ELECTORAL COURT OF NAMIBIA, WINDHOEK
RULING ON A STAY OF PROCEEDINGS
Case no.: EC 7/2024
In the matter between:
INDEPENDENT PATRIOTS FOR CHANGE APPLICANT
and
PRESIDENT OF THE REPUBLIC OF NAMIBIA 1ST RESPONDENT
ELECTORAL COMMISSION OF NAMIBIA (ECN) 2ND RESPONDENT
CHIEF ELECTORAL OFFICER 3RD RESPONDENT
THE ATTORNEY-GENERAL 4TH RESPONDENT
SWAPO PARTY OF NAMIBIA 5TH RESPONDENT
AFFIRMATIVE REPOSITIONING 6TH RESPONDENT
POPULAR DEMOCRATIC MOVEMENT 7TH RESPONDENT
LANDLESS PEOPLE’S MOVEMENT 8TH RESPONDENT
UNITED DEMOCRATIC FRONT 9TH RESPONDENT
NAMIBIA ECONOMIC FREEDOM FIGHTERS 10TH RESPONDENT
SWANU 11TH RESPONDENT
REPUBLICAN PARTY 12TH RESPONDENT
NATIONAL UNITY DEMOCRATIC ORGANIZATION 13TH RESPONDENT
ALL PEOPLE’S PARTY 14TH RESPONDENT
NATIONAL DEMOCRATIC PARTY 15TH RESPONDENT
BODY OF CHRIST PARTY 16TH RESPONDENT
RALLY FOR DEMOCRACY AND PROGRESS 17TH RESPONDENT
NATIONAL EMPOWERMENT FIGHTING CORRUPTION 18TH RESPONDENT
UNITED NAMIBIANS PARTY 19TH RESPONDENT
ACTION DEMOCRATIC MOVEMENT PARTY 20TH RESPONDENT
UNITED PEOPLE’S MOVEMENT 21ST RESPONDENT
CONGRESS OF DEMOCRATS 22ND RESPONDENT
CHRISTAN DEMOCRATIC VOICE 23RD RESPONDENT
NATIONAL PATRIOTIC FRONT 24TH RESPONDENT
MINISTER OF URBAN AND RURAL DEVELOPMENT 25TH RESPONDENT
MINISTER OF PRESIDENTIAL AFFAIRS 26TH RESPONDENT
Neutral citation: Independent Patriots for Change v President of the Republic of Namibia (EC 7/2024) [2025] NAEC 1 (20 January 2025)
Coram: PRINSLOO J, SIBEYA J et SCHIMMING-CHASE J
Heard: 15 January 2025
Delivered: 20 January 2025
Flynote: Electoral Court — Jurisdiction — Electoral Act 5 of 2014 — Section 167(1) and (2) — Electoral Court is established as a division of the High Court with powers conferred on it by Art 78(4) and 80 of the Namibian Constitution and the High Court Act 16 of 1990.
Electoral Court — Jurisdiction — Electoral Act 5 of 2014 — Section 168 — Electoral Court has jurisdiction to hear any challenge mounted by a political party against the conduct of National Assembly elections.
Jurisdiction — Supreme Court — Apex Court in terms of Art 79 and 81 of the Namibian Constitution — Supreme Court has first instance jurisdiction to hear a challenge mounted against the conduct of Presidential elections.
Practice — Stay of proceedings — When available — Electoral Court having inherent jurisdiction to stay proceedings pending outcome of other proceedings to prevent abuse of its process, where it is in the interest of the administration of justice, to facilitate the resolution of real issues justly, speedily, efficiently and cost effectively — Discretion to be sparingly exercised.
Summary: The applicant, a political party, launched two separate challenges to the conduct of elections, which took place in Namibia between 27 and 30 November 2024. The applicant’s challenge to the conduct of the Presidential elections was launched in the Supreme Court as the court of first instance in terms of s 172 of the Electoral Act 5 of 2014. It also challenged the conduct of the National Assembly elections in the Electoral Court in terms of s 167 and 168 of the Electoral Act. The Supreme Court set the matter down for hearing on 10 February 2025. In both challenges launched in the Electoral Court and the Supreme Court, the applicant, as part of its main relief, seeks an order setting aside Proclamation No 34 of 2024 (which extended the days for voting), as being in violation of the Constitution and the provisions of the Electoral Act.
The Electoral Court, of its own motion, notified the parties to address it on why a temporary stay of the proceedings before it should not be ordered, pending the finalisation of the proceedings before the Supreme Court. This was in view of the identical relief sought in both courts (relating the setting aside of the Proclamation), based on essentially the same factual and legal grounds. The parties provided full argument for and against the temporary stay.
Held that, the Electoral Court, as a division of the High Court, has an inherent jurisdiction to stay proceedings pending the outcome of other proceedings to prevent abuse of its process, where it is in the interest of the administration of justice, and to facilitate the resolution of real issues justly, speedily, efficiently and cost effectively.
Held further that, a temporary stay of proceedings is usually brought on application by a party seeking the stay to prevent an abuse of process or vexatious proceedings. It is generally granted only in exceptional circumstances, because a court of law is expected to duly and expediently adjudicate upon matters pending before it, and which is within its jurisdiction.
Held further that, the Electoral Court has an inherent jurisdiction to, of its own motion, temporarily stay the hearing of an application before it, pending the decision of the Supreme Court on the same legal issue sought to be addressed in the Electoral Court, which would be pronounced on by the Supreme Court as a matter of urgency. Exceptional circumstances exist for a temporary stay to be granted in the interests of the administration of justice, and to facilitate the resolution of real issues justly, speedily, efficiently and cost effectively. Temporary stay accordingly ordered.
