Court name
High Court Main Division
Case name
Keramen v Council of the Municipality of Windhoek and Others
Media neutral citation
[2014] NAHCMD 237
Judge
Smuts J










REPUBLIC
OF NAMIBIA










HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK






JUDGMENT






Case
no: A 262/2013






DATE:
08 AUGUST 2014






REPORTABLE






In
the matter between:






DESMOND
DE-ALFA
KERAMEN........................................................................APPLICANT






And






COUNCIL
OF THE MUNICIPALITY OF WINDHOEK...............................1st
RESPONDENT


THE
BOARD OF
INQUIRY.........................................................................2nd
RESPONDENT


NIILO
K
TAAPOPI.....................................................................................3rd
RESPONDENT


ADAM
EISEB.............................................................................................4th
RESPONDENTkERAMEN


ABRAHAM
KANIME.................................................................................5th
RESPONDENT


MS
S
SIMPSON..........................................................................................6th
RESPONDENT


NDAPANDA
KANJEMBA..........................................................................7th
RESPONDENT






Neutral
citation: Keramen v Council of the Municipality of Windhoek
(I2622/2013) [2014] NAHCMD 237 (8 August 2014)








Coram:
SMUTS, J



Heard:
24 July 2014



Delivered:
8 August 2014






Flynote:
Application to review and set aside
decision making resulting in the discharge of the applicant as a
member of the Windhoek City Police. The thrust of the applicant’s
challenge was an infringement of the double jeopardy rule because
board of inquiry under Regulation 18 had found he was unfit for
service on grounds and factual matter which had formed the subject
matter of prior disciplinary proceedings under Regulation 19. The
court found that the different purpose of board of inquiry meant the
double jeopardy rule had not been infringed. The court found that the
applicant had failed to establish any vitiating irregularity and
dismissed the application with costs.






ORDER






The
application is dismissed with costs.






JUDGMENT








SMUTS, J


[1]
The applicant was a member of the
City Police of the Windhoek Municipality. In this application, he
seeks to review and set aside the decision making which led to a
decision to discharge him from the City Police. It involved a board
of inquiry which recommended his discharge from his position and the
dismissal of the internal appeal against the decision to discharge
him.






[2]
Although several review grounds are
raised in the founding affidavit, the applicant’s challenge
against the decision making crystallised in the applicant’s
complaint that the decision making was in violation of his rights
under articles 18 and 12 of the Constitution because that decision
making was based upon facts which had formed part of an earlier
disciplinary proceeding taken against him. In those disciplinary
proceedings he had been acquitted on all but one of the charges and
been sentenced to a reprimand in respect of the charge upon which he
had been found guilty. The applicant contended that his right to a
fair trial and to fair and reasonable administrative action were
infringed because of the doctrine of
atrefois
acquit
or the double jeopardy rule had
been violated. Several other review grounds were raised in the
founding affidavit. But they were unsupported and the applicant did
not supplement those review grounds after the record had been filed.






[3]
The dispute between the parties is
thus rather narrow. This is because the respondents’ version is
that they accept that the charges which formed the subject matter at
the disciplinary hearing were substantially the same as those raised
against the applicant at the subsequent board of enquiry. But the
respondents deny that the applicant was subjected to double jeopardy
because a board of enquiry under Regulation 18 of the Windhoek
Municipality Police Serves Regulations (the Regulations) differs from
disciplinary proceedings directed at misconduct under Regulation 19.
The respondents assert that the nature and purpose of the two
different enquiries, posited by Regulations 18 and 19 respectively,
are entirely different. The respondents contend that the enquiry
based upon Regulation 18 (1)(c) is directed at the protection of the
public and the State and not at disciplining a member of the City
Police.






Factual
background facts






[4]
The applicant joined the Windhoek
Municipal Police Service(the City Police) in 2005. He had
subsequently been promoted to the position of sergeant.






[5]
During 2011 he was charged with
several counts of misconduct. Shortly stated, these charges were:


·
That the applicant during November 2009 had
falsely represented himself as an investigator of the Namibian Police
leading persons to believe that this activity was authorised by the
police or by the City Police;


·
Between November 2009 and June 2011 the
applicant associated with or was seen in the presence of persons who
were under investigation;


·
That the applicant refused to or neglected
to follow orders by a superior officers during May 2011.


