Asino v Elifas (HC-NLD-CIV-MOT-REV-2017/00011) [2018] NAHCNLD 82 (09 August 2018);

Group

Headnote and flynote
Flynote: 

The court has a discretion to refer a mater on a notice of motion for oral evidence to deal with a specific issue – the court will do so where the balance of the scale of probabilities tips in favour of an applicant. Equally so, the court will be more inclined to make that order where the scale of probabilities are evenly balanced. The more the scales are depressed against the applicant the more likely the court will exercise its discretion in favour of applicant.

Headnote and Holding: 

Applicants launched an application for review of proceedings which took place under the authority of first respondent which resulted in their dismissal. Applicants raised an issue about first respondent’s capacity to have made such decisions and applied that first respondent, (the king) be ordered to appear in court to give oral evidence about the authorship of his letters and their contents. Held that it was necessary for him to give oral evidence as this will justify the necessity for a review or otherwise.

Full judgment

 


ORDER


 

1.         The application for first respondent to give oral evidence on the issue of his decisions regarding suspension, dismissal of applicants and their replacements by 1st – 6th respondents as Traditional Authority Councillors of Ondonga Traditional Authority is granted;

 

2.         This matter must be set down within 14 days of this order;

3.         First to sixth respondents must pay costs of this application jointly and severally one paying the others to be absolved; and

 

4.         The said costs should be for one instructing and one instructed counsel.

 


JUDGMENT


CHEDA J:

 

[1]        This is an application for review whose determative relief is an order for referral of first respondent’s evidence on an affidavit to oral evidence. During August 2017, the six applicants on behalf of all other applicants filed an affidavit for notice of motion review. The relief sought was couched as follows:

 

1.         Interdicting respondents pending the outcome of this application, from taking any further steps in pursuance of the suspension and dismissals of applicants and the appointments of second to sixth respondents as Secretary, Senior Traditional Councillors and Traditional Councillors of eighth respondent and in particular interdiction seventh respondent from Gazetting the said appointments in terms of section 10(5) of the Traditional Authorities Act 25 of 2000.

 

2.         Reviewing and setting aside the decisions by first respondent to suspend first to sixth applicants and to conduct disciplinary hearings in respect of the first to sixth applicants in their absence.

 

3.         Reviewing and setting aside the decisions by first respondent to dismiss the first to sixth applicants as Secretary, Senior, Traditional Councillors and Traditional Councillors of the Ondonga Traditional Authority.

 

4.         Reviewing and setting aside the decisions to appoint the second to eighth respondents as Ondonga Traditional Authority Secretary, Senior Traditional Councillors and Traditional councillors as replacements for the applicants.

 

5.         Declaring that the first to sixth applicants are entitled to resume their positions as Secretary and Traditional Councillors, as the case may be, of the Ondonga Traditional Authority immediately.

 

6.         Directing the first and eighth respondent, if they so elect to continue or restart disciplinary proceedings against the applicants after the original in absentia hearings and decisions to dismiss have been set aside, to:

 

 

6.1.      Afford the applicants so charged at least 7 business days to request further particulars to the charges against them;

 

6.2.      Afford the applicants so charged at least 7 business days’ notice of hearing, calculated from the date on which the further particulars are supplied.

 

7.         Further and/or alternative relief.

 

8.         Costs of suit.

 

[2]        This application was opposed by first to sixth respondents. Applicants applied for condonation for the late filing of applicants’ replying affidavit and the late filing of the said application. The said application was not opposed by respondents and was accordingly granted.

 

[3]        The brief historical background of this matter is that first to sixth applicants are Traditional Councillors of the Ondonga Traditional Authority, in the Republic of Namibia. First respondent is “Omukwaniilwa” of Ondonga and, therefore the head of the Ondonga Traditional Authority while second to sixth respondents are senior Councillors of the said authority. Seventh respondent is the Minister of Urban and Rural Development cited in his official capacity and 8th respondent is Ondonga Traditional Authority, a traditional authority established in terms of section 2 (1) of the Traditional Authority Act, 25 of 2000 (The Act). The eighth respondent is the authority upon which both applicants and respondents fall under.

 

[4]        A feud had been brewing within the Ondonga Traditional Authority for a longtime now, which resulted in the suspension and subsequent removal of first to sixth respondents on allegations of some transgressions and misconducts. As a result of these allegations, investigations were carried out which led to disciplinary measures against applicants, the results of which were their dismissals. After their dismissals first respondent replaced them with second to sixth respondents. Seven applicants were represented by Advocate Coleman assisted by Ms Angula while first to sixth respondents were represented by Mr Shikongo assisted by Ms Miller.

 

[5]        Applicants averred that the disciplinary hearings that led to their suspensions and subsequent dismissals were conducted in their absence. Therefore, their replacements by second to sixth respondents was improper since it was pregnant with irregularities which attract review proceedings. This is the essence of the review application before the court.

