REPORTABLE
CASE
SCA 3/2009
SUPREME
COURT OF NAMIBIA
In
the matter between
|
ALEX MABUKU
KAMWI
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APPLICANT
|
and
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LAW SOCIETY
OF NAMIBIA
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RESPONDENT
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CORAM:
Maritz JA, Langa AJA et O’Regan AJA
Heard
on: 13/10/2010
Delivered
on: 01/12/2010
APPEAL
JUDGMENT
O’REGAN
AJA:
The
applicant, Mr A M Kamwi, approaches this court in terms of Article
81 of the Constitution and asks it to “reverse” a
decision of this Court handed down on 20 October 2009.
Article 81 of the Constitution under the title “Binding
Nature of the Decisions of the Supreme Court” provides that:
“A
decision of the Supreme Court shall be binding on all other Courts of
Namibia and all persons in Namibia, unless it is reversed by the
Supreme Court itself, or is contradicted by an Act of Parliament
lawfully enacted.”
The
decision that Mr Kamwi seeks to have reversed was a decision in
which two appeals brought by Mr Kamwi against judgments of the High
Court were dismissed. The first of the High Court judgments
concerned, amongst other things, an ex parte application by
Mr Kamwi for a declaration that he is authorized to practice as a
“paralegal professional” and a mandamus requiring
the Ministry of Justice to amend the relevant law and rules to
provide for paralegal professionals. The second of the High Court
judgments concerned, amongst other things, an order obtained by the
Law Society of Namibia interdicting Mr Kamwi and certain others from
practicing, or holding themselves out to be, legal practitioners.
As
stated above, this Court dismissed both appeals. In his substituted
notice of motion,
the applicant sought to “review” the judgment dismissing
the appeals on several grounds including that the judgment was made
per
incuriam;
that it contained some irregularities; that it was “outdated”;
and that it gave a narrow reading to Article 21(1)(j) and Article
21(2) of the Constitution.
At the hearing of this application,
under questioning from the Court, the applicant moved an amendment
to his notice of motion seeking an order that the Court “reverse”
its previous judgment, thus substituting the word “reverse”
for “review” in the notice of motion. This amendment
was not opposed by the Law Society and was granted.
Issue
for decision
At
the commencement of the hearing on 13 October 2010, Maritz JA,
presiding, proposed to the parties that the only issue that should
be considered at the hearing was whether Article 81 of the
Constitution did grant this Court jurisdiction to reverse one of its
earlier decisions, in proceedings between the same parties, on the
same facts and same issues. Should that question be answered
negatively, Maritz JA proposed, the remainder of the applicant’s
arguments would fall away and require no further consideration by
this Court. Should the question be answered in the affirmative,
Maritz JA proposed, a further hearing would be convened possibly
with an enlarged panel of judges at a future date to consider the
remainder of the applicant’s submissions. No objection was
lodged by either of the parties and argument proceeded on this
basis.
The sole question for consideration
in this judgment then is the proper interpretation of Article 81 and
its application to the facts of this case.
Applicant’s
submissions
The
applicant submitted that,
properly construed,
Article 81 means that where an earlier decision of this Court
constitutes a “nullity” then the Court is empowered in
subsequent proceedings to reverse that decision. The applicant noted
that section 17 of the Supreme Court Act, 15 of 1990,
provides that “there shall be no appeal from, or review of,
any judgment or order made by the Supreme Court”. He argued,
however, that this did not prevent the Supreme Court from reversing
its own decision in a subsequent case. In making this submission,
the applicant relied on two English cases. The first was R
v Medical Appeal Tribunal ex parte Gilmore,
(1957) 1 QB 574 (CA) in
which the Court had to consider a statutory provision
which provided that a decision of the Medical Appeal Tribunal would
be “final”. The Court of Appeal found that this
statutory wording did not preclude the decision subsequently being
challenged on legal grounds.
The
second case cited by the applicant was Anisminic
v Foreign Compensation Commission,
[1969] 1 All ER 208 (CA).
