Swartbooi and Others v Speaker of the National Assembly and Others (HC-MD-CIV-MOT-REV-2023/00023) [2024] NAHCMD 602 (7 October 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING
Case number: HC-MD-CIV-MOT-REV-2023/00023 INT-HC-COMP-2024/00503
In the matter between:
BERNADUS SWARTBOOI			1ST APPLICANT
OVAHERERO TRADITIONAL AUTHORITY			2ND APPLICANT
AFRIKANER TRADITIONAL AUTHORITY			3RD APPLICANT
!AMAN TRADITIONAL AUTHORITY			4TH APPLICANT
BLOUSES TRADITIONAL AUTHORITY			5TH APPLICANT
BONDELSWART TRADITIONAL AUTHORITY			6TH APPLICANT
KAI/KHAUN TRADITIONAL AUTHORITY			7TH APPLICANT
!KHARKHOE TRADITIONAL AUTHORITY			8TH APPLICANT
SWARTBOOI TRADITIONAL AUTHORITY			9TH APPLICANT
TOPNAAR TRADITIONAL AUTHORITY			10TH APPLICANT
WITBOOI TRADITIONAL AUTHORITY			11TH APPLICANT
/HAI-KHAU TRADITIONAL AUTHORITY			12TH APPLICANT
LANDLESS PEOPLES MOVEMENT			13TH APPLICANT
and
THE SPEAKER OF THE NATIONAL ASSEMBLY			1ST RESPONDENT
THE NATIONAL ASSEMBLY			2ND RESPONDENT
THE PRESIDENT			3RD RESPONDENT
THE CABINET			4TH RESPONDENT
THE ATTORNEY-GENERAL			5TH RESPONDENT
Neutral citation:		Swartbooi v The Speaker of the National Assembly (HC-MD-CIV-MOT-REV-2023/00023) [2024] NAHCMD 592 (7 October 2024)
Coram:	DE JAGER J
Heard:	16 September 2024
Delivered:	7 October 2024

Flynote: Review – Record of proceedings – Rule 76(2)(b) – Documents, evidence, arguments and other information relating to the matter under review that was before the decision maker when making the decision – Includes ‘every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially’ – Deliberations relevant to the decision also included.

Discovery – Other documents – Rule 76(6) – An applicant must have a genuine and rational belief founded on some factual basis (not a mere suspicion) that other documents, reasonably identified and relevant to the decision under review and considered by the decision maker, are in the decision maker’s possession (not any respondent’s) – An applicant must show the relevance of the other documents to the impugned decision – Application refused – The applicants failed to establish their alleged belief, facts why the court should go behind the respondents’ oath and that the requested documents are relevant to the decision under review – Requested documents potentially involve integrity of executive’s operation – Sarfu warning heeded – Restraint exercised against disclosure – Document not reasonably identified refused.

Evidence – Discipline in motion proceedings – All evidence necessary to support case must be in the founding affidavit.

Costs – Rule 32(11) – Facts and circumstances considered in adverse cost order against unsuccessful party – Unnecessarily voluminous papers – Irrelevant matter included in founding affidavit – Unnecessary duplications in founding affidavit – Argumentative matter in replying affidavit – Issues not delineated in heads of argument.

Summary: This is an interlocutory application by the applicants ancillary to their pending review application (against the first respondent’s decision to note a joint declaration) calling on ‘the respondents’ to ‘discover’ the documents under the ten items in their notice of motion (the requested documents). The applicants believe the requested documents are admittedly in the respondents’ possession and relevant to the decisions ‘embodied in the review record’. All the respondents opposed the application through one deponent. The respondents say some requested documents do not exist, and some could not be located despite a vigorous search, and thus, they do not have those documents. Furthermore, they say some requested documents are still being drafted by representatives of the Namibian and German Governments, and the applicants are not entitled to those draft texts. Lastly, they say some requested documents, in the form of drafts prepared by the Attorney General (the fifth respondent) for the respondents, cannot be provided because they are still being negotiated or the attorney-client privilege protects them. The application is determined under rule 76(6), not rule 28(8).

Held that, the record of proceedings under rule 76(2)(b) is the documents, evidence, arguments and other information relating to the matter under review that was before the decision maker when making the decision, and it includes ‘every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially’ and deliberations relevant to the decision.

Held that, rule 76(6) requires that an applicant believes that other documents, reasonably identified and relevant to the decision under review and considered by the decision maker, are in the decision maker’s possession (not any respondent’s). The belief must, at minimum, be genuine, rational and founded on some factual basis and not a mere suspicion. An applicant must show the relevance of the requested documents to the impugned decision.

Held that, the relief sought to call on all the respondents to discover the requested documents is inappropriate unless the applicants believe all the requested documents are in all the respondents’ possession and all the respondents are the decision makers of the decision under review, which is not the case here. The relief sought amounts to imprecise pleading and fails to identify the respondents required to respond to the discovery claim. A court order endorsing such uncertain relief will be incompetent and is refused.

Held that, the applicants failed to place all the evidence necessary to support their case in their founding affidavit. The pages of the review record relied on were not attached to the founding affidavit, and the applicants failed to clearly state what portions of the paragraphs on those pages reliance is placed. It is not for the court to retrieve the pages referred to and draw conclusions from the paragraphs referred to in the notice of motion.

