Procedural Fairness

Luxury Investments One Hundred and Ninety Two (Pty) and Another v Koujo and Others (HC-MD-CIV-MOT-REV-2017/00411) [2018] NAHCMD 390 (28 November 2018);

Flynote: 

Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.

Headnote and Holding: 

The first respondent filed a notice of appeal to the Supreme Court against the orders and judgment of this court dated 20 August 2018 wherein the court granted the applicant’s conditional counter-application. Shortly after the filing of the appeal by the first respondent, the applicants thereafter launched an application for leave to be granted to put the order dated 20 August 2018 into operation pending the appeal process.

In support of the application, a detailed founding affidavit deposed to by Mr. van der Plas was filed together with a number of supporting affidavits. The application was duly opposed by the first respondent and an answering affidavit of Mr. Koujo was filed in support of this opposition.

The crisp question for determination in the matter in casu is thus whether on the facts at hand, a proper case is made out to grant leave to put the order to execute the judgment into operation pending the appeal process.

This rule was premised on a principle of the common law to the effect that the noting of an application for leave to appeal, suspended the ‘execution’ of the order. Applications for leave to execute judgments of this court pending appeal, are governed by the provisions of Rule 121 (2). Rule 121(2) of the Rules of the High Court.

Mr. Heathcote argued on behalf of the applicants that the first respondent did not put up any case for potential of irreparable harm or prejudice and leave to execute should be granted. He pointed out that the first respondent, apart from a sweeping statement by the first respondent that he will suffer ‘massive and irreparable harm’, he failed to advance a single primary fact for such a statement.

Mr. Heathcote submitted that in contrast with the first respondent, the applicants made out a clear case for ‘massive and irreparable harm’ or prejudice should leave to execute be refused. He submitted that this was factually demonstrated in the founding affidavit of Mr. van der Plas.

Mr. Namandje contended that the applicants’ case is based on the wrong assumption that the judgment of this court in August 2018 resulted in a restoration of the first and second applicants mining claims. He argued that the applicants are defending this court’s acceptance of the irregular affidavit filed after close of pleadings and in which affidavit the third respondent stated under oath that the first applicant’s application for mining claims were still under consideration. However, he argued that whether or not the mining claims were granted, the fact remains that the cancellation of the first respondent’s claims was reviewed and set aside and the order on the counter application did not put any life in the alleged claims of the first applicant as the matter was simply referred back to the decision-maker.

It was argued that the majority of the allegations made on behalf of the applicants relates to the prejudice or irreparable harm to be suffered by the second applicant but that the second applicant as already alluded to did not apply for mining claim not does it have any. The allegations of prejudice and irreparable harm are therefore irrelevant and thus inadmissible.

It was further argued that the first respondent duly applied for mining claims and was granted such mining claims. Third parties were contractually recruited to undertake mining activities and it would suffer irreparable harm and prejudice if the first respondent were dislodged from the mining area, while awaiting the outcome of the appeal to the Supreme Court. Mr. Namandje submitted that it would be against all notions of justice if the first respondent were to be denied the right to undertake its mining activities when he has filed an appeal as the appeal enjoys excellent prospect of success.

Held – From the onset, there is very little contained in the answering affidavit of the first respondent in opposition to the application. In the answering affidavit of the first respondent, he indicated that he will suffer irreparable harm if the application is granted in favor of the applicants. The first respondent did not elaborate on the nature of or the potentiality of irreparable harm or prejudice.

Held – No documentation was presented to this court as to the nature of the potential prejudice or harm that the first respondent will suffer.

Held further – It not apparent how and why the respondent will be severely prejudiced should execution be granted. If the Wightman case is applied to the facts of this matter, there is clearly no real, genuine and bona fide dispute of fact that exists as the first respondent who raised the dispute in his answering affidavit did not address the facts said to be disputed.

Held – A court dealing with an application for leave to execute must caution itself against the temptation to deal with the application as if it was the appeal court, for this would have the undesirable effect of pre-judging the outcome of the appeal.

Held further – In my view, counsel for the first respondent remained unable during the hearing to demonstrate that there are prospects of success on appeal on the grounds raised. I do not believe that another court might come to a different conclusion on the grounds raised.

