This is an application pursuant to Art 81 of the Namibian Constitution. The applicants were convicted and sentenced by the Magistrates’ Court in Windhoek for contravening ss 27(1) and 54(e) of the Immigration Control Act 7 of 1993. The applicants brought an appeal against their convictions and sentences in the High Court and while their appeal was still pending, they launched a review application in the High Court to have their convictions set aside alleging that there were ‘irregularities in the proceedings’ at the magistrate’s court. On 4 September 2020, the High Court sitting as a court of appeal dismissed their appeal. The review application succeeded and the High Court set aside their convictions and sentences. The governmental respondents then appealed to the Supreme Court against the setting aside of the convictions and sentences. This Court upheld the appeal and made an order reinstating the convictions and sentences of the applicants as imposed by the magistrates’ court on 1 March 2024.
According to the applicants, their Art 81 application is brought on the basis that theirs is an exceptional case aimed at correcting an injustice in that the judgment of this Court ‘resulted in an indefensible and manifest injustice done’ to them hence the Supreme Court must invoke its power to revisit its decision.
The applicants argued that the dismissal of their appeal in the High Court and in this Court abolished their inalienable right of access to the court.
Held that, there is no merit to this point. The applicants had the right to pursue both an appeal and a review but because of the principle in Liberty Life Association of Africa v Kachelhoffer NO & others 2001 (3) SA 1094 (C) which was accepted in Schroëder & another v Solomon & others 2009 (1) NR 1 (SC), they had to ensure that the review was dealt with prior to the appeal. They simply had to seek a stay or postponement of the appeal pending the finalisation of the review application. The applicants were not precluded from any right of access to the court they might otherwise have had. They simply had to manage the process and the fact they did not is simply their (or their lawyers’) making.
No case has thus been made out for the Supreme Court to invoke Art 81.