Court name
High Court
Case number
74 of 2002
Title

Sebatane and Another v Mutumba and Others (74 of 2002) [2012] NAHC 253 (04 October 2012);

Media neutral citation
[2012] NAHC 253
Coram
Shivute J













REPUBLIC OF NAMIBIA







HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: (P)A 74/2002











In the matter between:



BRIGITTE SEBATANE



PRISCILLA MATJILA


and



BONIFACE MUTUMBA


THE
COUNCIL OF THE



MUNICIPALITY OF
GOBABIS



THE GOVERNMENT OF
THE REPUBLIC OF NAMIBIA


THE
MINISTER OF LOCAL GOVERNMENT AND HOUSING









FIRST APPLICANT



SECOND APPLICANT








FIRST RESPONDENT



SECOND RESPONDENT








THIRD RESPONDENT


FOURTH
RESPONDENT




Neutral citation:
Brigette v Mutumba ( A 4562009) [2012] NAHCMD 11 (04
October 2012)



Coram: SHIVUTE J



Heard on: 18 March
2003



Delivered on: 04
October 2012







Flynote: Prescription
– Constitutionality of – Section s 2(1)(a) of the
Limitation of Legal Proceedings (Provincial and Local Authorities)
Act, 1970 (Act 94 of 1970) – Act not unconstitutional.







Summary: Application
to declare section 2(1)(a) of the Limitation of Legal Proceedings
(Provincial and Local Authorities) Act, 1970 (Act 94 of 1970) –
Act setting down a period within which legal proceedings may be
instituted against an administration, local authority or officer –
Statutory requirement includes a notice to first be given within
90 days from the day the debt arose – Same Act gives the
creditor an opportunity to seek condonation in cases where such
statutory requirement has not been met.



Arguments – It is
the applicants’ case that impugned section is unconstitutional
and of no force and effect on the basis that it violates their rights
to approach any court of competent jurisdiction in determining their
civil rights as entrenched in Article 12(1)(a) of the Namibian
Constitution – That the period of 90 days is of a very limited
nature and unreasonable – It is the third and fourth
respondents’ case that it is not necessary for the applicants
to seek a declaratory order on the constitutionality of the impugned
section since there were other non-constitutional remedies available
to the applicants as they could bring an application for condonation
in terms of s 4 of the Act.



Constitutional test –
validity of section to be tested against the Namibian constitution-
applicants rights to have access to a competent court of law forms
part of chapter 3 of the Namibian constitution - applicant will have
the burden to allege and prove that a specific fundamental right or
freedom has been infringed – The Act is confirmed to be a
Limitation Act – however such limitation are legitimate and
reasonable, are in the public interest and serve a legitimate
purpose.– right to have access to courts not absolute - The
limitations contained in the impugned section are not aimed at
infringing a person’s right to approach a court but merely set
out formalities and requirements within which rights and obligations
should be ascertained.



Exhaustion of internal
remedies – The applicants have ignored that fact that the Act
provides internal remedies for non-compliance – Section 4 the
Act also provides for other avenues for the exercise of one’s
right to have access to courts.











_­­­­­­­­­­­­­­­­­­­­­­­_____________________________________________________________________



ORDER








  1. The application is
    dismissed.



  2. No order as to costs is
    made.












JUDGMENT



______________________________________________________________________



SHIVUTE J: [1] The
Court heard oral submissions for the relief in the following terms:







'1. That the
provisions of section 2(1)(a) of the Limitation of Legal
Proceedings (Provincial and Local Authorities) Act, 1970 (Act 94 of
1970) be declared unconstitutional and of no force and effect.







2. Ordering the first and second
respondent to pay the costs of the Applicants’ application
jointly and severally the one paying the other to be absolved, and in
the event of the third and fourth respondents opposing this
application, ordering the first, second, third and fourth respondents
to pay the costs of this application, the one paying the other to be
absolved.’







