CASE
NO. (P) A 178/2005

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

FRANCIS
LIYEMO MUBITA FIRST APPLICANT

BEN
MUNZIE SECOND APPLICANT

RICHWELL
MBALA MANYEMO THIRD APPLICANT

RICHARD
LIMBO MUKAWA FOURTH APPLICANT

ALFRED
LUPALEZWI SIYATA FIFTH APPLICANT

and

THE
GOVERNMENT OF THE

REPUBLIC
OF NAMIBIA FIRST RESPONDENT

INSPECTOR
GENERAL:

NAMIBIAN
POLICE SECOND RESPONDENT

CORAM:
SHIKONGO A J

Heard:
26/07/2005

Delivered
on: 10/08/2005.

RULING

SHIKONGO A J:
The prelude to this application is the respective suspension and
discharge of the above applicants by the respondent following their
arrest on 270 charges, including High Treason.

All the applicants are members of the
Namibian Police and were all arrested in the Caprivi Region in
connection with what has become known as the High Treason Trial. In
this regard, the first applicant was arrested on the 3^rd
of August 1999 and suspended retroactively during February 2002 as
from the 3^rd of August 1999; his discharge came about on
15^th September 2003 retroactively as from 3^rd
August 1999; second applicant was arrested on the 5^th of
August 1999 and was suspended on the 31^st of August 1999
retroactively as from 5^th August 1999 and discharged on
the 28^th August 2003 retroactively as from 5^th
August 1999; third applicant was arrested on the 18^th of
May 2000 and was suspended during June 2002 retroactively as from May
2000, he was discharged on the 30^th of October 2002,
retroactively as from 18^th of May 2000; fourth applicant
was arrested on the 3^rd of August 1999; he was suspended
during February 2002, retroactively as from 3^rd August
1999, and was discharged on the 28^th of August
retroactively as from 3^rd August 1999; fifth applicant
was arrested on the 3^rd of August 1999, he was suspended
during February 2002 retroactively as from 3^rd of August
1999, he was discharged retroactively as from 3^rd August
1999 on the 28^th of August 1999.

The application it appears, is
essentially aimed at reviewing and setting aside the decisions taken
by the second respondent referred to above in relation to the
suspension and discharge of the applicants on the dates as indicated,
including the declaration of the aforementioned actions as
unconstitutional, null and void.

It was indicated on behalf of the
respondent at the commencement of the proceedings that they no longer
oppose the setting aside of the decision to discharge applicants and
that they would abide by the decision of the court. In this regard
it was accordingly submitted on behalf of the respondent that the
only issue to be considered by the court, is whether the second
respondent’s decision to suspend applicants without remuneration
and benefits was lawful. For what it is worth, it was pointed out
and submitted on behalf of the respondent that the aforesaid
concession, rather than being an acceptance of the respondent’s
inability to legally discharge the applicants, it should be viewed
only as a concession in relation to the procedural deficiencies in
implementing such discharge, rather than a concession on the merits.

The background and circumstances under
which the applicants were suspended and arrested, are set out in the
founding affidavit deposed to by the first applicant.

As the discharge of the applicants by
the respondents is no longer opposed, reference is made to this
aspect of the application only insofar as it may be relevant to the
issue of suspension. Consequently, the voluminous body of material
in this application relating to the discharge of the applicants by
the respondent, is deliberately avoided and referred to only in
passing.

Turning back to the first applicant’s
founding affidavit, the applicant informed the Court that prior to
1999, he joined the Namibian Police Force where he held the rank of
constable. Since his arrest on the 3^rd of August 1999, he
had been a trial awaiting prisoner on 275 charges, including High
Treason. As of the date of arrest, he had not received any salary,
nor did he receive any benefits. According to the first applicant,
the other applicants who likewise, were members of the Namibian
Police on the dates of arrest, found themselves in similar
circumstances.

First applicant received a suspension
order during or about February 2002 from the Inspector General of the
Namibian Police Force being the second respondent in this
application. The first applicant informed the Court that he was
advised by the Inspector General LP Hangula that according to
information at the latter’s disposal, he, the first applicant,
committed the criminal offence of high treason and as a result,
pending a complete investigation and the trial regarding that
criminal offence, he was suspended without remuneration in terms of
section 23 (2) of the Police Act as amended.

