REPORTABLE
CASE NO.: SA 48/2011
IN THE SUPREME COURT
OF NAMIBIA
In the matter between:
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JASON
MUKAPULI
MARTHA
MUKAPULI
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1st
APPELLANT
2nd
APPELLANT
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and
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SWABOU
INVESTMENT (PTY) LIMITED
FIRST
NATIONAL BANK OF NAMIBIA LIMITED
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1st
RESPONDENT 2ndRESPONDENT
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Coram: Maritz JA, Mainga
JA et Ngcobo AJA
Heard on: 02/04/2012
Delivered on: 13/08/2012
_________________________________________________________________
APPEAL JUDGMENT
_________________________________________________________________
NGCOBO AJA:
This appeal concerns the
question whether the High Court is a competent court to review the
constitutionality of earlier proceedings between the same – or
essentially the same - parties before another Judge of the High
Court. This question arises from the order made by Swanepoel J
striking from the roll the appellants’ application to rescind
the order made against them by Heathcote AJ on 23 September 2009 at
the conclusion of the trial.
The appellants are Mr
Jason Mukapuli and Mrs Martha Mukapuli. They are husband and wife,
and they are pensioners who reside at Erf 2997 Soweto, Katutura,
Windhoek (the property). They were both defendants in an action
instituted by Swabou Investment (Pty) Limited, the first respondent
in this appeal, in which it sued for the repayment of certain sum of
money previously advanced to the appellants as a home loan. The
first respondent obtained judgment in its favour before Heathcote AJ
on 23 September 2009 and subsequently obtained an order declaring
that the property is executable. In due course, First National Bank
of Namibia Limited, the second respondent in this appeal, bought the
property at a sale in execution and obtained an eviction order
against the appellants. A writ of ejectment was issued.
The appellants resisted
eviction. They brought an application in the High Court for an order
setting aside the eviction order and, in the alternative, they
sought the stay of the writ of ejectment pending the institution of
an application to rescind the judgment and order of Heathcote AJ.
The application for a stay succeeded and the appellants subsequently
brought an application in the High Court for an order rescinding the
judgment and order of Heathcote AJ on the ground that they were not
accorded a fair trial. This application came before Swanepoel J.
Swanepoel J, in an ex
tempore judgment, concluded that the High Court was not a
competent court within the meaning of Article 25 of the Constitution
to review the constitutionality of the proceedings of the High Court
but that the Supreme Court is. He accordingly struck the application
for rescission from the roll and, in the exercise of his discretion,
made no order for costs. The present appeal is against that order.
In this appeal we are
concerned with a procedural question, namely, whether the appellants
went to a wrong court to enforce their fundamental right to a fair
trial that is guaranteed by Article 12 of the Constitution.
The question presented
in this appeal is governed by Article 25(2) and (3) of the
Constitution, which provide:
"(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, and
may approach the Ombudsman to provide them with such legal assistance
or advice as they require, and the Ombudsman shall have the
discretion in response thereto to provide such legal or other
assistance as he or she may consider expedient.
(3) Subject
to the provisions of this Constitution, the Court referred to in Sub-
Article (2) hereof shall have the
power to make all such orders as shall be necessary and appropriate
to secure such applicants the enjoyment of the rights and freedoms
conferred on them under the provisions of this Constitution, should
the Court come to the conclusion that such rights or freedoms have
been unlawfully denied or violated, or that grounds exist for the
protection of such rights or freedoms by interdict."
The question iswhether
the High Court is a “competent court” within the meaning
of Article 25(2) of the Constitution. The Constitution does not tell
us what a competent court is. However, in its ordinary meaning, the
word competence means the legal authority to deal with a particular
matter. It is a relative concept that must be construed purposively
and in the light of the jurisdiction of the particular court in
relation to the particular dispute in question. The purpose of
Article 25(2) was to clothe courts with legal authority to deal with
alleged violations of fundamental rights.But the drafters of the
Constitution were mindful of the fact that courts are subject to a
hierarchy system that regulates the exercise of legal authority and
that determines their various jurisdictions in relation to subject
matter of the dispute. This is apparent from Article 78 which vests
the judicial power in the Supreme Court, High Court and Lower
Courts.
