REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: A 223/2011

In the matter between:

CYRIL AYETOMA OGBOKOR
.............................................................1^ST
APPLICANT

GLADYS AMAKA
CYRIL-OGBOKOR ................................................2^ND
APPLICANT

and

THE IMMIGRATION
SELECTION BOARD .....................................1^ST
RESPONDENT

THE MINISTER OF HOME
AFFAIRS AND IMMIGRATION ...........2^ND
RESPONDENT

THE CHIEF OF
IMMIGRATION
.......................................................3^RD
RESPONDENT

Neutral citation:
Ogbokor v The Immigration Selection Board (A 223/2011)
[2012] NAHCMD 33 (17 October 2012)

Coram: GEIER J

Heard: 30 July
2012

Delivered: 17
October 2012

Flynote: Review —
Review in terms of rule 53 — High Court rules —
Unreasonable delay — What constitutes — Question whether
delay unreasonable within court's discretion — Delay can be
condoned – Applicants seeking to review Immigration Control
Board’s decision to refuse them permanent residence permits —
Applicant becoming aware of decision before 4 January 2011 —
Applicant launching proceedings on 2 September 2011 — Court not
satisfied that evidential basis laid for delay — Condonation of
delay not justified under the circumstances — Application for
review dismissed on ground of unreasonable delay.

Summary: The
applicants had sought an order to review and set aside a decision by
the first respondent to refuse th­em permanent residence permits
— This decision communicated under cover of a letter dated 13
December 2010 — Applicants legal practitioner requesting
reasons for decision on 4 January 2011 — Setting deadline for
reply for 14 January 2011 — Request repeated only on 1 July
2011 — No response received in respect of either request —
Application launched on 2 September 2011 — The respondents
raised several points in limine, inter alia, that there had
been an unreasonable delay in bringing the review application —

Held: That a delay
of some eight months in the bringing of a review application per se
constitutes an unreasonable delay for which the court’s
condonation would be required

Held: The
applicants had not explained their inaction over a period of 8 months
– they did also not threaten legal action and seemingly were
conducting their case at leisure

Held: A failure to warn a
potential respondent can - on its own - lead to an inference of
unreasonable delay

Held: Even
if the first respondent may have contributed to the delay in this
case, by failing to respond to correspondence this factor was
neutralised by the applicants’ failure to even threaten a
review

Held: That every
review and the setting aside of an administrative decision causes
prejudice of one or other kind to a respondent in a review
application. In the absence of even a threat to bring a review it was
impossible to consider whether or not the application could have been
averted if notice had been given of such intention

Held: As the
application was neither voluminous nor complex in nature — Also
the record was not voluminous — It would have been a simple
matter for the applicants to have brought their review at a much
earlier stage - also the legal issues underlying the review are not
particularly complex — It would have been an easy matter for
the applicants’ legal practitioner to have placed the
respondents on terms and in the absence of a response to have brought
review without further delay.

Held:
That the provisions of section 26(7) of the Immigration Control Act
of 1993 had a material bearing on the efficacy of the review relief —
The delay of the applicants’ brought about a
situation that — by the time that
they eventually launched their application they were actually free —
in terms of Section 26(7) of the Immigration
Control Act of 1993 — to request a
reconsideration of the decision to refuse them a permanent residence
permit as communicated on 13 December 2010

Held:
Delay in the launching of this application considered to be
unreasonable — Condonation refused

ORDER

1. 
   The application is
   dismissed.

   
   

2. 
   The respondents are to
   bear the applicant’s costs, jointly and severally, the one
   paying the other to be absolved, on the attorney and own client
   scale.

   
   

JUDGMENT

GEIER J:

[1] The
applicants, both Nigerian nationals,
are seeking to review the decision of the Namibian
Immigration Selection Board, the first respondent herein not to grant
them a permanent resident permit. They also seek certain ancillary
relief.

[2] The background facts
giving rise to the application are briefly as follows:

1. 
   The first applicant
   originally entered Namibia during 1995 as a Technical Aid Corps
   volunteer under an agreement concluded between the governments of
   Nigeria and Namibia.
   

   
   

2. 
   He subsequently obtained
   employment with the Institute of Higher Education in 1997 where he
   worked as a senior lecturer until 2001. He then obtained employment
   with the Polytechnic of Namibia where he is currently employed as a
   lecturer in Economics.

   
   

3. 
   The second applicant,
   the first applicant’s wife, and their eldest son entered
   Namibia in 1997 were they have been continuously residing since
   then.
   