Held that, nevertheless, considering the paragraphs on the pages of the review record referred to in the notice of motion and duplicated in the founding affidavit, the applicants failed to establish their belief that the documents under items one, four, five, six and eight are in the respondents’ possession.

Held that, whereas the respondents’ deponent stated under oath on behalf of all the respondents that they do not have the documents under items one, four, five, six and eight, the applicants had to provide facts based on which the court was asked to go behind that oath, and they failed to do so. Those items are refused.

Held that, for the documents under items three, seven, nine and ten, the court cannot, on the applicants’ papers, make a positive finding on whether those documents are relevant to the decision under review. The applicants make conclusive statements instead of factual averments. The applicants conclude the requested documents relate to the joint declaration and documents related to the alleged adoption of its addendum and its later changes are crucial for determining lawfulness. The joint declaration, which is the subject of the review challenge, was ‘noted’ in 2021. The documents sought under items three, seven, nine and ten relate to dates after 2021 and are thus irrelevant to the decision under review. Those documents could not, on the applicants’ papers, have been before the first respondent when the joint declaration was ‘noted’. Those documents are thus refused.

Held that, considering the nature of the documents under items three, seven, nine and ten (which relate to ongoing and unfinished intergovernmental negotiation on a matter concerning future relations between Namibia and Germany about the 1905 genocide and include draft texts subject to change and advice by the Attorney General and which potentially involves the integrity of the executive’s operation), their importance and sensitivity, and that of the joint declaration being the subject of the review, and balancing the interests set out in Attorney-General and Another v Gondwana Collection Ltd and Others,¹ justice does not clearly demand a disclosure order, and under those circumstances, the court heeds the Sarfu warning referred to therein and exercises restraint against disclosure.

Held that the document sought under item two is refused because it is not reasonably identified.

Held that the cost order made against the applicants is uncapped by rule 32(11) but with only one instructing and one instructed counsel. The matter is not complex enough to justify two instructed counsel. The documents are, however, unnecessarily voluminous. The founding affidavit predominantly contains matters irrelevant to the interlocutory application and unnecessary duplications. The replying affidavit is riddled with argumentative statements that have no place in affidavits. The applicants’ heads of argument did not assist in delineating the issues raised by their already voluminous papers and added 50 more pages of volume. The respondents had cause for their complaint and prayer that rule 32(11) should not apply.

_______________________________________________________________

ORDER

_______________________________________________________________

1. The application under INT-HC-COMP-2024/00503 is dismissed.

2. The applicants must pay the respondents’ costs occasioned by the application under INT-HC-COMP-2024/00503 jointly and severally, the one paying the others to be absolved, including the costs of one instructing and one instructed legal practitioner, uncapped under rule 32(11).

3. The application under INT-HC-COMP-2024/00503 is finalised and removed from the roll.

4. The period provided for in rule 76(9) runs from the date of this order, followed by the periods provided for in rules 77(1)(b) and (2), read with rule 66(2).

5. The parties must deliver a joint case management report on or before 16 January 2025 instead of 10 October 2024 as ordered in paragraph 9 of the court order dated 15 July 2024.

6. The matter under HC-MD-CIV-ACT-CON-2023/03285 is postponed to 22 January 2025 at 08:30 for a case management conference, and the case management conference scheduled for 16 October 2024 under paragraph 10 of the court order dated 15 July 2024 is replaced accordingly.

7. If deadlines are not met or the matter stalls for any reason, the parties must forthwith request the managing judge to schedule a status hearing under rule 27(1) and simultaneously ensure that the request is brought to the managing judge’s attention and, in such event, the parties must, for the time being, take whatever steps required by law, failing which sanctions may be imposed against them, and they must further take steps to avoid the matter from stalling.

_______________________________________________________________

RULING

_______________________________________________________________

DE JAGER J:

Introduction

1. The applicants instituted review proceedings against the respondents in January 2023. Pleadings have not closed as the parties have been in dispute about the record of proceedings under rule 76(2)(b). Documents forming part of the review record were delivered on ten occasions. The first documents were delivered on 17 March 2023. Further documents were delivered on 3, 4, and 12 April 2023, 11 May 2023, 15 and 17 August 2023, 9 November 2023, 17 May 2024, and 11 June 2024 (the review record).

2. The court is now seized with an interlocutory application launched by the applicants on 5 August 2024, calling on all the respondents to ‘discover’ the documents under the ten items in their notice of motion (the requested documents), which the applicants believe are admittedly in the respondents’ possession and relevant to the decisions ‘embodied in the review record’. The interlocutory application is ancillary to the applicants’ pending review application against the first respondent’s decision to note a joint declaration.

3. All the respondents opposed the interlocutory application. The basis of their opposition is as follows. Some requested documents do not exist, and some cannot be located despite a vigorous search. Thus, the respondents do not have those documents. Some requested documents are still being drafted by representatives of the Namibian and German Governments, and the applicants are not entitled to those draft texts. Lastly, some requested documents, in the form of drafts prepared by the Attorney General (the fifth respondent) for the respondents, cannot be provided either because they are still being negotiated or they are protected by the attorney-client privilege.

4. The first applicant is Bernadus Swartbooi, a member of parliament serving in the National Assembly. He is a politician and a leader and chief change campaigner of the thirteenth applicant, the Landless People’s Movement, a registered political party. The second to the twelfth applicants are all traditional authorities, Ovaherero, Afrikaner, !Aman, Blouses, Bondelswart, Kai/Khaun, !Kharkhoe, Swartbooi, Topnaar, Witbooi and /Hai-Khau, respectively.

