Court name
High Court Main Division
Case number
APPEAL 35 of 2013
Case name
Christian t/a Hope Financial Services v Namibia Financial Institutions Supervisory Authority
Media neutral citation
[2016] NAHCMD 65
Judge
Geier J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT




Case
No: A 35/2013


DATE:
10 FEBRUARY 2016


REPORTABLE


In
the matter between:


HENDRIK
CHRISTIAN T/A HOPE FINANCIAL
SERVICES....................................APPLICANT


And


NAMIBIA
FINANCIAL INSTITUTIONS


SUPERVISORY
AUTHORITY.....................................................................................RESPONDENT


In
re
:


In
the ex parte application of:


IN
RE: DECLARATION OF RIGHTS IN CASE NO: 244/2007 (HENDRIK CHRISTIAN T/A
HOPE FINANCIAL SERVICES V NAMIBIA FINANCIAL INSITITUTIONS SUPERVISORY
AUTHORITY & ANOTHER) PURSUANT TO SUPREME COURT JUDGMENT IN CASE
NO: SCR1/2008 (HENDRIK CHRISTIAN t/a HOPE FINANCIAL SERVICES V
NAMIBIA FINANCIAL INSITITUTIONS SUPERVISORY AUTHORITY & 2 OTHERS)


Neutral
citation: Christian t/a Hope Financial Services v Namibia
Financial Institutions Supervisory Authority
(A 35/2013) [2015]
NAHCMD 65 (10 February 2016)


Coram:
GEIER J


Heard:
28 January 2016


Delivered:
10 February 2016


Released:
08 March 2016


Application
for recusal – entitlement of a respondent and legal
practitioners to participate in a recusal application –
In
the context of a recusal application the applicant had inter alia
raised an objection in regard to the entitlement of the respondent to
oppose the recusal application, which he perceived to be personal in
nature and only between him and the judge.


The
Court held that a respondent has a general right to participate and
be heard in a recusal application not only by virtue of the general
entitlement of a party to pending proceedings to be heard at all
stages of the proceedings but also because such party continues to
retain a recognisable interest in the outcome of a matter in which it
has become a party.


The
court held further that, on the specific facts of the matter, where
the applicant had also imputed unethical and untoward conduct on the
part of the respondent’s legal practitioners that this was an
attack on their personal integrity, as legal practitioners, on its
own, that entitled them to a response. The court thus held that the
recusal issue revolving around the events of 22 July 2015 were thus
not simply between the court and the applicant. 


When
the respondent’s instructing legal practitioner then filed an
answering affidavit, on the merits, on behalf of the respondent, he
did so also to defend his- and instructed counsels professional
integrity which, co-incidentally, also vindicated the actions of the
court. 


As
officers of the court, counsel, in any event had a duty to respond to
the recusal application – and - in particular – this
imposed on them the duty to put the record straight, thereby enabling
the court to make independent findings on the facts.


Court
thus holding that the filing of the answering affidavit in the
recusal application by the respondent’s legal practitioners was
in the circumstances neither reckless nor irresponsible and that such
conduct was duty- bound – also by virtue of their role as
officers of the court.


Application
for recusal –
communication by a party’s legal
practitioners with the court in the absence of the other party -
One
of the grounds on which the application for recusal was founded was
based on alleged discussions which the presiding judge allegedly had,
with respondent’s counsel, prior to a set hearing in a court
room in the absence of the applicant –


On
the evidence the court found that there had been no such discussions
and that the judge was merely in the process of checking whether the
recording mechanism in the court was functioning properly and that he
did not communicate with respondent’s counsel other than by
acknowledging their greetings.


On
the application of the applicable legal test to this factual matrix
the court held that this ground of recusal had to fail.


Court
holding further that no reasonable objective and informed person
would, on the underlying facts, i.e where a Judge simply for
unrelated reasons happens to be in a courtroom and is merely greeted
by the parties, reasonably apprehend that the court has not or will
not bring an impartial mind to bear on the case. To find otherwise
would be absurd as then any form of greeting or acknowledgement of
each other’s presence, for instance also if the Judge would by
chance meet counsel in the street or in the corridors of the court
and acknowledge such counsel’ presence through a greeting, in
the absence of the other party, would be able to found a recusal
application. 


Court
holding further that the conclusion that had to be drawn was that
applicant’s advanced apprehension was not that of a reasonable
person and that this advanced ground was contrived and was simply not
a reasonable one. 


Court
concluding, also after considering the other grounds of recusal, that
the application had no merit and thus had to be dismissed with costs.


ORDER


 


1.        
The application for recusal is dismissed with costs.



 


2.        
The applicant is to pay the respondent’s wasted costs
pertaining to the recusal application, on an attorney and own client
scale, such costs to include the costs of one instructed- and one
instructing counsel.


 


3.        
The main application is set down for hearing on 12 May 2016 at
10h00.



 


4.     
All points in limine, as well as the issue of wasted costs
relating to the postponement of the matter on 22 July 2015 are to be
heard on that date.


JUDGMENT





GEIER
J:


[1]       
The applicant to this Recusal Application has a history of bringing
recusal applications, so it was pointed out by counsel for the
respondent.  Counsel underscored this submission as follows:


In
the
Namibia
Financial Institutions Supervisory Authority v Christian
[1]
matter the applicant also brought an application for recusal but at a
late stage.  The application was not before court to be heard. 
In the judgment in that matter reference was made to previous
applications for recusal in the ongoing dispute between the parties,
against the Honourable Mr Justice Parker on 2 November 2007 and the
Honourable Mr Justice Manyarara on 20 November 2007.[2]


 


In
the
Christian
t/a Hope Financial Services

matter[3] the applicant again
brought an application for recusal. 


 


In
Christian
v Metropolitan
[4]
the applicant also brought an application for recusal. 





In
each of these matters the applications were dismissed as having no
substance.  The applicant should by now be well aware of the
principles relating to applications for recusal and that the present
application has no merit.  It seems to be common course for the
applicant if he is dissatisfied with the way a matter is proceeding
that an application for recusal is brought.  This is mala
fide. 
It is submitted that this application is further
simply a stratagem to again delay the final adjudication of the main
application.’  


 


[2]       
Also in this case, the applicant continues in this vein as the
application, now before the court, is the applicant’s third in
these pending proceedings. 


[3]       
Can the applicant succeed this time, or is this further attempt mala
fide
and simply a stratagem for again delaying the finalisation
of this matter, as counsel for the respondent has argued? 


