Government of the Republic of Namibia v Sikunda (SA 5 of 2001) [2002] NASC 1 (21 February 2002);
CASE NO.: SA 5/2001
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA APPELLANT
And
NGEVE RAPHAEL SIKUNDA RESPONDENT
CORAM: Strydom, C.J.; O’Linn, A.J.A. et Chomba, A.J.A.
HEARD ON: 03/10/2001
DELIVERED ON: 21/02/2002
APPEAL JUDGMENT
O’LINN, A.J.A.:
SECTION A:
INTRODUCTION
This is an appeal by the Government of the Republic of Namibia
against the whole of a judgment by a full bench of the High Court of
Namibia (Mainga and Hoff, J.J.) in which the said High Court made the
following order on an application by one Ngeve Raphael Sikunda:
“1. The decision of the Minister of Home Affairs dated 16 October
2000 ordering the removal of José Domingo Sikunda from Namibia
and declaring the aforementioned person persona non grata is
set aside.
2. The Respondent’s Minister of Home Affairs and/or his officials
are restrained from unlawfully detaining and harassing José
Domingo Sikunda.
3. The Minister of Home Affairs is ordered to pay costs of this
application on an attorney and own client scale.
4. The release of José Domingo Sikunda has been complied with
and that part of the rule nisi is discharged.”
The applicant in the Court a quo is now the respondent in this
appeal and the respondent in the Court a quo is now the
appellant in this appeal. This is confusing. I will consequently
hereinafter refer to the parties as they were referred to in the
Court a quo. The applicant’s father will be referred to as
“Sikunda Snr.”. Adv. Smuts, assisted by Adv. Cohrssen, appeared
for the applicant in the Court a quo in arguing the main
application as well as the application in the Contempt of Court
proceedings whereas Frank, S.C., argued the case for the Government.
In this appeal, Smuts, assisted by Cohrssen, continued to appear for
the applicant, whilst Adv. Maleka, appeared for the Government.
The applicant, Ngeve Raphael Sikunda, the son of José Domingo
Sikunda, brought an urgent application on motion before Manyarara,
A.J., ON 24TH October 2000 for the release of Sikunda
Snr., from detention, the setting aside of the minister’s order for
his removal from Namibia and certain ancillary relief.
The Minister’s order for detention and removal from Namibia of
Sikunda Snr., was purportedly made in terms of section 49(1) of the
Immigration Control Act No. 7 of 1993.
After hearing argument from Mr. Cohrssen for applicant and Mr. Asino
for the respondent, Manyarara, A.J., issued the following order:
“It is ordered
That applicant’s
non-compliance with the provisions of rule 6(12) of the rules of
this Honourable Court is condoned and leave is granted to the
applicant to bring this application on an urgent basis.
That a rule nisi do hereby issue calling upon the Respondent
to show cause, if any, to this Court of Friday 10 November 2000 at
10h00 why:
2.1 The decision of the Minister of Home Affairs dated 16 October
2000 ordering the removal of José Domingo Sikunda from Namibia
and declaring the aforementioned person persona non grata
should not be set aside.
The person of
José Domingo Sikunda shall not be immediately released from
custody pending the final determination of this application.
The
respondent’s Minister of Home Affairs and or his officials should
not be retrained from unlawfully detaining and harassing José
Domingo Sikunda further.
The Minister of Home Affairs, the Honourable Mr. Jerry Ekandjo,
shall not be ordered to pay the costs of this application de
bonis propriis, alternatively pays the costs of this
application on an attorney and own client scale.
3. That prayers 2.1 to 2.3 above shall operate as an interim
interdict.”
The interim interdict
consisted of three parts, being firstly the setting aside of the
order of removal of Sikunda, Snr., from Namibia, and declaring him
persona non grata, secondly that Sikunda, Snr., be immediately
released from custody and thirdly that the Minister of Home Affairs
and his officials are restrained from unlawfully detaining and
harassing Sikunda further.
The first and third
parts of the interim interdict were prohibitory or restrictive in
nature in that it ordered the respondent to refrain from doing
something, whereas the second part constituted a mandatory
injunction, in that it ordered the respondent to do something.
Although, Mr. Asino from the Office of the Government Attorney
appeared in Court when the interim order was heard and granted and
addressed the Court, he appeared in response to a written notice of
set down and a telephone message from applicant’s attorneys of the
intended application to the Court later that afternoon. When Asino
appeared in Court, the written application had not yet been served on
the respondent. The application in writing was only served on the
office of the Minister of Home Affairs, together with the interim
order on the 25th of October at 13h50, the day after the
application was already heard and the aforesaid order issued during
the evening of the previous day, i.e. on the 24th October
2000.
The record of the proceedings relating to the granting of the rule
nisi and that relating to the respondent’s attempt to
anticipate the return date of the rule nisi, was however
placed before this Court by consent.
It appears from the record of the granting of the rule nisi, that
the respondent had no reasonable opportunity to be heard before the
granting of the rule nisi. That in itself creates no problem
when a rule nisi is applied for in an urgent application, but
may become problematical when an interim interdict is granted in the
nature of a mandamus (i.e. an order or writ issued by a Court
commanding that an act be performed), without a reasonable
opportunity for a respondent to put his/her or its case. This
caution should receive even greater attention when security interests
of the country is a relevant issue in the case.
Particularly worrying is the fact that when the learned presiding
judge asked Mr. Asino whether he had any objection to the Court
hearing the argument of Mr. Cohrssen, Mr. Asino replied “Yes,
indeed.”.
This was apparently misunderstood by the presiding judge or
alternatively brushed aside. The Court then forthwith allowed Mr.
Cohrssen to argue his case. Cohrssen presumed that this meant that
the Court had now condoned the applicant’s non-compliance with the
rules. He proceeded with his argument on the merits. When he had
concluded his argument, Mr. Asino told the Court that he first wanted
to address the Court on the question of urgency. Mr. Asino indicated
that he first wished to see the “papers” and “see why they say
the matter is so urgent”. Asino was then asked whether he “would
like five, ten or fifteen minutes” and Asino said: “Fifteen
minutes would be safe”. After the adjournment Asino said: “Your
Lordship, I have just managed to peruse at the document or the
affidavit of the applicant although it is very difficult for me to
just jump in and to, I will try my best”.
Asino then dealt with the question of urgency as well as the merits
as best he could.
In the course of the argument Asino also agreed to an interim
interdict incorporating an undertaking by the Minister, that the
detainee would not be removed to Angola pending the return date of
the rule nisi. Mr. Asino however, argued that the Court
should not order the detainee’s release in the interim.
Mr. Cohrssen however, refused to consent to such an order and
insisted on an interim interdict including an order for the immediate
release of the detainee. Mr. Asino in turn, was unable to agree to
this.
The Court then confirmed to the respondent in the clearest terms that
the Government has the remedy to anticipate the return date on 24
hours notice.
Asino once again stated that he has no objection to an interim
interdict interdicting the respondent from removing the detainee in
the interim.
The Court nevertheless granted the order as drafted by the legal
representatives of the applicant. It is clear that when the Court
granted the order as prayed, it did so assuming that the respondent
would have the right to anticipate the return date on 24 hours notice
and granted the order after having given the assurance to
respondent’s attorney in Court, without any indication by Mr.
Cohrssen that respondent would not be so entitled.
It can consequently be reliably inferred that the learned presiding
judge would probably not have issued the mandatory injunction, if he
did not proceed on the aforesaid assumption and assurance to
respondent.
As will be seen later, however, when the respondent attempted to
anticipate the return day, Mr. Smuts who now strengthened the
applicant’s legal team, argued before Levy, A.J., that respondent
was not entitled to do so, because Mr. Asino on its behalf had
appeared in Court for respondent when the applicant’s application
for a rule nisi and certain interim relief was heard. The
crisp point argued by Mr. Smuts was that the respondent could not
anticipate the return date, because the rule only allows such a
proceeding when the original relief was granted ex parte and
the appearance of Mr. Asino for the Government in Court, meant that
the order granted was not granted “ex parte”.
I do not think that this is the correct approach. The rule aforesaid
regarding anticipation of the return date was intended to avoid
and/or mitigate the prejudice to a litigant who is faced with an
interim order, which may be in the form of an interim interdict, even
in the form of a mandatory injunction as in this case, without having
had a reasonable hearing. To give the attorney for such litigant
telephonic advance notice of an urgent application an hour or two
later, without the application being properly served on the
respondent and then expecting the respondent and/or his attorney to
make a proper and sufficient response, is an abrogation of the audi
alteram partem principle, which in my view, underlies Rule 6(8)
of the Rules of the High Court and which principle has been described
by the Appellate Division of the South African Supreme Court as
“sacred”.1
The applicant’s counsel indicated that applicant’s application
was in essence a “habeus corpus” application. But even in
such an application, the respondent is called upon not only to
produce the person detained, but to show cause why he/she should
not be released. (My emphasis added.)
