Court name
High Court Main Division
Case number
APPEAL 117 of 2009
Case name
Fernandes v Minister of Home And Immigration and Another
Media neutral citation
[2015] NAHCMD 59
Judge
Van Niekerk J










REPUBLIC OF NAMIBIA





HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case No A 117/2009





DATE: 16 MARCH 2015





In the matter between:





FERNANDO DA CONCEICAO
FERNANDES..............................................................APPLICANT





And





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





THE IMMIGRATION SELECTION
BOARD..........................................SECOND
RESPONDENT





Neutral citation: Fernandes v
Minister of Home Affairs (A117-2009) [2015] NAHCMD 59 (16 March 2015)





Coram: VAN NIEKERK J





Heard: 20 October 2011





Delivered: 16 March 2015





Flynote: Immigration - Aliens –
Employment permit in terms of section 27 of Immigration Control Act 7
of 1993 – Application for – Refusal of – Review of
– Immigration Selection Board bound to reasons originally
provided for decision – Reasons provided not indicating
misapplication of section 27(2)(b) – Factual basis for decision
– Board may by nature of duties and responsibilities and its
varied composition acquire relevant knowledge used to make decision –
Where such knowledge could not reasonably be expected to be known to
applicant the dictates of administrative justice require applicant to
be informed of such before decision taken to afford opportunity to
controvert – Concept of legitimate expectation discussed –
Need not use such in this case to decide basis on which applicant
should have been heard.





ORDER





1. The decision in regard to the
applicant’s application for renewal of his employment permit
taken by the second respondent on 24 February 2009 is hereby reviewed
and set aside.





2. The respondents are directed to take
all necessary steps to ensure that the second respondent reconsiders
the applicant’s application for renewal of his employment
permit in a lawful and procedurally fair manner within 30 days from
date of this order.





3. The second respondent shall consider
the applicant’s application for a permanent residence permit
within 30 days from date of this order.





4. The respondents shall pay the costs
of the urgent application and the review application jointly and
severally, the one to pay the other to be absolved, such costs to
include the costs of one instructing and one instructed counsel.





JUDGMENT





VAN NIEKERK J:





[1] The applicant is a South African
citizen who originally entered Namibia in 2000 by virtue of a
temporary visitor’s visa issued under the provisions of the
Immigration Control Act, 1993 (Act 7 of 1993). The second respondent
is the Minister of Home Affairs and Immigration, the responsible
minister under the Act. The second respondent is the Immigration
Selection Board, established in terms of section 25 of the Act and
tasked in terms of section 25(2)(a) with considering all applications
for permanent residence permits and employment permits.





[2] The applicant initially sought the
following relief as set out in his notice of motion:





“B1.1 Reviewing and setting aside
the decision or resolution by the second respondent taken on or about
24 February 2009 as follows:





“The application is approved
until 31 March 2009, for the applicant to wind up and leave the
country, Namibian can take over, is not a field of scarcity.”





B1.2 Declaring the decision and/or
resolution as is set out in B1.1 above ultra vires and/or unfair and
null and void.





B1.3 That the second respondent
grant[s] to the applicant a work permit on the terms of the work
permit issued to the applicant on 24 February 2009.





B1.4 Reviewing and setting aside the
failure by the second respondent to entertain and consider the
application by the applicant for permanent residence.





B1.5 That the second respondent
entertains and consider[s] the application of the applicant for
permanent residence within 30 days from date of this order.





B1.6 That the respondents pay the cost
of this application jointly and severally, the one to pay, the other
to be absolved.





B1.7 Such further and/or alternative
relief as the court may deem fit.”





[3] However, at the hearing of this
application, the applicant’s counsel, Mr Barnard, moved only
for the relief claimed in prayers B1.1, B1.2, B1.5 and B1.6 of the
notice of motion. During the hearing Mr Khupe, who appeared on
behalf of the respondents, correctly, in my view, conceded that the
applicant made out a case for the relief sought in prayer B1.5. As a
result of the stances adopted on behalf of both sides, it is not
necessary to deal with all the factual allegations made in the papers
or with all the issues of law initially raised.





[4] The following may therefore
considered to be the material facts which are either common cause,
not disputed or which should be accepted on the basis of the
respondents’ version. When the applicant came to Namibia
during August 2000, he had more than 10 years’ experience as a
manager in the retail industry gained both in Brazil and South
Africa. Although the papers mostly refer to his involvement in the
“retail industry” it is apparent that it is specifically
in the fresh fruit and vegetable retail and wholesale industry that
the applicant’s experience lay. At the time he was employed by
Mr Fruit and Veg CC, a South African enterprise which did business as
a fruit and vegetable wholesaler and retailer. It decided to also do
business in Namibia and first opened a store in Walvis Bay. About 6
months later it opened another store in Windhoek, which it intended
to use as it head office while planning to expand further in Windhoek
and the North. In October 2000 the management in South Africa
motivated the applicant’s first application for a temporary
work permit to manage the Windhoek branch and to train Namibians in
his field of expertise. The application was lodged about 6 November
2000.





[5] At first the applicant was granted
temporary visitor’s visas. His family joined him in Namibia
during December 2000 as they were granted temporary residence visas.
At some stage he was granted renewable provisional 3 month employment
visas until his application for a temporary residence and employment
permit could be considered.





[6] On 7 September 2001 the applicant
wrote a letter to the then Permanent Secretary of the Ministry of
Home Affairs, applying for permanent residence in Namibia on the
basis that he was then employed as a warehouse manager for Mr Fruit
and Veg CC in Windhoek. It is common cause that the applicant did not
complete and submit the proper application forms with all the
required documentation. The “application” was therefore
considered to be invalid.





[7] At about the same time during 2001
further motivational letters were written by Mr Fruit and Veg CC’s
management in South Africa in support of the applicant’s
employment permit. On 6 November 2001 the second respondent
considered the applicant’s first application for a temporary
residence and employment permit. The second respondent refused the
application, citing as a reason for the decision that a “Namibian
must be employed.”





[8] On 8 November 2001 the managing
member of Mr Fruit & Veg Windhoek directed an urgent written
“appeal” to the second respondent’s chairman at the
time, requesting that the second respondent re-considers its
decision. In the letter the author mentions that the applicant had
been out of work for five months because his (temporary) work visa
had expired in May 2001. The letter records that the author does
“understand and appreciate the concern of the Namibian
Authorities that a Namibian citizen would be preferred for this
position”, but sets out certain reasons why the applicant
should nevertheless be granted a work permit “as a matter of
urgency to ensure the future operation of our Namibian interests.”





[9] Although the Immigration Control
Act does not provide for an appeal procedure, the second respondent
re-considered the application and on 13 November 2001 granted the
applicant a work permit for a period of 12 months until 15 November
2002. The second respondent also granted the applicant’s wife
a temporary residence permit and their children study permits to be
in Namibia during this period.





[10] About 9 October 2002 the applicant
applied for a renewal of the temporary residence and employment
permit. This, his second application, was rejected on 19 November
2002 because Mr Fruit & Veg CC in Namibia had been liquidated
shortly before the application was considered. In the second
respondent’s letter dated 6 January 2003 the applicant was
notified of the decision and he was further notified to leave Namibia
within 21 days of receipt of the letter. However, the applicant and
his family illegally remained in Namibia. His explanation is that he
never received the letter which was posted to his erstwhile
employer’s postal address.