[2] The applicants
instituted action against the first and second respondents in the
Magistrates Court of Gobabis on 26 July 2001 under case no 170/ 2001.
The cause of action is the alleged defamatory statements allegedly
made by the first respondent to members of the council of the second
respondent and to a newspaper through a journalist. The plaintiffs
averred that their reputation had been damaged because of the
publication of the alleged statements and that they had suffered
damages in the sum of N$ 25 000 each. First and second respondents
raised a special plea, stating that the plaintiffs did not comply
with the provisions of s 2(1)(a) of the Limitation of Legal
Proceedings (Provincial and Local Authorities) Act, 1970 (Act 94 of
1970) (hereinafter referred to as ‘the Act’). In this
application, the applicants have challenged the constitutionality of
s 2(1)(a) of the Act (hereafter to be referred to as ‘the
impugned section’) on the ground that it violates their rights
to have access to courts as guaranteed under Article 12(1)(a)
of the Namibian Constitution.







[3] First and second
respondents withdrew their opposition to the application. Third and
fourth respondents who were cited by virtue of the interest that they
may have in the matter opposed the relief sought by the applicants
and in addition raised the following questions of law in terms of
rule 6(5)(d)(iii) of the rules of Court at the hearing:








  1. Whether a decision on
    the constitutionality of s 2(1)(a) of the Limitation of legal
    Proceedings (Provincial and Local Authorities) Act, 94 of 1970 (the
    Act) is absolutely necessary given the fact that applicants can
    apply to the Magistrate’s Court for condonation for
    non-compliance with s 2(1)(a) of the Act.









  1. Whether s 2(1)(a),
    when considered as part and parcel of a composite scheme of the Act
    infringes applicant’s right to have access to a court of law.








Issues for
determination



[4] The issues for
determination in this application are whether or not the restrictions
imposed by the impugned section infringe the applicants’ rights
to have access to court and if so, whether such limitation is
justified under the Namibian constitution.







Relevant provisions of
the Act



[5] Section 2(1) of the
Act reads as follows:



'2. Limitations of time in
connection with, and other requirements for, the institution of legal
proceedings against an administration, local authority or officer.




  1. Subject to the provisions of this
    Act, no legal proceedings in respect of any debt shall be instituted
    against an administration, local authority or officer (hereinafter
    referred to as the debtor) -








(a) unless the creditor has within
ninety days as from the day on which the debt became due, served a
written notice of such proceedings, in which are set out the facts
from which the debt arose and such particulars of such debt as are
within the knowledge of the creditor, on the debtor by delivering it
to him or by sending it to him by registered post;







(b) before the expiration of a period
of ninety days as from the day on which the notice contemplated in
paragraph (a) was served on the debtor, unless the debtor has in
writing denied liability for the debt before the expiration of such
period;







(c) after the lapse of a period of
twenty-four months as from the day on which the debt became due.'







Section 4 of the Act provides:







'4 Leave to serve notice after the
lapse of the prescribed period



If a creditor has failed to comply
with the provisions of paragraph (a) of subsection (1) of section 2
in relation to legal proceedings which he desires to institute and
the debtor has not, within fourteen days after having been requested
by the creditor to do so, in writing waived his right to invoke those
provisions, the court having jurisdiction in respect of such legal
proceedings may, notwithstanding those provisions but subject to the
provisions of paragraphs (b) and (c) of that subsection, grant to the
creditor on his application and on such conditions as the court may
deem fit, leave to serve the notice contemplated in the said
paragraph (a) on the debtor after the lapse of the period prescribed
in that paragraph, if the court is satisfied –








  1. that the debtor is not prejudiced by
    the failure; or









  1. that by reason of special
    circumstances the creditor could not reasonably have been expected
    to serve the notice within that period.'