[4]       
The latest quest by Mr Christian, the applicant in this matter, was
founded on the following allegations:


8.       
The grounds for recusal


The
grounds for recusal are informed by the following averments of facts:


 


8.1      
On 15 February 2013, I launched an ex parte application under
Case No. A35/2013 – Declaration of Rights.


8.2      
The relief sought is for an order in the following terms:


 


8.2.1   
Declaring that the Supreme Court judgment in Case No. SCR1/2008,
relating to a power of attorney filed without a resolution of an
artificial person (NAMFISA), is wholly apposite, mutatis mutandi,
to the rescission proceedings under Case No. A 244/2007 instituted on
12th September 2007;


 


8.2.2   
Declaring that the passage from Selma Patricia Tödt v Claude
Walter Ipser
, Case 104/1991 in the Supreme Court of South Africa
(Appellate Division), relating to the type of cases in which a
judgment is void, is wholly apposite, mutatis mutandis, to the
rescission judgment in Case No. A244/2007 obtained on 5th
October 2007;


 


8.2.3   
Declaring that the defect of lack of authorization of LorentzAngula
Inc. brings the rescission judgment in Case No. A244/2007 into the
category that attracts ex debito justitiae, i.e., to have it
set aside by right;


 


8.2.4   
Declaring the rescission a deprivation of applicant’s vested
right in the default judgment obtained from this Honourable Court in
Case No. I 2232/2007 on 7th September 2007;


 


8.2.5   
Declaring all other proceedings consequent to the rescission void;


 


8.2.6   
Granting the applicant further and/or alternative relief as the Court
may deem fit to restore the status quo ante as at 7th
September 2007.


 


9.        
On 15 February 2013 the ex parte application was served on
NAMFISA as an interested party.  The previous Rule 6(4)(b) which
deals with the procedure to oppose such application provides as
follows:


 


Any
person having an interest which may be affected by a decision on an
application being brought
ex parte, may deliver
notice of an application by him for leave to oppose, supported by an
affidavit setting forth the nature of such interest and the ground
upon which he desires to be heard, whereupon the registrar shall set
such application down for hearing at the same time as the application
first mentioned”.


 


10.      
It is trite that it is not a requirement that an application for
declaratory order should have an opponent, an applicant having an
interest in the order sought may bring such application ex parte.


 


11.      
On 22 February 2013, the matter was set down in the motion Court
roll.


 


12.      
NAMFISA failed to deliver a notice of application for leave to
oppose, but it was represented by Adv. Van Vuuren on 22 February 2013
on the strength of a notice of intention to oppose, which is
applicable to applications other than an ex parte application.


 


13.      
It was thus surprising that the Honourable Mr. Justce Geier allowed
Adv. Van Vuuren or NAMFISA to participate in the proceedings of an ex
parte
application, in total disregard of Rule 6(4)(b) of the
Rules of the Court.  This constitutes a ground of recusal
in that this act tended to show the Honourable Mr. Justice Geier was
clearly predisposed to favour NAMFISA.


 


14.      
The Court ordered: “That the matter is removed from the
roll” and “That answering papers or any application which
the respondent may wish to file should be filled within 14 days from
22 February 2013”.


 


15.      
The above order was granted outside the Rules of this Court and
tended to show that the Honourable Mr. Geier favoured NAMFISA, which
constitutes a ground of recusal.


 


16.      
Decision per incuriam of the judicial oath
and of law


 


When
the provisions of section 5(2) of Act 3 of 2001 were placed before
him to give a proper interpretation thereof the Honourable Mr.
Justice Geier refused to do so – and decided to refrain from
doing so.  This is nothing less than failure to perform his
judicial function, it is a right inherent in the Court to do so.


 


17.      
This decision constitutes a failure on the part of the judge to
adhere to the judicial oath which he has taken at the appointment.


 


18.      
The Honourable Mr. Justice Geier ex parte discussions with Adv.
Barnard and Mr. Philander before hearing


 


Furthermore,
what happened on 22 July 2015 is not excusable whereby the Honourable
Mr. Geier and the Legal practitioners Adv. Barnard and Mr. Philander,
representing NAMFISA, were engaged in ex parte discussions in
Court A before the hearing of the matter.  Mr. Jacobus Josob
witnessed the ex parte discussions at 09h50 in Court A.


 


19.      
Neither Honourable Mr. Justice Geier nor the NAMFISA’s legal
representatives denied the above situation or explained the ex
parte
discussions.  This heightened the applicant’s
suspicion of bias on the part of Hon. Justice Geier.


 


20.      
The mere presence of the Honourable Mr. Justice Geier in the Court
room with the legal practitioners representing NAMFISA before the
hearing of the case vitiated the proceedings and fairly aroused the
suspicion that the course of justice had been improperly interfered
with, and ‘not only must justice be done but it
should manifest and undoubtedly be seen to be done’
.


 


21.      
For this reason alone, the Honourable Mr. Justice Geier should not
hear the matter any further and should recuse himself.





22.      
The Court order dated 18 August 2015


 


The
Court order dated 18 August 2015 reads as follows:


 


Having
the applicant in person and Mr Barnard, on behalf of the respondent
and having read the documents filed of record and due to the xxxx
contained in paragraph 3.5 of the respondent’s status report
dated 11 August 2015:


 


IT
IS ORDERED THAT:


 


1.        
The main application is set down for hearing on 22 October 2015 at
10h00.


 


2.        
Also the applicant’s points in limine as well as the
issue of wasted costs relating to the postponement of the matter on
22 July 2105 are to be heard on that date.’


 


23.      
The directions given by the impugned judgment/order were per incuriam
of the binding procedural fair play and in breach of the Rules of
procedural fair play and tainted with irrationality. It is unheard of
that a court hears points in limine after the merits of the
main application; and not before. To do so, would prejudice and
deprive the applicant of a fair hearing. The applicant is
apprehensive about the procedural irregularity as justice Smuts did
the same: Justice Smuts suggested that the points and the merits be
heard instead of adjudicating on the points first. In the end,
Justice Smuts disregarded the applicant’s points in limine
when giving the Court order, on which NAMFISA is wrongly advised to
rely.


 


25.      
Exceptio Suspecti Judicis


 


It
is respectfully submitted that the importance and the interesting
nature of void judgment is not understood and appreciated by the
Honourable Mr. Justice Geier, in that he has failed to recognize that
there are three (3) exceptions to the general rule, where a party
simply can disregard a void judgment without it being formally set
aside.


 


26.      
The same applies to the doctrine
ex
debito  justitiae,

which importance and  interesting nature is not fully understood
and appreciated by the Honourable Judge – that the Court has
the inherent power a to act
ex
debito justitiae

to correct its own errors/mistakes.’[5]


 


[5]       
Mr Philander, the legal practitioner of record of the respondent, who
deposed to the answering affidavit, on behalf of the respondent,
stated:


3.        
The dissatisfaction of the applicant with the procedure followed by
the court to date is no ground for recusal.  Argument will be
addressed to the Honourable Court in this regard.


 


4.           
In paragraph 18 of the founding affidavit the allegation is made that
Adv. Barnard and I engaged in ex parte discussions with the
Honourable Geier J in Court A prior to the hearing of the matter. 
The further allegation is that Mr Josob witnessed these alleged
discussions.


