CASE NO.: A298/2009
IN THE HIGH COURT OF NAMIBIA
In the matter between:
AUGUST
MALETZKY
…........................................................................1st
APPLICANT
VICKSON
HANGULA
….......................................................................2nd
APPLICANT
NICHOLAAS
BURTSE
…......................................................................3rd
APPLICANT
DORKA
VICTORINE SHIKONGO
…......................................................4th
APLLICANT
DESIREE
BIANCA FORTUIN
…............................................................5th
APPLICANT
YVONNE
CATHERINE MOLLER
….......................................................6th
APPLICANT
HEROLD
SAMUEL GORASEB
…...........................................................7THAPPLICANT
ALBERT
PETER BROCKERHOFF
…....................................................8TH
APPLICANT
WILHELMINA
HENDRIETTE BROCKERHOFF …..................................9TH
APPLICANT
ANNA
OUSEB
…...............................................................................10TH
APPLICANT
JULIUS
OUSEB
….............................................................................11TH
APPLICANT
RONNY
R. HANGULA
…....................................................................12TH
APPLICANT
MATHEUS
HAUFIGU
….....................................................................13TH
APPLICANT
FESTUS
APRIL
…..............................................................................14th
APPLICANT
SOPHIA
DAKUNU NANGOMBE
….......................................................15th
APPLICANT
and
THE
ATTORNEY GENERAL
…...........................................................1stRESPONDENT
MINISTER
OF JUSTICE
…...............................................................2NDRESPONDENT
MINISTER
OF REGIONAL LOCAL
GOVERNMENT
& HOUSING
….........................................................3rd
RESPONDENT
MESSENGER
OF THE MAGISTRATE'S COURT ….............................4th
RESPONDENT
DEPUTY
SHERIFF OF THE HIGH COURT
…....................................5TH
RESPONDENT
INSPECTOR
GENERAL OF THE NAMIBIAN POLICE
…......................6th
RESPONDENT
CLERK
OF THE MAGISTRATE'S COURT: WINDHOEK …..................7th
RESPONDENT
MAGISTRATE
JJF BRITSS
…..........................................................8th
RESPONDENT
REGISTRAR
OF DEEDS
…..............................................................9th
RESPONDENT
JC
VAN WYK ATTORNEY
….............................................................10th
respondent
VAN
DER MERWE & GREEF INC.
…................................................1
1th
respondent
FISHER
QUAMBY & PFEIFER
…......................................................12th
respondent
THEUNISSEN,
LOUW & PARTNERS
…..............................................13th
respondent
FIRST
NATIONAL BANK OF NAMIBIA LTD
…...................................14th
respondent
STANDARD
BANK OF NAMIBIA LTD
…............................................15th
respondent
NEDBANK
…...................................................................................16th
respondent
SWABOU
INVESTMENT PTY LTD
….................................................17th
respondent
BANK
WINDHOEK
….......................................................................18th
respondent
BANK
OF NAMIBIA
…......................................................................19th
respondent
LAW
SOCIETY OF NAMIBIA
….........................................................20th
respondent
THE
CITY OF WINDHOEK
….........................................................21ST
RESPONDENT
NATIONAL
HOUSING ENTERPRISE
…...........................................22ND
RESPONDENT
JAQUEL
K NJEMBO
….................................................................23RD
RESPONDENT
FRANCOIS
ERASMUS & PARTNERS
…..........................................24TH
RESPONDENT
ALEXANDER
HOVEKA
…..............................................................25TH
RESPONDENT
NAMFISA
….................................................................................26TH
RESPONDENT
INFORMATION
TRUST CORPORATION (PTY) LTD ….....................27TH
RESPONDENT
BRAKPAN
PROPERTY DEVELOPMENT NO. 39 CC ….....................28TH
RESPONDENT
HILKA
NUUGULU
…......................................................................29TH
RESPONDENT
SISA
NAMANDJE & CO
….............................................................30TH
RESPONDENT
ETZOLD-DUVENHAGE
…...............................................................31ST
RESPONDENT
NAKAMEHLA
ATTORNEYS
…........................................................32ND
RESPONDENT
THE
OMBUDSMAN
…....................................................................33RD
RESPONDENT
NEVES
LEGAL PRACTITIONERS
…...............................................34TH
RESPONDENT
CORAM:
SHIVUTE, J
Heard on:
2010.09.07
Delivered on:
2010.10.29
SHIVUTE,
J: [1]
This matter started as an application by 15 Applicants seeking
relief against 34 Respondents. The Applicants applied to the Court
for an order in the following terms:
(1)
Condoning non-compliance with the Rules of this Honourable Court.