Case for the
applicants



[6] The founding
affidavit in the application is deposed to by the first applicant
while the second applicant deposed to a confirmatory affidavit. It is
the applicants’ case that impugned section is unconstitutional
and of no force and effect on the basis that it violates their rights
to approach any court of competent jurisdiction in determining their
civil rights as entrenched in Article 12(1)(a) of the Namibian
Constitution. The applicants further state that the impugned section
limits their right to have access to courts in contravention of
Article 24(3) which states, amongst other things, that nothing
contained in that Article shall permit the denial of access by any
person to a court of law even during the period when Namibia is in a
state of national defence or when a declaration of state of emergency
is in force. The applicants contend that the impugned section is
drastic in that the period of 90 days is of a very limited nature and
unreasonable and is a real impediment to the applicants’ rights
to have access to a court of law.







[7] The applicants
further assert that the object of the Act was not to regulate
judicial proceedings, but to protect the interests of persons and
institutions in the position of the first and second respondents. The
applicants acknowledge the fact that condonation could be sought for
the non-compliance with the notice as required by s 2, but it is
their contention that none of the applicants had knowledge of the
existence of the section and that such averment should be regarded as
a special circumstance. Applicants argue furthermore that the
respondents did not plead any prejudice suffered as a result of the
applicants’ non-compliance with the impugned section. Despite
the condonation provision, it is applicants’ case that the
restrictions the impugned section imposes on the exercise of the
applicants’ rights are not reasonable and for that reason the
provisions of the section are not necessary in a democratic society
or in the interest of sovereignty and integrity of Namibia.







The case for third and
fourth respondents



[8] It is the third and
fourth respondents’ case that it is not necessary for the
applicants to seek a declaratory order on the constitutionality of
the impugned section since there were other non-constitutional
remedies available to the applicants. In this regard, the respondents
concerned argue that the applicants were not precluded from
instituting legal proceedings in future as they could bring an
application for condonation in terms of s 4 of the Act. Third and
fourth respondents further argue that the applicants would have
complied with the requirements of s 4 if they were to satisfy the
court in which the summons were issued that no prejudice had been
caused to the debtor as a result of the non-compliance with the
section and further that due to their lack of knowledge of the
provision, as alleged, it was not reasonably expected of them to
serve such notice. It is therefore third and fourth respondents’
contention that the internal remedies provided for by s 4 of the Act
had not been resorted to. Third and fourth respondents further point
out that it is not necessary in this case to declare the said section
unconstitutional, relying for this contention on the principles laid
out in
Kauesa
v Minister of Home Affairs and Others
1995
NR 175 (NmSc) at 184A-B where it was held that constitutional issues
should be decided only if it is absolutely necessary to do so.
Counsel for the respondents argued that the choice not to follow the
non-constitutional remedy available to the applicants would not
justify deciding the constitutionality of the impugned section.







[9] The applicants have
made the following factual averments that have not been disputed,
namely that the High Court has jurisdiction to hear matters on the
constitutionality of legislation; the application is properly before
Court;
1
the applicants have the
right to approach the Magistrate’s court in respect of their
cause of action; Article 12 of the Constitution gives the applicants
the right to seek assistance in a court of law in Namibia; the
applicants had directed a letter to first and second respondents’
legal practitioners requesting them to waive compliance with the
impugned section and to withdraw their special plea and that the
constitutional challenge was brought after the refusal by the first
and second respondents to withdraw their special plea.







Analysis of the Law



[10] Counsel for the
applicants submits that s 2(1)(
a)
is unconstitutional and that an order similar to the order made by
the South African Constitutional Court in
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening (Women’s Legal
Centre as amicus curiae)
2001
(4) SA 491 (CC)
should
be made. The Constitutional Court in that case confirmed the order of
the Witwatersrand High Court declaring the provisions of the impugned
section unconstitutional by employing a two-stage enquiry: firstly
whether or not the impugned section limited the right of access to a
court and secondly, whether such limitation was justified under the
South African Constitution. Samyalo AJ at 494A-B examined the Act as
a whole and pointed out that in order to determine whether one’s
right to have access to a court had been limited depended primarily
on the meaning and effect of the section read in the context of the
whole Act.







