Nakanyala v Inspector-General of Namibia and Others (APPEAL 148 of 2011) [2011] NAHC 190 (05 July 2011);
REPORTABLE
CASE NO: A 148/2011
IN THE
HIGH COURT OF NAMIBIA
In the
matter between:
CHRISTOPH
NAKANYALA ….................................................APPLICANT
and
INSPECTOR-GENERAL
OF NAMIBIA ….........................1st
RESPONDENT
MINISTER
OF SAFETY AND SECURITY …...................2nd
RESPONDENT
ANANIAS
MUZILE …....................................................3rd
RESPONDENT
CORAM:
SMUTS, J
Heard on:
24 June 2011
Delivered
on: 5 July 2011
______________________________________________________________________
JUDGMENT
______________________________________________________________________
SMUTS,
J:
The
applicant is a senior police officer. He has approached this Court
on an urgent basis for interim relief pending the finalisation of
his application to review the decision of the Inspector-General of
the Namibian Police to transfer him from his position of Head of the
VIP Protection Directorate (“VIPPD”) in the Namibian
Police to Regional Commander, Omaheke Region.
The
interim relief he seeks is of a two-fold nature. He firstly seeks an
order interdicting the Inspector-General from persisting or
proceeding with the decision of 13 June 2011 to transfer him or to
do at anything which is frustrating or obstructing the applicant
from performing his usual work before 13 June 2011 as before. In the
second instance he seeks an order directing that he be reinstated to
his position as head of the VIPPD pending the finalisation of the
review. He initially sought costs of the interim application but Mr
Namandje, who appeared for him, rather proposed that costs should be
costs in the review.
The
Inspector-General is cited as the first respondent and the Minister
of Safety and Security is joined as the second respondent. The third
respondent is the police officer appointed on 13 June 2011 to the
applicant’s erstwhile position of the Head of the VIPPD. He
does not oppose the application for interim relief. Nor does the
Minister.
The applicant’s personal background is not in issue. He grew
up in the northern part of Namibia and left the country in 1975 to
take up arms and to fight for the liberation of Namibia as a member
of the Peoples Liberation Army of Namibia. He served in this
capacity until 1989 and thereafter returned to Namibia. During this
period, the applicant received training in VIP protection and
continued this work after Independence. He was initially part of the
Presidential Security Detail to the founding President and in
December 2005 was appointed as Head of the VIPPD. He took up this
appointment as a Deputy Commissioner and in 2008 was promoted to the
full rank of Police Commissioner in the same position.
The
VIPPD is entrusted with the security and protection of both national
and visiting dignitaries. As background to the application, he
referred to some incidents which occurred from 2006 to 2010 in which
accusations were made that he favoured one or more tribes or clans
at the expense of others. He denied these accusations and stated
that he abhors tribalism. As a consequence, he addressed a
submission to the Inspector-General in 2008 and again in 2010
seeking an investigation of the allegations of this nature made
against himself. It would appear that no investigation was held.
On 13
June 2011, the applicant was summoned to a meeting at Police
National Headquarters chaired by the Inspector-General. Ten senior
officers, including the Inspector-General and the applicant were
present. The applicant states that this meeting was about 10 minutes
in duration.
At
the meeting, the Inspector-General referred to a text message sent
to one of his deputies, Major General Tjivikua. The
Inspector-General proceeded to read the message to the meeting. It
raised issues of a tribalistic nature. It is common cause that the
Inspector-General then stated that he suspected the applicant of
sending the message – or to be involved in sending the
message. This was because the text message had emanated from a
cellular phone (handset) with a specific serial number, being a
Nokia E7 which was the usual handset used for the applicant’s
cell number. The cell number (and SIM card) from which the text
message was sent was however different to the applicant’s
number. The Inspector-General stated that the applicant’s SIM
card would appear to have been removed from the handset and replaced
by a different SIM card with a different number and the message was
then sent from the same handset.
After
reading and thus referring to the text message, the
Inspector-General then announced to the meeting that the applicant
was to be transferred from VIPPD with immediate effect to take up
the position as Regional Police Commander in the Omaheke Region. The
third respondent was then transferred from the Crime and
Investigation Department to take up the applicant’s position.
The Regional Commander in the Omaheke Region was simultaneously
transferred and appointed as Regional Commander to the Caprivi
Region. The incumbent to the latter position was then appointed as
the Head of the Crime and Investigation Department.
The
applicant stated that he requested the opportunity to respond to the
allegations related to sending the text message but that this was
denied. The Inspector-General however does not dispute that the
meeting lasted only about 10 minutes but states that he said that
the applicant should address any response or make representations
concerning the allegations against him to an investigating committee
he had appointed comprising Commissioner Shilunga as head of the
committee. He occupies a position as Head of Internal
Investigations. The other committee members are Commissioner Libuto
(Head of Special Branch) and Commissioner Nahole (Head of the
Communications). The committee was instructed to investigate the
allegations against the applicant and address a report to the
Inspector-General for final consideration. A decision would then be
taken as to whether to charge the applicant with an internal or
criminal offence.