The suspension notice under cover of a
letter to the Regional Commander of the Namibian Police in the
Otjikoto region was forwarded to the first applicant and reads as
follows:

“SUSPENSION HEARING
CONDUCTED IN TERMS OF SECTION 23(3) OF THE POLICE ACT 1990

A: PARTICULAR OF CASE:

Number: 400466 Rank:
CST Name: F L Mubita

B: CRIMINAL OFFENCE
COMMITTED:- High Treason

C: RECOMMENDATION BY
LEGAL OFFICER: The member in terms of section 23 (1) of the
Police Act, 1990 be suspended

D: DECISION: No.
400466 Cst. F L Mubita is suspended in terms of section 23 (1) of the
Police Act, 1990, with effect from 03 August 1999, until further
notice”.

According to the first applicant, the
remainder of the applicants were likewise suspended on the dates as
set out hereinbefore on similar terms. The applicant then proceeds
to point out that he, including the other applicants, did not receive
any form of hearing, whether in an attenuated form or otherwise,
prior to the second respondent’s decision to suspend them.
Applicant asserts further in this regard that had they been afforded
such an opportunity, they would have made use of same. In addition,
the applicant points out that neither him, nor the other applicants
received any prior notice of such suspension, nor were they informed
of the investigation into the allegations against them prior to the
suspension order.

The discharge of the applicants (which
shall not be referred to in detail) followed on about the 15^th
of September 2003, when the first applicant received a letter from
the Inspector General advising that due to the seriousness of the
charge against the applicant, he was no longer considered fit to
serve in the Namibian Police and was accordingly to be discharged in
terms of Section 9 of the Namibian Police Act with effect
retrospectively as from the 3^rd of August 1999 being the
date of arrest. Accordingly, the first applicant submits that the
decision by the second respondent to suspend him and the other
applicants on the dates as set out without remuneration and benefits
with effect from the dates of arrest, are to be reviewed and set
aside on several grounds as cited.

These grounds, include the failure to
comply with the rules of natural justice in having been denied any
form of hearing prior to such decision having been taken. It is
asserted in this regard that applicants are entitled to such hearing
even in attenuated form prior to a decision of that nature been
taken; the decision taken against applicants were unfair and
unreasonable and in conflict with their rights under Article 8 of the
Namibian Constitution; the second respondent acted ultra virus his
power, especially in seeking to suspend applicants without pay
retrospectively; the second respondent was motivated by an improper
purpose or motive in making such decision; the second respondent
failed to apply his mind to relevant matter and or took into account
irrelevant matter in reaching his aforesaid purported decision and or
failed to take into account the ambit and nature of the discretion
vested in him, especially in seeking to do so retrospectively.

It was in view of the aforementioned,
that it was submitted on behalf of the applicant that the decision to
so suspend them by the second respondent would be liable for review
and should be set aside as such constitutes a nullity.

The first applicant’s founding
affidavit is supported by the affidavit of the second to the fifth
applicant essentially confirming the contents of the first
applicant’s affidavit, insofar as it relates to them and also
confirming specific data in relation to the dates of suspension and
discharge applicable to them individually.

Turning now to the answering affidavit
of the first and second respondents, it is apparent, pertinently on
the issue of suspension, that it is common cause between the parties
that the second respondent suspended the applicants without a hearing
and that the suspension was made with retrospective effect. As much
as this is confirmed by Commissioner Hubbert Mootseng who deposed to
the answering affidavit on behalf of the first and second respondent.
The Commissioner however submitted that the second respondent was
entitled by relevant legislation to act in the way he did. In this
regard, he points out that the applicants were facing serious
criminal charges for which they had to be arrested and detained and
that they were in custody after having been denied bail by the
criminal courts. It was further asserted on behalf of the first and
second respondents that there was no breach of the Namibian
Constitution and or the common law in any manner whatsoever, in the
suspension of the applicants without any hearing and in backdating
the suspensions to the respective dates of their arrests.

Respondents further submitted that the
rules of natural justice were not breached in any way by the second
respondent; the decisions taken against applicants were fair,
reasonable and did not breach their rights under Article 18 of the
Namibian Constitution; the second respondent was entitled to suspend
and discharge the applicants retrospectively from the time of their
arrest; the second respondent’s position was not actuated by an
improper purpose or motive, but was a result of a proper application
of the existing legislation to the facts; the second respondent did
not fail to apply his mind to the applicant’s matter and did not
take into account irrelevant matter in making the decisions
complained of; the second respondent exercised his discretion
properly and in accordance with the relevant legislation and as he is
so bound to. Through the aforementioned, the respondent, it appears
puts in issue the most critical averments of the applicants.

