an application to review a decision by an administrative body or official, where statutory domestic remedies exist, the Court is entitled to consider whether in the circumstances and on the facts of the particular case, it should refuse the review application because the applicant has not exhausted the statutory domestic remedies available.

64 [1960] AC 260 (HL), at 286. 65 Yvonne Burns & Margaret Beukes (2006). Administrative Law under the 1996 Constitution (Third edition). Durban: LexisNexis, p 471. 66 Act No 25 of 1961. 67 See Gurirab v Minister of Home Affairs and Immigration & Another 2016 (1) NR 37 (HC).

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The House of Lords has said that: …  a remedy of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge; it is not an appeal. Where Parliament has provided by statute appeal procedures, as is in the taxing statutes, it will only be very rarely that the courts will allow collateral process of judicial review to be used to attack an appealable decision.68

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In that regard, Lord Templeton stated in Preston v Inland Revenue Commissioners: ‘Judicial review process should not be allowed to supplant the normal statutory appeal procedure’, unless exceptional circumstances exist.69 Baxter proposes two considerations that the Court should take into account in the exercise of its discretion.70 It should ask itself two questions, that is: (a) whether the domestic remedies are capable of providing effective redress of the grievance, and (b) whether the alleged unlawfulness complained of undermined the statutory administrative or domestic remedies available. If the answer to either of these questions is in the positive, the Court should decline to determine the application. It would be offensive to due administration of justice and good judicial policy for the Court to act in a manner that frustrates the clear intention of the legislature and which undermines the effective and cheap resolution of disputes outside the surrounds of the Court. The two questions, which Baxter proposed, may be called the Baxter requisites.71 In addition, according to the Supreme Court, a court will rarely permit a party to approach it for relief before the review contemplated in s 49 is completed. The question in each case will be whether the (statutory domestic) review process will provide effective relief.72

The Supreme Court considerations may be called the Wal-Mart Stores requisites. The High Court held in Four Three Five Development Companies (Pty) Ltd v Namibia Airport Company 73 that a court will find exceptional circumstances to exist where the statutory domestic remedies do not satisfy substantially the 68 69 70 71 72

Preston v Inland Revenue Commissioners [1985] 2 All ER 327 (HL), at 330. [1985] 2 All ER 327 (HL), at 337j–338a. Baxter (1984: p 721). Loc.cit. Namibia Competition Commission & Another v Wal-Mart Stores 2012 (1) NR 69 (SC), paras 45–53. 73 2017 NR (1) 142 (HC), para 10.

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Wal-Mart Stores requisites and the Baxter requisites, justifying a judicial review process ‘to supplant the normal statutory appeal procedure2’ under the Act in question (see Preston v Inland Revenue Commissioners).74 It follows that where exceptional circumstances do not exist, judicial review must not be allowed to supplant statutory domestic remedies. B. Cases

[4 4] Namibian Competition Commission & Another v WalMart Stores 2012 (1) NR 69 (SC) O’Regan AJA (Shivute CJ and Maritz JA concurring): …

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Exhaustion of internal remedies [43] Was the High Court correct in deciding that Wal-Mart could seek to have the conditions imposed by the Commission set aside without first letting the ministerial review provided for in s 49, which Wal-Mart itself had instituted, run its course? Both appellants argued that the High Court erred by permitting WalMart to obtain relief before the ministerial review in terms of s  49 had run its course. On behalf of Wal-Mart, it was argued that the effect of requiring Wal-Mart to exhaust the ministerial review process would be to ‘oust’ the jurisdiction of the courts, something it is presumed the legislature does not intend to do. Counsel for the Minister responded that requiring Wal-Mart to pursue the s 49 review process before approaching a court would not oust the jurisdiction of the court but merely defer its jurisdiction till the review process was complete. [44] Counsel for Wal-Mart argued that s 49 was not an effective remedy to it for essentially three reasons: because it was time-consuming; because the Minister, especially in relation to the condition relating to Notice 75, would be a judge in his own cause; and because the Minister had expressed his contempt for Wal-Mart’s position in his affidavit that indicated that he was not able to approach the matter in a fair way. 74 [1985] (HL) 2 All ER 327 (HL), at 337j–338a.

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[45] Ordinarily, the question whether an applicant will be required to exhaust internal remedies before approaching a court for relief turns on the interpretation of the relevant statute (or contract, though that does not arise in this case). At times, a statute may expressly provide that an internal remedy must be exhausted before approaching a court. More commonly, though, the statute does not expressly insist that an applicant exhaust the internal remedy it provides before approaching a court. The question is whether the statute implicitly requires exhaustion of the internal remedy. The mere fact that a statute has provided an internal remedy is not generally sufficient to establish that it intended to insist that the internal remedy be exhausted before a court is approached for relief. More is required.

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[46] In National Union of Namibian Workers v Naholo, Tötemeyer AJ identified two considerations relevant to the determination of whether internal remedies should be exhausted. The first is the wording of the relevant statutory provision; and the second is whether the internal remedy would be sufficient to afford practical relief in the circumstances. In Naholo’s case, Mr Naholo, the Acting General Secretary of the National Union of Namibian Workers, had been dismissed by the Union. A clause of the Union’s constitution provided that Mr Naholo would have the right to appeal to the next national congress of the Union. Tötemeyer AJ observed that national congresses only occurred every four years and that if Mr Naholo had to wait years to prosecute an appeal, he would be ‘virtually remediless’. This consideration persuaded the court that the internal remedy provided by the Union’s constitution would not provide effective relief and therefore did not need to be exhausted before Mr Naholo approached the court. [47] The requirement that the internal remedy provide effective redress is one that has been acknowledged by South African courts as well. Determining whether an internal remedy provides effective redress requires a careful examination of the remedy provided in the statute in the light of the relief sought in the litigation. Here, the relevant relief sought is a declaration that the four conditions imposed by the Commission on its approval of the merger were invalid. The nature of this relief will be relevant to determining whether Wal-Mart should have exhausted the ministerial review process before approaching the High Court. [48] The first question that arises is whether s  49 expressly prevents parties dissatisfied with the decision of the Commission from approaching a court in all circumstances, until the ministerial review provided for in the section has been

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exhausted. Section 49 provides that a party to the merger ‘may’ make application to the Minister for a review of the Commission’s decision. In my view, the language of the section cannot be said expressly to prohibit access to court for in terms it does not state that no party may approach a court for relief until the review has been completed. It simply states that the parties may approach the Minister for review.

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[49] The next question that arises is whether s 49 implicitly prohibits a party from approaching the court until the review is complete. To answer this question, it is necessary to undertake a careful analysis of the review procedure and powers set out in the section. Section 49 contemplates an important role for the Minister in determining whether mergers should be permitted or prohibited. Four aspects of the review mechanism are of particular relevance. First, there is the fact that it is the Minister of Trade and Industry who is responsible for deciding the review. As the member of the Cabinet charged with the responsibility of administering and executing the functions of government with respect to trade and industry, which requires him to direct, co-ordinate and supervise the Ministry of Trade and Industry, the Minister bears great responsibility. Moreover, he is directly accountable to the President and Parliament for the performance of these duties. The review power has thus been entrusted to a democratically accountable and senior member of government. [50] Secondly, s 49(2) requires the Minister to publish by notice in the Gazette the fact of the review and invite interested parties to make submissions on the matter. This process provides an important opportunity for interested members of the public to make relevant submissions to the Minister on the proposed merger. This opportunity is all the more important given that the Commission is not compelled to afford interested parties notice of the application for merger permission or to provide interested parties with an opportunity to submit comments to it. [51] Thirdly, s 49(3) makes plain that the Minister is not only empowered to confirm or overturn the decision of the Commission but is also empowered to amend the decision of the Commission by ordering restrictions or including conditions to the approval of the proposed merger. The Minister therefore has extensive powers to alter the decision of the Commission in the light of the information he receives, which a court reviewing the Commission’s decision does not. In making his decision on the proposed merger, the Minister, like the Commission, will have to

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take into account the considerations set out in s 2 of the Act, as well as those set out in s 47(2).

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[52] Fourthly, the range of considerations set out in both s  2 and s  47(2) make plain that the decision whether to approve a proposed merger involves questions relating to the promotion and safeguarding of competition in Namibia, as the title of the Act suggests, but also other public interest considerations relating to the promotion of employment opportunities, the protection and promotion of small and medium-sized enterprises and the expansion of the participation of historically disadvantaged people in the Namibian economy. The decision is one that requires ‘equilibrium to be struck between a range of competing interests or considerations …’. See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism & Others 2004 (4) SA 490 (CC), at para 48. Precisely how these differing goals should be balanced within the framework of the Act in relation to each proposed merger is a question that both the Commission and the Minister will have to address in the exercise of their statutory powers. This is a decision that the Act specifically assigns first to the Commission and then to the Minister. As the Commission is an institution specially constituted to consider competition matters, and the Minister bears both constitutional and democratic responsibility for trade and industry, these are assignments that should not lightly be bypassed. [53] These four factors all suggest that the ministerial review process will often provide effective relief, and relief more extensive than that which a reviewing court may provide. Accordingly, a court will rarely permit a party to approach it for relief before the review contemplated in s 49 is completed. The question in each case will be whether the review process will provide effective relief. Two situations can be mentioned here. The first will arise where the nub of the complaint raised goes to the manner in which the balance between the competing concerns set out in s 2 and s 47(2) of the Act has been struck by the Commission. The task of balancing the competing interests in the Act is not a task for which a court has any special competence. Nor is it one that in the scheme of the Act is assigned to a court. It is a task reserved by the legislation first for the Commission and then for the Minister. Moreover, the Act confers the power upon the Minister to overturn or vary the decision of the Commission, a power that will not ordinarily be exercised by a court. In the circumstances, where the complaint raises the manner in which the considerations mentioned in s 2 and s 47(7) of the Act have been balanced in the decision, a court will require the ministerial review process to be exhausted

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before it will consider an application for relief. Secondly, a court will rarely permit a party to approach it for relief where the complaint is one that the Minister is empowered to resolve during the ministerial review process. The Act affords the Minister ample powers to alter the decision taken by the Commission in the light of the information placed before the Minister and ordinarily a court will require that the review process run its course.

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[54] On the other hand, if the complaint does not relate to the manner in which the balancing exercise has been struck, and is one that the ministerial review cannot correct, then it may be an issue that a court will entertain before the review process is complete. The question in each case will be whether the ministerial review process provides effective relief to the litigant. [55] One of the considerations as to whether the ministerial review is an effective remedy relates to the time that the ministerial review process will take. In this regard, it should be noted that the time periods set out in s 49 of the Act are maxima, not minima. The Minister must publish notice of the review in the Gazette within 30 days of receiving the review application. He may of course do it in a shorter period. Similarly, the Minister must determine the review within four months of the application having been lodged, but he may determine the review more quickly. Moreover, it is the Minister who determines the time limits within which interested parties must lodge their comments. These time limits are not set in the Act. In determining the appropriate time limit in each case, the Minister will take into account the statutory requirement that the review be determined within four months of the review application having been lodged, but also other considerations, including the question whether the relevant merger is one that requires an expeditious decision. [56] I turn now to apply these principles to the facts of this case. Is the relief sought a quo in relation to the conditions attached by the Commission to its approval of the merger premature, in that Wal-Mart should first have exhausted the review process provided for in s 49 of the Act? In what follows, I consider the challenges to the first three conditions imposed by the Commission. Given the conclusion reached above in relation to the validity of Notice 75, it is not necessary to consider the fourth condition further. [57] Wal-Mart argued that the first condition, that the merger allow for local participation in accordance with s  2(f) of the Act, was unlawful on the ground

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that it was in conflict with s  3(3) of the Foreign Investment Act,75 and also on the grounds that it was vague, arbitrary and irrational. Section 3(3) of the Foreign Investment Act provides that a foreigner engaged in business activities in Namibia, shall not be required ‘to provide for the participation’ of the Namibian government or any Namibian citizen as a shareholder or partner in such business. The Commission responded that s 2(f) of the Act, which provides that one of the purposes of the Act is ‘to promote a greater spread of ownership, in particular to increase ownership stakes of historically disadvantaged persons’, authorises the terms of the condition.

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[58] Wal-Mart challenged the second condition, which required that there be no employment losses as a result of the merger, on the ground that it was irrational and disproportionate. And it challenged the third condition, that there are no harmful effects on competition, on the basis that it was irrational, vague and ultra vires the powers of the Commission. [59] It is clear that these three conditions seek to address one or other of the statutory purposes set out in s 2 and s 47. The first condition addresses the goal set out in s 2(f) of the Act, the second, the goal set out in s 2(c), and the considerations identified in s 47(2)(e); and the third, the goal in s 2(e) and the considerations in s 47(2)(f). Whether the conditions formulated by the Commission promote these concerns in a rational and appropriate fashion is a question, in the first place, for the Minister. It is for the Minister to decide how the competing purposes identified in the Act should best be achieved. It may be that there is merit in the claims of Wal-Mart that the conditions are not as precisely formulated as they should be, or not closely connected to the reasons provided by the Commission, but these are matters we need not, and do not, decide in this judgment. For even if Wal-Mart is correct in these submissions, it does not follow that it is appropriate for Wal-Mart to bypass the s  49 procedure where these very issues can be considered by the Minister. [60] To permit Wal-Mart to challenge these conditions, imposed by the Commission when it approved the merger transaction, without first letting the s 49 review process run its course, would be to undermine the statutory scheme that empowers the Minister to review the Commission’s decision on the merger. If, once the Minister has concluded the review, Wal-Mart considers that any 75 Act No 27 of 1990.

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conditions that have been stipulated were irrational or vague or unlawful, it may then challenge those conditions. It may well be, however, that any complaints WalMart has about the imposed conditions were resolved during the review process.

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[61] Counsel for Wal-Mart argued that the time that the review would take meant that the review would not be an effective remedy, as contemplated in Naholo. As mentioned in para  [31] above, in Naholo the internal remedy was a review by a national conference which only takes place every four years – a very different time frame to that provided in s 49. Moreover, the time periods provided in s 49 are maximum time periods, which may be shortened by the Minister where circumstances require. Wal-Mart originally requested the Minister to complete the process within ten days. Given the provisions of s 49(2) of the Act, which require the Minister to give interested parties an opportunity to comment on the proposed merger, ten days was indeed an impractically short period. However, it may well be that the Minister could seek to finalize the review in a shorter period than the four months set as the limit for the review by the Act. The review could be concluded within two months, for example. This could be achieved by publication in the Gazette within two weeks of the date of the judgment, followed by a two-week period for interested parties to comment on the proposed merger. The Minister would then have a month within which to prepare his decision and reasons. Given the complex considerations at play, as well as the fact that the maximum time period for the review is four months, and that it may take place more quickly than that, it cannot be said that the time period renders the s 49 review process ‘ineffective’. [62] It may be as Wal-Mart noted that competition authorities in other southern African countries approved the merger transaction more quickly than has happened in Namibia and South Africa. The fact that other authorities have determined the case more quickly does not mean that the Namibian procedure is not an effective procedure. As the Competition Act76 makes plain, mergers can have many public policy implications that need to be considered prior to their being approved. In addition, there may be a range of interested parties who may wish to be heard on the implications of the merger. Parties to proposed merger transactions need to accept that compliance with national competition processes is required. It should be noted that at the time of writing this judgment, the South African approval that Wal-Mart expected to be finalised by May 2010 has still not finally been obtained. 76 Act No 2 of 2003.

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… [66] In conclusion, the appellants’ argument that Wal-Mart should have exhausted the s 49 ministerial review procedure before seeking an order that the conditions imposed by the Commission when it approved the merger succeeds. The order made by the High Court declaring the conditions to be unlawful and invalid will therefore be set aside. The ministerial review should therefore proceed. Because of the time that this litigation has taken, the time limits stipulated in s 49 of the Act have expired, and it will be appropriate for this court to declare that the review will be deemed to have been launched on the date that judgment is handed down in this matter .… [69] Accordingly, we make the following order. 1. The appeal succeeds in part and fails in part. …

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Notes 1. The respondent foreign company sought a merger with Namibian companies. The purpose of the applicable Act, the Foreign Investment Act 1990,77 is to promote foreign investments. The Act provides that the minister responsible for trade and industry has the power to give permission for the provision of services by foreign companies. The Court found that businesses that provide services did not include businesses that supply the needs of others, including retail businesses. The present appeal was against two declaratory orders made by the High Court. 2. On appeal, one of the questions that arose for determination was whether an applicant is required to exhaust statutory domestic remedies or internal remedies before approaching a court for relief. The determination of the question turned on the interpretation of the relevant statute (or contract, though that did not arise in this case). 3. The Supreme Court held that when deciding whether internal remedies should be exhausted first, the court must have regard to the circumstances of the particular case, in particular to the wording of the statutory provision and whether the statutory domestic remedies offer practical and effective relief in the circumstances. 4. See further case [45] and the notes thereto. 77 Act No 27 of 1990.

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[4 5] Four Three Five Development Companies (Pty) Ltd v Namibia Airports Company & Others 2017 NR (1) 142 (HC) Parker J: [1] Once again the stream or incessant flow of challenges of awards of tenders by administrative bodies has reached this court. As usual, it is our duty to consider whether the applicant has discharged the onus cast upon it to establish that good grounds exist to review the decision of the administrative body in question. In the instant case the administrative body is the first respondent; and the second respondent is the chairperson of the first respondent’s tender committee. They are represented by Mr Marcus. I should say; I can see no good reason why the second respondent is cited. As I see it, the tender committee is a depute to the first respondent.

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… [3] The third respondent whose tender was successful has moved to reject the application. The third respondent has raised a preliminary objection which I propose to consider at the threshold because if it was successful it would dispose of the application. The preliminary objection is based on the doctrine of exhaustion of statutory domestic remedies before an aggrieved person could launch proceedings in the court. Mr Namandje, counsel for the applicant characterises the point in limine as ‘spurious’. Why does counsel so contend? Only this, that para  21.7 of the invitation to tender (ITT) conditions provides that the High Court has jurisdiction to determine any proceedings instituted by way of notice of motion by any of the parties to the ITT’ and that the applicant ‘has the right in terms of Article 18 (of the Namibian Constitution) to approach Court if it is prejudiced by any administrative decision of the first respondent and second respondent’. [4] I accept Mr Strydom’s submission that the applicant misses the point. First and foremost the doctrine of exhaustion of statutory domestic remedies before approaching the court for relief is part of our law (see Namibian Competition Commission & Another v Wal-Mart Stores Incorporated 2012 (1) NR 69 (SC)). Second, the doctrine does not oust the jurisdiction of the court to review administrative

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actions of administrative bodies and officials. Third, the aforementioned clause 21.7 of the ITT is an unnecessary pleonasm inasmuch as the clause provides that the court has jurisdiction to determine proceedings instituted by way of notice of motion by any party to the ITT against any other party in which interim relief or urgent final relief is claimed howsoever arising out of or in connection with the ITT. [5] I now proceed to the next level of the enquiry, which is the application of the doctrine. In that regard, I cannot do any better than to rehearse what I said about the application of the doctrine in Gurirab v Minister of Home Affairs and Immigration & Another 2016 (1) NR 37 (HC): [14] This finding leads me to the next level of the enquiry. It concerns the principle of exhausting domestic remedies. It is that the right to seek judicial review of the act of an administrative body or administrative official may be suspended or deferred until the complainant has exhausted domestic remedies which, as is in the present case, might have been created by statute expressly or by necessary implication. In the instant case, such remedy is created by s 9(2) of the Act.

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[15] In Namibia Competition Commission v Wal-Mart Stores Incorporated 2012 (1) NR 69 (SC) the Supreme Court proposed certain considerations that a court ought to take into account in determining the issue of exhausting domestic or internal remedies. (a) The first consideration is the wording of the relevant statutory provision; and (b) the second is whether the internal remedy would be sufficient to afford practical relief in the circumstances. I hasten to add the caveat that the list is not exhaustive; neither was it meant to be exhaustive; and neither should the considerations be applied mechanically as if they were immutable prescriptions to be applied without due regard to the circumstances of the particular case. [16] And Lawrence Baxter writes in his work Administrative Law, 3rd ed (1991), p 721: Two considerations appear to be paramount: first, are the domestic remedies capable of providing effective redress in respect of the complaint?; and, secondly, has the alleged unlawfulness undermined the domestic remedies themselves? [17] To the Wal-Mart considerations and the Baxter considerations should be added this crucial qualification proposed by Mokgone J in Koyabe & Others v Minister of Home Affairs & Others 2010 (4) SA 327 (CC), para 35: Internal remedies are designed to provide immediate and cost effective relief, rectifying irregularities first, before aggrieved parties resort to

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litigation. Although courts play a vital role in providing litigants access to justice (ie court justice), the importance of more readily available and cost effective internal remedies cannot be gainsaid. Paragraphs 14 and 17 contain what may be called the Wal-Mart Stores requisites, and para 16 the Baxter requisites.

[6] In the present proceeding the statutory domestic remedies are provided in s 12 of the Airports Company Act No 25 of 1998 (‘the Act’). It is worth noting that s  12 is not some brief, unhelpful and ineffective provision. The section is deep, self-explanatory and comprehensive; and, a fortiori, the procedure provided there is comparable to tribunal proceedings. It provides for the following proactive and effective procedure: (a) the lodging of a complaint with the Minister responsible for Civil Aviation; (b) the requirement that the Minister must transmit a copy of the complaint to the Company (ie in these proceedings the first respondent); (c) the requirement that the Company must within 14 days of receiving a copy of the complaint lodged with the Minister submit a written reply to the complaint; (d) the complainant pays nothing to the Company (first respondent) to pursue the s 12 remedies.

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[7] That is not all; s 12 provides an effective, outside-the-decision-maker procedure of the kind the Supreme Court in Wal-Mart Stores and Baxter in his work Administrative Law proposed (see para 5 of this judgment) in that: (a) the Minister has the power to establish a commission of inquiry to investigate a complaint; (b) the commission conducts tribunal proceedings in which evidence is adduced and tested in cross-examination; (c) without conducting a hearing, the commission is entitled to call for books and other items of evidential value for the commission’s examination and consideration; (d) upon completion of an investigation, if he or she is satisfied that the Company has failed to comply with a provision in s 12(1), eg where the Company failed to comply with a statement of intent, which may contain ‘the procedures to be followed by the Company in the evaluation and awarding of tenders to, and negotiations of agreements with, any person, organization or authority’, the

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Minister ‘shall direct the Company to comply with such provision within the period of time determined by the Minister and specified in such direction’. [8] In peroration, these conclusions emerge inevitably:

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(a) The s 12 remedies provide ‘immediate and cost effective relief, rectifying irregularities’ (see Koyabe & Others v Minister of Home Affairs & Others 2010 (4) SA 327 (CC)). (b) The wording of s 12 indicates an intention of the legislature to provide sufficient and practical relief (see Wal-Mart)). (c) The s 12 remedies provide effective redress in respect of the complaint which the applicant has asked the court to deal with (see Baxter, Administrative Law, loc cit). (d) The unlawfulness alleged by the applicant will not undermine the s  12 remedies at all since the implementers of the s 12 remedies stand apart, and are independent, from the first and second respondents (see Baxter, Administrative Law, loc cit). (e) It is no less the Government Minister responsible for the first respondent who is authorized by the Act to direct the first respondent to comply with s  7(2)(g) of Act which is precisely the conspectus of the compliant of the applicant (see Shekunyenge v Principal of St Joseph’s Roman Catholic High School Dobra (HC-MD-CIV-MOT-GEN-2016/00269) [2016] NAHCMD 308 (6 October 2016)). [9] Take, for instance, the order that the applicant seeks in para 2 of the notice of motion. This is exactly what the Minister could, if satisfied that the applicant has acted in a manner that offends against s 7(2)(g) upon investigation by a commission of enquiry established by him or her, have granted the applicant. But the applicant, without justification, chose to spurn the s 12 domestic remedies and rush to court praying the court to hear the matter as an urgent application. [10] In my judgment, due implementation of the s 12 remedies must be given effect to. The reason is that the remedies are in line with the doctrine of exhaustion of statutory domestic remedies and the doctrine is part of our law and it has not been found to offend against any constitutional provision. The applicant did not exhaust the statutory domestic remedies provided by the Act. And the only reason why the applicant did not do so is, according to the applicant, the application of clause

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21.7 of the ITT mentioned previously. That cannot, as I have demonstrated, be a good reason not to exhaust the statutory domestic remedies provided by the Act which, as I have found, satisfy both the Wal-Mart Stores requisites and the Baxter requisites. It therefore behoves the court to give effect to the s 12 remedies. It has been held by the House of Lords (England) that ‘[j]udicial review process should not be allowed to supplant the normal statutory appeal procedure’ unless there are exceptional circumstances. (Preston v Inland Revenue Commissioners [1985] 2 All ER 327 (HL), at 337j–338a.) In my view exceptional circumstances will be found to exist where the statutory domestic remedies do not satisfy substantially the Wal-Mart Stores requisites and the Baxter requisites, discussed in para 5 of this judgment. On the facts and in the circumstances of the instant case, it has not been established that the s 12 remedies do not satisfy substantially the Baxter requisites and the Wal-Mart Stores requisites, justifying supplanting the s 12 remedies with judicial review process. Indeed, I find that the s  12 domestic remedies satisfy substantially the Baxter requisites and the Wal-Mart Stores requisites. [11] Based on these reasons, I must uphold the point in limine raised by the third respondent and argued by Mr Strydom. I accept Mr Strydom’s conclusion in his argument that the application is premature and can only be properly instituted and considered by the court after the statutory domestic remedies provided by the Act have been exhausted. It follows inevitably that the court should refuse the review application, as it does; whereupon, I make the following order: (a) The application is dismissed.

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… Notes 1. Applicant was unsuccessful in a tender bid and instituted judicial review proceedings. Employer first respondent, a parastatal enterprise, is governed by the Airports Company Act 25 of 1998. Section 12 of that Act provides for an internal appeal and review process, which respondent averred applicant should exhaust before approaching the Court for relief. 2. In Namibia, the rule regarding the duty to exhaust domestic statutory remedies before approaching the Court for relief has remained a common-law rule, unlike in South Africa, where the rule has been superseded and fundamentally changed by s 7(2) of the Promotion of Administrative Justice Act, 2000 (Act 3

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3.

4.

5.

6.

of 2000) (‘PAJA’). See Geo Quinot, Administrative Law: Cases and Materials, Cape Town, Juta & Co (2008), p 645 and the cases there cited. In case [44], the Supreme Court held that the mere fact that a statute has provided an internal remedy is not generally sufficient to establish that the statute intended to insist that the domestic statutory remedy be exhausted before a party approached the Court for relief. In this case [45], the High Court applied both the considerations put forth in the case [44] and the requisites proposed by Lawrence Baxter in his work, Administrative Law (1984), p 721. Moreover, in case [45], the High Court applied the principle enunciated in the English House of Lords case of Preston v Inland Revenue Commissioners [21], 337, at 338a that ‘judicial review process should not be allowed to supplant the normal statutory appeal procedure unless there are exceptional circumstances’. In [45], the Court reasoned that exceptional circumstances will be found to exist where the statutory domestic remedies do not satisfy substantially the Walmart requisites (case [44]) and the Baxter requisites (see case [45]). It follows that where the Court finds that applicant has not established that exceptional circumstances exist justifying supplanting the statutory domestic remedies with judicial review process, the Court should dismiss the application on the basis that the application is premature.

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5.8 Costs in proceedings concerning judicial review of administrative action by administrative bodies and officials A. Text Courts do not generally make costs orders against administrative officials de bonis propriis. However, where the conduct of an administrative official is irregular, the Court will award costs against such official,78 and so will the Court order such costs where the administrative official’s action is mala fide. In Coetzeestrom Estate and GM Co v Registrar of Deeds Innes CJ stated the law thus: With respect to the question of costs, the Court should lay down a general rule in regard to all applications against the registrar arising on matters of practice. To mulct that official in costs where his action or his attitude, though mistaken, was bona fide would in my opinion be inequitable. 78 Hoveka NO & Others v The Master & Another 2006 (1) NR 147 (HC).

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… This general rule we shall follow for the future, but the court will reserve to itself the right to order costs against the Registrar if his action has been mala fide or grossly irregular. …79

Levy AJ put it in this way in Frank & Another v Chairperson of the Immigration Selection Board: Mr Light has asked for an award of costs. The principle, however, is that where a person or a board acting in his or its official capacity performs an act or takes a decision which is wrong in law, unless such person or board acted mala fide, such person or board should not be mulcted in costs. (South African Motor Acceptance Corporation (Pty) Ltd v Venter 1963 (1) SA 214 (O), at 222A–C; Regional Magistrate Du Preez v Walker 1976 (4) SA 849 (A), at 850.) I am satisfied that respondent was certainly not acting mala fide. In the circumstances there may be no order as to costs. 80

B. Cases

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… I now turn to the question of costs. … The applicants also seek a costs order against the Master on the basis that it was her grossly negligent conduct which made it necessary for the applicants to litigate. The facts relied upon are briefly as follows. The Master registered and accepted the testator’s will on 11  March 2002. By letter dated 30  September 2002 the Master wrote to Hoveka’s firm, stating: I would like to inform you that, the will which you have lodged with me was only admitted on a prima facie basis. Affidavits were lodged by Dr Weder, Kruger & 79 1902 TS 216, at 223, 224. 80 1999 NR 271 (HC), at 270H–J.

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Hartmann dated 19 September 2002, which show that the will did not comply with s 2(1)(b)(ii) of Act 7 of 1953. Thus I hereby request you to return the letter of executorship which was issued to you, as the estate has to be treated as interstate. I suppose one has to read the word ‘interstate’ as meaning ‘intestate’.

According to the evidence, this letter dated 30 September 2002 was delivered by hand to Hoveka’s firm on 9 December 2002 accompanied by a letter containing a stamp to the effect that the testator’s will, which had been registered on 11 March 2002, was not accepted. Hoveka replied by letter dated 11 December, correctly pointing out that s 2(1) (b)(ii) of Act 7 of 1953 dealt with amendments to a will, and that the will which was submitted was never amended. He also pointed out that it was not for the Master to decide that the will was invalid and that the testator died intestate. That was a matter to be decided by a court should an interested party wish to challenge the validity of the will. He even referred the Master to the relevant pages in a textbook on the law of succession. He refused to return the letter of executorship. Hoveka’s letter received no response. By letter dated 17 January 2003 he wrote again. He stated that if no reply was received by 28 January he would advertise the Liquidation Account. As no reply was received the Account was advertised on 4 March 2003. On 6 March Hoveka received a letter from the Master dated 26 February. It attached a letter from the second respondent and asked for Hoveka’s comments on certain marked paragraphs. Hoveka replied on 7 March setting out his comments. By letter dated 7 April 2003 Hoveka wrote to the Master seeking ‘feedback’, as the 21 days allowed for the lying of the liquidation and distribution account had expired. On 9 April 2003 Hoveka received a letter from the Master dated 24 March. It referred to Hoveka’s letters dated 15 November 2002 and 7 March 2003, but not to his letters dated 11 December 2002 and 17 January 2003. In this letter the Master stated: Your account is returned herewith. Please amend your account, as the estate must devolve according to the intestate succession since the will was rejected.

The Master also asked Hoveka for comment on the issues raised in her letter dated 26 February, comments which Hoveka had already made.