The
Inspector-General does not dispute that he required the applicant to
vacate his office with immediate effect and that Major General
Hifandaka accompanied him to remove his personal items from his
office. The applicant states that he was humiliated by this and felt
that he was being treated like a criminal. He was provided with an
office at Police Headquarters. The Inspector-General states that the
move to the Headquarters was with immediate effect (and the removal
from the position as head of the VIPPD). He confirms that the
applicant was not given any opportunity to make representations on
that move but stated that his rank, salary and personal position
relating to his home and children would not be affected by that
move.
The
applicant then applied for leave which was granted. The
Inspector-General further stated that after the investigation is
finalised and if the applicant were not to be “formally
suspended or charged”, he and the other consequential
transferees would take up their new positions. He denies that the
transfers were thus with immediate effect but would only be
implemented upon the conclusion of the investigation. He pointed out
that all of the other members who are to be transferred were (unlike
the applicant) still serving in their current positions. But the
applicant was not serving in his position by virtue of the fact that
it is a position of trust. The Inspector-General stated that he had
lost confidence in the applicant’s decision-making ability and
judgment as a consequence of the text he was suspected of sending.
He thus removed him from his position pending the investigation and
pending the decision to press internal or criminal charges against
the applicant. It emerges from the answering affidavit that the text
message was the cause of the decision to transfer the applicant.
This was confirmed in argument on behalf of the Inspector-General by
his counsel, Mr G Narib.
In
his answering affidavit, the Inspector-General did not place the
wording of the text before Court. He merely referred to it as being
“very serious, offensive and extremely tribalistic” and
did not want it to become public information owing to the in depth
investigation and what he termed the inflammatory nature of it,
having “racial, tribal, ethnic and regionalistic connotations”
which he considered impacted upon “the dignity of a number of
people within the State Machinery including the Office of the
President”.
The
text of the message was however attached to the applicant’s
replying affidavit. At the hearing, Mr G Narib, who appeared for the
Inspector-General, sought an order to prevent its disclosure. I
asked him to state the basis for doing so. He pointed out that it
would be detrimental to the discipline of the Police Force and not
in the national interest. He correctly conceded that State privilege
had not been properly claimed as is required by Van der Linde v
Calitz 1.
No other basis to prevent the disclosure of the text was raised. I
accordingly decline to make such an order.
In
the absence of the proper invocation of State privilege, and as it
is relevant, I set out the text in the form attached to the replying
affidavit. It states:
“INSPECTOR GENERAL TAKE NOTE THAT THE
HISTORY WILL SAY ABAUT YOUR AGE THAT YOU WERE WHO WAS RICH IN HATES
OF THOSE YOU CALLED OSHIWAMBO SPEAKING PEOPLE IN THE NAMIBIAN POLICE
FORCE, PARTICULAR THE NON KWANYAMAS OSHIWAMBO SPEAKING. REMEMBER
DURING THE WAR OF LIBERATION THESE PEOPLE WERE THE MAJORITY THEN YOU
KWANYAMAS AND THE SO CALLED OTHER TRIBES WHO BECAME YOUR DAILY SONG
OF HAPPENES, STOP ALSO CALLING US WAMBO,S, WERE ARE WHO WE ARE AND WE
CAN BE IDENTIFIED BY OUR TRIBES AS
KOLONKADHI, KWALUDHI, MBALANTU, MBANDJA, NDONGA, NGANDJERA,
KWAMBI, OVADEMB A, OVAHIMBA, NDONGONA, HAKAHONA NOT WAMBOS AS YOU ARE
CALLING US, WE WERE THE PEOPLE WHO WERE IN THE BATTLE TO LIBERATE
THIS COUNTRY WE DID SO WITH VINGUOS AND DETERMINATION SHANAKULYA
OSHANA KULONGA, WE DID NOT FOUGHT THOSE BATTLES TO CAME AND SUFFER ON
OUR OWN EXPENSES TO THE
SO CALLED ATHER TRIBES, CAPRIVI, KAVANGO, NAMA, HERERO, DAMARA
WERE THERE AND WE CAN COUNT THEM, TSANA, S WERE NO WHERE TO BE SEEN,
WE ARE DEMANDING THAT THIS TIME THERE MUST BE A NDONGA, KWAMBI,
NGANDJERA, KWALUDHI MAJOR GENERALS IN THE POLICE FORCE AND STOP THE
KWANYAMA HERERO WHITES ONLY MONOPOLY OF THE POLICE, YOU SHOULD ALSO
MAKE SURE THAT THE NEXT INSPECTOR GENERAL IS FROM THOSE FOUR TRIBES
REFERED TO ABOVE, WE HAVE ENOUGH OF YOU KWANYAMAS, HEREROS AND YOUR
WHITES, AND HEREROS SINCE IDEPEANCE. OUR INTELLIGANCE CAN NOT
CONTINUES TO INSULTED ANY LONGER BY YOU,
YOURS GEN, NATSE OTWEYA” (sic)
Whilst
the tone of this text is disrespectful, and arguably insubordinate
if made by a subordinate officer, it would appear to be an
inarticulate, poorly formulated and possibly intemperate critique of
the composition of the top structure of the Namibian Police,
suggesting tribalism in the filling of such positions whilst at the
same time making tribalistic comment. Given the conclusion I reach
in this matter, it is not necessary for me to further deal with or
comment upon the context and terms of this text.