(2)
Declaring section 66(1)(a) of the Magistrates' Courts Act 32 of 1944
inconsistent with the Constitution to the extent that it authorizes
and obliges the clerk of the court, if insufficient movable property
has been found to satisfy the judgment debt, to issue a warrant of
execution against immovable property constituting the home of the
judgment debtor, where the debt is trifling or there are other and
less invasive means of satisfying the judgment debt;
(3)
Declaring that section 66(1)(a) of the Magistrates' Courts Act 32 of
1944 is to be read as though the following words appear at the end
of that subsection: "Provided
that no immovable property which constitutes the home of the
judgment debtor shall be subject to executing unless the court has
so ordered, on good cause shown, with due regard to the provisions
of the Constitution.';
(4)
Declaring Rule 45(1)(a) of the High Court is to be read as though
the following words appear at the end of that subsection:'Provided
that no immovable property which constitutes the home of the
judgment debtor shall be subject to execution unless the court has
so ordered, on good cause shown, with due regard to the provisions
of the Constitution.'; (sic)
(5)
Declaring Rule 49(3) of the Magistrates' Court to be
unconstitutional in that it bars indigent litigants from approaching
the court for appropriate relief.
(6)
Declaring that sale of a house below its reasonable market value, in
execution of a judgment unconstitutional for violating Article 15,
16 and 95 of the Namibian Constitution.
(7)
Declaring the Principle of double jeopardy unconstitutional for
violating Article 16 and or alternatively Article 95 of the Namibian
Constitution.
(8)
Declaring the execution of eviction orders, not preceded by just and
equitable discussions and where appropriate mediation have not been
attempted unconstitutional for violating Articles 8, 13, 14, 15 and
95 of the Namibian Constitution.
(9)
Declaring the prohibition of representation in courts of law of
indigent members of the community, by duly qualified persons, other
than legal practitioners registered with the Law Society, in terms
of the Legal Practitioners Act of 1995, to be contrary to the right
to a fair trial as envisaged in Article 12, Article 21 and Article
95 of the Constitution.
(10)
Ordering that the addition of untaxed legal fees on Home Loan
accounts to be illegal and unconstitutional for violating Article
13, Article 14, Article 15, Article 16 and Article 95 of the
Namibian Constitution.
(11)
Ordering the disconnection of water supply to homes to be in
violation of the Constitutional Rights to adequate housing, dignity
and Life and for violating Article 8, Article 13, Article 14,
Article 15, Article 16 and Article 95 of the Namibian Constitution.
(12)
Ordering the debits made to the home loan accounts in respect of
illegitimate and disproportionate life insurance fees be contrary to
the rights to own property as envisaged in Article 16 and Article 95
of the Namibian Constitution and that such premiums be credited
towards the settlement of the principal home loan account,
alternatively refunded to the respective applicants with interest at
the rate of 20% per annum.
(13)
Ordering all legal proceedings and decisions and executions of
default judgments of the Respondents based on the application of
above cited sections of the Magistrate's Court Act 32 of 1944 and
all other default judgments are null and void and of no force and
effect ab
initio.
(14)
Ordering the banks repayment of all untaxed and or unjustifiable
legal fees deducted from the Home Loans in respect of each and every
claim instituted against any particular bank herein cited.
