IN THE SUPREME COURT OF NAMIBIA
In the Civil Appeal of
THE MINISTER OF DEFENCE....................Appellant
CORAM: BERKER, C.J. MAHOMED, A.J.A. DUMBUTSHENA, A.J.A.
Delivered on: 1991/10/25
BERKER, C.J.; MAHOMED, A.J.A and DUMBUTSHENA, A.J.A .: This is an appeal against an order made by Strydom, A.J.P, (as he then was) for the substitution of the Minister of Defence of the Republic of Namibia for the Minister of Defence of the Republic of South Africa as the Defendant in an action for damages instituted by the Respondent.
The judgment of the Court a quo is reported as Mwanadinqi v Minister of Defence, Namibia, 1991(1) SA 851 (Nm) .
The history of the case is briefly as follows:
The Respondent alleged that he was on 9 July 1987 shot by a member or members of the South African Forces then operating in Ovambo, Namibia. He sustained serious injuries. Summons was issued on 1 January 1988 against the then Cabinet of the Interim Government of South West Africa (as as first defendant) and the Minister of Defence of South Africa (as second defendant). The Respondent claimed damages in the amount of R800 000,00. In passing it is important to note that in his plea on the merits the South African Minister of Defence admitted that members of the South African Defence Forces shot and injured the Respondent and that they were acting within the course and scope of their employment.
As a result of this admission the Respondent decided at a pre-trial conference held on 16 August 1989 not to pursue the claim against the Cabinet of the Interim Government of South West Africa. He, however, decided to persist on his claims against the Minister of Defence of South Africa.
The Respondent set down the matter for trial on 23 August 1990. The trial was postponed to 7 September 1990, apparently because the attorneys acting for the Minister of Defence of South Africa served a notice of amendment on the Respondent's attorneys on the 6th of August 1990. The South African Defence Minister sought to amend his plea inter alia by adding a number of special pleas. In the fifth special plea he stated that he was at all times acting on behalf of the Goverment of South Africa, a sovereign State, that the acts complained of by the Plaintiff were acts of State and that the Defendant was therefore immune to the jurisdiction of the Courts of Namibia.
Namibia had on 21 March 1990 become an independent sovereign State. Before this event Namibia was administered by the Government of South Africa. The circumstances of South Africa's administration of South West Africa are aptly chronicled in Binqa av Administrator-General, South West Africa and Others, 1984(3) 949 (S.W.A.).
It is interesting to note that the South African Minister of Defence continued to defend the action notwithstanding the attainment of sovereignty by Namibia. On 3 August 1990 a reply to the Request for Further Particulars for purposes of trial was filed by his attorneys. On 6 August 1990 a Notice of Intention to Amend was served on the Respondent's attorneys for the purpose of introducing special pleas.
The status of Namibia became relevant because of independence and the South African Minister was now able to contend that any liability that might have vested in him as South African Minister of Defence had passed to the Namibian Minister of Defence.
It was because of the new stance adopted by the South African Minister of Defence that an application was made to substitute the Namibian Minister of Defence for the former in the light of the provisions of Article 140(3) as read with Article 140(1) of the Constitution. As a result the respondent abandoned his action against the South African Minister on 10 August 1990. On 21 August 1990 the respondent applied by Notice of Motion for an order substituting the Namibian Minister of Defence as the Defendant in place of the South African Minister of Defence. On 14 December 1990 the application was granted. It is against this order of substitution granted by Strydom, A.J.P, (as he then was) that the Appellant now appeals to this Court.
The problem in this case arises from the fact that the Respondent was assaulted by members of the South African Defence Forces prior to independence. He instituted his action before independence. The new State of Namibia came into existence on 21 March 1990. A new Constitution was adopted. South West Africa became Namibia, an Independent sovereign State.
Had the Respondent completed his action before the Independence of Namibia, he would either have succeeded or failed on the merits, but there would have been no doubt that if his claim was sound on the merits, the liability to compensate him for damages, would have been the liability of the South African Minister of Defence. For the Respondent it was unfortunate that things dragged on up to and beyond the 21st of March 1990. The question is: Is the new State of Namibia liable to compensate the Respondent, in respect of delicts allegedly perpetrated by servants of the previous administration at a time when that administration controlled the territory of Namibia?