The
Inspector-General further stated that he had become aware of the
text message on 28 May 2011 and had instructed a preliminary
investigation by Commissioner Nahole. This investigation had
provided him with what he termed a reasonable suspicion that the
text emanated from the applicant “or from the cell phone
associated or previously associated with the applicant”. This
was with reference to the serial number of the handset and the fact
that the same handset had been used by the applicant’s number
even though the text message had been sent with a different SIM card
apparently inserted in that handset.
Following
his summary removal from his position, the applicant approached his
legal practitioner who addressed a letter to the Inspector-General
on 14 June 2011 raising the failure to have afforded the applicant
an opportunity to be heard prior to the decision to remove him from
his position and to transfer him to the Omaheke Region. An
undertaking was then sought that the transfer not be proceeded with,
failing which an urgent application would be brought. In response to
this letter, the Inspector-General on 15 June 2011 stated that the
investigating committee would hear the applicant’s side of the
story with respect to the investigation of the allegations. He also
stated that if the applicant had any issue concerning his transfer,
he would be at liberty to meet the committee members at any time. No
undertaking was however given. The applicant’s legal
practitioner addressed another letter on 15 June 2011 reiterating
the request for an undertaking. When this was not supplied the
application was launched.
The
applicant then brought an application to review the decision to
transfer him on a number of review grounds, seeking interim relief
on an urgent basis.The
application was launched on 16 June 2011 and served on the
respondents on the following day. It was set down for and heard on
24 June 2011. An answering affidavit was served on the afternoon
before the date of hearing. It was pointed out that the
Inspector-General had been out of office and was only able to file
an affidavit at that stage. In his opposition to the application for
interim relief, the Inspector-General confined himself to setting
out his own duties and functions and briefly referred to the nature
of the duties and functions of the VIPPD. He also raised certain
points in limine. These included challenging the urgency of
the application and taking the point that the applicant had not
exhausted his internal remedies. He also even contended that the
decision to transfer the applicant was not justiciable. The
Inspector-General reserved the right to fully address the
allegations with reference to the review in due course.
I
first deal with the preliminary points and then turn to the
requisites for interim relief and examine whether those were met by
the applicant.
Urgency
The
main thrust of the first respondent’s argument on urgency is
that the formal transfer letter addressed to the applicant on
13
June 2011 (which stated that it was with immediate effect) was in
fact incorrect and that the applicant would remain in the office
allocated to him at Police Headquarters until the investigation
concerning the allegations against him was finalised. This was spelt
out in a letter addressed by the Government Attorney to the
applicant’s legal practitioners on 21 June 2011. It was thus
denied that the matter was urgent in that the transfer was not with
immediate effect in that the applicant was removed to the Police
Headquarters on a temporary basis until the finalisation of the
investigation against him and that he could also make
representations to the committee investigating the allegations
against him concerning his transfer.
The
applicant’s legal practitioner rejected this approach
contending that it was self-serving and crafted to form the basis
for taking the point of urgency in opposition to the hearing of the
application. It was asserted that the applicant had in fact been
transferred with immediate effect, as has been told to him, and
confirmed in the letter of the same date.
The
position as set out in the Government Attorney’s letter (of
21 June 2011) was reiterated by the Inspector-General in his
answering affidavit. He further asserted that the removal of the
applicant from his position as head of the VIPPD was on grounds of
national security. Even though he states that the applicant would
occupy his office in Police Headquarters on a temporary basis
pending the finalisation of the investigation, he does not state
what actual position (as opposed to a physical office) the applicant
would occupy in the sense of duties allocated to him. There is also
no indication whatsoever as to how long the investigation would
take. Presumably he would be capable of finalisation reasonably
quickly. The Inspector-General regarded the applicant’s
occupation of the office in Police Headquarters as temporary. The
decision is thus partially implemented and its completion is merely
temporarily held up.
