Court name
Supreme Court
Case name
Schroeder and Another v Solomon and Others
Media neutral citation
[2010] NASC 11













REPORTABLE



CASE NO.: SCA 1/2007



IN THE SUPREME COURT
OF NAMIBIA







In the matter between:







FREDRICH WILLY
SCHROEDER FIRST APPLICANT



DEIDRE DAWN FAITH
SCHROEDER SECOND APPLICANT







and







DR LENNON E.
SOLOMON FIRST RESPONDENT



AND 48 OTHERS 2ND
TO 49THRESPONDENTS







Coram: MAINGA J.A, CHOMBA
A.J.A et MTAMBANENGWE A.J.A.







Heard on 28/06/2010



Delivered on: 14/09/2010











APPEAL JUDGMENT











MAINGA JA.:



[1] This is an
application sui generis (first of this kind) in that,
notwithstanding the settled law, i.e. the decisions of this Court are
final and the elucidatory directions in the judgment that brought
about this application the applicants seek in terms of Article 81 of
the Namibian Constitution, the rescission of a judgment of this Court
delivered on 26 October 2007. This raises the question, whether it
was competent for applicants to have brought this application in
terms of Article 81 of the Constitution of the Republic of Namibia?







[2] The application and
the accompanying founding affidavit are inelegantly drafted and I
find it prudent to try to recast the whole application as follows.







APPLICATION
IN TERMS OF ARTICLE 81 OF THE NAMIBIAN CONSTITUTION



KINDLY TAKE NOTICE that 1st
applicant/plaintiff herewith makes application to the Supreme Court
for rescission of judgement delivered by this Honourable Court on
26th October 2007, on the grounds that:




  1. The procedures followed in the
    hearing did not comply with the general practice entertained by the
    Honourable Court as well as that it did not comply with the
    observance of the rule of law.



  2. The said judgement was granted as a
    result of a mistake common to the parties.



  3. The Honourable court by virtue of
    Rule 5(4)(b) and Rule 11 should not have allowed the
    respondents/defendants except 29th respondents to
    participate in the hearing and the decision of the Honourable Court
    to the contrary was therefore unlawful.



  4. Article 81 of the Namibian
    Constitution provides for a reversal of a decision of this
    Honourable Court by itself.




The applicant/plaintiff furthermore
intends to apply for an order in the following terms:




  1. That a special dossier to be compiled
    by a referee as stipulated in Section 23 of the Supreme Court Act,
    1990.








KINDLY set down the matter to be heard
accordingly.







DATED at WINDHOEK on this day 1 day of
November 2007.







Signed



FREDRICH WILLY SCHROEDER”







AFFIDAVIT




  1. I the undersigned




Fredrich Willy Schroeder



hereby make an oath and say.




  1. The contents of this affidavit are
    true and correct and to my personal knowledge unless it is otherwise
    stated or the context otherwise indicates.



  2. I attach hereto a copy of a letter
    from the Registrar of the Supreme Court dated 22nd May
    2007 to ourselves and copied to the rest of the parties and I marked
    it ‘A’. See also pages 225 to 228 of the record
    filed by respondents with the Honourable Supreme Court.



  3. The heading reads, “Re:
    SUPREME COURT REVIEW:…



  4. Paragraph 5 thereof refers ourselves
    to Rule 11(1) and 11(2) pertaining to appeals.



  5. I attach hereto a copy of a letter
    from the Registrar of the Supreme Court dated 23rd July
    2007 to ourselves and copied to the rest of the parties and I mark
    it ‘B’. See pages 247 to 231 of the record filed
    by respondents with the Honourable Supreme Court.



  6. The heading reads, Re: SUPREME
    COURT APPEAL:
    FREDRICH WILLY SCHROEDER & ANOTHER v DR
    LENNON SOLOMON AND 47 OTHERS.
    ” (My underlining).



  7. Paragraph 1 reads, “The
    above-mentioned
    Supreme Court Appeal has been
    set down …”
    (My underlining).



  8. Paragraph 2 refers to ourselves and
    the parties Rules 11(1) and 11(2) of the Rules of the Supreme Court.



  9. Before this letter I was of the
    intention to prepare myself against the argument of respondents that
    the application for review was not competent.



