Court name
High Court Main Division
Case number
POCA 4 of 2012
Title

Prosecutor General v Uuyuni (POCA 4 of 2012) [2013] NAHCMD 67 (12 March 2013);

Media neutral citation
[2013] NAHCMD 67
Coram
Geier J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: POCA 4/2012








In the matter between:








THE PROSECUTOR GENERAL
..................................................................
APPLICANT








and








GERSON UUYUNI
...................................................................................RESPONDENT













Neutral citation: The
Prosecutor General v Uuyuni
(POCA 4/2012) [2013] NAHCMD 67 (12
March 2013)








Coram: GEIER J



Heard: 23
November 2012



Delivered: 12
March 2013













Flynote:
Application for confirmation of a provisional preservation order
granted in terms of Section 51(2) of The Prevention of Organized
Crime Act 2004 – Provisional order granted ex parte and
in camera








On return date respondent
contending that applicant had not made out a case for matter to be
heard in camera, alternatively that no case had been made out
for the matter to be heard in camera on the grounds as
provided for in Article 12(1)(a) of the Namibian Constitution –
Rule nisi submitted to be a nullity –








Applicant arguing that an
ex parte and in camera hearing was expressly authorised
by section 98(1) of POCA - that the Constitution
authorised
in camera hearings
in specific circumstances and that the National Assembly had
determined through the enactment of Section 98(1) of POCA that
ex
parte
proceedings under the Act were
one of those circumstances and that it was not open to the respondent
to challenge the validity of Section 98(1) on various grounds and
that applicant had ultimately acted within the parameters provided
for by Section 98(1) of POCA.








After
interpreting Section 98 of POCA – Court holding that the
section permissively and only in directory terms required that

all ex parte
hearings, contemplated
in
POCA, ‘may’ be held behind closed doors – if the
requirements for the exclusion of the public – set by
sub-section (2)
(and
by the Constitution)
have
been met, … ‘ whereas all other proceedings,

contemplated
in POCA, ‘ …
‘must’ be held open to the public … ‘. Court
accordingly not upholding submissions made on behalf of applicant -








The
further questions whether or not the applicant had - on the facts -
acted within the parameters provided for by Section 98 of POCA and
the Constitution and whether or not the court which had granted the
rule nisi in this instance had correctly allowed the hearing before
it to take place behind closed doors to be determined with reference
to the test formulated
in
the South African case of
Ghomeshi-Bozorg
v Yousefi
1998
(1) SA 692 (W) at 698 as adopted by this court in
Prosecutor
General v Lameck and Others
and
as recently approved in
Prosecutor
General v Kanime








Held: Applicant had not
met the requirements set by section 98(2)(a) as the bringing of the
application, without notice to the respondent, had already satisfied
the interests of justice, which, in this instance, did not also
require the exclusion of the public on the facts of this case -








Held: As nothing was
shown on the papers which warranted the extra-ordinary departure from
the general rule as to the exclusion of the public at the initial
hearing for reasons also of morals, the public order or national
security as is necessary in a democratic society
it had to be
concluded that also the requirements of Article 12(1)(a) of the
Constitution were not met.








Held: That in the
circumstances of this case the in camera hearing in this
matter was never warranted and should never have occurred.








Held: That where a court
finds on an afresh re-consideration of all the facts on a return day
of a rule nisi that a fundamental requirement of the law has been
breached that this would also warrant the discharge of any interim
order granted in breach thereof.








Held: Amongst the factors
which a court will be entitled to take into account in the exercise
of its discretion will be the extent to which a fundamental rule and
basic requirement of our system of justice has been breached.








Held: Having already
found that no case been made out for the departure from the overall
requirements set by section 98 – but also that, in casu,
the particular requirements set by Section 98(2) had not been met and
that the rule nisi in this instance had been granted in violation of
the fundamental requirements set by the Constitution - court
considering itself not bound - on an afresh consideration of the
overall position - by a rule nisi granted in violation of one of the
most fundamental requirements, deeply embedded in the law, that
justice must be seen to be done.-








Held: Court finding that
the exclusion of the public at the initial hearing of this matter,
inclined it to refuse to exercise its discretion in favour of
confirming the interim order granted in this instance.








Held: The rule nisi is
accordingly discharged.








Summary: see
flynote above










ORDER










1. The rule nisi granted
on 11 April 2012 is hereby discharged with costs.










JUDGMENT










GEIER J:








[1] On
11 April 2012 the applicant in this matter was granted a provisional
preservation order in terms of Section 51 of the Prevention of
Organised Crime Act 2004, Act No. 29 of 2004, (hereinafter referred
to as POCA).








[2]
This order was granted on an
ex parte
basis and in camera.








[3] In terms of the order
the respondent’s credit balances in his Sanlam Unit Trust
Account, two banking accounts held with First National Bank,
Oranjemund, as well as a Toyoka Hilux bakkie and a BMW motor vehicle
were provisionally preserved on the basis that they constituted the
proceeds of unlawful activities.



[4] The matter was
opposed on various grounds.








[5] The question before
the court is whether or not the said provisional preservation order
should now be made final.








THE
BACKGROUND HISTORY








[6] Two preservation
orders were granted against the respondent. The first preservation
order was granted on 5 August 2011 under case no. POCA 7/2011. This
first preservation order was preceded by the arrest of the respondent
and his appearance in the magistrate’s court on 28 July 2011.
It is alleged that the prosecutor, who appeared in the lower court,
apparently intimated to the respondent’s legal practitioner
that the Prosecutor General was preparing a certain application in
terms of POCA. Accordingly, the respondent’s legal practitioner
requested that notice of any such proceedings should be given to him.
The respondent was however not given such notice, but nevertheless at
a later stage opposed the first application.








[7] In that application
the issue relating to the appearance on behalf of the Prosecutor
General, by the member of her staff, who was not an admitted legal
practitioner in Namibia, was raised. In the opposing papers the
respondent raised also certain other issues of procedure and
substance. In addition the respondent also counter- applied for an
order declaring the preservation order to be a nullity.








[8]
The applicant in turn brought an interlocutory application for the
amendment of first preservation order in certain respects,

which application was also opposed.








[9] A
status hearing was called for these applications for the 12
th
of April 2012 in order to establish the way
forward and if necessary to set them down for hearing.








[10] On the 10th
of April 2012 the applicant however, on an ex parte basis and
in camera, notwithstanding the above background, filed the
present application which was set down for hearing on 11 April 2012.








[11] The second
application was granted and the abovementioned rule nisi was issued.
The second provisional order was granted under case no. POCA 4/2012.








[12]
At the same time,
and on 10 April 2012,
the first application - which had been launched under
case no. POCA 7/2011 - was withdrawn by notice and subsequently such
application was
also
formally removed from the roll, the court noting that
such application had been withdrawn and that the Applicant had
tendered and was required to pay the respondent’s costs
occasioned by such withdrawal.








THE
IN LIMINE ISSUES RELATING TO THE
EX
PARTE
AND IN
CAMERA
HEARING








[13]
I have already alluded above to the fact that the respondent, also in
the second application, has raised a number of
in
limine
issues in defence of this application
as well as defences on the merits.