 


5.           
I unequivocally state that this is not the truth.  Adv. Barnard
and I greeted the judge.  We had no further communication. The
judge was in the process of checking whether the recording mechanism
was functioning properly and did not communicate with us other than
acknowledging our greetings.


6.           
The allegation in paragraph 19 of the founding affidavit that neither
the Honourable Geier J, nor Adv. Barnard and I denied the above
situation or explained the ex parte discussions, is
untruthful.  In paragraph 5.5 in the founding affidavit to the
previous application the allegation is only that the honourable Geier
J and Adv. Barnard and I were present in Court A before the hearing. 
No allegation is made of any discussion.  That was also the
issue at the appearance before court on 22 October 2015.  There
was thus no opportunity to deny or explain the alleged ex parte
discussions.  In any event, the respondent’s position in
respect of the averments by the applicant is evident from the status
report it had to file with court as per the Court Order of 22 July
2015.


 


7.           
The honourable court is humbly requested to dismiss the application
for recusal with costs on a scale as between attorney and client,
including the cost of instructing and instructed counsel.’


[6]       
In reply, the applicant then alleged that:


3.       
The respondent explicitly states that it will not oppose this recusal
application, and accordingly informed both the Court and the
applicant.


4.        
It is, thus, surprising that the Honourable Mr Justice Geier put up
an impassioned plea for the respondent’s participation in the
recusal application which tend to show that he relies on the
respondent to put up for his defence in the recusal application.


 


5.        
The Court, at the conclusion despite Adv. Barnard’s
unexpectedly concurrence with the Honourable Mr Justice Geier’s
impassioned plea for the respondent on 17 November 2015, the
respondent’s express submission, it will not oppose this
recusal application dissolved into thin air without the respondent’s
authorization and/or instruction.


 


6.        
It is submitted that the there is no factual or legal foundation for
the respondent to put up defence for objections made against the
Honourable Mr Justice Geier, it is personal in nature.


 


7.           
The respondent did not address the matters raised in the applicant’s
founding affidavit.


 


8.           
The respondent placed emphasis on the ex parte discussion with
the Honourable Mr Justice Geier, on 22 July 2015 but failed to
understand that the mere presence of the Honourable Mr Justice Geier
with Adv. Barnard and Mr Philander vitiated the proceedings and such
appearance fairly aroused the suspicion that the course of justice
had been improperly interfered with, and that not only must justice
be done but it “should manifestly and undoubtedly be seen to be
done”.’


[7]       
The following further relevant allegations can be extracted from the
replying papers:


12.1   
It is respectfully submitted that bias may not actually or probably
be within the mind of the Honourable Mr Justice Geier when he entered
the A-Court on 22 July 2015 but his presence together with Adv.
Barnard and Mr Philander, placed him in a situation which led to the
reasonable fear that he may have been infected with bias.


12.2    
Mr Philander admitted that the Honourable Mr Justice and Adv. Barnard
and himself were in Court –A before the hearing on 22 July
2015.  The mere presence of the Honourable Mr Justice Geier at
Court A at that point in time vitiated the proceedings.  Whether
Geier J was checking the recording system is irrelevant.


 


12.3    
Finally, it is necessary to mention that the Honourable Mr Justice
Geier “must not only be impartial but must be seen to be
impartial”.


 


13.1    
I find it strange that Mr Philander involved himself in ‘litigation’
which is personal in nature and in fact between the Honourable Mr
Justice Geier and the applicant by requesting for the dismissal of
the recusal application, and asked to be awarded costs.


 


13.2    
It appears that Mr Philander was very little understanding of the
purpose of awarding of costs, which is to award costs to a successful
litigant to indemnify his or her expenses to which he or she been put
through having been unjustly compelled to initiate or defend
litigation, as the case may.


 


13.3    
Despite the respondent’s decision not to oppose the recusal
application, Mr Philander on the ‘recommendation’ of the
Honourable Mr Justice Geier put up defend on behalf of the Honourable
Mr Justice Geier.


 


13.4    
The Honourable Court is humbly requested to order that Mr Philander
to pay costs de bonis propriis in that he acted in an
irresponsible and reckless manner by misleading the Court and
deceiving his ‘own client’ the respondent.’  


[8]       
The written heads of argument filed by applicant contain in essence
the same arguments as made in the founding papers. It was again
reiterated that the initial opportunity granted to the respondent to
be heard showed bias in favour of NAMFISA and that the failure to
interpret Section 5 (2) of Act 3 of 2001 constituted a valid ground
for recusal and that the mere presence of the presiding Judge in the
court room with respondent’s counsel vitiated the proceedings. 


[9]       
A further bone of contention, on which the application was based, was
the court’s interlocutory order, made on 18 August 2015,
through which the court directed that the main application, as well
all points in limine and the remaining costs issue would be
set down for hearing, at the same time, on the 22nd of
October 2015. The applicant perceived this to be a procedural
irregularity on account of which he should not be made to suffer a
wrong as same was prejudicial to him.  This perceived procedural
irregularity was now advanced as a ground for recusal.


[10]     
The applicant alleges further that the court does not understand the
importance and nature of void judgments and that the court fails to
recognise the three exceptions to the general rule in terms of which
a party can simply, and with impunity, disregard a void judgment
without same first being formally set aside. 


 


[11]     
He submitted further that the same goes for the doctrine ex dibito
justitiae
which the court has not fully understood and which
gives the court the power to simply correct its own mistakes.


[12]     
He again argued that the decision to allow NAMFISA to participate in
his ex-parte application without an application for leave to
oppose reveals partiality and that the same should be said for the
court’s failure to regulate what should be heard on October 22
which ruling is in conflict with a Supreme Court decision case SC
1/2008 and particularly with paragraph 6 of that judgment.


[13]     
Mr Barnard on behalf of the respondent, after citing the applicable
case law and after summarising the applicant’s case, submitted:


9.       
In paragraph 28.1 the applicant still maintains that the main
application should be heard without the respondent being afforded an
opportunity to oppose and state its case.  It is submitted that
the persistence by the applicant with this approach underscores the
mala fides of the applicant with this application.  The
attempts by the applicant to deny the respondent an opportunity to be
heard is a violation of the constitutional principle of a fair
trial.  The right to be heard is such a basic right that the
applicant cannot but be fully aware thereof and appreciate the basic
unfairness and fallaciousness of his conduct.  His complaint
that the refusal by the court to exclude the respondent from the
hearing is indicative of bias is so devoid of any substance that it
is mala fide, vexatious and frivolous. 


