Court name
High Court Main Division
Case number
APPEAL 66 of 2015
Case name
Kameya v Chief of the Namibian Defence Force and Others
Media neutral citation
[2015] NAHCMD 92
Judge
Parker AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 66/2015


DATE:
16 APRIL 2015


REPORTABLE


In
the matter between:


JOHANNES
KAMBINDA
KAMEYA
..............................................................................APPLICANT


And


THE
CHIEF OF THE NAMIBIAN DEFENCE
FORCE...............................FIRST
RESPONDENT


THE
CHIEF OF STAFF: HUMAN
RESOURCES....................................SECOND
RESPONDENT


THE
MINISTER OF
DEFENCE....................................................................THIRD
RESPONDENT


THE
PRESIDENT OF THE REPUBLIC OF NAMIBIA.........................FOURTH
RESPONDENT


Neutral
citation: Kameya v The Chief of the Namibian Defence Force (A
66-2015) [2015] NAHCMD 92 (16 April 2015)


Coram:
PARKER AJ


Heard:
30 March 2015


Delivered:
16 April 2015


Flynote:
Administrative law – Review – Application to review
act of administrative official – Such application must be
brought in terms of rule 76 of the rules – Court held that
failure to comply with rule 76 is fatal – Effect of such
failure is that there is no application to review properly before the
court – Court held that it would therefore be wrong and
illogical for the court to grant interim interdict pending
finalization of a review application where such application did not
exist – Consequently, the court struck the application from the
roll with costs.





Summary:
Administrative law – Review – Application to review act
of administrative official – Such application must be brought
in terms of rule 76 of the rules – Failure to comply with rule
76 is fatal – In the same notice of motion applicant brought
application for interim interdict and application to review –
Applicant prayed the court to determine both applications on the
basis of urgency – Court refused to grant the application for
both interim relief and to review – Court reasoned that it
would be wrong and illogical to grant the interim relief pending the
finalization of the review application when such application did not
exist – Consequently, court struck the application from the
roll with costs.





ORDER


The
application is struck from the roll with costs.


JUDGMENT





PARKER
AJ:


[1]
The applicant launched an application by notice of motion, and seeks
the relief set out in the notice of motion. The application is for
interim interdict and to review the decision of an administrative
official. The applicant prays the court to hear the matter on the
basis of urgency. The respondents moved to reject the application;
and in that behalf, they raised preliminary points. Those points
which relate to the interpretation and application of rule 65, in
contradistinction to rule 76, are not points
in
limine
per se; but they are relevant in
determining the point
in limine
on the issue of whether the court should grant the indulgence sought
by the applicant that the application be heard as a matter of
urgency.


[2]
The applicant seeks review of ‘the decision of the first
respondent, made on 18 March 2015 to transfer the applicant from
Windhoek to Grootfontein’ (para 4 of the notice of motion). In
the same notice of motion (para 5), the applicant seeks interim
interdict to restrain the first respondent from implementing the 18
March 2015 decision pending the review of that decision. Thus, in the
same application the applicant has launched a review application
contemplated in rule 76 of the rules and an application for interim
relief contemplated in rule 65 of the rules.


[3]
Confusion is created, with respect, in the inelegant way in which the
notice of motion has been framed. It seem to me unclear as to which
of the relief sought – review of the decision of the first
respondent (under rule 76 of the rules) or interim interdict (under
rule 65) – is the court called upon to determine on urgent
basis? In this regard, I should say, the practice of the court, which
is well entrenched, is that such applicant would launch a review
application (the main application for final relief) under rule 76 and
also launch an application for interim relief under rule 65, read
with rule 73 (urgent application) pending the finalization of the
main application wherein the applicant prays the court to hear the
interim relief on the basis of urgency (rule 73) and asks the court
to order the status quo to remain undisturbed until the finalization
of the review application (the main application).


[4]
Such approach or practice is not only elegant but it is also
sensible; not least because if the interim relief is granted, the
decision sought to be attacked in the main application is put on
hold, unimplemented, until the finalization of the main application.
In that event, the applicant does not lose out even if the main
application is heard in the ordinary course. For the avoidance of
misunderstanding the proposition I have put forth, I hasten to add
that it may not be improper for an applicant to move the interim
relief application and a review application in the same notice of
motion, so long as rule 76 is complied with and the two applications
are delineated clearly for all to see. Some practitioners have
applied for interim relief and review (or other final relief) in the
same notice of motion wherein they have clearly delineated the two
different applications by embossing the letter ‘A’ on the
interim relief application, and the letter ‘B’ on the
main application for final relief. And they have prayed the court to
hear the interim relief application on the basis of urgency, pending
the finalization of the main application for final relief. As I have
said previously, if that is done, and the interim relief application
is successful, the applicant does not lose out, even if the main
application is heard in the ordinary course.


[5]
In the instant case what the applicant has done is this. He has moved
for interim relief and judicial review relief in the same notice of
motion without a clear delineation of the two different sets of
relief, and, what is more, without complying with rule 76 of the
rules as respects the application to review.


[6]
Thus, in the manner in which the application has been launched,
particularly the way in which the notice of motion has been
formulated and the way the prayer that the matter be heard on urgent
basis has been put forth, the applicant has put himself in a deep
problem from which he cannot extricate himself, as I now demonstrate.
In this regard, I should, with the greatest deference to Mr Mukonda,
counsel for the applicant, say that it is counsel’s misreading
of rules 65 and 76 that has led to this unfortunate state of affairs;
in particular, counsel’s misreading of rule 76, a rule that
specifically deals with judicial review of acts of administrative
bodies and administrative officials,
inter
alios
. See Black
Range Mining (Pty) Ltd v The Minister of Mines and Energy NO and
Others
Case No. A 305/2009
(Unreported).


[7]
I consider that the application to review the decision of the first
respondent, an administrative official within the meaning of art 18
of the Namibian Constitution, read with rule 76, does not, as Mr
Chibwana submitted, comply with rule 76 (in particular rule 76(2) and
(4)). See
Black Range Mining (Pty) Ltd v
The Minister of Mines and Energy NO and Others
.
The legal consequence of this conclusion is this: I hold that there
is no application properly before the court to review the decision of
the first respondent. That being the legal reality at play here, it
would be illogical and totally wrong for the court to grant, on
urgent basis, or, indeed, on any basis, an interim relief pending the
finalization of a review application when that did not exist.


[8]
Based on these reasons, I make the following order:


The
application is struck from the roll with costs.


C
Parker


Acting
Judge


APPEARANCES


APPLICANT
: R Mukonda


Of
Mukonda & Co. Inc., Windhoek


RESPONDENTS:
T Chibwana


Of
Government Attorney, Windhoek