[11] On 1 January 2003 the applicant
purchased a business by the name of Riverside Fruit and Vegetables in
Windhoek in which he worked as the sole proprietor in order to make a
living for himself and his family. He alleges that he thought that
the second temporary residence and work permit application was still
pending and that he was allowed to remain in the country pending the
outcome. However, it is common cause that he took no steps to inform
the second respondent that his employment at Mr Fruit & Veg CC
had come to an end because of its demise until about September 2003
when he instructed lawyers to seek an appointment with the Permanent
Secretary of Home Affairs to discuss his predicament. After some
negotiation between the applicant’s lawyers and the Ministry of
Home Affairs, officials of the Ministry on 17 December 2003 accepted
the applicant’s third application for a temporary residence and
employment permit to be granted under changed conditions, namely to
that of a self-employed business owner.





[12] Due to a failure by the applicant
to submit all the relevant documentation the application was
considered only on 20 April 2004, when the application was granted
for a period of a year until 31 April 2005. The applicant’s
business was not successful and early in 2005 he started working for
Fountain Friendly Supermarket without applying for a change to the
conditions upon which the employment permit was issued.





[13] On 17 January 2006 the applicant
lodged a proper application for permanent residence, but received no
answer or feedback from the second respondent. According to the
second respondent there was a long queue of such applications and the
file was misplaced on various occasions which resulted therein that
the application was never considered.





[14] In September 2006 he made
application for a provisional 3 month temporary residence and
employment visa pending the outcome of an application (the fourth
application – incorrectly referred to in the respondents’
answering affidavit as his “third” application) for a 12
month temporary residence and employment permit to be granted subject
to changed conditions, namely that he may only work for Fountain
Friendly Supermarket. On 15 September 2006 he was granted a
provisional work visa for 3 months and a temporary residence permit
was granted in respect of his family.





[15] In April 2007 the applicant made a
fifth application for a temporary residence and employment permit
(incorrectly referred to in the respondents’ answering
affidavit as his “fourth” application). In the second
respondent’s minutes the motivation in respect of the
application indicates that the file containing his application for
permanent residence and the previous (i.e. the fourth) application
for a temporary residence and employment permit had been mislaid on
two occasions and that the second respondent apparently did not
consider these applications. On 15 May 2007 the second respondent
granted the fifth application for a period of 12 months. In its
letter of 13 June 2007 to the applicant’s employer the second
respondent stated that it required the employer to submit a
replacement plan in respect of the applicant’s employment
within the 12 month period.





[16] On 9 May 2008 the applicant
submitted his sixth (incorrectly referred to in the respondents’
answering affidavit as the “fifth” application) and last
application for a temporary residence and employment permit. On 5
November 2008 the employer was reminded in writing to submit the
replacement plan. It seems that since the expiry of the previous
permit, the applicant remained in the country and continued with his
employment. On 2 February 2009 the applicant’s employer stated
in a letter:





“We kindly request that an
extension on the current visa for Mr Fernandes for another period of
twelve months [be granted] while his application for residency is
being processed.





We understand that at this time of year
all sections of our economy are under pressure as we are all under
staffed however we ask you to please help keep our employees within
the working law of Namibia with appropriate working visas.





Att[a]ched: Action plan for the
understudy for Fernando Fernandes. Mr Rufinus was elected to be Mr
Fernandes understudy, but due to personal reason Mr Rufinus resigned
and Mr Michael Xoagub was then elected in late 2008. He is now being
draw[n] into the new plan that is still being processed.





Should you require any additional
information please do not hesitate to contact me on the above
mentioned numbers.”





[17] The plan attached purports to be
an “Affirmative Action Plan for Period December 2007 to
December 2010.” It consists of a few words and in my view is
not worth the paper on which it is printed.





[18] On 24 February 2009 the second
respondent considered the application and refused to grant it. In a
letter, signed by the Chairman of the second respondent, and directed
at the applicant’s employer, the relevant part reads as
follows:





“The application for renewal or
employment permit was tabled before the Immigration Selection Board
on the 24 February 2009, and resolved as follows:





The application is approved until 31
March 2009, for the applicant to wind up and leave the country,
Namibian can take over, is not a field of scarcity.”





[19] The letter is dated 26 February
2009, but the envelope in which it was posted bears the Ministry’s
official stamp dated 16 March 2009. The applicant received the
letter only on 25 March 2009.





[20] The short notice provided to the
applicant to wind up his affairs and leave the country prompted an
urgent application for certain relief pending the outcome of these
review proceedings. The urgent application was settled and the
interim relief claimed was provided by way of a Court order dated 9
April 2009, in terms of which the applicant and his family were
permitted to remain in Namibia while he continued his employment with
his employer. However, at a certain stage the second respondent
refused to provide a further employment permit because it interpreted
the interim Court order in such a way that it concluded that the
obligation to do so fell away. It is common cause that at the stage
when the review application was heard, the applicant’s
application for a permanent residence permit was still pending.





[21] The respondents opposed the
application for review. Their main answering affidavit is deposed to
on their behalf by the person who was the Permanent Secretary of Home
Affairs and Immigration and chairperson of the second respondent
during the period about April 2005 to 2 May 2010.





[22] After hearing the review
application, judgment was reserved but further interim relief was
provided to ensure that the applicant, pending the outcome of the
case, was able to continue his employment and to protect him from
being deemed to be a prohibited immigrant in terms of section 30 and
Part VI of the Immigration Control Act in relation to conduct arising
from facts or circumstances which reasonably may fall within the
ambit of the dispute in the review application.





The relevant provisions of the
Immigration Control Act





[23] Section 26 of the Immigration
Control Act provides for applications for permanent residence
permits. Section 26(3) provides as follows:





“(3) The board may authorize the
issue of a permit to enter and to be in Namibia for the purpose of
permanent residence therein to the applicant and make the
authorization subject to any condition the board may deem
appropriate: Provided that the board shall not authorize the issue of
such a permit unless the applicant satisfies the board that-





(a) he or she is of good character; and





(b) he or she will within a reasonable
time after entry into Namibia assimilate with the inhabitants of
Namibia and be a desirable inhabitant of Namibia; and





(c) he or she is not likely to be
harmful to the welfare of Namibia; and





(d) he or she has sufficient means or
is likely to earn sufficient means to maintain himself or herself and
his or her spouse and dependent children (if any), or he or she has
such qualifications, education and training or experience as are
likely to render him or her efficient in the employment, business,
profession or occupation he or she intends to pursue in Namibia; and





(e) he or she does not and is not
likely to pursue any employment, business, profession or occupation
in which a sufficient number of persons are already engaged in
Namibia to meet the requirements of the inhabitants of Namibia; and





(f) the issue to him or her of a
permanent residence permit would not be in conflict with the other
provisions of this Act or any other law; or





(g) he or she is the spouse or
dependent child, or a destitute, aged or infirm parent of a person
permanently resident in Namibia who is able and undertakes in writing
to maintain him or her.”





