IN THE SUPREME COURT OF NAMIBIA
CASE NO: SA 2/2013
DATE: 27 OCTOBER 2014
In the matter between
PRESIDENT OF THE REPUBLIC OF
GOVERNMENT OF THE REPUBLIC OF
ZIYAMBI AJA and GARWE AJA
7 April 2014
27 October 2014
AJA (ZIYAMBI AJA and GARWE AJA concurring):
is an appeal against a decision of the High Court upholding the
respondents’ special plea to the appellant’s particulars
of claim. It arises out of an action by the appellant, a
retired judge of this court, against the respondents: the President
of the Republic of Namibia, the Government of the Republic of
Namibia, the Minister of Justice and the Attorney-General. In
that action, the appellant sued for damages in the amount of N$6 783
455 and other alternative relief, alleging that the respondents are
jointly and severally liable in damages for the violation of his
right to a fair trial, defamation and a breach of a constitutional
duty to facilitate the enforcement of a judgment in South Africa.
claims arose out of the proceedings and the judgment of this court in
an appeal against the acquittal of the appellant on certain criminal
charges. The appellant alleged that the appeal judges who heard the
appeal committed certain irregularities which violated his right to a
fair trial and made certain remarks which were defamatory.
particulars of claim were met with a special plea and an exception
from the respondents who contended that the particulars of claim did
not disclose a cause of action. The special plea was contained in a
document headed ‘Exception’. The respondents
contended, among other things, that the effect of the appellant’s
claim based on the violation of the right to a fair trial is to
require the High Court to review the decision of the Supreme Court,
which the High Court has no jurisdiction to do. They disputed the
existence of a constitutional duty to facilitate the enforcement of a
judgment of a Namibian court in South Africa and maintained that if
one exists, its breach cannot give rise to a claim for delictual
damages. In addition, the respondents contended that the words
complained of were not reasonably capable of conveying the defamatory
meaning attributed to them by the appellant.
High Court upheld the special plea based on a lack of jurisdiction
and dismissed, in effect, the appellant’s action holding that
it had no jurisdiction to review the decision of the Supreme
The High Court did not consider the other grounds of objection to the
particulars of claim but took the view that they were ‘affected’
by the conclusion that it lacked jurisdiction. However, the High
Court dealt separately with the appellant’s claim for
reinstatement and upheld the exception to this claim on the ground
that as the appellant took early retirement prior to the events that
gave rise to his claims, he could not claim reinstatement.
put the issues for consideration in this appeal in context, it is
necessary to refer to the background to the litigation as it emerges
from the record.
first it is necessary to dispose of the appellant’s application
appellant’s notice of appeal was filed one day late while the
record was filed four days late. The appellant seeks condonation for
the late filing of these documents. The respondents are not opposing
course the fact that an application for condonation is not opposed
does not mean that it must be granted. The court has a duty to
consider whether condonation should in the circumstances of the case
be granted. In this regard the court exercises a discretion.
That discretion must be exercised in the light of all the relevant
factors. These factors include the degree of delay, the
reasonableness of the explanation for the delay, the prospects of
success, the importance of the case, the interest in the finality of
litigation and the need to avoid unnecessary delay in the
administration of justice.
These factors are interrelated and are not exhaustive.
period of delay involved in each case is minimal and has a reasonable
explanation. The delay has not resulted in any prejudice to the
respondents and there has not been any inconvenience to the court.
Having regard to the period of delay, the explanation for it and the
prospects of success, condonation should be granted.
appellant is seeking an indulgence for his lateness. The respondents
are not opposing the application, and any costs that they may have
incurred are probably limited to considering the application. As a
result, they did not seek an order for costs. In these circumstances,
the interest of justice in this case demands that the costs of the
application for condonation must be allowed to lie where they fall.
now I turn to the background.
already pointed out, the appellant’s claim arises out of his
prosecution on certain criminal charges. At the conclusion of the
State’s case during 2006, he was acquitted of all the charges
and discharged. The State, with leave of this court, appealed to this
court against this decision. In a court, constituted by ad
judges from South Africa, the appellant’s acquittal was set
aside and the case was remitted to the trial judge to proceed with
the trial. For convenience, these appeal proceedings will be referred
to as the ‘appeal judgment’ and the judges of appeal who
constituted the court that heard the appeal will be referred to as
the ‘appeal judges’.