This is an important remedy for persons illegally deprived of their
freedom. But part of it is the opportunity for the person called
upon, to show cause. The problem the Minister and the Chief of
Police had in releasing the detainee without a proper opportunity to
state their case, was that the released detainee could abscond or
flee and so irreparably frustrate the proper finalization of the
proceedings and even prejudice state security as seen by the
respondent.
Although no fault can be found with the rule nisi and the
interim interdict prohibiting the removal of the detainee to Angola,
the granting of the mandatory injunction for the immediate release of
Sikunda, should in the circumstances, not have been granted without
first having given the respondent a fair opportunity to reply. This
could have been done by allowing the respondent 1 – 3 days to
prepare a replying affidavit and proper argument after service of the
application on it, before deciding on the aforesaid mandatory
injunction.
In this manner, the interests of justice would have been better
served by balancing the fundamental rights and freedoms of Sikunda,
Snr., with the security interests of the State as represented by the
Minister of Home Affairs and Chief of Police.
I mention this because the conduct of the respondent, as will be seen
later, is used by the applicant to justify a punitive cost order
against the Government not only in the Court a quo, but also
in regard to the appeal proceedings. That being so, the Minister’s
conduct must be seen in context and perspective.
Furthermore it is opportune and even necessary to emphasize that the
granting of an interdict in the form of a mandatory injunction
without a fair hearing to the party against whom it is issued, is not
a proper judicial practice and may cause unnecessary tension between
the Courts and those institutions and members of the public who find
themselves at the receiving end of such orders in a particular case.
Courts should approach such applications with greater circumspection,
particularly in those cases where the respondent government claims
that the security interests of the State are at stake.
The application for committal of the Minister for Contempt of Court
was decided prior to argument and decision on whether or not the rule
nisi in the main application should be confirmed. The Minister
was convicted of Contempt of Court at the hearing of the Contempt of
Court proceedings and reprimanded. The Contempt of Court proceedings
were not placed before this Court and has only been referred to in
regard to the application for a special costs order in this appeal.
It is however, not necessary to refer to the contempt proceedings in
any detail because the order in that proceeding is not on appeal and
only the fact of the conviction and the reason for it is of some
relevance.
The Government Attorney gave notice already on 26th
October, i.e. the day after the granting of the aforesaid rule
nisi, interdict and mandamus, of an application to anticipate the
return day of the rule nisi from 10th November to
the 31st of October.
However, by the time respondent’s legal representatives appeared in
Court on 31st October, the applicant’s counsel applied
for the setting aside of respondent’s notice to anticipate. By
then the applicant’s legal representatives had also launched an
application for the committal of the Minister and/or the
Inspector-General of the Namibian Police for Contempt of Court for
not having released the detainee Sikunda to date.
During argument, before Levy, A.J., Mr. Smuts contended that the
notice was irregular in that the original application was not “ex
parte” because Mr. Asino was in Court. Mr. Frank, for
respondent, did not agree with this argument but agreed that the
matter should be heard on the original return date of the rule
nisi. Levy, A.J., indicated that he also had difficulty with the
argument of Smuts. The learned Judge also raised the issue of the
release of a detained person in the position of Sikunda without
having given the Minister an opportunity to be heard in the matter.
Levy, A.J., eventually ordered the respondent’s notice for the
anticipation of the return date to be set aside, but on the basis
that both parties had now agreed in Court that the original return
date of the 10th November should remain the return date of
the rule nisi.
Levy, however, also ordered that “respondent permits access to José
Domingo Sikunda by his legal representatives and if necessary to
transport him to Windhoek for the purpose of preparing and filing
affidavits”. This part of the order appears to be inconsistent
with the mandamus granted on 24th October by Manyarara,
A.J., that Sikunda should be immediately released from detention. It
is difficult to reconcile the order of the 31st with the
order of the 24th in this regard. It could even be argued
that the order of the 31st by implication set aside the
order of the 24th in so far as the order of the 24th
ordered the immediate release of Sikunda Snr. Levy, A.J., however
confirmed another part of the order of the 24th October,
by ordering that the respondent “refrains from deporting the said
José Domingo Sikunda to any place whatsoever until this matter
is finally adjudicated upon, which shall include final adjudication
on appeal”.
The Minister of Home Affairs only released Sikunda Snr., on 9th
February 2001. The matter was not heard on the return date on 10th
November but after several postponements and extensions of the return
date, only heard on 16/02/2001.
Mainga, J., who wrote the judgment in the Court a quo, on the
main application, first set out the background facts before dealing
with the merits. It is convenient to repeat those facts for the
purpose of this appeal as contained in the aforesaid judgment:
“The background.
On 19 September 2000, the minister of Home Affairs addressed a
letter, bearing the Minister’s date stamp of 20 September 2000 to
the chairperson of the Security Commission, Mr. Ithana and apparently
another letter on 14 September 2000 which letter was not filed with
the documents before us. The letter of the 19th September
2000 reads as follows:
‘Dear Mr. Ithana
SUBJECT REMOVAL OF FOREIGN NATIONAL CONSIDERED SECURITY THREAT TO THE
REPUBLIC OF NAMIBIA
I have the pleasure of bringing to your attention the above stated
subject matter.
Our security forces have identified a number of UNITA activists,
sympathizers and soldiers as well as foreign nationals from Rwanda
and Burundi who are considered to be a security threat to the
Republic of Namibia. These foreign nationals are involved in
terrorist activities in Namibia, furthering the interests of UNITA
and that of their respective countries to the detriment of Namibia.
According to our records, none of them hold refugee status but have
different status to stay in Namibia. There are also those recorded
to be illegally in Namibia.
As their presence endangers the security of the state, I implore the
Security Commission to recommend to me to declare them persona
non grata and their removal from the Republic of Namibia.
This is to be carried out in terms of Section 49(1) of the
Immigration Control Act of 1993, Act No. 7 of 1993 which states:
“Notwithstanding anything to the contrary in this Act or any other
law contained, the Minister may, on the recommendation of the
Security Commission established under Articles 114 of the Namibian
Constitution, forthwith remove or cause to be removed from Namibia by
warrant issued under his or her hand any person who enters or has
entered or is found in Namibia and whose activities endanger or are
calculated to endanger the security of the State, whether or not such
person is prohibited immigrant in respect of Namibia.
(2) An immigration officer may:
if a person referred to in subsection (1) is not in custody,
arrest such person or cause him or her to be arrested without a
warrant, and
(b) pending his or her removal from Namibia under that subsection,
detain such person in the manner and at the place determined by the
Minister.
(3) No appeal shall lie against any decision of the Minister under
subsection (1).”
Furthermore, Namibia being a member state of the UN Security Council
and committed to making sure that the UN Security Council
resolutions 1127 (1997) 1135 (1997) imposing sanctions on UNITA are
observed, should not be seen to be accommodating elements who are
furthering the cause of UNITA and other clandestine organizations in
violation of UN Security Council Resolutions as mentioned above.
The UN Security Council further requests Member States to take
action on the said resolution.
6. In addition the Government of the Republic of Angola has
circulated information on the 21 October 1997 at the United Nations
providing the names of countries hosting UNITA representatives,
Namibia included.
7. It is against this background that I am requesting you to call a
meeting of the Security Commission to recommend the removal of
persons as listed in Annexure “A”.
8. I wish to take this opportunity to thank you in anticipation for
your usual co-operation and prompt response.
Yours sincerely
Jerry Ekandjo, MP
Minister.’
The four-member Security Commission in its letter titled ‘secret’
dated 03 October 2000 responded positively in the following terms:
‘SECRET
DECISION OF THE SECURITY COMMISSION
ORIGIN : THE HON. MINISTER OF HOME AFFAIRS
SUBJECT : REMOVAL OF FOREIGN NATIONALS CONSIDERED SECURITY THREAT TO
THE REPUBLIC OF NAMIBIA
DECISION: : The Security Commission at its Second Meeting held on
October 3, 2000, deliberated on the two correspondence from the
Honourable Minister of Home Affairs dated 14th and 19th
September 2000, in which the Hon. Minister requested the Security
Commission to recommend the removal of 98 foreign nationals who are
considered security threat to the Republic of Namibia.
The Security Commission recommends in terms of Section 49(1) of the
Immigration Control Act, 1993 (Act No. 7 of 1993), that these foreign
nationals be removed from Namibia on the grounds that they are
considered security threat to the Republic of Namibia.
The initialized list containing names of the implicated foreign
nationals are attached.’