[11] Paraphrased, the
impugned section states that ‘the creditor’ (being the
applicant) may not institute legal proceedings against ‘the
debtor’ (being the first and/or second respondent) unless a
notice has been served on the creditor by delivering it or by sending
it by registered post. Such notice shall notify the creditor of the
nature of the debt and the facts from which the debt arises. In terms
of s 2(2)(c) of the Act, a debt becomes due on the first day on which
the creditor has knowledge of the identity of the debtor and the
facts from which the debt arose. The debtor may only then institute
proceedings within 90 days from the day on which the debt became due,
i.e. the day that the creditor became aware of the debt via notice.
Sec 4 thereafter comes into play to afford the creditor the avenue to
apply for condonation for any non-compliance with a part of s 2. A
competent court in respect of the legal proceedings will grant such
condonation if it is satisfied that the debtor is not prejudiced by
the failure or that by reason of special circumstances the creditor
could not reasonably have been expected to serve the notice within
that period.







The test for
constitutionality



[12] The Namibian
Constituting is the supreme law of the land against which all laws
are measured for validity. The Namibian constitution further contains
a Bill of Rights which sets out the rights and freedoms that are
inalienable and cannot be derogated from save where so permitted by
the Constitution itself. Article 25 of the Constitution states that:







'(1) Save in so far as it may be
authorised to do so by this Constitution, Parliament or any
subordinate legislative authority shall not make any law, and the
Executive and the agencies of Government shall not take any action
which abolishes or abridges the fundamental rights and freedoms
conferred by this Chapter, and any law or action in contravention
thereof shall to the extent of the contravention be invalid…’







[13] The limitation of
any rights and freedoms as contained in Chapter 3 of the Constitution
should comply with Article 22 which states:







Whenever or
wherever in terms of this Constitution the limitation of any
fundamental rights or freedoms contemplated by this Chapter is
authorised any law providing for such limitation shall:








  1. be of general application, shall not
    negate the essential content thereof, and shall not be aimed at a
    particular individual;









  1. specify the ascertainable extent of
    such limitation and identify the Article or Articles hereof on which
    authority to enact such limitation is claimed to rest.’









It is evident from the
above provisions of the Constitution, firstly that the rights and
freedoms, set out in Chapter 3, cannot be abolished or abridged and
can only be amended in so far as such amendment does not diminish or
detract anything from the rights and freedoms so set out in that
Chapter. Secondly, the limitation of the rights is only permissible
where this is authorised by the Constitution itself and then only to
the extent set out in Article 22. Thirdly, any law or action that
purports to abolish or abridge any of the rights or freedoms in
contravention of the Constitution shall to that extent be invalid.







The burden of proof
when a person alleges an infringement of a fundamental right or
freedom.







[14] As opposed to the
general qualification clause contained in the South African
constitution, the Namibian constitution makes a distinction between
the fundamental rights contained in Articles 6 - 20 and the
fundamental freedoms enumerated in Article 21(1). The Supreme Court
pointed out in Immigration Selection Board v Frank 2001 NR 107
at 32D that in both cases, whether one is dealing with a fundamental
right or freedom, the applicant will have the burden to allege and
prove that a specific fundamental right or freedom has been
infringed. This will necessitate that the applicant must also satisfy
the court in regard to the meaning, content and ambit of the
particular right or freedom. The Supreme Court went on to state at
132E-F that with regard to fundamental rights, specifically, the
burden of proof remains throughout on the applicant to prove that a
fundamental right had been infringed at least as regards those rights
where no expressed qualification or exception is provided for in the
wording of the fundamental rights such as in Articles 6 - 12, 14 and
18. Where an expressed qualification or exception is provided for
such as in Articles 13, 17(1), 20(3) and 20(4), the burden of proof
may shift as in the case of the fundamental freedoms.







[15] Article 12(1)(a)
of the Constitution reads:







Fair Trial



(1)(a) In the determination of their
civil rights and obligations or any criminal charges against them,
all persons shall be entitled to a fair and public hearing by an
independent, impartial and competent Court or Tribunal established by
law: provided that such Court or Tribunal may exclude the press
and/or the public from all or any part of the trial for reasons of
morals, the public order or national security, as is necessary in a
democratic society.'