In
the course of the argument, Mr Narib also complained about the short
time period within which the Inspector-General was required to file
his answering affidavit. I enquired as to whether he sought further
time within which to amplify his affidavit. I did so in order to
establish the extent to which there was prejudice on the part of the
respondents, given the tight time periods, and to address that
prejudice, if need be. Mr Narib however responded that the
Inspector-General did not seek any further time. It would follow
that there was not any real prejudice as a consequence of the short
time periods.
I
then enquired from Mr Narib, seeing that the Inspector-General did
not seek further time to file any further papers or time for
preparation, whether he contended that the application for interim
relief was not urgent in the sense that the applicant would be able
to receive redress in the ordinary course. He submitted that this
was the case. I also pointed out to Mr Narib in determining the
question of urgency, this Court would assume for that purpose that
the applicant’s case is a
good one and that the decision to transfer would fall to be set
aside, in accordance with the authorities accepted by this Court 2.
Applying
this test to the facts of this case, it is abundantly clear to me
that the applicant would not be afforded redress in the normal
course if the application for interim relief were to be brought in
that way.
It is
also clear to me that the applicant acted with all due speed in
bringing this application and has not unduly delayed in bringing
this application or created his own urgency, applying the principles
set out by this Court in Bergmann v Commercial Bank of Namibia
Ltd 3.
In
the exercise of my discretion, I accordingly grant condonation for
bringing this application as one of urgency under Rule 6(12).
Exhaustion
of internal remedy
In
his answering affidavit, the Inspector-General refers to the powers
vested in him under s 3 of the Act. He specifically refers to
s
3(2)(d) which empowers him to “organise or reorganise the
force into various components, units and groups”. He
surprisingly did not refer to the regulations promulgated under the
Police Act, 19 of 1990 as amended. These were referred to in Viljoen
and Another v Inspector-General of the Namibian Police 4.
That case concerned the transfer of a police officer which was set
aside by virtue of the decision being in conflict with Article 18 of
the Constitution. There was in that case a reference to Regulation
2(2) which authorises the Inspector-General to “transfer any
member permanently or temporarily from one district, station, office
or institution to another”. I return to this aspect when
referring to the requisites for interim relief.
The
Inspector-General however proceeds to refer to the powers of the
Minister under s 3A of the Act which include the power to “set
aside or vary any decision or action taken by the Inspector-General
or any member to whom any power or function may have been delegated
or assigned. The point is then taken that the applicant was required
to exhaust this internal remedy afforded to him under the Act (and
apply to the Minister to set aside the transfer) that the
application was premature and should be dismissed on this ground as
well.
The
test as to whether the exhaustion of internal remedy or statutory
remedy would be required was recently succinctly summarised by this
Court in National Union of Namibian Workers v Naholo 5.
In that matter, Tötemeyer AJ held that the real enquiry was to
give a proper interpretation to the provisions of the statute
providing for the domestic remedy in order to establish whether a
party was first required to exhaust the internal procedure before
approaching this Court. He held that the mere fact that the
legislature had 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 had exhausted his or
her statutory remedies. Tötemeyer AJ concluded that only where
the statutory provision properly construed requires the exhaustion
of an internal remedy first, would it defer the jurisdiction of the
High Court until the internal appeal remedy is exhausted.
In
considering whether the remedy asserted by the Inspector-General
required exhaustion, regard should also be had to the other
provisions of the Act and the Regulations. These include those
embodied in Chapter III of the Act with reference to discipline.
In
disciplinary proceedings against members, a member of the Police
Force has expressly been provided with the right to appeal to the
Minister against the conviction and punishment imposed upon him or
her in disciplinary proceedings taken under the Act. There is also s
23 dealing with suspension of members. It specifically empowers the
Inspector-General to suspend a member from office pending a trial or
an enquiry or the institution of disciplinary proceedings against
that member. This section does not however provide for a right of
appeal to the Minister against such a suspension, given the fact
that there is a right of appeal at the conclusion of disciplinary
proceedings against a specific member.
It
would not seem to me that a construction of the Act and Regulations
referred to in the Viljoen judgement required the exhaustion
of the internal revenue referred to before an applicant may approach
the Court. This point was not raised in that matter. Nor was it
raised in the Sheehama-matter. It would seem to me that the
wording of the statutory provisions and in particular s 3A do not
support such a construction. This section does not refer to it as a
right of review enjoyed by members. Nor is there reference elsewhere
in the Act to members enjoying such an internal right of review.
They are thus not informed in the Act of this internal right of
review and are not in my view on notice to exercise it. Section 3A
merely vests the Minister with the power to set aside or vary
decisions or actions taken by the Inspector-General. In the context
of disciplinary action – which the decision-making in this
matter may give rise to - there is an express provision concerning
an appeal to the Minister against a conviction and punishment
imposed in the course of disciplinary proceedings taken under the
Act. An express remedy for an appeal is not provided for in the
context of a suspension. Nor is one fashioned for a transfer under
the Regulations. It would also not seem to me that the wording of s
3A, which does not expressly state that access to the Courts should
be deferred pending recourse to the Minister, would give rise to a
deferral of the right to approach the Court. There are also
practical reasons why an applicant would not in my view need to
approach the Minister in the event of an immediate transfer. There a
decision is taken which has immediate consequences, it may well
render an affected member of the Force remediless if the Minister is
first approached and a decision is not urgently taken.