  10. In fact, I already laid hold of legal
    works such as “LAW OF CIVIL PROCEDURE”, A J
    Visser, 2000, page 381 which contains the following statement:
    There is no procedure for review of a provincial or local
    division’s proceedings by the Supreme Court of Appeal. In
    similar circumstances the matter must be taken on appeal from such
    provincial or local division.”



  11. I attach hereto a copy of the said
    extract and mark it ‘C’.



  12. I further laid hold of literature
    which points out that it is internationally accepted that
    application for review is taken on appeal.



  13. Notwithstanding, the Honourable
    Supreme Court put an end itself to any argument on the above
    question as it declared it an appeal by itself thus pre-empting my
    research on the issue.



  14. Being an appeal, the respondents in
    the matter had to file power of attorney in terms of Rule 5(4)(b)
    which reads, “…, a power of attorney to oppose an
    appeal shall be lodged with the registrar by the respondent’s
    attorney when copies of respondent’s main heads of argument
    are lodged under rule 11.”



  15. Respondents’ attorneys (except
    one respondent’s attorney) did not lodge power of attorney.



  16. However, the Honourable Court ruled
    at the hearing contrary to its written pronouncements in Annexure
    ‘B’ that it was not an appeal and struck it from the
    Roll with costs.



  17. The said ruling came in the face of
    my presumption that the procedure was an appeal, a presumption
    substantiated in writing by the Honourable Court itself.



  18. I was therefore taken aback when this
    issue was once again placed in dispute in the actual hearing. The
    situation was thus one of not only ambush but I was actually misled
    by the clear pronouncement that this matter was an appeal.



  19. I believe that the patent error in
    the judgment might be due to human error by the Learned Judges and
    it is my submission that the judgement stand to be corrected in
    terms of inter alia Article 81 of the Namibian Constitution
    and Rule 44 of the rules of the High Court.



  20. Lastly, I respectfully wish to point
    out that literature used in my written submission that the Court
    largely determines its own rules in review, Constitutional and
    Administrative Law, Boulle, Harris, Hoexter, 1989, page 242,
    was
    published in 1982 before Section 16 of the Supreme Court Act of 1990
    was promulgated.








WHEREFORE, I respectfully ask the
Honourable Court to correct or vary its Order in accordance with its
own written pronouncements.







Signed at WINDHOEK on this day 1 day
of November 2007.







Signed



FREDRICH WILLY SCHROEDER”







[3] The history of this
application is briefly as follows: applicants had approached this
Court seeking an order to review and set aside two orders of the High
Court made in proceedings interlocutory to their main action against
the respondents in that court. After hearing arguments from the
applicants and the majority of the respondents represented by Ms
Vivier and Ms Schimming-Chase, the Court struck the application from
the roll with costs.







[4] The application was
struck from the roll,
inter
alia
,
for inadmissibility of the application to this Court given the
provisions of section 16 of the Supreme Court Act 1990
1
more so on the two of the
features the court found ascertainable from the provisions of the
section, namely, that this Court may on its own accord exercise
review jurisdiction whenever an irregularity in proceedings comes to
its notice or to the notice of anyone of its Judges irrespective of
whether the proceedings in question are subject to an appeal or are
otherwise before the Court and that the section does not give any
person the right to institute review proceedings in this Court as one
of first instance
2.







[5] The Court went on to
say,
section
16 makes it beyond doubt that this court has jurisdiction to review
proceedings of the High Court if they are tainted by an irregularity
and that the jurisdiction to do so does not, without more, give the
applicants cause to institute review proceedings under section 16 in
this Court as of right
3.







[6] The Court further
said:



The proviso to subsection
(2) expressly precludes such an assumption, and for good reason: It
would place an unbearable burden on the limited resources of the
Court and severely compromise its ability to dispense justice in an
equal, just and fair manner if everyone dissatisfied with the
fairness or reasonableness of judicial, quasi-judicial and
administrative judgements or decisions by courts, administrative
tribunals and other public authorities on account of alleged
irregularities could at will institute review-proceedings in this
Court – in the process bypassing all existing judicial
structures often better suited to deal with those matters in the
first instance
4.



