Court name
High Court Main Division
Case number
APPEAL 323 of 2014
Title

Gurirab v Minister of Home Affairs and Immingration (APPEAL 323 of 2014) [2015] NAHCMD 262 (11 May 2015);

Media neutral citation
[2015] NAHCMD 262
Coram
Parker AJ










REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: A 323/2014





DATE: 05 NOVEMBER 2015





In the matter between:





GOTTHARD
GURIRAB...................................................................................................APPLICANT





And





MINISTER OF HOME AFFAIRS AND
IMMIGRATION............................FIRST
RESPONDENT





EVANGELICAL LUTHERAN CHURCH


IN THE REPUBLIC OF
NAMIBIA............................................................SECOND
RESPONDENT





Neutral citation: Gurirab v Minister
of Home Affairs and Immigration (A 323-2014) [2015] NAHCMD 262 (5
November 2016)





Coram: PARKER AJ





Heard: 20 October 2015





Delivered: 5 November 2016





Flynote: Administrative law –
Exhaustion of internal or domestic remedies before approaching court
– Court set out considerations that a court ought to take into
account when deciding whether internal remedies should be exhausted
before litigant approaches court – Paramount considerations are
(1) whether remedies capable of providing effective redress in
respect of complainant and (2) whether alleged unlawfulness has
undermined the internal remedies themselves – In instant case
internal remedy is provided by s 9(2) of the applicable Act being the
Marriage Act 25 of 1961.





Summary: Administrative law –
Exhaustion of internal or domestic remedies before approaching court
– Court set out considerations that a court ought to take into
account when deciding whether internal remedies should be exhausted
before litigant approaches court – Paramount considerations are
(1) whether remedies capable of providing effective redress in
respect of complainant and (2) whether alleged unlawfulness has
undermined the internal remedies themselves – In instant case
internal remedy is provided by s 9(2) of the applicable Act being the
Marriage Act 25 of 1961 – Applicant applied to court to review
and set aside decision of the first respondent or decision of the
Permanent Secretary of first respondent’s Ministry to revoke
marriage license of applicant granted in terms of Act 25 of 1961 –
First respondent has discretionary power under s 9(2) of the Act to
review and set aside Permanent Secretary’s decision –
Court found that applicant has rushed to court prematurely without
exhausting the internal remedy provided by the Act without
justification – Consequently, court dismissed the application.





ORDER





The application is dismissed with
costs.





JUDGMENT





PARKER AJ:





[1] This matter concerns a marriage
license granted to the applicant in terms of the Marriage Act 25 of
1961 (‘the Act’). The applicant launched the present
application to review and set aside, according to the notice of
motion, the decision, which, according to the applicant, the first
respondent allegedly made, wherein, as the applicant asserts, the
first respondent upheld the decision of the Permanent Secretary to
revoke the marriage license that had been issued to the applicant.
The first respondent has moved to reject the application; so has the
second respondent. In her answering affidavit the first respondent
has raised preliminary objections, namely, (a) that the applicant has
not exhausted internal remedies provided by s 9(2) of the Marriage
Act 25 of 1961 (‘the Act’); and (b) that the pleadings do
not disclose a cause of action.





[2] In its answering affidavit, the
second respondent, too, has raised two points in limine. The first is
the same as the first respondent’s no-cause-of-action in limine
point. The second piont in limine is that the applicant has failed to
exhaust (the) remedy in s 9(2) of the Act which is the same as the
first respondent’s point on exhaustion of internal remedies.
The final point is the delay in bringing the application.





