Administrative Review

Mclaren Ian N.O and 3 others v Municipal Council of Windhoek and 2 Others (SA 33/2016) [2018] NASC 1 (17 January 2018);

Headnote and Holding: 

This was an appeal by a company and its liquidators against the decision of the lower court to dismiss their claim for the validity of a lease. The appellants claimed in the alternative that the decision of the respondent, the Municipal Council of Windhoek (“the council”) be reviewed and set aside. 

The main issues to be determined were, whether the council had validly cancelled the lease prior to the liquidators’ election to continue with it and whether the decision of the council was open to review by the court.

The respondent contended that the cancellation was caused by the appellants’ breach of a term of the contract, by discontinuance of its textile industry.  The respondent further contended that the appellants breached another term regarding sound environmental practices.

The court found that the respondent’s decision to terminate the lease was solely contractual and not administrative. On this basis therefore, the court held that the decision was not open to review on administrative law grounds.

Firstly, the court held that financial failure of a company, leading to liquidation, could not terminate a lease. Secondly, that the council failed to establish what the terms for an environmental friendly textile industry were. In conclusion, the court held that the company had in fact given notice to terminate the lease and that the notice was accepted by the respondent. Consequently, the lease had then ceased to exist.
Accordingly, the court dismissed the appeal with costs.

Tumas Granite CC v Minister of Mines and Energy and Others ( (P) A 2328/2006) ((P) A 2328/2006) [2008] NAHC 141 (24 June 2008);

Headnote and Holding: 

The matter dealt with an application for review of a decision by the first respondent to grant a reconnaissance licence to the second respondent. The issue for the court’s consideration was whether it was permissible to grant an exclusive reconnaissance license to a non-holder of a reconnaissance license and whether a side note in a statute could be used in the interpretation of a statutory provision.

The applicant conceded that in terms of section 59(1)(a) of the Minerals Act, they were not a holder of a reconnaissance licence and therefore could not have applied for an exclusive reconnaissance as required by that section but contended that an exclusive reconnaissance licence was competent under  section 62(1) of the act.

The court in dismissing the application decided that ss 59 to 62 complemented each other. The court cited Chandler v DPP which held that side notes cannot be used as an aid to the construction of legislation as they are mere catchwords inserted by the draftsman and not the legislator. Therefore the notion that the marginal note to s 59 held that the section only deals with exclusive reconnaissance licences was immaterial.  The court held that the language of s 59(1)(a) instead demonstrated that an ordinary reconnaissance  license could not be issued under s 62(1), unless it was first granted under s 59(1)(a) and ruled that only the holder of a valid reconnaissance license may apply for an exclusive reconnaissance license under s59(1)(b).

Auas Diamond Co (Pty) Ltd v Minister of Mines and Energy (PA220/05) [2006] NAHC 57 (30 November 2006);

Headnote and Holding: 

The matter dealt with an application to review the minister’s refusal to renew an exclusive prospecting license (EPL) for the applicant. Such a license would ordinarily be granted for an initial period of three years and thereafter could be renewed for not more than two successive periods.The applicant held a license from 1997 to 2000 and thereafter sought a renewal which was granted in 2001. However, the second application to renew was denied prompting the applicant to question the validity of the first renewal, The applicant argued that the acceptance of the renewal was done by an unauthorised individual acting outside his mandate and it should therefore be set aside.

The court considered the validity of the first renewal and held that since the initial renewal was by an unauthorised individual, it was void. Consequently it was immaterial whether the minister granted or refused the second application. The court decided further that section 48 of the Act mandates an applicant to accept the terms and conditions of a renewal within one month, failing which the application would be deemed to have lapsed. Consequently, the initial acceptance was ruled to be void because the application for a first renewal had lapsed. 

Therefore, the court concluded that because the substance of the applicant's application for review rested on the respondent's refusal of the second renewal of the EPL, that second renewal could not have been granted or refused, because the EPL had already expired and was never legally renewed.

