Court name
High Court Main Division
Case name
Kamuhanga NO v The Master of the High Court of Namibia and Others
Media neutral citation
[2013] NAHCMD 144
Judge
Parker AJ













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT








Case no: A 381/2010








In the matter between:








SELMA KAMUHANGA N.O.
........................................................................APPLICANT








and








THE MASTER OF THE HIGH
COURT OF NAMIBIA ..................FIRST
RESPONDENT



BENGO INVESTMENT CC
......................................................SECOND
RESPONDENT



EMMERENTIA COETZEE
...........................................................THIRD
RESPONDENT



ALEXANDER KAMUHANGA
..................................................FOURTH
RESPONDENT



EMMERENTIA KAMUHANGA
.....................................................FIFTH
RESPONDENT








Neutral citation:
Kamuhanga v The Master of the High Court of Namibia (A
381/2010) [2013] NAHCMD 144 (30 May 2013)








Coram: PARKER AJ



Heard: 3 April
2013



Delivered: 30
May 2013








Flynote:
Administrative law – Judicial review – Judicial
review of decision of an administrative official (the first
respondent) – Conduct of the rest of the respondents is not
subject to judicial sought to be reviewed in the present proceeding –
Grounds of review are those set out in Article 18 of the Namibian
Constitution which encompass common law grounds – Applicant
failed to discharge the onus cast on her to satisfy the court that
good grounds exist to review the decision of the first respondent –
Consequently, application dismissed with costs.



Summary:
Administrative law – Judicial
review of decision of the first respondent being an administrative
official within the meaning of Article 18 of the Namibian
Constitution – Act sought to be reviewed is the exercise of
discretion by the first respondent in terms of the Administration of
Estates Act 66 of 1965 – Grounds for judicial review of acts of
administrative bodies and administrative officials are those set out
in Article 18 of the Namibian Constitution and they encompass common
law grounds –
In
casu
the conduct of the
rest of the respondents is not sought to be reviewed – Court
concluded that the applicant has failed to satisfy the court that
good grounds exist to review the decision of the first respondent
which is exercise of discretion under the Administration of Estates
Act 66 of 1965 – Accordingly, the court dismissed the
application.










ORDER










The application is
dismissed with costs; and the costs include costs of one instructing
counsel and one instructed counsel.










JUDGMENT










PARKER AJ:








[1] In this application brought on
notice of motion under Case No. A 381/2010 the applicant applies for
an order in the following terms:








1.
Review, correct and/or set aside the decision by the first respondent
as set out in her letter dated 15 November 2010, annexed hereto
marked “SK1”.








2.
Directing the first respondent to have farm Usagei Gobabis District
sold on public tender or auction to the highest bidder.








3.
Directing that first respondent and such other respondents as may
oppose the relief herein pay the costs of this application jointly
and severally, the one paying the other(s) to be absolved.



4.
Granting such further and/or alternative relief.’








The applicant is
represented in the instant proceeding by Mr Phatela.








[2] The notice of motion was filed
with the court on 15 December 2010. In accordance with rule 6(1) of
the rules of court the applicant indicates in the notice of motion
that the affidavits of the applicant, Hermanus van Aardt Dreyer,
Tjakazenga Kamuhanga Kamuhanga and Nangosora Ashley Tjipitua ‘annexed
hereto will be used in support of this application’. A founding
affidavit of the applicant (settled on 14 December 2010) enclosing
certain papers were filed of record, and is accompanied by a
confirmatory affidavit of Nangosora Ashley Tjipitua (which was also
settled on 14 December 2010) and a confirmatory affidavit of
Tjakazenga Kamuhanga Kamuhanga (also settled on 14 December 2010).
There is no affidavit of Hermanus van Aardt.








[3] The second and third respondents
did move to reject the application. The second, third and fourth
respondents are represented by Ms De Jager. Ms De Jager submitted the
point challenging the locus standi of the applicant. If the
point is relevant in this matter, it ought to have been raised in the
papers during the judicial case management process, during which the
managing judge could have dealt with it in an interlocutory
proceeding since a decision upholding the preliminary point would
have disposed of the application. In any case, on the papers I am
satisfied that the applicant has standing to bring the application.
This conclusion disposes of the preliminary point on locus standi.








[4] The notice of
opposition of the second and third respondents was filed on their
behalf by their legal representatives, Du Pisani Legal Practitioners.
I do not see any notice of opposition that has been filed of record
by the first, fourth and fifth respondents. That being the case I
shall consider the answering affidavits of the second and third
respondents only. In this regard I find that contrary to submission
by Ms De Jager, the first respondent was served with the application
and she acknowledges receipt of it by the date stamp of her office
(dated 15 December 2010).