[14] These in limine
issues as well as all the other issues were canvassed thoroughly by
counsel in their heads of argument and during oral argument at the
hearing of this matter.








[15] However, and in view
of the stance that I will adopt in deciding this matter it will not
become necessary to deal with all these other issues raised and
ventilated between the parties.








[16] Amongst all these
defences the respondent also took issue with the fact that the
applicant had approached the court on an in camera and ex
parte
basis.








AD THE EX PARTE
HEARING








[17]
At this juncture it should merely be mentioned and noted that the
constitutionality of section 51(2) – and with it the peremptory
requirement that preservation orders could permissibly be applied for
- and be granted on an
ex
parte
basis
and thus without notice - was recently considered by this court in
the as yet unreported judgment of
Martin
Shalli v The Attorney General and Others
as
delivered on 16 January 2013
1.








[18]
Although the court considered Section 51(2) as being ‘unfortunately
formulated’,
it
nevertheless held, for the reasons set out in the judgment
2,
that the provisions of section 51(2) do not violate the right to a
fair trial protected by Article 12(1)(a) of the Namibian
Constitution.








[19]
Before one would however get to a fuller consideration of the
ex
parte
point also with reference to the facts
of this matter, the consideration and impact,
if
any,
of the respondent’s further attack,
directed against the applicant’s approach of the court behind
closed doors,
should conveniently occur in view
of the fundamental issues that arise in the context of that point.








AD THE IN CAMERA
HEARNG : THE RESPONDENT’S ARGUMENTS








[20]
It was in the main contended that the applicant had brought the
second POCA application and procured its hearing on an
ex
parte
and on an in
camera
basis without making out a case in
this regard.








[21]
It was submitted in the alternative that should it be found that the
applicant had made out such a case on the papers that she did not
make out a case for the matter to be heard
in
camera
on
the grounds as provided for in Article 12(1)(a) of the Namibian
Constitution.
3








[22]
It was pointed out that the relevant portions of Article 12(1)(a)
should be read with Section 13 of the High Court Act, Act No. 16 of
1990,
which
provides that:








Save
as otherwise provided in Article 12(a) and (b) of the Namibian
Constitution all proceedings in the High Court shall be carried on in
open court’








[23] In support of these
general arguments Mr Namandje, who appeared on behalf of the
respondent, argued that the court should have been alive to the fact
that the ‘open- court’ system is an essential part of the
administration of justice for it enhances the public’s
confidence in the working of the judiciary, that this was a
fundamental principle respected by all democratic nations of the
world and that this was also the reason why the Namibian Constitution
had made the right to a public trial an integral and important
element of the Namibian trial system.








[24] Reliance was placed
in this regard on a Supreme Court of Canada decision made in the case
of Named Person v Vancouver Sun [2007] S.C.R. 253, 2007 SCC
43, a judgment delivered on 11 October 2007 in which the ‘open-
court’ principle and the rationale for it was formulated as
follows:








81.
The open court principle is now well established in Canadian Law.
This Court has on numerous occasions confirmed the fundamental
importance and constitutional nature of this principle (see
Toronto
Star Newspapers Ltd. V Ontario

[2005] 2 S.C.R. 188, 2005 SCC 43;
Vancouver
Sun (Re)

[2004] 2 S.C.R 332, 2004 SCC 43;
Sierra
Club of Canada v. Canada (Minister of Finance)

[2002] 2 S.C.R. 522, 2002 SCC 41;
R.
v Mentuck

[2001] 3 S.C.R. 442, 2001 SCC 76; R. v O.N.E., [2001] 3 S.C.R. 478,
2001 SCC 77;
Canadian
Broadcasting Corp. v. New Brunswick (Attorney General)

[1996] 3 S.C.R 480;
Dagenais
v. Canadian Broadcasting Corp.

[1994] 3 S.C.R. 835;
Edmonton
Journal v. Alberta (Attorney General)

[1989] 2 S.C.R. 1326;
Canadian
Newspapers Co. v Canada (Attorney General)

[1998] 2 S.C.R. 122). In general terms, the open court principle
implies that justice must be done in public. Accordingly, legal
proceedings are generally open to the public. The hearing rooms where
the parties present their arguments to the court must be open to the
public, which must have access to pleadings, evidence and court
decisions. Furthermore, as a rule, no one appears in court, whether
as a party or as witness, under a pseudonym.



82.
For centuries, the importance of the open court principle has been
recognised at common law. Various justifications have been given for
it. The oldest of these is probably the connection made between
openness and the pursuit of truth. For example, Blackstone made the
following comment in his Commentaries on the Laws of England
(1768), vol. III, c. 23, at p. 373:



This
open examination of witnesses viva voce, in the presence of all
mankind, is much more conducive to the clearing up of truth, than the
private and secret examination taken down in writing before an
officer, or his clerk …’



In
a similar vein, Wigmore made the following comment on the effect
openness has on the quality of testimony:



Its
operation in tending to improve the quality of testimony is two-fold.
Subjectively, it produces in the witness’ mind a disinclination
to falsify; first, by stimulating the instinctive responsibility to
public opinion, symbolized in the audience, and ready to scorn a
demonstrated liar; and next, by inducing the fear of exposure of
subsequent falsities through disclosure by informed persons who may
chance to be present or to hear of the testimony from others present.
Objectively, it secures the presence of those who by possibility may
be able to furnish testimony in chief or to contradict falsifiers and
yet may not have been known beforehand to the parties possess any
information”. (
Wigmore
on Evidence
,
vol. 6 (Chadbourn rev. 1976), § 1834, at pp. 435-36 (emphasis in
original)



83.
Another frequently proposed justification for the principle is that
openness fosters the integrity of judicial proceedings (see in
particular Edmonton Journal, at p. 1360 (per Wilson J) Thus, it has
been argued that all participants in judicial proceedings will be
further induced to conduct themselves properly if they know that they
are under the watchful eye of the public. This is what led Bentham to
state that “[p]ublicity is the very soul of justice. It is the
keenest spur to exertion, and the surest of all guards against
improbity” (J.H. Burton, ed. Benthamania; or, Select Extracts
from the Works of Jeremy Bentham (1843), at p. 115.4). Openness
ensures both that justice is done and what it is seen to be done. For
justice to be seen to be done is necessary to preserve public
confidence in the administration of justice. Bentham is often quoted
in support of this argument, too:



The
effects of publicity are at their maximum of importance when
considered in relation to the judges; whether as insuring their
integrity, or as producing public confidence in their judgments. (J.
Bentham, Treatise on Judicial Evidence (1825), at p. 69 (emphasis in
original)This Court adopted a similar argument in Vancouver Sun:



Openness
is necessary to maintain the independence and impartiality of courts.
It is integral to public confidence in the justice system and the
public’s understanding of the administration of justice.
Moreover, openness is a principal component of the legitimacy of the
judicial process and why the parties and the public at large abide by
the decisions of courts. [para. 25]



85.
More recently, stress has been laid on the relationship between open
courts and the promotion of democracy. (In my view, this is the
justification that is most relevant in the case at bar.) The courts
play a key role in a democracy, not only because they are where
disputes between citizens can be resolved peacefully, but also –
and perhaps most importantly – because they are where citizens’
disputes with the state are decided. Furthermore, there is no denying
that the importance of the courts’ role is accentuated by the
constantly increasing complexity of contemporary societies. It is
therefore essential that what the courts do be open to public
scrutiny in order both to improve the operation of the courts and to
maintain public confidence in them (see Edmonton Journal, at p. 1337
(per Cory J.)).