   
   

4. 
   The first applicant
   successfully applied for and was granted a succession of employment
   permits during his tenure in Namibia.

   
   

[3] It was in such
circumstances that the first applicant tried to obtain permanent
residence. A first application was made and rejected during 2000. A
second application launched in 2007 as well as a third, which now
forms the subject matter of this review were also refused.

[4] The applicants
allegedly received the notification of the relevant rejection of
their third application during early January 2011, which notification
had been made under cover of a letter dated 13 December 2010.

[5] The first applicant
immediately consulted his legal practitioner who, on his
instructions, on 4 January 2011, addressed a letter in the following
terms to the Permanent Secretary in the Ministry of Home Affairs and
Immigration in Windhoek:

‘Dear
Sir or Madam

Re:
DR CYRIL OGBOKOR AND FAMILY / APPLICATION FOR PERMANENT RESIDENCE
PERMIT (14/2/11-4268/96)

We
are acting on behalf of Dr Cyril Ogbokor

Our
client made an application for the issuance of a permanent residence
permit, which was rejected by way of your letter dated 13 December
2010.

We
would appreciate it if you could inform us of the reasons for the
rejection of our client’s application for the permanent
residence permit. We would appreciate it if you could finish the said
reasons in writing and on or before Friday 14 January 2011.’

Yours
faithfully

Norman
Tjombe

Norman
Tjombe Law Firm’

[6] No reasons were
supplied by the said deadline or subsequently.

[7] Eventually and on 01
July 2011 a further letter was written by the said legal practitioner
to the permanent secretary of the Ministry of Home Affairs and
Immigration:

‘Dear
Sir or Madam

Re:
DR CYRIL OGBOKOR AND FAMILY / APPLICATION FOR PERMANENT RESIDENCE
PERMIT (14/2/11-4268/96)

We
refer to our letter dated 4 January 2011, of which we attach a copy
thereof hereto for your ease of reference.

We
would appreciate it if you could forward to us the reasons for the
rejection of our clients’ application for permanent residence.

Yours
faithfully

Norman
Tjombe

Norman
Tjombe Law Firm’

[8] In such circumstances
and in the absence of a response to also this letter the applicants
eventually launched this application for review on 02 September 2011.

[9] Given the
circumstances it did not come as a surprise that the respondents
raised the in limine objection of the unreasonable delay of
the applicants bringing of this review application.

[10] The applicants in
turn denied that there was any unreasonable delay. They contend that,
despite repeated requests, no reasons for the first respondent’s
decision had been forthcoming and that, in the absence of any reasons
for a decision, it was difficult for the applicants to even decide
whether or not the first respondent’s decision should be
challenged. It was thus the first respondents’ inaction which
should be viewed as the sole contributing factor for the application
only being launched some ‘seven’ months later.

[11]
It was submitted further that the delay could also not have
prejudiced the respondents.

[12]
Mr Tjombe, who
also appeared on behalf of the applicants at the hearing of this
matter, conceded however that a review court has the discretion to
bar an applicant who fails to provide a reasonable and satisfactory
explanation for the delay for the timeous prosecution of his or her
review.

[13]
He submitted further with reference to South African case law that
the in
limine objection
should be dismissed.¹

[14]
Mr Chanda who appeared on behalf of the respondents relied on the
unreported Namibian decision of Damaseb JP in
Ebson
Keya v Chief of the Defence Force & 3 Others ²
and
also the findings of this court, as
made in the Purity
Manganese (Pty) Ltd v Minister of Mines & Energy³
and
the Namibia
Grape Growers and Exporters v Minister of Mines & Energy⁴
decisions,
in which cases a delay of some seven months for the bringing of the
review application was held as having constituted an unreasonable
delay.

[15]
The court was however not referred by counsel to the decision of
Kleynhans v Chairperson of the Council for the
Municipality of Walvis Bay and Others 2011
(2) NR 437 (HC) in which the applicable Namibian authorities were
conveniently set out by Damaseb JP as follows :

‘[41]
In Ebson Keya v Chief of Defence Forces and Three Others the court
had occasion to revisit the authorities on unreasonable delay and to
extract from them the legal principles applied by the courts when the
issue of unreasonable delay is raised in administrative law review
cases. The following principles are discernable from the authorities
examined:

(i)
The review remedy is in the discretion of the court and it can be
denied if there has been an unreasonable delay in seeking it: There
is no prescribed time limit and each case will be determined on its
facts. The discretion is necessary to ensure finality to
administrative decisions to avoid prejudice and promote the public
interest in certainty. The first issue to consider is whether on the
facts of the case the applicant's inaction was unreasonable: That is
a question of law.