[16] The meaning, content
and ambit of the right to have access to a court would involve an
interpretation of the constitution which should be broad, liberal and
purposive so as to avoid the ‘austerity of tabulated legalism’
and so as to enable the Namibian constitution to continue to play a
creative and dynamic role in the expression and the achievement of
the ideals and aspirations of the nation, in the articulation of the
values bonding its people and in disciplining its government.
2
In the area of
constitutional interpretation, courts have adopted the exercise of
giving value judgments based on the commonly shared values of the
Namibian people and to declare any Act of Parliament which does not
respect such values unconstitutional.







[17] Counsel for the
applicants argued that the Court will be required to make a value
judgment in determining the constitutionality of the impugned section
read with s 4. It is furthermore submitted that the exceptions under
Article 21(2) should also apply in this matter as they form part of
the Constitution when read as a whole. As regards the right to have
access to courts, counsel contended that such right is not expressly
mentioned in Article 12(1)(
a)
of the Constitution on which the applicants rely but submits that
from a liberal and broad interpretation, the right to have your civil
rights and obligations determined by a competent court includes the
right to have access to courts.







[18] The right to have
access to a court of law is one of the entrenched rights under the
Bill of Rights as could be seen from the following Articles:







Article 18 -
Administrative Justice



Administrative bodies and
administrative officials shall act fairly and reasonably and comply
with the requirements imposed upon such bodies and officials by
common law and any relevant legislation, and persons aggrieved by the
exercise of such acts and decisions shall have the right to seek
redress before a competent Court or Tribunal.







Article 25 – Enforcement of
Fundamental Rights and Freedoms



(1) …



(2) Aggrieved persons who claim that a
fundamental right or freedom guaranteed by this Constitution has been
infringed or threatened shall be entitled to approach a competent
Court to enforce or protect such a right or freedom
…’
(Emphasis added)







Did the applicants
make out a case that their rights have been infringed?



[19] As previously
mentioned, in discharging the burden of proof as required, applicants
must satisfy the court as to the meaning, content and ambit of the
particular right or freedom allegedly infringed. Counsel for the
applicants argues that Article 12(1)(a) should be interpreted
in the same way Article 10 has been interpreted by our courts and
should be subjected to Article 22 which sets criteria for limitations
upon fundamental rights and freedoms. Counsel summed up his oral
submissions by stating at p 16 of the record of proceedings as
follows:







However, if
the Act or the section is not really a limitation statute but a mere
section which protects a specific person like in this case a local
authority and the period of the notice is totally unreasonable given
the value judgment to be exercised, then even if there is the
provision in section 4 of the Act under consideration, that will be
unconstitutional…’







[20] If I understand
counsel correctly, the contention is that the section should be
declared unconstitutional primarily because it singles out particular
kinds of proceedings against specific kinds of respondents and
attaches extraneous pre-conditions to the institution of those
proceedings as found in the Moise v Greater Germiston Transitional
Local Council
case. In reaction to this submission, counsel for
the third and fourth respondents argues that the impugned section
serves a legitimate government purpose of ensuring that an
institution falling in the category of persons or bodies mentioned in
the impugned section is not unnecessarily dragged to court. On
whether or not the impugned section infringes the applicants’
rights to have access to courts, counsel for the respondents submits
that Article 12(1)(a) was not absolute in that the right to
have access to a court or to have a public hearing may be limited,
for example, by excluding the media or press for various reasons or
as is necessary in a democratic society. In reply, counsel for the
applicants argued, correctly, that the limitation mentioned in that
sub-article related to the press or the public and not the right to
have access to courts.







[21] It is further
submitted on behalf of the third and fourth respondents that the
applicants have ignored the internal remedies that are provided by
the Act to avoid the limitations imposed by the impugned section. It
was argued that s 4 does not have requirements apart from the
guidelines set by the Legislature which a court with the requisite
jurisdiction should follow. Accordingly, s 4 does not have
limitations as to when condonation may be brought. It is further
contended on behalf of the applicants in reaction to the argument of
exhausting internal remedies that by the time the third and fourth
respondents had raised the issue of s 4, it was already two years
after the cause of action had arisen and that that had made it
impossible for the applicants to seek condonation.