[5] I have made the
findings and reached the conclusions in paras 2, 3 and 4 for a
purpose. It is to say that the burden of this court in the instant
proceeding is to determine the application brought by the applicant
on 15 December 2010 under Case No. A 381/2010 supported by the
affidavits and other papers filed of record in respect of that
application. The court takes no respectable look at any notices of
motion that were apparently filed thereafter.








[6] The present
application is basically an application to review and correct or
review and set aside the decision of the first respondent who is an
administrative official within the meaning of Article 18 of the
Namibian Constitution. The rest of the respondents are not
administrative officials or administrative bodies. As I see it, they
have been joined because they have a direct and substantial interest
in the outcome of the review application. In that regard; whatever
the second respondent and the third respondent did or did not do in
their capacity as executor and nominee has no bearing on the present
application. The same goes for any conduct of the rest of the
respondents. Their action or omission is not under review. I
therefore, with respect, fail to see how Mr Phatela’s
invigorated submission on the duties of an executor advances the case
of the applicant. As I say; the decision complained of was made by
the first respondent in pursuance of the exercise of discretion in
terms of the Administration of Estates Act 66 of 1965.








[7] The grounds for the
review of the acts of administrative bodies and officials are those
set out in Article 18 of the Namibian Constitution. I should say
those grounds encompass the common law grounds of review; for, as
Levy J stated in Frank and Another v Chairperson of the
Immigration Selection Board
1999 NR 257 (HC) at 265E-F, Article
18 embraces the common law. It must also be signalized that ‘there
is no onus on the respondent whose conduct is the subject-matter of
review to justify his or her conduct. On the contrary, the onus rests
upon the applicant for review to satisfy the court that good grounds
exist to review the conduct complained of’. (Gideon Jacobus
du Preez v Minister of Finance
Case No. A 74/2009 (Unreported)
para 5)








[8] In sum, in the
present application the applicant must satisfy this court that good
grounds exist to review the decision of the first respondent. That
decision is contained in a letter dated 15 November 2010 and it is
also in response to ‘Objections to the Liquidation and
Distribution Account’ (‘the Objections’) submitted
to the first respondent by legal practitioners Dr Weder, Kauta &
Hoveka Inc. who say in a covering letter of the Objections that (a)
they ‘act as the executors in the Estate of Late Simeon
Kamuhanga’; and (b) they attach ‘our objections to the
first and final liquidator’. The legal representatives describe
themselves ‘as the executors in the Estate of Late Simeon
Kamuhanga’. This is palpably false and deceiving. In the
letters of executorship issued by the Master of the High Court of
Namibia Selma Kamuhanga (the applicant) is the ‘executrix’.
The fact that a law firm XXX & Co represents the Prime Minister
in a matter does not mean that the law firm XXX & Co acts ‘as’
the Prime Minister.








[9] Be that as it may, I
now proceed to consider the grounds which the applicant say are good
which exist to justify review of the decision of the first
respondent. And for this I go to the founding affidavit. The first
ground (in para 26 of the founding affidavit) is that the first
respondent’s decision ‘is unlawful and prejudicial to
myself and the minor beneficiaries in this estate’. The second
ground (in para 27 of the founding affidavit) is that the ‘first
respondent acted contrary to’ her duty ‘to make decisions
that will benefit the minors in any estate’. The third ground
(in para 28 of the founding affidavit) is entitled ‘unfair
process’.








[10] I should say with
respect that the formulation of para 28 is as unclear as it is
clumsy, inelegant and untenable. To start with, the first respondent
did not make ‘a directive to the second and third respondents
to sell any assets on the estate to the highest bidder’.
Second, the first respondent did not make ‘a decision to sell
the immovable property by way of private treaty, for not less than
N$1.3 million’. The last ground (in para 29 of the founding
affidavit), entitled ‘failure to apply mind’, is equally
untenable; and it reads:








The
first respondent has clearly failed to apply her mind on the 15
th
November 2010 when she instructs that Farm Usagei must now be sold to
fourth respondent for the minimum amount of N$1.3 million, despite
the fact that there is no proof from second and third respondent that
they inquired bids from other beneficiaries apart from fourth
respondent. More so, if regard is had to the affidavit of Mr McDonald
filed herewith, and that it has always been in the mind of first
respondent that the farm must be sold by public tender or auction if
the beneficiaries are not in agreement.’