[24] Section 27 deals with applications
for employment permits and provides as follows:





“27 Application for employment
permits





(1) The board may, subject to the
provisions of subsection (2), on application of any person made on a
prescribed form, authorize the Chief of Immigration to issue to such
person an employment permit-





(a) to enter Namibia or any particular
part of Namibia and to reside therein;





(b) if he or she is already in Namibia
to reside in Namibia or any particular part of Namibia,


for the purpose of entering or
continuing in any employment or conducting any business or carrying
on any profession or occupation in Namibia during such period and
subject to such conditions as the board may impose and stated in the
said permit.





(2) The board shall not authorize the
issue of an employment permit unless the applicant satisfies the
board that-





(a) he or she has such qualifications,
education and training or experience as are likely to render him or
her efficient in the employment, business, profession or occupation
concerned; and





(b) the employment, business,
profession or occupation concerned is not or is not likely to be any
employment, business, profession or occupation in which a sufficient
number of persons are already engaged in Namibia to meet the
requirements of the inhabitants of Namibia; and





(c) the issue to him or her of an
employment permit would not be in conflict with the other provisions
of this Act or any other law.





(3) The board may, with due regard to
the provisions of subsection (2), from time to time extend the period
for which, or alter the conditions subject to which, such permit was
issued under subsection (1), and a permit so altered shall be deemed
to have been issued under that subsection.





(4)(a) If the board intends issuing an
employment permit under subsection (1) to a person for that purpose
or subject to conditions, he or she may, in order to ensure that the
purpose of his or her residence and the conditions under which the
permit was issued are observed or complied with, require that person,
before issuing the permit to him or her, to deposit with the Chief of
Immigration an amount fixed by the board, not exceeding an amount
determined by the Minister by notice in the Gazette in general, or to
lodge with the Chief of Immigration to his or her satisfaction, in
the prescribed form, a guarantee for the amount concerned.





(b) An amount or guarantee deposited or
lodged with the Chief of Immigration in terms of paragraph (a) shall,
subject to paragraph (c), be refunded to the person concerned or
cancelled on his or her departure from Namibia, as the case may be.





(c) If such person acted in conflict
with the purpose for which, or failed to comply with a condition
subject to which, the employment permit was issued to him or her
under subsection (1), the Minister may order that the amount
deposited with the Chief of Immigration be forfeited to the State or,
if a guarantee was lodged with the Chief of Immigration that the
amount payable in terms of the guarantee be recovered for the benefit
of the State.





(5) When the board authorizes the issue
of such an employment permit to any person under subsection (1), it
may authorize in that permit the spouse and dependent child of that
person, if the spouse or child accompanies or resides with him or
her, to enter and reside in Namibia with that person.





(6) Any person to whom an employment
permit was issued under subsection (1) or who was authorized in that
permit under subsection (5) to reside with that person, and who
remains in Namibia after the expiration of the period or extended
period for which, or acts in conflict with the purpose for which,
that permit was issued, or contravenes or fails to comply with any
condition subject to which it was issued, shall be guilty of an
offence and on conviction be liable to a fine not exceeding N$12 000
or to imprisonment for a period not exceeding three years or to both
such fine and such imprisonment, and may be dealt with under Part VI
as a prohibited immigrant.”





The merits of the applicant’s
applications for an employment permit





[25] The applicant and the respondents
devote a considerable proportion of their allegations and
counter-allegations in the affidavits to the merits of the
applicant’s various applications for employment permits over
the years, including the last application which was effectively
refused. Presumably the reason for this is because the applicant
initially claimed substantive relief in the sense that he wanted the
Court to order the second respondent to grant him a work permit on
certain terms. However, as the applicant eventually did not move for
this relief, the relevance of the merits of these applications fades
away. Moreover, the remainder of the relief sought is of such a
nature that the merits of his last application for an employment
permit need no consideration, except in passing. The allegations in
this regard will therefore not be traversed, except where otherwise
necessary.





On which reasons must the review
application be assessed?





[26] Mr Barnard submitted that the
reasons provided by the second respondent for its decision to reject
the application are “…Namibian can take over, is not a
field of scarcity…”. In paragraph 56 of the answering
affidavit the deponent confirms that the basis for the decision
appears from the second respondent’s minutes dated 24 February
2009 attached as “SG32”. This document contains, inter
alia, a written motivation drawn up by an official and reads:





“Abovenamed applicant is still
employed by the same shop [Fountain Friendly Supermarket, Baines
Centre, Pionierspark]. His permit was granted for 12 months on condt
[condition] to submit a replacement strategy. See motivation letter
and Affirmative action plan for period Dec. 2007 to Dec. 2010.





RWP [renewal of work permit] is
requested.





Your decision pls [please].”





[27] The decision of the second
respondent was that the work permit be renewed for one month “to
wind up and leave the country, Namibian can take over, is not a field
of scarcity.” It was further noted that the applicant had to
leave the country by 31 March 2009. The second respondent did not
use the opportunity provided by rule 53(1)(b) to supplement or
correct the very brief reasons noted in the minutes and echoed in the
letter of 26 February 2009. However, in the respondents’
answering affidavit several other reasons are cited why the work
permit was not renewed, e.g. because the second respondent’s
requirements for a replacement plan were not sufficiently addressed;
and because the second respondent was not satisfied that an adequate
search had been made for a Namibian to replace the applicant in his
position, for example by advertising in national newspapers. On the
face of it, these seem to be cogent reasons, but this does not avail
the respondents for the following reasons.





[28] Mr Barnard submitted that the
second respondent is bound by the reasons initially provided and that
the application for review should be evaluated on the basis of those
reasons. Mr Khupe conceded this point during argument. In Waterberg
Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment
& Tourism 2010 (1) NR 1 (SC) the Supreme Court stated (at 10F-G):





“It may also be argued
persuasively that the implication of rule 53 was that if reasons were
given by a decision-maker at the time of notifying the applicant of
the decision, the reasons so given by such decision-maker as appears
(sic) from the record of the decision, should bind the respondent in
an application for review.”





[29] Bearing this statement in mind, it
seems to me that, in the circumstances of this case, Mr Khupe’s
concession is well made. I shall therefore adjudicate the review
application on the basis of the reasons provided in the second
respondent’s letter dated 26 February 2009.





First ground of review: The second
respondent’s decision is arbitrary and therefore ultra vires
because it misapplied or misunderstood the provisions of section
27(2)(b)





[30] Counsel for the applicant
submitted that the reasons as provided indicate that, while the
second respondent appears to have attempted to follow the provisions
of section 27(2)(b) of the Immigration Control Act, it did not
correctly apply the requirements of the section. The applicant’s
heads of argument accurately reflect his oral submissions as follows:





“8. …………………





8.1 The question is not whether the
position which the applicant seeks to fill is scarce or not. The
question is whether there are enough people employed in such a
position to meet the needs of the inhabitants of Namibia.





8.2 It is not a requirement that a
Namibian should fill a position. The Act does not require this. The
question is whether the needs of the inhabitants of Namibia are
fulfilled. The officials of the second respondent missed the point.





9. The decision by the second
respondent after dealing with the matter by applying the wrong
criteria has the result that the officials of the second respondent
did not apply their minds to the true issue. The decision was
therefore arbitrary.”