Fish Orange Mining Consortium (Pty) Ltd v !Goaseb and Others (CASE NO: I 582/2010) NAHCMD 154 (08 June 2018);

Flynote: 

Civil Procedure – application for absolution from the instance –   Rules of Court - Rule 100 – principles governing the application discussed – requirement for absolution from the instance - whether or not the plaintiff set out a prima facie case  – Law of Evidence - whether failure to examine an expert who has filed his report results in the court attaching no value to the expert report – commercial value attached to the Exclusive Prospecting Licence – court’s discretion on how the value of the EPL License is computed. 

Headnote and Holding: 

The plaintiff sued the defendants for payment of an amount of N$ 5 Million. The amount claimed is in respect of the plaintiff sustaining  damages as a result of the unlawful and wrongful transfer of a exclusive prospecting  licence (E.P.L.) caused by the 1st and 2nd defendants to the 3rd defendant. At the close of the plaintiff’s case, the 1st and 2nd defendants brought an application for absolution from the instance on the following grounds - first, the defendant submitted plaintiff failed to lead admissible evidence of an expert to prove that the EPL has some commercial value which would in turn prove the amount of damages allegedly suffered by the plaintiff.  The second point of argument related to the laws relating to the issue of extraction of minerals and that the plaintiff did not have the licence to mine and remove the minerals for sale.

Held:   That the plaintiff had led evidence to suggest that the transfer of the licence by the said defendants was unlawful.

Held further: That the plaintiff did place evidence before court by an expert regarding the value of the E.P.L. (subject to certain safeguards) and that the court was not entitled to disregard that evidence merely because the said expert was not examined, considering that his report was admitted by the consent of the parties. 

Held: That the E.P.L. does have some commercial value and it is the duty of the court, subject to hearing the evidence of the defendants, that has to decide what damages, if any, had been proved by the plaintiff.

Held further that: The awarding of damages is primarily the duty of the court and not that of the expert witness.  

Held: That the plaintiff had succeeded to meet the threshold of absolution from the instance, namely that it had adduced evidence upon which a court acting reasonably may find for the plaintiff.

The application for absolution from the instance was thus refused with costs and the defendants were ordered to open their defence.

S v Mbali (No Case Number) [1990] NAHC 391 (27 March 1990); 1990 NR 1 (HC)

Headnote and Holding: 

The matter dealt with an application by the state to recall witnesses in a trial in which the accused stood charged in the main count with theft of diamonds, or alternatively with possession of diamonds in contravention of Proclamation 17 of 1939. The court had dismissed the main charge on the basis that the link between the objects which were found in possession of the accused, and which were ultimately valued and identified as rough and uncut diamonds, did not exist. However, the state relied on the alternative and requested the court to recall witnesses to prove that these objects were in fact rough and uncut diamonds.

The main issue was whether it was necessary to recall witnesses for the fair adjudication of a case.

The court stated that where the evidence of a witness was necessary for the fair adjudication of the case, the court was obliged in terms of s 167 of the Criminal Procedure Act 51 of 1977 to recall that witness or those witnesses.

The court established that the evidence was necessary for the fair adjudication of the case between the State and the accused, in the sense that a person who was guilty on that charge might be acquitted but that the giving of such evidence would not lead to an innocent person possibly being found guilty.

The court, therefore, held that the evidence was essential for the fair adjudication of the case and granted the application by the state.

Namibian Marine Phosphate (Proprietary) Limited v Minister of Environment and Tourism and Others (CA 119/2016) [2018] NAHCMD 122 (11 May 2018);

Flynote: 

Statutory Appeal - Section 51(1) of the Environmental Management Act, 7 of 2007 - on points of law only - Meaning - Whether grounds of appeal are based on points of law.

Constitutional law — Fundamental rights — Administrative justice —Failure to invite one of the parties to a dispute to the appeal hearing— fundamentally unfair hearing — Violation of arts 12 and 18 of Constitution.

 

Headnote and Holding: 

 

The appellant was granted an environmental clearance certificate for marine phosphate mining by the Environmental Commissioner. The second respondent, a certain Mr Michael Gaweseb, appealed against the Commissioner’s decision, to the Minister. The Minister set aside the granting of the certificate, primarily on the ground that the Commissioner did not adequately consult the public and interested persons.

