REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
JUDGMENT
Case no: HC-NLD-CIV-MOT-REV-2023/00032
In the matter between:
JOSEF HASHONDALI MWAHAFA APPLICANT
and
MINISTER OF HOME AFFAIRS, IMMIGRATION,
SAFETY & SECURITY 1ST RESPONDENT
INSPECTOR-GENERAL OF THE NAMIBIAN POLICE 2ND RESPONDENT
Neutral citation: Mwahafa v Minister of Home Affairs, Immigration, Safety & Security (HC-NLD-CIV-MOT-REV-2023/00032) [2025] NAHCNLD 11 (27 January 2025)
Coram: MUNSU J
Heard: 01 August 2024
Delivered: 27 January 2025
Flynote: Review – Applicant seeking to review the decisions of the respondents to discharge him from the Namibian police force – Decisions fair and reasonable.
Summary: The applicant had been a member of the Namibian Police Force for several years. He was charged and convicted of a criminal offence of contravening s 16 of the Combating of Domestic Violence Act, 4 of 2003 – breach of protection order. The Inspector-General convened a Board of Enquiry to determine his fitness to remain a member of the Namibian Police Force. The evidence led at the Board of Enquiry revealed that the applicant had previously been found guilty of assault common and assault by threat. The Board of Enquiry found that the applicant was fit to remain in the Force but recommended a final written warning. The Inspector-General deviated from the recommendation and discharged the applicant from the Force. The applicant appealed to the Minister against the Inspector-General’s decision as he was entitled to do. The Minister dismissed the appeal and confirmed the applicant’s discharge.
The applicant then brought this review application challenging the lawfulness of the decision of the Inspector-General and the Minister on several grounds.
Held, that the applicant’s conduct was expected to be beyond reproach. He was required to uphold the law and maintain a high degree of responsibility and integrity required by his profession.
Held, that, with his convictions, the applicant violated several provisions of the code of conduct and made himself unfit to remain in the Force.
Held, that the decision of the Inspector-General and the Minister were fair and reasonable.
______________________________________________________________________
ORDER
______________________________________________________________________
The application is dismissed with costs.
The matter is removed from the roll: Case finalised.
_____________________________________________________________________
JUDGMENT
______________________________________________________________________
MUNSU J
Introduction
[1] The applicant, Mr Josef Mwahafa seeks to review the decisions of the respondents, dismissing him from the Namibian Police Force. He further prays for his reinstatement to his previous position in the Namibian Police Force, with the payment of his salary and benefits from the date of dismissal to the date of reinstatement.
[2] The application is opposed by the respondents.
The applicant’s case
[3] In his founding affidavit, the applicant states that on 01 April 2010, he was appointed by the second respondent (Inspector-General) to the Namibian Police Force, holding the rank of Cadet Constable. Soon thereafter, he attended police basic training for six months at Josef Kaundu Training Centre in Gobabis. After the basic police training, he was deployed at the Emergency Response Unit in Windhoek. On 01 January 2015, he was transferred to the Ondangwa Emergency Response Unit, holding the rank of Constable.
[4] The applicant avers that during November 2019, at Karibib, he was arrested by the Namibian police on two charges, namely, assault by threat and ‘breach of protection order’ in contravention of the provisions of the Combating of Domestic Violence Act, 4 of 2003. He appeared in the Karibib Magistrate’s Court.
[5] He further states that on 09 June 2020, the Karibib Magistrate’s Court acquitted him on the charge of assault by threat, but convicted him on the charge of ‘breach of protection order’. He was sentenced to a fine of N$ 8 000 or two (2) years imprisonment. He paid the fine.
[6] In addition, the applicant avers that pursuant to his conviction, the Inspector-General instructed the Regional Commander for Oshana Region to convene a Board of Enquiry in terms of s 8(1) of the Police Act, 19 of 1990 (the Act). The purpose of the enquiry was to determine his fitness to remain a member of the Namibian Police Force. He states that the Regional Commander appointed Inspector Iimbili to preside over the Board of Enquiry as chairperson. The aforesaid enquiry was held on 22 October 2020 at Oshana Regional Police Headquarters.