(15)
Ordering the Law Society to conduct a full scale investigation into
the Trust and Business accounts of legal practitioners complained of
in this application and or in complaints lodged with the Law Society
by any one of the applicants in respect of untaxed legal fees
derived from home loan accounts of unsuspecting mortgagees, and
present such report to this Honourable Court and take the necessary
action as envisaged in its founding statute.
(16)
Ordering the failure of banks to account for all payments made in
respect of mortgage bonds to be unconstitutional for violating
Article 16 of the Namibian Constitution.
(17)
Declaring the arbitrary 'blacklisting' of debtors to be in violation
of the
Bill
of Rights.
(18)
Declaring all the Respondents who oppose this application to pay the
costs or this application.
(19)
Further and /or alternative relief. (sic)"
[2]
The 1st,
2nd,
3rd,
6th,
7th,
11th,
16th,
17th,
18th,
and 27th
Respondents
filed a notice in terms of Rule 6(5)(d)(iii) of the Rules of the
High Court to the effect that at the hearing of the application they
intended to raise the following questions of law:
"1.
The application does not comply with the provisions of rule 6(1) in
that the "facts
upon" which
the applicants rely on for relief, are not set out in respect of the
different forms of relief claimed, alternatively it is not possible
to identify which fact is tendered in respect of which relief
claimed;
2.
The second to fifteenth applicants' applications are void
ab initio, in
that they are not brought on "notice
of motion supported by affidavit" as
envisaged in rule 6(1). Although second to fifteenth applicants
deposed to affidavits, they have not signed notices of motion,
alternatively;
3.
In the event that the notice of motion signed by August Maletzky is
intended to be a notice of motion for all applicants, such
applications are still void
ab initio in
that:
3.1.
on August Malezky's own version, he is not authorised to bring the
application on behalf of any of the applicants; alternatively
3.2.
should Maletzky purport to act as a legal practitioner for and on
behalf of second to fifteenth applicants, the applications on behalf
of the second to fifteenth applicants are illegal, and constitutes a
nullity for the same reasons as advanced in Compania
Romana de Persuit (SA) v Rosteve Fishing (Pty) Ltd and Tsasos
Shipping Namibia (Pty) Ltd (Intervening): In re Rosteve Fishing
(Pty) Ltd v MFV 'Captain B1': her owners and all interested in her,
2002
NR 297, as the said Malezky is not a duly qualified legal
practitioner.
2.
The relief claimed in prayers 2 to 17 is not enforceable with
reference only to the relief claimed itself (in other words, it is
not permissible to ask relief which, for instance, declares that the
sale of a house below its reasonable market value, is
unconstitutional). The relief claimed is vague, not sufficiently
definite and distinct to give rise to an efforceable order and will
only result in a brutum
fulmen.
3.
First and second applicants appear to be relying on the constitution
for the relief sought is of "universal application". The
respondents submit that the first and second applicants do not have
locus
standi on
constitutional grounds, or otherwise, because they are not
"aggrieved persons" as contemplated in Article 25(2) of
the Constitution, nor have they disclosed any direct and substantial
interest of the relief claimed. In fact, the declaratory relief
first and second applicant claim is of a mere academic and abstract
nature and no case has been made out that they have sufficient
interest for declaratory relief as envisaged in section 16 of the
High Court Act, Act 16 of 1990.
Wherefore
Respondents pray that the applications be struck from the roll with
costs.
[3]
During the hearing the 1st,
2nd,
3rd
and
6th
Respondents
were represented by Mr Hinda instructed by Government Attorney. The
7th,
11th,
16th,
17th,
18th
and
27th
Respondents
were represented by Mr Heathcote instructed by various legal firms.
The 1st,
2nd,
3rd,
6th,
7th
and
12th
Applicants
appeared in person. The rest of the Applicants were neither
represented nor did they appear.
[4]
The main application by the Applicants seeking relief was based on
alleged constitutional rights and what has been referred to as
"universal application."
[5]
The Applicants applied for condonation for non-compliance with the
Rules of this Court for the late filing of the Heads of Argument.
The Respondents in this hearing did not oppose the application and
the Court accordingly granted it.