86.
Similarly, the “educational” aspect of an open court
process has been noted in, for example, the following passage from
the reasons of Wilson J. in Edmonton Journal:



It
provides an opportunity for the members of the community to acquire
understanding of how the courts work and how what goes on there
affects them. Bentham recognised the importance of publicity in
fostering public discussion of judicial matters, Treatise on Judicial
Evidence, op. cit., at p. 68, and Wigmore pointed out in Evidence,
op. cit., §1834, at p. 438, hat “[t]he educative effect of
public attendance is a material advantage. Not only is respect for
the law increased and intelligent acquaintance acquired with the
methods of government, but a strong confidence in judicial remedies
is secured which could never be inspired by a system of secrecy”.
[pp. 1360-61]”








[25]
It was against the backdrop of these fundamental principles thus
submitted that the applicant was under an obligation to set out in
her founding affidavits such facts that would have been sufficient to
convince the court – within the confines of Art 12(1)(a) - that
a hearing
in camera was
warranted.








AD THE IN CAMERA
HEARING : THE APPLICANT’S ARGUMENTS








[26]
On behalf of the applicant Mr Budlender SC placed reliance on section
98(1) of POCA which, in his submission, expressly authorised the
bringing of the application on an
ex
parte
basis and in
camera
.








[27]
He also relied on the fact that also the Constitution authorised
in
camera
hearings in
specific circumstances and that it was the National Assembly that had
determined, through the enactment of Section 98(1) of POCA, that
ex
parte
proceedings,
under the Act, are one of those circumstances.








[28]
It was pointed out further that the respondent had not challenged the
validity of Section 98(1). That being so, it could not be asserted
that the holding of an
ex parte
hearing in camera was
inconsistent with the Constitution and that the applicant had thus,
ultimately, acted within the parameters provided for by Section 98(1)
of POCA.








THE RESPONDENT’S
REPLY








[29]
In response Mr Namandje submitted that it would appear that the
applicant was contending that the section somehow - as a matter of
right – had given the applicant
carte
blanche
to have the matter heard in
camera
, without notice and on an ex
parte
basis. It was suggested that this
approach was wrong.








[30]
It was submitted further that the court should adopt an
interpretation in line with the constitution and in tune with the
open administration of justice in accordance with the principle
formulated in the judgment of the South African Constitutional Court
delivered in
S
v Dzukuda and Others
;
S
v Tshilo
4
were
the court had stated:



[37]
Before dealing with the High Court judgment in this regard, it is
important to refer to certain principles laid down by this Court in
De Lange v Smuts NO and Others
5,
Bernstein and Others v Bester and Others NNO
6,
Nel v Le Roux NO and Others
7
and
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others; In re Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
8,
which principles may be summarised as follows:



(a)
The purport and objects of the Constitution find expression in s 1,
which lays out the fundamental values which the Constitution is
designed to achieve. The Constitution requires that judicial officers
read legislation, where possible, in ways which give effect to its
fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they are under a duty
to examine the objects and purport of an Act and to read the
provisions of the legislation, so far as is possible, in conformity
with the Constitution.’








[31] It was thus
contended that Section 98(1) of POCA did not require a constitutional
declaration of invalidity as it was possible to construe the section
in such a way that it would be compatible with the Constitution
particularly in view of the fact that the High Court Act, as a
statute, also provided that all trials should be held in public,
except if the grounds mentioned in Article 12(1)(a) and (b) of the
Namibian Constitution were present.








[32]
With reference to
Seagull’s
Cry CC v Council of the Municipality of Swakopmund and Others
9
and
The
Council of the Municipality of Swakopmund v Vantrimar Properties
10
decisions
he argued that should a hearing - that was required to be held public
– be conducted in camera - without alleging and having the
jurisdictional grounds required present for the exclusion of the
public - any resultant decision would be a nullity.








[33]
In any event, so the argument ran further, because of the importance
of the requirement to have trials in open and in public, courts have
always been hesitant to hear matters in camera unless there would be
good and justifiable grounds as necessary in a democratic society to
do otherwise. He finally underlined his argument with reference to
what was said in this regard in
Young
and Another v Minister of Safety and Security and Others
11:



[13]
The legal basis upon which they seek the closing of the doors of the
court is s 16 of the Supreme Court Act 59 of 1959. It provides:



Save
as is otherwise provided in any law, all proceedings in any court of
a division shall, except insofar as any such court may in special
cases otherwise direct, be carried on in open court.”



[14]
This provision must be interpreted and applied against the backdrop
of two constitutional provisions. They are s 1(d) of the Constitution
which entrenches as a founding value accountability, responsiveness
and openness in democratic governance, and s 34 which entrenches a
fundamental right of access to court. In so doing, this section
states that ‘(e) everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum’ (emphasis added).



[15]
The plain meaning of the words of s 16 is in accord with these
constitutional provisions: proceedings in courts are to be held in
public – in open court – unless there are weighty reasons
why the doors of the court should be closed to the public in
particular, exceptional, cases.



[16]
The cases dealing with s 16 all bear out that this is the correct
approach to its application. In
Botha
v Minister van Wet en Orde en Andere
12
Kriegler J spoke of
the principles underpinning the requirement that courts hold public
hearings as follows:



Ten
eerste, die beginselbenadering. ‘n Bevel dat hofverrigtinge in
camera geskied slaan nie bloot op prosedure nie maar sanksioneer ‘n
fundamentele afwyking van ‘n diepgewortelde tradisie wat one
regspleging deel met oop gemeenskappe. Die wortels dateer, wat die
moderne tydvak betref, sedert 1813 toe die destydse Goeverneur in die
Kaap by proklamasie gelas het dat alle geregtelike verrigtinge in die
openbaar geskied met die oog op “essential utility as well as
the dignity of the administration of justice”. Die
onderliggende doel was om by die burgery in te prent “the
confidence that equal justice was administered to all in the most
certain, most speedy and least burdensome manner”. (Kyk
Financial
Mail (Pty)Ltd v Registrar of Insurance and Others

1966
(2) 219 (W) te 220E – G.)’



[17]
The learned Judge continued to say:



Die
voorbehoud in die inleidende sinsnede slaan op besondere wetgewing,
byvoorbeeld die agtereenvolgende wette met betrekking tot kinders en
wette met betrekking tot landsgeheime, wat spesifiek voorsiening maak
vir eiesoortige private en openbare belange wat vertroulikheid verg.
Andersins word die algemene beleid herbevestig, dat Hofverrigtinge
ten aanskoue van die publiek plaasvind en word die bevoegdheid om
daarvan af te wyk beperk tot spesiale gevalle.