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Hoveka replied by letter dated 16  April. He pointed out once again that the Master cannot appoint an executor and then attempt to remove him without court proceedings. He stated that the comment that ‘the estate must devolve according to the intestate succession since the will was rejected’ was incomprehensible. The next to happen of any significance was a letter from the Master dated 11  June 2003 headed ‘Final demand’. Despite the fact that a liquidation and distribution account had been lodged and had lain for inspection for the requisite period without objection, the letter required Hoveka immediately to frame and file a liquidation account and plan of distribution. The letter concluded: Unless the required inventory/account, is lodged at this office within 37 days from date hereof you will be called upon to show cause before the High Court why you shall not forthwith be ordered to file (the) same and to pay the costs of the application de bonis propriis in terms of s  36/85 or be removed from office as executor in terms of s 54 of the said Act.

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Under cover of a letter dated 17 July 2003 Hoveka submitted an amended first and final liquidation and distribution account. The response to this was a letter dated 10 August 2003. It states: Your account is returned herewith as the necessary amendments are not made. The estate must be distributed in terms of the intestate succession as the will was rejected. You were informed about this decision and an amended account was requested. You furthermore did not give me proper answers on my queries as per my letter dated 24 March 2003. It seems as if you deliberately ignored my instructions and you are delaying the finalization of the estate. If a proper account (as per my instructions) is not lodged before 5 September 2003, I will remove you as executor.

Following receipt of this letter Hoveka visited the Master’s office and asked for a copy of the affidavits referred to in the Master’s letter dated 30 September 2002. His request was refused. The present application was launched on 4  September 2003 in order to counter the Master’s threat to remove Hoveka as executor. Mr Swanepoel, who appeared on behalf of the first respondent, resisted the application for costs. He referred the Court to a number of cases where the courts have considered whether or not to award costs against a public officer. It is unnecessary to mention all these cases. One will suffice. In Coetzeestroom Estate and GM Co v Registrar of Deeds 1902 TS 216 Innes CJ said at 223:

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With respect to the question of costs, the Court should lay down a general rule in regard to all applications against the Registrar arising on matters of practice. To mulct that official in costs where his action or his attitude, though mistaken, was bona fide would in my opinion be inequitable.

The learned Chief Justice continued at 224: This general rule we shall follow for the future; but the Court will reserve to itself the right to order costs against the Registrar if his action has been mala fide or grossly irregular ...

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In the present case I am of the view that the conduct of the Master was indeed grossly irregular. Having accepted the testator’s will, it was not for her to reverse her decision and decide that the estate should be treated as an intestate estate. That is a matter for the Court to decide on proper application being brought. What troubles me more is that despite the fact that the Master’s attention was drawn to her mistaken view, she did absolutely nothing to correct it. She wrote again in March 2003 baldly asserting that the estate must devolve according to intestate succession. Once again her error was pointed out. Once again the advice was ignored, resulting in a threat to remove the executor and causing the executor to bring the present application in order to restrain the Master from carrying out her threat. In my opinion, the Master’s conduct can only be described as obdurate and grossly irregular. An order for costs will be made. However, such costs will not include the costs relating to the hearing of oral evidence. The Master was not really party to that aspect of the case. Accordingly, the following orders are made: (1) The last will and testament of the late Erastus John Ndjaronguru dated 9 October 2001 is declared valid; (2) The second respondent’s counter-application is dismissed; (3) The second respondent is ordered to pay the applicants’ costs of the application and counter-application; (4) The first respondent is ordered to pay the applicants’ costs of the application, excluding costs relating to the hearing of oral evidence, jointly and severally. Notes 1. In the instant case [46], the Master of the High Court took upon herself without any colour of authority to decide that a will placed before her by applicant for

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her consideration was not valid. What worried the Court was that applicant’s legal representatives drew the Master’s attention to her mistaken view of the law but that she did absolutely nothing to correct it. The Court described the Master’s conduct as ‘obdurate and grossly irregular’. 2. Applicant was successful in her application before the High Court. The Court had to decide whether the Master ought to be mulcted in costs de bonis propriis. 3. The Court held that it is inequitable to mulct an administrative official with costs de bonis propriis where the official has not acted irregularly or mala fide. In this case [46], however, the Court concluded that the conduct of the Master (first respondent) was indeed grossly irregular; accordingly, the Court ordered first respondent to pay applicants’ costs of the application.

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6 C O N S E QU E NC E S OF, A N D R E M E D I E S F O R , U N L AW F U L A N D I N VA L I D A D M I N I S T R A T I V E AC T IO N BY A DM I N I S T R AT I V E BODIES A ND OFFICI A L S

6.1 Consequences of unlawful and invalid administrative action by administrative bodies and officials

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A. Text We saw in chapter 1 (section  1.1) that the role of the Court in controlling the operations of administrative bodies or officials (ie public authorities) is the subject-matter of administrative law. We also saw in chapter 3 (para  3.2.1) that whether an administrative action is lawful or unlawful is determined by reference to the principles of ultra vires and the doctrine of legality. Thus, an administrative action which is ultra vires or which does not meet the requirements of legality is an unlawful action: it is invalid; it has no force; and it is null and void. The word ‘void’ is used in the sense of being a nullity.1 I submit that a statement that an administrative action by an administrative body or official is null and void ‘ab initio’ or is invalid ‘ab initio’ in judicial review proceedings is at best pleonastic, and at worst confusing. Either the administrative action is unlawful and therefore invalid or it is not. The confusion has created a dichotomy of ‘void’ and ‘voidable’ unlawful administrative actions in administrative law, necessitating an enquiry as to the sense in which the word 1

See Durayappah v Fernando [1967] 2 AC 337 (Privy Council), at 354A; Open Learning Group v Secretary, Ministry of Finance 2006 (1) NR 275 (HC). 317

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‘voidable’ – a word having a clear and understandable meaning in private law, particularly the law of contract and the law of husband and wife – is used. In that regard, Lord Morris stated in the landmark English case of Ridge v Baldwin:

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It was submitted that the decision of the watch committee was voidable but not void. But this involves the inquiry as to the sense in which the word ‘voidable’, a word deriving from the law of contract, is in this connexion used. If the appellant had bowed to the decision of the watch committee and had not asserted that it was void, then no occasion to use either word would have arisen. When the appellant in fact at once repudiated and challenged the decision, so claiming that it was invalid, and when in fact the watch committee adhered to their decision, so claiming that it was valid, only the court could decide who was right. If in that situation it was said that the decision was voidable, that was only to say that the decision of the court was awaited. But if and when the court decides that the appellant was right, the court is deciding that the decision of the watch committee was invalid and of no effect and null and void. The word ‘voidable’ is, therefore, apposite in the sense that it became necessary for the appellant to take his stand: he was obliged to take action for, unless he did, the view of the watch committee, who were in authority, would prevail. In that sense the decision of the watch committee could be said to be voidable.2

The upshot of Lord Morris’s exposition of the law is this: where an administrative action is ultra vires or if it fails the test of legality, it is unlawful and invalid. The Court cannot recognise unlawful and invalid acts. If an administrative action is adjudged to be invalid and therefore void, any implementation of such action will be known in advance to be unlawful.3 An invalid administrative action cannot be validated by the administrative body or official in question or by a higher administrative body or official;4 except that, as we saw in chapter 5 (section 5.6), a higher administrative body or official may, if authorised so to do by the applicable legislation, set aside and correct that action. Nevertheless, that does not take away the fact that the action of the lower administrative body or official was invalid or void, that is, a nullity. By a parity of reasoning, as has been intimated previously, the Court cannot recognise an unlawful and invalid administrative action. An aggrieved person may ignore an unlawful and invalid administrative action but such course of action is not advisable. It is rather advisable for an aggrieved person to take a stand 2 3 4

[1964] AC 40 (HL), at 125. See Lawrence Baxter (1984). Administrative Law. Cape Town: Juta & Co, pp 362–363. Loc cit.

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and attack the action by judicial review. Moreover, when the Court adjudicating the review application upholds the stand of the aggrieved person, that Court is deciding that the administrative action of the administrative body or official in question was ‘invalid and of no effect and null and void’. In those circumstances, the word ‘voidable’ may be ‘apposite in the sense that it became necessary’ for the aggrieved person to take a stand. He or she was obliged to take action to approach the court for relief, for, unless he or she did that, the position of the administrative body or official in question ‘would prevail’.5 In that sense and in those circumstances, the administrative action of the administrative body or official in question ‘could be said to be voidable’.6 However, that, I submit, does not detract from the fact that the decision or act of the administrative body or official complained of is unlawful, invalid and of no force. The lawfulness or otherwise of an administrative action is determined with reference to the principles of ultra vires and the doctrine of legality;7 and so an administrative action which is ultra vires or which does not pass the test of legality is an unlawful action: it is invalid; it has no force; and it is null and void. Therefore, I reiterate that a statement that the administrative action is invalid or invalid ‘ab initio’ is at best pleonastic (ie redundant) and at worst confusing. Either the administrative action is unlawful and therefore invalid or it is lawful and therefore valid, as mentioned previously. In sum, I submit that the seemingly confusing characterisation of unlawful and invalid administrative actions as ‘void’ or ‘voidable’ should be disregarded. It has created more heat than light in the judicial control of administrative action through judicial review. The House of Lords8 in England and the Privy Council in some parts of the Commonwealth where the Judicial Committee of the Privy Council is the highest appellate court,9 have held that any unlawful and invalid administrative action based on the ultra vires doctrine or the principle of legality is void and of no force. For that reason, any other labelling or descriptive terminology

5

6 7 8 9

Ridge v Baldwin [1964] AC 40 (HL), at 125. A similar statement was made in the South African Supreme Court of Appeal in the case of Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 22 (SCA). Ridge v Baldwin supra, at 125. See chapter 3 (para 3.2.1) Anismic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL). A-G v Ryan [1980] AC 718 (PC).

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would be ‘inconsistent with the doctrine of ultra vires … as a means of controlling abuse of power by the executive arm of government’.10 Insofar as an unlawful administrative action is considered as voidable rather than ‘void’, the aggrieved person is deprived of what is often seen as their remedy, which is to have that administrative action brought under judicial review. ‘This is a serious item to add to all the other disadvantages forsaking “void” or “voidable”.’11 It is important to note that in Namibia, where administrative bodies or officials act without satisfying one or more of the requirements stipulated in art 18 of the Constitution, they act in violation of the Constitution, or if they act in breach of any of the common-law grounds of review discussed in chapter 4 (section 4.2), their administrative actions are unlawful, invalid, null and void and of no force. In that event, an aggrieved person may vindicate their right guaranteed by art 18 or at common law by judicial review and pray the Court to grant them appropriate remedy. The remedies that are available to successful applicants are discussed next in section 6.2. B. Cases

[47]

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Ridge v Baldwin [1964] AC 40 (House of Lords) By section 191 of the Municipal Corporation Act, 1882, the Watch Committee has power from time to time to appoint a sufficient number of fit men to be borough constables. The Committee has also power to suspend and dismiss any borough constable who they think is negligent in the discharge of his duty or otherwise unfit for it. The Committee dismissed the appellant as a chief constable for misconduct without hearing him in breach of the audi alteram partem rule of natural justice. Appellant’s internal appeal to the Minister was unsuccessful. Appellant contended

10 Hoffman-La Roche (F) & Co v Secretary of State for Trade and Industry [1975] AC 295 (HL). 11 HWR Wade (1968). ‘Unlawful administrative action: Void or voidable?’ LQR vol 84 pp 95–108, at pp 104–108 (quoted in Leo D Barry (1978). Administrative Law: Cases and Materials (Vol 2). Halifax: Dalhousie Law School, p 5).

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that the Committee’s decision to dismiss was unlawful on the basis that it was contrary to natural justice. The issue was whether the unlawful decision was void or voidable. The House of Lords held (by the majority consisting of Lord Morris, Lord Reid and Lord Hodson) that the decision of the respondents to dismiss the applicant was null and void, that is, a nullity. Lord Morris

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… My Lords, in my judgment, inasmuch as the decision of the Watch Committee was that the Appellant had committed an offence or offences against the Discipline Code and inasmuch as the decision was arrived at in complete disregard of the Regulations it must be regarded as void and of no effect. The power to dismiss for an offence was a power that could only be exercised if the procedure of the Regulations was set in motion. A purported dismissal in complete disregard of them cannot be recognised as having any validity. In Andrews & Others v Mitchell [1905] AC 78 (HL), the arbitration committee duly summoned before it a member of a friendly society who had been charged for a breach of the rules. The Committee expelled him in his absence from the society by a resolution of the committee upon a different charge, namely, fraud and disgraceful conduct; although no written notice had been given to him, as required by the rules. By one of the general laws of the friendly society any member proved guilty of fraud or any conduct or offence calculated to bring disgrace upon the order before any recognised arbitration committee, provided a charge had been preferred against him as required by the general laws with regard to arbitrations, might be expelled or suffer some less penalty. The House of Lords held that the decision of the committee was null and void. In his speech, Lord Halsbury, LC said, ‘there are some principles of justice which it is impossible to disregard.’ He pointed out that while there was a rule that justified expulsion it justified expulsion upon the express proviso that the charge had been made as provided by the rules. He added: In this case the charge never was made as provided by the rules; and if you have no power given under the rules to expel a member except upon a charge made and tried according to the rules, you have no power to expel in a case like this.

He described the summoning of a member pursuant to the rules and giving him time to consider what he had to do and giving him the charge against him in

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writing as ‘matters of substance, and not mere matters of form’. He concluded that the arbitration committee ‘had no jurisdiction’ to entertain the matter. Lord Davey said:

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the expulsion of the respondent, in my opinion, altogether null and void. It is not contended by Mr Lawrence that this charge was made properly according to the rules, but he regarded that as a mere informality which might be set right. But it was an informality which went to the root of the jurisdiction, and the omission to follow the directions of the rules for preferring charges had the unfortunate effect of making the resolution which was come to formal.

My Lords, if the Regulations were applicable in this case, as in my judgment they were, Regulation 2 of SI 1952 No 1706 to which I have referred above only gives a power to impose punishment without a hearing if a condition is satisfied, namely, if there is an admission of the commission of an offence. In the present case there was no such admission and the Watch Committee therefore lacked power to impose punishment for an offence without a hearing: in purporting to dismiss the Appellant they acted without jurisdiction and their decision was a nullity. In Lapointe v L’Association de Bienfaisance et de Retraite de la Police de Montreal [1906] AC 535, the appellant, who was a member of the respondent benevolent and pension society, had been obliged to resign from the police force. Under those circumstances he became entitled according to the rules to have his case for a gratuity or pension considered by the board of directors and his right to such gratuity or pension determined by a majority of the board. The board in fact acted in a most extraordinary manner …. Lord Macnaghten said that it was obvious that the so-called determination of the board was void and of no effect and the order, which they humbly advised included a declaration and determination as required by the rules, and that the proceedings were null and void. In Annamunthodo v Oilfields Workers’ Trade Union [1961] AC 945 (PC), the Privy Council held that a decision of the General Council of the Trade Union was vitiated because, against the rules, it convicted the Appellant of an offence with which he had never been charged, and it was held that it should be declared that the purported expulsion of the Appellant was invalid and that an order should be made to set it aside. My Lords, so here should it, in my judgment, be declared that the purported termination on the March 7, 1958, of the Appellant’s appointment was void unless it be that later events debar the Appellant from obtaining this relief. If they do

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not, then the effect of such a declaration will be that the Respondents will have to consider what action to take and in any course that they follow they must act according to law. … In a case in which a Consistory Court had made an order requiring a vicar to pay certain expenses and costs but had given him no opportunity of being heard in his defence, a writ of prohibition directed to the Chancellor was issued (see Rex v North ex parte Oakey [1927] 1 KB 491, at 502) and Scrutton LJ said: In my view an order that anyone shall pay the cost of restoring work which has been obliterated without a faculty is in the nature of a penalty for an ecclesiastical offence, and one of the most fundamental principles of English law is that if you are going to impose on a person a penalty for an offence, you must first clearly inform him that an application to that effect is going to be made against him, so that he may know what he is charged with and have an opportunity of attending to meet it.

…

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So also did the Courts come to the aid of Dr Bentley and granted a peremptory mandamus to restore him to his degrees. (R v University of Cambridge (1723) 1 Stra 557.) Though the Court was roundly critical of Dr Bentley’s behaviour, they considered that even if he had been guilty of a contempt to the Vice-Chancellor’s Court that Court had no power to deprive him of his degrees: but they held that in any event he could not be deprived without notice. The words of Fortescue, J, at 566 were emphatic: Besides, the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any.

In Wood v Woad LR 9 Ex 190, at 196, Kelly CB in speaking of the ‘rule expressed in the maxim audi alteram partem’ said: This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.

It was submitted that the decision of the Watch Committee was voidable but not void. But this involves the enquiry as to the sense in which the word ‘voidable’, a word deriving from the law of contract, is in this connection used. If the Appellant

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had bowed to the decision of the Watch Committee and had not asserted that it was void, then no occasion to use either word would have arisen. When the Appellant in fact at once repudiated and challenged the decision, so claiming that it was invalid, and when in fact the Watch Committee adhered to their decision, so claiming that it was valid, only the Court could decide who was right. If in that situation it was laid that the decision was voidable, that was only to say that the decision of the Court was awaited. But if and when the Court decides that the Appellant was right, the Court is deciding that the decision of the Watch Committee was invalid and of no effect and null and void. The word ‘voidable’ is therefore apposite in the sense that it became necessary for the Appellant to take his stand: he was obliged to take action, for unless he did the view of the Watch Committee, who were in authority, would prevail. In that sense the decision of the Watch Committee could be said to be voidable. The Appellant could, I think, have applied for an order of certiorari: he was not saying that those who purported to dismiss him were not the Watch Committee; he was recognising that they had a power and jurisdiction to dismiss, but he was saying that whether the Regulations applied or whether they did not the Committee could only exercise their power and jurisdiction after hearing his reply to what was said against him. In these circumstances he could, I think, have applied for an order of certiorari (though considerations of convenience would probably have pointed against pursuing such a course) or he could have asked for a declaration. In either proceeding the question of acquiescence by him might be raised or the question whether by some binding election he had barred himself from taking proceedings in Court or whether in some way he was estopped. It seems to me that he made it abundantly clear that by his appeal to the Secretary of State he was not in any way abandoning his right to contend that the decision of the Watch Committee was invalid. An appeal to the Secretary of State raises a question whether a decision which as a decision has validity should or should not on the facts and on the merits be upheld. The question raised and reserved by the Appellant was the fundamental point that the purported decision of the Watch Committee was no decision. It would not have been unreasonable if the Secretary of State had asked that that point should first be adjudicated. But in the events which happened I cannot think that the careful steps which were taken to protect the Appellant’s position ought to be held to have in fact compromised it. Compare Annamunthodo v Oilfields Workers’ Trade Union. The Appellant never abandoned his point, and in my view nothing done by him or by the Secretary of State gave validity to a decision which is now shown to have had none. For the reasons that I have given I would allow the appeal.

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Notes 1. By s 191 of the Municipal Corporation Act, 1882, the Watch Committee has the power from time to time to appoint a sufficient number of fit men to be borough constables. The Committee also has the power to suspend and dismiss any borough constable who they think is negligent in the discharge of his duty or otherwise unfit for it. 2. In breach of the audi alteram partem rule of natural justice, the Committee dismissed appellant as a chief constable for misconduct without hearing him. Appellant’s internal appeal to the minister was unsuccessful. Appellant contended that the Committee’s decision to dismiss was unlawful on the basis that it was contrary to natural justice. The Court rejected his contention. 3. On appeal, the issue before the House of Lords was whether the unlawful decision was void or voidable. 4. The House of Lords held (by the majority consisting of Lord Morris, Lord Reid and Lord Hodson) that the decision of respondents to dismiss applicant was null and void, that is, a nullity. 5. See further case [48] and the Notes thereunder.

[4 8]

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Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade [1975] AC 295 (HL) Lord Diplock: … My Lords, the question in this appeal is whether Walton J exercised his discretion rightly when he refused to grant an interlocutory injunction restraining the appellants from acting in breach of the Regulation of Prices (Tranquillising Drugs) (No 3) Order, 1973 except upon terms that the Secretary of State should give an undertaking as to damages in the usual form. The Secretary of State was unwilling to do this. So Walton J refused an injunction, upon an undertaking being given by the appellants in the terms which have already been mentioned by your Lordships. …

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Legal status of the order My Lords, in constitutional law a clear distinction can be drawn between Acts of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it, the Minister who did so acted outwit the legislative powers conferred upon him by the previous Act of Parliament under which the order purported to be made, and this is so whether the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects). In so far as there are passages in the judgment of Lord Denning MR in the instant case which may appear to suggest the contrary, I think that they are wrong. Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf Ridge v Baldwin [1964] AC 40). Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare.

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The presumption of validity of the order My Lords, I think it leads to confusion to use such terms as ‘voidable’, ‘voidable ab initio’, ‘void’ or ‘a nullity’ as descriptive of the legal status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction. These are concepts developed in the private law of contract which are ill-adapted to the field of public law. All that can usefully be said is that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question. All locus standi on the part of anyone to rebut the presumption of validity may be taken away completely or may be limited in point of time or otherwise by the express terms of the Act of Parliament which conferred the subordinate legislative power, though the courts lean heavily against a construction of the Act which would have this effect (cf Anisminic Ltd. v Foreign Compensation Commission [1969] 2 AC 147). Such was the case, however, in the view of the majority of this House in Smith v East Elloe Rural District Council [1956] AC 736, at any rate as respects invalidity on the ground of latent defects, so the compulsory purchase order sought to be challenged in the action had legal effect notwithstanding its potential invalidity. Furthermore, apart from express provision in the governing statute, locus standi to challenge the validity of subordinate legislation may be restricted, under the court’s inherent power to control its own procedure, to a particular category of persons affected by the subordinate legislation, and if none of these persons chooses to challenge it, the presumption of validity prevails. Such was the case in Durayappah v Fernando [1967] 2 AC 337 where on an appeal from Ceylon, although the Privy Council was of opinion that an order of the Minister was ultra vires owing to a latent defect in the procedure prior to its being made, they nevertheless treated it as having legal effect because the party who sought to challenge it had, in their view, no locus standi to do so. The legal status of the Regulation of Prices (Tranquillising Drugs) (No 3) Order, 1973 which the appellants seek to challenge in the instant case is aptly stated in the words of Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736, at 769–770: An order  ...  is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to

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establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.

The instant case is not one where the appellants contend that what they are threatening to do would not be a contravention of the order – as was the case in Post Office v Estuary Radio Ltd [1967] 1 WLR 847; [1968] 2 QB 740. Different considerations would apply to that. Their only answer to the application for an interim injunction to enforce the order against them is that they intend to challenge its validity. It is not disputed that they have locus standi to do so, but this does not absolve them from their obligation to obey the order while the presumption in favour of its validity prevails – as it must so long as there has been no final judgment in the action to the contrary. … In common with the majority of your Lordships, I cannot regard this undertaking as a satisfactory alternative to an interim injunction. I would dismiss this appeal.

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Notes 1. These are proceedings for a declaration that a statutory order was invalid. On a motion for an interim injunction in the same terms, the Secretary of State refused to give an undertaking in damages, Walton J refused to grant the interim injunction. The Court of Appeal allowed an appeal by the Secretary of State in lieu of the injunction sought by him. Appellant appealed to the House of Lords. 2. The English case [47] is a landmark case, and the several principles of law the House of Lords enunciated have influenced the development of administrative law both in and outside England. 3. One of the principles the Law Lords considered in case [47] was whether an unlawful decision was void or voidable. 4. In case [47], the House of Lords held that where a public authority is required to observe principles of natural justice when it acts, if it fails to comply with the requirements of natural justice, the purported action of the public authority is a nullity. 5. The previous case [47] should be read together with this case [48] in order to appreciate the void–voidable distinction and its consequence for unlawful administrative action.

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6. The view expressed in this case [48] appears to be based on pragmatic considerations. Lord Diplock found support in the earlier House of Lords case of Smith v East Elloe Rural District Council [1956] AC 736, at 769, 770. 7. That an administrative action is lawful until set aside by a competent court appears to be predicated upon the doctrine expressed in the maxim omnia praesumuntur rite esse acta. 8. The holding in case [48] is in line with the decision of South Africa’s Supreme Court of Appeal (SCA) in Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA).

6.2 Remedies for unlawful and invalid administrative action

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A. Text The principle of the duty to exhaust statutory domestic remedies before approaching the Court for relief is discussed in chapter 5 (section 5.6). If the implementation of the doctrine does not stand in the way of a person who is aggrieved by an administrative action by an administrative body or official, such aggrieved person may approach the Court for relief. In Namibia, a person has the right to administrative justice guaranteed to them by art 18 of the Constitution. The realisation of an art 18 right, like any of the rights guaranteed by the Constitution, depends upon remedies, in the sense that the rights have meaning and are useful only if there are remedies for any violations. This is expressed in the maxim ubi ius ibi remedium. See case [52]. The remedies discussed in the next paragraph (para 6.2.1) are those that are available to aggrieved persons, within the meaning of art 25(2) of the Constitution, who make out a case for the granting of any of the remedies. It is significant to underline the point that the remedies in administrative law serve the purpose of judicial control of administrative action by administrative bodies and officials. It is important to note the following with regard to the Ombudsman, established by art  89 of the Constitution. In Namibia, the Ombudsman is not a tribunal within the meaning of art 12(1)(a) of the Constitution. The opening words of the formulation of the Ombudsman’s functions under paras (a) to (g) of art 91 are instructive in that regard: (a) duty to investigate …; (b) duty to investigate …;

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(c) duty to investigate …; (d) duty to investigate …; (e) duty and power to take appropriate action …, including: (dd) and (ee) bringing proceedings in a competent court for interdictory relief … (f) duty to investigate … (g) duty to report annually to the National Assembly …. The Ombudsman has investigative powers and the power to assist aggrieved persons, within the meaning of art  25 of the Constitution, to seek redress in a competent court, which is the High Court as a court of first instance, in the protection of their rights under the Constitution. The Ombudsman has the power, after investigating a complaint, say, against an administrative body or official, to institute proceedings in a competent court for appropriate relief. However, the Ombudsman is not competent to adjudicate the complaint and grant the relief provided by art 91 of the Constitution. They may also seek redress, as I have said previously, in a competent court on behalf of a person who alleges that a right guaranteed to them by Chapter III of the Constitution has been threatened or violated in relation to them. The Ombudsman has no power to adjudicate on the allegation. Like a court, a tribunal (which is an adjudicative body) hears evidence on oath or by affirmation; the giver of the evidence is subject to cross-examination; and the tribunal applies the law to the facts and decides. In addition, a tribunal’s decision is final and is subject only to review or appeal in the High Court. In Namibia, the Ombudsman does not hear evidence on oath or by affirmation; and so, the question of cross-examination does not even arise. In sum, in Namibia, the Ombudsman is not a tribunal. Examples of tribunals in Namibia are arbitration tribunals (under the Labour Act),12 the Land Tribunal (under the Agricultural (Commercial) Land Reform Act),13 electoral tribunals (under the Electoral Act),14 and the Tax Tribunal (under the Income Tax Act).15 I have previously discussed tribunals in contradistinction to administrative bodies and officials in administrative law in chapter 3 (Part A, section 3.2). 12 13 14 15

2007 (Act No 11 of 2007). 1995 (Act No 6 of 1995). 2014 (Act No 5 of 2014). 1981 (Act No 24 of 1981).

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Be that as it may, it is worth noting that in Namibia the Ombudsman plays an important role in the judicial control of administrative action. One of the functions of the Ombudsman in terms of art 91 of the Constitution that is relevant to administrative law is this: the Ombudsman has a duty to investigate complaints of unlawful and unfair administrative action by administrative bodies and officials. In addition, assuming the position of parens patriae, the Ombudsman may stand in the place of a person aggrieved by such action, and, in terms of art 25(2) of the Constitution apply to a competent court (ie the High Court) for interdictory relief or other suitable relief aimed at remedying the impugned administrative action. An aggrieved person may claim one or more remedies as an alternative remedy or alternative remedies to one or more remedies, or one or more remedies may be claimed in addition to a remedy or remedies; except that alternative and additional remedies must be claimed in the notice of motion or counter-application. We saw in chapter 5 (section 5.1) that rule 76 of the rules of the High Court governs applications for judicial review of administrative actions, of administrative bodies and officials. In that regard, it is important to note that the rule 76 procedure is not restricted to where remedies of setting aside (or quashing) unlawful and invalid administrative action, mandamus and prohibitory interdict are sought.16 The remedies of declaration and prohibitory interdict may be sought together, and so may the remedies of declaration and setting aside of administrative action be sought together, in the same motion proceedings. In this regard, the Alberta Supreme Court said: As to whether the court can still use a declaratory judgment when certiorari (the quashing or setting aside of the action) could be or should have been used I would refer to the case of Pyx Granite Co Ltd v Minister of Housing and Local Government [1959] 3 All ER 1 (HL), at 8, a decision of the House of Lords where Lord Goddard stated: I know of no authority for saying that, if an order or decision can be attacked by certiorari, the court is debarred from granting a declaration in an appropriate case. The remedies are not mutually exclusive though, no doubt, there are some orders, notably convictions before justices, where the only appropriate remedy is certiorari.17 [Emphasis added]

16 See RJF Gordon (1985). Judicial Review: Law and Procedure. London: Sweet & Maxwell, chapter 3 passim. 17 Sommers v City of Edmonton and Scott 10 AR 48 (Alberta Supreme Court) (1978), para 4.

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In Cooper v Wilson & Others,18 Lord Justice Greer said: … nor do I think that the power which he undoubtedly possessed of obtaining a writ of certiorari to quash the order for his dismissal prevents his application to the court for a declaration as to the invalidity of the order of dismissal.

In the Canadian case of Driver Salesmen v Board of Industrial Relations,19 Riley J stated:

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The prevailing view is that it ought not to make any difference to the courts, through which door the Plaintiff enters. A substantial amount of judicial support is found for the proposition that an action for a declaration is prima facie, an appropriate alternative remedy to certiorari to quash for want of jurisdiction.

These authorities support the proposition that a declaration is an effective alternative remedy to the remedy of quashing or setting aside an administrative action. Indeed, ‘it ought not to make a difference to the courts, through which door’ an applicant enters to approach the court to attack an administrative action by judicial review.20 Accordingly, I submit that declaration is prima facie an appropriate alternative remedy to the remedy of setting aside administrative actions by administrative bodies or officials;21 and an applicant may decide to choose which door to approach the court to attack an administrative action by judicial review.22 Indeed, there is no authority for saying that, if an administrative action can be attacked by setting aside that action, the Court is debarred from granting a declaration in an appropriate case. ‘The remedies are not mutually exclusive.’23 It follows inexorably that applicant in Minister of Finance v Merlus Seafood Processors (Pty) Ltd, for example, was entitled to choose which appropriate door of the Court to enter in order to approach the seat of judgment of the Court by way of

18 19 20 21

[1937] 2 KB 309 (CA), at 321. (1967) 61 WWR (NS) 484, at 489. See Driver Salesmen v Board of Industrial Relations (1967) 61 WWR (NS) 484, at 489. Cf Minister of Finance v Merlus Seafood Processors (Pty) Case No SA 91/2011, where the Court there took the view that where the impugned administrative action has not been set aside, the presumed validity of an administrative action cannot be challenged by declaration. 22 See Driver Salesmen v Board of Industrial Relations (1967) 61 WWR (NS) 484, at 489. 23 Sommers v City of Edmonton and Scott 10 AR 48 (Alberta Supreme Court) (1978), para 4.

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the remedy of ‘declaration as to the invalidity’ of the decision of the minister.24 A declaration that the minister’s decision was unlawful and invalid would not have the effect of causing ‘the decision of the Minister and the declaratory order’ to ‘co-exist on the same issue’. If the minister’s decision was declared unlawful and invalid, and therefore null and void, as a matter of law and logic, that decision would not be ‘still alive’ for it ‘to co-exist with the declaratory order on the same issue’. To conclude: the principle is that where an administrative body or official is alleged to have acted without complying with any of the requirements prescribed by art  18 of the Constitution or any common-law requirement, 25 the Court can intervene by declaration as to the invalidity of the administrative action.26 In sum, declaration is as effective a remedy in controlling administrative action as the remedy of setting aside the administrative action.27 I discuss the remedies available to an applicant for judicial review of administrative action by administrative bodies and officials next, in paras  6.2.1 to 6.2.3.