·
That during November 2009 the applicant
falsely represented himself to be investigator of the police in order
to obtain statements which involved a fraud and as result brought the
City Police into disrepute;


·
That the applicant had in November 2009
attempted to extort and advantage from members of the public which
was not due to him






[6]
A disciplinary inquiry was held in
September 2011. The applicant was found guilty on the charge relating
to the refusal or failure to obey orders from his superior officers
in May 2011 and was acquitted on all of the other charges. The
disciplinary committee members could not however agree upon a
recommended sanction. The three members each made their own
recommendation. These were a suspended dismissal, demotion in rank
and remuneration and thirdly a reprimand valid for 12 months
respectively. The Municipality’s Chief Executive Officer (CEO)
adopted the last recommendation (of the reprimand) and the
applicant’s suspension from duties was lifted on 8 February
2012.







[7]
Shortly afterwards and on 7 March
2012 the applicant was given notice that a board of enquiry had been
constituted under Regulation 18(1) for the purpose of enquiring into
his fitness to remain in the Municipal Police Service under
Regulation 18(1)(c).






[8]
On 5 April 2012, the applicant was
provided with the grounds which formed the subject matter of the
enquiry upon which it would be determined whether he was fit to
remain in the Service. Most of these grounds had formed the subject
matter of the disciplinary proceedings against him held in September
2011. They were specified as follows:


·
On 1 June 2009 the applicant was said to be
in the company of well known criminals off duty, with his two way
radio on;


·
The applicant was implicated in the case of
fraud of N$42 million on 16 November 2009 and was criminaly charged
for that offence;


·
While on suspension from his service, the
applicant was seen at the Hakahana Service Station again in the
company of Mr Kambou who was alleged to be a well known diamond
dealer and that this fact (of being in his company) had been
confirmed by Mr Kambou;


·
The applicant was involved in an armed
robbery at the Safari Hotel on 13 May 2011;


·
That the applicant had failed to carry out
an instruction by the area commander to report at his office on 13
May 2011;


·
The applicant failed to comply with the
similar instruction given to him by the head of the City Police to
report himself on 14 May 2011 at 8h00 hours;


·
The applicant had failed to carry out the
instruction of the Acting Senior Superintended to surrender all City
Police properties in his possession on 19 May 2011.






[9]
It is common cause that except for
having his two way radio on whilst in the company of alleged well
known criminals, the grounds of the enquiry were identical to the
charges which formed the subject matter of the disciplinary
proceedings against him in September 2011.






[10]
The board of enquiry commenced its
proceedings in July 2012 and concluded them on 8 August 2012. The
board found that the applicant was not fit to remain in the service
of the City Police and recommended his discharge from the Service. In
reaching this conclusion, the board referred to the role and function
of the City Police Service which concerned the protection of life and
the provision of security and concluded that the applicant’s
association with well known criminals and his conduct during the
Safari Hotel robbery incident gave rise to a risk to the State, and
persons residing in the city of Windhoek and property within
Windhoek.






[11]
The board’s recommendation was
subsequently accepted by the CEO of the City of Windhoek on 1
February 2013. The applicant appealed against the CEO’s
acceptance of the recommendation to the City Council. The Council in
turn dismissed the appeal and upheld the decision of the CEO to
accept the recommendation of the board of inquiry that the applicant
be discharged from the services of the City Police with effect from 2
February 2013.






[12]
The question for determination thus
relates to whether the proceedings conducted under Regulation 18
offended against the double jeopardy rule and thus violated the
applicant’s constitutional rights to fairness in that sense. In
determining this question, the purpose and ambit of the two
respective regulations are first considered.






Regulation
18






[13]
Regulation
18 forms part of the Regulations promulgated in 2004 under s42 of the
Police Act, 1990.[1] These
regulations set out the fixed establishment and organisation of the
Service and conditions of service including appointments and
termination of service of its members. They further provide for
matters of discipline and other issues relating to conditions of
service. By virtue of establishment of the City Police under the
Police Act, the Labour Act[2]
does not apply to the employment of members of the City Police.[3]
That is the reason why these proceedings are brought in this court
and not in the Labour Court.