ORDER
The application filed under case no EC 7/2024 is stayed pending the finalisation of the Supreme Court case number A2/2024.
The costs of arguments for and against a stay stand over for determination at a later stage.
The application is postponed to 20 February 2025 at 10h00 for a status hearing and hearing of the joinder application filed by the Landless People’s Movement.
The parties must file a joint status report on or before 13 February 2025 in respect of the status of Supreme Court case number A2/2024.
The parties must file their respective heads of arguments, in respect of the joinder application, as follows:
(a) the applicant must file on or before 13 February 2025;
(b) the respondents must file on 17 February 2025.
The amount of security fixed by this court on 15 January 2025 and payable by the applicant, must be paid on or before 11 February 2025.
RULING
THE COURT:
Introduction
[1] To suggest that this matter may be viewed from the prism of a lack of deserving of expedient adjudication and finalisation by this court is a misstatement. The court is alive to the fact that this matter ought to be heard expeditiously and finalised before 21 March 2025.
[2] The applicant mounted a two-pronged challenge to the Presidential and National Assembly elections conducted on 27 to 30 November 2024. In keeping with the provisions of the Electoral Act (‘the Act’),1 the applicant challenged the conduct of the election of the members of the National Assembly in this court,2 while the challenge to the Presidential election was filed in the Supreme Court.3 In terms of s 172 of the Act, the Supreme Court is the court of first instance and final recourse (as contemplated in Art 79(2) of the Namibian Constitution) in any challenge to the election of the President.
[3] In both applications, the applicant challenges the lawfulness of Proclamation No 34 of 2024, which, at face value, appears to be the primary relief sought. The Supreme Court has set down the hearing of the challenge to the Presidential election on 10 February 2025. Against the backdrop of the said relief, this court on 14 January 2025, notified the parties to address it on why this matter should not be stayed pending finalisation of the application filed in the Supreme Court. The parties duly obliged as expected and the court expresses its gratitude for the arguments ably raised.
[4] The issue of the stay of proceedings, raised by the court mero motu, is what forms the subject-matter of this ruling. The applicant and eighth respondent contended that the present application must be stayed whilst the first, second, third and fifth respondents argued the contrary, namely, that the application should not be stayed, but should be heard outright. The court is now seized with the determination of the issue.
Parties and legal representation
[5] The applicant is the Independent Patriots for Change, a political party that is duly registered as such in terms of the Act and participated in both the election for members of the National Assembly and the President. The applicant shall be referred to as the ‘IPC’.
[6] The first respondent is the President of the Republic of Namibia duly elected as such in terms of the Namibian Constitution (‘Constitution’). The first respondent shall be referred to as the ‘President’.
[7] The second respondent is the Electoral Commission of Namibia, established under s 2 of the Act and is the exclusive authority for the conduct of elections under the Act. The second respondent shall be referred to as the ‘ECN’.
[8] The third respondent is the Chief Electoral Officer, duly appointed in terms of the Act, and further serves as the Executive Officer of the ECN. The third respondent will be referred to as the ‘CEO’.
[9] The fourth respondent is the Attorney-General of the Republic of Namibia, duly appointed as such in terms of the Constitution.
[10] The fifth to the twenty-fourth respondents are duly registered political parties that contested the election for members of the National Assembly.
[11] For reasons that will become apparent as the ruling unfolds, specific mention of the fifth and eighth respondents is necessary. Therefore, the fifth respondent shall be referred to as ‘Swapo’ while the eighth respondent will be referred to as ‘LPM’.
[12] The twenty-fifth and twenty-sixth respondents are the respective Ministers duly appointed as such and cited herein for the interest they may have in the matter.
[13] The applicant is represented by Mr Katz SC, while Mr Heathcote SC represents the President, Mr Narib represents the ECN and the CEO, Mr Namandje represents Swapo and Mr Kauta represents LPM.
[14] The application by IPC is opposed by the President, the ECN, the CEO and Swapo. Strictly-speaking, therefore, the President, the ECN, the CEO and Swapo are the respondents in the true sense of the word and, thus, where it becomes necessary to refer to the President, the ECN, the CEO and Swapo, jointly, they shall be referred to as the ‘respondents’. Where necessary to refer to IPC and the respondents, jointly, they shall be referred to as ‘the parties’.
[15] LPM filed an application to be joined as the second applicant in the election challenge before this court. This joinder application is to be heard in due course. LPM is also cited by IPC in this matter as the eighth respondent. Given the exceptional nature of this matter, the immense public interest involved, and the lack of significant prejudice that could be caused to the parties as a consequence, the court opted to hear Mr Kauta as well on the question of the stay of the proceedings. This approach should not, by any stretch of the imagination, be construed to constitute a view or stand adopted by the court on LPM’s joinder application. This is because the court has not yet heard the joinder application.
Arguments in brief
[16] Mr Katz argued that s 167(2) of the Act, read with Art 78(4) of the Constitution, recognises that this court has an inherent power to regulate its own processes. On this premise, submitted Mr Katz, this court has inherent jurisdiction to stay the hearing of this matter pending the finalisation of the challenge in the Supreme Court on the considerations of justice and equity.