Teen
die voormelde gemeenregtelike en wetteregtelike agtergrond moet enige
aansoek om die deure vir die publiek te sluit gevolglik behoudend
benader word. Die beoordeling van so ‘n aansoek staan ook nie
los van die demokratiese wêreldbeskouing wat ons hier te lande
bely nie. ‘n Geregshof is ‘n Staatsorgaan wat die publiek
dien. Die behoud van openbare vertroue in die regspleging verg dat
Howe, sover moontlik, so funksioneer dat iedereen kan oordeel of die
Regbank sy ewewigtigheidstaak na behore vervul. Nie alleen die
bevordering van die Regbank se beeld van diensvaardige betroubaarheid
verg dat hy ten aanskoue van die volk daar buite funsioneer nie.’



[18]
The issue was approached in much the same way by Van Dijkhorst J in
Cerebos
Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another
13.
He held that at the centre of the enquiry was the question whether
the proper administration of justice required the closing of the
court’s doors but that, in exercising the discretion vested in
him or her by s 16, a Judge should work from the default position
that all cases should be heard in public and that this rule should
not be departed from lightly.



[19]
I was referred by Ms Mey for the applicants to the matter of W v W, a
matter in which the privacy concerns of the plaintiff were to have
outweighed the public interest. That case is so unusual, and its
facts so different from the present matter, that it is
distinguishable. It involved intensely private information about the
sexual history of the plaintiff in a divorce action, unlike the
present case which, when all is said and done, may be said to involve
the legality of the business undertakings of the applicants –
business undertakings that are carried out more or less openly, from
what I can gather from the papers, and with members of the public.
The judgment in W v W is in accordance with the approach that has
been set out above and is simply an example of a special case in
which the protection of private interests was held to be of
sufficient weight to trump the broader public interest in court
proceedings being held in public.



[20]
In the application of the principles set out in the cases to which I
have referred, I am of the view that a case has not been made out for
the court’s doors to be closed to the public. What is at stake,
on the one hand, are questions of the legality of the actions of the
respondents and their accountability for the exercise of their public
powers, as well as my accountability as an unelected wielder of
public, judicial, power for the exercise of that power and, on the
other, certain private and commercial concerns of the applicants. I
do not believe that those private concerns are of sufficient weight
to justify a departure from the norm of open adjudication. Put
differently, the public interest does not, in this case, demand that
those private interests be accorded more weight than the interests of
the public to hear and to read about this matter. The application for
the matter to be heard in camera and for the ancillary relief sought
by the applicants consequently cannot succeed.’



[34]
Although I believe that the respondent’s point
in
limine
can actually be determined with
reference to the correct interpretation of Section 98 of POCA and the
facts of this case – I nevertheless considered it important to
quote at length from the authorities cited in the respondent’s
heads of argument – as the referred to dicta underline - and
serve to remind one - of the fundamental principle and its rationale
– which underlies the determination of the point i
n
limine
as raised by the respondent herein.








THE INTERPRETATION OF
THE APPLICABLE STATUTORY FRAMEWORK








[35] The applicable
provision of the Namibian Constitution and Section 13 of the High
Court Act 1990 have already been quoted above.








[36]
It will have been noted that whereas the High Court Act requires all
proceedings to be conducted in open court – except as provided
for in Articles 12(1)(a) and (b) of the Constitution – that the
Constitution itself requires that a
court can
only exclude the press or the public from all or any part of the
trial for reasons of morals, the public order or national security as
is necessary in a democratic society.








[37] Section 98(1) of
POCA seemingly conflicts with this general position as far as ex
parte
applications are concerned. The entire Section 98 reads:








98
Hearings
of court to be open to public



(1)
Subject to this section, the hearings of the court contemplated in
this Act, except for ex parte applications, must be open to the
public.



(2)
If the court, in any proceedings before it, is satisfied that-



(a)
it would be in the interest of justice; or



(b)
there is a likelihood that harm may ensue to any person as a result
of the proceedings being open,



it
may direct that those proceedings be held behind closed doors and
that the public must not be present at those proceedings or any part
of them.



(3)
An application for proceedings to be held behind closed doors may be
brought by the Prosecutor-General, the curator bonis referred to in
section 29 or 55 and any other person referred to in subsection
(2)(b), and that application must be heard behind closed doors.



(4)
The court may at any time review its decision with regard to the
question whether or not the proceedings must be held behind closed
doors.



(5)
Where the court under subsection (2) on any grounds referred to in
that subsection directs that the public must not be present at any
proceedings or part of them, the court may-



(a)
direct that information relating to the proceedings, or any part of
them, held behind closed doors, must not be made public in any
manner;



(b)
direct that a person must not, in any manner, make public any
information which may reveal the identity of any witness in the
proceedings;



(c)
give any directions in respect of the record of proceedings which may
be necessary to protect the identity of any witness,



but
the court may authorise the publication of so much information as it
considers would be just and equitable.



(6)
Any person who discloses any information in contravention of
subsection (5) commits an offence and is liable to a fine not
exceeding N$8 000, or to imprisonment for a period not exceeding two
years.’








[38]
At first glance it seems indeed so, as contended for by applicant,
that Section 98 of POCA does lay down,
as
a general rule,
that
all proceedings in terms of the act are to be held in open court,
save for
ex
parte
applications.








[39] The question that
arises, given counsels conflicting submissions on this score, is
whether or not such interpretation can prevail?








[40]
A court will usually begin its interpretation of a statute by
applying the so-called ‘literal rule’
14.
As in this instance a literal interpretation of Section 98(1) –
seems to suggest an exception to the general rule, as far as
ex
parte
applications
under the Act are concerned – and whereas Section 98(2) –
on the other hand - seems to be of application to ‘all’
proceedings - as the use of the phrase ‘any proceedings’
would seem to suggest - which would thus also be inclusive of
ex
parte
proceedings
- the ‘literal rule’ appears to be inadequate to arrive
at an interpretation which accords with parliament’s intention.

Resort should thus, as a
next step,
be
had to the so called ‘golden rule’ of interpretation
15.








[41]
The Namibian Supreme Court has cited with approval and applied in
S
v Strowitzki
16
the dictum of Park B in
Becke v
Smith
(1836)
2 M & W 191 at 195, whose formulation it considered as the
locus
classicus
of
the 'golden rule'
17
of construction of deeds
and statutes which the learned judge expounded as follows -



'The
rule (ie the golden rule) is a very useful rule in the construction
of a statute, to adhere to the ordinary meaning of words used, and to
the grammatical construction, unless that is at variance with the
intention of the legislature, to be collected from the statute
itself, or leads to any manifest absurdity or repugnance in which
case the language may be varied or modified, so as to avoid such
inconvenience, but no further.'








[42]
The question thus arises what construction should,
against
the backdrop of the golden rule, be put on the provisions of s 98 of
POCA? Does it indeed mean that all proceedings brought on an
ex
parte
basis must also at the same time always
be heard
in camera?








[43] It has already been
noted that the Constitution, in peremptory language, provides that
the press or the public can only be excluded from all or any part of
a hearing for reasons of morals, the public order or national
security as would be necessary in a democratic society.








