IN THE
SUPREME COURT OF NAMIBIA

In the matter
between

And

CORAM:
Strydom, C.J., O’Linn, A.J.A., et Chomba, A.J.A.

HEARD ON:
20/06/2002.

DELIVERED
ON: 28/01/2003

APPEAL JUDGMENT

STRYDOM, C.J.: The appellant in this
matter is a magistrate attached to the Ministry of Justice of
Namibia. At the time when this application was launched he was
stationed at Gobabis. The Permanent Secretary informed the
appellant on very short notice that he was transferred from Gobabis
to Oshakati. After negotiations between the appellant and the
Permanent Secretary failed he brought an application on a semi-urgent
basis to the High Court of Namibia in which the following relief was
claimed, namely:

“2. That a Rule Nisi be issued calling upon the respondent on a
date to be determined by the Honourable Court to furnish reasons to
the above Honourable Court why an order should not be made in the
following terms: -

1. That the
   decision of the Permanent Secretary for Justice to transfer the
   applicant to Oshakati be reviewed and set aside.

   
   

.

2. To declare that
   the judiciary, including magistrates, are independent in terms of
   Article 78 of the Namibian Constitution and that the Permanent
   Secretary of Justice has no jurisdiction to appoint, transfer
   and/or terminate the services of a magistrate, in particular that
   Section 23(2) of the Public Service Act does not apply to
   Magistrates.

   
   

3. Costs of suit.

   
   

4. Further and/or
   alternative relief.

   
   

3. That the Respondent be interdicted to transfer the Applicant from
Gobabis and/or to evict him from the government house situated at
Lieutenant Lampe Street, Gobabis, pending the finalisation of the
Application referred to in paragraph 2.”

After hearing argument, which included an
application to strike out certain parts of the replying affidavit of
the appellant, the Court a quo made the following order:

“That
in respect of respondent’s application to strike out:

A (1) The following portions, paragraphs and annexure of applicant’s

replying affidavit are struck out:

Paragraphs
5.3, 5.4 with annexure WM17, 5.5, 5.6,9.2.2 and 35.1.1.

2. Save for the
   allegations in paragraph 2(e) and (f) of respondent’s application
   to strike out, those portions and paragraphs in applicant’s
   replying affidavit set out in paragraphs 2(a) to (p) of respondent’s
   application to strike out, are struck out.

   
   

2. The portions and
   paragraphs of applicant’s replying affidavit set out in paragraph
   3(a), (b), (c), (d) and (e) of respondent’s application to strike
   out are struck out.

   
   

B Applicant shall pay the costs of the application to strike out.
For the benefit of the taxing master the argument in respect of the
application took about ten (10) minutes.

That
in respect of the Main Application:

1. The application
   to review and set aside the decision of the Permanent Secretary for
   Justice to transfer the applicant to Oshakati is dismissed.

   
   

2.1 Inasmuch as the provisions of Article 78 of the Namibian
Constitution declaring the Judiciary including magistrates
independent, are loud and clear, it is unnecessary for this Court to
make such a declaration.

2.2 In terms of section 9 of Act 32 of 1944 as amended by the
Magistrates’ Courts Amendment Act (Act 1 of 1999) the Minister of
Justice, or such person duly delegated in terms of the said Act, may
appoint magistrates.

3. Magistrates are liable to be transferred by virtue of their
contracts, express or implied, with the State and by virtue of the
law and practice in terms of Act 32 of 1944, as read with Articles
138(2)(a) and 140(1) of the Constitution of Namibia.

4. The transfer of magistrates does not constitute a threat to their
independence.

5. Section 23(2) of the Public Service Act is not applicable to
magistrates but this Order, i.e. Order 5, shall not become effective
until 1^st March 2003, and furthermore it shall be expunged
and cease to exist, in the event of legislation correcting the
defects which have caused the making of this order being properly
passed and gazetted.

6. The application for the interdict and other relief claimed in
claim 3 of the Notice of Motion is refused.

7. Applicant shall
   pay the costs.

   
   

The costs of the
interim application stood over for decision. Briefly, the
application was to stop the transfer of applicant to Oshakati. The
application was abandoned and applicant has taken up his post in
Oshakati. Applicant must therefore pay the costs of the interim
application. The Order of the Court in this regard is:

That
the applicant shall pay the costs of the interim application.”

The appellant was not satisfied with the outcome
of the case and, in terms of sec. 18(1) of the High Court Act, Act
No. 16 of 1990, appealed to this Court. The appeal is against the
order whereby parts of the replying affidavit of the appellant was
struck out, i.e. Orders A and B as well as some of the orders made by
the Court a quo in regard to the main relief claimed.
Paragraph 1 of the Notice of Appeal states that in respect of the
main relief claimed, appellant appeals against orders 1, 2.2, 3, 5,
except the first sentence up to and including the word “applicable”,
and orders 6 and 7. The notice of appeal consists of some 32
typewritten pages divided into 46 paragraphs and is aimed to cover
every conceivable point whether relevant to the issues or not and
whether addressed in argument or not. It can hardly be said that
such a notice informs the Court and the respondent precisely of the
issues involved which, after all, is the purpose of the notice.

The appellant was represented by Mr. Du Toit SC
and Mr. Grobler and the respondent by Mr. Smuts and Ms. van Niekerk.
Counsel on both sides presented the Court with full and
well-researched arguments for which I must express my appreciation.
An advent of importance which took place after the appeal was noted
was the handing down of the judgment of the Constitutional Court in
South Africa in the matter of van Rooyen and Others v The State
and Others, which was delivered on the 11^th June 2002.
This judgment dealt with issues which were germane to the present
appeal, and both Counsel referred to various excerpts thereof. This
case is now reported in 2002 (8) BCLR 810 (CC).

In his founding affidavit the appellant set out
the background history to events, which later led to him instituting
the application. He said that he was appointed as an additional
magistrate at Gobabis on the 1^st December 1999. During
this period claims for witnesses, brought to him for approval by the
prosecutor, one Ms. Hamunyella, were found not to be in order. This
led to a police investigation which resulted in the suspension of the
prosecutor and her being charged with 28 counts of fraud. Appellant
said that shortly after this an orchestrated attempt, led by the
Swapo Party Regional Co-coordinator, one Kavari, was launched to get
him removed from his post. Certain defamatory articles also
appeared in the media, which lead to actions instituted by the
appellant for defamation. Because of the allegations made against
him a departmental investigation was held which investigation
exonerated the appellant.

Some months after the happening of the events
described above, the appellant, on the 16^th February 2001,
received a fax in which he was informed by the Permanent Secretary
for Justice that he was transferred to Oshakati with effect from 1^st
March 2001. Appellant said that he immediately made representations
to the Permanent Secretary in which he advanced three reasons why he
should not be transferred. The first was the disruption in his
family and religious life and that of his two school-going daughters.
The second was that his wife would have to resign her work, which
would cause severe financial hardship to the appellant. The third
reason was that the transfer could be interpreted as approval by the
Ministry of the campaign to remove him as a magistrate.

In a letter dated the 29^th February the
Permanent Secretary informed the appellant that the decision to
transfer him was not final and he was invited to make further
representations. This was done in a letter dated 12 March 2001 in
which the appellant repeated more or less the reasons previously
advanced by him and to which he added the fact that he was also
studying for a LL B degree and needed to be close to resources to
assist him with his studies. In a letter dated 2 April 2001 the
appellant was informed by the Permanent Secretary that after careful
consideration of the representations made by him, her decision that
he be transferred to Oshakati still stood and he was further informed
that as soon as transfer arrangements were finalized he would be
further informed. Appellant, simultaneously, received a letter from
the Chief, Lower Courts, to the effect that his transfer had been
delayed until further notice.

On the 5^th June a further letter was
received from the Permanent Secretary in which the appellant was
instructed to report to Oshakati not later than the 18^th
June. Further negotiations ensued and appellant said that he was
endeavouring to postpone his date of transfer to the 1^st
September. Because of the insistence by the Permanent Secretary that
he must take up his position in Oshakati as soon as possible the
appellant said that he suffered a nervous breakdown and he was booked
off until the 31^st August. Appellant further stated that
attempts by him to arrange a meeting with the Minister of Justice
were unsuccessful.

In regard to the appellant’s grounds for review
of the decision of the Permanent Secretary to transfer him he stated
that it was clear from the letter dated 16 February 2001 that she had
made up her mind to transfer him and that the belated invitation to
make representations was only a ruse when she realized that she had
not complied with the audi alteram partem rule. Appellant
also referred to his unsuccessful attempts to meet with the Minister
of Justice and stated that this was a further instance where he was
frustrated from making representations.