On 10 October 2000, the Minister of Home Affairs addressed a letter,
bearing the Minister’s date stamp of 16 October 2000, to the father
of the applicant, José Domingo Sikunda, which reads as
follows:
‘10th October 2000
Mr. Josef Domingos Sikunda
Rundu
Dear Mr. Josef
RE: REMOVAL FROM THE REPUBLIC OF NAMIBIA: YOURSELF
It has been established that your activities and presence in the
Republic of Namibia endanger the security of the state.
Therefore, in terms of powers vested in me under Part VI; Section
49(1) of the Immigration Control Act (Act 7 of 1993) and on the
recommendation of the Security Commission established in terms of
Article 114 of the Namibian Constitution, I order your removal from
the Republic of Namibia and henceforth declare you a prohibited
immigrant (Persona Non-Grata) in respect of the Republic of
Namibia.
Your attention is further drawn to section 49(2) and (b) of the same
Act.
I count on your co-operation.’
On 16 October 2000 a warrant of detention bearing the head letter of
the Minister of Home Affairs and the date stamp of 24 October 2000 of
the Inspector General was issued.
‘WARRANT OF DETENTION
(SECTION 42)
______________________________________________________________
TO : The Officer in Charge The Chief of
(1) Police Immigration
______________________________________________________________
Whereas the person named hereunder
SURNAME : SIKUNDA
FIRST NAMES : JOE DOMINGO
DATE OF BIRTH : 62 YEARS
has been found in Namibia and is suspected on reasonable grounds to
be a prohibited/illegal immigrant in terms of this Act:
NOW THEREFORE, you are under the provisions of Section 42(1)(a)(b)
requested to receive and detain such person in the prison cell/police
cell [pending investigations] [for the period of 14 days] for which
this shall be your warrant.’
I should mention from the documents filed, the applicant states that
his father was removed on 17 October 2000 from his home in Rundu.
That assertion should be correct as it is not disputed. That will
mean the applicant’s father was arrested and detained before a
warrant of detention was issued as it bears the dates of 18 October
2000 of the issuing officer and that of the Inspector-General dated
24 October 2000. Nevertheless Sikunda Snr. was detained until his
release on 9 February 2001.
On 7 October 2000, the Minister of Home Affairs addressed a letter,
carrying a date stamp of 24 October 2000, to the Snr. Liaison Officer
at the United Nations High Commission for Refugees in Windhoek
requesting that office to settle elsewhere, other than Namibia
persons declared persona non grata by the Government of the
Republic of Namibia. In this letter he categorized such persons in
two groups. The first group on the list marked “A” were eighty
(80) foreign nationals arrested as soldiers of UNITA involved in
subversive and terrorist activities in Namibia and that these eighty
persons have so confessed.
The second group, in which José Domingo Sikunda is listed as
number 11 the Minister in his own words described that group as
follows:
‘The second category, Annexure “B”, is UNITA activists,
sympathizers and soldiers as well as foreign nationals from Angola,
Rwanda and Burundi who are considered to be a security threat to the
Republic of Namibia. These foreign nationals are involved in
terrorist activities in Namibia, furthering the interests of UNITA
and that of their respective countries to the detriment of Namibia.
According to our records, none of them hold a refugee status but have
different status to stay in Namibia. There are also those recorded
to be illegally in Namibia.’
He quoted the provisions of Section 49(1) of the Immigration Control
Act, 1993 (Act 7 of 1993) in its entirety and continued in paragraph
4 and 5 of his letter to state as follows:
‘Furthermore, Namibia being a member state of the UN Security
Council and committed to making sure that the UN Security Council
resolutions 1127 (1997) 1135 (1997) imposing sanctions on UNITA are
observed, should not be seen to be accommodating elements who are
furthering the cause of UNITA and other clandestine organizations in
violation of UN Security Council Resolutions as mentioned above. The
UN Security Council further requests Member States to take action on
the said resolution.
In addition the Government of the Republic of Angola has circulated
information on the 21 October 1997 at the United Nations providing
the names of countries hosting UNITA representatives, Namibia
included.’ “
SECTION B: THE MERITS
The Court a quo identified the following three issues in its
judgment namely:
“1. Whether José Domingo Sikunda is a citizen and/or
domiciled in Namibia;
2. Whether the decision of the Minister to declare Sikunda persona
non grata without affording him an opportunity to make
representation, is valid;
3. Whether the four member Security Commission was properly
constituted.”
The Court pointed out that if the Court
finds that Sikunda Snr. was a citizen of, or domiciled in Namibia,
the Minister could not act in terms of section 49(1) of the
Immigration Control Act of 1993 (Act 7 of 1993).
The Court furthermore stated that the parties are ad idem on
this point. On appeal before us, Mr. Maleka could not and did not
deny that counsel for the respondent had made that concession when
the matter was argued in the Court a quo but now tried to
withdraw that concession made by Frank, S.C., on behalf of
respondent.
Notwithstanding the view that a finding that Sikunda Snr. was either
a citizen of or domiciled in Namibia, would make the Minister’s
order invalid, and obviously be fatal to the Government’s case, the
Court chose not to decide the issue of citizenship and/or domicile.
The Court explained its approach as follows:
“The rule can be confirmed or discharged on the single question of
whether the decision taken by the respondent pursuant to section 49
is consistent with the principle of natural justice and in particular
of the respondent’s failure and/or the Security Commission to
afford the applicant’s father the right to be heard as it is
embodied in the maxim audi alteram partem.”
This approach notwithstanding, the Court
went on to also decide the issue whether or not the Security
Commission was properly constituted when it made its recommendation
to remove from Namibia 89 alleged foreign nationals, including
Sikunda Snr. and following from this, whether its recommendation was
nevertheless valid and met the requirements of section 49(1) for a
valid decision by the Minister.
All three the aforesaid issues were fully argued by counsel in the
Court a quo as well as in this Court on appeal.
The first issue, namely domicile and/or
citizenship and the legal implications thereof on the Minister’s
power to issue an order as he had done purportedly in terms of
section 49(1), would not only be decisive of the question whether or
not the Minister’s present order is invalid and a nullity, but
whether or not the Minister would be empowered in future to make a
similar order against Sikunda Snr..
In the case of the second and third issues however, a decision in
favour of the applicant and against the respondent would result in
the setting aside of the Minister’s order in the present case, but
would not prevent the Minister from making a similar order in future,
if a constitutionally fair procedure is followed and if the Security
Commission is properly constituted.
THE ISSUE WHETHER OR NOT JOSé DOMINGO SIKUNDA IS A CITIZEN
OF AND/OR DOMICILED IN NAMIBIA AND IF SO, WHETHER THE MINISTER IS
EMPOWERED AGAINST HIM IN TERMS OF SECTION 49(1) OF THE IMMIGRATION
CONTROL ACT
The first leg of the enquiry is whether or not the Minister is
legally empowered to act against a person in terms of section
49(1), if that person is either a Namibian citizen, or domiciled
in Namibia.
As I have already indicated supra, counsel for both parties in
the Court a quo agreed that the powers given to the Minister
under section 49(1) could not legally be used against a Namibian
citizen or a person legally domiciled in Namibia.
Mr. Maleka on appeal, sought to distance himself from the concession
made by his predecessor Frank, S.C., in the Court a quo. Mr.
Smuts and Cohrssen, for applicant, persisted in their original
argument in the Court a quo.
Mr. Maleka now argued
that the issue of citizenship and/or domicile is misconceived,
because “the provisions of section 49(1) of the Act override
anything to the contrary contained in the Act or any other law, for
that matter, the overriding effect of the provisions of section 49(1)
is fortified by the opening words of that section”.
It seems that this was also the approach of the Honourable Minister
as well as that of the Security Commission. I have no doubt
whatsoever that Mr. Maleka’s argument in this regard is without any
substance whatever. It is best to begin by quoting section 49(1) in
full:
“Notwithstanding anything to the contrary in this Act or any
other law contained, the Minister may, on the recommendation of
the Security Commission established under Article 114 of the Namibian
Constitution, forthwith remove or cause to be removed from Namibia by
warrant issued under his or her hand any person who enters or has
entered or is found in Namibia and whose activities endanger or are
calculated to endanger the security of the State, whether or not such
person is a prohibited immigrant in respect of Namibia.”
(My emphasis added.)
Section 2 of the said Act deals with the applicability of certain
parts of the Act to certain persons and situations. In the margin
opposite section 2 the following words appear: “Application of
Act”.
The relevant part of section 2(1) then reads:
“Subject to the provisions of subsection (2), the provisions of
PART V, except sections 30, 31 and 32 thereof, and Part VI of
this Act shall not apply to –
a Namibian citizen;
any person domiciled in Namibia who is not a person referred
to in par (a) or (f) of section 39(2) …”
(My emphasis added.)