6.2.1 Setting aside administrative action or setting aside administrative action and correcting it

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A. Text The present paragraph deals with situations where the applicant prays the Court to review and set aside the impugned administrative action. Most invariably, applicants pray the Court not only to review and set aside the administrative action, but in addition also to correct it. If the Court set aside the impugned action only, it may refer the matter back to the administrative body or official whose action has been set aside to enable that body or official to reconsider and decide afresh. In that regard, the Court may give directions as to what the administrative body or official ought to do to cure the invalidity. Courts usually give such directions in cases where the administrative body or official had acted within the powers given to them by the applicable statute but the body or official had acted contrary to the audi alteram 24 25 26 27

Cooper v Wilson & Others [1937] 2 KB 309 (CA), at 321. See chapter 4, where I have treated those requirements. Barnard & Others v National Dock Labour Board & Others [1953] 2 QB 18 (CA). Cooper v Wilson & Others [1937] 2 KB 309 (CA); Sommers v City of Edmonton and Scott 10 AR 48 (Alberta Supreme Court) (1978).

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partem rule of natural justice, for instance. For example, in Immigration Selection Board v Frank,28 after setting aside the decision of appellant, the Supreme Court ordered that the matter be referred back to the appellant Board for the Board ‘to reconsider and decide after complying with the audi alteram partem rule’. In a greater majority of cases, where a court has reviewed and set aside the unlawful and invalid administrative action, the court would merely set aside that impugned action, refusing to correct it or refer the matter to the administrative body or official to reconsider and decide afresh. This usually occurs where the unlawfulness and invalidity of the administrative action are not based on noncompliance with the audi alteram partem rule, for instance, 29 or on some aspect of procedural unfairness. In Skeleton Coast Safaris v Namibia Tender Board & Others30 the Court, having concluded that the Tender Board’s decision was ultra vires when the Board awarded to third respondent a concession to operate safaris in the Skeleton Coast National Park, declared the decision to award the concession null and void and set aside the award. As to the question whether a court, after reviewing and setting aside the challenged administrative action, may correct it, the general principle has always been this. In the absence of a statutory provision entitling it to correct the administrative action in question, the court should have a good reason or exceptional circumstances should be found to exist for the court to correct the unlawful and invalid action, after setting it aside.31 ‘It is well settled,’ stated Willis, that where an administrative body is vested by statute with powers of decision the courts cannot in the absence of express statutory authority, interfere with their exercise; they can only see to it that that body does not exceed its jurisdiction.32

It is no part of that purpose to substitute the opinion of the Court for that of the authority constituted by law to decide the matters in question.33 If the courts were 28 2001 NR 107 (SC), at 157H. 29 For example, Open Learning Group v Secretary, Ministry of Finance 2006 (1) NR 275 (HC). 30 1993 NR 288 (HC). 31 See eg Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC). 32 John Willis (1939). ‘Administrative Law and the British American Act’. Harvard Law Review, vol 53, p 274 (quoted in Leo D Barry (1978). Administrative Law: Cases and Materials (Vol 1). Halifax: Dalhousie Law School, p 31). 33 Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 (House of Lords).

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to do this, they would be usurping the function of the public authority created by the parliament to take the decision.34 Lord Hailsham of St Marylebone LC said in Chief Constable of North Wales Police v Evans about judicial review: It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner.35

An example of a good reason entitling a court to correct the administrative action it has reviewed and set aside is found in Lisse v Minister of Health and Social Services.36 There, Mainga J concluded that ‘respondent in casu exhibited bias against the applicant and it is not likely that she will change her attitude’. On appeal, the Supreme Court agreed

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with the Court a quo that there should be no referral back for reconsideration, but only a direction, ordering the authority in terms of s 17 of the Hospitals and Health Facilities Act 37 to grant the permit within 30 days of the making of this order.38 [Emphasis original]

In Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment39 the question arose whether the Court should, after setting aside the impugned decision, order the minister to grant the permit to applicant to import mountain reedbuck. An official in the minister’s ministry had refused to grant such permit. However, it was the minister who was vested with power by the Nature Conservation Amendment Act40 to make such decision. The Court set aside the decision refusing a permit to import mountain reedbuck and referred the matter back to the minister for the minister ‘to consider and decide after complying with the principles of natural justice, including the audi alteram partem rule’.41 34 See Frank & Another v Chairperson of the Immigration Selection Board 1999 NR 257 (HC), at 121G. 35 [1982] 1 WLR 1155 (HL), at 1160E–F. 36 Lisse v Minister of Health and Social Services 2004 NR 107 (HC). 37 Act No 36 of 1994. 38 Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC), at 775 para 32. 39 2010 (1) NR 1 (SC). 40 1996 (Act No 5 of 1996). 41 Waterberg Big Game Hunting Lodge Otjahewita supra, at 34F.

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In conclusion, where an application to review and set aside and correct the challenged administrative action is successful, the Court may grant any one of the following orders: (a) An order setting aside the administrative action. (b) An order setting aside the administrative action (as in para (a)), and referring the matter back to the administrative body or official in question for that body or official to reconsider the matter afresh and decide: (i) without directions, or (ii) with directions to the administrative body or official concerned to, for example, comply with the audi alteram partem rule. (c) An order setting aside the administrative action (as in para (a)), coupled with an order whereby the Court corrects the unlawful and invalid administrative action.

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(d) An order setting aside the administrative action (as in para (a)), coupled with an order directing the administrative body or official to do within a time limit that which the applicant had asked the body or official to do in the first place. The Supreme Court granted such an order in Minister of Health and Social Services v Lisse,42 whereby the Supreme Court directed the public ‘authority in terms of s  17 to grant the permit within 30 days of the making of this order’. The High Court granted a similar order in Viljoen v Chairperson of the Immigration Selection Board.43

42 2006 (2) NR 739 (SC). 43 2017 (1) NR 132 (HC).

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B. Cases

[4 9] Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC) O’Linn AJA (Chomba AJA and Gibson AJA concurring): … III The law applicable [23.1] Any argument that any exercise of administrative discretion is not reviewable, even if based on the provision of a statute, is without legal substance. [23.2] Whatever may have been the position prior to the coming into force of the Namibian Constitution on 21 March 1990 in conflict with art 18, has been swept away by art  18 of the Namibian Constitution, which deals with ‘Administrative Justice’. This article reads as follows: 18. Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.

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IV Final conclusions and remarks [30] The Court a quo held: 1.1 The Minister did not afford to applicant a hearing, alternatively, a proper hearing, before the decision was taken. 1.2 The Minister failed to appreciate Dr Lisse’s right, alternatively, his legitimate expectation, to a fair procedure and decision-making. 1.3 The Minister failed to apply her mind properly to the matter at hand. 1.4 The decision was, in all the circumstances, unfair, unreasonable and in conflict with art 18 of the Namibian Constitution. 2. The decision should not be sent back to the Minister for a reconsideration of the application, but the Minister should be ordered to issue to Dr Lisse the authority required in terms of s 17 of the Act.

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The learned Judge a quo thoroughly considered the law and the facts on the issue of referral back and based his decision on such law and facts. It is appropriate at this stage to refer to his judgment in regard to the law. He first quoted from a judgment of Gibson J in the High Court of Namibia, where the learned Judge had this to say in the case of The Namibian Health Clinics CC v The Minister of Health and Social Services (unreported judgment handed down on 10 September 2002): The submission on behalf of the Applicant that the Respondent’s decision making was biased and hamstrung by policy considerations can’t be dismissed lightly. That this is so is self-evident from the Permanent Secretary’s view that there has been an unacceptable proliferation of permit holders giving rise to a false impression that the scope of a nurse’s profession has changed. What is implied in these words is that the Permanent Secretary clearly disapproved of the practice. Given this preconceived view, I do not consider it unreasonable to hold that a public official who subscribes to the views spelt out above was bound to pay only a lip service to the processing of the application, and would be far removed from being objective, reasonable, or fair. In the result it is my finding that in these circumstances it would be unjust to return the application to the respondent for his consideration. [Emphasis added]

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Mainga J then referred to the decision of the Supreme Court of Appeal of South Africa in the case of Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) & Another 1999 (1) SA 104 (SCA), at 109C–G, where it was stated: When setting aside such a decision, a Court of law will be governed by certain principles in deciding whether to refer the matter back or substitute its own decision for that of the administrative organ. The principles governing such a decision have been set out as follows: From a survey of the  …  decisions it seems to me possible to state the basic principle as follows, namely that the Court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and that, although the matter will be sent back if there is no reason for not doing so, in essence it is a question of fairness to both sides. (Livestock and Meat Industries Control Board v Garda 1961 (1) SA 342 (A), at 349G. See also, inter alia, Local Road Transportation Board & Another v Durban City Council & Another 1965 (1) SA 586 (A), at 598D–F; and Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban & Others 1986 (2) SA 663 (A), at 680E–F.)

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The general principle is therefore that the matter will be sent back unless there are special circumstances giving reason for not doing so. Thus, for example, a matter would not be referred back where the tribunal or functionary has exhibited bias or gross incompetence or when the outcome appears to be forgone. (Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban, & Others supra, at 680F–G.) Mainga J then set out the facts and applied the law to the facts. In this regard he gave his main reason, for not sending the matter back to the Minister for reconsideration, as follows: The respondent in casu, exhibited bias against the applicant and it is not likely that she will change her attitude.

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[31] I agree with Mainga J’s reasoning. The following additional points can be distilled from my extensive analysis of the reasons: (i) I regret to say that the consideration by the Honourable Minister and her three mentioned advisers was a travesty of justice – biased, arbitrary and a failure to apply their minds; a failure to apply the most elementary rules of reason and justice such as audi alteram partem, and in total conflict with art 18 of the Namibian Constitution and the other articles I have referred to in this judgment. (ii) It is obvious that Dr Lisse as well as his patients have already suffered substantial prejudice. A referral back for reconsideration will cause further undue delay, particularly when this Court is not in a position to determine how long the deliberations may take this time, and when the advisers of the Minister will become available. As the Minister herself indicated in her affidavit, on the availability of persons entrusted with contributing to the decision on the application: They take  …  longer (several months) at times. The period depends on the availability of persons entrusted with contributing to the decision on the application.

[32] For these reasons, I agree with the Court a quo that there should be no referral back for reconsideration, but only a direction, ordering the authority in terms of s 17 to be granted within 30 days of the making of this order. … [34] …

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In the result, I propose a slightly amended order reading as follows: 1. The appeal is dismissed. 2. The Minister of Health and Social Services is directed to issue to Dr Lisse a written authorisation in terms of s  17 of Act 36 of 1994 in respect of the Windhoek Central State Hospital within 30 days from the date of this order. 2.1 The Minister is further directed to supply Dr Lisse with a written code of conduct and/or rules, at the time of the issue of the aforesaid direction, should such code and/or rules have been in existence at the time the application by Dr Lisse was decided. 3. The Minister is ordered to pay the taxed costs of Dr Lisse in this Court as well as in the Court a quo.

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Notes 1. Respondent Lisse (in the Supreme Court), a medical practitioner, had applied to the Minister for written authorisation to use the facilities at the Windhoek State Hospital for the treatment of his private patients as required by s  17 of the Hospitals and Health Facilities Act 36 of 1994. The minister refused his application. Lisse (applicant in the High Court) applied to the High Court to review and set aside the decision of the Minister (appellant in the Supreme Court). The High Court (the Court a quo) granted Lisse’s application and ordered the minister to issue the necessary certificate to Lisse in terms of s 17 of the Act. The minister appealed the High Court decision in the instant proceedings. 2. On appeal, the Supreme Court held that art 18 of the Constitution required that administrative bodies and officials must give reasons for their decisions. Furthermore, they were required to act fairly and reasonably and to apply the audi alteram partem rule. 3. In this case [49], the Supreme Court (O’Linn AJA (Chomba AJA and Gibson AJA agreeing)) considered whether on the facts and in the circumstances the Court should replace an administrative decision with its own decision rather than refer it back to the public authority concerned to decide afresh. O’Linn AJA (Chomba AJA and Gibson AJA agreeing) gave three reasons why the decision should not be sent back to the Minister for a reconsideration of respondent’s application, but that the Court should instead order the minister to issue to respondent the authority required in terms of s 17 of Act 36 of 1994, as respondent had applied for from the minister.

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4. In a later case [50], the Court set out the circumstances under which a court would substitute its decision for that of the administrative body or official, after setting aside the administrative decision concerned.

[5 0] Waterberg Big Game Hunting Lodge Otjahawita (Pty) Ltd v Minister of Environment and Tourism 2010 (1) NR 1 (SC) O’Linn AJA:

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… 6.4 It is obvious from the above that, although Beytell (the official) should have known better, he did not intentionally usurp the powers and functions of the Minister. Rather, it was the incumbent Minister himself/herself who abrogated his/her function and power by disuse. In the circumstance it cannot be said that if my proposed order is issued by the court, the court would be usurping the function of the Minister. It is rather the incumbent Minister himself/herself who had the duty to function over many years, but who deprived himself/herself of the opportunity to function. The court would consequently also not be ‘penalising’ the Minister by making an order as proposed by me, but rather rectifying a grave neglect by the said incumbent in this regard in accordance with the provisions of the Namibian Constitution above referred to. Should the matter be referred to the Minister for his consideration de novo, he would probably rely on officials of his Ministry to come to a decision. Beytell, in his answering affidavit, demonstrated a strongly held opinion and adherence to a fixed policy decided upon by the Ministry. He will probably convey that opinion to the Minister when the Minister considers the applications. There is no indication that the honourable Minister is an expert on the issue. The possibility of bias of the officials, and the effect of the predetermined policy on the Minister, is rather strong. The applicant/appellant will be severely prejudiced if the applicant/appellant is now compelled by the order of court to put its case de novo to a Minister who had failed for many years to exercise the power and function allocated to him/her.

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It is not only the three years that have elapsed since the making of its application, but the time needed and the expenses entailed to get finality that have to be considered. This time and cost will not necessarily end with the decision of the Minister because, if the applications are again refused, review proceedings may again have to be instituted by the applicant, delaying finality for a further period of years. After having had to endure the chaotic position of confusion and neglect caused by the actions and omissions of the Minister and his Ministry, the question must be squarely put and answered: Is it fair and reasonable to require the applicant to submit its case de novo to the said Minister and Ministry in such circumstances? On the other hand, the granting of the said applications by the Minister in execution of the order of the court in due course will not prejudice the State’s interest and duty to protect the biodiversity of Namibian wildlife but will enable the Minister and the Ministry, in conjunction with and in consultation with the joint stakeholders, to decide on a policy and procedures that will sufficiently protect such biodiversity as well as the public interest and the interest of the wild game farmers, traders and businessmen and women. They are entitled, in terms of the fundamental freedom enshrined in art 21(1)(j) of the Namibian Constitution, to practise their trade, business or profession ‘subject to the law of Namibia, insofar as such law imposes reasonable restrictions on the exercise of such right or freedom Section 49(1) of Ord 4 of 1975 and art 18 of the Constitution are part of the aforesaid law of Namibia. Section 49 does impose reasonable restrictions, such as veterinary control for the importation of any game and in issuing the permit, additional conditions may be imposed other than a total ban to safeguard biodiversity and to prevent the spread of sickness by imported game. 7. This is not a case where the alleged complications of the issue of biodiversity and the division of powers between the legislature, the executive and the courts should be overemphasised. 7.1 After all, several similar applications were apparently approved over many years for several applicants until the applications of applicants were suddenly refused, in execution of a new policy adopted by an unauthorised Ministry under the control of the Minister. During this period the issue of protecting the biodiversity was never raised and at no stage was it alleged that the imported game had infected the indigenous game with any disease or had any adverse effect on such game in practice.

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7.2 As to the alleged infringement of the principle and theory of division of powers and the alleged need not to unduly interfere with division of powers, the following points must be kept in mind: (i) Article 1(3) of the Constitution merely provides that the ‘main organs of the State shall be the Executive, the Legislature and the Judiciary’. The functions and powers of these organs are dealt with separately in other provisions of the Constitution but, although distinct, they overlap. (ii) As to the power of one organ to interfere in the powers and functions of another, it is obvious that Parliament can and will interfere in the functions of the Executive.

As far as the courts are concerned, the courts are mandated specifically to interfere not only with the legislature in regard to the constitutionality of laws, but with the executive in regard to its actions and/or omissions which are in conflict with arts 18, 25, 40 and 41 and/or in conflict with the provisions of other laws. It follows from the above that no principle of non-interference can be derived from the Namibian Constitution, at least not in regard to interference by the courts in the functions and powers of the executive, in the case of acts and omissions in conflict with the Constitution and/or other applicable laws.

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8. There can be no doubt that the Minister and the Ministry, although not abolishing the freedom of the applicant/appellant to conduct a business of its choice, they have by their actions and omissions ‘abridged’ such right in terms of art 25(1) or ‘infringed’ it in terms of art 25(2) of the Constitution. That abridgment or infringement will be exacerbated by the court if the court prolongs the agony by referring the matter to the Minister for consideration de novo. 9. The Court has a wide discretion as to whether it should refer the matter back to the functionary who had failed to exercise his/her function properly, for a rehearing, or whether the court should direct the functionary to issue an order as defined by the court in order to achieve an expeditious, reasonable and just solution. However, in the present case, where the incumbent Minister had failed to perform the function allocated to the Minister by law, without any excuse or justification, it will in my respectful opinion not only amount to a failure to act in accordance with the letter and spirit of arts 12, 18, 21(1)(j) and 25 of the Namibian Constitution, but also a failure of justice, should this court refer the applications to the said Minister for a hearing and decision in which the applicant is expected to submit to such process at this late stage.

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10. I have taken note of the decision in Minister of Environmental Affairs and Tourism & Others v Phambili Fisheries (Pty) Ltd [2003 (6) SA 407 (SCA)] quoted by my learned brother Shivute CJ, in which the court held: Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a Court has no particular proficiency. This is obviously only one of the considerations.

Furthermore, a lot of material and opinions have already been placed on record relating to the issues involved and in regard to the applicable facts relevant in this particular case. It is accepted that the biodiversity of the Namibian wildlife must be protected but whether or not accepting that principle – the sudden adoption of a policy behind the scenes and arbitrarily choosing the applicant as the first victim – is justified in the case before us, is a completely different issue. On this issue the court is surely in as good a position as the Minister to decide, if not in a better position. Chomba AJA:

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… Having highlighted the salient aspects of the depositions made by the dramatis personae, so to speak, namely Mr Egger on one hand and Mr Beytell on the other, I shall now proceed to consider the question whether the order that this court should make should be either that the Minister should be ordered to grant Waterberg a permit as my brother, O’Linn AJA, proposes to do or be ordered to consider the application de novo as the Chief Justice counter-proposes. The resume of the averments of Mr Egger shows that he was quite assertive that the proper functionary did not consider and determine Waterberg’s applications. He thereafter speculated that the decision seemed to have been made by cabinet, officials of the Ministry, Mr Beytell or that it was a collective decision. However, whatever doubts were raised by Mr Egger have been put to rest by Mr Beytell. The latter deposed that the decision was not made by Cabinet nor was it a collective decision but that it was made by himself. On this issue therefore Mr Beytell’s categorical assertion is to be preferred to that of Mr Egger, which was speculative. Mr Beytell’s further assertions, as is shown hereinbefore, are that he was the one upon whom the import application was served; that the power to grant or

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refuse import permits for wild game was delegated to whomever held the position that he had at the material time and ergo that the power was exercisable, and was in fact exercised, by him; that the delegation was done before Namibia’s independence; and that he was personally aware that the Cabinet of the Interim Government effected the delegation of the power. All these assertions are equally uncontroverted. Flowing from the foregoing, I propose to consider the assertion by Mr Egger that the functionary required to exercise the power of granting import permits had abrogated that power. Was that in fact the case? During the period before the Nature Conservation Amendment Act 5 of 1996 was enacted, s  49(1) of the Nature Conservation Ordinance 4 of 1975 provided that the function of issuing import permits for wild game was exercisable by the Executive Committee. The 1996 Amendment transferred the function from the Executive Committee to the Minister. The foregoing notwithstanding, according to the deposition of Mr Beytell, before independence, the Cabinet of the Interim Government delegated the function to an official of the Ministry holding a position equivalent to that which Mr Beytell held at the material time. That meant that, although the law at that time vested the function in the Executive Committee, which was in fact the Cabinet of the day, by virtue of the directive of the Cabinet of the Interim Government, the discharge of the function became that of an official in the Ministry. It is evident that even after the change of the law in 1996, the de facto functionary continued to be the Ministry official holding the position of director. That that was so can be inferred from the deposition of Mr Beytell at the tail end of para 52.1, where he stated: My delegated powers have never been contested by this applicant (or anyone else for that matter) who addressed applications to my office. …

This assertion quite clearly suggests that it is not only in the instant case that Mr Beytell exercised the so-called delegated power. To the question I have posed earlier, namely whether the Minister abrogated his power and thereby allowed Mr Beytell to exercise it, I can now confidently hold and find as a fact that there was no abrogation. The truth of the matter is that the Cabinet – although in my view quite wrongly and unlawfully – purported to divest the Minister’s precursor, the Executive Committee, of the said power and to transfer it to the holder of the office of director.

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I take judicial notice that the Cabinet, as a collective body of Ministers and headed by the President, is a superior body vis-à-vis the position of Minister. In the event, it is not surprising that Ministers holding the portfolio of Environment and Tourism (or any of its predecessors) have obligingly let a wrong Ministry official exercise the power that statutorily belongs to them. They had no choice but to defer to the directive of the superior body. To this end therefore the Minister’s failure to personally consider Waterberg’s applications cannot be attributed to dereliction of duty on his part. Moreover, in the instant case there is not a shred of evidence that the applicant’s import applications were at any stage placed before the Minister for consideration. Rather, the factual situation is that Mr Beytell received the applications and, believing that the power to act on the applications belonged to him through delegation, went ahead and made the disputed decision. It is stated that the proceedings in this case must ‘obviously’ have been brought to the Minister’s attention by the government attorney. The reason given for this supposition is that it was the Minister who was cited as the respondent in those proceedings. Insofar as I have pored over the affidavit evidence in this matter, I find not a tittle of support for that supposition. Furthermore, it is beyond peradventure that the Minister has not personally participated in these proceedings either in the court a quo or in this court. It is common cause that s  49(1) of the Ordinance vests a discretion in the Minister insofar as consideration of import permits is concerned. He can either allow or refuse such an application. To order the Minister to grant a permit to Waterberg in the present case would, in my view, unjustifiably deprive him of the statutory authority vested in him by s 49(1). Since to my mind the Minister did not abrogate his power and as he has not personally participated in these proceedings, it would, in my view, be unduly high-handed to deprive him of his discretion. What is more, there is in this matter a heated conflict emerging from expert evidence proffered by the proponents of the motion to review or set aside as against the evidence of those opposed to the motion. This is particularly so on whether or not the importation of mountain reedbuck can pose a danger to the genetic integrity of Namibia’s indigenous wildlife populations. It is consequently my firm view that it is in the wider interest of Namibia that the Minister be presented with information on the pros and cons of this issue in order to enable him to prudently exercise his statute-given discretion.

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A notion has been canvassed that to let Waterberg’s applications be submitted for reconsideration at this stage would be unfair to it. It is so canvassed on the ground that Waterberg has already waited for a very long time for a favourable decision. The insinuation is that executive red tape has occasioned the delay. The record of appeal, to the contrary, shows that swift action was taken by the executive. The facts in this case show that the two applications were lodged in September 2002. The letter ‘H’, conveying the negative decision, was dated 4 September but only signed on 30 September 2002. It was faxed to Waterberg on 1 October 2002. Waterberg was aggrieved by the negative decision and a notice of motion was filed on its behalf on 4  December 2002. Service of the motion was effected on 6  December 2002. A notice to oppose dated 30  December 2002 was filed on 7  January 2003. Allowing for the filing of affidavits by the respective parties, the notice for set down was dated 7 August 2003 and it gave the date of hearing as 10  November 2003. There followed an amended notice of set down, which designated a new date of hearing as 28  November 2003. The motion was heard on the last mentioned date but the judgment was reserved and was only given on 2 July 2004. Once again, Waterberg was aggrieved and consequently a notice of appeal was filed on its behalf on 28 July 2004. The appeal was heard in this court on 17 June 2005. Thus it can be seen that what has distanced the applicant from receiving an expected favourable decision was not any delay on the part of the Ministry. Rather, it was the slow judicial process that has caused it. For this further reason I believe that to direct the Minister to grant a licence on the basis that Waterberg has had a long time of waiting would be tantamount to misplacement of blame, if any blame at all can be said to be justified. In the final analysis, I hold that the Minister did not abrogate his power and because the Minister has not participated in the proceedings I concur with the Chief Justice that the Minister be directed to hear and determine Waterberg’s applications afresh. In doing so, the Minister must comply with the audi alteram rule and he is also hereby enjoined to act fairly and reasonably, according to the dictates of art 18 of the Namibian Constitution. Shivute CJ (Chomba AJA concurring): … I have had the advantage of reading the judgment of my brother, O’Linn AJA, and I respectfully agree that the appeal should be upheld for the reasons set out in his

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judgment. I furthermore agree that the respondent should be ordered to pay the appellant’s costs. I, however, find myself unable to agree with that part of the order proposed by my brother, O’Linn AJA, directing the respondent to grant the permit to the appellant and I shall briefly set out the reasons for so disagreeing. The application for a permit was made and stood to be considered pursuant to the provisions of s 49(1) of the Nature Conservation Ordinance 4 of 1975 (the Ordinance). The section as amended by s  12(b) of Act 5 of 1996 (the Act) and insofar as it is relevant reads: ‘No person shall import  …  any game or wild animal  …  except under a permit granted by the Minister.’ ‘Minister’ is defined in the Ordinance (as amended by s 1 of the Act) to mean the Minister of Environment and Tourism.

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It was common ground between the parties that the decision to refuse the applicant a permit to import mountain reedbuck from South Africa was not made by the Minister. As my brother, O’Linn AJA, correctly found, there was furthermore no allegation that the Minister was consulted or at any rate was part of the decisionmaking process. On the contrary, Mr Beytell, the Director of Parks and Wildlife Management in the respondent’s Ministry, pertinently contended that he was the sole decision-maker. Apart from Mr Beytell’s ipsissima verba, there was no documentary proof of a valid delegation of the powers to consider and decide applications for a permit to the office of which Mr Beytell is the head or to any other office in the respondent’s Ministry for that matter. As Botha JA stated in Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd 1965 (4) SA 628 (A), at 639C–D: The maxim delegatus non potest delegere is based upon the assumption that, where the legislature has delegated powers and functions to a subordinate authority, it intended that authority itself to exercise those powers and to perform those functions, and not to delegate them to someone else, and that the power delegated does not therefore include the power to delegate. It is not every delegation of delegated powers that is hit by the maxim, but only such delegations as are not, either expressly or by necessary implication, authorised by the delegated powers.

It follows then that in the present case the Minister is the proper functionary to exercise the powers conferred on him or her by s 49(1) of the Ordinance. It was partly on that ground that my brother, O’Linn AJA, found that the purported exercise of the discretionary powers vested in the Minister by Mr Beytell in the

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absence of a lawful delegation was ultra vires and null and void, a finding that I respectfully endorse. In the light of this finding that in itself disposes of the appeal, I consider that the proper functionary should be afforded an opportunity to consider and decide on the application, taking into account policy guidelines, the law and the merits of the appellant’s application. This is particularly imperative in the light of the consideration that the repository of powers has not deposed to an affidavit setting out his own position vis-à-vis the stance taken by Mr Beytell. Although obviously an employee of the respondent’s Ministry, Mr Beytell seemingly did not, as O’Linn AJA found, have authority to oppose the application before the High Court on behalf of the Minister and to depose to the answering affidavit on his behalf. In para 1 of his answering affidavit, Mr Beytell, inter alia, states: ‘I am duly authorised to oppose this application on behalf of the respondent and to depose to this affidavit on its behalf.’ [Emphasis added] The respondent is cited in Mr Beytell’s affidavit as the Ministry of Environment and Tourism. Although Mr Mark Egger, who deposed to a replying affidavit on behalf of the appellant, stated that he did not dispute para 1 of Mr Beytell’s answering affidavit, this attitude must be understood in the context of the apparent confusion or uncertainty about which the functionary in the respondent’s Ministry dealt with the application and the appellant’s contention that the decision to refuse it a permit was essentially a collective decision made by the Ministry, as conveyed by Mr Simenda in the letter dated 4 September 2002. That position may well explain the initial citation of the respondent in the notice of motion as the ‘Ministry’ rather than the Minister of Environment and Tourism. The respondent was, however, properly cited in Mr Egger’s founding affidavit. I do not share the view apparently taken that the respondent should, in effect, be penalised, inter alia, for having allegedly abrogated his power and, in effect, for having allowed Mr Beytell to act on his behalf contrary to the relevant provisions of the Ordinance. The finding that the respondent had allowed Mr Beytell to act on the respondent’s behalf presupposes that the respondent had been aware at all relevant times that the powers to consider and decide on the applications for permits were conferred on him alone and that, contrary to the contention advanced by Mr Beytell, there had not been a lawful delegation of these powers to any official in the respondent’s Ministry. In my respectful view, there is no evidence on the papers before us to support such a finding. On the contrary, the evidence presented by Mr Beytell in this regard was that the power to decide on applications for a permit had

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allegedly been delegated to the head of the permit office (headed by Mr Beytell at the time of the application) before independence and that the head of the permit office had always exercised the power in question. It seems to me that Mr Beytell acted on a bona fide, but mistaken assumption, that as the head of the permit office he was empowered to deal with applications under s 49(1) of the Ordinance. If Mr Beytell, who says that he had worked for the respondent’s Ministry, including its constitutional predecessor, for more than 25 years and that he was ‘fully conversant’ with the provisions of the Ordinance, can be so utterly mistaken, can the possibility that the respondent may have been unaware that he was the only functionary empowered to determine applications entirely be excluded? I think not. It does not therefore seem to me to be right that a penalty should, in effect, be imposed on the respondent by being directed to grant the permit before he has had the time to consider the application and when he has evidently not been heard by the court. In any event, I am of the view that although there has been a lapse of three years since the submission of the application, it would not be fair to both sides, in the circumstances of this case, for the court to direct the respondent to grant the permit for the following additional reasons: when setting aside a decision of an administrative authority, a review court will not, as a general rule, substitute its own decision for that of the functionary, unless exceptional circumstances exist. (See South African Jewish Board of Deputies v Sutherland NO & Others 2004 (4) SA 368 (W), at 390B.) Thus, in Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board, & Others 2001 (12) BCLR 1239 (C), the Cape Provincial Division of the High Court of South Africa stated at 1259D–E: The purpose of judicial review is to scrutinise the lawfulness of administrative action in order to ensure that the limits to the exercise of public power are not transgressed, not to give the courts the power to perform the relevant administrative function themselves. As a general principle, therefore, a review court, when setting aside a decision of an administrative authority, will not substitute its own decision for that of the administrative authority, but will refer the matter back to the authority for a fresh decision. To do otherwise would be contrary to the doctrine of separation of powers in terms of which the legislative authority of the State administration is vested in the Legislature, the executive authority in the Executive, and the judicial authority in the courts.