Language with a similar effect to that considered in Gilmore’s
case was contained in the Foreign Compensation Act, 1950. Section
4(4) of that Act provided that a determination of the Foreign
Compensation Commission “shall not be called in question in
any court of law”. The House of Lords held that this
provision did not protect a determination of the Commission that
constituted a nullity.
The Court held that a determination of the Commission would
constitute a nullity if it acted beyond its jurisdiction, if it
acted in bad faith, or had failed to comply with the requirements of
natural justice, or had not determined the question referred to it
or taken into account considerations it should not have, or failed
to take into account considerations it should have.
The
applicant argued that the decision of the Supreme Court of 20
October 2009 constituted a nullity because, he argued, the decision
had not properly evaluated his arguments, had not accorded
sufficient weight to the applicant’s constitutional rights,
particularly in relation to its interpretation of sections 21(1)(a),
(b), 21(2) and 22 of the Legal Practitioners Act, 15 of 1995, and it
had contained some reasoning not proposed by the applicant.
Respondent’s
submissions
The
respondent submitted that the application was fundamentally flawed
and based on an erroneous interpretation of Article 81 of the
Constitution. According to the respondent, Article 81 establishes
the constitutional basis for the doctrine of precedent in Namibia.
In providing that the Supreme Court may “reverse” one of
its own decisions, the respondent submitted, it meant that in a
subsequent case, concerning different parties, a legal principle
established by the Supreme Court in an earlier decision could be
reversed if it was no longer legally tenable. Article 81 should not
be interpreted, the respondent submitted, to permit what is in
effect a further appeal by a litigant dissatisfied with a decision
of the Supreme Court.
The
proper interpretation of Article 81
In Schroeder
and Another v Solomon and 48 Others,
a decision drawn to the parties’ attention during the hearing,
this Court has recently considered the interpretation of Article 81.
There the Court held that Article 81
“… provides
for the binding nature of the decisions of the Supreme Court on all
other courts, and all persons in Namibia …. unless reversed by
the Supreme Court itself …”.
Thus
the Court continued
“Article
81 has the purpose of reaffirming the operation of precedent within
the hierarchy of our court structure. It reaffirms the locality of
this Court at the apex of the judicial authority, and the binding
nature of all decisions on all other Courts and all persons…”.
Article
81, the Court held, “does not create another forum for
litigants to litigate beyond the decisions of this Court”.
It is clear from the reasoning in Schroeder
that Article 81 does not
permit a litigant to seek a second “appeal”. Properly
construed, Article 81 is a provision that, amongst other things not
directly relevant in these proceedings, regulates the application of
the doctrine of precedent in Namibia.
What
of the applicant’s argument that Article 81 permits this Court
to “reverse” a decision of this Court that is legally
incorrect? In the Gilmore case (see para 7 above), on which
the applicant relied, the court held that despite the language of
the statute stipulating that the decision of the tribunal was final,
the statute did not prevent a court interfering with a decision of
the tribunal where it was wrong in law. Roper LJ reasoned as
follows:
“…it
would be deplorable if we were constrained to hold that the decision
of a medical appeal tribunal, however wrong in law, and however
obviously wrong, was immune from review by Her Majesty’s
courts. I cast no reflection whatever on tribunals such as that in
the present case, and they do their work conscientiously and with
efficiency. But in the nature of things these and similar inferior
tribunals (and there are many of them nowadays) are bound to go wrong
from time to time in matters of law. Their members consist in the
main of people who have devoted their lives to activities far removed
from the practice of the law; and neither by training nor experience
can they be expected to have that knowledge of principles of
construction which is so necessary for the proper understanding, and
application of the various statutes and regulations which often come
before them. Injustice may well result, and a sense of injustice is
a grievous thing. I therefore think (and I have said as much before)
that it is not in the public interest that inferior tribunals should
be ultimate arbiters on questions of law.”