 


10.      
It is submitted that the procedure adopted by the applicant, wanting
to exclude the respondent from proceedings, is nothing but an
ill-conceived stratagem by the applicant to attempt to evade the
order of this court prohibiting any legal action against the
respondent in the matter Namibia Financial Institutions Supervisory
Authority v Christian and Another 2011 (2) NR 537 (HC).


 


11.         
In
paragraphs 28.3 and 28.5 the applicant expresses his dissatisfaction
with the procedures adopted by court.  This complaint is without
any substance whatsoever.  A party cannot prescribe to court the
procedures to be followed.  A judge determines and controls the
procedure in his court, even more so with the advent of case
management.  The court has an inherent reservoir of power to
regulate its procedures in the interests of the proper administration
of justice.  This inherent power is not derived only from the
need to make the court’s order effective and to control its own
procedures, but also to act fairly where no specific law provides
directly for a given situation.[6] 


 


12.         
It is
trite law that the Rules exist for the court, not the court for the
Rules and that a court will not become the slave of rules designed
and intended to facilitate it in doing justice.  A court may
draw on its inherent powers to relax the Rules or to apply it as it
deems fit.[7] 


 


13.         
Once the need for joinder becomes apparent, a court has no discretion
and will not allow a matter to proceed until the interested party has
been afforded an opportunity to be joined.  This basic principle
was pointed out to the applicant in the judgment by the court in this
matter on 28 January 2014. (record p. 695 [50] – [51] 
Yet, the applicant obstinately elects to ignore both the principle
and the judgment by the court.  This deliberate election is mala
fide,
frivolous and vexatious. 


 


14.         
In
paragraph 28.2 the applicant is not satisfied with the interpretation
by the honourable court of the provisions of section 5(2) of the
Namibian Financial Institutions Supervisory Authority Act 3 of 2001
regarding the temporary appointment of Lilly Brand as chief executive
officer in the absence of the appointed chief executive officer. 
The applicant refuses to acknowledge the provisions of section 29 of
this Act despite this being pointed out to the applicant in these
papers and the fact that this court has ruled on the propriety of the
temporary appointment of Lilly Brand as chief executive officer in
the absence of the chief executive officer.[8]  


 


15.         
In paragraph 28.3 the applicant maintains that a power of attorney
relied upon by the respondent was invalid.  The honourable court
did find in the interim application for leave to oppose the main
application that the deponent for the respondent had not proved its
authority.  However, subsequent to the judgment the respondent
has placed ample facts before court of the existence of a valid
resolution and has passed further resolutions ratifying any previous
actions.   In an interlocutory application for condonation
for late filing of the notice of intention to defend the authority
issue was fully canvassed and argued.  The court granted
condonation and by implication found that the representatives of the
respondent were duly authorized.  This issue is thus no longer
open for debate.  (record p. 1006)


 


16.         
If the
applicant is aggrieved by the orders the court makes he can lodge and
appeal should it be appropriate in the circumstances. 
Dissatisfaction with an order of court is no ground for an
application for recusal.[9]


 


17.         
Finally, in paragraph 28.4 the applicant alleges that the honourable
Mr Justice Geier and the legal practitioners for the respondent had
discussions in court prior to the hearing of the matter on 22 July
2015.  As the applicant himself was not present at the time, he
relies on observations by Mr Josob.  Mr Josob filed a
confirmatory affidavit. 


 


18.         
The
vexed allegation that there were discussions prior to the hearing of
the matter are soundly refuted by the legal practitioner for the
respondent in answer.  Where a court is faced with material
disputes of fact in the papers for the applicant and the papers for
the respondent the version of this respondent should prevail upon an
application of the Plascon-Evans Rule.[10] 


 


19.         
It is submitted that once the relevant facts are determined by
application of the Plascon-Evans Rule, the relevant facts must
establish a case for the relief applied for on a balance of
probabilities.  Should the allegation by the applicant that the
alleged discussions took place survive the application of the
Plascon-Evans rule, the allegation can still not be accepted. 
There is no reason why the version of the applicant, who bears the
onus, can be preferred above that of the respondent. 


 


20.         
The applicant purports to be seriously aggrieved by the alleged
discussion between the presiding judge and legal practitioner for the
respondent on 22 July 2015 prior to the hearing, to the extent that
he based his application for recusal upon this alleged discussion. 
Yet, shortly after the alleged discussion, on 30 July 2015 the
applicant filed a document headed “THE HEARING ON 22 JUNE
2015
”.  (record p. 1352)  In this document he
stated “I refer to the above matter and wish to respond to the
happenings which might have improperly interfered with course of
justice …”.  In this document reference is made to
the fact that the honourable Mr Justice Geier and the legal
practitioners for the respondent were present in court at the same
time prior to the hearing on 22 July 2015.  (record p. 1353) 
No allegation is made of any discussions. 


 


21.         
The applicant filed a further document on 14 August 2015 headed
APPLICANT’S PROPOSAL ON THE WAY FORWARD IN THIS
MATTER”
. (record p. 1303)  In paragraph 8 of this
document reference is again made to the alleged “…presence
of the Honourable Mr Justice Geier and the purported legal
representatives of the respondent, Adv. Barnard and Mr Philander in
the same court room before the scheduled hearing at 10h00…”. 
Once again, no allegation is made of any discussion.


 


22.         
On 21 October 2015 the applicant delivered an ex parte
application to the full court for an order that the honourable judge
be interdicted from hearing the matter. (record p 1329)  In the
founding affidavit to the earlier application sworn to by the
applicant on 21 October 2015, once again allegations are made only of
the presence of the honourable Mr Justice Geier and the legal
practitioners for the respondent in court at the same time prior to
the hearing.  (record p. 1333 para 5.5; p. 1340 para 28) 
In that affidavit also no allegation is made of any discussions. 


 


23.         
In the founding affidavit to the present application attested to on
16 November 2015 the facts change.   For the first time an
allegation is made that there were discussions between the honourable
Mr Justice Geier and the legal practitioners for the respondent. 
It is submitted that if there in fact had been such discussions, the
applicant would have pounced on these all important facts to support
the earlier application.  The applicant would have referred to
these alleged discussions from the outset in the notices shortly
after 22 July 2015.  The applicant would not have remained
silent and for the first time referred to the alleged discussions in
the affidavit in support of the present application for recusal. 


 


24.         
It is submitted that upon determining the balance of probabilities,
the version on behalf of the respondent is far more believable than
that of the applicant.  As the onus rests on the applicant and
there are two mutually destructive versions, the applicant can only
succeed if it satisfies the court on a preponderance of probabilities
that its version is true and accurate and therefore acceptable, and
the version of the respondent is therefore false or mistaken and
falls to be rejected.  In deciding whether that evidence is true
or not the court will weigh up and test the allegations by the
applicant against the general probabilities.  The estimate of
the credibility of the deponents will therefore be inextricably bound
up with a consideration of the probabilities of the case, and if the
balance of probabilities favours the applicant, then the court will
accept its version as being true.  If however the probabilities
are evenly balanced in the sense that they do not favour the case for
the applicant any more than they do the case for the respondent, the
applicant can only succeed if the court nevertheless believes it and
is satisfied that its evidence is true and the version on behalf of
the respondent if false.’