5. The first to fifth respondents are the Speaker of the National Assembly, the National Assembly, the President, the Cabinet and the Attorney General, respectively.

The review application

6. In the review application, the applicants seek the following relief:

'1. That the First Respondent's (the Speaker of The National Assembly) decision, to note the Joint Declaration in terms of Rule 124, declared invalid and set aside;

2. Declaring as unlawful, reviewing, and setting aside the Joint Declaration, based on it not having been ratified in terms of Rule 55 of the standing rules of the House;

3. Declaring the Joint Declaration as being inconsistent with, inter alia, Articles 1, 5, (potentially 10), 32, 44, 45, 59, 63, 95, 101, 125 and 144 of the Constitution;

4. Declaring the Joint Declaration as being inconsistent with the House's 2006 Motion on Genocide Against Namibian People, and/or international law and setting it aside;’

7. The joint declaration referred to in the quoted relief is the ‘Joint Declaration by the Federal Republic of Germany and The Republic of Namibia, United in Remembrance of Our Colonial Past, United in Our Will to Reconcile, United In Our Vision Of The Future’. The applicants allege it is unlawful because of its inconsistency with the purport of the Namibian Constitution and the 2006 House Motion and the first respondent’s ultra vires invocation of ‘rule 124’ to note it. The applicants say the joint declaration represents a policy choice determining future relations between Namibia and Germany about the 1905 genocide. They say it, in principle, settles the genocide issue and chooses its modality restricting what form of redress can be pursued by Namibians domestically.

8. The grounds for review are as follows:

1. The first respondent’s decision is bad in law. The conditions precedent for exercising any powers under ‘rule 124(1)’ were absent and they resorted to use it where there was no basis. The first respondent failed to exhaust internal remedies provided under those rules. When the first respondent made the decision under rule ‘124(a)’, they became functus officio after they divided the House. Their attempt to make a further ruling based on rule ‘124(a)’ after the fact to avoid counting the members’ vote for or against the joint declaration was unlawful.

2. In noting the joint declaration, the House failed to discharge their constitutional obligations under article ‘63(2)(i)’.²

3. The joint declaration is, ex facie, in breach of the Namibian Constitution because clause 20 ostensibly foreclosed on the House’s constitutional powers and functions. The appointment of Ambassador Ngavirue as the Namibian special envoy and the ensuing secret negotiations, characterised by a lack of transparency and openness, was inimical to a government for and by the people and a breach of the separation of powers doctrine.

4. The joint declaration is, ex facie, in breach of the House’s 2006 Motion for several reasons.

5. The Minister of Defence and Veteran Affairs gave a binding undertaking on behalf of the Government that the joint declaration would be debated in the National Assembly.

The interlocutory application

9. The documents which the applicants seek to be ‘discovered’ by all the respondents are as follows (the requested documents):

‘1. A copy of the signed, duly dated, and approved minutes of the meeting between the Namibian and German Technical Committees at Midgard Lodge from 09 to 11 March 2022. (Vide Report on The Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, pages 1165 para 1.19 and 1183 para. 6.1 of the review record).

2. The meeting of the CCOPP on 04 July 2022, that adopted the Addendum to the Joint Declaration. (Vide Report on the Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, page 1165 para 1.19; 1185 para. 1.19 of the review record).

3. A copy of the Addendum adopted at the meeting of the CCOPP on 04 July 2022. (Vide Report on the Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, page 1185 para. 1.19 of the record).

4. A copy of the agreed "developed Addendum" between the Namibian and German Technical Committees to resolve issues targeting paragraphs 16,17,18 and 20 in the Joint Declaration to clarify the concerns raised by the Namibian National Assembly. (Vide Report on the Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, page 1183 para. 6.3 of the review record).

5. A copy of the brief to the Special Political Cabinet Committee by the Technical Committee on 24 March 2022. (Vide Report on the Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, page 1185 para. 6.4 of the review record).

6. A copy of the of the signed, duly dated, and approved minutes of the Special Political Cabinet Committee meeting on 24 March 2022. (Vide Report on the Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, page 1185 para. 6.4 of the review record).

7. A copy of the Addendum, whether it is in draft form or not, evidencing the incorporation of the proposed changes/amendments by the Attorney-General. (Vide Report on the Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, page 1185 para. 6.5 of the review record).

8. A copy of the of the presentation (Titled Genocide, Apology and Reparations) and the signed, duly dated, and approved minutes of both the Stakeholders Consultations, whether it is in draft form or not, Committee meeting on 04 – 06 October 2023.

9. A copy of the draft Financing Agreement, Special Purpose Vehicle (SPV) framework drafted by the Attorney-General. (Vide Report on the Negotiations on Genocide, Apology and Reparations (GAR) between Namibia and Germany, page 1185 para. 6.4 of the review record).

10. A copy of the Addendum, Financing Agreement, Special Purpose Vehicle (SPV) framework drafted by the Attorney-General, whether it is in draft form or not, submitted to the Stakeholders Consultations Committee meeting on 04 – 06 October 2023.’

10. The requested documents are henceforth referred to under the quoted paragraph numbers as items one to ten, respectively.