the conclusion of the trial in the High Court during 2010, the trial
judge again found the appellant not guilty and acquitted him of all
the meantime, during April 2010, the appellant sued the respondents
and the appeal judges. The gravamen of his complaint against
the appeal judges was that in the course of considering the appeal
and the judgment setting aside the decision to discharge him at the
conclusion of the State’s case, the appeal judges committed
certain acts which violated his common law right as well as his
constitutional right to a fair trial enshrined in Art 12 of the
Constitution. Furthermore, he alleges that they made certain
defamatory remarks in violation of Art 8(1) as read with Art 5 of the
He alleged that the respondents and the appeal judges were jointly
and severally liable to him for damages in the amount of N$6 873 455.
only complaint against the respondents was that they had breached
their constitutional duty to put in place legislation and other
processes to facilitate the enforcement of a judgment of a Namibian
court against the appeal judges in a foreign country. He
claimed that as a consequence of this breach, he had suffered damages
in the amount of N$6 873 455. He sought to recover this amount;
alternatively, he sought an order directing the respondents to
provide him with logistical and financial as well as such other
support that is necessary to enable him to enforce a judgment against
the appeal judges in South Africa. In the event of his
acquittal on criminal charges, he sought an order for reinstatement
as a judge of this court and, failing reinstatement, compensation.
May 2010, the appellant withdrew the action against the appeal judges
leaving the respondents as the only defendants in the case.
However, the particulars of claim were not amended to remove the
references to the claims that had been made against the appeal
judges. The effect of the appellant’s later amendments
was to remove the appeal judges as defendants in the action.
However, despite the amendment, the claims that were directed against
the appeal judges remained in the particulars of claim. It is
the retention of the claims that had been made against the appeal
judges that led to the confusion that has characterised the pleadings
in this litigation.
against this background that the issues on appeal must be understood
and considered. Of course these issues must be determined in
the light of the pleadings, the judgment of the High Court as well as
the notice and grounds of appeal.
pleadings in this case are not a model of clarity. The
appellant’s particulars of claim embrace two claims; firstly,
one based on the conduct of the respondents and secondly, on the
conduct of the appeal judges. The second claim has been asserted
despite the withdrawal of the action against the appeal judges and
the fact that they are no longer parties to these proceedings.
As pointed out earlier, the claim based on the conduct of the appeal
judges is for the alleged violation of the appellant’s right to
a fair trial and defamation. The claim based on the conduct of the
respondents concerns the alleged breach by the respondents of a
constitutional obligation to take steps to facilitate the enforcement
of a judgment in a foreign country by putting in place the necessary
legislation and processes.
on these two claims, the appellant seeks to recover constitutional
damages for breach of the constitutional obligation, alternatively,
to be provided with logistical and financial support as well as other
support to enable him to enforce, in South Africa, a civil judgment
yet to be obtained against the appeal judges. In the event of
his acquittal on the criminal charges (this claim was instituted
before the finalisation of the criminal trial on remittal), the
appellant claims reinstatement into his former position as a judge of
this court together with loss of income during the period when he did
not serve as a judge of this court.
each claim the amount of damages claimed is
the same, namely, N$6 873 455 which represents loss of
remuneration, future loss of income, legal costs and expenses, shock,
pain and suffering as well as contumelia.
particulars of claim are inelegantly formulated; they create the
impression that the respondents are also being sued for the alleged
delictual wrongs by the appeal judges. The claim for shock,
pain and suffering and contumelia, as well as the allegation that the
respondents are jointly and severally liable in damages to the
appellant, suggests that the respondents are being held vicariously
liable for the alleged delictual wrongs committed by the appeal
judges. Indeed, as will appear below, the respondents, as well
as the High Court construed the particulars of claim as also
embracing a claim for damages against the respondents based on a
vicarious liability for wrongs allegedly committed by the appeal
judges. The particulars of claim conflate two claims, namely,
that which lies against the appeal judges and that which lies against
the respondents for the alleged breach of a constitutional duty.