[6]
The founding affidavit accompanying the Notice of Motion of 9
October 2009 was deposed to by Mr August Maletzky the 1st
Applicant.
The 1st
Applicant
was the only signatory to the Notice of Motion. The rest of the
Applicants filed confirmatory affidavits.
[7]
In the founding affidavit, the 1st
Applicant
states that the Applicants had come to Court with a constitutional
challenge which is predicated inter
alia on
the following contention:
"I am
the first applicant in the matter. Notwithstanding the fact that I
pay municipal rates and taxes, my legal standing to bring this
application is derived from the fact that the relief sought in the
notice of motion is of universal application and therefore I have
legal standing to bring this application in my personal capacity as
an Applicant in the matter. The content of this affidavit read with
the affidavits of the second to fifteenth Applicants, will show the
smooth uninterrupted operation of human exploitation in post
independent Namibia."
The
3rd
Applicant
had also stated in his affidavit that he has locus
standi in
the terms similar to those stated by the 1st
Applicant
he states:
"I am the
third applicant in this matter. Notwithstanding the fact that I pay
municipal rates and taxes, my legal standing to bring this
application is derived from the fact that the relief sought in the
notice of motion is of universal application and therefore I have
the legal standing to bring this application in my personal capacity
as an Applicant in this matter. The content of this affidavit read
with the affidavits of the first to fifteenth Applicants, will show
the smooth uninterrupted operation of human exploitation in post
independent Namibia."
[8]
At this stage of the proceedings all I am called upon to do is to
consider and determine questions of law raised by the 1st,
2nd,
3rd,
7th,
11th,
16th,
17t
and
27th
Respondents
and I wish to deal with them in the following order.
1.
That the application does not comply with the provisions of Rule 6
(1).
It
was argued on behalf of the Respondents that the notice of motion
constitutes a nullity because it was only signed by the 1st
Applicant.
Underneath the 1st
Applicant's
signature there appears the following entry:
"August
Maletzky and
Applicants (Emphasis
added)
c/o African
Labour & Human Rights Centre
2 nd
Floor, Suite,
206, Continental Building
Independence
Avenue, Windhoek". It
was submitted that the 1st
Applicant
there created an impression that he signed the notice of motion on
his own behalf and on behalf of the other Applicants. However,
according to the 1st
Applicant's
own version, he is not authorised to bring the application on behalf
of the other Applicants. When an application is made by one person
on behalf of another, it is necessary to make an affidavit that the
person is authorised to bring the application. This Court was
referred to several authorities by both counsel for the Respondents.
One such authority is:
Ganes
and Another v Telecom Namibia Ltd 2004
(3) SA 615 (SCA) (2004) 2
A11
SA 609) at 624 F - H Streicher JA said the following:
"...
The deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit. It is
the institution of the proceedings and the prosecution thereof which
must be authorised".
[9]
It was further argued on behalf of the Respondents that even if the
1st
Applicant
was authorised to institute these proceedings on behalf of others,
he is not a legal practitioner as envisaged in the Legal
Practitioners, Act 1995 (Act No. 15 of 1995). Therefore, so it was
contended, since the other Applicants did not sign, then the notice
of motion is a nullity.
[10]
On the other hand, the 1st
Applicant
submitted that the signature of a Court document is a burden and has
been a burden to most of the Applicants in this matter and that the
full bench of the Namibian High Court is seized with the matter as
to when an Applicant can sign on behalf of another Applicant and
that the matter will be considered during the Rule 30 application in
this matter which is pending before the Full Bench. He further
argued that
"seeking
to litigate the same matter before this court is nothing else than
to seek to sow confusion and uncertainly in this Court".
1st
Applicant
further argued that although the notice of motion was signed by him
alone, the other Applicants signed confirmatory affidavits in which
they embrace his statement. In support of his argument he relies on
a judgment of this Court in the matter of The
Registrar of Friendly Society v Liberty Friendly Society &
Another Case
No. A 174/2007 unreported (delivered on 07-07-2008) at p 5 paragraph
(7) where it was stated that:
"Thus for
example a court may even condone a document that was not signed at
all by legal practitioners".