In support of the declaratory orders, the
appellant referred to Article 78 of the Constitution which states
that the Judiciary, which included magistrates, shall be independent.
Appellant pointed out that sec. 23(2) of the Public Service Act, on
which the Permanent Secretary relied, provided for transfers from one
post to another and also different posts as long as the new post
bore the same designation. Appellant contended that if the transfer
of magistrates depended on the will of the Permanent Secretary that
that flies in the face of an independent judiciary, at least as far
as the magistrates are concerned. He further submitted that this
problem should be cured by the appointment of an independent judicial
committee consisting of Judges and senior magistrates who should make
representations to the Minister of Justice concerning the appointment
of all magistrates.

Lastly the appellant stated that he had at least
made out a prima facie case for the review of the
decision of the Permanent Secretary to transfer him and for the
declaratory orders and he asked the Court for a temporary interdict
to suspend his transfer until the case was finalized.

Ms. Lidwina Ndeshimona Shapwa, the Permanent
Secretary of the Ministry of Justice, made the answering affidavit on
behalf of the respondent. She stated that the judiciary of the
Republic of Namibia is independent and further stated that
magistrates in the lower courts exercise their judicial functions
entirely independently. She contended that the appointment and the
transfer of magistrates occur in a manner consonant with the
Constitution and the important principle already mentioned. The
deponent explained that there were several magistrates’ courts
scattered all over Namibia and that it was inherent in the career of
a magistrate to expect to be transferred from time to time.
Transfers at a reasonably regular interval were thus the rule and not
the exception. She submitted that this was the basis upon which
magistrates accepted their appointments when pursuing that career.
Although, whenever possible, account was taken of personal interests
and circumstances when effecting transfers, certain personal
interests of staff members had to give way to the requirements of the
due administration of justice and of the public.

Ms. Shapwa further explained that at the time of
the transfer of the appellant there were only two magistrates at
Oshakati. This came about when one of the magistrates was promoted
to divisional magistrate. A former prosecutor with no experience as
a presiding officer took his place. Another magistrate was
appointed as a High Court Judge whereas still another magistrate was
suspended pending the outcome of a disciplinary inquiry. This
magistrate was later discharged and although use was made of relief
magistrates, this did not prevent the work from falling into arrears
and it became imperative to urgently provide Oshakati with an
experienced and hardworking magistrate. In this regard the Chief,
Lower Courts, identified the appellant as a suitable candidate to
fill that position.

Ms. Shapwa further explained that whenever
magistrates were appointed in terms of sec. 9(1) of the Magistrate’s
Court Act, Act 32 of 1944, or transferred by her in terms of the
provisions of sec. 23 of the Public Service Act, Act 13 of 1995, she,
as well as the respondent, acted on the recommendations of the Chief
of the Lower Courts, who is the head of the magistrates’ courts.

In regard to the letter of the 16^th
February Ms. Shapwa said that, despite its wording, the standard
practice was that it only gives notice of the intention of the
Ministry to transfer and the decision to do so was at that stage
provisional. Where a staff member objected to the transfer he or
she was given the opportunity to make representations and the matter
is considered afresh by her upon advice of the Chief, Lower Courts.
In the present instance the deponent stated that she duly and
carefully applied her mind to the representations made by the
appellant and the recommendations also made in this regard by the
Chief Lower Courts, and she was not persuaded to alter her decision.
It was further stated that the conduct of the appellant by
constantly seeking a postponement of his transfer, was evidence that
he not only accepted her right to transfer him, pursuant to the
provisions of sec. 23 of Act No. 13 of 1995, but that he thereby also
waived or abandoned his right to review the decision to transfer him.

Dealing with the specific allegations contained in
the founding affidavit of the appellant, Ms. Shapwa denied that she
was aware of an orchestrated attempt by Kavari to remove the
appellant from his post. She stated that a complaint was received
from this person, which then led to the internal investigation, the
result of which was accepted by the Ministry. She further stressed
that the transfer of the appellant had nothing to do with the
complaint lodged by Kavari.

Ms. Shapwa denied that the reasons given by the
appellant as to why he objected to the transfer, either singly or
together, were sufficiently persuasive not to proceed with the
transfer. In regard to the appellant’s claim that there were no
Afrikaans churches, and more particularly a Dutch Reformed church, in
Oshakati, the deponent stated that that claim was devoid of truth.
Enquiries made by her proved that there was an active Dutch Reformed
church in Oshakati. She referred to the affidavit made by Daniel
Michael Greeff, a member of the community of Oshakati, who gainsaid
this evidence stated under oath by the appellant. Further, according
to Greeff, Oshakati was a growing town with a lively business sector
with branches of all major retail chains. He stated that there were
many business and employment opportunities, especially for persons
with experience. References by the appellant to living in a
“different social environment in Oshakati” as an area being
“predominantly Ovambo speaking” was found by the deponent to be
offensive and smacking of sectarianism. She pointed out that it was
in the interest of an independent judiciary, and the constitutional
values of equality, that officers should serve throughout the country
without reference to ethnic origin, race or language groupings.

In regard to the disruption of the education of
the children of the appellant it was pointed out that they were both
of a relatively young age where disruption would not have such a
severe effect as could be, and would be, during a later phase of
their lives when they were older and in more advanced grades. In
regard to his further studies and the difficulty to have access to
textbooks, and other study material, Ms Shapwa stated that she was
personally aware of other employees of the Ministry who likewise have
studied and were still studying whilst in outlying areas of the
country. In that respect the position of the appellant was no
different from that of those other officials.

Ms. Shapwa further explained that the transfer was
delayed because the Ministry could not secure accommodation for
appellant in Oshakati. Once this problem was solved he was again
given instructions to report to Oshakati. In his letter dated 13
June 2001 a further reason for resisting his transfer to Oshakati was
given by the appellant as mention was made of the new war situation
in Oshakati. The deponent pointed out that there was simply no
substance in this allegation and that there was no new war situation
prevailing in Oshakati. However, on the 14^th June the
appellant, by telefax, indicated to the deponent that, due to
circumstances, he would be able to go to Oshakati on the 1^st
September 2001. She submitted that that was a clear acceptance of
the position by the appellant and that it was no longer open to him
to challenge his transfer to Oshakati.

Ms. Shapwa also stated in her answering affidavit
that she was not a political appointee and that politics did not play
any part in the transfer of the appellant. She furthermore denied
that the purpose of the transfer was to punish him in some or other
way and she denied that she acted with any motive ascribed to her by
the appellant and she reiterated that she acted in terms of the
provisions of sec. 23(2) when she transferred the appellant. That
was also the case with transfers of other magistrates.

In his replying affidavit the appellant reiterated
his stance that magistrates could not be perceived as independent for
as long as the Permanent Secretary, who was a political appointee,
had the power to appoint and transfer magistrates. In this regard
reference was made to a newspaper report in the Observer quoting the
Permanent Secretary as having said that ex-plan fighters should be
appointed to posts regardless of their qualifications. The
appellant further took issue with the Permanent Secretary on the
appointment and transfer of magistrates. He said that all vacancies
in the various centres were advertised internally and by way of
advertisements in the newspapers and candidates then had an
opportunity to apply for such posts. According to the appellant
freedom of choice had always been the basis for appointments and
transfers. This procedure was not followed when he was transferred
to Oshakati. Appellant consequently submitted that his transfer was
arbitrary and that his representations were not considered with an
open mind.

The appellant admitted that he accepted that he
might be transferred when he joined the Ministry but this was subject
to the proper procedure being followed and in compliance with the
audi alteram partem rule. The appellant was sceptical of the
Permanent Secretary’s denial that she had any knowledge of the
concerted effort to remove the appellant from his post, which was
widely publicized in the media. Appellant therefore denied that
this campaign had nothing to do with his transfer to Oshakati.

Dealing with the affidavit of Daniel Michael
Greeff, the appellant stated that he now realized that he was not
given the correct information concerning the existence of an active
church community in Oshakati. Appellant further denied that he
referred to Oshakati as a “backwater” or that he intended to be
offensive or was guilty of sectarianism when he referred to Oshakati
as a different social environment.

The appellant agreed with the Permanent Secretary
that she had the power to transfer him and that such power vested in
her in terms of sec. 23(2)(a) of the Public Service Act. He further
agreed that representations had to be made to her and that she
decided that the reasons advanced were not sufficiently persuasive.
In general the appellant denied allegations made by Ms. Shapwa, which
were in conflict with allegations made, and conclusions drawn by him,
in his founding affidavit.