 

[6]        Applicants have further alleged that they do not believe that first applicant personally made the decisions to suspend, investigate and dismiss them. It is their further belief that he did not personally replace them with second to sixth respondents. The basis of their stance is that they have observed first respondent in the course of his deliberations that he is affected by old age which has resulted in some incoherence and are therefore of the belief that he is unlikely to have exercised his own and sound judgment to appreciate the import and consequences of the matters at hand.

 

[7]        These allegations are vehemently denied by second to sixth respondents who are of the view that first respondent, despite his advanced age, is still able to carry out his official duties and the removal of applicants was personally made by him. It is for that reason that the application for 1st respondent to appear in court to give viva voce evidence should be dismissed.

 

[8]        In the middle of this review application, applicants raised an issue to do with factual disputes. They argued that the issue of first respondent’s demeanour or incoherence is a factual matter which cannot be resolved on the papers and it should be referred to oral evidence. Applicants’ concern was brought to the attention of respondents as far back as mid 2017, but, respondents were of a different view altogether. Respondent through Mr Shikongo forcefully argued that they too have seen first respondent and continue to see him, he is in fact in charge of all his mental faculties. There is, therefore, no basis for this application and review proceedings or for him to be subjected to oral evidence.

 

[9]        During the hearing Advocate Coleman argued that there is an issue of dispute of facts. After listening to his argument I directed the parties to confine themselves to the issue of dispute of facts as there was an overlap between the two applications. In my view, the issue of a dispute of facts was the first crucial, relevant and material issue, which has to be determined first. Advocate Coleman argued that first respondent is in a state where he did not and will not be able to appreciate the process of the suspension and subsequent dismissal of applicants and consequently their replacement by the respondents.

 

[10]      The long and short of his argument, if I understand it properly is that he is in a state where he has mental challenges and this was a factual matter and does not require medical evaluation. This application was made from the bar, which is still an application as it was on Notice of Motion in the review application anyway. Advocate Coleman relied on Rule 67(1) of the Rules which deals with an application for referral of evidence on motion to oral evidence on a specific issue.

 

[11]      The learned counsel Mr Shikongo for respondents argued that it was improper for applicants to have brought this application under Rule 67(1), but, should have done so under Rules 81 and 82  of the High Court which relate to an appointment of a curator. In addition to this, he further argued that first respondent was of sound mind and has been exercising and continues to personally make decisions regarding the kingdom and its subjects. He even went further to state under a question from the court that in his view, first respondent is of such sound mind that he has personally taken instructions from him. What falls for determination, therefore, in this matter is whether or not there is a dispute of fact and that if there is, it is of such a nature that it cannot be resolved on the papers.

 

[12]      Allegations by applicants that first respondent is not the author of the letters of suspensions and that the decisions for the actions against applicants is not of his own making, is serious as it borders on questioning the King’s suitability to lead his subjects. It is their belief that from first respondent’s conduct and behaviour in the Traditional Authority’s deliberations he exhibited signs which indicate that he may not be in charge of his faculties. While this is an observation of one’s mental state by lay people it does not by any means lead to a conclusion that he is mentally disturbed or senile.

 

[13]      This can only be determined by a psychiatric evaluation which assessment can only be made by those trained in that field. Mr Shikongo took great exception to this insinuation and I agree with him. It is for that reason that the court should engage in a delicate balancing act in order to see what the correct position is. I, however, did not understand that it is applicants’ desire for the court to make such a declaration. What I understood from applicants’ argument is that from their layman’s observations, they are of the firm belief that first respondent did not personally make the decisions to remove them from their positions. This is a factual question at this stage. The court does not know where the truth lies.

 

[14]      The long and short of it is that applicants believe that there is an invincible hand behind first respondent which is actively manipulating him to its best advantage. This is a serious allegation which if proved has serious legal consequences on first respondent’s functions.

 

[15]      In determining the question of a dispute of fact, it is necessary to define what a dispute of fact is. A fact is said to be in dispute when it is alleged by one party and denied by the other and such dispute cannot be resolved on papers, but requires oral evidence. It admits of no doubt that the dispute before the court is that of facts and not law.

 

[16]      In our law the position is that in motion proceedings when there exists a dispute of facts which in the court’s view cannot be resolved on the papers the court must judiciously exercise its discretion to refer the matter to oral evidence or to dismiss that application. The factual dispute should not be a mere dispute, but, one that is both real and genuine.

 

[17]      In deciding whether the matter should be referred to oral evidence the court in the exercise of its discretion should always be guided by the prospects of viva voce evidence tipping the balance in favour of the applicant. If, on the affidavits the probabilities are evenly balanced, the court would be more inclined to allow the hearing of oral evidence than if the balance were against the applicant. The more the scales are depressed against the applicant the less likely the court will exercise its discretion in favour of applicant.

 

[18]      This principle was clearly stated in Kalil v Decotex (Pty) Ltd & Another 1988 (1) SA 943 at 979 H. The court must be satisfied that the viva voce examination and cross-examination will not disturb the balance.  Moving closer home, this court is bound by the supreme court decision in Executive Properties CC and Another v Oshakati Tower (Pty) Ltd and Another 2013 (1) NR 157 (SC) at para 37 where it was stated:

 

‘[37]     A reference to evidence viva voce will generally only be granted where, in the words of Fleming, J, “it is found ‘convenient’, where the issues are ‘clearly defined’, the dispute is ‘comparatively simple’ and a ‘speedy determination’ of the dispute is ‘desirable’.”(Standard Bank of South Africa Ltd v Neugarten and Others, 1987 (3) SA 695 (WLD) at 699F). (See further Room Hire-case, supra, 1164, 1165 and Wiese v Joubert, supra, at 202C-E.)’