I respectfully associate myself with this dictum. See also Ruyobeza & Another v Minister of Home Affairs & Others 2003 (5) SA 51 (C) (2003 (8) BCLR (20), at 63G–J).

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In South African Jewish Board of Deputies v Sutherland NO & Others supra, Malan J stated at 390G: Whether there are exceptional circumstances justifying a court to substitute its own decision for that of the administrative authority is ‘in essence … a question of fairness to both sides’. Livestock and Meat Industries Control Board v Garda 1961 (1) SA 342 (A), at 349G; Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) & Another 1999 (1) SA 104 (SCA), at 109C–G; Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board supra, at 1259H. [Emphasis added]

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Hlophe J (as he then was) lucidly and succinctly stated the principles pertaining to the substitution of the functionary’s decision in University of the Western Cape & Others v Member of Executive Committee for Health and Social Services & Others 1998 (3) SA 124 (C), at 131D–G as follows, and I quote with respectful approval: Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter, the Courts have not hesitated to substitute their own decision for that of the functionary … The Courts have also not hesitated to substitute their own decision for that of a functionary where further delay would cause unjustifiable prejudice to the applicant … Our Courts have further recognised that they will substitute a decision of a functionary where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again … It would also seem that our Courts are willing to interfere, thereby substituting their own decision for that of a functionary, where the Court is in as good a position to make the decision itself. Of course the mere fact that a Court considers itself as qualified to take the decision as the administrator does not per se justify usurping the administrator’s powers or functions. In some cases, however, fairness to the applicant may demand that the Court should take such a view. [Reference to authorities omitted]

In my respectful view the circumstances of this case, viewed objectively, are such that none of the above grounds justifies the substitution by the court of its own decision for that of the functionary. A measure of judicial deference is therefore called for in this case, which, as contentions advanced by the parties tend to show, involves the typically complex task of balancing competing interests. Judicial deference in the context of this case should be understood to mean:

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a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; to accord to their interpretation of fact and law due respect; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights … It ought to be shaped not by an unwillingness to scrutinize administrative action, but by a careful weighing up of the need for – and the consequences of – judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies; not to cross over from review to appeal. (A Cockrell ‘“Can You Paradigm?” – Another Perspective on the Public Law/ Private Law Divide’ 1993 Acta Juridica, p 227,44 as quoted in Logbro Properties CC v Bedderson NO & Others 2003 (2) SA 460 (SCA) ([2003] 1 All SA 424).)

Besides, as it was stated by the South African Supreme Court of Appeal in Minister of Environmental Affairs and Tourism & Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism & Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616), at 432 para 53:

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Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a Court has no particular proficiency.

In his answering affidavit, Mr Beytell averred that a consideration of the application for the importation of certain species postulated essentially a weighing-up process involving, inter alia, an equally weighty consideration of relevant conservation and environmental principles, particularly the constitutionally recognised principle of the maintenance of ecosystems and sensitive ecological processes as well as the biological diversity of Namibia. (See art 95(l) of the Namibian Constitution under the Chapter 11 heading ‘Principles of State Policy’.) Mr Beytell furthermore referred to the Convention on Biological Diversity, an important international instrument, which emerged from the landmark 1992 United Nations ‘Earth Summit’ in Rio de Janeiro, to which Namibia is a signatory and which also forms part of the law of Namibia by virtue of art  144 of the Namibian Constitution. He set out in greater detail the approach he had adopted 44 A Cockrell (1993). ‘“Can You Paradigm?” – Another Perspective on the Public Law/Private Law Divide’. Acta Juridica. Cape Town: Juta & Co and Faculty of Law, University of Cape Town, pp 227–247.

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in the purported consideration of the appellant’s application and expressed certain views regarding the approach, which views, Mr Beytell asserted, were supported by environmental scientists that he mentioned by name. Mr Beytell’s views may be debatable, so I referred to them merely to illustrate the point I am making, namely that it seems to me that the subject-matter of the administrative decision in this case is relatively technical and therefore the consideration of the application for a permit is best left to the functionary with the power and proficiency to deal with the applications of this nature. The court seems to me to be ill-equipped to make a decision of this nature. The matter in my view should be referred to the respondent for consideration in the light of this judgment and the judgments of my brothers, O’Linn AJA and Chomba AJA. The respondent will have at his or her disposal the knowledge and skills of the experts referred to in Mr Beytell’s affidavit. The appellant too submitted affidavits of experts who engaged Mr Beytell and his experts in a spirited debate regarding the question whether or not the importation of mountain reedbuck would have had deleterious effects on the ecosystems of Namibia and who generally took issue with their views on biological diversity. I venture to think that some of these experts will offer their own perspectives on matters within the field of their expertise that may fall to be decided during the consideration of the application, thereby assisting the respondent to make a fair, reasonable and informed decision. With greatest respect to my learned brother who holds the contrary view, I would like to adopt the following dictum from the decision of the South African Supreme Court of Appeal in Minister of Environmental Affairs and Tourism & Others v Phambili Fisheries (Pty) Ltd supra, at 431G para 50, where it was stated: Judicial deference does not imply judicial timidity or an unreadiness to perform the judicial function. It simply manifests the recognition that the law itself places certain administrative actions in the hands of the Executive, not the Judiciary.

What is required of the respondent is essentially for the respondent to have regard to a broad band of considerations and the interests not only of the appellant but also of those that may be affected by the policy. In a nutshell, the respondent is enjoined by the Constitution and the law to act fairly and reasonably. In the result, I concur with paras  1, 2 and 4 of the order proposed by my brother, O’Linn AJA. In respect of para 3 of his order, I would make the following order instead:

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The matter is referred to the respondent, the Minister of Environment and Tourism, to consider and decide after complying with the principles of natural justice including the audi alteram partem rule.

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Notes 1. Appellant had applied to respondent for a permit to import mountain reedbuck. An official in respondent’s office refused to issue the permit. The High Court dismissed appellant’s application to review the decision. Appellant appealed from that decision. 2. Appellant had cited the minister in his official capacity, but it appeared from the papers that the minister had taken no part in the making of the decision. There was some confusion whether the decision by the official was based on a cabinet decision or it was his own decision. It was contended by the official that in terms of s 49(1) of the Nature Conservation Ordinance 4 of 1975, read with s 12 of the Nature Conservation Amendment Act No 5 of 1996, applicants were not entitled to permits as of right and that the ministry was not obliged to furnish reasons for its decisions. 3. An important question that the Supreme Court was called upon to determine, as it did in case [49], was whether the Court should order the minister to grant the permit or remit the matter to the minister to reconsider and decide, if the Supreme Court confirmed the High Court’s decision to set aside the decision of the minister. 4. The Court in this case [50] was divided as to whether to substitute their decision for that of the administrative body or refer it to the administrative body to decide afresh. 5. The Court (Shivute CJ and Chomba AJA concurring; O’Linn AJA dissenting) found that there was no indication that the minister had abrogated his power nor that there had been a dereliction of duty on the part of the minister. The minister had not seen the application. An official at the minister’s ministry had made the decision to refuse the permit, but s 49(1) (as amended) vested the minister with the power to grant or refuse permits. 6. The majority of the Supreme Court were of the view that if the Court took the decision to grant the permit, that would deprive the minister of his power. The proper administrative body or official should be afforded the opportunity to consider and decide on the application, taking into account policy guidelines, the law and the merits of appellant’s application. This was particularly

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imperative in the light of the consideration that the repository of power, the minister, had not deposed to an affidavit setting out his own position vis-àvis the stance taken by the official. Although obviously an employee in the respondent’s ministry, the official seemingly did not have the authority to oppose the application before the High Court on behalf of the minister and to depose to the answering affidavit on the minister’s behalf. 7. Accordingly, the Court propounded the principle that, as a rule, when setting aside a decision of an administrative authority, a review court would not substitute its own decision for that of the administrative body or official unless exceptional circumstances existed. 8. The Court held further that the subject-matter of the administrative decision in this case was relatively technical and therefore consideration of the application for a permit was best left to the administrative official with the power and proficiency to deal with the applications of this nature. The Court concluded that it was ill-equipped to make a decision of that nature. 9. The Supreme Court upheld the appeal with costs. The Court (Shivute CJ, Chomba AJA concurring; O’Linn AJA dissenting) ordered that the matter be referred to the minister for him to reconsider and decide after complying with the principles of natural justice, including audi alteram partem.

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[51] President of the Republic of Namibia & Others v Anhui Foreign Economic Construction Group Corporation Ltd & Others 2017 (2) NR 340 (SC) Smuts JA (Shivute CJ and Mainga JA concurring): … [40] It would follow, in my view, that it had been established that the award of the tender was conveyed by the Permanent Secretary on behalf of the ministry as implementer of state capital construction projects. [41] It is common cause that the provisions of the Tender Board Act45 had not 45 Tender Board of Namibia Act, 1996 (Act No 16 of 1996).

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been followed and would need to be followed for valid procurement in capital construction projects involving the government. It is also clear from the affidavit by the Minister of Finance that treasury approval had also not been granted under s 17 of the State Finance Act.46 The failure to follow the procedures set out in the Tender Board Act is fatal to the validity of an award made by the ministry or its Permanent Secretary. For this reason alone, the award set out in the Permanent Secretary’s letter of 3 December 2015, viewed in context with his letter of the same date to the NAC, is unlawful and invalid and should be set aside. The order of the High Court would need to be corrected to reflect that. The counter-application was opposed. It should have been granted with costs. [42] I agree with Mr Namandje that until it is set aside by a court in review proceedings, it may have consequences and that the appellants were entitled to seek its review and setting it aside as a counter-application. (Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1; [2004] ZASCA 48), para 26; and MEC for Health, Eastern Cape, & Another v Kirland Investments (Pty) Ltd t/a Eye and Laser Institute 2014 (3) SA 219 (SCA), paras 20–21.) [43] There are compelling reasons to do so in the interests of certainty. As was lucidly explained in Kirland Investments with reference to Oudekraal:

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[20] … In Oudekraal Estates (Pty) Ltd v City of Cape Town & Others Howie P and Nugent JA set out the position thus: For those reasons it is clear, in our view, that the Administrator’s permission was unlawful and invalid at the outset. Whether he thereafter also exceeded his powers in granting extensions for the lodgement of the general plan thus takes the matter no further. But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully. Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s approval and all its consequences merely because it believed that they were invalid provided that its belief was correct? In our view, it was not. Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative acts could

46 Act No 31 of 1991.

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be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.

[21] There is no suggestion in the above passage that the obviousness of the unlawfulness is a factor of any relevance. Indeed, Hoexter47 understands Oudekraal to mean – and she is, in my view, correct – that even an obvious illegality cannot simply be ignored. One can easily understand why this is so. It would be intolerable and lead to great uncertainty if an administrator could simply ignore a decision he or she had taken because he or she took the subsequent view that the decision was invalid, whether rightly or wrongly, whether for noble or ignoble reasons. The detriment that would be caused to the person in whose favour the initial decision had been granted is obvious. Baxter48 says the following: Indeed, effective daily administration is inconceivable without the continuous exercise and re-exercise of statutory powers and the reversal of decisions previously made. On the other hand, where the interests of private individuals are affected we are entitled to rely upon decisions of public authorities and intolerable uncertainty would result if these could be reversed at any moment. Thus when an administrative official has made a decision which bears directly upon an individual’s interests, it is said that the decision-maker has discharged his office or is functus officio.

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[44] Neither the Permanent Secretary nor the ministry had any authority to make the award. As long as the award as set out in his letter of 3 December 2015 has not been set aside on review it exists in fact and may have legal consequences. It should thus be set aside as a nullity. The minister’s instruction [45] Even though Mr Namandje concedes that the minister’s instruction to the [Namibia  Airports Company (NAC) Limited] at the behest of the President was invalid, he nonetheless contends that the High Court should not have in its discretion set it aside for the reasons referred to by him. Although the illegality of the instruction is thus not in dispute, it remains an issue to be considered in view of Mr Namandje’s submission that it should not have been set aside by the High Court.

47 C Hoexter (2007). Administrative Law in South Africa. Juta & Co. 48 Op cit.

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[46] The power to make an order under s  9 invoked by the minister (and the President in his instruction to him) is to be understood and considered within the context of the Act. [47] The Act established the NAC as a public company with share capital under s 2 of the Act. The sole shareholder is the State. The NAC’s objects, set out in s 4 of the Act, include the development and maintenance of the aerodromes listed in the schedule to the Act. These include the airport. The Act also confers upon the NAC the power to enter into contracts for the performance of any act or for the provision of any service on behalf of or in favour of the NAC, consistent with its objects. The Act also transferred the aerodromes in the schedule to the NAC. (Section 14.) A contract to expand and upgrade the airport would thus fall squarely within the statutory mandate of the NAC.

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[48] Quite apart from the wide powers the government would be able to exercise in respect of the NAC by virtue of the State being its sole shareholder, the Act accords certain powers to the minister to give directions to the NAC in s 9. The portions of that section relevant for present purposes are embodied in ss (1), (2) and (5). They provide: (1) The Minister may, if he or she considers it necessary for, or expedient to, the national security or for the discharge of an international obligation of the State, after consultation with the Company, by notice in writing to the Company, issue a direction to the Company to: (a) perform any function conferred or imposed on the Company by or under this Act, or perform such function subject to such limitations or conditions, as the case may be; or (b) discontinue any relevant activity, specified in the notice. (2) The Company shall take all the necessary steps to give effect to a direction under subsection (1). … (5) Before any direction issued under subsection (1), excluding a direction contemplated in subsection (4), comes into operation, the Minister shall publish a notice in the Gazette, which notice shall: (a) confirm that such a direction has been issued; (b) summarise the main provisions of such direction;

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(c) specify the place, date and time where and when the text of such direction will be available for inspection by any member of the public; and (d) state the date when such direction shall come into operation.

[49] As was made clear by the High Court, the starting point in any enquiry relating to the exercise of public power is that the rule of law and the principle of legality require that public officials and institutions may only act in accordance with powers conferred upon them by law. (Rally for Democracy and Progress & Others v Electoral Commission of Namibia & Others 2010 (2) NR 487 (SC), para 23, also cited by the High Court in Anhui Foreign Economic Construction (Group) Corp Ltd v Minister of Works and Transport & Others 2016 (4) NR 1087 (HC), para 34.) As was unequivocally stated by this court in the Rally for Democracy and Progress matter, the Constitution requires that the exercise of any public power is to be authorised by law – either by the Constitution itself or by any other law. (In para 23.)

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[50] This fundamental principle thus requires that the minister would need to act within the four corners of the powers conferred upon him under s 9 for the valid invocation and exercise of those powers. Articles 40 and 32 of the Constitution in respect of the powers of the cabinet and the President respectively to direct and supervise parastatals and for the President to do all acts necessary, expedient, reasonable and incidental to the discharge of executive functions of government, referred to by Mr Namandje, would need to be exercised subject to the terms of the Constitution and the law – in this instance, s 9 of the Act because that section had been invoked. [51] Section 9 delineates the circumstances in which directives are to be given by the minister to the NAC under that section. The minister would need to satisfy the jurisdictional facts posited by ss  (1) and (5) for a valid directive under s  9. Subsection (1) requires that before issuing a directive, the minister would need to consider the directive necessary for or expedient to national security or for the discharge of an international obligation. The minister made no affidavit to state that he considered the directive on this basis. Nor do these considerations remotely emerge from the sparse facts put up by the appellants. Nor is there any evidence of a consultation with the NAC. [52] Equally fatal to the validity of the directive, it was common cause that there was non-compliance with the dictates of ss (5), also required for the valid issuing

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of a directive. There was no notice in the Gazette setting out what is required by the subsection. [53] Not only was there thus comprehensive non-compliance with s  9, but there was furthermore no written notice by the minister himself put before court. There was only the instruction to make a notice set out in the President’s media release and confirmation of those terms by the Permanent Secretary in correspondence to the NAC. There was no text of any notice in writing which the minister himself was to have issued to the NAC. This is a yet further failure to comply with s 9.

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[54] The directive was thus invalid by reason of not meeting the statutory requirements of s 9 in these manifold respects. It is not necessary for the purpose of this judgment to express a view concerning the further basis for invalidity expressed by the High Court with reference to the President’s role. I expressly decline to do so as that aspect was not argued before us and is not necessary to determine, given the invalidity of the directive by reason of the comprehensive non-compliance with the requirements of s 9. [55] Once the minister has invoked the power to issue a directive under s 9, it is incumbent upon him to do so in compliance with the requirements of that section. That is what is required by the rule of law and the principle of legality enshrined in art  1 of the Constitution and upon which our constitutional democracy is based. The general powers of supervision of parastatals vested in the cabinet in art 40(1) and the President’s powers under art 32 cannot save this invalid exercise of statutory powers. Once that statutory power is invoked, the repository of the power – in this instance the minister – is required to act within the four corners of the statute, namely s  9, for the valid exercise of the powers in question. The same principle would for instance apply if the government were to invoke its wide powers under the Companies Act 28 of 2004 as the sole shareholder of the NAC. [56] This is the context of the invalidity of the directive to be considered in the light of Mr Namandje’s submission that this court should decline to set it aside once the award itself is set aside as, so he submits, it would have little practical effect. In advancing this argument, he relied heavily upon Minister of Defence and Military Veterans v Motau & Others (2014 (5) SA 69 (CC) (2014 (8) BCLR 930; [2014] ZACC 18)); and Masetlha v President of the Republic of South Africa & Another (2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20)). Both of these cases are entirely distinguishable from the facts and legal consideration raised in this appeal. The

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former concerned a challenge by two directors of a parastatal (Armscor) to their removal by the Minister of Defence and Veterans Affairs in South Africa. That minister had exercised a power to terminate the service of directors ‘on good cause shown’. The court held that there was justification to single out the two directors for failures on the part of that parastatal to complete procurement projects timeously and for their failure to enter into service level agreements with the Department of Defence. The court also held that the minister had acted rationally. But the minister had not followed the Companies Act in procedurally terminating their services and thus had acted unlawfully. Given the exceptional circumstances, the court found that it would not be just and equitable to re-instate the two directors and that it was sufficient to declare that the minister’s conduct was unlawful and direct her attention to the proper procedure to be followed. [57] The Masetlha case concerned a presidential decision to remove the head of the National Intelligence Agency. The court found that there was a rational basis for the President to remove the functionary but that it constituted a breach of contract. In the light of the special relationship of trust presupposed by the position, the court however declined to order his reinstatement.

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[58] Both of these cases concerned the termination of services of directors or a functionary by members of the executive branch of government and concerned exceptional circumstances where reinstatement would not be appropriate in the exercise of the court’s discretion even though the exercise of the public power leading to the removal or termination was flawed or unlawful. That position is a far cry from the present circumstances. [59] The minister had purported to issue a directive to the NAC under s  9 to discontinue ‘all activities relating to the upgrading’ of the airport. As is already shown, there was a comprehensive failure on the part of the minister to have acted within the required ambit of the section. Even though no notice in writing by the minister was placed before court – the absence of which may give rise to invalidity – its proposed terms were as set out in the President’s instruction. Apart from not meeting the requirements set by s 9 for the validity of the notice, its extremely wide terms – directed at the NAC’s discontinuing all activities relating to the upgrade of the airport – are in conflict with the NAC’s statutory mandate set out in its objects embodied in s 4 of the Act read with its ownership of the airport as brought about by s 14 read with the Act’s schedule.

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[60] Not only is the directive defective in its manifold respects, but the failure to set it aside would frustrate the provisions of the Act with regard to the statutory functions accorded by the legislature to the NAC. If government would want to take action to prevent an upgrade to the extent proposed and to the recipient recommended by the NAC, it would have other remedies at its disposal to prevent that and address unspecified irregularities – either in its capacity as sole shareholder of the NAC or to decline to fund the works in question. [61] Under the common law, once invalid administrative action is established in review proceedings, the default remedy is to set aside the impugned act and remit it to the decision makers for a fresh decision. Only in exceptional circumstances will a court substitute its own decision for that of the decision maker, as was succinctly set out by the Chief Justice in Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment and Tourism (2010 (1) NR 1 (SC), at 31G–33C). This principle is reinforced by the separation of powers upon which our Constitution is based. (See Masamba v Chairperson, Western Cape Regional Committee, Immigration Selection Board, & Others 2001 (12) BCLR 1239 (C), at 1259D–E approved by the Chief Justice in Waterberg supra, at 31H. See also Oudekraal supra, paras  26–27.) Furthermore, as a matter of constitutional principle, the exercise of public power in conflict with the law and thus invalid should be corrected or reversed in accordance with the principles of legality and the rule of law (Allpay Consolidated Investment Holdings (Pty) Ltd & Others v Chief Executive Officer, South African Social Security Agency & Others 2014 (4) SA 179 (CC) (2014 (6) BCLR 641; [2014] ZACC 12, para 42), as had been argued by Mr Namandje in respect of the award of the project in the Permanent Secretary’s letter. [62] As was stated by Moseneke DCJ in Steenkamp NO v Provincial Tender Board, Eastern Cape (2007 (3) SA 121 (CC) (2007 (3) BCLR 300; [2006] ZACC 16, para 29)):It goes without saying that every improper performance of an administrative function would implicate the Constitution and entitle the aggrieved party to appropriate relief. In each case the remedy must fit the injury. The remedy must be fair to those affected by it and yet vindicate effectively the right violated. It must be just and equitable in the light of the facts, the implicated constitutional principles, if any, and the controlling law. It is nonetheless appropriate to note that ordinarily a breach of administrative justice attracts public-law remedies and not private-law remedies. The purpose of a public-law remedy is to pre-empt or correct or reverse an

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improper administrative function. In some instances the remedy takes the form of an order to make or not to make a particular decision or an order declaring rights or an injunction to furnish reasons for an adverse decision. Ultimately the purpose of a public-law remedy is to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the rule of law.

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[63] This is not a case where the default position of setting aside an invalid act should be deviated from in the exercise of this court’s discretion as may occur where the public interest is better served by refusing a remedy. For instance, in Chairperson, Standing Tender Committee & Others v JFE Sapela Electronics (Pty) Ltd & Others (2008 (2) SA 638 (SCA) ([2005] 4 All SA 487), paras 25–29) where unsuccessful tenderers established unlawfulness and procedural unfairness the court, however, declined to set aside the unlawful administrative act on the grounds of pragmatism and finality. This was because much of the work required by the tender had been completed when the matter came before court. This case was described in a subsequent decision of the same court as exceptional (Eskom Holdings Ltd & Another v New Reclamation Group (Pty) Ltd 2009 (4) SA 628 (SCA), para 16), given the near completion of the works and the impracticality of starting the tender process afresh for the remaining work. (In para 2.) [64] The South African Constitutional Court in Bengwenyama Minerals (Pty) Ltd & Others v Genorah Resources (Pty) Ltd & Others (2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26), paras  84–87) overruled the refusal (of inferior courts) to set aside an unlawfully granted prospecting right. That court held that, in exercising discretion, a court should ‘emphasise the fundamental constitutional importance of the principle of legality, which requires invalid administrative action to be declared unlawful’. (In para 84.) The court stressed that the circumstances of each case must be examined in order to determine whether factual certainty requires some amelioration of legality and, if so, to what extent. The approach taken will depend on the kind of challenge presented – direct or collateral; the interests involved, and the extent or materiality of the breach of constitutional right to just administrative action in each particular case. (In para 85.)

[65] Even though these judicial pronouncements were made within the context of the remedies embodied in the South African Promotion of Administrative Justice Act (Act 3 of 2000), the approach and guidelines articulated accord with Namibian

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constitutional principles and the common law. (For a helpful article discussing these principles and cases, see Freund & Price ‘On the Legal Effects of Unlawful Administrative Action’ (2017), vol 134, part 1 SALJ, 184 et seq.49)

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[66] Mr Namandje was unable to refer to considerations which would impel the court in its discretion to decline to set aside the invalid directive of the minister. The setting aside of the award set out in the letter of 3 December 2015 does not in my view assist him. In the President’s press release it is made clear that a process directed at upgrading the airport could go ahead afresh under the auspices of the ministry. An invalid directive requiring that the NAC discontinue all activities relating to the airport upgrade would have considerable practical effect. It would mean that the NAC is invalidly prevented from performing its statutory mandate in respect of an airport which vests in it. Quite how an upgrade can continue in the face of this directive – by requiring the NAC to discontinue all activities relating to the upgrade in the face of its ownership of the airport and its statutory mandate – is not explained. [67] Mr Namandje had rightly contended with regard to the award that it should be set aside as it may have consequences if it were to stand. Similar considerations arise and apply with regard to the directive. The interests involved in the upgrade of the airport require that, as do the principle of legality and the rule of law. The breaches of the statutory requirements of s 9 are manifestly material. This is not a case where there is a minor technical imperfection causing invalidity. There is failure to comply with almost every jurisdictional fact and statutory requirement contained in s  9. These considerations are destructive of Mr Namandje’s contention. [68] The defective directive was furthermore made within the context of procurement by the state and a state-owned enterprise involving a massive amount of public funds. The primacy of the public interest in procurement, by means of public funds particularly on the scale envisaged in the upgrade of the airport, requires that statutory provisions should be scrupulously and transparently complied with (see Allpay supra, para 33) and where there have been breaches, those blemishes should be corrected. If the NAC’s procurement process has been mired in irregularity as would appear to be indicated in the President’s media 49 D Freund and A Price (2017). ‘On the Legal Effects of Unlawful Administrative Action’. SALJ, vol 134, part 1, 184 et seq.)

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release and implied by the directive, then the government would have powers as sole shareholder to address and remedy those issues. [69] There is also the compelling public interest in vindicating the Constitution and the rule of law by setting aside invalid administrative action. No coherent reasons have been advanced for the amelioration of the rule of law in this case. On the contrary, considerations of factual certainty also impel the setting aside of the directive. Until the directive is set aside, the NAC is obliged under s 9(2) to adhere to it. Nor was it explained how severance could conceivably be applied in the face of the statutory breaches in question. Nor was it stated what parts of the directive should be severed, especially in the absence of any reasons or explanation by the minister for the directive. [70] It follows that the High Court was both correct in finding that the directive was invalid and in setting it aside. The appeal against that order must accordingly fail. Costs [71] It follows that the appellants should have succeeded with their counterapplication in the High Court. This measure of success in that Court should be reflected in the cost order of that Court. It would seem from the judgment that most of the argument was directed at the main application.

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[72] The appeal has succeeded in part by setting aside the refusal of the counterapplication but failing in respect of the appeal against the setting aside of the minister’s directive. The costs of the appeal should reflect that. Conclusion and order [73] The appeal against the setting aside of the minister’s directive fails and succeeds in respect of the counter-application which should have been granted. [74] The following order is made: 1. The appeal against the setting aside of the minister’s directive is dismissed. 2. The appeal against the refusal of the counter-application succeeds. 3. The order of the High Court is set aside and corrected to read: (a) The instruction by the Minister of Works and Transport to the Namibia Airports Company to discontinue all activities relating to the upgrading and expansion of the Hosea Kutako International Airport, during

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December 2015 and communicated to the applicant (Anhui) on 5 January 2016, purportedly given under s  9(1)(b) of the Airports Company Act, 199850 is declared invalid and set aside; (b) The counter-application is granted with costs; (c) The award by the Permanent Secretary of the Ministry of Works and Transport set out in his letter of 3 December 2015 of the tender for the upgrading and expansion of the airport is declared unlawful and null and void and set aside; (d) The first, second and fourth respondents are ordered to pay the applicant’s (Anhui’s) costs of the main application, jointly and severally; (e) The costs referred to above include the costs of one instructing and one instructed counsel; (f) For the purpose of the taxing master, the time taken in the preparation and presentation of argument is allocated as three-quarters of the time being spent in arguing the main application and one-quarter in respect of the counter-application. 4. No order is made in respect of the costs of the appeal.

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Notes 1. First respondent was awarded a tender by the Namibia Airports Company (NAC), of which the government was the sole shareholder, without following the prescribed government tender procedure and without treasury approval. First appellant, the President of the Republic of Namibia, purporting to exercise his powers in terms of art  32 of the Constitution, instructed third appellant, the Minister of Works and Transport, to invoke his powers in terms of s  9 of the Airports Company Act 25 of 1998 to direct the NAC to discontinue all activities relating to the project, which the minister did. The Court a quo set aside the minister’s decision and declined the government’s counter-application to set aside the award. 2. The Supreme Court held that the provisions of the Tender Board of Namibia Act 16 of 1996 had not been followed and would need to be followed for the procurement of capital construction projects involving the government to be valid. Treasury approval had also not been granted under s  17 of the State 50 Act No 25 of 1998.

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Finance Act 31 of 1991. The failure to follow the procedures set out in the Tender Board Act was fatal to the validity of an award made by the ministry or its permanent secretary. For this reason alone, the award was unlawful and invalid and should be set aside. Until it was set aside by a court in review proceedings, it might have consequences. It should thus be set aside as a nullity. 3. In the instant case [51], relying on its earlier decisions in case [49] and case [50], the Supreme Court considered circumstances in which, after setting aside an administrative decision, a court would itself take the administrative action in question or refer the matter back to that administrative body or official concerned to reconsider it. See also Part A. Text under para 6.2.1 of the present chapter, where I have set out the orders, any one of which a court may grant after setting aside the impugned administrative action.

6.2.2 Declaration

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A. Text The remedy of declaration plays an important role in judicial review. An applicant may seek the remedy in conjunction with the relief of reviewing and setting aside an administrative action. The Court may grant the remedy to challenge the lawfulness and validity of an administrative action.51 Thus, the Court may grant a declaratory order as to the unlawfulness and invalidity of the impugned administrative action. Furthermore, declaration may be granted, ‘notwithstanding that such person (ie the aggrieved person) cannot claim any relief consequential upon the determination’.52 It follows that the Court may make a declaratory order regardless of whether consequential relief is, or could be, claimed.53 On the power of the High Court to grant declaration, the Court stated thus in Jacob Alexander v the Minister of Home Affairs & Others: [8] The power of this High Court to grant declaratory orders flows from s 16 of the High Court Act, 1990 (Act No 16 of 1990) which provides that –

51 See RJF Gordon (1985). Judicial Review: Law and Procedure. London: Sweet & Maxwell, paras 3–16. 52 Section 16 of the High Court Act, 1990 (Act No 16 of 1990). 53 Gordon (1985: paras 3–16).

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… (d) (the High Court) in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination. [Emphasis added] [9] Interpreting and applying a similar provision, which contains identical words as the Namibian provision quoted above, in s  19(1)(a) of South Africa’s Supreme Court Act, 1959 (Act No 59 of 1959) in Government of the Self-Governing Territory of Kwazulu v Mahlangu 1994 (1) SA 626 (T), Eloff, JP stated at 634B, ‘The important element in this section is that the power of the Court is limited to a question concerning a right. The nature and scope of the right might be inquired into, but in the absence of proof of such a right, or at least a contention that there is such a right, the Court has no jurisdiction.’ [Emphasis added] The ‘flip side’ of this view, which I respectfully accept, is that the Court has jurisdiction if there is proof of a right or at least a contention that there is such a right.54 [Emphasis added]

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I discussed in section 6.2 above that the remedies of declaration and prohibitory interdict may be sought together, and so may the remedies of declaration and setting aside of administration action be sought together in the same motion proceedings. As to whether a court can still grant a declaratory order when setting aside or quashing the administrative action in question, the House of Lords in Pyx Granite Company v Minister of Housing, per Lord Goddard, stated: I know of no authority for saying that, if an order or decision can be attacked by certiorari, the court is debarred from granting a declaration in an appropriate case. The remedies are not mutually exclusive though, no doubt, there are some orders, notably convictions before justices, where the only appropriate remedy is certiorari.55

In short, where an administrative body or official has acted unfairly and unreasonably or has acted in a way contrary to natural justice, courts can intervene by declaration.