Before addressing the issues in this matter
mention must be made of two applications which were before us. The
first was an application for the condonation of the late filing by
the respondent of a cross-appeal in regard to the costs orders made
by the Court a quo. We were informed by Counsel on both
sides that this issue was settled and that the respondent was not
continuing with the cross-appeal. The second issue concerns an
application for condonation by the appellant for the late filing of
his Power of Attorney. The respondent did not object to the
granting of the condonation and bearing in mind the importance of the
matter, and other factors, the appellant was granted the necessary
condonation.

It is also convenient to deal at this stage with
the submissions made by Mr. Smuts which are to the effect that the
appellant has waived his right to take his transfer by the Permanent
Secretary on review and to ask for the decision to be set aside.
Mr. Smuts based his argument on the negotiations between the
appellant and the Permanent Secretary subsequent to his transfer, as
represented in letters written by the appellant. In a letter dated
14 June 2001 appellant wrote to the Permanent Secretary and informed
her that “Due to circumstances I will be able to go to Oshakati on
1/9/2001”. It was also pointed out by Counsel that already in his
initial representations to the Permanent Secretary, the appellant
made it clear that his objection to the transfer was the timing
thereof. Also in other letters to which Counsel referred us,
attempts were made by the appellant to postpone the date on which he
had to report to his new station. Counsel therefore submitted that
this conduct of the appellant clearly showed that he accepted the
transfer to Oshakati and by doing so had abandoned and waived his
right to review such transfer.

Mr. du Toit, on the other hand, submitted that
there was no express or implied abandonment by the appellant of his
rights in this regard. Counsel submitted, correctly, that the onus
was on the respondent to prove waiver on the part of the appellant.
Referring to the facts and history of this matter, Mr. du Toit argued
that the Court a quo wrongly came to the conclusion that
waiver was established by the respondent.

In the case of B.K.A. Oppermann v President of
the Professional Hunting Ass. of Namibia, an unreported decision
of this Court, O’Linn A.J.A., delivered on 28/11/2000, the learned
Judge, after referring to various cases on waiver, concluded as
follows, p 28:

“To succeed in such defense the respondents had to allege and prove
that, when the alleged waiver took place, the first applicant had
full knowledge of the right which he decided to abandon; that the
first applicant either expressly or by necessary implication
abandoned that right and that he conveyed his decision to that effect
to the first respondent.”

See further in this regard Hepner v
Roodepoort-Maraisburg Town Council, 1962 (4) SA 772(A) and Traub
v Barclays National Bank Ltd.: Kalk v Barclays National Bank Ltd.,
1983 (3) SA 619(A).

The history of this matter and the facts do, in my
opinion, not establish an intention on the part of the appellant to
abandon his right to take the Permanent Secretary on review. After
receipt of the letter of the 16^th February, which set in
motion the transfer of the appellant to Oshakati, the appellant
immediately wrote back that he was not approached at any stage before
the transfer to find out whether he would be prepared to accept a
transfer at short notice. He then continued to set out four reasons
why a transfer at that particular time would lead to a disruption of
his and his families lives and he requested the Permanent Secretary
to reconsider her decision. He also made it clear that he was
prepared to go to Court if a favourable answer was not forthcoming by
the 27^th February. In my opinion the objection, in the
letter, to a transfer “at that stage”, cannot be seen as an
acquiescence by the appellant to accept the particular transfer. Of
course, and as also admitted by him, he was, as a magistrate, subject
to transfer, but the whole tone of the letter, ending as it did, in a
threat to go to Court, could not leave anyone in doubt as to the
intentions of the appellant.

Thereafter the appellant was invited to make
representations regarding his transfer. He accepted this invitation
and made representations which, by itself, could not be reconciled
with an intention to abandon his rights. On the 2^nd
April the appellant was informed of the decision of the Permanent
Secretary and on the 5^th June he was informed to report at
his new station on 18^th June. On the 13^th
June the appellant raised further objections but stated also that it
was the middle of the school trimester and he asked why, for the sake
of his child, he could not stay on till the end of the school term.
He also requested an audience with the respondent. Then the letter
of the 14^th June followed and on the 15^th he
again wrote and asked that his transfer stand over till 1^st
September.

Although the letters of the 13^th, 14^th
and 15^th of June were to the effect that the appellant
would go to Oshakati it at most is evidence of the fact that the
appellant would comply with the order of the Permanent Secretary but
it did not follow that by doing so, the appellant also abandoned his
rights. This in my opinion is clear from the letters themselves as
well as the further course that the matter took. In the letter of
the 15^th June the appellant again requested an appointment
with the respondent, the Minister, and after the appellant was
requested to move out of the house in Gobabis, the Permanent
Secretary was on 4^th July informed of the intention to
bring an interim interdict and this litigation followed. I think
that once appellant’s representations to stop the transfer, were
unsuccessful, his own position vis-à-vis the Ministry
and the uncertainty whether he could still legitimately refuse to go
to Oshakati, must have played a role in the decision of the appellant
to go to Oshakati to take up the post. However against this
background I am satisfied that the respondent did not show on a
preponderance of probabilities that the appellant, through his
conduct, expressly or by necessary implication, also intended to
abandon his right to take the Permanent Secretary on review.

Before dealing with the various grounds for review
I must decide the Court’s approach to the allegations by the
appellant in regard to attempts by officials of the Swapo party to
remove him and his allegations, at least in reply, that his transfer
was politically motivated. Appellant said that he did not wish to
accuse the Permanent Secretary of being politically influenced in her
decision to transfer him but because of the campaign his transfer may
at least be perceived by people as an endorsement of the campaign to
remove him. In one of his letters appellant said that he saw his
transfer as punishment seemingly for blowing the whistle on the
prosecutor. In her turn the Permanent Secretary accused the
appellant of sectarianism and being insulting. Whichever way one
looks at the application there is an undertone created by the
appellant that what happened to him was as a result of his
involvement which led to the prosecution of Ms. Hamunyella. These
allegations are denied by the Permanent Secretary and she explained
in detail how it came about that the appellant was transferred from
Gobabis to Oshakati. In my opinion a genuine dispute of fact was
raised by the denial of the Permanent Secretary and, as the dispute
was not referred to evidence, the principles, applied in cases such
as Stellenbosch Farmers’ Winery Ltd. v Stellenvale Winery (Pty)
Ltd., 1957 (4) SA 234 at p. 235 E-G and Plascon-Evans Paints
Ltd. v Van Riebeeck Paints (Pty) Ltd., 1984 (3) SA 623 (AD), must
be followed. It follows therefore that once a genuine dispute of
fact was raised, which was not referred to evidence, the Court is
bound to accept the version of the respondent and facts admitted by
the respondent, contained in the appellant’s affidavit. Bearing
in mind these principles I am not able to find that the Permanent
Secretary was politically motivated or acted with an ulterior motive
when she transferred the appellant. Consequently I shall deal with
the matter on the basis that it was an ordinary transfer free from
any of the innuendos alleged and suggested by the appellant.

I shall first deal with the appellant’s
application for review of the Permanent Secretary’s decision to
transfer him from Gobabis to Oshakati. In this regard it must be
mentioned that the appellant did not institute the review in terms of
the provisions of Rule 53 but that he did so by ordinary Notice of
Motion. The result was that there existed no record of what
transpired in regard to the transfer and the appellant also did not
have the opportunity, as provided for in Rule 53, to augment his
grounds of review depending on what appeared from such record.

The grounds for review, set out in the founding
affidavit of the appellant, were non-compliance with the audi
alteram partem rule, that the Permanent Secretary did not act
fairly and reasonably and that she did not apply her mind to the
representations made to her by the appellant. There are also two
further points which were not raised by the founding affidavit but
which Mr. du Toit submitted were legal points which he was entitled
to argue. These points were that there was no evidence that the
appellant was appointed by the Minister, or the person delegated with
such power, as a magistrate of Oshakati. Secondly it was argued
that as a result of the finding that sec. 23(2) of the Public Service
Act was not applicable to magistrates it follows that the Permanent
Secretary, who relied on this section when she transferred the
appellant, acted ultra vires.

Both Counsel were agreed that the audi alteram
partem rule was applicable to a situation where a magistrate was
transferred from one station to another. They however differed in
their application of the rule. Mr. du Toit submitted that the rule
should have applied before the decision to transfer the appellant was
made. Referring to the letter of 16 February, Counsel submitted
that the Permanent Secretary made a final decision without affording
the appellant an opportunity to make representations. This is
further supported by the fact that after representations were made
the Permanent Secretary persevered in her earlier decision. She in
any event did not apply her mind to the representations made.