A procedural irregularity
contemplated by the section becomes the subject of adjudication only
if and when the Court, of its own accord, decides to exercise its
jurisdiction to review it. In the absence of a decision to that
effect, the proceedings cannot be reviewed by this Court under s. 16.
In short, the decision of the Court to invoke its review jurisdiction
is a threshold requirement for the admissibility of any application
under the section to review and set aside or correct the impugned
proceedings.
5







[7] The Court went all
out to elucidate the provisions of Article 79 of the Constitution
which provides for the jurisdictional powers of this Court including
constitutional matters which this Court may hear as of first instance
i.e. referrals by the Attorney-General
6.
The Court found that the “review application” by
applicants was not such application before Court
7
and struck the
application from the roll.







[8] When the application
was called, we drew the attention of the applicants to the provisions
of section 17 of the Supreme Court Act; particularly the Court wanted
to know how they understood the provisions of the said section.
Section 17 provides:







17
Finality of decisions of Supreme Court



(1) There shall be no appeal from, or
review of, any judgment or order



made by the Supreme Court.



(2) The Supreme Court shall not be
bound by any judgment, ruling or order of any court which exercised
jurisdiction in Namibia prior to or after Independence.”







[9] It appeared as if
applicants were not aware of the provisions of section 17 above. That
prompted the Court to allow them to file written supplementary heads
of argument by 9 July 2010 on their understanding of that provision.
We nevertheless allowed the applicants to address the Court on the
heads of argument they had earlier on filed. After the first
applicant had looked at the provisions of sub-article 1 he retorted
to say that Article 81 was superior to the provisions of section 17
as if Article 81 and section 17 provided for the same subject matter.
He further read out from a piece of paper which the Court requested
him to hand-up which document summarised the heads of argument filed.
The document reads as follows:







My Lords,




  1. The first issue I wish to raise is
    that none of the respondents were before Court in the previous
    hearing and none of them are before Court today as I have shown in
    my heads of argument. I raise this issue as respondents have filed
    withdrawals as if they were before the Court. For me this issue is
    very important as the Court awarded costs to the respondents who
    were not before Court. I respectfully submit that the order was a
    nullity.



  2. As far as the competence of this
    application under Article 81 of the Constitution is concerned, I
    submit that it is competent on the following grounds:




    1. I at the beginning approached this
      Honourable Court on the basis that my right to a fair hearing in
      terms of Article 12 of the Constitution was violated in the High
      Court.



    2. Article 25(2) guarantees myself the
      right to approach a competent Court if my fundamental rights had
      been denied.



    3. When the Court refused to review the
      violation of my rights and dismissed my application it did not
      comply with the Constitution and I submit in that it made a
      mistake.



    4. Article 81 empowers the Court to
      correct its own judgments. It does not tell us how to do it and I
      assume that one can bring it on application or the Court may do it
      on own opinion.



    5. I submit that this Honourable Court
      is obligated to uphold fundamental rights.









I therefore submit that this
application is competent to correct a wrong judgment in which I was
denied to approach the Court to review the violation of my
Constitution rights and to get costs against myself on behalf of
persons who were not before the Court.”







[10] In the supplementary
written heads of argument on the provisions of section 17(1) it is
argued that the section only refers to appeals and reviews and that,
that is not related to their application for rescission of judgment
in terms of Article 81 of the Constitution. It is further argued that
the application in terms of Article 81 is exceptional in that this
Court ‘committed a patent error’ when they were put under
the impression that their review application was an appeal, only to
be confronted with review proceedings on the day the application was
heard and that ‘the rule of law will be vitally deficient if
there is no remedy for an obvious patent error made by this Court’
or ‘this Court is evading the scrutiny of its own judgment, and
ultimately if no sanction attaches to an obvious violation of
litigant’s fundamental right to a fair trial.’ They
further argue that the words ‘unless it is reversed by the
Supreme Court itself implies the existence of an authority (the
Supreme Court) that will scrutinise its own judgment should the rule
of law has been broken.’