[31] Mr Khupe, on the other hand,
submitted that the second respondent acted in accordance with the
requirements of section 27(2)(b) when it refused the application and
that the second respondent was not satisfied that the requirements of
section 27(2)(b) were met.





[32] In dealing with both counsel’s
submissions it is useful to consider the meaning and purpose of
section 27(2). In Chairperson of the Immigration Selection Board v
Frank 2001 NR 107 (SC) the Supreme Court was concerned with an appeal
in a review application concerning an application to the second
respondent for a permanent resident permit in terms of section 26 of
the Immigration Control Act. Section 26(3) has some similarities
with section 27(2) and in certain respects, identical provisions.
For purposes of this discussion it suffices to quote certain of
sections 26(3)’s provisions again:





“(3) The board may authorize the
issue of a permit to enter and to be in Namibia for the purpose of
permanent residence therein to the applicant and make the
authorization subject to any condition the board may deem
appropriate: Provided that the board shall not authorize the issue of
such a permit unless the applicant satisfies the board that-





(a) – (c) ……………………………;
and





(d) he or she has sufficient means or
is likely to earn sufficient means to maintain himself or herself and
his or her spouse and dependent children (if any), or he or she has
such qualifications, education and training or experience as are
likely to render him or her efficient in the employment, business,
profession or occupation he or she intends to pursue in Namibia; and





(e) he or she does not and is not
likely to pursue any employment, business, profession or occupation
in which a sufficient number of persons are already engaged in
Namibia to meet the requirements of the inhabitants of Namibia; and





(f) – (g)………………………………
.”





[33] Although the majority judgment by
O’Linn AJA (in which Teek AJA, as he then was, concurred)
indicates certain points of agreement and disagreement with the
minority judgment by Strydom CJ, it would appear that on the issues
mentioned hereunder, there was no disagreement (cf. majority judgment
at p110 and minority judgment at p172E-173F):





[34] The learned Chief Justice stated
(at 172E-173F):





“Section 26 makes it clear that
the appellant does not have an absolute discretion. Subsections
(3)(a), (b), (c), (d), (e) and (f) contain certain requirements which
an applicant for a permanent residence permit must satisfy the
appellant before a permit may be issued. If the Board is not so
satisfied it has no choice but to refuse the application.





In dealing with s 26, the Court a quo
went one step further. It concluded that where an applicant for a
permanent residence permit satisfies the Board as aforesaid the Board
is obliged to grant the permit. At 326 of the judgment the Court a
quo, referring to the affidavit of Mr Simenda, found as follows:





'I firstly draw attention to para 9.2
of his affidavit where he says:





''9.2 There was also no specific
information before the Board that adversely affected the Applicant's
application.''





From this it is apparent that there
were no grounds whatsoever for refusing the applicant. This statement
of Mr Simenda is sufficient to justify this court setting aside the
Board's decision without any further ado.'





The Court a quo then dealt with the
reasons given by the appellant for refusing to grant the permit set
out in para 10.1, and 10.2 of Simenda's affidavit. In para 10.2 the
appellant stated that even if there was at present a shortage of
persons with the qualifications, skills and experience of the first
respondent the appellant took into account that more and more
Namibian citizens will in the years to come acquire the necessary
qualifications etc and that these citizens will have to be
accommodated in the limited labour market of Namibia.





Dealing with this statement the learned
judge a quo found that the appellant, in refusing the application for
a permanent residence permit believed that it was acting in terms of
s 26(3)(e) of the Act whereas s 26(3)(e) only refers to persons
already engaged in Namibia in any employment, business, profession or
occupation. Therefore the appellant could not take into consideration
what the position may be in the future.





I find myself unable to agree with this
interpretation of s 26. There is in my opinion no indication in the
section itself which would limit the exercise of a discretion by the
appellant to the absence of the requirements set out in ss
(3)(a)-(f). In such an instance the appellant would normally exercise
no discretion at all. All that would be required of it, is to
determine in each instance whether the requirements set out in ss
(3)(a)-(f) were complied with or not. If they were complied with, the
Board is obliged to issue a permit. If they were not complied with,
the Board is obliged to refuse a permit.





Furthermore, the fact that ss (3)
begins with the words 'the Board may authorize the issue of a permit
...' (my emphasis) is clear indication that the appellant has a wide
discretion once the circumscribed part, set out in ss (3)(a) to (f),
has been satisfied. This interpretation also conforms with the other
provisions of the Act. See in this regard s 24 of the Act which
prohibits the entry or residence in Namibia of non-citizens, with a
view to permanent residence unless such person is in possession of a
permanent residence permit. Also in regard to temporary residence no
person is allowed to enter or reside in Namibia without being in
possession of an employment permit, issued in terms of section 27, or
a student's permit, issued in terms of s 28, or a visitor's entry
permit, issued in terms of s 29. See further in general ss 6, 7, 8,
9, 10, 11 and 12 of the Act.”





[35] Clearly the same remarks may be
made in relation to the discretionary nature of the powers vested in
the second respondent by section 27.





[36] Furthermore, O’Linn AJA
stated as follows (at p112I-J):





“It is also necessary to
emphasize that the function exercised by the Board under s 26(3)(e)
as well as under s 27(2)(b), is tied to the objective of serving the
inhabitants of Namibia and whether or not the application of an alien
is granted is consequently measured not against the interest and
requirements of an alien or immigrant, but against the requirements
and interests of the inhabitants of Namibia.”





[37] In casu the reasons provided by
the second respondent are very brief and perhaps not elegantly
expressed. Nevertheless, they seem to me to convey that the second
respondent had the requirements of section 27(2)(b) in mind when it
considered and, effectively, refused the application. In considering
the formulation and meaning of the second respondent’s reasons
the following passage in Baxter, Administrative Law, (1st ed), p742
should be borne in mind (insertions in square brackets supplied from
the footnotes):





“When reasons are required it is
not sufficient to furnish ……….. a regurgitation
of the empowering clause of the statute. In most instances the
courts have not been prepared to tolerate such evasion. As Tindall J
put it in Tala v Village Council of Wolmaransstad [1927 TPD 425,429]:
‘Requiring the reasons for refusal seems to me a different
thing from merely requiring the local authority to state which of the
specified grounds the refusals was based on.’ In Marshall
Cavendish Ltd v Publications Control Board [1969 (4) SA 1 (C)]
Diemont J criticized the board for its skimpy reasons, stating that
‘[i]t is not enough that the words of the statute are recited
back to the publisher….”.





[38] Having said this, I remind myself
that the applicant’s complaint is not that the reasons
furnished are uninformative or inadequate. It is that the reasons as
expressed convey a misunderstanding or misapplication of the
requirements of section 27(2)(b).





[39] To sum up, the onus is on the
applicant to satisfy the second respondent that his employment is not
or is not likely to be any employment in which a sufficient number of
persons are already engaged in Namibia to meet the requirements of
the inhabitants of Namibia. If he fails to do so, the employment
permit may not be granted. However, even if the applicant does
satisfy the second respondent in this and all other respects as
required by section 27(2), the second respondent still has a wide
discretion whether or not to grant the permit.





