Mostert v Ministry of Justice (APPEAL 83 of 2001) [2001] NAHC 40 (23 November 2001);
A.
83/2001
WALTER
MOSTERT v MINISTRY OF JUSTICE
An
ex
parte application
was launched for relief which could not in law be granted ex
parte. The
application was not dismissed and by conduct converted into notice of
motion proceedings.
The
application to review and set aside the Permanent Secretary's
decision to transfer applicant, a magistrate, from Gobabis to
Oshakati refused. Waiver and abandonment of right to review
considered.
Transfers
of magistrates permissible by reason of magistrate's contract express
or implied with State and law of practice existing at time of
Independence of Namibia applicable by virtue of Article 138(2)(a) and
140(1) of Constitution.
Transfer
of magistrates not a threat to their independence.
Section
23(2) of Public Service Act not applicable to magistrates but that
order not to become effective until 1st
March 2003 but could be expunged if Parliament remedied defects
giving rise to order.
Case
No.: A. 183/2001
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
WALTER
MOSTERT APPLICANT
and
MINISTRY
OF JUSTICE RESPONDENT
CORAM:
Levy, AJ
Heard
on: 2001.10.29 Delivered on: 2001.11.23 JUDGMENT
LEVY,
AJ: The applicant is represented by Advocate E Du Toit SC and with
him Advocate Z Grobler and the respondent by Advocate D F Smuts and
with him Advocate K van Niekerk.
On
9Ih
July 2001, applicant launched what applicant called "Notice of
Motion" proceedings and purported to join the "Ministry of
Justice" as a respondent in such proceedings. The
Ministry
of Justice is not a persona but applicant did correct this in his
supporting affidavit and cited the Minster of Justice as respondent.
Applicant
gave notice that on 23rd
July 2001, he was going to apply for the following relief:
"1.
That this application is semi-urgent in terms of Rule 6(12) and that
the Rules in respect of time periods and service be disposed with.
2. That
a Rule
Nisi
be issued calling upon the Respondent on a
date to be determined
by the Honourable Court to furnish
reasons to the above Honourable
Court why an order should
not be made in the following terms:-
That
the decision of the Permanent Secretary for Justice to transfer the
Applicant to Oshakati be reviewed and set aside.
To
declare that the judiciary, including the magistrate's, are
independent in terms of Article 78 of the Namibian Constitution and
that the Permanent Secretary for Justice has no jurisdiction to
appoint, transfer and/or terminate the services of a magistrate, in
particular that Section 23(2) of the Public Service Act does not
apply to Magistrates.
Costs
of suit.
Further
and/or alternative relief.
3. That
the respondent be interdicted to transfer the Applicant
from
Gobabis and/or evict him from the government house
situated at
Luitenant Lampe Street, Gobabis, pending the
finalization of the
Application referred to in paragraph 2."
In
his very first claim, applicant alleges that the application is
"semi-urgent" in terms of Rule 6(12) and asks that "service
be disposed of (sic). In his certificate of "urgency" filed
with these papers, Mr Grobler described the application as
"semi-urgent" as well.
Rule
of Court 6(12) whereon applicant relied applies only to "urgent'
matters and not to semi-urgent matters.
In
terms of Rule of Court 6(13) applicant was obliged to give respondent
15 days notice after service unless the Court specially authorized a
shorter period- which the Court did not do.
In
addition to these defects the application was fundamentally
inappropriate and impermissible.
Under
no circumstances can the relief claimed by the applicant be granted
ex
parte. Rule
of Court 53 regulates review proceedings. Federal
Convention of Namibia v Speaker, National Assembly of Namibia, and
Others 1994(1)
SA 177 (Nra HC). In Namibia, the Courts have in exceptional cases
permitted applications for review to be brought by Notice of Motion
but Notice of Motion does not include ex
parte applications.
Even where an applicant for a review does not invoke Rule of Court 53
but comes by way of Notice of Motion, the applicant loses some of the
benefits provided by Rule of Court 53 and is confined to the
provisions of Rule of Court 6 of the High Court. In so far as the
claim for a declaratory order is concerned, die onus is upon an
applicant to prove its case and an applicant is not entitled to prove
only a prima facie case and to claim a rule nisi
which
ultimately casts an onus on the respondent to disprove the
applicant's case. Applicant's third claim was an outright claim for
an interdict, not a rule nisi,
and no service on respondent whatsoever as applicant asked that
service be dispensed with. There is no such procedure in our law.
On
23rd
July 2001, applicant came to Court presumably for a rulemsr in terms
of his notice but did not move for the relief claimed the argument
being confined to a question of urgency.