(ii)
If the delay was unreasonable, the court has discretion to condone
it.

(iii)
There must be some evidential basis for the exercise of the
discretion: The court does not exercise the discretion on the basis
of an abstract notion of equity and the need to do justice between
the parties.

(iv)
An applicant seeking review is not expected to rush to court upon the
cause of action arising: She is entitled to first ascertain the terms
and effect of the decision sought to be impugned; to receive the
reasons for the decision if not self-evident; to obtain the relevant
documents and to seek legal and other expert advice where necessary;
to endeavour to reach an amicable solution if that is possible; to
consult with persons who may depose to affidavits in support of the
relief.

(v)
The list of preparatory steps in (iv) is not exhaustive but in each
case where they are undertaken they should be shown to have been
necessary and reasonable.

(vi)
In some cases it may be necessary for the applicant, as part of the
preparatory steps, to identify the potential respondent(s) and to
warn them that a review application is contemplated. In certain cases
the failure to warn a potential respondent could lead to an inference
of unreasonable delay.

[42]
Writing for a two-judge bench of this court in Disposable Medical
Products (Pty) Ltd v The Tender Board of Namibia and Others 1997 NR
129 (HC) at 132D Strydom JP (as he then was) said:

'In
deciding whether a delay was unreasonable two main principles apply.
Firstly whether the delay caused prejudice to the other parties and
secondly, the principle applies that there must be finality to
proceedings. Although the Court has discretion to condone such delay
it is seldom if ever, prepared to do so where the delay caused
prejudice.'

[43]
I wish to repeat the following remarks in the Keya case at 10 –
11, para 19:

'In
my experience, every review and setting aside of an administrative
decision causes prejudice of one or other kind to a respondent in a
review application. Proof of prejudice, without more, should not take
the matter very far. Otherwise a Court would not grant review. What
is needed is proof of prejudice which could have been averted if
notice were had of an impending review. The more substantial such
prejudice, the more it strengthens the conclusion that the delay in
bringing a review application was unreasonable. In exercising the
discretion whether or not to condone unreasonable delay, the Court
may have regard to the conduct of a respondent insofar as it may have
contributed to the delay.'

[44]
To the above, I wish to add the following: the length of time that
had passed between the cause of action arising and the launching of
the review is not a decisive factor although no doubt important. The
crucial consideration is the extent to which passage of time —
in view of the nature of relief and the subject to which it relates —
either weakens or has no or little bearing on the efficacy of the
relief sought. The less efficacious the relief sought or the more
serious the prejudice it causes on account of the delay, the stronger
the inference that the delay was unreasonable.’⁵

[16]
Returning to the facts of this matter and with reference to the
authorities summed up in the Kleynhans
matter there can be no
doubt that a delay of some eight months in the bringing of a review
application per se constitutes an unreasonable delay⁶
for which the court’s
condonation is required.

[17] The first relevant
consideration to any such condonation emerges with reference to the
application itself, which was neither voluminous nor complex in
nature. Coupled with these considerations is that the record, which
was only belatedly made available, is also not voluminous. It would
have been a simple matter for the applicants to have brought their
review at a much earlier stage. Also the legal issues underlying this
matter are not particularly complex.

[18] It is also to be
noted that the applicants’ first letter of demand set a
deadline for 14 January 2011. This was never followed up until July
2011. Surely it would have been an easy matter for the applicants’
legal practitioner to have placed on record, for instance, shortly
after the expiry of the first deadline, that no reasons for the first
respondent‘s decision had been received and, that by the time
of the effluxion of a second and further deadline for example, the
applicants would accept that no record or reasons would be
forthcoming or were indeed available and that in the absence of any
such record and reasons such absence and the lack of reasons would be
advanced as a further ground for review. The application could
thereafter have been brought without further delay. It is clear that
in terms of Rule 53(1) of the Rules of High Court the record would in
any event have had to be made available upon the launching of the
application where after the applicants would been afforded the
further opportunity to amend their papers in terms of Rule 53(4).

[19] Yet, inexplicably,
the applicants did nothing. They also do not explain their inaction,
save to put the blame of respondents.

[20] It also appears from the cited
correspondence dated 4 January 2011 and 1 July 2011 that no legal
action was threatened. It seems as if the applicants were conducting
their case at leisure. The correspondence in question thus discloses
a singular lack of urgency.