Section 49(1) is contained in PART VI of the Act which contains
sections 39 – 52 under the heading:
“PROHIBITED IMMIGRANTS – ARREST DETENTION AND REMOVAL OF
PROHIBITED IMMIGRANTS”
No provision of Chapter VI is consequently applicable to the persons
dealt with in subsection (1) which include citizens and persons
domiciled in Namibia, except as provided in subsection (2) of section
2.
Subsection (2) applies to “any person appearing before an
immigration officer at any port of entry with the intention to enter
and remain in Namibia unless such person satisfied such immigration
officer that he or she is a person referred to in that subsection.”
Sikunda Snr. is not a person as described in subsection (2).
Consequently it does not affect the provisions of subsection (1) in
so far as it related to Sikunda Snr..
Section 49(1) vests draconian powers in the minister. It is obvious
that it was never intended to apply to a citizen of Namibia because
it would remove with a stroke of the pen all the rights and freedoms
to which any person, is entitled to in terms of the Namibian
Constitution. To remove a citizen in accordance with section 49(1)
would also be an absurdity because such citizen would not be entitled
to stay in any other country except if he is granted political
asylum. If the Legislature really intended by enacting section 49(1)
to grant such powers to a Minister in regard to citizens, such
provision would certainly be unconstitutional and null and void.
Although a person domiciled in Namibia is not for all purposes in
Namibian law in as strong a position as a citizen, no distinction is
made between citizen and a person so domiciled in subsection (1) of
section 2 of the Immigration Control Act.
I consequently find that the Minister is not empowered to act in
terms of subsection (1) of section 49 of the Immigration Control Act
against a Namibian citizen or a person domiciled in Namibia. Any
such purported action is null and void ab initio.
1.2 The second leg of the enquiry is whether or not Sikunda Snr. is
either a citizen or a person domiciled in Namibia.
It is not necessary for the purposes of this appeal to decide whether
or not Sikunda Snr. is a citizen of Namibia. It seems to me however,
that when an office bearer wishes to exercise a statutory
jurisdiction bestowed upon him/her, the onus, or burden of proof
would be on such office bearer to prove the jurisdictional fact
entitling him/her to act against a particular person. In other words
the office bearer must, in the case of a dispute, prove that the
person against whom he acts falls within the ambit of his/her powers.
Such proof need only be on a balance of probabilities. The
respondent in this case tried to prove that Sikunda Snr. was neither
citizen nor legally domiciled in Namibia. Respondent succeeded in my
view to prove on a balance of probabilities that Sikunda Snr. was not
a citizen of Namibia at the relevant time, i.e. when the Minister
made his order, but failed to prove that he was not domiciled in
Namibia at all relevant times.
Even if I am wrong in holding that there is an onus on the Minister,
it seems to me that the applicant has proved on a balance of
probabilities that his father was legally domiciled in Namibia at the
relevant time. I say this inter alia for the following
reasons:
(i) Domicile for the purposes of the issue before us, is the
domicile as defined for the purposes of the Immigration Control Act,
in the said Act itself.
It is defined in section 1 of the Act as follows:
“’Domicile’ subject to the provisions of Part IV, means the
place where a person has his home or permanent residence or to which
such person returns as his or her permanent abode, and not merely for
a special or temporary purpose.”
As it stands domicile can consist of either or:
the place where a person has his home; or
permanent residence; or
the place to which such person returns as his or her permanent
abode, and not merely for a special or temporary purpose.
The above requirements are qualified in PART IV of the Act, which
provides that
“(1) No person shall have a domicile in Namibia unless such person-
is a Namibian citizen;
is entitled to reside in Namibia and so resides therein, whether
before or after the commencement of this Act, in terms of the
provisions of section 7(2)(a) of the Namibian Citizenship Act, 1990
(Act 14 of 1990);
is ordinarily resident in Namibia, whether before or after the
commencement of this Act, by virtue of a marriage entered into with
a person referred to in paragraph (a) in good faith as contemplated
in Article 4(3) of the Namibian Constitution;
in the case of any other person, he or she is lawfully resident in
Namibia, whether before or after the commencement of this Act, and
is so resident in Namibia, for a continuous period of two years.
(2) For the purposes of the computation of any period of residence
referred to in subsection (1)(d), no period during which any person -
(a) is or was confined in a prison, reformatory or mental institution
or other place of detention established by or under any law;
(b) resided in Namibia only by virtue of a right obtained in terms of
a provisional permit issued under section 11 or an employment permit
issued under section 27 or a student’s permit issued under section
28 or a visitor’s entry permit issued under section 29;
(c) involuntarily resided or remained in Namibia;
(d) has entered or resided in Namibia through error, oversight,
misrepresentation or in contravention of the provisions of this Act
or any other law; or
(e) resided in Namibia in accordance with the provisions of paragraph
(d), (e), (f) or (g) of section 2(1),
shall be regarded as a period of residence in Namibia.”
In view of the exclusion of citizenship for the purposes of argument,
the only requirement in subsection (1) of section 22 under which
Sikunda Snr. can qualify is the provisions of subparagraph (d) of
subsection (1), read with the definition of “domicile” in section
1.
Sikunda Snr was thus not prevented from acquiring a domicile in
Namibia as defined in section 1 of the Act quoted supra, if
“he … is lawfully resident in Namibia, whether before or after
the commencement of this Act, and is so resident in Namibia, for a
continuous period of two years”.
None of the qualifications for such period of residence stated in
subsection (2) of section 22 is applicable to Sikunda Snr.
It is common cause between the parties, also conceded by
respondent’s counsel on appeal, that Sikunda Snr. was at the
relevant time legally resident in Namibia for a continuous period of
at least two years before or after the Immigration Act entering into
force.
That being so, all that remains is to enquire whether or not he was
domiciled in Namibia in accordance with the elements of the
definition of domicile set out supra, i.e. whether or not he
had his home or permanent residence in Namibia or whether that is
the place to which he returns as his or her permanent abode and not
merely for a special or temporary purpose.
In this regard the following facts listed by applicant’s counsel in
the heads of argument as common cause or not in dispute, supports the
above conclusion:
(a) Sikunda Snr. is not a prohibited immigrant and was not a
prohibited immigrant at the time of the Minister’s order or
thereafter in terms of section 39(2)(a) and (f) of the Immigration
Control Act.
(b) He has been continuously resident in Namibia since 1976 and has
the fixed intention to remain permanently in Namibia in future.
(c) He has family roots in Namibia, as is evident by the fact that
three of his children were born in Namibia.
(d) He occupies property on a long-term basis and has business
interests in Rundu.
(e) Upon arrival of his family and himself in Namibia in 1976, he
requested and applied for citizenship, whereafter the Southwest
Africa Identity document was issued to him.
(f) In 1986 he was issued with an exemption certificate, exempting
him from other provisions relating to permanent residence.
Mr. Maleka however, argued that this “exemption permit was issued
in terms of section 7 bis of the Aliens Act and was thus
deemed to be a temporary permit in terms of section 5 of the Act.”.
This cannot be correct. It is common cause that the said certificate
issued in 1986 clearly states in its heading that it exempts its
holder from the provisions of section 2 of the Aliens Act No. 1 of
1937.
The said section 2 placed a number of restrictions on aliens: The
exemption clearly meant that these restrictions do not apply to the
holder.
Counsel for the applicant contends that it must have been issued
under sections 12(1) of the Aliens Act which exempted a person who
has lawfully acquired domicile in South West Africa from the
restrictions of section 2. It also purports to recognize that the
holder has lawfully acquired domicile in South West Africa. It could
however also have been issued under section 7 bis which also
provides for the granting of “Exemptions from the provisions of the
Act”.
Be that as it may, the exemption certificate proves at least legal
residence and is also a strong indicator of the recognition by the
authorities that Sikunda Snr. was regarded as being lawfully
domiciled in South West Africa at the time.
The said exemption did not lose its meaning and effect when the new
Immigration Control Act was enacted in 1993.
Section 60(3) of the 1993 Act provides inter alia that any
exemption under a law repealed, “shall be deemed to have been made,
granted, issued, given or done under the corresponding or allied
provision of this Act”.
Section 35 of the Immigration Control Act in turn provides for
exemptions to any person or category of persons from provisions of
the Act.
The exemption given to Sikunda in 1986 consequently remains valid in
accordance with section 35 of the present Act, read with section
60(3).
In conclusion on this issue I hold that the Government had failed to
prove that Sikunda Snr. was not legally domiciled in Namibia.
Alternatively, that the applicant has proved that Sikunda Snr. was
legally domiciled in Namibia at all relevant times and that as a
consequence, the Honourable Minister of Home Affairs had no legal
jurisdiction to act against Sikunda Snr. in terms of section 49(2).