Summarised, the essential facts are as
follows:

The applicants, all members of the
Namibian Police Force, were arrested on the dates as reflected at the
commencement of this judgment. They are trial awaiting prisoners
since the dates of their arrests, and are facing 275 charges,
including charges of high treason. During their arrests, the
applicants received notices of suspension suspending their services
without remuneration and benefits retrospectively from the date of
their arrests. The notices of their suspensions were followed up
with notices of discharge from the Namibian Police, also
retrospectively from the dates of their arrests. The suspensions of
the applicants were implemented without the applicants being heard.
In addition, none of the applicants have been paid any salary or
benefits since their dates of arrest.

Although counsel for the applicants
being dominis litis was first in addressing the Court during
argument, counsel for the respondent Mr. Nixon replied to applicants
submissions, first with reference to what he referred to as
applicants’ unreasonable delay; an issue resembling a point in
limine. In this regard, it was submitted on behalf of the
respondents, that should the Court find that the applicants have
delayed the lodging of their applications unreasonably, the result
should be that the application should be refused which will result in
the total disposal of the application. It is for this reason that I
propose to consider the submissions on behalf of the respondents
first.

Turning to the respondents’
submissions in this regard, it was pointed out on their behalf that
the applicants sought to review the decision by the second respondent
to suspend and subsequently discharge them from the Namibian Police.
In this regard, it was submitted that a review must be brought within
a reasonable time, there being two important reasons for doing this;
firstly: the failure to bring review proceedings within a reasonable
time may cause prejudice to the respondent, secondly there is a
public interest in finality with respect to the status of
administrative decisions or acts. Counsel for the respondents as a
result submitted that the application against the second respondent’s
decision to suspend and discharge the applicants is relatively
simple and raised no complicated issues of facts. It was further
submitted in this regard that if the applicants wished to have the
said decisions set aside, it was incumbent upon them to bring the
review application with expedition.

Counsel for the respondent pointed out
in this regard that the applicants delayed the lodging of this
application until 13^th September 2004 which amounted to
two years and six months after the decision to suspend first
applicant, five years after the decision to suspend the second
applicant; two years and three months after the decision

to suspend the third applicant, two
years and seven months after the decision to suspend the fourth
applicant; and two years and seven months after the decision to
suspend the fifth applicant. It was further pointed out on behalf of
the respondents that the applicants did not explain or justify the
said delay in the founding papers, neither did they attempt to do
that in their reply.

Mr. Markus further submitted that such
was the case, despite the fact that the unreasonable delay in lodging
the application was put in issue by the respondents. It was further
submitted by Mr. Markus that it would seem that the delay should be
explained with reference to the fact that applicants accepted the
decisions of the second respondent to suspend them which according to
counsel for the respondent is evident from the fact that during
December 2003, the applicants requested their leave and pensions
payouts. Accordingly, it is submitted, that the delay of more than
two years is clearly unreasonable, while in the case of the second
applicant’s delay of five years, besides being unreasonable, such
claim has also prescribed. As regards, the question of prejudice to
the respondents, it was submitted on their behalf that prejudice to
the other party is not a prerequisite before an application can be
dismissed on grounds of unreasonable delay. It is nevertheless a
relevant consideration, especially when considering whether the Court
will condone the delay.

According to the respondents’
representatives, the applicants omitted to allege any prejudice as a
result of the delay by the applicants in their papers. The above
notwithstanding, it was submitted that insofar as the matter was
essentially a labour dispute and by its nature urgent, it was
incumbent upon the applicants to seek its resolution as soon as
possible. The point was further made on behalf of the respondents
that insofar as the applicants were suspended from their employment
without pay during 2000, the letters of demand which followed their
suspension, on their behalf, claimed compensation for losses and
damages suffered on account of their suspension and dismissal.
Consequently, the longer the applicants delayed in not challenging
the decision to suspend them, the longer the applicants seek payment
for in fact not working and resultantly, the greater their claim for
damages would be. This was submitted to constitute a clear case of
prejudice to the respondents. A further ground was also raised on
behalf of the respondent, why the delay by the applicants should not
be condoned. This was done with reference of Section 39 (1) of the
Police Act which provides that:

“Any
civil proceedings against the state or any person in respect of
anything done in pursuance of this Act shall be instituted within 12
months after the cause of action arose and notice in writing of any
such proceedings and of the cause thereof shall be given to the
defendant not less than 1 months before it is instituted: Provided
that the Minister may at any time waive compliance with the
provisions of this Section”.