54 Jacob Alexander v The Minister of Home Affairs & Others Case No A155/2009, paras 8 and 9; Seneviratne v The President of the Republic of Namibia (A 49/2013) [2015] NAHCMD 14 (5 February 2015. 55 [1959] 3 All ER 1 (HL), at 8G. Certiorari is the equivalent in English law of setting aside or quashing administrative action in Namibian law.

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The scope of declaratory relief is wide in its focus and application. ‘I know of no limit to the power of the Court,’ so said Lord Denning MR, ‘to grant a declaration except such limit as it may in its discretion impose upon itself.’56 Nevertheless, it is trite that declaration is a discretionary order which ought to be granted with care and caution and judicially, having regard to all the circumstances of the case. The Court will not grant the remedy where, for instance, the relief claimed would be unlawful or inequitable for the Court to grant.57 One last important point: in Ex parte Nell58 the Appellate Division held that for granting a declaration of rights in terms of s 19(1)(c) of South Africa’s Supreme Court Act, 59 which is the equivalent of s 16(d) of Namibia’s High Court Act,60 an existing dispute is not a prerequisite to the jurisdiction under the section. However, there must be interested persons in order for the declaratory order to be binding. B. Cases

[52] Skeleton Coast Safaris v Namibia Tender Board & Others 1993 NR 288 (HC) Hannah J (Frank J concurring):

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… There are, in my view, several obstacles in the way of Mr Hodes’ submission, the first of which is that it is based on misconstruction of the legislation governing the first respondent. The Tender Board Regulations were made pursuant to powers vested in the then Administrator by s 26A of the Finance and Audit Ordinance, 1926,61 a section inserted in that Ordinance by Ord 20 of 1970.62 Section 26A provides: 56 Barnard & Others v National Dock Labour Board & Others [1953] 2 QB 18 (CA), at 41. 57 Halsbury’s Laws of England (Vol 22) (Third edition, 1979). Lord Simons (ed), para 1611, pp 749–750. 58 1963 (1) SA 754 (A). 59 Act No 59 of 1959. 60 1990 (Act No 16 of 1990). 61 Ordinance No 1 of 1926. 62 Finance and Audit Amendment Ordinance, 1970 (Ordinance 20 of 1970).

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26A(1) The Administrator may make regulations providing for the establishment, constitution, functions, powers and duties of a board (to be known as the South West Africa Tender Board) charged with the procurement of supplies and services for and on behalf of the Administration and the disposal of stores of the Administration, governing the procedure to be observed by such board in the exercise of its duties, providing that supplies and services shall not be procured for or on behalf of the Administration and stores of the Administration shall not be disposed of except through such board or in such other manner as may be prescribed in or determined in accordance with such regulations, and generally providing for incidental matters. (2) Notwithstanding anything to the contrary in any other law contained, any regulation made in terms of ss (1) may, in addition to any other remedy prescribed therein, provide for the imposition by such board of a monetary penalty, calculated on such basis or bases as may be prescribed therein, on any person to whom such board has awarded a contract on the strength of information furnished by such person which subsequent to the award is shown to have been incorrect information, and may prescribe the manner in which any such penalty may be recovered. (3) Subject to the provisions of the regulations made in terms of this section, the South West Africa Tender Board may procure supplies and services for and on behalf of and may dispose of stores of branches of State Departments of the Republic of South Africa serving in the Territory, save the Departments of Defence and Police and the Railways Administration.

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The general powers of the first respondent are to be found in reg 3(1), the material part of which reads: 3. (1) These regulations govern the procurement of all supplies and services as well as the disposal of stores for and on behalf of the Administration of South West Africa and the Board may also procure supplies and services for and on behalf of and dispose of stores of branches of State Departments of the Republic of South Africa serving in the Territory, save the Departments of Defence and Police and of the South African Railways Administration and may for that purpose: (a) On behalf of the State, conclude an agreement with a person, firm or company within or outside the Republic and/or South West Africa for the furnishing of supplies and services to the State or the disposal of State stores …

Mr Hodes submitted that s  26A should be read as meaning that the regulations must provide for the establishment of a tender board (charged with procuring

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services to be performed for or on behalf of the State) and that the operation of safaris within the Skeleton Coast National Park must be regarded as services performed for and on behalf of the State. It must follow, so counsel submitted, that the first respondent was not only the body but the only body empowered to grant the concession in question. The first difficulty I have with this submission is that it is confined to the enabling power set out in s 26A whereas I should have thought the proper place to look to ascertain the powers of the first respondent would be the regulations themselves. But putting that aside for one moment, I am of the opinion that the construction Mr Hodes seeks to place on s 26A is incorrect. While I agree that a quick or superficial reading of the section may give the impression that the words ‘for and on behalf of ’ govern ‘supplies and services’, a more considered approach, to my mind, makes it abundantly clear that these words govern the word ‘procurement’. The section empowers the Administrator to make regulations establishing a tender board charged with the duty to procure, for or on behalf of the State, supplies and services. This, in my view, is made even clearer when ss (3) is considered, where reference is made to the tender board procuring supplies and services for and on behalf of State Departments of the Republic of South Africa, save the Departments of Defence and Police and of the Railways Administration. Quite apart from the foregoing, it seems to me wrong to focus attention on the enabling legislation at the expense of the regulations themselves. The powers of the first respondent are to be found in the regulations and reg 3(1) makes it clear that the first respondent is empowered, on behalf of the State, to conclude agreements for the furnishing of supplies and services to the State, not for and on behalf of the State. In my view, it would be curious indeed if the regulations were to provide otherwise because there must be many services which the State might wish to have performed on its behalf, services such as mining and fishing concessions or even, for example, the operation of the State Prison Service. Such matters would hardly be suitable for determination by a board such as the first respondent. In my judgment, therefore, the first respondent was not empowered by reg 3(1) to decide the grant of a concession to operate safaris in the Skeleton Coast National Park. That concession is not a service to the State: it is a service to be performed on behalf of the State, which, through the Cabinet, is vested with the control, management and maintenance of the Park and with the exclusive power to carry on business for the convenience of visitors or to supply services for the convenience of visitors. That is not to say that the first respondent has no role to play in connection with game parks. Mr Gauntlett conceded, correctly in my view,

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that if it were to be decided that roads, for example, were to be built in a game park and that private contractors were to be used, then the award of the contract would have to be determined by the first respondent. That would be a service to the State whereas, as I have been at pains to point out, we are concerned in this case with a service or services on behalf of the State. It is clear that in enacting the Nature Conservation Ordinance 4 of 1975 the legislature was concerned that the control of game parks be placed in the hands of high authority. It determined in s 17 that it be placed in the hands of the Executive Committee, now the Cabinet. It set out in s  17(2) the powers which the Cabinet can exercise in relation to game parks and it singled out which of those powers the Cabinet can authorise other persons to carry on subject to conditions which the Cabinet may impose. No evidence has been placed before this Court that the Cabinet became involved at all in the grant of the concession to the third respondent, nor has any such suggestion been made. Indeed, the parties accept that it was not. In these circumstances the only conclusion that can be arrived at is that the first respondent purported to exercise a power which it did not have. It acted ultra vires. ….

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Notes 1. In this case [52], the main issue was about the legality of a decision by first respondent (the Namibia Tender Board). The Namibia Tender Board had accepted third respondent’s tender for a concession to operate safaris in a national park. Having regard to provisions of s 17(2) of the Nature Conservation Ordinance 4 of 1975 and reg 3(1) of the Tender Board Regulations promulgated under s 26A of the Finance and Audit Ordinance 1 of 1926, the Tender Board had no power to accept or award the tender. The legislature had vested the power to award tenders in the Cabinet. 2. Aggrieved by the Tender Board’s decision, applicant instituted review proceedings to challenge that decision. The High Court did not find any evidence that the Cabinet was involved at all in the granting of the concession to third respondent. The Court remarked that, in the circumstances, the only conclusion that the Court could arrive at was that first respondent had purported to exercise a power which it did not have: it had thus acted ultra vires. 3. In this case [52] the Court held that where an administrative body purported to exercise a power it did not have in terms of the applicable legislation, it acted

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ultra vires; and in that event, the Court will declare the impugned decision invalid.

[53] Sommers v City of Edmonton and Scott 10 AR 48 (Alberta Supreme Court) (1978) Miller J: …

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The  …  question to consider is whether the remedy of a declaratory judgment sought by the plaintiff is a proper remedy and that it is open to the court to grant in this case. As part of its argument, the city alleges that, if the plaintiff felt the City or the appeals tribunals had erred, his proper remedy was by way of certiorari (ie setting aside the decision) and that this procedure must have been commenced, as set out in rule 742 of the Rules of Court, within 6 months after the judgment, order, warrant, or inquiry to which it relates. Having failed to pursue the proper remedy, the court concluded, Plaintiff seeks to do indirectly, by declaratory judgment, what he cannot now do directly by certiorari, due to the lapse of time. The power of the courts to grant a declaratory judgment is given by the Judicature Act, RSA 1970, c 193, in section 32(p), which says: No action or proceeding is open to objection on the ground that a judgment or order sought is declaratory only, and the courts may make binding declarations of right whether or not any consequential relief is or could be claimed.

The question of when a court should use the remedy of declaratory judgment was considered in Klymchuk v Cowan (1964) 45 DLR (2d) 587, a decision of the Court of Queen’s Bench of Manitoba, when Smith, J, commenting on the equivalent Manitoba provision, said at page 589: This subsection is exactly the same as the English 0.25, R5, which was made in 1883. The language used obviously makes possible a very wide application of the declaration as a judicial remedy. It is a remedy within the discretion of the court. In England the rule did not, at first, lead to any great extension of the types of cases in which a declaration might be obtained, and the courts have generally declined to give a declaratory judgment where another established form of relief affords the

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full remedies available. Nevertheless in spite of repeated judicial warnings that the court’s discretion should be exercised with caution, there has been in practice an increasing use of the declaratory judgment.

As to whether the court can still use a declaratory judgment when certiorari could or should have been used I would refer to the case of Pyx Granite Co Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1 (HL), at 8, a decision of the House of Lords where Lord Goddard stated: I know of no authority for saying that, if an order or decision can be attacked by certiorari, the court is debarred from granting a declaration in an appropriate case. The remedies are not mutually exclusive though, no doubt, there are some orders, notably convictions before justices, where the only appropriate remedy is certiorari.

In Cooper v Wilson [1937] 2 KB 309, Lord Justice Greer said at 321: … nor do I think that the power which he undoubtedly possessed of obtaining a writ of certiorari to quash the order for his dismissal prevents his application to the court for a declaration as to the invalidity of the order of dismissal.

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In Barnard v National Dock Labour Board [1953] 2 QB 18, the plaintiffs sued for a declaration that they had been wrongfully dismissed. The plaintiffs did not know of the illegality until it was too late to apply for a certiorari. The Court of Appeal granted the declaration. In Alberta the matter was considered in the case of Driver Salesmen v Board of Industrial Relations (1967) 61 WWR (NS) 484, in a judgment by Riley, J, where he stated at 489: The prevailing view is that it ought not to make any difference to the courts, through which door the Plaintiff enters. A substantial amount of judicial support is found for the proposition that an action for a declaration is prima facie, an appropriate alternative remedy to certiorari to quash for want of jurisdiction;

and at 492 another quotation from the same case by Riley, J: The following Alberta cases are additional support for the proposition that a declaration is an effective alternative remedy to certiorari in this province: Kettenbach Farms Ltd v Hinkey, [1937] 3 WWR 703; McKerracher v Manufacturers Life Insurance Co and Board of Review, [1941] 1 WWR 509; Westeel Rosco v Board of Industrial Relations (1967) 59 WWR 428.

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In view of these decisions, I am of the opinion that this is indeed a case where the court should exercise its supervisory jurisdiction and find that the plaintiff is not estopped from seeking a possible remedy by way of a declaratory judgment even though he could have used the prerogative writ of certiorari and is now out of time to use the same and further that I should exercise my discretion by way of a declaratory judgment. …

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Haddad JA: I deem it convenient at this point to deal with the City’s submission, associated with the second ground of appeal, whereby it attacks the form of this action on the premise that a proceeding in the nature of certiorari was available and would have been the correct and proper way to obtain a judicial review of the City’s conduct. He advocated the proposition that the availability of certiorari barred the remedy of declaratory relief. In his text, The Declaratory Judgment, Zamir63 observed, commencing at page 119, that the scope of a declaratory proceeding is a wide legal remedy. Its jurisdiction is original and supervisory and as a supervisory remedy it wields jurisdiction over statutory as well as non-statutory bodies; whereas, the jurisdiction of the prerogative writs is to the acts of judicial and statutory tribunals. The scope of the declaratory proceeding reaches out to legislative, judicial and administrative acts. The range it covers therefore makes it more flexible than the prerogative writs. The declaratory order will at times provide a remedy when certiorari is not available or is not adequate, particularly where consequential relief ought to be given to do justice between the parties. The declaration is not bounded by rules and technicalities which attach to prerogative writs, making it a useful method of defining the rights of the parties. The position of assessor is of statutory authority. It is given the designation of a ‘municipal officer’ by defining 16 of s 2 of the Municipal Government Act and the office itself is created by that Act. Section 77(1) stipulates that ‘The Council of every municipality shall appoint an assessor and prescribe his duties’. Although the duties of the assessor precisely as prescribed by Council were not given in evidence the testimony of the city assessor and that of a member of his staff involved in the assessment of the Sommers land both gave some description of 63 Itzhak Zamir (1986). The Declaratory Judgment. London: Sweet & Maxwell.

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duties which devolve upon that office. I think it is fair and correct to say that the assessor’s duties are administrative in nature. It cannot be questioned, therefore, that certiorari would have been a suitable remedy but suitable only for the limited purpose of seeking an order quashing the assessments in dispute. Unlike the declaratory order, it is not a judicial process which permits of consequential relief. For that reason alone certiorari does not provide a full remedy. I am in full accord with the reasons given by the learned trial judge for not acceding to the submission presented by the city in respect of this aspect of the appeal. His reasons were supported by several compelling authorities including the leading case of Pyx Granite Co Ltd v Minister of Housing and Local Government and Housing [1959] All ER 1 (HL). The same submission as that proposed here was put to the House of Lords in Anisminic Limited and Foreign Compensation Commission (infra) and summarily rejected. …

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Notes 1. This case arose out of plaintiff’s action for declaration that his land was improperly assessed for taxation by the City of Edmonton. Plaintiff had purchased a quarter section of farm land outside the City of Edmonton. Although plaintiff did not farm the land, he permitted a farmer to do so on a crop-share basis in subsequent years. The County assessed the land as farm land. The City applied to the Local Authorities Board to annex land that included plaintiff’s land. The Board made an annexation order on the condition that the City did not change the agricultural classification of plaintiff’s land for taxation purposes. Contrary to the Board’s order, the city’s assessors reassessed plaintiff’s land, subsequently increasing his taxes. Plaintiff’s appeals to the Court of Revision and the Assessment Appeal Board were dismissed. Plaintiff then brought an action for a declaration that his land was improperly assessed contrary to the order of the local Authorities Board. 2. See further Note to case [54].

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[5 4] Cooper v Wilson & Others [1937] 2 KB 309 (Court of Appeal) Greer LJ:

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… It was contended for the respondent that by appearing before the Watch Committee the plaintiff must be taken to have withdrawn his notice of resignation. This argument has, in my judgment, no weight. If it was desired to obtain his discharge before the expiration of his notice, a special meeting of the Watch Committee could have been called on some date between August 14 and 24 so as to enable the Watch Committee to deal with the matter before the expiration of the notice. This view of the same is sufficient to determine the appeal in the plaintiff’s favour unless we come to the conclusion either that however unauthorised the dismissal might be, the plaintiff’s sole right was to appeal to the Secretary of State, or alternatively, to apply by certiorari to quash the order of dismissal. I do not think either of these contentions applies to a case like the present. It would be idle for a plaintiff who is alleging that he has never been dismissed to appeal to the Secretary of State, nor do I think that the fact that that is a remedy which he could take prohibit his access to the Court for a declaration that his dismissal was invalid, nor do I think that the power which he undoubtedly possessed of obtaining a writ of certiorari to quash the order for his dismissal prevents his application to the court for a declaration as to the invalidity of the order of dismissal. The power of the Court to grant declarations has been greatly extended in recent years, and according to the judgment of Bailhache J in Guaranty Trust Co of New York v Hannay & Co [1915] WN 38 affirmed in CA [1915] 2 KB 536, declarations may be granted in all cases where there is a dispute between a plaintiff and a defendant and the claim for a declaration is a convenient method of dealing with such dispute. I think the view as to declaratory judgments that finally prevailed is that which is stated by Lord Sterndale in Hanson v Radcliff Urban District Council [1922] 2 Ch 490. These are the words of Lord Sterndale: Further, the defendants are a statutory body, which has purported to interfere with a contract made between two parties, and I adhere to my judgment in Guaranty Trust Co of New York v Hannay & Co, in which, although I had the misfortune to disagree with Lord Wrenbury, I said that a number of declarations

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has been made, and, in my opinion, rightly made, as to the rights of parties under contracts, without waiting for some event to happen, as, for instance, for a ship to arrive at its destination, in order to determine the result of the contract and what the exact causes of action might be. In my opinion, under Order XXV, r 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide. I think that the order of Russell J was also right on point, and that the appeal should be dismissed.

As I have said, if I am right, it is unnecessary for me to form any judgment on the more important question raised by the appellant’s contention that the proceedings before the Watch Committee were contrary to natural justice; but as this point was fully argued, it seems desirable that I should deal with it. When the plaintiff came into the presence of the Watch Committee to present his case in resisting confirmation of the Chief Constable’s decision and asking for its reversal, he saw before him seated at the table opposite to where he would be giving his evidence, the deputy chairman, Mr Alderman Ellis, and seated next to him the Chief Constable, and next to the Chief Constable, the Deputy Chief Constable, and to any other outside who happened to come in with him it would seem as if the Chief Constable and the Deputy Chief Constable, were placed in a position where they would act with the Committee as judges of the police application for dismissal and of the plaintiff’s appeal against the findings of the Chief Constable. The proceedings were opened by a statement read by the Chief Constable. In the course of his opening statement the Chief Constable again repeated the mistake made by the police of treating the plaintiff’s notice of resignation as an application to resign. I cannot read the Chief Constable’s statement as other than an opening statement by an applicant for an order of dismissal and by a respondent to the appeal, especially the passage referring to the third charge, and the concluding paragraph. Both learned counsel who addressed the Court on behalf the respondents described the Chief Constable as a second respondent. This seems to me a not inaccurate description of the Chief Constable’s position in relation to the plaintiff’s appeal, and nothing could be said with regard to him is he had said: I am interested in the result of this appeal inasmuch as my decision is being attacked, but I do not propose to take any part in the arguments before this tribunal except by stating what my decision was.

I think he went beyond that and in so doing treated himself as one of the parties in the proceedings before the Committee.

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In addition to the case made by Mr Wooll with regard to the Chief Constable’s presence in the tribunal, he made two other points which I think were not well founded … But I think he is fairly entitled to complain that the presence of one of the respondents to his appeal on the Bench when they were deliberating as to whether they would or would not affirm his sentence was contrary to natural justice, and that is thereby invalidated the decision of the Watch Committee and entitled him to have a declaration to that effect. I think the cases relied upon by Mr Wooll, Rex v Essex Justices [1927] 2 KB 475; Regina v London County Council [1892] 1 QB 190; and Regina v Brixton Income Tax Commissioners [1913] 29 Times Report LR 712, establish the proposition that if the conduct of the justices is such as to give rise to a reasonable suspicion that justice does not seem to have been done, then their decision should be set aside. It is noticeable that in all those cases it was established to the satisfaction of the Court that the persons whose presence was complained of when the tribunal was considering its decision in fact took no part in the decision, and in the case of the surveyor of taxes it was considered necessary to pass a special Act of Parliament to do away with all objections to his being present with the taxing authority when they were considering their decision. I ask myself what would anyone have thought who came into the room where the Committee were sitting, after the plaintiff had gone out while they were considering their decision, and found sitting on the Bench with the Committee one of the respondents to the appeal who had opened the case, though he had left the calling of the witnesses to Superintendent Hughes. Such a person, if reasonable, would have been likely to say to himself: ‘There has been an opportunity here for one of the parties to influence the judgment of the committee, and it looks as if justice may seem not to have been done.’ The case of Andrews v Mitchell [1905] AC 78 seems to me to support the view that a claim for a declaration that a statutory body acted without jurisdiction can be dealt with by an action for a declaration that the decision in question was null and void. Hill v Tothill [1936] WN 126 supports the contentions contained in the other justices’ cases. Pasmore v Oswaldtwistle Urban Council [1898] AC 387, which was relied upon by the respondents, seems to me, with respect, to have no bearing on anything we have to decide in the present case. I think on this ground also the plaintiff ought to have succeeded in obtaining a declaration of the invalidity of the order made by the watch committee. …

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Notes 1. Appellant, a sergeant in the Liverpool police force, on 27 July 1933 handed in the statutory months’ notice of resignation. On 8 August charges were preferred against him of offences against discipline. On 14 August the Chief Constable, after an inquiry, purported to dismiss him; and on 29 August the Watch Committee, at a meeting at which the Chief Constable was present during the deliberations, purported to dismiss appellant’s appeal from the Chief Constable’s sentence of dismissal. After that, the Watch Committee refused to repay to appellant the accumulated rateable deductions from his pay to which he claimed to be entitled under s 20(1) of the Police Pensions Act 1921, 11 & 12 Geo 5 c 31. Appellant then sued the Chief Constable and the Watch Committee, claiming declarations that he had duly resigned, and that he was therefore entitled to be repaid the rateable deductions that had been made from his pay. 2. The Court of Appeal held (Macnaghten J dissenting) that in a borough the right to dismiss a police constable is vested solely in the Watch Committee. However, in the case, the Committee had no power to dismiss appellant, who had already terminated his service by due notice of resignation. Moreover, the Committee had no power ex post facto to treat him as dismissed as from a date prior to their hearing an application to confirm the purported dismissal by the Chief Constable. In addition, it could not be said that by appearing before the Watch Committee, appellant must be taken to have abandoned his notice of resignation. 3. The Court of Appeal found that appellant was not limited to the right of appeal to the Secretary of State given by the Police Appeals Act, 1927 (17 & 18 Geo 5 c 1 31) and therefore that he was entitled to the declarations claimed. The Court held further that where a statutory body is alleged to have acted without jurisdiction, its decision can properly be questioned in an action for a declaration that the decision is null and void. 4. See further Notes to cases [53] and [55].

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[55] Pyx Granite Ltd v Ministry of Housing and Local Government [1960] AC 260 (HL) Lord Goddard:

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… My lords, the appellants in this case seek a declaration whether or not they require permission for the working of quarries either on their freehold land or on land leased to them. The respondent contended that this question was within the exclusive jurisdiction of the Minister, either by way of appeal from the planning authority, or if, as happened here, he had called in the case for his own decision in the first instance. In support of this contention, the respondents relied on the decision of this House in Barraclough v Brown [1897] AC 615. What that case decided was that, where a statute conferred a right, which had not hitherto existed, to recover certain expenses in a court of summary jurisdiction, it was to that court alone to which recourse must be had and that those seeking to recover the expenses could not first ask the High Court to declare that the right to recover existed. It was for the court indicated by the statute to decide both as to the right and the amount. I agree with the majority in the Court of Appeal, who held that this decision had no application to the facts of this case, and that there were no words in the statute which deprived the appellant company of their right to obtain a declaration. It was also argued that, if there was a remedy obtainable in the High Court, it must be by way of certiorari. I know of no authority for saying that if an order or decision can be attached by certiorari, the court is debarred from granting a declaration in an appropriate case. The remedies are not mutually exclusive though, no doubt, there are some orders, notably conviction before justices, where the only appropriate remedy is certiorari. The main question in this appeal is whether the proposed development on the appellant company’s land is authorised by any local or private Act of Parliament, and if it is authorised, no planning permission is required. The statutory authority relied on is s 54 of the Malvern Hills Act, 1924, which gives effect to, and makes certain heads of agreement which are set out in Sch 4 to the Act. In the Court of Appeal, relying on R v Midland Ry Co (1887) 19 QBD 540, Lord Denning put the question succinctly in this way (10): Does the section make the heads of agreement

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binding as a contract, simply dispensing with the execution by the parties, or does it make them as binding as a statute, giving them the same force as if enacted in the statute itself? On this question I am in full agreement with the judgment of Morris, LJ. He held that the statute conferred protection on the appellant company, recognising their existing rights in respect of their freehold property and governing and defining their other rights. The section is inserted in the Act expressly for the protection of the appellant company, and provides that the Act is only to apply to the undertaking, property or rights of the appellant company subject to the provisions of the heads of agreement. In my opinion, the protection given by the section extends to the freehold property as well as to the leaseholds. The heads of agreement limit the rights of the appellant company of quarrying outside their freehold, and thereby impliedly recognise the right of quarrying inside it. Accordingly, in my opinion, development by quarrying is authorised by the statute and no planning permission is required. It is, therefore, unnecessary to consider the validity of the conditions which the minister purported to impose, and I would allow the appeal.

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Notes 1. In this case ([55]), appellants, a quarrying company, owned freehold land, and had quarrying rights in other land, in the Malvern Hills. While the Malvern Hills Act, 1924, a local Act aimed at preserving the beauties of the Malvern Hills (an area defined in s 5 of the Act), was passing through parliament, negotiations resulted in an agreement between the parties that the company should continue to quarry on its freehold land. Additional terms of the agreement were that the company should surrender its quarrying rights in certain other land, retain its quarrying in the N area, and should have transferred to it additional quarrying rights in certain other parts of that area. 2. The terms were embodied in heads of agreement which contemplated a deed being executed subsequently. On 17 November 1947, the company applied for planning permission to develop for quarrying purposes two of the areas of land agreed on for quarrying. One of these areas, the T area, was the company’s freehold property and the other was the N area. On 30 September 1953, the minister refused permission to work parts of the T area, granted permission to work the remainder of the T area on conditions and only until 30  June 1966, and refused permission for any work in the N area except to the extent necessary to ensure safety.

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3. In December 1954, the company brought an action against the Ministry of Housing and Local Government and the County Council of the Administrative County of Worcester for, inter alia, a declaration that it was entitled to carry out the proposed development without obtaining any special development permission. Respondents objected that the Court had no jurisdiction to adjudicate whether the company needed to apply for planning permission, contending that the question was exclusively within the minister’s jurisdiction under s 17 of the Town and Country Planning Act, 1947. It was not disputed that the nature of the development and the land on which it was to be carried out were designated by the Act of 1924, but it was contended that word was not ‘authorised’ by that Act. 4. The House of Lords held that the present case was a proper case in which to make a declaration. Pyx Granite [55] is authority for the proposition that a court can still use a declaratory order when setting aside the decision. In the Canadian case of Driver Salesmen v Board of Industrial Relations (1967) 61 WWR (NS) 484, Riley J stated felicitously that the prevailing view is that it ought not to make any difference to the courts through which door plaintiffs enter to come to the seat of judgment in judicial review; and that proceeding for a declaration is prima facie an appropriate alternative remedy to review and set aside a decision of a public authority. 5. In Sommers’ case [53], the Alberta Supreme Court, after reviewing the authorities, held that there is no rule of law that if an administrative action can be attacked by the remedy of reviewing and setting aside the action, the Court is debarred from granting a declaration as to the unlawfulness and invalidity of the administrative action in appropriate cases. The remedies are not mutually exclusive. A substantial amount of judicial support is found for the proposition that declaration is prima facie an appropriate alternative remedy to certiorari to quash, that is to set aside, for want of jurisdiction, that is, if the public authority had acted ultra vires the applicable legislation. 6. In Cooper’s case [54], the English Court of Appeal held that where an aggrieved person alleges that an administrative body or official has acted without jurisdiction, and therefore its decision is unlawful and invalid, an aggrieved person may attack that decision in judicial review proceedings and seek a declaration as to the unlawfulness and invalidity of the decision. They may do so without first applying to review and set aside the impugned decision. 7. It follows indubitably that upon the overwhelming authorities in cases [53], [54] and [55], as well as the analysis and conclusions concerning that matter and the

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authorities relied on in chapter 6 (Part A, para 6.2.2), the decision in Minister of Finance v Merlus Seafood Processors (Pty) Ltd 2016 (4) NR 781 (SC), where the Supreme Court took the view that where the impugned administrative action has not been set aside, the presumed validity of an administrative action cannot be challenged by declaration, cannot, with respect, be supported by the authorities. See the full treatment of the analysis and conclusions on the issue in chapter 6 (Part A, section 6.2).

6.2.3 Interdict

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The remedy of interdict – like the remedies of mandamus, the remedy of setting aside the administrative action and the remedy of setting aside the administrative action and correcting it – is discretionary, and a court may refuse to grant it even if the substantive grounds for granting the remedy are established.64 An administrative action that is ultra vires or does not pass the mark of legality65 is an action unjustified by law; and the remedy of interdict is available to challenge the impugned administrative action. Various forms of interdict are available as remedies in judicial review; and for that purpose there are: (a) prohibitory interdict, and (b) mandatory interdict, which envelopes – (i) mandamus, (ii) mandament van spolie, and (iii) interdict de libero homine exhibendo (known as the writ of habeas corpus in English law).66 I do not propose to discuss interdict de libero homine exhibendo because it is rarely used, if used at all, in Namibia. Not a single case on this remedy is reported to have been sought directly in the law reports or on the Superior Courts’ website on decided cases covering the period 1990 to December 2018.

64 Baxter (1984: p 713); Electoral Commission of Namibia v Registrar of the High Court of Namibia (A 322/2015) [2016] NAHCMD 293 (29 September 2016). 65 See chapter 3 (para 3.2.1). 66 Baxter (1984: p 685).

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6.2.3.1 Prohibitory interdict

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A. Text In practice and in judicial proceedings, prohibitory interdict is popularly referred to simply as ‘interdict’. In judicial review, courts grant the remedy in order to prevent an administrative body or official from acting unlawfully based on any of the commonlaw and constitutional grounds of judicial review of administrative action in order to avoid injustice.67 There are (a) temporary (interim) interdict and (b) final interdict. We saw in chapter 5 (section  5.1) that the practice is now commonplace by which a notice of motion for judicial review is divided into two parts, that is, Part A and Part B, where in Part A applicant prays for a temporary interdict pending finalisation of the judicial review. An applicant does that in order to ensure that the administrative action that applicant challenges is not implemented pending the outcome of the judicial review. Thus, a temporary interdict is often used in cases where a person who is aggrieved by an administrative action brings an application to interdict the implementation of that administrative action for the time being when they are seeking judicial review of such administrative action.68 An applicant may bring a temporary interdict application ex parte in terms of rule 72 of the Rules of Court or on notice to any other party concerned. Applicant may decide to bring the application as an urgent application because they desire that the Court hear the matter urgently. The Court in Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town; Cape Town Municipality v LF Boshoff Investments (Pty) Ltd69 stated that a temporary interdict will be granted if certain requisites are satisfied. Briefly, these requisites are that the applicant for such temporary relief must show: (a) that the right which is the subject-matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt. (b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right.

67 See chapter 4 (section 4.2), where I have treated those grounds. 68 Yvonne Burns & Margaret Beukes (2006). Administrative Law under the 1996 Constitution (Third edition). Durban: LexisNexis, p 564 and the cases there cited. 69 1969 (2) SA 256 (C), at 267A–F, per Corbett, J, applied in Fadi Ayoub v The Minister of Justice & Others Case No A82/2012.

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(c) that the balance of convenience favours the granting of interim relief; and (d) that the applicant has no other satisfactory remedy.