[11] The first
respondent’s letter dated 25 August 2010 must be read together
with her letter dated 15 November 2010. It is clearly stated that she
gave due consideration to the applicant’s legal
representatives’ objections (they are the applicant’s
objections) and dealt systematically with the objections. Thus, I am
satisfied that the applicant applied her mind to the information
placed before her before she decided. In that regard, the first
respondent approved the sale by private treaty of the immovable
property in question, provided that the purchase price must not be
less than N$1 300 000,00 and provided further that the beneficiaries
are given first option to purchase. Thus, the first respondent gave
her approval, attaching conditions. It has not been established that
the conditions are unfair or unreasonable. It has also not been shown
that the first respondent instructed the second and third respondents
to sell the property to the fourth respondent only and also not to
take bids from other beneficiaries apart from the fourth respondent.








[12] In Gideon
Jacobus du Preez v Minister of Finance Case No. A 74/2009
(judgment delivered on 23 March 2011) (Unreported) para 4, relying on
Immanuel v Minister of Home Affairs and Others 2006 (2) NR 687
at 701H-J, the court stated of the purpose of judicial review thus:








In
this regard, on the purpose of judicial review, I cannot do any
better than to respectfully adopt that which was explained by Damaseb
JP in
Immanuel
v Minister of Home Affairs and Others

2006 (2) NR 687 at 701H-J:








Purpose
of judicial review








[53]
Judicial review has two aspects: First, it is concerned with ensuring
that the duties imposed on decision-makers by law (which includes the
Constitution) are carried out. A functionary who fails to carry out a
duty imposed by law can be compelled by the High Court to carry it
out. Secondly, judicial review is concerned with ensuring that an
administrative decision is lawful, i.e. that powers are exercised
only within their true limits. If a functionary acts outside the
authority conferred by law, the High Court can quash his or her
decision. This is the doctrine of ultra vires. If the decision
is one that the decision-maker was authorised to make, the only
question which can arise is whether the decision is right or wrong.
This involves a consideration of the merits of the decision.








With
limited exceptions, namely an error of law on the face of the record
and the still-evolving doctrine of proportionality, the Courts are in
principle not prepared to review the merits of the decision unless
Parliament has created a statutory right of appeal. (See Davies v
Chairman, Committee of the Johannesburg Stock Exchange
1991 (4)
SA 43 (W) at 46-48; The Western Australia Law Reform Commission
(1986) at para 1.9.) It must be borne in mind that ‘in the
absence of irregularity or unlawfulness, considerations of equity do
not provide any ground of review.’








[13] As I have signalized
previously in this proceeding the court is not concerned with the
conduct of the second and third respondents, which conduct the
applicant appears to complain about in paras 28 and 29 of her
founding affidavit. Their conduct cannot on any legal basis be
attributed to the first respondent as I have shown in paras 10 and
11. This conclusion rejects allegation of ‘unfair process’.
I should also say again that the conduct of these two respondents and
that of the fourth and fifth respondents are not sought to be
reviewed in the present proceeding.








[14] The applicant has
failed to establish that the first respondent acted in bad faith or
from improper motives or on extraneous considerations or under a view
of the facts or law which could not reasonably be entertained. (See
Frank and Another v Chairperson of the Immigration Selection Board
1999 NR 257 (HC).) Besides, the applicant has not shown that the
first respondent acted ultra vires by acting outside the
authority conferred on her by the Administration of Estates Act 66 of
1965. (See Trustco Insurance v Deeds Registries Regulation Board
2010 (2) NR 565 (HC) at 582E) I, accordingly, accept submissions by
Ms De Jager on the point.








[15] As I have stated in
para 11 the applicant has not shown that the conditions that the
first respondent attached to her approval of the sale of the
immovable property are unreasonable or unjust. Indeed, I find them to
be reasonable in regard to the existing circumstances of which the
first respondent knew or ought to have known. And it cannot be argued
that the decision is entirely without foundation, or that the first
respondent used her powers dishonesty or that the decision would lead
to harsh, arbitrary, unjust or uncertain consequences. (See Trustco
Insurance v Deeds Registries Regulation Board
.) In this regard,
it must be remembered that the affidavit of McDonald does not form
part of the evidence placed before the court in the present
application.








[16] For all these
reasoning and conclusions, I come to the inevitable conclusion that
the application has no merit; and it fails. In the result, I make the
following order:








The application is
dismissed with costs; and the costs include costs of one instructing
counsel and one instructed counsel.




























----------------------------



C Parker



Acting Judge




























APPEARANCES








APPLICANT: T C Phatela



Instructed by Dr Weder,
Kauta & Hoveka Inc.













SECOND, THIRD, FOURTH



and FIFTH RESPONDENTS: B
de Jager



Instructed by Du Pisani Legal
Practitioners