[17] Mr Katz argued further that the factual substratum and the legal challenge in this matter and the one filed against the Presidential election in the Supreme Court, are the same. He submitted that both challenges are primarily directed against the lawfulness of Proclamation 34 of 2024 (‘the Proclamation’). He contended that as the Supreme Court is required to determine the lawfulness of the Proclamation after hearing arguments on 10 February 2025, it would be undesirable for this court to determine the same legal issue pending before the Supreme Court. He stressed that the decision of the Supreme Court may render the proceedings in this matter either unnecessary or narrow the issues for consideration by this court. He, however, accepted the difference in the ancillary relief sought in both courts.
[18] Mr Katz concluded that none of the parties will be prejudiced by a stay of the proceedings and, thus, he called on the court to order a stay of the proceedings pending finalisation of the proceedings in the Supreme Court.
[19] Mr Kauta also argued in support of an order to stay the proceedings. He made common cause with the above arguments advanced by Mr Katz. Mr Kauta further argued that rule 24(1) of the rules of this court empowers the court, where these rules do not make provision for the procedure to be followed, to apply the rules of the High Court with the necessary modifications. He submitted that, on this basis, rule 1(3) of the rules of the High Court finds application in that the overriding objective must be to facilitate the resolution of real issues between the parties justly, efficiently and cost effectively. He referred to an English judgment of the Queens Bench Division of the High Court of Manchester, namely, Barnes v Black Horse Limited,4 where it was remarked at para 19 that the context of the court’s general powers to stay proceedings must be exercised with due regard to the overriding objective to deal with matters expeditiously and fairly. He submitted that the court should order a stay of the proceedings pending the determination of the challenge in the Supreme Court.
[20] Mr Heathcote argued contrariwise. He argued that the Act prohibits a stay of proceedings in election matters. He expounded on this argument by submitting that considering that the scheme of the Act is to ensure a speedy resolution of the disputes by this court, staying the proceedings would delay the result which the masses eagerly await. He, however, acknowledged that this court has inherent jurisdiction to stay proceedings, but contended that such jurisdiction can only be exercised in exceptional circumstances, upon the onus being discharged by the IPC. He reiterated that a stay in this matter would be contrary to the said scheme of the Act. He placed reliance on the judgment of the Supreme Court in Olivier v Oosthuizen and Another.5 He emphasised that the court has no inherent jurisdiction to do what offends a statute in reference to an action that may run contrary to resolving disputes speedily.
[21] Mr Heathcote further argued that the court’s inherent jurisdiction can only be exercised where there is a lacuna in the Act, but in the Act there is no such lacuna, because the stay is prohibited in terms of the Act. He submitted that, at the promulgation of the Act, the legislator was alive to the fact that where there is a challenge to both the election of the members of the National Assembly and the Presidential election, the challenges would likely be similar in nature, based on the same facts, and constituting the same complaints. The legislator, nevertheless, saw it fit that the said challenges be heard in two different courts without providing for a stay of one the challenges to await the outcome of the other. He invited the court not to stay the proceedings and to order that the hearing on the merits of the application proceeds.
[22] Mr Narib aligned himself with the arguments raised by Mr Heathcote and equally submitted that the court should not stay the proceedings.
[23] Mr Namandje also aligned himself with the arguments presented by Mr Heathcote, and presented the following additional arguments. He commenced his arguments by stating that a stay of the proceedings amounts to a refusal of the court to hear and determine the dispute between the parties. He submitted that a court is obliged by law to hear any matter that falls within its jurisdiction and has no power to exercise a discretion to decline to hear such a matter for the reason that another court has concurrent jurisdiction. He submitted that it would be irregular to stay the current proceedings. On this score, he referred to a decision of the Supreme Court of Appeal of South Africa in The Standard Bank of SA Ltd and Others v Thobejane and Others and The Standard Bank of SA Ltd v Gqirana N O and Another,6 where it was remarked that:
‘[27] It is law of long standing that when a High Court has a matter before it that could have been brought in a Magistrates’ Court, it has no power to refuse to hear the matter . . .
[30] . . . a High Court “should hear a matter properly before it and within its jurisdiction” and that if a Magistrates’ Court also had jurisdiction, and the matter could be dealt with less expensively in that court, the High Court can discourage litigation before it “by an appropriate order regarding costs”.’
[24] Mr Namandje further argued that another reason why a stay of proceedings should not be ordered in this case is that the Supreme Court would also benefit from the reasoning of the subordinate court.
[25] Mr Namandje argued that the only document in this matter that forms part of the application pending before the Supreme Court is a Notice of Motion from which similar facts to the current matter cannot be deduced. He submitted that the delay in dealing with and determining this application prejudices Swapo as it won the elections and had to put plans in place to govern the country. He magniloquently submitted that if the court stays the proceedings, it would be abdicating its powers and would be shying away from the matter. Furthermore, this court, would demonstrate that it is not independent, as it fears that it may be found to have made a wrong decision, and this would undermine the hard fought democracy of our country. He called on the court not to stay the proceedings.
[26] In reply, Mr Katz submitted that IPC intends to have the matter heard speedily but, in the light of a similar challenge pending in the Supreme Court, it would be just and equitable to stay the proceedings in this court. He argued that no onus rests on IPC to prove the sustainability of the stay, as it never applied for a stay of proceedings. He, however, submitted that the striking similarity in the primary relief sought in both courts makes it compelling for the present proceedings to be stayed pending the determination of the Presidential election challenge.
