Ovambanderu Traditional Council and Another v Minister of Urban and Rural and Others Development (HC-MD-CIV-MOT-GEN-2022/00346) [2024] NAHCMD 123 (20 March 2024)

Motion Proceedings – Review – Audi alteram partem rule ought to have been invoked by the Minister before making the decision – Article 18 – Breached.

The applicants in this matter seek to review the decision made by the first respondent on 20 October 2021. They additionally pray that the application for the approval of designation made by them in terms of section 5 (1) of the Traditional Authorities Act 25 of 2000 be remitted to the first respondent. The applicants premise their relief on the basis that the first respondent did not afford them audi before he took the purported decision. The respondent / Minister opposed the application and raised a point in limine to the effect that the application before the court is a rule 65 (the general applications rule) application and should be struck from the roll because it does not comply with the peremptory provisions of rule 76 (the review rule).

Held that the court associating itself with the sentiments expressed in Namibia Financial Exchange (Pty) Ltd v Chief Executive Officer of NAMFISA and Others found that the point in limine must fail.

Held that if the reasons for his recommendation to the President stem from the previous applications, which it appears to do, then the Minister had to determine if the impediments still exist, and the only way to do that is to properly consider the application of the applicants and give them the opportunity to address the issue with him. This inevitably means that he should have heard the applicants before reaching a decision.

Held that the applicants should have been afforded the opportunity to be heard before the Minister made the decision on 20 October 2021. Accordingly, the review application succeeds.