I am
accordingly of the view that the provision of s 3A when considered
with the other provisions of the Act would not require the
exhaustion of a remedy contained in s 3A of the Act before an
applicant may approach this Court. It follows that s 3 A does not in
view constitute an internal remedy which requires exhaustion and
that this point taken by the Inspector-General must fail.
Interim
relief
I
turn to the requisites for interim relief. These are well settled
and were neatly summarised in Hix Networking Technologies v
System Publishers (Pty) Ltd 6
as follows:
“The legal principles governing interim
interdicts in this country are well known. They can be briefly
restated. The requisites are:
(a) a prima facie right,
(b) a well-grounded apprehension of irreparable harm if the relief
is not granted,
(c) that the balance of convenience favours the granting of an
interim interdict; and
(d) that the applicant has no other satisfactory remedy.
To these must be added the fact that the remedy is a discretionary
remedy and that the Court has a wide discretion.” 7
It is
also well established that the grant of interim relief can be
utilised in review proceedings 8.
In
order to establish a prima facie right, the applicant would
need to do so with reference to the review of the decision to
transfer him from the position of head of VIPPD to the Regional
Commander, Omaheke Region. That decision is challenged on the
various review grounds set out in the founding affidavit. These
include asserting that the decision was based on ulterior motives
and the failure to apply the mind to the issues at hand. It is also
contended that the Inspector-General acted arbitrarily and also
failed to afford the applicant the opportunity to be heard prior to
taking the decision. This latter failure is alleged to be manifested
in two ways, namely with reference to the right to respond to the
allegations made against him and to afford him the opportunity to be
heard as to why the transfer with immediate effect should not
proceed. The applicant also challenges the decision-making as being
in conflict with Article 18 of the Constitution and that the
allegations against him were unfounded and not made in a sound
factual basis.
In
advancing argument in support of these grounds,
Mr Namandje on
behalf of the applicant, contended that the right to be heard should
have been accorded to the applicant, even on an attenuated basis. He
submitted that there was a comprehensive failure to accord the
applicant the right to be heard in the 10 minute meeting which took
place, resulting in the applicant’s summary removal from his
position and his transfer.
Mr Narib submitted on behalf of the Inspector-General however that
the applicant could make representations to the investigation
committee on both the allegations made against him as well as the
transfer.
The
Inspector-General, by referring to the applicant being able to make
representations to the committee in respect of the transfer, would
appear to correctly accept that the right to be heard should be
accorded to a person in the position of the applicant with reference
to his transfer. This was also established in Viljoen and Another
v Inspector-General of the Namibian Police 9.
With reference to the regulations promulgated under the Act, that
Court stated:
“The transfer regulations specifically
stipulated that there should be prior consultation with affected
officers before the transfer was made.” 10
These
regulations were however not referred to by either the applicant or
the Inspector-General in argument or in their papers. I must accept
that what was stated by this Court in Viljoen and Another v
Inspector-General would apply. This case was extensively
referred to by Mr Namandje in argument.Mr
Narib, in correctly accepting that there would be a right to make
representations, indicated that this could happen afterwards and
that the Inspector-General had expressly invited the applicant to
make representations concerning his transfer to the committee
investigating the allegations against him. Mr Narib referred to the
decision of the Supreme Court in Mostert v Minister of Justice
11
where the Court found that the making of representations subsequent
to a provisional decision to transfer may (and in that matter did)
meet the requirements of audi alteram partem. But that
judgment should be understood on its facts and within the overall
approach of the Supreme Court to the right to be heard articulated
in that judgment.
In
reaching its conclusion, the Supreme Court however found that in
general, the right to be heard should be accorded prior to a
decision being taken but that there could be a departure from this
principle where clearly justified by specific facts, where an
initiator makes a provisional decision to be followed by
representations. (This is for instance what frequently occurs in a
planning context.) In the Mostert matter, the Permanent
Secretary of Justice had given notice to a magistrate of a transfer.
The magistrate then objected to that transfer and made extensive
representations to the Permanent Secretary. In the course of this
exercise, the Permanent Secretary had informed the magistrate that
the decision to transfer was not final and that it was open to him
to make representations concerning the transfer which then proceeded
over an extended period of time. There was also evidence that the
practice within that Ministry was to give magistrates notice of an
intended transfer and afford them the opportunity to make
representations. The transfer would thus be initiated by the
Permanent Secretary and representations would be received and
considered with an open mind concerning the decision to transfer
that specific magistrate. The Supreme Court accepted that the
transfer notice was thus provisional and subject to representations.