[40] If a sufficient number of persons
are already engaged in a particular field of employment to meet the
requirements of the inhabitants of Namibia, I think it would be a
reasonable description of this state of affairs to say that there is
not a scarcity (or a shortage) of persons or employees engaged in
that particular field. To put it differently and perhaps more
concisely, one could describe the field of employment as not being a
“field of scarcity.” I do not think that by using the
words “is not a field of scarcity” the second respondent
intended to convey anything else. There is no indication that the
second respondent was unaware of its task in terms of section 27.
The second respondent did not say that the “position” of
store manager is not a “scarce position”. There is to my
mind no reason to assume that what the second respondent had in mind
was that the "position” as such “is not a position
of scarcity”. These are the words of the applicant’s
counsel, not the words of the second respondent.


In any event, clearly the relevant
issue is not whether such positions are scarce, but rather whether
the number of persons already engaged, or likely to be engaged, in
such, or similar, positions, is sufficient or not.





[41] Mr Barnard further submitted that
section 27(2)(b) does not require that a Namibian should fill the
position, but that the question is whether the needs of the
inhabitants of the country are being met. Learned counsel is correct,
but in my view the second respondent, by stating, “Namibian can
take over” only meant to convey, essentially, that there are
Namibians available to fill this post. This statement actually
conveys a more compelling reason to refuse to renew the applicant’s
work permit. The Act merely requires the second respondent to
consider whether the applicant has satisfied it that there is not or
is not likely to be a sufficient number of “persons”, who
need not be Namibians, already engaged in that field of employment to
meet the requirements of the country’s inhabitants. Clearly
the second respondent in this case was not so satisfied. However, it
did not state that the applicant did not satisfy it on the
requirement set out in section 27(2)(b) because, for example, there
were deficiencies in the applicant’s motivation because, say,
the applicant’s employer did not first advertise the position
in any national newspaper or, because, say, the services of an
employment agency were not utilized to search for possible Namibian
candidates or determine the availability of persons in that field of
employment. It seems to me that what the second respondent in effect
found was that the applicant did not satisfy it on the requirement
set out in section 27(2)(b) because the second respondent was of the
view that there were indeed Namibians available to fill the
applicant’s position. It made a statement of fact,
alternatively, came to the conclusion, namely that the field of
employment is not a field of scarcity and a Namibian can take over.
Provided that this statement or conclusion were justified, it seems
to me that the second respondent’s application of section
27(2)(b) is in order.





[42] In conclusion, having considered
the submissions advanced on behalf of the applicant, I am not
persuaded that the reasons as formulated by the second respondent
convey the lack of understanding of the requirements of section
27(2)(b) contended for.





The second ground of review: The
factual basis for the decision





[43] Mr Barnard had another string to
his bow. He submitted that the record shows that the second
respondent made no factual enquiry; that there are no facts minuted
on record upon which the decision could have been reached; and that
there are no facts underlying or supporting the decision of the
second respondent. As such, he submitted, the decision was null and
void. Counsel relied on the following passage in Kaulinge v Minister
of Health & Social Services 2006 (1) NR 377 (HC) 384B-D where
Mainga, J (as he then was) stated:





“In Standard Bank of
Bophuthatswana Ltd v Reynolds NO and Others 1995 (3) SA 74 (BG) (1995
(3) BCLR 305) Friedman JP, referring to W C Greyling & Erasmus
(Pty) Ltd v Johannesburg Local Road Transportation Board and Others
1982 (4) SA 427 (A); and SA Freight Consolidators (Pty) Ltd v
Chairman, National Transport Commission and Another 1988 (3) SA 485
(W), said at 89E:





'(O)ur courts have held where a
decision-maker takes a decision unsupported by any evidence or by
some evidence which is insufficient reasonably to justify the
decision arrived at, or where the decision maker ignores
uncontroverted evidence which he was obliged to reflect on, the
decisions arrived at will be null and void.' “





[44] I do not understand Mr Khupe to
have any quarrel with the authority on which is relied. However, he
submitted that there were adequate facts before the second respondent
at the relevant time to properly make the decision against the
renewal of the employment permit. Counsel did not, however,
elaborate to state what these facts were.





[45] When one confines the analysis of
the facts to the reasons advanced in the second respondent’s
letter dated 24 February 2009, the answering papers do not mention
specific facts (except what is referred to as “notorious”
facts, with which I shall deal below). All that is stated is that
the second respondent allegedly rejected the application for the last
employment permit “as a result of the applicant’s failure
to satisfy the 2nd respondent that the employment concerned was not
one in which a sufficient number of persons were already engaged in
Namibia to meet the requirements of the inhabitants of Namibia as
required by Section 27 (2) (b) of the Immigration Act.” (at
paragraph 57). Clearly these allegations do not provide evidence of
any facts. In my view Mr Khupe’s main submission can therefore
not be upheld.





[46] In the alternative, counsel for
the second respondent placed reliance on what the second respondent
alleged, were notorious facts. It is convenient to consider the
respondents’ allegations in this regard by setting out the
relevant allegations and counter allegations in full.





[47] In paragraph 9 of the founding
affidavit the applicant states: “The allegation by the second
respondent that my position is not a field of scarcity it totally
wrong. Indeed, somebody able to fulfil my functions is very
scarce……..”. In paragraph 68.6 of its answering
affidavit the second respondent states in response that –





“[i]t was and still is a
notorious fact that the job of manager of a retail store in Namibia
in 2009 to this date is not a scarce skill employment-wise. This was
and is still a clear fact to the second respondent hence the decision
refusing to renew the applicant’s permit. ………….
A sufficient number of Namibian nationals simply have the necessary
academic qualifications and relevant experience to fill vacancies of
that nature whenever (wherever) they occur.”





[48] In support of the view expressed
in paragraph 68.6 the second respondent relies on an affidavit by Mr
Usiku, Namibia’s Equity Commissioner appointed in terms of
section 6(1) of the Affirmative Action (Employment) Act, 1998 (Act 29
of 1998). This affidavit is dated 6 August 2010 which means that it
was obtained after the last application for an employment permit was
rejected. The second respondent submitted that this affidavit is ex
post facto confirmation of the facts considered by the second
respondent to be notorious. Of course, if there is an evidential
basis for these facts, reliance need not be based on the principle
that the Court may take judicial notice of facts which are notorious.
For purposes of this discussion on notorious facts, I shall
therefore ignore Mr Usiku’s affidavit, but return to it later.





[49] In paragraph 90 the respondents
answer to paragraphs 6 and 7 of the applicant’s supplementary
affidavit in which he stated:





“6. I must stress that the
assumption by the Honourable Permanent Secretary in his letter dated
26 February 2009 that “… Namibian can take over, is not
a field of scarcity” is totally incorrect and unfounded. I
have perused the record and cannot find any facts upon which such a
conclusion can possibly be based. The truth is, the factual position
has not changed since I first came to Namibia in 2000. There are of
course many more retail stores and in fact the need for people of my
experience has become greater.





7. If there are facts available to the
respondents in coming to their decision that the position I fulfil is
not a field of scarcity, I am not aware of these facts and no such
facts were made available to me in order that I could respond to it
and refute it.”





[50] In paragraph 90 of the answering
affidavit the respondent state as follows:





“90.