[11] In the heads of
argument by the second applicant it is argued that their application
was a constitutional one in terms of Article 81 and the application
is for determining the meaning of the said Article and that a statute
(which I believe is section 17) cannot be used to interpret a
constitutional provision and that it can be done the other way round.







[12] With all due respect
to the applicants, had they properly read the judgment which struck
their “review application” from the roll, they would not
have brought this application to this Court. In that judgment the
Court elaborates the jurisdictional powers of this Court and
who
may approach this Court
as of first instance. There are only three categories of matters
sanctioned by the Constitution that may be heard by this Court
8,
namely, 1) appeals emanating from the High Court, which appeals
include appeals which involve the interpretation, implementation and
upholding of the Constitution, 2) matters referred by the
Attorney-General under the Constitution, 3) other matters as may be
authorised by Act of Parliament.
Article
79(4) further provides that, the jurisdiction of the Supreme Court
with regard to appeals shall be determined by Act of Parliament. The
Supreme Court Act
9
is such an Act. Section
16(1) and (2) of the said Act confers upon this Court the fourth
jurisdictional power in respect of review proceedings of the High
Court or any lower court or administrative tribunal or authority
constituted or established by or under any law
10.
The section provides how such powers may be exercised and the proviso
specifically prohibits any person instituting review proceedings in
this Court as of first instance. Matters that may be referred to this
Court by the Attorney-General under the Constitution are the only
matters of original jurisdiction this Court may hear, the rest are of
an appellate nature. The matters that maybe heard as of original
jurisdiction are also provided for in section 15 of the Supreme
Court
11,
which is headed, “Jurisdiction of Supreme Court as Court of
First Instance.” The section prescribes how the
Attorney-General may approach this Court. In sub-section 4 it
provides that the decision “by the Chief Justice or such other
judge, as the case may be” on such application by the
Attorney-General is final. This application which was brought
directly to this Court is not such application or matter contemplated
in Article 79(2) and section 15 of the Supreme Court Act. Even if it
was such an application it has to be in a form of a petition. For
that reason alone the question to be determined ought to be answered
in the negative.







[13] Section 17(1) which
first applicant concedes speaks in peremptory tones, makes it clear
without exceptions, ‘that there shall be no appeal from, or
review of, any judgment or order made by the Supreme Court.’ In
other words a judgment or an order of the Supreme Court is final,
which means it is not appealable or reviewable. Section 17 is headed
“Finality of the decisions of Supreme Court.” If there
were any exceptions to section 17 Parliament would have said so.







[14] Article 81 of the
Constitution is headed “Binding Decisions of the Supreme
Court.” The provision in whole reads as follows:







A decision
of the Supreme Court shall be binding on all other courts of Namibia
and all persons in Namibia unless it is reversed by the Supreme Court
itself, or is contradicted by an Act of Parliament lawfully enacted.”







[15] The Article requires
no interpretation, it is precise and unambiguous, no more can be
necessary than to understand the provision in its natural and
ordinary sense. It provides for the binding nature of the decisions
of the Supreme Court on all other courts, and all persons in Namibia,

I may add including the
Supreme Court itself, unless reversed by the Supreme Court itself or
contradicted by an Act of Parliament. In
Bloemfontein
Town Council v Richter
12,
Strafford JA stated that, ‘the ordinary rule is that this Court
is bound by its own decisions and, unless a decision “has been
arrived at on some manifest oversight or misunderstanding, that is,

there has been something
in the nature of a palpable mistake,
or
its attention was not drawn in the previous decisions to relevant
authorities.
13







[16] In the Bloemfontein
Town Council
matter
the court stressed the fact that the principle of
stare
decisis
should
be more rigidly applied in the highest court in the land, than in all
others.
14







[17] The reason therefore
is better said by Schultz JA when he stated:



“…I
should state again that for good reason this Court is reluctant to
depart from its own decisions
(Harris
and Others v Minister of the Interior and Another