[7] The applicant continues by saying that on 22 October 2020, at the conclusion of the enquiry, the chairperson of the enquiry recommended to the Inspector-General that the applicant must be given a final written warning as he was still fit to remain a member of the police force.
[8] Furthermore, the applicant states that on 17 November 2020, the Inspector-General disregarded the recommendation made by the chairperson, and discharged the applicant from the Namibian Police Force. He adds that the Inspector-General discharged him without affording him an opportunity to be heard.
[9] The applicant goes on to say that on 04 December 2020, he noted an appeal, through his lawyers to the first respondent (the Minister) against the Inspector-General’s decision to discharge him. He claims that on 04 July 2022, his erstwhile legal representative enquired from the office of the Minister regarding the outcome of his appeal. He avers that on 07 September 2022, the Inspector-General addressed a letter to his erstwhile legal practitioners indicating that the appeal was finalised by the Minister on 18 June 2022 and annexed a copy of the letter from the Minister.
[10] The applicant claims that he only gained knowledge of the Minister’s decision on 07 September 2022 through the letter of the Inspector-General. He goes on to state that on 02 August 2023 he gave notice of his intention to institute legal proceedings against the Namibian Police Force in terms of s 39(1) of the Act.
[11] The applicant seeks to review the decisions of the respondents on the following grounds:
The jurisdictional requirement to invoke s 8(1) Board of Enquiry is that a member must be convicted of a schedule 1 offence. In this case, the applicant was not convicted of an offence listed under schedule 1 of the Act.
The Inspector-General deviated from the recommendations made by the chairperson of the Board of Enquiry that the applicant should be given a final written warning, but instead opted to discharge him from the police force without affording him an opportunity to be heard.
The sanction of discharge is disproportionate to the gravity of the offence on which he was convicted.
The Minister failed to exercise his statutory power to consider or adjudicate the applicant’s appeal and merely rubberstamped the decision of the Inspector-General.
The Minister erred in law and/or on the facts by failing to find that the Inspector-General acted unlawfully by interfering or deviating from the recommendations of the Board of Enquiry that he was fit to remain a member of the Namibian Police Force and not discharge him from the force. In terms of the Act and Regulations made thereunder, the Inspector-General does not have such powers. Alternatively, the deviation was made without affording the applicant an opportunity to be heard.
The Minister erred in law and/or on the facts by failing to find that s 18(4) of the Act is not applicable to Boards of Enquiry proceedings, thus it was wrong for the Inspector-General to subject the proceedings of the Board of Enquiry to a review in terms of s 18(4) of the Act.
The Minister erred in law and/or on the facts by failing to find that the decision of the Inspector-General to discharge the applicant was defective in that on 18 November 2020, the Inspector-General first made a decision upholding the recommendations of the chairperson of the Board of Enquiry, but later on the same date revisited his decision and discharged the applicant from the Namibian Police Force.
The respondents’ case
[12] The Minister deposed to the answering affidavit on behalf of the respondents. He firstly raises a point in limine of prescription in terms of s 8(2) and s 39(1) of the Act.
[13] He states that in terms of s 8 of the Act and Regulation 13(1), the applicant had fourteen (14) days from 20 November 2020 to launch his appeal against his discharge of 17 November 2020. Such 14 days began to run from 20 November 2020 to 04 December 2020. However, the applicant only submitted his appeal against his discharge on 07 December 2020, three (3) days out of the prescribed period. In his appeal, the applicant did not file any condonation application for the late noting of his appeal. Therefore, the period for the applicant to have launched his appeal had lapsed and or prescribed. Thus, this application stands to be dismissed with costs.
[14] The Minister states that in terms of s 39(1) of the Act, any civil proceedings against the State or any person in respect of anything done in pursuance of the Act must be instituted within 12 months after the cause of action, and notice in writing of any such proceedings must be given to the defendant not less than 1 month before it is instituted, provided that the Minister may at any time waive compliance with the provisions of this subsection.