from removing the confusion, the respondents added to the confusion
by pleading to all claims in the particulars of claim and raising an
exception as well as a special plea. As pointed out earlier,
the document that contains the special plea and the exception is
headed ‘Exception’ and its preamble adds to the already
existing confusion. It states that ‘the defendants hereby raise
a special plea and exception to plaintiff’s amended particulars
of claim as amplified by the further particulars, on the basis that
this court lacks jurisdiction to review a judgment of the Supreme
Court of Namibia, and that they disclose no cause of action against
the defendants . . .’.
does not indicate which aspects of the particulars of claim are the
targets of the special plea and which are the targets of the
exception. It suggests that the special plea and the exception apply
to all claims set out in the particulars of claim. This is left
to the reader to determine by perhaps having regard to the nature of
the point taken. As if this is not enough, the respondents seek
an order dismissing the appellant’s claims ‘alternatively
and in the event that defendants’ exception is not upheld,
defendants be granted leave to plead’ to the appellant’s
claims. No mention is made of the special plea in the prayer.
respondents construed the appellant’s action as embracing two
claims which they referred to as claim 1 and claim 2. Claim 1 is the
claim based on the violation of the right to a fair trial and
defamation; whereas claim 2 is the claim based on the breach of a
constitutional obligation to put in place statutory and other
processes for the enforcement of a judgment in a foreign country.
While the preamble to the ‘Exception’ appears to suggest
that the special plea applies to all claims in the particulars of
claim, a careful reading of the ‘Exception’ shows that
the special plea was only confined to the complaint based on the
violation of a right to a fair trial.
respondents contended that the appellant’s claim based on a
violation of the right to a fair trial in effect requires the High
Court to undertake an inquiry into the findings of the Supreme Court
and to review the judgment of the Supreme Court. They contended
that the High Court has no jurisdiction either to conduct such an
inquiry or to review a judgment of another High Court. In the
alternative, they contended that the conduct of the appeal judges
does not constitute a violation of the right to a fair trial.
Furthermore, even if it does, its violation cannot found a claim for
damages. In relation to the claim for defamation, they denied
that the passages complained of from the judgment of the Supreme
Court are defamatory.
relation to claim 2, that is, the claim based on the alleged
violation of a constitutional obligation, the respondents denied that
the provisions of the Constitution relied upon create the
constitutional obligation contended for. Even if they do, the
respondents maintained, such obligation does not give rise to a claim
for delictual damages.
these pleadings that served before the High Court.
reasoning of the High Court
High Court was mindful of the fact that the claim against the
respondents is premised on an alleged failure to comply with the
alleged constitutional obligation to initiate steps to facilitate the
enforcement of a judgment in a foreign country.
It nevertheless went on to consider the special plea in relation to
the claim based on the violation of the right to a fair trial.
It did so, presumably because it took the view that the respondents
were being sued and held vicariously liable for the wrongs allegedly
committed by the appeal judges.
High Court’s starting point was that the appellant’s
‘complaint in essence is that the proceedings of the Supreme
Court were irregular and this resulted in the breach of his right to
a fair trial as contained in Art 12 of the Constitution’.
While the High Court accepted that the appellant is not seeking an
appeal against or to review the judgment of the Supreme Court, it
nevertheless held that ‘the effect of these proceedings will
result in this court examining the judgment of the Supreme Court to
determine the plaintiff’s claims against the defendants’.
Relying on the provisions of Articles 78 and 81
of the Constitution as well as s 17 of the Supreme Court Act 15 of
1990, it held that ‘[t]his will result in an indirect way in
which the High Court reviews the thought process of the judgment of
the Supreme Court’.
It concluded that it has no jurisdiction to do so. In the
event, the High Court upheld the special plea.
made this point, however, which disposed of all the appellant’s
claims, the High Court went on to consider the claim for
reinstatement and held that the exception was good in relation to
this aspect of the claim as well. It is not clear how the High
Court could have considered this aspect of the claim after it had
concluded that it did not have jurisdiction. Apart from this,
the respondents did not take this point in the ‘Exception’
and therefore this was not an issue before the High Court. Indeed in
argument before us, Mr Marcus, counsel for the respondents, did not
support this aspect of the judgment of the High Court. It
follows that the High Court erred in this regard.