The
Court did not dismiss the application because of the aforegoing
defects but postponed the hearing to a date to be arranged. On 12th
September 2001, respondent filed opposing affidavits and the
applicant filed a replying affidavit on 12th
October 2001. The matter was set down for hearing on 17th
September 2001 but then postponed to 24,h
September 2001. There was an application for interim relief which was
heard on 24lh
September 2001 and which with the main claim was postponed to 29*'
October. The interim relief application was not pursued. The
applicant took up the appointment in Oshakati to which magistracy he
had been transferred. The question of costs for the interim relief
application stood over. The main application which was so semi-urgent
that applicant wished to dispense with service was finally set down
and heard on 29th
October 2001.
Respondent
filed an application to strike out portions of applicant's replying
affidavit. This is opposed.
Both
parties filed heads of argument and also additional and supplementary
heads of argument.
After
the case was called and argued the court pointed out to applicant's
counsel that applicant had overlooked the Magistrates Court Amendment
Act 1999, and had made no mention thereof in his papers.
Mr
du Toit requested an opportunity to consider the Act and after
discussion it was agreed that both parties could augment their heads
of argument by written heads dealing with the said Act.
These
written heads have now been received by the Court. The Court
expresses its gratitude to counsel on both sides for the detailed
heads of argument.
Applicant's
case briefly constitutes a claim that this Court declare the
judiciary including magistrates independent in terms of Article 78 of
the Constitution of Namibia and that section 23(2) of the Public
Service Act, Act No. 13 of 1995, does not apply to Magistrates.
Furthermore, applicant asks that his own transfer to Oshakati be
reviewed and set aside. There is also a claim for an interdict to
restrain respondent from transferring him from Gobabis.
1
deal firstly with the application that the judiciary including the
Magistrates' Courts be declared independent.
In
the latter part of the 18th
Century the world revolution for liberty, equality and fraternity
gathered momentum with the fall of the Bastille in Paris in 1789 and
with the writings of political philosophers and jurists in various
countries. A prominent French jurist of the time, Montesquieu, in his
thesis the "Spirit of the Law" wrote;
"There
is no liberty if the judiciary power be not separated from the
legislature and the executive. Were it joined with the legislative
power the life and liberty of the subject would be exposed to
arbitrary control; for the judges would then be the legislators. Were
it joined to the executive power, the judges might behave with
violence and oppression."
At
that time, the settlers in America were engaged in casting off the
shackles of British Colonialism and influenced by the writings of
Montesquieu they drafted a Constitution for the United States of
America attempting to embrace therein the doctrine of separation of
powers
recognizing that government consisted of three arms, the
legislature, the executive and the judiciary and that these arms
should be separate from each other because if more than one function
of society was concentrated in any one arm, the liberty of the
individual would be threatened.
World
War II and the establishment of the United Nations Organisation gave
impetus to the idealistic vision of a new world which respects,
protects and promotes the basic dignity of humanity, through a
commitment, universally, for the attainment of fundamental human
rights and freedoms and through government by the rule of law.
See
Mahomed C.J. "The
Independence of the Judiciary" 1998
SALR at 658.
The
way to ensure fulfilment of this vision was for States to have
Constitutions guaranteeing these freedoms and human rights and
recognizing an independent judiciary which could enforce these
freedoms and human rights.
The
Constitution of the Republic of Namibia has since 21st
March 1990, the day of the State's inception and independence,
specifically provided for and guaranteed these freedoms and human
rights and has specifically recognized the independence of the
judiciary.
Article
78 of the Constitution provides:
"(1)
The judicial power shall be vested in the Courts of Namibia,
which shall consist of:
(a) a
Supreme Court of Namibia;
a
High Court of Namibia;
Lower
Courts of Namibia.
The
Courts shall be independent and subject only to this Constitution
and the law.
No
member of the Cabinet or the Legislature or any other person shall
interfere with Judges or judicial officers in the exercise of their
judicial functions, and all organs of the State shall accord such
assistance as the Court may require to protect their independence,
dignity and effectiveness, subject to the terms of this
Constitution or any other law.
(4)
"
Accordingly
no order declaring the judiciary independent is necessary. The terms
of the aforesaid Article are clear and unambiguous.
While
the Constitution of Namibia contained provisions for the
establishment of the Supreme Court, the High Court and the
appointment of judges to those Courts, it did not have similar
provision in respect of the lower courts or Magistrates Courts and
for the appointment of magistrates to the Magistrates' Courts.