90.1 The rehashed allegations on the
scarcity of the applicant’s job are disputed.





90.2 The respondents will rely on the
supporting affidavit of Vildard Thomas Usiku attached hereto to
refute the applicant’s scarcity allegations. Moreover the
Board by its very constitution is made out of persons aware of
notorious facts on the Namibian labour market. From my long period
as the chairperson of the 2nd respondent my Board members consisted
among others, of an official from the Ministry of Labour and Social
Welfare, the Ministry of Trade and Industry, the Ministry of
Education and the Ministry of Justice.





90.3 The second respondent is still
currently similarly constituted and consequently is capable of
properly undertaking its functions in terms of the Namibian law, in
particular Section 27 of the Immigration Act.”





[51] In this regard counsel further
submitted that the second respondent, by its very constitution, is in
a position to have knowledge of such facts and to take them into
account when considering applications for employment permits. Counsel
relied on what was stated in Chairperson of the Immigration Selection
Board v Frank, supra, where O’Linn AJA, writing for the
majority, stated (at p117C-118B)(the insertions between square
brackets are supplied):





“The Board, by the very nature of
its duties and responsibilities, acquire in the course of time
certain knowledge eg regarding the number of volunteers coming into
Namibia through organizations rendering development aid to Namibia,
and requiring temporary work permits for that purpose. It is also a
notorious fact that there is a University of Namibia and various
Technicons turning out people who acquire degrees and certificates.
It is also not inconceivable that individual members of the Board
have acquired certain knowledge through their own training and/or
experience. Furthermore, the Board is not a Court. The Board may
certainly make use of hearsay, even hearsay in the form of a letter
or statement by Mr Wakolele [the then Permanent Secretary of
Information and Broadcasting] or Mr Mbumba [the then Minister of
Finance]. There is no doubt that the Board also had to consider the
information and recommendations contained in such letters. It could
not arbitrarily ignore it or reject it.





Administrative authorities are entitled
to rely upon their own expertise and local knowledge in reaching
decisions. Loxton v Kenhardt Liquor Licensing Board 1942 AD 275 at
291-292; Clairwood Motor Transport Co Ltd v Pillai and Others 1958
(1) SA 245 (N) at 253G-254A.





It must also be obvious that such
bodies can take notice of facts which are notorious. So for example
the Board and a considerable percentage of the public, will know that
Namibia has a university which has for years, prior to independence
as well as thereafter, turned out graduates with BA degrees.
Similarly it is general knowledge that there have been teachers
training colleges before Namibian independence as well as thereafter,
turning out qualified teachers; and technical colleges, turning out
academically qualified persons in many fields. And as far as the
allegations of Simenda in para 10.2 of his affidavit are concerned,
the assumption made about the 'next few years' is certainly a
reasonable assumption based on wellknown and even notorious facts.





Furthermore, administrative tribunals
can rely on hearsay, to a much greater extent than Courts of law.
But, in a case where such knowledge or hearsay could not reasonably
be expected to be known to an applicant, the dictates of
administrative justice may make it necessary to apprize the applicant
for a work and/or residence permit of such knowledge or information
to enable such applicant to controvert it. (Foulds v Minister of Home
Affairs and Others 1996 (4) SA 137 (W) at 147B-149F.)





On the other hand it is trite law that
administrative bodies irrespective of whether their powers are
'quasi-judicial' or 'purely administrative', need not notify an
applicant beforehand of every possible reason for coming to a
particular conclusion. (Minister of the Interior and Another v
Sundarjee Investments (Pty) Ltd 1960 (3) SA 348 (T) at 351.)”





[52] In my view it is clear from the
passages quoted that if reliance is placed on notorious facts, these
should be facts which are notorious in the sense that they are
generally well known to any reasonably informed person, which
includes the second respondent and the Court. Facts which have
become known to the second respondent by virtue of its composition
and work may not necessarily be notorious in the sense that the Court
may take judicial notice of them. While I think that it may very
well be notorious that there are many retail stores in Namibia which
are managed by Namibians, and that there are institutions of learning
which educate and train Namibians to perform managerial functions in
the retail business, I do not think it is necessarily notorious that
there are a sufficient number of Namibians available to manage
supermarkets in the country or that there is no shortage of such
persons to fill all vacancies in this field of employment.





[53] Having said this, I do accept that
the second respondent may, by the very nature of its duties and
responsibilities and its varied composition, in the course of time
acquire knowledge about the Namibian labour market, as the second
respondent alleged. I think it is reasonable to assume that this
knowledge would extend to retail business in Namibia, even
specifically the fresh produce and supermarket business, as well as
its employment requirements at a managerial level.





[54] However, as was stated above in
the Frank case with reference to Foulds v Minister of Home Affairs
and Others 1996 (4) SA 137 (W) at 147B-149F (at 117I -118A) in a case
where such knowledge could not reasonably be expected to be known to
an applicant, the dictates of administrative justice may make it
necessary to apprize the applicant for a work permit of such
knowledge or information to enable such applicant to controvert it.
It is to this next issue that I now turn.





[55] Although the applicant alleges
boldly that he is able to refute the statement or conclusion of the
second respondent that his employment is not in a field of scarcity
and that a Namibian can take over and although the applicant has been
in that field of employment for some time and thereby might have
gained some applicable knowledge relevant to that field of
employment, I do not think that it can be reasonably expected of the
applicant to have the same knowledge as the combined members of the
second respondent who represent different ministries and deal with
numerous applications for work permits on a regular basis. If it was
indeed well known to the second respondent that there are sufficient
Namibians available to fill the applicant’s position, it should
be able to mention more specific facts or information upon which this
knowledge is based. It would seem that the second respondent based
its conclusion on unmentioned facts or assumptions which are based on
the knowledge gained by its members over time and by virtue of their
work. I think it is incumbent upon them inform the applicant of such
facts, assumptions and knowledge to afford him the opportunity to
controvert it (see Chairperson of the Immigration Selection Board v
Frank, supra, at 175F – 176A). I think the applicant should
have been given the opportunity to make representations regarding
this conclusion before the final decision was made.





[56] In this regard it cannot be
ignored that the applicant over the years made six applications for
employment permits. Although the first was initially rejected,
because the second respondent was of the view that “a Namibian
must be appointed” it was granted “on appeal” a
week later after the applicant’s employer provided what is, in
my view, slightly more substantial motivation than it did at first.
The second application was rejected, not because the applicant failed
to comply with the requirements of section 27(2)(b), but because the
business of the employer was liquidated. The third application to
work in and manage his own business was granted. The fourth
application to change the condition of the previous permit to enable
him to work for someone else, was mislaid. The fifth application for
the same employment permit was granted without any condition, other
than that he was permitted to work only for that employer. As far as
the employer was concerned, it was required to submit a replacement
plan within the period of validity of the permit. On numerous
occasions the second respondent was willing to regularise the
applicant’s status. Numerous provisional 3 month work visas
were granted on various occasions. I take note thereof that these
visas were usually granted pending consideration of the long term
employment permit applications and that this was done for the
convenience of all relevant parties. I shall assume, without
deciding, in favour of the respondents that different considerations
apply to the granting of these visas. However, what is clear is that
the second respondent must have been satisfied on the various
motivations provided by the applicant and/or his employers that he
was not or was not likely to be in any employment in which a
sufficient number of persons are already engaged to meet the
requirements of the inhabitants of Namibia, otherwise the granting of
all those permits was illegal. This the second respondent did not
concede and I am certainly not prepared on the available facts to
assume that it was so.