 


[14]     
After so exposing the applicant’s above mentioned history of
recusal applications, it was submitted in conclusion:


30.     
… that the application is devoid of merit to the extent that
the conclusion is inescapable that the applicant is mala fide and
that the application is frivolous and vexatious.  The
application for recusal is brought at a late stage aimed at delaying
the hearing of the matter on the merits.  The applicant is well
acquainted with the law relating to applications for recusal and
should have known that the application has no merit.  In the
application for recusal the applicant again relies on the stratagem
for the main application, attempting to have the court adjudicate the
main application without hearing the respondent and avoiding the
judgment of this court prohibiting the applicant from instituting any
legal proceedings against the respondent.  The applicant, with
his knowledge and experience, cannot argue that the main application
and this application for recusal is bona fide and proper. 
This application for recusal and the structure of the main
application is an abuse of process.  It is confirmation of the
contempt the applicant has for the law and the courts of Namibia. 
This justifies a special cost order as ill-founded and misdirected
applications such as this are to be discouraged.’


THE
GROUNDS FOUNDED ON THE EFFECT OF VOID JUDGEMENTS AND THE DOCTRINE EX
DEBITO JUSTITIAE


[15]     
If one then considers these grounds on which this application is
based, it emerges that some of the points, such as the effect of a
void judgment and whether or not a party is at liberty to ignore
same, were disposed of already in a reasoned judgment given by the
court.[11]  Nothing needs
to be added in this regard. 


 


THE
GROUNDS BASED ON THE JOINDER OF THE RESPONDENT TO THE EX PARTE
PROCEEDINGS INITIATED BY APPLICANT


[16]     
The manner in which NAMFISA, the respondent, came to be joined was
dealt with in the court’s judgment delivered on 28 January
2014.  Also here nothing needs to be added. 


[17]     
The particular manner as to how it came about that NAMFISA was
allowed to participate in the initial motion court hearing conducted
on 22 February 2013 was set out and dealt with in the referred to
judgment which reflects also the transcript of the proceedings which
culminated in the complained of resultant order. 


[18]     
What was lost on the applicant, who obviously fails to appreciate the
import of the order, issued on 22 February 2013, was that the order
was never granted outside the Rules of Court.  It appears
expressly from the order that it gave NAMFISA the choice, at its
discretion, and thus at its peril, to elect as to how to proceed. A
court does not give legal advice to a party and it emerges that the
court merely facilitated the taking of any further steps which
NAMFISA might have wanted to take.  The order was simply not
prescriptive at all and it was obviously wide enough to allow for an
application for ‘leave to oppose’ to be brought, in
accordance with the Rules of Court. 


[19]     
The applicant also fails to mention that this initial order was
subsequently varied at his behest.  Nothing can thus turn on the
original order which was subsequently varied on 18 September 2013. 


[20]     
Mr Van Vuuren, who initially appeared on behalf of NAMFISA, with
instructions to oppose the ex-parte application brought by the
applicant, tendered a notice to oppose together with a power of
attorney at the time.  The applicant then had no objection that
these documents were to be handed up to court.  So much is
apparent from the record. Nevertheless it was clear that NAMFISA,
through the handing up of these documents, did not thereby just
simply become a party to the launched ex-parte proceedings,
automatically, in the absence of a formal application for ‘leave
to oppose’, which application, so it should be mentioned, was
delivered at a later stage, in spite of the opportunistic allegations
made by the applicant in the current papers to the contrary. 


[21]     
I have said it before and I will say it again, I believe that a
court, faced with the circumstances which are apparent from the
referred to transcript of the record, the subject matter and history
of the dispute between the parties, would have been remiss not to
give NAMFISA the opportunity to be heard and not to give and allow
NAMFISA the opportunity to formalise its status in the ex-parte
application brought by the applicant, which directly affected
NAMFISA’s interests. 


[22]     
In any event, if the initial hearing, which culminated in the
subsequent, formal joinder of NAMFISA, as a party and as a respondent
to the pending proceedings on 28 January 2014 amounts to an
irregularity, it is for the applicant to pursue this point on
appeal.  Even if the court would have been in breach of any
particular rule, which I believe is not the case, such perceived
breach cannot just simply be converted into a ground for recusal. 


THE
COURT’S ALLEGED FAILURE TO INTERPRET SECTION 5(2) of ACT 3 of
2001


[23]     
The same must be said for the ground mounted on the court’s
alleged failure to interpret Section 5(2) of Act 3 of 2001. 
From the reasoned judgment, delivered on 21 May 2014, (the judgment
was incidentally delivered
ex
tempore

and was thus read into the record in the presence of the applicant),
it appears pertinently that the court dealt with the point and the
applicant’s submissions made in this regard.[12] 
The court also dealt with the applicant’s related challenge to
Mr Shiimi’s authority to oppose the
ex-parte
application.  The court, after dealing with the applicant’s
challenge – and - after considering that challenge to be a weak
one - explained why it decided to refrain from deciding the point. 
The court expressly stated and again I quote from the judgment:


The
arguments exchanged on the competency of the delegation of powers to
Mr Paulino were not raised by Mr Christian in his Answering Affidavit
filed in opposition to the Condonation Application.  In any
event, the challenge mounted in this regard was not underscored by
any evidence.  In such circumstances, although some arguments
was contained in the Heads of Argument and raised during oral
argument, I will refrain from deciding this issue and thereby the
second point in limine raised by Mr Christiaan.’


[24]     
It appears that the applicant opportunistically has extracted one
sentence from the judgment to create a ground for recusal, ignoring
deliberately so the express reasoning of the court. Again, and in any
event, if these reasons and the conclusion of the court was wrong, it
is for the applicant to raise this point on appeal.  No recusal
application can be mounted on this ground.” 


THE
GROUND BASED ON THE COURT’S INTERLOCUTORY RULING TO HEAR THE IN
LIMINE POINTS TOGETHER WITH THE MERITS


[25]     
It is also convenient at this stage to deal with the next procedural
ground advanced, namely the court’s ruling to hear the
applicant’s points in limine together with the merits,
as well as the outstanding costs issue. 


[26]     
In a befuddled argument, the applicant alleges, on the one hand, that
the court’s ruling is in breach of procedural fair play and
that this is unheard of, while stating, on the other, in the same
breath, that Justice Smuts did the same.


[27]     
It does not take much to realise that a Judge would always be free to
regulate the procedure before him or her and thus hear the merits
together with any technical points raised. This happens on a daily
basis in our courts. 