Fundamental
to the reasoning in the case, therefore, was the fact that the
decision under challenge had been taken by an “inferior
tribunal” that could not be expected to reach a correct
decision on the law in all cases. The case differs from the one
before this court entirely. This case concerns a challenge to a
judgment of the highest court in the land. The considerations that
informed the interpretation of the legislation at issue in the
English case have no application here and the applicant’s
reliance on the case for this purpose does not advance his argument.
The
decision of this Court in Schroeder makes clear that section
81 cannot be interpreted to permit a dissatisfied litigant to have a
decision of this court reversed on the basis that the litigant does
not accept the decision made by the Court. To interpret Article 81
as the applicant proposes would lead to the absurd result that a
litigant dissatisfied with a judgment of this Court could, under the
guise of seeking its reversal in terms of Article 81, effectively
appeal the judgment of this Court to this Court in relation to the
same facts or issues already considered by the Court. Article 81
cannot be interpreted to permit that effect.
I
turn now to consider the applicant’s argument that Article 81
permits this Court to reverse a decision it has previously made that
is a nullity. It is not clear that Article 81 is directed at this
end at all.
However,
it is not necessary to decide whether Article 81 can permit this
Court to reverse a judgment that is a nullity because the applicant
has not established that the decision of 20 October 2009 is a
nullity. As mentioned above, the applicant has relied on two
English cases (R v Medical Appeal Tribunal ex parte Gilmore,
(1957) 1 QB 574 (CA) and Anisminic v Foreign Compensation
Commission, [1969] 1 All ER 208 (CA)). Both these
cases concern decisions made by institutions that are not courts: in
the one case, a medical appeal tribunal and in the other a
compensation commission. The statutes establishing the institutions
provided that their decisions were final, but in both cases the
English courts held that the statutes did not intend to oust the
power of the courts to set aside decisions of those institutions
where the decisions constituted a nullity.
In
Anisminic, the
Court held that a determination by the Compensation Commission would
constitute a nullity if the Commission had acted beyond its
jurisdiction or in bad faith, or had failed to comply with the
requirements of natural justice, or had not determined the question
referred to it or had taken into account considerations it should
not have, or failed to take into account considerations it should
have.
The applicant does not suggest, nor could he have, that in deciding
the appeals on 20 October 2009, this Court acted beyond its
jurisdiction or in bad faith or without compliance with the
requirements of natural justice.
The
applicant argues that the decision by this Court on 20 October 2009
should be held to be a nullity on the ground that the Court took the
decision without proper evaluation of his arguments, and without
according sufficient weight to his constitutional rights,
particularly in relation to its interpretation of sections 21(1)(a),
(b), 21(2) and 22 of the Legal Practitioners Act, 15 of 1995, and
that the judgment of the Court contained some reasoning not proposed
by the applicant.
These
grounds, even if established by the applicant, which they have not
been, would not render the judgment of this Court on 20 October 2009
a nullity. They are the kind of grounds ordinarily relied upon on
appeal where a litigant seeks to persuade a higher court to overturn
a judgment of a lower court on the grounds that it was wrong in law.
But no appeal lies against a judgment of this Court to this Court.
The grounds are therefore misconceived, as is the applicant’s
application, which must accordingly be dismissed.
The
application is unsuccessful and it is appropriate therefore that the
applicant pays the cost of opposition incurred by the respondent.
Order
1. The application is dismissed.
2. The applicant is ordered to pay
the costs incurred by the respondent in opposing this application.
________________________
O’REGAN,
A J A
I
agree.
________________________
MARITZ,
J A
I
agree.
________________________
LANGA,
A J A
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COUNSEL
ON BEHALF OF THE APPELLANT:
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In
Person
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COUNSEL
ON BEHALF OF THE RESPONDENTS:
Instructed
by:
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Mr.
G. Dicks
Dr
Weder, Kauta & Hoveka Inc
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Kamwi v Law Society of Namibia (SCA 3/2009) [2010] NASC 16 (01 December 2010);