[15] He further states that he dealt with the applicant’s ‘prescribed’ appeal filed out of time, and dismissed it on 18 June 2021, on which date he confirmed the decision of the Inspector-General.
[16] He goes on to say that his reasons for dismissing the appeal and confirming the decision of the Inspector-General was because the applicant’s grounds of appeal were not reasonable and did not warrant the setting aside of his discharge.
[17] He claims that the applicant’s cause of action arose during June 2021 when his appeal was dismissed, and the applicant had to institute the proceedings within 12 months after the cause of action arose. He adds that the applicant only gave the statutory 1 month notice to the respondents on 02 August 2023 and proceeded to institute these proceedings on 06 September 2023, some 24 months after the cause of action. The Minister states that he has not waived the non-compliance with s 39(1) of the Act. Thus, the applicant does not have a claim against the respondents as such claim has prescribed in terms of s 39(1).
[18] The Minister goes on to say that in terms of s 13 of the Act, the applicant’s duties and functions as a police officer were:
The preservation of the internal security of Namibia;
The maintenance of law and order;
The investigation of any offence or alleged offence;
The prevention of crime, and
The protection of life and property.
[19] Additionally, in terms of the Code of Conduct for Police Officers, the applicant was expected, in terms of:
Article 7 – respect and uphold the rule of law and the code of conduct.
Article 10 – at all times fulfill the duties imposed upon him by law in a manner consistent with the high degree of responsibility and integrity required by his profession.
Article 11 – ensure that he treats all persons in a courteous manner and that his conduct is exemplary and consistent with the demands of the profession and the public he was expected to serve.
[20] The Minister confirms that the applicant was found guilty on a charge of ‘breach of protection order’ read with the provisions of the Combating of Domestic Violence Act, 4 of 2003, and was sentenced to a fine of N$ 8 000 or two (2) years imprisonment.
[21] Furthermore, the Minister states that the applicant was then charged for misconduct by the Inspector-General in terms of s 18(1) of the Act. He adds that the applicant’s criminal conviction was used against him in line with ss 4, 5 and 6 of the Act.
[22] Additionally, the Minister states that Clause C.4.B of the Police Administration Manual Chapter 11 stipulates that a member shall be considered for discharge if convicted for an offence stipulated within the provisions of the Combating of Domestic Violence Act, 4 of 2003.
[23] The Minister goes on to say that upon the conclusion of the disciplinary hearing against the applicant, the chairperson of the disciplinary proceedings recommended that the applicant be given a final written warning. However, in terms of s 18(4) of the Act, the Inspector-General has the statutory power to either:
Confirm, alter, or quash the conviction;
Confirm, set aside, or alter the punishment imposed, which may include the increase of any penalty imposed.
[24] The Minister states that the Inspector-General exercised his statutory powers in terms of s 18(4) and (7) of the Act read with Regulation 12(10) and decided to set aside the decision of the chairperson of the disciplinary proceedings and proceeded to discharge the applicant.
[25] The Minister claims that the reason for the discharge was that the applicant had transgressed many regulations listed in the Code of Conduct, Police Regulations and the Act. Another reason for the discharge of the applicant was that the Namibian Police Force does not tolerate or condone gender based violence from its officers.
[26] Furthermore, the Minister avers that on account of having been found guilty of an offence in terms of the Combating of Domestic Violence Act, the applicant was found unfit to remain in the force or to retain his rank.
Submissions by the parties
[27] Mr Matheus for the applicant submitted that there was no indication that the Minister had considered the appeal as only a letter was provided. Therefore there is no explanation from the decision maker, and on that basis alone, the court ought to find in favour of the applicant.
[28] Counsel further contended that the Inspector-General was not entitled to deviate from the recommendations made by the chairperson of the Board of Enquiry. Furthermore, counsel stressed that the Inspector-General did not grant audi to the applicant before he departed from the recommendation of the Board of Enquiry. Counsel contended that the applicant was entitled to make representations in the event of an adverse decision.
[29] It was counsel’s submission that the Board of Enquiry was wrongly invoked as the applicant was never convicted of a schedule 1 offence. Additionally, counsel pointed out that s 18 of the Act does not find application in the matter.