It was submitted in this regard that
the applicants were all aware of
the statutory requirements
before instituting the present application. It was further submitted
that although the applicants purported to have complied with the said
requirement by giving notice on the 6^th of August 2003 of
the intended action, by then however they were already out of time
with regard to the decision to suspend them. In this regard no
waiver was sought from the Minister with the compliance of the
provision. Consequently, it was submitted that the delay by the
applicants, coupled with the non-compliance with section 39 (a)
offends against the legitimate governmental purpose of regulating
claims against the state in a way that promotes quick and
prompt investigation of surrounding circumstances and settlement, if
justified.

It is apparent from the pleadings that
the issue of delay as dealt with on behalf of the respondent was not
at all dealt with by the applicants in their founding papers, nor in
their written heads of arguments. Aforementioned had the result that
whereas extensive arguments were advanced on behalf of the
respondents, supplemented by the written heads on the issue of the
delay, the applicant’s reply was rather short, and was restricted
to submissions from the Bar on both issues of fact and Law.

In his reply to the submissions of the
respondent’s legal representatives on the issue of delay Mr. Dicks,
applicant’s counsel, from the outset submitted that the respondent
is precluded from relying on the issue of delay, insofar as such
point was not dealt with in the founding papers; nor should it be
regarded, as what he referred to as a proper point of Law. It was
furthermore submitted on behalf of the applicants that insofar as the
issue has not been raised at all in the respondent’s papers, the
applicants were not afforded an opportunity to deal with the issue.
An adjudication on the issue in the manner proposed by the respondent
would accordingly prejudice the applicant. The applicant’s counsel
further amplified on his aforementioned submission by arguing that
the issue of delaying has not been dealt with in clear and
unambiguous terms by the applicant and that should I be inclined to
hold differently on the issue of clear and unambiguous terms than, at
the very least, the applicants should be afforded an opportunity to
amend its papers, with the resultant postponement to be at the
respondent’s cost.

Accordingly, my first inquiry will
focus on whether the respondents are entitled to rely on the issue of
the delay on the part of the applicants in bringing the application
for review; secondly whether the delay if any, on the part of the
applicants is such that I should disallow a hearing of the
application on the merits.

I shall now consider in this regard
the applicant’s submission to the effect that the respondents are
not entitled to raise the issue of delay in limine, under
circumstances where such was not raised in clear and unambiguous
terms in the papers. The initial point raised in this regard was
that the issue of delay was not at all dealt with. Counsel for the
applicant seems not to have pursued this when it become clear that
the issue was in fact raised though not in the terms it was expected
according to Mr. Dicks. In this regard, the respondent’s
representative in reply pointed out that the issue of delay was in
fact expressly dealt with in their answering affidavit where it was
articulated in paragraph 19 of their answering affidavit as follows:

“the
contents herein are disputed. One can even question why the
applicants are bringing this review application so late after the
decisions complained of where made at a time when their prosecutions
had commenced.”

The respondent aforementioned reply
was in answer to paragraph 19 of the first applicant’s founding
affidavit, wherein the following was averred:

“I
am advised and submit that the decision to so suspend us would fall
to be reviewed and set aside and would constitute a nullity by virtue
of the aforegoing”