More importantly the
Constitution recognises that the jurisdiction of the Namibian courts
will be determined by their status in the hierarchy system of
courts. Thus Article79 sets out the jurisdiction of the Supreme
Court, which includes the power to “hear and adjudicate upon
appeals emanating from the High Court, including appeals which
involve the interpretation, implementation and upholding of this
Constitution and the fundamental rights and freedoms guaranteed”
by the Constitution.
The jurisdiction of the
High Court is governed by Article 80 which, in relevant part,
provides:
“(2)
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. The High Court shall also have jurisdiction to hear and
adjudicate upon appeals from Lower Courts.
“(3)
The
jurisdiction of the High Court with regard to appeals shall be
determined by Act of Parliament.”
The High Court has
original jurisdiction and appellate jurisdiction in matters referred
to in Article 80(2). It is therefore clearly a “competent
court” as contemplated in Article 25 on those matters,butit
has no appellate jurisdiction in regard to appeals from itself, that
is to say a judge of the High Court may not sit in judgment over a
decision of another High Court judge on essentially the same facts
and issues between the same litigants. Nor can the High Court review
its own decision under those circumstances. The High Court
considered the issues between the parties ventilated at the trial
and decided them in a considered judgment.Subject to a few
well-known exceptions to the rule, the court is functus
officioonce
it has pronounced its order in the matter and cannot correct, alter
or supplement it.
One of the recognised
exceptions to this principle is in the case of a rescission of a
judgment. The power to rescind one's own judgment is an exception to
this rule.And the grounds of rescission are very narrowly specified.
Outside of these grounds, an aggrieved litigant must challenge any
irregularity in the proceedings which gave rise to the order by way
of appeal
or, if this Court has
assumed review jurisdiction in the matter, byway of review to the
Supreme Court under s. 16 of the Supreme Court Act, 1990.In the case
of Schroeder
and Another v Solomon and 48 Others this
court gave detailed directions of what was required of a party who
wanted to bring an irregularity in proceedings to the notice of the
Supreme Court or to one of its judges.
InS v Malumo and
Othersthis Court explained the circumstances under which its
power to review the the proceedings may be exercised and said:
"Section 16 is an extraordinary
provision which allows this court, as a court of first instance, to
correct irregularities in proceedings before the High Court and any
other tribunal or authority established by law. This power can only
be exercised by this court once it takes cognisance of such
irregularity and assumes jurisdiction. Subsection (2) specifically
prohibits any party to bring review proceedings in the Supreme Court
as a court of first instance. The existence of an irregularity in
proceedings may come to the notice of the court or any of its judges,
in which case it may mero motu assume jurisdiction and give
directions in terms of its rules to deal with the matter. Perhaps the
most likely manner in which an irregularity of that nature would be
brought to the attention of the court or any of its judges, is by
means of a complaint by an aggrieved party involved in the
proceedings or through a third party with an interest therein."
The phrase “competent
court” in Article 25(2) must therefore be construed
purposively to refer to a court that has the jurisdiction to hear
the particular matter. It should not be construed to confer
jurisdiction upon a court that does not have jurisdiction to
consider the particular dispute.
What in effect the
appellants sought to achieve by bringing the application for
rescission in the High Court was to review and have set aside the
judgment and order of Heathcote AJ for an alleged violation of the
right to a fair trial.A judge of the High Court does not have the
jurisdiction to reviewearlier proceedings between the same or
essentially the same parties before another judge of the High Court.
The court that has the legal authority to adjudicate the complaint
by the appellants that the High Court violated their fundamental
rights to a fair trial is the Supreme Court.
Realising this
difficulty, counsel for the appellants accepted that he could not
contend for a general principle that a High Court is competent to
review its own decision but nevertheless contended that the inherent
power of the High Court to regulate its own procedure is wide enough
to include the power to review its own decision. It is not necessary
to determine the nature and the scope of the inherent power of the
High Court under Article 78(4). It is sufficient to say whatever the
nature and scope of the inherent power of the High Court is, it
simply does not include conferring upon it jurisdiction that it does
not have.