In
this instance, no evidence was placed before me as to any practice
of that nature. On the contrary, the manner of the decision-making
would indicate its finality, given the consequential transfers which
were also announced. In the Mostert matter the Court found
that the magistrate had not established on a balance of
probabilities that the decision to transfer him was a final
decision.
The
degree of proof to establish a prima facie right is well
established. It has been consistently applied by the courts. It has
been cogently summarised by Justice Harms in The Law of South
Africa 12
in the following way:
“The degree of proof required has been
formulated as follows: The right can be prima
facie established
even if it is open to some doubt. Mere acceptance of the applicant’s
allegations is insufficient but a weighing up of the probabilities of
conflicting versions is not required. The proper approach is to
consider the facts as set out by the applicant together with any
facts set out by the respondent which the applicant cannot dispute,
and to decide whether, with regard to the inherent probabilities and
the ultimate onus, the applicant should on those facts obtain final
relief at the trial. The facts set up in contradiction by the
respondent should then be considered, and if they throw serious doubt
on the applicant’s case the latter cannot succeed.”
The
applicant’s version that the transfer was to take immediate
effect is put in issue. His version is however confirmed in the
official notice of his transfer given to him on the same day as the
meeting. The manner in which the applicant’s transfer was
announced and the further consequential transfers were also
announced – both with reference to the text bringing about the
transfers and the further consequential transfers, would also
demonstrate that a final decision in respect of the transfers was
thus made by the Inspector-General and that the transfers were to
proceed. There was no indication that the decision to transfer was
provisional in any respect at all, unlike the clear facts set out in
the Mostert matter. On the contrary, the decision to transfer
the applicant was in fact partially implemented forthwith. He was
required to remove himself physically from his office at the VIPPD
and he was summarily stripped on his duties and functions with
regard to the VIPPD. This was unlike all of the other consequential
transfers. The transfer was thus to take place straight away with
the applicant being removed from his position. The transfer was thus
put in motion with immediate effect. The further component of taking
up the new position was put on hold temporarily.
The
invocation of national security and compelling urgency raised by the
Inspector-General to take that decision however fail to take into
account that he was already aware of the text for more than 2 weeks
before he announced the transfer and removed the applicant from his
position on 13 June 2011. To have accorded the applicant his right
to be heard even on an attenuated basis would thus hardly delay the
decision - by a few hours or a day or two. It was not explained why
this could not occur or was not feasible. The failure to do so is in
my view fatal to the Inspector-General’s case. As was
emphatically stated in Mostert v Minister of Justice 13:
“Non-compliance with the audi rule, where
the rule applied, invariably leads to the setting aside of the
administrative action.”
The
Court also stressed that the right to be heard should as a general
rule be accorded prior to the decision in the following way:
“In the case of Administrator, Transvaal
and Others v Traub and Others 1989 (4) SA 731 (A) at 750C - E,
Corbett CJ stated the following in regard to the rule, namely:
'Generally speaking, in my view, the audi principle requires the
hearing to be given before the decision is taken by the official or
body concerned, that is, while he or it still has an open mind on the
matter. In this way one avoids the natural human inclination to
adhere to a decision once taken (see Blom's case supra at 668C - E;
Omar's case supra at 906F; Momoniat v Minister of Law and Order and
Others; Naidoo and Others v Minister of Law and Order and Others 1986
(2) SA 264 (W) at 274B - D). Exceptionally, however, the dictates of
natural justice may be satisfied by affording the individual
concerned a hearing after the prejudicial decision has been taken
(see Omar's case supra at 906F - H; Chikane's case supra at 379G and
Momoniat's case supra at 274E - 275C). This may be so, for instance,
in cases where the party making the decision is necessarily required
to act with expedition, or if for some other reason it is not
feasible to give a hearing before the decision is taken.'”
As to
whether representations subsequent to a decision would suffice, the
Court in Mostert dealt with that issue by referring with
approval to South African authority:
“In the matter of Mamabolo v Rustenburg
Regional Local Council 2001 (1) SA 135 (SCA) the Court referred with
approval to the statement by Baxter op cit at 588, namely:
'In certain instances a Court may accept as sufficient compliance
with the rules of natural justice a hearing held after the decision
has been taken, where there is a sufficient interval between the
taking of the decision and its implementation to allow for a fair
hearing; the decision-maker retains a sufficiently open mind to allow
himself to be persuaded that he should change his decision; and the
affected individual has not thereby suffered prejudice.' 14
This
Court in the Viljoen matter held that prior consultation was
required with reference to a decision to transfer officers of the
Namibian Police, in cases where a transfer could adversely affect
them, and that the failure to accord officers the right to be heard
in that context would result in such a decision being set aside. I
am bound by that approach, which I in any event consider to be
entirely correct 15.