There can be no doubt that when the delict was committed, the respondent acquired a private right to compensation for damages against the Administration, then in control, of the country. Such private rights do not cease on a change of sovereignty -
"even those who contest the existence in International Law of a general principle of State succession do. not go so far as to maintain that private rights including those acquired from the State as the owner of property, are invalid against a successor in sovereignty" - See Shaw; International Law, 2nd. Ed. pp.454 - 455.
The learned author says only those private rights that became vested or acquired would be covered by the doctrine. And "where rights are to come into operation in the future, they will not be binding upon the new sovereign. Similarly, claims to unliquidated damages will not continue beyond succession". (At p.455).
The latter has nothing to do with the issues raised in this case. The Respondent's right was vested before independence and he issued a summons for damages before independence. So he can continue his action after independence.
Article 140 of the Constitution of Namibia puts the question of succession beyond any doubt. It makes it clear that the Republic of Namibia is the successor to the administration of the Republic of South Africa in Namibia.
Article 140(3) attributes to Namibia's new government formed at independence the delicts or other acts committed by the organs of the government of the Republic of South Africa committed before independence.
Subarticle (3) of Article 14 0 reads:
"Anything done under such laws prior to the date of Independence by the Government or by a Minister or other official of the Republic of South Africa shall be deemed to have been done by the Government of the Republic of Namibia or by a corresponding Minister or official of the Government of the Republic of Namibia, unless such action is subsequently repudiated by an Act of Parliament, and anything so done by the Government Service Commission shall be deemed to have been done by the Public Service Commission referred to in Article 112 hereof, unless it is determined otherwise by an Act of Parliament".
The subarticle does not distinguish between international or municipal acts done under laws prior to independence or prior to the creation of the State of Namibia. This view accords with the thinking of the International Law Commission when it considered the status of National Liberation Movements. Article 15, paragraph 1 of the draft articles on State responsibility, adopted by the International Law Commission attributes to the State which has a new government after the insurrection, not only the acts of the organs of the insurrectional movement, but also those committed by the State before the insurrection had ceased. Dealing with this article, Hazem Atlam in his essay or "National Liberation Movements and International Responsibilty", published in "The United Nation Codefinction of State Responsibility (edicted by Marina Spinedi and Bruno Simma) comments as follows:
"The fact that the International Law Commission makes no distinction between the case of an insurrectional movement and that of a national liberation movement means that if a liberation movement succeeds in overthrowing a racist regime and replacing it with a government representing the majority of the population, the State with the new government will be responsible for the wrongful acts committed previously by the racist regime. By reasoning in this way the Commission made the people of Zimbabwe responsible not only for the wrongful acts committed during the fight by the organs of the Zimbabwe African Nationalist Union (ZANU) and the Zimbabwe African People's Union (ZAPU), but also for the violations of the defeated government of Ian Smith. By minimising the importance of the international legality of wars of national liberation and by having recourse to the fiction of continuity between the preexisting racist government and the government created after the war of liberation, the Commission has endorsed an unacceptable solution". (See pp. 51-52).
What this means is that when a national liberation movement becomes the new government of a State as is the case in Namibia, the new State will be attributed with the conduct which would have been previously considered as an act of the pre-existing State, that is, the new government inherits responsiblity for the acts committed by the previous organs of the State.