1952 (2) SA
428 (A) at 454A) and that once the meaning of the words of a section
in an Act of Parliament have been authoritatively determined by this
Court, that meaning must be given to them, even by this Court, unless
it is clear to it that it has erred (
Collet
v Priest
1931
AD 290 at 297). Particularly is it important to observe
stare
decisis
when
a decision has been acted on for a number of years in such a manner
that rights have grown up under it (
Harris’s
case, above,
at 454A-B and
Horowitz
v Brock and Others
1988
(2) SA 160 (A) at 186H-187B). For 45 years businessmen and the
revenue have been ordering their affairs on the assumption that the
S
A Bazaars
case
laid down the law.
15







[18] Where a judgment of
this Court is arrived at by error (per incuriam),
in
subsequent appeals before it, when satisfied that the previous
decision was wrong, it may depart from it. I must be quick to say in
an appeal before this Court or in a constitutional application as
contemplated in Article 79(2) and section 15 of the Supreme Court Act
there would be nothing wrong for a litigant to argue that the Court
should depart from any of its previous decisions, for example, should
the issue of homosexuality resurface in this Court by way of an
appeal or the issue of corporal punishment be repetitioned by the
Attorney-General to this Court, it would be competent for the
appellant or the Attorney-General or their counsel to argue that the
matters of the
Chairperson
of the Immigration Selection Board v Frank and Another
16and
Ex Parte Attorney
General:
In the
Corporal Punishment by Organs of State
17
were wrongly decided and
urge the Court to depart therefrom.







[19] Article 81 has the
purpose of reaffirming the operation of precedent within the
hierarchy of our court structure. It reaffirms the locality of this
Court at the apex of the judicial authority, and the binding nature
of its decisions on all the other courts and all persons, right or
wrong its decisions are absolutely binding unless reversed abandoned
or departed from by this Court itself or contradicted by an Act of
Parliament. The rule
stare
decisis
et
non quieta movere
(stand
by the decisions and do not disturb settled law) was adopted from the
English Law with the establishment of the Supreme Court at the Cape
in 1828
18.
This country until independence ruled as an integral part of South
Africa shares the Roman Dutch Law traditions with South Africa and
the rule
stare
decisis
is
embedded in our legal system. In my view Article 81 and section 17
complement each other, section 17 providing for the finality of the
decisions of this Court and Article 81 providing for their binding
nature on inferior courts and all persons. It does not create another
forum for litigants to litigate beyond the decisions of this Court.
It is regrettable that applicants think that Article 81 empowers them
to approach this Court to revisit its decisions; when it is settled
law that the decisions of this Court are final. The decision striking
their “review application” from the roll is final, it is
not subject to review or appeal or be challenged in any way. The
application is not competent and ought to be struck from the roll.







[20] For the reasons
above I find it unnecessary to delve into the merits of their
application. If we were to decide on the issues we would find that
they are without substance.



[21] Briefly on the issue
of costs. While heads of argument were filed on behalf of the 22nd
- 26th, 28th, 30th
43rd and 46th - 48th respondents,
they were not in Court when the application was heard. No costs
should be ordered.







[23] In the result we
make the following orders:







1. The application
purportedly in terms of Article 81 of the Constitution of Namibia is
struck from the roll.







2. No order as to costs.











_______________



MAINGA JA











I agree











_______________



CHOMBA AJA











I agree











_____________________



MTAMBANENGWE AJA











For the First Applicant:
In Person



For the Second Applicant
In Person







For the Respondents: No
appearance




1Section
16 provides as follows:



(1) In addition to any jurisdiction conferred upon it
by this Act, the Supreme Court shall, subject to the provisions of
this section and section 20 have the jurisdiction to review the
proceedings of the High Court or any lower court, or any
administrative tribunal or authority established or instituted by
under any law



(2) The jurisdiction referred to in subsection (1) may
be exercised by the Supreme Court mero motu whenever it comes
to the notice of the Supreme Court or any judge of that court that
an irregularity has occurred in any proceedings referred to in that
subsection, notwithstanding that such proceedings are not subject to
an appeal or other proceedings before the Supreme Court: provided
that nothing in this section contained shall be construed as
conferring upon any person any right to institute any such review
proceedings in the Supreme Court as a court of first instance.