 

This is the correct legal position. I am indeed fortified by the above approach which warmly embrace as it is the correct legal principle.

 

[19]      It, therefore, stands to reason that the more the scales are depressed against applicant the less likely the court would exercise the discretion in its favour. The requirements for a referral to oral evidence are as follows:

 

a)         if it is convenient;

 

b)         if the issue(s) is clearly defined;

 

c)         if the issue is comparatively simple; and

 

d)         if the speedy determination of the dispute is desirable.

 

In light of the approach in Executive Properties matter (supra) I am of the view that all the four requirements are actively present in this matter.

 

[20]      The issue for determination, therefore, is whether or not the concern raised by applicants that 1st respondent did not personally make those decisions and subsequently authored and signed the letters suspending and dismissing them is a matter which cannot be resolved on the papers. Advocate Coleman submitted that this issue can only be resolved by orally questioning first respondent.

 

[21]      In my mind the question of authorship of the letters can adequately be put to rest by oral evidence Mr Shikongo submitted that respondent will suffer prejudice if he is brought to court to give evidence. I do not see how first respondent can be prejudiced by being asked to either take ownership or disown the decision to expel applicants. What should be made abundantly clear is that applicants are not entitled to express any medical opinion on the first respondent save to refer to his conduct which has reasonably led them to conclude that he did not make the decisions complained of. The dividing line is very thin, but however should be borne in mind that in the event of requesting medical or psychiatric evaluation, it will be on a basis of what relatives or some such other interested party would have seen, heard or observed on 1st respondent, which would have been a factual matter. Simply put the issue of a fact is a necessary hurdle which must be jumped, before the review proceedings start kicking in.

 

[22]      It is convenient that in these proceedings, applicants be granted an opportunity to establish a factual basis relating to the authencity of first respondent’s signature on a document which he purportedly signed. The convenience is both to the parties and the court.

 

[23]      It is clear that the document and circumstances complained of are the integral part of the whole proceedings. It is, further clear, that the determination, thereof, will either make or break the intended review proceedings. The court cannot proceed when the proceedings are opaque.

 

[24]      Mr Shikongo further argued that the questioning of first respondent will be un-procedural as it should have been lodged in terms of Rules 81 and 82 which deals with the appointment of a curator. I do not agree with him that the circumstances surrounding this case would justify such a move at this stage. I am of the view that, this path, while available to applicants and any other person as defined in the rules in question it will not be feasible in this case. Applicants are not seeking a declaratory order requesting 1st respondent’s mental state. However, the review process, is still open at this stage and its life is depended on the outcome of oral evidence.

 

[25]      First respondent by virtue of being a King should not generally be brought to court on frivolous grounds, but, only where his subjects whom he is supposed to rule in harmony are at each other’s throat and have failed to resolve their own internal disputes. This scenario reminds me of Mosquis de Custine, the French writer and traveller who said “this Empire, vast as it is, is only a prison to which the emperor hold the key”. Indeed 1st respondent holds the key to this log-jam. The King’s appearance and his oral evidence will no doubt help to clear the first rung of this dispute. Rule 67 is clear and clothes the court with authority to refer the matter to viva voce evidence.

 

[26]      I hope that after the appearance of his Highness the King in court and his examination and cross-examination will lead some to shout the English proverb that: “The Emperor has no clothes”. The moral of this is that because of pretentiousness and social hypocrisy in society people pretend to know about or agree with certain things because it makes them look better, yet honesty of the innocent is best. It is for that reason the truth about 1st respondent’s position should be laid bare.

 

[27]      In addition thereto, the viva voce evidence will resolve the issue prevailing between the warring parties. I am of the opinion, therefore, that there is a compelling reason for first respondent to appear before the court and give viva voce evidence in connection with the decision and his letters and more specifically his signature on the letters to the applicants and any such relevant documents pertaining to this matter. It is through that process that the facts in this dispute will be ventilated.

 

[28]      In the result the following is the order of court.

 

1.         The application for first respondent to give oral evidence on the issue of his decisions regarding suspension, dismissal of applicants and their replacements as Traditional Authority Councillors of Ondonga Traditional Authority is granted;

 

2.         This matter must be set down within 14 days of this order;

 

3.         First to sixth respondents must pay costs of this application jointly and severally one paying the others to be absolved; and

 

4.         The said costs should be for one instructing and one instructed counsel.

 

 

------------------------------

M Cheda

Judge

 

APPEARANCES

 

 

 

APPLICANTS:                      Coleman

of AngulaCo. Inc., Ongwediva

           

 

RESPONDENTS:                Shikongo

                                                of Shikongo Law Chambers, Ongwediva