Court name
High Court
Case number
17 of 2012
Title

Centani Investments CC v Anti-Corruption Commission and Another (17 of 2012) [2012] NAHC 59 (09 March 2012);

Media neutral citation
[2012] NAHC 59
Coram
Hoff J













NOT REPORTABLE



CASE NO: A 17/2012







IN THE HIGH COURT OF NAMIBIA











HELD AT WINDHOEK











In the matter between:











CENTANI INVESTMENTS CC
…............................................................................
APPLICANT











and











ANTI-CORRUPTION COMMISSION (ACC)
…............................................1ST
RESPONDENT







NAMIBIAN PORTS AUTHORITY (NAMPORT)
….......................................2ND
RESPONDENT















CORAM: HOFF, J















Heard on: 24 February 2012











Delivered on: 09 March 2012















JUDGMENT



Urgent Application











HOFF, J: [1] The
applicant approached this Court for an order in the following terms:







1. Directing the First
Respondent to make available to the Applicant’s Attorney of
Record, within three days of the grant of this Order, a file of
documents labeled as File No.: 2 that were seized from the Second
Respondent offices, employees, and/or any director of its Board, in
the process of the First Respondent’s investigations of the
complaint laid by the Applicant about a possible violation of the
Anti-Corruption Act in the award of Namport Tender No 079/2011.







2. Directing the First
Respondent to make available, for the purposes of copying, Statements
taken by members of the Anti-Corruption Commission (ACC) in
connection with the aforestated investigations from the following
persons:







2.1 Mr Raymond Visagie;



2.2 Mr Patrick Nawatiseb;



2.3 Mr Alfeus Kathindi;



2.4 Mr Mike van der
Merwe;



2.5 Mr Gerson Adolf
Uirab;



2.6 Mr Jerry
Muadinohamba;



2.7 Mr Koot van der
Merwe;



2.8 Mr Elias Mwenyo;



2.9 Captain Mussa Mandia;



2.10 Mr Anton van Rhyn;



2.11 Mr Jackson Kapuka;
and



2.12 Mr Immanuel T
!Hanabeb







3. Directing the
Registrar to permit the Applicant’s Attorney of Record to make
copies of the documents identified in paragraphs 1 and 2 above.







4. Directing the
Applicant to pay the costs of this Application, save in the case of
one or more of the Respondents opposing this Application, in which
event the Respondent who opposes is directed to pay the costs and if
both oppose they are directed to pay the costs jointly and severally,
the one paying the other to be absolved.







5. Granting to the
Applicant further and/or alternative relief.







Background







[2] The applicant was one of the
entities that had tendered to supply the second respondent a tugboat
in terms of a tender issued by the second respondent in tender
079/2011. The second respondent awarded the tender to Damen Shipyards
Cape Town (Pty) Ltd. Thereafter the applicant has applied to this
Court to review and set aside the decision of second respondent’s
Board to award the tender to Damen.







[3] The second respondent is opposing
the review application. Second respondent has as required by Rule 53
of this Court dispatched a record of the proceedings sought to be set
aside together with affidavits in support of its opposition to the
review application.







[4] In addition to launching review
proceedings the applicant also requested the first respondent to
investigate the award of the tender since applicant believed that the
provisions of the Anti-Corruption Act, Act 8 of 2003 might have been
contravened in awarding the tender to Damen.



First respondent subsequently seized
certain documents connected to the award of the impugned tender and
also took statements from a number of second respondent’s
officers, employees, Board members and consultants.







[5] In his founding affidavit in this
application, Mr Julius April, the Chief Executive Officer of the
applicant, stated that he had regular contact with Mr Phelem Masule,
one of the investigating officers of first respondent, regarding the
progress of the investigations and in this way became aware that a
number of documents that were seized by first respondent do not form
part of the Rule 53 record dispatched on behalf of second respondent.
In addition he also discovered that there are material discrepancies
between what has been said in the affidavits in opposing the review
application and sworn statements made to the first respondent.



Applicant requested first respondent
to make available the said sworn statements to applicant in order to
be used in applicant’s replying papers in the review
application. These statements were refused by the first respondent,
hence this present application.



This application is opposed by the
first respondent. The second respondent has withdrawn its initial
opposition to this application.







[6] In this answering affidavit Mr
Paulus Noa, the Director of the first respondent raised two points in
limine
.