[27] Mr Katz submitted that the proceeding with this matter would delay the resolution of the dispute between the parties and unnecessarily waste costs, time and judicial resources as this court could listen to arguments and rule on the lawfulness of the Proclamation while the same determination is due to be made by the Supreme Court in a short period of time. He concluded his submissions by stating that the ruling by this court would be subject to appeal to the Supreme Court, which is already seized with the determination of the same matter.
Analysis and decision
Inherent jurisdiction
[28] This court, a division of the High Court of Namibia, is established in terms of s 167 of the Act.
[29] In terms of s 167(2) of the Act, the court has ‘in the exercising of its powers and the performance of its functions, all the powers of the High Court conferred by Articles 78(4) and 80 of the Namibian Constitution and the High Court Act, 1990 (Act No 16 of 1990)’.
[30] Article 80 of the Constitution provides as follows under sub-Art (2):
‘The High Court shall have original jurisdiction to hear and adjudicate upon all civil disputes and criminal prosecutions, including cases which involve the interpretation, implementation and upholding of this Constitution and the fundamental rights and freedoms guaranteed thereunder . . .’
[31] Article 78(4) of the Constitution, on the other hand, provides that:
‘The Supreme Court and the High Court shall have inherent jurisdiction which vested in the Supreme Court of South-West Africa immediately prior to the date of independence, including the power to regulate their own procedures and to make court rules for that purpose.’
[32] Article 78(4) acknowledges that the High Court possesses inherent power to regulate its own processes. Ueitele J in Prosecutor-General v Miguel and Others,7 had occasion to consider the inherent jurisdiction of the High Court and remarked as follows at para 32:
‘I, have above come to the conclusion that this court has inherent power to make any order which the law does not prohibit it to make whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law or to do justice between the parties and to secure a fair trial between them . . .’
[33] The High Court retains inherent jurisdiction to make any order that it deems just and not prohibited by law. The order should be in the interests of justice. This is necessary in order to ensure due process of the law, provided that such an order does not contradict the relevant statute.
[34] With respect to the exercise of inherent jurisdiction based on equity, courts do not act on hypothetical ideas of justice and equity, but when they invoke their inherent jurisdiction based on equity, it will be in accordance with the principles of law. This resonates with the remarks made by Innes CJ, a century ago, in Kent v Transvaalsche Bank,8 but which are still alive to date, when he stated the following:
‘He (The appellant) also asked us to stay the proceedings on equitable grounds, urging that we had an equitable jurisdiction under the insolvency law. The Court has again and again had occasion to point out that it does not administer a system of equity, as distinct from a system of law. Using the word “equity” in its broad sense, we are always desirous to administer equity; but we can only do so in accordance with the principles of the Roman-Dutch law. If we cannot do so in accordance with those principles, we cannot do so at all.’
[35] Mainga JA in the Supreme Court judgment of Bank Windhoek v Mofuka9 discussed the principle of equity and cited with approval the following remarks by Kotze JA in Weinerlein v Goch Buildings:10
‘The court accordingly in Saayman’s case held that the error in the transfer deed must be rectified. In the earlier case of Mills and Sons v Benjamin Bros (1876, Buch at 121) the same learned judge observed: “Now it is quite true that this court is a Court of Equity only so far is it consistent with the principles of the Roman-Dutch Law.” This qualification is of importance, for equity cannot and does not override a clear provision of our law. Our common law, based to a great extent on the civil law, contains many an equitable principle; but equity, as distinct from and opposed to the law, does not prevail with us. Equitable principles are only of force in so far as they have become authoritatively incorporated and recognised as rules of positive law. It is true that the Roman jurist lays down in omnibus sed valde maxime in jure aequitas spectanda sit (Dig. 50.117.90); but, as Bronckhorst and other civilians, who have written special commentaries on this particular title, point out, where the law in a particular instance is clear it must be observed, although it may seem to be contrary to considerations of equity. Hence it is a maxim with the commentators that non omne quod licitum honestum est.’
[36] In our view, there can be no doubt about the inherent powers that the High Court possesses, which can be invoked on the basis of justice. Similarly, this court, by virtue of s 167(2) of the Act, has equal inherent jurisdiction. Inherent jurisdiction, however, cannot be invoked on the basis of equity alone distinct from the principles of law. For what it is worth, Mr Katz, Mr Kauta and Mr Heathcote were ad idem, and correctly so, that this court has such inherent jurisdiction to regulate its own processes. The said counsel could, however, not find each other on whether or not the facts of this matter are such that they create fertile ground for the court to invoke its inherent jurisdiction to stay the proceedings pending finalisation of the challenge to the Presidential election in the Supreme Court.
Mero motu
[37] Generally speaking, a relief for a stay of proceedings must be on the application of any of the parties. The test applied is one of convenience together with expediency, appropriateness and fairness.11 In the determination of such an application, the court will, in the exercise of its discretion, not act on conjecture, but on the material placed before it.
[38] It should be mentioned that, generally, it is within the powers of the High Court to mero motu raise a question to be addressed by the parties, including a question of whether or not it would be in the interests of justice or to prevent an abuse of process to postpone the matter. This is because the High Court has inherent jurisdiction to regulate its own processes and proceedings and to also ensure the fair administration of justice.
[39] The court's discretion to act mero motu is anchored in common law supported by procedural rules and case law.12 The High Court’s power to postpone matters mero motu is necessary to ensure that the interests of justice are upheld and to prevent the misuse of the judicial process. There is, therefore, nothing untoward with the approach adopted by this court to mero motu invite the parties to make representations on whether or not this matter must be stayed pending the challenge in the Supreme Court.
