CASE
NO.: A 155/2009

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

JACOB
ALEXANDER
….......................................................................................APPLICANT

and

IMMIGRATION
SELECTION BOARD
…........................................................RESPONDENT

CORAM:
LIEBENBERG,
J.

Heard
on: 06.12.2010

Delivered
on: 27.01.2011

JUDGMENT

Application
for leave to Appeal

LIEBENBERG,
J.: [1]
This is an application for leave to appeal against this Court's
judgment and order, including the order of costs, dismissing
applicant's application in terms of Rules 35(12) and 53, read with
Rule 6(11) of the Rules of the High Court of Namibia. In his
application applicant sought an order against the respondent, the
Chairperson of the

Immigration
Selection Board, compelling her to disclose a document, referred to
in the papers as "the legal opinion", obtained from the
Board's legal practitioners. Respondent opposes the application.

[2]
The grounds upon which the application for leave to appeal are
founded, are the following:

"1. The
Learned Judge erred in failing to distinguish the present case which
involved a claim ofprivilege over advice sought by an organ of state
for the primary purpose of guiding it in the performance of a
statutory duty, from claims of privilege asserted over advice
received in relation to litigious disputes between private parties.

2. The learned
Judge erred in failing to find that a party cannot deploy the fact of
legal
advice and matters relating to the contents of that advice
for the purposes of advancing its
case in litigation without
waiving its privilege over that advice.

3. The Learned
Judge erred in finding

3.1. that it was
not possible objectively to infer that the gist, summary or
conclusion of the legal opinion obtained by the Respondent was
disclosed in paragraphs 19.1 to 19.2 of the affidavit of Ms Hiveluah,
and

3.2 that the
Applicant had failed to show that, based on principles offairness and
consistency, the Court should find that there had been an imputed
waiver.

4. Having failed
to find that a case for waiver of privilege had been made out by
the
applicant with reference to the papers alone, the learned
Judge erred by failing to take a

"judicial
peek" at the opinion to determine whether principles of fairness
and consistency demanded its disclosure.

5. The Learned
Judge erred in making a costs order against the Applicant.

6. The learned
Judge should have found "

[3]
Appeals to the Supreme Court are governed by the provisions of s 18
of the High Court Act 16 of 1990 which provides as follows:

"(1) An
appeal from a judgment or order of the High Court in any civil
proceedings or against any judgment or order of the High Court given
on appeal shall, except in so far as this section otherwise provides,
be heard by the Supreme Court.

(2)

(3) No judgment
or order where the judgment or order sought to be appealed from is
an
interlocutory order or an order as to costs only left by law to
the discretion of the court shall
be subject to appeal save with
the leave of the court which has given the judgment or has
made
the order, or in the event of such leave to appeal being refused,
leave to appeal being
granted by the Supreme Court. "

[4]
The Supreme Court in the case of Andreas
Vaatz and Another v Ruth Klotzsch and Others, (unreported)
delivered on 11.10.2002; and in Aussenkehr
Farms (Pty) Ltd v Minister of Mines and Energy 2005
NR 21 (SC), with approval, referred to the meaning ascribed to the
words 'judgment' and 'order' as set out by Erasmus - Superior
Court Practice, para
A1-43 where the learned authors concluded that, in order to be an
appealable judgment or order, it had to have three attributes,
namely:

"(i) the
decision must be final in effect and not susceptible to alteration by
the Court of first instance;

(ii) it must be
definitive of the rights of the parties, ie it must grant definite
and distinct
relief; and

(iii) it must
have the effect of disposing of at least a substantial portion of the
relief claimed
in the main proceedings."

In
Aussenkehr
(supra) the
Court, also with approval, referred to Zweni
v Minister of Law and Order 1993
(1) SA 523 (A) where it was said that a non-appealable decision or
ruling "is
a

decision
which is not final (because the Court of first instance is entitled
to alter it), nor definitive of the rights of the parties nor has the
effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings."

[5]
From the aforestated judgments it then seems clear that before a
judgment or order, arising from interlocutory proceedings, becomes
appealable with leave of the Court in terms of s 18 of Act 16 of
1990, it has to have all
three attributes;
because in Aussenkehr
(supra) at

29G-H,
it is stated that:

"Although
the order by the Court, in the present instance, may have the first
attribute of a final judgment or order, it lacks the other two
attributes. That,
in itself, is sufficient to affect the appealability of the order."
(Emphasis
provided)

[6]
In the present instance, applicant was thus required to show that the
order made by this Court in interlocutory proceedings, dismissing
applicant's application for disclosure of a legal opinion in terms of
the Rules, meets the above stated requirements (attributes).