Mr. Smuts submitted that the letter of the 16^th
February did not constitute a final decision to transfer the
appellant. Mr. Smuts submitted that this was only a provisional
decision and when the appellant raised objections he was invited by
the Permanent Secretary to make representations to her. The
appellant accepted this invitation. Counsel further submitted that,
on all the facts, it is clear that due consideration was given to
these representations and the Permanent Secretary only came to a
final decision when she informed the appellant by letter dated 2
April of her final decision. Counsel argued that the audi rule
was a flexible one, which did not in all instances require to be
complied with before a decision was made and he submitted that in
this instance there was not a breach of this right of the appellant.

Non-compliance with the audi rule, where
the rule applied, invariably leads to the setting aside of the
administrative action. In the present instance it is common cause
that no opportunity was given to the appellant to make any
representations before he received the letter of 16^th
February, which informed him of his transfer. Thereafter he fully
utilized the invitation by the Permanent Secretary and made extensive
representations to her. The question is, whether in all the
circumstances, the appellant proved that there was nevertheless not
proper compliance with the rule.

In the case of Administrator Transvaal, and
Others v Traub and Others, 1989 (4) SA 731 (AD) at 750 C-E,
Corbett, CJ, stated the following in regard to the rule, namely-

“Generally speaking, in my view, the audi principle requires
the hearing to be given before the decision is taken by the official
or body concerned, that is, while he or it still has an open mind on
the matter. In this way one avoids the natural human inclination to
adhere to a decision once taken (see Blom’s case supra
at 668C-E; Omar’s case supra at 906F; Momoniat v
Minister of Law and Order and Others; Naidoo and Others v Minister of
Law and Order and Others 1986 (2) SA 264(W) at 274 B-D).
Exceptionally, however, the dictates of natural justice may be
satisfied by affording the individual concerned a hearing after the
prejudicial decision has been taken (see Omar’s case supra
at 906 F-H; Chikane’s case supra at 379G and
Momoniat’s case supra at 274E-275C). This may be
so, for instance, in cases where the party making the decision is
necessarily required to act with expedition, or if for some other
reason it is not feasible to give a hearing before the decision is
taken.”

The fact that in their application the principles
of natural justice are flexible was recognized in the judgment of
Tucker LJ in Russell v Duke of Norfolk, [1949] 1 All ER 109 at
p 118 where the following was stated, namely:

“The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the rules under
which the tribunal is acting, the subject matter that is being dealt
with, and so forth”

See further Turner v Jockey Club of South
Africa, 1974 (3) SA 633 (AD) at p 646 and Baxter: Administrative
Law, p541ff. In cases such as S v Shangase, 1962 (1) SA
543 (N), Sachs v Minister of Justice, 1934 AD 11 at 22 and
Cape Town Municipality v Abdulla, 1974 (4) SA 428 (CPD), it
was stated that where an official made an ex parte order which
did not take immediate effect and left enough time to the affected
party to make representations that would have constituted compliance
with the rule provided that due consideration was given to the
representations. (See also the confirmation of this statement in the
appeal of the Shangase-case, supra, reported in 1963
(1) SA 132 (AD) at p 148A-D). In each instance it of course depends
on the circumstances of the particular case and the legislation in
terms whereof the official takes his decision. In regard to the
first Shangase-case, supra, Kotze, J, in Tole v
Queenstown Municipality, 1968 (1) SA 486 (ECD) expressed doubt
whether the statement by James J meant that a final decision arrived
at in disregard of the maxim would be valid because an opportunity
remained to make representations. (See p 489 B-E).

In the matter of Mamabolo v Rustenburg Regional
Local Council, 2001 (1) SA 135 (SCA) the Court referred with
approval to the statement by Baxter, op. cit., at p 588,
namely:

“In certain instances a Court may accept as sufficient compliance
with the rules of natural justice a hearing held after the decision
has been taken, where

- there is a sufficient interval between the taking of the decision
and its implementation to allow for a fair hearing;

• 
  the decision-maker retains a sufficiently open mind to allow
  himself to be persuaded that he should change his decision; and

  
  

- the affected individual has not thereby suffered prejudice.”

The letter of the 16^th February was
perhaps unhappily worded. It could have dispelled some of the
appellant’s uneasiness and suspicion if it was differently worded
and if it had afforded him more time to prepare and organize his
transfer and if he had been invited thereby to put his
representations before the Permanent Secretary. There can be no
doubt that the transfer of a magistrate, even if it is with
promotion, has a bearing on the personal life of the magistrate and
his family and may cause great inconvenience and disruption. These
are factors which should not be overlooked and should be dealt with
in a dignified and accommodating manner as was submitted with force
by Mr. du Toit. In the present instance to give the appellant less
than 14 days to report at his new station was just not good enough
and if the matter had rested there it would have taken some effort to
convince me that there was compliance with the rules of natural
justice.

As it is, the matter did not rest there. The
appellant immediately objected to his transfer and utilized the
opportunity to make representations. This was followed by a letter
from the Permanent Secretary informing the appellant that the
decision to transfer him was not final and that he could make
representations concerning his transfer. No time limit was
prescribed and as this letter was dated the 29^th February
it must have been clear to the appellant that he was not required to
report to his new station on 1^st March. As previously
stated the appellant fully utilized this opportunity by letter dated
12^th March. On 2 April the appellant was informed of the
Permanent Secretary’s final decision and he was further informed by
the Chief: Lower Courts, that his transfer was delayed until further
notice.

In the light of the foregoing circumstances it
seems to me first of all that the order or decision of the Permanent
Secretary was not to take effect immediately and although there could
be complaints about the short time before it would take effect, that
was changed completely when the appellant was invited to put further
representations before the Permanent Secretary and he accepted this
invitation and was given sufficient time to fully utilize it. It
further seems that the Permanent Secretary did not decide the issue
finally as soon as she was in possession of the representations made
by the appellant. There was some time lapse before she informed the
appellant of her decision which is indicative that it was not an
overhasty decision.

The appellant also did not complain that when he
was given the opportunity to make representations that he was not
afforded sufficient time to do so. Mr. du Toit, however, submitted
that once the Permanent Secretary had made up her mind she did not
again consider the representations made by the appellant and only
went through the motions.

In this regard the Permanent Secretary stated
under oath that the letter of 16^th February was not a
final decision to transfer the appellant even though no mention was
made in the letter that that was the case. The Permanent Secretary
stated that it was the practice that if a magistrate was not
satisfied with the transfer he or she could then make
representations, which would then be considered. At first blush
this seems strange. However it seems that in South Africa, where
the issue of transfers is covered by regulation (regulation 22 in
this instance), a transfer is first of all initiated by the
Director-General of Justice and if a magistrate feels aggrieved then
he or she may make representations to the Director-General and if
still not satisfied the matter is then dealt with by the Commission.

There seems to me to be some justification in
dealing with the issue in this way. Not every transfer is disputed
and to call for representations to be made, before a transfer is
made, may in many instances be unnecessary and may be a waste of
time. I think what is also of importance, in deciding the attitude
of the Permanent Secretary, is the fact that she immediately conceded
that the appellant had the right to make representations and he was
given this opportunity. This, to some extent confirms the
practices, in this regard, to which she has referred.

I think that in conjunction with the above issue
one must also look at the Permanent Secretary’s reasons for not
being swayed by the representations made by the appellant not to be
transferred in order to decide whether she in fact considered the
representations and did so with an open mind. She also stated under
oath that she in fact considered the representations with an open
mind. The facts stated by the Permanent Secretary, and her say so
under oath, again raised a genuine or bona fide dispute which
was not referred to evidence, and in respect of which the principles,
set out herein before, similarly should apply.

In her answering affidavit the Permanent Secretary
dealt fully with the representations made by the appellant. In
certain instances further investigations were made to establish the
veracity of the allegations made by the appellant and supporting
affidavits were filed where this was necessary. Some of the
representations made by the appellant did not hold water and this was
conceded by him in his replying affidavit. I do not think that it
was the intention of the appellant to mislead the Permanent Secretary
it is just that later investigation proved him wrong in part in
regard to the assumptions made by him. It seems that the appellant
assumed that there was no active Dutch Reformed Church in Oshakati
and that he and his family would not be able to partake in religious
services and be part of an active church and cultural community.
These fears were dispelled and it was shown that there was not only
an active Dutch Reformed Church but also another Afrikaans Church,
the Reformed Church, active in that community. Appellant’s
reference to a new war situation in the north, if that was meant to
mean the Oshakati and surrounding areas, was without any substance
and a clutching at straws.