I am further and in any event of the view that the test for a
subsequent hearing to meet the audi principle as set out in
Mambolo would not be met by the offer to the applicant to
hear representations subsequently. The decision has been partially
implemented, the applicant has suffered prejudice and it is not
clear to me that the Inspector-General has retained a sufficiently
open mind as the basis for the transfer is the text and the
applicant’s involvement, upon which he has expressed strong
views.
Furthermore,
taking into account the statute under which the Inspector-General
acts with reference to transfers and discipline, the right to be
heard is given prominence both with reference to disciplinary
proceedings against members of the Force as well as a decision to
suspend a member. Section 23 specifically requires that, except
where it is in the interest of the Force that a member be
immediately suspended, the Inspector-General is obliged to conduct a
hearing at least 7 days before the suspension of a member so that
the member is afforded an opportunity to make representations as to
why he or she should not be suspended. A shorter period would be
permissible where the interest of the force requires a decision to
be taken immediately.
It
would seem to me that the applicant has in effect been suspended,
given the fact that his transfer is not to be implemented to
finality until the investigation is completed and a decision taken
whether to take disciplinary action against him. He has in the
interim been stripped of his duties and functions in his position as
head of the VIPPD, unlike the other senior officers who will be
transferred as a consequence of his transfer. The applicant is
required to report to an office without any duties having been
assigned to him. I enquired from Mr Narib as to the applicant’s
current duties and he was not able to state what the applicant’s
functions and duties would be in the office temporarily assigned to
him at the Police Headquarters. What emerges from the facts is that
he is stripped of his duties and functions and temporarily consigned
to an office pending the outcome of the investigations of the
allegations against him.
Given
the statutory context in which the decision was taken and where a
decision to suspend would ordinarily need to be preceded by an
opportunity to be heard and a transfer requires prior consultation,
I am of the view that audi alteram partem, even in an
attenuated form, should have been observed when the decision to
transfer the applicant was taken and thereafter partially
implemented by removing him from his position. I am reinforced in
this view by virtue of what was stated in Muller and Others v
Chairman, Minister’s Council, House of Representatives and
Others 16
and cited with approval in the Sheehama
17
matter as follows:
“Now the correct approach to the question
whether the audi rule applies in a statutory context is this. When
the statute empowers a public body or official to give a decision
prejudicially affecting an individual in his liberty, property,
existing rights or legitimate expectations, he has the right to be
heard before the decision is taken unless the statute expressly or
impliedly indicates the contrary: Administrator, Transvaal and Others
v Traub and Others 1989 (4) SA 731 (A) at 748G ....”
There
is not only no indication in the Act and regulations that the
decision to transfer the applicant would exclude the application of
the audi rule. On the contrary, the Viljoen matter
makes it clear that it should apply.
It
would follow in my view that audi alteram partem rule should
have been observed by the Inspector-General before the applicant
could be transferred in a manner in which he sought to do so and
that the failure to do so would be fatal to his decision-making.
This is especially so when the decision to transfer was triggered by
the text message which the Inspector-General considered to render
the applicant unsuitable to continue in his position. Plainly the
applicant should have been heard in relation to that. He has in my
view at the very least established a prima facie right to
have been heard. The Inspector-General had the matter provisionally
investigated for more than
2 weeks. As I have said no
explanation is given why the applicant could not be heard on the
issue on short notice – such as a few hours or even a day or
two. As Mr Narib conceded, there was no evidence that his security
clearance has been removed or in any way affected by that text
message sent more than 2 weeks before.
It
would follow that the applicant has in my view established a prima
facie right to the review relief claimed.
Mr
Narib invited me to accord due deference to the administrative
context of the decision-making and to appreciate the legitimate and
constitutionally ordained province of the Inspector-General’s
right to assess and determine suitability for positions within the
Force. He referred to the judgment of the South African
Constitutional Court in Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
18.
This principle has also being followed and accepted by the Supreme
Court 19.
It would in my view not have any application to the present
circumstances. The Bato Star Fishing
matter concerned the expertise entailed in what
was correctly termed “policy - laden and polycentric issues”
in the context of decision-making with regard to the determination
of a total allowable (fishing) catch and the allocation of rights to
fishing concerns to exploit that catch. The Waterberg
case concerned issues of biodiversity in
decision-making by the Ministry in question. I would agree that
there is limited room for judicial intervention in the weighing up
of countervailing considerations in the review of decisions of that
nature or of a highly technical kind. This approach is also
consistent with the fundamental principle in the review of
administrative decision-making namely that it entails a review of
the decision, thus relating fundamentally to its irregularity as
distinct from an appeal. The present circumstances relate to the
failure to accord the applicant a hearing within the context of his
transfer, particularly when it was triggered by an incident which
called for the application of the right to be heard. There can be no
application of any judicial deference to the decision-making where
there has been such a fundamental failure of procedural fairness.