At
the time that the Republic of Namibia obtained independence, there
existed a system of lower courts popularly known as Magistrates
Courts which had been established during the South African
occupation of Namibia and which operated in terms of Act 32 of 1944
of the Republic of South Africa. The Constitution of South Africa at
that time did not contain provisions for the separation of powers so
that Section 9(1 )(a) of Act 32 of 1944 provided inter
alia:
"1(a)
Subject to the provisions of the law governing the government
service and the provisions of paragraph (b) of this sub-section and
of section 10, the Cabinet may appoint for any district division,
district or sub-district a magistrate or one or more additional
magistrates and for every regional division a magistrate or
magistrates.
(aA)
The Minister may, in a particular case or generally and subject to
such directions as he may deem fit, delegate the power conferred
upon him by paragraph (a) to the Secretary or a deputy-secretary of
his department,...."
Article
138(2)(a) of the Namibian Constitution provides:
"The
laws in force immediately prior to the date of Independence
governing the jurisdiction of Courts within Namibia, the right of
audience before such Courts, the manner in which procedure in such
Courts shall be conducted and the power and authority of the Judges,
Magistrates and other judicial officers, shall remain in force until
repealed or amended by Act of Parliament, and all proceedings
pending in such Courts at the date of Independence shall be
continued as if such Courts had been duly constituted as Courts of
the Republic of Namibia when the proceedings were instituted."
Article
140(1) of the Constitution provides as follows:
Subject
to the provisions of this Constitution, all laws which were in force
immediately before the date of Independence shall remain in force
until repealed or amended by Act of Parliament or until they are
declared unconstitutional by a competent Court."
Article
83 of the Constitution reads as follows:
"(1)
Lower Courts shall be established by Act of Parliament and shall
have the jurisdiction and adopt the procedures prescribed by such
Act and regulations made thereunder.
(2)
Lower
Courts shall be presided over by Magistrates or other judicial
officers appointed in accordance with procedures prescribed by Act
of Parliament."
It
is to be observed that Magistrates' Courts in the Republic of
Namibia are not presided over by "Staff Members" but by
magistrates or other judicial officers.
A
comprehensive Act of Parliament in respect of the Magistrate's
Courts has not been enacted by the Parliament of Namibia. However,
on 9th
March 1999, the Magistrates Courts Amendment Act was promulgated.
This amending legislation purported to amend the Magistrates Court
Act (No 32 of 1944) in certain respects including the substitution
of Section 9 of Act 32 of 1944, by a new section 9. 1 refer only to
the purported new Section 9(1 )(a) and (b) which provides:
"9
(l)(a) Subject to the provisions of the laws governing the Public
Service and section 10 of this Act, the Minister may appoint for any
regional division, district division, district or subdistrict a
magistrate and one or more additional magistrates.
(b)
The Minister may, in a particular case or generally and subject to
such direction as he or she may deem fit, delegate the power
conferred upon him or her by paragraph (a) to the Permanent
Secretary: Ministry of Justice or any other staff
member in the Ministry of Justice."
Counsel
for applicant in Additional Heads of Argument dealing with the
Amending Act contend that "Act 1 of 1999 does not amend any of
the basic principles contained in Section 9 of the Magistrates'
Courts Act, but only adapts it to the specific conditions in
Namibia." Respondent agrees with this contention as well.
The
amendment purports to make the appointment
of magistrates "subject to the provisions of the laws governing
the Public Service" and the Minister (who is the Minister of
Justice) is to appoint magistrates.
The
words "subject to" have been interpreted by the Courts
from time to time. InC &
J Clark Ltd v Inland Revenue Comrs (1973)
2 All ER 513 at 520, Megarry J said:
"
the phrase 'subject to' is a simple provision which merely
subjects
the provisions of the subject subsections to the provisions of the
master sections. When there is no clash, the phrase does nothing; if
there is collision, the phrase shows what is to prevail".
S
v
Marwane
1982(3)
SA 717 (A) at 748
In
other words applying this statement of the law to the instant case,
should there be a clash between the provisions and laws of the
Public Service and the laws regulating the appointment of
magistrates used by the Minister, the Public Service Act and the
provisions and laws thereunder in respect of making appointments,
will prevail.
The
amendment does not make magistrates in the exercise of their
functions subject to the Public Service Act nor does it purport to
make magistrates subject to transfer in terms of the Public Service
Act. The right to transfer a magistrate is still, to this day,
regulated by the law as it was prior to the Independence of the
State of Namibia, and Articles 138(2)(a) and 140(1) of the
Constitution is therefore applicable and such transfers are valid
and binding either by virtue of the aforesaid law or by virtue of
the contract that magistrates have concluded with the State. 1 deal
with this more fully hereunder. Section 23(2) of the Public Service
Act which is applicable only to "Staff
Members"
does not apply to magistrates. I repeat, magistrates are not "Staff
Members" (See Article 83(2) of the Constitution) and Section
23(2) of the Public Service Act does not apply to magistrates as I
explain more fully hereunder.