The other objections raised by appellant such as
the disruption in his family life, the schooling of his small
daughter and the fact that his wife, who is gainfully employed, and
whose income is needed for the support of the family, are all genuine
and valid problems caused by the transfer. On the other hand
whenever a family is uprooted by a transfer one must expect that
there will be some inconvenience and disruption. In certain
instances the exigencies of the work may require the taking up of the
new post as soon as possible which may require a temporary separation
of the family where there are school going children and the time is
not convenient for them to make the change to a new school. There
can be no doubt that these factors are important and need due
consideration when a transfer is made. Unfortunately it is not
always possible to avoid the situation.

The Permanent Secretary dealt with each of these
issues in her answering affidavit. In regard to the studies of the
appellant it was pointed out by her that there were others in the
Ministry who are in the same position as the appellant and she denied
that there were no books available at the magistrate’s court at
Oshakati. In regard to the schooling of the appellant’s young
daughter it was pointed out that she was still relatively young, she
is 9 years old, and that the disruption brought about by a change of
school at this stage may not be so great as it would have been had
she been older and in a more advanced class. In the affidavit of
Greeff it was stated that all the major retail chain stores have
branches at Oshakati some of which are more modern and bigger than
similar branches in Windhoek. According to the appellant his wife
is working for Spar that has a branch at Oshakati. There is no
indication that the wife of the appellant would not be able to secure
a transfer to Oshakati or would not be able to obtain work from one
of the other chains. There is also no indication that she finds
herself in a situation where, because of the position that she holds
at her present work, she will not be able to take up a comparable
position at one of the chains in Oshakati. I am mindful of the fact
that there is no allegation that the appellant’s wife has already
obtained work but these are some of the possibilities, which were
considered by the Permanent Secretary in coming to her decision, and
in my opinion she was entitled to do so.

Bearing all this in mind I am satisfied that in
the present instance the appellant did not prove on a balance of
probabilities that the decision to transfer him was, in the first
place, a final decision. I also found that after he raised certain
objections he was given a full opportunity, which he utilized, to
make representations to the Permanent Secretary. That there was
proper consideration of his representations by the Permanent
Secretary and that it was not shown that she did not approach the
issue with an open mind or did not apply her mind thereto. Under
the circumstances it was also not shown that the appellant was
prejudiced by the fact that he was required to make representations
only after he was informed of the provisional decision of the
Permanent Secretary. I am therefore of the opinion that the
appellant failed to prove that there was not proper compliance with
the audi alteram partem rule. There can be no doubt that all
the above issues, dealt with by the Permanent Secretary in her
answering affidavit, again raised genuine disputes of fact, which the
appellant was content to leave like that, and although he challenged
these allegations and facts in his replying affidavit it is
impossible for this Court, or for that matter, the Court a quo,
to make any credibility findings on the affidavits alone.

The remaining common law grounds for review, set
out in the founding affidavit of the appellant, are that the
Permanent Secretary acted unreasonably and unfairly and that she did
not apply her mind. I have already indicated that it has not been
proved that the Permanent Secretary did not keep an open mind and did
not apply her mind to the representations made by the appellant. As
far as the unfair treatment by the Permanent Secretary is concerned
I have found that she afforded the appellant an opportunity to make
representations to her concerning his transfer and that it was not
shown that she did not consider such representations with an open
mind. In my opinion there was therefore no procedural unfairness.
If the allegation in the founding affidavit of the appellant was
meant to refer to substantive unfairness then there is in my opinion
no factual support for such ground except the innuendos of an
ulterior motive or political motive on the part of the Permanent
Secretary that was disavowed and then again tentatively resurrected.
All this was denied by the Permanent Secretary and as the matter was
not referred to evidence the principles as set out in the
Plascon-Evans-case, supra, and various other cases,
must apply, with the result that I must assume that no such situation
arose. In the case of Bel Porto School Governing Body and
Others v Premier, Western Cape and Another, 2002 (3) SA 265 (CC),
Chaskalson, CJ, pointed out that substantive fairness was never a
common law ground for review. Something more was required. The
unfairness has to be of such a degree that an inference can be drawn
that the person who made the decision erred in a respect that will
provide grounds for review. (See p. 291 I – 292 C.) It is not
necessary to decide at this juncture whether our article 18 of the
Constitution intended to include substantive fairness or not. I
will assume for purposes of this case that that is so. As far as I
know this has not yet come up for decision although some decisions
may have referred loosely to the application of the words fairness or
to act fairly.

The issue of unreasonableness was mainly argued on
the basis of the various letters in which the appellant was informed
of his transfer and the short time given him to comply with the
order. It was also argued against the background of the facts put
before the Court and the decision of the Permanent Secretary to
persevere with the transfer of the appellant.

In terms of our common law the ground for review
was gross unreasonableness and review in terms thereof was only
justified if from it could be inferred mala fides or ulterior
motive, or a failure by the person vested with the discretion to
apply his mind to the matter. (See The Administrator, Transvaal,
and the Firs Investments (Pty) Ltd. v Johannesburg City Council,
1971 (1) SA 56 (AD) at p 80 and Northwest Townships Ltd. v The
Administrator, Transvaal, 1975 (4) SA 1 (TPD) at p 8 C-F).
Article 18 of our Constitution requires fair and reasonable acts by
administrative bodies and officials and further requires them to
comply with the common law and any relevant legislation. Whether
the Constitution intended to create a new ground for review, not as
stringent as that of the common law, was also not yet argued before
this Court and in this case the parties accepted that that was so.
For purposes of this case I shall also accept that it was enough for
the appellant to prove that the Permanent Secretary acted
unreasonably.

The word ‘reasonable’, according to The
Concise Oxford Dictionary, 9^th Ed., means: “having
sound judgment; moderate; ready to listen to reason; not absurd; in
accordance with reason.” Collectively one could say, in my
opinion, that the decision of the person or body vested with the
power, must be rationally justified. (See Mafongosi and Others v
United Democratic Movement and Others, 2002 (5) SA 567 (Tk HC) at
575 A-E).

Taking into consideration the facts of this case I
must agree with Mr. du Toit that the letter of the 16 February, seen
objectively and in isolation, would have constituted unreasonableness
on the part of the Permanent Secretary. However, in my opinion, the
letter cannot be judged in isolation without having regard to all the
other facts which followed thereon. First of all I found that the
letter conveyed the provisional decision of the Permanent Secretary.
Immediately when the appellant objected he was informed that the
decision was not final and he was invited to make representations.
The effect hereof was that the time frame, within which the appellant
was supposed to report to his new station, lapsed, and he was given
opportunity to make representations. There is no complaint that the
appellant was not given sufficient time to do so. I have also found
that due consideration was in fact given to the representations of
the appellant and he was informed that his transfer was delayed. I
have also dealt with the motivation, set out in her answering
affidavit, as to why the Permanent Secretary finally decided to
transfer the appellant. She also explained why the matter had
become one of urgency. The short notice, that is complained of, and
whereby appellant was informed to report to Oshakati on the 18^th
June, must be seen against the background that he was already by
letter dated 2^nd April informed of the decision of the
Permanent Secretary that his representations were not successful.
At the same time he was also informed that as soon as suitable
accommodation became available he would have to go to Oshakati. The
appellant therefore had more than 2 months in which to prepare for
his eventual transfer. In the result I am satisfied that it was not
proved that the Permanent Secretary acted unreasonably and this
ground of review must also be rejected.

In the Court a quo, as well as in this
Court, Mr. du Toit submitted that the respondent did not prove that
the appellant was appointed by the Minister as a magistrate for
Oshakati. This argument was based on the provisions of sec. 9(1)(a)
of the Magistrate’s Court Act, Act No 32 of 1944 (as amended) that
provides that the Minister may appoint a magistrate for any regional
division, district division, district or sub district. Counsel
submitted that a magistrate who was transferred must again be
specifically appointed in the new district. For purposes of this
case I shall accept that that is the meaning of the section. Mr.
Smuts submitted that it was not open to the appellant to take this
point at this stage and he further submitted that this point was
never taken in appellant’s founding affidavit, and for that matter,
not even in his replying affidavit, and the respondent therefore had
had no opportunity to deal with it in the answering affidavit.
Counsel submitted that an applicant for review was bound to the
grounds set out in his founding affidavit. Mr. du Toit firstly
countered that this was a legal point to which he was entitled to
argue. I do not agree with the submissions made by Mr. du Toit.
The point raised by him is not a purely legal point and it should
therefore have been raised in the founding affidavit of the
appellant. If it was so raised it would have been open to the
respondent to put evidence before the Court that it in fact complied
with it, or if it had not, to state that that was the case. (See
Cape Town Municipality v Belletuin (Pty) Ltd., 1979 (2) SA 861
(AD) at 885 A – B and Swissborough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and Others, 1999
(2) SA 279 (TPD) at 324 –325). Secondly we were referred by
Counsel for the appellant to certain passages in the affidavits from
which the Court was asked to draw the conclusion that the point was
in fact raised. No relief was claimed on such basis. In prayer 2.2
appellant asked for a declaratory order to the effect that the
Permanent Secretary has no power to appoint, transfer or
terminate the services of a magistrate. This was a general prayer
based on Article 78 of the Constitution which declared that the
Judiciary shall be independent and has nothing to do with whether
the Minister appointed him to Oshakati or not. A close reading of
the founding affidavit of the appellant also nowhere showed that the
appellant intended to raise this issue. In fact in his replying
affidavit the appellant referred thereto that he was appointed to the
vacant post in Oshakati but complained that certain procedures were
not followed. (See pa. 6.11 of the Replying Affidavit.)

