Author: Walter

2

CASE NO.: A298/2009
IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

MINISTER OF REGIONAL LOCAL 

CORAM:							SHIVUTE, J
Heard on:							2010.09.07
Delivered on:							2010.10.29

RULING - INTERLOCUTORY APPLICATION

(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;

(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.

(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.

3.1. on August Malezky's own version, he is not authorised to bring the application on behalf of any of the applicants; alternatively

Wherefore Respondents pray that the applications be struck from the roll with costs.

[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.

"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."

1.     That the application does not comply with the provisions of Rule 6 (1).

c/o African Labour & Human Rights Centre

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".

"seeking to litigate the same matter before this court is nothing else than to seek to sow confusion and uncertainly in this Court".

"Thus for example a court may even condone a document that was not signed at all by legal practitioners".

[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".

"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".

"Any person aggrieved by a violation of a fundamental right of another may approach the appropriate division of the High Court for appropriate relief".

"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:

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".

[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.

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".

United Watch and Diamond Company (Pty) Ltd and Others v Disa Hotels Ltd and

"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'.

SA 936 as well as Article 25 (2) of the Namibian Constitution. The other Applicants had also associated themselves with this argument.

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...."

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)".

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.

[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."

"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.

[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:

SHIVUTE, J

Adv. Hinda

RESPONDENTS:
Adv. Heathcote