[44]
It would also appear that the legislature was acutely aware of the
fundamental requirement to hold trials in public,

subject to the
constitutionally permissible exceptions – this appears not only
from the heading of section 98
18
- but this awareness, in
my view, weaves itself also like a golden thread through the entire
contents of Section 98
19
-








[45]
Should one therefore come to the conclusion that just because the
legislature has seemingly created an exception to this fundamental
requirement in sub-section 98(1) that the section was actually
intended to create an absolute entitlement for the applicant to
always approach the court
in
camera
,
regardless of the circumstances and without motivation?








[46]
In my view such interpretation would be absurd and would lead to an
obvious conflict not only with the provisions of Section 13 of the
High Court Act
20,
but more importantly also with the prevailing requirements set by the
‘supreme law’
21
in Article 21(1)(a). Such
interpretation would also be in conflict with the remainder of
section 98 of POCA which gives the court, in ‘any’
proceedings before it, the discretion, on the additional grounds,

as listed in sub-section
2 (a) and (b), to direct that those proceedings be held behind closed
doors and that the public must not be present at those proceedings or
any part of them, and to review such decision at any time in terms of
sub-section (3).








[47]
In addition it is clear that the section also,
as
a whole,
does
not only have to be read in context
22
but also in conformity
with the common law and the Constitution.








[48]
These further aids of statutory interpretation thus become of
application.








[49]
O’Linn J formulated the latter interpretational aid in

Du Toit v Office of
the Prime Minister
23as
follows:








There
is further the related presumption which should be kept in mind
namely that the Legislature does not intend to change the common law
or the existing statute law more than necessary. See: Cockram
Interpretation of Statutes (supra at 98-9); Steyn Uitleg van Wette
(supra); Du Plessis Interpretation of Statutes at 69 - 73.



The
intention of the Legislature must appear from the words used in the
statute, read as a whole and where provisions of the Namibian
Constitution are relevant, then also in the context and in accordance
with the letter and spirit of the said provisions of the Namibian
Constitution. Where the provisions of international conventions are
relevant, then the provisions of such conventions should also serve
as an aid to establish the intention of the Legislature. …’.
24













WHAT IS THE APPLICABLE
COMMON LAW?








[50] Kriegler J (as he
then was) has traced the Southern African origin of the rule to
conduct trials in public back to a Proclamation issued in 1813 by the
Governor of the Cape Colony:








'Ten
eerste, die beginselbenadering. 'n Bevel dat hofverrigtinge in camera
geskied slaan nie bloot op prosedure nie maar sanksioneer 'n
fundamentele afwyking van 'n diepgewortelde tradisie wat ons
regspleging deel met oop gemeenskappe. Die wortels dateer, wat die
moderne tydvak betref, sedert 1813 toe die destydse Goewerneur in die
Kaap by proklamasie gelas het dat alle geregtelike verrigtinge in die
openbaar geskied met die oog op "essential utility as well as
the dignity of the administration of justice". Die onderliggende
doel was om by die burgery in te prent "the confidence that
equal justice was administered to all in the most certain, most
speedy and least burdensome manner".'
25








[51]
With the advent of South African rule of the former German colony
South West Africa after 1915, which brought with it the need to
create a new legal system for the administration of the territory,
the ‘Administration of Justice Proclamation’, 1919, was
enacted, which provided that the common law of South West Africa
shall be the Roman-Dutch law,
as
existing and applied,
in
the Province of the Cape of Good Hope. In
Tittel
v The Master of The High Court
1921
SWA 58, Gutsche J found that the words 'existing and applied' meant
that any legislation enacted in the Cape of Good Hope immediately
before 1 January 1920 (ie the date the proclamation became
applicable) formed part of the common law of South West Africa.

It would therefore seem
that the said 1813 Cape of Good Hope Proclamation was transplanted by
way of the 1919 Administration of Justice Proclamation into the
common law of the then South West Africa.
26








[52]
Article 66 (1) of the
Constitution – regulating this aspect, in turn, for purposes of
Namibia’s transition from South West Africa to a sovereign
state during 1990 - provided that the common law of Namibia in force
on the date of Independence would remain valid to the extent to which
such common law does not conflict with the Constitution or any other
statutory law.








THE EXISTING STATUTORY
AND CONSTITUTIONAL LAW








[53] At the same time
Article 12(1)(a) of the Constitution from 1990 onwards expressly
required all trials to be conducted in public, subject to the set out
exceptions.








[54]
At this juncture it is also relevant to note that - in any event –
and prior to the advent of the Constitution - Section 16
27
- of the repealed Supreme
Court Act no 59 of 1959 - already required the then Supreme Court of
South West Africa to carry on all proceedings in open court.








[55]
Almost immediately after Independence the Namibian legislature
enacted the aforesaid Section 13 of the High Court Act 1990 –
again encapsulating the ‘open-court’ principle –
which was enacted - in almost identical terms - also for the Supreme
Court.
28








[56] From this history it
must be concluded that the so-called ‘deep- rooted fundamental
principle’- to conduct trials in public- as contained in the
common law of South West Africa continues to exist side by side and
in conformity with statutory law and the Constitutional maxim.








[57]
In addition it will by now have been noted that the ‘open-court’
principle – ‘fundamental to all democratic societies’,

as also rooted in
Namibia’s common law and in the said statutory enactments and
its Constitution - has always catered for exceptions
29.








[58] At the same time it
will have become clear that ‘closed-door’ proceedings are
always the exception rather than the norm.








THE
IMPACT OF THE COMMON LAW-
STATUTORY LAW-
AND CONSTITUTIONAL LAW PROVISIONS ON THE
INTERPRETATION OF SECTION 98








[59]
In such circumstances the question arises why would the legislature
then have intended a departure from the entrenched norm in
sub-section 98(1), recognizing it at the same time in sub-sections
98(2) to (5)? It should also be asked why would parliament have
wanted to violate the important fundamental rule applied in all
democratic societies by creating an automatic exception thereto? It
can immediately be stated that it is highly unlikely that Parliament
would have intended such a departure from such a deep-rooted
fundamental principle given also that Namibia is a constitutional
democracy.








[60]
Also the unqualified use by the legislature of the phrase ‘…
in any proceedings before it …’ in sub-section

98(2) – which
phrase is wide enough to encapsulate
ex
parte
proceedings
- suggests that sub-section (2) was intended to govern the decision
whether or not ‘any proceedings’ – inclusive of ex
parte proceedings under POCA - should be conducted
in
camera
or
not. Such a conclusion would not only be in line with the context of
the section but would also accord with the said general common law
and statutory principles.








[61] A further important
indicator – if not the most conclusive one - supporting an
interpretation along these lines - is found in the legislature’s
choice of the introductory words to sub-section (1) ‘ …
Subject to this section … ‘ obviously meaning ‘ …
subordinate to what is contained in the remainder of section 98 .. ‘
intimating that section 98(1) must be read, subject, to the remainder
of the section.








[62] It surely would have
been an easy matter for Parliament to have decreed - in clear and
unambiguous language - for instance – if that is what was
really intended – that all proceedings, instituted in terms of
POCA, if brought on an ex parte basis, must be heard in
camera. This intention was however not unambiguously expressed








[63]
All these indices then drive me to the conclusion that the section
then permissively and only in directory terms was intended to mean
that
‘ … all
ex parte hearings, contemplated
in
POCA, ‘may’ be held behind closed doors – if the
requirements for the exclusion of the public – set by
sub-section (2)
(and
by the Constitution)
have
been met,
… ‘ whereas
all other proceedings,
contemplated
in POCA,
… ‘must’
be held open to the public … ‘. This is decreed in
peremptory terms.