The first point is that the first
respondent was established in terms of the provisions of section 2 of
Act 8 of 2003 and is not clothed with legal personality capable of
suing or being sued in its own name. The applicant has instituted
proceedings against the first respondent in its own name.







[7] The second point is that the
applicant has no locus standi to bring this application in
terms of the provisions of section 3(d)(ii) of Act 8 of 2003 (the
Act).



It appears from correspondence
attached to the answering affidavit that the applicant relied on the
provisions of section 3(d)(ii) of the Act in requesting the relevant
information from the first respondent.







[8] Section 3(d) reads as follows:



3



(d) The functions of the
Commission are-



to assemble evidence
obtained in the course of its functions and to furnish



(i) to any appropriate
authority contemplated in paragraph (c); or



(ii) to the prosecuting
authority or any other suitable authority of another country, upon a
formal request,



evidence which may be
admissible in the prosecuting of a person for a criminal offence or
which may otherwise be relevant to the functions of that authority;”







Section 3(c) reads as
follows (with reference to the functions of the Commission):







to consult,
co-operate and exchange information with appropriate bodies or
authorities, including authorities or bodies of other countries that
are authorised to conduct enquiries or investigations in relation to
corrupt practices;”



[9] The applicant in its founding
affidavit avers that section 3(d)(ii) of the Act permits the Director
of the first respondent to furnish to an appropriate authority
statements obtained by the first respondent in the course of its
investigations and submitted that this Court is such an appropriate
authority.



Furthermore, applicant contended that
since the first respondent is authorised by its enabling Act to do
anything necessary to prevent corruption, the thing the applicant can
and should do is to furnish the requested statements to the Court to
enable the Court to arrive at a correct decision in the review
application. This contention is based on the premise that if the
averments made by the applicant are correct then the allegations made
by second respondent’s deponents in the review application
which are at variance with what they had said to the first respondent
will be shown to be incorrect and the review application will then be
decided on the “true facts”.







[10] The first respondent answered
this contention by pointing out first respondent can only furnish
evidence to a prosecuting authority. The applicant is not a body or
authority authorized to conduct inquiries or investigations in
relation to corrupt practices and has therefore no locus standi
to bring this application in terms of section 3(d)(ii) of the Act.







[11] It was stated by the first
respondent that the applicant has not provided the date when the
answering affidavits were filed and when applicant is expected to
file its replying affidavit and that this application lacks in
urgency.







[12] First respondent in its answering
affidavit stated that it has been advised that applicant’s
relief does not lie in bringing this application but in compelling
the second respondent to furnish the missing documents. If such an
application is made the time for the applicant to file replying
affidavits does not run.







[13] It was contended by the first
respondent that the course of its investigation following a complaint
of alleged corrupt practices is totally independent from the relief
being sought in the review application.







[14] The first respondent in its
answering affidavit stated it has been advised by counsel that in the
exercise of this Court’s jurisdiction in terms of Rule 53, this
Court reviews a record of the decision of second respondent
and therefore the applicant cannot produce the annexures that it
intends to attach to the replying affidavit in order to complete the
record.







Points in limine







[15] Regarding the first point in
limine
Mr V Soni who appeared on behalf of the applicant
submitted that Article 18 of the Namibian Constitution should be read
with section 2(3) of the Anti Corruption Commission Act, Act 8 of
2003 and Article 5 of the Namibian Constitution.







[16] Section 2(3) of Act 8 of 2003
provides that the Commission is an agency in the Public Service as
contemplated in the Public Service Act, Act 13 of 1995 and Article 5
of the Constitution requires all organs of the Government and its
agencies
to uphold the fundamental rights set out in the
Constitution which rights shall be enforceable by the Courts.



Article 18 of the Constitution
requires that administrative bodies and officials shall act fairly
and reasonably and persons aggrieved by the exercise of such acts and
decisions shall have the right to seek redress before a competent
Court or tribunal. It was submitted that in view of these
constitutional provisions and that of section 2(3) of Act 8 of 2003
it is untenable that the Commission cannot be sued.



Regarding the issue of locus standi
it was submitted that the applicant is an aggrieved party in the
sense that its right to administrative justice has been violated that
the violation of his constitutional right to administrative justice
supercedes the provisions of sections 3(d)(i) and (ii) of Act 8 of
2003.