In
order to make Section 23(2) of the Public Service Act applicable to
magistrates it would be necessary to interpret the amended Section
9(1 )(a) that is the words "Subject to the provisions of the
laws governing the Public Service as meaning that the entire Public
Service Act is applicable to magistrates, Magistrates' Courts and
the functions of magistrates. Section 2 of the Public Service Act
provides:
"There
shall be a Public Service for the Republic of Namibia which shall be
impartial and professional in its effective and efficient service to
the Government in policy formulation and evaluation and in the
prompt
execution of Government policy and directives
so as to serve the people of the Republic of Namibia and promote
their welfare and lawful interests." (My emphasis)
If
the Public Service Act were applicable to magistrates, this would
make magistrates subject to "Government Directives". This
would fly in the face of Article 78(3) of the Constitution which
specifically and clearly prohibits this and makes the Courts
independent of the Government. The interpretation that I have given
the new section 9 of Act 32 of 1944 means that the Public Service
provisions apply only
to the method
of appointment of magistrates and not to their functions. Where a
statute is capable of two interpretations, one whereof would render
the statute ultra
vires the
Constitution, while the other interpretation is in favour of
validity the latter interpretation would be applicable and such
interpretation is obviously preferable. Legislation will only be
struck down as unconstitutional if such course is absolutely
necessary and required by "the precise facts to which it is
applied".
Zantsi
v Council of State Ciskei and Others 1995(4)
SA 615 (CC) at 617 H-I
While
Act 32 of 1944 is still applicable in Namibia subject to the
amendments aforesaid, nevertheless the personnel implementing the
law in respect thereof has obviously changed.
This
Court is fully aware that a vast infra structure exists in Namibia
in respect of magistrates and that the position inherited from South
Africa was an administration integrated with the government or
public service. If the intention of the draftsmen of the Magistrates
Court Amendment Act was to legislate so as to perpetuate that
situation, the legislation for the reason set out above is ultra
vires. It
may be argued that everything done pursuant to that legislation is
therefore ultra
vires as
well. This argument is unsound. Legislation visualized by Articles
83(1) and 140(1) of the Constitution which would replace the South
Africa era legislation, is legislation which is intra
vires. If
such legislation is ultra
vires, then
it is ultra
vires from
its inception and whatever was done was still done under and in
terms of the old legislation and by reason of Articles 138(2)(a) and
140(1), was and is perfectly valid.
If,
however, the State requires section 23(2) of the Public Service Act
to be validand binding on magistrates, it can find ways to cure the
defects. Section 2 of the Public Service Act could be amended or a
new comprehensive Act in respect of magistrates could be drafted,
or, the existing Act 32 of 1944, could be appropriately amended. In
any event the disengagement of the present administration applicable
to magistrates from the Public Service is involved and may take
time.
To
enable this to be done as effectively as possible, I invoke purely
as a guide the provisions of Article 25(1 )(a) of the Constitution
which provides as follows:
"(1)
Save in so far as it may be authorized to do so by this
Constitution, Parliament or any subordinate legislative authority
shall not make any law, and the Executive and the agencies of
Government shall not take any action which abolishes or abridges the
fundamental rights and freedoms conferred by this Chapter, and any
law or action in contravention thereof shall to the extent of the
contravention be invalid: provided that:
(a) a
competent Court, instead of declaring such law or
action
to be invalid, shall have the power and the discretion in an
appropriate case to allow Parliament, any subordinate legislative
authority, or the Executive and the agencies of Government, as the
case may be, to correct any defect in the impugned law or action
within a specified period, subject to such conditions as may be
specified by it. In such event and until such correction, or until
the expiry of the time limit set by the Court, whichever be the
shorter, such impugned law or action shall be deemed to be valid."
1
shall order that the date whereon this part of my Order shall become
operative shall be postponed to 1st
March 2003.
Parliament
can do whatever it considers is appropriate, provided the
independence of the magistrates is recognized and not threatened.
Should this be done before 1st
March 2003, my order in this respect falls away.
I
turn now to the question concerning the right to transfer
magistrates.
The
legal relationship between a magistrate and the State is
contractual. The terms of the contract can either be specifically
agreed upon, or all, or some of the terms, may be implied. When a
person applies for the position of a magistrate, such person may be
asked to complete an application form which may well include a
question asking the magistrate if he or she is prepared to be
transferred. An affirmative answer would mean the contract is
specifically concluded on that basis. If the question is not put in
the application form, the right to transfer a magistrate could be
implied. It is of general knowledge that every part of Namibia falls
under the jurisdiction of one or other magistracy. It is also known
that judicial efficiency requires such magistracies to be staffed by
persons with knowledge and skill and that it may become necessary
that a magistrate be transferred to some magistracy where his or her
skill can be utilized. Any person therefore joining the profession
is bound by an express or an implied contract that he/she is liable
to fair, proper and lawful transfer. Implied contracts are as
effective and important as express contracts.