11. The basis in the founding affidavit for the interlocutory application is as follows:

1. The applicants conclude that paragraph 12 of the respondents’ rule 76(6) and (7) affidavit dated 17 June 2024 deposed to by Lydia Kandetu, the second respondent’s secretary, on behalf of all the respondents, confirming ‘that the record constitutes an entire, accurate and complete record of proceedings in possession of’ the respondents is false and misleading. The applicants do not, in their founding affidavit, support their preceding conclusion. They simply say:

‘When I address the applicants’ requests for specific documents, I will, where appropriate, further refer to specific facts and contentions at page 1183 to 1189 in the review record, which support the applicants’ position that the respondents have relevant documentation in their possession which they neglect or refuse to discover.’

The applicants, however, never referred to specific facts or contentions on pages 1183 to 1189 of the review record in their founding affidavit.

2. The applicants contend the respondents misconceived the principles of producing a record in review proceedings. They say they are entitled to the requested documents since it will enable them and the court to perform an objective interrogation and assessment of the lawfulness of the decisions. According to them, the requested documents must be disclosed as a natural consequence of the pleadings,³ the purpose of rule 76, the fundamental values of transparency and accountability, and the system of checks and balances under the Constitution. Then the applicants list the requested documents quoted above.

3. The applicants say the review record supports the requested documents’ factual existence, and therefore, the respondents are legally obliged to produce them. They further say the requested documents were before the respondents since the information is detailed in the review record on pages 1183 to 1185. That allegation is further dealt with below.

4. According to the applicants, the Deputy President (sic), to whom the President delegated the matter, held a consultative meeting with the chiefs/traditional leaders on 27 June 2024, during which the requested documents were prominently featured. The meeting was followed by a press release by the Deputy President (sic).

5. The applicants contend the relevance of the requested documents is apparent from the review record. They say it is clear from pages 1183 to 1189 thereof that after noting the joint declaration in the National Assembly, the Technical Committee, the Special Political Cabinet Committee (SPCC) and the Attorney General resolved to amend it. The amended joint declaration incorporating the addendum, financing agreement, and special purpose vehicle framework drafted by the Attorney General led to the invitation to the 27 June 2024 meeting.

12. The applicants did not attach the pages they rely on in the review record to their founding affidavit, nor did they illustrate, in their founding affidavit, the alleged support contained on those pages. Those issues are further dealt with below.

13. In the respondents’ rule 76(6) and (7) response affidavit dated 17 June 2024, it is stated that the documents sought by the applicants that were not discovered could not be traced or found, and thus, they are not in the respondents’ possession. That allegation by the respondents before the applicants launched the interlocutory application placed an additional requirement on the applicants to succeed with the interlocutory application. That is further dealt with below.

14. Penda Andreas Naanda, the executive director of the Ministry of International Relations and Cooperation (MIRCO), deposed to the answering affidavit on behalf of all the respondents. He says the issues in the review application fall within his personal knowledge as the Namibian Government entrusted the responsibility of the negotiations on genocide, apology and reparation (GAR) on MIRCO. He explains the negotiation is conducted by the Technical Committee on GAR, chaired by Ambassador Tonata Itenge-Emvula of MIRCO. He further alleges that:

1. The applicants have been requesting documents since the main application was instituted and continue to request documents not in the respondents’ possession, and there appears to be no end in sight to the documents sought.

2. After the interlocutory application was launched on 5 August 2024, the respondents conducted a vigorous search of the requested documents. Mateus Kaholongo, the deputy executive director of the office of the Vice President and head of the secretariat GAR, coordinated the search, and the deponent participated.

3. Based on that search, certain documents do not exist or could not be located.

4. The documents in draft form are still being negotiated and were not approved by the SPCC and cannot be made available for the reasons set out later.

5. The draft addendum to the joint declaration, the draft financing agreement, the draft special purpose vehicle framework, and the draft amended joint declaration are being negotiated. The applicants seek to be given texts of some documents showing the Attorney General’s input, which infringes the attorney-client privilege. It constitutes legal advice given to the respondents.

6. The applicants’ request contravenes rule 76(6). They are not acting in good faith. By demanding draft documents still being negotiated by the two Governments, the applicants intend to frustrate the negotiations if the draft texts were to be made public.

7. The respondents deny that Lydia Kandetu's statements are false and misleading and that they misconceived the principles of producing records in review applications.

8. The applicants were provided with a copy of the minutes referred to in item one. The respondents do not have a copy of the signed minutes.

9. The respective Governments are still negotiating the addendum referred to in items two and three, which has not been adopted as alleged. They say they cannot discover a draft document subject to negotiations. It is furthermore unclear what the applicants are seeking in item two.

10. The respondents do not have a document titled ‘developed addendum’ referred to in item four. Such a document does not exist.

11. Despite a vigorous search, the respondents could not trace the brief to the SPCC by the Technical Committee or the signed and approved minutes of the SPCC meeting of 24 March 2022 referred to in items five and six. They do not exist or could not be located.

12. The addendum referred to in item seven is still negotiated by the respective Governments. The document containing the proposed changes/amendments by the Attorney General was a draft prepared for the negotiations, which are not finalised. The respondents cannot discover a draft document subject to negotiations. Alternatively, the document is irrelevant to the decision under review. In the further alternative, the amendments made by the Attorney General constitute legal advice to a client and the text is protected by the attorney-client privilege.

