17

Background

[8] During May 2022, the respondents applied for permanent residence permits (PRP) in Namibia. On 5 July 2022, the first applicant rejected the application on the basis that there was no proof of sufficient fixed assets in Namibia. The second decision was made on 25 October 2022 and the application for reconsideration (appeal) of the respondents was said to be premature and no proof of a title deed was attached to the appeal.

[9] During November 2023, the respondents instituted review proceedings against the applicants in respect of both decisions and no relief was sought against the second applicant. Judgment was granted in favour of the respondents on 5 December 2024, and no relief was granted against the second applicant.

[10] On 3 January 2025, an appeal was noted against the judgment in the Supreme Court of Namibia, and on 13 March 2025, the applicants were notified that the appeal had lapsed, because the record was not filed within the prescribed time.

[11] On March 18, 2025, the respondents’ legal practitioner demanded compliance with the judgment of December 5, 2025, within 30 days and an undertaking within 5 days that there would be compliance with the order.

[12] On 27 March 2025, a second demand was made for compliance with the judgment.

[13] This led to the bringing of this urgent application.

Applicants case

[14] The applicants contend that the urgent application is necessitated by the fact that lodging a condonation and reinstatement of the appeal application in the Supreme Court, does not resuscitate the appeal for purposes of rule 121(2) of the rules of this court. They contend that if the matter is not heard as urgent, the respondents may proceed to execute the order against the wrong functionary based on the two demands already made. Thus, substantial redress will not be possible in the normal course. They opine that the only way to stay the execution of the judgment would be to seek interim relief in the form of an interlocutory interdict, which requires the applicants to prove that the condonation and reinstatement application has reasonable prospects of success. The applicants applied for condonation and reinstatement of the appeal with the Supreme Court on 26 March 2025.

[15] The applicants conceded that their explanation for the default in timely filing the record of appeal is inexcusable because the legal practitioner misread the rules of the Supreme Court and miscalculated the days from 3 January 2025, when the Notice of appeal was filed, instead of 4 December 2024, when the judgment was delivered.

[16] However, they argue that this failure is not dispositive of the application as the Supreme Court may consider the prospects of success on the merits of legality issues and broader public interest.

[17] The applicant puts forward the following prospects of success in terms of the Immigration Control Act 7 of 1993 (the Act):

1. In terms of Section 26 (3) of the Act:

‘The board may authorize the issue of a permit to enter and to be in Namibia for permanent residence therein to the applicant and make the authorization subject to any condition the board may deem appropriate...’ (my emphasis)

2. Section 26 (4) ‘When the board has authorized the issue of a permanent residence permit, the Chief of Immigration shall issue such permit in the prescribed form to the applicant concerned.’ (my emphasis)

3. The board is a creature of statute and may only lawfully exercise the powers conferred on it by the Act, and as such, it cannot issue Permanent Residence Permits to anyone.

[18] The applicants argue that the decisions of the applicants were resisted by the respondents, in their review application, on the basis that the board misconstrued Section 26 (3) (d) of the Act, in that there was no requirement for proof of sufficient fixed assets in Namibia.

[19] In the review application, the Respondents averred that they refused the application on the basis that, and I quote from the answering affidavit, ‘20. I respectfully submit that the board consider the applications based on what is stipulated in the applicant’s motivational letter and the proof attached. The applicants did not make any mention of the fact that Harmony Mountain Village owns any property. The Board merely received an uncertified copy of share certified, attached as Annexure “A3” and a memorandum agreement of sale of shares, attached as Annexure “A4”, hence the Board requested for the title deed in its resolution dated 25 October 2022, see attached Annexure ‘A5”. 21. The contents therein are denied and in amplification, I submit that the applicants did not make mention of this property in either their motivational letters submitted in support of their application for permanent resident permits, nor did they attach any proof of rental income thereof. The board considers the applications based on any proof of rental income thereof. The Board considers applications based on what is stipulated in the applicant’s motivational letter and what is attached on the application which serves as proof. None of which were provided by the applicants.’

[20] The applicants contend that the court erred in concluding that it came to this conclusion because it did not consider their opposition in terms of paragraph 20 above and instead found that proof of sufficient fixed assets in Namibia is not a prescribed, objectively determinable fact contained in section 26(3)(d). The applicant contends that they did not want to read into section 26(3) ‘additional restraint threshold factors’ but instead avers that the respondents failed to provide proof of the assets they claimed to have and that such proof should have existed when the application was considered.

[21] The applicants stated that s 26(3), despite setting out the presence of certain factors, cannot be considered a ‘tick box’ exercise as it would interfere with the discretion the Board has to exercise in considering applications of this nature. Counsel for the applicants went to the extreme to emphasize this point by stating that if a terrorist ticks all the boxes, does it then mean that he automatically qualifies for a permanent residence permit? The applicants contend that they seek to protect its rights to exercise the discretion afforded by the Act. Thus, it was concluded that the appeal is premised on serious legal questions.

