Have his cause heard (fair trial)

Visagie v Government of the Republic of Namibia ((T) I 2677/2005) [2017] NAHCMD 120 (21 April 2017);

Flynote: 

Constitutional Law – Plaintiff is suing the Government of the Republic of Namibia and 4 others for damages – Whether or not the State can and should be held liable for breaches of fundamental rights committed by judicial officers, in the exercise of their judicial functions – Can the State be held liable for the judicial acts of a magistrate on account of the fact that, while presiding over the case of the plaintiff, the magistrate was exercising the judicial power of the State of the Republic of Namibia – The basic argument that the word “government” is synonymous with the word “state” is a superficial one and in the sense that it seeks to be an overarching provision which applies in each and every instance – Inasmuch as there may be the lingering doubt that Article 78(2) does not in itself declare that the Judiciary, although notionally an organ of state, is an independent organ of state insofar as it concerns the exercise of the judicial functions such doubt is effectively refuted by the provisions of Article 78(3) – Our law is well settled as it holds individual judicial officers delictually liable for damages in suffered in the exercise of their judicial function. That presupposes that the plaintiff establishes the requisite elements upon which he or she pursues his or her claim – The state cannot be held liable given the facts and circumstances placed before me.

Geier J;

Constitutional Law – On the basis of a stated case the Court was requested to determine three legal questions, namely 1. Whether the State can be held liable for the judicial acts of a magistrate on account of the fact that, while presiding over the case of the plaintiff, the magistrate was exercising the judicial power of the State of the Republic of Namibia? 2. Is the answer to this question affected by the constitutionally entrenched principles of the independence of the judiciary, the rule of law and the separation of powers doctrine? 3. On the assumption that the allegations pleaded by the plaintiff against the Magistrate in casu are established, would the Government of the Republic of Namibia and/or the Magistrates Commission and/or the Attorney-General be liable?’ The Court answered the first question in the affirmative and questions two and three in the negative.

 

Headnote and Holding: 

The agreed to facts, which for purposes of the adjudication of the abovementioned questions of law to be determined, had been formulated as follows : Plaintiff was arrested during March 1998 and three charges were levelled against the plaintiff:  fraud, corruption (section 2 of Ordinance 2 of 1928) and contravention of section 56(e) of Act 7 of 1993 relating to the alleged falsification or fabrication of a passport; Plaintiff appeared from time to time before the second defendant at the Magistrate’s Court at Windhoek from 1998 until 20 March 2003;  On 2 August 2000 the State closed its case. In the course of acting as the presiding officer in the Magistrate’s Court, the second defendant: a) attempted to intervene to prevent the State from closing its case; b) did not inform the plaintiff, his legal representatives or the prosecutor that the State’s case had been closed on a previous occasion; c) was determined to get a conviction against the plaintiff; d) unduly interfered with the State’s case; e) denied the plaintiff a fair trial. The said actions or omissions of the second defendant were actuated by mala fides and/or fraud, as well as malice and/or improper conduct and/or procedural error and/or the grossest carelessness.’

In regard to the first question the court found that such liability could only vest if the concept of ‘State liability’ was applicable in Namibia and could also be applied to acts or omissions done in the exercise of judicial powers.

Held: That the State, is a legal persona, with rights and duties, which can sue and be sued, also for constitutional breaches,

Held: That the concept of ‘State liability’ therefore generally exists and can be applied here in Namibia.

Held: That the legal obligations imposed by Article 5 of the Namibian Constitution which were also imposed on the Judiciary could thus be enforced against a judicial officer, in the limited circumstances where the judicial officer has also lost the shield of immunity, in the manner prescribed by Article 25 of the Constitution.

Held: That Article 25 (4), in addition to the other powers listed in Article 25(3), gives a competent Court the power to also award monetary compensation in respect of any damage suffered by an aggrieved person in consequence of an unlawful denial or violation of such persons fundamental rights or freedoms, where the Court considers such award to be appropriate in the circumstances of a particular case

Held: That on the application of the concept of State liability to the given scenario of the stated case, and keeping in mind that the judicial officer in question, the second defendant here, as a member of the relevant organ of State, (the judiciary), was always duty- bound by the Supreme Law to respect and uphold the Plaintiff’s fundamental rights and freedoms enshrined in Chapter III of the Constitution, which she did not, delictual liability would, in principle, also vest in the State, as ‘principal’ of the judicial organ of state, in the specific circumstances, where the judicial officer in question, has also lost the shield of judicial immunity.

Held further: That such liability would also entail the general entitlement to claim all such orders as shall be ‘necessary and/or appropriate’ – but obviously only if considered ‘necessary’ and/or ‘appropriate’ by the Court -  to secure to the aggrieved party the enjoyment of the rights and freedoms conferred under the provisions of this Constitution, including an interdict and even monetary compensation. Whether or not monetary compensation can be claimed, in addition, would however always be subject to the further pre-condition, namely, that the Court considers the claimed monetary award also ‘appropriate’, in the circumstances of the particular case.

Held: That the first legal question posed in the stated case therefore had to be answered in the affirmative.

In regard to the second question the court held that the answer given to the first question was not affected by the constitutionally entrenched principles of the independence of the judiciary, the rule of law and the separation of powers doctrine as the Constitution allows for the cause of action contended for in the context of the democratic principles enshrined therein, which principles, at the same time, recognize- and thus do not conflict with the separation of powers doctrine and the rule of law and as in addition, and on the aspect of the independence of the judiciary - and with it on the related aspect of judicial immunity – it had to be of significance that the Supreme Court had not only reaffirmed the general common law position applicable in regard to the independence and immunity of judicial officers but had also found that the common law exception thereto, relating to personal delictual liability of judicial officers, to be in conformity with the Constitution. The Supreme Court had thus, by implication also found, that the common law exception was thus in line and was not affected by the constitutionally entrenched principles of the independence of the judiciary, the rule of law and the separation of powers doctrine.