13. Despite vigorous search, a copy of the presentation in item eight could not be found. The respondents do not have such a document, and they could not trace a copy of the minutes referred to in item eight.

14. The negotiation teams of the respective Governments are still negotiating the draft financing agreement and special purpose vehicle framework referred to in item nine. The Attorney General may only produce draft texts or prepare comments or advice on them after the negotiating teams finalised the respective drafts which stage has not been reached. The respondents, therefore, do not have the draft addendum, financing agreement or special purpose vehicle framework drafted by the Attorney General. The applicants want to see the specific changes by the Attorney General to which they are not entitled as such text constitutes legal advice to the respondents and is protected by the attorney-client privilege.

15. The respondents do not have the documents described in item ten. The negotiating teams are still drafting them, and the Attorney General may only scrutinise or advise on them after the texts have been finalised. The SPCC has not even approved the documents. Alternatively, the draft texts are irrelevant to the decision under review, and the attorney-client privilege is raised as the applicants want to see the text inserted by the Attorney General.

16. It is denied that the joint declaration was amended. The negotiating teams are still negotiating issues in the joint declaration. An amended joint declaration does not exist.

15. The applicants accept the respondents’ deponent’s bona fides but submit that the answer is inadequate for the following reasons.

1. The applicants complain that the respondents’ deponent fails to establish which documents in the notice of motion fall into which category raised in opposition to disclosure. That is simply incorrect. The respondents’ deponent dealt with each item in the notice of motion as it was repeated in the founding affidavit.

2. The second complaint is that the respondents’ deponent failed to provide a proper account of the steps undertaken as part of the ‘vigorous search’, and no confirmatory affidavits were provided.

3. Thirdly, the applicants say it is impossible to believe that some documents could be in draft form and/or are currently negotiated. That is because the requested documents are mentioned, referenced or foreshadowed in documents in the review record, hence the record is incomplete. The only items that may be in draft form are items seven, eight and ten, and the fact that they are in draft form is no answer as the applicants are entitled to all documents that served before the decision maker that would have been relied upon to make the decision under review. The applicants’ preceding statement is further dealt with below. The applicants further say seeing that the joint declaration was noted, it is difficult to imagine that anything could still be negotiated.

16. According to the applicants, they would be entitled to privileged documents because privileged legal advice can be discovered where it underpins the subject matter of the dispute, either advising against or in support of the decision. The privileged legal advice must be specific to something in the context of litigation. They further say the generic claim of privilege does not apply to the Attorney General.

The relevant law

17. The making available of documents under rules 76(2)(b), (6), (7) and (8) for review applications and rule 28(8) for actions and motions (where applicable) are two separate procedures with separate requirements and considerations. That was confirmed in Dr Weder Kauta and Hoveka Inc v Namibian Competition Commission.⁴ Even though the word ‘discover’ is used in the ruling when referring to the papers filed of record, the application is determined under rule 76(6), not rule 28(8).

18. Rule 76(2)(b) requires the decision maker to serve on an applicant a copy of the complete record and file with the registrar the original record of such proceedings sought to be corrected or set aside together with reasons for the decision and to notify the applicant they have done so. Rule 76(6) provides that if an applicant believes there are other documents relevant to the decision or proceedings sought to be reviewed in the respondent’s possession, he must notify the respondent that such further reasonably identified documents must be discovered.

19. The record of proceedings under review cannot be otherwise construed than:⁵

‘… a loose description of the documents, evidence and arguments and other information before the tribunal relating to the matter under review, at the time of the making of the decision in question. It may be a formal record and dossier of what has happened before the tribunal but it may also be a disjointed indication of the material that was at the tribunal's disposal. In the latter case it would, I venture to think, include every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially. A record of proceedings is analogous to the record of proceedings in a court of law which quite clearly does not include a record of the deliberations subsequent to the receiving of the evidence and preceding the announcement of the court's decision plus the deliberations of the Executive Committee are as little part of the record of the proceedings as the private deliberations of the jury or of the Court in a case before it. It does, however, include all the documents before the Executive Committee as well as all documents which are by reference incorporated in the file before it.’

20. However, in Helen Suzman Foundation v Judicial Service Commission,⁶ the South African Constitutional Court expanded on the position in Johannesburg City Council v the Administrator Transvaal and Another quoted above and concluded that since the deliberations therein were relevant to the decision, there was no reason to exclude them from the record. That court said that:

‘[14] Our courts have recognised that rule 53 plays a vital role in enabling a court to perform its constitutionally entrenched review function:

'Without the record a court cannot perform its constitutionally entrenched review function, with the result that a litigant's right in terms of s 34 of the Constitution to have a justiciable dispute decided in a fair public hearing before a court with all the issues being ventilated, would be infringed.'

. . .

[17] What forms part of the rule 53 record? The current position in our law is that – with the exception of privileged information – the record contains all information relevant to the impugned decision or proceedings. Information is relevant if it throws light on the decision-making process and the factors that were likely at play in the mind of the decision-maker. Zeffertt & Paizes make a comment on the exclusion of evidence on the grounds of privilege. That comment must surely be of relevance even to the exclusion of privileged information from a rule 53 record. After all, the content of a rule 53 record is but evidentiary in nature. The authors say that in the case of privileged information, the exclusion is based on the recognition that the general policy that justice is best served when all relevant evidence is ventilated may, in some cases, be outweighed by a particular policy that requires the suppression of that evidence. The fact that documents contain information of a confidential nature 'does not per se in our law confer on them any privilege against disclosure'.’