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In virtue of the discretionary nature of temporary interdict, the requisites are not considered in isolation from one another. As to the proper approach to take in order to consider whether a right has been established, Webster v Michell70 tells us that in an application for a temporary interdict, applicant’s right need not be shown by a balance of probabilities; it is sufficient if such right is prima facie established, though open to some doubt. In that regard the proper approach is to take the facts as set out by applicant together with any facts set out by respondent which applicant cannot dispute and to consider whether, having regard to the inherent probabilities, applicant could on those facts obtain final relief at the trial. The facts set up in contradiction by respondent should then be considered, and if serious doubt is shown upon the case of applicant, they could not succeed. In addition, in considering the harm involved in the granting or refusal of a temporary interdict, where a clear right to relief is not shown, the courts act on the balance of convenience. If, though, there is prejudice to respondent and that prejudice is less than that of applicant, the Court will grant an interdict, subject, if possible, to conditions that will protect respondent. In judicial review, where an applicant seeks not a temporary interdict but a final interdict, applicant seeks an order directed at an administrative body or official to desist from an act that is unlawful based on one or more of the common-law and constitutional grounds of judicial review. In order to succeed, applicant must establish that: (a) they have a clear right, which they contend is being violated; (b) they will suffer irreparable harm if the interdict is not granted; (c) there is no proper – in the sense of comparable or adequate – remedy available to them. It follows that a court will not grant a final interdict where an adequate alternative remedy is available to applicant.71 In judicial review, as has been shown previously, a temporary interdict, particularly one pending the finalisation of an application to review and set

70 1948 (1) SA 1184 (W). 71 Marinus Wiechers (1985). Administrative Law (translated by Gretchen Carpenter). Durban: Butterworths, p 267 and the cases there cited.

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aside an administrative action, is a very useful and effective mechanism; and it is commonplace. However, it cannot be said that an application for a final interdict in judicial review is free from real problems. To start with, in most cases, the clear right that an applicant must establish would inure only after the administrative body or official has taken any action – ‘taken action’ in the sense of a final decision or an act having been completed. Little wonder, then, that applications for a final prohibitory interdict are extremely rare in judicial review. The interdict de libero homine exhibendo is available as of right, in the sense that applicant is entitled to the interdictory order if they establish a prima facie case; the Court has no discretion in the matter.72 B. Cases

[5 6] Webster v Mitchell 1948 (1) SA 1186 (W) Clayden J: …

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This is not a case where the applicant for an interim interdict shows a clear right to that relief. But such an interdict can be obtained even though a clear right is not shown. In Setlogelo v Setlogelo (1914 AD 221, at 227), Innes, JA, dealing with the need to show irreparable harm as set out by Van der Linden,73 says: That element is only introduced by him in cases where the right asserted by the applicant, though prima facie established, is open to some doubt. In such a case he says the test must be applied whether the continuance of the thing against which an interdict is sought would cause irreparable injury to the applicant. If so, the better course is to grant relief if the discontinuance of the act complained of would not involve irreparable injury to the other party.

This principle was followed and applied in Treasure Trove Diamonds, Ltd v Hyman (1928 AD 464, at 479–480). In Molteno Bros v South African Railways (1936 AD 72 Baxter (1984: pp 712–713) and the cases there cited. 73 Johannes van der Linden (1806) Regtsgeleerd, Practicaal, en Koopmans Handboek. Amsteldam: Allaert.

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321), the Court refused to grant an interim interdict; the reasons of the learned judges who decided the case differed. Wessels, CJ, held that the information before the Court was inadequate to show likelihood of damage. Curlewis, JA, held that a ‘prima facie case of reasonable apprehension of damage was made out’, but considered that the possibility of damage to third parties required the refusal of the interdict. De Villiers, JA, concurred in the judgment of the Chief Justice, and then referred to Van der Linden74 and Setlogelo’s case and said at 332: It is sufficient for the appellants to establish a case founded upon ‘the greatest probabilities’, that is to say, to bring prima facie proof of right.

He then discussed whether they had produced prima facie proof, decided that they had not, and concluded:

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On all these points the appellants have shown a possibility or perhaps even a slight degree of probability, but not a sufficient probability to establish a prima facie case.

I do not read these words as requiring that an applicant for an interim interdict must show a balance of probabilities in his favour. Setlogelo’s case did not so decide and was being followed. And in the case to which the words were applied the respondent had put before the Court on the issue concerned merely a bare denial, so that the learned judge was concerned not with the probabilities between two contradictory versions, but with whether the inherent probabilities of the appellant’s case were such that the right was prima facie established. One other Appellate Division case must be referred to as showing what is meant by prima facie establishment of a right. In Nienaber v Stuckey (1946 AD 1049), the Court was concerned with an application for a spoliation order. Greenberg, JA, giving the judgment of the Court, approved of the statement of the law in Burnham v Neumeyer (1917 TPD 630) that an applicant for a spoliation order, must make out not only a prima facie case, but he must prove the facts necessary to justify a final order,

and continued at 1053–1054: Although a spoliation order … merely orders that the status quo be restored, it is to that extent a final order and the same amount of proof is required as for the granting of a final interdict, and not a temporary interdict. … At this stage

74 Op cit.

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it is sufficient to say that the appellant must satisfy the Court on the admitted or undisputed facts by the same balance of probabilities, as is required in every civil suit, of the facts necessary for his success in his application.

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This case indicates that the ‘prima facie establishment’ of a right calls for less than a balance of probabilities, that the temporary interdict can be granted where less is shown than the proof which would entitle the applicant to judgment at the trial. There are many cases in which the Courts have held that an applicant who shows a balance of probabilities in his favour is entitled to an interim interdict; see, for example, Potgietersrust Hospital Board v Simons (1943 TPD 269, at 275). But such decisions do not involve the contrary; that if there is not a balance of probabilities in favour of the right, it is not prima facie established. In Newmarket Fisheries and Provision Stores, Ltd v Holtzkamp (1926 NPD 403), it was laid down that the relief could be granted where ‘a preponderance of probability in favour of its existence’, that is of the right, was shown. That statement of the law was not necessary to the decision of the case, and though the case has been followed, the use of the phrase ‘preponderance of probability’ was criticised by Broome, J, in Yusuf v Abboobaker & Another (1943 NPD 244), where the learned Judge preferred as a test that ‘the probabilities to some extent favour him’. In Mulligan v Mulligan (1925 WLD 178, at 181), it was held that a ‘strong prima facie case’ has to be shown. In Van Woudeberg v Roos (1946 TPD 110), Malan, J, granted an interdict in a case in which the probabilities were evenly balanced, and said at 114: In my view, it is sufficient for an applicant in interdict proceedings pendente lite to satisfy the Court that he has a reasonable prospect of success in the main action although there is no definite preponderance of probabilities in his favour. Such a view appears to be in accord with the language of Innes, JA, in Setlogelo’s case. … The more stringent rule may lead to injustice and hardship.

This statement of the law was criticised by Ramsbottom, J, in Alison v Mears (1946 WLD 265), who said: When the words prima facie case are used in respect of an interdict pending action more than a reasonable possibility of success at the trial is meant.

From the Appellate Division cases to which I have referred I consider that the law which I must apply is that the right to be set up by an applicant for a temporary interdict need not be shown by a balance of probabilities. If it is ‘prima facie established though open to some doubt’ that is enough. I do not think it necessary

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to decide whether the test of a ‘reasonable prospect of success’ applied by Malan, J, is a proper paraphrase of the words of Innes, JA. If the phrase used were ‘prima facie case’, what the Court would have to consider would be whether the applicant had furnished proof which, if uncontradicted and believed at the trial, would establish his right. In the grant of a temporary interdict, apart from prejudice involved, the first question for the Court in my view is whether, if interim protection is given, the applicant could ever obtain the rights he seeks to protect. Prima facie that has to be shown. The use of the phrase ‘prima facie established though open to some doubt’ indicates I think that more is required than merely to look at the allegations of the applicant, but something short of a weighing up of the probabilities of conflicting versions is required. The proper manner of approach I consider is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to ‘some doubt’. But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief. Although the grant of a temporary interdict interferes with a right which is apparently possessed by the respondent, the position of the respondent is protected because, although the applicant sets up a case which prima facie establishes that the respondent has not the right apparently exercised by him, the test whether or not temporary relief is to be granted is the harm which will be done. And in a proper case it might well be that no relief would be granted to the applicant except on conditions which would compensate the respondent for interference with his right, should the applicant fail to show at the trial that he was entitled to interfere. In the present case the applicant says that he is the owner of a racehorse possessed by the respondent as his trainer. The horse was bred by the applicant and was put into the possession of the respondent after the applicant had refused an offer of £500 for it at a sale in April, 1946. In November, 1947, the horse won its first race, and thereafter on 13th November the respondent paid to the applicant the proceeds of a bet, and the amount of the stake won, less a sum for training

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expenses over the period of 15 months up to November, 1947. The applicant was dissatisfied with the manner in which the bet had been made and with the charges for training, and decided to train the horse elsewhere. The respondent refused to hand over the horse. These allegations, supported as they are by a slip of paper in the handwriting of the respondent setting out the calculation made on 13th November, certainly in my view establish prima facie that the applicant is the owner of the horse, and has the right to claim repossession of it from the respondent. I have then to consider to what extent that case is put in doubt by the allegations of the respondent. He says that when the applicant failed to sell the horse in April, 1946, he gave it to the respondent, on condition that when it was fancied to win the applicant would ‘be entitled to stand in with the stable bet to the extent of £50’. Now it seems unlikely that the applicant, a breeder of horses, would give away a horse for which he had just refused £500, on such conditions. He was to be responsible to pay £50 whenever the respondent chose to bet on the horse, if the horse lost; he would have no say in the training of the horse or information as to its condition; he was allowing the respondent to bet for him when the respondent pleased. Moreover, the fact that in November the respondent accounted for the stake won and charged training fees is quite inconsistent with ownership of the horse in the respondent. These payments are explained by the respondent as follows: He says that in November after the horse won, because the applicant was dissatisfied with the odds received by him on his bet and because he was very friendly with the applicant, he agreed to alter the arrangement with the applicant, and for the future to give the applicant all stakes won, less training fees. Now if the respondent were then the owner this was a very curious arrangement to make. It seems to me that originally, if the horse were given to the respondent, it could only have been because the applicant did not wish to be responsible for training fees, and yet in November, 1947, according to the respondent, he takes on that liability. The respondent then says that this arrangement was repudiated. But although in a letter of 19th November the respondent offered to readjust matters between himself and the applicant by giving him greater odds on the bet, no suggestion was made that the difference between the stake received by the applicant, £223, and the training fees paid, £300, should be refunded by the respondent. The slight injury from which the horse was at one time suffering does not provide a very convincing reason for the gift of this horse by the applicant.

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The doubt cast by the respondent on the case set out by the applicant is not in my view considerable on the above facts. Which version will eventually be held to be the truth is a matter with which I cannot now concern myself.

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… I am of the opinion therefore that the applicant has established a right to the degree necessary for the obtaining of an interim interdict, and infringement of that right. I come then to deal with the harm which might be suffered by either party. If the other party were allowed complete control of the horse pending action, the party not in control, whether it was the applicant or the respondent, would be equally likely to be harmed. The ability to race the horse as he pleased, to bet on the horse with real knowledge of its condition, and the opportunity to over-race and so damage the horse, in the period before final decision of the rights of the parties constitute possible prejudice to the other party which could not easily, if at all, be measured in money. If what the applicant sought was that he should be put into the position of owner pending action, the damage to the respondent if the interdict was granted would be exactly the same, and as irreparable, as that shown by the applicant as the reason for the granting of the interdict. But that is not the type of interference with the possession of the respondent which the applicant seeks. He asks only that the respondent should be prevented from alienating the horse, from dealing with the horse, and from racing the horse, pending action, and he asks that the horse should be left in training with Marlin, the trainer employed by the respondent, pending action. Now if this is done, if the horse is left in the care of the trainer of the respondent, the prejudice to the respondent consists only in the stopping of the racing of the horse for a period of the horse’s racing life. That may cause harm to the respondent, if eventually he is found to be the owner of the horse, but that harm is not nearly as great in my view as the harm which might be caused to the applicant if the respondent was allowed to treat the horse as his own pending action. Normally the Court acts on the balance of convenience. If there is greater possible prejudice to the respondent an interim interdict will be refused. See Crossfield & Son Ltd v Crystallizers Ltd (1925 WLD 216, at 223); if, though, there is prejudice to the respondent and that prejudice is less than that of the applicant, the interdict will be granted, subject, if they can be imposed, to conditions which will protect the respondent – see Hillman Bros (West Rand) (Pty) Ltd v Van den Heuvel (1937 WLD 41, at 44, 46). The terms in which the applicant seeks the interdict

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provide, in my opinion, the safeguards which the respondent could insist upon. And to protect the applicant I think it proper to grant an interdict in the terms asked for, subject to certain qualifications which appeared from argument. It also seems to me that since either party might be prejudiced if the horse could not be raced pending action, I should not impose an absolute ban on the racing of the horse, but should allow it to race if both parties are agreeable. The order which I shall make is as follows: (a) An order is granted restraining the respondent and his wife, Mrs P Mitchell, pending the decision of an action to be instituted by the applicant, from dealing with or alienating the horse ‘Blondin’. (b) Pending the decision of that action the horse is to be trained by V Marlin, or such other trainer as is agreed upon by the parties and the horse is not to be raced except by agreement of the parties. Notes 1. This is an application for a temporary interdict. The Court proposed the proper manner in which an application for temporary interdict ought to be considered. 2. This landmark case [56] propounds the proper approach that a Court ought to follow in weighing the evidence on the affidavits of applicant and respondent and the requisites that applicant must establish in order to succeed.

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6.2.3.2 Mandatory interdict A. Text We saw earlier in the present chapter (in para 6.2.3) on the subject of interdict that there are two major forms of interdict, namely, prohibitory interdict (treated in para 6.2.3.1) and mandatory interdict. Mandatory interdict is the subject-matter of the present paragraph. In addition, it will be recalled that there are three forms of mandatory interdict as remedy in judicial review, namely, (a) mandamus, (b) mandament van spolie and (c) interdict de libero homine exhibendo. I treat mandamus in para 6.2.3.2.1 and mandament van spolie in para 6.2.3.2.2. I stated above that, for the reason given, I do not intend to treat interdict de libero homine exhibendo.

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6.2.3.2.1 Mandamus

A. Text

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Mandamus is the term used in place of mandatory interdict when the remedy an applicant seeks is judicial review of administrative action by administrative bodies and officials. In judicial review, mandamus lies to secure performance of duty by administrative bodies or officials, in the performance of which applicants have sufficient legal interest. It is therefore a prerequisite that applicant must establish that they have demanded performance of the duty and that the administrative body or official whose duty it is to act has refused performance, and that such duty must be a public duty. Furthermore, the duty must be owed to applicant and not the government.75 It is important to note that for mandamus to issue for the enforcement of a statutory right, the applicant must be able to establish that the statute imposes a duty, the performance or non-performance of which is not a matter of discretion.76 It follows that if discretion only, as opposed to a duty, exists, the Court will not grant mandamus.77 In the Canadian case of Re Central Canada Potash Co Ltd et al v Minister of Mineral Resources of Saskatchewan,78 the minister’s power was in terms of regulation (Sask Reg 287/6979). Regulation 5 provided: 5. (1) Where the minister decides that it is advisable to limit the total amount of potash that may be produced in the province he shall allocate the allowable production among the potash mining properties in production in the province and may, in determining such allocation, consider the following factors: (a) basic allowable; (b) definite and bona fide requirements for disposal; (c) inventory requirements; (d) any other factor that the minister deems advisable.

75 SA de Smith, Lord Woolf and Jeffery Powell (1995). Judicial Review of Administrative Action (Fifth edition). London: Sweet & Maxwell, pp 481–482; referred to in Leo D Barry (1978). Administrative Law: Cases and Materials (Vol 2). Halifax: Dalhousie Law School, p 680. See also Re Central Canada Potash Co Ltd, et al v Minister of Mineral Resources of Saskatchewan (1972) 32 DLR (3d) 107 (Court of Appeal). 76 Nguvauva v Minister of Regional and Local Government 2015 (1) NR 220 (HC), para 24. 77 Halsbury’s Laws of England (Vol 22) (Third edition, 1979). Lord Simons (ed), p 749, para 751. 78 (1972) 32 DLR (3d) 107. 79 The Potash Conservation Regulations, 1969 (OC 1733/69, Sask Reg 287/69).

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(2) The minister may amend, revise or vary the allowable production allocated to any or all potash mining properties in production, with or without an inquiry as he deems advisable, to meet changing conditions or circumstances.

In the regulation the minister is given the power to limit the total amount of potash that may be produced in the province, and to allocate the allowable production among the mines in production, and in determining the allocations to consider the factors set out in s 5 of the Regulations, ‘and any other matter he deems advisable’. The Saskatchewan Court of Appeal held that:

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It is obvious that the Minister, in determining or limiting the total amount of potash to be produced in the Province, and in the allocation of that production to the producing mines has a full and unfettered discretion. It was in the exercise of this discretion that he issued the producing licence to the applicant for the year 1972–73. What, in fact, the applicant is seeking is that the Minister be ordered to exercise his discretion in a particular way and mandamus is not available to effect that result: see R and McDonell v Leong Ba Chai [1954] 1 DLR 401.80

In sum, mandamus lies only to compel the performance of an imperative public duty and not therefore where there is any discretion in the performance of power granted to the administrative body or official (the public authority); and, what is more, as a general rule, mandamus does not lie ‘where there is a more appropriate remedy’.81 Furthermore, Wade82 asserts that in mandamus the aggrieved person must show that a duty is owed to them and not merely to the public at large. The remedy of mandamus therefore protects the rights of persons in the area of public administration. It plays a pivotal role in the operations of the public administration machinery. A crucial aspect of mandamus is that it is pre-eminently a discretionary remedy, and the Court has discretion to withhold it even if applicant has made out the substantive grounds for the granting of the remedy.83 The Court may therefore refuse mandamus where, for instance, there has been an unreasonable delay on

80 Re Central Canada Potash Co Ltd, et al v Minister of Mineral Resources of Saskatchewan (1972) 32 DLR (3d) 107 (Court of Appeal). 81 R v Dunshealth, ex parte Meredith [1951] 1 KB 127, at 131 (per Lord Goddard). 82 ECS Wade (1947). ‘Courts and the Administrative Process’. LQR, vol 63, p 164 (quoted in Gordon J Borrie (1955). ‘The Advantages of the Declaratory Judgment in Administrative Law’. MLR, vol 18, pp 1–138). 83 Electoral Commission of Namibia v Registrar of the High Court of Namibia (A322/2015) [2016] NAHCMD 293 (29 September 2016).

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the part of an aggrieved party to institute proceedings.84 Furthermore, in its discretion, the Court may withhold mandamus where the remedy is unnecessary because the public authority concerned has by their conduct indicated their genuine preparedness to perform the duty concerned. Moreover, the Court may refuse mandamus where the administrative body or official concerned has done all that it or they reasonably can – in the circumstances of the case – to perform its or their duty.85 An important advantage and efficacy of the remedy of mandamus is that it lies to serve two purposes, namely: to enforce performance of a specific duty and – significantly – to remedy the effects of an administrative action which has already been taken.86 B. Cases

[57] Nguvauva v Minister of Regional and Local Government 2015 (1) NR 220 (HC)

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Parker AJ: [1] This matter concerns the Ovambanderu Community (the community), one of many traditional communities in Namibia. This community, I should say, is not a stranger in the courtrooms of the court. The present proceeding is but the latest in a series of court cases that have come before the court in the last six or so years involving the community. The present proceeding is about a counter-application in which Mr Frank SC, assisted by Ms Bassingthwaighte, represents the second respondent, the Mbanderu Traditional Authority and Mr Kilus Nguvauva, the third respondent. For the sake of neatness, clarity, and not meaning any disrespect of these parties, I shall from now on refer to them simply as the traditional authority and Kilus.

84 Ibid, para 11. 85 R v Bristol Corporation, ex parte Hendy [1974] 1 WLR, at 503. 86 Tumas Granite CC v Minister of Mines and Energy & Another 2013 (2) NR 383 (HC), para 6.

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[2] The present counter-application, launched on 13 December 2013, arose from a review application (the main application) that was launched by the applicant Keharanjo II Nguvauva on 11 August 2010. For the reason given previously, I shall refer to the applicant simply as Keharanjo. In the main application the Minister of Regional and Local Government and Housing and Rural Development (the minister) was the first respondent, the traditional authority was the second respondent and Kilus was the third respondent. Before the main application could be heard Keharanjo, sadly and unfortunately, passed away on 8 April 2011; and so, the only matter to be heard is the counter-application. The minister opposes the counter-application, and Mr Marcus represents him.

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… [4] The third signpost has a legend on it which gives the most significant direction in the determination of the present counter-application. The legend reads: minister receives two applications for approval to make designation in respect of the same position of chief of the community. Shortly after his father’s passing away, Keharanjo was designated as successor to the chieftaincy by a section of the community and an application was subsequently made to the minister for the minister to approve the proposed designation in terms of the relevant provisions of the Traditional Authorities Act 25 of 2000 (the Act). His claim to succession as chief was, however, disputed by another section of the community which supported the succession of Kilus to the position because he was the elder of the two and because Munjuku had allegedly proclaimed that to be his wish. Thus, Kilus was also proposed to be designated as successor to the chieftaincy of the community, and in respect of Kilus, too, an application was made to the minister praying the minister to approve Kilus’s designation in terms of the relevant provisions of the Act. [5] The fourth signpost has this legend inscribed on it: Mbanderu Traditional Authority petition the Minister. The traditional authority submitted a written petition to the minister in terms of s 12(1) of the Act. Then on 20 January 2009 the legal representatives of Keharanjo and Senior Chief Erastus Kahuure addressed a letter to the minister in which, among other things, they sought to ‘convert our submission of the 9th December 2008 as the basis of the petition’. In terms of s 12(2) of the Act the minister appointed a Ministerial Investigating Committee (the committee) to investigate the dispute. After it had conducted public hearings, the committee concluded that, according to the customary rules of succession

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applicable to the community, a child born of a chief ’s marriage is considered senior for purposes of succession to one born out of wedlock and that only a male child may be the ‘rightful successor to his father’. The committee found that Keharanjo, who was born in wedlock, was the ‘senior son’ in the order of succession and recommended that he, rather than Kilus, should be recognised as the chief of the community. In the alternative and ‘in the event that there is an objection about the senior son succeeding his father’, the committee recommended that the dispute be resolved by invoking s 5(10)(b) of the Act ‘since Government was not there to exercise customary law on behalf of any traditional authority’. Section 5(10)(b) provides that, in the event of uncertainty or disagreement amongst the members of a traditional community regarding the applicable customary law, the members of the community may by a majority vote elect, subject to the approval of the minister, a chief or head of the community. The minister accepted the committee’s recommendation that Keharanjo should become the chief of the community, and the minister made this position absolutely clear in a letter addressed to the legal practitioners of Keharanjo. This is the fifth signpost and the legend written on it is: minister decides that Keharanjo should become successor to Munjuku.

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[6] The minister later on changed his position and went for the committee’s alternative recommendation, namely that an election should be held ‘for the Ovambanderu Community to choose the right successor to the late Chief Munjuku II’. This decision was conveyed to the legal representatives of Keharanjo by a letter dated 19 May 2010. This is the sixth signpost, and the legend inscribed on it reads: minister changes his mind and orders the community to go for elections to choose a successor to Munjuku. [7] The seventh signpost has inscribed on it the following legend: Keharanjo’s review application. This is the main application. Aggrieved by the minister’s decision that the community should go for elections to choose a successor to Munjuku, Keharanjo brought the review application in the court, seeking amongst other relief, an order declaring that his appointment as the chief of the Ovambanderu Traditional Community was valid and an order reviewing, correcting and/ or setting aside the minister’s subsequent decision that an election be held to determine a successor to the chieftaincy. Keharanjo contended that he should be recognised as the chief of the community. He cited the minister and the traditional authority as first and second respondents and, since Kilus also maintained that he was the one who should be so recognised instead, he was cited accordingly in those

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proceedings. The traditional authority and Kilus opposed the main application and, simultaneously, brought the present counter-application in which they seek an order in the following terms: …

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[9] According to the Act, the designation of a chief of a community is primarily in accordance with the customary law of the community in question, and the designation is regulated by the Act. See Kahuure (SC), para 20. And s 5 of the Act concerns approval to make such designation. It is supremely important to note that there are two diametrically opposed schemes of approval. The two schemes are absolutely unconnected, and they cannot be conflated, as Mr Marcus appeared to do. The first scheme relates to approval by the minister, and the second by the President. On the facts of the instant case the presidential scheme of approval, which is governed primarily by ss (1), (3), (4), (5), (6) and (7) of s 5 of the Act, does not apply in this proceeding. It is the ministerial scheme of approval that applies, and it is governed primarily by ss (1), (2) and (7) of the Act. It is, as I have intimated earlier, an absolute imperative that the two schemes are kept strictly apart. This reality is further buttressed by s 5(7) of the Act. Section 5(1), (2) and (7) provides: 5. (1) If a traditional community intends to designate a chief or head of a traditional community in terms of this Act: (a) the Chief ’s Council or the Traditional Council of that community, as the case may be; or (b) if no Chief ’s Council or Traditional Council for that community exists, the members of that community who are authorised thereto by the customary law of that community, shall apply on the prescribed form to the Minister for approval to make such designation, and the application shall state the following particulars: (i) the name of the traditional community in question; (ii) the communal area inhabited by that community; (iii) the estimated number of members comprising such community; (iv) the reasons for the proposed designation; (v) the name, office and traditional title, if any, of the candidate to be designated as chief or head of the traditional community; (vi) the customary law applicable in that community in respect of such designation; and (vii) such other information as may be prescribed or the Minister may require.

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(2) On receipt of an application complying with subsection (1), the Minister shall, subject to subsection (3), in writing approve the proposed designation set out in such application. … (7) On receipt of any written approval granted under subsection (2) or (6), the Chief ’s Council or Traditional Council or, in a situation contemplated in subsection (1)(b), the members of the traditional community, as the case may be, shall in writing give the Minister prior notification of the date, time and place of the designation in question, whereupon the Minister or his or her representative shall attend that designation, and shall: (a) witness the designation of the chief or head of the traditional community in question; and (b) satisfy himself or herself that such designation is in accordance with the customary law referred to in paragraph (vi) of subsection (1).

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[10] Doubtless, s  5(2) of the Act is critical in the determination of the instant application. Upon receiving an application to approve the designation of a chief the minister must apply his or her mind to such application and in doing so he or she must satisfy himself or herself that the application he or she has received complies with the requirements in paras (i) to (vii) of s 5(1) of the Act. I should note that para (vii) has no relevance in this proceeding: it comes into play only if the minister has ‘prescribed’ or ‘required’ ‘other information’ (to use the words of the Act). There is nothing on the papers tending to show that there is some information which the minister had ‘prescribed’ or ‘required’ in the instant matter. [11] It follows reasonably and irrefragably that in the instant matter what the minister had to be satisfied with when he received the applications in respect of Keharanjo and in respect of Kilus are the requirements in paras (i) to (vi) of ss (1) of s  5 of the Act. They are what Marinus Wiechers in his work Administrative Law (1985),87 at p 137 refers to as ‘prescribed objectively determinable facts’. Thus, in considering the two applications that he had received, the minister was to be satisfied that those ‘prescribed objectively determinable facts’ in s  5(1)(i) to (vi) of the Act existed before deciding to act or not. That is the only discretion the minister has in the ministerial approval scheme under s 5(1) of the Act. As I shall demonstrate in due course, the minister has no discretion under s 5(2) of the Act. 87 Op cit.

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This legal reality must not be missed. As Wade wrote in his work Administrative Law, 5 ed (1984),88 at p 623: Public authorities have a great many legal duties, under which they have an obligation to act, as opposed to their legal powers, which give them discretion whether to act or not.

[12] In the instant matter, the minister has a legal power – discretionary power – whether to act or not in terms of s  5(1) of the Act, but he has an obligation to act – duty to act – in terms of s 5(2) of the Act. The minister’s obligation to act under s 5(2) of the Act is opposed to his legal power to act or not under s 5(1). And the two legal duties have never been conflated and taken as one in our law, as Mr Marcus appears to do.

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[13] Thus, if in the opinion of the minister, those statutorily prescribed objectively determinable facts in s 5(1) of the Act did not exist in respect of the application relating to Kilus or Keharanjo, the minister was obliged to inform the traditional authority that the application of one, or both of them, as the case may be, did not comply with s 5(1) of the Act. And that would have been the end of those applications or one of them, as the case may be, as far as the minister was concerned. But if, in the opinion of the minister the applications or one of them complied with s 5(1) of the Act, then, as a matter of law, the minister was ‘simply compelled to execute its (his) ministerium or prescribed task’. (See Marinus Wiechers, Administrative Law, loc cit.) And the prescribed task is to approve the designation of Keharanjo and Kilus in terms of s 5(2) of the Act. [14] From what I have said previously, the conclusion is inescapable that in terms of s 5(1) of the Act the minister has a discretion in determining whether in respect of an application to approve a designation the prescribed objectively determinable facts in s 5(1) of the Act exist, that is whether the application has complied with s 5(1) of the Act. And if, in the opinion of the minister, an application has complied with s 5(1), he has no discretion – not even a modicum of it – to decide whether he should approve a designation. As Wiechers89 says, the minister ‘is simply compelled to execute his ministerium or prescribed task’. And the prescribed task, as I have said more than once, is to approve the designation. The minister must then simply carry out his statutory duty. 88 HWR Wade (1984). Administrative Law (Fifth edition). Oxford: Clarendon Press. 89 Ibid.

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[15] The question that now arises is this: Did the minister inform Keharanjo or Kilus – directly or indirectly – that, in his opinion, his application did not comply with s 5(1) of the Act? On the papers it is undisputed that there is nothing – nothing at all – which shows that the minister informed the authority (or, indeed, Keharanjo or Kilus) that the application of Kilus or Keharanjo, or both of them, did not comply with s 5(1) of the Act. The only undisputed factual finding is accordingly this: the minister did not inform the authority that the application of Keharanjo or Kilus, or the applications of both of them, did not comply with s 5(1) of the Act. [16] In his answering affidavit the minister states: I received two applications for approval to designate a Chief for the Mbanderu Traditional Community, one in respect of the applicant (ie Keharanjo) and one in respect of the third respondent (ie Kilus). [The third signpost] Both petitioned me in terms of Section 12 of the Act so that I could resolve the dispute that had arisen within the traditional community as to who should succeed the late Chief. [The fourth signpost]

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What the minister did in response to the petitions was, as I have said previously, to set up a ministerial committee to investigate the dispute and report to him. After receiving the report of the committee the minister, in a letter dated 9 December 2009, informed Keharanjo’s legal practitioners that he had decided that Keharanjo should ‘become successor to the late father Nguvauva II (Munjuku)’. [The fifth signpost] What followed is the sixth signpost. The minister changed his mind and asked the community to go for elections to choose a successor to Munjuku. [17] The question may be asked rhetorically; if the minister had not decided that Keharanjo’s application complied with s  5(1), how could the minister have resolved, that is, decided, that Keharanjo should become the successor to his late father Nguvauva II (Munjuku)? And if the minister had not decided that Kilus’s application complied with s 5(1), how could the minister have decided that the community should go for elections in order ‘to choose’ between Kilus and Keharanjo, the only persons whose applications the minister had pending before him, and who were the only two contenders, as ‘the right successor to the late Chief Munjuku II’? [18] By virtue of the aforegoing factual findings and the reasoning and conclusions, I respectfully reject the submission by Mr Marcus that the minister has not decided that the application of Kilus and the application of Keharanjo complied with s 5(1)

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of the Act. The minister did decide in 2010 that both applications complied with s 5(1) of the Act. I, therefore, accept Mr Frank’s submission on the point. With the greatest deference to Mr Marcus, I should say this. Having bypassed the fifth and sixth signposts, Mr Marcus was apt to miss the essentiality of the interpretation and application of s 5(1) and (2) of the Act, leading counsel to arrive at the argument he made, which, as I say, has no merit. [19] The aforegoing reasoning and conclusions concern the minister’s exercise of discretionary power under s 5(1) of the Act and they establish the basis upon which, in my judgment, the relief sought in para 2 of the notice of motion should be granted. The next level of the enquiry concerns the minister’s obligation under s 5(2) of the Act. [20] By 20 May 2010, the minister had decided that the application for approval to designate Kilus and Keharanjo complied with s 5(1) of the Act. In other words, in the opinion of the minister, the prescribed objectively determinable facts existed as regards the application of Kilus and of Keharanjo. In that event, as Wiechers90 says, the minister is simply compelled to execute his ministerium or prescribed task. The prescribed statutory task is to approve the applications in terms of s 5(2) of the Act, as I have said ad nauseam; and, a fortiori, the ipsissima verba of s 5(2) say so clearly and unambiguously thus:

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On receipt of an application complying with subsection (1), the Minister shall … in writing approve the proposed designation set out in such application.