Mr Maritz, for the Appellant, submitted that it would be absurd that the Namibian State, which was brought about, inter alia, by armed resistance against the illegal occupation of Namibia, .the South African State, should be responsible for delicts committed by members of the security forces of the South African Government who committed such delicts in the course of operations to maintain and perpetuate such illegal occupation. Mr Maritz accordingly questioned whether Article 140 properly interpreted was ever intended to saddle the post independent government of Namibia with liability in Municipal Law in such circumstances. Article 140(1), however, states clearly that subject to the provisions of this Constitution, all laws which were in force immediately before the date of independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court. The laws referred to are no doubt Municipal laws. Article 140 cannot be said to have amended the position in international law, pertaining to private rights to which we have previously referred. What article 140 succeeds in doing is to confirm in no uncertain terms that the successor Government would inherit liability for anything done by the predecessor Government under laws existing prior to independence unless such laws were repealed by the successor government by means of an act of Parliament. No pre-existing laws were repealed by the Namibian Parliament and it therefore follows the successor Government must be liable for the delicts committed by the South African Government in Namibia before 21 March 1990.
Mr Maritz further contended that in terms of Article 140(3) of the Constitution, it was only anything which was lawfully done under the previous laws which is deemed to have been done by the Namibian Government or its Ministers or official. He argued that if the previous South African Government or its officials had in the performance of a lawful act acted negligently or otherwise unlawfully, such unlawful acts could not in terms of Article 140(3) of the Constitution be attributed to the post-independence government of Namibia. We agree, however, with Mr Gauntlett* s contention that the word "anything" used in Article 140(3) is -a word of the widest generality and includes every act of commission of which a human being is capable". (See R v Kunene, 1960 (1) S.A. 155 (N) at 156 E. See also Havne & Co. v Kaffrarian Steam Mill Co. Ltd. , 1914 AD 363 at 372, 372 an R v Hugo, 1926 AD 268 at 271 and Rhodesian Publications Ltd. v Service Reinstatement Board and Stevens-Burt, 1945 S.R.75. It means, therefore, anything done by the South African Government or Minister or official under all laws which were in force within Namibia prior to 21 March 1990, are attributed to the Namibia Government or a Minister or an official of the Namibia Government. We also agree with Mr Gauntlett that such laws are ordinarily taken to mean both the common law and statute law.
Mr Gauntlett conceded that there is ordinarily a presumption that when statutes refer to any act, this is to be taken to be a reference to a lawful act, unless the context otherwise indicates, but he submitted that that presumption was displaced on a proper reading of Article 140(3) of the Constitution.
(See Kauluma v Minister, van Verdediqinq, 1987(2) S.A. 833 (A) at 856H - 857D; S v Mapheele, 1963(2) S.A. 651(A) at 655D. See also: Kauluma case (supra) at 8561).
We agree with that submission.
The ordinary "presumptions'* in the interpretation of statutes are merely guides to the construction of statutes. They do give way where there are other considerations such as those of language context and circumstance which indicate a contrary intention on the part of the Legislature. (See Abbott v Commissioner for Inland Revenue, 1963(4) S.A. 552 (C.P.D.) at 556 E-F).
It is perfectly true that when the lawgiver athorises a government or its officials to perform an act it contemplates that such acts will ordinarily be performed lawfully but -
"the mere fact that the act complained of was wrongful does not in itself denote that the wrongful act is not pursuant to the performance of a legal duty" (Denika and Another v Van der Merwe and Others, 1962(3) S.A. 220 (T) at 223 A-B); See also Arbor Cures (Pty) Ltd. v Harare Municipality, 1984(2) S.A. 1984(2) S.A. 13 (Z.S.C.) at 18 E-G.)
Masikane v Smit and Another, 1965 (4) S.A.293 (WLD) was a case in which the Plaintiff sought damages against a policeman and the Minister and in which the phrase "in pursuance of the Act" was considered. Viljoen, J. said at p.296 G-H:
"It has never been suggested that only regular or lawful acts fall to be embraced by the words *in pursuance of the Act'. There are numerous cases decided in the past which laid it down that acts done 'in pursuance of the Act* are unlawful or irregular acts creating a liability for the policeman and/or for the State. As early as 1907 this point was dealt with in Natal in the matter of Matiwane vs Nhlozana, (1907) 28 N.L.R. 532 at p.535, where Dove-Wilson, J.P., is reported to have reasoned as follows:
'The contention of the respondent in the appeal is that that section can only give protection in the case of acts which are lawfully executed in pursuance of the Act. If that contention is right, there appears to be no meaning in the section, because it is obvious that where anybody does any lawful act in pursuance of the Act, he needs no protection, and no action lies against him whether brought within four months or not*".