[64] Ultimately such
interpretation would, in my view, not only give recognition to the
common law, but would also be one in conformity with the High Court
Act, and more importantly, would also accord with the letter and
spirit of the relevant provisions of the Namibian Constitution and
the ‘fundamental principle’ accepted in democratic
societies.








[65] This finding then
means that Mr Budlender’s first argument - that the applicant
was simply, because of the fact that the court was approached on an
ex parte basis, also entitled, per se, to an in camera
hearing - cannot be upheld. This finding would
also mean that Mr Budlender’s second argument to the effect
that it was the National Assembly that had determined in Section
98(1) of POCA that
ex parte
proceedings under the Act automatically constitute
one of the constitutionally permissible circumstances to conduct a
hearing or trial behind closed doors also cannot be upheld.



[66] Although the point
was well taken by Mr Budlender – that a constitutional
declaration of invalidity of Section 98 of POCA could not be validly
made in these proceedings - in view of the formulation of the issues
on the papers, and in the absence of an express constitutional attack
on the section - the point in limine raised on behalf of
respondent can, in my view, and as contended for by Mr Namandje,
nevertheless, be validly determined on an afresh consideration of the
facts against the backdrop of the interpretation of Section 98 as
made above.








[67] This leads to the
final question which has to be determined namely, whether or not the
applicant had thus, on the facts, ultimately, acted within the
parameters provided for by Section 98 of POCA and the Constitution
and whether the court, which granted the rule nisi, in this instance,
therefore correctly allowed the hearing before it to take place
behind closed doors.








[68] This question must
also be answered with reference to the applicable approach the court
is to take when faced with the question of whether or not to confirm
a rule nisi.








THE APPROACH ADOPTED
ON THE RETURN DATE








[69]
The approach that the court is to take on the return date has
recently again been set out by the court in the case of
Prosecutor
General v Kanime
30
in which the court
applied the test formulated in the South African judgment of
Gomeshi-Bozorg
v Yousefi
31,
as adopted by this court in
Prosecutor
General v Lameck and Others
32








[70]
It appears from these authorities that the court is essentially
tasked to consider the matter ‘afresh’ on the return date
- that is on the merits - in the light of all the information which
has by then been placed before the court – ‘as if the
order was first being applied for’
33.



THE APPLICANT’S
CASE ON THE PAPERS








[71]
The applicant initially sought to justify the ‘
ex
parte
,
in
camera
hearing
in the founding papers filed of record, as follows:








EX
PARTE AND IN CAMERA



I
respectfully submit that section 51(2) of the Act, read with section
98 thereof, entitles me to approach this Honourable Court on an ex
parte basis.



I
respectfully submit that the express provision made for ex parte
proceedings under section 51(2) of the Act is based on the
recognition by the Legislature that there is an inherent need to
proceed without notice in applications for preservation orders.
Further, that the structure of Chapter 6 of the Act as a whole is
geared towards allowing in general for an initial ex parte order to
secure assets that may disposed of, with any opposition thereto being
dealt with after this initial objective has been met.



Proceeding
on notice to anyone with an interest in the property will lead to a
delay of many months. During that time the state’s interest in
the property will be under someone else’s control, and
unprotected.



The
parties interested in property of this kind inevitably have a
powerful incentive to dissipate their property if they get notice of
a pending application for its preservation and seizure.



That
risk exists whether the property is movable or immovable. Once
released, there is an inherent danger of it being dissipated
immediately. In matters of this kind there is accordingly an inherent
need to proceed on the basis of an initial ex parte application.



After
the preservation order dated 5 August 2011 under POCA 7/2011 was
granted, Gerson Uuyuni Uuyuni (“Mr Gerson”), a person who
was known to me to have an interest in the properties, filed a notice
to oppose the making of a forfeiture order in terms of section 52 of
the Act.



I
respectfully submit that due to what transpired in respect of the
proceedings under POCA07/2011, it will in this circumstance be
appropriate to require only an interim preservation order coupled
with a rule nisi, calling upon Mr Gerson to advance reasons why the
preservation order should not be made final, instead of a final
preservation order.



There
is still a risk of dissipation of the properties especially relating
to the movable properties. For this reason I respectfully submit that
it would be in the interest of justice for the hearing to be held in
camera. Once the interim order is granted and the properties are
under the protection of the interim preservation order the
application and all the documents become public documents.



I
submit that, notwithstanding the ex parte nature of the present
application, the provisions of the Act and of the order that is
sought from this Honourable Court sufficiently safeguard the
principle of audi alteram partem.’








[72]
The respondent reacted thereto in the answering papers by raising a
point
in limine formulated
thus:








AD
POINT IN LIMINE: HEARING OF THE MATTER IN CAMERA



I
raise the following point in limine:




  1. the
    applicant caused the matter to be heard in camera without making out
    a case in that respect. I have been advised, which advice I verily
    believe to be correct, that the fact that the matter is to be heard
    on an ex parte basis does not necessarily mean that it should be
    heard in camera. A case has to be properly and fully made out for a
    matter to be heard both on an ex parte basis and in camera.



  2. in
    terms of Article 12(a) of the Namibian Constitution it is provided
    that ‘in the determination of their civil rights and
    obligations or any criminal charges against them all persons shall
    be entitled to a fair and public hearing by an independent,
    impartial and competent court and the court can only exclude the
    Press or the public from all or any part of the trial for reasons of
    morals, the public order or national security as is necessary in a
    democratic society’
    .









I
therefore submit, that the applicant having not made out a case for
the existence grounds provided for under Article 12(a) as necessary
in a democratic society, a material irregularity to wit hearing of
the matter on 11 April 2012 in camera occurred. That irregularity, I
submit, vitiates the whole proceedings and the provisional order
should be discharged with costs simply on that basis.’








[73] The applicant
defended her position in reply by stating:








Third
point in limine (in camera proceedings):



The
Respondent implicitly admits that there may be grounds on which an ex
parte application may also be brought in camera. The Act explicitly
authorizes an ex parte application.
I
submit that the very purpose of authorizing ex parte proceedings, and
of obtaining a preservation order, would be defeated if the
application was not heard in camera.



At
the very heart of the preservation order, and particularly at the
stage of the rule nisi, is the prevention of the dissipation of
property reasonably believed to be the proceeds of unlawful activity
or the instrumentality of crime.
In
order to ensure that the court order issued in this respect is
effective, the proceedings must remain confidential until the court
order has been both issued and served on the various persons who must
be given notice.
This is
why the initial court order ought to be in the form of a rule nisi,
in order to do justice between the parties.



Section
98(1) of the Act creates a general rule that hearings contemplated in
the Act must be open to the public. It explicitly excludes ex parte
applications from that general rule.



The
Constitution authorizes in camera hearings in certain exceptional
circumstances. The National Assembly has determined, in section 98(1)
of the Act, that ex parte proceedings under the Act are one of those
exceptional circumstances. The Respondent has not challenged the
validity of section 98(1). That being so he cannot assert that
holding an ex parte hearing in camera is inconsistent with the
Constitution. It is authorized by section 98(1) of the Act.

