REPORTABLE

CASE NO.: SA 48/2011

IN THE SUPREME COURT
OF NAMIBIA

In the matter between:

and

Coram: Maritz JA, Mainga
JA et Ngcobo AJA

Heard on: 02/04/2012

Delivered on: 13/08/2012

_________________________________________________________________

APPEAL JUDGMENT

_________________________________________________________________

NGCOBO AJA:

1. 
   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.

   
   

2. 
   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.

   
   

3. 
   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.
   

   
   

4. 
   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.

   
   

5. 
   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.

   
   

6. 
   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."

7. 
   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.
   

   
   

8. 
   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 Constitution¹.

   
   

9. 
   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.”

10. 
    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,²butit
    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 it³.

    
    

11. 
    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 appeal⁴
    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.⁵

    
    

12. 
    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."⁶

13. 
    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.
    

    
    

14. 
    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.
    

    
    

15. 
    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.
    

    
    

16. 
    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
    Constitution⁷or
    take those proceedings to the Supreme Court after compliance with
    the requirements of s.16 of the Supreme Court Act, 1990.

    
    

17. 
    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.
    

    
    

18. 
    Then to the issue of
    costs.

    
    

19. 
    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?

    
    

20. 
    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.

    
    

21. 
    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.

    
    

22. 
    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.

    
    

23. 
    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.
    

    
    

24. 
    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.

    
    

25. 
    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.

    
    

26. 
    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.

    
    

27. 
    In the event the appeal
    is dismissedand there is no order for costs.
    

    
    

________________________

NGCOBO AJA

I agree.

________________________

MARITZ, JA

I agree.

________________________

MAINGA, JA