[17] It was submitted by Mr Chanda on
behalf of the first respondent that having regard to the statutory
and constitutional provisions first respondent was not created with
any legal capacity to sue or be sued in its own name and that had the
Legislature intended to clothe the Commission with a legal
personality of its own, that intention would have been expressly
provided for.



I have perused the enabling Act and
agree that I could find no provision specifically providing that the
Commission may sue or be sued in its own name or that the Commission
it is a juristic person. Nevertheless I shall for the purpose of this
application accept (without making such finding) that the Commission
may be sued.







[18] This then brings me to the second
point raised in limine.







[19] I have already referred to the
submissions made on behalf of the applicant on this point, namely the
right to administrative justice. It is not the applicant’s case
that it is as a matter of direct right entitled to the documents but
rather that its right of access to those documents flow from its
direct right to administrative justice under Article 18 of the
Constitution.



Mr Soni submitted that Article 25(2)
of the Constitution reinforces the right of a person who claims that
a fundamental right has been infringed to approach this Court to
protect that right and Article 25(3) grants to this Court the power
to make all such orders as are necessary and appropriate to secure
for the person the enjoyment of the fundamental right.



I do not understand the applicant’s
case to be that it has a constitutional right to compel the first
respondent to provide the applicant with those statements obtained by
the first respondent.







[20] It was submitted by Mr Chanda
that this application does not involve a constitutional challenge but
that it is being brought in order to compel the first respondent to
exercise its functions under section 3 of the Act.







[21] The applicant in its founding
affidavit stated that the main purpose of this application is to
secure an order directing the Commission to make available to the
Registrar of this Court a list of documents it has seized in the
course of its investigations into the award of a tender by the second
respondent and to hand over to the Registrar copies of
statements made to the Commission by certain officers of the second
respondent.



The applicant pointed out in his
founding affidavit incorrectly to the provisions of section
3(d)i\(ii) of the Act. I shall accept that this was a bona fide
mistake and that it meant the provisions of section 3(d)(i) which
permits the Director of first respondent to furnish to an appropriate
authority statements obtained by the first respondent in the course
of its investigation.



In its replying affidavit the
applicant confirmed that it relies on the provisions of section
3(d)(i) of the Act for the purposes of this application.



I shall therefore consider the second
point in limine on this basis.







[22] It was submitted on behalf of the
applicant that this Court is an appropriate authority to whom
evidence obtained by first respondent may be furnished. I disagree.
In my view section 3(d)(i) qualifies “appropriate authority”.
My interpretation of section 3(d)(i), read with section 3(c), is that
“appropriate authority” refers to an authority which is
authorised to conduct inquiries or investigations in
relation to corrupt practices”.
This Court or the Registrar
is certainly not such an authority.



Furthermore in terms of section
3(d)(i) “evidence obtained in the course of its functions”
refers to “evidence which may be admissible in the
prosecution of a person for a criminal offence or which may otherwise
be relevant to the functions of that authority”
.



I must at this stage mention that it
appears from the papers that the file of documents referred to as
“File No.: 2” that were seized from the offices of second
respondent, has prior to the hearing of this application, been
returned to the second respondent, and that only the statements
obtained by the first respondent during the course of its
investigations regarding the alleged corrupt practices by the second
respondent are the subject matter of this application.



In regard to the provisions of section
3(d)(i) the evidence required by the applicant is not being sought in
this application for the purpose of prosecuting a person for a
criminal offence. It is being sought by the applicant to provide
material to be used in the replying affidavit in the review
proceedings regarding the alleged irregular conduct by officials of
the second respondent in awarding the tender to Damen. In these
circumstances, I hold the view that the applicant has no locus
standi
to bring this application in terms of the provisions of
section 3(d)(i) of the Act. These second point in limine is
accordingly upheld and the urgent application should be refused for
this reason alone.



However the first respondent also
opposed this application on the basis of non-compliance with the
provisions of Rule 6(12) and lack of urgency. Mr Paulus Kalohmo Noa
deposed to the answering affidavit on behalf of the first respondent
in which he inter alia stated that the applicant has failed to
set out as required by Rule 6(12) explicitly the circumstances which
it avers render the matter urgent and the reasons why it claims that
it could not be afforded substantial redress at a hearing in due
course.