As a further consequence, the order for the detention and removal of
Sikunda Snr. was void ab initio.
It follows that the appeal by the Government must fail on this ground
alone.
There are however, at least two reasons why the remaining issues
should be dealt with however, briefly. These are: Counsel for
applicant have asked not only for confirmation on appeal of the
special cost order granted by the Court a quo, but also for a
further special cost order in regard to the appeal proceedings. In
support of this submission, counsel has argued that “the Procedures
were extensively and fundamentally tainted by illegality and manifold
irregularities, compounded by the flagrant contempt of Court for
failing to release respondent’s father after the High Court of
Namibia had ordered his release”. The second reason is that the
issue in question will probably arise frequently in future and some
guidance by the Supreme Court on the main issues argued before it as
well as in the Court a quo, is appropriate and justified in
the circumstances.
THE ISSUE WHETHER OR NOT THE SECURITY COMMISSION WAS PROPERLY
CONSTITUTED WHEN IT MADE ITS RECOMMENDATION AND IF NOT – HOW DOES
THAT AFFECT THE LEGALITY OF THE MINISTER’S DECISION
The Minister’s power to “forthwith remove or cause to be removed
from Namibia by warrant under his hand any person, who enters or has
entered or is found in Namibia and whose activities endanger or are
calculated to endanger the Security of the State, whether or not such
person is a prohibited immigrant in respect of Namibia”, is subject
to the recommendation of the Security Commission. Without a positive
recommendation of the Security Commission in the particular instance,
the Minister’s purported exercise of his power would be invalid and
null and void. To put it another way: The aforesaid positive
recommendation is a jurisdictional requirement, without which, the
Minister has no jurisdiction to act and the purported exercise of his
power would be null and void, ab initio, i.e. without any
legal force and effect from the beginning.
It is obvious that the onus, i.e. the burden of proof will, in the
case of dispute, be on the Minister to establish that he in fact
acted on such a valid recommendation by the Security Commission.
The Court a quo, in its well-reasoned judgment, found that the
Security Commission was not properly constituted at the time, because
there were only 4 members instead of six when it took the decision to
make the recommendation and when it in fact made the recommendation.
Consequently it found that the decision of the Minister was also
invalid on this ground.
This finding was attacked by Mr. Maleka on appeal on several grounds,
being:
At issue was whether or not the Security Commission which made the
decision was properly constituted. However, the Court below found
that “There was no Security Commission in existence at the time …
the Commission made the recommendation”.
What the Court a quo probably meant was that at the time of
the decision to recommend, the Commission was not properly
constituted. Whether or not that means that the Commission “was
not in existence” at the time does not take the matter any further
and is not necessary to decide.
I must point out however: This is not a case where the Tribunal was
properly composed, but some members were merely absent. The present
case is worse. The Commission was no longer properly constituted,
and this situation continued for a considerable period.
It is obvious that the Commission could not come into existence,
unless 6 members were appointed, because in such a case the tribunal
lacked the essentials for its coming into existence. Similarly, if
for a considerable period, there are only four (4) members instead of
six (6) because vacancies were never filled, the Commission lost the
essentials for its continued legal existence.
But as I have already pointed out, it is not necessary for the
purpose of this decision to decide whether or not the Commission, as
contemplated by Art. 114 of the Constitution, was no longer in
existence. It suffices for present purposes to decide the validity
of the decision to recommend, on the ground that the Commission was
not properly constituted at the time for the taking of a valid
decision.
The general rule was stated by Innes, C.J., in Schierhout v Union
Government2
already in 1919. The learned Chief Justice stated:
“We were referred to a number of authorities in support of a
principle which is clear and undisputed. When several persons are
appointed to exercise judicial powers, then in the absence of
provision to the contrary, they must all act together, there can only
be one adjudication, and that must be the adjudication of the entire
body (Billings v Prinn, 2 W. Bl., p. 1017). And the same rule
would apply whenever a number of individuals were empowered by
Statute to deal with any matter as one body; the action taken would
have to be the joint action of all of them (see Cook v Ward, 2
C.P.D. 255; Darcy v Tamar Railway Co., L.R. 3 Exch., p.
158, etc.) for otherwise they would not be acting in accordance with
the provisions of the Statute. It is those provisions which in each
instance must be regarded; and the question here turns upon the
construction of section 2(6) of Act 29, 1912.”
As the Court a quo correctly points out, the case of S v
Naude3,
relied on by Frank, S.C., in the Court a quo, can clearly be
distinguished from a case such as the present.
Article 114 of the Namibian Constitution provides for the
establishment of a Security Commission. The section reads:
(1) There shall be a Security Commission which shall have the
function of making recommendations to the President on the
appointment of the Chief of the Defence Force, the Inspector-General
of Police and the Commissioner of Prisons and such other functions as
may be assigned to it by Act of Parliament.
(2) The Security Commission shall consist of the Chairperson of the
Public Service Commission, the Chief of the Defence Force, the
Inspector-General of Police, the Commissioner of Prisons and two (2)
members of the National Assembly, appointed by the President on the
recommendation of the National Assembly.”
Mr. Maleka contends that the effect of the finding is that “the
provisions of section 49(1) may not be invoked or applied by the
Minister against any person, because the legitimate constitutional
organ established to make recommendations to the Minister was found
not to exist. The whole statutory scheme of section 49(1) of the
Act which is intended to protect or promote the security of the
State is effectively dislocated”.
This argument is indeed tenuous. The Court was only doing its duty
as laid down by the constitution. If there is a “dislocation” –
the blame must certainly be sought elsewhere. Mr. Maleka, when
questioned by the Court was unable to say why the two vacancies to be
filled from members of the National Assembly, appointed by the
President on the recommendation of the National Assembly, was not in
fact filled after a long period of time.
Mr. Maleka also took the point that the finding of the Court
affected the Security Commission and that the Commission had a
direct and substantial interest and thus had to be joined as a party
in the proceedings before the Court a quo.
This point also has no substance in the circumstances of this case.
The Government has been cited as the respondent. The chairman of the
Commission is a witness for respondent in the proceedings.
Respondent had to prove that its Minister had the necessary authority
to act and that necessitated proof that the Security Commission had
recommended the Minister’s action.
The main contention put forward by Mr. Maleka was that the Security
Commission remained a Security Commission as envisaged by Art. 114
of the Constitution, even if it consisted of only four members
instead of the six (6) prescribed by the Namibian Constitution.
Furthermore, it was sufficient for the proper functioning of the
Commission if, when it took decisions required by section 49(1) of
the Immigration Control Act, it consisted of only four members or if
only four members participated in the consideration and making of
the recommendation. He submitted that the four members “all fall
within the designated categories specified in subsection (2) of Art.
114, namely Chairperson of the Public Service Commission, the Chief
of the Defence Force, the Inspector-General of the Police and the
two members of the National Assembly, who did not fall within the
designated categories. They did not therefore possess the kind of
expertise or experience ordinarily expected from members falling
within the designated categories. Their absence from the meeting of
the Security Commission which considered and made the relevant
recommendation did not deprive it of the of the expertise such as
that falling within the designated categories”.
This is a spurious argument.
I say so for the following reasons:
(a) Art. 114(2) is peremptory in so far as it prescribes the
composition of the Security Commission. That it shall consist
of six members as defined, is beyond any doubt.
The said article contains no exceptions or qualifications whatever.
(b) It takes little imagination to understand why the representatives
of the Namibian people in the Constituent Assembly regarded it as
necessary to include two members selected from the National Assembly,
and appointed by the President on the recommendation of the National
Assembly.
It is obvious that the said Constituent Assembly wanted to make the
Security Commission as representative as possible and to make a wider
expertise available to the Commission in executing its very onerous
functions. One of the members of the Security Commission who had
vacated his office was the Attorney General, whose legal expertise
and independent state of mind could be of great assistance when
matters of legal procedure and the protection of fundamental human
rights and freedoms had to be considered. The other member was the
then leader of the opposition in the National Assembly.
In view of the letter and spirit of the Namibian Constitution,
security concerns have to be addressed with due regard for
fundamental rights, and freedoms. The two members drawn from the
National Assembly would probably also possess common sense and this
would be helpful to the representatives from so-called “designated
categories”.
I make bold to say that if the Security Commission was composed as
provided for by the Constitution, then the recommendation in question
may never have been made and the Minister may never have taken the
decision he took.
(c) Article 114 does not allow any Minister or other official to
decide on a composition of the Security Commission as they deem fit.