Stay of proceedings
[40] As stated above, this court issued a notice to the parties to address it on whether or not these proceedings should be stayed pending the finalisation of the challenge to the Presidential election in the Supreme Court. In order to appreciate the genesis of the notice served on the parties, it is deemed necessary to have regard to the relief sought in both notices of motion filed in the Supreme Court and in this court.
[41] In the Notice of Motion filed in this court against the election for the members of the National Assembly, IPC seeks the following relief:
‘1. Declaring Proclamation No 34 of 2024 in violation of Article 46(2) of the Constitution of the Republic of Namibia, and in contravention of section 64(3)(b) of the Electoral Act, 2014 (Act No 5 of 2014).
2. Declaring the first respondent’s Schedule to Proclamation No 34 of 2024 in violation of Article 46(1)(a) of the Constitution of Namibia, and in contravention of sections 89(1); 89(4) and 95(a) of the Electoral Act, 2014 (Act No 5 of 2014).
3. Declaring the votes cast on 29 and 30 November 2024 for the purpose of election of members of the National Assembly inconsistent with, and invalid for purpose of, Schedule 4(1) of the Constitution of the Republic of Namibia; and inconsistent with, and invalid for the purpose of, section 64(3)(b) of the Electoral Act, 2014 (Act No 5 of 2014).
4. Declaring the conduct of the election for members of the National Assembly in breach of the principles of Part 5 of the Electoral Act, 2014 (Act No 5 of 2014), including return and outcome, and setting same aside as unlawful and invalid.
5. Costs of one instructing and two instructed counsel (where employed).
6. Further and/or alternative relief.’ (Emphasis added).
[42] In the challenge lodged in the Supreme Court against the election of the President, the following orders are sought by IPC:
‘1. Declaring Proclamation No 34 of 2024 in violation of the Constitution of the Republic of Namibia, and in breach of the principles of Part 5 of the Electoral Act, 2014 (Act No 5 of 2014), and as such unlawful and invalid setting same aside.
2. Declaring the 2024 Presidential election to have been conducted in breach of the Constitution of the Republic of Namibia, and as not in accordance with the principles of Part 5 of the Electoral Act, 2014 (Act No 5 of 2014).
3. Declaring the return and outcome of the 2024 Presidential election invalid, unlawful, and setting same aside.
4. Ordering the conduct of a fresh Presidential election in accordance with the Constitution and the Electoral Act, 2014 (Act No 5 of 2014).
5. Costs of the application, including costs of one instructing and two instructed counsel (where employed).
6. Further and/or alternative relief.’ (Emphasis added).
[43] Several questions were raised on whether or not the court has the power to stay these proceedings. Mr Namandje argued with force and might at his command that the court lacks the authority to stay these proceedings. He argued that an order to stay the proceedings will result in the court refusing to hear the parties. He pulled no punches and argued that any attempt to stay the proceedings by this court will constitute abdication of its duties, would be tantamount to the court shying away from carrying out its functions, and would demonstrate that the court is not independent. This, he submitted, would be plainly irregular. A stay of proceedings, he maintained, would undermine our hard-fought democracy.
[44] Mr Namandje, for his contention that this court has no authority to refuse to hear a matter, relied on the decision of Standard Bank of SA Ltd and Others (supra).13 The facts of this matter are that applications by several banks were made against debtors who failed to service their mortgages or had purchased motor vehicles on credit and defaulted on payment. The debtors failed to oppose the claims and their matters were enrolled in the unopposed motion court. Orders were sought for repayment of outstanding indebtedness and for leave to specially execute on the mortgaged residential properties. On the basis of concerns that the rolls of the High Court were being congested by matters which could have been heard in the Magistrate’s Court and that there were other matters which could have been heard in the local seat of Johannesburg which were clogging-up the roll in Pretoria.
[45] The High Court found that, for banks to institute proceedings in the High Court when the Magistrates’ Court has concurrent jurisdiction, was an abuse of court process. It further found that there was no obligation on the High Court to entertain matters that fall under the jurisdiction of the Magistrates’ Court.
[46] On matters where the local division is the more appropriate forum for hearing, the High Court found that the court hearing the matter, may mero motu transfer such matter to that court. On appeal, the Supreme Court found that when a High Court has a matter placed before it that falls within its jurisdiction and that could have been brought in the Magistrates’ Court, it has no power to refuse to hear it. Similarly, the Supreme Court found that it was not open to the High Court to decline to hear any matter over which it had jurisdiction and no abuse of process exists on the part of the plaintiff who opted to institute proceedings in the High Court.
[47] The above facts of the Standard Bank case are miles apart from the present matter. Firstly, in the Standard Bank matter, the Supreme Court found that the High Court was obliged to adjudicate upon proceedings from the Magistrates’ Court and other matters from another local division, which the High Court had the necessary jurisdiction over. The High Court was obliged to hear such matters notwithstanding the fact that other courts had concurrent jurisdiction over such matters and they were congesting its roll. In the present matter, there is no question of the stay of proceedings under discussion being premised on any allegations of congesting this court’s roll. Secondly, and significantly, the stay of proceedings forming the subject in the present case is not a permanent stay of proceedings, but a temporary stay pending finalisation of the challenge to the Presidential election in the Supreme Court. The stay in the Standard Bank case was a permanent stay, therefore, the authority does not assist Mr Namandje.