[28]     
Again the applicant does not present the full picture.  Prior to
the complained of ruling, the parties were invited to submit their
arguments ‘on the way forward’ in writing. The court also
heard the parties before it made the ruling of 18 August 2015. 


[29]     
It should incidentally be mentioned in this regard that it was
pointed out subsequently to Mr Christian that the applicant here
quotes the wrong order.  The order which the applicant cites and
which reads:


Having
heard the applicant in person and Mr Barnard, on behalf
of the respondent and having read the documents filed of record and
due to the xxx contained in paragraph 3.5 of the respondent’s
status report dated 11 August 2015:


IT
IS ORDERED THAT
:


1.
The main application is set down for hearing on 22 October 2015
at 10h00.


 


2.
Also the applicant’s points in limine as well as the
issue of wasted costs relating to the postponement of the matter on
22 July 2015 are to be heard on that date.


 


BY
ORDER OF THE COURT





REGISTRAR


/
es


[30]     
This order was never authorised to be issued by myself.  It is
unknown how this order came to be released.  I follow the
practice that all my orders, and especially all my case management
orders, are initialled by myself, before they can be issued. 
The order relied on was not initialed by myself and its issue was
thus never authorised. 


[31]     
The correct order then also reflects the reasons for the ruling and I
quote the correct order that is the signed order which reflects that
the order was made for the reasons set out in paragraph 3.5 of the
respondent’s status report dated 11 August 2015:


CASE
NO.: A 35/2013


IN
THE HIGH COURT OF NAMIBIA, MAIN DIVISION


WINDHOEK,
TUESDAY, THE 18TH DAY OF AUGUST 2015


BEFORE
THE HONOURABLE MR JUSTICE GEIER


In
the matter between:


HENDRIK
CHRISTIAN T/A HOPE FINANCIAL SERVICES APPLICANT





And







NAMIBIA FINANCIAL
INSTITUTIONS SUPERVISORY AUTHORITY            
RESPONDENT



 



In re:



In the ex
parte
application of:



IN RE: DECLARATION
OF RIGHTS IN CASE NO: 244/2007 (HENDRIK CHRISTIAN T/A HOPE FINANCIAL
SERVICES V NAMIBIA FINANCIAL INSITITUTIONS SUPERVISORY AUTHORITY &
ANOTHER) PURSUANT TO SUPREME COURT JUDGMENT IN CASE NO: SCR1/2008
(HENDRIK CHRISTIAN t/a HOPE FINANCIAL SERVICES V NAMIBIA FINANCIAL
INSITITUTIONS SUPERVISORY AUTHORITY & 2 OTHERS)






Having
heard the applicant in person and Mr Barnard, on behalf
of the respondent and having read the documents filed of record and
for the reasons set out in paragraph 3.5 of the respondent’s
status report dated 11 August 2015:


IT
IS ORDERED THAT
:


2.
The main application is set down for hearing on 22 October 2015
at 10h00.


 


2.
Also the applicant’s points in limine as well as the
issue of wasted costs relating to the postponement of the matter on
22 July 2015 are to be heard on that date.


BY
ORDER OF THE COURT


REGISTRAR


[32]     
All this seems to be of no significance to Mr Christian, who pushed
on regardless with this issue at the hearing, despite the court
having pertinently pointed this out to him earlier during the case
management hearing conducted on 10 November 2015. 


THE
RELIANCE ON SUPREME COURT CASE 1/2008


[33]     
The applicant also relies on Supreme Court case 1 of 2008, which he
cites as a precedent, which this court is bound to follow and he
relies particularly on paragraph 6 of that judgment which I will then
quote:


The
rule in the Cape Mall-case is in my view a salutary one. 
Whenever a power of attorney is filed of record authorising a legal
practitioner to appear on behalf of a corporate entity in a matter
such as the one currently before the Court, the minimum evidence
required would be a resolution of the corporation from which it
should be apparent that the person who had signed the power of
attorney had been authorised to execute it in those terms.  In
the absence of such a resolution, this Court is not satisfied on the
papers before it that sufficient evidence exists to show that the
first respondent has authorised opposition to this application;
instructed LorentzAngula Inc. to file heads of argument and to appear
on its behalf.’


[34]     
The judgment and the relied upon paragraph in the judgment do however
not sustain in the applicant’s submissions which can, in my
view, also not be seen and be interpreted to prescribe and lay down a
hard and fast rule that precludes a court from hearing the merits of
a matter together with any in limine objections that may have
been raised.  The Supreme Court obviously dealt with the issues
serving before it in a particular and pragmatic manner at the time,
on the basis that it deemed fit, and, this is precisely the reason
why all higher courts are left with a free hand to deal with such
procedural matters, on a case by case basis, as deemed appropriate. 
It must be concluded that also this ground is devoid of all merit. 


THE
ALLEGED DISCUSSSIONS


[35]     
The most important ground advanced by Mr Christian was based on the
alleged discussions which the court apparently had, with Adv. Barnard
and Mr Philander, prior to the set hearing. 


[36]     
In this regard the applicant’s propensity to rely on
half-truths was exposed by the answering affidavit filed on the
merits and through the written heads of arguments filed on behalf of
the respondent.  There simply were no discussions as is
alleged.  Not only was this aspect belatedly and
opportunistically alleged, as was exposed by Mr Barnard, it is also
noteworthy that neither the applicant, nor Mr Jossop, who witnessed
the events in court did not- and- obviously were unable to reproduce
what the alleged discussions entailed and what they were all about. 
Not an iota of detail as to what was allegedly said in the alleged
discussion was reproduced in the affidavit founding this point. 


[37]     
Mr Philander on the other hand declared:


5.
I unequivocally state that this is not the truth.  Adv. Barnard
and I greeted the judge.  We had no further communication. The
judge was in the process of checking whether the recording mechanism
was functioning properly and did not communicate with us other than
acknowledging our greetings.


6.
The allegation in paragraph 19 of the founding affidavit that neither
the Honourable Geier J, nor Adv. Barnard and I denied the above
situation or explained the ex parte discussions, is
untruthful.  In paragraph 5.5 in the founding affidavit to the
previous application the allegation is only that the honourable Geier
J and Adv. Barnard and I were present in Court A before the hearing. 
No allegation is made of any discussion.  That was also the
issue at the appearance before court on 22 October 2015.  There
was thus no opportunity to deny or explain the alleged ex parte
discussions.  In any event, the respondent’s position in
respect of the averments by the applicant is evident from the status
report it had to file with court as per the Court Order of 22 July
2015.’


[38]     
It is further telling in this regard that the applicant’s case
takes a different direction once confronted with this version of the
events and after it was exposed that the aspect of the alleged
discussions was an untruthful afterthought, which, if such
discussions did occur, one would have expected the applicant and Mr
Jossop to provide full and precise details of and one would, in any
event, have expected an aggrieved party to raise this aspect
immediately, which was not done. 