[30] Regarding the point in limine of prescription, Mr. Matheus argued that the Minister considered the appeal notwithstanding the respondents’ claim that it was filed out of time. Counsel further contended that as these proceedings were instituted within a year of becoming aware of the outcome of the appeal, the applicant’s claim had not prescribed.
[31] Mr Ilovu for the respondents submitted that the Inspector-General is not bound by the decision of the Board of Enquiry. Additionally, he contended that the Minister does not hear appeals in a manner akin to court proceedings.
[32] Counsel pointed out that prior to his subsequent conviction for "breach of protection order," the applicant had been found guilty of assault common and assault by threat. He maintained that the applicant has shown that he is not suitable to remain a member of the force, regardless of whether the offences he was convicted for are not schedule 1 offences. Counsel emphasised that the applicant was the one committing crime when he was expected to uphold the law and prevent crime.
Discussion
[33] Despite the respondents’ contention that the applicant filed his appeal out of time, the Minister, nonetheless proceeded to determine it. The question of whether he was entitled to consider the appeal under the circumstances, did not arise, and is left open. Therefore, the late filing of the applicant's appeal to the Minister cannot be used as a ground for dismissing this application.
[34] Similarly, although the respondents maintained that the Minister dismissed the applicant’s appeal on 18 June 2020, they could not show that they notified the applicant of the decision prior to 07 September 2022, when the Inspector-General addressed a letter to the applicant’s erstwhile legal practitioners communicating the outcome of the appeal and attaching a letter from the Minister. Accordingly, the respondents’ points in limine must be dismissed.
[35] The applicant quite correctly submitted that the respondents conflated the application of s 8 and s 18 of the Act. It was so submitted partly because the proceedings were subjected to a review similar to proceedings conducted under s 18 of the Act. However, there can be no doubt that the Board of Enquiry was convened pursuant to s 8(1) of Act. The Convening Order issued by the Inspector-General and all the other relevant documents expressly referred to the section. This is how the Board of Enquiry was convened.1 In any event, there was no question that the decision taken to discharge the applicant was that of the Inspector-General.
[36] Section 8 of the Act provides:
‘Discharge or reduction in rank of members on account of inefficiency
8. (1) A member may be discharged from the Force or reduced in rank by the Inspector-General if, after enquiry by a board of enquiry in the prescribed manner as to his or her fitness to remain in the Force or to retain his or her rank, the Inspector-General is of the opinion that he or she is incapable of performing his or her duties efficiently: Provided that if a member is still serving his or her probation period in terms of section 4 such a prior enquiry shall not be required, but such member shall be afforded an opportunity to be heard prior to any discharge.’
[37] The applicant could not refer to any provision of the Act or Regulations which stipulate that a board of enquiry may only be convened when a member is convicted of a schedule 1 offence. He sought to rely on Chapter 11, clause C.C3 of the Police Administration Manual for that contention. However, the said provision reads as follows:
‘C.3. When a member is convicted of a schedule 1 offence of the Police Act, 1990, the discharged from the Namibian Police shall be considered after a Board of Inquiry has been held.’
And Clause C.5 provides:
‘C.5. In case of a conviction of a lesser offence, like common assault, a discharge shall be seriously considered unless mitigating circumstances can be proven by the convicted member.’
[38] In some cases, members of the Force were subjected to the Board of Enquiry despite not having been found guilty of any crime.2
[39] It is common cause that the applicant was not convicted of a schedule 1 offence. In terms of s 8(1) of the Act, the Inspector-General has the power to discharge a member, if after an enquiry by the Board of Enquiry, he is of the opinion that a member is incapable of performing his or her duties efficiently. Where a member is still serving his or her probation period in terms of s 4, such an enquiry shall not be required, but such member shall be afforded an opportunity to be heard prior to any discharge.