[14]
Regulation 18 is entitled
‘Inquiries.’ The relevant portion of the regulation are
as follows:


(1.)
The Chief Executive Officer may designate three members or staff
members, one representing the Service, one with expertise in
Industrial Relations and a member of the Council’s Legal
Division, to be known as a board of inquiry who, in general or in a
specific case, may inquire into –


(a)
the fitness of a member to remain in the
Service on account of indisposition, ill-health, diseases or injury;


(b)
The fitness or capacity to perform his or
her duties or to carry them out efficiently;


(c)
The fitness of a member to remain in the
Service if the member’s continued employment constitutes a risk
for the State, any person residing in the City of Windhoek or any
property situated with the City of Windhoek.


(d)
An injury alleged to have been sustained by
a member in an incident arising out of or into the course of his or
her duty or a disease or indisposition alleged to have been
contracted in the course of his or her duty or any subsequent
incapacitation alleged to be due to the same injury, disease or
indisposition; or


(e)
the death of a member alleged to have been
caused as a result of circumstances referred to in paragraph (d).


.
. .


(4)
After the conclusion of an inquiry referred to in subregulation (3),
the board of inquiry must –


(a)
compile a report on its findings and recommend to the Chief Executive
Office one of the following –


(i)
no action may be taking against the member;


(ii)
the member be discharged from the Service; or


(iii)
any other appropriate steps be taken against the member, including
referral to a disciplinary inquiry in terms of regulation 19.


(b)
in writing inform the member who is the subject of the inquiry of its
findings and recommendations.


(5)
The Chief Executive Office, on receipt of the recommendations
contemplated in subregulation (40, may –


(a)
accept and implement any recommendation; or


(b)
change any recommendation as he or she thinks reasonable and fair
under the circumstances.’






[15]
Regulation 19 on the other hand is
headed ‘Disciplinary Inquiries.’ It sets out the
procedure to be followed by a board when disciplining a member for an
act of misconduct. It sets out the manner in which charges are to be
preferred against a member and the procedure to be followed at a
disciplinary enquiry. It provides that if a member who is charged
with misconduct is found guilty, the board is to file a report on its
findings and recommend one of six different options in respect of a
sanction. These include a reprimand, reduction in rank or
remuneration of both, a fine not exceeding N$2000, being required to
pay any loss, discharge from the service and finally being called
upon to resign from the service on day to be fixed by the CEO.






[16]
A board of enquiry under Reg 18 thus
concerns the fitness of a member to remain in the Service by reason
of indisposition, ill-health, disease or injury, capacity to perform
duties efficiently or if that member’s continued employment
constitutes a risk for the State or persons residing in Windhoek or
property in Windhoek or by reason of an injury or death on duty.






[17]
As was pointed by Mr Marcus, who
represented the respondents, Reg 18 vests in the CEO wide powers to
convene such an inquiry. No jurisdictional facts are set by the
Regulation in order to invoke the power to do so. The regulation sets
the purpose for which it is convened and the range of recommendations
which may be made to the CEO at its conclusion in Reg 18(4)(a). There
are three options. No action may be recommended against the member or
his discharge may be recommended or any other appropriate steps
including a referral to disciplinary inquiry under Reg 19.






[18]
Mr Denk who appeared for the
applicant argued that the referral to a disciplinary inquiry as one
of the options expressly provided for meant that the CEO would be
precluded from convening an inquiry under Reg 18
after
a disciplinary inquiry under Reg 19 (as that option would no longer
be open to him. I disagree. The fact that a referral for a
disciplinary inquiry is one of the recommendations which can be made,
does not in my view mean that an inquiry under Reg 18 cannot be
convened after a disciplinary inquiry. It simply does not follow from
the two regulations considered in the context of the regulations as
whole.






[19]
The fact that recommending a
disciplinary inquiry is one option open to a board of inquiry under
Reg 18 does not mean that a Reg 18 inquiry would be precluded when
disciplinary inquiries have been held. The argument confuses the
source of the power to convene an inquiry with one of the options
open to a board to recommend. Regulation 18 does not, upon its
ordinary meaning, restrict the CEO’s power to convene such
inquiries in cases excluding those where disciplinary proceedings
have been held. Reg 18 inquiries are essentially to consider the
capacity and fitness of members to serve as opposed to addressing
discipline. If in the course of such an inquiry, a board considers
that the matter referred to it amounts to misconduct and should form
the subject of a disciplinary inquiry, this would be an option open
to it in the range of recommendations it can make. It does not mean
that a Reg 18 inquiry cannot follow a disciplinary inquiry as
that
is not its overall object. It would merely exclude that option from
its range of options open to it in that instant.