[57] In this regard I digress for the
moment to take note of Mr Khupe’s submissions that the
motivations provided by the applicant and his employers over the
years did not meet the requirements set by section 27(2)(b). While I
agree that the motivations do generally appear weak on the face of
it, it should be remembered that the decisions to grant the previous
permits were never motivated or placed under scrutiny as in the case
of the last refusal. Had this been done it might very well have
become evident why the motivations, weak as they appear to be, were
considered to be persuasive. It is also relevant to note that the
deponent of the main answering affidavit was not the chairperson of
the second respondent at the time these two applications were granted
and as there appear to be no detailed minutes setting out the second
respondent’s reasoning or discussion at the time, there is no
actual evidence of what the relevant considerations were. There might
have been many cogent considerations, including the economic climate
at the time, which could have given rise to an approach by the second
respondent that it required very little motivation or evidence to be
persuaded that the statutory requirements have been met. Reasonable
considerations which come to mind are e.g. the fact that the
applicant’s first employer was a foreign entity investing in
Namibia and providing jobs to Namibians; that the employer was
seeking to expand in a major way; and that it was planning to
transfer skills to locals. In regard to the employment permit to be
self-employed in his own business, it might very well have been a
consideration that the applicant had invested his own capital in
acquiring a business.





[58] In regard to the employment permit
granted in relation to Fountain Friendly (at a time when the deponent
was the chairperson of the second respondent) the motivation by the
employer was particularly weak. All this employer stated was that a
temporary work permit was requested for the applicant “as he is
a great asset to the business”. Nevertheless the second
respondent granted the permit for 12 months. Again it seems that the
second respondent was prepared to be easily persuaded that the
statutory requirements were met because it appears to have been a
weighty consideration that the applicant would be involved in
executing the replacement plan required of the employer. This follows
from what the second respondent states in paragraph 89.2 of the
answering affidavit, namely that “the replacement plan was an
important requirement designed to ensure transfer of skills possessed
by foreign employment permit holders.”





[59] I also take note of Mr Khupe’s
submissions concerning the statements in the answering affidavit to
the effect that the applicant makes bald allegations about the
“so-called” scarcity of his skills and experience and
about the doom and gloom which will descend on his employer’s
business should he not fill the position of store manager. My
overall impression of the applicant’s allegations in this
regard is that this aspect of his case is thin in substance and
padded by puffery. However, as I said before, the merits of the
applicant’s employment application is not in issue as
substantive relief was no longer claimed during argument and as the
relevant review grounds are not directly concerned with the merits.





[60] In conclusion, I agree with Mr
Barnard that something must have changed for the second respondent to
refuse the permit on the last occasion. In my view fair
administrative action as contemplated in Article 18 of the
Constitution on the part of the second respondent required that the
applicant be informed of this change in order for him to deal with
it. Even if this change is something like the second respondent
having raised the threshold at which it is satisfied that the
requirements of section 27(2)(b) have been met when compared to
earlier applications, the second respondent should convey what is
required in advance (e.g. proof of advertisements by the employer in
national newspapers, information about the number and nationality of
any other applicants for the position and why they were considered
unsuitable, etc), or it should at least give the applicant a chance
to refute its conclusion that that threshold has not been crossed.





[61] Mr Barnard went further and
submitted that the fact that the decision on the application for
permanent residence was pending and the fact that previous work
permits had been granted created a legitimate expectation with the
applicant that the work permit will be granted and not refused unless
he was afforded an opportunity to be heard.





[62] I do not think it is necessary to
use the concept of a legitimate expectation to decide on the
submission that the applicant should have been heard. The Supreme
Court in Minister of Health and Social Services v Lisse 2006 (2) NR
739 (SC) (at 771B-D) distinguished between two situations which it
considered “clear examples” of the common law review
ground which arises when “a decision-maker failed to apply the
audi alteram rule, when in certain situations reason and/or practice
dictates that the rule should apply.” These two situations
are:





“(i) Where the decision-maker is
privy to certain relevant information of which the applicant is
ignorant and the said information is used against the applicant, the
applicant must be informed by or on behalf of the decision-maker of
such information. Chairperson of the Immigration Selection Board v
Frank and Another 2001 NR 107 (SC).





(ii) When circumstances are such that
the applicant would have a reasonable expectation or legitimate
expectation of succeeding in the application, the audi alteram partem
rule must be applied.”





[63] O’Linn AJA then states (at
771D-772):





“I agree with the manner in which
Mainga J set out the law relating to this principle, part of which I
repeat:





'In Administrator, Transvaal and Others
v Traub and Others 1989 (4) SA 731 (A) at 756E - 757C Corbett CJ said
the following concerning legitimate expectation:





''The concept of a legitimate
expectation, as giving a basis for challenging the validity of the
decision of a public body on the ground of its failure to observe the
rules of natural justice was given the stamp of approval by the House
of Lords in O'Reilly v Mackman and Others and other cases [1982] 3
All ER 1124 (HL) at 1126j - 1127a.''





It is clear from these cases that in
this context ''legitimate expectations'' are capable of including
expectations which go beyond enforceable legal rights. Provided they
have some reasonable basis (Attorney General of Hong Kong case supra
at 350c). The nature of such a legitimate expectation and the
circumstances under which it may arise were discussed at length in
the Council of Civil Service Unions case supra. The following
extracts from the speeches of Lord Fraser and Lord Roskill are of
particular relevance:





''But even where a person claiming some
benefit or privilege has no legal right to it, as a matter of private
law, he may have a legitimate expectation of receiving the benefit or
privilege, and, if so, the Courts will protect his expectation by
judicial review as a matter of public law . . . Legitimate or
reasonable expectation may arise either from an express promise given
on behalf of a public authority or from the existence of a regular
practice which the claimant can reasonably expect to continue.''





Per Lord Fraser at 943J - 944A.





''The particular manifestation of the
duty to act fairly which is presently involved is that part of the
recent evolution of our administrative law which may enable an
aggrieved party to evoke judicial review if he can show that he had
'a reasonable expectation' of some occurrence or action preceding the
decision complained of and that that 'reasonable expectation' was not
in the event fulfilled.'' I





Per Lord Roskill at 954e.





After indicating that the phrases
''reasonable expectation'' and ''legitimate expectation'' were to be
equated and having expressed a preference for the latter. Lord
Roskill continued (at 954g):





''The principle may now be said to be
firmly entrenched in this branch of the law. As the cases show, the
practice is closely connected with 'a right to be heard'. Such an
expectation may take many forms. One may be an expectation of prior
consultation. Another may be an expectation of being allowed time to
make representations.''





See also Tettey and Another v Minister
of Home Affairs and Another 1999 (3) SA 715 (D) at 726C - D.'”





[64] O’Linn AJA then continued to
analyse the provisions of Article 18 of the Constitution and
concluded (at 773B-E) that it did not confine itself to procedurally
fair administrative action,-





“but provided generally that -





'Administrative bodies and
administrative officials shall act fairly and reasonably . . . and
persons aggrieved by the exercise of such acts and decisions shall
have the right to seek redress before a competent Court or Tribunal.'