[40] It seems to me that a conviction for a schedule 1 offence is not a requirement for a discharge in terms of s 8(1) of the Act. Similarly, it appears that s 8(1) of the Act does not require the Inspector-General to hold a hearing for members who undergo a board of inquiry. Only members who are still on probation and for whom a Board of Enquiry is not necessary may be given an Audience by the Inspector-General.3 In Immanuel v Minister of Home Affairs and Others4 the court held that:
‘[47] It is at the s8(1) enquiry, not before I.G., that the facts and circumstances must be placed as to why a member found guilty of a criminal offence is not fit to remain on the Force, and why such member, in spite of the conviction, should not be discharged from the Force. Both the Force and the member bear an evidentiary onus.’
[41] Regulation 12 provides that:
‘(9) If the board of enquiry finds that the member is not fit to remain in the force or to retain his or her rank, the member may, within 14 days of the date on which he or she is informed of the finding, submit to the Inspector-General representations in writing regarding the Inspector-General’s power in relation to the steps which may be taken under subregulation (10).
(10) After consideration of the documents relating to the enquiry and any representations made in terms of subregulation (9), the Inspector-General may –
(a) decide not to take steps in the matter;
(b) reduce the member’s rank to the extent determined by the Inspector-General; or
(c) discharge the member from the Force.
(11) The Inspector-General must as soon as possible inform the member in writing of his or her decision and of the member’s right in terms of section 8(2) of the Act to appeal against the decision.’
[42] In casu, the Board of Enquiry did not find that the applicant was not fit to remain in the force. It is not stipulated in the Act or the Regulations that the Inspector-General may not deviate from the recommendation of the Board or Enquiry. Rather, it is evident that the authority that takes the decision is the Inspector-General, who must hold the opinion that a member is incapable of performing his or her duties efficiently. It seems to me that the Inspector-General is not bound by the recommendation of the Board of Enquiry.
[43] There is no prescribed format pertaining to the hearing of appeals by the Minister. In his letter dated 18 June 2021, the Minister was alive to the fact that he could set aside or confirm the decision of the Inspector-General. He further states that he gave the matter a careful consideration before he confirmed the decision of the Inspector-General. Thus, the contention that the Minister merely rubberstamped the decision of the Inspector-General, is without merit.
[44] In Haipa v Ministry of Home Affairs, Immigration, Safety and Security5, the Supreme Court stated the legal principles relating to review as follows:
‘[28] In review proceedings, a court has limited jurisdiction and supervises administrative action in appropriate cases on the basis of ‘gross irregularity’.6 There is no onus on the body whose conduct is the subject-matter of review to justify its conduct. The onus rests upon the applicant to satisfy the court that good grounds exist to review the conduct complained of.7 The rules relating to judicial proceedings do not necessarily apply to quasi-judicial proceedings.8 The body whose conduct is under review is entitled, subject to its own rules, to determine its own rules of procedure.9 The rules of natural justice do not require a domestic tribunal to apply technical rules of evidence observed in a court of law.10 On review, the court is concerned with irregularities or illegalities in the proceedings which may go to show that there has been a ‘failure of justice’. A mere possibility of prejudice not of a serious nature will not justify interference by a superior court.11
[29] What constitutes reasonable administrative conduct for the purpose of Article 18 of the Namibian Constitution will always be a contextual inquiry and will depend on the facts of each case. As O’Regan AJA, writing for a unanimous court, pointed out in Trustco Ltd v Deeds Registries Regulation Board,12
‘The concept of reasonableness has at its core, the idea that where many considerations are at play, there will often be more than one course of conduct that is acceptable. It is not for judges to impose the course of conduct they would have chosen. It is for judges to decide whether the course of conduct selected by the decision-maker is one of the courses of conduct within the range of reasonable courses of conduct available.’
[45] It is common cause that on 28 May 2017, the applicant was convicted on charges of assault common and assault by threat. He was sentenced to a fine of N$ 4 000 or two (2) years imprisonment.
[46] In addition to the above, on 09 June 2020, the applicant was again convicted of contravening s 16(1) of the Combating of Domestic Violence Act, 2003 – breach of protection order. He was sentenced to a fine of N$ 8 000 or two (2) years imprisonment.