21. What must be made available then is the documents, evidence, arguments and other information relating to the matter under review that was before the decision maker when making the decision, and it includes ‘every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially’ and deliberations relevant to the decision.

22. Under rule 76(6), it is required for an applicant to believe that other documents, reasonably identified and relevant to the decision under review and considered by the decision maker, are in the decision maker’s possession.⁷ In Minister of Finance v Hollard Insurance Company Namibia and Others, the Supreme Court explained that it is not merely those documents relevant to the decision under review, whether or not they are in the decision maker’s possession and were considered by them, that is required. It said that a belief by the applicant is required that the documents are in the decision maker’s possession.

23. That belief must, at minimum, be genuine, rational and founded on some factual basis and not a mere suspicion. The other documents must be reasonably identified. The applicant must furthermore show the relevance of the other documents to the impugned decision.⁸

24. Under rule 76(8), the court directed the applicants to deliver an application to compel specific discovery, which led to the 5 August 2024 application. Further directions were given for delivering answering and replying affidavits, indexing and delivering heads of argument. Oral argument was heard, and the ruling was reserved. Those directions were given because the parties have been in dispute about the record of proceedings for a long time, and from the documents filed of record, it was clear that there are factual disputes between the parties, which had to be dealt with in an application supported by affidavits instead of the issue being dealt with in chambers as envisaged in rule 76(8).

The determination

25. The applicants call on all ‘the respondents’ to ‘discover’ the requested documents. That relief sought is inappropriate unless the applicants believe all the requested documents are in all the respondents’ possession and all the respondents are the decision makers of the decision under review, which is not the case here. The applicants failed to identify in whose possession exactly they believe the requested documents are. It amounts to imprecise pleading and fails to identify the respondents required to respond to the discovery claim. Based on the relief sought, the applicants must establish their beliefs regarding all five respondents. They did not. The court cannot endorse the relief sought. It would result in an uncertain and incompetent court order. There are, however, several other reasons why the application cannot succeed.

26. The court agrees with the respondents that the applicants must, in their founding affidavit, set out the facts on which their belief is based and on which they aver the documents are in the respondents’ possession and are relevant.

27. In their founding affidavit, the applicants rely on pages 1183 to 1189 of the review record to support their submission that the respondents have relevant documentation in their possession, which they neglect or refuse to discover and that the documents do exist. The founding affidavit does not provide any further facts in that regard, even though it is stated that specific facts and contentions on those pages will be referred to. The pages relied on were not attached to the founding affidavit. The applicants say the relevance of the requested documents is apparent from the review record. With reference to pages 1183 to 1189, they further say that after noting the joint declaration, the Technical Committee, the SPCC and the Attorney General resolved to amend it.

28. In Nelumbu and Others v Hikumwah and Others,⁹ the Supreme Court stated the following about the discipline in motion proceedings, which applies to the interlocutory application at hand:

‘[41] Since affidavits constitute both the pleadings and the evidence in motion proceedings, a party must make sure that all the evidence necessary to support its case is included in the affidavit: Stipp and Another v Shade Centre and Others 2007 (2) NR 627 (SC) at 634G – H. In other words, the affidavits must contain all the averments necessary to sustain a cause of action or a defence. As was stated in Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others:¹⁰

'It is trite law that in motion proceedings the affidavits serve not only to place evidence before the Court but also to define the issues between the parties. In so doing the issues between the parties are identified. This is not only for the benefit of the Court but also, and primarily, for the parties. The parties must know the case that must be met and in respect of which they must adduce evidence in the affidavits.'

As the adage goes, in motion proceedings you stand or fall by your papers.

[42] When reliance is placed on material contained in annexures, the affidavits must clearly state what portions in the accompanying annexures the deponent relies on. It is not sufficient merely to attach supporting documents and to expect the opponent and the court to draw conclusions from them. In that regard, practitioners will do their clients a great service by heeding the following warning by Cloete JA in Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others:¹¹

'It is not proper for a party in motion proceedings to base an argument on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest — the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts. . . . A party cannot be expected to trawl through lengthy annexures to the opponent's affidavit and to speculate on the possible relevance of facts therein contained. Trial by ambush is not permitted.'¹²

[43] O'Regan AJA stated in Standard Bank Namibia Ltd and Others v Maletzky and Others 2015 (3) NR 753 (SC) at 771B – C para 43 that it is not sufficient for a litigant to attach an annexure without identifying in the founding affidavit the key facts in the annexure upon which the litigant relies.

[44] It is not open to a litigant merely to annex to an affidavit documentation and to invite the court to have regard to it in support of the relief sought or the defence raised: what is required is the identification of the portions in the annexures on which reliance is placed and an indication of the case which is sought to be made out on the strength of those portions.’

29. The applicants did not even begin to ensure that all the evidence necessary to support their case was included in the founding affidavit. As stated above, the pages of the review record relied on were not attached to the founding affidavit, nor did the applicants clearly state, as required, what portions of the paragraphs on the stated pages reliance is placed. It is not for the court to retrieve the pages referred to and draw conclusions from the paragraphs referred to. It is inappropriate for the applicants to invite the court to have regard to those pages of the review record in support of their relief. What was required was that the pages relied on had to be attached to the founding affidavit, and the founding affidavit had to identify the portions of the paragraphs on those pages on which reliance is placed for their conclusions. In the notice of motion, reference is made to specific paragraph numbers on those pages, but the applicants failed to demonstrate in the founding affidavit what exactly they rely on in those paragraphs.