[39]     
It emerges from the heads of argument filed by applicant that he then
attempted to confine this point on recusal to the Judge’s mere
presence in the courtroom before the hearing.  This is a telling
shift.  It would be a sad day if a Judge should have to recuse
him or herself just because he or she has entered a courtroom in
order to check a recording mechanism or for any other neutral reason
and if the parties would then, by chance, enter the court room and
the Judge, counsel or the parties, would not be able to acknowledge
each other’s presence by exchanging mere greetings, only a
common courtesy after all.  Surely this cannot be, but this is
then also the factual matrix against which this ground of recusal is
to be determined. 


[40]     
The test for recusal that has been adopted in this jurisdiction by
the Supreme Court is whether a reasonable objective, informed person
would, on the correct facts, reasonably apprehend that the Judge was
not and will not bring an impartial mind on the adjudication of the
case.[13]


[41]     
It is precisely on the application of this test that this ground must
fail.  No reasonable objective and informed person would, on the
underlying facts, i.e where a Judge simply for unrelated reasons
happens to be in a courtroom and is merely greeted by the parties,
reasonably apprehend that the court has not or will not bring an
impartial mind to bear on the case. To find otherwise would be absurd
as then, any form of greeting, or acknowledgement of each other’s
presence, for instance also, if the Judge would by chance meet
counsel in the street, or in the corridors of the court and
acknowledge such counsel’ presence through a greeting, in the
absence of the other party, would be able to found a recusal
application. 


[42]     
Nothing further needs to be said on this. The conclusion must be that
Mr Christian’s advanced apprehension is not that of a
reasonable person and that this advanced ground is contrived and is
simply not a reasonable one. 


THE
RELIED UPON CUMULATIVE GROUND


[43]     
Finally - and in so far as the applicant also relies on the
cumulative effect of all the grounds raised - it should firstly be
said again that the applicant’s remedy lies rather in an appeal
should he be dissatisfied with the outcome of those rulings which
have gone against him.  It is also clear that the seeking of the
recusal of a Judge because he makes an adverse order against a party
cannot simply be a basis for seeking a recusal.[14] 


 


[44]     
It may, incidentally, be apposite to mention here that the applicant,
in the course of this litigation, has also obtained certain rulings
in his favour and thus a measure of success.[15] 


[45]     
Be that as it may, each of the above mentioned grounds for recusal,
as raised by the applicant, have been dealt with.  All have been
found to be without substance.  It follows as a matter of logic
that all these meritless grounds cannot now add up to a meritorious
ground simply through their collective effect. Out of nothing comes
nothing! 


THE
NEW MATTERS RAISED IN REPLY


[46]     
This leaves the new matters raised by Mr Christiaan in the replying
affidavit which under normal circumstances would not have been
considered.[16] 


[47]     
Here the applicant takes the repeated stance that the respondent had
allegedly stated that it would not oppose the recusal application.
Again this statement is false and misleading.  This indication
was only given in respect of the second recusal application which did
not quite get off the ground on the 22nd of October 2015. 
At no stage did the respondent communicate that it would not oppose a
new and further, (that is the current), recusal application, in
respect of which it then also duly gave ‘Notice to Oppose’
on 24 November 2015. 


[48]     
The court also never put up ‘an impassioned plea’ for the
respondent’s participation in the current recusal application. 
It simply regulated the procedure to be followed by the parties as
per its case management order of 17 November 2015 which expressly,
and I emphasise, expressly, afforded the parties the choice of
opposition and if necessary to exchange papers, if they elected to do
so.  There is no plea in this and nothing prescriptive in this
regard and nothing further needs to be said in regard to this
unfounded allegation. 


THE
RESPONDENT’S ENTITLEMENT TO OPPOSE THE RECUSAL APPLICATION


[49]     
The applicant then states that there is no factual or legal
foundation for the respondent to put up a defence to his objections
made against the court which he perceived as being personal in
nature.  He goes on to state that he finds it strange that Mr
Philander involved himself in litigation which is personal in nature
and in fact between the Judge and the applicant.  He stated in
this regard:


13.1   
I find it strange that Mr Philander involved himself in ‘litigation’
which is personal in nature and in fact between the Honourable Mr
Justice Geier and the applicant by requesting for the dismissal of
the recusal application, and asked to be awarded costs.


 


13.2    
It appears that Mr Philander has very little understanding of the
purpose of awarding of costs, which is to award costs to a successful
litigant to indemnify his or her expenses to which he or she been put
through having been unjustly compelled to initiate or defend
litigation, as the case may.


 


13.3    
Despite the respondent’s decision not to oppose the recusal
application, Mr Philander on the ‘recommendation’ of the
Honourable Mr Justice Geier put up defend on behalf of the Honourable
Mr Justice Geier.


 


13.4    
The Honourable Court is humbly requested to order that Mr Philander
to pay costs de bonis propriis in that he acted in an
irresponsible and reckless manner by misleading the Court and
deceiving his ‘own client’ the respondent.’


[50]     
A number of fundamental misconceptions appear from the applicant’s
stance which require immediate correction:


a)
I have already exposed that there was never a decision by the
respondent not to oppose this third recusal application;


b)
The application was not personal in nature and it was not confined to
the court and the applicant. 


c)
The case did indeed become personal in nature in a different respect,
namely once the applicant had alleged that the court and the
respondent’s legal practitioners, Adv Barnard and Mr Philander
had discussions with the Judge. This was tantamount to alleging
unethical and untoward conduct on the part of Adv. Barnard and Mr
Philander.  This attack on their personal integrity, as legal
practitioners, on its own, entitled them to a response. The recusal
issue revolving around the events of 22 July 2015 were thus not
simply between the court and the applicant. 


d)
When Mr Philander then filed an answering affidavit, on the merits,
on behalf of the respondent, he did so also to defend his- and Mr
Barnard’s professional and personal integrity which,
co-incidentally, also vindicated the actions of the court. 


e)
It
should be mentioned that, as officers of the court, they also –
and in any event - had a duty to respond to the recusal application –
and - in particular - they had the duty to put the record straight,
enabling the court to make independent findings on the facts. There
was thus nothing irresponsible or reckless in this conduct, which was
obviously duty- bound.  I also refer in this regard to what was
said in
Beukes
vs The President

at paragraph [68] to [70].[17] 


 


[51]     
The allegations that Mr Philander has misled the court is also
without foundation and is clearly vexatious.  The contrary is
true.


COSTS


[52]     
It has emerged that the applicant has misrepresented the true facts
by alleging that the court was engaged in discussions with Mr Barnard
and Mr Philander, which clearly did not occur.  It is this
conduct that requires censure on its own. 


[53]     
Not only was the entire application misconceived, it also fits into
the pattern of recusal applications, as exposed by respondent’s
counsel, whereby the applicant, seemingly, on a regular basis, and as
part of his repertoire of remedies in litigation, tries to avoid the
hearing of matters on the merits. 