[22] In respect of the second decision, the applicants relied on section 26 (7) which stipulates that: ‘(a) If the board rejects an application submitted to it in terms of subsection (2), the board shall not be obliged to reconsider such application, and the board shall not consider another such application by the same person before the expiration of a period of not less than six months from the date on which the said person was informed of the decision of the board…’ (my emphasis)

[23] Thus, it is alleged that the Board could not consider the appeal as the date of the first decision, 5 July 2022, required 6 months to elapse before reconsidering their decision.

[24] The first applicant avers that it seeks to protect its right not to be compelled to perform a statutory power vested in the second applicant by the statute, against whom no order was made. It further alleges that the second decision reviewed and set aside raises a legal issue, as the legislature intended to preclude a reconsideration for a permanent residence unless the prescribed period has passed.

[25] The applicants, in conclusion, stated that irreparable harm will be suffered to the rule of law should it be allowed that a functionary be compelled to perform an act which the law has granted powers to another functionary to perform. The first applicant does not have the power to issue permanent residence permits in law, as that power lies with the second applicant.

Respondents’ case

[26] The respondents oppose the application on the following grounds:

1. The applicants failed to show real and substantial justice that requires a stay of execution. Here, reliance is placed on the Menzies Aviation v Namibia Airports Company case¹, where the court stated: ‘[42] Stay or suspension of execution is an order that the court a quo grants in the exercise of its discretion. For this to be done, it must be shown that real and substantial justice requires such a stay….’

2. The applicants conceded that their reasons for the default for their non-compliance with the rules of the Supreme Court are inexcusable. The respondents opine that this is the end of the applicants’ case.

3. The respondents, relying on S v Boesak², state that they are entitled to defend the court order on any other basis raised in the High Court and not decided by Parker AJ, and their failure to do so is fatal.

[27] The respondents further allege that the applicants’ lapsed appeal has no prospects of success because the condition imposed in terms of Section 26(3) of the Act was ultra vires. Thus, the court's finding in this regard is unassailable.

[28] The Respondents further oppose the application on the basis that the judgment of the 4^th of December 2024 was correct in that the first applicant’s Board:

1. Introduced words in section 26(3)(d) when it required proof of title deed or fixed property and acted ultra vires.

2. Took into account extraneous matters and failed to apply its mind by not considering factors it ought to consider.

3. Rejected the respondents’ application based on the requirement in section 26(3) (d) only.

[29] They further allege that the court order is read out of context, as they complied with all the requirements in Section 26 (3)(d) of the Act and should be granted the permanent residence permits. Thus, the first respondent states, and I quote³, that: ‘the order should be read simply to mean that in accordance with the Act the first applicant must authorize the second applicant to issue and grant the permanent residence permits. There is nothing unlawful about the order.’

[30] In reply, the applicants alleged that nothing of factual relevance is challenged. In respect of the opposition by the respondents that an interim interdict is the wrong remedy, applicants rely on Agricultural Bank v Goliath⁴, to dispose of it, where Smuts JA held at Pg 5 para 12 that:

‘The late filing of a notice of appeal even if accompanied by a condonation application cannot suspend execution. A party in those circumstances seeking to appeal would not be remediless and would be at liberty to seek an interim interdict to suspend execution pending the hearing of an application for condonation for the late filing of the notice of appeal but would be saddled with the onus of establishing prospects of success both on appeal and in respect of the condonation application in order to succeed with such an interlocutory interdict.’ (my emphasis)

[31] This case debunks respondents' contention regarding the relief sought by the applicants, that is, the interim interdict.

Determination

[32] Judge Ueitele J in the Menzies⁵ judgment in the High Court stated that:

‘[22] Real and substantial justice is a concept that defies precise definition, rather like ‘good cause’ or substantial reason’. It is for the court to decide on the facts of each given case whether considerations of real and substantial justice are sufficiently engaged to warrant suspending the execution of a judgment, if they are, on what terms any suspension it might be persuaded to allow should be granted.

[23] In Janse van Rensburg v Obiang and Another⁶ the court reasoned (and I agree with that reasoning) that a court will grant a stay of execution where the underlying causa of the judgment in question is being disputed or no longer exists, or when an attempt is made to use the machinery of execution for ulterior or improper purposes. A litigant with an enforceable judgment is entitled to payment, and only in rare cases would be delayed in that process. It thus follows that even where the causa of a claim is undisputed, a court may still grant a stay where otherwise an injustice will be done. This will be the case, where the possibility exist that the order on which the execution is predicated, may be expunged.’

[33] He further sets out the test a court can apply when exercising its discretion to stay an execution:

‘[20] The principles generally applied by a court in exercising its discretion to stay an execution, was neatly summarised by Waglay J, in Gois t/a Shakespeare's Pub v Van Zyl and Others⁷ as follows:

‘The general principles for the granting of a stay in execution may therefore be summarised as follows:

1. A court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result.

2. The court will be guided by considering the factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice.

3. The court must be satisfied that:

1. the applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondent(s); and

2. irreparable harm will result if execution is not stayed and the applicant ultimately succeeds in establishing a clear right.