The question thus arises whether the
applicant is correct in its submission that the issue of delay in
bringing the review proceedings was not raised in clear and
unambiguous terms. Upon my reading of the aforementioned relevant
paragraph, it is my view that at the very least, the question of
delay in bringing the review application is raised in a fashion,
albeit almost in tentative terms, but definitely creating a
sufficient basis not only for the respondent to raise and address the
court on the issue, but also to alert the applicants to the
possibility that the issue of delay will or can be raised by the
respondents. I am of the view that had the applicant’s
representatives diligently applied their mind to the reply as
formulated, clarity or ambiguity on what is being raised in the
paragraph would have been the least of their concerns. Similarly,
the submissions on behalf of the applicants that the contents of the
said paragraph amounts to on ambush seems to me the same as saying,
the contents of the paragraph was not understood. The contrary
however appears from the applicant’s reply: “The
contents hereof are denied and respondents are put to the proof
thereof”. Accordingly, I am of the view that the
respondents are not precluded from relying on the delay rule as a
defence to the applicant’s claim. Even if I am wrong in my
aforementioned conclusion, it is now trite that it is competent to
raise the defence of delay in bringing review proceedings even after
litis contestation, although it is desirable that it should be
raised initio litis so that it should be dealt with as a
separate peremptory defence before the merits of the matter
are entered into. This essentially, is the respondent’s proposed
approach to the adjudication of this matter. See: Hebstein v Van
Winsen: The civil practice of the civil court of South Africa,
4^th Edition at p.958; See also the case of Harnaker
v Ministry of the Interior 1965 (1) (CPD) where Corbett J, in
dismissing a similar objection raised in the matter before him relied
on the Southern Rhodesia Case of Ruben v Meyers 1967 (4) (SA) 57
(SR) where the court inter alia remarked:

“…..It is, I consider
entirely out of keeping with the modern and more benevolent approach
to the conduct of litigation, to bar a defendant from raising any of
this wide range of special defences, merely because he or her legal
advisors may have overlooked them at the time of filing his original
plea”.

It is apparent that in casu, we
are not so much concerned with the overlooking of a specific defence,
but rather on the applicant’s version, whether or not such defence
is raised in clear and unambiguous terms.

It was further submitted on behalf of
the applicants that an entertainment of respondent’s defence of
unreasonable delay, if upheld may, have the effect of validating an
ultra virus action by the second respondent and for that reason
the point should not be upheld. In this regard, a similar point
raised was argued in the Harnaker Case (supra) where it was
argued that the delay rule should not be applied to Legislative Acts
since its effect could be to validate an invalid act. In answer to
this point, when deciding that unreasonable delay by the Plaintiff in
that matter, coupled with resultant prejudice to the defendant was
available as defence or objection, the court made the following
remarks:

“it
is true that a legislative act would effect a wider section of the
public: that if the affected members of the public having locus
standi to apply to court for an order declaring the legislative act
null and void, delay unreasonably in taking such action and this
causes prejudices, I do not see why they should not all be precluded
from obtaining relief.

I am in respectful agreement with the
remarks of the court in the above matter and stand to be guided
accordingly in this matter.

See also the matter of Kalil and
Another, NNO v Ministry of Interior, 1962, (4) SA 755D where a
similar argument was advanced without success.

I now revert to the respondent’s
overall argument on the issue of delay by the applicant in bringing
the application.

In making the submission that review
must be brought with a reasonable time, the respondent’s counsel
made reference to the matter of Disposable Medical Products (Pty)
Ltd v Tender Board of Namibia and Others (1997 NR at 129 HC. In
this matter the point in limine was raised on behalf of the
respondent to the effect that applicant did not bring his application
for review within a reasonable time and that the whole application
therefore stands to be dismissed. In refusing to condone the
unreasonable delay, the court took into account that there was also
prejudice to be occasioned to the respondents. Furthermore, the
principles taken into account by the court in deciding this issue was
firstly, whether the delay caused prejudice to the other parties, and
secondly, the principle applied that there must be finality to the
proceedings. Vide p. 132. The delay in question involved a period
of approximately two months.

The aforementioned test was applied in
the matter of Kruger v TransNamib Ltd (Air Namibia) and Others
1995 NR at 90 (also referred to by respondent’s counsel), where
the Court stated that the test which the Court has to apply is of a
dual nature, namely whether the proceedings were instituted after the
expiration of an unreasonable time and if so, whether the
unreasonable delay should be considered. Furthermore, the court has a
judicial discretion in respect of condoning unreasonable delay in
this matter. After a close examination of the facts, the court was of
the opinion that the period of delay in the light of all the
circumstances was unreasonable. The delay being considered in the
matter cited amounted to a delay of over a period of two and a half
years. It is also apparent that the Court took into account the fact
that the applicant offered no explanation in relation to such delay.
The court also considered the applicant’s submission that the
application for review, although brought two and a half years after
he was dismissed, was brought within reasonable time and that what is
relevant is severe prejudice suffered by him as a result of the
respondent’s actions. See also Radebe v Government of the
Republic of South of Africa and Others 1995 SA 787 (N) at 798 G-799E
– relied on by the Court in dealing with the principle relating to
the delay rule.