(my underlining)








[74]
From the founding papers - with reference to which an applicant will
in any event have ‘to stand or fall’
34
it emerges that
the applicant’s initial and only justification for having the
matter heard behind closed doors was the fear that:

‘…there is
still a risk of dissipation of properties, especially movable
property and that the exclusion of the public was sought to ensure
that any court order issued would be effective … ‘.








[75] On a comparison of
the grounds on which the ex parte and in camera hearing
was sought it also appears that the applicant’s entire
motivation - as found in the founding papers - mainly focuses on the
justification for not giving notice to the respondent of the
application.








[76] The grounds advanced
for approaching the court on an ex parte basis were
essentially –









  1. that
    section 51(2) of the Act, read with section 98 thereof,
    entitles the applicant to approach the Court on an ex parte
    basis; and



  2. That
    the provision made for ex parte proceedings in section
    51(2) of the Act amounts to the recognition by the Legislature that
    there is an inherent need to proceed without notice in
    applications for preservation orders; and



  3. that
    the structure of Chapter 6 of POCA, as a whole, is geared towards
    allowing generally an initial ex parte order to secure
    assets that may disposed of, with any opposition thereto being dealt
    with after this initial objective has been met; and



  4. ‘ … that
    the
    proceeding on notice

    to anyone with an interest in the property will lead to a delay of
    many months during which time the state’s interest in the
    property will be under someone else’s control, and be
    unprotected - parties interested in property of this kind inevitably
    have a powerful incentive to dissipate their property
    if
    they get notice

    of a pending application for its preservation and seizure - that
    risk exists whether the property is movable or immovable - once
    released, there is an inherent danger of it being dissipated
    immediately - matters of this kind accordingly have an inherent need
    to proceed on the basis of an initial ex parte application …
    ‘.
    (emphasis
    added)









[77] The said comparison
then reveals that at the core of the applicant’s motivation
lies the fear that the very purpose of obtaining preservation orders
would be defeated if notice of the intended proceedings were to be
given to a respondent. It is then simply added – as if by some
afterthought - that - for the same reasons - it would also be in the
interest of justice for the hearing to be held behind closed doors.








[78] While it is
immediately clear, on the one hand, that it may, in certain instances
definitely also be in the interests of justice that such cases be
heard behind closed doors, the fear of the dissipation of assets,
intended to be preserved, would, on the other, in most cases, not on
its own and without more, justify a hearing behind closed doors, as
the intended objective would already be achieved by the bringing of
the application without notice.








[79] The point is
conveniently illustrated with reference to the commentary on ex
parte
applications found in some of the leading text books on
civil procedure:









  1. The learned authors Van
    Winsen, Cilliers & Loots in ‘Herbstein & Van Winsen
    - The Civil Practice of the Supreme Court of South Africa

    , for instance, state:









An
ex
parte

application is used:








  1. when,
    though other persons may be affected by the court’s order,
    immediate relief (even though it be temporary in nature) is
    essential because of the danger in delay or because notice may
    precipitate the very harm the applicant is trying to forestall, for
    example an application for an interdict or an arrest
    tamquam
    suspectus de fuga
    under
    the common law.’
    35










  1. Similar commentary is
    found in ‘Erasmus - Superior Court Practice’ by
    Farlam, Fichardt & van Loggerenberg :









An
ex parte application is used:













  1. were
    the nature of the relief sought is such that the giving of notice
    may defeat the purpose of the application, eg an Anton Piller-type
    order;



  2. where
    immediate relief, even though it may be temporary in nature, is
    essential because harm is imminent. In such cases the applicant will
    often seek a rule nisi, the application then being in the nature of
    an ex parte application in terms of this subrule;



  3. where
    certain kinds of applications are customarily brought ex parte …
    ‘.
    36









[80] It emerges therefore
that the applicant’s concerns could have been addressed -
meaningfully - just like in the suspectus de fuga cases or in
applications for Anton Piller orders - though the bringing of an ex
parte
application, which the applicant was in any event entitled
to do, in terms of Section 51(2) of POCA, and which was also done in
this instance.








[81] If one then - for
purposes of the afresh consideration of all the evidence before the
court - considers on what further grounds the initial reasons
advanced were amplified in the replying papers nothing really new
emerges :









  1. it is in reply firstly
    reiterated that ‘the very purpose of authorizing ex parte
    proceedings, and of obtaining preservation orders, would be defeated
    if such applications would not be heard in camera and that, in order
    to ensure that any court order issued in this respect would be
    effective, the proceedings must remain confidential until the court
    order has been both issued and served on the various persons who
    must be given notice’ –




(this justification does
not break new ground and is covered by what has been said above in
respect of the motivation for excusing an applicant from not having
to give notice to a respondent in certain cases); and




  1. secondly, the argument
    was now made that ‘although Section 98(1) of POCA creates a
    general rule that hearings contemplated in the Act must be open to
    the public it explicitly excludes ex parte applications from that
    general rule’; and



  2. thirdly, it is stated
    that ‘because the Constitution authorizes in camera
    hearings in certain exceptional circumstances the National Assembly
    has determined, in section 98(1) of the Act, that ex parte
    proceedings under the Act are one of those exceptional
    circumstances’; and



  3. finally the point was
    made that ‘as the respondent had not challenged the validity
    of section 98(1) he could not assert that an ex parte hearing
    in camera was inconsistent with the Constitution and that in any
    event section 98(1) of the Act authorized the utilization of such
    procedure’ –









(all these grounds have
already been held not to be in accord with the correct interpretation
to be given to section 98 above).








[82] This then leads to
the consideration the central question whether or not the applicant
has met the requirements set by section 98 (2) of POCA and the
Constitution?



[83] In this regard it is
firstly of relevance that it is without question that section
98(2)(b) is not of application.








[84] Secondly I consider
that the requirements set by section 98(2)(a) were also not met as
the bringing of this application, without notice to the respondent,
already satisfied the interests of justice, which, in this instance,
did not also require the exclusion of the public on the facts of this
case.








[85] In this regard it
must also be kept in mind that the respondent was forewarned during
the proceedings before the lower court on 28 July 2011 that an
application for the preservation of his assets would be brought or at
least was contemplated and that if he had wanted to dissipate his
assets he could have done so by the time that the first preservation
order was applied for on 5 August 2011.








[86] As also nothing was
shown on the papers which warranted the extra-ordinary departure from
the general rule as to the exclusion of the public for reasons
also of morals, the public order or national security as is necessary
in a democratic society
it must be concluded further that also
the requirements of Article 12(1)(a) of the Constitution were not
met.








[87] In such
circumstances I therefore ultimately also find on the facts of this
case that the in camera hearing in this matter was never
warranted and should never have occurred.