One
of the requirements of public policy is that parties who have freely
entered into a contract express or implied, should in the absence of
fraud, be held to it.
Wells
v
South
African Alumenite Company1927
AD 69 Anschutz v Jockey Club ofSA 1955(
1)
SA 77 (W) 80B-F
Society
cannot function if people are allowed to escape their contractual
obligations however unpleasant the consequences may be. In any event
in Namibia, the personal circumstances of the magistrate are
considered before a transfer is made final.
In
the present case the applicant at no time contended that respondent
had no right to transfer him. The correspondence discloses that from
the commencement, applicant acoepted respondent's right to transfer
him to Oshakati. He only wanted more time before taking up his new
post. Applicant has not alleged in his affidavit that his transfer
will impede his functions as a magistrate or interfere with his
objectivity. Applicant is bound by his contract (whether it is
express or implied) with the State and is liable to transfer.
Mr
du Toit on behalf of applicant nevertheless argues that the very
fact that magistrates can be transferred is a threat to their
independence. He relies inter
alia on
the judgment of Southwood J in Van
Rooyen and Others v The State and Others20Q\{<\) SA
396.
That
case is under appeal and I refrain from commenting thereon. I have
confined myself to the situation in Namibia and I continue to do so.
A
person who desires to be a magistrate voluntarily applies for the
position. He or she voluntarily agrees to be liable for transfer.
When a magistrate receives notification of intention to transfer him
or her, such magistrate is entitled to make representations
objecting thereto or dealing with other matter relating to the
proposed transfer such as postponing the date of transfer. The right
to transfer is therefore exercised fairly and judicially.
Article
78(3) of the Constitution of Namibia states:
"No
member of the Cabinet or the Legislature or any other person shall
interfere with Judges or judicial officers in the exercise of their
judicial functions, and all organs of the State shall accord such
assistance as the Courts may require to protect their independence,
dignity and effectiveness, subject to the terms of this Constitution
or any other law."
And
finally, every magistrate takes an oath or affirms as follows:
"I,
(full name), do hereby swear /solemnly and sincerely affirm
and
declare that whenever I may be called upon to perform the functions
of a judicial officer in any magistrate's court, I
will administer justice to all persons alike without fear, favour or
prejudice and,
as the circumstances of any particular case may require, in
accordance with the law and customs of the Republic of Namibia"
I
am
confident that persons with integrity apply to be magistrates and
respect their oath or affirmation and that the Minister respects
such oath/affirmation taken and made by the magistrate. I am
confident that the oath/affirmation is taken consciously knowing
that there may be transfers in the future. The proper administration
of justice requires the transfer of magistrates as and when
necessary. I am confident that Article 78(3) would be a deterrent to
any person from interfering with the administration of justice and
that the prospect of being prosecuted for so doing is a further
deterrent. In the circumstances I am satisfied that the right to or
practice of, transferring magistrates is not ultra
vires and
is not a threat to their independence.
I
turn now to applicant's claim to review the decision to transfer
him.
In
his founding affidavit, applicant says that he is a magistrate
"employed" by the respondent. Inasmuch as applicant's case
includes a contention that the judiciary including magistrates are
independent, it is strange that in the first paragraph, he should
allege that he is "employed' by respondent.
Applicant
avers that he was appointed additional magistrate in Gobabis but
that he could not occupy the house reserved for the magistrate in
that town as it was occupied by one Ella Hamunyela, the prosecutor.
He says that in April 2000, he realized that certain witnesses in
respect of whom Hamunyela claimed fees were not witnesses at all and
that this led to a police investigation resulting in 28 charges of
fraud against the said Hamunyela and the court orderly Joseph Kwere.
Applicant alleges that Hamunyela and Kwere were suspended and
thereafter there followed an "orchestrated" attempt by
Castro Kavari the Swapo Party Official to have him "removed
from his post".
Applicant
refers to reports in newspapers and on television which are
irrelevant or inadmissible in and to these proceedings and which I
deal with in the application to strike out. Applicant says that a
departmental investigation exonerated him from allegations of racial
bias and irregularities. This is also irrelevant to these
proceedings. Nevertheless he says on 16th
February 2001, he received a letter from the Permanent Secretary for
Justice informing him that he had been transferred to Oshakati with
effect from 1st
March 2001. Applicant says he immediately made representations to
her pointing out that he could not accept a transfer "at
this stage".
He annexes his letter to his affidavit.