[21] All was well, as it were, in May 2010. The only fly in the ointment then was that the minister was presented with two applications, and both of them complied with s 5(1) of the Act, as I have found previously. In the circumstances, the minister took, in my opinion, a decision that was practical, fair and statute compliant. The minister decided to send the community to go for elections. And for what purpose? It was for the sole purpose of the community choosing, between Kilus and Keharanjo, ‘the right successor to the late Chief Munjuku II’. [The sixth signpost] Thus, the only candidates then were unmistakably and undoubtedly Kilus and Keharanjo. Accordingly, I should make this important point. No amount of sophistry can wash away this irrefutable factual finding and indubitable conclusion. Any other conclusion will plainly be self-serving and fallacious.

90 Ibid.

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[22] Before the minister-ordered elections could take place, Keharanjo unfortunately and sadly passed away on 8 April 2011. Doubtless, the purpose for which the minister decided to send the community to elections expired with the death of Keharanjo. The dispute as to who the community should choose by ballot to succeed Munjuku also died upon the death of Keharanjo. In sum, the problem as to whose designation the minister must approve – and I use ‘must’ advisedly – fizzled out upon the tragic death of Keharanjo; some would say, upon an act of God. It follows that by a sorrowful and unfortunate act of God, as at 9 April 2011, the minister had only the designation of Kilus to approve in terms of s 5(2) of the Act. Accordingly, I accept Mr Frank’s submission on the point. [23] Flowing from all the aforegoing factual findings and reasoning and conclusions, I should signalise these important and undisputed points which, with the greatest deference to the honourable minister, the minister missed, or about which, I dare say, the minister was wrongly advised. They are the following. As far as the law is concerned, the minister has only two pending statute-compliant applications still waiting on his desk, that is, the applications relating to Kilus and Keharanjo. The latter’s application, with the greatest respect to the dead, has fallen off the minister’s desk permanently. It follows inevitably and reasonably that, as I have said more than once, the minister has only the designation of Kilus to approve in terms of s 5(2) of the Act. That is the only task the minister must be compelled to execute; it is, in this proceeding, the minister’s ministerium or prescribed task, to use the words of Wiechers. Thus, Kilus has acquired a right to have his designation approved. In this regard, I should say in parentheses that I take no cognisance of the intervening application involving Aletha, which, in any case, failed. The intervening application has no relevance and is of no assistance on the issues under consideration in this proceeding. [24] As I say, the Minister has a duty to execute his ministerium or prescribed task, which is to approve the designation of Kilus. Writing about public duties in his work Administrative Law, ibid, p 623, Wade states: Public duties As well as illegal action, by excess or abuse of power, there may be illegal inaction, by neglect of duty. Public authorities have a great many legal duties, under which they have an obligation to act, as opposed to their legal powers, which give them discretion whether to act or not.

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The minister has an obligation to act, that is, carry out his prescribed duty under s 5(2) of the Act. As I have held previously, s 5(2) does not give the minister legal power which would give him the discretion whether to act or not. The minister has a bounden obligation to act in terms of s 5(2) of the Act; and it is to approve Kilus’s designation as set out in such application (to borrow the words of s 5(2) of the Act); no more, no less. A learned judge once said:

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Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. [Doe Dem Murray, Lord Bishop of Rochester v Bridges (1831) 1 B & Ad 847, at 859; per Lord Tenterden, CJ (quoted in HWR Wade, ibid, p 627).]

[25] In the instant case, the minister cannot, and should not, perform his obligation under s 5(2) in any other manner. He can only approve the designation of Kilus as set out in Kilus’s application, or application concerning Kilus. And for the court, the one effective remedy available to compel the minister’s performance is mandamus; a remedy used ‘to prevent breach of duty and injustice’. (HWR Wade, Administrative Law, ibid, p 633) In sum, I hold that Kilus has succeeded in persuading this court to exercise its discretion in favour of granting mandamus. By a parity of reasoning, I hold also that Kilus has established, as I have found previously, an existing right which must be protected by declaratory order. The aforegoing reasoning and conclusions impel me to reject Mr Marcus’s submission that ‘there is no evidence that the Minister has considered the application for designation’. As I have demonstrated, Mr Marcus, with respect, misreads the relevant provisions of s 5 of the Act. For instance, counsel brings in s 5(6) of the Act which does not concern the ministerial scheme of approval of designation under the Act: it concerns the presidential scheme. I, therefore, conclude that Mr Marcus’s submission cannot take the first respondent’s case any further in this proceeding. [26] I have previously held that for the reasoning and conclusions put forth, the second and third respondents are entitled to the relief sought in para  2 of the notice of motion. And I have also said that the second and third respondents do not pursue the relief sought in para 5 of the notice of motion. …

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Notes 1. The present proceedings concern a chieftaincy dispute in the Ovambanderu Community that had arisen on the death of the reigning chief in January 2008. His two sons vied for the position. Having received two applications in terms of the Traditional Authorities Act 25 of 2000 (‘the Act’), the minister appointed a committee to investigate the dispute. The committee recommended to the minister that, according to the customary rules of the community, a child born of a chief ’s marriage (Keharanjo) was senior for purposes of succession to one born out of wedlock (Kilus). The minister accepted this recommendation, but changed his mind later and opted for the committee’s alternative recommendation, namely, that an election be held to determine the late chief ’s successor. 2. Unfortunately, before the election could take place, Keharanjo died. In the present main proceedings, which he had brought before his death, Keharanjo had sought an order that his appointment as the chief of the Ovambanderu Traditional Community was valid and an order reviewing, setting aside and correcting the minister’s decision to hold an election to determine the chieftaincy. The traditional authority and Kilus opposed the main application and simultaneously brought the present counter-application in which they sought an order that the minister (first respondent) should approve the designation of Kilus as chief of the community. 3. Relying on both textual and case-law authorities, the Court discussed the legal duties of public authorities under which they have an obligation to act, as opposed to their legal powers, which give them a discretion whether to act or not. In that regard, administrative bodies and officials have a discretion to determine whether the ‘prescribed objectively determinable facts’ exist. The Court held that once the administrative body or official has decided that the ‘prescribed objectively determinable facts’ exist in the particular case, the body or official has a duty to act, and if the body or official fails or refuses to act, mandamus must issue to compel the body or official to execute its ministerium or prescribed task. 4. In this case the ‘prescribed objectively determinable facts’ that must be found to exist are the requirements in paras  (i) to (vi) of s  5(1) of the Traditional Authorities Act, 2000 (Act No 25 of 2000).

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5. The Court held further that where an Act or subordinate legislation creates an obligation and enforces performance in a specified way, the general rule is that the public authority cannot perform the duty in any other way. 6. Therefore in considering the two applications, the minister had to be satisfied that those facts existed before deciding to act or not. That was the only discretion the minister had in the ministerial approval scheme under s 5(1). If, in the opinion of the minister, an application complied with the section, he had not even a modicum of discretion to decide whether he should approve a designation. 7. The Court explained the phrase ‘prescribed objectively determinable facts’, whose existence imposes a legal duty on the public authority concerned to carry out its ministerium or prescribed task. The requisite of ‘prescribed objectively determinable facts’ was enunciated by Marinus Wiechers in his work, Administrative Law (1985); dated no doubt but still full of great force. 8. The existence or non-existence of the ‘prescribed objectively determinable facts’ determines whether the public authority concerned has a legal duty – as opposed to a discretion – to act. And if those facts existed and the public authority refused or failed to act, mandamus must issue to compel the public authority to execute its ministerium or prescribed task. 9. The Court held that where there has been illegal inaction, by neglect of duty, on the part of the administrative body or official concerned, the one effective remedy available to compel that body’s or that official’s performance is mandamus, a remedy used to prevent breach of duty and injustice.

[58] Municipal Council of Gobabis v Smith 2015 (1) NR 299 (HC) Parker AJ: [1] The applicant council (ie the respondent in the instant counter-application) brought an application by notice of motion for the relief set out in the notice of motion. The respondent Smith (ie the applicant in the instant counter-application) opposed the application and filed an answering affidavit simultaneously with a counter-application that is the subject of the instant proceeding. The council

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(ie the respondent in the counter-application) withdrew the application but had previously moved to oppose the counter-application. For the sake of neatness and clarity, I shall refer to the parties as Smith and the council. Mr Smith is the counterapplicant and the council is the counter-respondent in the present proceedings. …

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[3] On the papers, as I see it, the determination of the counter-application turns on a very short and narrow compass; and it relates primarily to the duties of a public authority, ie an administrative body – to use the words of art 18 of the Namibian Constitution. I should make the point that the council as an administrative body, has a duty, ie an obligation, to act, for ‘[a]s well as illegal action, by excess or abuse of power, there may be illegal inaction, by neglect of duty’. [Emphasis added] See Nguvauva v Minister of Regional and Local Government and Housing and Rural Development (A 254/2010) [2014] NAHCMD 290 (2 October 2014), para  24 (reported as 2015 (1) NR 299 (HC), para 24). Where there has been ‘illegal inaction, by neglect of duty’ on the part of an administrative body or administrative official ‘the one effective remedy available to compel’ the administrative body’s (ie the council’s, in the instant case) ‘performance is mandamus, a remedy used to prevent breach of duty and injustice’. (Nguvauva supra, para 25.) [4] On the papers, I make the following factual findings. Smith made an application on 7 May 2012 for ‘a special consent to operate a brick plant on my property Plot 764 Gobabis’. The council has not acted on the application. The attempt of Mr Kwala, counsel for the council, to persuade the court that there has been no inaction on the part of the applicant was doomed to fail. The letter, entitled ‘Activities Undertaken on Plot 764, Gobabis’ (marked ED6 and attached to the papers filed of record), which Mr Kwala relies on, is not an answer by any stretch of the imagination to Smith’s application. Accordingly, I find that there has been illegal inaction, by neglect of duty, on the part of the council and, therefore, the court is entitled to compel the council’s performance by the issuance of mandamus to prevent both breach of duty by the council and injustice to Smith. Consequently, the counterapplication succeeds; whereupon, I make this order: (a) The applicant (the Municipal Council of Gobabis) must consider the respondent’s (Albertus Nicolas Smith t/a Bertie Smith Contractor Services) application for a special consent to operate a brick plant on property plot 764 Gobabis and inform the said Smith of the outcome of his application not later than 26 December 2014.

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(b) Costs are awarded to Smith, including costs of one instructing counsel and one instructed counsel. Notes 1. In this case [58], applicant local authority brought an application seeking certain relief against respondent, who opposed the relief sought. In a counterapplication, respondent applied for an order compelling the local authority to consider his application for consent to operate a brick plant on his property, having had no response to his application for some six months. The local authority withdrew the main application but opposed the counter-application. It did not file answering papers as it contended that it was only opposing the counter-application on points of law. 2. This case [58] is significant for this reason: for an applicant for mandamus to succeed, they must show that they have a more specific right in law to enforce a duty, the performance of which they ask the aid of the Court to compel by mandamus.

[59]

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Electoral Commission of Namibia v Registrar, High Court of Namibia (A322/2015) [2016] 293 (29 September 2016) Parker AJ: [1] We have before us an application brought on notice of motion (filed on 19 November 2015) wherein the applicant (Electoral Commission of Namibia (ECN)) seeks an order in the following terms: (a) directing the 1st respondent (the registrar of the court) to state a case for the decision of a judge in Case No A 01/2010 and Case No SA 06/2010 within 15 days of the date of the order. (b) costs against any party opposing the application. (c) further and/or alternative relief. …

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[6] … I now proceed to consider the case on the merits, that is, the relief for an order of mandamus.

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[7] The first signpost to look at is the course of events leading to the present application because it has a bearing on the point raised by the 2nd respondent concerning the unreasonable delay in the bringing of the application and the remedy of mandamus sought. The applicant filed notices of review of taxation in terms of rule 48 of the repealed rules of court (now rule 75 of the rules of court) on 26 January 2011. I accept Mr Strydom’s submission, based on authority (ie Ormonde v Buirski, Herbstein & Jacabson 1933 CPD 413), that the party bringing the review remains the dominis litis concerning the review and he or she carries the obligation to ensure that the matter comes before a judge within a reasonable time. If the taxing officer has failed to state a case within a reasonable time for consideration by a judge, it is the burden of the party seeking review to take speedy and prompt steps to have the taxing officer carry out his statutory duty. [8] In the instant case, the applicant brought an application for an order of mandamus after a delay of some five years after the dispute arose. This, on any pan of scale, constitutes an unreasonable delay. See the very recent case of Arandis Power (Pty) Ltd v The President of the Republic of Namibia (A26/2016) [2016] NAHCMD 19 (7 July 2016), relying on the authority of the Supreme Court in Keya v Chief of the Defence Force & Others 2013 (3) NR 770 (SC); and Namibia Grape Growers and Exporters Association & Others v The Ministry of Mines and Energy & Others 2004 NR 194 (SC). And the unreasonableness is of such a kind that the court cannot condone. In any case, the applicant has not given any explanation for the delay. It is therefore not possible for the court to condone the delay. (Keya v Chief of the Defence Force & Others 2013 (3) NR 770 (SC), para 28.) Indeed, in that event, it would be ‘unjudicial, unjust and unreasonable for this court to condone the unreasonable delay in launching the application’. (Peter v Jacobs (A100/2013) [2016] NAHCMD 11 (28 January 2016).) [9] This conclusion takes me to the next level of the enquiry. Has the 2nd respondent suffered prejudice by the delay to bring the application? I hold that where there has been an unreasonable delay to institute such proceedings and the applicant has failed or refused to explain the delay and the court has refused to condone the unreasonable delay, as is the situation in the instant proceeding, the court should not come to the aid of such applicant by looking to see if the unreasonable

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delay has prejudiced the respondent. In any case, Namibia Grape Growers and Exporters Association & Others (supra, at 214H–I) tells us that ‘… prejudice is not a prerequisite before an application can be dismissed on the grounds of unreasonable delay’, but that ‘prejudice is a relevant consideration’. And so, in the instant case, as I have shown in the next paragraph (para 10), the 2nd to 19th respondents are prejudiced. The prejudice has therefore been taken as ‘a relevant consideration’.

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[10] In any case, in the instant proceeding, I hold that the 2nd to 19th respondents are prejudiced. They have been made to sit on a costs order for some five years whose execution they are entitled to, thereby violating their constitutional right to a speedy and just resolution of the dispute, as Mr Strydom submitted. Mr Karsten, the then taxing officer, who conducted the taxation and issued the allocatur, is no longer in the employ of the court. This is the kind of danger that is prejudicial to a respondent when there has been an unreasonable delay in instituting review proceedings to which the Supreme Court made reference in Keya v Chief of the Defence Force & Others supra, para 22, and which should result in the dismissal of the application. [11] The applicant seeks an order of mandamus. It is trite that the remedy of mandamus is discretionary; and so, it ‘may be withheld by the court even if the substantive grounds for the grant of the remedy have been made out’. (Baxter, Administrative Law (1991), pp 712–713.91) Mr Namandje, counsel for the applicant, appeared to submit that the substantive grounds for the granting of the remedy of mandamus have been made out. That may be so; but in virtue of the finding that there has been an unreasonable delay in instituting the application, that the unreasonable delay has not been explained, that the unreasonableness cannot be condoned, and, further, that the unreasonable delay has prejudiced the respondent, I refuse to exercise my discretion in favour of granting the order of mandamus. It follows that the application fails. [12] The preponderance of the foregoing reasoning and conclusions are unaffected by any point on the non-joinder of Mr Karsten raised by the 2nd respondent and any other issues, eg, the fact that this proceeding cannot concern itself with anything that should be done in terms of the rules of the Supreme Court. It serves no purpose to consider them. …

91 Lawrence Baxter (1991). Administrative Law (Third edition). Cape Town: Juta & Co.

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Notes 1. Applicant brought an application to direct the Registrar (taxing officer) of the High Court to state a case for the decision of a judge. Applicant delayed for some five years before instituting proceedings for mandamus. Respondents opposed the application on the basis that there had been an unreasonable delay in bringing the application. 2. On the principle of delay in instituting review application where there is no statutory time limit, see chapter 3, para 5.3.1 (Part A (Text)) and cases [36], [37] and [38]. 3. In this case [59], the Court found the delay to be unreasonable, and that applicant had failed or refused to explain the delay. In the circumstances, the Court held that it would not be possible to condone the unreasonable delay and, indeed, it would be unjudicial, unjust and unreasonable to condone it. 4. This case is important because it underscores the principle that mandamus is a discretionary remedy, one the Court may withhold even if the substantive grounds for granting the remedy have been made out, where, for instance, as is in this case [59], there has been an unreasonable delay in bringing the application and the delay has not been condoned by the Court.

[6 0]

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Tumas Granite CC v Minister of Mines and Energy & Another 2013 (2) NR 383 (HC) Parker AJ: [1] This application comes before the court by way of a notice of motion in which the applicant prays for an order in terms of paras  1, 2, 3 and 4 of the notice of motion. The respondents have moved to reject the application. … [2] The application is basically for mandamus. The matter is set around Namibia’s minerals and concerns an application lodged on 11  March 2011 with the first respondent for a reconnaissance licence. The application was made in terms of s  59(1)(a) of the Minerals (Prospecting and Mining) Act 33 of 1992 (the Act). Having received no response from the first respondent, the applicant made enquiries to the second respondent about the status of the application. There was

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no response; hence the present application. In his answering affidavit the second respondent admits that, indeed, no reply was furnished to the applicant on his application for a reconnaissance licence until the current court application was launched. What is contained in the answering affidavit is instructive and holds the key to determination of this application, which, as I have said previously, is that the first respondent has been brought on a mandamus. The second respondent states in his affidavit: 5. It is admitted that indeed no reply was furnished to the applicant on his application for a reconnaissance licence until the current court application was launched. There is a moratorium on new applications for nuclear fuel group of minerals as per Government Notice, 41 of 2007, a copy of which is attached and marked ‘EIS1’. The Respondents were not, and still are not, in any position to consider the application for a reconnaissance license applied for by the applicant as doing so will be in contravention of the moratorium in place. It will not serve any purpose to consider an application in respect of which a moratorium exists.

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… [4] If this consideration and conclusion are extrapolated to the interpretation and application of s 59(1) of the Act, read with art 18 of the Namibian Constitution, the following conclusions emerge inexorably. The word ‘grant’ in s 59(1) of the Act (which presupposes ‘refuse’ since the minister’s (the first respondent’s) power is discretionary) denotes ‘act’ in art 18 of the Namibian Constitution. It follows that in the instant case – in the second respondent’s own statement in the respondents’ answering affidavit (quoted above), it is undisputed that the first respondent has not done any ‘act’; he has not exercised his statutory discretion, which is to perform the specific statutory duty to either grant or refuse the applicant’s reconnaissance licence application within the meaning of s 59(1) of the Act, and that has resulted in the bringing of this application by an aggrieved party, the applicant. [5] For all the aforegoing and with the greatest deference to Ms Koita, counsel for the respondents, I should say that there is no merit in counsel’s argument that the first respondent has taken action regarding the applicant’s reconnaissance licence application and the applicant cannot complain as he has not taken the so-called decision on review. The evidence on the papers does not account for counsel’s contention that a decision has been taken on the application. Counsel’s argument appears to be predicated on Government Notice No 41 of 2007, entitled ‘Reservation of Area from Prospecting Operations and Mining Operations in

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Respect of Nuclear Fuel Minerals: Minerals (Prospecting and Mining) Act, 1992’; and counsel’s argument takes up the refrain from the above-quoted statement in the respondents’ answering affidavit, namely, ‘There is a moratorium on new applications for nuclear fuel group of minerals as per Government Notice, 41 of 2007 ….’ [6] I have said more than once that the indisputable fact is that the first respondent has failed or refused to carry out his statutory duty under the Act in respect of the applicant’s reconnaissance licence application. In an application for a mandamus, the court is generally not concerned with the reason why the administrative body or administrative official has not carried out its or his or her statutory duty: it is concerned with the allegation that it or he or she has failed or refused to exercise a statutory power and the applicant has been aggrieved by such failure or refusal. And mandamus lies to serve two purposes: (a) to compel the performance of a specific duty; and (b) to remedy the effects of unlawful action already taken. See Lawrence Baxter, Administrative Law (1991) ibid, at pp 690–691; and the cases there cited. For the enquiry I have made previously, it follows that purpose (b) of the Baxter proposition, which I accept as good law, does not apply on the facts of the present case since the first respondent has not taken any action on the applicant’s reconnaissance application. Thus, with respect, I should say in parentheses that item (b) debunks Ms Koita’s argument that a mandamus does not lie to undo what has already been done. In any case, as I have said more than once, the first respondent has not done anything; he has not decided; he has not exercised his discretionary power under the Act; he has failed or refused to perform a specific statutory duty, which, as I have said previously, is to grant or refuse the applicant’s reconnaissance application. In this regard, the point must be signalised that the source of the first respondent’s power is s 59(1) of the Act and not any delegated legislation, including GN No 41 of 2007. [7] In view of what I have stated in para 5 about what the court is concerned with in an application for a mandamus and in para 6 about the purpose of a mandamus, coupled with the fact that I have determined this application on the basis of purpose (a) in Baxter’s exposition, what I have said above in relation to Government Notice No 41 of 2007 is all that I wish to say about that Government Notice. It is my firm view that any opinion I express on the interpretation of Government Notice No 41 of 2007 (which appears to be the reason why, according to the respondents, the first respondent has not taken any action in terms of s 59(1) of the Act) will

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be obiter dicta. I have therefore restrained myself from expressing any such opinion. An exercise in the interpretation and application of GN 41 of 2007 has, accordingly, not become necessary in this proceeding on account of – as I say – the reasoning and conclusions that I have put forth previously. It follows that Black Range Mining (Pty) Ltd v Minister of Mines and Energy & Others NNO case No A305/2009 (unreported), referred to me by Ms Koita and Otjozondu Mining (Pty) Ltd v Minister of Mines and Energy & Another 2007 (2) NR 469 (HC) referred to me by Ms Schneider, are of no assistance on the issue under consideration in the present application. [8] For all these reasons, mandamus should issue, and in terms of para 1 of the notice of motion. For completeness, I should say that the alternative in para  2 (which is an alternative to para  (1)) is not available by virtue of the principle of delegatus non potest delegere: the Act does not give the first respondent the power to delegate his power under s 59(1) of the Act to any administrative body or any other administrative official. Whereupon, I make the following order: (a) The first respondent must not later than 31 January 2013 take a decision on the applicant’s application for a reconnaissance licence, dated 10 March 2011 and lodged with the first respondent on 11 March 2011. (b) The respondents shall jointly and severally pay to the applicant the costs of this application; the one paying, the other to be absolved, and the costs include costs of one instructing counsel and one instructed counsel.

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Notes 1. The matter is set around Namibia’s minerals and concerns an application lodged on 11 March 2011 with first respondent for a reconnaissance licence. The application was made in terms of s 59(1)(a) of the Minerals (Prospecting and Mining) Act, Act No 33 of 1992 (the Act). Having received no response from first respondent, applicant made enquiries to second respondent about the status of their application. There was no response; hence the present application. In his answering affidavit, second respondent admits that, indeed, no reply was furnished to applicant on his application for a reconnaissance licence until the current court application was launched. 2. We saw in case [57] that where there has been illegal inaction, by neglect of duty on the part of an administrative body or official, the one effective remedy

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available to compel that body’s or that official’s performance is mandamus, a remedy used to prevent breach of duty and injustice. Tumas Granite CC v the Minister of Mines and Energy & Another [60] held that mandamus is not concerned with reasons why the administrative body or official in question has not carried out its or their duty: it is concerned with the allegation that the administrative body or official failed or refused to perform its or their duty. It held further that mandamus lies to serve two purposes: (i) to compel performance of a particular duty and (ii) to remedy the effects of an unlawful action already taken.

[61]

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Hughes et al. v Henderson et al. (1964) 32 DLR (2d) 742 (Manitoba QB) This is an application for mandamus. The applicants sought an order of mandamus directing the respondents to take necessary action to compel specific performance of an agreement between the City of Portage la Prairie and H Adelman Limited for the purchase of city-owned property by H Adelman Ltd or such other order as may be just. The respondents were the Mayor and aldermen of the City of Portage la Prairie and the City of Portage la Prairie. The applicants based their application on the grounds that the respondents had been negligent in the performance of their duties as members of the Council of the City of Portage la Prairie and had exercised their discretion improperly and for motives detrimental to the ratepayers of the City of Portage la Prairie for not compelling the specific performance or rescission of the said agreement. Ferguson J: This is an originating notice of motion whereby the applicants seek an order of mandamus directing the respondents, being respectively the mayor and aldermen of the City of Portage la Prairie, and the City of Portage la Prairie, to take necessary action to compel specific performance of an agreement between the City of Portage la Prairie and H Adelman Ltd, as referred to in an application for the purchase of city-owned property by H Adelman Ltd, which application was accepted by the City of Portage la Prairie on June 5, 1955, or for such other order as may be

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just, on the grounds that the respondents have been negligent in the performance of their duties as members of the council and the City of Portage la Prairie and have exercised their discretion improperly and for the motives detrimental to the ratepayers of the City of Portage la Prairie in not compelling the specific performance or rescission of the said agreement. Counsel for the respondents raised four preliminary objections to the granting of the order. I will deal with these seriatim: As to the first objection: This objection is that the mayor and aldermen should not be parties respondent in this application … … The third objection was that the applicants had failed to show a breach of a statutory duty. In Rogers, The Law of Canadian Municipal Corporations, Vol 2,92 it is stated at p 1237: The applicant must show that the council has refused to perform a statutory duty and, unless it is under a statutory obligation to exercise the power the nonperformance of which is complained of, a mandamus will not be granted. The duty must be of a public and not of a private character. The remedy will not be granted where the statutory power conferred is a discretionary one which the council may or may not exercise. Only in a clear case will the court interfere with the proceedings of a deliberative body such as a municipal council(s) and it will not force the council to make a decision.

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… In Halsbury ibid,93 at p 751, it is stated: In order, however, for a writ of mandamus to issue for the enforcement of a statutory right, it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion, and if a power or discretion only, as distinct from a duty, exists a writ of mandamus will not be issued by the Court.

…

92 Ian MacF Rogers. The Law of Canadian Municipal Corporations (Volumes 1 and 2) (Second edition, 1988). Toronto: Carswell/Thomson Reuters. 93 Halsbury’s Laws of England (Vol 1) (Fourth edition, 1973). Lord Simons (ed).

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Referring again to Rogers94 – see Vol 1, p 357, where it is stated: Where the legislature has imposed an obligation upon a municipal corporation to exercise a particular power for the benefit either of the public at large or of a particular class of persons, the exercise of such power may be enforced by application to the courts. It must be apparent that it was the intention of the legislature to impose an absolute duty on the corporation leaving it no discretion as to the expedience or necessity for its exercise.

A number of cases are cited by the applicants in respect of this and the preceding preliminary objections. On checking these I find that what seems to have been overlooked is that this is not an action by or against a municipality or town, nor is it within the class of actions wherein intervenors have been allowed, but, as above stated, in an application to compel the municipality to take action in the Courts on a contract it has made. The question, then, is: What statutory duty has the council refused to perform? I can find none. I suggest that if the applicants are not satisfied with the manner in which the mayor and aldermen of the city have acted in this particular matter, their remedy lies through the polls. In view of the above and in the exercise of my discretion I dismiss the application with costs. In view of the fact that one counsel represented all of the respondents there will be one set of costs only.

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Notes 1. This is an application for mandamus. Applicants sought an order of mandamus directing the respondents to take the necessary action to compel specific performance of an agreement between the City of Portage la Prairie and H Adelman Limited for the purchase of a city-owned property by H Adelman Ltd or such other order as may be just. Respondents were the Mayor and aldermen of the City of Portage la Prairie and the City of Portage la Prairie itself. Applicants based their application on the grounds that respondents had been negligent in the performance of their duties as members of the Council of the City of Portage la Prairie and had exercised their discretion improperly and for motives detrimental to the ratepayers of the City of Portage la Prairie for not compelling the specific performance or rescission of the said agreement.

94 Ibid.

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2. This case [61] is significant for the following propositions of law on mandamus: (a) The legal right to enforce the performance of a public duty must repose in applicant themself, and applicant must show the existence of such right, and the duty must be owed to applicant apart from the public. (b) Mandamus will not lie to compel an administrative body or official to institute legal proceedings against a third person for contravention of a by-law, a regulation or an Act.

6.2.3.2.2 Mandament van spolie (spoliation)

A. Text The object of the remedy of mandament van spolie (spoliation) is to restore a thing to the possession of a person who has been illicitly deprived of their peaceful and undisturbed possession of the thing. As to which requisites an applicant for the remedy must establish in order to succeed, the Court said:

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[2] It is trite that an applicant for spoliation order must first and foremost establish that he or she was in peaceful and undisturbed possession of the thing in question at the time he or she was illicitly deprived of such possession. That is all that an applicant must establish in order to succeed. (Kuiiri & Another v Kandjoze & Others 2007 (2) NR 749 (HC), para  9.) And such possession is not merely ‘possession’ simpliciter. It is ‘peaceful and undisturbed possession’.95

The remedy is based on the principle spoliatus ante omnia restituendus est. Thus, in considering an application for the remedy of mandament van spolie, the Court is not concerned with ownership of the property or who in law is entitled to the thing that is the subject of the act of spoliation. Maritz JA stated in Kuiiri & Another v Kandjoze & Others: [3] Even though the mandament is therefore not intended to bring about the ultimate determination of the competing proprietary or possessory claims of the litigants to the things in contention, it nevertheless constitutes a final determination of the litigants’ ‘immediate right’ to possess them for the time being. In this regard, Greenberg JA noted in Nienaber v Stuckey 1946 AD 1049 that: (a) Although a spoliation order does not decide what, apart from possession, the 95 Witvlei Meat (Pty) Ltd v Agri Bank of Namibia 2016 (2) NR 547 (HC).

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rights of the parties to the property spoliated were before the act of spoliation and merely orders that the status quo be restored, it is to that extent a final order.