WHAT RELIEF SHOULD BE
GRANTED








[88]
At this stage it should be mentioned that Mr Budlender
37
also properly referred
the court to the requirement of ‘good faith’ in
ex
parte
applications
which would entitle a court – should any material facts not
have been disclosed - whether or not suppressed deliberately or
negligently - on that ground alone - to dismiss an application
originally brought without notice.
38
From the applicable
principles it appears also that the court – on a return date -
will not hold itself bound by any order obtained under a consequent
misapprehension of the true position.
39








[89] Although the present
matter does not entail a re-consideration of the rule nisi on the
basis of the enquiry whether or not the applicant has breached the
requirement of ‘good faith’, I have no doubt that where a
court finds, on an afresh re-consideration of all the facts, on a
return day of a rule nisi, that a fundamental requirement of the law
has been breached that this would also warrant the discharge of any
interim order granted in breach thereof.








[90] Amongst the factors
which a court surely will be entitled to take into account in the
exercise of its discretion will be the extent to which a fundamental
rule and basic requirement of our system of justice has been
breached. I have already found that not only had no case been made
out for the departure from the overall requirements set by section 98
– (that in general all hearings in term of POCA have to be open
to the public) - but that, in casu, also the particular
requirements set by Section 98(2) had not been met. Ultimately - and
what should even weigh even more heavily - is that also the
fundamental requirement - to hold trials in public - as decreed by
the Supreme law - was violated in this case.








[91] I have no doubt that
if the court, which granted the rule nisi in this instance, would
have had the benefit of argument on this fundamental issue, it would
have been influenced in its willingness to have accommodated the
hearing of this matter behind closed doors.








[92] In similar vein
therefore I do not consider myself bound by the rule nisi granted
herein in violation of one of the most fundamental requirements,
deeply embedded in our law, that justice must be seen to be done.








[93] Therefore, and on an
afresh consideration of this matter, on all the material before the
court, as if the order was first being applied for, I find that the
exclusion of the public, at the initial hearing of this matter,
inclines me to refuse to exercise my discretion in favour of
confirming the interim order granted in this instance.








[94] The rule nisi
granted on 11 April 2012 is accordingly discharged with costs

































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



H GEIER



Judge






































APPEARANCES








APPLICANT: G M Budlender,
SC



Instructed by Government
Attorney, Windhoek.








RESPONDENT: S Namandje



Sisa Namandje & Co. Inc.,Windhoek




1See
Shalli v Attorney General (POCA 9/2011) [2013] NMHCMD 5 (16
January 2013)





2See
Shalli v Attorney General at paragraphs [31] – [37]
thereof





3Article
12 (1)(a) ‘In the determination of their civil rights and
obligations or any criminal charges against them, all persons shall
be entitled to a fair and public hearing by an independent,
impartial and competent Court or Tribunal established by law:
provided that such Court or Tribunal may exclude the press and/or
the public from all or any part of the trial for reasons of morals,
the public order or national security, as is necessary in a
democratic society’.





42000(4)
SA 1078 CC at paragraph 37(A)





51998
(3) SA 785 (CC) (1998 (7) BCLR 779) at para [85]





61996
(2) SA 751 (CC) (1996 (4) BCLR 449) at paras [46] and [60]





71996
(3) SA 562 (CC) (1996 (4) BCLR 592) at paras [6] and [18]





82000
(2) SACR 349 at paras [22] - [23]





92009(2)
NR 769 (HC) at 775





10Unreported
judgment, Case Number P(A) 245/2006, p 29 par 29





112005
(2) SACR 437 (E)





121990
(3) SA 937 (W)





131984
(4) SA 149 (T)





14See
for instance generally ‘The Interpretation of Statutes’
by GM Cockram at p19 and Innes CJ in Venter v R at 913





15See
also generally Cockram : ‘The Interpretation of Statutes’
at p24 were the learned author cites what Denning LJ stated in
Francis Jackson Developments Ltd v Hall : ‘If the literal
interpretation of a statute leads to a result which Parliament can
never have intended, the courts must reject that interpretation and
seek fro some other interpretation which does give effect to the
intention of Parliament.’





162003
NR145 (SC) at 152 which it utilized in interpreting Section 6 of the
Supreme Court Act 1990





17See
for instance also : Francis Jackson Developments Ltd v Hall
[1951] 2 KB 488, Venter v R 1907 TS 910 at 914 -915,
Principal Immigration Officer v Hawabu 1936 AD 26 at 30 -31





18Hearings
of court to be open to public’





19See
sub-sections 89(2) – (5)





20Which
also, as a general rule, requires that all proceedings in the High
Court shall be carried on in open court’





21Article
1(6)
This Constitution shall be the
Supreme Law of Namibia.





22See
for instance Wessels AJA in Stellenbosch Farmer’s Winery
Ltd v
Distillers Corp (SA)
Ltd 1962
(1) SA 458 (AD) at 476





231996
NR 52 (LC)





24at
74 B-C





25Botha
v Minister van Wet en Orde en Andere
op cit at 940D-F





26This
requirement also seems to have been embodied in Section 32 of the
Cape Charter of Justice : see : ‘Uniform Rules of
Court’
, 3rd Ed by Nathan Barnett & Brink at
p 10





2716.
Save as is otherwise provided in any law, all proceedings in any
court of a division shall, except in so far as any court may in
special cases otherwise direct, be carried on in open court.’





28See
: Section 6 of Act 15 of 1990 - Proceedings of Supreme Court to be
carried on in open court – ‘Save as is otherwise
provided in Article 12(1)(a) and (b) of the Namibian Constitution,
all proceedings in the Supreme Court shall be carried on in open
court.’





29See
for instance also some of the earlier South African decisions :
Financial Mail (Pty) Ltd v Registrar of Insurance and Others
1966 (2) SA 219 (W) at 220E-222D; Du Preez v Du Preez: Standard
Bank of SA Intervening
1976 (1) SA 87 (W) at 88A-F; Cerebos
Food Corporation Limited v Diverse Foods SA (Pty) Ltd and Another

(supra at 158A-I): S v Leepile and Others (1) 1986 (2) SA 333
(W); S v Leepile and Others (4) 1986 (3) SA 661 (W); Botha
v Minister van Wet en Orde en Andere
1990 (3) SA 937 (W) at
940D-942I





30At
para’s [53] – [54] of the judgment reported on the
Saflii website at
http://www.saflii.org/na/cases/NAHC/2012/335.html





311998
(1) SA 692 (W) as approved in Pretoria Portland Cement Co Ltd &
Another v Competition Commission & Others
2003 (2) SA 385
(SCA) at 404B





322010
(1) NR 156 (HC) at page 159 para [4]





33Gomeshi-Bozorg
v Yousefi
op cit at 696





34See
for instance Titty’s Bar and Bottle Store Pty Ltd v ABC
Garage Pty Ltd
1974 (4) SA 363 (T) at 368H – 369B and
generally : Erasmus Superior Court Practice at pages B1- 39 and 45
(Service 40,2012 and 37,2011)





355th
Ed, Vol 1, at p290





36At
page B1 – 41 (service 40, 2012)





37He
made this submission in the context of submitting what the correct
approach of the court should be on a return date of a rule nisi,





38Knouwds
NO v Josea & Another
2007 (2) NR 792 (HC) see also
Doeseb &
Others v Kheibeb &
Others 2006 (2) NR 702 (SC)





39See
for instance :
Erasmus Superior Court
Practice
op cit at p B1 – 42
(Service 40,2012)