[21]
In this regard it is to be noted that a
failure to warn a potential respondent can —
on its
own — lead
to an inference of unreasonable delay.⁷

[22]
Even if one accepts that the conduct of the first respondent may have
contributed to the delay in this case, this factor, in my view, is
neutralised by the applicants’ failure to even threaten a
review in this instance.

[23] I agree with the
learned Judge President that every review and the
setting aside of an administrative decision causes prejudice of one
or other kind to a respondent in a review application. In the absence
of even a threat to bring a review it is impossible to consider
whether or not the application could have been averted if notice had
been given of such intention. This scenario did simply not arise on
the facts.

[24]
Most importantly however is the impact of the
provisions of section 26 of the Immigration Control Act 7 of 1993 on
this matter. The section provides:

26
Application for permanent residence permits

‘(1)(a)
An application for a permanent residence permit shall be made on a
prescribed form and shall be submitted to the Chief of Immigration.

…

…

(4)
When the board has authorized the issue of a permanent residence
permit, the Chief of Immigration shall issue such permit in the
prescribed form to the applicant concerned. …

…

…

(7)(a)
If the board rejects an application submitted to it in terms of
subsection (2), the board shall not be obliged to reconsider such
application, and the board shall not consider another such
application by the same person before the expiration of a period of
not less than six months from the date on which the said person was
informed of the decision of the board: Provided that if the Chief of
Immigration receives any new information or it is shown that the
circumstances affecting the application in question have changed, he
or she may at any time request the board to reconsider the
first-mentioned application.

(b)
After receipt of a request in terms of paragraph (a) the board shall
reconsider the application in question as if it were submitted to the
board under subsection (2).’

[25] It
appears that the legislature intended to provide for a mechanism
which would allow for a reconsideration of such decisions on changed
circumstances before the expiry of the set six month period and
thereafter. Given these options it almost seems absurd to revisit a
decision that was made by first respondent as far back as 14 October
2010 on information supplied even before that date, particularly if a
review application is brought outside these parameters.

[26]
The provisions of section 26(7) thus have a material bearing on the
efficacy of the review relief which the applicants continue to seek.
In this instance the passage of time — caused
by the applicants delay - brought about a situation that —
by the time that they eventually launched their
application for review on 2 September 2011 — they
were actually free — in terms of
Section 26(7) of the Immigration Control Act 1993 — to
request a reconsideration of the decision to refuse them a permanent
residence permit as communicated on 13 December 2010. It can further
not be of assistance to the applicants’ case that the matter
was eventually heard in July 2012.

[27]
The delay thus brings about a situation that a referral back —
now — of the
matter, for reconsideration, would
merely entail precisely the same enquiry — on
the same facts — as they stood at the
time that the applicants’ third application was made or on
facts which may have been overtaken by events or on facts which would
no longer be of relevance. That must have
been a situation that the legislature intended to avoid through the
enactment of sections 26(7)(a) and (b).

[28] It is ultimately on
all of the aforementioned grounds that I am not prepared to exercise
my discretion in favour of the applicants.

[29] I therefore decline
to condone what I consider to be an unreasonable delay in the
launching of this application.

COSTS

[30] It has not gone
unnoticed that the respondents ignored altogether the requests of the
applicants’ legal practitioner for reasons for the rejection of
the applicants’ third application for permanent residence
permits.

[31]
It is stating the obvious that it is incumbent on all administrative
bodies and officials to act fairly in accordance with the
requirements of Article 18 of the Namibian Constitution —
this
obligation entails the providing and making available of reasons to
an affected party.⁸
The
furnishing of reasons remains one of the most fundamental
requirements to a fair administrative process. The respondents are in
flagrant breach of this requirement.

[32]
This court would fail in its duty if it would not censure the conduct
of the respondents and express its disapproval of the manner in which
they failed to comply with one of the most fundamental requirements
imposed on them by Article 18 when requested to do so.

[33] In the result the
following orders are made:

1. 
   The application is
   dismissed.

   
   

2. 
   The respondents are to
   bear the applicant’s costs, jointly and severally, the one
   paying the other to be absolved, on the attorney and own client
   scale.

   
   

----------------------------------

H GEIER

Judge

APPEARANCES

APPLICANTS: N TJOMBE

Tjombe-Elago Law Firm
Inc., Windhoek

RESPONDENTS: C CHANDA

Government Attorneys, Windhoek