(d) The Legislature enacting the Immigration Control Act did also not
attempt to supplement Article 114 of the Namibian Constitution by
providing for a different composition for certain purposes. There
was also no attempt to provide for a quorum of less than six in
certain circumstances. There was also no need to provide for or
attempt to provide for such a quorum because the so-called “members
from designated categories” would always be available – because
those posts would or could always be filled in due course or
alternatively, may probably be substituted by their deputies, acting
for them, or temporary appointments. As far as vacancies in the case
of the two members of parliament are concerned – those could also
always be filled without delay, provided those responsible to ensure
that any vacancies are filled, do their job.
(e) The Immigration Control Act itself provides an example of the
nature of the necessary provisions when the Legislature deems a
quorum of less than the full complement of members, desirable or
necessary. Section 43(6)(a) deals with Immigration Tribunals and
provides:
The decision of the majority of the members of the Tribunal, and in
the event of an equality of votes, the Chairman shall have a casting
vote in addition to his or her deliberative vote.”
(f) If section 49(1) of the Immigration Control Act, read with Art.
114 of the Constitution, created some obstacles to summary and
arbitrary decisions relating to the Government’s security concerns,
it must be kept in mind that if there really are reasonable grounds
for believing that any person, even a citizen, is engaged in murder,
assault, robbery, theft, terrorist activity or conspiring with the
enemy to commit such act, then charges can be laid against such
person or persons and the matter be resolved in Court.
I conclude therefore that the Security Commission was not properly
constituted when it purported to consider the Minister’s request
and made its recommendation. It consequently could not make a valid
decision for the purpose of section 49(1) of the Immigration Control
Act. A precondition for a valid decision by the Minister was not
fulfilled. The Minister consequently did not have the jurisdiction
to make the order in question.
In the result the Minister’s aforesaid order is void ab initio,
i.e. of no force and effect from the beginning.
This finding is in itself fatal to the respondent’s appeal.
THE ISSUE WHETHER THE DECISION OF THE MINISTER TO DECLARE SIKUNDA
SNR., PERSONA NON GRATA IS VALID, NOTWITHSTANDING THE FACT
THAT NEITHER THE SECURITY COMMISSION NOR THE MINISTER, HAD APPLIED
THE AUDI ALTERAM PARTEM RULE, (I.E. THE RIGHT OF AND
OPPORTUNITY TO SIKUNDA TO BE HEARD)
The Court a quo based its decision on this point. It found
that this principle was not complied with and that the decision of
the Minister must therefore be set aside.
It was common cause that neither the Commission nor the Minister had
afforded Sikunda the opportunity to be heard before the decision was
taken. Mr. Maleka on appeal did not dispute that Sikunda Snr. had
the right to be heard but he made the following two basic
submissions:
The Security Commission need not apply the audi alteram
partem rule because its recommendation is not a decision
which has a final effect in that the Minister can accept or reject
it. The decision of the Commission is therefore not reviewable.
Although the Minister is required to observe the audi alteram
partem maxim, “the application of this maxim in the context of
the provisions of section 49(1) is not absolute. This is so because
the latter provisions deal with the protection or promotion of the
security of the State, particularly where the removal of the
targeted individual is on the ground that his activities endanger or
are calculated to endanger the security of the State. In this
connection it has been recognized in early and recent times that the
repository of power, (the Minister in casu) can act on
confidential information and would be entitled not to disclose such
information to the affected person”.
I will now deal briefly with these contentions.
Ad(i) Mr. Maleka’s submission that the Security Commission need
not apply the maxim
I do not agree with this contention inter alia for the
following reasons:
(a) The recommendation of the Commission is at the same time also a
“decision”. It is a “decision” to recommend or not to
recommend. Before the Commission can make a recommendation as
envisaged by section 49(1) or refuse to make such a recommendation –
it in essence has to decide whether or not to make a recommendation.
If I understand Mr. Maleka’s argument correctly, he does not
contend that the Commission does not make or take a decision.
(b) Although the Minister cannot make an order against a person in
terms of section 49(1) without a positive recommendation by the
Commission to this effect, the Minister may decline to issue an
order, against a person, notwithstanding a positive recommendation
from the Commission, recommending that he acts.
In such a case, the person who was targeted by the Commission will
have no right of review of the Commission’s decision. However,
when the Minister decides to make an order in terms of section 49(1),
he can only do so if he has the prior recommendation/decision of the
Security Commission. If the Minister acts on this
recommendation/decision the party who is targeted by his/her decision
is prejudiced, not only by the decision of the Minister, but by the
preceding decision of the Commission.
In such a case the Minister’s decision as well as the Commission’s
decision can be reviewed in one composite review as was done in the
instant case.
Mr. Maleka relies on the Australian decision in Australian
Broadcasting Tribunal v Bank and Others,4
where the Mason, C.J. inter alia said:
“…That answer is that a reviewable ‘decision’ is one for
which provision is made by or under a statute. That will generally,
but not always, entail a decision which is final or operative and
determinative, at least in a practical sense, of the issue of fact
falling for consideration. A conclusion reached as a step along the
way in a course of reasoning leading to ultimate decision would not
ordinarily lead to a reviewable decision, unless the statute
providing for the making of a finding or ruling on that point so that
the decision, though an intermediate decision, might accurately be
described as a decision under enactment. Another essential quality
of a reviewable decision is that it be a substantive determination…”
How this decision can be of assistance to the Government’s case, is
difficult to fathom, because:
There is no separate and independent review of the Commission’s
decision, but only a composite review, where the Commission’s
decision-making and decision is attacked because it was an integral
and essential part of the Minister’s decision. Furthermore it was
a “decision”, and “one for which provision is made for or under
a statute”; “the statute provided for the making of a finding or
ruling on that point so that the decision, though an intermediate
decision, might accurately be described as a decision under an
enactment”; it is also “a substantive determination”.
(c) The Security Commission is so structured that it is in an ideal
position to apply the audi alteram partem maxim.
(d) The Security Commission has a heavy responsibility. It is
inconceivable that it can reach a fair decision without hearing the
person or persons targeted. Even if its decisions cannot be taken on
review separately and independently, that does not mean that it has
no duty to apply the audi alteram partem rule.
(e) The Commission is certainly an “administrative body” and its
members “administrative officials” as contemplated by section 18
of the Namibian Constitution and consequently has to act fairly and
reasonably.
The impact and requirements of this article was set out in the
recent judgment of Strydom, C.J., in the case of Chairperson of
the Immigrating Selection Board v Frank and Another5
"’18 Administrative Justice
Administrative bodies and administrative officials shall act fairly
and reasonably and comply with the requirements imposed upon such
bodies and officials by common law and any relevant legislation, and
persons aggrieved by the exercise of such acts and decisions shall
have the right to seek redress before a competent Court or Tribunal.’
Article 18 is part of Chapter 3 of the Constitution which deals with
Fundamental human rights and freedoms. The provisions of the Chapter
clearly distinguishes which of these provisions apply to citizens
only (e.g. Art. 17), and which to non-citizens (e.g. Art. 11(4) and
(5)). Where such distinction is not drawn, e.g. where the Article
refers to persons or all persons, it includes in my opinion citizens
as well as non-citizens. The Article draws no distinction between
quasi judicial and administrative acts and administrative
justice whether quasi judicial or administrative in nature
"requires not only reasonable and fair decisions, based on
reasonable grounds, but inherent in that requirement fair procedures
which are transparent" (Aonin Fishing v Minister of Fisheries
and Marine Resources, 1998 NR 147 (HC).) Article 18 further
entrenches the common law pertaining to administrative justice and in
so far as it is not in conflict with the Constitution.”
The following further dicta from the same judgment are also
applicable to the present case, mutates mutandis:
“This rule embodies various principles, the application of which is
flexible depending on the circumstances of each case and the
statutory requirements for the exercise of a particular discretion.
(See Baxter: Administrative Law p. 535 ff and Wiechers:
Administrative Law p. 208 ff.)
In the context of the Act, the process for the application of a
permit was set in motion by the submission of a written application
by the first respondent. If on such information before it, the
application is not granted, and provided the Board acted reasonably,
that would be the end of the matter. However, there may well be
instances where the Board acts on information they are privy to or
information given to them by the Chief of Immigration (see sec.
26(2)). If such information is potentially prejudicial to an
applicant, it must be communicated to him or her in order to enable
such person to deal therewith and to rebut it if possible. (See
Loxton v Kendhardt Liquor Licensing Board, 1942 AD 275 and
Administrator SWA v Jooste Lithicum Myne (Edms) Bpk, 1955(1)
SA 557(A).”…6
“In the absence of any prescription by the Act, the appellant is at
liberty to determine its own procedure, provided of course that it is
fair and does not defeat the purpose of the Act. (Baxter, op.
cit. P. 545). Consequently the Board need not in each instance
give an applicant an oral hearing, but may give an applicant an
opportunity to deal with the matter in writing.