[22] Legislation that
prevents judicial resolution of a dispute or which constitutes an
impediment to a person’s right to have a dispute resolved by a
court of law is commonly challenged in terms of the access to courts
clause or the equality clause (Article 10). The equality clause may
be invoked when such limitation only applies to a specified group of
people e.g. only those in the employment of government. Article 10
is, however, not engaged in these proceedings.







[23] A limitation of 90
days within which to institute legal proceedings is in itself a
limitation and there is no doubt that the Act in question is a
statute of limitation. The only issue left to determine is whether
this limitation is justifiable in terms of the constitution and to
further determine whether the limitation has an objective purpose,
connected to a legitimate purpose. I respectfully agree with the
observation of Somyalo AJ at 496D-E in the Moise case where he
noted, amongst other things, that the requirement of a written notice
as a precondition to the institution of legal proceedings was an
obstacle and that the 90 day period was a real impediment to the
prospective claimant’s access to a court. At 495A, Somyalo AJ
observed that the object of ‘statutory provisions that single
out particular kinds of proceedings against specific kinds of
defendants and attach special extraneous preconditions to their
institution’ is not to regulate judicial proceedings but to
protect the interests of the defendants in proceedings involving the
organs of state and that the active protection of the right of this
category of prospective litigants to approach a court for
adjudication of their claims without the limitation contained in the
impugned section outweighed the governmental interests concerned. In
my respectful view the position in this jurisdiction should be
different.







[24] This Court in
Mwellie v Minister of Works, Transport and Communication &
Another
1995 (9) BCLR 1118 (NmHC) laid down the principle that
for it to be justified, a limitation, ‘should permit reasonable
classifications which are rationally connected to a legitimate
object’. Applying this test to the question before it, the
court found that it was reasonable for a law to provide a shorter
prescription period for claims against the state as an employer than
for other civil claims. The judgment made reference to several
factors such as the state being by far the largest employer in
Namibia with the largest number of separate divisions as well as the
widest geographic spread; the government having an unusually high
turnover of staff; and the need for the state to be in a position to
timeously investigate disputes. It was further stated at 1140D-F that
Article 12(1)(a) may be invoked where the period of
prescription was unreasonable to such an extent as to bar the right
of a party in a practical sense and thereby offends the right of
access to the courts.







[25] In determining the
purpose of any limitation clause, such as the present, courts have
followed the same reasoning as stated in the case of Abrahamse v
East London Municipality and Another; East London Municipality v
Abrahamse
1997 (4) SA 613 (SCA) at 624D-E where Marais JA said:







The purpose
of legislation like this is plain and has been set forth in so many
cases that their citation yet again seems unnecessary. In this
instance it is to protect a local authority against precipitate
citation of it in a lawsuit by a litigant seeking to obtain payment
of a debt allegedly due by the local authority. It is aimed at
providing a local authority with an opportunity of investigating the
matter sooner rather than later when investigations might prove more
difficult, of considering its position, and, if so advised, of paying
or compromising the debt before becoming embroiled in costly
litigation
.’







[26] Furthermore, the
third and fourth respondents relied on a dictum in Stambolie v
Commissioner of Police
1990 (2) SA 369 which was cited with
approval in Mwellie where it was stated that:







It has been
said that statutes of limitation are conservators without which
society cannot wholly govern. They are founded on grounds of public
policy and give effect to two maxims:








  1. First, interest reipublicae ut sit
    finis litium
    - the interest of the state requires that there
    should be a limit to litigation









  1. Second: vigilantibus non
    dormientibus jura subveniunt
    - the laws aid the vigilant and not
    those who slumber.’