That failure has nothing to do with the weighing up of technical or
specialised considerations where judicial intervention may be
inappropriate.
As
to the requisites of a well grounded apprehension of irreparable
harm and the balance of convenience, I am also of the view that the
applicant has established these requisites for interim relief. The
fact that a physical office is accorded to him in the Police
Headquarters and that he is still will receive his salary and other
employment benefits in the meantime and that his service in the
VIPPD was not be of a permanent nature in any event and that he was
susceptible to a future transfer, would not avail the
Inspector-General in this regard. Clearly, the circumstances
surrounding the transfer, almost amounting to a form of suspension,
particularly when considered in the context of the other transfers,
and the way in which he was escorted to his erstwhile office to
remove his belongings and to take up the position in Police
Headquarters would clearly in my view involve a degree of stigma.
Being seen to be so removed from his position by his fellow officers
compounds this stigma. Even if he were not to be disciplined and the
pending transfer were then to proceed, there is a serious
possibility of an injustice arising. In applying Bandle
Investments (Pty) Ltd v Registrar of Deeds and Others 20,
I am of the view that the balance of convenience would also favour
the granting of the interim relief. In that matter it was stated 21:
“In considering the balance of
convenience it behoves me to take cognisance of the fact that the
refusal of the relief sought will cause the loss of the right, whilst
granting the relief will cause the further respondents no loss
whatsoever. In fact if the right lapses, it reverts to the third
respondent who thereby acquires an extremely valuable right. What
should be avoided is the possibility of doing an injustice. It is
apposite in this context to refer to the remarks of Hoffman J in the
English case of Films Rover International Ltd and Others v Cannon
Film Sales Ltd [1986] 3 All ER 772 (Ch) at 780-1, where he stated:
"The principal dilemma about the grant of interlocutory
injunctions, whether prohibitory or mandatory, is that there is by
definition a risk that the court may make the 'wrong' decision, in
the sense of granting an injunction to a party who fails to establish
his right at the trial (or would fail if there was a trial) or
alternatively, in failing to grant an injunction to a party who
succeeds (orwould succeed) at trial. A fundamental principle is
therefore that the court should take whichever course appears to
carry the lower risk of injustice if it should turn out to have been
'wrong' in the sense I have described. The guidelines for the grant
of both kinds of interlocutory injunctions are derived from this
principle."
There is furthermore no question that the applicant has no other
remedy. I am therefore satisfied that neither authority nor principle
precludes me from granting the relief sought by the applicant.”
As to the requisite of an alternative remedy, it is clear to me on
the facts that the applicant does not have an adequate alternative
remedy to the interim relief sought by him.
I am
accordingly satisfied that the applicant has established the
requisites for interim relief and that he should be granted certain
interim relief, although not in the broad terms set out in the
notice of motion. The terms of the order sought by the applicant are
in my view too wide and could be interpreted to preclude the
Inspector-General from validly taking disciplinary steps against the
applicant after the conclusion of the investigation, if he is so
minded or advised. The Inspector-General should then be interdicted
from implemented the decision to transfer the applicant pending the
outcome of the review and to reinstate him in his prior position
pending the review.
I
accordingly grant the following order:
Condoning
non-compliance with Rule 6(12) of the Rules of this Court and
hearing the application for interim relief on an urgent basis;
A
rule nisi hereby issues interdicting the first respondent
from implementing his decision of 13 June 2011 to transfer the
applicant as Regional Commander: Omaheke Region pending the
finalisation of the application to review that decision;Directing
that the applicant be reinstated to his position as head of the VIP
Protection Directorate with immediate effect pending the
finalisation of such review application;
Directing
that the order set out in (b) and (c) operate as interim interdicts
with immediate effect;
Directing
that the costs of the application for interim relief be costs in the
review application.
___________________________
SMUTS, J
ON BEHALF OF APPLICANT Mr S Namandje
Instructed by: Sisa Namandje & Co
ON BEHALF 1stRESPONDENT Mr G Narib
Instructed by: Government Attorney
2Twentieth
Century Fox Film Corporation and Another v Antony Black Films (Pty)
Ltd 1982 (3) SA 582 (W) at 586G, followed by this Court in
Sheehama v Inspector-General of the Namibian Police 2006 (1)
NR 106 (HC); Walmart v Chairperson, Namibian Competition
Commission and Others, unreported judgment dated 28 June 2011.
52006
(2) NR 659 approved and followed in Wal-Mart
Stores Inc v Chairperson, Namibian Competition Commission and Others
supra.
19Waterberg
Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of
Environment and Tourism 2010 (1) NR 1
(SC) at 33C-E (per Shivute CJ).
202001
(2) SA 203 (SE) at 215, expressly approved in Sheehama v
Inspector-General, Namibian Police supra at 117-118.