[20]
Although a disciplinary inquiry can
also result in a discharge from the Service, a lesser sanction may
mean that a disciplined member could be considered unfit for the
Service by reason of the conduct which formed the subject matter of
the disciplinary action even though discharge was not considered the
appropriate sanction as a disciplinary measure for the infraction.






[21]
The
two inquiries have different purposes. Under Reg 18, the purpose is
to determine whether a person is fit or not fit for the Service in
order to protect the public and public order represented by the State
and property. Mr Marcus argued that this regulation is enacted for
the protection of the public who rely upon the police to maintain law
and order. He referred to the approach of Van Niekerk J in her
closely reasoned minority judgment in
Disciplinary
Committee for Legal Practitioners v Murorua.
[4]
When discussing the nature of the enquiry as to whether to strike a
practitioner off the roll, Van Niekerk J referred to sound authority
of the South African Supreme Court of Appeal,[5]
where it was stressed that the main consideration is the protection
of the public.[6] Although hers
was a dissenting judgment in the matter, the majority did not
question the soundness of the approach in
Malan
and
in fact cited it with approval. The majority rather differed on the
question as to whether the practitioner question should be struck
from the roll
.[7]






[22]
A disciplinary inquiry under Reg 19
is directed punishing a member for misconduct if it is established.
This on the other hand is a vastly different purpose to an inquiry
under Reg 18.






[23]
In
considering whether a member is fit or unfit for the service, Mr
Marcus referred to the duties of members of the police articulated in
S
v Nakale and Others
.[8]


The
public expects members of the police to act with integrity and to
discharge their difficult duties with honestly and dedication. If
police officers conduct themselves dishonesty, abuse the extensive
powers vested in them by law for the good of all and strike fear in
the hearts of those they are supposed to serve to extort money or
favours from them, it will lead to a loss of respect, confidence and
faith in the very mechanisms society has put up through Government to
protect against such abuses.’






[24]
Mr Marcus referred to the oath which
the applicant as a City Police member is required to take when
assuming his duties. It includes performing his duties to the best of
his ability and to faithfully and impartially maintain law and order,
prevent crimes and protect life and property.






[25]
In this matter the board of inquiry
was convened after the applicant had been found guilty of disobeying
instructions of his supervisors in May 2011. Those instructions were
given in connection with an alleged robbery at the Safari Hotel. He
had failed to follow the instruction given to him and to assist in
the investigation after having been identified in CCTV as being at
the scene. The CEO decided to convene an inquiry to investigate his
fitness as a member after this and to look into the other matters
raised in his disciplinary proceedings.






[26]
In considering whether he was fit to
serve, the incident at the Safari Hotel understandably was a weighty
consideration when considered by Council on appeal from the CEO’s
acceptance of the recommendation to discharge the applicant.






[27]
In her answering affidavit the Mayor
stated that the Council took into account:


·
In order for the police to properly
discharge their constitutional and statutory function of maintaining
law and order it is essential that the members of the public and
trust in the members of the police service;


·
Whether or not the public has the necessary
trust in the police, depends on the integrity of the individual
officers when performing their police function;


·
Given the sometimes dangerous overt or
convert operations that police officers engage in, when fighting
crime and maintaining law and order, it is necessary for the
individual members to trust each other and to be able to depend on
each other;


·
To effectively perform their police
functions maintenance of discipline, which includes following lawful
orders is essential.’






[28]
The Mayor further pointed out:


The
board found that, the allegations that the applicant was associating
with a known criminal and was seen with the two-way radio on while in
such company had been established.






The
record established that the applicant admitted to socialising with
‘Chicken’ and also viewed it as part of his right or
freedom to associate with whomever he wanted to.






In
the opinion of Council, the finding by the board on his charge
impacts on the fitness of the applicant to remain in the police
service. Quite clearly, members of the public will be less willing to
come forth with confidential information or seek the assistance by
the applicant if he is known to associate with known criminals.






Council
also was of the view that the fact that applicant had his two
way-radio on while he was at ‘Chicken’s’ house, can
only serve to undermine the trust and confidence that his colleagues
have in him: information communicated to the applicant will not be
deemed to be safe. It’s a matter of common knowledge that
confidential information is often exchanged via two-way radios
between members. During the inquiry Sup Kellermann testified that he
no longer trusts the applicant.’