[27] It is therefore the
position that restrictions such as those in the impugned section have
over the years been held to be connected to a legitimate purpose,
i.e. to provide defendants in claims against governmental bodies time
to investigate a claim as early as possible and to decide whether to
defend or compromise the claim. It is my considered opinion that
limitations such as those contained in the impugned sections are
legitimate and reasonable. The right to have access to courts is, of
course, not absolute as conceded by both counsel. The limitations
contained in the impugned section are not aimed at infringing a
person’s right to approach a court but merely set out
formalities and requirements within which rights and obligations
should be ascertained. This is necessary for the orderly operation of
institutions falling in the categories specified in the impugned
section. Bearing in mind the ethos and values expressed in our
Constitution, I am satisfied that the legislative constraints placed
on the applicants’ rights to bring legal proceedings are
reasonable, are in the public interest and serve a legitimate
purpose. Applicants have therefore failed to discharge the burden of
proving that the limitations in s 2(1)(a) infringe their
rights to have access to courts. In the light of this conclusion, it
has become unnecessary to deal with the argument based on Article 22
of the Constitution.







[28] In any event and as
previously observed, counsel for the third and fourth respondents
argued that the applicants did not exhaust all the internal remedies
provided for under s 4. Their right to have access to a court should
be limited in such a way that the Act does not provide any other
avenue to exercise such right. In the criminal matter of S v
Tcoeib
1996 (1) SACR 390 (NmSC), the Supreme Court remarked that
a sentence of life imprisonment was not unconstitutional and against
Article 8, because the Prison Act allows release on parole under
appropriate circumstances. By parity of reasoning, in the present
proceedings, the Act also provides for other avenues for the exercise
of one’s right to have access to courts. The applicants had the
opportunity to seek condonation under s 4 which they elected to
ignore.







[29] It is common cause
that a letter was served on the first and second respondents on 15
July 2002 to request them to abandon the special plea and to afford
the applicants an opportunity to seek condonation. As states above,
it was submitted on behalf of the applicants that by the time the
third and fourth respondents had raised the issue of s 4, it was
already two years after the cause of action had arisen and that that
made it impossible for the applicants to seek condonation. However,
no factual averments were made by the applicants in support of this
submission and to show that it would not have been reasonably
expected of them to file the notice within the stipulated time. It
was not indicated at what stage they became aware of the provisions
nor was it alleged that all steps to invoke s 4 were fruitless. As
submitted on behalf of the third and fourth respondents, s 4 does not
have a limitation as to when the condonation application may be
brought. The applicants could have applied for condonation in the
Magistrate’s Court even after the first and second respondents
had refused to withdraw their special plea. Instead of taking that
route, they chose to pursue the constitutional challenge. It is, of
course, a choice they were entitled to make.







[30] It is therefore my
considered opinion that the applicants sought the declaratory relief
prematurely in that all internal procedures were not exhausted. By
following the procedures as contained in s 4, they have avoided the
limitations imposed by the impugned section and the action would have
been decided in the light of the outcome of such procedure. The
application ought therefore to be dismissed.







[31] As regards costs,
the applicants have asked for a costs order against any of the
respondents who opposes the application. The third and fourth
respondents, on the other hand, did not seek an order as to costs. In
the circumstances, no order as to costs will be made.







Order




  1. The application is
    dismissed.



  2. No order as to costs is
    made.








_____________



P SHIVUTE



JUDGE



APPEARANCE:







APPLICANTS: R Heathcote
SC



Instructed by Dr Weder,
Kruger & Hartman, Windhoek







THIRD AND



FOURTH RESPONDENTS: N
Markus



Of Government Attorney,
Windhoek













1Article
80(2) of the Namibian Constitution states that the High Court shall
have original jurisdiction to hear and adjudicate upon all civil
disputes and criminal prosecutions, including cases which involve
the interpretation, implementation and upholding of this
Constitution and the fundamental rights and freedoms guaranteed
thereunder.





2Government
of the Republic of Namibia v Cultura 2000
1993 NR 328 (SC) at
340B-D; 1994 (1) SA 407 (NmS) at 418F-G.