[48] Frank AJA in Olivier (supra),14 said the following regarding temporary stay of proceedings:
‘[23] It is not necessary for the purposes of this judgment to spell out the circumstances in detail that would lead to the High Court granting such stay of proceedings. It is however necessary to refer to three scenarios relating to the abuse of court processes.
[24] Firstly, there is what amounts to a permanent stay, ie an order staying proceedings permanently where, for example the litigation is held to be frivolous or vexatious. The party against whom such order is given cannot proceed with such process and is permanently barred from obtaining such relief against the other party.
[25] . . . there is what amounts to a temporary stay. Examples of this are where a litigant is prevented from continuing with the process until the costs of previous unsuccessful litigation are paid or where a civil action is stayed until criminal proceedings flowing from the same facts are finalised. These kinds of stays, as pointed out by Solomon JA “are cases rather in the nature of postponements than of a stay of proceedings, and there can be of course no question of the jurisdiction of a Court of Justice to postpone the hearing of a suit on the application of either party.”
. . .
[29] . . . Where temporary stay is applied for, the court exercises the same jurisdiction as it would when a postponement is sought and it goes without saying that in such circumstances such temporary stays or postponements can be granted in the exercise of a judicial discretion . . . To put it simply the same discretion afforded to a court when granting or refusing postponements is afforded to the court when temporary stays are sought.’15 (Emphasis added).
[49] A temporary stay of the proceedings pending finalisation of the challenge filed in the Supreme Court is not a permanent stay of proceedings before this court. On the contrary, it is a temporary stay, which is akin to a postponement. Put differently, the court called on the parties to address it on reasons why this matter cannot be postponed for hearing on a future date after finalisation of the challenge to the Presidential election pending before the Supreme Court. Any elevation of the consideration of a stay in the present matter to a higher pedestal of permanent stay of proceedings would be incorrect and unjustified on the present facts
[50] There is no refusal to hear this matter. Instead, there is the temporary staying of he matter, pending a decision by the apex court on an identical legal question, which the Supreme Court will determine as a matter of urgency.
[51] What is more is that the authorities cited by Mr Namandje refer to an actual refusal to hear a matter. This is in respect of a permanent stay of proceedings, which is foreign to this matter as the issue under consideration is a temporary stay. The argument, therefore, that a stay of proceedings under consideration constitutes a refusal to hear the matter; an abdication of functions; shying away from deciding the matter; and that it is irregular and offends our democracy is unsustainable and devoid of merit.
[52] The practice of law is about words, the choice of which must be carefully considered before being uttered. This view is by no means intended to tame legal practitioners in their argument, but the choice of words and language used, as in casu, if engaged out of context, can have the capacity to cause an uproar or, at the very least, serve as an enticement for the masses to lose confidence in the Judiciary, the rule of law and democracy as a whole. This court is mindful of its role as the guardian of the Constitution and the rule of law. The court further cherishes the democracy, which was not delivered on a silver platter, but was attained through the blood, sweat and tears of our forefathers.
[53] This court has the power to stay proceedings brought before it, either temporarily or permanently. An application for a temporary stay of the proceedings should not be granted upon mere asking. Exceptional circumstances must be present for the proceedings to be stayed. This is due to the fact that a court is expected to duly and expediently adjudicate upon a matter pending before it and which is within its jurisdiction. After all, it can be accepted that parties approach the court in search of a speedy adjudication and finalisation of a matter. A court should, however, not act mechanically to finalise matters speedily, even in the face of compelling reasons and circumstances requiring a temporary stay of the proceedings for justice to be effectively and ultimately rendered. The court should, therefore, where it is in the interests of the administration of justice to temporarily stay the proceedings, consider granting a stay of proceedings, and if necessary, do so of its own motion.
[54] The court, in the exercise of its inherent jurisdiction, may temporarily stay proceedings, as Frank AJA remarked in Olivier (supra)16 at para 25, where a litigant is prevented from continuing with the process until costs of previous unsuccessful litigation are paid or where a civil action is stayed until criminal proceedings arising from same facts are finalised. This list is non-exhaustive.17
[55] A court may order a stay of proceedings where it is clear that there is an abuse of the court process. Similarly, a court may order a stay of proceedings where it is in the interests of the administration of justice to do so. The power to stay is exercised sparingly as courts of law are open to all, and parties should generally have matters placed before the court to be determined expeditiously.
[56] In order to stay the proceedings pending a hearing in another court, the issues between the parties should be the same or substantially similar. Technical differences between the causes of action, although related to the same substance, may not be sufficient to rule out a stay.18
Is this an appropriate matter to order a stay of proceedings?
[57] Mr Heathcote argued that the court should not invoke its inherent jurisdiction to order a stay of proceedings pending finalisation of the matter in the Supreme Court because there is no lacuna in the Act and further that such an order is prohibited by the Act. Mr Katz and Mr Kauta, as stated above, argued to the contrary.
[58] We have considered the provisions of the Act and searched in vain for a provision that expressly or impliedly prohibits the granting of an order to stay proceedings. Mr Heathcote did not single out any provision in the Act in support of his argument. We, however, understood him to say that the scheme of the Act is such that a challenge to the election of members of the National Assembly launched in this court must be dealt with expeditiously. He proceeded to submit that any order issued by the court which has the capacity of delaying the hearing and finalisation of the matter, would be prohibited by the Act.
[59] In our view, the above argument calls for a determination of the nature of the present matter coupled with the scheme of the Act in order to determine whether a stay of proceedings is warranted or not, and whether or not such an order if granted, would offend the Act or its scheme.