4. Irreparable harm will invariably result if there is a possibility that the underlying causa may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties.

5. The court is not concerned with the merits of the underlying dispute - the sole enquiry is simply whether the causa is in dispute.’⁸

[34] The applicants relied on the abovementioned case, despite resistance from the respondents’ counsel that the appeal against this judgment in the Supreme Court was successful. Counsel for the applicants insisted that the principles laid out in the High Court were not set aside, as Judge Ueitele was merely restating the law and was not overruled. I agree with this position.

[35] In applying the above test to their case, the applicants opined that they face irreparable harm if the underlying causa, the appeal, is removed and contend that the prospects of success and the veracity of their explanation are sufficient to make out a case for the relief sought. They aver that it would be appropriate to grant the interim interdict because of the appeal. Thus, a stay should be given without enquiring into the disputed facts.

[36] In considering the prospects of success, the court should consider public importance and the legality of the order made by the court on 5 December 2024. It is a common cause that, in terms of the Act, the mandatory power to issue the permanent residence permits lies with the Chief of immigration, and it is upon the Board of the first respondent to authorize the issuance of the permanent residence permit. Thus, each functionary has a role to play in terms of the Act.

[37] Counsel for the respondents insists that a broader interpretation should be adopted to contextualize the order made by the court to read as saying that the Board must authorise the issuance of the permanent residence permits of the respondents, and the Chief of Immigration should be instructed to issue the permits.

[38] In Counsel’s request for a broader interpretation, one can surely deduce that if the ordinary meaning is given to the words in the order of 5 December 2024, the logical conclusion is that the functionary, that is the Board, is ordered to issue the permanent residence permits in accordance with the law. Now herein lies the problem, in terms of the law, if the ordinary grammatical meaning is given to the way the legislation is written in s 26 (3) and (4), the Board may authorize the issuance of the permanent residence permits however, the Chief Immigration shall issue the permanent residents permits. (my emphasis) Hence, it is phrased in a mandatory manner, and I see no room for an interpretation other than a strict one to effect the legislature's intention.

[39] In the Supreme court case of Torbitt & Others v The International University of Management⁹, the court referred to helpful guides to enable a court to arrive at the real intention of the Legislature, ‘The word shall when used in statutes is rather to be considered as peremptory unless there are other circumstances which negative this construction’. Thus, I am convinced that I should consider the issuance of the permanent residence permits by the second applicant as peremptory.

[40] The functionary entrusted to issue the permits is not the Board; hence, this raises a legal issue that speaks to the prospects of success raised by the applicants. Further to that, this court cannot accept that it has the power to interfere in exercising a functionary’s discretion as it is exercised judiciously, and this court cannot conclude based on the evidence presented to it that the discretion was not judiciously exercised.

[41] Hence, I return to the order sought, which is an interim interdict, and I am called upon to have regard to whether real and substantial justice requires the stay of execution of the order or whether an injustice shall occur should it be executed. Based on the evidence and submission made, I am convinced that irreparable harm shall be caused if the wrong functionary is ordered to carry out a function in the sole mandate of another in terms of the Act, as this shall not be in the public interest and shall accordingly lead to an injustice.

[42] The appeal may ultimately remove the underlying causa, the subject matter of an ongoing dispute between the parties. As such I find that the applicants have made out a case for an interim interdict to be granted to stay the execution of the order of this honourable court issued on 5 December 2024 under case no: HC-MD-CIV-MOT-REV-2023/00532 in terms of which the first applicant was ordered to issue the respondents with permanent residence permits.

[43] Regarding costs, I do not deem it appropriate to grant costs against the respondents in this case. The explanation for why the appeal lapsed is lacklustre, and this application was necessitated by that failure. Thus, it is reason enough to divert from the default position that costs should follow suit. The applicants came to this court for an indulgence, so it is only fair for the respondents not to be burdened with costs.

[44] I thus make the following order:

1. The applicants' non-compliance with the forms and service provided for in the rules of this court, and having the matter enrolled and heard as one of urgency in terms of rule 73(3), is hereby condoned.

2. The first and second respondents are temporarily interdicted from putting into operation and/or executing the order of this Court issued on 05 December 2024 (judgment released on 06 December 2024) under case HC-MD-CIV-MOT-REV-2023/00532 in terms of which the first applicant was ordered to issue the respondents with permanent residence permits, pending:

1. determination of the applicants' condonation and reinstatement application in the Supreme Court of Namibia under case SA 1/2025; and if granted –

2. finalization of the applicants' appeal under case SA 1/2025

3. The applicants must pay the respondents costs.

___________________

AN HANS-KAUMBI

Acting Judge

APPEARANCES

APPLICANTS: J Diedricks (With him Ms W Chinsembu), Government Attorneys, Windhoek

FIRST AND SECOND RESPONDENT: S Namandje (With him S Amoomo)

Of Sisa Namandje & Co. Inc

Windhoek