High Court went further; it held that the special plea must be upheld
in respect of all claims because ‘[t]he foundation or stepping
stone of the plaintiff’s claim . . . is the appeal
In the light of its conclusion, it deemed it unnecessary to consider
the remaining grounds of attack advanced by the respondents ‘as
each one of them may depend on the appeal judgment and is
affected by what [it has held]’. 
raised in the notice of appeal
are two main points taken by the appellant in the notice of appeal.
Firstly, that the High Court erred in failing to distinguish between
the case against the appeal judges, which was not before it, and one
against the respondents, which was before it. The appellant,
who represented himself in this court as well as in the court below,
contended that the ‘essence of the appellant’s case’
before the High Court was ‘whether the respondents have a
positive legal duty to assist and/or facilitate appellant’s
prosecution/enforcement/execution of a domestic judgment/order in a
. . . foreign country/land in a matter involving
peregrine judges’. Secondly, he contended that the High Court
erred in finding that it did not have jurisdiction to inquire into
the findings of the Supreme Court. There are other points taken in
the notice of appeal which are related to these two main points.
the High Court correctly observed, and as argued by the appellant,
the appellant’s claim is founded on the alleged breach by the
respondents of their respective constitutional obligations to protect
his constitutional rights by taking steps to facilitate the
enforcement of a judgment in a foreign country. The appellant
contended that this duty required the respondents to put in place
statutory mechanisms and other processes to ensure that any judgment
obtained against such foreign judges can be enforced in a foreign
country like the Republic of South Africa. The appellant’s
constitutional anchor for this obligation is Art 32(5)(b)
in relation to the President,
Art 40(b) in relation to both the President and Minister of
and Art 87(b) and (c) in relation to the Attorney-General.
issues presented on appeal
central question that the High Court had to decide was whether the
respondents had a constitutional obligation to initiate legislation
and put in place measures for the enforcement of a judgment of a
Namibian court. If such an obligation exists, the High Court
had to consider two further questions. Firstly, whether the
respondents were in breach of such duty. Secondly, if they were in
breach of such a duty, whether that breach of that duty gives rise to
a claim for delictual damages? Both the appellant and Mr Marcus
accepted that these were the questions that the High Court had to
High Court did not consider these questions because it took the view
that it lacked jurisdiction to consider the appellant’s claim
of a violation of the right to a fair trial, and that its
decision affected all other claims by the appellant because ‘[t]he
foundation or stepping stone of the plaintiff’s claim . . . is
the appeal judgment’.
In this manner, the High Court disposed of the central question it
had to decide without considering the merits of the constitutional
question. This too was common cause on appeal.
the light of the approach of the High Court to the issues before it,
two questions fall to be determined in this appeal. Firstly, should
this court now decide the merits of the constitutional question or
should this question be referred back to the High Court for it to
consider the merits of the constitutional question? Secondly, whether
the decision of the High Court that it lacked jurisdiction to
consider the appellant’s claims precludes the High Court from
considering the constitutional obligation question.
questions are dealt with in turn.
the constitutional question be referred back to the High Court?
Marcus initially contended that this court should not refer the
matter back to the High Court but it should decide the constitutional
obligation question. In urging this contention, he submitted
that referring this question to the High Court would be an exercise
in futility because the claim based on a constitutional obligation is
premature. The appellant must first obtain a judgment in his favour,
and only then can he claim the enforcement of the constitutional
obligation contended for. In addition, he submitted that the issue
was argued in the High Court but conceded that the High Court did not
decide the merits of the question. Nonetheless he
accepted that it is undesirable for this court to sit as a court of
first and last instance on an important constitutional question such
as the one involved in this case.
his part the appellant submitted that as the High Court did not
address the merits of the constitutional question, this question
should be referred back to the High Court. He submitted that it is
not necessary for him to first obtain judgment against the appeal
judges in his favour before asking a court to enforce the
constitutional obligation contended for. Under Art 25(2) of the
he maintained, he is entitled to approach a court once his
constitutional rights are threatened. He submitted that the absence
of a statutory mechanism for the enforcement of a judgment in a
foreign court threatens his constitutional rights.
these are interesting constitutional arguments that go to the merits
of the constitutional question. However, these are arguments that
should be addressed to the court hearing the constitutional question.