During the appeal hearing before the Minister, both parties had made written representations. The second respondent completed the appeal Form 3 which was also handed to the appellant and the appellant subsequently, delivered a responding statement thereto. On the day of the hearing, the Minister gave the second respondent an opportunity to make oral submissions, but, the appellant was not informed of the appeal hearing and was thus not present at the appeal hearing. During those submissions, the second respondent introduced a new issue – inadequate consultations, but this issue was not recorded as a ground of appeal on the appeal Form 3 and therefore the appellant had no knowledge of it.

Aggrieved by the Minister’s decision to set aside the environmental clearance certificate which was issued to it by the Commissioner, the appellant appealed, in terms of s 51 of the Act, to this Court against the Minister’s decision. The appellant’s attack on the Minister’s decision was that there was no proper appeal for the Minister to consider, the second respondent had no locus standi to appeal to the Minister and the Minister violated the appellant’s right to a fair hearing and fair administrative action. The Minister and the second respondent opposed the appeal on a variety of grounds. The main ground on which they opposed the appeal is that the appellant’s appeal was allegedly not based on points of law only, but on factual matters.

Held that the second respondent’s appeal before the Minister was compliant with the Regulations made under the Environmental Management Act, 2007.

Held further that in a constitutional State, citizens are entitled to exercise their rights and they are entitled to approach courts, where there is uncertainty as to the law to determine their rights. The court thus found that, in the context of the Act, Mr Gaweseb has a legal grievance and is as such, an aggrieved person entitled to approach courts to determine his rights.

Held further that it is now well established in our law that an administrative act or decision, even if improperly taken, remains effectual until properly set aside and cannot just be ignored. Since the Minister extended the time within which to launch the appeal and the decision to extend the period within which to lodge a s 50 appeal is not the subject of a review application, that decision remains and the appeal was thus lodged within the extended period.

Held furthermore that the question whether or not the s 51 appeal hearing before the Minister violated the appellant’s rights conferred on him by Articles 12 and 18, is a question of law.

Held furthermore that if the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

Uffindell t/a Aloe Hunting Safaris v Government of Namibia and Others ((P) A. 141/2000 ) ((P) A. 141/2000) [2009] NAHC 51 (20 April 2009);

Headnote and Holding: 

This was an application to review the minister’s decision that differentiated the manner of issuing the sale of trophy hunting concessions as between the applicant and fourth respondent.

The applicant succeeded in obtaining an order to show cause (rule nisi) and an interim interdict of the reliefs in their application to prohibit the implementation of the concessions.

The applicant’s locus standi was challenged during the proceedings. The court applied the reasonable person test and held that the applicant was an ‘aggrieved person’ whose fundamental rights had been infringed or threatened to be infringed.

The court considered whether the minister violated the applicant’s right to equality and held that the minister acted fairly; since the decision was made to redress the injustice of the fourth respondent and did not violate the cabinet’s policy or the constitutional principle of equality.

The court also considered whether the decision violated the applicant’s right to administrative justice as per the concept of legitimate expectation of a hearing. The court applied the rule that the court should consider the existence of a duty to act fairly. The court held that the principles of a sale by private treaty did not require the minister to afford all professional hunters an opportunity to be heard. Having found that the concession was legally granted, the court did not deal further with the issue on violation of the freedom of economic activity.

Accordingly, the court dismissed the application for interdictory relief and made an order as to 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).

Uris Safari Lodge (Pty) Limited v Weatherly Mining Namibia Limited and Others (A 284/2013) [2014] NAHCMD 266 (11 September 2014);

Headnote and Holding: 

This case concerned parties who had competing interests (one being a luxury tourist lodge and the other one was a copper mine) over the same piece of land. They were undergoing litigation, which included a pending action before another court, in which the first and second respondent were seeking the eviction of the applicant from the property which they sold to the applicant in 2002. 

The court considered an application to review and set aside a decision to grant the second respondent an environmental clearance certificate, as well as an interdict restraining them from taking any further action from using the mining rights already granted.