It
is clear from his letter and his affidavit that applicant did not
object to being transferred to Oshakati but objected to the short
notice he received concerning his transfer and gave reasons pointing
out that he would have to have some time to organize his personal
affairs. Correspondence which followed between him and the Permanent
Secretary eventually culminated in a letter from Mr Unengu Chief
Lower Courts dated 3 April 2001 officially informing him that his
transfer had been delayed and extended until further notice. He was
finally told to take up his new post by 1 £h
June 2001.
The
Permanent Secretary actually alleges that the decision to transfer
applicant was originally that of Mr Unengu. Be that as it may, the
Permanent Secretary clearly endorsed such decision and took
responsibility therefor. If applicant has a legitimate application
for review, it could be pursued against the Permanent Secretary.
The
original application which included an application for review was
not pursued by applicant on 23"' July 2001.
An
applicant for review who fails to bring the application within a
reasonable time or who engages in activity inconsistent with the
object of the review proceedings, loses the right to complain of the
irregularity in respect whereof the review is brought.
Lion
Match Co. Ltd v
paper
Printing Wood and Allied Workers Union and
Others
2001(4)
SA 149 (SCA)
There
were Court proceedings brought for interim relief to prevent or stay
his transfer to Oshakati and after argument in Court, the applicant
agreed to go to Oshakati but the question of costs in respect of
those proceedings stood over for decision.
Despite
the initial innuendo and indeed allegations by applicant that there
was political influence in the decision to transfer him, applicant
eventually withdraws entirely from this suggestion and says in
paragraph 8.3 of his founding affidavit (I quote verbatim):
"I
do not wish to accuse her (the Permanent Secretary) of being
politically influenced in her decisions, especially with regard to
the transfer of myself to Oshakati."
This
is a specific abandonment of the contention that the decision to
transfer him was politically motivated.
Applicant
nevertheless persists in his application to review the decision
concerning his transfer contending that he was not given an
opportunity to place his case before respondent, that is, that the
principle of law expressed in the maxim "audi
alteram partem was
not afforded him and that the Permanent Secretary "did not
apply her mind" to his representations. He says in the
circumstances he is entitled to review her decision to transfer him
to Oshakati.
The
Permanent Secretary has made a full affidavit in reply to
applicant's allegations. It is unnecessary to analyze or set out her
affidavit in any detail. She denies applicant's contention that his
representations did not receive consideration, and says:
"Despite
the wording of the letter (stating that he had already been
transferred) I wish to make it clear that the standard practice is
that such a letter gives notice of the intention of the Ministry to
transfer and the decision to do so is at that stage provisional. It
is dependent upon representations made in response to it. This was
also the intention and what occurred with the applicant's transfer."
In
notice of motion proceedings where a dispute of fact has arisen,
which could not have been anticipated when the proceedings were
instituted, the Court will assist in the resolution thereof where
there is a properly motivated request for oral evidence or
cross-examination. Prior to the institution of the present
proceedings, the correspondence between the parties revealed an
inevitable conflict of fact in respect of whether the decision to
transfer applicant from Gobabis to Oshakati was improperly taken for
one reason or another and whether applicant's representations in
respect thereof were duly and properly considered. Once again I
stress that these are not Rule 53 proceedings. 1 also point out that
in any event here has been no properly motivated request for oral
evidence or cross-examination. Accordingly the Court is bound by the
facts as stated by respondent read together with the facts which are
admitted.
Plascon-Evans
Paints Ltdv Van Riebeeck Paints (Pty)Ltd 1984(3)
SA 623 (A)
Applicant
is therefore bound by respondent's answer that his representations
were taken into account.
The
facts as stated by applicant himself in any event confirm this.
Applicant says he received a letter from Mr Unengu on 3rd
April 2001 which extended his departure for Oshakati from 1st
March
2001 until further notice. Thereafter, applicant was told to report
in Oshakati by 18' June 2001 and in any event he did take up his
appointment in September 2001. Finally, applicant waived and
abandoned any right he may have had in respect of reviewing and
setting aside the decision to transfer him when he wrote to the
Permanent Secretary on 14th
June
2001 as follows:
Transfer:
Oshakati: Myself
Due
to circumstances I will be able to go to Oshakati on 1/9/2001. I
hope you find it in order."
Applicant
is therefore not entitled to a rule nisi
or
an order of any description reviewing and setting aside the decision
to transfer him to Oshakati.
Applicant
has asked for an Order declaring that "the judiciary including
magistrates are independent in terms of Article 78 of the
Constitution" (sic) and that section 23(2) of the Public
Service Act does not apply to them.
Inasmuch
as Article 78 of the Constitution is clear and unambiguous in
respect of the independence of the judiciary no declaration by this
Court to this effect is necessary.