New Era Investment (Pty) Ltd v Roads Authority and Others (A 05/2014) [2014] NAHCMD 56 (20 February 2014);

Flynote: 

Administrative law – Right to the audi alteram partem rule of natural justice – Court held that natural justice is a flexible doctrine and the rule is not cut and dried for it vary infinitely – Court held that as a general rule fairness dictates that prejudicial information should be disclosed to the subject of the information to enable him or her to contradict or correct it – Nevertheless a careful distinction should be drawn between the information and the evaluation thereof during the process of the decision itself – And a right to discovery of prejudicial information is not an automatic feature of natural justice – In instant case the information complained of was not one of the two factors that led to the rejection of the applicant’s tender – The court found that there has not been a failure of fairness.

Administrative law – Judicial review – In terms of art 18 of the Namibian Constitution – Tender to do work – Applicant seeking review of decision of first respondent (a public authority) rejecting applicant’s tender in favour of another tenderer – Court held that there is no onus on the public authority to justify its conduct – Onus rests on the applicant for review to satisfy the court that good grounds exist to review the conduct complained of – Good grounds are grounds that are cogent and relevant – The grounds must be set out in the founding affidavit not grounds put forth or as sanitized by counsel in submissions from the Bar – Court held that it is up to a decision maker who knows what he or she desires to achieve to decide what information or facts to collect, what criteria to apply to the information or facts collected and what weight of importance and relevance to put on each piece of information or facts and each individual criterion – In the instant case the criteria or factors applied are contained in the first respondent’s procurement policy, rules and regulations the first respondent’s controlling line ministry’s policy – Court held that the first respondent being a public authority was entitled to apply the Ministry’s policy – The test is not what particular factors the public authority could apply and what weight it would put on each factor but whether the factors and weight were applied equally to the entire competition – The same goes for the criteria for factors to apply to the information and facts collected – Having rejected all the grounds of review the court dismissed the application with costs.

 

 

 

Headnote and Holding: 

Administrative law – Right to audi alteram partem – Court held that as a general rule fairness dictates that prejudicial information should be disclosed to the subject of the information to enable him or her to contradict or correct it – Nevertheless a careful distinction should be drawn between the information and the evaluation thereof during the process of the decision itself – And a right to discovery of prejudicial information is not an automatic feature of natural justice – In instant case the prejudicial information concerns the applicant’s ‘very questionable quality of work and ability to carry out tasks to programme deadlines in respect of two previous projects – Court found that the information was evaluated in addition to other information and facts, many of which were supplied by the tenderers – Court concluded that it was not established that but for the information the decision would have gone the other way in the applicant’s favour but there is ample evidence that the scores of the applicant in respect of technical evaluation and financial evaluation sealed its fate – These two evaluations led to the rejection of the applicant’s tender – Court concluded the non-disclosure of the information does not amount to failure of fairness – Court found that the applicant has not discharged the onus cast on it to satisfy the court that good grounds exist to review the decision of the public authority – Accordingly, application was dismissed with costs.

Administrative law – Judicial review – In terms of art 18 of the Namibian Constitution – Tender to do work – Applicant seeking review of decision of first respondent (a public authority) rejecting applicant’s tender in favour of another tenderer – Court held that there is no onus on the public authority to justify its conduct – Onus rests on the applicant for review to satisfy the court that good grounds exist to review the conduct complained of – Good grounds are grounds that are cogent and relevant – Applicant’s main complaint was that certain criteria and weights of importance and relevance put on those criteria that did not favour it were applied by the public authority to its disadvantage – Consequently, for the applicant, there was failure of fairness and reasonableness because the public authority did not apply its mind and it took into account irrelevant and extraneous considerations in rejecting applicant’s tender – Court rejected the grounds on the basis that the public authority was entitled to whatever information and facts it desired to collect and apply whatever criteria or factors in its procurement policy, rules and procedures and the policy of its controlling line Ministry and put any weight of relevance and important on any piece of information and fact and any criterion or factor so long as all these were applied equally to all the tenderers.