Furthermore, it seems to me that it is implicit in the provisions of
Article 18 of the Constitution that an administrative organ
exercising a discretion is obliged to give reasons for its decision.
There can be little hope for transparency if an administrative organ
is allowed to keep the reasons for its decision secret. The Article
requires administrative bodies and officials to act fairly and
reasonably. Whether these requirements were complied with can, more
often than not, only be determined once reasons have been provided.
This also bears relation to the specific right accorded by Articles
18 to persons to seek redress before a competent Court or Tribunal
where they are aggrieved by the exercise of such acts or decisions.
Article 18 is part of the Constitution's Chapter on fundamental
rights and freedoms and should be interpreted "… broadly,
liberally and purposively…" to give to the article a
construction which is "… most beneficial to the widest
possible amplitude". (Government of the Republic of Namibia
v Cultura 2000, 1993 NR 328 at 340 B - D.) There is therefore no
basis to interpret the Article in such a way that those who want to
redress administrative unfairness and unreasonableness should start
off on an unfair basis because the administrative organ refuses to
divulge reasons for its decision. Where there is a legitimate reason
for refusing, such as State security, that option would still be
open.”7
I must point out that although the aforesaid approach was set out in
the judgment of Strydom, C.J., in his dissenting judgment, the
majority of O’Linn, A.J.A. and Teek, A.J.A. agreed with the
approach as set out by Strydom C.J.
I must also draw attention to the last sentence in the above
quotation which reads: “Where there is a legitimate reason for
refusing, such as State Security, that option would still be open”.
To this remark the majority added the following rider:
“It should be noted however, that such reasons, if not given prior
to an application to a Court for a review of the administrative
decision, must at least be given in the course of a review
application.”8
It follows that an administrative tribunal, which deals with and
decides on a matter affecting the fundamental rights of a person as
well as state security and refuses to provide the reasons for its
decision to the person targeted on the ground of “State Security”,
must give explicit reasons for its refusal. Nevertheless, the
administrative tribunal cannot avoid to give reasons for its decision
altogether and in my respectful view, such a principle was not
intended by the Chief Justice in the sentence from his judgment
abovementioned relating to “State Security”. Reasons for the
decision must be given, not necessarily in great detail but at least
in substance.
The Tribunal may delay giving the reasons to the targeted person, but
cannot avoid providing the reasons, at least in substance, in the
course of a judicial review.
The withholding of reasons for the decision must be distinguished
from withholding information of a confidential nature, such as
information given by informers, although the decision is often based
on the information. Information, the disclosure of which may
jeopardize state security, may be withheld more readily than reasons
for the decision, but again, there would seldom be sufficient
justification for withholding the substance of the information on
which the decision is based. If this is not so, the fundamental
rights of the targeted person to be heard and to put his/her case,
would be prejudiced to such an extent that his right would become
ephemeral.9
(f) Art. 12 of the Namibian Constitution is more explicit and goes
much further than Article 18.
Sub-article (1)(a) provides:
“In the determination of their civil rights and obligations or any
criminal charges against them, all persons shall be entitled to a
fair and public hearing by an independent, impartial and competent
Court or Tribunal established by law: provided that such Court or
Tribunal may exclude the press and/or the public from all or any part
of the trial for reasons of morals, the public order or national
security, as is necessary in a democratic society.”
The right to remain domiciled in Namibia and not to be removed
arbitrarily to another country, can be regarded as a person’s
“civil right”. A good case can probably be made out for saying
that the Security Commission, being a Tribunal, must also act in
accordance with article 12(1)(a) when it decides whether or not to
make a recommendation for the removal of a person from Namibia.
But this issue need not be decided finally at this juncture. Suffice
to say that even if the letter of Art. 12(1)(a) is not applicable, at
least the spirit thereof underlines and is supportive of what has
been said above about the effect of Art. 18 and the application of
the rules of natural justice – including the audi alteram
rule and the requirement that the decision will be considered and
made by an independent, impartial and competent Court or Tribunal.
Lastly it must be emphasized that even if there is justification for
not disclosing to the targeted person confidential information, such
as the identity of the informer or for not disclosing the details of
the reasons for the decision or even the substance thereof at the
initial stage, the right of the targeted person to be heard in a
meaningful and fair manner before the decision is taken,
alternatively, and only in exceptional cases, after the decision is
taken, cannot be doubted.
(g) At the initial stage of the action against Sikunda Snr., the
Minister even purported to declare Sikunda a “prohibited
immigrant”. This is a further indication of how the Honourable
Minister either misconceived his function under section 49(1) or for
some other unknown reason, misapplied his powers under the provisions
of the Immigration Control Act.
Mr. Nilo Taapopi, the permanent secretary in the employ of the
Ministry of Home Affairs even protested in reply to the affidavit of
applicant that the Minister “did not ‘purportedly’ declare the
detainee a prohibited immigrant in terms of Part VI of the
Immigration Control Act. He in fact did declare him as such”.
Nevertheless it was neither argued in the Court a quo nor in
the appeal before us that Sikunda Snr., was a prohibited immigrant in
terms of section 39(2) of the Act or properly declared as such at any
stage.
At any event sections 43 – 48 of the Act, provides for elaborate
procedure for the establishment and functioning of Tribunals “for
the hearing and determination of applications for the removal of
persons from Namibia in terms of this Act or any other law.”
Application for such removal in terms of section 43 – 48 must be
made to such a Tribunal. The procedure in such Tribunal provides
extensively for application of the audi alteram partem principle
and it seems, complies not only with the requirements of Art. 18 of
the Namibian Constitution, but even Art. 12(1)(a).
Such a procedure was never applied to Sikunda Snr. Section 49(1)
does not provide expressly for such a procedure, but on the other
hand provided for a decision by the Security Commission, as a
precondition for the Minister’s decision to remove a person from
Namibia.
(h) If the Legislature in section 49(1) of the Immigration Control
Act or for that matter in any other law, purported to abolish or
diminish from the provision of Art. 18 and 12 of the Namibian
Constitution, such provision would be unconstitutional and invalid.
(i) The failure by the Commission to apply the audi alteram
partem rule is compounded by the failure of the Minister to apply
the rule.
Whether or not the Minister’s decision could have been saved if he
at least applied the rule is debatable. Because of the importance of
the Commission’s decision, as a precondition for the Minister’s
order, it can strongly be argued that the Commission’s failure to
apply the rule cannot be remedied even if the Minister applied the
rule before making the order against Sikunda Snr..
It can even be argued that if the Commission had applied the rule
properly and there is a proper record of its proceedings, the
Minister can have regard to such proceedings and may not be required
to again apply the audi alteram partem. But this is not
necessary to decide, because in this case, both the Commission and
the Minister had failed to apply the rule.
I must however, point out at this junction the shocking fact that
the Commission, according to the respondent’s reply to a Rule
35(12) notice, apparently kept no record of its proceedings. And as
far as the Minister is concerned, he apparently did not care. What
he was interested in, was to receive the “recommendation” which
he had “implored” the Commission to make. In this regard I need
only refer to the Rule 35(12) notice by applicant requesting inter
alia the record of the meeting of the Security Commission and the
respondent’s reply to this notice which read:
“The annexures to the said documents and the record of the Security
Commission, if one exists, are privileged and will not be
disclosed, on grounds of national security and public interest.”
(My emphasis added.)
Ad(ii) Mr. Maleka’s submission that the right to be heard could
be exercised after the decision was taken and that there was in fact
such an opportunity given to Sikunda Snr.
(a) It is correct that the opportunity for the right to be heard can
be given after the decision is taken, but such a course would only be
justified in exceptional circumstances. This position is adequately
set out in the following two decisions referred to by counsel for the
applicant:
In the decision of the Appellate Division of the Supreme Court of
South Africa in Administrator Transvaal & Ors v Traub and
Ors., Corbett, C.J., stated:
“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 had been taken (see Omar’s case, supra,
at 906F – H; Chikane’s case, supra at 379G;
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 where for some other
reason it is not feasible to give a hearing before the decision is
taken. But the present is, in my opinion, not such a case. There is
no suggestion that the decision whether or not to appoint the
respondents to the posts applied for by them had to be taken in a
hurry: in fact all the indications are to the contrary. Nor is
there any basis for concluding that for some other reason a hearing
prior to the decision was not feasible.”