The fact of the matter is that the High Court did not consider the
constitutional question. The proper course to follow is to refer the
question back to the High Court for it to consider the merits of the
question. Mr Marcus was constrained to concede that this is the
proper course for this court to adopt.
there are further considerations that militate against this court
considering these issues at this stage. These issues raise
important constitutional questions. The South African
Constitutional Court has had the occasion to consider the
implications of an apex court sitting as a court of first and last
instance on important constitutional questions and has held:
is, moreover, not ordinarily in the interests of justice for a court
to sit as a court of first and last instance, in which matters are
decided without there being any possibility of appealing against the
decision given. Experience shows that decisions are more likely
to be correct if more than one court has been required to consider
the issues raised. In such circumstances the losing party has
an opportunity of challenging the reasoning on which the first
judgment is based, and of reconsidering and refining arguments
previously raised in the light of such judgment.’ 
undesirable for this court to sit as a court of first and last
instance on important constitutional questions without the benefit of
the High Court’s views on these questions. The importance
of such views cannot be gainsaid. It enables the parties to
refine and develop further arguments in the light of the reasoning of
the High Court. Through this process, the issues will become more
crystallised. By the time the matter reaches this court, all
possible arguments would have been raised and debated, and this will
place this court in a better position, as a court of final instance,
to resolve the matter in the light of these arguments.
all these reasons, the case must be referred back to the High Court.
does the decision of the High Court on jurisdiction present an
obstacle to that court considering the constitutional issue raised?
The reasons of the High Court, that it lacked jurisdiction, were
broad and wide ranging. It held that the ‘foundation or
stepping stone’ of the appellant’s claim is the appeal
judgment and its conclusion affects all claims made by the
appellant. In other words, the High Court held that it lacks
jurisdiction to consider any of the claims advanced by the appellant
including the constitutional issue. In these circumstances, it
is necessary to consider the question whether the High Court lacks
jurisdiction to consider the constitutional questions.
the High Court lack jurisdiction to consider the appellant’s
holding that it lacked jurisdiction, the High Court placed much store
by the provisions of Articles 78 and 81 of the Constitution as well
as s 17 of the Supreme Court Act.
Article 78 sets out the hierarchy of courts and places the Supreme
Court at the apex of the judicial hierarchy. Article 81 of the
Constitution provides that: ‘A decision of the Supreme Court
shall be binding on all other courts of Namibia and all persons in
Namibia unless it is reversed by the Supreme Court itself, or is
contradicted by an Act of Parliament lawfully enacted’. Section
17(1) of the Supreme Court Act provides that: ‘There shall be
no appeal from or review of, any judgment or order made by the
provisions do not, either individually or cumulatively, preclude the
High Court from considering a delictual claim arising from the
findings or statements made by the Supreme Court. Article 81 is clear
and admits of no ambiguity; decisions of the Supreme Court are
binding on everyone including all other courts. This is so
because the Supreme Court is the apex court and has a final say on
all disputes that come to it. Section 17 of the Supreme Court
Act, merely gives effect to these provisions of the Constitution by
providing that no appeal or review shall lie against any judgment or
order of the Supreme Court. As the apex court, no other court
has the constitutional authority to set aside the decisions of the
Supreme Court. What is precluded by the Constitution and the
Supreme Court Act are proceedings directed at appealing or reviewing
a judgment or an order of the Supreme Court with the aim of setting
supporting the decision of the High Court, Mr Marcus sought to make a
distinction between an action based on a violation of the right to a
fair trial and one based on defamation. The former, he submitted,
requires a court to review findings of another court while the latter
does not. He went further and submitted that what matters is not the
result of the exercise but what the inquiry involves; an inquiry into
the case of an action based on a breach of the right to a fair trial,
he maintained, involves an inquiry into, and a pronouncement, on the
irregularity of the proceedings. This submission misconceives the
nature of the inquiry involved in a claim for damages based on the
alleged wrongful conduct of a judicial officer committed in the
course of judicial proceedings. The basis of the inquiry is the
same whether the wrongful conduct complained of is based on common
law or a violation of a constitutional right.
action based on the alleged unlawful or wrongful conduct of a
judicial officer committed in the course of judicial proceedings is
not aimed at reviewing or setting aside an order or judgment of a
court as would be the case in an appeal or review proceedings.