[60] In a relatively similar matter of Black Horse Limited (supra),19 where the court was faced with applications to stay proceedings in the High Court pending an associated decision of the Supreme Court, Judge Waksman QC (sitting as a judge of the High Court) remarked that:
‘9. On any view, the Supreme Court will have to deal with arguments about costs and commissions and it is inherently unlikely that they are going to confine themselves in their pronouncements or in reaching a principled decision on the point to only the very particular facts which arose in the case of Harrison, itself. Any decision made is likely, in my judgment, not only to affect what facts are truly relevant and what are the truly necessary factual findings for the court to make in the context of the law on unfair relationships as then pronounced by the Supreme Court. It seems to me that where any trial judge is dealing with PPI (payment protection insurance) premiums on the question of costs and commission which, as I have said, is a notable feature of such claims, the notion that the trial judge is unlikely to be assisted by any decision of the Supreme Court is unrealistic in the extreme.
. . .
21. . . . the Supreme Court is going to consider areas of law which are effectively new for it and which will clearly encompass some of the essential issues involved in these cases, and indeed in many others of the same kind, there is an obvious advantage in waiting until the Supreme Court has decided those issues. The result is likely, depending on the outcome . . . to dispose of some of the claims either in favour of the claimant or in favour of the defendant without a trial. It will in any event, provide a proper focused basis for considering the true scope of the evidence and the factual findings which the court at first instance will be required to make.
. . .
25. Of course, had there been some real or material prejudice as a result of the delay, other than the passage of time itself, the position might be different. There is no such evidence or submission before me. It has not been suggested that the traditional delay is going to cause memories to fade or arguments of that kind. That would have been wholly unrealistic on the basis that, if memories were to fade, they would have faded long before this litigation commenced.
26. However there is, in my judgment, a potential prejudice to Black Horse if the stay is not granted because if it wins at first instance and then, ultimately, on an appeal it loses, it is likely to have lost the costs of the trial and may have to pay the claimants’ costs of that because the Supreme Court ruling effectively goes against it . . . It is no answer to say that this is simply an inevitable risk of litigation because there is always a prospect of an appeal, when there is a sensible and proportionate route which will avoid that risk happening. That is to wait for the Supreme Court to decide before taking any further steps and therefore, incurring any further costs which may prove to have been unnecessarily incurred. Indeed that benefit assists the claimants as well because, if the Supreme Court confirms the Court of Appeal or renders all or any part of these claims viable, it is surely better for the claimant to know that now before it incurs the expenses of trial. Following any such decision, it is likely to take the sensible view that there is no point pursuing those claims.’ (Emphasis added).
[61] The above remarks are of persuasive value in consideration of the application of, inter alia, rule 1(3) of the High Court rules and the overriding objective of litigation in the High Court referred to above. This court, therefore, endorses the above remarks.
[62] We take note of Mr Namandje’s argument that Swapo will be prejudiced by a stay of proceedings as, after winning the elections, it had to put plans in place to govern the country. We hold the view that while it is reasonable that Swapo would be planning to govern the country, a stay of the proceedings pending the finalisation of the matter scheduled to be heard in a period of three weeks cannot be said to cause material or substantial prejudice to Swapo. It follows, therefore, that the prejudice to plan raised, is immaterial to offend a possible stay. The right to govern is subject to the right of the disenchanted parties to challenge the election.
[63] In the present matter, the court finds that:
it requires no magnifying glasses to come to the realisation that the primary challenge mounted by IPC, in these proceedings and the challenge to the Presidential election pending before the Supreme Court, is the same. This is borne out by the first and second prayers on both notices of motion, which attack the impugned Proclamation on the exact same basis;
although the remedy that this court may grant differs from the remedy that the Supreme Court may grant because the challenge in this court is to the National Assembly elections, as opposed to the Presidential election challenge in the Supreme Court, the legal challenge is the same. A determination of the legality of the Proclamation would have an effect on both the Presidential and National Assembly elections. The Act makes the urgency of determinations in this matter clear, in the national interest, and this court remains acutely aware of its responsibility to hear and determine electoral matters;
it is, thus, undesirable for this court to consider the same legal and primary issue of the lawfulness of the Proclamation that is presently pending before the Supreme Court, in circumstances where the Supreme Court will hear argument on this issue in a period of three weeks, on 10 February 2024;
it is not farfetched to remark that the decision of the Supreme Court will render guidance to this court in the present application, as the said decision may result in the proceedings before this court being unnecessary, alternatively, leaving narrow issues for consideration and provide a more focused and expedient approach;
in the event that the Supreme Court upholds the lawfulness of the Proclamation, this court will be bound by that decision, and the IPC’s challenge to the Proclamation, as a matter of course, falls away; and
in the same vein, if the Supreme Court finds that the Proclamation is unlawful, this court will be bound by that decision and will only be required to determine the consequential remedy. This will undoubtedly save costs, time, judicial resources and avoid a duplication of work.
[64] The above findings demonstrate that the challenge pending in the Supreme Court and the present matter before this court are inextricably linked to the extent that the finding of the Supreme Court will benefit the parties in the evaluation of their matter and stance to be adopted. The said decision of the Supreme Court will map the trajectory of this matter albeit on a loomed path as it would have decided the fate of the Proclamation. We agree with the submissions by Mr Katz and Mr Kauta that the decision of the Supreme Court will also render guidance to this court, ensure certainty, narrow the issues for determination, and surely expedite the resolution of the dispute between the parties.