2Para.
9 of the reasons for the order of 26/11/2007 delivered on
26/11/2008.




3Para.
10




4Ibid




5Para.
11




6Paras.
4-6




7Ibid




8Article
79(2). It provides:



The Supreme Court shall be
presided over the Chief Justice and shall hear and adjudicate upon
appeals emanating from the High Court, including appeals which
involve the interpretation, implementation and upholding of this
Constitution and the fundamental rights and freedoms guaranteed
thereunder. The Supreme Court shall also deal with matters referred
to it for decision by the Attorney-General under this Constitution,
and with such other matters as may be authorised by Act of
Parliament.”





9Supreme
Court Act, Act No 15 of 1990





10Section
16(1) and (2) provides:



16 REVIEW JURISDICTION OF
SUPREME COURT




  1. In addition to any jurisdiction conferred upon it by
    this Act, the Supreme Court shall, subject to the provisions of
    this section and section 20 have the jurisdiction to review the
    proceedings of the High Court or any lower court, or any
    administrative or authority established or instituted by order or
    under any law.



The
jurisdiction referred to in subsection (1) may be exercised by the
Supreme Court mero motu whenever it comes to the notice of
the Supreme Court or any judge of that court that an irregularity
has occurred in any proceedings referred to in that section,
notwithstanding that such proceedings are not subject to an appeal
or other proceedings before the Supreme Court: Provided that nothing
in this section contained shall be construed as conferring upon any
person any right to institute any such review proceedings in the
Supreme Court as a court of first instance.”





11



15 JURISDICTION OF SUPREME
COURT as court of first instance




  1. Whenever any matter may be referred for a decision to
    the Supreme Court by the Attorney-General under the Namibian
    Constitution, the Attorney-General shall be entitled to approach
    the Supreme Court directly (without first instituting any
    proceedings in any other court), on application to it, to hear and
    determine the matter in question.



  2. An application to the Supreme Court under subsection
    (1) shall be submitted by petition to the Chief Justice and shall
    further comply with the procedures prescribed for that purpose by
    the rules of court.



  3. The Chief Justice or any other judge designated for
    that purpose by the Chief Justice shall decide whether such
    application is, by virtue of its urgency or otherwise, of such a
    nature as to justify the exercise of the court’s jurisdiction
    in terms of this section.



  4. Any decision referred to in subsection (3), by the
    Chief Justice or such other judge, as the case may be, shall be
    final.



  5. If the Chief Justice or such other judge, as the case
    may be, is of the opinion that the application is of a nature which
    justifies the exercise of the court’s jurisdiction in terms
    of this section, any party affected or likely to be affected by the
    decision of the Chief Justice or such other judge, shall be
    informed of that decision by the registrar, and the matter shall,
    subject to the provisions of section 20, be further dealt with by
    the Supreme Court in accordance with the procedures prescribed by
    the rules of the court.



Nothing
in subsection (4) contained shall be construed as precluding any
party affected or likely to be affected by the decision that the
application is not of such a nature as to justify the exercise of
the court’s jurisdiction as contemplated in that subsection,
to institute proceedings in any other competent court.”




121938
AD 195 at 232




13John
Bell Co Ltd v Essenlen
1954 (1) SA 147 (AD) at 153




14Bloemfontein
Town Council v Richter
, (Fn [12] above)




15Robin
Consolidated Industries Ltd v Commissioner for Inland Revenue

1997 (3) SA 654 (SCA) at 666F-I. See also Minister of Safety and
Security and Another v Hamilton
2001 (3) SA 50 (SCA) at 53D-E.




162001
NR 107 (SC) which held that same-sex relationships were not
recognized in Namibia.




171991
NR 178 (SC) which outlawed imposition of any sentence by any
judicial or quasi-judicial authority, or directing any corporal
punishment upon any person.




18Hosten
et al,
Introduction to South African Law and Legal Theory, 2
nd
ed. Lexis Nexis, Durban 1995 at 386-387.