IN THE SUPREME COURT OF NAMIBIA
CASE NO. SA 13 / 90
In the matter between:
MINISTER OF POLICE.........................APPELLANT
CORAM: BERKER, C.J. et MAHOMED, A.J.A, et DUMBUTSHENA, A.J.A.
Delivered on: 1990/11/12
MAHOMED, A.J.A. : The appellant in this matter was the second defendant in an action instituted by the respondent in the Court a_ quo. The respondent alleged that he had suffered damages in an amount of R30 795 in consequence of an unlawful assault perpetrated upon him on 3 February 1985 by members of "the South West African Police and/or South West African Territory Force and/or the South African Defence Force".
The first defendant in the action was cited as "the Cabinet for the Territory of South Wdst Africa" and the thrid defendant was cited as "the Minister of Defence".
It was common cause that the respondent had served a notice purporting to be a notice in terms of Section 32 of the Police Act upon the Administrator-General of the former territory of South West Africa on 12 June 1985, prior to the Independence of Namibia. It was also common cause that a similar notice had been served on the Minister of Defence in terms of Section 113 of the Defence Act of 1957.
A pre-trial Conference which was held between the legal representatives of the parties on 29 April 1987, it was agreed that no such notice had been served upon or received by the appellant personally or by his office or by the Commissioner of the South African Police. Based on this ground, the appellant filed a special plea in the Court ’ quo contending that the claim of the respondent against the appellant should be dismissed.
The appellant's special plea was dismissed by the trial Court on 17 September 1987 and an appeal against that judgment to the Full Court of the then Supreme Court of South West Africa was lodged. That appeal was dismissed with costs on 2 September 1988. Leave to appeal to the Appellate Division of the Supreme Court of South Africa was thereafter given on 2 December 1988 by the Chief Justice of South Africa. Following the subsequent independence of Namibia and pursuant to the provisions of Article 138(2)(b) of the Constitution of Namibia, this appeal was prosecuted and heard by the Supreme Court of Namibia.
Mr Van der Byl (assisted by Mr Swanepoel) who appeared for the appellant, vigorously contended that the special plea should have been upheld by the Courts a quo, because no cause of action was sustainable against the appellant in the absence of a notice of intended action in terms of Section 32 of the Police Act of 1958, served either on the appellant or the South African Commissioner of Police.
The word "Minister" which appears in Section 32 of the Police Act of 1958, is indeed defined in Section 1 of that Act to mean "the Minister of Police". Section 32 itself provides as follows:
"32. Limitation of actions, notification of action and cause thereof, and service of certain process -
1. Any civil action against the State or any person in respect of anything done in pursuance of this Act, shall be commenced within six months after the cause of action arose, and notice in writing of any civil action and of the cause thereof shall be given to the defendant one month at least before the commencement thereof.
2. If any notice contemplated in subsection (1) is given to the Commissioner, it shall be deemed to be notification to the defendant thereof.
"(3) Any process by which any action contemplated in subsection (1) is instituted and in which the Minister is the defendant or respondent, may be served on the Commissioner."
It was common cause that Section 32 of the Police Act of South Africa has at all relevant times been of application to Namibia, but it must be read subject to the provisions of certain subsequent proclamations of special application within the teritory of Namibia itself which had been made by the former Administrator-General, pursuant to powers vesting in him at that stage in terms of Proclamation 181 of 1977 of the Republic of South Africa.
The first of these proclamations of the Administrator-General which is relevant is AG.7 of 1977, which deals inter alia, with the transfer of the administration of the affairs of the territory of Namibia from a minister of the Republic of South Africa to the Administrator-General. Section 2 of Proclamation AG.7 of 1977 provides as follows:
"2. The provisions of this Proclamation shall, as from the commencement of a transfer proclamation and save in so far as that transfer proclamation provides otherwise, apply in respect of any law relating to a matter which in terms of that transfer proclamation is administered by the Administrator-General."
Section 3(1) of this Proclamation further provides:
"3.(1) Subject to the provisions of subsection (2), any reference in any law referred to in section 2 -
3. to the Minister or to the Minister of Finance or State President or Parliament (including the Senate or the House of Assembly) or Government of the Republic, shall be construed as a reference to the Administrator-General;
4. to the State, shall be construed as including a reference to the Administrator-General;
(c) to the Republic, shall be construed as a reference to the territory;
(d) to the Government Gazette of the Republic, shall be construed as a reference to the Official Gazette."
The effect of these two sections of Proclamation 7 of 1977 is that where the administration of any law which is applicable in the territory of Namibia is transferred from a Minister .of the Republic of South Africa to the Administrator-General, any reference in such law to the Minister is to be construed as a reference to the Administrator-General and any reference to the State in any such law, is similarly to be construed as including a reference to the Administrator-General.
Proclamation AG.7 of 1977 was thereafter known as "the General Proclamation" and pursuant thereto there were a number of Proclamation? transferring the administration of various laws from different Ministers of the Republic of South Africa to the Administrator-General. As far as the Department of Police (subsequently also referred to as "Law and Order") is concerned, the relevant Proclamation is 169 of 1980.
The material provisions of Proclamation 169 of 1980, relevant to this appeal, are contained in Sections 2 and 3(1)(a). These sections read as follows:
"2. Notwithstanding anything to the contrary contained in any other law but subject to the provisions of this Proclamation and the General Proclamation, the administration of the affairs of the territory of South West Africa in relation to any matter which at the commencement of this Proclamation is administered by the Minister of Police of the Republic, shall be carried on by the Administrator-General.
3,(1) The provisions of subsection (1) of section 3 of the General Proclamation shall, without detracting from the provisions of subsection (2) of that section, not apply to -
(a) any reference to the Minister of Police or the State President or the Government Gazette in the Police Act, 1958 (Act 7 of 1958), except the reference to the said Minister in sections 4 and 32 of that Act in so far as those sections are connected with the functions of the South African Police in the territory in terms of section 5 of that Act or any other law but excluding such functions as may in relation to paragraph (a) of the said section 5 ordinarily be performed by the branch of the South African Police known as the Security Police."
Applying these provisions (read with the relevant provisions of "the General Proclamation" referred to previously) to the Police Act of 1958, with reference to the territory of Namibia, the following conclusions would seem to follow:
5. In the application of the Police Act within the territory of Namibia any reference to the Minister' shall, notwithstanding the provisions of Section 3(1) of Proclamation 7 of 1977, generally continue to be read as a reference to such Minister.
6. With reference to Section 4 and Section 32 of the Police Act however, any reference to the Minister is to be construed as a reference to the Administrator-General, insofar as those sections are connected with the functions of the South African Police in Namibia.