[29]
With reference to the Safari Hotel
incident, the Mayor stated:


·
Applicant was seen on the CCTV with
one of the victims of the robbery;


·
If the applicant’s intention was
merely to assist the victim, as he claimed, why did he not report the
incident to his immediate supervisor or colleagues, and why did he
not remain at the crime scene in order to do a proper hand over of
the crime scene?;


·
Applicant failed to heed the instruction by
Superintended Kellermann to immediately report to the office, after
he had been told that he had been identified as one of the persons on
the CCTV at the hotel;


·
Applicant told Kellermann that he was out
of town when requested to report to the office. However the
telephonic transcripts of the conservation between Kellermann and the
applicant showed that the applicant had been in town;


·
Assistant Sup James also testified that,
after the applicant was identified he called him to come to the
Safari Hotel. The applicant told him that he would come to the hotel
but he failed to do so.’






[30]
The Mayor concluded:


27.9
In the opinion of Council, the applicant’s failure made him
unfit to remain in the force and his continued employment constitutes
a risk to the State (police force) and the residents of the City, as
well as their property.






27.10
Based on the above considerations Council accepted the decision that
applicant should be dismissed from the police force.’






[31]
Mr Marcus submitted that there was
sufficient evidence for the board and Council to conclude that the
applicant’s continued employment constituted a risk as
contemplated by Reg 18(1)(c) and that they appreciated the nature of
the discretion vested in them.






[32]
Mr
Denk on the other hand argued that it was not competent and
ultra
vires

for the CEO to convene a Reg 18 enquiry after a disciplinary inquiry
under Reg 19 had been exhausted on the same matters. He relied upon a
decision of the Judge-President in
Immanuel
v Minister of Home Affairs
.[9]
But this decision does not in my view support the proposition
contended for by him. A close reading of this judgment, which related
to the invocation of a similar power against a member of the Namibian
Police (although after conviction of theft in a criminal court and
not in internal disciplinary proceedings), if anything, lends support
to the respondents’ case, even though the challenge to the
decision was on different bases.


[33]
Mr
Denk also relied heavily upon
Carlson
Investments Share Block (Pty) Ltd v Commissioner, SA Revenue
Service
.[10]
But that case is in my view entirely distinguishable. It concerned
the power of the Commissioner to revisit an assessment within 3 years
after an objection to the assessment had been allowed. The taxpayer
challenged the constitutionality of the provision which authorised
this. The challenge was based upon the principle of finality in
administrative decisions. Mr Denk relied upon much of the argument
raised in support of the challenge. The court in that matter however
rejected the challenge and upheld the constitutionality of the
provision which afforded the Commissioner the opportunity to rectify
mistakes of fact and law. Navsa, J (as he then was) found that this
power was in the national interest and that it did not sanction
arbitrary and capricious behaviour.[11]






[34]
Unlike Carson
Investments
, there was not in this
matter a revisiting of the disciplinary proceedings themselves. A
separate and distinct inquiry was convened which had an entirely
different object and purpose. The fact that the same factual matter
was considered in each instance does not avail the applicant. The one
inquiry related to punishing the applicant for misconduct in the form
of infractions. The other concerned whether the facts raised by the
infraction rendered him unfit for service as contemplated by Reg
18(1)(c).






[35]
Given the difference in the purpose
and nature of the latter inquiry the applicant was not exposed to
double jeopardy in any impermissible sense. The evidence before me
demonstrates that the respondents appreciated the different nature
and ambit of the inquiry and their powers and discretion under Reg
18. The challenge to their decision making on that basis contained in
the founding affidavit does not establish the invalidity of the
proceedings.






[36]
It follows that the application is
to be dismissed with costs.






[37]
The order I make is:


The
application is dismissed with costs.






D
SMUTS


Judge







APPEARANCES






APPLICANT:
A Denk


Instructed
by Tjitemisa & Associates






RESPONDENT:
N Marcus


Instructed
by Nixon Marcus Public Law Office







[1]
Act 19 of 1990.




[2]
Act 11 of 2007.




[3]
S2 of Act 11 of 2007.




[4]
2012 (2) NR 481 (HC) at par 19.




[5]
Malan
and another v Law Society, Northern Provinces

2009 (10 SA 216 (SCA).




[6]
Supra at p219H – 220B.




[7]
Supra at 497-498A.




[8]
2007 (2) NR 427 (HC) at par 13.




[9]
2006 (2) NR 687 (HC).




[10]
2001 (3) SA 210 (W).




[11]
Supra at 240 A-D.