This
court had the benefit to peruse the matter referred to by the 1st
Applicant.
In fact the paragraph relied on is paragraph (7) on page 6 of the
cyclostyled judgment and not page 5 as stated. First Applicant
continued to argue that some of the Applicants in this matter were
senior members of the community who were unable to read or write and
explaining any document to them takes time and patience. Therefore
in the light of the above mentioned case the court should condone
the the fact that the notice of motion was not signed by other
Applicants.
[11]
The remarks in the passage in the Registrar
of Friendly Society case
(supra)
relied
on by the 1st
Applicant
were made during the consideration of certain points raised by the
1st
Applicant
who was the 2nd
Respondent
in that case. The first concerned the fact that the notice of motion
in the case was signed by an employee of one of the parties who was
an admitted legal practitioner of the Court on behalf of the
instructed legal practitioner. The 1st
Applicant
argued that the act of signing rendered the whole application an
irregular proceeding and on the basis of that alleged irregularity,
he sought an order discharging the rule
nisi.
[12]
Frank, AJ held that although he regarded the conduct complained of
as being highly undesirable, he did not regard it as a vitiating
irregularity. He held furthermore in any event, if it had been an
irregularity, but not a vitiating one, the Court would have had the
power to condone that irregularity.
[13]
At page 6, the second part of paragraph (7) he reasoned thus:
"In view
of what is set out by Innes CJ above in the quotation which I
referred to, I cannot accept that this is a vitiating irregularity.
I do however agree that it is highly undesirable practice, and I am
not sure whether it is professional or ethical conduct in terms of
the rules of the Law Society. The papers in front of me however, do
indicate that a complaint had been laid in this regard with the Law
Society and with that as a fait accompli I leave the matter at that.
I only wish to mention that, even if it was an irregularity, but not
a vitiating irregularity, I would have had the power to condone a
document that was not signed at all by legal practitioners. See
Fortune v Fortune 1996 (2) SA 550 (C) and specifically the cases
referred to at 552 A-B".
[14]
What was set out by Innes CJ in the quotation referred to by Frank
AJ was said in the old case of Donovan
v Bevan 1909
TS 723 at page 725. After having dealt with the quotation by Innes
CJ, Frank AJ, concluded in paragraph (6) at page 5 of the judgment.
"As
evident from the Donavan case and the reasoning thereof, one legal
practitioner may approach another legal practitioner to sign on his
behalf. What he cannot do is approach a lay person who wouldn't be
qualified or wouldn't be duly admitted and enrolled as such.. It
follows from the aforegoing that the point raised relating to the
signature itself thus cannot be sustained".
[15]
I do not understand Frank AJ there to say that a Court could condone
a document that was signed by a person who was not a legal
practitioner on behalf of another lay litigant. Nor do I did
understand the learned Judge to be saying that a lay litigant can
sign a Notice of Motion on behalf of another lay litigant. The case
of Donovan
v Bevan (supra) in
fact makes it abundantly clear that, that cannot be done. The case
of the Registrar
of Friendly Society (supra) is
therefore not of assistance to the first Applicant.
[16]
As far as the issue of the 1st
Applicant
attempting to be a legal practitioner representing the interests of
others is concerned, the 1st
Applicant
argued that it was held by the South African Constitutional Court in
Dawood
v Minister of Home Affairs 2003
(3) SA 936 where it was held that:
"Any
person aggrieved by a violation of a fundamental right of another
may approach the appropriate division of the High Court for
appropriate relief".
I
will return to this point at a later stage when considering the
issue of locus
standi.
The
other Applicants who were present did not make submissions in
respect of the points in limine
raised
as they associated themselves with the submissions made by the 1st
Applicant.