I
have already pointed out that Section 23(2) of the Public Service
Act is inapplicable to magistrates in that and because the entire
Public Service Act is inapplicable except for the method therein
provided for making appointments and which is to be used in respect
of magistrates, only if there is a clash with the method the
Minister may use.
Applicant
has asked for a declaratory order that "the Permanent Secretary
for Justice has no jurisdiction to appoint, transfer and/or
terminate the services of magistrates". Save and except in
respect of his transfer applicant has not alleged any fact which
entitles him to ask for a declaratory order of this nature. Neither
his appointment nor the termination of his service are in issue in
these proceedings. Nevertheless for the sake of completeness I shall
set out as fully as possible in my Order my conclusions. At this
stage I point out that although I have found that Section 23(2) of
the Public Service Act, does not apply to magistrates, I did so on
grounds not argued by applicant's counsel. Before recording my
Order
in this, the main application, it is necessary to consider the
application brought by respondent to strike out certain portions and
paragraphs of applicant's replying affidavit. Normally an
application of this nature is argued before and decided before the
main application, as its outcome can affect the final decision of
the main application. However, by agreement between counsel, the
application to strike out was argued at the end of the proceedings.
Rule
of Court 6, specifically provides that all applications to Court are
to be brought by Notice of Motion. An applicant must set out his/her
case in his/her founding affidavit so that the respondent can answer
the applicant's allegations. There must be service of the notice of
motion and affidavits on respondent giving it sufficient time in
terms of the Rules to do so. After the respondent files his/her
opposing or answering affidavit, applicant can reply thereto. In
such replying affidavit the applicant may not try to augment the
allegations in his founding affidavit by including new material. The
applicant's cause of action must be cottained in the founding
affidavit. If the applicant tries to introduce new material in his
replying affidavit the respondent can apply to Court to strike out
all or any new material. Further, because affidavits constitute the
evidence whereon the parties rely no affidavit can contain
inadmissible evidence such as hearsay or irrelevant evidence, nor
may affidavits contain scandalous or vexatious matter.
Rule
of Court 6(15) provides:
"The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant, with an
appropriate or as to costs, including costs as between attorney and
client, and the court shall not grant the application unless it is
satisfied that the applicant will be prejudiced in his or her case
if it be not granted."
In
Vaatz
v Law Society of Namibia 1990
NR 332, this court considered what the words "scandalous",
"vexatious", "irrelevant" and "prejudiced"
as used in Rule of Court 6(15) meant. To do so once again would be
an exercise in superfluity. I shall apply the meanings of those
words as there laid down. The same applies to the meaning of hearsay
evidence in affidavits. In Cultiira
2000 v Government of the Republic of Namibia 1993(2)
SA 12 (NmllC) at 2711 the Court (Full Bench) struck out hearsay. The
courts have frequently been called upon to strike out new matter
introduced for the first time in replying affidavits. Whether such
matter is merely in reply to the respondent and not intended to
augment, applicant's case is a question of fact. As Reynolds JP said
\nAnderson
and Another v Port Elizabeth Municipality 1954(2)
SA 299 (E):
"the
striking out procedure was not intended to be utilized to make
technical objections of no advantage to anyone and just increasing
costs".
However,
if respondent would be prejudiced (in the sense stipulated in the
Vaatz
case
at p 335 E to IT) if allegations whether scandalous, vexatious,
irrelevant, hearsay or new matter in replying affidavits, were
allowed to remain, then the respondent is entitled to have them
struck out.
In
paragraph 5.3 of the replying affidavit applicant alleges the
following:
"This
impression is fortified by newspaper reports as that which appeared
in the Observer
of
22 September 2001 under the heading 'Stop all Interviews, permanent
Secretary orders'."
Newspaper
reports or articles are obviously hearsay unless confirmed by the
person who wrote them and their content can be vexatious as in the
instant case.
Thereafter,
applicant annexes what he alleges is a photocopy of the report. He
comments on the contents of the report trying to create an
atmosphere of political intrigue. I have quoted paragraph 8.3 of
applicant's founding affidavit in full where he says the Permanent
Secretary was not politically influenced in his transfer. All these
paragraphs therefore are not only new matter, they are irrelevant,
vexatious and scandalous and are intended to be prejudicial and if
allowed to remain would be exactly that.
Paragraphs
5.3, 5.4 with the annexure "WM17", 5.5, 5.6,9.2.2 and
35.1.1 of applicant's replying affidavit are stuck out.