[26] The general principle of a duty to
act fairly and reasonably supplements the common law and any relevant
statute, but obviously any common law or statute in conflict with
this provision will be unconstitutional.





[27] The principle of legitimate or
reasonable expectation has been overtaken by the aforesaid general
principle in art 18, but remains a specific concept which can and
should be used as a tool in the implementation of the aforesaid wide
and undefined principle of acting fairly and reasonably. The same
applies to the principle of the common law discussed above, that the
audi alteram partem rule should be applied when an administrative
tribunal or official is privy to information of which an applicant
would probably not have knowledge. The concept also applies when the
administrative institution or official adopts a new policy of which
the applicant is unaware.





[28] Article 18 makes no difference, as
did the common law, between quasi- judicial and purely administrative
decisions.”





[65] In Waterberg Big Game Hunting
Lodge Otjahewita (Pty) Ltd v Minister of Environment & Tourism
2010 (1) NR 1 (SC), the Supreme Court stated in similar vein (at
p12A-D):





“The ratio of this 'doctrine of
legitimate expectation' is consistent with the thinking and
principles contained in art 18 of the Namibian Constitution. The said
doctrine, as well as art 18, is based on reason and justice in the
exercise of administrative discretion. The doctrine was overtaken by
the later incorporation of art 18 into the Namibian Constitution.
Nevertheless, the doctrine can serve a useful purpose in supplying
some specifics to the broad and general norms set out in art 18 and
be used as a tool for the implementation of art 18. As such it should
be applied by our courts in conjunction with art 18.





Although neither art 18 nor the
decisions of the High Court and Supreme Court of Namibia require the
application of the audi alteram partem rule in every case of the
numerous routine administrative decisions that must be made by
officials from day to day, the rule must be applied to ensure
administrative justice where, for example, facts adverse to an
applicant are relied on by the decision-maker not known to the
applicant and where the doctrine of 'reasonable expectation'
applies.”





[66] In Chairperson of the Immigration
Selection Board v Frank, supra, Strydom CJ stated (at p171C) that the
right of the first respondent in that case to be treated fairly and
reasonably was not based on a legitimate expectation but on the
Constitution itself.





[67] In my view there are sufficient
grounds to conclude as I already have, that the first of the two
“clear examples” mentioned in the Lisse matter applies in
this case. It is important to bear in mind that a legitimate
expectation in the sense being discussed ordinarily arises “either
from an express promise given on behalf of a public authority or from
the existence of a regular practice which the claimant can reasonably
expect to continue” (Administrator, Transvaal and Others v
Traub and Others 1989 (4) SA 731 (A) at 756I; Minister of Health and
Social Services v Lisse (supra) 771G-H). In this matter there is no
express promise from which such a legitimate expectation can arise.
While it is so that the second respondent has, as set out above,
granted several of the applicant’s applications for employment
permits over the years, I am not convinced that it can necessarily be
said that by doing so in the circumstances of this case, it can said
that there was a regular practice which the applicant reasonably
could expect to continue. I prefer not to make a definite finding on
this issue, but to confine my decision to the first of the two “clear
examples.”





Mr Usiku’s affidavit





[68] In the affidavit Mr Usiku inter
alia states that Namibian retail stores employing more than 25
employees are obliged to provide statistics which are kept as
official records. Records reflecting the composition of employees at
senior and middle management level in Namibian retail stores for the
years 2008 and 2009 reflected that 62 Namibian nationals were
employed at the senior management level of seven retail stores,
which, it is sufficiently notorious for the Court to take judicial
notice, operate supermarkets. Five non-Namibians were employed at
this level. A total of 139 Namibians were employed at middle
management level, whilst only three non-Namibians were employed.





[69] While the low proportion of
non-Namibians does tend to indicate, in my view, that there is a high
level of engagement of Namibians in this field of employment, I agree
with Mr Barnard that it does not indicate whether the requirements of
the inhabitants of Namibia were being met. An indication of whether
there were unfilled vacancies at these stores, how long they have
been vacant and whether there had been applications to fill them with
foreigners would have been useful. I also note that the applicant’s
employer’s supermarkets are not among the stores mentioned.





[70] Quite apart from this, the
affidavit can only serve to confirm ex post facto that to some extent
that the second respondent may have been correct in its conclusion
that the employment field was not one of scarcity in the sense
discussed. However the second respondent never stated that it relied
on this information and Mr Usiku clearly stated that he was only
approached to provide this information for the first time during
February/March 2010. As such I do not think the second respondent
can rely on the affidavit for purposes of the issues arising from
this case.





Costs





[71] Mr Barnard moved for costs against
the respondents not only in the review application, but also in the
urgent application. There is no express prayer for costs in Part A
of the notice of motion in respect of the urgent application. This
application was settled, resulting in an interim order on the terms
claimed by the applicant. No order regarding costs was made. In the
replying affidavit the applicant deals for the first time with the
issue of costs of the urgent application. He states that the
respondents made out no case that the urgent application was
unwarranted and that, irrespective of the outcome of the review
proceedings, an order for costs should be granted for the urgent
application.





[72] Counsel for the respondents
submitted in the respondents’ main heads of argument that costs
was never an issue between the parties as it was never claimed and
that the urgent application was settled without the issue of
entitlement to costs having arisen.





[73] The failure to pray for costs in a
defended matter is not sufficient reason to deprive a successful
litigant of his costs. (See Herbstein and Van Winsen, The Civil
Practice of the Supreme Court of South Africa, (4th ed) 752 and the
cases cited in footnote 458). Although the applicant only notified
the respondent in reply of its intention to move for costs in the
urgent application, I do not think they were ultimately prejudiced as
notice was given and argument was heard on the merits of the claim
for costs.





[74] I agree with the applicant’s
counsel that the respondents did not make out a case that the urgent
application was unwarranted. What is more, it is as a result of
delays in notifying the applicant of the second respondent’s
decision that the need for urgent interim relief arose. In the
result I am inclined to grant the applicant’s claim for cost in
the urgent application.





[75] As far as the review application
is concerned, costs should follow the result.





The result





[76] In the result the following order
is made:





1. The decision in regard to the
applicant’s application for renewal of his employment permit
taken by the second respondent on 24 February 2009 is hereby reviewed
and set aside.





2. The respondents are directed to take
all necessary steps to ensure that the second respondent reconsiders
the applicant’s application for renewal of his employment
permit in a lawful and procedurally fair manner within 30 days from
date of this order.





3. The second respondent shall consider
the applicant’s application for a permanent residence permit
within 30 days from date of this order.





4. The respondents shall pay the costs
of the urgent application and the review application jointly and
severally, the one to pay the other to be absolved, such costs to
include the costs of one instructing and one instructed counsel.





[77] It is further prudent to remind
the parties of the terms of paragraphs 2.1 and 2.2 of the Court’s
order dated 20 October 2011.





K van Niekerk





Judge





APPEARANCE:





For the applicant: Adv P C I Barnard





Instr. by Koep & Partners





For the respondents: Mr M Khupe





Office of the Government Attorney