Consequently, it falls to be noted for the purposes of the approach to be followed in this appeal that a litigant who is seeking a spoliation order bears the burden to prove the facts necessary for the success of the application on a balance of probabilities.96 Commendably and significantly, of the 12 cases on spoliation that the High Court dealt with between March 1990 and March 2017, only two involved administrative bodies or officials as the spoliatus.97 B. Cases

[62] Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia 2016 (2) NR 547 (HC), para 1 …

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Parker AJ: [1] By notice of motion the applicant brought this application and prays for the relief set out in the notice of motion, that is, a spoliation order. It is an order to restore possession of property consisting of abattoir facilities situate on Portion 38 of Farm Okatjirute No 155, Witvlei Town and Townland, situated in the village of Witvlei, registration division ‘L’ (‘the property’). The respondent has moved to reject the application. [2] It is trite that an applicant for spoliation order must first and foremost establish that he or she was in peaceful and undisturbed possession of the thing in question at the time he or she was illicitly deprived of such possession. That is all that an applicant must establish in order to succeed. (Kuiiri & Another v Kandjoze & Others 2007 (2) NR 747 (HC), para  9.) And such possession is not merely ‘possession’ simpliciter: it is ‘peaceful and undisturbed possession’. (Kuiiri (SC), 96 2009 (2) NR 447 (SC), para 3. 97 Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia; Uvhungu-Vhungu Farm Development CC v Minister of Agriculture, Water and Forestry 2009 (1) NR 89 (HC).

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loc cit, applying a dictum in Mbangi & Others v Dobonsville City Council 1991 (2) SA 330 (W), at 335H–I. And as Maritz, JA, put it in Kuiiri (SC), para 2.) The mandament, it was held, may be granted: If the claimant has been unlawfully deprived of the possession of a thing, it does not avail the spoliator to assert that he is entitled to be in possession by virtue of, eg, ownership, and that the claimant has no title thereto. This is so because the philosophy underlying the law of spoliation is that no man should be allowed to take the law into his own hands, and that conduct conducive to a breach of the peace should be discouraged.

[3] Furthermore, in spoliation proceedings the ‘peaceful and undisturbed possession’ are not just any measure of possession – however technical, remote, tenuous or brief – that will suffice: the court must be satisfied, regard being had to the nature of the thing dispossessed, that the despoiled possession of the thing was sufficiently stable and durable to constitute ‘peaceful and undisturbed possession’. (See Kuiiri (SC), para 4, per Maritz, JA.)

And it should be remembered that

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[E]ven though the mandament van spolie is therefore not intended to bring about the ultimate determination of the competing proprietary or possessory claims of the litigants to the things in contention, it nevertheless constitutes a final determination of the litigants’ ‘immediate right’ to possess them for the time being. (Kuiiri (SC), para 3.)

[4] I now proceed to apply the aforegoing trite principles to the relevant facts of the instant case; that is, facts having probative value in the determination of the present application. Mr Ntinda, counsel for the respondent, contends that there is genuine dispute of facts, and sets out the following queries: (a) Whether or not by 5 August 2015 the applicant was in undisturbed in possession and occupation of the property. (b) Whether or not, as alleged by the respondent, the applicant abandoned the property shortly after 26 June 2015. (c) Whether or not the applicant and the respondent had joint possession and occupation up to 26 June 2015. [5] After submitting that these aspects constitute dispute of facts, Mr Ntinda concluded that ‘this court will be unable to determine the matter on affidavits as the

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material requisites of the relief sought are materially disputed by the respondent’. Counsel continued the applicant’s perilous position is aggravated by the fact that the applicant itself alleges that the Deputy Sheriff was the person that took possession and occupation of the premises except that there is a dispute as to whether he did that shortly after 26 June 2015 or on 4 or 5 August 2015.

[6] If there is a genuine, that is real, dispute of fact that is material in the determination of the application, the court will have to resolve them by applying the principles and approaches that are now entrenched in our practice for resolving such dispute. In this regard, I cannot do any better than rehearse what the court stated in Rally for Democracy & Others v Electoral Commission 2013 (2) NR 390 (HC):

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[226] It was settled in the Republican Party case that in s 109 applications, which are motion proceedings, the Plascon-Evans rule applies (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)). In Mostert v The Minister of Justice 2003 NR 11 (SC), at 21G–I, Strydom, ACJ, explained the rule thus: These allegations are denied by the Permanent Secretary and she explained in detail how it came about that the appellant was transferred from Gobabis to Oshakati. In my opinion a genuine dispute of fact was raised by the denial of the Permanent Secretary and, as the dispute was not referred to evidence, the principles, applied in cases such as Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C), at 235E–G and Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), must be followed. It follows therefore that once a genuine dispute of fact was raised, which was not referred to evidence, the Court is bound to accept the version of the respondent and facts admitted by the respondent, contained in the appellant’s affidavit. [Emphasis added] [227] It was said by Corbett JA in the Plascon-Evans case supra (at 634–635): In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact … If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under rule 6(5)(g) … and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof …. [228] How does a genuine dispute of fact arise? In the Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T), at 1163 Murray, AJP, stated thus:

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It may be desirable to indicate the principal ways in which a dispute of fact arises. The clearest instance is, of course, (a) when the respondent denies all the material allegations made by the various deponents on the applicant’s behalf, and produces or will produce, positive evidence by deponents or witnesses to the contrary. He may have witnesses who are not presently available or who, though averse to making an affidavit, would give evidence viva voce if subpoenaed. There are however other cases to consider. The respondent may (b) admit the applicant’s affidavit evidence but allege other facts which the applicant disputes. Or (c) he may concede that he has no knowledge of the main facts stated by the applicant, but may deny them, putting the applicant to the proof …. [229] As the South African Supreme Court of Appeal recently said in National Director of Public Prosecutions v Zuma supra:

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[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s … affidavits, which have been admitted by the respondent …, together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers. The court below did not have regard to these propositions and instead decided the case on probabilities without rejecting the [respondent’s] version.

[7] Guided by the aforegoing principles and approaches, I make the following important factual findings and conclusions thereanent. The respondent avers that the applicant abandoned the property on 26 June 2015 because, according to the respondent, a ‘Deed of Purchase’, which the applicant and the respondent had concluded for the sale of the property to the applicant, ‘fell away’; and so, according to the respondent, the respondent ‘took over the property which was at the time abandoned by the applicant and not occupied nor operational at all’. The applicant denies that it abandoned the property. [8] The respondent admits that ‘the applicant was at some point up to 26 June 2015 in possession of the property’. If the property had been abandoned and

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the applicant had ceased all operations as at 27 June 2015, it is inexplicable, as Mr Jones asked rhetorically, why the respondent, a parastatal, would leave the property unguided and unsecured and unoccupied, and leave it to the mercy of thieves and vandals from 27 June 2015 to 5 August 2015 before seeing the need to secure the property against theft and vandals? Furthermore, if the applicant had abandoned the property and ceased all its operations and it was unoccupied, why would the respondent need ‘to fully took (take) over the occupation and possession during August 2015’? And the respondent in another breath avers that it was in joint possession of the property with the applicant because the applicant is the lessee of the property and the respondent is the owner of the property. Furthermore, if the applicant had abandoned the property on 26 June 2015 and ceased all operations there and the property was unoccupied, as the respondent avers, why would the respondent, through a deputy sheriff who was not armed with an order of the court, remove all locks and replace them with new ones? And what is more; if, as the respondent avers, the applicant had long abandoned the property and ceased all operations at the property, then as a matter of common sense, the applicant’s employees and security guards employed by the applicant to protect the property would not be at the property. But they were. The deputy sheriff had to chase them away from the property, as I have found. [9] The evidence – which I accept – is that the deputy sheriff, acting under the behest and instructions of the respondent and not by an order of court, as I have said previously, chased the employees and the security guards away from the premises, and removed the locks that the applicant had put in place there and replaced them with new ones. If the applicant had long abandoned the property and ceased all operations at the property, why would the deputy sheriff find the need to chase the employees and the security guards away from the property and keep them away by changing the locks there and replacing them with new ones? [10] Additionally, the respondent avers that ‘prior to that (ie 5  August 2015) the respondent always had unhindered right to enter the premises (of the property)’. This adds no weight – none at all – to the respondent’s contention. The fact that before 5 August 2015 the respondent exercised its common-law right, which ‘an owner of property usually enjoys’ (see Kuiiri v Kandjoze (SC), para 18), does not and cannot detract from the fact that the applicant’s version that it had undisturbed and peaceful possession of the property before 5 August 2015 should be accepted.

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In any case, ‘[T]he spoliation remedy is available even where (as here) the applicant was not the sole possessor but in joint possession with others. He need not prove exclusive possession’ (see Oberholster v Wolfaardt & Others 2010 (1) NR 293 (HC); particularly where the other possessor is, as in the instant case, the owner of the property (ie the lessor) and the applicant is the lessee.

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[11] Having applied the principles and approaches for resolving dispute of fact in motion proceedings discussed previously in the light of facts I have found to exist, I reject the respondent’s version that applicant was not in peaceful and undisturbed possession of the property as at 5  August 2015 when the respondent illicitly deprived the applicant of such possession – through the judicially unauthorized shrieval act of the deputy sheriff. The deputy sheriff is not a party to the dispute; and so, he has not been cited. There is nothing untoward in that. The deputy sheriff acted as an agent of the respondent. No order is sought against the deputy sheriff. It follows inexorably that an order made in these proceedings cannot be brutum fulmen as respects the deputy sheriff, as the respondent appears to suggest. [12] It, therefore, turns on nothing for the respondent to contend that ‘what happened in (on 5) August 2015 was simply the Deputy Sheriff, in his official capacity, taking over the control and occupation of the property for safety from the respondent’. To start with, as I have found previously, the deputy sheriff was not armed with an order of the Court, and none was placed before the Court. I would therefore conclude that the deputy sheriff was acting as an agent of the respondent, and not as an officer of the Court – even if he pretended to be wearing robes of officialdom – when, on the instructions, and at the behest, of the respondent, his principal, he illicitly deprived the applicant of its peaceful and undisturbed possession of the property. The act of the deputy sheriff was that of his principal, the respondent. [13] In all this, it must be remembered – When people commit acts of spoliation by taking the law into their own hands, they must not be disappointed if they find that Courts of law take a serious view of their conduct. The principle of law is: Spoliatus ante omnia restituendus est. If this principle means anything it means that before the Court will allow any enquiry into the ultimate rights of the parties the property which is the subject of the act of spoliation must be restored, to the person from whom it was taken, irrespective of the question as to who is in law entitled to be in possession of such property. The reason for this very drastic and firm rule is plain and obvious. The general

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maintenance of law and order is of infinitely greater importance than mere rights of particular individuals to recover possession of their property. [Greyling v Estate Pretorius 1947 (3) SA 514 (W), at 516–517.]

[14] Based on these reasons, I conclude that applicant has established spoliation of the property by the respondent. The ‘general maintenance of law and order is of infinitely greater important than the mere rights’ of the respondent ‘to recover possession of their property’. (Greyling supra.) Accordingly, the application succeeds: a spoliation order should be granted against the respondent. … [16] In the result, I make the following order: (1) The respondent shall not later than 12  May 2016 restore forthwith to the respondent possession ante omnia of the property, comprising the abattoir facilities situated on Portion 38 of the Farm Okatjirute No 155, Witvlei Town and Townland, situated in the village of Witvlei (Registration Division ‘L’) (‘the property’). (2) If the respondent fails or refuses to comply with the order in paragraph (1), the deputy sheriff for the district of Gobabis is hereby directed and authorised to do all that is necessary and required, including the breaking of any locks securing the property, to restore possession of the property to the applicant.

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… Notes 1. Applicant qua lessee took possession of the property (an abattoir) and occupied it. In the course of events, while applicant was still in possession, applicant and respondent, an administrative body, entered into a ‘Deed of Purchase’ for the sale of the property to applicant. As at 26  June 2015, applicant had failed to satisfy a material suspensive condition but continued to occupy the property. On 5 August 2015, a deputy sheriff – not armed with an order of the Court – chased applicant’s employees and security guards from the property. Furthermore, he removed all the locks and replaced them with new ones. Applicant instituted proceedings for the restoration of its possession of the property in question.

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U N L AW F U L A N D I N VA L I D A DM I N IST R AT I V E AC T ION

2. The judgment in this case [62] provided an examination of the two interrelated requisites that an applicant must satisfy in order to succeed in a spoliation application. 3. Furthermore, the Court explained the degree of possession that would constitute peaceful and undisturbed possession for the purposes of mandament van spolie. 4. The Court explained further the objective of mandament van spolie and the purpose of the remedy, including what the remedy is not for.

[63] Uvhungu-Vhungu Farm Development CC v Minister of Agriculture, Water & Forestry 2009 (1) NR 89 (HC) Swanepoel AJ: [1] The parties are engaged in legal battle. The first salvo was fired when the respondent brought an urgent application against the present applicant on 8 January 2009 for the following relief:

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… 2. Declaring the agreement between the Ministry of Agriculture, Water and Forestry and respondent dated 23 July 2003 duly cancelled, alternatively, ordering that such agreement is herewith cancelled; 3. Ordering the respondent to hand over custody and control of the UvhunguVhungu project, situated in Rundu, Okavango region to the applicant; 4. Ordering the respondent to vacate the Uvhungu-Vhungu Project; … [9] It is trite law that an applicant in an application for a mandament van spolie only need prove: (a) that it was in undisturbed peaceful possession; and (b) that it was deprived of this possession. Compare in this regard the dictum of Van Blerk JA in Yeko v Qana 1973 (4) SA 735 (A), where the following is said:

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All the spoliatus has to prove, is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted. [Compare also Ruch v Van As 1996 NR 345 (HC), at 352A and Kuiiri & Another v Kandjoze & Others 2007 (2) NR 749 (HC), at 751G.]

[20] It is well established that the merits underlining the actual possession and the underlying right to do so are irrelevant for the purpose of spoliation proceedings. See Ruch v Van As supra, at 351I–J. [21] In the event that I am wrong in my finding that it is not necessary to have regard to the agreement between the parties (together with the annexures thereto) at this stage of the proceedings, I now deal with the agreement. [22] In the preamble the following is set out as an introduction and framework/ understanding upon which the agreement was entered into: THE MINISTRY being mindful of The Institutional and Management Model for State Owned Irrigation Projects; THE MINISTRY being desirous of obtaining and maintaining the services of the Service Provider in regard to the management and related activities of and pertaining to the Uvhungu-Vhungu Agricultural Project;

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THE SERVICE PROVIDER being amicable to concluding an agreement with the Ministry in regards thereto.

[23] Nowhere in the agreement could I find any reference to an ‘employer/ employee and/or principal/agent relationship’ as submitted by Mr Arendse, or to a partnership as alleged in para 10.1 of the answering affidavit, where it is inter alia stated by the permanent secretary that: 10.1 The applicant and the Government of the Republic of Namibia through the Ministry of Agriculture, Water and Rural Development, as it then was (now the Ministry of Agriculture, Water and Forestry) are partners in the management agreement with clearly defined roles and functions. The letter annexure CL2 to the founding affidavit was written within the context of the management agreement and in the spirit of partnership. [Emphasis added]

[24] There may be some merit in this. But even then the applicant was entitled in terms thereof to occupy the land so as to work it and had to do so with its workforce for its share of the profits. It is common cause that it did occupy the land and had its own workforce and in this regard even if the respondent was a partner,

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the respondent was not entitled to interfere with the undisturbed possession of the applicant without recourse to the law. This amounts to spoliation. [Compare LAWSA Vol 27, paras  67–68, 74 and the authorities cited there in footnote 16.98] [25] The only remote resemblance of an employer/employee relationship is the heading of clause 9 of the agreement which reads ‘remuneration of the SERVICE provider’, which is of no assistance as clause 17.6 of the agreement stipulates that same may not be used in interpreting the agreement. [26] Neither could I find any right or entitlement in favour of the respondent to take over all of the management of the farm without due process of law. … [30] It is trite law that an applicant must have an interest in the spoliated matter before he/it can approach a court for spoliatory relief.

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[31] Apart from the profit-sharing interest of the applicant in the project, I also find that it had possession of the farm which, in the language of the Yeko v Qana matter supra warrants the protection accorded by the remedy for spoliation. That is its interest of not being at risk against any claim by any one or more of its own employees if their employment agreements are not kept in place for the duration of their contracts with the applicant. In this regard it is of note that the permanent secretary in his letter of takeover of the project explicitly states: Please take note that even though this Ministry will consider employing some of the existing project employees, I am not responsible for any obligations you have with them.

What would the position ex hypothesi be if none of the present employees wishes to work for the respondent, but wishes to remain in the employment of the applicant whose management and contract of the farm had been taken over? [32] The question of interim relief has not been dealt with in the heads of argument nor has it been argued by Mr Arendse. I am, however, satisfied that the applicant has made out a case for all the relief sought. The following orders are made:

98 WA Joubert and TJ Scott (eds) (1987). The Laws of South Africa (LAWSA) (Volume 27: From ‘Things’ to ‘Time Sharing’). Durban: Butterworths.

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1.1 That the non-compliance with the rules and time periods of the honourable court be condoned and that the matter be heard on an urgent basis; 1.2 That pending the final outcome of the action for eviction instituted by the respondent against the applicant in this honourable court under case No T (I) 1332/2009: 1.2.1 the respondent vacate the farm known as Uvhungu-Vhungu and relinquish possession of the land, improvements and equipment thereon thereby restoring the status quo ante as at 20 May 2009; 1.2.2 the respondent be interdicted from interfering with the occupation and possession by the applicant of the farm Uvhungu-Vhungu and the improvements and equipment thereon; 1.3 That the respondent pays the costs of this application for one instructing and one instructed counsel on the scale as between legal practitioner and client.

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Notes 1. Applicant was the occupier of a farm in terms of an agreement under the Communal Land Reform Act No 5 of 2002. It did not own the farm. The aim of the scheme, which was embodied in the agreement, was to grant employment to landless and unemployed people, who would have a share of the profits. Applicant was neither an agent nor an employee of respondent, but was, inter alia, responsible for the remuneration and welfare of those who worked on the farm. 2. Respondent had instituted an action to evict applicant from the farm, but before the case was finalised, of its own accord, respondent took possession of the farm. The present application was for a mandament van spolie against respondent. 3. This case [63] is important for the proposition that exclusive possession is not a requirement of mandament van spolie, and, further, that the merits underlying the actual possession and the underlying right to do so are irrelevant for the purposes of spoliation proceedings.

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Christinaeus, P. Practicarum questionum rerumque in Supremus Belgarum Curiis actarum et obseruatarum decisiones, Vol 2, dec 194, sec 410 (Antwerp), 1671. Cockrell, A. ‘“Can You Paradigm?” – Another Perspective on the Public Law/Private Law Divide’. Acta Juridica. Cape Town: Juta & Co and Faculty of Law, University of Cape Town, pp 227–247, 1993. Concise Oxford Dictionary. 11th ed. Oxford: Oxford University Press, 2008. Corder, Hugh. ‘Comparing Administrative Justice across the Commonwealth: A First Scan’. In Hugh Corder (ed). Comparing Administrative Justice across the Commonwealth. Cape Town: Juta & Co, pp 1–22, 2006. Denning, MR, The Rt Hon Lord. The Discipline of Law. London: Butterworths, 1979. De Smith, SA, Lord Woolf and Jeffery Jowell. Judicial Review of Administrative Action. 5th ed. London: Sweet & Maxwell, 1995. Devenish, GE. Interpretation of Statutes. 2nd imp. Cape Town: Juta & Co, 1996.

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Halsbury’s Statutes of England (Volume XXV). 2nd ed. Burrows (ed). London, 1951. Herbstein, J, L de V van Winsen, AC Cilliers and C Loots. The Civil Practice of the Supreme Court of South Africa. 4th ed. Cape Town: Juta & Co, 1997. Hlophe, John. ‘Legitimate Expectation and Natural Justice: English, Australian and South African Law’. South African Law Journal, pp 165–185, 1987. Hoexter, Cora. Administrative Law in South Africa. Cape Town: Juta & Co, 2007. Joubert, WA and TJ Scott (eds). The Laws of South Africa. (Volume 27: From ‘Things’ to ‘Time Sharing’). Durban: Butterworths, paras 67–68, 74, 1987. Langan, Peter St. J and Peter Benson Maxwell. Maxwell on the Interpretation of Statutes. 12th ed. London: Sweet & Maxwell, 1969.

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Wade, Sir William and Christopher Forsyth. Administrative Law. 7th ed. Oxford: Clarendon Press, 1994. Wessels, Sir Johannes Wilhelmus. History of the Roman-Dutch Law. Grahamstown: African Book Co, 1908. Wiechers, Marinus. Administrative Law. Translated by Gretchen Carpenter. Durban: Butterworths, 1985. Willis, John. ‘Statutory Interpretation in a Nutshell’. Canadian Bar Review, Vol 16, pp 1–16, 1938 (quoted in Leo D Barry. Administrative Law: Cases and Materials (Volume 1). Halifax: Dalhousie Law School, 1978). Willis, John. ‘Administrative Law and the British American Act’. Harvard Law Review, Vol 53, pp 1–274, 1939 (quoted in Leo D Barry, Administrative Law: Cases and Materials. Halifax: Dalhousie University Law School, 1979). Zamir, Itzhak. The Declaratory Judgment. London: Sweet & Maxwell, 1986.

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INDE X

abuse of discretion, 112, 119, 121, 135–6 ground of review, 119, 121, 136 mala fide, 109, 138, 169, 199, 311–16 unreasonableness, 60, 129, 136, 411 actio popularis, 80–90 administrative action correcting, 333–67, 384, 398, 406 definition, 22–39 fair vs reasonable, 108, 129 fairness and reasonableness, 22, 31, 104, 122, 127 judicial control of, 8, 9, 21, 42, 319, 329, 331 meaning of and considerations, 24, 28, 36 reasons for, must be stated, 103–7, 112 remedy to challenge unlawful and/or invalid, 367 unlawful and invalid, consequences and remedies, 316–67 unlawfulness or invalidity of, 14, 317–430 void vs voidable, 317–20 administrative bodies and officials common-law grounds for judicial review, 118–218, 385–6 constitutional grounds for judicial review, 118–218, 385–6 delegation, abdication and surrender of power, 102, 345–9 identification of, 12 must state reasons for actions, 103–7, 112 and public authorities, equivalent, 2 and tribunals distinguished, 26 administrative law and constitutional law, distinguished, 3 defined, 1–7 judicial control, 8, 9, 21, 42, 319, 329, 331 public administration and public management, 1–9, 126, 164, 363 sources of, 4 subject-matter of judicial review, 7–9 aggrieved person, 20, 25, 30, 76–7, 104, 108, 111–2, 243, 295, 306, 318–20, 329–31, 367, 383, 395 American law and habeas corpus, 84 appeal and review distinguished, 14 applicant in judicial review proceedings, 18 Aristotle, 1 artificial person institution of judicial riview proceedings on behalf of, 233

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audi alteram partem, 26, 104, 121–4, 150–2, 162, 165–8, 193–203, 211, 286, 320–5, 334–6, 339–40, 354–5 Australia, 125, 194, 196 Baxter requisites, 155, 297 bias disqualifying, 209 rule against, 211 test for, 206–9 bureaucratic executive, 2, 24, 40

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Canada, 6–7, 111, 122, 168, 177, 181–2, 394 certiorari, 268–9, 324, 331–2, 368, 373–7, 381, 383 common law as basis for judicial review, 118 taking into account irrelevant or extraneous facts, 109 Commonwealth countries, 2–4, 6 constitutional law and administrative law, distinguished, 3 focus of, 4 declaration remedy of, 367–383 declaratory order discretionary, 368 and order setting aside administrative action not mutually exclusive, 331–3, 368, 383 delay, 220, 229–32, 243–73, 347, 351, 395, 410–12 delegatus non potest delegere, 348, 415 de libero homine exhibendo, 80, 83, 86, 384, 387, 393 Delphic response, 256 discretion absolute and guided, 49, 157 concept of, 49, 54, 160 fair vs unreasonable, 142 free and circumscribed, 49 to perform duty or not, 49–67, 82 discretionary power to act abuse of, 65, 112, 119, 121, 135–6 delegation of, 91 and duty to act, contrasted, 49 exercise of, 50, 248 fettering of, 68, 70–5 duty performance or non-performance of, 49, 50, 65–8, 82, 132, 151, 394–6, 404–19 English law, 83, 122–9, 187–8, 195, 207, 323, 326, 384

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I N DE X

error of law reviewability of, 135 express statutory authority, 22–3, 334 fairness, 8, 22–3, 103–7, 114, 119, 121, 124, 126–9, 146, 167, 171–2, 186, 188, 202, 210 grounds for judicial review common-law and constitutional, 25–6, 118, 320, 386 irrelevant or extraneous considerations, 50, 57, 107, 135, 156, 162 reasonableness, 11, 58, 119, 127,129, 144–5, 151, 155, 161 unreasonableness, 119, 129, 136, 142, 149, 151, 410–1 habeas corpus, 83–4 High Court of Namibia, 7 inherent jurisdiction to review, 10, 138, 367 inherent power of, in judicial review, 10

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inferior courts, 11, 160 interpretation of statutes, 223–4 judicial control, 8, 9, 21, 42, 319, 329, 331 judicial review of administrative action by administrative bodies and officials, 4, 10–20, 42–3, 331–94 in terms of art 18 of the Namibian Constitution, 10, 22, 24, 90, 104, 320, 329 categories of, 11 peremptory for applicant to join and cite correct administrative body or official, 274 principles of, 3 privative statutory provisions ousting, 259, 270 remedy of declaration, 144, 367, 374 scope, 21–41 statutory time limit for instituting proceedings, 259 judicial review proceedings peremptory for applicant to join and cite correct administrative body or official, 274–8 legitimate expectation doctrine/principle, 124–6 limitation clause, 259, 260, 269 and an ouster clause, contrasted, 270 locus standi (in judicio), 77, 88, 220 of natural person instituting proceedings on behalf of artificial person, 232 and violation of constitutional rights, 76 mandamus discretionary nature of, as remedy, 411, 412

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purpose of, 414 Montesquieu, 2 motion proceedings nature of, 423 Namibian Constitution art 18, 10–1, 21–34, 41, 43, 54, 76, 90, 103–8, 112–5, 118–21, 137, 150–6, 159, 161, 170, 202, 329 art 25, 76, 104, 106, 118, 329–31, 343 natural justice disqualifying bias rule, 126 doctrine/principle of legitimate expectation, 122, 166 fairness, 128

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Ombudsman functions and duties in terms of the Constitution, 76 judicial control of administrative action, 331 not a tribunal in Namibia, 329, 330 as parens patriae, 331 power to investigate and assist aggrieved persons, 331 omnia praesumuntur rite esse acta, 115 pacta sunt servanda, 70, 73, 75 parastatals subject to judicial review, 27 peremptory meaning of, 134, 217 popularis actio, 78–80 prescribed objectively determinable facts, 50, 62–4, 67, 400–1, 403, 406–7 prima facie, 332, 374, 387–91 public policy, 2, 3 public–private partnership arrangements, 28, 29 reasonableness grounds for judicial review, 154 record of proceedings judicial review in, 281–3, 288 meaning of, 281 remedies for unlawful and invalid administrative action mandamus, 395, 396, 405, 419 setting aside (certiorari or quashing), 331, 332, 368, 374 review and appeal distinguished, 14 rule of law, 4, 8–9, 69–70, 90, 359–65 Rules of Court rule 3, 291

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I N DE X

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rule 6, 216, 218, 224, 294, 422 rule 24, 289 rule 28, 288, 290–2, 294–5 rule 32, 289 rule 35, 290–2, 295 rule 40, 289 rule 41, 289 rule 48, 289, 410 rule 50, 289 rule 53, 113, 114, 224, 227, 230–1 rule 61, 221–2, 226–7 rule 64, 289 rule 65, 219, 222–7, 289 rule 69, 289 rule 70, 288–91, 294 rule 72, 385 rule 75, 410 rule 76, 219, 221–7, 274–83, 288, 331 rule 77, 219, 221 rule 78, 223–4 rule 79, 223–4 rule 138, 290–1 separation of powers, 2, 40, 350, 362 South Africa, 4 6, 8, 28, 30, 32, 126, 166, 194, 198, 201, 227, 273, 277, 284–5 Southern African Development Community (SADC), 4, 8 spoliatus ante omnia restituendus est, 419, 425 statutory limitation clauses Constitution-compliant, 273 subordinate legislation, 3, 4, 9, 100, 294, 326–7, 407 Supreme Court of Namibia, 7 Thesiger LJ, 1 time limit for instituting judicial review proceedings absence of, 243 existence of, 259 trias politica, 2, 40 tribunal(s) and administrative bodies and officials distinguished, 26 arbitration, 330 electoral, 330 Land, 330 Ombudsman not (in Namibia), 330 Tax, 330

Administrative Law: Cases and Materials, University of Namibia Press, 2019. ProQuest Ebook Central,

439

440

A DM I N IST R AT I V E L AW: C A SE S A N D M AT E R I A L S

ultra vires doctrine or principle of, 9, 42–3, 117, 120, 132, 317, 320 as ground of review, 9, 21, 144 and legality, 23, 42–3, 97, 118, 317–9, 384 unfairness, 145, 147, 334 unlawful acts void or voidable, 321, 328 unreasonable meaning of, 142 unreasonableness grounds for judicial review, 119, 129, 136, 142, 149, 151, 410–1 meaning of, 131

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void or voidable 317, 319 general principles, 327

Administrative Law: Cases and Materials, University of Namibia Press, 2019. ProQuest Ebook Central,

to the legal literature on Namibian law. It will contribute significantly to the development of Namibia’s jurisprudence. Experienced author and judge of the Namibian High Court, Dr Collins Parker discusses key principles of administrative law applicable to Namibia under the common law as developed and broadened by article 18 of the Namibian Constitution. To support propositions of law discussed in the text, he presents carefully selected extracts of judgments delivered in important cases. The book offers a rich source of judicial pronouncements as precedent that are not readily available to many students and teachers of law. The selected cases are from the superior courts in Namibia, South Africa, England, and Canada, all common law countries. There are also footnote references to cases from other common law countries like India, Zambia and Zimbabwe. Practitioners of law at the Bar or on the Bench, law researchers and other professionals in public authorities, including parastatals, private companies and other organisations, will find this book useful in the performance of their professional tasks.

approach, given the dearth of material on the subject in Namibia and avoiding heavy reliance on South African sources. Philip Boyce Wanda†, Professor, Faculty of Law, University of Namibia The field of administrative law represents the ‘engine room’ of constitutional law… Administrative law is relevant in the daily lives of most people, since the influence of public

Cases and Materials

Its broad base, drawing upon Commonwealth common law jurisdictions is a welcome

ADMINISTRATIVE LAW

Administrative Law: Cases and Materials is an important and comprehensive contribution

ADMINISTRATIVE LAW

Cases and Materials

such as Namibia, has truly become pervasive. Geo Quinot, Professor, Department of Public Law, Stellenbosch University Dr Collins Parker has been a judge of the High Court of Namibia since November 2006 with considerable experience in civil practice and civil proceedings. As a member of the Zambian Bar, he practised as an advocate of the High Court of Zambia. He was Chief: Legal Services and International Cooperation and Coordinator of the SADC Legal Sector in the Ministry of Justice, Namibia. In addition, Parker served as Judge of the Industrial Court of Eswatini and as one of the counsel for Namibia in the Case concerning Kasikili/Sedudu Island at the International Court of Justice at The Hague.

978-99916-42-46-8

9 789991 642468 Administrative Law: Cases and Materials, University of Namibia Press, 2019. ProQuest Ebook Central,

Collins Parker

Copyright © 2019. University of Namibia Press. All rights reserved.

administration on everyone within modern societies governed by law under a constitution,

Collins Parker