Corbett, C.J., further stressed that this right to be heard would
also presuppose being apprised of adverse material to the person
exercising that right.10
In Mamabolo v Rustenburg Regional Local Council, the test was
reaffirmed in the following terms:
“The importance to be accorded to the audi principle in the
present context is compounded by the far reaching import of the
decision itself and the deprivation of further remedies to an
affected person by section 49.11
Mr. Smuts, on behalf of applicant, made the following points:
“It is submitted that the exceptional circumstances referred to in
the authorities do not apply to the circumstances of this matter
given the fact that Mr. Sikunda’s name appeared in the list some
three years prior to the purported decision. There was ample
opportunity to provide him with the right to be heard. There was
also absolutely no attempt to afford him the right to be heard
immediately upon his seizure and detention – even in the most
attenuated form. Even after the respondent was alerted to the audi
principle on 8 November 2000, there was still then no attempt to
provide the applicant’s father with the right to be heard until
nearly 3 months later and at a time when the applicant’s father had
been detained without trial for more than 3 months – despite a
court order directing his release. We also point out that the
Minister’s decision taken in terms of section 49 under review was
not in any sense of a provisional nature. It was distinctly final.
Steps were also in fact taken by the Minister to implement it – by
causing the arrest of Mr. Sikunda and addressing a letter to the
UNHCR to give effect to the removal of Mr. Sikunda from the Republic
of Namibia.
It is submitted that this offer so belatedly made in the Minister’s
affidavit on 1 February 2001 is thus not in good faith in the strict
legal sense and in any event would and does not comply with the
dictates of the audi principle in the circumstances of the
present matter. Had there been any genuine attempt to entertain
representation, this would have occurred at a far earlier stage and
not some 4 months after the purported decision was taken and more
than 3 months after Mr. Sikunda’s detention – and after more than
3 months of contempt of court on the part of the Minister.
Furthermore, it is submitted that there would be no prospects of the
Minister having an open mind in the matter, having “implored” the
Security Commission to make the recommendation he desired and after
he had deposed to two affidavits spanning some considerable time in
which he was insistent upon the correctness of his decision. This is
further compounded by the Minister’s persistence for more than 3
months in acting in contempt of the Court order (for which he has
been convicted) in refusing to release the detainee. The Minister’s
subsequent conviction for contempt yet further compounds the matter.
Clearly the Minister would not be capable of making a decision –
nor could this decision be made – without bias or at least a
reasonable suspicion of bias in those circumstances. The Minister’s
own predilection to persisting in his decision was in fact
demonstrated already in his earlier correspondence and his letter of
19 September 2000 in which he “implored” the Security Commission
to make their recommendation. The Minister’s subsequent
persistence to sticking to his decision is further demonstrated by
his 2 affidavits and his flagrant contempt. This aspect is further
referred to below where the relevant authorities are also cited in
relation to impermissible bias, predetermination and the failure to
have the required “open mind” to make a decision, stressed by
Corbett, C.J., in the Traub-matter. The much belated attempt
to cure the failure to comply with the audi principle must
fail.”
I must point out that the offer made by the Honourable Minister was
made on 1st February 2001, included in an additional
affidavit filed on behalf of the respondent. It seems to me that
there is considerable substance in the above submissions by counsel
for applicant.
In view of the fact that the Minister now had the whole case of
Sikunda Snr., on affidavit before him, he had a golden opportunity,
to demonstrate his bona fides and bring an end to the matter,
by indicating that he was now willing to agree to the setting aside
of his previous order. What confidence can one have in the
Minister’s objectivity and bona fides, if he at this late
stage merely offered to receive representations by or on behalf of
Sikunda Snr.
It is also necessary to stress that quite apart from the three basic
points dealt with in this judgment, the procedure followed by the
Commission and the Minister, as well as their decisions on the
merits, were severely criticized on many other points by the Counsel
for applicants as well as by the Court a quo and much of this
criticism appears to be well-founded. It would however, prolong this
judgment unnecessarily, to deal with all these points and I therefore
decline to do so.
What should be mentioned however, is that there is no indication
whatever that either the Minister or the Security Commission
considered whether or not Sikunda Snr. was a citizen of or domiciled
in Namibia. The reason for this was possibly that they had not
realized that the power under section 49(1) could not be exercised
against a person who is either a citizen of or domiciled in Namibia.
That would mean that both decisions should also be set aside on the
ground that the Minister as well as the Commission had also
misconceived its power to act in this regard. The decisions taken
are also null and void for this reason.
No wonder that the applicant and Sikunda Snr., declined the belated
offer of the Minister to consider further representations from the
applicant and Sikunda Snr. In the circumstances the said offer by
the Honourable Minister cannot be regarded as a proper and sufficient
compliance with the rules of fairness, including the audi alteram
partem rule.
For the same reason there is no justification for setting aside the
orders made by the Court a quo in its well-reasoned judgment
and substitute it with an order – setting aside the Minister’s
order as it stands and referring it back to him for reconsideration
and decision, after complying with the audi alteram partem
rule.
In any event, even if this Court was inclined to refer the matter
back to the Minister as suggested, that course would be an exercise
in futility because of the finding of this Court that Sikunda Snr.,
was legally domiciled in Namibia and that the Minister had no
jurisdiction whatever to act against him under section 49(1).
Furthermore, the finding that the Security Commission was not
properly composed at the time when it made the recommendation
aforesaid, would remain a fatal impediment to such a course for as
long as it was not properly composed.
There is also no reason for interfering on appeal with the special
order of costs granted against the respondent in the Court a quo.
What remains, is whether or not a special order of costs should be
made on appeal in regard to the appeal proceedings.
There is considerable merit in the argument for an order of costs
against the Government on an attorney and own client basis. On the
other hand, the following factors must also be considered by this
Court:
The Government has already been penalized for the conduct on which
the applicant relies by a punitive costs order in the Court a quo
and an humiliating order against the Minister for Contempt of Court,
against which he has not appealed. Furthermore I am not convinced
that the rule nisi granted initially by Manyarara, A.J.,
should have included an interim interdict against the Minister and
Chief of Police in the form of a mandatory injunction, ordering the
release of Sikunda Snr., without a proper hearing first being
afforded the Minister. As I have indicated earlier in this judgment,
an interim interdict prohibiting the Minister from removing Sikunda
Snr., was necessary, but the order for the immediate release of
Sikunda Snr., without a proper opportunity for the said Minister and
Chief of Police to put their case was not justified, particularly not
when the legal representative of the Minister at the outset offered
to consent to an interim order to the effect that Sikunda Snr., may
not be removed from the country and the applicant rejected this
offer.
This part of the interim order probably caused some frustration on
the side of the Government, leading to the refusal and/or failure of
the Minister to comply with the Court order until after the
conviction for Contempt of Court. The Government attempted to get
finality in the legal proceedings at the earliest possible date.
First it attempted to anticipate the return date from the 10th
November to the 26th October but it was frustrated in that
attempt by the legal representatives of the applicant. The long
delay which ensued before the matter could be argued on 16th
February 2001, was caused by an unforeseeable course when the Judge
who had to hear the matter, first postponed it and when the postponed
date arrived, he recused himself from the hearing, causing another
postponement. Neither the Minister nor the Chief of Police was to
blame for this long delay. The Minister’s conduct in this regard
was not justified, but it was to some extent mitigated.
The decisive factor however, is that the procedures used by the
appellant to detain and continue to detain Sikunda Snr. were indeed
tainted to such an extent by irregularity and illegality and was such
a grave infringement of his fundamental rights, that the applicant
must not only succeed, but should not be out of pocket by granting an
ordinary order of costs.
There is also an application before us for the condonation of
Respondent’s non-compliance with the Rules of Court relating to the
preparation of the record of appeal. Respondent’s counsel did not
object to the granting of condonation. There is also no good reason
why condonation should be withheld.
In the result the following order is made:
1. Condonation is granted for Respondent’s failure to prepare the
appeal record properly.
2. The appeal is dismissed.
3. The appellant is ordered to pay the costs of the appeal on the
basis of attorney and own client.
(signed) O’LINN, A.J.A.
I agree.
(signed) STRYDOM, C.J.
I agree.
(signed) CHOMBA, A.J.A.
/mv
COUNSEL ON BEHALF OF THE APPELLANT: Adv. I.V. Maleka
ASSISTED BY : Adv. V. Erenstein ya Toivo
ON BEHALF OF : Government Attorney
COUNSEL ON BEHALF OF THE RESPONDENT: Adv. D.F. Smuts
ASSISTED BY : Adv. R.D. Cohrssen
ON BEHALF OF : Theunissen, Louw and Partners
1
See: The Law & Practice of Interdicts by Prest 223 and
the cases there quoted.
See
also: Von Moltke v Costa Areaso Pty Ltd, 1975(1) SA 255©
at 257A.
8
IBID, p. 3 of the majority judgment. Compare also: Du Preez &
An v Truth and Reconciliation Commission, 1997(3) SA 204 (SCA)
231a – 232d.
9
Aministrator, Transvaal & Others v Traub and Others,
1989(4) SA 731(A)
Du
Preez & An v Truth and Reconciliation Commission, 1997(3) SA
204 (SCA) at 231G – 232D.