CASE NO.: A 155/2009

IN THE HIGH COURT OF NAMIBIA
In the matter between:

and

Heard on: 06.12.2010 
Delivered on: 27.01.2011

JUDGMENT
Application for leave to Appeal

Immigration Selection Board, compelling her to disclose a document, referred to in the papers as "the legal opinion", obtained from the Board's legal practitioners. Respondent opposes the application.

[2] The grounds upon which the application for leave to appeal are founded, are the following:
"1. The Learned Judge erred in failing to distinguish the present case which involved a claim ofprivilege over advice sought by an organ of state for the primary purpose of guiding it in the performance of a statutory duty, from claims of privilege asserted over advice received in relation to litigious disputes between private parties.
2.	The learned Judge erred in failing to find that a party cannot deploy the fact of legal
advice and matters relating to the contents of that advice for the purposes of advancing its
case in litigation without waiving its privilege over that advice.
3.	The Learned Judge erred in finding
3.1. that it was not possible objectively to infer that the gist, summary or conclusion of the legal opinion obtained by the Respondent was disclosed in paragraphs 19.1 to 19.2 of the affidavit of Ms Hiveluah, and
3.2 that the Applicant had failed to show that, based on principles offairness and consistency, the Court should find that there had been an imputed waiver.
4.	Having failed to find that a case for waiver of privilege had been made out by the
applicant with reference to the papers alone, the learned Judge erred by failing to take a
"judicial peek" at the opinion to determine whether principles of fairness and consistency demanded its disclosure.
5. The Learned Judge erred in making a costs order against the Applicant.
6. The learned Judge should have found	"
[3] Appeals to the Supreme Court are governed by the provisions of s 18 of the High Court Act 16 of 1990 which provides as follows:

"(1) An appeal from a judgment or order of the High Court in any civil proceedings or against any judgment or order of the High Court given on appeal shall, except in so far as this section otherwise provides, be heard by the Supreme Court.

(2) 	
(3)	No judgment or order where the judgment or order sought to be appealed from is an
interlocutory order or an order as to costs only left by law to the discretion of the court shall
be subject to appeal save with the leave of the court which has given the judgment or has
made the order, or in the event of such leave to appeal being refused, leave to appeal being
granted by the Supreme Court. "

"(i) the decision must be final in effect and not susceptible to alteration by the Court of first instance;
(ii)	it must be definitive of the rights of the parties, ie it must grant definite and distinct
relief; and
(iii)	it must have the effect of disposing of at least a substantial portion of the relief claimed
in the main proceedings."

decision which is not final (because the Court of first instance is entitled to alter it), nor definitive of the rights of the parties nor has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings."

29G-H, it is stated that:

[6] In the present instance, applicant was thus required to show that the order made by this Court in interlocutory proceedings, dismissing applicant's application for disclosure of a legal opinion in terms of the Rules, meets the above stated requirements (attributes).

[9] In my view, none of the attributes were shown to be present in the present instance and the only conclusion I can come to is that the order, dismissing applicant's application for discovery in terms of Rule 35 (12), is not appealable.

"The Court will not decide issues which are academic, abstract, or hypothetical."

[12] Although this Court has a discretion to grant leave to appeal against interlocutory judgments and orders, this discretion must be exercised judicially and as far as it concerns the present instance, it would not, at this juncture, be in the interest of the administration of justice to seek clarity from the Supreme Court on undecided issues before the High Court.

[14] Another reason advanced as to why leave to appeal should be granted is that, when regard is had to the particular facts of the present case, a denial of leave to appeal would not prevent the issue from interrupting the proceedings again before another Court (during review proceedings), as the order is interlocutory in nature and thus open for reconsideration at a later stage of the proceedings. Such interruption, it was argued, could be avoided by granting leave to appeal and to have the issue on discovery decided by the Supreme Court.

[15] Despite applicant's anticipation of a similar interlocutory application, based on the same facts, being made later; which undoubtedly would interrupt the review proceedings, I am - for the reasons mentioned above - not persuaded in granting leave to appeal for any other reason advanced on behalf of the applicant.

[16] In the result, the following order is made:
1.	The application for leave to appeal is dismissed with costs.
2.	Costs to include one instructing and one instructed counsel.

LIEBENBERG, J

COUNSEL FOR THE APPLICANT:					ADV. CHASKELSON, SC 

INSTRUCTED BY:					DU PISANI LEGAL PRACTITIONERS

COUNSEL FOR THE RESPONDENT:		ADV. MALEKA, SC

INSTRUCTED BY:					GOVERNMENT ATTORNEY