[54]     
Mr Barnard has submitted that the applicant has no respect for the
law and the courts in Namibia.  This seems indeed to be the case
and this was borne out especially and ultimately also by the
applicant’s disrespectful oral argument during which he
brazenly submitted that the presiding Judge was incompetent and not
mentally fit and able to follow and comprehend, intellectually, Mr
Christian’s legal arguments centering around the voidness of
judgments and those pertaining to the doctrine of ex debito
justitiae


[55]     
While I accept that a judicial officer should not be unduly sensitive
when faced with a recusal application[18],
I believe that the applicant has overstepped the mark and that his
conduct cannot thus simply be ignored.


[56]     
As an expression of the court’s censure of the applicant’s
unacceptable conduct, I will exercise my discretion in upholding the
submissions made on behalf of the respondent for a special costs
order.


[57]     
In the result, I make the following orders:


1.
The application for recusal is dismissed with costs.


2.
The applicant is to pay the respondent’s wasted costs
pertaining to the recusal application, on an attorney and own client
scale, such costs to include the costs of one instructed- and one
instructing counsel.


3.
The main application is set down for hearing on 12 May 2016 at
10h00.


4.
All points in limine, as well as the issue of wasted costs
relating to the postponement of the matter on 22 July 2015 are to be
heard on that date.


H
GEIER


Judge


APPEARANCES


FOR
THE APPLICANT: IN PERSON


FOR
THE RESPONDENT: PCI Barnard


Instructed
by LorentzAngula Inc.,


Windhoek



[1]
Namibia
Financial Institutions Supervisory Authority v Christian

2011 (2) NR 537 (HC)




[2]
Namibia
Financial Institutions Supervisory Authority v Christian

at [8] & [9] and [43] & [55]




[3]
Christian
t/a Hope Financial Services v Chairman of Namibia Financial
Institutions Supervisory Authority and Others

2009 (1) NR 22 (HC) at [22]




[4]
Christian
v Metropolitan Life Namibia Retirement Annuity Fund and Others

2008 (2) NR 753 (SC) at [32]; [33]




[5]
See Founding affidavit




[6]
Namibia
Development Corporation v Aussenkehr Farms (Pty) Ltd
 
2010 (2) NR 703 (HC) at [26] and [27]




[7]
Rally
for Democracy and Progress and Others v Electoral Commission for
Namibia and Others

2013 (3) NR 664 (SC) at [67]




[8]
Namibia
Financial Institutions Supervisory Authority v Christian

2011 (2) NR537 (HC) at [39]




[9]
Ndeitunga
v Kavaongelwa

unreported judgment in the High Court under case number I 3967/2009
delivered by the honourable Damaseb JP on 21 November 2013 at par 14
and authorities at footnote 9.
Ndeitunga
v Kavaongelwa
(I
3967/2009) [2013] NAHCMD 350 (21 November 2013) reported on the
SAFLII website at
http://www.saflii.org/na/cases/NAHCMD/2013/350.html




[10]
Beukes
v The President of the Republic of Namibia
(A
427/2013) [2015] NAHCMD 62 (17 March 2015) at [29] reported on the
SAFLII website at http://www.saflii.org/na/cases/NAHCMD/2015/62.html
;
Rally
for Democracy and Progress and Others v Electoral Commission for
Namibia and Others

2013 (3) NR 664 (SC) at [99] –      
[102] and
Republican
Party of Namibia and Others v Electoral Commission for Namibia and
Others

2010 (1) NR 73 (HC) at p. [108]




[11]
See the judgment delivered on 25 January 2014 at pages 45 to 47,




[12]
The following was stated in the judgment and I quote : ‘He
then took issue with Mr Paulino’s appointment in disregard of
Section 5(2) of the NAMFISA Act and Mr Paulino’s power to
instruct legal practitioners and that apart from his mere say so he
had not provided proof of his authority and that both Mr Paulino and
Mr Philander were not authorised to depose to any Affidavits and
that the Respondent had failed in discharging its onus in this
regard.  He also raised a second point
in
limine

on his interpretation of Section 5 (2) of the NAMFISA Act in terms
of which any acting CEO of NAMFISA could only be appointed in
consultation with the minister and that Mr Shiimi the CEO of
Respondent also had no power to appoint an acting CEO and that thus
Mr Paulino’s appointment was invalid.’




[13]
See in this regard
Christian
v Metropolitan Life Namibia Retirement Annuity Fund and Others
2008
(2) NR 753 (SC),
S
v Munuma and Others
2013
(4) NR 1156 (SC)
,
Januarie
v Registrar of the High Court & Others

Case (I 396/2009) [2013] NAHCMD 170 (19 June 2013) reported on the
SAFLII website at :
http://www.saflii.org/na/cases/NAHCMD/2013/170.html
as set out again in
Beukes
v The President of the Republic of Namibia
(A
427/2013) [2015] NAHCMD 62 (17 March 2015) at [29] reported on the
SAFLII website at http://www.saflii.org/na/cases/NAHCMD/2015/62.html
at [125] to [128]




[14]
See in this regard

Ndeitunga
v Kavaongelwa
(I
3967/2009) [2013] NAHCMD 350 (21 November 2013) reported on the
SAFLII website at
http://www.saflii.org/na/cases/NAHCMD/2013/350.html
at
[141] 




[15]
See the interlocutory judgments in this case Judgments of 18
September 2013 and that of 28 January 2014.




[16]
See for instance
Erasmus
Superior Court Practice

– Vol 2 at p D1-66 (Original Service 2015) and the authorities
cited there




[17]
‘[68]  The first submission made here is to the effect
that I apparently allowed the ‘
Government
Attorney which had not delivered answering affidavits and who were
not legally before the court to partake in the hearing …’
.


[69]
The first problem with this submission is that the Government
Attorney is only, like any other legal practitioner, the legal
representative of a party. So the Government Attorney would merely
act on behalf of a party as agent or as mandatary.[17] In this
instance the Government Attorney represents the first to sixth
respondents, who had filed a notice to oppose on behalf of the
government respondents, indicating thereby that their clients wished
to oppose the case. It was the applicants that had elected to sue
the respondents they then went on to cite in this matter: case A
427/13. Surely a party who has been dragged to court is entitled to
be heard, either in person or through the medium of a legal
representative, at any stage of the proceedings, unless there would
be some impediment to being heard. There was no such impediment in
this case.


[70]
In any event such a party would continue to retain a recognisable
interest in the outcome of a matter in which it has become a party
on account of having been sued.’




[18]
See in this regard also
Beukes
v The President of the Republic of Namibia

and the cases referred to in paragraph [127] of that judgment and
particularly
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service

1996 (3) SA 1 (A) page 13 H –I ,