[47] A Board of Enquiry was convened to look into the applicant’s fitness to remain in the Force as a result of his convictions of misconduct, unfitness to perform his duties properly, inability to perform his duties in an effective manner, improper or indecent behavior and/or conduct and any other facts or matters concerning him. Thus, it is not correct that the enquiry was only confined to his last criminal conviction. In the Immanuel matter13 the court observed that:
‘My reading of the Act is that an enquiry in terms of s8 (1) must be properly conducted so as to determine the issue whether a member is fit to remain on the Force and the I.G. must have a proper basis for forming the opinion that a member is not fit to remain on the Force. That issue cannot be predetermined by some administrative device or diktat which prevents the I.G. from looking at every individual case to determine if a member is unfit.’
[48] The officer who served him the convening order explained to him his rights in terms of the applicable regulation, and the date of the enquiry. Additionally, his rights to legal representation, cross-examination, disclosure, witnesses as well as to provide an explanation at the enquiry were explained to him. He indeed cross-examined the witnesses called. He was further provided with the code of conduct. In the end, he placed detailed mitigating factors.
[49] I can do no better than refer to what the court said in the Haipa matter:14
‘[45] The Inspector-General is under a statutory duty to regulate discipline and efficient functioning of the Police Force by ensuring that police officers are beyond reproach and serve the public with integrity. He must also ensure that the Police Force is not infiltrated by criminal elements to undermine its effectiveness and efficiency from within its ranks.’
[50] Clause C.4. of Chapter 11 of the Code of Conduct provides that:
‘C.4.The discharge of a member shall be considered if convicted for an offence of violence against women or children…’
[51] At all times the applicant’s conduct was expected to be beyond reproach. He was required to uphold the law and maintain a high degree of responsibility and integrity required by his profession. With his convictions, the applicant indeed violated several provisions of the code of conduct and made himself unfit to remain in the Force. One would have thought that the applicant would have learned from his first criminal conviction.
[52] The Inspector-General was in a position to make a decision from the proceedings of the Board of Enquiry, where the applicant presented his case, including his mitigating circumstances. The court finds that the decision of the Inspector-General and the Minister were fair and reasonable. Whatever shortcoming that may have occurred in the manner the respondents dealt with the matter, such were not of the type that would vitiate fairness and result in a failure of justice.
Costs
[53] The general rule is that costs follow the event. I find no reason why this rule should not be applied in this matter.
The order:
[54] For these reasons, I make the following order:
The application is dismissed with costs.
The matter is removed from the roll: Case finalised.
________________
D C MUNSU
JUDGE
APPEARANCES
APPLICANT: JL Matheus
Of Slogan Matheus & Associates Inc.
Ongwediva.
RESPONDENTS: N Ilovu
Of the Government Attorney
Windhoek.
1 See Haipa v Minister of Home Affairs, Immigration, Safety and Security (68/2024) [2024] NASC 43 (29 November 2024) at para 34.
2 See Haipa matter footnote 1 above.
3 See Immanuel v Minister of Home Affairs and Others (PA 315 of 2005) [2006] NAHC 30 (28 August 2006) at para 2 and para 42.
4 Ibid.
5 Haipa v Minister of Home Affairs, Immigration, Safety and Security (68/2024) [2024] NASC 43 (29 November 2024) at para 28.
6 National Transport Commission & another v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735E-G (Chetty’s case).
7 Davies v Chairman, Committee of the JSE 1991 (4) SA 43 (WLD) at 47H.
8 Chetty’s case at 734-735A.
9 National Union of Mineworkers & others v Government Mining Engineer & others 1990 (2) SA 638 (W) at 643H.
10 Meyer v Law Society, Transvaal 1978 (2) SA 209 (T) at 213A.
11 Jockey Club of South Africa & others v Feldman 1942 AD 340 at 359.
12 Trustco Ltd v Deeds Registries Regulation Board 2011 (2) NR 726 para 31.
13 See footnote 3.
14 See footnote 5.
Cited documents 4
Act 2
| 1. | Combating of Domestic Violence Act, 2003 | 391 citations |
| 2. | Police Act, 1990 | 247 citations |