[17]
It is clear from the documents before me that the 1st
Applicant
signed the Notice of Motion alone where it is indicated "August
Maletzky and Applicants". Rule 6 (5) (a) of the Rules of this
court stipulates that:
"Every
Application other than the one brought exparte shall be brought on
notice of motion as near as may be in accordance with form 2 (b) of
the First Schedule and true copies of the notice, and all annexures
thereto, shall be served upon every party to whom notice thereof is
to be given."
Form
2(b) expressly makes provision for the signature of the Applicant or
his/her counsel.
Rule
6 (1) stipulates that:
"Every
application shall be brought on notice of motion supported by an
affidavit as to the facts upon which the Applicant relies for the
relief."
When
an Applicant decides to institute application proceedings she/he
must
set
out the facts and the provisions of the law on which his application
relies,
because
the Applicant must fall or stand by his or her affidavit:
[18]
In this case the 2nd
-
15th
Applicants
could not legally authorize the institution of this proceedings by
the 1st
Applicant
because the 1st
Applicant
is not a legal practitioner as defined by the Legal Practitioners
Act 1995, (Act No.
15
of 1995. Section 21 of the Legal Practitioners Act, (Act No. 15 of
1995 reads
as
follows:
1.
A person who is not enrolled as a legal practitioner shall not -
"(a)
practice, or in any manner hold himself or herself out as or pretend
to be a legal practitioner;
(b) make use
of the title of legal practitioner, advocate or attorney or any
other word, name, title; designation or description implying or
tending to induce the belief that he or she is a legal practitioner
or is recognised by law as such;
(c) issue out
any summons or process or commence, carry on or defend any action,
suit or other proceedings in any court of law in the name or on
behalf of any other person except insofar as it is authorised by any
other law;
(d) perform
any act which in terms of this Act or any regulation made under
section 81 (2) (d), he or she is prohibited from performing.
2. A person
who contravenes any of the provisions of subsection (1) shall be
guilty of an offence and shall on conviction pay a fine not
exceeding N$100.000 or to imprisonment for a period not exceeding 5
years or to both such fine and such imprisonment".
[19]
The 1st
Applicant
in an attempt to justify the conduct of signing the notice of motion
on behalf of the other Applicants, as earlier stated, argued that
some of the Applicants in this matter are senior members of the
community who are unable to read or write and explaining any
document to them takes time and patience. Therefore, he argued that
the court must condone the fact that a notice of motion was not
signed by 2nd
-
15th
Applicants.
[20]
The Rules of Court requires that the process of court must be signed
either by a litigant personally or his/her legal representative. The
wording of section 21 of the Legal Practitioners Act, 1995 is stated
in clear terms which does not leave any ambiguity. The language used
in the section is of imperative nature and should strictly be
observed.
It
was stated in Compania
Romana De Pescut SA vs Rosteve Fishing 2002
NR
297
at 302 (C-D) as follows:
"The
legislative purpose behind the section is clear: it seeks to protect
the public against charlatans masguerading as legal practitioners
who seek to prey on the misery and money of its members; it serves
the public interest by creating an identifiable and regulated pool
of fit, proper and qualified professionals to render services of a
legal nature and it is aimed at protecting, maintaining and
enhancing the integrity and effectiveness of the legal profession,
the judicial process and the administration of justice in general".
[21]
In the light of the above legal requirements it goes without saying
that the 1st
Applicant
cannot institute legal proceedings on behalf of others as he is not
a legal practitioner in terms of the Legal Practioners's Act.
Therefore, the Notice of Motion which was signed by the 1st
Applicant
on behalf of the 2nd
-15th
Applicants
is a nullity and it is void ab
initio as
far as the 2nd
-
15th
Applicants
are concerned; they failed to sign it.
[22]
I will now consider the points in limine
raised
regarding the locus
standi, and
I wish to confine myself to the 1st
and
3rd
Applicants
in this regard.
[23]
It was argued on behalf of the Respondents that the 1st
and
3rd Applicants do not have locus
standi to
bring this application in their own name on the basis that the
relief sought in the Notice of Motion is of universal application.