Respondent
applies to strike out the following paragraphs on the grounds that
applicant (Mostert) has introduced new matter in his replying
affidavit:
2(a) | Paragraph |
(b) | Paragraph |
(c) | Paragraph |
(d) | Paragraph |
(e) | The |
(0 | The |
(g) | Paragraph |
(h) | The |
until | |
(i) | Paragraph |
(j) Paragraph
21.10
(k) Paragraph
28.2;
(1) Paragraph
35.1.1;
(m) Paragraph
35.1.2;
(n) Paragraph
35.1.5;
(o) Paragraph
35.2.2
(p) Paragraph
35.5.3.
It
is abundantly clear that the matter complained of in these
paragraphs is new matter. The allegations are irrelevant to
applicant's original case and should they remain they would be
prejudicial to respondent. The defamatory campaign of which
applicant complains, is not part of his original case for review and
furthermore he has specifically said that the Permanent Secretary
for Justice was not politically influenced to transfer him
The
application to strike out:
"(e)
the words 'radio services' in paragraph 17.1, and (f) the words
'listen to the radio; in paragraph 17.3
is
not properly motivated and is somewhat vague
Accordingly,
save for the allegations referred to in paragraphs (e) and (f),
those portions and paragraphs of applicant's replying affidavit
referred to in paragraphs 2(a) to (p) of the respondent's
application to strike out, are struck out.
Finally,
respondent moved to strike out the allegations set out hereunder on
the grounds that they are scandalous and vexatious and prejudicial
to the respondent as well as constituting new matter:
"3(a)
The introductory portion of paragraph 35.1;
Paragraph
35.1.1;
Paragraph
35.1.5;
The
portion of the second sentence of paragraph 35.2.2 commencing with
the words 'and 1
submit'
and continuing to the end of that subparagraph;
(c)
The second sentence of paragraph 35.5.3.
It
is unnecessary to repeat the principles of law applicable. The
content of the paragraphs complained of are indeed scandalous and
vexatious and prejudicial to respondent if permitted to remain. They
also constitute new matter.
Accordingly,
the portions and paragraphs of applicant's replying affidavit
referred to in paragraph 3 of respondent's application to strike
out, are struck out.
To
sum up, the Order of this Court in respect of respondent's
application to strike out is:
A.
(1) The following portions, paragraphs and annexure of
applicant's replying affidavit are struck out:
Paragraphs
5.3, 5.4 with annexure WM17, 5.5, 5.6, 9.2.2 and 35.1.1.
Save
for the allegations in paragraph 2(e) and (f) of respondent's
application to strike out, those portions and paragraphs in
applicant's replying affidavit set out in paragraphs 2(a) to (p) of
respondent's application to strike out, are struck out.
The
portions and paragraphs of applicant's replying affidavit set out in
paragraph 3(a), (b), (c), (d) and (e) of respondent's application to
strike out are struck out.
B.
Applicant shall pay the costs of the application to strike out. For
the benefit of the taxing master the argument in respect of the
application took about ten (10) minutes.
The
Order in respect of the Main Application is:
1.
The application to review and set aside the decision of the Permanent
Secretary for Justice to transfer the applicant to Oshakati is
dismissed.
Inasmuch
as the provisions of Article 78 of the Namibian Constitution
declaring the Judiciary including magistrates independent, are loud
and clear, it is unnecessary for this Court to make such a
declaration.
In
terms of section 9 of Act 32 of 1944 as amended by the Magistrates'
Courts Amendment Act (Act 1 of 1999) the Minister of Justice, or
such person duly delegated in terms of the said Act, may appoint
magistrates.
Magistrates
are liable to be transferred by virtue of their contracts, express
or implied, with the State and by virtue of the law and practice in
terms of Act 32 of 1944, as read with Articles 138(2)(a) and 140(1)
of the Constitution of Namibia.
The
transfer of magistrates does not constitute a threat to their
independence.
Section
23(2) of the Public Service Act is not applicable to magistrates but
this Order, i.e. Order 5, shall not become effective until 1st
March 2003, and furthermore it shall be expunged and cease to exist,
in the event of legislation correcting the defects which have caused
the making of this Order,being properly passed and gazetted.
The
application for the interdict and other relief claimed in claim 3 of
the Notice of Motion is refused.
Applicant
shall pay the costs.
The
costs of the interim application stood over for decision. Briefly,
the application was to stop the transfer of applicant to Oshakati.
The application was abandoned and applicant has taken up his post in
Oshakati. Applicant must therefore pay the costs of the interim
application. The Order of the Court in this regard is:
Applicant
shall pay the costs of the interim application.
"
t
\
For
the Applicant: Advocate
E du Toit SC and with him Advocate Z J Grobler
Instructed
by: Messrs
A Louw & Co
For
the Respondent: Instructed by:
Advocate
D F Smuts and with him Advocate K van Niekerk The Government
Attorney