[23] It is apparent from paragraphs 35
of the founding affidavit that the basis of urgency is that the
applicant is required to file its replying affidavit to the second
respondent’s answering affidavit (in the review application).



The first respondent in its answering
affidavit (denying that urgency in this basis has been established)
stated that the applicant is silent regarding when the answering
affidavit in the review application had been filed and when the
applicant is expected to file its replying affidavit.







[24] The applicant in response filed a
“supplementary affidavit” In this supplementary affidavit
Mr April pointed out that an express prayer ought to have been
included in the notice of motion in respect of non-compliance with
the requirements relating to service and time periods and the hearing
of this application as one of urgency as envisaged in Rule 6(12) and
prayed that the notice of motion be amended.



He further submitted that the reasons
for applicant’s failure to comply with all the requirements
relating to service and time periods and for the hearing of the
application as one of urgency are adequately set out in the founding
affidavit and that what was omitted was an express prayer in the
notice of motion for such relief.







[25] The applicant filed its notice of
motion on 10 February 2012 in which the respondents were required to
deliver their answering affidavits by no later than 17 February 2012
at 12h00. First respondent filed its answering affidavit on 16
February 2012 at 11h30. On 20 February 2012 the applicant filed this
“supplementary affidavit”.



First respondent in a document titled
“First Respondent’s Note on Applicant’s
Supplementary Affidavit” stated that a new issue was raised in
the supplementary affidavit to which first respondent was unable to
deal with and this in turn severely prejudiced the first respondent.







[26] A Court has a discretion in
allowing more than three sets of affidavits. Every case should be
determined not only according to its circumstances but having due
regard to the contents of the further affidavit(s) and especially
whether some reasonable explanation has been given or is apparent for
its late filing.



(See Parow Municipality v Joyce &
McGregor (Pty) Ltd
1973 (1) Sa 937 (CPD) at 939 A).



The applicant gave no explanation for
the late filing of this supplementary affidavit but deals with two
errors in its founding affidavit namely the reference to section
3(d)(ii) in the founding affidavit, instead of section 3(d)(i), which
I have found to be a bona fide error and secondly the issue of
the amendment of the notice of motion to include the following as a
new paragraph:







Condoning the
non-compliance by the applicant of the Rules of this Honourable Court
relating to service and time periods and hearing this application as
one of urgency as envisaged in Rule 6(12).”







[27] In my view the second error is of
a technical nature which cannot in any conceivable manner prejudice
the first respondent. In any event even if this supplementary
affidavit is allowed, the applicant in my view has failed in its
founding affidavit to address the issue of non-compliance with the
provisions of Rule 6(12)(b).



Rule 6(12)(b) requires of an applicant
in its founding affidavit to set out explicitly the circumstances
which it avers render the matter urgent and the reasons why it
claims it could not be afforded substantial redress at a hearing in
due course.



Although the applicant in its founding
affidavit dealt with the issue of urgency it was dealt with in broad
terms without such particularly which could have placed this Court in
a position to properly assess the circumstances why it was necessary
to approach this Court on an urgent basis.



An applicant must deal with both legs
contained in Rule 6(12)(b) in order to succeed with an urgent
application. The applicant in this matter did not deal with the
second leg, namely, the reasons why it claims that it could not be
afforded substantial redress at a hearing in due course. This in my
view was a fatal omission. The non-compliance with any one the
requirements set out in Rule 6(12)(b) is bound to result in the
failure of an urgent application.



I am of the view that the application
should for this additional reason also be refused.







[28] The applicant in its notice of
motion did not ask for any cost order neither did counsel appearing
on behalf of the applicant address the Court on the issue of costs.
Similarly the first respondent did not raise the issue of costs in
its answering affidavit neither was this Court addressed on the issue
by counsel appearing on behalf of the first respondent.







[29] In the result the following
orders are made:



1. This application is dismissed.



2. No costs order is made.























________



HOFF, J































ON BEHALF OF THE APPLICANT: ADV.
VASANTRAI SONI SC











Instructed by: MURORUA &
ASSOCIATES















ON BEHALF OF THE 1ST
RESPONDENT: MR C CHANDA











Instructed by: GOVERNMENT ATTORNEY











ON BEHALF OF THE 2ND
RESPONDENT: NO APPERANCE