It seems clear to us that there is nothing in the article which tends to suggest that the phrase "anything done in Article 140(3) is intended to limit the operation of article 140 to only those acts of the predecessor government which were lawfully performed. The authorities suggest that unlawful acts are also included and the successor government is liable for the delicts of its predecessor.
The Namibian Government cannot escape this liability simply by a narrow and mechanical interpretation of the phrase 'anything done' in Article 140(3) so as to limit its operation to only to acts lawfully done. It has been held in Namibia that -
"The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed. It is a 'mirror reflecting the national soul', the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the constitution must therefore preside and permeate the processes of judicial interpretation and judicial discretion". (S v Acheson, 1991 (2) S.A.805 (Nm. H.C.)
The Namibian Constitution, must therefore be purposively interpreted to avoid the "austerity of tabulated legalism". The interpretation of Article 140(3) which limits the operation of the words "anything done" to acts lawfully done subscribes to words used in the Constitution a narrow and pedantic meaning. It avoids a construction that is "most beneficial to the widest possible amplitude". Lord Wright said in James v Commonwealth of Australia, 1936 AC 578 at 614:
"It is true that a constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general, and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning. It has been said that 'in interpreting a constituent or organic statue such as the Act (i.e. the British North America Act), that construction most beneficial to the widest possible amplitude of its powers must be adopted':
British Coal Corporation v The King, (1935) AC 500 at 518. But that principle may not be helpful when the section is, as s 92 may seem to be, a constitutional guarantee of rights"
H.M. Seervai citing what was said by Gwyer, C.J. remarked in the Constitutional Law of India, 3rd ed. Volume I at 68:
"a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purposes of supplying missions or correcting supposed errors.
A Federal Court may rightly reflect that a Constitution of government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat".
It would not be generous and purposeful to ignore the special characteristics of a Constitution when rendering an interpretation to any of its provisions. The Namibian Constitution has a Declaration of Fundamental Human Rights and Freedoms which must be protected. These freedoms and rights are framed in a broad and ample style and are international in character. In their interpretation they call for the application of international human right norms. In this respect the words of Lord Wilberforce in Minister of Home Affairs (Bermuda) and Another v Fisher and Another, (1980) A.C. 319 at 328-9, (1979) 3 All.E.R 21 (PC) at 25h-26e are instructive and memorable. The learned and noble Law Lord said:
"Here, however, we are concerned with the Bermuda Construction Act 1967 of the United Kingdom, but established by a self-contained document set out in Schedule 2 to the Bermuda Consitution Order 1968 (United Kingdom S.I. 1968 No. 182). It can be seen that this instrument has certain special characteristics. 1. It is, particularly in Chapter I, drafted in a broad and ample style which lays down principles of width and generality. 2. Chapter I is headed 'Protection of Fundamental Rights and Freedoms of the Individual'. It is known that this chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the Constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd)8969). That Convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda. It was in turn influenced by the United Nations' Universal Declaration of Human Rights of 194 8. These antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. 3. Section 11 of the Constitution forms part of Chapter 1. It is thus to 'have effect for the purpose of affording protection to the aforesaid rights and freedoms' subject only to such limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice ... the public interest".
Lord Wilberforce' continued as follows:
"When therefore it becomes necessary to interpret 'the subsequent provisions of Chapter 1 - in this case section 11 - the question must inevitably be asked whether the appellants' premise, fundamental to their argument, that these provisions are to be construed in the manner and according to the rules which apply to Acts of Parliament, is sound. In their Lordships? view there are two possible answers to this. The first would be to say that, recognising the status of the Constitution as, in effect, an Act of Parliament, there is room for interpreting it with less rigidity, and greater generosity, than other Acts, such as those which are concerned with property, or succession, or citizenship. On the particular question this would require the Court to accept as a starting point the general presumtpion that 'child' means 'legitimate child', but to recognise that this presumption may be more easily displaced. The second would be more radical: it would be to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law.