30. The first issue to be decided is a factual finding on the applicants’ alleged belief that the documents are in the respondents’ possession. The respondents say they do not have the documents in items one, four, five, six and eight. In considering that statement and the applicants’ alleged belief, the court will have regard to the paragraphs on the pages of the review record referred to in the notice of motion, duplicated in the founding affidavit. That is done because those pages were handed up from the bar on the hearing date without an objection from the respondents, and those portions of the review record form part of the record before court to determine the interlocutory application. That should not be seen as a precedent that a court will consider documents not forming part of the founding papers. The court will now consider items one, four, five, six and eight.

1. Regarding item one, the respondents say the applicants were provided with a copy of the minutes of the meeting at Midgard Lodge from 9 to 11 March 2022, but they do not have a copy of the signed minutes. The applicants failed to support item one’s existence or that the respondents possess it.

2. For the document in item four, the applicants rely on paragraph 6.3 on page 1183 of the review record. Page 1183 does not have a paragraph 6.3. Paragraph 6.3 on page 1184 states that the two technical committees agreed to develop an addendum to the joint declaration to resolve specific issues targeting specified paragraphs to clarify concerns raised by the National Assembly. The respondents’ deponent says they do not have a document titled ‘developed addendum’, and such a document does not exist. Paragraph 6.3 does not say that such a document exists. It says it was agreed to develop it.

3. Item five is a brief to the SPCC on 24 March 2022. Paragraph 6.4 on page 1185, relied on by the applicants, states that the Namibian Technical Committee briefed the SPCC at its meeting held on 24 March 2022. That statement does not suggest, as a fact, that there was a written brief to the SPCC.

4. Item six concerns the minutes of the SPCC meeting on 24 March 2022. The applicants rely on paragraph 6.4 on page 1185, which refers to a meeting held on 24 March 2022. However, the fact that there was a meeting on 24 March 2022 does not mean there are minutes for that meeting.

5. For item eight, the applicants failed to support its existence or that the respondents possess it.

31. The respondents’ deponent says they do not have the documents under items one, four, five, six and eight, and they could not be located after a vigorous search. In those circumstances, the applicants had to provide facts based on which the court was asked to go behind the respondents’ deponent’s oath.

32. On the contrary, in reply, the applicants say they accept the respondents’ deponent’s bona fides. The respondents’ answer is, however, attacked because the deponent allegedly did not state which requested documents fall into which categories relied on. As stated above, that is simply incorrect. The other basis of the attack is that the respondents’ deponent did not give a proper account of what steps were undertaken to search for the documents. The absence of such an account of events does not provide a factual basis for the applicants’ belief that the documents are in the respondents’ possession. No facts are provided by the applicants as to why the court should go behind the respondents’ oath. The third basis of the attack is that it is impossible to believe that some of the documents are in draft form and/or currently being negotiated because some are mentioned, referenced or foreshadowed in the review record. That argument does not provide a factual basis for the applicant’s belief that the documents are in the respondents’ possession, and it does not mean that the documents cannot be in draft form. The applicants acknowledge that items seven, eight and ten may be in draft form. They further say that given the fact that the joint declaration was noted in 2021, it is difficult to understand that it is still being negotiated. They say negotiation may still be in respect of implementation but its implementation is not under review. Then the applicants say even if they are in draft form, they must be discovered.

33. The applicants simply failed to establish their belief that the documents in items one, four, five, six and eight are in the respondents’ possession. The facts put up by the applicants do not justify the court going behind the respondents’ oath that they do not have those documents. Whereas the applicants failed to establish why the court should go behind the oath regarding those items, those items are refused.¹³ It is recorded that, under the applicants’ heads of argument, they do not persist with requesting items four and eight.

34. The next issue is whether the respondents should be ordered to make available the documents under items three, seven, nine, and ten, which are in draft, under negotiation and or protected by attorney-client privilege.

35. On the applicants’ papers, the court cannot make a positive finding on whether those documents are relevant to the decision under review. The applicants made no factual averments in that regard . They only made conclusive statements. The applicants conclude the documents relate to the joint declaration that was adopted and documents related to the adoption of the addendum and its later changes are crucial for determining lawfulness.

36. In Kahuure and Another In re Nguvauva v Minister of Regional and Local Government and Housing and Rural Development and Others,¹⁴ the Supreme Court reiterated the trite principle that an applicant must establish a case in the founding affidavit, which must set out factual averments, which, if established at the hearing ,would entitle them to relief. The Supreme Court referred to Herbstein and Winsen The Civil Practice of the High Courts and the Supreme Court of South Africa ¹⁵ that a pleading stating conclusions and opinions instead of material facts or drawing conclusions without material facts which, if proved, warrant the conclusions, is defective.

37. According to the applicants, the joint declaration, which is the subject of the review challenge, was noted in 2021. The documents under items three, seven, nine and ten relate to dates after 2021 and are thus irrelevant to the decision under review Those documents could not, on the applicants’ papers, have been before the first respondent when the joint declaration was ‘noted’. Those documents are thus refused.