Held further:  that the answer, given to the first question, was in addition not only in accord with the principles of the independence of the judiciary, the Rule of Law and the separation of powers doctrine, but that it also embraced the important democratic core value of accountability, which was so given recognition at the same time.

Held: That the second question of law to be determined therefore had to be answered in the negative.

On the assumption that the allegations pleaded by the plaintiff against the Magistrate in casu are established the Court found that the Government of the Republic of Namibia would not be liable.

In this regard it was held that the plaintiff’s claim, as it currently stood, lay against the executive ‘Government’ and that it would always have been inappropriate to sue and cite the ‘Executive Government’ in cases involving State liability, as the ‘executive organ of the State’, should never have been sued, as that organ, can never be held responsible for any act of the Judiciary due to the separation of powers doctrine. It was therefore incorrect to sue and cite the ‘Government of the Republic of Namibia’, (constitutionally to be understood as the executive organ of the Namibian State).

Held further: As it was State liability that was is relied upon the appropriate first defendant should always have been the State, in its own right, as the ‘principal’ of the judicial organ of State, as represented by the President, in his capacity as Head of State.

Held: that It followed that the First Defendant, (as things presently stood on the pleadings), would- and could never be liable, even on the assumption that the allegations pleaded, by the Plaintiff against the Second Defendant, would be established.

On the assumption that the allegations pleaded by the plaintiff against the Magistrate in casu are established, the Court found that the Magistrates Commission of the Republic of Namibia (the third defendant) would not be liable.

In this regard it was held that although the Third Defendant was essentially the entity responsible for the Second Defendant’s appointment, the Commission was, at the same time, by statutory decree, always prohibited from interfering with the judicial functioning of the Second Defendant.

Held further: That also the principles of vicarious liability, which do not apply to judicial officers, could not be of assistance to the Plaintiff.

Held further: That the aforementioned statutory bar, embodied in the Magistrates Act 2003, applicable to the Third Defendant, simply gives expression to- and upholds the separation of powers doctrine. The Magistrates Commission thus cannot be held accountable for the acts of a magistrate shielded by the doctrine and judicial immunity.

Held: Although State liability may vest, as was found, that was the liability of the State itself and not that of any of the other organs of the State, such as the executive government or that of a creature of statute, like the Third Defendant. The principles on which State liability is founded thus could not sustain a claim against the Third Defendant.

Held:   That for these reasons – and even on the assumption that the allegations - as pleaded by the Plaintiff against the Second Defendant in casu were established - no liability would vest in the Third Defendant, in principle.

Held also: That this finding did not mean that it would not have been permissible to cite the Third Defendant, as an interested party, by virtue of the fact that it is the entity responsible for the appointment of the Second Defendant in conjunction with the Minister of Justice, and over whom the Third Defendant also has disciplinary jurisdiction in the case of misconduct.

On the assumption that the allegations pleaded by the plaintiff against the Magistrate in casu are established, the Court found that the Attorney-General of the Republic of Namibia (the fourth defendant) would not be liable.

In this regard it was held that although the Constitution expressly obliges the Attorney-General to take all action necessary for the protection and upholding of the Constitution, which obligation would thus include the duty to uphold the rule of law, the principles of democracy – and with it the separation of powers doctrine – and where Article 87 (c) of the Constitution also imposes the duty to protect and uphold the fundamental rights and freedoms enumerated in Chapter III of the Constitution – it always remained questionable how this responsibility could translate itself into legal liability, vis a vis the Fourth Defendant, in circumstances where the courts, and here also specifically the Second Defendant, were always entitled to act independently and without interference and where the Second Defendant was always shielded from any outside interference by the doctrine of the separation of powers and judicial immunity and thus also from any interference by the Fourth Defendant? The Fourth Defendant was thus effectively barred from interfering with any of the complained of actions of the Second Defendant.

Held: For similar reasons as those found applicable to the Plaintiff’s case against Third Defendant – and even on the assumption that the allegations, as pleaded by the Plaintiff against the Second Defendant in casu were established – it was found that no liability would vest in the Fourth Defendant, in principle.

Held further: That this finding did not mean that it would not have always been obligatory to cite the Fourth Defendant, as an interested party, from the outset, by virtue of the fact that it is the Attorney-General of the Republic that the courts have identified, that should be cited as a party in all cases where constitutional issues are at stake.


ORDER


MILLER, AJ (concurring UEITELE J):

1.         Question one is answered in the negative.

2.         Question two is answered in the affirmative.

3.         Question three is answered in the negative.

4.         There shall be no order as to costs.

GEIER J (dissenting):

1.         The first question of the stated case is to be answered in the affirmative, namely that the State can, on the application of the principle of ‘State liability’ be held liable for the judicial acts of a magistrate, in the specific limited circumstances where such judicial officer has lost the shield of judicial immunity on account of the fact that, while presiding over the case of the plaintiff, the magistrate was exercising the judicial power of the State of the Republic of Namibia; and

2.         The second question of the stated case is answered in the negative in that it is held that the answer to the first question given above is not affected by the constitutionally entrenched principles of the independence of the judiciary, the rule of law and the separation of powers doctrine; and

3.         The third question of the stated case is also answered in the negative in that it is held that the Government of the Republic of Namibia and/or the Magistrates Commission and/or the Attorney-General would not be liable, even on the assumption that the allegations pleaded by the plaintiff against the Magistrate in casu would be established.

4.         There should be no order as to costs.

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-