In casu, the counsel for the
applicant submitted that if the issue of delay is considered, taking
into account steps taken by the applicant from date of discharge, the
delay, if any, is not unreasonable and would account for a much
shorter period, if calculated from date of discharge. In considering
the submissions, I am however incline to take into account the fact
that the date of discharge is only relevant insofar as it relates to
the issue of discharge. In this regard, the respondent however from
the outset indicated that relief on the aspect of discharge will not
be opposed. I am of the view that common sense and logic demands
that in taking into account the period of delay, if any, to be
considered under the circumstances of this matter, regard should be
had to the date of suspension being the date on which the cause of
action arose. In this regard, it was pointed out on behalf of the
respondents that the application to have the second respondent’s
decision to suspend applicants, set aside, is a relatively simple one
and raised no complicated issues, of fact.

Furthermore, instead of bringing the
review application with expedition, the applicants delayed lodging
the application until 13^th September 2004 and as pointed
out by counsel for the respondent which amounted to two years and six
months after the decision to suspend the first applicant; five years
after the decision to suspend the second applicant; two years and
three months after the decision to suspend the third applicant; two
years and seven months after the decision to suspend the fourth
applicant; and two year and seven months after the decision to
suspend the fifth applicant.

It seems to me, considering the
respondent’s submissions on this aspect, that the applicant is not
only confronted by what prima facie appears to be a
considerable delay, but also the fact that no explanation and or
justification is to be found in the founding papers, including the
applicant’s reply.

In this regard, it was pointed out
that the omission to explain and justify the delay should be
considered, coupled with the fact that such is the case despite the
issue of unreasonable delay having been brought up by the respondent
in their answering affidavit and accordingly having put the
applicants in issue. The respondents further submitted that the
delay by the applicants in bringing their review application should
be explained with reference to the fact that according to the
respondents, the applicants had in fact accepted the decisions to
suspend them.

According to the respondents, this is
evident from the fact that during December 2003 the applicants
requested their leave and pensions payouts and only upon the express
advise of their legal representatives in August 2004 did they
cancelled their leave and pension payouts. It was accordingly
submitted that not only is the delay of more than two years
unreasonable, but also the second applicant’s delay of five years
is not only unreasonable, but the claim has also prescribed. I have
no doubt, and it is my finding against the background of the
aforecited authorities that the arguments with regard to delay and
the unreasonableness thereof are well founded. What is of importance
however is the fact that each case must be considered on its own
merits and with regard to the facts of the matters. In this regard, I
am of the view that the special circumstances pertaining to this
matter, although not forcefully advanced by the counsel for the
applicants, requires special consideration before any final
conclusions are reached on the issue being decided.

To date, the applicants are all
trial-awaiting prisoners on serious charges, including high treason
following their arrests. Counsel for the applicants pointed out in
this regard, that given the circumstances the applicants find
themselves, the matter should be distinguished. He pointed out the
fact that the applicants were all trial awaiting prisoners in the
Caprivi and that such being the case, it was suggested that, this is
not an instance where applicants had full access to legal
representatives as would be the case with parties who are not
incarcerated. The difficulty however with applicants application is
that it contains no averments, on the delay or explanation for such
delay. The application is completely silent on this aspect.

The end result is that there are no
objective facts advanced by the applicants upon which I can consider
the reasonableness and or unreasonableness of the delay, including
the related question of whether in the circumstances of the matter,
the delay if any should be condoned.

As a result, my previous finding
regarding the respondent’s submission on these aspects remains
undisturbed.

I now turn to consider the question
whether or not delay itself, without proof of any prejudice, is
sufficient reason for dismissing an application for review.