[3] Mr Narib, counsel for the
applicant, argued that these preliminary objections go to the root of
the merits of the case. I tend to agree. The determination of the
present application turns primarily on whether on the papers there is
evidence that establishes that the first respondent has taken a
decision in terms of s 9(2) of the Act which is amenable to judicial
review. And if she has not, then, as Mr Ndlovu, counsel for the first
respondent, submitted, there is no decision to review and on that
basis the pleadings do not disclose a cause of action. It seems to me
that it was as a result of such submission that Mr Narib sought to
amend the Notice of Motion from the Bar. Mr Narib saw the writing on
the wall, as it were. It also indicates in no small measure that the
applicant was not, up to the hearing date, clear in his own mind as
to who took the decision to revoke his marriage license; and whose
decision stands to be reviewed and set aside.





[4] Be that as it may; I should note
that the issues that need to be considered and determined, which are
set out in para 10 below, cover issues in both the initial notice of
motion and the amended notice of motion.





[5] The amendment prays the court to
review and set aside ‘the first respondent’s decision,
and/or the first respondent’s Permanent Secretary’s
decision to uphold the revocation of the marriage license of the
applicant or to revoke the marriage license of the applicant’.





[6] I accept the submission of Mr
Kamanja, counsel for the second respondent, that the formulation of
the amendment is unclear. I would say, it is a mouthful. The meaning
I make of it – if I understand it – is that the applicant
now applies to review and set aside the decision of the first
respondent, which decision allegedly upheld the decision of the
Permanent Secretary, as well as to review and set aside the decision
of the Permanent Secretary which the first respondent allegedly
upheld. And as Mr Narib explained, the amendment would only become
necessary if the court were to find that the first respondent has not
taken any decision.





[7] I also think that the point about
no-cause-of-action-disclosed is suited to be dealt with not at the
threshold but as part of the merits of the case, not least because it
is inextricably bound to the crucial question as to who took the
decision to revoke the marriage license of the applicant. Was it the
Permanent Secretary or the first respondent? The point about delay in
bringing the application stands in the same boat. Unless it is
established who took the decision to revoke the license and when such
decision was taken, the court is not in a position to decide whether
or not there has been undue delay in bringing the application to
challenge that decision.





[8] Of the view I take of this case, it
seems to me that this case, despite the fact that it has been argued
extensively, falls within an extremely short and simple compass.





[9] The interpretation and application
of the following provisions of the Act are relevant in the
determination of the present application:





‘3. Designation of ministers of
religion and other persons attached to churches as marriage officers





(1) The Minister and any officer in the
public service authorized thereto by him may designate any minister
of religion of, or any person holding a responsible position in, any
religious denomination or organization to be, so long as he is such a
minister or occupies such position, a marriage officer for the
purpose of solemnizing marriages according to Christian, Jewish and
Mohammedan rites or the rites of any Indian religion.





(2) A designation under sub-section (1)
may further limit the authority of any such minister of religion or
person to the solemnization of marriages –





(a) within a specified area; and





(b) for a specified period.





9. Revocation of designation as, or
authority of, marriage officer and limitation of authority of
marriage officer –





(1) The Minister or any officer in the
public service authorized thereto by him may, on the ground of
misconduct or for any other good cause, revoke in writing the
designation of any person as a marriage officer or the authority of
any other person to solemnize marriages under this Act, or in writing
limit in such respect as he may deem fit the authority of any
marriage officer or class of marriage officers to solemnize marriages
under this Act.





(2) Any steps taken by any officer in
the public service under sub-section (1) may be set aside by the
Minister.’





[10] I accept Mr Narib’s
interpretation of s 3 of the Act as the true construction of the
provisions contained therein; but in my view, s 3 of the Act is not
the applicable law as far as the essence of the dispute between the
applicant and the first respondent is concerned. As I see it, the
divergent positions of the applicant’s and of the first
respondent’s resolve themselves into the following issues that
call for decision: (a) Who took the decision to revoke the marriage
license of the applicant? Was it (a) the Permanent Secretary of the
first respondent’s Ministry, or (b) the first respondent? If
the answer to (a) is affirmative; has the first respondent exercised
the discretion vested in her by s 9(2) of the Act upon request by the
applicant? If the answer to (b) is affirmative, can the first
respondent still exercise the discretion vested in her by s 9(2) of
the Act?