Such an action involves an investigation into whether the alleged
wrongful or unlawful conduct was committed, and if it was, the
circumstances under which the alleged wrongful or unlawful conduct
was committed. This investigation involves considering the context in
which the alleged wrongful conduct was committed and the context
includes the record of the proceedings, the judgment given, and the
order made in the proceedings. The purpose of this exercise is
not to set aside the judgment or order in the proceedings concerned;
it is aimed at determining whether the wrong conduct complained of
bringing the present claim, the appellant does not seek to appeal
against the judgment or order of the Supreme Court. Nor does he seek
to review the proceedings of the Supreme Court with a view to having
those proceedings set aside. He is not concerned with the result
reached in the appeal judgment; he is only concerned with the conduct
of the appeal judges as well as statements made in the course of
reaching that result. It is true, a court considering a claim
for defamation or violation of the right to a fair trial may have to
consider the findings made by the appeal judges. It is also
true that the court may even go to the extent of considering whether
the impugned findings are borne out by the record.
considering the findings made by the appeal judges, the court
considering the action for damages will be investigating whether or
not these statements were made as well as the circumstances under
which they were made. The consideration of these findings is not to
be directed at setting aside the judgment or order of the Supreme
Court. This investigation is necessary because ‘the
irrelevance of the defamatory matter to the proceedings or the
absence of some reasonable foundation for it, may, depending upon the
circumstances of the particular case, be indicative of malice on the
part of a judicial officer’.
nature of the inquiry to be conducted in a defamation claim against a
judicial officer was considered in Soller
v President of the Republic of South Africa.
There, the North Gauteng High Court of South Africa held that to
establish malice, the court may have to consider the nature of the
case before a judge, the relevance of the remarks made and the entire
context in which the remarks were made, and more importantly, the
findings that the court had to make.
purpose of such an inquiry is not to set aside the findings of facts
or law made by a court as would be the case in an appeal or review;
the purpose is to establish whether those findings or the conduct
complained of are sufficient to sustain the wrongful act complained
of such as a claim for defamation or a violation of the
Constitution. This is what distinguishes an appeal or review
from a consideration of a claim for a violation of the Constitution
or a claim for defamation which arises from conduct or statements
made in the course of judicial proceedings or a court judgment in
such proceedings. It is a fine distinction but it is
fundamental to these processes. It sets these processes apart from
must be borne in mind is that the High Court has the constitutional
authority to hear and adjudicate upon all civil disputes including
those arising from the Constitution. Indeed, the authority of
the High Court to do so, even in relation to the findings of the
Supreme Court is derived from Art 80(2) of the Constitution which
provides that the ‘High Court shall have original jurisdiction
to hear and adjudicate upon all civil disputes . . . including cases
which involve the interpretation, implementation and upholding of
this Constitution and the fundamental rights and freedoms guaranteed
thereunder . . . ’.
80 must be read with Art 12(1)(a)
which guarantees the right of access to court in the following terms:
the determination of their civil rights and obligations or any
criminal charges against them, all persons shall be entitled to a
fair and public hearing by an independent, impartial and competent
Court or Tribunal established by law: provided that such Court or
Tribunal may exclude the press and/or the public from all or any part
of the trial for reasons of morals, the public order or national
security, as is necessary in a democratic society’.
right to have civil rights determined in ‘a fair and public
hearing by an independent, impartial and competent court’ is a
fundamental right that is guaranteed by the Constitution.
The High Court is a ‘competent court’ which is empowered
to hear all civil disputes including those that arise under the
Constitution. To this must be added Art 25(4) of the Constitution
which sets out the power of a court when considering the alleged
violation of constitutional rights. The power ‘include
the power to award monetary compensation in respect of any damage
suffered by the aggrieved persons in consequence of such unlawful
denial or violation of their fundamental rights and freedoms. . .’.
decision of the High Court does not pay sufficient attention to the
fundamental right of access to court which is implicit, if not
explicit, in Art 12(1)(a)
read with Art 80(2) of the Constitution. The status of this
Court as an apex court as appears from Art 78(1) of the Constitution
including, the binding effect of its judgment as provided for in Art
81 and the preclusion of appeals or reviews against judgments or
orders of the Supreme Court by s 17(1) of the Supreme Court Act must
be construed and understood in the light of Art 80(2) of the
Constitution which confers on the High Court ‘original
jurisdiction to hear and adjudicate upon all civil disputes’
including cases arising under the Constitution as well as the
fundamental right of access to court.