It is possible that, as regards the question now for decision, either method would lead to the same result. But their Lordships prefer the second. This is in no way to say that there are no rules of law which should apply to the interpretation of a Constitution. A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the tradition and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences'.
(See further in this respect cases such as S v Marwane, 1982 (3) SA 717 (A) at 748H-749G; Ex parte Cabinet for the Interim Government of South West Africa: In re Advisory Opinion in terms of s 19(2) of Proc.RlOl of 1985 (RSA) 1988 (2) SA 832 (SWA) at 853C-G; Hewlett v Minister of Finance and Another, 1982(1) SA 490 (ZS); Minister of Home Affairs and Others v Dabencrwa and Another, 1982 (4) SA 301 (ZS) at 306E-H; Minister of Home Affairs v Bicle and Others, 1984(2) SA 439 (ZS) at 447G-H; Zimbabwe Township Developers (Pvt) Ltd. v Lou's Shoes (Pvt) Ltd., 1984(2) SA 778 (ZS) and Bull v Minister of Home Affairs, 1986 (3) SA 870 (ZH & ZS) at 872J-873C and at 880J-881C.)"
The Namibian Constitution declares in Chapter 3, article 5 that these "fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Namibia, and shall be enforceable by the Courts in the manner hereinafter prescribed".
This distinguishes the Constitution from ordinary Acts of Parliament. The whole tenure of Chapter 3 and the influence upon it of international human rights instruments from which many of its provisions were derived call for a generous broad and purposive interpretation, that avoids "the austerity of tabulated legalism". This is why, as stated above, Mr Gauntlett was correct when he submitted, (with regards to the meaning of "anything" done under the laws), that the lawgiver intended no tacit restriction on the operation of the Article so as to confine it only to anything "lawfully" alone.
There are other mechanisms available to the Namibian Government to avoid liability in this type of case. Article 140(3) of the Constitution gives to the post-Independence government of Namibia the power to repudiate, by a proper Act of Parliament, any acts done by the previous administration or its officials. Such a repudiation would necessarily remove the repudiated act from being attributed to the Namibian Government in terms of Article 140(3). The Namibian Government has, however, elected not to effect such repudiation by an Act of Parliament. The necessary consequence which therefore follows is that it is saddled in law with the liability to compensate the Plaintiff for the damages which he alleges he has suffered from the delictual acts of the officials of the predecessor Government.
International Law does not preclude any such liability and, even if it did, the Namibian State was free to elect, as it did, on a proper construction of Article 140(3) to accept such liability.
Faced with these difficulties, Mr Maritz also suggested that since Article 140(3) only purported to perpetuate liability in cases where the acts done, were "done by the Government or by a Minister or other official of the Republic of South Africa", the amendment sought by the Respondent should have been refused, in the absence of an averment that the person or persons who caused injury " to the Respondent were "officials" of the South African Government.
In our view, however, the Court was entitled to grant the amendment sought, as long as the allegations of the respondent in the pleadings were not inconsistent with the averment that the person who injured the Respondent, was indeed an "official" of the South African Government or with the averment that the act of such a person must be deemed in law to be the act of the Minister or the Government. An amendment should only be refused on the grounds of excipiability if it is clear that it would (not might) be excipiable I Crawford-Brunt v Kavnat and Another, 1967(4) SA 308 (C) at 310 G-H).
Mr Maritz also relied on Article 145 of the Constitution in support of the Appellant's case. It was contended that the Court a quo had erred in finding the Article 145(1) (b) lended support to its interpretation of Section 145(1)(b).
Article 145(1) reads as follows:
"Nothing contained in this Constitution shall be construed as imposing upon the Government of Namibia".
a) Any obligations to any other State which would not otherwise have existed under International Law;
b) Any obligations to any person arising out of the acts or contracts of prior Administrations which would not otherwise have been recognised by international law as binding upon the Republic of Namibia".