This was the issue in the Appellate
division matter of Wolgroeiers Afslagers (Edms)) BPK v
Munisipaliteit van Kaapstad 1978 (1) SA 13(A) referred to by
counsel for the respondent. In this matter the Appellate division
was divided as to the proper test to apply when there has been a long
delay, such as in this case, in bringing preview proceedings.
Whereas Jansen J J A was of the view that prejudice ought to be a
decisive factor in considering whether an application for review
should be dismissed solely for the reason of delay, Hofmeyr J J A
together with Rumpf C J A were of the view that the court has an
overriding discretion to refuse to hear a review proceedings brought
after a long delay, even in the absence of any indications that the
respondent has suffered material prejudice. Miller A J in deciding
on this issue remarked as follows:

“It cannot be accepted
that in the establishment of the requirement that proceedings should
be instituted within a reasonable time, it was intended to fetter the
court’s discretion to this extend that even where a litigant which
disregards a court’s directive by unnecessary and excessive delay
in bringing proceedings, the court does not have the right to refuse
the application, merely because it is not proved or cannot be proved
that the respondent was materially prejudiced, even though there were
on a review of all the circumstances other well founded reasons for
the exercise of its discretion against the applicants. (at p.
42 A and B)

Above notwithstanding, it is clear
from the citation that, it does not mean that prejudice and the
degree thereof to the respondent should not be considered, in fact it
was accepted in the above matter that prejudice and degree thereof
are in fact relevant factors in the consideration of whether
unreasonable delay ought to be overlooked. As a general proposition
however, I go along with the argument as submitted by counsel for the
applicants based on the aforementioned authorities, that prejudice to
the applicant is not a prerequisite before an application can be
dismissed on the grounds of unreasonable delay. See Hebstein and
Van Winsen, the civil practice of the supreme court of South
Africa (supra) at 356: The Wolgroeiers case as also cited
in the Namibian Grape Growers and Exporters’ Association v The
Minister of Mines and Energy and Others (unreported judgments in
case number A103/2000 at p. 27).

It
was further submitted on behalf of the applicants in relation to the
aspect of prejudice that prejudice, if any to be considered by the
Court should be the prejudice to be occasioned by the applicant,
should the respondent’s submissions with reference to unreasonable
delay be entertained.

Counsel
for the applicant pointed out in this regard that as the issue of
prejudice has not been raised by the respondents in the papers, they
will be severely prejudiced insofar as they have not been afforded an
opportunity to reply and deal specifically with such issue in their
papers and or heads or arguments. Accordingly, it was submitted that
at the very least, the applicant should be afforded an opportunity to
amend its pleadings with a view to dealing with the issue of
prejudice and that the cost to be occasioned by such postponement be
for the respondent. It is apparent that the counsel for the
applicant offered no direct reply to the submissions in relation to
the pertinent issue of whether or not prejudice to the other party is
a prerequisite before an application can be dismissed on the ground
of unreasonable delay, other than the submission that the respondents
were not prejudiced at all by the delay. I also already found that
the issue of prejudice was dealt with by the respondent with
sufficient clarity on their papers. In this regard, insofar as I do
not have the benefit of the applicant’s argument on the issue of
prejudice as a prerequisite, I have before me only the submissions of
respondents, the authorities referred to, including further leads and
sources I could follow deriving from those submissions and
authorities in adjudicating on this issue.

I
have already concluded that prejudice with the other party is not a
prerequisite before an application can be dismissed on the grounds of
unreasonable delay upon the authorities cited. Accordingly, little
remains to be considered on this aspect upon the available evidence
and submissions on this matter.

In
view of my findings aforementioned, I do not consider it necessary to
adjudicate further on the additional interesting arguments raised on
behalf of the respondents in relation to inter alia the onus
on the applicants to show that the expected prejudice do not arise,
including the issue of the alleged non-compliance with section 39 (1)
of the Police Act. In the result, and having found that the
lodgement of the applicant’s application for review was occasioned
by unreasonable and unjustified delay. I find that in the absence of
any explanation or justification for such delay, let alone an
application for condonation, applicant’s submissions on undue and
unreasonable delay are upheld, there being no proper basis factual,
or otherwise to exercise my discretion in favour of condoning such
delay.

Accordingly,
the applicant’s application is dismissed with cost.

___________________

SHIKONGO,
A J

ON
BEHALF OF THE APPLICANTS ADV . DICKS

INSTRUCTED
BY: LEGAL ASSISTANCE CENTRE

ON
BEHALF OF THE RESPONDENTS ADV. MARCUS

INSTRUCTED
BY: GOVERNMENT ATTORNEYS