Counsel also raised some argument in regard to the
request by the appellant for an interview with the respondent and
which did not materialize. In my view it does not take the matter
any further. Mr. Smuts pointed out that the Permanent Secretary was
the person to whom the power to transfer was granted in terms of sec.
23(2)(a) of Act 13 of 1995, and that she was the person who had made
the decision. Whether the Minister would or could do something for
the appellant can only be speculated about and is, in my opinion, in
any event irrelevant to these proceedings. The appellant also
agreed that the Permanent Secretary was vested with the power to make
transfers and that she was in fact the person to whom representations
had to be made. (See pa. 33.2.2. of the Replying affidavit).

It was also submitted by Mr. du Toit that the
Permanent Secretary’s power to transfer, based on sec. 23 (2) of
the Public Service Act, was ultra vires because that section
is not applicable to magistrates and could therefore not empower the
Permanent Secretary to effect the transfer. I find it convenient to
deal with this ground of review when I deal with the appeal against
the declaratory order.

Levy, AJ, refused to make a declaratory order
whereby it was declared that the magistrates were independent. I
agree with the learned Judge that the Constitution clearly provides
that the Judiciary, which includes magistrates, shall be independent,
and further provides ample protection to ensure such independence.
(See Article 78). The provisions of this article apply to all
Courts and judicial officers and include magistrates’ courts and
magistrates. There is therefore no need for such an order.

In regard to the independence of the Courts, and
bearing in mind that we have shared for a long time the same
legislative enactment concerning the magistrate’s courts (Act 32 of
1944) with South Africa, the general observations by Chaskalson, CJ,
in the van Rooyen- case, supra, as to what is necessary
for protection of the independence of the various Courts at different
levels is, in my opinion, also applicable to Namibia. It was
pointed out by the learned Judge that the South African Constitution
dealt differently with the appointment of Judges, on the one hand,
and other judicial officers, on the other hand. This applies also
to Namibia. In terms of Article 82 of our Constitution Judges of
the High and Supreme Courts are appointed by the President on the
recommendation of the Judicial Service Commission whereas Lower
Courts, which shall be presided over by magistrates “….(shall be)
appointed in accordance with procedures prescribed by Act of
Parliament”. (Article 83 (2)).

The learned Chief Justice then continued in para.
22 of the above case as follows:

“The constitutional protection of the core values of judicial
independence accorded to all courts by the South African Constitution
means that all courts are entitled to and have the basic protection
that is required. Section 165(2) of the Constitution pointedly
states that ‘[t]he courts are independent’. Implicit in
this is recognition of the fact that the courts and their structure,
with the hierarchical differences between higher courts and lower
courts which then existed, are considered by the Constitution to be
independent. This does not mean that particular provisions of
legislation governing the structure and functioning of the courts are
immune from constitutional scrutiny. Nor does it mean that lower
courts have, or are entitled to have their independence protected in
the same way as the higher courts.”

In paragraphs 24 and 25 it was pointed out –

“But magistrates’ courts are courts of first instance and their
judgments are subject to appeal and review. Thus higher courts have
the ability not only to protect the lower courts against interference
with their independence, but also to supervise the manner in which
they discharge their functions. These are objective controls that
are relevant to the institutional independence of the lower courts.

[25] Another relevant factor is that district and regional
magistrates’ courts do not have jurisdiction to deal with
administrative reviews or constitutional matters where the
legislation or conduct of the government is disputed. These are the
most sensitive areas of tension between the legislature, the
executive and the judiciary. Measures considered appropriate and
necessary to protect the institutional independence of courts dealing
with such matters, are not necessarily essential to protect the
independence of courts that do not perform such functions.”

And in paragraph 28 the
learned Judge expressed himself as follows:

“…The jurisdiction of the magistrates’ courts is less extensive
than that of the higher courts. Unlike higher courts they have no
inherent power, their jurisdiction is determined by legislation and
they have less extensive constitutional jurisdiction. The
Constitution also distinguishes between the way judges are to be
appointed and the way magistrates are to be appointed. Judges are
appointed on the advice of the Judicial Service Commission; their
salaries, allowances and benefits may not be reduced; and the
circumstances in which they may be removed from office are
prescribed. In the case of magistrates, there are no comparable
provisions in the Constitution itself, nor is there any requirement
that an independent commission be appointed to mediate actions taken
in regard to such matters. That said, magistrates are entitled to
the protection necessary for judicial independence, even if not in
the same form as higher courts.”

From the extracts out of the van Rooyen-case
it seems clear that all courts are entitled, in terms of the
particular Constitution, to the protection of their institutional
independence but, depending on the nature of their jurisdiction and
the hierarchical differences between higher courts and lower courts,
this protection need not be in the same form. Coming to the
situation in Namibia it seems to me that we have the same
hierarchical differences between our higher courts and lower courts
which is dealt with much the same by our Constitution, as is the case
in South Africa. It follows therefore that I am of the opinion that
also in Namibia the protection of the institutional independence of
the lower courts need not be in the same form as that necessary for
the High and Supreme Courts and I say so for the reasons set out in
the van Rooyen – case, supra.

As far as sec. 23 (2) is concerned all the parties
were agreed that it should not apply to the magistracy. This
section is part of the Public Service Act, Act 13 of 1995, which
regulates the relationship between the Government and its corps of
civil servants. Sec. 2 thereof provides:

“There shall be a Public Service for the Republic of Namibia which
shall be impartial and professional in its effective and efficient
service to the Government in policy formulation and evaluation and in
the prompt execution of Government policy and directives so as to
serve the people of the Republic of Namibia and promote their welfare
and lawful interests.”

Section 23(2) empowers the Permanent Secretary to
transfer ‘staff members’ and it was in terms of this section that
the Permanent Secretary of Justice exercised her powers to transfer
the appellant, this notwithstanding the clear provisions of the
Constitution that magistrates are part of the Judiciary of Namibia
whose independence was guaranteed by the Constitution. This was
clearly set out in Articles 12(1)(a), 78(1) and (2) and 83 of the
Constitution. These Articles provide as follows:

“12(1)(a) 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 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.”

“78(1) The judicial power shall be vested in the Courts of Namibia,
which shall consist of:

1. 
   a Supreme Court of Namibia;

   
   

2. 
   a High Court of Namibia;

   
   

3. 
   Lower Courts of Namibia.

   
   

(2) The Courts shall be independent and subject only to this
Constitution and the law.”

“83(1) Lower Courts shall be established by Act of Parliament and
shall have the jurisdiction and adopt the procedures prescribed by
such Act and regulations made thereunder.

(2) Lower Courts shall be presided over by Magistrates or other
judicial officers appointed in accordance with procedures prescribed
by Act of Parliament.”

These provisions of the Constitution cannot be
reconciled with sec. 2 of the Public Service Act which requires from
staff members to execute Government policy and directives or to be
described as staff members, which by itself, carries the clear
implication of being subject to control in some or other form.

It seems to me that the answer as to why
magistrates were dealt with in terms of the Public Service Act must
be found in the previous history in regard to the appointment and
transfer of magistrates and in Act 32 of 1944 itself. As
magistrates and their courts were regulated by the same Act as
magistrates in South Africa, what was said in this regard in
connection with magistrates in South Africa also applied to Namibia
and its prior history. In the van Rooyen-case, supra,
at p 834, para 77, the learned Chief Justice pointed out that
magistrates’ courts previously formed part of the civil service.
This situation continued after Act 32 of 1944 was promulgated except
that the Minister of Justice was now responsible for the appointment
of magistrates, instead of the Governor-General, as previously
provided for in Act 32 of 1917. In South Africa magistrates
continued to be part of the civil service until the promulgation of
Act 90 of 1993 when mechanisms were put in place for the appointment,
discipline and removal of magistrates outside the Public Service Act.