[11] To answer question (a) I should
trace my steps back to a letter dated 27 November 2013 under the hand
of the Permanent Secretary of the Ministry of Home Affairs and
Immigration, the Ministry for which the first respondent is
responsible, and which is addressed to ‘Office of the Acting
General Secretary, and for the attention of ‘Pastor Wilfred
Nico Diergaardt’. The formulation of the addressee is remiss.
It does not indicate the ‘Office of the Acting General
Secretary’ of what organization. The confusion is compounded by
the fact that the letter dated 23 October 2013 is not before the
court.





[12] Be that as it may; after cutting
through the maze of evidence placed before the court from both sides
of the suit, I make the following factual findings and arrive at the
conclusions thereanent: The decision to invoke the license of the
applicant was taken by the Permanent Secretary pursuant to s 9(1) of
the Act. Pace Mr Narib, nothing turns on the use of the pronoun ‘we’
in the Acting Permanent Secretary’s letter of 22 July 2014,
addressed to the applicant’s legal representatives which was in
response to the legal representative’s request for reasons for
the revocation of the applicant’s marriage license. When such
pronoun is used, it may carry a plural meaning which is its ordinary,
grammatical connotation; it may also carry a singular meaning and it
is then understood to be the ‘royal we’. Such connotation
is not uncommon in formal writing, official communication and
speeches. See Concise Oxford English Dictionary, 11th ed.





[13] I also find that the first
respondent has not exercised her discretion under s 9(2) of the Act
to consider the Permanent Secretary’s decision with the view to
setting it aside. There is not one grain of credible evidence tending
to establish the contrary. I, therefore, respectfully reject the
applicant’s unproved assertion that ‘the Minister (ie the
first respondent) has made common course with the Permanent
Secretary’. There is no factual basis for such conclusion.





[14] This finding leads me to the next
level of the enquiry. It concerns the principle of exhausting
domestic remedies. It is that the right to seek judicial review of
the act of an administrative body or administrative official may be
suspended or deferred until the complainant has exhausted domestic
remedies which, as is in the present case, might have been created by
statute expressly or by necessary implication. In the instant case,
such remedy is created by s 9(2) of the Act.





[15] In Namibia Competition Commission
v Wal-Mart Stores 2012 (1) NR 69 (SC) the Supreme Court proposed
certain considerations that a court ought to take into account in
determining the issue of exhausting domestic or internal remedies.
(a) The first consideration is the wording of the relevant statutory
provision; and (b) the second is whether the internal remedy would be
sufficient to afford practical relief in the circumstances. I hasten
to add the caveat that the list is exhaustive; neither was it meant
to be exhaustive; and neither should the considerations be applied
mechanically as if they were immutable prescriptions to be applied
without due regard to the circumstances of the particular case.





[16] And Lawrence Baxter writes in his
work Administrative Law, 3rd Imp (1991), p 721:





‘Two considerations appear to be
paramount: first, are the domestic remedies capable of providing
effective redress in respect of the complaint?; and, secondly, has
the alleged unlawfulness undermined the domestic remedies
themselves.’





[17] To the Wal-Mart considerations and
the Baxter considerations should be added this crucial qualification
proposed by Mokgone J in Koyabe and Others v Minister of Home Affairs
and Others 2010 (4) SA 327 (CC), para 35:





‘Internal remedies are designed
to provide immediate and cost effective relief, rectifying
irregularities first, before aggrieved parties resort to litigation.
Although courts play a vital role in providing litigants access to
justice (ie court justice), the importance of more readily available
and cost effective internal remedies cannot be gainsaid.’