38. What the Supreme Court said in Attorney-General and Another v Gondwana Collection Ltd and Others¹⁶ should be considered in the matter at hand. It said that:

‘[64] As Sarfu warns, the court must 'exercise restraint' when what is demanded to be disclosed potentially involves integrity of the operation of the executive. Where it is permissible to seek the production of cabinet documents in the course of litigation the same considerations would apply as that which faced the SA Constitutional Court in Sarfu where a litigant sought to compel the President of South Africa to testify in contested proceedings. In such a situation, the court should seek to balance two interests. As recognised in Sarfu, there is the public interest 'that the efficiency of the Executive is not impeded and that a robust and open discussion take place unhindered at meetings of the Cabinet when sensitive and important matters of policy are discussed'. The second interest is the need to ensure that courts are not impeded in the administration of justice and that litigants are afforded every reasonable facility to exercise their rights. 'Careful consideration must . . . be given to a decision compelling [production of Cabinet documents and deliberations] and such an order should not be made unless the interests of justice clearly demand that this be done. The Judiciary must exercise appropriate restraint in such cases, sensitive to the status . . . and integrity of the executive arm of government.'

[65] It would be setting a dangerous precedent to hold that all a litigant need do is ask for the information without demonstrating its relevance, that it is not available any other way and that without its production the person seeking it will suffer trial prejudice.’

39. The documents under items three, seven, nine and ten include documents in draft form by executive functionaries of the Namibian and German Governments. They relate to ongoing and unfinished intergovernmental negotiation on a matter concerning future relations between Namibia and Germany about the 1905 genocide and include draft texts subject to change and advice by the Attorney General which potentially involves the integrity of the executive’s operation. The applicants acknowledge that the documents under items seven and ten may be subject to negotiation but say it does not apply to the alleged adopted addendum referenced in the review record. The decision under review is the first respondent’s decision to note the joint declaration. The joint declaration is still a subject of government-to-government negotiation, albeit its implementation, and is thus not final. Balancing the interests set out in Attorney-General and Another v Gondwana Collection Ltd and Others, and considering the nature of the documents under items three, seven, nine and ten, their importance and sensitivity and that of the joint declaration, it cannot be said that justice clearly demands a disclosure order. Under those circumstances, the court heeds the Sarfu warning and exercises restraint not to order disclosure.

40. Item two remains. A meeting is not a document that can be produced. Item two is refused for not being reasonably identified.

41. Having made the findings above, it is unnecessary to deal with the issue of attorney-client privilege.

42. The respondents seek costs of one instructing and two instructed legal practitioners, where employed, uncapped by rule 32(11).

43. In the respondents’ legal practitioners’ own words, the applicants’ heads of argument run over 50 pages on a simple discovery matter. The matter is not complex, and the costs of two instructed legal practitioners are not warranted by its level of complexity.

44. The documents under the interlocutory application are, however, voluminous, and something must be said about that. Under the notice of motion, ten items were sought to be made available. The founding affidavit consists of 44 pages, excluding the annexures thereto. Only seven of those 44 pages contain matter relevant to the interlocutory application, while the ten items listed in the notice of motion are quoted twice in those seven pages. No doubt, the founding papers could have been streamlined. The respondents attempted to bring the application back to its core with an answering affidavit of 12 pages, excluding the annexures, by limiting their answers to the matter relevant to the interlocutory application. Their effort was met with a replying affidavit of 20 pages riddled with argumentative statements, which have no place in affidavits. Affidavits must set out facts, not arguments. The applicants’ heads of argument did not assist in delineating the issues. It consists of 50 pages. The respondents had cause for their complaint and prayer that rule 32(11) should not apply. In exercising its discretion, those facts and circumstances are considered in the adverse cost order against the applicant being the unsuccessful party to the interlocutory application, and the court finds that rule 32(11) should not apply.

Conclusion

45. In conclusion, it is ordered that:

1. The application under INT-HC-COMP-2024/00503 is dismissed.

2. The applicants must pay the respondents’ costs occasioned by the application under INT-HC-COMP-2024/00503 jointly and severally, the one paying the others to be absolved, including the costs of one instructing and one instructed legal practitioner, uncapped under rule 32(11).

3. The application under INT-HC-COMP-2024/00503 is finalised and removed from the roll.

4. The period provided for in rule 76(9) runs from the date of this order, followed by the periods provided for in rules 77(1)(b) and (2), read with rule 66(2).

5. The parties must deliver a joint case management report on or before 16 January 2025 instead of 10 October 2024 as ordered in paragraph 9 of the court order dated 15 July 2024.

6. The matter under HC-MD-CIV-ACT-CON-2023/03285 is postponed to 22 January 2025 at 08:30 for a case management conference, and the case management conference scheduled for 16 October 2024 under paragraph 10 of the court order dated 15 July 2024 is replaced accordingly.

7. If deadlines are not met or the matter stalls for any reason, the parties must forthwith request the managing judge to schedule a status hearing under rule 27(1) and simultaneously ensure that the request is brought to the managing judge’s attention and, in such event, the parties must, for the time being, take whatever steps required by law, failing which sanctions may be imposed against them, and they must further take steps to avoid the matter from stalling.

__________________

B DE JAGER

Judge

APPEARANCES
APPLICANTS:	P Kauta Of Dr Weder, Kauta & Hoveka Inc., Windhoek
RESPONDENTS:	S Namandje (with him J Ncube) Instructed by Government Attorney, Windhoek