The applicant had earlier stated that they would launch urgent proceedings once they become aware that first and second respondent intend commencing mining activities. However, subsequent communication showed that there were no imminent mining activities. On this basis, the court found that the matter was not inherently urgent, and the application was therefore struck from the roll.  

Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others (SA 09/2011) [2014] NASC 4 (26 March 2014);

Headnote and Holding: 

This was an appeal from the High Court to the Supreme Court. The case concerned a ministerial notice stating that nuclear energy prospecting licenses regarding certain areas will not be provided.  The appellant was allegedly an aspiring applicant. He thus felt aggrieved with the notice.

In the High Court, it was held that the appellant lacked legal capacity to challenge the notice as the notice did not create any triable issue. Aggrieved, the appellant appealed to the Supreme Court.

Thus, the main issue for determination was whether the respondent's notice exempting certain areas from being prospected for nuclear resources was unconstitutional. The appellant’s argument was that the denial of the prospecting license violated his constitutional right to work. 

In response, the Supreme Court upheld the High Court decision, but it disagreed with the High Court that the respondent lacked the legal capacity. According to the Supreme Court, the appellant would have been successful if the minister had no statutory powers to issue the notice or if the process was procedural. However, the minister had such powers under section 122(1) of the Mineral (Prospecting and Mining) Act of 1992. Consequently, the Court held that it cannot order the minister to issue the license if the notice is still in existence. Also, the Supreme Court held that the constitutional provision on the right to work does not mean that people can conduct mining activities without being regulated given the environmental challenges. 

Following this, the appellant's case was dismissed with costs.

Minister of Mines and Energy and Others v Black Range Mining (Pty) Ltd (SA 18/2009) [2010] NASC 7 (15 July 2010);

Headnote and Holding: 

This Supreme Court case revolved around exploration prospecting licenses (EPL) provided by the first appellant, to the second appellant and the respondent over different mining groups of nuclear resources but in the same land. 

At the High Court, the respondent challenged the first appellant’s action (the responsible minister) for giving prospecting and mining rights to another company over an area that the respondent had an EPL agreement to operate in. The High Court had quashed the first appellant’s decision in favour of the second appellant, asserting that the first appellant in offering the EPL agreement to the second appellant did not consider the interest of the respondent as required per sections 68(h) and 69(2)(c)(i) of the Minerals (Prospecting and Mining) Act of 1992. Aggrieved, the appellants appealed. 

On appeal, the main issue for consideration was whether the first appellant was justified to issue EPL over an area that the respondent had pre-existing EPL. The  Supreme Court upheld the decision of the High Court stating that the first appellant was duty-bound to take into consideration the provisions of ss 68(h) and 69(2)(c)(i) of the act which requires regard to be given on what impact will the additional activities have on the existing EPL holders. The Supreme Court held that natural justice requires that a hearing must be given to the person(s) already holding EPL over an area likely to be affected with subsequent EPLs. In conclusion, the Supreme Court upheld the High Court decision and dismissed the appeal with costs.

Erongo Regional Council and Others v Wlotzkasbaken Home Owners Association and Another (SA 6/2008) [2009] NASC 2 (17 March 2009);

Headnote and Holding: 

This was an appeal against a judgment of the High Court which ordered the appellants to comply with the terms of a settlement agreement entered into by the parties on 10 November 2006 and later became an order of court. The first appellant was an elected body established in terms of the Regional Councils Act 22 of 1992. The first respondent was a voluntary association representing 104 members out of 110 persons who were lessees of sites in a holiday resort and fishing village of Wlotzkasbaken under the jurisdiction of the first appellant.

The first appellant advertised plots for lease without distinguishing between those already leased to the respondents and other vacant sites, which aggrieved the respondents and was interpreted as a breach of their right of pre-emption. The issues for determination were: the meaning of clause 2 of the 2006 agreement in the context of previous agreements and whether the advertisement was signaling an intention to no longer be bound by the 2006 agreement.

The court deduced that the agreements showed that in each instance the parties agreed to certain rights which would ensure that those existing leaseholders would be able, if so advised, to convert their lease holding into property rights. In their agreement with the appellants, the respondents acquired the right to have all the plots sold once the township was proclaimed. Therefore, the intention to lease those plots was a breach of the right of the respondents. Accordingly, the appellants’ appeal was dismissed with costs.