Although the Constitution, as far as Namibia is
concerned, envisaged an Act of the Namibian Parliament whereby the
jurisdiction of the court and its procedures were to be established,
and which would also regulate the appointment of magistrates and
other judicial officers, this has not happened so far. In Namibia,
Act 32 of 1944, with minor amendments, still regulates the procedures
and jurisdiction of the court as well as the appointment of its
officers. One of the amendments to Act 32 of 1944 was to replace
sec 9 of the Act with a new section. This was effected by Act No. 1
of 1999 which became law on the 9^th March 1999. The
amendment empowers the Minister of Justice, or the person delegated
by him, to appoint magistrates but subject to the provisions of the
Public Service Act. It further amends the minimum qualifications
for regional Court Magistrates and did away with the Appointments
Advisory Board established for Regional Divisions. Furthermore
subsec. (3) provides that whenever a magistrate or additional or
assistant magistrate is unable to carry out his functions, the
Minister, or his delegate, may appoint any other competent staff
member in the Public Service or a competent retired staff member to
act in the place of the absent or incapacitated magistrate. Section
10 of Act 32 of 1944, dealing with the qualifications for
appointments of judicial officers, is also subject to the law
governing the public service.

The amendments to sec. 9 of Act 32 of 1944 did not
give effect to Article 83(1) of the Constitution which provides that
lower courts shall be established by an Act of Parliament and should
be independent as further provided for in Article 78(2), read with
Article 12(1)(a) of the Constitution. In fact, the amendment, to the
contrary, further diminished the independence of, at least the
Regional Divisions, by doing away with the Appointments Advisory
Board established therefor.

Notwithstanding the provisions of the Constitution
the situation in Namibia, so it seems to me, is that in terms of the
provisions of Act 32 of 1944, magistrates are still regarded as part
of the civil service and the amendment to sec 9 of the Act did not
alter the position. When the Permanent Secretary said that she
transferred the appellant in terms of the provisions of sec. 23(2) of
the Public Service Act she acted in terms of existing legislation.
It further seems to me that the mischief was not caused by sec 23(2)
but in fact by the provisions of Act 32 of 1944, as amended by Act
No. 1 of 1999, and that the appellant should also have attacked those
provisions rather than to limit himself to the provisions of the
Public Service Act. It seems to me futile to leave intact the
provisions of Act 32 of 1944 which are in conflict with the
Constitution. To do so would be to give legal impetus to provisions
which are not constitutional. In my opinion it is necessary to
finally cut the string whereby magistrates are regarded as civil
servants, and that will only be possible once new legislation
completely remove them from the provisions of the Public Service Act.

For as long as magistrates remain subject to the
provisions of the Public Service Act, which virtually designates them
as employees of the Government and which requires of them prompt
execution of Government policy and directives, their independence
will be under threat and, what is just as important, is that
magistrates would not be perceived by the public as independent and
as a separate arm of Government. I therefore agree with the order
of the Court a quo that sec. 23 (2) did not apply to
magistrates.

By asking for a declaratory order whereby it was
declared that sec. 23(2) of that Act should not apply to magistrates,
the mischief created by Act 32 of 1944 was not addressed, and
continue to be a threat to the independence of those judicial
officers. What was achieved by the appellant in a roundabout way
could more properly have been achieved by the direct and certain
route of attacking the provisions of Act 32 of 1944. Bearing in
mind that we were informed that a new Magistrate’s Court Act is
being drafted there is in my opinion no prejudice to ensure that
those provisions, which militate against the Constitution, namely
section 9 (as amended) and section 10 of Act 32 of 1944 are declared
unconstitutional.

The effect of all this is that the Permanent
Secretary could, in my opinion, not act and transfer magistrates in
terms of the provisions of sec. 23(2) of the Public Service Act.
Whatever the position was before Independence, once the new
Constitution guaranteed the independence of the judiciary, which
included the magistrates, they were no longer ‘staff members’ who
could be dealt with in terms of that Act. That is, however, not the
end of the matter. Mr. Smuts submitted that if there was some other
authority in existence, in terms of which the action could be taken,
then the fact that the Permanent Secretary relied on some other
authority which subsequently proved to be incorrect, the action would
still be valid. Counsel therefore supported the finding by the
Court a quo that magistrates were liable to be transferred by
virtue of their contracts, express or implied, and by virtue of the
law and practice pursuant to Act 32 of 1944 as read with Articles
138(2)(a) and l40(1) of the Constitution.

In dealing with the situation where administrative
action was taken, in terms of some statutory power, and notice
thereof was given to affected parties, Baxter, Administrative Law,
p 366, states as follows:

“ The notice must be given in a manner by which it is sure to come
to his attention. It need not state the authority for the action,
although this is usually done in practice and the provision of such
information is a principle of sound administration. If the
authority is stated incorrectly, the action is not thereby
invalidated so long as authority for the action does exist and
the conditions for its exercise have been observed.”

See further in this regard Latib v
Administrator, Transvaal, 1969 (3) SA 186 (T) and R v Standard
Tea & Coffee Co (Pty) Ltd, 1951 (1) SA 614 (T).

In my opinion the above principle does not apply
to the present instance. From a reading of the cases it seems to me
that this principle applies in those instances where a functionary
exercises a power in terms of a statutory enactment and, in its
notice of the exercise of that power, incorrectly refers to the wrong
section or relied on a section other than the one empowering him or
her. See in this regard also Partnership in Mining Bpk v
Federale Mynbou Bpk en Andere, 1984 (1) SA 175 (T) at 182C-E and
S v van Zyl, 1991 (1) SA 804 at 817 (AA). The present instance
is different. In this matter the Permanent Secretary relied on a
statutory enactment, which was found to be unconstitutional, in its
application to magistrates, and there was no other statutory power to
fall back on. Furthermore where it is clear that a specific
election was made to rely on a particular provision, which is later
found to be inapplicable, or incorrect, it is not open to the
functionary to rely on some other power. See in this regard
Administrateur, Transvaal v Quid Pro Quo Eiendomsmaatskappy (Edms)
Bpk, 1977 (4) SA 829(A) and Minister of Education v Harris,
2001 (4) SA 1297 (CC). The Permanent Secretary elected to
effect the transfer of the appellant in terms of sec. 23(2)(a).
Under the circumstances it is not open to her to invoke now some
other power which was, in any event, only obliquely referred to, if
at all.

The Court a quo suspended the operation of
its order whereby it was declared that sec. 23(2)(a) was not
applicable to magistrates. The declarator itself was accepted by
all the parties and the appellant’s appeal lies against the
suspension of the order to take effect only after a specific time.
I have set out herein before the history whereby magistrates were
regarded as subject to the provisions of the Public Service Act.
This was also so understood by the appellant because in paragraph
8.14 of his replying affidavit he agreed that the Permanent Secretary
was the final decision maker in regard to transfers and that such
power vested in her in terms of Sec. 23(2)(a) of the Public Service
Act. Although, by his admission, the appellant accepted the
situation, it is clear that be, all along, regarded the exercise of
the power, to transfer magistrates in terms of sec. 23(2)(a) of the
Public Service Act, as in conflict with the provisions of the
Constitution. Hence the application for the declaratory order.

In regard to statutory enactments, or actions in
connection therewith, declared by a Court to be unconstitutional,
Article 25 of the Constitution distinguishes between two situations.
Firstly in regard to legislation by the Namibian Parliament, which
abolishes or abridges any of the fundamental rights or freedoms set
out in Chapter 3, that legislation or action shall be invalid. The
Court is however given the discretion, in an appropriate case, to
afford Parliament the opportunity to correct any defect in such law
or action. Where the Court grants Parliament such opportunity the
impugned law or action shall be deemed to be valid until such time
that it is corrected or on the expiry of the time limit set by the
Court, whichever is the shorter. (Article 25 (1)(a)). What is
significant is that the Article is not limited to legislation but
also includes action by agencies of the Government which abolishes or
abridges any of the rights set out in this Chapter.

Secondly in terms of Article 25(1)(b) all law in
force immediately before Independence shall remain in force until
amended, repealed or declared unconstitutional. In the latter
instance the Court is given a similar discretion as set out under
sub-article (1)(a). Sec. 9 of Act 32 of 1944 (as amended) is
legislation by the Namibian Parliament. It was found that this
section (as amended) was unconstitutional as it abolishes or abridges
the guarantee as set out in Article 78(2) of the Constitution read
with Article 12(1)(a). However this is not the end of the matter as
Article 23(1)(a) and (b) of the Constitution provide that the Court
may, in its discretion, suspend its order of invalidity. The present
case is, in my opinion, an appropriate instance where the Court
should exercise its discretion in favour of suspending the operation
of its order. In my opinion the same arguments apply to sec 10 of
Act 32 of 1944. As this is part of pre-independence legislation the
suspension of the Court’s order will be in terms of Article
25(1)(b) read with Article 25(1)(a).

