Court name
High Court
Case number
HC-MD-CIV-MOT-GEN 472 of 2020
Case name
Gideon vs Chairperson: Council of University of Science and Technology (NUST) & Others
Media neutral citation
[2021] NAHC 182
Judge
Miller J

REPUBLIC OF NAMIBIA

 

HIGH COURT OF NAMIBIA, WINDHOEK, MAIN DIVISION

 

                                                                                                          RULING

 

Case Title:

Frednard Gideon vs Chairperson:  Council of Namibia University of Science and Technology (Nust) and Others

Case No:

HC-MD-CIV-MOT-GEN-2020/00472

Division of Court:

High Court

 

Heard Before:

Honourable Justice Miller, Acting

Date of Hearing:

24 March 2021

Delivered on:

23 April 2021

 

Neutral Citation:  Gideon vs Chairperson: Council of University of Science and Technology (NUST) and Others (HC-MD-CIV-MOT-GEN-2020/00472) [2021] NAHCMD 182 (23 April 2021)

 

 

The Order:

 

Having heard Mr. Sisa Namandja, on behalf of the Applicant and Mr. Kauta, on behalf of the 1st – 3rd Respondents on 24 March 2021:

 

IT IS ORDERED THAT:

 

 (a)    The reports of the psychometric assessments of the applicant and the fifth respondents must be produced to the Court hearing the matter and to the applicant only;

 

 

 

(b)       The scorecards of the panellists must be produced in a redacted form which does not disclose the identity of the panellist who awarded a particular score.

 

(c)        The documents referred to in prayer 3.5 must be produced.

 

(d)     There shall be no order as to costs.

 

 

Reasons for Orders:

 

[1]        What is presently pending in this Court is an application seeking to review and set aside certain decision taken by the first and third respondent during November 2020 and December 2020 which culminated in the appointment of the fifth respondent as the vice-chancellor of the second respondent.  In addition the applicant seeks an order declaring the employment agreement concluded between the second respondent as unlawful and ultra vires in provisions of section 18(3) of the Public Enterprises Governance Act, No. 1 of 2019.

 

[2]        The respondents as they were required to do filed what is claimed to be the record of the decision under review, subject to certain qualifications.  In so far as that is concerned the first, second and third respondents filed an application for directions in terms of Rule 32(4) on the basis that they claim confidentiality in respect of some documents.

 

[3]        The applicant thereupon brought an application on 22 February 2021 for an order compelling the respondent to produce the following documents in addition to what had been filed already as the record;

 

3.1      The signed and approved minutes of the JSCC of 5 November 2020,   9 November 2020 and 12 November 2020.

3.2       The signed and approved minutes of the University’s Council meeting of 10 November 2020.

3.3       The production of items 15 and 16 of section C and item 18 under section D of the record.

3.4       All panellist’s score sheets during the public presentation as well as during the oral and face-to-face interviews of the applicant and the fifth respondent.

 

3.5       The full employment agreement of the fifth respondent and all correspondences with him in relation to his employment.

3.6       All communications relating to the recruitment of the vice-chancellor of NUST doing solo between the first to third respondent and Capacity Trust-CC and any of its agents which should include correspondences, e-mail communications reports, background check reports, psychometric test reports including all communications with the applicant and the fifth respondent’s references.’

 

[4]        The applicant submits that the documents should be produced in order that the Court hearing to review application has all that is required for the adjudication of the review application.

 

[5]        It is not the stance of the respondents that the documents should not be produced, save for the documents being sought in paragraph 5, above.  The respondents submit that the employment agreement was concluded subsequent to the decision to employ the fifth respondent, which is now under review.

 

[6]        Some of the documents sought were disclosed as part of the answering affidavits filed on the application to compel and nothing more needs to be said about these.  These are the signed minutes and the communications with Capacity Trust.

 

[7]        What remains in issue is the psychometric reports prepared by Messrs Hendrick and Struggles.  The respondents submit that the reports are those of psychologist and highlights the cognitive profile, personality impressions including motivation, problem solving and decision making.  The reports, so it is said address an assessment of the strength, development needs and leadership capabilities of the applicant and the fifth respondent inter alia. These are said to be sensitive and confidential information concerning the applicant and the fifth respondent.