Ajudge of the High Court
has no jurisdiction to review the constitutionality of the earlier
proceedings in the same litigation before another judge of the High
Court.The remedy of a litigant who alleges that a High Court has
violated his or her fundamental right is either to appeal to the
Supreme Courtwhich has the power to hear appeals from the High
Court, “including appeals which involve the interpretation,
implementation and upholding of this Constitution and the
fundamental rights and freedoms guaranteed” by the
Constitutionor
take those proceedings to the Supreme Court after compliance with
the requirements of s.16 of the Supreme Court Act, 1990.
It follows that the High
Court was correct in its conclusion that the competent court in
relation to the appellants’ complaint against the judgment and
order of Heathcote AJ is this Court.
Then to the issue of
costs.
In the exercise of its
discretion the High Court did not make any order for costs. I agree
with this order. But what about the costs in this Court?
The issue of costs is a
matter that is in the discretion of the court. The general approach
is that the costs should follow the result. However, the court may,
in the exercise of its discretion depart from this rule. To my mind,
this is one of those occasions which calls for a departure from that
rule. I say this for the following reasons.
The appellants are both
pensioners. They say they have no regular income except for the
monthly pension grants that they receive. Their combined income is
N$2400,00, they say. Trying to secure legal representation has been
a costly exercise for them. It has drained their financial
resources. This ultimately left them to defend themselves in the
proceedings before Heathcote AJ. They brought the application for
rescision in the High Court and persued that application in this
Court through the assistance of the legal aid which secured legal
representation for them.
The importance of the
case to them cannot be gainsaid. It concerns their house, the
property. They have lived in this house for more than 33 years. They
say if the house is sold off, they may well be forced to live on the
streets. And at this advanced age they will not be able to rebuild
their lives. This explains why they havedefended the action against
them. They are adamant they do not owe the bank any money. Whether
that is so is a question that is not before us. What is before us is
their determination to resist being evicted from their home that
they have occupied for more than 33 years.
What is more the issue
they sought to arguewill have an impact far beyond the present
litigants. It concerns the right to legal representation in civil
disputes. It is a novel issue of public importance. The only problem
is that they followed a wrong procedure in raising this important
issue. They should have raised the issue by way of an appeal to this
Court. They have since done that. That appeal was heard by a
differently constituted panel of this Court. On behalf of the
appellants it was submitted that it is not appropriate to impose a
cost order in a matter involving an alleged violation of a
fundamental right. The rationale for this proposition is that a
costs order may have a chilling effect on litigants and this in turn
may inhibit the enforcement of fundamental rights.
There is much to be said
for this view.This is a principle that should no doubt be taken into
consideration in the exercise of discretion. But it is a principle
that must be taken intoaccount in combination with other factors in
the case bearing in mind that the ultimate question is whether the
court should in the exercise of its discretion depart from the
general rule that costs should follow the result. Blind adherence to
this principle may well encourage vexatious and frivolous litigation
at the expense and to the prejudice of other litigants . And this is
not conducive to the proper administration of justice. That said, on
the record before us I cannot say that theconstitutional issue
raised by the appellants is frivolous. On the contrary it is an
issue of considerable importance to the public and the State.
It is true that the
appellant must take responsibility for the actions of their legal
representative, albeit a legal aid representative. But one cannot
lose sight of the fact that they cannot be blamed for the procedure
that was followed; that decision was that of their legal
representative and they had no reason to believe that it was not the
proper procedure to follow. All they were interested in was to save
their home and for how to go about doing this they relied on their
legal representative.
In all the circumstances
of this case,I am satisfied that this is an appropriate case for a
court, in the exercise of discretion, to depart from the general
rule that costs should follow the result. The High Court did so and
this must be so on appeal. The costs should therefore lie where they
fall.
In the event the appeal
is dismissedand there is no order for costs.
________________________
NGCOBO AJA
I agree.
________________________
MARITZ, JA
I agree.
________________________
MAINGA, JA
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COUNSEL ON BEHALF
OF THE APPELLANTS:
Instructed by:
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Mr. N. Marcus
Legal
Aid
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COUNSEL ON BEHALF
OF THE RESPONDENTS:
Assisted by:
Instructed
by:
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Mr. G H Oosthuizen
Ms. H. Schneider
Theunissen,
Louw & Part.
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Mukapuli and Another v SWABOU Investment (Pty) Ltd and Another (SA 48/2011) [2012] NASC 13 (13 August 2012);