High Court erred in three respects; firstly, it paid insufficient
attention to the purpose of considering the findings made by a court
in a claim based on a violation of the Constitution; secondly, it
paid insufficient attention to the distinction between, on the one
hand, the appeal and review, and, on the other, a consideration of a
claim for a violation of a constitutional right based on the conduct
and statements made in the course of the proceedings and judgment of
the Supreme Court; thirdly, it paid insufficient attention to the
fundamental right of access to a court and the constitutional
authority of the High Court to hear and adjudicate on all civil
disputes including those arising under the Constitution.
from this, the High Court erred in applying the special plea to the
claim based on a breach of a constitutional obligation as it was not
the target of the special plea.
all these reasons, the conclusion by the High Court that it lacked
jurisdiction cannot stand. The decision of the High Court upholding
the special plea based on lack of jurisdiction therefore falls to be
there is the question of costs.
his notice of appeal, the appellant did not ask for costs in this
court. On the contrary, he asked that each party pays its own costs
and that the decision of the High Court on costs must also stand. The
High Court ordered each party to pay its own costs. In the
course of argument, he asked for costs only in this court, indicating
that his costs are limited to expenses for making photocopies of
documents. He did not ask for the reversal of the High Court’s
order for costs. The High Court order for costs must therefore
appellant has been successful in this appeal. There is no reason to
depart from the general rule that costs must follow the result. Mr
Marcus did not contend otherwise.
the event, the following order is made:
appellant’s late filing of the notice of appeal and the record
is hereby condoned.
appeal is upheld.
order made by the High Court upholding the respondents’ special
plea and exception is set aside and is replaced by an order
dismissing the special plea and the exception.
case is referred back to the High Court to consider the matter
costs order made by the High Court is to stand.
respondents are ordered to pay the appellant’s costs of appeal
excluding those relating to the application for condonation. Such
costs shall be limited to actual disbursements incurred by the
APPELLANT: In person
Mr N Marcus
Instructed by Government Attorney
The High Court appears not to have
made a distinction between the special plea and the exception.
Executive Properties CC and
Another v Oshakati Tower (Pty) Ltd and Other 2013
(1) NR 157 (SC) para 62, citing with approval the decision in
S v Van der Westhuizen 2009
(2) SACR 350 (SCA) at 353c; S
v Nakale 2011 (2) NR 599
(SC) para 7.
Art 8(1) guarantees the right of all
persons to dignity, while Art 5 requires all branches of Government
to respect and
uphold the fundamental
human rights and freedoms enshrined in Chapter 3 of the
Judgment of the High Court para
Judgment of the High Court para
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to the provisions of this Constitution dealing with the signing of
any laws passed by Parliament and the promulgation and publication
of such laws in the Gazette, the President shall have the power to:
(a) . .
initiate, in so far as he or she considers it necessary and
expedient, laws for submission to and consideration by the National
The members of the
Cabinet shall have the following functions:
(a) . .
initiate bills for submission to the National Assembly;’
The powers and
functions of the Attorney-General shall be:
(a) . .
be the prinicipal legal adviser to the President and Government;
take all action necessary for the protection and upholding of the
Judgment of the High Court para 27.
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.’
Another v Feecytex Johannesburg CC and Others 1998
(2) SA 1143 (CC) paras 8 and 29. See also Aparty
and Another v Minister of Home Affairs and Another; Moloko and
Others v Minister of Home Affairs and Another 2009
(3) SA 649 (CC), in particular the cases cited in footnote 42.
17. Finality of decisions of
(1) There shall be
no appeal from, or review of, any judgment or order made by the
(2) The Supreme
Court shall not be bound by any judgment, ruling or order of any
court which exercised jurisdiction in Namibia prior to or after
May v Udwin
1981 (1) SA 1 (A) at
(3) SA 567 (T) at 572B-F.
Id para 10.