Regarding the declaratory order that sec. 23(2)(a)
of the Public Service Act is not applicable to magistrates, I have
already pointed out that all the parties agreed that this order was
correctly made. There was some argument on whether the order should
have been suspended. I must point out that the section itself, in
its application to ‘staff members’ of the Ministry of Justice, is
not unconstitutional. What was found to be unconstitutional was the
action undertaken in terms thereof and its application to magistrates
by the Permanent Secretary. I have no doubt that the action
undertaken in terms thereof runs counter to the provisions of Article
78(2) read with Article 12(1)(a) of the Constitution for the same
reasons as set out in regard to ss. 9 and 10 of Act 32 of 1944. I
am further of the opinion that this is also an appropriate instance
where the Court should use its powers in terms of Article 25 and
suspend the effect of the order. Not doing so may create great
uncertainty which will be detrimental to the administration of
Justice.

Although this leaves, to a great extent, in tact
the order made in this regard by the Court a quo, the finding
of this Court that the Permanent Secretary acted ultra vires
in applying sec. 23(2)(a) of the Public Service Act, when she
transferred the appellant, must have an effect on the orders of cost
made in the Court a quo and on appeal in this Court. The
fact is that this Court has vindicated the stance by the appellant
that sec. 23(2)(a) was not applicable to magistrates and that she
therefore did not have the power to transfer him in terms thereof.
In effect this ground of review was successful but the practical
implementation thereof is suspended in order to afford Parliament an
opportunity to correct the situation. In my opinion the appellant
was substantially successful in his appeal and should therefore be
awarded the costs of appeal as well as the costs of the application
in the Court a quo.

Mr. Smuts requested us, in the event that we
agreed with the suspension of the order, to extend the operation
thereof with a further year. In my opinion a further extension of
the suspension until 30 June 2003 is justifiable. This also applies
to the order of the Court declaring sections 9 and 10 of Act 32 of
1944 unconstitutional.

The appellant also appealed against certain orders
made by the Court a quo whereby portions of the replying
affidavit of the appellant were struck out. There is also an appeal
against the order of costs made by the Court in regard to the
application for an interim order to prevent the respondent from
transferring the appellant to Oshakati pendente lite, and
which was subsequently abandoned.

The respondent’s application to strike out was
divided under three headings. The first part dealt with inadmissible
hearsay and/or new matter in reply. In my opinion the Court a
quo correctly found that the matter set out in Paragraph 1(a) to
(f) constitute inadmissible hearsay. Although in certain instances
where urgency or other special circumstances exist, the Court would
allow hearsay in my opinion it cannot be said that at the time when
the replying affidavit was drafted that there was either urgency or
special circumstances which would justify the acceptance of hearsay
in these proceedings. (See Swissborough Diamond Mines and Others
v Government of the Republic of South Africa and Others, 1999 (2)
SA 279 (TPD) at 336 G-J).

Under the second heading respondent applied for
the striking out of new matter in replying affidavit of the
appellant. As was pointed out in the Swissborough-case,
supra, p 323 to 325, the purpose of affidavits in motion
proceedings is not only to place evidence before the Courts but also
to define the issues between the parties. An applicant must
therefore make out his case in his founding affidavit. It is only
in exceptional cases where a Court can use its discretion to allow a
new cause of action to be raised in replying affidavits. (See
Triomf Kunsmis (Edms) Bpk. v AE & CI Bpk en Andere, 1984
(2) SA 261 (WLD) at 269 B-E) Although the principle is clear it is
not always easy to apply. In considering the various paragraphs I
came to the conclusion that paragraphs 2 (b), (c), (d) and (g) do not
raise new matters and are only explanations given by the appellant in
answer to allegations made by the Permanent Secretary in her
answering affidavit. Paragraphs 2 (h), (i), (j), (k), (m) (n) and
(p), raise in my opinion new grounds, namely that the Permanent
Secretary did not follow the correct and usual practice in regard to
his transfer. This was raised for the first time in the appellant’s
replying affidavit. It should in my opinion have been raised in his
founding affidavit so that the Permanent Secretary could have an
opportunity to reply thereto. These paragraphs were therefore
correctly struck from the replying affidavit.

The next heading came under scandalous and
vexatious matter, which was prejudicial to the respondent. In Vaatz
v Law Society of Namibia, 1991 (3) SA 563 (Nm) at 566D (1990 NR
332 at 334J – 335B), Levy, J, stated as follows in this regard:

“In Rule 6 (15) the meaning of these terms can be briefly stated as
follows:

Scandalous matter – allegations which may or may not be relevant,
but which are so worded as to be abusive or defamatory.

Vexatious matter – allegations which may or may not be relevant,
but are so worded as to convey an intention to harass or annoy.”

Although the founding
affidavit contained some undertones that the Permanent Secretary may
have acted for political reasons when she transferred the appellant
this was later on disavowed. However in his replying affidavit the
appellant now wanted to draw the inference that the Permanent
Secretary was politically motivated when she transferred him to
Oshakati. In certain respects these are new grounds which, if
established, would lead to the setting aside of the transfer.
However the grounds on which the appellant wishes to draw the
inference do not in my opinion support such a finding and are, to say
the least, flimsy. The allegations are scandalous and vexatious and
prejudicial to the respondent’s case and were therefore correctly
struck out. Although the appeal succeeds to a certain extend the
success is marginal and in my opinion it would be fair not to make
any order of costs on appeal.

Lastly there is the interim order which was not
moved in the end. The Court a quo ordered the appellant to
pay the costs of the application. In my opinion there is no reason
to interfere with the Court’s exercise of its discretion and this
ground of appeal is dismissed with costs.

Because of my findings it would be necessary to
re-draft and even re-arrange the orders where necessary. Some of
the orders also fall away in the light of these findings. In the
result the following orders are made:

THE
APPEAL AGAINST THE ORDERS MADE IN REGARD TO THE STRIKING OUT:

1. The appeal in regard
to orders A.1. and A.3. is dismissed.

2. As far as order A.2. is concerned the appeal succeeds in regard to
paragraphs 2 (b), (c), (d) and (g), and the striking out of these
paragraphs is set aside.

3. Appellant shall pay the costs of appeal in regard to the
application to strike out. For the benefit of the taxing master
the argument in respect of the appeal took about ten (10) minutes.

THE
APPEAL AGAINST THE MAIN APPLICATION:

1. It
is declared that:

(a) Section 23(2)(a) of
Act 13 of 1995 is not applicable to magistrates and that
consequently the order of the Permanent Secretary to transfer the
appellant, was ultra vires. This order and the transfer which
took place in effect, will however remain in force and effective
until 30^th June 2003, provided that appropriate
legislation is passed and action taken in accordance with such
legislation to remedy the defects in the existing transfer, on or
before the 30^th June 2003.

(b) Section 9 (as
amended) and section 10 of the Magistrate’s Court Act, Act 32 of
1944, is declared unconstitutional. These provisions will however
remain in force until 30^th June 2003, on condition that
legislation correcting the defects is properly passed and gazetted on
or before 30^th June 2003.

(c) The transfer of
magistrates does not per se constitute a threat to their
independence.

(d) Until such time on
or before 30^th June 2003, when the appropriate
contemplated legislation is passed to authorize the appointment of
magistrates, the Minister of Justice or such person duly authorized
by such Minister may continue to appoint magistrates in terms of s. 9
of Act 32 of 1944, as amended by Act 1 of 1999.

2. The
respondent is ordered to pay the costs of the main application in the
Court a quo as well as the costs of the appeal in regard to
the main application on the basis of costs for instructing legal
practitioners excluding Counsel.

3. The
appeal against the interim interdict set out in paragraph 3 of the
Notice of Motion is dismissed with costs. For purposes of taxation
it is noted that argument in this regard also did not take up more
than ten (10) minutes.

4. Wherever
costs are ordered in favour of the respondent those costs shall be
taxed on the basis of two instructed Counsel.

________________________

STRYDOM, C.J.

I agree.

________________________

O’LINN, A.J.A.

I agree.

________________________

CHOMBA, A.J.A.

COUNSEL ON BEHALF OF THE
APPELLANT: MR.. E. DU TOIT, S.C.

Assisted by MR.
Z. GROBLER

INSTRUCTED BY A.
LOUW & CO.

COUNSEL ON BEHALF OF THE
RESPONDENT: MR. D.F. SMUTS

Assisted by MS. K.
VAN NIEKERK

INSTRUCTED BY THE
GOVERNMENT ATTORNEY