Children

Sasman and Another v The Chairperson of the Internal Disciplinary Panel of the Windhoek International School and Others (A 66/2013 ) [2013] NAHCMD 115 (04 April 2013);

Flynote: 

 

Practice – Applications and motions –urgent application - Urgent application for the review and setting aside, with immediate effect, of a ruling of the internal disciplinary panel of a school refusing the applicants’ minor child legal representation at a disciplinary hearing – court accepting that proceedings, in which the rights of children are involved, ‘ … are sui generis and invoke a special jurisdiction bestowed on the court to look after the interests of children … ‘ and that ‘a pedantic approach requiring an applicant seeking urgent relief to meticulously explain the reason for every delayed action in coming to court as inappropriate in most cases, unless the circumstances and facts of such delay are palpably so unreasonable and so oppressive that the court would refuse to come to the assistance of such an applicant on an urgent basis’ – as it could not be said that the applicant has acted unreasonably overall – and as the common cause facts pertaining to this matter showed that the parties were agreed that the disciplinary process against the minor child should be determined as expeditiously as possible - and as it was not only desirable - but also in the interest of all parties and the minor child, centrally involved in this matter - that the disciplinary process against the minor be finally resolved, or be as close as possible to completion, as soon as possible by the time that school would start again – court – in view of the overriding considerations pertaining to the matter exercising its discretion in favour of entertaining the application on an urgent basis.

Administrative law - Administrative action - Review - Domestic remedies - Duty to exhaust internal remedies before instituting legal proceedings - Requirement not absolute - jurisdiction of Court to review administrative action deferred only if and to extent that contract, governing relationship between the parties creates, either expressly or impliedly, obligation first to exhaust internal remedies – even then court retaining a discretion to condone the failure to exhaust internal remedies – were this might be inappropriate or inadequate for instance or where such process would also be tainted by a material irregularity which might vitiate the entire process complained of and in which circumstances it would make no sense to defer the decision on the merits of this matter until the internal remedies have been exhausted -

Administrative law - Administrative action - Review - Domestic remedies - Duty to exhaust internal remedies before instituting legal proceedings - Requirement not absolute - If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts –

Administrative law - Waiver - Reliance on waiver - Party alleging waiver bears onus to prove waiver - Must prove that party had knowledge of right abandoned; that abandonment was express or implied or by conduct; that such abandonment was conveyed to other party, expressly, or impliedly or by conduct .

 

Headnote and Holding: 

Urgent application for the review and setting aside, with immediate effect, of a ruling of the internal disciplinary panel of the Windhoek International School refusing the applicants’ minor child legal representation at a disciplinary hearing – applicants contending that panel should have afforded applicant’s minor child the right to legal representation as the minor child would otherwise not enjoy a fair hearing – due to the nature of the charges brought - the degree of factual legal complexity of the matter - the potential seriousness of the consequence of an adverse finding - the age of the minor child - the age of the witnesses - the fact that there is a qualified attorney to adjudicate on the matter - respondents contending on the other hand that application was not urgent – that the available internal appeal remedies should have been exhausted first – that applicants had waived their right to insist on legal representation for their minor child during such proceedings by again participating in the disciplinary hearing which they had refused to attend on legal advice – that the disciplinary panel had not acted mala fide, ultra vires or breached the rules of natural justice and had thus exercised its discretion properly as a result of which the court should refrain from interfering in the matter –

As proceedings, in which the rights of children are involved, ‘ … are sui generis and invoke a special jurisdiction bestowed on the court to look after the interests of children Court however exercising discretion in favour of entertaining application on an urgent basis –

As the contractual framework, governing the relationship between the parties, did not require the parties to exhaust all internal remedies first and as the court would in any event also have the power to condone a failure to exhaust internal remedies and in certain circumstances were the validity of the entire disciplinary process was in question - court holding that it would make no sense to defer the decision on the merits of this matter until the internal appeal avenue had been exhausted – court thus not upholding special defence that internal remedies should first have been exhausted –

On the facts of this matter Court however finding that the applicants - through their conduct – in again participating in the disciplinary proceedings – which they had left – indicating that they would only continue to participate therein – if legally assisted – and which subsequent conduct was plainly inconsistent with the right relied upon in this application – had waived such right – Respondents accordingly discharging onus in proving this defence -

As the effect of the waiver was that it has extinguished the right, relied upon by the applicants in this matter, it followed that no relief could be granted on the basis thereof – application accordingly dismissed with costs-