[18] The Koyabe and Others
qualification answers to the caution put forth by O’Regan J in
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004
(4) SA 490 (CC), para 45, that ‘[t]he Court should take care
not to usurp the functions of administrative agencies’. Thus,
it has been said that if the public authority has not yet completed
its decisional process the complainant should not rush to court.
(Baxter, Administrative Law, p 719). Of course, this proposition
should be taken against the aforegoing Wal-Mart Stores
considerations. All said, the court allowing administrative bodies
and administrative officials to complete the performance of their
functions and the exercise of their powers before the court
intervenes to control such performance of functions and such exercise
of powers conduces to the trias politica of the doctrine of
separation of powers which forms part of the foundation of our
constitutional milieu.





[19] In the instant case, it is the
first respondent’s contention that the principle of exhaustion
of domestic or internal remedies is embedded in the s 9(2) of the
Act. For this reason the first respondent’s position is that
the applicant has rushed to court prematurely without waiting for the
decisional process provided for in s 9(1) and (2) to be completed and
without justification.





[20] It must be noted that I did not
hear Mr Narib to challenge the applicability of the principle in the
instant case. And that is not surprising. The applicant has all along
belaboured in this proceeding under the contention that the decision
to revoke the marriage license of the applicant was taken by the
first respondent. I have, for reasons given, held that the totality
of the evidence debunks any such assertion. And yet; the applicant,
through his legal representatives, and, therefore, upon legal advice,
wrote to the first respondent as far back as 15 May 2014 in the
following terms:





‘Having regard to the above we
therefore request the Honourable Minister to invoke her powers under
s 92(2) of the Marriage Act 25 of 1961 and to set aside the decision
to revoke the said marriage license.’





[21] The upshot of that entreaty is
that the position of the applicant himself has always been, at least
since 15 May 2014, that the Permanent Secretary (or an official
acting in that post) took the decision to revoke the marriage license
of the applicant; otherwise, the above-quoted excerpt in the
applicant’s legal representatives’ letter of 15 May 2014
would not make sense in law or logic, as Mr Ndlovu appeared to
submit. And I accept the uncontradicted evidence on the papers that
the first respondent has always been willing to exercise the power
vested in her by s 9(2) of the Act in order to do that which the
applicant himself asks for, as I have found previously.





[22] In that regard, I find that subsec
(1) and subsec (2) of s 9 of the Act read together evince the
intention of the Legislature that the decisional process regarding
the revocation of a marriage license (issued under the Act) is
completed only when the Minister (ie first respondent) has exercised
or has refused to exercise his or her power under s 9(2). And I have
no doubt in my mind that in the instant matter the internal remedy
created under s 9(2) is capable of providing effective redress in
respect of the applicant. The alleged wrongfulness of the Permanent
Secretary’s decision is not capable of undermining the internal
remedy provided in s 9(2) of the Act.





[23] After thorough consideration of
the matter and looking at the authorities discussed, it is with firm
confidence that I hold that the applicant has rushed to court
prematurely without justification. He should exhaust the internal
remedy provided by the Act in s 9(2) of the Act which, as I say, is
capable of providing effective redress in respect of the applicant.
The first respondent should, therefore, be given the chance to
exercise her discretion under provision which, as I say, has always
been the applicant’s desire; and the first respondent is
willing to so act.





[24] These findings and conclusions on
its own are dispositive of the application in terms of either the
original notice of motion or the amended notice of motion. I,
therefore, find it unnecessary to consider other interesting points
raised, including the issue of delay in bringing the application and
the strike out application. These issues do not affect the cogency
and prepondence of the factual findings I have made, the law I have
applied and the conclusions I have arrived at.





[25] Based on these reasons, the
application is dismissed with costs.





C Parker





Acting Judge





APPEARANCES





APPLICANT : G Narib





Instructed by Tjitemisa &
Associates, Windhoek





FIRST RESPONDENTS: M Ndlovu





Of Government Attorney, Windhoek





SECOND RESPONDENT: A Kamanja





Instructed by AngulaCo. Inc.,
Windhoek