It would appear that the 1st
and
3rd
Applicants
are relying on Article 25 (2) of the Namibian Constitution for the
relief claimed. It was submitted on behalf of the Respondents that
the above Applicants did not establish that they have locus
standi on
constitutional grounds or otherwise because they are not aggrieved
persons as contemplated in Article 25 (2) of the Namibian
Constitution, nor had they disclosed any direct and substantial
interest in the relief claimed.
[24]
This court was referred to several authorities by Mr Heathcote and
Mr Hinda as per their heads of argument in this regard inter
alia:
United
Watch and Diamond Company (Pty) Ltd and Others v Disa Hotels Ltd and
Another
1972
(4) SA 409 (C) at 415 F-H as per Corbett J as he then was.
"In Henri
Viljoen (Pty) Ltd. v Awerbuch Brothers, 1953 (2) SA 151 (O),
HORWITZ, A.J.P. (with whom VAN BLERK, J., concurred) analysed the
concept of such a 'direct and substantial interest' and after an
exhaustive review of the authorities came to the conclusion that it
connotes (see p. 169) -
'...an
interest in the right which is the subject-matter of the litigation
and... not merely a financial interest which is only an indirect
interest in such litigation'.
This view of
what constitutes a direct and substantial interest has been referred
to and adopted in a number of subsequent decisions, including two in
this Division ., and
it is generally accepted that what is required is a legal interest
in the subject matter of the action which could be prejudicially
affected by the judgment of the Court."
See
also: Kerry
McNamara Architects Inc and Others v Minister of Works, Transport
and Communication and Others 2000 NR 1 (HC) at 9I-10B.
[25]
On the other hand the 1st
Applicant
argued that in relation to locus
standi, any
person aggrieved by a violation of a fundamental right of another
may approach the High Court for an appropriate relief. In order to
support his argument he referred to the case of Dawood
v Minister of Home Affairs 2003
(3)
SA
936 as well as Article 25 (2) of the Namibian Constitution. The
other Applicants had also associated themselves with this argument.
[26]
In determining the point in limine
concerning
the question of locus
standi of
the 1st
and
2nd
Applicants
I must look at the provisions of Article 25 (2) of the Namibian
Constitution and give a meaning to its interpretation and
application. Article 25 (2) provides as follows:
Aggrieved
persons who claim that a fundamental right of freedom guaranteed by
this constitution has been infringed or threatened shall be entitled
to approach a competent Court to enforce or protect such a right or
freedom...."
[27]
Concerning the interpretation and application of Article 25 (2) of
the Namibian Constitution this Court said the following in Jacob
Alexander v The Minister of Justice and Others Case
No. A 210/2007 (unreported judgment
delivered
on 2 July 2008 at p 38.
"... in
every application where an Applicant relies on Article 25 (2) of the
Constitution, the threshhold he or she must cross in order to
persuade a competent court that she is an "aggrieved"
person and that a human right guaranteed to him or her by the
constitution has already been violated (infringed) or is likely to
be violated or it is immediately in danger of being violated
(threatened)".
[28]
When the matter went on appeal in Jacob
Alexander v The Minister of Justice and Others Case
No. SA 32/2008 (unreported judgment delivered on 9 April 2010 at p.
31 Strydom AJA, stated the following:
The
standing of a party to approach a Court to protect him/her against
unlawful interference with his/her rights is dependent on whether
his or her rights are infringed or there is a threat of such
infringement.
[29]
An aggrieved person within the Constitutional context signifies
someone whose fundamental rights or freedoms guaranteed by the
constitution that has been infringed or threatened. Article 25 (2)
was not intended to widen the ambit to include persons who would
otherwise not have had standing to bring proceedings. The Namibian
Constitution has, unlike the South African Constitution, not
extended the common law requirements of locus
standi.
See:
Kerry
McNamara Architects supra at
(11 F-J).
[30]
Mr Heathcote rightly pointed out that Article 38 of the South
African Constitution of 1996 provides as follows.
"Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the bill of rights has been infringed or
threatened, and the court may grant relief, including a declaration
of rights. The persons who may approach a court are -
(a) anyone
acting in their own interest;
(b) anyone
acting on behalf of another person who cannot act in their own name;
(c) anyone
acting as a member of, or in the interest of, a group or class of
persons;
(d) anyone
acting in the public interest; and
(e) an
association acting in the interest of its members."
[31]
It is abundantly clear from the wording of Article 38 of the South
African Constitution that there was a deliberate intention on the
part of drafters to widen the scope for legal standing unlike the
Namibian Constitution which limits the right of action to aggrieved
persons only. There is no provision in the Namibian Constitution
which expressly authorizes locus
standi to
persons acting as a member of or in the interest of a group or class
of persons or acting in the public interest.
[32]
For the enforcement of fundamental rights and freedoms in terms of
Article 25 (2) 1st
and
3rd
Applicants
must show that they are aggrieved persons on the basis that a right
guaranteed to them had been infringed or that there is a threat of
such infringement.
[33]
This Court is now called upon to determine whether the 1st
and
3rd
Applicants
are aggrieved persons within the meaning of Article 25 (2) of the
Namibian Constitution.
[34]
The party who institutes proceedings should allege and prove that he
has a locus
standi. It
is a requisite for the 1st
and
3rd
Applicant
to show in their founding affidavit that they are aggrieved persons
whose rights had been infringed or that there is a threat of such
infringement. They also need to prove that they have direct and
substantial interest in the matter. At the pain of being repetitive
the 1st
Applicant
in his founding affidavit merely stated that:
"I
am the first
applicant in the matter. Notwithstanding the fact that I pay
municipal rates and taxes, my legal standing to bring this
application is derived from the fact that the relief sought in the
notice of motion is of universal application and therefore I have
legal standing to bring this application in my personal capacity as
an Applicant in the matter.
Whilst
on the other hand the 3rd
Applicant
said the following:
"I am the
third applicant in this matter. Notwithstanding the fact that I pay
municipal rates and taxes, my legal standing to bring this
application is derived from the fact that the relief sought in the
notice of motion is of universal application and therefore I have
the legal standing to bring this application in my personal capacity
as an Applicant in this matter.
[35]
The aforementioned statements do not clothe them with locus
standi entitling
them to enforce any right in terms of Article 25 (2) of the Namibian
Constitution. In view of this finding, it is my conclusion that the
1st
and
3rd
Applicants
failed to show that they are aggrieved persons within the meaning of
Article 25 (2). Accordingly, I uphold the points in
limine by
the 1st,
2nd,
3rd,
6th,
7th,
11th,
16th,
17th,
18th
and
27th
Respondents
challenging the locus
standi of
the 1st
and
3rd
Applicants.
[36]
Because of the conclusion I have arrived at, I do not find it
necessary to decide the rest of the points raised by the parties.
In
the result the following order is made:
(1)
The Notice of Motion signed by the 1st
Applicant
on behalf of the 2nd
-15th
Applicants
is a nullity and is void
ab initio in
respect of 2nd
to
15th
Applicants.
(2)
The 1st
and
3rd
Applicants
have no locus
standi in
the matter.
(3)
The points in
limine raised
by 1st,
2nd,
3rd,
6th,
7th,
11th,
16th,
17th,18th
and
27th
Respondents
are upheld.
(4)
The matter is struck from the roll with costs in favour of the above
mentioned Respondents against the 1st,
2nd,
3rd,
6th,
7th,
and 12th
Applicants.
The 1st,
2nd,
3rd,
6th,
7th,
and 12th
Applicants
must jointly and severally pay the costs of the 1st,
2nd,
3rd,
6th,
7th,
11th,
16th,
17th,
18th
and
27th
Respondents,
the one paying the other to be absolved. Such costs to include the
costs occasioned by the employment of one instructing counsel and
one instructed counsel.
SHIVUTE,
J
COUNSEL ON
BEHALF OF THE 1st-
2nd,
3rd
and 6th
RESPONDENTS:
Maletzky and Others v Attorney General and Others (A298/2009) [2010] NAHC 173 (29 October 2010);