[65] As this ruling draws closer to its conclusion, we take note of Mr Namandje’s argument that it is desirable that this court hears and determines the present application, including the challenge to the Proclamation, as the Supreme Court had always held that in matters handled by the High Court, it benefits from the reasoning of that court. This argument is sound. However, given the exceptional circumstances of this matter and that the Supreme Court will hear arguments on 10 February 2025, and possibly decide on the lawfulness of the Proclamation, it would be convenient, expedient, appropriate, fair, cost effective and provide certainty to await the determination of the lawfulness of the Proclamation by the Supreme Court.
Conclusion
[66] The court holds the view that in the determination of some of the issues, including those that are raised mero motu, like jurisdiction to adjudicate upon a matter, the issue of onus plays centre stage in order to find out whether a relief or issue had been proven by the responsible party. In this matter, the court raised the issue of the temporary stay mero motu, where none of the parties applied for a stay. We hold the view that the exceptional circumstances of this matter discussed above render the issue raised by the court to constitute an inquiry with no onus placed on any particular party. What the court assessed was whether or not there are compelling arguments to temporarily stay these proceedings.
[67] We find that rule 1(3) of the rules of the High Court applies to the present matter and in keeping with the overriding objective of the rules, to facilitate the resolution of real issues between the parties justly, efficiently and cost effectively, it is inevitable that the proceedings before this court ought to be stayed. Such a stay would necessitate the expeditious and fair hearing of the matter as the Supreme Court would have pronounced itself on the lawfulness of the Proclamation, thus, rendering the present challenge unnecessary or limiting the issues for determination before this court.
[68] In view of the above findings, this court concludes that the convenience, consideration of expediency, appropriateness and fairness require the matter to be stayed. We are of the view that there is no material prejudice to any party. In the exercise of our discretion, on the available material, it will be just and equitable to stay these proceedings pending the finalisation of the challenge to the Presidential election in the Supreme Court. The court shall order a stay.
[69] The costs of this matter stand over for determination at a later stage.
Order
[70] In the result, the court orders that:
The application filed under case no EC 7/2024 is stayed pending the finalisation of the Supreme Court case number A2/2024.
The costs of arguments for and against a stay stand over for determination at a later stage.
The application is postponed to 20 February 2025 at 10h00 for a status hearing and hearing of the joinder application filed by the Landless People’s Movement.
The parties must file a joint status report on or before 13 February 2025 in respect of the status of Supreme Court case number A2/2024.
The parties must file their respective heads of arguments, in respect of the joinder application, as follows:
(a) the applicant must file on or before 13 February 2025; and
(b) the respondents must file on or before 17 February 2025.
The amount of security fixed by this court on 15 January 2025 and payable by the applicant must be paid on or before 11 February 2025.
_____________________
J S PRINSLOO
Judge
_____________________
O S SIBEYA
Judge
_____________________
E M SCHIMMING-CHASE
Judge
APPEARANCES:
APPLICANT: A Katz SC assisted by J Diedericks
Instructed by Conradie Incorporated,
Windhoek
1ST RESPONDENT: R Heathcote SC assisted by Dr S Akweenda
Instructed by the Office of the Government Attorney,
Windhoek
2ND AND 3RD RESPONDENTS: G Narib assisted by E Nekwaya and E Shifotoka
Instructed by Andreas-Hamunyela Legal Practitioners,
Windhoek
5TH RESPONDENT: S Namandje assisted by K Gaeb and M Kazondana
Of Sisa Namandje & Co Inc.,
Windhoek
8TH RESPONDENT: P Kauta assisted by T Luvindao, E Shigwedha and S Paulus
Of Dr Weder, Kauta & Hoveka Inc.,
Windhoek
1 Electoral Act 5 of 2014.
2 Constituted in terms of ss 167 and 168 of the Act.
3 In terms of s 172(1) of the Act.
4 Barnes v Black Horse Limited [2012] EWHC 1950 (QB).
5 Olivier v Oosthuizen and Another 2022 (3) NR 642 (SC).
6 The Standard Bank of SA Ltd and Others v Thobejane and Others and The Standard Bank of SA Ltd v Gqirana N O and Another [2021] ZASCA 92 (25 June 2021) paras 27 and 30.
7 Prosecutor-General v Miguel and Others 2017 (2) NR 381 (HC) para 32. See also Kalipi v Hochobeb and Another 2014 (1) NR 90 (HC) paras 37 and 40.
8 Kent v Transvaalsche Bank 1907 TS 765 at 774.
9 Bank Windhoek v Mofuka 2018 (2) NR 503 (SC) para 14.
10 Weinerlein v Goch Buildings 1925 AD 282 at 295
11 Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) 363.
12 Hudson v Hudson and Another 1927 AD 259 at 268, where it was stated that ‘...courts are duty-bound to prevent the abuse of their process and may act on their own initiative to stop improper conduct that undermines justice.’ See also Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ).
13 The Standard Bank of SA Ltd and Others v Thobejane and Others and The Standard Bank of SA Ltd v Gqirana N O and Another (supra) at footnote 6.
14 Olivier v Oosthuizen and Another (supra) at footnote 5.
15 Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at 273 – 274.
16 Olivier v Oosthuizen and Another (supra) at footnote 5.
17 Ibid para 20.
18 Argus Printing & Publishing Co Ltd v Anastassiades 1954 (1) SA 72 (W). See also Kesaijee v Ismail 1958 (4) SA 385 (T).
19 Barnes v Black Horse Limited (supra) at footnote 4.