 

[8]        The respondents submit that apart from the summaries of these reports, which had been produced already, their disclosure should be confined to the parties and the Court hearing the matter and must not be available to the general public so to speak.  The applicant is in any event already a possession of their reports.

 

[9]        As a general proposition court proceedings for obvious reasons are conducted in public, including all documents and papers filed by the litigants.  This is an important fundamental principle in our law. There are however some exceptions.  These relate to the protection of the identities of minors, proceedings held in camera either in terms of a statute or certain categories of cases such an Anton Pillar orders and the like.

 

[10]      As far as reports of psychometric evaluations are concerned I was not referred to nor could I find, any precedent in this jurisdiction.  I was referred to the decision in the case of (Carrie Jaffee, special administrator for Ricky Allen, Sr., deceased Petitioner vs Mary Lu Redman et al[1].  The case concerned disclosures between a psychotherapist and his client, the issue being whether those should be regarded as privileged.  The following passage appears in the judgment.

‘In contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit that would result from the denial of the privilege is modest.  If the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation.  Without a privilege, much of the desirable evidence to which litigants such as petitioner seek access – for example, admissions against interest by a party is unlikely to come into being.  This unspoken ‘evidence’ will therefore serve no greater truth seeking function than if it had been spoken and privileged.’

 

[11]      I was likewise referred to the decisions Crown Cork & Seal Co. Inc and Another vs Rheem South Africa (Pty) Ltd and Others[2] and Unilever plc and another vs Polagric (Pty) Ltd[3]

 

[12]      Those cases concerned to protection of commercial interests rather than psychometric assessments.  Nonetheless it is clear that in given situations, the court will depart from the general rule of open and public hearings.  Each case must be considered within the context in which it is and it is not possible to establish any general hard and fast rule.  The principles of open and public hearings and the confidentiality of the reports are opposing consideration. Undoubtedly the court hearing the matter and the respondent may need to take into consideration what the reports state.  Our law does not provide for any blanket privilege and the respondent correctly does not contend that such privilege exists.

 

[13]      The main consideration must always be that the hearing should be fair to the parties involved therein.  The Constitution makes that clear.  Any order to the effect that the reports should be available only to the Court or the parties will impact on the general rule that proceedings should be open to the public.  It will have a limited impact only, insofar as it is confined to the reports only and not the proceedings as a whole. A further consideration is that summaries of the reports were produced and are available for anybody who may have an interest in that.

 

[14]      In considering the production of the score cards I believe that what is important is the score itself and not so much the identity of the individual who awarded the particular score.  The identities of the panellists are known.  I believe that there are good reasons advanced by the respondent why the name of a specific panellist should not be tied to the score that panellist arrived at.

 

[15]      In do not agree with the respondents that the employment contract should not be produced.  I believe it should be. The applicant in specific terms seek an order that it is to be set aside.  Certainly the Court and the respondent is entitled to know the terms and conditions embodied in that agreement in so far as it may become relevant.

 

[16]      As far as costs are concerned the applicant and the respondents succeeded in part and failed in part.  In these circumstance I am not inclined to make any order as to costs.

 

[17]   In the result, I issue the following order:

 

(a)    The reports of the psychometric assessments of the applicant and the fifth respondents must be produced to the Court hearing the matter and to the applicant only;

 

(b)       The scorecards of the panellists must be produced in a redacted form which does not disclose the identity of the panellist who awarded a particular score.

 

(c)        The documents referred to in prayer 3.5 must be produced.

 

(d)     There shall be no order as to costs.

 

 

Judge’s Signature:

Note to the parties:

 

 

 

 

Counsel:

Applicant

Respondents

Sisa Namandje

Sisa Namandje & Co

Patrick Kauta

Dr Weder, Kauta & Hoveka Inc.

     

 

 

[1] Carrie Jaffee, special administrator for Ricky Allen, Sr., deceased Petitioner vs Mary Lu Redman et al 518 US1 (1996)

[2] Crown Cork & Seal Co. Inc and Another vs Rheem South Africa (Pty) Ltd and Others 1980 (3) SA 1093 (W)

[3] Unilever plc and another vs Polagric (Pty) Ltd 2001 (2) 329 (CPD)