[7]
Applicant does not contend that the order dismissing applicant's
application for disclosure of the opinion was "final in effect
and not susceptible to alteration by the Court of first instance".
On the contrary, Mr. Chaskalson,
argued
that, in their view, because the order is
interlocutory,
it will always be open to reconsideration at a later stage in the
review application; and that there was a real likelihood that the
same issue will then resurface. Thus, the order sought to be appealed
against, clearly lacks the first attribute and as was stated in
Aussenkehr
(supra), this
in itself would be sufficient to affect the appealability of the
order.

[8]
As regards the remaining attributes, applicant did not argue that the
order in any way was "definitive of the rights of the parties"
and that the effect thereof would dispose of "at least a
substantial portion of the relief claimed in the main proceedings".
This was neither contended during this application and there is
nothing on record showing that the order, in itself, satisfies the
remaining two attributes. Hence, I am unable to see how the Court's
refusal for allowing the applicant access to the legal opinion in
possession of the respondent could be seen to be definitive of the
rights of the parties; neither does the order have the effect that a
substantial portion of the review proceedings is disposed of. Whether
the decision taken by the respondent meets the requirements of
fairness still remains to be considered during the main application
and if the legal opinion were to play any role during those
proceedings, I am satisfied that the finding of the court of first
instance will not primarily
be
determined by the legal opinion obtained by the respondent. This
Court's order (ruling) was procedural in nature on the production or
otherwise of evidentiary material in the course of pending review
proceedings, nothing more.

[9]
In my view, none of the attributes were shown to be present in the
present instance and the only conclusion I can come to is that the
order, dismissing applicant's application for discovery in terms of
Rule 35 (12), is not appealable.

[10]
Mr. Chaskalson,
appearing
for the applicant, tried to convince the Court in granting leave to
appeal against its earlier ruling by extensively arguing the
prospects of success on appeal; and after re-hashing the facts and
argument upon which the application for discovery is based, submitted
that there is a reasonable prospect that a Court of Appeal would come
to a different conclusion. Applicant placed specific reliance on what
was decided in Rio
Tinto Ltd v Federal Commissioner of Taxation, [2005]
FCA 1336, an Australian Federal Court decision on the discovery of
documents for which legal professional privilege is claimed. I have
studied the case and although I find it most informative on the issue
of waiver of privilege, I am respectfully of the view that, for
purposes of this application, it does not further his cause.

[11]
Whereas I have already come to the conclusion that the interlocutory
order against which leave to appeal is now sought by the applicant is
not appealable, there is no need to deal with the prospects of
success on appeal argued before me; neither to decide whether the
Court of Appeal - in the light of what was said in Rio
Tinto (supra) -
would come to a different conclusion or not. That seems to be a
futile exercise and it seems worthwhile repeating what was stated in
Eric
Knouwds NO v Nicolaas Cornelius Josea and Another, (unreported)
Case No. SA 5/2008 (Supreme Court of Namibia) delivered on 14.09.2010
at p 9 para [13]:

"The Court
will not decide issues which are academic, abstract, or
hypothetical."

See
also: Mushwena
v Government of the Republic of Namibia (2), 2004
NR 94 at 102H-I, para [21].

[12]
Although this Court has a discretion to grant leave to appeal against
interlocutory judgments and orders, this discretion must be exercised
judicially and as far as it concerns the present instance, it would
not, at this juncture, be in the interest of the administration of
justice to seek clarity from the Supreme Court on undecided issues
before the High Court.

[13]
Mr. Chaskalson,
furthermore
submitted that the legal issue is res
nova in
this jurisdiction and therefore, per
se, would
strongly militate in favour of the granting of leave to appeal as it
is an issue on which a ruling of the Supreme Court is desirable. In
his view, the only way in which this important issue could reach the
Supreme Court is by means of leave to appeal against an interlocutory
order. Enticing as the argument might appeal to this Court in the
absence of case law on point, I am not persuaded that, hence, leave
to appeal should be granted. Once the review proceedings have been
finalised, the need might
arise
to appeal against an order of the Court and I fail to see why the
appeal at that stage cannot include a ruling made by the Court during
interlocutory proceedings. At that stage the Court of Appeal would
have all the facts before it and hence, in the best position to
decide the matter -contrary to the present situation where the last
word has not been spoken on the issues in dispute.

[14]
Another reason advanced as to why leave to appeal should be granted
is that, when regard is had to the particular facts of the present
case, a denial of leave to appeal would not prevent the issue from
interrupting the proceedings again before another Court (during
review proceedings), as the order is interlocutory in nature and thus
open for reconsideration at a later stage of the proceedings. Such
interruption, it was argued, could be avoided by granting leave to
appeal and to have the issue on discovery decided by the Supreme
Court.

[15]
Despite applicant's anticipation of a similar interlocutory
application, based on the same facts, being made later; which
undoubtedly would interrupt the review proceedings, I am - for the
reasons mentioned above - not persuaded in granting leave to appeal
for any other reason advanced on behalf of the applicant.